State v. LieserState v. Lieser
For Plaintiff-Appellee
JOHN D. FERRERO Prosecuting Attorney Stark County, Ohio
By: RENEE M. WATSON Assistant Prosecuting Attorney 110 Central Plaza, South Suite 510 Canton, OH 44702
For Defendant-Appellant
GREGORY L. GOLUB 1340 Market Avenue, North Suite 1 Canton, OH 44714
Delaney, J.
{¶1} Defendant-Appellant, Eric William Lieser, appeals his conviction and sentence for robbery, a second degree felony in violation of
{¶2} On October 16, 2007, the Stark County Grand Jury indicted Appellant on one count of robbery, in violation of
{¶3} Appellant was arraigned on October 19, 2007 and he pleaded not guilty to the charge. On November 19, 2007, Appellant filed a motion for determination of his mental competence. The trial court ordered an evaluation of Appellant‘s competence and evaluation of his mental condition at the time of the offense. On November 16, 2006, Appellant was in an automobile accident wherein he suffered a traumatic brain injury. He also had a history of substance abuse, including alcohol and drugs. The trial court, upon the receipt of the results of the examination, found Appellant incompetent to
{¶4} Three months later, the trial court held a hearing to determine Appellant‘s competence to stand trial. Heartland Behavioral Healthcare submitted a competency restoration report to the trial court. Appellee stipulated to the report, but Appellant objected to the “contents” of the report. The trial court overruled Appellant‘s objection and the trial court admitted the report. The trial court then found Appellant competent to stand trial.
{¶5} On March 7, 2008, Appellant changed his plea from “not guilty” to “not guilty by reason of insanity.”
{¶6} Appellant then waived his right to trial by jury and stipulated to the facts of the robbery offense. On August 18, 2008, he proceeded to a trial to the court only on the affirmative defense of not guilty by reason of insanity. Following the presentation of witnesses and arguments to the trial court, the trial court found Appellant guilty of robbery, as set forth in
{¶7} It is from this conviction and sentence Appellant now appeals. Appellant raises three Assignments of Error:
{¶8} “I. THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS UNDER THE OHIO AND U. S. CONSTITUTIONS BECAUSE THE INDICTMENT FAILED TO CHARGE A MENS REA ELEMENT OF THE OFFENSE OF ROBBERY.
{¶9} “II. THE TRIAL COURT‘S FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶10} “III. THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS UNDER THE OHIO AND U.S. CONSTITUTIONS BECAUSE THE TRIAL COURT IMPROPERLY ADMITTED THE EXPERT REPORT WHEN IT FOUND THE DEFENDANT COMPETENT TO STAND TRIAL.”
I.
{¶11} Appellant argues in his first Assignment of Error that the indictment in this case failed to charge all the essential elements of the offense of robber and resulted in a lack of notice to him of the mens rea required to commit the offense. He further argues this defect permeated the entire criminal proceeding, therefore resulting in a structural error. We disagree.
{¶12} Appellant‘s argument concerns the application of State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, (“Colon I“) to his indictment for robbery in violation of
{¶13} “No person, in attempting or committing a theft offense * * * shall do any of the following: * * *
{¶14} “(2) Inflict, attempt to inflict, or threaten to inflict physical harm.”
{¶15} This Court recently discussed the application of Colon I to an indictment for
{¶16} ”
{¶17} Appellant argues that because the indictment lacked the necessary mental element of recklessness resulting in a defective indictment that led to multiple errors at trial, we should apply a structural-error analysis to the defective indictment. As this Court noted in State v. Vance, Ashland App. No. 2007-COA-035, 2008-Ohio-4763, the Ohio Supreme Court reconsidered Colon I in State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169 (“Colon II“).
{¶18} “In Colon, the Ohio Supreme Court held that an indictment for robbery in violation of
{¶19} “‘Applying structural-error analysis to a defective indictment is appropriate only in rare cases, such as Colon I, in which multiple errors at the trial follow the defective indictment. In Colon I, the error in the indictment led to errors that “permeate[d] the trial from beginning to end and put into question the reliability of the
{¶20} “‘As we stated in Colon I, the defect in the defendant‘s indictment was not the only error that had occurred: the defective indictment resulted in several other violations of the defendant‘s rights. 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, ¶ 29. In Colon I, we concluded that there was no evidence to show that the defendant had notice that recklessness was an element of the crime of robbery, nor was there evidence that the state argued that the defendant‘s conduct was reckless. Id. at ¶ 30, 885 N.E.2d 917. Further, the trial court did not include recklessness as an element of the crime when it instructed the jury. Id. at ¶ 31, 885 N.E.2d 917. In closing argument, the prosecuting attorney treated robbery as a strict-liability offense. Id.’ Colon II at ¶6.” Vance, supra at ¶51-53.
{¶21} Appellee does not dispute the application of Colon I to the present case, but argues that according to Colon II, this Court should utilize a plain-error analysis under
{¶22} First, Appellant stipulated to the facts of the indictment. The case proceeded to a bench trial only on Appellant‘s affirmative defense of not guilty by reason of insanity. Second, the trial court stated in its judgment entry issued on August 22, 2008 that it “found that the State of Ohio proved beyond a reasonable doubt all of the essential elements of the offense of Robbery, as set forth in
{¶23} A reviewing court must presume that the trial court applied the law correctly. State v. Coombs (1985), 18 Ohio St.3d 123, 125, 480 N.E.2d 414 citing State v. Eubank (1979), 60 Ohio St.2d 183, 398 N.E.2d 567. We presume the trial court was cognizant of Colon I and the judge duly considered the evidence in light of Colon I, as the Ohio Supreme Court decided Colon I on April 9, 2008 and the trial to the court in the present case occurred on August 18, 2008. Accordingly, this Court may analyze the error in this case pursuant to the
{¶24}
{¶25} Under the circumstances of this case, where the trial court determined Appellant‘s guilt or innocence pursuant to the necessary elements of
{¶26} Appellant‘s first Assignment of Error is overruled.
II.
{¶27} Appellant argues in his second Assignment of Error his conviction for robbery was against the sufficiency and the manifest weight of the evidence. Appellant‘s arguments relate to the lack of evidence regarding the requisite mental culpability of recklessness required for a crime of robbery. We disagree.
{¶28} When reviewing a claim of sufficiency of the evidence, an appellate court‘s role is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. Contrary to a manifest weight argument, a sufficiency analysis raises a question of law and does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶29} Conversely, when analyzing a manifest weight claim, this court sits as a “thirteenth juror” and in reviewing the entire record, “weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed.” State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, 548, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
{¶30} Appellant argues that while he stipulated to the facts of the offense, those stipulated facts did not include evidence regarding Appellant‘s mental culpability at the time he committed the offense. Appellee concedes that neither the indictment nor the stipulation contained the culpable mental state of recklessness. Accordingly, Appellant states that Appellee was unable to prove every essential element of the case.
{¶31} A person acts recklessly “when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result.”
{¶32} In the present case, the trial before the court concerned only Appellant‘s affirmative defense of not guilty by reason of insanity. The parties presented expert testimony regarding whether Appellant was insane at the time he committed the offense. During the testimony, the experts discussed Appellant‘s mental state at the
{¶33} The mental state of “knowingly” is a higher standard than “recklessly.” Further, “[i]n some instances, evidence bearing on the issue of insanity may also be relevant in determining whether the required mens rea was present.” State v. Mackert (Jan. 13, 1977), Franklin App. No. 76-AP-428
{¶34} As stated above, a reviewing court presumes the trial court applied the law correctly. Our review of the record, including the stipulations, shows there was sufficient evidence to support Appellant‘s conviction and his conviction was not against the manifest weight of the evidence.
{¶35} Appellant‘s second Assignment of Error is overruled.
III.
{¶36} In Appellant‘s third Assignment of Error, Appellant argues that at Appellant‘s competency hearing on March 3, 2008, the trial court improperly admitted the competency restoration report submitted by Heartland Behavioral Healthcare. The improperly admitted report, Appellant argues, constitutes hearsay, which is not admissible under any exception.
{¶37} After the trial court ordered Appellant to Heartland Behavioral Healthcare for purposes of restoring Appellant to competency, the trial court also ordered Heartland Behavioral Healthcare to submit a report to the trial court pursuant to
{¶38} Heartland Behavioral Healthcare submitted its report on December 21, 2007, indicating Appellant was restored to competency. The trial court held a competency hearing on March 3, 2008. At the hearing, Appellee stipulated to the written report of Appellant‘s evaluation, but Appellant objected to the contents of the report. There was no testimony regarding the report. Over Appellant‘s objection, the trial court accepted the results of the contents in the written report and found that Appellant was restored to competency. (Mar. 3, 2008 Competency Hrg. T. at 4-5).
{¶39} Appellant argues the trial court‘s admission of the report was error for two reasons. First, Appellant contends that pursuant to
{¶40} “The prosecutor and defense counsel may submit evidence on the issue of the defendant‘s competence to stand trial. A written report of the evaluation of the defendant may be admitted into evidence at the hearing by stipulation, but, if either the prosecution or defense objects to its admission, the report may be admitted under sections 2317.36 to 2317.38 of the Revised Code or any other applicable statute or rule.”
{¶41}
{¶42} “A written report or finding of facts prepared by an expert who is not a party to the cause, nor an employee of a party, except for the purpose of making such report or finding, nor financially interested in the result of the controversy, and
{¶43} Appellant states the trial court had no legal authority to admit and consider the report without supporting testimony. Appellee does not dispute this contention, but instead notes that Appellant only objected to the contents of the report, not its admissibility. Furthermore, the record reflects that Appellant did not request testimony from the doctor who prepared the report nor voice any concern regarding Appellant‘s ability to assist in this defense or his ability to understand the nature of the proceedings against him.
{¶44} Even assuming Appellant‘s objection to the contents of the Heartland Behavioral Healthcare report could be construed as a specific objection to admissibility; we find the admission of the report is not reversible error. Harmless errors are to be disregarded and the erroneous admission of evidence is not reversible unless it affects a substantial right that prejudices the defendant. See
{¶45} Our review of the record reveals no indication that Appellant was unable to understand the nature of the proceedings or to assist his counsel in his defense. His trial counsel did not advise the trial court that Appellant exhibited any signs of
{¶46} Secondly, Appellant argues the admission of the report implicates the prohibition in Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct.1354, that testimonial statements of a witness who does not appear at trial may not be admitted or used against a criminal defendant unless the declarant is unavailable to testify and the defendant has had a prior opportunity for cross-examination.
{¶47} A competency hearing pursuant to
{¶48} Accordingly, Appellant‘s third Assignment of Error is overruled.
{¶49} The judgment of the Stark County Court of Common Pleas is affirmed.
By Delaney, J.
Hoffman, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
PAD:kgb
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Stark County Court of Common Pleas is affirmed. Costs to Appellant.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE