State v. CampbellState v. Campbell
Repper, Pagan, Cook, Ltd., John H. Forg III, 1501 First Avenue, Middletown, Ohio 45011, for defendant-appellant
O P I N I O N
RINGLAND, J.
{¶1} Defendant-appellant, Riсhard Campbell, appeals his convictions in the Butler County Court of Common Pleas for one count of domestic violence and one count of assault. We affirm the convictions.
{¶2} Campbell, and his wife, Billie Campbell, had been married since 2003. On the night of February 7, 2009, the two began an argument that eventually turned viоlent. According to Billie‘s testimony, she told Campbell that she wanted to go with her friend, Dawn Johnson, to a local bar for a game of pool. Campbell told Billie that he would not
{¶3} Campbell was unhappy with Johnson‘s presence in the home, and told Billie that Johnson “caused trouble” between them. At some point, Campbell left the house and returned later and Billie noticed that he was staggering, slurring his speech, and exhibiting signs of anger. Billie and Campbell started arguing when Billie‘s son told her that his wallet and money were missing, and Billie asked Campbell if he used the money to purchase alcohol. Once Billie‘s son accused Campbell of taking his wallet, Campbell began yelling at the child and walked aggressively toward him until Billie placed herself between her son and Campbell. When Campbell again walked aggressively towards Billie‘s son, she called the police.
{¶4} Billie claimed that while she was on the phone with the police, Campbell pushed her into the wall where she hit a basket by the door through which Campbell was leaving. Once Campbell left, the police arrived and told Billie to not let Campbell back into the house and to call should she feel threatened by his presence.
{¶5} Billie and Johnson locked the doors and secured the windows, but Campbell broke through the back door approximately 30-45 minutes after the police left. Campbell rushed through the house, “dove on top” of Johnson where she was sitting on the couch, and began hitting her in the head. When Billie tried to pull Campbell off Johnson, he grabbed her by her arms and threw her into a glass coffee table next to the couch. After Billie fell through the glass table, Campbell pinned Johnson against the couch and continued to hit her head with closed fists.
{¶6} When Billie‘s son heard the commotion, he ran towards the fight, jerked on
{¶7} After the police came, took Billie‘s statement, and left, Johnson tried to leave but discovered her tires had been slashed. When a tow truck arrived to move Billie‘s truck, Billie and Johnson went outside and saw Campbell standing in the alley by Billie‘s home. As the women called the police again, Campbell ran away and another of Billie‘s friends followed him to a local convenience store whеre Campbell was eventually arrested.
{¶8} Campbell was later indicted on three counts of domestic violence and one count of assault. Count One charged Campbell with domestic violence for pushing Billie into the wall while she was on the phone with police. The second domestic violenсe count charged Campbell with throwing Billie through the glass table, while the fourth count charged him with kicking Billie‘s son. Count Three, the sole assault charge, was specific to Campbell beating Johnson. After a two-day trial, a jury acquitted Campbell of Counts One and Four, but found him guilty on Counts Two and Three, and further found that he had been convicted of a prior domestic violence offense. The trial court sentenced Campbell to 15 months on the domestic violence conviction and six months on the assault conviction, to be served concurrent with Count Two. Campbell now appeals his convictions and sentence, rаising a single assignment of error.
{¶9} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY INSTRUCTING THE JURY THAT IT COULD CONVICT CAMPBELL UNDER COUNT TWO OF THE INDICTMENT ON THE BASIS OF CONDUCT NOT CHARGED IN THE INDICTMENT.”
{¶11} In his proposed jury instructions, Campbell included factual contexts for each of the three domestic violence charges, specific to the actions Campbell took against Billie and her son. The trial court declined to include facts in the instructions and instead mirrored the indictment and bill of particulars’ general language charging Campbell with domestic violence in violation of
{¶12} “In reviewing a trial court‘s decision on jury instructions, an appellate court‘s role is to ascertain whеther the trial court abused its discretion in refusing to give a proposed instruction and, if so, whether that refusal was prejudicial. The court possesses the discretion to use its own language to communicate the same principles in language it deems proper.” State v. McLavin, Fayette App. No. CA2006-11-044, 2007-Ohio-5633, ¶17. (Internal citations omitted.)
{¶13} Further, “a reviewing court may not reversе a conviction in a criminal case due to jury instructions unless ‘it is clear that the jury instructions constituted prejudicial error.’ In order to determine whether an erroneous jury instruction was prejudicial, a reviewing court must examine the jury instructions as a whole. A jury instruction constitutes prejudicial error where it results in a mаnifest miscarriage of justice.” State v. Brown, Clinton App. No. CA2008-12-049, 2009-Ohio-3933, ¶6.
{¶14} The jury instructions in this case were neither incorrectly given, nor created prejudicial error that resulted in a manifest miscarriage of justice. Instead, the language in Campbell‘s indictment for Count Two was repeated in his bill or particulars, and further used in the jury instructions.
{¶15} According to Cоunt Two of the indictment, “on or about February 8, 2009 at Butler County, Ohio, Richard Dwayne Campbell did knowingly cause or attempt to cause physical harm to a family or household member, when the offender previously has pleaded guilty to or been convicted of domestic violence ***.” The state later prоvided a bill of particulars, which contained the exact same language under Count Two as was used in Campbell‘s indictment.1
{¶16} Tracking the indictment and bill of particulars, the instructions for Count Two informed the jury that “in count two of the indictment, the defendant, Richard Campbell, is charged with domestic violence. Before yоu can find Richard Campbell guilty, you must find beyond a reasonable doubt that on or about February 8, 2009, and in Butler County, Ohio, the defendant knowingly caused or attempted to cause physical harm to, Billie Campbell, a family member or household member.”
{¶17} Therefore, the same reference to and language exрlaining the charge is carried through from the indictment and bill of particulars, to the jury instructions, so that the instructions were properly given. See Brown, 2009-Ohio-3933 (affirming appellant‘s conviction where the trial court‘s jury instruction essentially mirrored the language found in the indictment and the bill of particulars, and therefore did not exрand upon the charges contained therein).
{¶19} While the instruction ultimately given did not include reference to the glass table, the definition of “knowingly”2 in the instructions was substantially similar to that requested by Campbell. See State v. Velves (Aug. 19, 1996), Stark App. No. 1995CA00366, *3 (affirming appellant‘s conviction where jury instructions were “substantially similar to that proposed by appellant“). Taken in consideration with the legal principle that a trial court may use its own language to communicate the legal principle at issue, the substantially similar instruction was valid even though it lacked a factual context specific to what each count entailed. While Campbell now claims that the trial court‘s refusal to include a factual context prejudiced him, we disagree.
{¶20} In response to Campbell‘s request that the instructions chronicle the facts, the trial court responded, “the only thing I will tell you is that you are specific as to the
physical harm, which was shoving Ms. Campbell into the wall as to Count 1. Count 2 by throwing her into a glass coffee table. And Count 3, [Billie‘s son], kicking him in the side. I think that the jury could find that there are other acts in this cаse which would constitute domestic violence as to these incidents.” The trial court also stated that “the jury could make a finding that, you know, that there are other acts which would constitute domestic violence in this case as far as the three separate incidents.”
{¶21} While Campbell now argues that the trial court‘s explanation demonstrates its intent to change the indictment to include other acts of domestic violence not listed in the indictment, a review of the record indicates otherwise. Instead, the trial court‘s statement had no impact on the jury‘s understanding of what the counts entailed or even that any of Campbell‘s actions that night, other than the table incident, could have been considered in Count Two. Initially, we note that the trial court‘s statement, and all discussions regarding instructions, occurred outside the presence of the jury so that it was never made aware of the trial court‘s suggestion that any of Campbell‘s actions that night may have constituted Count Two besides throwing Billie through the table. More significantly, all references to Count Two heard by the jury throughout the trial were specific to Campbell throwing Billie through the table.
{¶22} During opening statements, the state detailed each count and stated, “In Count 2, the stаte will prove to you that the defendant knowingly caused or attempted to cause physical harm, again to his wife, Billie Campbell, when he threw her into the coffee table causing the table to break.”
{¶23} Further, during closing arguments, the state reviewed each count and stated specific to Count Two, “I submit to you that the defendants [sic] actions were
{¶24} During Campbell‘s closing arguments, defense counsel stated, “ladies and gentlemen, you‘re here to determine if my client committed four separate crimes. Each of the four crimes having specific elements on or about February 7th of this year.” Counsel then raised the issue of reаsonable doubt, and went through the three counts of domestic violence. “Two, Billie Campbell miraculously landed on top of the coffee table and shattered it, a glass top coffee table, walked away without a cut on her body. You didn‘t hear any testimony about any cuts, even though she apparently landed, as she testified, on this coffee table and shattered it.”
{¶25} From these excerpts, it is clear that the jury understood what each count entailed and convicted Campbell of Count Two because it found that his act of throwing Billie through the glass table constituted domestic violence as chargеd in the indictment, bill of particulars, and as explained in the jury instructions.
{¶26} Further, the jury verdict also demonstrates that it understood that the counts were specific to Campbell‘s distinct actions. While it acquitted Campbell for allegedly shoving Billie into the wall and kicking Billie‘s son, it found him guilty of throwing Billie into the table and assaulting Johnson. Both of these convictions are well supported by the evidence. Specific to Count Two, the state presented evidence that Campbell threw Billie through the table when she tried to stop him from hitting Johnson. Johnson also testified that while Campbell was hitting her, she saw Billie standing, Johnson stopped hitting her for a mоment, and then she saw Billie getting up from the coffee table. The women‘s testimony was also corroborated by testimony from a police
{¶27} After reviewing the trial court‘s decision to instruct the jury as it did, we find no abuse of discretion in refusing to give Campbell‘s proposed instruction. Because the instruction followed the language of the indictment and bill of particulars, and given the parties’ treatment of Count Two throughout trial, the instruction was neither erroneous nor prejudicial in any way. While Campbell‘s instruction may have set forth the factual context of Count Two, the trial court possesses the discretion to use its own language to cоmmunicate the same principles in language it deems proper, and did so by using the language found in the indictment and bill of particulars.
{¶28} After viewing the instructions as a whole, and finding no abuse of discretion, Campbell‘s assignment of error is overruled.
{¶29} Judgment affirmed.
BRESSLER, P.J., and HENDRICKSON, J., concur.