State v. JackimState v. Jackim
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-439646
BEFORE: Jones, J., Cooney, A.J., and Kilbane, J.
RELEASED: December 17, 2009
JOURNALIZED:
Catherine M. Brady 4417 West 189th Street Cleveland, Ohio 44135
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Brian M. McDonough Tiffany Hill Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, Bruce Jackim (“Jackim”), appeals his conviction for assault on a police officer and resisting arrest.
{¶ 2} On appeal, Jackim asserts the following assignments of error:
“I. The trial court committed plain error when it failed to properly instruct the jury, there was insufficient evidence to support Jackim‘s convictions, and the convictions were against the manifest weight of the evidence.
“II. The trial court committed plain error by allowing the state to proceed with a defective indictmеnt.
“III. The trial court committed plain error by failing to grant Jackim‘s motion to dismiss based on a violation of his right to a speedy trial.
“IV. The trial court committed plain error in excluding expert reports and testimony as to the expert‘s findings and ultimate issue of fact.
“V. The trial court committed plain error in misapplying the hearsay rule by excluding the testimony of defense witnesses.”
{¶ 3} Finding no merit to the appeal, we affirm.
{¶ 4} In 2003, Jackim was charged with felonious assаult of a police officer, assault on a police officer, and resisting arrest. Before trial, Jackim moved to dismiss the indictment, arguing a violation of his right to a speedy trial. The matter proceeded to a trial before a jury, and Jackim was convicted of one count of assault of a police officer and one count of resisting arrest. The court sentenced him to a six-month suspended jail sentence and one year of community control sanctions. Jackim appealed, claiming error in the trial court‘s denial of his motion for acquittal, the court‘s failure to enforce subpoenas to material witnesses, suppression of a videotape, and denial of his motion for a new trial. State v. Jackim, Cuyahoga App. Nos. 87012 and 87400, 2006-Ohio-4756 (“Jackim I”). We reversed his conviction, finding that the trial сourt had erred in granting a motion in limine excluding the surveillance videotape as well as reference to it at trial. Jackim I. We remanded the case for a new trial and ruled that Jackim‘s other claims were moot because of the court‘s ruling. Id. at ¶21.
{¶ 5} On remand, Jackim filed another motion to dismiss the case based upon an alleged violation of his right to a speedy trial. The trial court again denied his motion. In December 2007, Jackim filed a petition with this court for a writ of prohibition to prevent the trial court from proceeding with Jackim‘s retrial because of the claimed speedy-trial violation. We dismissed his claim sua sponte for failure to state a claim upon which prohibition would issue. State ex rel. Jackim v. Ambrose, Cuyahoga App. No. 90785, 2008-Ohio-45, affirmed by, State ex rel. Jackim v. Ambrose, 118 Ohio St.3d 512, 2008-Ohio-3182, 890 N.E.2d 324.1
{¶ 6} Prior to the beginning of the second trial, the trial court amended the indictment to reflect the verdict previously rendеred by the jury in the first trial; the indictment was amended to one count of assault on a peace officer specification and one count of resisting arrest. The matter then proceeded to a second trial before a jury. The following evidence was adduced at trial.
{¶ 8} Dan Meadows, a uniformed Brooklyn police officer who was working off-duty at Sam‘s Club, approached Jackim. Officer Meadows asked Jackim several times to calm down and twice asked for his identification. The acts that followed are disputed; however, the testimony shows that Jackim and Officer Meadows engaged in an altercation and the two men fell to the ground. Officer Meadows attempted to handcuff Jackim, who resisted. Meadows used his police-issued pepper spray on Jackim, who bit Meadows‘s arm. Two other police officers and a store employee assisted Meadows in his attempts to subdue and restrain Jackim. Eyewitnesses to the incident testified that Officer Meadows‘s arm was bleeding; these same witnesses heard the officer say that Jackim bit him.
{¶ 10} At the police station, Jackim told Officer Meadows that he “fought” him because he did not think the officer had the authority to arrest him, that he had “military training,” and if he had wanted to get “freed,” he would have broken Meadows‘s nose and crushed his throat.
{¶ 11} The jury convicted Jackim оf both counts, and the trial court sentenced him to a 90-day suspended jail sentence, one year of community control, 400 hours of community service, anger management and a mental health assessment, and fines and court costs. The court further found that Jackim had already served his community control under his first case and ordered community control sanctions terminated.
{¶ 12} Jackim appeals, raising five assignments of error for our review.
Jury Instructions
{¶ 13} In the first assignment of error, Jackim argues that the trial court committed plain error when it failed to properly instruct the jury, there was insufficient evidence to support Jackim‘s convictions, and the convictions were against the manifest weight of the evidence. First, we note that contrary to how Jackim has titled his first assignment of error, he does not argue that the evidence
{¶ 14} First, we note that Jackim did not request a jury instruction based on the municipal ordinance, nor object tо the ordinance‘s omission in the final jury instructions. His failure to object to the jury instructions waives all but plain error. State v. Underwood (1983), 3 Ohio St.3d 12, 444 N.E.2d 1332, syllabus. Plain error “should be applied with utmost caution and should be invoked only to prevent a clear miscarriage of justice.” Id. at 14. Plain error exists only where it is clear that the verdict would have been otherwise but for the error. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804.
{¶ 15} We find no error, plain or otherwise, with the jury instructions. The trial court instructed the jury оn resisting arrest, in violation of
{¶ 16} Therefore, we overrule the first assignment of error.
Indictment
{¶ 17} In his second assignment of error, Jackim argues that his indictment was defective. In his first trial, Jackim was convicted of assault on a police officer
{¶ 18}
{¶ 19} The record shows that the trial court dismissed the charge for assault on a police officer after the close of the state‘s case in the first trial. However, the jury in the first trial found Jackim guilty of assault on a police officer as a lesser included offеnse of felonious assault. At the beginning of the second trial, the trial court amended the indictment to reflect the charges for which the jury convicted Jackim in the first trial; specifically, assault on a police officer and resisting arrest.
{¶ 20} We see no error in the court‘s decision to follow
{¶ 21} The second assignment of error is overruled.
Speedy Trial
{¶ 22} In the third assignment of error, Jackim argues that his right to a speedy trial was violated.
{¶ 24} The speedy trial statute may be tolled by several events, set forth in
{¶ 25} In general, the trial court should, but is not required to, identify the party against whom it will charge the continuance. Cleveland v. Ali, Cuyahoga App. No. 88604, 2007-Ohio-3902, ¶22-23. When a court continues a matter sua sponte, it must show, through its journal entry, that the continuance was
{¶ 26} Jackim argues that the time to bring him to trial expired three months before his first trial began. The state responds that this argument is barred by the doctrine of res judicata. We disagree with the state, but do find that Jackim‘s speedy trial time did not expire prior to the first trial.
{¶ 27} First, it is important to note that Jackim‘s argument on appeal is not barred by res judicata. The state claims that Jackim did not raise the issue of speedy trial in Jackim I. We agree that Jackim did not properly argue his right to а speedy trial in Jackim I in accordance with
{¶ 28} When we review the time between Jackim‘s arrest and triаl, including tolled periods, we find no violation of his statutory right to a speedy trial. Jackim was arrested on May 25, 2003. He was held in jail for one day, which counts as three speedy-trial days. His municipal court case was dismissed on June 3,
{¶ 29} The trial court continued the matter sua sponte from June 24 to July 21, 2004. This сontinuance was reasonable under the circumstances, and was entered before the statutory trial period expired. See State v. Holmes, Cuyahoga App. No. 91948, 2009-Ohio-3736.
{¶ 30} Time was tolled from July 22, 2004 until August 3, 2004, and from September 23, 2004, to October 4, 2004, based on Jackim‘s requests for a continuance. Jackim waived his right to a speedy trial from August 4, 2004, to September 30, 2004.
{¶ 31} The state concedes that speedy-trial days should be charged to the state from October 5, 2004 until February 9, 2005. Then, time was tolled from February 9 until March 1, 2005 because Jackim requested another continuance. Speedy-trial days are charged to the state from March 2, 2005 until June 14, 2005. The court was again unavailable from June 15, 2005 until July 15, 2005, and we again find the request reasonable. Jackim filed a motion to dismiss on July 15, 2005 that tolled the speedy-trial time until July 20, 2005, when trial commenced.
{¶ 32} Considering all of these periods, we find that Jackim‘s triаl took place before the statutory speedy trial period had elapsed. Thus, Jackim has not demonstrated a statutory speedy trial violation.
Expert Testimony
{¶ 34} In the fourth assignment of error, Jackim argues that the trial court erred in excluding portions of his expert‘s reports and testimony.
{¶ 35}
{¶ 36} may testify as an expert if all of the following apply:
“(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
“(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
“(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimоny reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
“(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
“(2) The design of the procedure, test, or experiment reliably implements the theory;
“(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.”
{¶ 37} In this case, Jackim moved to qualify Bruce Bynum as a video expert. Prior to trial, Jackim filed a motion in limine asking the trial court to determine the admissibility of Bynum‘s testimony. In the motion, Jackim proposed that Bynum testify regarding: 1) how a specialized VCR works and how the videotape was
{¶ 38} During trial, the court issued an order allowing Bynum to testify as to the science of the store surveillance and recordings at issue but nоt allowing him to testify as to “any commentary as to body movements or actions by individuals appearing in the scenes.”
{¶ 39} While some states still recognize the rule prohibiting testimony as to the ultimate issues of a case, Ohio does not. State v. Daws (1994) 104 Ohio App.3d 448, 662 N.E.2d 805, citing, McKay Machine Co. v. Rodman (1967), 11 Ohio St.2d 77, 81-82, 228 N.E.2d 304.
{¶ 40} It is, however, within the discretion of the trial court to refuse to admit the testimony of an expert witness on an ultimate issue where such testimony is otherwise inadmissible under the Ohio Rules of Evidence, or when the testimony is not essential to the jury‘s understanding of the issue and the jury is capable of coming to a correct conclusion without it. Bostic v. Connor (1988), 37 Ohio St.3d 144, 148, 524 N.E.2d 881. See, also,
{¶ 41} In order to bе admitted at trial, expert testimony must (1) relate to scientific, technical, or other specialized knowledge; (2) assist the trier of fact to understand the evidence or to determine a fact in issue; (3) be relevant and material to an issue in the case; and (4) have a probative value that outweighs any prejudicial impact.
{¶ 42} First, we do not find that testimony from Bynum regarding his opinion on Meadows‘s and Jackim‘s body movements observed in the videotape “relate to scientific, technical, or other specialized knowledge.”
{¶ 43} Second, to establish that expert testimony will assist the trier of fact, it must generally be established that the subject of the testimony is outside the experience, knowledge, or comprehension of the trier of fact. State v. Coulter (1992), 75 Ohio App.3d 219, 228, 598 N.E.2d 1324, 1329; Bostic at 148-149. If the trier of fact can understand the issues and the evidence and arrive at a correct determination, expert testimony is unnecessary and inadmissible. State v. Roquemore (1993), 85 Ohio App.3d 448, 454-455, 620 N.E.2d 110, 114.
{¶ 44} Jackim proposed that Bynum be allowed to testify regarding his observations of what was on the videotape, specifically that he observed: “Meadows in very immediate proximity looking down at Bruce‘s right hand. Meadows‘s left arm is seen grabbing Bruce‘s right arm as Bruce‘s right hand is at
{¶ 45} We find that the jury did not require any technical or specialized testimony by Jackim‘s expert to understand what was being shown on the videotape. The jury was able to view the videotape both during trial and deliberations. Nor is there any evidence that Bynum was an expert in body language or the investigation into what is seen on a videotape. Therefоre, we find that the trial court did not err in excluding the testimony regarding body movements, and Jackim was not prejudiced by the omission of that portion of Bynum‘s proffered testimony.
{¶ 46} The fourth assignment of error is overruled.
Hearsay
{¶ 47} In the fifth and final assignment of error, Jackim argues that the trial court erred in excluding admissible hearsay testimony. Specifically, Jackim argues that defense witnesses should have been allowed to testify to what they heard Officer Meadows say during thе incident at Sam‘s Club and during another incident in which Meadows arrested a customer at another store.
{¶ 48}