2005 Ohio 593 | Ohio Ct. App. | 2005
{¶ 2} Defendant was convicted after a jury trial of one count of kidnapping in violation of R.C.
{¶ 3} Defendant appeals the judgment of the Summit County Court of Common Pleas, asserting two assignments of error for our review.
{¶ 4} In his first assignment of error, Defendant claims that the trial court erred in giving the jury an instruction on flight and improperly placed the burden of proof on Defendant. Additionally, Defendant maintains that the trial court erred in allowing his silence to be used as evidence against him in violation of his constitutional right to remain silent. We disagree.
{¶ 5} We review jury instructions under an abuse of discretion standard. State v. Clay, 9th Dist. No. 04CA0033-M,
{¶ 6} The court gave the following jury instruction regarding flight:
"In this case there is evidence tending to indicate that the defendant fled from the vicinity of the alleged crimes. In this case you are instructed that flight in and of itself does not raise a presumption of guilt. However, unless satisfactorily explained, it tends to show consciousness of guilt or a guilty connection with the alleged crimes.
"If, therefore, you find that the defendant did flee from the vicinity of the alleged crimes, and this conduct has not been satisfactorily explained, you may consider this circumstance in the case in determining the guilt or the innocence of the defendant.
"Upon you alone rests the decision to determine what weight, if any, you place upon the evidence you find, if any, which bears upon the issue of flight."
Defendant argues that the jury would believe that Defendant himself would have to satisfactorily explain the reasons behind his flight and, thus, his silence was incriminating on the matter of flight. We disagree.
{¶ 7} "In considering whether a particular portion of a trial court's instructions was improper, the instructions must be viewed in their entirety." State v. Pitts (Sept. 30, 1997), 6th Dist. No. L-96-256, citing Schade v. Carnegie Body Co. (1982),
{¶ 8} Defendant points to State v. Fields (1973),
"you are instructed that flight in and of itself does not raise a presumption of guilt, but unless satisfactorily explained, it tends to show consciousness of guilt, or a guilty connection with the crime. If, therefore, you find that one or both of the defendants did flee from the scene of the alleged crime, and one or both have not satisfactorily explained their conduct in so doing, you may consider this circumstance together with all other facts and circumstances in the case in determining the guilt or innocence of one or both of the defendants." (Emphasis omitted.) Id. at 144-145.
The court in Fields held that the above instruction violated the defendant's constitutional rights, finding that the jury would interpret the instruction to mean that the defendant had to personally explain his conduct in fleeing. Id.
{¶ 9} In the present case, the instruction did not direct Defendant to personally explain the circumstances of his flight. Additionally, the court clearly instructed the jury that Defendant's silence was not to be used against him. Under these circumstances, we do not find that Defendant's constitutional rights were violated. See State v. Teasley
(Aug. 17, 1995), 8th Dist. No. 67819. We find that, despite Defendant's assertions, the trial court's instruction on flight was "neither arbitrary nor unreasonable, and did not create an improper mandatory presumption." State v. Taylor (1997),
{¶ 10} In his second assignment of error, Defendant contends that the trial court erred in failing to make required findings pertaining to imposition of consecutive sentences under R.C.
{¶ 11} An appellate court reviews a sentence to determine whether the trial court complied with the statutory mandates of R.C. Chapter 2929.State v. Yeager, 9th Dist. Nos. 21092 and 21107, 2003-Ohio-1809, at ¶ 5. Therefore, we will not disturb a trial court's sentencing decision unless we find by clear and convincing evidence that the sentence is not supported by the record or is contrary to the law. State v. Harrold, 9th Dist. No. 21797, 2004-Ohio-4450, at ¶ 13; R.C.
{¶ 12} "[W]hen imposing consecutive sentences, a trial court must make its findings under R.C.
{¶ 13} When imposing consecutive sentences, the trial court must explicitly find on the record that consecutive sentences are "necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public [.]" R.C.
"(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
"(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
"(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender."
The court must make these findings and give reasons for imposing consecutive sentences at the sentencing hearing. Comer,
{¶ 14} In this case, the judge found the following: "The Court believes that basic terms are inadequate to punish this defendant and would be demeaning to the seriousness of the offenses [,]" especially since Defendant is a repeat violent offender. The court stated on the record that it believed that:
"minimum sentences are not appropriate and, further, that consecutive sentences are necessary to both protect the public and to punish this particular defendant for what [the court] consider[s] to be very inhumane activities with respect to the treatment of any human being."
{¶ 15} The court stated that it did not believe that consecutive sentences were disproportionate, because the crimes that were committed were committed while this defendant was on probation, and that the harm to the victim was so great that a single term would not adequately reflect the seriousness of this defendant's conduct. "[C]onsecutive sentences are needed, not only to protect the public, to offer appropriate punishment."
{¶ 16} As rationale supporting these findings, the judge noted the viciousness of the act, the physical and psychological harm upon the victim, the relationship of the victim to Defendant which facilitated the crimes, and Defendant's history of criminal conduct, especially Defendant's history of criminal convictions for violence not only with the victim in this case but with other victims as well. Further the court noted that the offenses took place while Defendant was on probation for an act of domestic violence, and that Defendant showed no remorse for his actions. After reviewing the record, we find that the trial court made the required findings. We overrule Defendant's second assignment of error.
{¶ 17} We overrule Defendant's two assignments of error and affirm the judgment of the Summit County Court of Common Pleas.
Judgment affirmed.
The Court finds that 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 to Appellant.
Exceptions.
Carr, J., Whitmore, J., Concur.
