2005 Ohio 6859 | Ohio Ct. App. | 2005
{¶ 2} The charges in this case stem from an incident involving Jones, his ex-girlfriend Alicia Brown, and her new boyfriend Ajelous Kelly on November 22, 2003. Brown had apparently ended her relationship with Jones after she decided to get back together with Kelly, who was the father of one of her children and with whom she had a previous long-term relationship.
{¶ 3} According to Brown, she received a telephone call from Jones at approximately 2:45 a.m. on November 22nd, the day after she had ended their relationship. This phone conversation lasted for approximately one hour, and upset Brown to the point that afterward she immediately contacted a co-worker to discuss obtaining a restraining order against Jones. Jones then called back, at which point Brown disconnected her telephone.
{¶ 4} According to her testimony, Brown awoke later that morning to find Jones standing in the hallway of her home looking into her bedroom. Brown was able to make her way into a bathroom with a telephone, and she called 9-1-1. Thereafter, a struggle ensued between Jones and Kelly, who was staying in Brown's home that night. The struggle lasted several moments, and continued through various rooms of the house. At some point during this struggle Jones obtained a steak knife from a kitchen drawer, which he then wielded at Kelly.
{¶ 5} The police then arrived on the scene, and Jones submitted without apparently offering much resistance. Officer Holman testified that when he arrived on the scene he saw Jones standing next to the refrigerator in the kitchen holding a knife. However, Jones was no longer holding the knife when Holman reached him. Kelly stated that he saw Jones put the knife on top of the refrigerator, and the police did recover a knife from that location.
{¶ 6} Brown then directed the police to a window which Brown indicated Jones had broken through to enter the house. Glass from the window had scattered on a couch positioned below the window and several glass storm panels had been removed. Fingerprints later lifted from one of the panels matched Jones' right middle finger.
{¶ 7} On November 22, 2003 Jones was indicted on one count of burglary in violation of R.C.
{¶ 8} Jones then filed a pro se appeal asserting six assignments of error. Jones' counsel thereafter filed a motion for leave to withdraw as counsel pursuant to Anders v.California (1967),
It was an error of law for the trial court to enter aconviction for the burglary offense contained in count one of theindictment.
The trial court committed an error of law by imposing asentence in violation of the
{¶ 10} These assignments of error focus on Jones' burglary conviction. Jones asserts that based on the jury's verdict he could only have been convicted for a fourth degree burglary conviction because the jury verdict did not specify the degree of the burglary offense. Additionally, he argues that under the United States Supreme Court decision in Blakely v. Washington
(2004),
{¶ 11} Jones first asserts that the jury verdict form does not meet the requirements of R.C.
(A) When the presence of one or more additional elements makesan offense one of more serious degree:
* * *
(2) A guilty verdict shall state either the degree of theoffense of which the offender is found guilty, or that suchadditional element or elements are present. Otherwise, a guiltyverdict constitutes a finding of guilty of the least degree ofthe offense charged.
R.C.
{¶ 12} At the outset, we note that Brown never raised this issue before the trial court, and therefore we will review it only for plain error. State v. Comen (1990),
{¶ 13} In the instant case, the jury verdict form did not specify a degree for burglary. Instead, the verdict provides: "We, the jury, being duly impaneled, sworn and affirmed find the defendant, Prentice Jones, guilty of burglary as charged in count one of the Indictment." Thus, it is clear that the jury verdict form does not meet the express requirements of the R.C.
{¶ 14} However, Ohio courts have consistently held that "substantial compliance" with R.C.
{¶ 15} We find that the jury verdict form substantially complied with R.C.
{¶ 16} Jones' second argument is that, because the jury verdict was sufficient to convict him of only a fourth degree felony, the trial court imposed a sentence based on facts not found by the jury in violation of the Supreme Court's ruling inBlakely. However, because we find that verdict forms were sufficient to convict Jones of a second degree felony, the trial court was permitted to sentence him to the punishment permitted for second degree felonies. Thus, the trial court could sentence Jones to a prison term from two to eight years. R.C.
{¶ 18} Jones' second and third pro se assignments of error assert:
State did not prove beyond a reasonable doubt every essentialelement of burglary, to wit: intent.
Trial court erred when it constructively amended theindictment from R.C.
In these assignment of error, Jones does not claim that there was insufficient evidence to convict him, rather he argues that the trial court's jury instructions were in error and therefore did not require the prosecution to prove all of the elements of R.C.
{¶ 19} First, Jones argues that the instruction on the "purpose" element of R.C.
{¶ 20} However, the "purpose" element in both R.C.
{¶ 21} Next, Jones argues that the language used in the jury instructions "constructively amended" the charges in the indictment and permitted the jury to convict him under R.C.
{¶ 22} The record indicates that Jones did not object to the jury instructions and therefore we will review them only for plain error. State v. Underwood (1983),
{¶ 23} Crim.R. 7(D) permits a trial court to amend an indictment. However, under that rule an indictment may only be amended during trial so long as the name or identity of the offense does not change. See State v. O'Brien (1987),
Before you can find the defendant guilty of burglary, asalleged in count one, you must find beyond a reasonable doubtthat on or about the 22nd day of November, 2003, in Allen County,Ohio, the defendant, Prentice M. Jones, did by force, stealth, ordeception, trespass in an occupied structure or in a separatelysecured or separately occupied portion of an occupied structurethat was a permanent or temporary habitation of any person, whenany person other than an accomplice of the offender was presentor likely to be present, with purpose to commit in the habitationor separately occupied portion thereof, a criminal offense.
{¶ 24} In giving this instruction, the trial court mistakenly merged the elements of R.C.
{¶ 25} These differences make it unlikely that any error affected the outcome of the trial, because the evidence presented overwhelmingly demonstrated that if Jones had committed the offense of burglary, he did so while trespassing in an occupied structure while others were present. There is no question that Brown and Kelly, as well as Brown's children, were in the home at the time Jones trespassed. Therefore, the jury could not have been relying on the portion of the instruction that permitted them to find that others were "likely to be present."
{¶ 26} Additionally, the other jury instructions clarified that the jury had to find that Jones trespassed with the purpose to commit an offense in the type of structure required under R.C.
{¶ 27} Moreover, both R.C.
{¶ 28} Accordingly, based on the foregoing Jones' third prose assignment of error is overruled.
{¶ 29} In his fourth pro se assignment of error, Jones asserts:
Trial court erred by failing to instruct jury on lesserincluded offense and/or offense of an inferior degree, to wit:criminal trespass and disorderly conduct.
Jones argues that the trial court erred by failing to instruct the jury on disorderly conduct and criminal trespass, which he claims are lesser included offenses to assault and burglary, respectively.
{¶ 30} A criminal offense that carries a lesser penalty may be a lesser included offense of another if the greater offense cannot, as statutorily defined, ever be committed without committing the lesser offense and there is some element of the greater offense that is not required to be proven to establish the lesser offense. State v. Barnes,
{¶ 31} We need not determine if disorderly conduct and criminal trespass are lesser included offenses of assault and burglary, respectively. First, the evidence does not reasonably support an acquittal on the assault charge and a conviction for disorderly conduct. As charged in the indictment, assault under R.C.
{¶ 32} Second, the evidence does not reasonably support an acquittal on the burglary charge while allowing for a conviction for criminal trespass. Jones requested a jury instruction on criminal trespass under R.C.
{¶ 33} Accordingly, Jones' fourth pro se assignment of error is overruled.
{¶ 34} Jones' fifth pro se assignment of error asserts:
The jury verdict was against the manifest weight of theevidence.
When reviewing whether the trial court judgment was against the manifest weight of the evidence, an appellate court sits as a "thirteenth juror" and examines the conflicting testimony. Statev. Thompkins (1997),
{¶ 35} In making this determination, the Ohio Supreme Court has outlined eight factors for consideration, which include "whether the evidence was uncontradicted, whether a witness was impeached, what was not proved, that the reviewing court is not required to accept the incredible as true, the certainty of the evidence, the reliability of the evidence, whether a witness' testimony is self-serving, and whether the evidence is vague, uncertain, conflicting, or fragmentary." State v. Apanovitch
(1987),
{¶ 36} In the case sub judice, Jones' case-in-chief consisted entirely of two witnesses, his mother Ernestine Adams and his brother Josiah Mathews, both of whom testified that they were not at Brown's residence in the early morning hours of November 22, 2003. Mathews' testified to the fact that Jones and Brown returned together to the residence Adams, Mathews and Jones shared on the morning of November 21st, the day Brown says she ended her relationship with Jones. Adams testified that she saw Jones return home on the night of the 21st:
I was in the bed when he came in. Then [Jones] was on thephone and went to the bathroom. When he came out I asked him whohe was talking to and he said Alicia. I went back to sleep. Thenext thing I know is I was woke up. Somebody was knocking on mywindow and saying that Prentice was in jail. But, I thought hewas in bed. So, I don't know.
This testimony was apparently presented to show that Jones had gone to bed the night of November 21st, although Adams expressly indicates that she merely thought he had and had no personal knowledge about his whereabouts after she went to sleep.
{¶ 37} Since this was the sole evidence presented on Jones' behalf, we are unable to conclude that the jury clearly lost its way in reviewing the evidence and credibility of the witnesses such that their decision constitutes a miscarriage of justice. The evidence presented by the prosecution was consistent, reliable, and unconflicting, and established all of the elements of burglary and assault. Moreover, the evidence presented by Jones did not conflict with the testimony of what occurred in the early morning hours of November 22nd. Accordingly, we find that Jones' convictions for burglary and assault were not against the manifest weight of the evidence. Jones' fifth pro se assignment of error is overruled.
{¶ 38} Jones' sixth pro se assignment of error asserts:
Appellant was denied effective assistance of counsel.
{¶ 39} This Court has previously addressed the issue of ineffective assistance of counsel at trial and has determined that courts must consider "`whether the accused, under all the circumstances * * * had a fair trial and substantial justice was done.'" State v. Jones (Sept. 27, 2000), Auglaize App. No. 02-00-07, 2000 WL 1420271, at *2 (quoting State v. Calhoun
(1999),
{¶ 40} The Supreme Court of Ohio has adopted the two-part test for determining whether a criminal defendant has been denied the effective assistance of counsel that was outlined inStrickland v. Washington (1984),
{¶ 41} Jones contends that his counsel's failure to object to certain items of testimony constitutes ineffective assistance of counsel. In examining this argument, we must initially note that appellate courts "accord deference to defense counsel's strategic choices made during trial and cannot examine the strategic choices of counsel through hindsight." State v. Perdue (1990), Eighth Dist. App. No. 56535, unreported, 1990 WL 9929, *3 (citingStrickland,
{¶ 42} First, Jones points to counsel's failure to object to police officer testimony "speculating" that Jones put the knife on the refrigerator. However, this testimony was corroborated by Kelly, who testified that he witnessed Jones put the knife on top of the refrigerator when the police announced their presence. Therefore, the failure to object to this testimony, even if it can be considered unreasonable conduct on the part counsel, does not amount to ineffective assistance because there is not a reasonable probability that the outcome of trial would have been different.
{¶ 43} Second, Jones argues that counsel's failure to object to Detective Marik's testimony that "glass was laying on the couch pushed away from the window" amounts to ineffective assistance because Detective Marik admittedly did not examine the scene until several weeks later. However, Detective Marik indicated that he relied on the accounts of Brown, Kelly, and the officers at the scene when making his determination of the point of entry — he returned to the scene later to examine the window, but photographs of the window admitted at trial were taken by the police who arrived at the house on November 22nd. Moreover, although defense counsel did not specifically object to this statement, he did cross-examine Detective Marik on the fact that he did not physically examine the window until February. Therefore, there is no reasonable probability that the outcome of trial would have been different had counsel objected to this statement.
{¶ 44} Finally, Jones argues that counsel was ineffective because he did not object when Brown stated in her testimony that she threatened to call his parole officer — he contends that it was error to permit introduction of evidence or testimony going to his prior criminal history. While he is most likely correct that this statement is inadmissible, there is not a reasonable probability that the outcome of the trial would have been different but for counsel's failure to object. This one statement alluding to Jones' past criminal record was part of Brown's long narrative about their phone call on the night in question; she was testifying that she told him not to come over and that if he did she would call the police. Even had there been an objection to this statement, there was still overwhelming evidence pertaining to the elements of the offenses charged.
{¶ 45} Furthermore, we think the decision not to object to this statement falls into the category of strategic decisions made by counsel in the course of trial. Had counsel objected to the statement, there is a good possibility that he would only have succeeded in further bringing the issue to the jury's attention. Moreover, in light of the fact that this testimony was in regard to collateral matters and did not pertain to the elements of the offenses charged, counsel's failure to object was not so egregious as to fall below an objective standard of reasonableness. See State v. Brown, Logan App. No. 8-02-09, 2002-Ohio-4755, ¶ 51.
{¶ 46} Accordingly, the final assignment of error raised in Jones' pro se brief is overruled. Based on the foregoing, the judgment of the trial court is hereby affirmed.
Judgment affirmed. Cupp, P.J., and Bryant, J., concur.
