2004 Ohio 4016 | Ohio Ct. App. | 2004
{¶ 2} It is undisputed that on October 15, 2002, Jackson shot his mother, Donna Levan ("Levan"), with a sawed-off twelve-gauge shotgun. The shooting occurred in the parking lot of Levan's place of employment, the Heartland of Marysville Nursing and Rehabilitation Center, in Union County, Ohio. There were no witnesses to the shooting. Following the shooting, Jackson drove away from the scene, but he was shortly thereafter pulled over and arrested by a Union County Sheriff's deputy. Levan died nine days after the shooting.
{¶ 3} On October 24, 2002, following Levan's death, Jackson was indicted and charged with one count of Aggravated Murder, in violation of R.C.
{¶ 4} Pertinent to this appeal, Jackson entered written pleas of not guilty and not guilty by reason of insanity to the charge of aggravated murder. See Crim.R. 11(A). Jackson was deemed competent to stand trial by the court-appointed psychiatrist and the matter was set for a jury trial.
{¶ 5} On June 26, 2003, the jury returned a verdict finding Jackson guilty on all charges. Jackson was sentenced to consecutive prison terms of three (3) years for the firearm specification and twenty (20) years for aggravated murder. Jackson was also sentenced to one (1) year in prison for unlawful possession of dangerous ordnance, to be served concurrently with the aggravated murder conviction. In aggregate, Jackson was sentenced to twenty-three (23) years in prison.
{¶ 6} Jackson now appeals the judgment of the trial court and sets forth one assignment of error for our review.
ASIGNMENT OF ERROR NO. I A criminal defendant's right to a fair trial is violated whenthe State gratuitously and repeatedly presents gruesome images ofa crime scene designed solely to inflame the passions of thejury. (Exhibits 8, 9, 38, 39, 42, 43, 44, 45, 46, 47, 48).
{¶ 7} In this assignment of error, Jackson asserts the trial court erred by admitting eleven photographs (state's exhibits 8, 9, 38, 39, 42, 43, 44, 45, 46, 47, 48) into evidence. Jackson maintains that because the cause of Levan's death was known and because there was sufficient witness and doctor testimony regarding Levan's injuries, that the photographs were not probative of the charge of aggravated murder, i.e., that he acted with "prior calculation and design" when he shot and killed Levan. See R.C.
{¶ 8} Despite Jackson's assertion, the record indicates that exhibits 44, 45, 46, and 47 were not admitted into evidence and were not published to the jury. Jackson's assignment of error will therefore be limited to determining the admissibility of the photographic exhibits numbers 8, 9, 38, 39, 42, 43, and 48. We will review these exhibits under two separate analysis. Defense counsel did not object to exhibits 8, 9, 38, 39, accordingly, a review thereof will be conducted using a plain error standard of review. See Crim.R. 52(B). We, will however, begin with a review of exhibits 42, 43, and 48 which were objected to by defense counsel and, accordingly, will be reviewed under an abuse of discretion standard.
{¶ 9} It is well settled that the admission of photographs is left to the discretion of the trial court. State v. Smith,
{¶ 10} Exhibits 42, 43, and 48 are autopsy photographs and depict a close-up view of Levan's injuries. Although these particular photographs are graphic, they were the only autopsy photographs of Levan's injuries admitted by the trial court. In fact, the trial court denied the state's attempt to submit four other autopsy photographs into evidence. For the reasons which following, we find that the trial court did not abuse its discretion in admitting these exhibits into evidence.
{¶ 11} First, it was necessary for the state to prove each element of the offense of aggravated murder beyond a reasonable doubt because Jackson entered written pleas of not guilty by reason of insanity and not guilty to the charge of aggravated murder. R.C.
{¶ 12} Second, "[a]lthough a trial court may reject a photograph, otherwise admissible, due to its inflammatory nature * * * the mere fact that a photograph is gruesome or horrendous is not sufficient to render it per se inadmissible." Gaither,
supra, citing State v. Maurer (1984),
{¶ 13} Last, even if Jackson had stipulated to the fact that he caused the death of Levan, the Ohio Supreme Court has held that "[t]he fact that appellant stipulated the cause of death does not automatically render * * * photographs inadmissible."State v. Maurer (1984),
{¶ 14} We find that on balance, the total probative value of exhibits 42, 43, and 48 were not outweighed by the danger of prejudicial effect upon Jackson. Accordingly, the trial court did not abuse its discretion in admitting them into evidence.
{¶ 15} As to exhibits 8, 9, 38 and 39, because defense counsel did not object to the admission of these photographs, allegations of their admissibility were not properly preserved for appeal and are waived. State v. Wogenstahl (1996),
{¶ 16} We recognize plain error "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Landrum (1990),
{¶ 17} Exhibits 38 and 39 depict Levan lying in the parking lot immediately following the shooting. Levan's injuries from the shotgun are readily apparent in the photographs. Again, because the state had the burden of proving each element of aggravated murder, the photographs of the crime scene and the injuries sustained by Levan immediately following the shooting are probative of Jackson's purpose and design to cause the death of Levan.
{¶ 18} After a careful review of exhibits 8, 9, 38, and 39, we find neither that these photographs are unfairly prejudicial nor that their admission created an error or obvious defect in the trial proceedings. Moreover, because of the overwhelming evidence against Jackson, the admission of exhibits 8, 9, 38, and 39 into evidence were not likely to have ultimately swayed the jury or affected the outcome of the trial. Jackson's assignment of error as to exhibits 8, 9, 38 and 39, therefore, does not pass a plain error analysis.
{¶ 19} Jackson's assignment of error as to all eleven exhibits is, therefore, overruled.2 Appellee's Cross Assignment of Error
{¶ 20} Within its brief to this court, the state asserts the following "cross assignment of error":
The trial court erred in sentencing the defendant to `twenty years' imprisonment upon conviction of aggravated murder, when the law requires a minimum sentence of life imprisonment with parole eligibility after serving twenty years.
{¶ 21} The state, however, failed to file a "notice of appeal." We, therefore, cannot address the state's "cross-assignment of error". App. R. 3(C)(1) provides that "a person who intends to defend a judgment or order against an appeal taken by an appellant and who also seeks to change the judgment or order * * * shall file a notice of cross appeal within the time allowed by App. R. 4." Where an appellee intends to defend a judgment appealed but does not seek to change the judgment a notice of cross appeal is not required, but rather the appellee can merely assert a "cross-assignment" of error. See App. R. 3(C)(2). In the case sub judice, the state seeks to remand the judgment of the trial court for re-sentencing. Pursuant to App. R. (3)(C)(1), the state was required to file a notice of cross appeal, but failed to do so. Accordingly, the state's cross-assignment of error must be struck. See U.S.Fidelity Guaranty Co. v. Inter-City Products Corp (Aug. 14, 1998), 7th Dist. No. 95-C0-75.
{¶ 22} Despite this procedural oversight by the state, we are, nonetheless, obligated to sua sponte address whether the trial court imposed a sentence upon Jackson that is consistent with sentencing guidelines as set forth in Chapter 2929 of the Revised Code. R.C.
On the conviction for Aggravated Murder it is hereby ORDERED that Defendant shall serve a term of three (3) years in prison on the firearm specification, after which Defendant shall serve aterm of twenty (20) years consecutive to the firearm specification for Aggravated Murder, and pay the costs of prosecution, including costs of indigent counsel representation. Emphasis added.
{¶ 23} The sentence imposed by the trial court is clearly contrary to R.C.
Having found no error prejudicial to appellant herein, in the particulars assigned and argued, we affirm the judgment of conviction of the trial court and vacate the sentence imposed by the trial court, and remand the case for re-sentencing consistent with this opinion.
Judgment affirmed in part; vacated in part; and causeremanded. Shaw, P.J., and Bryant, J., concur.
(A) Exclusion mandatory: Although relevant, evidence is notadmissible if its probative value is substantially outweighed bythe danger of unfair prejudice, of confusion of the issues, or ofmisleading the jury. (B) Exclusion discretionary: Although relevant, evidence maybe excluded if its probative value is substantially outweighed byconsiderations of undue delay, or needless presentation ofcumulative evidence.
