Columbus Pros. Office v. J.M.Columbus Pros. Office v. J.M.
DECISION
Rendered on September 29, 2023
On brief: Zachary M. Klein, City Attorney, Melanie R. Tobias-Hunter, and Orly Ahroni, for appellee. Argued: Orly Ahroni.
On brief: Yeura R. Venters, Public Defender, and Leon J. Sinoff, for appellant. Argued: Leon J. Sinoff.
DORRIAN, J.
{1} Defendant-appellant, J.M.,1 appeals from a sentence entry issued by the Franklin County Municipal Court following a bench trial finding her guilty of domestic violence and assault. Because the sentence entry is a final, appealable order in this case and, upon review of the merits, the trial court erred in conducting a bench trial without first obtaining, in open court, a valid waiver of J.M.‘s right to a jury trial, we reverse the trial court judgment.
I. Facts and Procedural History
{2} J.M. was charged with assault, pursuant to
{3} On February 17, 2022, J.M. signed a document entitled “Advice Of Rights And Waiver Of Trial by Jury” whereby J.M. agreed, “I have been advised of and understand the information [concerning, in part, her right to have a trial by jury], and I knowingly waive my right to a jury trial and consent to this case being heard by the Court.” (Feb. 17, 2022 Waiver at 1.) The trial court judge and either J.M.‘s attorney or a witness also signed the document.
{4} The trial court held a bench trial on March 21, 2022 with J.M. present and represented by defense counsel. The trial court did not reference or discuss, in open court, the waiver of J.M.‘s right to a jury
{5} Officer Blackburn testified to being dispatched to Nationwide Children‘s Hospital around 4:30 p.m. on December 5, 2021 to meet with T.W. concerning a warrant, with a plan in place to take T.W. into his custody and then release her to J.M. at the hospital reception center. According to Officer Blackburn, when he and another officer initially made contact with T.W. in her hospital room he did not observe any physical injury to T.W. The officers then waited outside the hospital room and were introduced to J.M. Eventually, J.M. proceeded toward T.W.‘s hospital room. Officer Blackburn observed T.W. come out of the hospital room and grab another woman, who he described as “her friend,” from the hallway and pull her back into the room. (Mar. 21, 2022 Tr. at 13.) According to Officer Blackburn, J.M. “raised her right fist and started hitting [T.W.].” (Mar. 21, 2022 Tr. at 13.) Officer Blackburn and his partner ran toward the room, Officer Blackburn stepped in between J.M. and T.W., and his partner held J.M. Officer Blackburn reiterated he witnessed J.M.‘s fist make contact with T.W. specifically—not the friend—and described J.M.‘s first strike, right at the doorway to the hospital room, connecting with T.W.‘s “shoulder, upper back region.” (Mar. 21, 2022 Tr. at 13.) Officer Blackburn testified he observed physical injury to T.W. after the incident and said she had “a bloody bottom lip.” (Mar. 21, 2022 Tr. at 14.) According to Officer Blackburn, the friend was not involved in the altercation between J.M. and T.W.
{6} The video of the incident captured on Officer Blackburn‘s body camera, played for the court, shows T.W., in a red sweatshirt and dark pants, pull a woman in a light grey t-shirt and white pants into a hospital room, and J.M., in a dark green sweater and dark pants and boots, enter the room after them swinging her arms. Once in the room, the video shows J.M. facing T.W. while swinging her arms and fists directly at T.W. Once the women are separated by officers, T.W. is shown crying and asking to not go home with J.M. since J.M. hit her. The woman in light grey is visible to the left side of the room by a chair.
{7} On cross-examination, J.M.‘s attorney questioned Officer Blackburn regarding the possibility that the friend, who was alleged to be the mother of T.W.‘s boyfriend and who T.W. lived with when she ran away from home, was J.M.‘s target and that T.W. may have been trying to break up a fight between J.M. and the friend. Officer Blackburn reiterated his testimony that he saw J.M. swing and make contact with T.W. directly and that the friend was not involved in the altercation in the hospital room.
{8} The city rested its case, and J.M. testified in her own defense. J.M. explained she had previously filed “interfering with custody” charges on the friend and “unruly” charges on T.W. and that the warrant on T.W. stemmed from the judge ordering T.W. to go home to J.M. and resume medication for bi-polar disorder. (Mar. 21, 2022 Tr. at 43.) According to J.M., during the incident in the hospital, she was angry with the friend for remaining at the hospital when J.M. had been assured the friend would leave the premises. J.M. testified she swung her fists at the friend—not T.W.—and that T.W. interjected herself and swung back at J.M. “I punched at [the friend]. [T.W.] then
{9} After the witnesses testified and the parties made closing arguments, the judge immediately ruled, finding J.M. guilty of assault, pursuant to
{10} On July 28, 2022, J.M. filed an appeal challenging her convictions. The city moved this court to dismiss the appeal, asserting the sentencing entry in this case failed to constitute a final, appealable order under
II. Final, Appealable Order Issue
{11} The Ohio Constitution limits the jurisdiction of courts of appeal to the review of final orders.
{12}
{13} A judgment of conviction in a criminal case that “reflects the four substantive provisions” of
A judgment of conviction shall set forth the fact of conviction and the sentence. Multiple judgments of conviction may be addressed in one judgment entry. If the defendant is found not guilty or for any other reason is entitled to be discharged, the court shall render judgment accordingly. The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk.
In Lester, the Supreme Court of Ohio considered
{14} “[A] valid judgment of conviction requires a full resolution of any counts for which there were convictions.” State v. Jackson, 151 Ohio St.3d 239, 2017-Ohio-7469, ¶ 11. See Craig at 404 (holding that a conviction on one count of a multi-count indictment is not a final, appealable order when other counts remain pending after a mistrial); State v. Monroe, 10th Dist. No. 13AP-598, 2015-Ohio-844, ¶ 31 (determining a final, appealable order existed after finding, among other issues, that it was “clear from the amended judgment entry that the trial court disposed of each of the counts“); State v. Crago, 10th Dist. No. 18AP-857, 2020-Ohio-887, ¶ 11-12 (discussing the necessity of the trial court to sentence the defendant on “each and every offense” for which there is a conviction and applying that rule to a fact pattern with a “hanging” or missing charge that was not dismissed or otherwise settled). Moreover, “[a]s a general matter, ‘[o]nly one document can constitute a final appealable order,’ meaning that a single entry must satisfy the requirements of
{15} “[T]he purpose of
{16} In this case, the city‘s motion to dismiss centers on the meaning of the second substantive requirement of
{17} The parties are essentially at odds over whether what appears to be an improperly imposed “omnibus”2 sentence by the trial court fails to meet the
appeal); State v. Hedges, 11th Dist. No. 2019-L-135, 2020-Ohio-4528, ¶ 12 (holding “the imposition of a sentencing package to be a voidable error, and not void” under recent Supreme Court precedent and, therefore, one the appellant was required to challenge on direct appeal).
{19} Appellate courts directly addressing whether an omnibus sentence is a final, appealable order vary in result, largely based on the particular court‘s view regarding whether a single, lump sentence disposes of each individual offense.4 Compare State v. O‘Black, 3d Dist. No. 1-09-46, 2010-Ohio-192, ¶ 6-7 (judgment entry imposing omnibus sentence is not a final, appealable order); State v. Jones, 8th Dist. No. 102314, 2015-Ohio-2409, ¶ 6-165 (trial court order imposing omnibus sentence is not a final, appealable order); State v. Washington, 11th Dist. No. 2021-P-0026, 2021-Ohio-3883, ¶ 4 (trial court entry imposing omnibus sentence is not a final, appealable order—despite its prior ruling in Hedges); with State v. Wheatley, 4th Dist. No. 17CA3, 2018-Ohio-464, ¶ 46, fn. 9 (trial court order imposing omnibus sentence is a final, appealable
{20} Here, considering
conviction, the sentence, the judge‘s signature, and the time stamp indicating the entry upon the journal by the clerk. Lester at ¶ 14, citing
{21} Considering all the above, this court has jurisdiction to review J.M.‘s appeal. Accordingly, the city‘s motion to dismiss lacks merit and is denied.
III. Assignments of Error
{22} J.M. assigns the following five assignments of error for our review:
[I.] Appellant‘s Right to Trial By Jury Was Violated When the Trial Court Conducted a Bench Trial Without Obtaining a Valid Waiver of the Right to Jury Trial.
[II.] Appellant Was Denied The Effective Assistance of Counsel at Trial.
[III.] There Was Insufficient Evidence as to the Essential Element of “Physical Harm,” So Appellant Should Not Have Been Found Guilty of Either Charge.
[IV.] The Manifest Weight of the Evidence Favored Appellant‘s Acquittal.
[V.] Appellant Was Impermissibly Convicted of Multiple Offenses for the Same Conduct, in Violation of Jurisprudence on Allied Offenses of Similar Import and Constitutional Double Jeopardy.
IV. Analysis
A. Right to a jury trial
{23} In her first assignment of error, J.M. contends her right to a trial by jury was violated since the trial court failed to obtain a valid waiver prior to holding the bench trial. Specifically, J.M. argues the trial court did not ascertain, in open court, whether J.M. had knowingly, voluntarily, and intelligently waived her right to a trial by jury. As a result, J.M. contends her convictions must be reversed and a new trial ordered. The city agrees that J.M. has a right to be tried by a jury in this case due to the “jailable offenses” involved, that J.M. timely filed a written demand for a jury trial, and that the trial court failed to obtain J.M.‘s waiver in open court. (City‘s Brief at 13.) The city likewise agrees this error requires J.M.‘s convictions be reversed and the case remanded for a new trial. Upon review of the applicable law, we agree with the parties that the trial court erred by conducting a bench trial without first properly securing J.M.‘s waiver of her right to a jury trial.
{24} A defendant charged with a misdemeanor that carries a potential jail or prison term has a right to be tried to a jury.
{25} Because this case involves first-degree misdemeanor “petty offenses,”6 J.M. was required to demand her right to a jury trial in writing.
{26} After the
{27} Regarding the “open court” requirement, “there must be an oral acknowledgment by the accused, in open court, that he or she wishes to waive the right to a jury trial in order to comply with the requirements of
{28} The trial court must strictly comply with the requirements of
{29} Here, J.M. sufficiently demanded a trial by jury pursuant to
{30} Because the trial court failed to strictly comply with
B. Second, fourth, and fifth assignments of error are moot
{31} In J.M.‘s second assignment of error, she asserts she was denied the effective assistance of counsel during the bench trial. In her fourth assignment of error, J.M. contends her convictions were against the manifest weight of the evidence. Her fifth assignment of error asserts the trial court erred in convicting her of multiple offenses for the same conduct in violation of the law surrounding allied offenses of similar import. In addressing the first assignment of error, we found the bench trial to be an erroneous exercise of the trial court‘s jurisdiction and that the judgment of conviction must be reversed. As a result, the issues raised by J.M. in her second, fourth, and fifth assignments of error, which are based upon the bench trial and the resulting judgment, are no longer live. See State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, ¶ 26 (“[A]n assignment of error is moot when an appellant presents issues that are no longer live as a result of some other decision rendered by the appellate court.“); State v. Solt, 10th Dist. No. 22AP-419, 2023-Ohio-2779, ¶ 20, and cases cited therein (holding that manifest-weight challenge was rendered moot by conclusion that trial court erred in exercising its jurisdiction by conducting a bench trial without obtaining valid waiver);
C. Sufficiency of the evidence
{32} In her third assignment of error, J.M. challenges the sufficiency of the evidence as to “physical harm” to support both the assault and the domestic violence charges. Unlike her ineffective assistance of counsel, manifest weight, and allied offenses challenges, J.M.‘s sufficiency of the evidence claim is not rendered moot by our conclusion that the trial court erred by conducting a bench trial. As we recently explained in Solt:
“[W]hen an appellate court reverses for insufficiency of the evidence, the Double Jeopardy Clause bars retrial.” Girard v. Giordano, 155 Ohio St.3d 470, 2018-Ohio-5024, ¶ 10. Therefore, because the result may prevent a retrial, “[a]n assignment of error challenging the sufficiency of the evidence is potentially dispositive of a defendant‘s conviction and may not be rendered moot by a remand on any other assignment of error.” State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, ¶ 2. See [Cleveland v. Krebs, 8th Dist. No. 105814, 2018-Ohio-746] ¶ 25 (“Although we vacated Krebs‘s failure to comply conviction and remanded for a new trial [due to lack of a signed, written jury waiver], we must still address the sufficiency of the evidence argument due to double jeopardy concerns.“); State v. Riggins, 9th Dist. No. 28080, 2017-Ohio-80, ¶ 10, fn. 1 (noting that sufficiency challenge was not rendered moot despite conclusion that trial court erred by conducting bench trial without a written jury waiver).
{33} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.‘” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), quoting Black‘s Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of adequacy.” Id. at 386. “Retrial is barred if a reversal is based upon a finding that the evidence was legally insufficient to support the conviction.” State v. McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, ¶ 23.
{34} When an appellate court reviews the sufficiency of the evidence for a conviction, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” McFarland at ¶ 24, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 (1997), fn. 4. A verdict will not be disturbed unless, viewing the evidence in the light most favorable to the prosecution, it is apparent that reasonable minds could not reach the conclusion reached by the trier of fact. State v. Aekins, 10th Dist. No. 21AP-630, 2023-Ohio-322, ¶ 71, citing State v. Treesh, 90 Ohio St.3d 460, 484 (2001). “Whether the evidence is legally sufficient to sustain a verdict is a question of law.” Thompkins at 386.
{35} In this case, J.M. was charged with assault, pursuant to
{36} J.M. argues that, even assuming Officer Blackburn‘s testimony that he saw J.M. strike T.W. is true and accurate, the city nevertheless failed to introduce proof beyond a reasonable doubt that J.M. caused physical harm
{37} We disagree. Generally, evidence that a person exhibited fresh signs of physical injury after being punched or hit by a defendant is sufficient to establish the physical harm element of domestic violence or assault. See, e.g., State v. Houston, 10th Dist. No. 16AP-157, 2017-Ohio-1122, ¶ 20 (sufficient evidence supported domestic violence conviction where victim testified the defendant jumped on her during an argument and hit her in the head and face with a fist and photographs depicted injuries, including a black eye).
{38} Furthermore, “impact is not required for an assault conviction.” State v. Smith, 10th Dist. No. 08AP-736, 2009-Ohio-2166, ¶ 38. Even where punches do not connect, knowingly swinging one‘s hand at another person in order to hit that person constitutes an attempt to cause physical harm. Smith at ¶ 37-38 (holding that taking a swing at an officer constituted attempted physical harm where the circumstance showed the defendant acted knowingly, i.e., that he was aware that his swinging at the officer would probably result in hitting and injuring the officer).
{39} Sepulveda, cited by J.M., is distinguishable. In that case, the Third District Court of Appeals held that the act of spitting was not an attempt to cause physical harm to officers where the officers explicitly denied any evidence of harm or any contact from the spit and the record did not contain any testimony establishing physical harm or an attempt to cause physical harm. As the Third District itself later remarked, “[t]he act of spitting is very different from the act of punching someone.” State v. Roesener, 3d Dist. No. 14-21-26, 2022-Ohio-1901, ¶ 9 (determining, after “[v]iewing the evidence in a light most favorable to the [s]tate, a reasonable person could foresee that striking another person with a closed fist may result in pain” and, therefore, the state presented sufficient evidence to support a domestic violence conviction).
{40} In this case, the responding officer testified he did not observe T.W. with any physical injuries prior to the incident, that J.M. swung at T.W. with her fist and made contact with T.W., that he and his partner had to break up the physical confrontation between J.M. and T.W., and that after the incident T.W. had a bloody bottom lip. J.M. admitted that she did have an “altercation” with T.W. in the hospital room. (Mar. 21, 2022 Tr. at 46.) The video footage shows J.M. swinging at T.W. in the hospital room while they were facing each other, and T.W. crying after the incident and stating J.M. had hit her and that she did not want to go home with her.
{41} After viewing the evidence in a light most favorable to the city, a rational trier of fact could have found, beyond a reasonable doubt, that J.M. knowingly caused or attempted to cause physical harm to T.W. McFarland at ¶ 24; Jenks at paragraph two of the syllabus. Accordingly, J.M.‘s third assignment of error challenging the sufficiency of the evidence to support her convictions lacks merit and is overruled.
V. Conclusion
{42} For the foregoing reasons, we sustain J.M.‘s first assignment of error, overrule her third assignment of error, and render moot her second, fourth, and fifth assignments of error. Having concluded the trial court erred in exercising its jurisdiction by conducting a bench trial without a valid waiver of J.M.‘s right to a jury trial in open court, we reverse the
Motion to dismiss denied; judgment reversed; cause remanded.
BEATTY BLUNT, P.J., concurs.
JAMISON, J., concurs in part and dissents in part.
JAMISON, J., concurring in part and dissenting in part.
{43} I agree with the majority‘s conclusion under the first assignment of error that the trial court improperly exercised its jurisdiction by failing to strictly comply with
{44} First, I would not follow State v. Solt, 10th Dist. No. 22AP-419, 2023-Ohio-2779, ¶ 21, as I believe it creates a legal conundrum. The constitutional right underlying Solt and the instant case is the right to a jury trial afforded to defendants under the
{45} In my view, a trial court that conducts a bench trial without jurisdiction to do so results in structural error since it “affects the framework in which the trial is conducted, rather than simply being an error in the trial process itself” and interferes with a defendant‘s “fundamental right to conduct [her] own defense and direct the manner in which [s]he protects [her] own liberty.” State v. Montgomery, 169 Ohio St.3d 84, 2022-Ohio-2211, ¶ 27. Significantly, a structural error “renders a trial an unreliable vehicle for determining guilt or innocence.” Id. at ¶ 32. Here, using evidence garnered during a bench trial where the court has improperly exercised jurisdiction does not serve as a reliable or fair basis for determining J.M.‘s fate. The remedy for a structural error is a new trial. Id. at ¶ 1.
{46} The legal precedent relied on by Solt to hold otherwise—Girard v. Giordano, 155 Ohio St.3d 470, 2018-Ohio-5024, ¶ 10, and State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, ¶ 2—are readily distinguishable as they do not involve the trial court‘s improper exercise of jurisdiction. See Girard (considering issue of trial court‘s failure to comply with the “explanation-of-circumstances” requirement in
{48} With these considerations in mind, I would sustain J.M.‘s first assignment of error concerning the lack of written jury waiver and determine that resolution of the first assignment of error renders the second, fourth, and fifth assignments of error moot. Unlike the majority decision, I would refuse to review the sufficiency of the evidence in the third assignment of error at this juncture as premature and not ripe for consideration. Moreover, I would reverse the judgment of the trial court and remand the matter for the trial court to not only vacate the judgment entry of conviction and sentence, but to hold a new trial. Because the majority decision concludes otherwise, I respectfully concur in part and dissent in part.