2005 Ohio 2666 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} The events giving rise to the charges occurred on July 6, 2003, when Atkins-Boozer drove to the Eddy Road area of Cleveland, to obtain drugs while her five-year-old son was in the back seat. The evidence at her jury trial revealed that Atkins-Boozer made two attempts to "con" a drug dealer by speeding away without paying for the drugs. On her second attempt, Atkins-Boozer encountered the victim, who hung onto her vehicle as she sped off. After being dragged by the vehicle, the victim died.
{¶ 3} The jury found Atkins-Boozer guilty of the three charges and the trial court sentenced her to three years in prison for aggravated vehicular homicide and six months in jail on the remaining charges, with all terms to run concurrently.
{¶ 4} Atkins-Boozer appeals, raising three assignments of error.
"Other crimes, wrongs or acts. Evidence of the other crimes, wrongs, oracts is not admissible to prove the character of a person in order toshow that he acted in conformity therewith. It may, however, beadmissible for other purposes, such as proof of motive, opportunity,intent, preparation, plan, knowledge, identity, or absence of mistake oraccident."
{¶ 6} Similarly, R.C.
{¶ 7} Evid.R. 404(B) and R.C.
{¶ 8} The admission or exclusion of evidence rests within the sound discretion of the trial court. State v. Sage (1987),
{¶ 9} With regard to Atkins-Boozer's claim involving the testimony of a drug dealer, Fredrick Brown testified concerning Atkins-Boozer's drug activities and prostitution and her behavior toward her child. We initially note that defense counsel never objected to this testimony. Atkins-Boozer has therefore waived all but plain error. However, even if defense counsel had objected to the testimony, we find that the trial court properly admitted the evidence.
{¶ 10} This evidence was offered in the instant case to demonstrate intent, motive, or plan. Atkins-Boozer's theory at trial was that she was the victim of a carjacking. She claimed that she drove to the Eddy Road area in Cleveland to visit a friend. In contrast, the State's theory was that the offenses arose out of Atkins-Boozer's attempt to "scam" the victim out of drugs. Brown's testimony demonstrated that Atkins-Boozer routinely drove to the area to buy drugs and that she "knew the system" of purchasing drugs on the street — a quick exchange with the dealer while the buyer remained in the car with the engine running. He further stated that she would prostitute herself for drugs in her child's presence. Thus, the testimony showed that Atkins-Boozer came to the area to buy drugs and not to visit a friend. Further, the evidence was indicative of her system of buying drugs in the area with her son in the back seat.
{¶ 11} Atkins-Boozer further claims that the trial court improperly allowed the admission of evidence that suggested that she had at least 12 previous encounters with the Painesville police, some involving drug activity. Painesville police officer Abraham Alamo ("Alamo") testified that he responded to a Cleveland police request to impound a vehicle registered to Atkins-Boozer, a Painesville resident. Officer Alamo located the vehicle and told Atkins-Boozer to contact the Cleveland police. At trial, he confirmed that the vehicle was parked behind Atkins-Boozer's residence and that the vehicle had been damaged. He also testified about Atkins-Boozer's nervous demeanor when he confronted her. He stated that her initial response upon seeing him was to ask whether she was going to be arrested. She next claimed that she had been the victim of a carjacking, although she acknowledged that she had not reported the incident to the police.
{¶ 12} The State further questioned Officer Alamo regarding his familiarity with Atkins-Boozer. He was asked how often he had been in her "presence" prior to that evening, and he replied, "12, 15 times." Admittedly, the admission of this testimony was irrelevant and prejudicial to Atkins-Boozer's case and violated Evid.R. 404(B). It served no purpose but to imply that she had a number of "encounters" with the police and, therefore, she had a "bad character." However, despite the statement's improper admission, we find it to be harmless error.1
{¶ 13} Pursuant to Crim.R. 52(A), "any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." In order to find an error harmless, a reviewing court must be able to declare a belief that the error was harmless beyond a reasonable doubt.State v. Lytle (1976),
{¶ 14} In the instant case, there was overwhelming proof of Atkins-Boozer's guilt, notwithstanding the inadmissible testimony. It was undisputed that Atkins-Boozer dragged the victim while he was hanging from her car. There was testimony that she attempted to remove him from the car by weaving back and forth, but, when those efforts failed, she "sideswiped" a parked car. Although Atkins-Boozer claimed that she was the victim of a carjacking, she never reported the incident. Further, her response to the situation was not consistent with a victim's normal response. She never called the police nor asked for help from any of the people gathered near the incident. When Officer Alamo came to her residence, her first concern was whether she was going to be arrested. This evidence overwhelmingly demonstrated Atkins-Boozer's guilt on aggravated vehicular homicide and failing to stop after a motor vehicle accident. As for the child endangerment charge, it was undisputed that her child was in the back seat of the car throughout the incident.
{¶ 15} Accordingly, the first assignment of error is overruled.
{¶ 17} First, the Ohio Supreme Court held in State v. Volpe (1988),
{¶ 18} Second, the State never argued that the child endangerment count stemmed from the fact that Atkins-Boozer was intoxicated or "high" while operating her vehicle. See R.C.
"(A) No person, who is the parent, guardian, custodian, person havingcustody or control, or person in loco parentis of a child under eighteenyears of age or a mentally or physically handicapped child undertwenty-one years of age, shall create a substantial risk to the health orsafety of the child, by violating a duty of care, protection, orsupport."
{¶ 19} A motion for acquittal may be granted only where the evidence is insufficient to sustain a conviction. Crim.R. 29(A); State v.Apanovitch (1987),
{¶ 20} In reviewing the sufficiency of the evidence in a criminal case, an appellate court will not reverse a conviction where there is substantial evidence, viewed in a light most favorable to the prosecution, which would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1991),
{¶ 21} The evidence offered by the State revealed that Atkins-Boozer attempted to purchase drugs from the victim, dragged him with her car, rammed him against a parked car, and fled the scene, all with her child in the back seat. These actions clearly created a "substantial risk to the safety" of her child. Accordingly, this court cannot say that the trial court erred in denying her motion for acquittal.
{¶ 22} The second assignment of error is overruled.
{¶ 24} R.C.
{¶ 25} The Ohio Supreme Court has held that, "pursuant to R.C.
{¶ 26} The specific question before this court en banc is whether the findings set forth in R.C.
{¶ 27} We find this court's analysis in Lett, addressing the imposition of maximum and consecutive sentences, to be equally applicable and pertinent to the instant case. In Lett, we held that the findings required under R.C.
{¶ 28} Because Ohio has a hybrid sentencing scheme that imposes determinate sentences from an indeterminate range of possible terms, a defendant knows from the point of indictment what the possible maximum term of incarceration will be for a particular offense. For example, in the instant case, Atkins-Boozer was found guilty of aggravated vehicular homicide, a third degree felony, which carries a prison term of one, two, three, four, or five years. See R.C.
{¶ 29} Indeed, in Lett, this court determined that the findings required under Senate Bill 2 do not constitute "additional" facts which implicate Blakely. Rather, the findings required under Senate Bill 2 for determining the appropriate sentence (within the range set in R.C.
{¶ 30} Applying the same reasoning to the instant case, we hold that R.C.
{¶ 31} Further, the subjective determination of whether a minimum sentence would demean the seriousness of the offense is not a matter to be determined by a jury. Rather, the finding is a matter reserved for the sound discretion of the trial court and necessary for its determination of the appropriate sentence within the statutory range. See, Combs,
supra, ¶ 58; State v. Allen, Lake App. No. 2004-L-038, 2005-Ohio-1415, ¶ 32, citing State v. Murphy, 11th Dist. No. 2003-L-049, 2005-Ohio-412, at ¶¶ 56-60; State v. Sieng, Franklin App. No. 04AP-556, 2005-Ohio-1003, ¶ 40. As stated by Justice Stevens in Booker, "We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. * * * For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant." (Citations omitted.) Booker,
{¶ 32} Finally, we note that our resolution of this issue is consistent with the majority of Ohio appellate courts. Ten of the 12 Ohio appellate districts have held that Ohio's sentencing scheme does not violate the Sixth Amendment as construed in Blakely. See, State v.Collier, 2d Dist. No. CA2003-11-282, 2005-Ohio-944, ¶ 41; State v.Scarberry, 3d Dist. No. 8-04-32, 2005-Ohio-1425, ¶ 10, citing State v.Trubee, 3d Dist. No. 9-03-65, 2005-Ohio-552, ¶ 23; State v. Ward, 4th Dist. No. 04CA25, 2005-Ohio-1580, ¶ 14; State v. Rorie, 5th Dist. No. 2002CA00187, 2005-Ohio-1726, ¶ 69, quoting State v. Iddings, 5th Dist. No. 2004CAA06043, 2004-Ohio-7312, ¶ 12; State v. Adams, 6th Dist. No. S-04-17, 2005-Ohio-1548, ¶ 6, quoting State v. Curlis, 6th Dist. No. WD-04-032, 2005-Ohio-1217, ¶ 18; State v. Goins, 7th Dist. No. 02 CA 68, 2005-Ohio-1439, ¶ 111; State v. Burns, 9th Dist. No. 22198, 2005-Ohio-1459, ¶¶ 4-5; State v. Sieng, 10th Dist. No. 04AP-556, 2005-Ohio-1003, ¶ 37; State v. Rubert, 11th Dist. No. 2003-L-54, 2005-Ohio-1098, ¶ 48; State v. Gann, 12th Dist. No. CA2004-01-028, 2005-Ohio-678, ¶ 16.
{¶ 33} Applying R.C.
"When the Court considers the minimum sentence in this case, the Courtfeels that the minimum sentence would demean the seriousness of theoffense, and in light of the fact that this was a continuing situation,that Miss Boozer, who is a very smart individual, could have foreseenoccurring — and the Court says that because she continuously leftPainesville to come into the City of Cleveland to purchase drugs, and asshe would continuously involve her son, and bring her son down, exposinghim to the dangers of purchasing drugs on the street, and after thetestimony, during the trial, was that she had attempted to do one ofthese * * * [p]ull-offs when she was down here this time, but apparentlythis was not far from the location where this incident occurred, that sheattempted it on one occasion, it was unsuccessful, so she went around thecorner and engaged in the conduct again, whereupon she encountered Mr.McBee, and this tragedy took place."
{¶ 34} Accordingly, in light of Atkins-Boozer's conduct in the instant case, we cannot say that a nonminimum sentence is contrary to law.
{¶ 35} The final assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Blackmon, A.J. and Sweeney, J. concur on the first two assignments of error.
Cooney, writing for the majority on the constitutionality of nonminimum sentences. Blackmon, Celebrezze, Jr., Calabrese, Jr., Kilbane, McMonagle, and Corrigan concur.
Sweeney, dissenting on the constitutionality of nonminimum sentences. Dyke, Karpinski, Rocco, and Gallagher concur.
Karpinski, dissenting on the constitutionality of the en banc procedure. McMonagle concurs only as to Part I of Judge Karpinski'S dissenting opinion.
Gallagher, concurring in part as to the constitutionality of the court's en banc procedure. Blackmon, Celebrezze, Jr., Sweeney, Cooney, Calabrese, Jr., Kilbane, Rocco, and Corrigan concur.
Dissenting Opinion
{¶ 36} I concur with the majority decision to affirm Atkins-Boozer's sentence, but respectfully dissent from the analysis that certain provisions of Senate Bill 2 are unaffected by the United States Supreme Court's decisions in Blakely and Booker. This Court is simultaneously releasing State v. Lett, Cuyahoga App. Nos. 84707 and 84729, in which I dissented on similar grounds that I incorporate here.
{¶ 37} The majority defines the "statutory maximum" solely with reference to the basic prison sentences set forth in 2929.14(A). The majority reasons that offenders are aware of the basic ranges ("from the point of indictment") and, therefore, no Sixth Amendment rights are implicated when the statutory scheme prevents a trial judge from enhancing a sentence within those ranges without first making specific findings. Yet, in Blakely, the offender also knew from the "point of indictment" that his offense, a Class B felony, was punishable by a maximum term of 10 years. The United States Supreme Court rejected the notion that Blakely's sentence comported with the Sixth Amendment because it fell within the general range (10 years) allowed by the State law.3
{¶ 38} Again, in United States v. Booker (2005), 543 U.S. ___,
{¶ 39} The gist of the Sixth Amendment concern is a defendant's right to have all facts affecting sentencing proven and determined by a jury. The greatest prison term Atkins-Boozer could have possibly received as a result of the facts determined by the jury was one year. In other words, the statutory findings of R.C.
{¶ 40} Because R.C.
{¶ 41} The majority also maintains that Blakely and Booker should be distinguished from Ohio law on the theory that the judicial fact-findings of those cases were more capable of indictment than the statutory findings required under Senate Bill 2. The Sixth Amendment violation is not the result of the nature of the findings (i.e., "subjective" or "objective") nor the ability to charge them in an indictment. The Sixth Amendment violation arises from the statutory prohibition to increase a sentence without making the additional findings. Whether something is capable of indictment or too vague for jury determination may very well raise other constitutional concerns. This, however, does not alleviate a Sixth Amendment violation that arises from the denial of an offender's right to have sentence-enhancing facts determined by a jury.
{¶ 42} For these reasons and those set forth in my opinion in Lett, I would declare the judicial findings of R.C.
Dissenting Opinion
Dissenting Opinion
{¶ 45} I concur with the majority position with respect to en banc, as stated in my separate concurring and dissenting opinion in State v. Lett, Cuyahoga App. Nos. 84707 and 84729.
{¶ 46} I concur with the majority decision to affirm Atkins-Boozer's sentence, but respectfully dissent from the analysis. Instead, I concur with the analysis of Judge James J. Sweeney with regard to the application of Apprendi, Blakely and Booker to the Ohio sentencing format.
