2008 Ohio 3055 | Ohio Ct. App. | 2008
Lead Opinion
{¶ 2} In March 2007, the Putnam County Grand Jury indicted McCullough for one count of domestic violence in violation of R.C.
{¶ 3} In April 2007, McCullough entered a plea of not guilty.
{¶ 4} In May 2007, McCullough and the State filed a "Stipulation of Facts" stating that McCullough had been previously convicted of domestic violence in violation of R.C.
{¶ 5} Thereafter, the case proceeded to a jury trial. Immediately prior to witness testimony, the trial court stated on the record that the parties had stipulated that McCullough had been previously convicted of domestic violence and *3 abduction, and that the abduction was an offense of violence against a family or household member.
{¶ 6} Additionally, during opening statements, McCullough's counsel made the following statement:
And you might say as one of your fellow jurors asked me, well, why would [the victim] get up here and lie about it, because people have motives, and people have reasons for doing things that are only known to themselves. Let me give you what I believe is the motive in this case. The motive is how do I get rid of [McCullough], how can I make sure that [McCullough] has no contact with my baby from this point on, I'm tired of [McCullough], how must I do this, I must act like a victim, but wait, before I act like a victim, I must prepare, I will make plans to leave and go out of town, I have relatives there, I can tell everyone from out of town how scared I am of [McCullough], I will tell them all the stories of how [McCullough] has abused me in the past.
(Trial Tr., p. 22).
{¶ 7} Thereafter, the following testimony was heard.
{¶ 8} The victim, Sabrina Kistler, testified that she and McCullough began a relationship in April 2005; that, in October 2005, while she was pregnant with their child, McCullough prevented her from leaving their home, dragged her through the street, and then tried to force her into her car; that, around July 2006, he threw a laundry basket at her while she was holding their infant child; that he threatened to kill her if she left him; that he took her keys and locked her car in their garage to prevent her from leaving; that, in October 2006, he pushed her *4 down and held her down by her throat; that he grabbed her throat on several occasions and scratched her; that, after McCullough had grabbed her throat for putting a pan in the wrong cupboard, her grandfather, Richard Knapp, asked her if he had been abusing her and she showed him bruises on her neck; that, on December 14, 2006, McCullough grabbed her throat, pushed her onto the ground, held her down by her neck, and kicked her in the back of the head; and, that she left their home the next day and stayed temporarily at a domestic violence shelter.
{¶ 9} Knapp testified that, over a period of approximately six months beginning in July 2006, the frequency of Kistler's contact with him lessened; that Kistler told him that this was because McCullough was taking her cell phone and locking her car in their garage; that he saw bruises on Kistler and she told him that McCullough had grabbed her throat and threatened to kill her because she had put a pan in the wrong place; and, that, from June 2006 until December 2006, Kistler's personality changed because it seemed she "was highly concerned that if anybody said anything [to McCullough,] * * * [he] would get mad and it would make it worse on her." (Trial Tr., p. 97).
{¶ 10} Lieutenant Mike Schroth of the Ottawa Police Department testified that he had been called to investigate domestic violence incidents between McCullough and Kistler twice; that, in the first incident, McCullough had pushed Kistler and told Lieutenant Schroth that "he was upset because [Kistler] was *5 pregnant and he did not like that at all" (Trial Tr., p. 107); that, in response to the second incident, he went to McCullough's residence with another officer; that he rang the doorbell to the residence, knocked repeatedly, stated that it was the police, and no one answered; that he continued to knock for seven or eight minutes and then looked through the window and saw McCullough sitting in the living room; that he and the other officer continued to knock and yell, but McCullough did not answer the door; that he obtained a search warrant for the residence; that, after obtaining the warrant, he and several other officers knocked and announced their presence both outside and inside the residence, but received no response; that he observed three two-by-four boards screwed to the wall so that the back door to the residence could not be opened; that he located a trap door inside a closet in the residence, opened it, and noticed a fresh foot print in the crawl space below; that the officers repeatedly called into the crawl space and told McCullough to come out; that eventually they called into the crawl space that they were bringing in a canine unit; and, that McCullough then crawled out of the trap door.
{¶ 11} The trial court also gave the following instruction on consciousness of guilt as part of its charge to the jury:
Testimony has been admitted indicating that the Defendant resisted arrest or concealed his whereabouts from law enforcement. You are instructed that resisting arrest or *6 concealing his whereabouts from law enforcement alone does not raise a presumption of guilt, but it may tend to indicate the Defendant's consciousness or awareness of guilt.
If you find that the facts do not support that the defendant resisted arrest or concealed his whereabouts from law enforcement, or if you find that some other motive prompted the Defendant's conduct, or if you are unable to decide what the Defendant's motivation was, then you should not consider this evidence for any purpose. However, if you find that the facts support that the Defendant engaged in such conduct and if you decide that the defendant was motivated by a consciousness or an awareness of guilt, you may, but are not required to, consider that the [sic] evidence in deciding whether the defendant is guilty of the crime charged. You alone will determine what weight, if any, to give to this evidence.
(Trial Tr., pp. 170-71).
{¶ 12} Thereafter, the jury convicted McCullough of domestic violence and the trial court sentenced him to a five-year prison term.
{¶ 13} It is from this judgment that McCullough appeals, presenting the following assignments of error for our review.
THE STIPULATION ENTERED INTO BY THE ATTORNEYS IN THE COURT WAS NOT PROPERLY AGREED TO BY THE DEFENDANT.
TRIAL COURT ERRED IN PERMITTING CRITICALLY DAMAGING HEARSAY TO BE ADMITTED.*7
DEFENDANT-APPELLANT WAS DENIED RIGHT OF COMPETENT AND EFFECTIVE ASSISTANCE OF COUNSEL.
THE TRIAL COURT GAVE IMPROPER INSTRUCTIONS AS PART OF ITS CHARGE TO THE JURY.
{¶ 15} McCullough was convicted of domestic violence in violation of R.C.
A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
* * *
(D)(1) Whoever violates this section is guilty of domestic violence.
* * *
(3) Except as otherwise provided in division (D)(4) of this section, if the offender previously has pleaded guilty to or been convicted of domestic violence, a violation of an existing or former municipal ordinance or law of this or any other state or the United States that is substantially similar to domestic *8 violence, a violation of section
2903.14 ,2909.06 ,2909.07 ,2911.12 ,2911.211 , or2919.22 of the Revised Code if the victim of the violation was a family or household member at the time of the violation, a violation of an existing or former municipal ordinance or law of this or any other state or the United States that is substantially similar to any of those sections if the victim of the violation was a family or household member at the time of the commission of the violation, or any offense of violence if the victim of the offense was a family or household member at the time of the commission of the offense, a violation of division (A) or (B) of this section is a felony of the fourth degree, and a violation of division (C) of this section is a misdemeanor of the second degree.(4) If the offender previously has pleaded guilty to or been convicted of two or more offenses of domestic violence or two or more violations or offenses of the type described in division (D)(3) of this section involving a person who was a family or household member at the time of the violations or offenses, a violation of division (A) or (B) of this section is a felony of the third degree. . .
{¶ 16} In order to prove McCullough's guilt of domestic violence as a felony of the third degree, the State was required to prove his two prior convictions. R.C.
(B)(1) Whenever in any case it is necessary to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar, is sufficient to prove such prior conviction.
{¶ 17} In the present case, the State was not required to meet the requirements of R.C.
1. Defendant was previously convicted of Domestic Violence, in violation of Ohio Revised Code Section
2919.25 (A), in Putman County Court, case number 90CRB00171-1, and was represented by Attorney Michael O'Malley.2. Defendant was previously convicted of Abduction, in violation of Ohio Revised Code Section
2905.02 (A)(1), in Putnam County Common Pleas Court case number 99-CRI-41, and was represented by Attorney Gregory Novak. Defendant's conviction of the offense of Abduction was an offense of violence against a family or household member.
{¶ 18} The trial court read this stipulation, verbatim, to the jury at the beginning of trial. Moreover, in reading this stipulation, the trial court gave the jury a cautionary instruction that they may not consider the evidence of prior convictions to prove McCullough's character. A similar limiting instruction was included in the trial court's final jury instructions.
{¶ 19} The crux of McCullough's argument in this case is that he, as the defendant, had no knowledge of this stipulation. However, the May 3, 2007 stipulation was signed by McCullough, his attorney, and the prosecuting attorney. McCullough goes so far in his brief as to assert that this stipulation was a "decision made in chambers and acknowledged in the courtroom by the respective counsel." (Appellant's Brief 6). This Court cannot help but find that the May 3, 2007 stipulation, signed by McCullough, directly contradicts this assertion. *10
{¶ 20} Moreover, there is a presumption that stipulations are valid, which McCullough would have to overcome to prevail on this argument.
[A] stipulation, once entered into, filed and accepted by the court, is binding upon the parties and is a fact deemed adjudicated for purposes of determining the remaining issues in that case. A party who had agreed to a stipulation cannot unilaterally retract or withdraw it.
In re Avery, 3rd Dist. No. 12-2000-16, 2001-Ohio-2226 citing Horner v. Whitta (March 16, 1994), Seneca App. No. 13-93-33. McCullough himself signed this stipulation, an indication of not only the assent of his counsel, but his own assent to be bound by this stipulation. Morevoer, neither McCullough or his counsel ever objected to any question as to the use of this stipulation in the trial court.
{¶ 21} Finally, McCullough cannot use the aid of hindsight to question the wisdom of stipulating to his prior convictions as trial strategy. The Ohio Supreme Court has previously noted that stipulations as to prior conviction often benefit defendants.
The practice of stipulating a prior conviction generally runs to the benefit of the defendant, as noted by Presiding Judge Milligan in the court of appeals opinion below:
[S]tipulations to prior convictions are widely recognized as a practice which benefits defendants by precluding the State from introducing evidence as to the details of the prior convictions.
State v. Adams (1988),
{¶ 22} In the present case, McCullough's stipulation to his prior conviction kept the State from presenting actual witnesses involved with his prior convictions. Had McCullough not stipulated, the State would have been forced to, and was prepared to, call witnesses to meet the requirements of 2945.75(B)(1). For example, the identification evidence may well have included prior victims of these offenses or, at the very least, police detectives who investigated the cases. McCullough may not now retract his stipulation merely because he was dissatisfied with the outcome at trial.1 Accordingly, McCullough's first assignment of error is overruled.
{¶ 24} Trial courts have broad discretion in determining whether to admit *12
or exclude evidence. Deskins v. Cunningham, 3d Dist. No. 14-05-29,
{¶ 25} "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid. R. 801(C). Evid. R. 801(D)(1)(b) explains that a prior statement of a witness is not hearsay if:
The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * consistent with declarant's testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive[.]
See, generally, State v. Tyler,
{¶ 26} Additionally, "[a]ttacking a victim's credibility during opening statement has been found to constitute sufficient grounds for permitting a prior consistent statement into evidence pursuant to Evid. R. 801(D)(1)(b)." State v. Abdussatar, 8th Dist. No. 86406,
{¶ 27} Here, McCullough's counsel expressly stated in his opening statement that Kistler had fabricated the domestic violence accusation because she wanted to "get rid" of McCullough. Additionally, Kistler testified at trial, was subject to cross-examination concerning the statements, and her testimony was consistent with the statements. Consequently, Knapp's testimony was properly admitted as a prior consistent statement of a witness.
{¶ 28} Accordingly, we overrule McCullough's second assignment of error.
{¶ 30} An ineffective assistance of counsel claim requires proof that trial counsel's performance fell below objective standards of reasonable representation and that the defendant was prejudiced as a result.State v. Bradley (1989),
{¶ 31} Furthermore, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel's actions were not trial strategies prompted by reasonable professional judgment. Strickland v. Washington (1984),
{¶ 32} First, McCullough argues that trial counsel was ineffective for failing to object to Knapp's testimony at trial, which he claims was hearsay. *15 However, as already discussed in the second assignment of error, Knapp's testimony was offered to rebut McCullough's charge that Kistler fabricated the domestic violence accusation, and was properly admitted as a prior consistent statement. Moreover, we note that trial counsel objected numerous times to Knapp's testimony as hearsay. Accordingly, McCullough has failed to demonstrate a reasonable probability that, had trial counsel objected to Knapp's testimony, the outcome of the proceeding would have been different. Thus, trial counsel was not ineffective for failing to object to hearsay testimony at trial.
{¶ 33} Second, McCullough argues that his counsel was ineffective for entering into a stipulation on his behalf. In our disposition of McCullough's first assignment of error, we found that the stipulation to the prior convictions was validly entered, bearing the signatures of counsel, as well as McCullough's own signature.
{¶ 34} Thus, trial counsel's performance cannot be said to have fallen below objective standards of reasonable representation. Additionally, the stipulations appear to have been sound trial strategy. As the Supreme Court of Ohio has stated, "[t]he practice of stipulating a prior conviction generally runs to the benefit of the defendant[.]" State v.Adams (1988),
{¶ 35} Third, McCullough argues that his counsel was ineffective for failing to present an adequate defense on his behalf. However, "[t]he decision whether to call a witness is `within the rubric of trial strategy and will not be second-guessed by a reviewing court.'" In reWalker (Dec. 12, 2005), 3d Dist. Nos. 5-05-22 5-05-23, ¶ 14, quotingState v. Williams,
{¶ 36} Finally, McCullough contends that trial counsel was ineffective for failing to negotiate a plea bargain on his behalf. However, there is no constitutional right to a plea bargain. State v. Williams (1993), *17
{¶ 37} Accordingly, we overrule McCullough's third assignment of error.
{¶ 39} "A reviewing court will not reverse a conviction in a criminal case due to jury instructions unless it is found that the jury instructions amount to prejudicial error." State v. Satta, 3d Dist. No. 9-01-38, 2002-Ohio-5049, ¶ 47, citing State v. DeHass (1967),
{¶ 40} The Supreme Court of Ohio has long held that "[f]light from justice, and its analogous conduct, have always been indicative of a consciousness of guilt * * *[.]" State v. Eaton (1969),
{¶ 41} Here, evidence existed that McCullough refused to answer the door to his residence even after the police announced their presence, boarded up the back door, concealed himself in a crawl space accessible through a trap door in a closet, and refused to come out until the police told him that they would bring in a *19 canine unit. Based on the foregoing, we find that the trial court's instruction on consciousness of guilt was well-supported by the evidence and, thus, proper.
{¶ 42} Accordingly, we overrule McCullough's fourth assignment of error.
{¶ 43} Based on the foregoing, the judgment of the Court of Common Pleas of Putnam County, Ohio convicting him of domestic violence is affirmed.
Judgment Affirmed. PRESTON, J., concurs.
Dissenting Opinion
{¶ 44} I concur with the majority on the second and fourth assignments of error, and in judgment only as to the third assignment of error. However, I dissent as to the first assignment of error.
{¶ 45} In his first assignment of error, McCullough contends that he did not agree to the stipulation of prior convictions his attorney entered into on his behalf. The majority has focused on the limited issue of whether a stipulation is proper in a criminal case. While I have serious concerns as to whether a stipulation is ever permissible in a criminal case, that is not the issue raised here. The essence of McCullough's argument is that the record does not reflect that he knowingly and voluntarily stipulated to his prior convictions. I feel that McCullough's argument *20 presents this Court with an issue of first impression in Ohio: are the procedural safeguards required by Crim. R. 11 for guilty pleas applicable where a defendant stipulates to an element of a criminal offense? In examining this issue, we must consider the goals of Crim. R. 11 as well as the treatment of the issue in other states.
{¶ 46} It is well settled that the State bears the burden of establishing each and every element of a criminal offense beyond a reasonable doubt. In re Avery, 3d Dist. No. 12-2000-16, 2001-Ohio-2226, citing In re Winship (1970),
{¶ 47} Unfortunately, none of the cases cited above raised the specific issue that is raised here by McCullough. Furthermore, each of the cases cited above relies on a line of cases that spring from civil proceedings, not criminal, which seriously undermines the value of that alleged authority in a criminal context. *21
{¶ 48} On the issue of proof of prior convictions, the Ohio Supreme Court recently stated:
When existence of a prior conviction does not simply enhance the penalty but transforms the crime itself by increasing its degree, the prior conviction is an essential element of the crime and must be proved by the state. State v. Allen (1987),
29 Ohio St.3d 53 ,54 ,29 OBR 436 ,506 N.E.2d 199 . Thus, since the three earlier convictions are elements of Brooke's fourth-degree felony, they must be proved beyond a reasonable doubt. State v. Henderson (1979),58 Ohio St.2d 171 ,173 ,12 O.O.3d 177 ,389 N.E.2d 494 .
State v. Brooke,
{¶ 49} Here, McCullough was convicted of domestic violence under R.C.
*22(A) No person shall knowingly cause or attempt to cause physical harm to a family or household member.
* * *
(1) Whoever violates this section is guilty of domestic violence.
(2) Except as otherwise provided in division (D)(3) or (4) of this section, a violation of * * * division (A) * * * of this section is a misdemeanor of the first degree.
(3) * * * [I]f the offender previously has pleaded guilty to or been convicted of domestic violence * * *, a violation of section
2903.14 ,2909.06 ,2909.07 ,2911.12 ,2911.211 , or2919.22 of the Revised Code if the victim of the violation was a family or household member at the time of the violation, * * * or any offense of violence if the victim was a family or household member at the time of the commission of the offense, a violation of division (A) * * * of this section is a felony of the fourth degree[.] * * *(4) If the offender previously has pleaded guilty to or been convicted of two or more offenses of domestic violence or two or more violations or offenses of the type described in division
(D)(3) of this section involving a person who was a family or household member at the time of the violations or offenses, a violation of division (A) * * * of this section is a felony of the third degree[.] * * *
McCullough's offense was classified as a third degree felony pursuant to R.C.
{¶ 50} The United States Supreme Court has held that a guilty plea is tantamount to a waiver of three important federal rights: (1) the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment; (2) the right to trial by jury; and, (3) the right to confront one's accusers. Boykin v. Alabama (1969),
{¶ 51} This Court examined the goals of the Crim. R. 11 procedural safeguards in State v. Scott (1974),
{¶ 52} Although the issue of Crim. R. 11 applicability to stipulations has not been examined by Ohio courts, courts in several other states have found that stipulations entered into in criminal trials are sometimes tantamount to guilty pleas. Consequently, these courts have held that, where a stipulation is tantamount to a guilty plea, safeguards similar to those required by Crim. R. 11 are necessary to ensure that the defendant has a full understanding of the constitutional rights he is waiving. See State v. Yurko (Cal. 1974),
{¶ 53} In Yurko, supra, the Supreme Court of California addressed a situation very similar to McCullough's — whether protections to ensure knowledge and voluntariness were required where a defendant stipulated that he had previous convictions, which increased the penalty of the underlying crime with which he was charged. The Court reasoned that:
Undoubtedly the particular rights waived by an admission of the truth of the allegation of prior convictions are important. Although there is not at stake a question of guilt of a substantive *26 crime, the practical aspects of a finding of prior convictions may well impose upon a defendant additional penalties and sanctions which may be even more severe than those imposed upon a finding of guilt without the defendant having suffered the prior convictions.
* * *
The burden is on the state as in the case of the trial of other factual matters in issue to prove beyond a reasonable doubt those alleged prior convictions challenged by a defendant. Those procedures by which the imposition of such added penalties is to be fixed are thus protected by specific constitutional provisions and it is such protections which, it is urged, cannot be waived except with knowledge and understanding. The waiver of these constitutional protections has been fairly described as the "functional equivalent" of the waivers embodied in a plea of guilty to an independent criminal charge.
* * *
Boykin[, supra,] holds that because of the significant constitutional rights at stake in extracting from an accused a guilty plea a court must exercise the "utmost solicitude" of which it is capable in canvassing the matter with the accused to make sure he has a full understanding of what is being waived. Because of the significant rights at stake in obtaining an admission of the truth of allegations of prior convictions, which rights are often of the same magnitude as in the case of a plea of guilty, courts must exercise a comparable solicitude in extracting an admission of the truth of alleged prior convictions. Although the issue was not before the Supreme Court in Boykin * * *, it is nevertheless manifest that an accused is entitled to be advised of those constitutional rights as in the case of a plea of guilty. The lack of advice of the waivers so to be made, insofar as the record fails to demonstrate otherwise, compels a determination that the waiver was not knowingly and intelligently made.
Yurko,
{¶ 54} I find the Supreme Court of California's reasoning inYurko to be persuasive. As in Yurko, McCullough's stipulation to his prior domestic violence *27
convictions increased the degree of his offense from a first degree misdemeanor to a third degree felony. Accordingly, the maximum possible penalty increased from a one hundred eighty day jail term to a five-year prison term. See R.C.
{¶ 55} Accordingly, before accepting such a stipulation, I would require the trial court to inform the defendant that he is waiving his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers as to the element of the offense to which he is stipulating. Additionally, I would require the trial court to determine that the defendant *28 understands the nature of the charge and the stipulation, the maximum penalty that may be imposed, as well as any penalty enhancement that may be imposed due to a stipulated element, and the effect of the stipulation. Finally, I would require the trial judge to personally address the defendant and determine that he is making the stipulation voluntarily and knowingly.
{¶ 56} Requiring procedural safeguards before a criminal defendant stipulates to an element of an offense will further the goals of Crim. R. 11 by ensuring that every accused enters into such stipulations knowledgeably and voluntarily, and, consequently, reducing waste of judicial resources from attacks on resulting convictions. SeeScott, supra; McCarthy, supra.
{¶ 57} I would further note that the majority suggests that a stipulation of prior convictions is usually in the best interests of a defendant because a failure to stipulate allows the State to introduce evidence as to the underlying facts of a prior conviction, further prejudicing the defendant. However, such is not the case. See State v.Henderson (1979),
{¶ 58} Because there is nothing in the record before this Court which demonstrates that the trial judge properly engaged in discourse with McCullough and advised him of his rights pursuant to Crim. R. 11 and determined that the stipulation was entered into knowingly, intelligently and voluntarily, I would sustain McCullough's first assignment of error. *1