State v. MapleState v. Maple
Dated: March 16, 2011
WHITMORE, Judge.
{¶1} Defendant-Appellant, Sanyale Maple, appeals from her convictions in the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
I
{¶2} During the early morning hours of January 3, 2009, Arturo Vazquez Carnero left a bar in Akron, Ohio along with two women he met at the bar. Carnero offered the women a ride in his car and drove them to a parking lot. After one of the women exited the vehicle, the other woman, later identified as Maple, demanded Carnero‘s money. When Carnero refused to hand over his wallet, a struggle ensued and Maple stabbed Carnero in the hand approximately four to five times with a small knife. Carnero quickly removed the money from his wallet and threw it to the floor of his car. Maple picked up the money and fled the scene. As a result of the incident, Carnero sustained numerous injuries to his hand and sought emergency treatment. After speaking with Carnero and other witnesses from the bar Carnero had visited the night of
{¶3} On January 23, 2009, a grand jury indicted Maple on the following counts: (1) aggravated robbery, in violation of
{¶4} Maple now appeals from her convictions and raises two assignments of error for our review.
II
Assignment of Error Number One
“APPELLANT‘S CONVICTIONS FOR AGGRAVATED ROBBERY AND FELONIOUS ASSAULT WERE ALLIED OFFENSES OF SIMILAR IMPORT AND THE CONVICTIONS MUST MERGE INTO A SINGLE CONVICTION.”
{¶5} In her first assignment of error, Maple argues that the trial court erred by convicting her of both aggravated robbery and felonious assault because the two crimes are allied offenses of similar import. Specifically, she argues that both offenses arose from the same conduct.
{¶6} Recently, the Ohio Supreme Court reevaluated its allied offense jurisprudence and overruled its decision in State v. Rance (1999), 85 Ohio St.3d 632. State v. Johnson, Slip Opinion No. 2010-Ohio-6314. Johnson stemmed from a conflict between the First and Fifth
{¶7} Maple was found guilty of aggravated robbery and felonious assault. Her aggravated robbery conviction required the State to prove that she committed a theft offense with a deadly weapon while her felonious assault conviction required the State to prove either that she knowingly caused Carnero serious physical harm or that she caused him physical harm with a
{¶8} The issue under the particular facts of this case is whether, under
Assignment of Error Number Two
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY IMPROPERLY ADMITTING EVIDENCE THAT WAS BOTH IRRELEVANT AND HEARSAY.”
{¶9} In her second assignment of error, Maple argues that the trial court erred by admitting testimony that was both irrelevant and inadmissible hearsay. Specifically, Maple argues that the court erred by allowing the State to ask her alibi witness an irrelevant question, which was based on hearsay.
{¶10} An appellate court applies an abuse of discretion standard when reviewing a trial court‘s decision to admit evidence over an objection that it is irrelevant. State v. Turner, 9th Dist. No. 24709, 2009-Ohio-6613, at ¶12-19. An abuse of discretion means that the trial court
{¶11} Maple called her brother to testify as an alibi witness at trial. According to Maple‘s brother, Maple was with him when Carnero was victimized. On cross-examination, the State asked Maple‘s brother the following question: “Would it surprise you to learn that your mother told Detective Williams that your sister came home to her house that night?” Maple objected to the State‘s question on the basis of relevance because neither her mother nor Detective Williams had testified as a witness, but the trial court overruled her objection and allowed the question. On appeal, Maple argues, without any analysis or support, that the trial court erred by allowing the State to ask the foregoing question because it was irrelevant. She also argues that the court erred by allowing the question because it contained inadmissible hearsay.
{¶12} To the extent that Maple challenges the State‘s question on the basis of hearsay, Maple did not object on that basis in the court below. The specific objection entered on the record reads as follows: “Objection, Your Honor. Relevance. We haven‘t heard testimony from [Maple‘s mother] or Detective Williams.” Maple did not argue that the State‘s question contained inadmissible hearsay. The basis for her objection was relevancy. “A defendant forfeits appellate review of an alleged error at trial if she fails to contemporaneously object to that error at trial.” State v. McCallum, 9th Dist. No. 08CA0037-M, 2009-Ohio-1424, at ¶19, citing State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, at ¶23;
{¶13} Relevant evidence is evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
III
{¶14} Maple‘s second assignment of error is overruled. As to Maple‘s first assignment of error, the judgment must be reversed and remanded for the application of Johnson. The judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and remanded for further proceedings consistent with the foregoing opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to both parties equally.
BETH WHITMORE
FOR THE COURT
CARR, P. J.
MOORE, J.
CONCUR
APPEARANCES:
KIRK A. MIGDAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.