State v. ArmstrongState v. Armstrong
Dated: November 10, 2009
BELFANCE, Judge.
{¶1} Defendant-Appellant Nyle A. Armstrong appeals the decision of the Summit County Court of Common Pleas. For reasons set forth below, we affirm in part and reverse in part.
I.
{¶2} In early 2008, Armstrong and Marissa Covington began a relationship. Covington resides in an apartment complex and claims that Armstrong never lived with her, nor did he have a key to her apartment. Armstrong alleges that he lived with Covington from late February up until June 10, 2008. In April 2008, Covington alleges that Armstrong began stalking and harassing her, and she therefore told him that she wanted to end the relationship. This upset Armstrong. Armstrong allegedly threatened to throw Covington off a balcony and called her saying he was going to kick in her door. When Covington returned home from work, her door was kicked in.
{¶4} On June 20, 2008, Armstrong called Covington around two in the morning and told her that he was coming over and if she did not open the door, it would not be a “pretty nice sight.” Armstrong arrived at the apartment and began knocking on the door. Covington called 911 and reported that Armstrong had a gun with him. Officers investigating the incident came across Armstrong in the vicinity of the apartments. Armstrong gave officers a false name.
{¶5} Armstrong was initially charged with aggravated burglary with a firearm specification related to the June 10th incident, having weapons while under disability, also related to the June 10th incident, aggravated menacing concerning the June 10th incident, and falsification concerning the June 20th incident. Subsequently, a supplement to the indictment was filed and attempted burglary and intimidation of a crime victim or witness charges were added concerning the events of June 20th. A jury found Armstrong guilty of aggravated burglary with the firearm specification, having weapons while under disability, aggravated menacing, falsification, and intimidation of a crime victim or witness and not guilty of attempted burglary.
{¶6} Armstrong has appealed, raising three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED AS A MATTER OF LAW AND PREJUDICED THE JURY IN ITS INSTRUCTION TO THE JURY ON AGGRAVATED ROBBERY [SIC], AND THE ISSUE OF PRIVILEGE AND TRESPASS RELATING TO AGGRAVATED ROBBERY [SIC].”
{¶7} Armstrong takes issue with the following portion of the aggravated burglary instruction:
“Now, folks, heads up here. Even if you assume that the defendant‘s initial entry into the apartment in question was lawful, you may infer that the privilege to remain in the home terminated if the defendant threatened Marissa Covington resulting in a trespass.”
Armstrong argues that the instruction requires the jury to improperly conclude that a trespass immediately resulted if it found that Armstrong threatened Covington, especially given the conflicting nature of the testimony concerning whether Armstrong was living with Covington at the time of the incident. Armstrong also argues that the trial court erred by placing undue emphasis on this paragraph with the statement “Now, folks, heads up here.” Armstrong argues that the paragraph negates the presumption of innocence. Finally, Armstrong argues that the trial court failed elsewhere in the instructions to specify what criminal offense was the basis for the aggravated burglary charge.
{¶8} While Armstrong did object to the aggravated burglary instruction, his objection in the trial court only concerned the issues of trespass and privilege. With respect to jury instructions, we have stated that “forfeiture is a failure to preserve an objection * * * [and] does not extinguish a claim of plain error under
{¶9} “A trial court must charge a jury with instructions that are a correct and complete statement of the law.” State v. Kewer, 9th Dist. No. 07CA009128, 2007-Ohio-7047, at ¶5, citing Marshall v. Gibson (1985), 19 Ohio St.3d 10, 12.
“‘[A]n appellate court reviews the instructions as a whole. If, taken in their entirety, the instructions fairly and correctly state the law applicable to the evidence presented at trial, reversible error will not be found merely on the possibility that the jury may have been misled. Moreover, misstatements and ambiguity in a portion of the instructions will not constitute reversible error unless the instructions are so misleading that they prejudicially affect a substantial right of the complaining party.‘” (Internal citations omitted.) Kewer at ¶5, quoting Wozniak v. Wozniak (1993), 90 Ohio App.3d 400, 410.
Thus, we will affirm the trial court‘s instructions absent an abuse of discretion, which implies that the trial court‘s attitude was arbitrary, unreasonable, or unconscionable. Kewer at ¶5, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶10} The court‘s aggravated burglary instruction provides:
“Before you can find the defendant, Nyle Armstrong, guilty of this offense you must find beyond a reasonable doubt that on or about the 10th day of June, 2008, and in Summit County, Ohio, the defendant did commit the crime of aggravated burglary in that he did, by force, stealth, or deception, trespass in an occupied structure * * * when another person was present, with purpose to commit in said structure a criminal offense, and the defendant recklessly inflicted, threatened, or attempted to inflict physical harm on Marissa Covington, or the defendant had a deadly weapon or dangerous ordnance; to-wit: a gun, on or about his person or under his control.
“Now, folks, heads up here. Even if you assume that the defendant‘s initial entry into the apartment in question was lawful, you may infer that the privilege to remain in the home terminated if the defendant threatened Marissa Covington resulting in a trespass.”
“Further, the defendant may form the purpose to commit a criminal offense, as required for a finding of guilty on the charge of aggravated burglary, at any point during the trespass.”
{¶11} As noted above, Armstrong takes issue with the italicized paragraph. The basis for this type of jury instruction originates from the case State v. Steffen (1987), 31 Ohio St.3d 111. Steffen involved the rape and murder of a nineteen year-old woman who was living in her parents’ home. Id. at 112. The defendant, a door-to-door salesman, came to the victim‘s parents’ home to sell cleaning supplies. Id. The victim allegedly allowed the defendant to enter the home and was subsequently raped and murdered. Id. As the victim was killed during the attack, there was no evidence indicating whether or not the defendant‘s entry was or was not initially privileged. The defendant argued that “the trial court erred in instructing the jury that one who lawfully enters premises becomes a trespasser subject to conviction for burglary by virtue of the commission of a felony on the premises.” Id. at 114. The Court found the trial court‘s instruction proper and noted that “the jury was justified in inferring from the evidence that appellant‘s privilege to remain in [the victim‘s] parents’ home terminated the moment he commenced his assault on her.” Id. at 115.
{¶12} Here, on June 10, 2008, Covington stated that Armstrong entered her apartment, walked up to her, put a gun to her head, and threatened to kill her. Covington also testified that Armstrong did not live there, did not have a key, and was not allowed to be there when Covington was not present. Armstrong alleged that he was living with Covington, that he followed her into the apartment, and that he only threatened to kill her after she pulled a knife on him. Armstrong denied having a weapon.
{¶13} One of the fundamental flaws with the portion of the instruction at issue is that it extends the holding of Steffen beyond its facts and beyond the language of the Ohio Jury Instructions. While the instructions found in the Ohio Jury Instructions are not mandatory, they “are recommended instructions based primarily upon case law and statutes[.]” Buehler v. Falor (Jan. 30, 2002), 9th Dist. No. 20673, at *1, quoting State v. Martens (1993), 90 Ohio App.3d 338, 343. One of the comments to the Ohio Jury Instructions instruction on aggravated burglary provides appropriate language if it is determined that a Steffen instruction is warranted; it states:
“Where a defendant lawfully entered a residential premises, the privilege to be in or upon those premises can be inferred to have been revoked where the defendant thereafter committed a violent felony directed against another person in the premises who had the ability and authority to revoke the privilege.” (Emphasis added.) 4 Ohio Jury Instructions (2004), Section 511.11, at 386.
The instruction in the instant case is not even a close approximation of the Ohio Jury Instructions’ proposed language. As the instruction at issue indicates that any sort of threat made against Covington is sufficient to transform a privileged entry into a trespass, we cannot conclude that such is a proper extension of Steffen. Unlike Steffen, here there was no allegation that Armstrong committed a violent felony upon Covington. Thus, it is highly questionable whether any Steffen-type instruction was appropriate at all.
{¶14} We presume the jury followed the instruction at issue, see, e.g, Pang v. Minch (1990), 53 Ohio St.3d 186, paragraph four of the syllabus, and thus because the court‘s instruction was inaccurate, misleading and prejudicial, we sustain Armstrong‘s assignment of error. See, e.g., State v. Kincaid, 9th Dist. No. 01CA007947, 2002-Ohio-6116, at ¶33.
III.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION TO THE PREJUDICE OF APPELLANT BY DENYING HIM THE OPPORTUNITY TO IMPEACH THE ALLEGED VICTIM BY PRIOR INCONSISTENT STATEMENTS.”
{¶15} Our resolution of Armstrong‘s first assignment of error renders this assignment of error moot.
IV.
ASSIGNMENT OF ERROR III
“ARMSTRONG‘S CONVICTION FOR INTIMIDATION OF A CRIME VICTIM OR WITNESS WAS BASED UPON INSUFFICIENT EVIDENCE AS A MATTER OF LAW.”
{¶16} When assessing the sufficiency of the evidence, this Court examines the evidence “‘to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.‘” State v. Flynn, 9th Dist. No. 06CA0096-M, 2007-Ohio-6210, at ¶8, quoting State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. In reviewing challenges to sufficiency, we must view the evidence in a light most favorable to the prosecution. State v. Cepec, 9th Dist. No. 04CA0075-M, 2005-Ohio-2395, at ¶5, citing Jenks, 61 Ohio St.3d at 279.
{¶17} Armstrong was convicted of intimidation of a crime victim under
{¶18} The intimidation of a crime victim charge arose from the events of June 20th. In the early morning hours, Armstrong called Covington and told her that “he was going to come by [Covington‘s] apartment and if [she] didn‘t open the door it wasn‘t going to be a pretty nice sight.” Armstrong then came to Covington‘s apartment and began knocking loudly on the door. Covington called 911 and informed the operator that Armstrong had a gun, which she saw him place in his back pocket as he was walking away.
{¶19} The Supreme Court of Ohio analyzed the meaning of “unlawful threat of harm” in
{¶20} Armstrong argues that the State failed to prove that the unlawful threat also constituted a predicate offense as required by Cress. We disagree.
{¶21} Viewing the evidence in a light most favorable to the State, Armstrong called Covington and told her that “he was going to come to [her] apartment and if [she] didn‘t open the door it wasn‘t going to be a pretty nice sight.” Within hours, Armstrong was loudly knocking on Covington‘s door with a gun visibly in his possession. This testimony could clearly be viewed as evidence of a threat of harm by Armstrong against Covington. Further,
V.
{¶22} In light of the foregoing, we affirm in part and reverse in part the judgment of the Summit County Court of Common Pleas and remand the matter for proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J.
WHITMORE, J.
CONCUR
APPEARANCES:
NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.