State v. HurleyState v. Hurley
Trial Court No. 2010 CR 75
Judgment Affirmed
Date of Decision: January 30, 2012
APPEARANCES:
Nicole M. Winget for Appellant
Todd C. Schroeder for Appellee
ROGERS, J.
{¶1} Defendant-Appellant, Jesse Hurley (“Hurley“) appeals the judgment of the Court of Common Pleas of Putnam County convicting him of felonious assault. On appeal, Hurley argues that the trial court abused its discretion when it denied his request for expert fees, that the trial court erred in failing to grant his
{¶2} In October 2010, the Putnam County Grand Jury indicted Hurley on count I: felonious assault in violation of
{¶3} On December 15, 2010, the trial court denied Hurley‘s motion for expert fees. The case proceeded to a jury trial on December 28 and 29, 2010. At trial, the State presented the testimony of the victim, Nicole Kirk, Sergeant Brian Siefker, Deputy Mark Doster, Brent Hostettler, Sarah Tice, Joseph Kirk, and Victoria Kirk during its case in chief. Hurley moved for a
{¶4} Nicole Kirk (“Nicole” or “Victim“) testified that she knows Hurley because he has been dating her sister, Sarah Tice (“Sarah“), sporadically for the past five or six years and is the father of Sarah‘s daughter. On October 3, 2010, at approximately 8:00 p.m., Nicole took her dog to visit Sarah‘s children. When she arrived at Sarah‘s trailer, an unfamiliar man was in the living room with Hurley, Sarah‘s three children were also there, although one was asleep on the couch; food and empty food boxes were spread all over the living room, and the living room was filled with cigarette and marijuana smoke. Nicole took the children to their rooms to put them to bed. When she came back into the living room, a third man was there “with a joint in his hand.” Trial Tr., p. 30. Nicole testified that she took the “joint” from his hand and threw it out the door. She told the men to leave and that she was going to call the police. As the Defendant stood up to leave, the other two men walked out the door, and instead of leaving, the Defendant shut the door, pushed her down onto the couch, said that she was not going to get him in any trouble, and cut and scraped her stomach with a knife. She described the knife as having a black handle and a serrated edge. Nicole testified that Hurley made six or seven cuts on her stomach. Nicole screamed and her dog came out of the bedroom and started barking, showed her teeth, and snapped towards him so that
{¶5} The State played the recording from Nicole‘s 911 telephone call. When the police officer arrived at the trailer, Nicole showed him the cuts on her stomach. The police officer took photos of the cuts, interviewed Nicole, and took her home.
{¶6} Sergeant Brian Siefker of the Putnam County Sheriff‘s Office testified that on October 3, 2010 he responded to a call reporting an incident with a knife. When he arrived at the trailer, he noticed that Nicole was upset, crying, and holding onto her side. Nicole showed him her wounds, which he photographed. He testified that the wounds were fresh and that blood was coming to the surface. He also testified that he retrieved marijuana from the trailer, close to where the men had been sitting. Sergeant Siefker attempted to locate the knife, but was unsuccessful.
{¶7} Deputy Mark Doster of the Putnam County Sheriff‘s Office testified that he was on duty and reported to the trailer court on October 3, 2010. Upon arriving at the trailer court, he went to lot 29, where the two men who were at Sarah‘s trailer that night, Brent Hostettler and Wesley Hostettler, live. Deputy Doster also located Hurley at that trailer and interviewed him. Hurley told him that he had been babysitting the children at Sarah‘s trailer when Nicole came over,
{¶8} Brent Hostettler (“Brent“), one of the two other men at Sarah‘s trailer, testified that he, his brother Wesley, and Hurley voluntarily left the trailer together that night to smoke a cigarette. When they were outside smoking, Nicole locked the door and made a phone call saying that she was in need of assistance. Brent also testified that he and Hurley were smoking marijuana that night before Nicole came over.
{¶9} Sarah testified that she met Hurley in February, 2006, and that he is the father of her daughter. She testified that she is the victim‘s sister. She and Hurley have had a troubled relationship and went through two significant events that caused them to separate. One of the events occurred two weeks prior to the incident at issue, which caused her not to speak with Hurley for a couple of weeks. During this time, Hurley had expressed that he wanted Sarah to live with him, but she told him he first needed to earn her trust and be a responsible person. She testified that Hurley had “two strikes against him” at this point. Trial Tr., p. 140. As Sarah was scheduled to work on the evening of October 3, 2010, she let Hurley stay with the children. She stated that Hurley and the Hostettler brothers are
{¶10} Wesley Hostettler (“Wes“) then testified on direct examination for the defense. Wes stated that he is friends with the Defendant. He stated that on October 3, 2010, his mother sent him to Sarah‘s trailer to tell Brent to come home. Brent was outside of Sarah‘s trailer smoking a cigarette and the two went into the trailer to talk to Hurley. Once they were in the living room, Nicole came out of the back bedroom, asked Wes his name, and he, Brent, and Hurley left the trailer together.
{¶11} Hurley testified that he was babysitting Sarah‘s children at her trailer on October 3, 2010, when Brent came over. The two were smoking marijuana when Nicole arrived. Nicole put the children to bed and came back out to the living room and told them that they had to smoke outside. When the three went outside to smoke, Nicole locked the door. Hurley then went to the Hostettler‘s trailer and called Sarah to ask her if he could kick in the door. He said he never stabbed or slashed Nicole with a knife. He also testified that he never argued with Nicole that evening. He testified that, since 2001, he has had three convictions for obstructing official business, one felony burglary conviction, one falsification conviction, and one attempted domestic violence conviction.
Assignment of Error No. I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE DEFENDANT-APPELLANT‘S REQUEST FOR EXPERT FEES WHEN SUCH AN EXPERT WOULD BE USED TO CONTRADICT THE STATE‘S THEORY OF THE CASE.
Assignment of Error No. II
THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT‘S CRIMINAL RULE 29 MOTION TO DISMISS ALL OF THE CHARGES AT THE CONCLUSION OF THE STATE‘S CASE IN CHIEF.
Assignment of Error No. III
THE JURY ERRED TO THE PREJUDICE OF THE DEFENDANT APPELLANT BY FINDING HIM GUILTY OF FELONIOUS ASSAULT.
Assignment of Error No. IV
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT IMPOSED THE MAXIMUM SENTENCES (sic) FOR HIS OFFENSES (sic) IN VIOLATION OF THE GUIDELINES SET FORTH IN ORC 2929.12.
Assignment of Error No. I
{¶13} In his first assignment of error, Hurley alleges that the trial court erred in denying his request for expert fees. Hurley requested $1,500 in funds to
{¶14} The State contends that the defense has failed to establish that expert fees were warranted in this case as Hurley failed to establish that the expert assistance is reasonably necessary. The State argues that the Defendant did not show that there is a reasonable probability that an expert would aid in his defense, and that the denial of the expert assistance would result in an unfair trial as required by State v. Broom, 40 Ohio St.3d 277 (1988).
{¶15} The statutory authority allowing the state to provide the funds for an indigent defendant‘s expert is
{¶16} The appropriate standard of review is an abuse of discretion. Mathias. A trial court will be found to have abused its discretion when its decision is contrary to law, unreasonable, not supported by the evidence, or grossly unsound. See State v. Boles, 2d Dist. No. 23037, 2010-Ohio-278, ¶ 17-18, citing Black‘s Law Dictionary (8 Ed.Rev.2004) 11. When applying the abuse of discretion standard, a reviewing court may not simply substitute its judgment for
{¶17} At the hearing on the matter of expert fees, the Defendant‘s attorney explained that the expert would look at the Victim‘s statement, the facts alleged, the knife in question, and the Victim‘s wounds in order to determine first, whether the knife could have inflicted these wounds, and second whether the wounds are consistent with the alleged events that gave rise to the Victim‘s wounds.1
{¶18} An application of the factors set forth above reveals that the trial court did not abuse its discretion in denying the request for a forensic scientist. Specifically, Appellant has failed to demonstrate the value and necessity of such testimony. Without the knife in question, the expert opinion would not be any more accurate or certain than that of a lay person. Bare assertions as to what the Defense hopes the expert opinion will show are insufficient to establish the value of the requested expert. Further, alternative methods are available to determine the accuracy of the State‘s theory. By thoroughly cross-examining the witnesses and the timing of the events, the defense could have explored whether the victim‘s wounds were self-inflicted as well as possible motives for such behavior. Where Defendant fails to show such need, we cannot find an abuse of discretion by the
Assignment of Error Nos. II and III
{¶19} Due to the nature of Hurley‘s second and third assignments of error, we elect to address them together.
{¶20} Hurley argues that the trial court erred by denying his
{¶21} Under
{¶23} We hold that the evidence was sufficient to establish Hurley‘s guilt of felonious assault. Hurley was convicted of felonious assault in violation of
(A) No person shall knowingly do either of the following:
* * *
(2) Cause or attempt to cause physical harm to another or to another‘s unborn by means of a deadly weapon or dangerous ordnance.
{¶24} A deadly weapon is defined in
{¶25} The State also presented sufficient evidence to establish that Hurley did knowingly cause the victim‘s wounds. The victim‘s testimony as well as Sarah‘s testimony was that Hurley was compelled to prevent Nicole from calling the police. Sarah‘s testimony established that Hurley knew this may have been one of his last chances to prove to Sarah that he was reliable and trustworthy. When Nicole threatened to call the police on Hurley due to the drug activity taking place in front of the children, Hurley needed to prevent police intervention if he was going to succeed in earning Sarah‘s trust. In an attempt to prevent Nicole from calling the police, he attacked her.
{¶27} We find that the State presented sufficient evidence such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven. Viewing the evidence in the light most favorable to the prosecution, we hold that the evidence was sufficient to sustain the verdict. Accordingly, Hurley‘s second and third assignments of error are overruled.
Assignment of Error No. IV
{¶28} In his fourth assignment of error, Hurley argues that the trial court erred by imposing the maximum statutory prison term. Specifically, he contends that the factors set forth in
{¶29} An appellate court must conduct a meaningful review of the trial court‘s sentencing decision. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-Ohio-5774, ¶ 8, citing State v. Carter, 11th Dist. No. 2003-P-0007, 2004-Ohio-1181. A meaningful review means “that an appellate court hearing an appeal of a felony sentence may modify or vacate the sentence and remand the matter to the trial court for re-sentencing if the court clearly and convincingly finds that the record does not support the sentence or that the sentence is otherwise contrary to law.”3 Daughenbaugh, citing Carter at ¶ 44;
{¶30} The trial court has full discretion to sentence an offender to any term of imprisonment within the statutory range without a requirement that it make findings or give reasons for imposing the maximum sentence, more than the minimum sentence, or ordering sentences to be served consecutively. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph seven of the syllabus.
{¶31} When sentencing an offender, the trial court must consider the factors set forth under
{¶32} Contrary to Hurley‘s assertions, the trial court‘s imposition of the maximum sentence was not based on the seriousness of his offense, but rather was based on Hurley‘s “significant likelihood of recidivism, . . . prior criminal adjudications, . . . pattern of criminal activity and criminal violent activity, and that [he] has shown no remorse for his actions.” Judgment Entry, Docket No. 78. In light of the nature of the instant offense, Hurley‘s prior criminal convictions, and likelihood of recidivism, we find that the trial court‘s imposition of the maximum term of imprisonment was not clearly and convincingly contrary to law.
{¶33} Accordingly, we overrule Hurley‘s fourth assignment of error.
{¶34} Having found no error prejudicial to the Appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON, J., concurs.
/jlr
WILLAMOWSKI, J., Concurring Separately.
{¶35} I concur fully with the majority opinion as to assignments of error one, two, and three. However I write separately as to the fourth assignment of
{¶36} I would find that Hurley has not clearly and convincingly demonstrated that the sentence is contrary to law. In other words, Hurley did not show that the trial court did not consider the factors set forth in