State v. McCombsState v. McCombs
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-496822
BEFORE: Cooney, A.J., McMonagle, J., and Boyle, J.
RELEASED: August 13, 2009
JOURNALIZED:
John T. Castele
1310 Rockefeller Building
614 W. Superior Avenue
Cleveland, Ohio 44113
Henry J. Hilow
McGinty, Hilow & Spellacy Co., LPA
614 W. Superior Avenue, Suite 1300
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Debra A. Obed
David Zimmerman
Assistant County Prosecutors
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
COLLEEN CONWAY COONEY, A.J.:
{¶ 2} In May 2007, McCombs was charged in a multi-count indictment. Counts 1 and 2 charged him with the rape of O.P.1 Count 3 charged him with the kidnapping of O.P. Counts 4 and 5 charged him with the sexual battery of O.P. Counts 6 through 8 charged him with the gross sexual imposition of O.P.2 Counts 9 and 10 charged him with tampering with evidence, and Count 11 charged him with dereliction of duty. The matter proceeded to a jury trial, at which the following evidence was adduced.3
{¶ 3} In the early morning hours of April 1, 2007, O.P. and her boyfriend, William Taylor (Taylor), were driving home. They began to argue, and Taylor ordered O.P. out of his car. They were approximately two blocks from their home in Parma when O.P. got out of the car. She was heavily intoxicated, having consumed alcohol with Taylor at a bar that night.
{¶ 4} As O.P. approached their house, she saw Taylor backing out of the driveway with her belongings, so she decided to walk to her mother‘s house. While she was walking to her mother‘s house, O.P. was stopped by a
{¶ 5} McCombs and Dillenbeck followed Toporowych to the friend‘s house where he dropped off O.P. and then left the scene. McCombs and Dillenbeck remained outside while O.P. went into her friend‘s house. O.P. testified that she left the house after ten minutes because her friends were doing drugs and they did not want the police there. She walked to the police car and asked for a ride to her mother‘s house.
{¶ 6} At some point in time, McCombs called another officer, Joseph Mazur (Mazur), and requested the digital camera Mazur carried in his police cruiser. They met across the street from the Parma Justice Center where Mazur gave McCombs the camera. Mazur testified that McCombs
{¶ 7} O.P. testified that as she got into McCombs‘s police cruiser, one of the officers said that they normally take intoxicated girls to jail. O.P. did not want to be arrested because she was on probation. The next thing she knew, they drove behind Padua High School. O.P. testified that she got out of the car and McCombs told her that they were going to take pictures. She claimed that he reminded her that she could go to jail. He told her to take off her clothes and told her how to pose for the pictures. She further testified that he told her to put her clothes back on and perform oral sex on him. O.P. testified that McCombs then drove her back to her friend‘s house, gave her a courtesy card, and instructed her not to tell anyone about what happened. She told Taylor about the incident, however, so he would regret what happened to her as a result of his throwing her out of the car.
{¶ 8} Eight days later, on April 9, 2007, Parma police received a call that a man was beating a woman in a pickup truck. Officer Oliver Simic (Simic) responded to the scene. He testified that Taylor was the man driving the truck and O.P. was the passenger. Taylor‘s truck had struck a light pole. Simic arrested Taylor for driving under the influence and carrying a concealed weapon. After being arrested, Taylor told Simic that he needed to make this go away. Taylor indicated that he had stuff on other
{¶ 9} Simic testified that he reported the allegations to his sergeant, but his sergeant did not seem concerned because it did not involve the current incident. Later that evening, Simic spoke with McCombs and advised him of Taylor‘s allegation. Simic assumed that there would be an investigation if Taylor planned on using the photos as a means to avoid prosecution. Simic returned the courtesy card to McCombs. Simic testified that he was not sure if the incident between McCombs and O.P. had occurred, but he suggested that McCombs get rid of any pictures if they existed.
{¶ 10} Officer Scott Faulisi (Faulisi) testified that approximately on the evening of April 8, 2007, McCombs called him and asked him to retrieve a mini CD from McCombs‘s work locker. Faulisi testified that it was the same type of CD used by the police department for its cameras, but there were no
{¶ 11} The jury found McCombs guilty of both counts of tampering with evidence and not guilty of all remaining charges. The trial court sentenced McCombs to two years in prison on each count, to be served concurrently.
{¶ 12} McCombs now appeals, raising four assignments of error.
Sufficiency of the Evidence
{¶ 13} In the first assignment of error, McCombs argues that the State failed to produce sufficient evidence to sustain his convictions for tampering with evidence.
{¶ 14} The standard of review for the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184, syllabus, which states:
Pursuant to
Crim.R. 29(A) , a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.
See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23, 514 N.E.2d 394; State v. Davis (1988), 49 Ohio App.3d 109, 113, 550 N.E.2d 966.
{¶ 16} On review for sufficiency, courts are to assess not whether the State‘s evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. Id. 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. Jenks at paragraph two of the syllabus.
{¶ 17} In the instant case, McCombs was convicted of two counts of tampering with evidence in violation of
{¶ 18}
(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation * * *.
{¶ 20} However, a review of the record reveals that the State presented sufficient evidence to sustain McCombs‘s tampering with evidence convictions. Mazur testified that on the night of the incident, McCombs asked him to use a police camera. Mazur gave McCombs the camera, but did not inquire as to why the camera was needed. O.P. testified that McCombs used a camera to take nude photos of her on the police cruiser. McCombs also gave O.P. a courtesy card when he dropped her off at her friend‘s house. When Simic arrested Taylor, Taylor attempted to use McCombs‘s courtesy card and the nude photos to avoid the possible charges of driving under the influence and carrying a concealed weapon. Simic reported Taylor‘s allegations to his sergeant and to McCombs. He wanted to give McCombs a heads up because Taylor‘s allegations were serious, and he assumed there would be an investigation if one had not already started.
{¶ 22} Thus, in reviewing the evidence in a light most favorable to the State, we conclude that the jury could have found the essential elements of tampering with evidence beyond a reasonable doubt.
{¶ 23} Accordingly, the first assignment of error is overruled.
Specificity of Indictment
{¶ 24} In the second assignment of error, McCombs argues that the trial court erred by not dismissing the tampering with evidence counts because the State failed to produce evidence that the conduct occurred within the time frame listed in the indictment.
{¶ 25} As this court stated in State v. Yaacov, Cuyahoga App. No. 86674, 2006-Ohio-5321, specificity as to the time and date of an offense is not
{¶ 26} We acknowledge that an exception to this general rule exists when the failure to allege a specific date results in material detriment to the accused‘s ability to fairly defend himself, as where the accused asserts an alibi or claims that he was indisputably elsewhere during part, but not all, of the interval specified. Yaacov, citing State v. Morgan (May 11, 2001), Lucas App. No. L-00-1114, and State v. Sellards (1985), 17 Ohio St.3d 169, 171, 478 N.E.2d 781. See, also, State v. Tesca (1923), 108 Ohio St. 287, 140 N.E. 629.
{¶ 27} McCombs argues that the State failed to set forth with any particularity what evidence he tampered with and when the tampering with evidence allegedly occurred. He contends that his convictions should be reversed, relying on State v. Vitale (1994), 96 Ohio App.3d 695, 645 N.E.2d 1277.
{¶ 29} On appeal, this court found that the trial court committed reversible error in permitting the State to amend the indictment, when the amendment changed the identity of the crime and presented a risk that the defendant was convicted of an offense on evidence that was never presented to the grand jury. Vitale at 701.
{¶ 30} However, Vitale is distinguishable from the instant case. Here, the indictment for tampering with evidence lists the dates of the offenses as April 1, 2007 – April 6, 2007. At trial, the State attempted to amend the indictment regarding the tampering charges, but its motion was denied by the trial court, unlike in Vitale.
{¶ 31} Moreover, the evidence presented at trial revealed that after Simic told McCombs about the incident with Taylor on April 9, 2007, McCombs asked Faulisi to get the CD from his work locker and then
{¶ 32} Thus, we find that the evidence presented at trial provided discernible facts to substantiate the two charges, and unlike Vitale, the identity of the crime in the instant case was not changed.5 Accordingly, McCombs failed to demonstrate how the exact date was critical to his defense, and as a result, he suffered no prejudice.
{¶ 33} Thus, the second assignment of error is overruled.
{¶ 34} In the third assignment of error, McCombs argues that he was prejudiced by the State‘s failure to comply with
{¶ 35} In Brady, the United States Supreme Court held that, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Id. at 87. See, also, State v. Johnston (1988), 39 Ohio St.3d 48, 60, 529 N.E.2d 898. In Ohio, a prosecuting attorney is required, upon motion of the defendant before trial, to disclose to the defendant all known evidence favorable to the defendant and material to either guilt or punishment.
{¶ 36} The Ohio Supreme Court declared that, the key issue in a case where exculpatory evidence is alleged to have been withheld is whether the evidence is material. Johnston at 60. The court noted that such evidence will be deemed material only if there is a reasonable probability that, had
{¶ 37} Moreover, a reviewing court should consider the cumulative effect of all nondisclosures in determining whether reversal is required. Kyles v. Whitley (1995), 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490. Although each bit of omitted evidence standing alone may not be sufficiently material to justify a new trial, the net effect, however, may warrant a new trial. Id. at 434.
{¶ 38}
Upon motion of the defendant before trial the court shall order the prosecuting attorney to disclose to counsel for the defendant all evidence, known or which may become known to the prosecuting attorney, favorable to the defendant and material either to guilt or punishment. The certification and the perpetuation provisions of subsection (B)(1)(e) apply to this subsection.
{¶ 39} In the instant case, McCombs alleges three main violations in which he claims the State failed to turn over exculpatory evidence: statements by officers Dillenbeck and Simic and testimony by Parma Police Captain Robert DeSimone (DeSimone).6 He claims that certain statements
{¶ 40} McCombs‘s third allegation of a discovery violation occurred post-trial, when DeSimone indicated that criminal charges were not going to be pursued against Dillenbeck because he was less culpable than McCombs, and Dillenbeck could testify at trial as a witness. The State maintained, however, that it did not offer the witnesses any deals in exchange for their testimony.
Sentence
{¶ 42} In the fourth assignment of error, McCombs challenges his sentence. He argues that his two-year sentence is contrary to law because it is inconsistent with the principles and purposes of
{¶ 43} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Ohio Supreme Court addressed our standard of review for felony sentences. The Kalish court, in a split decision, declared that in applying State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate courts must apply a two-step approach. Id. at ¶4.8
Step One–Is the Sentence Contrary to Law?
{¶ 45} In the first step of our analysis, we determine whether the sentence is contrary to law as required by
{¶ 46} As the Kalish court noted and as McCombs concedes, post-Foster, trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings and give reasons for imposing maximum, consecutive or more than the minimum sentence. Id. at ¶11; Foster, paragraph seven of the syllabus; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. See, also, State v. Redding, Cuyahoga App. No. 90864, 2008-Ohio-5739; State v. Ali, Cuyahoga App. No. 90301, 2008-Ohio-4449. The Kalish court declared that although Foster eliminated mandatory judicial fact-finding, it left
{¶ 47}
{¶ 49}
{¶ 50} The Kalish court also noted that
{¶ 51} McCombs argues that his sentence is excessive and contrary to law. He contends that he should be sentenced to a lesser term or be placed on probation. We disagree.
Step Two–Did the Trial Court Abuse its Discretion?
{¶ 53} Having satisfied step one, we next consider whether the trial court abused its discretion. Kalish at ¶4, 19. The term abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.
{¶ 54} The trial court indicated that it had put a lot of thought into this matter. The court reviewed McCombs‘s history as a Marine and a police officer, and acknowledged that this incident was an aberration in McCombs‘s behavior. However, the court concluded that, as a police officer, when McCombs broke the chain of custody by destroying the CD, he also broke the criminal justice system. Thus, there is nothing in the record to suggest that the trial court‘s decision was unreasonable, arbitrary or unconscionable.9
{¶ 56} Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
COLLEEN CONWAY COONEY, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., CONCURS;
CHRISTINE T. McMONAGLE, J., CONCURS IN JUDGMENT ONLY