824 N.E.2d 543 | Ohio Ct. App. | 2004
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *478 {¶ 1} Defendant-appellant, Curtis Berry, appeals his conviction and sentence for aggravated robbery, with a gun specification, in the Butler County Common Pleas Court.
{¶ 2} In October 2002, appellant was indicted for aggravated burglary, pursuant to R.C.
{¶ 3} At appellant's jury trial on the aggravated burglary and aggravated robbery charges, the state's evidence showed that on the night in question, appellant walked up to Juan Fuentes and his brother, Sergio Fuentes, while they were standing in Juan's backyard, pulled a gun on them, and demanded money. Juan gave appellant his wallet, which contained $325, and Sergio gave him the money he had in his pockets. Appellant then ordered Juan and Sergio into their house. While inside, Juan's friend, Jonathan Martinez, came out of the bathroom. Appellant ordered all three men to sit on a couch and then searched them one by one. When he had Martinez on the floor with his foot on his chest, Martinez grabbed appellant's hand, and Juan and Sergio overpowered him. During the fight, Jose Jimenez, who had been sleeping upstairs, came down and saw what was happening. He called the police, and they came and arrested appellant. When the police searched appellant, they found Juan's wallet, which contained Juan's birth certificate and $325.
{¶ 4} Appellant testified that on the night in question, he was selling crack cocaine in the area and was scheduled to meet a prostitute at a street corner near where Juan Fuentes lives to sell her some crack cocaine. According to appellant, someone at Juan's house motioned for him to come over. Appellant testified that he gave Juan and Sergio some drugs, and at one point, Juan showed him a gun and tried to sell it to him for $400. He testified that he went into the house at Juan's invitation and that once inside, Juan struck him on the back of the head with the pistol, causing him to fall to one knee. Then, according to appellant, several other Hispanic men in the house attacked him and robbed him of $35.
{¶ 5} During their deliberations, the jurors sent the trial court a note, asking, "We cannot get 12 votes on charges 2 and 3,2 what now? People are not changing views." The trial court ordered the jury back to the jury room and gave them an instruction substantially similar to the one set forth in Statev. Howard (1989),
{¶ 6} Appellant appeals his conviction and sentence for aggravated robbery and the firearm specification, raising the following assignments of error: *481
{¶ 7} Assignment of Error No. 1:
{¶ 8} "The verdicts on count two and the specification to count two were against the manifest weight of the evidence."
{¶ 9} Appellant argues that his conviction on the aggravated robbery charge and its accompanying firearm specification were against the manifest weight of the evidence because the state's witnesses gave conflicting testimony on certain issues, while his claim that he was the victim of the crime was "plausible" and corroborated by a police officer's testimony. We find this argument unpersuasive.
{¶ 10} "Weight of the evidence concerns `the inclination of thegreater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.'" (Emphasis sic.) State v. Thompkins (1997),
{¶ 11} Appellant argues that the state's witnesses provided conflicting testimony on how the gun was dislodged from his hand and where the gun ended up after the struggle over it had ended. By contrast, appellant contends, his testimony that he had been the victim of the incident was "plausible," since a police officer testified that appellant told him shortly after he had been arrested that the Hispanic men inside the house had robbed him of $35.
{¶ 12} However, the inconsistencies in the testimony of the state's witnesses were minor, and they did not render the testimony inherently unworthy of belief. Furthermore, appellant's version of events was far from plausible. In order to *482
believe it, the jury would have had to believe that Juan and Sergio invited appellant into their home, robbed him, and then called the police to have them come and arrest him. The police found Juan's wallet, money, and birth certificate in appellant's pocket. Appellant was unable to explain how Juan's wallet got in his pocket. The jurors were in the best position to determine whether the state's witnesses or appellant was lying about who committed the robbery, and they were entitled to believe all, part, or none of the testimony of any witness who testified, including appellant. State v. Antill (1964),
{¶ 13} Appellant's first assignment of error is overruled.
{¶ 14} Assignment of Error No. 2:
{¶ 15} "The trial court erred in its instruction to the jury following indication by the jury that it could not reach a unanimous verdict on certain charges, to the prejudice of defendant-appellant and in violation of his right to due process and a fair trial pursuant to the
{¶ 16} Appellant argues that the trial court's decision to give the jury a Howard charge after it indicated it was deadlocked on Count Two of the indictment and the firearm specification resulted in a "coerced verdict." Specifically, he argues that the trial court erred by not inquiring of the jury "whether further deliberations would result in a verdict" before giving them theHoward charge. We disagree with this argument.
{¶ 17} Appellant has not cited, nor have we found, any authority to support his suggestion that the trial court was required to ask the jury "whether further deliberation would result in a verdict" before giving it the supplemental charge set forth in Howard,
{¶ 18} Appellant also argues that the trial court erred in reciting the Howard charge to the jury. He points out that under Howard, a trial court is supposed to instruct the jury to, among other things, examine each question submitted to it "with proper regard and deference to the opinions of others," but in this case, the trial court told the jury that "[e]ach question should be examined with proper regard in deference to the opinions of others." Appellant argues that this portion of the instruction violated his right to a fair trial, since it advised the jurors "to disregard their oath and decide a case, not based upon their individual conscience, but based upon the views of other jurors." We find this argument unpersuasive.
{¶ 19} The language seized upon by appellant to demonstrate error appears to be simply one of several mistakes that were made in transcribing the trial court's statements. See footnote 3. Furthermore, even if the transcript was accurate, the trial court's instruction, when considered as a whole, substantially comports with the instruction set forth in Howard. The slight difference in wording (i.e., the use of "in" rather than "and") would not have caused the jurors "to disregard their oaths" and "decide the case based upon the views of the other jurors" rather than their own, as appellant asserts.
{¶ 20} Finally, appellant argues that instead of giving the jurors the Howard charge, it should have given them the following instruction, set forth in State v. Martens (1993),
{¶ 21} "`VERDICT IMPOSSIBLE. It is conceivable that after a reasonable length of time honest differences of opinion on the evidence may prevent an agreement upon a verdict. When that condition exists you may consider whether further deliberations will serve a useful purpose. If you decide that you cannot agree and that further deliberations will not serve a useful purpose you may ask to be returned to the courtroom and report that fact to the court. If there is a possibility of reaching a verdict you should continue your deliberations.'" Id., quoting 4 Ohio Jury Instructions (1992) 118, Section 415.50(4).
{¶ 22} Appellant maintains that the Martens court found the foregoing instruction "appropriate in lieu of the Howard
charge." This is incorrect. In Martens, the trial court gave the jury a Howard instruction similar to the one the trial court gave to the jury, here. Id.,
{¶ 23} Additionally, while appellant proffered a nonspecific objection to the Howard charge, he never asked the trial court to give the instruction quoted in Martens,
{¶ 24} Appellant's second assignment of error is overruled.
{¶ 25} Supplemental Assignment of Error:
{¶ 26} "The trial court erred to the prejudice of defendant-appellant when it imposed a sentence beyond the statutory minimum in violation of the
{¶ 27} Appellant asserts that the trial court erred when it imposed a five-year sentence on him for his aggravated robbery conviction. He argues that under Blakely v. Washington (2004), 542 U.S. ___,
{¶ 28} Appellant failed to raise this issue in the trial court. Generally, an appellate court will not consider an error that was not called to the trial court's attention at a time when the trial court could have corrected the error or avoided it altogether. State v. Hill (2001),
{¶ 29} In Ohio, aggravated robbery is a felony of the first degree. R.C.
{¶ 30} "[I]f the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court shall impose the *485 shortest prison term authorized for the offense pursuant to division (A) of this section, unless one or more of the following applies:
{¶ 31} "* * *
{¶ 32} "(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others."
{¶ 33} The trial court found that imposing the shortest prison term on appellant for his aggravated robbery conviction would demean the seriousness of his conduct and not adequately protect the public from future crime by him or others. As a result, the trial court sentenced appellant to a five-year prison term on his aggravated robbery conviction, rather than to the three-year minimum term. Appellant asserts that this sentence violatesBlakely.
{¶ 34} At issue in Blakely was the constitutionality of a sentence imposed under the state of Washington's sentencing scheme. In that case, Blakely had pled guilty to second-degree kidnapping, involving domestic violence and use of a firearm. In the state of Washington, second-degree kidnapping is a class B felony, carrying a maximum punishment of ten years' imprisonment. Under Washington's sentencing statute, the "standard range" of punishment for second-degree kidnapping with a firearm is 49 to 53 months. The sentencing statute permits a trial judge to impose a sentence above the standard range if he finds "substantial and compelling reasons justifying an exceptional sentence." One of the aggravating factors justifying imposition of an exceptional sentence is whether the offender acted with "deliberate cruelty." The trial court found that Blakely had acted with "deliberate cruelty" in carrying out the kidnapping and therefore imposed on him an exceptional sentence of 90 months.
{¶ 35} Blakely subsequently appealed his sentence to the United States Supreme Court, which reversed the trial court's imposition of an exceptional sentence. The Blakely court held, "`Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'"Blakely, ___ U.S. ___,
{¶ 36} Applying these principles to the case before it, theBlakely court found that the maximum sentence that the trial judge was permitted to impose for second-degree kidnapping with use of a firearm was 53 months, not ten years, as the state had argued. The court concluded that because Washington's sentencing procedure did not comply with the
{¶ 37} In this case, appellant urges us to find that Blakely
applies to Ohio's sentencing scheme and that, as a result, Ohio's sentencing scheme, like Washington's, does not comply with the
{¶ 38} First, the majority in Blakely made it clear that its decision did not apply to states with indeterminate sentencing schemes. The court stated:
{¶ 39} "JUSTICE O'CONNOR argues that, because determinate sentencing schemes involving judicial factfinding entail less judicial discretion than indeterminate schemes, the constitutionality of the latter implies the constitutionality of the former. This argument is flawed on a number of levels. First, the
{¶ 40} Judge Griffin and Professor Katz have suggested in their treatise, Ohio Felony Sentencing Law, that provisions such as R.C.
{¶ 41} In State v. Eckstein, Hamilton App. No. C-030139,
{¶ 42} "After reviewing the decision in Blakely, we hold that the minimum sentence [for attempted rape] in this case was not the `statutory maximum.' The [R.C.
{¶ 43} "* * *
{¶ 44} "Eckstein argues that the R.C.
{¶ 45} "* * *
{¶ 46} "These discretionary factors are used to guide the court in imposing a sentence within the standard statutory range. This court has held that a sentence within the standard statutory range is not unconstitutional under Blakely because a sentence within the range authorized by law is presumed to be based solely on the jury's verdict. [State v. Bell, Hamilton App. No. C-030726, 2004-Ohio-3621, 2004 WL 1531904, at ¶ 42.] Here, the standard statutory range of prison terms for attempted rape was two to eight years. The record demonstrates that the trial court considered the R.C.
{¶ 47} "In sum, we hold that the R.C.
{¶ 48} We conclude that the trial court did not commit plain error when it imposed a five-year sentence on appellant for aggravated robbery. Blakely applies to states that have determinate sentencing schemes like the state of Washington, and not to states that have indeterminate sentencing schemes like Ohio. See Blakely, ___ U.S. ___,
{¶ 49} Appellant's supplemental assignment of error is overruled. The judgment is affirmed.
Judgment affirmed.
WILLIAM W. YOUNG, P.J., and POWELL, J., concur.
*489{¶ b} "The principal mode, provided by our Constitution and laws, for deciding questions of fact in criminal cases, is by jury verdict. In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of your fellows, each question submitted to you should be examined with proper regard and deference to the opinions of others. You should consider it desirable that the case be decided. You are selected in the same manner, and from the same source, as any future jury would be. There is no reason to believe the case will ever be submitted to a jury more capable, impartial or intelligent than this one. Likewise, there is no reason to believe that more or clearer evidence will be produced by either side. It is your duty to decide the case, if you can conscientiously do so. You should listen to one another's arguments with a disposition to be persuaded. Do not hesitate to reexamine your views and change your position if you are convinced it is erroneous. If there is disagreement, all jurors should reexamine their positions, given that a unanimous verdict has not been reached. Jurors for acquittal should consider whether their doubt is reasonable, considering that it is not shared by others, equally honest, who have heard the same evidence, with the same desire to arrive at the truth and under the same oath. Likewise, jurors for conviction should ask themselves whether they might not reasonably doubt the correctness of a judgment not concurred in by all others." Id. at paragraph two of the syllabus.
{¶ c} In this case, the trial court gave the jurors the following supplemental instruction, after they indicated they were deadlocked:
{¶ d} "Ladies and gentlemen from your last question it appears that it's appropriate to give you a further jury instruction. In a large proportions [sic] of cases, absolute certainty cannot be obtained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of other jurors. [Sic.] Each question should be examined with proper regard in deference to the opinions of others. It is desirable that the case be decided. You are selected in the same manner and from the same sources as any future jury would be. There is no reason to believe the case will ever be submitted to a jury more cable [sic], impartial or intelligent than this one.
{¶ e} "Likewise, there is no reason to believe that more or clearer evidence will be produced by either side. It is your duty to decide the case if you can conscientiously do so. You should listen to one another's opinions with the disposition to be persuaded. Do not hesitate to re-examine your views and change your positions if you are convinced it's erroneous. If there is disagreement, all jurors should re-examine their positions, given that a unanimous verdict has not been reached.
{¶ f} "Jurors for acquittal should consider whether their doubt is reasonable considering it's not shared equally honest, [sic] who have heard the same evidence with the same desire to arrive at the truth and under the same oath.
{¶ g} "Likewise, jurors for conviction should ask themselves whether they might not reasonably doubt the correctness of a judgment not concurring [sic] by all others. I'm going to ask you to go back in and deliberate further and see if it's possible that you can reach your verdict."