State v. JacksonState v. Jackson
Dated: September 16, 2009
WHITMORE, Judge.
{¶1} Defendant-Appellant, David Al Jackson, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.
I
{¶2} On April 13, 2008, Officers Timothy Wypasek and James Donohue ran the license plate of a moving vehicle through their cruiser’s computer. While waiting for their computer to return the search results, the officers followed the vehicle. Officer Wypasek saw the vehicle roll through a stop sign and proceeded to initiate a traffic stop. The driver of the vehicle, later identified as Jackson, refused to stop, and a chase ensued. Subsequently, Jackson slowed the vehicle enough to jump from it and continued running from the officers on foot. Officer Wypasek stopped the cruiser and pursued Jackson while Officer Donohue quickly examined Jackson’s abandoned vehicle for passengers. Once he determined that the vehicle was empty, Officer Donohue also began to run after Jackson.
{¶4} Jackson turned and ran, but other officers had appeared, having responded to Officer Wypasek’s two separate radio calls that shots had been fired. One of the other officers managed to tackle Jackson and Officer Donohue joined him. Jackson continued to struggle as officers attempted to subdue him. Finally, the officers arrested Jackson. They found a loaded 9mm Ruger handgun next to Jackson. They also found a .38 caliber revolver and marijuana in Jackson’s abandoned vehicle.
{¶5} On April 28, 2008, a grand jury indicted Jackson on the following counts: (1) two counts of attempted aggravated murder, one pertaining to Officer Donahue and the other to Officer Wypasek, in violation of
{¶6} Before trial, Jackson pleaded guilty to having weapons while under disability, carrying concealed weapons, failure to comply with the order or signal of a police officer, obstructing official business, possession of marijuana, and reckless operation. The matter proceeded to a jury trial on the remaining counts, and the jury found Jackson guilty on each count. The trial court merged Jackson’s convictions for attempted aggravated murder and felonious assault with regard to each officer so that only the two convictions for the attempted aggravated murder of each officer remained. The court sentenced Jackson to thirty years in prison.
{¶7} Jackson now appeals from the judgment of the court below and raises three assignments of error for our review.
II
Assignment of Error Number One
“FAILURE TO GRANT OR DISPOSE OF PENDING MOTION FOR EXPERT WITNESS[.]” (Sic.)
{¶8} In his first assignment of error, Jackson argues that the trial court erred by not granting his “pending motion for [an] expert witness.” Jackson argues that expert testimony on ballistics could have refuted the State’s assertion that bullet fragments came from his gun.
{¶9} A trial court has the discretion to determine whether expert testimony is warranted. Hudkins v. Stratos, 9th Dist. No. 22188, 2005-Ohio-2155, at ¶10-12; Harrold v.
{¶10} The week before his trial, which commenced on January 12, 2009, Jackson sought a continuance to prepare a ballistics expert and a request for an order granting the payment of the expert’s retainer fee. The trial court never issued a written ruling on Jackson’s motion, and the matter proceeded to trial. Jackson never referred to his outstanding motions or otherwise raised the issue of expert testimony at trial. This Court presumes that the trial court denied Jackson’s motions. State v. Jackson, 9th Dist. Nos. 24463 & 24501, 2009-Ohio-4336, at ¶14 (“[W]hen a trial court fails to issue a ruling on a pretrial motion, this Court presumes that the motion was denied.”).
{¶11} In addition to the continuance he sought the week before trial, Jackson sought a continuance on November 4, 2008 for the purpose of securing a ballistics expert. The trial court granted that continuance and scheduled Jackson’s trial for mid-January. Accordingly, the court had already granted Jackson one continuance for the purpose of securing an expert when he moved for another continuance the week before trial. Moreover, the State only presented limited evidence as to bullet fragments at trial. Both Officers Wypasek and Donohue testified that Jackson fired a total of three shots and Matthew White, a firearm analyst with the Bureau of Criminal Identification and Investigation (“BCI”), testified that the three shell casings officers located in the area matched the 9mm Ruger handgun that Jackson had used. Jackson has not
Assignment of Error Number Two
“ALLOWING A WITNESS TESTIFY WHO WAS NOT IDENTIFIED PRIOR TO HIS TESTIMONY[.]” (Sic.)
{¶12} In his second assignment of error, Jackson argues that the trial court erred by allowing the State to present the testimony of a witness that the State failed to disclose prior to trial. Specifically, Jackson argues that the State should not have been permitted to examine Robert Codgeill, the landlord of the building that two of the bullets Jackson fired struck.
{¶13} The State must provide a defendant with the name of a rebuttal witness only if the State reasonably should have anticipated calling the witness, either during its case-in-chief or on rebuttal. State v. Lorraine (1993), 66 Ohio St.3d 414, 423. See, also,
“[W]hether the defendant requested a continuance; whether the trial court provided a limiting instruction regarding the [] testimony; whether the failure to disclose was willful or inadvertent on the part of the State; and whether defense counsel was surprised by the ultimate disclosure, had the opportunity to voir dire the witness, and engaged in vigorous cross-examination.” Evans at ¶8.
Because a trial court has the discretion to admit or exclude an undisclosed rebuttal witness’ testimony and to impose or forego sanctions as a result of the State’s failure to disclose, this Court reviews such decisions for an abuse of discretion. Id. See, also, State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus (“The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.”). An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore, 5 Ohio St.3d at 219.
{¶14} In his interview with the police, Jackson only admitted to firing one shot on the night in question and claimed to have fired that shot to scare Officer Wypasek away so that he could escape. Jackson denied firing his weapon twice more, as the State charged. Officers were never able to recover the first bullet fired, but found evidence of damage from the second and third bullets to the building in front of which Officer Donohue had been standing. At trial, the defense theorized that the building was situated in a high crime area and that the bullet damage could have been caused at some other time. Near the end of its case-in-chief, the State informed the trial court of its intention to call an undisclosed witness: Codgeill, the landlord of the building. The prosecutor told the trial court that he had contacted Codgeill for the first time during the lunch break in light of the defense’s theory that the damage to Codgeill’s building had occurred at some other time. Jackson objected, arguing that the court should prohibit the State
{¶15} Even if Codgeill should not have been permitted to testify, Jackson cannot demonstrate prejudice as a result of his testimony. See Workman at ¶13. As previously noted, both Officers Wypasek and Donohue testified that Jackson fired his weapon a total of three times, and the three casings recovered from the scene matched Jackson’s gun. This evidence, in conjunction with Jackson’s admission that he did fire one shot (from which a casing was recovered), made Codgeill’s testimony merely corroborative in nature. Because Jackson was not prejudiced as a result of the admission of Codgeill’s testimony, his second assignment of error lacks merit.
Assignment of Error Number Three
“SENTENCING SHOULD HAVE BEEN CONCURRENT IN COUNT 1, 2 AND 7[.]” (Sic.)
{¶16} In his third assignment of error, Jackson argues that the trial court erred by issuing him consecutive sentences for his two attempted aggravated murder convictions and his conviction for failure to comply with an order or signal of a police officer. Specifically, Jackson argues that a defendant cannot be issued consecutive sentences for allied offenses of similar
{¶17} The Double Jeopardy Clause of the United States Constitution, as applied through Section 10, Article I of the Ohio Constitution, prohibits the allocation of multiple punishments for the same offense. State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶10. If two offenses are found to be allied offenses of similar import, such that the same conduct supports each offense, then the sentencing court may not impose a separate punishment for each offense. Id. at ¶11-12. To determine whether two offenses are allied offenses of similar import, a reviewing court must first look to the statutory language of the offenses to determine whether the Generally Assembly plainly and unambiguously intended for the statute(s) to set forth separately punishable offenses. Id. at ¶37-40. If no plain and unambiguous intent emerges from the statutory language, then the court must employ the two-part test set forth in
{¶18}
“(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
“(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
Thus, a defendant may be convicted of two offenses if the offenses are either: “(1) offenses of dissimilar import [or] (2) offenses of similar import committed separately or with a separate animus.” Brown at ¶17, citing State v. Rance (1999), 85 Ohio St.3d 632, 636.
“In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A) , courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but are not required to find an exact alignment of the elements. Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import.” State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, paragraph one of the syllabus.
The second part of
{¶20} The attempt statute provides that “[n]o person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.”
“No person shall purposely cause the death of a law enforcement officer whom the offender knows or has reasonable cause to know is a law enforcement officer when *** [t]he victim, at the time of the commission of the offense, is engaged in the victim’s duties[, or] *** [i]t is the offender’s specific purpose to kill a law enforcement officer.”
R.C. 2903.01(E)(1) -(2).
Consequently, one who purposely engages in conduct that, if successful, would result in aggravated murder, as defined by
{¶21}
{¶22} First, Jackson argues that the trial court erred by not merging his two convictions for attempted aggravated murder because “here there is only one officer” who “was shot at two different times within seconds apart.” Contrary to Jackson’s argument, Jackson was indicted for and the jury convicted him of the attempted aggravated murder of two different officers: Officer Wypasek and Officer Donohue. Both officers pursued Jackson, and the trial testimony and evidence revealed that Jackson first shot at Officer Wypasek and then later at Officer Donohue. Jackson’s argument that his convictions should be merged because only one victim was involved lacks merit.
{¶23} Second, Jackson argues that his convictions for failure to comply with an order or signal of a police officer and for attempted aggravated murder should have merged because his flight from the officers and his later firing at the officers amounted to a continuous course of conduct. Yet, an examination of a defendant’s conduct only becomes relevant after a court reviews the elements of two offenses in the abstract and determines that the commission of one offense will necessarily result in commission of the other. Cabrales at paragraph one of the syllabus. The crimes of attempted aggravated murder and failure to comply with an order or signal of a police officer each contain numerous elements that differ from one another. Compare
{¶24} Jackson’s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
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
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.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
MOORE, P. J.
DICKINSON, J.
CONCUR
THOMAS W. WATKINS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.