State v. KimbroughState v. Kimbrough
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains Prosecutor Ralph M. Rivera Assistant Prosecutor 21 W. Boardman St., 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant Attorney Scott C. Essad 5815 Market Street, Suite 1 Youngstown, Ohio 44512
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: December 22, 2009
DONOFRIO, J.
{¶1} Defendant-appellant, Djuan Kimbrough, appeals from a Mahoning County Common Pleas Court judgment convicting him of one count of failure to comply with the order or signal of a police officer, after a jury trial, and the sentence that followed.
{¶2} In the late evening hours of May 3, 2008, Youngstown Police Officer Philip Chance stopped a vehicle driven by appellant.
{¶3} According to Officer Chance, he stopped appellant because appellant changed lanes without using a turn signal and the vehicle had expired license plates. Officer Chance testified that when he asked appellant for his driver’s information and proof of insurance appellant stated that he did not have his driver’s information and the vehicle was a rental. Officer Chance asked appellant to exit the vehicle, but appellant stated that he was on federal probation and refused. Officer Chance testified that he became alarmed when appellant reached into the back seat, so he backed away from the vehicle, placed his hand on his gun, and asked appellant to show his hands and not reach into the backseat of the car. Appellant then shifted the car into reverse and backed it up a few feet, whereupon Officer Chance drew his gun. Appellant shifted the vehicle into drive and pulled away, nearly striking Officer Chance in the process.
{¶4} Officer Chance announced appellant’s attempt to flee over the police radio and began to pursue the vehicle in his cruiser. Two other officers joined the chase, which Officer Chance stated involved high speeds and reckless driving by appellant, before it ended at 1310 Bennington Street. Officer Chance testified that appellant exited the vehicle and attempted to run, but that he was able to tackle appellant near the vehicle. A struggle ensued on the ground before Officer Chance and another officer were able to restrain appellant.
{¶5} Appellant recalled the event quite differently. He testified that Officer Chance said that he had pulled him over for speeding and for an expired license plate. He testified that he told the officer that he would call his mother to verify that the car was a rental and reached for his cell phone, at which point Officer Chance
{¶6} A Mahoning County grand jury indicted appellant for felonious assault on a peace officer, a first-degree felony in violation of
{¶7} The case proceeded to a jury trial. The jury returned a verdict of not guilty of felonious assault and guilty of failure to comply with an order of a police officer. After the court read the guilty verdict, it noticed that there were only 11 signatures on the verdict form and asked the bailiff to return the jury to the jury room to complete the form. The jury returned after completing the form and the court read the verdicts. It then polled the jury to verify the verdicts. Each member of the jury verified his or her verdict.
{¶8} The court sentenced appellant to five years in prison and suspended his driver’s license for life.
{¶9} Appellant filed a timely notice of appeal on September 17, 2008.
{¶10} Appellant raises three assignments of error, the first of which states:
{¶11} “THE STATE’S [sic] NEVER RESPONDED TO KIMBROUGH’S MOTION FOR A BILL OF PARTICULARS. THE TRIAL COURT ACKNOWLEDGED THAT NON-RESPONSIVENESS, BUT TOOK NO ACTION TO REMEDY THE SITUATION TO KIMBROUGH’S BENEFIT. THAT WAS ERROR.”
{¶12} In this case, appellant was arraigned on June 17, 2008. On July 28, appellant’s counsel asked to be removed because appellant had filed a grievance
{¶13} Appellant never moved to compel the state to comply with the court’s order to provide a bill of particulars and the case proceeded to trial.
{¶14} Midway through the trial, appellant requested a continuance when issues arose surrounding the indictment, which had to be amended. (Tr. 295-316). This is when appellant first brought up the state’s failure to provide him with a bill of particulars. The trial court denied the requested continuance noting that appellant was well aware of the charges against him and prepared for trial. (Tr. 316).
{¶15} Appellant argues that the trial court should have granted him a continuance when it determined that the state did not provide him with a bill of particulars upon his request. He contends that this was an abuse of the trial court’s discretion.
{¶16} Abuse of discretion is the appropriate standard of review where an appellate court must review the trial court’s imposition of discovery sanctions. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256. Abuse of discretion involves more than error in judgment; it implies the trial court’s attitude was unreasonable, unconscionable, or arbitrary. State v. Adams (1980), 62 Ohio St.2d 151, 157.
{¶17}
{¶18} The limited purpose of a bill of particulars is “to elucidate or particularize the conduct of the accused alleged to constitute the charged offense,” but not “to provide the defendant with specifications of evidence or to serve as a substitute for discovery.” State v. Sellards (1985), 17 Ohio St.3d 169, 171.
{¶20}
{¶21} And if we consider appellant’s late request as timely, the state’s error in failing to provide it was harmless error in this case. Harmless error is one where the outcome of the trial would not have been affected by the error. State v. Breedlove, 7th Dist. No. 05-MA110, 2008-Ohio-1550, at ¶47.
{¶22} Appellant provides no specific reason that the information requested was necessary to prepare his defense. And he makes no claim as to how his defense could have been strengthened or how the outcome of his trial could have been different had the state provided him with a bill of particulars. In fact, appellant did not even take issue with the state’s failure to provide a bill of particulars until midway through the trial when issues arose concerning the wording in the indictment. We cannot conclude that the trial court’s decision to deny a continuance of the half-completed jury trial on the basis of the state’s failure to provide a bill of particulars was an abuse of discretion.
{¶23} Accordingly, appellant’s first assignment of error is without merit.
{¶24} Appellant’s second assignment of error states:
{¶26} The jury concluded their deliberations and returned to the courtroom. The court then read the verdict forms and stated:
{¶27} “Thank you. All right. The jury has found the defendant not guilty of felonious assault. Signed by all 12 members of the jury panel this 11th day of September, 2008. The jury finds the defendant guilty of failure to comply with the order or signal of a police officer. The court will ask that the bailiff return the jury to the jury room together with these verdict forms. They appear not to be complete. Mr. Martino, please take the verdict forms and conduct the jury back to the jury room. Have them look at that and make sure that it’s complete.” (Tr. 445-46).
{¶28} Once the jury returned with the completed verdict forms, the trial court stated:
{¶29} “So that the parties are not in wonder as to what occurred. One of the verdict forms appeared to not be complete by virtue of one of the signatures missing. It appeared otherwise to be completely filled out. So the court viewed that as an oversight and wished to give the jury the opportunity to address it and determine whether or not that was their intention. So upon review of the verdict forms the court accepts the verdicts.” (Tr. 446-47).
{¶30} The court then read the completed verdict forms and polled each member of the jury to ensure that the written forms expressed their intentions and the results of their deliberations. (Tr. 447-450).
{¶31} Appellant argues that the trial court should have polled the jury upon receiving a verdict form that was missing a juror’s signature rather then send them back to the jury room to make sure the form was complete.
{¶32} If a jury returns an incomplete verdict form to the court, the appropriate procedure for the trial court to undertake is to return the jury to the jury room for further deliberation towards the view of reaching a verdict on all matters. State v. Canady (Feb. 5, 1991), 10th Dist. No. 89-AP-715. See also State v. Mauer (1984),
{¶33} In the present case, the trial court likewise applied an appropriate procedure for dealing with an incomplete verdict form. It did not, as appellant states in his brief, order the jury back into deliberation to return a guilty verdict. It asked that the jury return to the jury room to look at the verdict forms and make sure they were complete. In fact, the court specifically ordered the jury “together with these verdict forms” back to the jury room. (Emphasis added.) Thus, by sending back “these” forms, the court apparently sent back all forms, the guilty and not guilty of felonious assault forms along with the guilty and not guilty of failure to comply with an order from a police officer forms. By sending back multiple forms, the trial court gave the jury the opportunity to go over their entire verdict and make sure it was what they intended.
{¶34} Therefore, appellant’s second assignment of error is without merit.
{¶35} The appellant’s third assignment of error states:
{¶36} “THE TRIAL COURT ABUSED ITS DISCRETION BY SUSPENDING KIMBROUGH’S DRIVER’S LICENSE FOR LIFE.”
{¶37} Appellant argues that the lifelong suspension of his driver’s license imposed by the trial court is disproportionate to the crime for which he was convicted. However, appellant acknowledges that the duration of the suspension appears to be within the trial court’s discretion.
{¶38} Our review of felony sentences is now a limited, two-fold approach, as outlined by the recent plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶26. First, we must “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the
{¶39} Appellant was convicted of failure to comply with an order or signal of a police officer pursuant to
{¶40} “In addition to any other sanction imposed for a violation of this section, the court shall impose a class two suspension from the range specified in division (A)(2) of section 4510.02 of the Revised Code. * * * The court shall not grant limited driving privileges to the offender. No judge shall suspend the first three years of suspension under a class two suspension of an offender’s license, permit, or privilege required by this division on any portion of the suspension under a class one suspension of an offender’s license, permit, or privilege required by this division.”
{¶41}
{¶42} “(A) When a court elects or is required to suspend the driver‘s license, commercial driver‘s license, temporary instruction permit, probationary license, or nonresident operating privilege of any offender from a specified suspension class, for each of the following suspension classes, the court shall impose a definite period of suspension from the range specified for the suspension class:
{¶43} “* * *
{¶44} “(2) For a class two suspension, a definite period of three years to life.”
{¶46} Accordingly, appellant’s third assignment of error is without merit.
{¶47} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Vukovich, P.J., concurs.
DeGenaro, J., concurs.