STATE OF OHIO, Plaintiff-Appellee, - vs - JOHN A. JEVNIKAR, Defendant-Appellant.
CASE NOS. 2016-L-006 and 2016-L-007
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
November 28, 2016
2016-Ohio-8113
DIANE V. GRENDELL, J.
Judgment: Affirmed in part, reversed in part, and remanded.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, John A. Jevnikar, appeals from his conviction and sentence for Assault and Harassment with a Bodily Substance in the Lake County Court of Common Pleas. The issues to be determined by this court are whether reversal is appropriate for failure to give a lesser-included offense jury instruction when there is sufficient evidence to convict a defendant on the charged offense, whether a court properly orders restitution based on the total amount of medical bills without considering
{¶2} On September 14, 2015, in Lake County Case No. 15-CR-558, Jevnikar was indicted by the Lake County Grand Jury for Harassment with a Bodily Substance, a felony of the third degree, in violation of
{¶3} On the same date, in Lake County Case No. 15-CR-662, Jevnikar was indicted by the Lake County Grand Jury for two counts of Harassment with a Bodily Substance, felonies of the third and fifth degree, in violation of
{¶4} A trial was held in 15-CR-558 on October 27, 2015. The following testimony was presented.
{¶5} Marsha Bacon was driving to Giant Eagle when she saw a man tailgating her vehicle. Upon exiting the vehicle, the man, Jevnikar, began cursing at her and acting in an angry manner. She believed this was based on her driving since he said, “It was my turn.” She “ignored him” but as he walked through the door to enter the store,
{¶6} Deputy Michael Zgrebnak went to Jevnikar‘s residence the dаy after the incident with an arrest warrant and learned from his mother that he has AIDS. He then advised Bacon of this fact.
{¶7} On October 29, 2015, the jury found Jevnikar guilty of Assault but not guilty of Harassment with a Bodily Substance. This verdict was memorialized in a November 2, 2015 Judgment Entry.
{¶8} On November 9, 2015, in Case No. 15-CR-662, a Written Plea of Guilty was filed, in which Jevnikar agreed to enter a plea of guilty to a lesser-included offense of Attempted Harassment with a Bоdily Substance, and Assault, felonies of the fourth degree. At the change of plea hearing, the State contended that it would have proven that police suspected Jevnikar of OVI, entered the home where he was staying with his mother‘s consent, and he refused to obey police commands. He subsequently kicked and spit on a police officer. The entry and acceptanсe of the guilty plea were documented in a November 10, 2015 Judgment Entry. The remaining charges were dismissed.
{¶9} A sentencing hearing for both cases was held on December 14, 2015. Jevnikar‘s counsel argued that he had been assaulted on the day of the incident with the police and has little recollection of that interaction. Jevnikar explained that he has little chance of infecting others because he takes his medications. In 15-CR-662, Jevnikar was ordered to serve a term of 17 months in prison for Attempted Harassment with a Bodily Substance and 11 months for Assault, to be served consecutively. For 15-CR-558, the court ordered Jevnikar to serve a term of 150 days in jail, concurrent with the foregoing sentence. He was also ordered to pay restitution in the amount of $13,000 in favor of the victim, Bacon. Judgment Entries werе issued on December 14, 2015, which outlined the foregoing sentences.
{¶10} Jevnikar timely appeals and raises the following assignments of error:
{¶11} “[1.] The defendant-appellant was deprived of his constitutional rights to fair trial and due process when the trial court failed to give a lesser included jury instruction.
{¶12} “[2.] The trial court erred to the prejudice of the defendant-appellant when it ordered him to pay $13,000 in restitution.
{¶13} “[3.] The defendant-appellant‘s constitutional rights to due process and fair trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution were prejudiced by the ineffective assistance of trial counsel.
{¶14} “[4.] The trial court erred when it imposed a twenty-eight month prison sentence where its findings were not supported by the recоrd and contrary to law.”
{¶15} In his first assignment of error, Jevnikar argues that the trial court erred when it did not provide a lesser-included jury instruction of Disorderly Conduct based on
{¶16} Since there was no objection to the jury instructions, we review this assignment for plain error under
{¶17} Pursuant to
{¶18} Disorderly Conduct is a lesser-included offense of Assault. State v. Meyers, 11th Dist. Ashtabula No. 2014-A-0020, 2014-Ohio-5610, ¶ 15. However, a jury instruction on a lesser-included offense “is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a
{¶19} Courts have held that, when a conviction for the charged offense was supported by sufficient evidence, the failure to give a lesser-included offense instruction is harmless, since the result of the proceedings would not have been different but for the lack of the instruction. State v. Hake, 11th Dist. Trumbull No. 2007-T-0091, 2008-Ohio-1332, ¶ 42; State v. Whitman, 11th Dist. Ashtabula No. 2013-A-0031, 2013-Ohio-5822, ¶ 47, citing State v. Smead, 2d Dist. Montgomery No. 10922, 1989 Ohio App. LEXIS 392, 11-13 (Feb. 7, 1989) (“We cannot say the outcome of this case would clearly have been otherwise had the instruction on the lesser included offense been given as there was sufficient evidence to support the conviction on the indicted charge” and the jury “did decide beyond a reasonable doubt that there was sufficient proof of a purpose to deprive.“).
{¶20} Here, the jury convicted Jevnikar of Assault. The evidence overwhelmingly supported the jury‘s verdict. Bacon, the victim, as well as two other witnesses testified that Jevnikar hit her in the throat, by thrusting his arm оut and “clotheslining” her. The video also shows this incident occurring. This resulted in hospital visits and continuing pain for Bacon. There is no reason to believe that the verdict would have been different had a Disorderly Conduct instruction been given. The evidence presented at trial would not have reasonably supported an acquittal, as is necessary to require a lesser-included instruction.
{¶21} The first assignment of error is without merit.
{¶22} In his seсond assignment of error, Jevnikar argues that the court committed plain error in its order of restitution. He first argues that the amount ordered was improper.
{¶23} Jevnikar‘s trial counsel did not raise any error with the award of restitution below. Failure to object to the court‘s order of restitution constitutes a waiver of all error except plain error. State v. Bernadine, 11th Dist. Portage No. 2010-P-0056, 2011-Ohio-4023, ¶ 26.
{¶24} Pursuant to
{¶25} “Prior to imposing a restitution order, a trial court must determine the amount of restitution to a reasonable degree of certainty, ensuring that the amount is supported by competent, credible evidence.” (Citation omittеd.) State v. Jones, 11th Dist. Lake No. 2012-L-072, 2013-Ohio-2616, ¶ 11. “The restitution ordered must ‘bear a reasonable relationship to the actual loss suffered by the victim * * *.” Id., citing State v. Stamper, 12th Dist. Butler No. CA2009-04-115, 2010-Ohio-1939, ¶ 17.
{¶27} In addition, Jevnikar notes that some of the cost of the medical treatment may be covered by insuranсe. A review of Bacon‘s statement accompanying the medical bills indicates that the amount covered by insurance is “in review.” An examination of the limited medical records submitted does not clearly indicate which portion of the expenses may be or has been covered by insurance. It is clear restitution to the victim includes uncovered expenses. The court made no statement on the record to show that it has considered this issue, even though the amount of restitution awarded was the total amount of the bills submitted. The court is required to consider insurance payments made with regard to the victim‘s medical bills prior to ordering restitution and failure to do so requires a remand to consider this issue. State v. Mobley-Melbar, 8th Dist. Cuyahoga No. 92314, 2010-Ohio-3177, ¶ 42.
{¶28} Based on the foregoing, the information contained in the PSI and the aсcompanying medical records submitted by the victim do not justify the amount of the restitution award. We reverse as to this issue for the trial court to reconsider the matter of restitution, and hold a hearing, if necessary, in light of the foregoing analysis.
{¶29} Jevnikar also argues that the court erred in finding that he has the ability to pay the restitution, given that he is unable to work and has AIDS. He argues that it is “unlikely that he can now оr will ever be able to pay a restitution order as large as the one ordered in this case.”
{¶30} Jevnikar emphasizes his inability to pay the “large” restitution order. It is unclear whether he believes he would be able to pay a smaller order. Given that the restitution order is reversed, the amount that he is required to pay may change.
{¶31} Regardless, there is no plain error evident in the trial court‘s dеtermination that Jevnikar has the present and future ability to pay restitution. Pursuant to
{¶32} The trial court judge stated at the hearing and in the Judgment Entry that the court considered Jevnikar‘s ability to pay. The court was aware of Jevnikar‘s health problems and work status through testimony and the PSI report, including that he does work around the house for his mother and that he was “working on a side job” in Akron on the day after the incident at Giant Eagle. When a court “expressly stated it determined the defendant is able to pay or likely to be able to pay restitution,” this indicates that the court adequately considered the defеndant‘s ability to pay. State v. McNaughton, 11th Dist. Lake No. 2011-L-083, 2012-Ohio-1271, ¶ 31. Based on this, the court complied with the requirements to consider Jevinkar‘s ability to pay.
{¶33} The second assignment of error is with merit, to the extent discussed above.
{¶34} In his third assignment of error, Jevnikar argues that trial counsel was ineffective for the reasons outlined in the previous two assignments of error.
{¶35} To prevail on an ineffective assistance of counsel claim, the defendant must prove “(1) that counsel‘s performance fell below an objective standard of reasonableness, and (2) that counsel‘s deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶36} Regarding the amount of restitution, given the analysis and disposition of the second assignment of error, this argument is moot. In re T.C., 8th Dist. Cuyahoga No. 102632, 2015-Ohio-4384, ¶ 19. In аddition, since the trial court complied with the statute in finding that Jevnikar had the ability to pay restitution, trial counsel was not ineffective.
{¶37} Regarding the failure to object to the jury instructions, as described above, a lesser-included instruction was not necessary since there was no reasonable ground for acquittal on the Assault charge and no prejudice to Jevnikar resulted. See Whitman, 2013-Ohio-5822, at ¶ 48 (ineffective assistance claim failed since “no prejudice resulted from the failure to object to the jury instructions given“).
{¶38} The third assignment of error is without merit.
{¶39} In his fourth assignment of error, Jevnikar argues that his sentence is not supported by the record and is contrary to law.
{¶40} “The court hearing an appeal [of a felony sentence] shall review the record, including the findings underlying the sentence or modification given by the sentenсing court.”
{¶41} Where the sentence imposed does “not require the findings that
{¶42} Jevnikar argues that in Case No. 15-CR-662, the court considered facts for which he was not convicted in reaching its sentencing determination.
{¶43} At the sentencing hearing, the trial court stаted, when discussing the harm to victims factor, that an officer had “a steel [taser] probe in [his] thumb * * * as a result of the Defendant thrashing backward at the home.” It also noted that Jevnikar had kicked and spit on an officer, which resulted in the charges he pled guilty to in 15-CR-662.
{¶44} While it is apparent from the change of plea hearing that the convictions in 15-CR-662 were not based on the issue with the taser probe but frоm Jevnikar kicking and spitting on an officer, the court clearly considered all of the facts available to it, including the police reports in the PSI, to determine its sentence. The statement regarding the taser merely acknowledged Jevnikar‘s behavior during the whole course of conduct giving rise to the convictions in 15-CR-662, which included being uncooperative with police, struggling, failing to comply with instructions, and ultimately culminated in the kicking and spitting. The court‘s goal is to “impos[e] an appropriate sentence based upon the seriousness of the crime committed and the character of the defendant,” and “the evidence the court may consider is not confined to the evidence that strictly relates to the conviction offense because the court is no longer concerned, like it was during trial, with the narrow issue of guilt.” (Citations omitted.) State v. Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.); see also State v. Williams, 11th Dist. Lake Nos. 2007-L-131 and 2007-L-137, 2008-Ohio-2122, ¶ 36 (a court‘s sentence is “based upon many contextual factors“). We do not find that the court‘s comment rendered the sentence contrary to law.
{¶45} Jevnikar also argues that the court did not take into consideration mitigating circumstances, including the fact that he had been attacked prior tо the incident with the police in 15-CR-662 and had no recollection of the events giving rise to the charges against him, yet he accepted responsibility and apologized to the police officer.
{¶46} There is nothing in the record to indicate that the court failed to take this into account. The court stated that it considered the required factors for sentencing, including those in
{¶47} The fourth assignment of error is without merit.
{¶48} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Costs to be taxed against the parties equally.
THOMAS R. WRIGHT, J.,
COLLEEN MARY O‘TOOLE, J.,
concur.