State v. Kidd
2020 Ohio 4994
Ohio Ct. App.2020Background
- Appellant Lameer Kidd was indicted on aggravated burglary (Count 1), domestic violence (Count 2), abduction (Count 3), drug possession (Count 4), and violating a protection order (Count 5).
- Trial evidence: witnesses (victim and coworkers) described Kidd forcing entry into a group home, assaulting and dragging the victim into a car; police located the victim distressed and arrested Kidd on a warrant; drug evidence led to Count 4 (acquitted).
- The prosecutor (without objection) amended Count 1 to add assault as a possible underlying offense for aggravated burglary; at the prosecutor’s request the court instructed the jury on assault as a lesser included offense of Count 2 (domestic violence).
- The victim initially refused to appear and was declared a material witness; a warrant issued; the jury returned guilty verdicts (aggravated burglary, assault [Count 2 lesser], and abduction) but Kidd was not present for the verdict after cutting his GPS monitoring bracelet.
- The trial court sentenced Kidd to consecutive terms (10–15 years on aggravated burglary; 2 years on abduction; assault sentence vacated on appeal). The appellate court affirmed aggravated burglary and abduction, vacated the assault conviction, and remanded for entry of corrected judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Right to be present when verdict announced | Kidd voluntarily absented himself after tampering with GPS bracelet; court properly proceeded | Kidd’s absence may not have been voluntary; right to be present was violated | Absence was voluntary (evidence sheriff found bracelet, counsel attempted contact); assignment overruled |
| 2. Failure to merge aggravated burglary and assault | Crimes were committed separately; sentencing on both permissible | Assault should merge with aggravated burglary/other counts as allied offenses | Moot after assault conviction vacated |
| 3. Amendment / lesser-included issue: Was assault properly added and instructed? | Amending Count 1 to list assault was permitted under Crim.R. 7(D); elements of assault are contained in domestic violence; defendant had notice | Assault is not a proper lesser included of misdemeanor domestic violence when both are same degree; instruction and resulting conviction were improper | Amendment to Count 1 was permissible; but instructing jury on assault as lesser included of Count 2 (misdemeanor domestic violence) was plain error — assault conviction vacated |
| 4. Prejudice from evidence of protection order (no perfected service) | Detective informed Kidd of the order; under R.C. 2919.27(D) prosecution can proceed without perfected service if defendant was shown the order or informed; evidence admissible | No service; charge lacked factual/legal support; jury was prejudiced by hearing the order evidence | Evidence about the protection order was admissible; dismissal of Count 5 by the state was mistaken on service requirement but not reversible error; assignment overruled |
Key Cases Cited
- State v. Meade, 80 Ohio St.3d 419 (Ohio 1997) (defendant may waive right to be present by voluntary absence)
- State v. Long, 53 Ohio St.2d 91 (Ohio 1978) (plain-error review must be exercised with utmost caution)
- State v. Lynn, 129 Ohio St.3d 146 (Ohio 2011) (aggravated burglary need not specify the exact underlying offense in the indictment)
- State v. Gardner, 118 Ohio St.3d 420 (Ohio 2008) (clarifies elements and proof related to aggravated burglary and underlying offenses)
- State v. Daugherty, 166 Ohio App.3d 551 (Ohio App. 2006) (domestic-violence offense elements encompass assault under R.C. 2903.13)
- State v. Evans, 122 Ohio St.3d 381 (Ohio 2009) (three-part test for determining lesser-included offenses)
- State v. Deem, 40 Ohio St.3d 205 (Ohio 1988) (foundational Ohio guidance on lesser-included and allied-offense analysis)