2008 Ohio 2418 | Ohio Ct. App. | 2008
{¶ 3} On April 13, 2007, appellant was at the home of Christina Hartrum, where he sometimes resided, located in Licking County, Newark, Ohio. Present in the home were appellant, Christina Hartrum and Daniel Castle. On that day, Cathy Coleman came to visit Christina Hartrum from her home in Muskingum County, Ohio.
{¶ 4} Upon entering the home, Ms. Coleman noticed that the appellant and Christina were having an intense argument. According to Ms. Coleman, Christina was visibly upset and crying. Upon stating that they were going to leave, appellant became upset. Ms. Coleman testified that appellant told Christina that she was not allowed to leave the house. He informed Ms. Coleman that she was "nothing but a fucking bitch." *3
He then told her to "get the fuck out of his house." (1T. at 138). As the women were attempting to leave the home, appellant retrieved a shotgun from underneath the couch. Appellant pointed the gun in Ms. Coleman's face and told her that he "was going to blow my fucking head off." (1T. at 141). Ms. Coleman ran to the front door; however, Christina, who has limited mobility, impeded her progress. While at the top of the porch steps, Ms. Coleman testified that she was pushed, "a full force slam into [her] back . . ." (1T. at 145). The push was with both hands. (Id.). She further testified that the appellant was right behind her as she was trying to get out of the door of the residence. (Id. at 144). After hitting the ground, Ms. Coleman looked back to see appellant "standing in the doorway." (Id. at 146).
{¶ 5} As a result of the fall, Ms. Coleman sustained an injury to her left leg and ankle. The fall resulted in fifteen fractures to the bone. (Id. at 156). Ms. Coleman testified that she underwent surgery to insert "plates, pins, rods and screws." (1T. at 155). Ms. Coleman was scheduled for a second surgery the day following her testimony in court. (Id. at 156 — 157). Further, she has a permanent scar. (Id.).
{¶ 6} Ms. Coleman testified that she observed appellant with two different weapons during the incident. Ms. Coleman testified that appellant threatened her with each of the weapons. (1T. at 151). She notified the 911 operator that there were guns in the house. (Id.). She further told the operator that appellant had a small one and a bigger one. (Id. at 151). Ms. Coleman testified that appellant had threatened her with the shotgun, which he had retrieved from underneath the couch. (Id. at 140). After falling to the ground, Ms. Coleman looked back to see appellant holding the smaller shotgun. (Id. at 152). Appellant held that weapon in Ms. Coleman's face. (Id. at 153). *4
{¶ 7} Ms. Coleman's 911 call was played during the trial. During the call a male voice, identified as appellant's, can be heard screaming that no guns were in the house and threatening the caller.
{¶ 8} Christina Hartum testified that appellant did not possess any firearms nor did he threaten anyone with a firearm during the events of April 13, 2007. However, in her written statement to the police given at the time of the incident, Ms. Hartum informed the police that appellant had assaulted both women as they attempted to flee the residence. At trial, Cristina Hartum testified that the police forged her written statement. (1T. at 239).
{¶ 9} Daniel Castle testified that the appellant did not possess a firearm that day nor did he threaten anybody with a firearm. Mr. Castle testified that he was present when Ms. Coleman arrived and that she never left the living room during her visit.
{¶ 10} Mr. Castle also testified that he was aware Ms. Coleman had called the police that day, the police were on their way, and that he was a witness to a crime. However, he chose to leave the residence before the police arrived. When asked what pressing matter caused him to leave the scene of the crime before the police had arrived, Mr. Castle testified that he had to till the dirt in his yard.
{¶ 11} The police responded to a domestic violence call to the residence of Christina Hartrum. Medical personnel were called to assist in treating Cathy Coleman, but she refused treatment.
{¶ 12} Christina Hartrum gave the police permission to search the residence. Inside the officers located a larger shotgun underneath the couch and a second *5 smaller shotgun "pistol" was found under the kitchen sink. Both of the shotguns had been altered in such a manner as to meet the definition of a dangerous ordinance. (1T. at 186-187).
{¶ 13} Upon discovery of the weapons appellant was placed under arrest. Patrolman David Arndt testified that while the appellant was under detention, he was transported to the hospital due to complaints of chest pains. (1T. at 101-102). He also testified that while at the hospital the appellant ripped the EKG leads off his chest and ran out of the examination room in an attempt to escape from that detention. (1T. at 103-105). Patrolman Arndt explained that while attempting to escape, the appellant turned towards the officer, balled up his fist and pulled back as if to strike him. (1T. at 106). Patrolman Arndt testified that he deployed his taser device, which subdued the appellant. (T. at 106-107).
{¶ 14} The jury returned a verdict finding appellant guilty on all counts. The appellant was sentenced as follows: Count 1: two (2) years; Firearm Specification: mandatory three (3) years; Count 2: three (3) years; Count 3: three (3) years; and Count 4: one (1) year. The firearm specification of three (3) years is to run consecutive with the three-year sentence imposed in Count 2. Counts 1,2,3,4 are to run concurrently. Appellant was ordered to pay all costs of prosecution, court costs, court-appointed counsel costs, and any fees permitted. Appellant was also ordered to pay restitution for medical expenses of the victim, Ms. Coleman. No fine was imposed.
{¶ 15} This Court granted appellant's motion to file a delayed appeal finding that counsel had not been assigned to represent appellant until after the time for filing the *6 notice of appeal had expired. Appellant submits the following four assignments of error for our consideration:
{¶ 16} "I. THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION.
{¶ 17} "II. THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT WHEN THE CONVICTION WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 18} "III. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 19} "IV. THE COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO INCLUDE THE AFFIRMATIVE DEFENSE TO ESCAPE IN THE JURY INSTRUCTIONS."
{¶ 21} A review of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate and legally distinct determinations. State v. Thompkins,
{¶ 22} In order to determine whether the evidence before the trial court was sufficient to sustain a conviction, this Court must review the evidence in a light most favorable to the prosecution. State v.Jenks (1991),
{¶ 23} Specifically, an appellate court's function, when reviewing the sufficiency of the evidence to support a criminal conviction, is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks, supra. This test raises a question of law and does not allow the court to weigh the evidence. State v. Martin (1983),
{¶ 24} In State v. Thompkins supra, the Ohio Supreme Court held "[t]o reverse a judgment of a trial court on the basis that the judgment is not sustained by sufficient evidence, only a concurring majority of a panel of a court of appeals reviewing the judgment is necessary." Id. at paragraph three of the syllabus. However, to "reverse a judgment of a trial court on the weight of the evidence, when the judgment results from *8
a trial by jury, a unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required." Id. at paragraph four of the syllabus; State v. Miller (2002),
{¶ 25} In the case at bar, appellant was convicted of felonious assault with a firearm specification. R.C.
{¶ 26} "(A) No person shall knowingly do either of the following:
{¶ 27} "(1) Cause serious physical harm to another or to another's unborn;
{¶ 28} "(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance * * *"
{¶ 29} R.C.
{¶ 30} "(B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist."
{¶ 31} Whether a person acts knowingly can only be determined, absent a defendant's admission, from all the surrounding facts and circumstances, including the doing of the act itself." State v.Huff (2001),
{¶ 32} Ms. Coleman testified that she was pushed, "a full force slam into [her] back . . ." (1T. at 145). The push was with both hands. (Id.). She further testified that the *9 appellant was right behind her as she was trying to get out the door of the residence. (Id. at 144). After hitting the ground, Ms. Coleman looked back to see appellant "standing in the doorway." (Id. at 146).
{¶ 33} "Serious physical harm to persons" as defined in R.C.
{¶ 34} "(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
{¶ 35} "(b) Any physical harm that carries a substantial risk of death;
{¶ 36} "(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity."
{¶ 37} In the case at bar, Ms. Coleman testified that she underwent surgery to insert "plates, pins, rods and screws." (1T. at 155). The fall resulted in fifteen fractures to the bone. (Id. at 156). Ms. Coleman was scheduled for a second surgery the day following her testimony in court. (Id. at 156 — 157). Further, she has a permanent scar. (Id.).
{¶ 38} The jury could have reasonably concluded from Ms. Coleman's testimony that she had suffered some temporary, substantial incapacity [R.C.
{¶ 39} Accordingly, the State presented sufficient evidence that the victim suffered "serious physical harm." R.C.
{¶ 40} "A fundamental premise of our criminal trial system is that `the jury is the lie detector.' United States v. Barnard,
{¶ 41} Although appellant cross-examined the witnesses and argued that he did not inflict, attempt to inflict, or threaten to inflict serious physical harm, and further that the victim was not credible because she may have been involved in a traffic mishap, and was possibly under the influence at the time, and further is a convicted felon, the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. Jamison (1990),
{¶ 42} The jury was free to accept or reject any and all of the evidence offered by the parties and assess the witness's credibility. "While the jury may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant's conviction against the manifest weight or sufficiency of the evidence". State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP-739, citing State v. Nivens (May 28, 1996), Franklin App. No. 95APA09-1236 Indeed, the jurors need not believe all of a witness' testimony, but may accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958, at ¶ 21, citing State v. Antill *11
(1964),
{¶ 43} Viewing the evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that appellant had committed the crime of felonious assault with a firearm specification.
{¶ 44} We hold, therefore, that the state met its burden of production regarding each element of that crime and, accordingly, there was sufficient evidence to support appellant's conviction.
{¶ 45} Accordingly, appellant's First Assignment of Error is overruled.
{¶ 47} The Ohio Supreme Court recently addressed the standard of review for a criminal manifest weight challenge, as follows:
{¶ 48} "The criminal manifest-weight-of-the-evidence standard was explained in State v. Thompkins (1997),
{¶ 49} "Both C.E. Morris Co.,
{¶ 50} However, an appellate court may not merely substitute its view for that of the jury, but must find that "the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Thompkins, supra,
{¶ 51} In State v. Thompkins supra, the Ohio Supreme Court held "[t]o reverse a judgment of a trial court on the basis that the judgment is not sustained by sufficient evidence, only a concurring majority of a panel of a court of appeals reviewing the judgment is necessary." Id. at paragraph three of the syllabus. However, to "reverse a judgment of a trial court on the weight of the evidence, when the judgment results from a trial by jury, a unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required." Id. at paragraph four of the syllabus; State v. Miller (2002),
{¶ 52} Appellant, in the case sub judice, was convicted of a firearm specification pursuant to R.C.
{¶ 53} "(A) Imposition of a three-year mandatory prison term upon an offender under division (D)(1)(a) of section
{¶ 54} In turn, "firearm" is defined in R.C.
{¶ 55} Pursuant to R.C.
{¶ 56} Upon our review of the record and after reviewing all relevant facts and circumstances surrounding the crime, we find that appellee proved beyond a reasonable doubt that the firearm used by appellant was operable or could have been readily rendered operable at the time of the offense.
{¶ 57} Ms. Coleman testified that appellant threatened her with each of the weapons. (1T. at 151). She notified the 911 operator that there were guns in the house. (Id.). She further told the operator that appellant had a small one and a bigger one. (Id. at 151). Ms. Coleman further testified that appellant had threatened her with the shotgun, which he had retrieved from underneath the couch. (Id. at 140). After falling to the ground, Ms. Coleman looked back to see appellant still holding the smaller shotgun. (Id. at 152). Appellant held that weapon in Ms. Coleman's face. (Id. at 153).
{¶ 58} Possession may be actual or constructive. State v. Butler
(1989),
{¶ 59} If the State relies on circumstantial evidence to prove an essential element of an offense, it is not necessary for "`such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction."' State v. Jenks (1991),
{¶ 60} In Ulster County Court v. Allen (1979),
{¶ 61} Appellant had possession of the shotgun and the smaller gun during the incident at the residence. The weapons were found inside the home where appellant was present and resided on occasion. This evidence was sufficient to convict him of the offenses.
{¶ 62} Finally, appellant was convicted of Unlawful Possession of a Dangerous Ordinance. Appellant concedes that the both shotguns had been altered in such a way *18
that they met the legal definition of a dangerous ordinance pursuant to R.C.
{¶ 63} The jury was free to accept or reject any and all of the evidence offered by the parties and assess the witness's credibility. "While the jury may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant's conviction against the manifest weight or sufficiency of the evidence". State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP-739, citing State v. Nivens (May 28, 1996), Franklin App. No. 95APA09-1236 Indeed, the jurors need not believe all of a witness' testimony, but may accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958, at ¶ 21, citing State v. Antill (1964),
{¶ 64} After reviewing the evidence, we cannot say that this is one of the exceptional cases where the evidence weighs heavily against the convictions. The jury did not create a manifest injustice by concluding that appellant was guilty of the crimes charged in the indictment.
{¶ 65} We conclude the trier of fact, in resolving the conflicts in the evidence, did not create a manifest injustice to require a new trial.
{¶ 66} Accordingly, appellant's Second Assignment of Error is overruled. *19
{¶ 68} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry in whether counsel's performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel's essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel's ineffectiveness. Lockhart v. Fretwell (1993),
{¶ 69} In determining whether counsel's representation fell below an objective standard of reasonableness, judicial scrutiny of counsel's performance must be highly deferential. Bradley,
{¶ 70} In order to warrant a reversal, the appellant must additionally show he was prejudiced by counsel's ineffectiveness. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial; a trial whose result is reliable.Strickland
{¶ 71} The United States Supreme Court and the Ohio Supreme Court have held a reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Bradley at 143, quotingStrickland at 697. Accordingly, we will direct our attention to the second prong of the Strickland test.
{¶ 72} First, appellant argues that if his trial counsel had not stipulated to the Having a Weapon While Under a Disability charge the jury could not have found that he had possessed the two shotguns found inside the home.
{¶ 73} Trial counsel did not stipulate to the Having a Weapon While Under a Disability; rather the stipulation concerned appellant's previous conviction for robbery, a felony of violence. Appellant's trial counsel was successful in removing any reference to the specific crime and the fact that it was a felony of violence from the stipulation that was presented to the jury.
{¶ 74} Appellant does not articulate how requesting a severance and separate trial of that charge would have resulted in a different outcome or trial strategy. In light of our disposition of appellant's First and Second Assignments of Error, appellant's claim of ineffective assistance fails to establish prejudice, namely, "that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." State v. Bradley,
{¶ 75} Appellant next argues that counsel failed to make a Criminal Rule 29 Motion for Acquittal at the close of the appellant's case.
{¶ 76} In State v. Bridgeman (1978),
{¶ 77} "Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt."
{¶ 78} A motion for acquittal is properly denied if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Wolfe (1988),
{¶ 79} The conduct raised by appellant does not rise to the level of prejudicial error necessary to find that he was deprived of a fair trial. Having reviewed the record that appellant cites in support of his claim that he was denied effective assistance of counsel, we find appellant was not prejudiced by defense counsel's representation of *22 him. The results of the proceedings were not unreliable nor were the proceedings fundamentally unfair because of the performance of defense counsel.
{¶ 80} Appellant's Third Assignment of Error is overruled.
{¶ 82} "[A]fter arguments are completed, a trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder." State v. Comen (1990),
{¶ 83} R.C.
{¶ 84} "(A)(1) No person, knowing the person is under detention or being reckless in that regard, shall purposely break or attempt to break the detention, or purposely fail to return to detention, either following temporary leave granted for a specific purpose or limited period, or at the time required when serving a sentence in intermittent confinement.
{¶ 85} "* * *
¶ 86} "(B) Irregularity in bringing about or maintaining detention, or lack of jurisdiction of the committing or detaining authority, is not a defense to a charge under this section if the detention is pursuant to judicial order or in a detention facility. In the case of any other detention, irregularity or lack of jurisdiction is an affirmative defense only if either of the following occurs:
{¶ 87} "(1) The escape involved no substantial risk of harm to the person or property of another.
{¶ 88} "(2) The detaining authority knew or should have known there was no legal basis or authority for the detention . . ."
{¶ 89} R.C.
{¶ 90} Appellant does not argue that there was no legal basis for his arrest or detention. Nor does he argue that the arresting officer lacked jurisdiction to arrest him. Accordingly, appellant points to no evidence in the record, nor does he cite any legal authority, to support his contention that there was an "irregularity in bringing about or maintaining his detention, or a lack of jurisdiction of the committing or detaining authority" so as to require the trial court to give the requested instruction on affirmative defenses.
{¶ 91} Because appellant fails to properly reference portions of the record supporting his claim so as to entitled him to have the jury instructed on those affirmative defenses, appellant cannot demonstrate the claimed error. See Daniels v. Santic, Geauga App. No. 2004-G-2570,
{¶ 92} The jury's conclusion that appellant was under detention, and purposely broke detention when he fled from the hospital, is supported by the evidence in the record. See, e.g. State v. Davis, (1992),
{¶ 93} Accordingly, appellant's Fourth Assignment of Error is overruled.
{¶ 94} For the foregoing reasons, the judgment of the Court of Common Pleas, Licking County, Ohio, is affirmed.
*26Gwin, J., Hoffman, P.J., and Wise, J., concur
