STATE OF OHIO, PLAINTIFF-APPELLEE, v. DALE A. JUNOD, DEFENDANT-APPELLANT.
CASE NO. 2-09-03
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
June 15, 2009
2009-Ohio-2817
Appeal from Auglaize County Municipal Court Trial Court No. 08-CRB-279 Judgment Affirmed
John A. Poppe for Appellant
Darren L. Meade for Appellee
ROGERS, J.
{¶1} Defendant-Appellant, Dale Junod, appeals the judgment of the Auglaize County Municipal Court convicting him of assault, sentencing him to a seven-day jail term, and imposing a community control sanction. On appeal, Junod argues that he was denied his constitutional right to a fair trial and due process of law by reason of prosecutorial misconduct, and that the jury verdict was against the manifest weight of the evidence. Based on the following, we affirm the judgment of the trial court.
{¶2} In April 2008, Junod was arrested and charged by complaint with one count of assault in violation of
{¶3} In October 2008, the State filed a motion to revoke Junod’s bond, stating that Junod “flipped Adrian the finger, yelled some profanity, and then
{¶4} In November 2008, the case proceeded to a jury trial, at which Adrian testified that, on April 16, 2008, he went to Junod’s house to help him tear down an old building on his property; that, while helping Junod, he consumed around twelve beers; that Junod also drank beers with him, but he could not remember how many Junod consumed; that, after working with Junod, he went home and had an argument with his wife, Leah Clark, who was upset because he was intoxicated; that the police were called to his house because of the argument, and they decided to take him back to Junod’s house because they were concerned that he might get violent with Leah; that, when he arrived at Junod’s house, Junod told him to go inside and sit down; that while he was there, he consumed another beer and took a couple pills he believed to be Valium or Xanax, given to him by Junod, and Junod drank wine, smoked marijuana, and also took pills that he believed to be Valium or Xanax; that Junod’s nephew, Travis, was also at the house; that, after some time, he called Leah and asked her to meet him at their
{¶5} Adrian continued that he did not take Junod’s “stash”; that he could see Junod’s truck outside the house before he left, and he saw the cane Junod used to beat him and another cane sitting in the front seat of his truck; that the cane he saw in the front seat of Junod’s truck was the same cane that hung in Junod’s house that Junod had shown him before, which contained a concealed blade; that, during the altercation, he did not try to hit or kick Junod, or try to pull a knife on him; that he owns a small pocket knife and a Gerber knife which he keeps in his tackle box, but that he does not own a “quick draw” knife; and, that, although he
{¶6} Leah testified that, on April 16, 2008, Adrian came home from Junod’s house intoxicated; that an argument ensued during which the police were called to the house; that, when the police arrived, they decided to take Adrian back over to Junod’s house in order to allow her and Adrian to calm down, despite the fact that she requested that Adrian not be taken to Junod’s house; that, later in the evening, she agreed to meet Adrian at Bob Harruff’s house to resolve their argument; that, as they were talking in Harruff’s living room, Junod knocked on the door, came into the house, and began hitting Adrian with a cane and accusing him of stealing his “stash”; that both Adrian and Junod were visibly intoxicated during the altercation; that Junod hit Adrian about five or six times with the cane; that Adrian attempted to block the cane with his hands, but he did not attempt to strike Junod or pull out a knife; that when Junod left, he told Adrian that he owed him $200; that, as a result of the altercation, Adrian had a cut above his eye and bruises on his thigh and right leg; that she did not know what Junod meant when he referred to his “stash”; that she had seen Junod smoke marijuana on prior
{¶7} Harruff testified that, on April 16, 2008, he was at home drinking with his friends, Mark and Chrissy, while Adrian and Leah were in the living room; that he had around eighteen beers that night; that, subsequently, Junod knocked on the door, he answered it, and Junod asked if Adrian was at the house; that he then let Junod into the living room, Junod said something to Adrian, and Junod began hitting Adrian with a cane; that Adrian attempted to block the strikes but did not attack Junod; that, although he could not fully see Adrian’s right hand, he did not see him pull out a knife; that, eventually, Mark was able to get Junod outside; and, that Adrian went to the kitchen after the altercation, and not outside or to the door.
{¶8} Sergeant Douglas Burke from the Auglaize County Sherriff’s Office testified that, on April 16, 2008, he was dispatched to speak with Junod about an assault that had taken place; that he and other police officers developed a plan to make contact with Junod because he had been told by the other officers who responded to the scene of the altercation that Junod threatened to “take out” anyone who came onto his property (Id. at 157-158); that he knocked on Junod’s door, but he did not answer; that he looked inside the house to see if he could see anyone, and he noticed a wooden cane in the corner of the living room; that,
{¶9} Deputy Ryan Ahlers from the Auglaize County Sherriff’s Office testified that he and other deputies responded to the Harruff residence to investigate a call about an assault that had taken place; that, upon responding to the residence, he spoke with Adrian, Leah, and Chrissy, and was told that Adrian was attacked by Junod with a cane as Adrian was sitting in the recliner in the living room of the Harruff residence; that Adrian complained of pain from being attacked, including being hit in the leg, testicle, and chest; that he subsequently took photographs of the bruises and marks on Adrian’s body; that Adrian was intoxicated but coherent when he spoke to him; and, that Adrian stated he felt
{¶10} Deputy Ahlers continued that he and the other deputies went to Junod’s house to contact him; that, after unsuccessful attempts to get Junod to open the door, he and the other deputies entered the house and woke Junod up; that, while he was in the house, he observed two canes in the corner of a room; that the deputies confiscated both canes; that, after Junod was arrested and read his Miranda rights, Junod agreed to speak with him; that Junod was intoxicated but coherent during the questioning; that, during the questioning, Junod stated that he went to the Harruff residence to confront Adrian about money that Adrian stole from him, and that he lost control while he was there; that Junod never mentioned that Adrian attacked him with a knife, that he was defending himself from Adrian, that Adrian ever struck him, or that Adrian had stolen his “stash”; that he did not search Adrian to see if he had any money, but Adrian stated that he did not take anything from Junod and voluntarily went into his pockets to show that he did not have anything in them; that he did not notice any large wads of money or pills in Adrian’s pockets; that he took the two confiscated canes to Adrian, and he identified a wooden cane as one Junod used to assault him, and a metal cane as the one that he saw in the truck; and, that Adrian had never mentioned anything to him prior to that identification about a metal cane.
{¶12} Subsequently, Junod testified that, on April 16, 2008, he and his nephew Travis Junod were tearing down a shed on his property when Adrian arrived and asked if there was anything he could do to make some extra money; that he told Adrian he could help him tear down the shed; that Adrian began helping them, and all three drank while they worked; that he had around four beers, and Adrian had around twelve beers; that Adrian left after working and went home; that, subsequently, he received a phone call from a deputy sheriff asking if he could bring Adrian over to his house to “sober[] up” (Id. at 332), to which he agreed; that, when Adrian arrived at his house, he told him to sit on a chair on the porch, and he went back to tearing down the shed; that he told Travis to “try to settle [Adrian] down because he was talking out of his mind” (Id. at 333); that, after some time, Travis came back and told him that Adrian was sitting in the house; that he went back into the house because he did not want Adrian in there by himself, and he saw Adrian walking into walls and knocking over things in the house; and, that he then told Adrian that he needed to leave.
{¶14} Junod further testified that when he first arrived at the Harruff residence, he saw Mark Potter, Chrissy Miller, and Bob Harruff “rolling joints” (Id. at 345); that he did not see Leah in the house; that when Adrian drew the knife, he feared that he might stab him, as Adrian had previously told him stories about how he stabbed other inmates when he was in prison, and he had seen Adrian do a “quick draw” with his knife (Id. at 393); that he never threatened Adrian in any way during the altercation; that Adrian’s testimony that he was smoking marijuana while Adrian was at his house was not true; that he never attempted to contact the police about the money that he believed Adrian had stolen; and, that he only took the wooden cane with him when he went to confront Adrian, leaving the metal one at home.
{¶15} Travis testified that, on April 16, 2008, he was at Junod’s house helping him tear down a shed; that, while they were working, a deputy sheriff dropped Adrian off at the house; that Junod left him to work by himself while he
{¶16} Subsequently, the jury convicted Junod of assault and acquitted him of menacing and vehicular vandalism. The trial court filed a journal entry stating, in part:
These cases proceeded to jury trial on charges of Assault R.C, [sic] 2903.12 A1, Carrying a concealed weapon R.C, [sic] 2923.12 A1, and Menacing R.C. 2903.22 A in Case 2008 CRB 00279. The case also proceeded to jury trial on the charge of Vehicular Vandalism R.C. 2909.09 in case 2008 CRB 281.
At the close of the State’s case the Court dismissed the charge of Carrying a Concealed Weapon holding that the weapon by its very nature was not a concealed weapon.
The remaining counts were presented to the jury which returned a verdict of guilty as to the charge of assault and verdicts of not guilty as to the remaining charges of Menacing and Vehicular Vandalism.
(Nov. 2008 Journal Entry).
{¶18} In January 2009, the trial court filed a judgment entry correcting the November 2008 entry, stating that Junod was convicted of assault under
{¶19} It is from his assault conviction and sentence that Junod appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
THE DEFENDANT’S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW WERE TAKEN AWAY BY PROSECUTORIAL MISCONDUCT.
Assignment of Error No. II
THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶20} Before addressing Junod’s assignments of error, we first note that the trial court failed to correct the December 2008 judgment entry to accurately reflect the proper section of the Revised Code of which Junod was convicted. Although the trial court filed an order correcting the November 2008 judgment entry, the December 2008 entry is the judgment entry from which Junod appeals,
Assignment of Error No. I
{¶21} In his first assignment of error, Junod argues that he was denied his constitutional rights to a fair trial and due process of law as a result of prosecutorial misconduct. Specifically, Junod contends that he was denied a fair trial and due process of law when the State continued to ask leading questions on direct examination despite admonition from the trial court; when the State was permitted to present evidence on his prior intoxication in the presence of sheriff’s deputies; when the trial court allowed the admission of prejudicial hearsay
{¶22} ‘“[T]he test for prosecutorial misconduct is whether the [conduct was] improper and, if so, whether the [conduct] prejudicially affected the accused‘s substantial rights.’” State v. Crisp, 3d Dist. No. 1-05-45, 2006-Ohio-2509, ¶10, quoting State v. Twyford, 94 Ohio St.3d 340, 354-55, 2002-Ohio-894. Consequently, in order to grant a new trial for prosecutorial misconduct, we must not merely find the acts of the prosecutor to be culpable, but we must find that the acts detrimentally affected the fairness of the proceedings. Twyford, 94 Ohio St.3d at 355, citing Smith v. Phillips (1982), 455 U.S. 209, 219.
{¶23} First, Junod asserts that the State’s use of leading questions constituted prosecutorial misconduct and prejudiced his right to a fair trial. There were several instances throughout the trial where the State asked leading questions to its witnesses on direct examination, including asking Adrian if the police were called to his house due to his argument with his wife, how he and his wife decided to resolve their disagreement, and asking about Junod’s threat to him as Junod left the Harruff residence. In all three of these instances, Junod’s trial counsel objected, and the trial court sustained the objection. Even though the use of leading questions is not generally permitted on direct examination pursuant to
{¶24} Secondly, Junod asserts that prejudicial prosecutorial misconduct occurred due to the State’s introduction of evidence on his prior intoxication in the presence of sheriff’s deputies. At trial, the State questioned Sergeant Burke about Junod’s condition when they went into his home to question him. Burke testified that Junod appeared to be intoxicated, and the State asked Burke whether he had previously observed Junod intoxicated, to which Burke responded that he had observed Junod intoxicated on prior occasions. Junod’s trial counsel objected on the grounds that the evidence was not relevant, but the trial court overruled the objection after the State’s explanation that the purpose of the evidence was to bolster the officer’s assessment of Junod’s intoxication based on his prior contact and experience with Junod. The trial court gave Junod’s trial counsel the opportunity to stipulate that Junod was intoxicated that evening to prevent the testimony from being introduced, but his trial counsel refused.
{¶25}
{¶26} Third, Junod contends that prosecutorial misconduct deprived him of a fair trial when the state introduced hearsay testimony through the statements of Deputy Ahlers that Adrian told him that he felt threatened by Junod when Junod told Adrian that “he better have the $200 by tomorrow morning” and that “if anybody went to his residence * * * he would take them out.” (Trial tr., vol. 2, p. 202-203). Junod’s trial counsel properly objected to the testimony, but the trial court overruled the objection and permitted the testimony.
{¶28} Here, Adrian’s statement to Deputy Ahlers was Junod’s own statement being offered against him, and, therefore, the statement was admissible under
Assault:
No person shall knowingly cause or attempt to cause physical harm to another * * *.
R.C. 2903.13(A) .Carrying a Concealed Weapon:
(A) No person shall knowingly carry or have, concealed on the person‘s person or concealed ready at hand, any of the following:
(1) A deadly weapon other than a handgun
R.C. 2923.12(A)(1) .Menacing:
No person shall knowingly cause another to believe that the offender will cause physical harm to the person or property of the other person, * * * or a member of the other person‘s immediate family.
R.C. 2903.22(A) .
{¶30} Here, testimony was presented by Adrian that Junod struck him with3
{¶31} Because we find there to be no prosecutorial misconduct in the State’s use of leading questions, the State’s elicitation of testimony, or the State’s decision to charge Junod with multiple offenses, we also find to be without merit Junod’s argument that this conduct denied him his right to a fair trial.
{¶32} Accordingly, we overrule Junod’s first assignment of error.
Assignment of Error No. II
{¶33} In his second assignment of error, Junod argues that his conviction is against the manifest weight of the evidence. Specifically, he contends that the evidence supports a finding that he sustained his burden of proof on his self defense claim, and, consequently, that he should have been acquitted of the assault charge. We disagree.
{¶35} In reviewing the testimony presented at trial, we find there to be substantial evidence to support Junod’s assault conviction. Not only did Adrian testify to the details of Junod’s assault on him, including that he did not draw a knife or threaten Junod, but Leah also testified to the same details of the assault, also stating that Adrian did not pull out a knife to threaten Junod. Although Adrian and Leah are husband and wife, and, as such, could have a motive to fabricate and corroborate their testimony, such a scenario seems unlikely, as their testimony was also supported by Harruff, who testified that Junod hit Adrian with a cane multiple times, and that he did not see Adrian draw a knife on Junod.
{¶37} In support of his defense, the only evidence presented by Junod that his assault on Adrian was in self-defense was his own testimony that Adrian drew a knife on him when he confronted Adrian about the missing $200. While Junod and Travis both testified to Adrian’s “quick drawing” skills, and Junod testified to Adrian’s propensity for violence, there was no other evidence presented to corroborate Junod’s testimony that the assault was in self-defense, in spite of the fact that four other individuals witnessed the altercation.
{¶38} Accordingly, we overrule Junod’s second assignment of error.
{¶39} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
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