State v. Given
2016 Ohio 4746
Ohio Ct. App.2016Background
- July 11, 2014 altercation at appellant Jerome Given’s house; Charles Pete was shot twice and hospitalized.
- Two competing versions: Pete testified Given hit him with a gun and shot him; Given testified a struggle over a gun occurred and it discharged during the struggle.
- Investigating officers recovered a revolver in the driver’s seat headrest; three spent casings and live rounds were present; a bullet was recovered from the passenger seat.
- BCI DNA testing: insufficient DNA on trigger; other gun DNA was consistent with Given (inclusion rate 1 in 22,000); Pete’s profile inconclusive as a contributor.
- Melissa Thomas testified about a contemporaneous phone report from witness Daralynn Cooper describing the shooting (Cooper did not testify); defense objected at trial.
- Jury: acquitted on attempted murder and felonious assault charges and on firearm specifications; convicted of two counts of aggravated assault (merged for sentencing); Given sentenced to 15 months; appealed raising four assignments of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Melissa’s testimony repeating Daralynn’s statements (hearsay) | State: statements were nontestimonial and admissible as excited utterance or present sense impression | Given: testimony was hearsay and not trustworthy for present sense impression; Confrontation Clause concerns | Admission was not an abuse of discretion; statements qualified as excited utterance/present sense impression and, alternatively, any error was harmless; Confrontation Clause not violated (statements to friend nontestimonial). |
| Juror communicated with a witness during deliberations; request to remove juror or mistrial | State: objected to juror remaining on panel | Given: (did not object on record) argues mistrial should have been sua sponte granted | Juror’s communication was improper but did not constitute plain error; no showing the outcome would differ; admonition was sufficient. |
| Verdicts against manifest weight of the evidence | Given: convictions for aggravated assault inconsistent with acquittals on firearm specs; punch/hitting with gun did not show serious physical harm | State: evidence (gunshots, DNA, witness testimony) supported aggravated assault convictions; even if gun discharged during struggle, acting knowingly can be established | No manifest-weight reversal; evidence supports aggravated assault convictions (serious physical harm from gunshots and conduct during struggle supports knowing conduct). |
| Inconsistency between guilty aggravated-assault verdicts and not guilty firearm specifications | Given: firearm-spec acquittal means jury could not have found deadly-weapon element; thus verdicts inconsistent | State: principal offense and specification are separate; specification finding does not negate principal conviction | Court follows Perryman principle: verdicts not inconsistent; Koss distinction discussed but Perryman governs; no reversal required. |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial statements by absent witnesses barred by Confrontation Clause unless prior cross-examination)
- State v. Perryman, 49 Ohio St.2d 14 (1976) (specifications are separate from principal offense; specification determination does not upset principal conviction)
- State v. Koss, 49 Ohio St.3d 213 (1990) (discusses inconsistent verdicts in context of gun specification; treated as limited/dicta here)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (standard for manifest-weight review)
- State v. Barnes, 94 Ohio St.3d 21 (2002) (plain-error/Crim.R. 52(B) framework)