2004 Ohio 2332 | Ohio Ct. App. | 2004
{¶ 2} Appellant's conviction and sentence result from a jury trial that commenced on January 23, 2003. A previous trial was begun on November 12, 2002; a mistrial was declared in that case on November 21, 2002 when the jury was unable to reach a verdict.
{¶ 3} Appellant was indicted for the above-referenced crimes on September 30, 2002. The victim of appellant's crimes was her daughter, one of her six children, who was ten years old at the time of trial ("the child" or "the child victim".) The child testified that on or about July 13, 2002,1 appellant whipped her with an extension cord for failing to properly clean up the house. The beating caused noticeable injury to the child's eye and lip, including bleeding and a discharge from the pupil, but appellant sought no immediate medical treatment for her daughter. The child testified that she has not been able to see out of that eye since the beating and that she had informed appellant and a maternal aunt immediately after the incident that she could not see. After the beating, the child was taken to the residence of appellant's sister, Stephanie Jackson, and she remained there for an extended period of time. The appellant failed to even visit the child until "a couple days later." (Tr. 196.) Both the maternal aunt and a maternal cousin noticed the injury to the child's eye, but they did not seek medical attention for her.
{¶ 4} Dr. Scott Smith of the ophthalmology department at the Cleveland Clinic treated the child victim when she was finally taken to the hospital on July 17, 2002. Trial testimony indicates that the child was only taken to the hospital once the injury to her lip had healed, and she was instructed by appellant to say that she injured her eye "jumping rope" with an extension cord. (Tr. 197.) Dr. Scott operated on her immediately to relieve the internal pressure in the eye caused by bleeding, but it was too late to save her vision. He further testified that, had the child received medical treatment within 48 hours of the injury, her vision could likely have been saved.
{¶ 5} The child's two siblings, a 14-year-old sister and an 11-year-old brother, also testified; they corroborated the events of the day in question as testified to by the child. The brother even testified that appellant hit the child's eye on purpose, but then stated that it may have been an accident. The oldest child testified that appellant first beat the brother and then chased the child victim from room to room, whipping her with the extension cord. She also remembers appellant striking the child victim in the face with a closed fist, which caused the injury to her lip. All three of appellant's children who testified were able to demonstrate the way the appellant held the extension cord, how she went about striking the child victim, and the location in the home where the beating took place.
{¶ 6} Other witnesses for the State included social worker Erica Jenkins, maternal relatives Stephanie Jackson and S.J.,2 and Detective James Butler. Stephanie Jackson and S.J. testified that they remembered nothing about the injury to the child, even though the child testified that Stephanie Jackson supplied her with ice for her eye and "some pills" immediately following the injury. Stephanie Jackson and S.J. had both testified in the previous trial that they were aware of the injury to the child's eye and could describe it in detail.
{¶ 7} At the close of the State's case, the defense moved for a judgment of acquittal, which was denied. Appellant offered no witnesses on her own behalf. She was found guilty on all counts and sentenced to four years on count one and three years on count two, to be served concurrently, and four years on count three, which sentence would be served consecutive to the sentence for counts one and two.
{¶ 8} Appellant now offers eight assignments of error for our review:
{¶ 9} "I. The trial court erred by not instructing the jury that it must unanimously conclude that appellant committed acts falling within one specific section of felonious assault in order to reach a guilty verdict."
{¶ 10} "II. The trial court denied appellant due process of law by failing to dismiss the charges of felonious assault and endangering children because of the insufficiency of the state's evidence."
{¶ 11} "III. The verdicts finding appellant guilty of felonious assault and endangering children are against the manifest weight of the evidence."
{¶ 12} "IV. Appellant was denied effective assistance of counsel in violation of the
{¶ 13} "V. The trial court erred by failing to instruct the jury regarding the proper use of testimony and trial counsel was ineffective in failing to request such an instruction."
{¶ 14} "VI. The trial court erred when it failed to instruct the jury as to permissible corporal punishment and trial counsel was ineffective in failing to request such an instruction."
{¶ 15} "VII. The trial court committed prejudicial error by making improper comments upon the credibility of testimony."
{¶ 16} "VIII. The trial court erred in permitting one witness to comment on the testimony of another witness and thereby entered the contents of statement without entering the statements themselves."
{¶ 18} This court recently addressed the issue of jury unanimity in State v. Mercer, Cuyahoga App. No. 81923, 2003-Ohio-3530. "The prevailing rule in Ohio is that a general unanimity instruction * * * will ensure that the jury is unanimous on the factual basis for a conviction even where the indictment alleges numerous factual bases for liability. Statev. Johnson (1989),
{¶ 19} Appellant argues that the jury should have been instructed that it must unanimously find her guilty of felonious assault, either with or without a deadly weapon. We disagree. The facts of this case are analogous to those in State v. Chappell,
Cuyahoga App. No. 79589, 2002-Ohio-676. There, a conviction for felonious assault was affirmed where "evidence presented through the state's witnesses' testimony was sufficient to support a finding that the serious harm was caused by the defendant" and "the evidence was sufficient to support a finding of guilt under either section of R.C.
{¶ 21} "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 defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979],
{¶ 22} More recently, in State v. Thompkins (1997),
{¶ 23} "With respect to sufficiency of the evidence, `"sufficiency" is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.' Black's Law Dictionary (6 Ed. 1990) 1433. See, also, Crim.R. 29(A) (motion for judgment of acquittal can be granted by the trial court if the evidence is insufficient to sustain a conviction). In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955),
{¶ 24} As mentioned above, appellant was charged with felonious assault, which is defined as "knowingly caus[ing] serious physical harm to another," pursuant to R.C.
{¶ 26} Upon application of the standards enunciated inTibbs, the court in State v. Martin (1983),
{¶ 27} "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence 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."
{¶ 28} In determining whether a judgment of conviction is against the manifest weight of the evidence, this court inState v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442 and 64443, adopted the guidelines set forth in State v. Mattison
(1985),
{¶ 29} The jury did not lose its way in the case at bar. The child victim testified as follows:
{¶ 30} "Q. * * * who hit you with the extension cord?
{¶ 31} "A. My — my mommy.
{¶ 32} "* * *
{¶ 33} "Q. * * * why were you hit with the extension cord, if you know?
{¶ 34} "A. I guess, `cause I didn't clean up the house. (Tr. 194.)
{¶ 35} "* * *
{¶ 36} "Q. * * * what happened immediately after you were hit in the eye?
{¶ 37} "A. I had to clean up. (Tr. 195.)
{¶ 38} "* * *
{¶ 39} "Q. Okay. When did you stop being able to see out of the eye?
{¶ 40} "A. When I got hit in it.
{¶ 41} "Q. Okay. And you haven't seen out of the eye since?
{¶ 42} "A. Nope." (Tr. 196.)
{¶ 43} The child victim's two siblings corroborated this testimony, as did her cousin, S.J. Expert testimony was provided by the child's treating physician, who indicated that the damage to her eye was permanent because of the delay in obtaining medical attention. The trier of fact could have reasonably concluded from this evidence that the State had proved its case beyond a reasonable doubt, and we find that the verdict is not contrary to the manifest weight of the evidence. Appellant's third assignment of error is overruled.
{¶ 45} A defective jury instruction does not rise to the level of plain error unless it can be shown that the outcome of the trial would clearly have been different but for the alleged error. State v. Campbell (1994),
{¶ 46} Appellant alleges in assignments of error four, five and six that trial counsel was ineffective for failing to request jury instructions as to the proper use of trial testimony and as to "permissible corporal punishment," and that the trial court erred in failing to issue such instructions. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984),
{¶ 47} In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner.State v. Smith (1985),
{¶ 48} "When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's
{¶ 49} "Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. `An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison,
{¶ 50} "Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove 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, supra, at 141, 142.
{¶ 51} Therefore, we must first determine whether the jury charge issued by the trial court was in error and prejudicial to the appellant. Appellant first argues that counsel was ineffective for failing to request a separate jury instruction on the proper use of trial testimony. Upon review of the jury charge in its entirety, it appears that the trial court issued adequate instructions regarding the use of trial testimony and the inferences which may or may not be drawn from it. Further, appellant cites to no authority which would require the trial court to give a special instruction regarding the reading of prior testimony into the record pursuant to Evid.R. 801(D)(1)(a). We find no error in the jury charge as given by the trial court.
{¶ 52} Appellant also avers that a jury instruction should have been issued as to "permissible corporal punishment." Appellant was indicted for child endangering under two sections of R.C.
{¶ 53} Appellant was also charged with torturing or cruelly abusing the child, in violation of R.C.
{¶ 54} The trial court was not required to issue a specific instruction regarding corporal punishment; the trial judge correctly instructed the jury on the elements of felonious assault (Tr. 490) and child endangering, as charged (Tr. 495, 6). The terms "serious physical harm," (Tr. 491-2) "deadly weapon," (Tr. 493) "attempt," (Tr. 492) "knowingly," (Tr. 489) "accidental," (Tr. 494) "recklessly," (Tr. 497) "abuse," (Tr. 496) and "substantial risk" (Tr. 496-7) were correctly and adequately defined during the jury charge. The jury was further instructed on the use of direct and indirect evidence, inference, weight of testimony and expert witness testimony. Moreover, this court would be hard pressed to second-guess a jury which concluded that a parent rendering her eight-year-old child partially blind "because [she] didn't clean up the house" is not within the realm of "permissible" corporal punishment. Clearly, as discussed above, a trier of fact could reasonably conclude from the evidence presented and from the instructions given that this was not a case of spanking gone wrong. The jury received complete instructions during the course of the trial; there is nothing in the record to indicate that the jury was confused or misled. See State v. Hawkins (Sept. 7, 1988), Wayne App. No. 2356. Therefore, we find no error in the trial court's jury instructions, nor do we find that the appellant was prejudiced by the court's failure to issue an instruction specific to corporal punishment.
{¶ 55} Because we have determined that there was no error in the court's jury instructions as given, we therefore find that defense counsel's failure to request further instructions had no effect on the outcome of the trial. Defense counsel's performance in this matter was neither flawed nor deficient. Accordingly, appellant's assignments of error four, five and six are hereby overruled.
{¶ 57} These arguments focus on the prior inconsistent statements of two prosecution witnesses. The first step in the analysis then is to determine whether these statements are properly admissible. Evid.R. 801(D) states in pertinent part:
{¶ 58} "A statement is not hearsay if:
{¶ 59} "Prior statement by witness: The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) inconsistent with his testimony, and was given under oath subject to cross-examination by the party against whom the statement is offered and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition * * *."
{¶ 60} Further, Evid.R. 607(A) identifies who may impeach a witness:
{¶ 61} "The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(a) * * *."
{¶ 62} Therefore, where a prior statement was made under oath and in an adversary proceeding, it is admissible for its truth.State v. Riggins (1986),
{¶ 63} In the instant case, the trial court spent a great deal of time, mostly out of the presence of the jury, regarding the two witnesses, whose prior trial testimony was read into the record. The maternal relatives of the child victim, Stephanie Jackson and S.J., were called as State's witnesses, but consistently thwarted attempts at examination and insisted they did not remember the child victim being injured at all. The trial court allowed the reading of their prior testimony after each witness had been subjected to extensive voir dire by the court as well as direct and cross-examination by the parties. Only after each witness repeatedly denied making the prior statements under oath and claimed to have no memory of the events in question was the testimony allowed to be read into the record. Therefore, we find that the witnesses' prior trial testimony was not hearsay and was properly admitted pursuant to Evid.R. 801(D)(1)(a) and 613(B).
{¶ 64} Once we find that the statements in question are admissible, we move on to the appellant's allegations that the trial judge made prejudicial comments regarding the statements. Under Evid.R. 611(A), the trial court must "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. However, a trial judge must remain impartial and avoid making comments that might influence the jury. State v. Boyd (1989),
{¶ 65} In State v. Kay (1967),
{¶ 66} The Ohio Supreme Court set forth five factors for reviewing courts to consider in determining whether a trial judge's actions and remarks were prejudicial: "1) the burden of proof is placed upon the defendant to demonstrate prejudice; 2) it is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for; 3) the remarks are to be considered in light of the circumstances under which they are made; 4) consideration is to be given to their possible effect upon the jury; and 5) to their possible impairment of the effectiveness of counsel."State v. Wade (1978),
{¶ 67} In the instant case, the objectionable comments alleged by the appellant were made during the testimony of Stephanie Jackson, sister to the appellant. Ms. Jackson attempted to testify on an earlier day during the trial, but was unable to continue at that time because she appeared lethargic and drowsy on the stand and "she seemed to be under the influence of some sort of alcohol or drugs." (Tr. 316.) After it became apparent that she was physically unable to continue, the trial court dismissed the jury and inquired of counsel, as well as of the detective who procured Ms. Jackson's appearance pursuant to her subpoena, as to whether Ms. Jackson was "putting an act on or if she [was] really going to sleep here on us or what she's doing, if she's really medicated or intoxicated, but she's clearly in no position to testify, if that's true." (Tr. 315.) These proceedings were held outside the presence of the jury; it was then determined that Ms. Jackson would be allowed to return on the next court day to continue her testimony. When the jury returned, the trial judge gave the following explanation: "Ladies and gentlemen, just for your explanation, the last witness appeared to be sleepy or going to sleep or something and we asked her to come back able to testify Monday morning if she can." (Tr. at 322.) Nothing in this statement indicated a predisposition for or against the witness or the appellant, and we find nothing in this exchange which would prejudice the appellant.
{¶ 68} When Ms. Jackson returned to the stand the following court day, she appeared to be more coherent. She was recalled as a State's witness; the trial court inquired as to her mental status, referring only to whether she was "alert," and making no comments or judgments as to whether she had been under the influence of any drugs. (Tr. at 381.) Ms. Jackson then testified that she did not remember her niece's injury nor did she have any recollection of her previous trial testimony to the contrary. Thereafter, trial court made the following statement to the witness, after holding an off-the-record sidebar with counsel:
{¶ 69} "All right. Now, ma'am, you testified in here in November, and there's a transcript of your testimony given under oath. You sat on that chair, under oath, and you testified that you didn't see what happened to [the child victim's] eye, you were at the store, but when you came back you saw her eye and that it was — you told the jury that it was bloody. And some other testimony. It goes on. Do you remember that, ma'am?" (Tr. 390-1.)
{¶ 70} The trial court then read some of the prior testimony to the witness and asked if she remembered testifying to those statements. When she insisted that she did not remember testifying, the court made the following statements:
{¶ 71} "Ma'am, here's what I'm going to give you the opportunity to do. I'm going to give you the opportunity to testify here now as to what you saw or I'm going to have your testimony read into the record as if it was given today. So if you want to give your testimony now is the time to do it, because one way or the other, it's going to come in. So if this is sometype of misguided effort to help someone, it will not help,because your testimony is going to come in from November." (Tr. at 392-3; emphasis added.)
{¶ 72} At no time during the trial did the trial judge accuse the witness of lying, either during the instant proceeding or in the prior one, nor did his statements interfere with counsel's ability to present a defense. The trial judge did not make any evaluation as to the credibility of any testimony offered by this witness in the presence of the jury. Defense counsel had ample opportunity to cross-examine the witness in both trial proceedings.
{¶ 73} When the trial judge's comments and instructions to the jury are reviewed in their totality, appellant's contention that the single comment regarding the "misguided effort to help someone" prejudiced her defense cannot be sustained. Further, once the witness' prior testimony was read into the record, the trial judge cautioned the jury to "judge it for what it's worth" (Tr. 414), as well as issuing an instruction regarding impeachment of witnesses and prior inconsistent statements when the jury was charged at the conclusion of the trial. (Tr. 504.) Finally, the trial judge issued a curative instruction at the close of the trial: "If, during the course of the trial, this Court said or did anything that you consider an indication of my view on the case, you are instructed to disregard it during your deliberations." (Tr. 509.)
{¶ 74} Therefore, we find that the trial judge's statements to Ms. Jackson in the presence of the jury did not prejudice the appellant, nor did it impair her ability to obtain a fair trial.
{¶ 75} Finally, appellant alleges that the trial court erred in allowing State's witness Detective Butler to testify regarding S.J.'s and Stephanie Jackson's prior statements to police (which were consistent with their original trial testimony). Where the court erroneously admits evidence, but there is remaining overwhelming evidence of the defendant's guilt, the error is considered harmless. State v. Bidinost,
{¶ 76} The judgment is affirmed.
Judgment affirmed.
Kilbane, P.J., and McMonagle, J., concur.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
