State v. MurleyState v. Murley
Rendered on the 4th day of December, 2009.
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NICK A. SELVAGGIO, Atty. Reg. #0055607, Champaign County Prosecutor‘s Office, 200 North Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
MIRANDA A. WARREN, Atty. Reg. #008113, Feinstein Legal Services Co., L.P.A., 113 North Madriver Street, Bellefontaine, Ohio 43311
Attorney for Defendant-Appellant
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BROGAN, J.
{¶ 1} This case is before the court on Kellee Murley‘s appeal from her conviction and from the trial court‘s decision overruling her motion for a new trial based on newly discovered evidence. We will affirm.
I
{¶ 3} Nevertheless, the county decided to prosecute Murley, and a grand jury indicted her in October 2007 on one count of illegal use of food stamps, one count of theft, and one count of falsification in a theft offense. Murley defended herself by claiming that she believed Champaign County knew that she was employed so she had no motive to lie. Murley said she believed that Clark County, when it transferred her case to Champaign County, sent her entire case file. And because she had told
{¶ 4} After the trial Murley discovered in her possession ten documents that she believes demand a new trial. So, she filed a motion for a new trial based on newly discovered evidence. The trial court denied her motion, concluding that the documents would not change the outcome at a second trial. The court then sentenced Murley to three years of community control.
{¶ 5} Before us now is Murley‘s timely appeal. She assigns one error to her conviction and one error to the trial court‘s decision to overrule her motion for a new trial.
II
First assignment of error
{¶ 6} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN PERMITTING THE PLAINTIFF-APPELLEE TO INTRODUCE INTO THE RECORD THE DEFENDANT-APPELLANT‘S PRIOR CONVICTION OF THEFT.”
{¶ 7} In 2005, Murley got into trouble for making many expensive long-distance phone calls using the Springfield Fire Department‘s telephone, where she was working. She was charged with theft and pled guilty. The first assignment
{¶ 8} Looking first at the admission of the evidence, we find no error because it was Murley herself who, on direct examination, first introduced the evidence of her prior conviction. And later, when the prosecutor sought to introduce a certified copy of the judgment, she stipulated to the conviction. Any error that the court committed, then, Murley invited it to commit. “A party cannot take advantage of an error he invited or induced.” State v. Seiber (1990), 56 Ohio St.3d 4, 17. Even absent Murley‘s introduction and invitation, the evidence of her prior conviction would likely have been admissible under
{¶ 9} Murley‘s contention regarding the prosecutor‘s attempt to use the prior-conviction evidence to show character or action in conformity does not present reversible error. We mentioned already that after Murley testified about her prior conviction, the prosecutor, during his cross examination of her, sought to admit a certified judgment-entry of the conviction. To this, defense counsel objected, and a sidebar conference was held. The prosecutor explained, “my intent in entering that exhibit [the judgment entry] is not prior bad act. Right now I‘m impeaching this witness‘s credibility and this goes to credibility. This is a prior conviction of a crime of dishonesty.” (Tr. 367). Defense counsel in the end agreed to stipulate to Murley‘s prior conviction. The judge then told the jury about the stipulation, and the prosecutor continued his examination. The prosecutor began a line of questioning that culminated in the question that is the focus of Murley‘s argument. Said the prosecutor, “So to resume my questioning, it is true that you have been convicted of a crime of dishonesty?
{¶ 10} “A. I don‘t really understand.
{¶ 11} “Q. What was your conviction for?
{¶ 12} “A. It was for theft.
{¶ 13} “Q. And I think you testified that the victim of that theft was the Springfield Fire Department?
{¶ 14} “A. Yes.
{¶ 16} Defense counsel at once objected. Sustaining the objection, the court instructed the jury to disregard the question.
{¶ 17}
{¶ 18} “Ladies and gentlemen of the jury, the defendant has just introduced evidence of a prior conviction. That evidence is received only for limited purposes not received [sic], and you may not consider it to prove the character of the defendant in order to show that the defendant acted in accordance with that character.
{¶ 19} “If you find that the defendant has been convicted of this conduct, you may consider that evidence only for the purposes of testing the defendant‘s credibility or believability and the weight to be given to defendant‘s testimony. It cannot be considered for any other purpose.”
{¶ 20} (Tr. 342-343). Later, before placing the case in the jury‘s hands, the court repeated this limiting instruction. Hearing the limiting instruction twice and the instruction to disregard the prosecutor‘s inappropriate question, the jury was
{¶ 21} This is not the first time we have declined to reverse in such a situation. In State v. Owings, Montgomery App. No. 21429, 2006-Ohio-4281, the trial court gave a limiting instruction very similar to the one given by the trial court here. Rejecting the defendant‘s argument that the prosecutor improperly used the prior-conviction evidence, we said that “[the] instruction ensured that the jury would use the prior convictions solely for testing the credibility of the witness, which is an acceptable use under
{¶ 22} The first assignment of error is overruled.
Second assignment of error
{¶ 23} “THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THE DEFENDANT-APPELLANT A NEW TRIAL, PURSUANT TO CRIMINAL RULE 33(A)(6).”
{¶ 24} After the trial, Murley discovered that she possessed ten documents that, she believes, show that she is honest and trustworthy. Based on these documents, she filed a motion for new trial under
{¶ 25} The decision about whether to grant a new trial is placed within the discretion of the trial court, and we review the court‘s decision only for abuse of discretion. State v. Matthews (1998), 81 Ohio St.3d 375, 378; State v. Schiebel (1990), 55 Ohio St.3d 71, at paragraph one of the syllabus (“A motion for new trial pursuant to
{¶ 26} We have said that “[i]n order to prevail on a motion for a new trial based on newly discovered evidence pursuant to
{¶ 27} Murley‘s defense at trial was in essence that she had no motive to lie to Champaign County. She told Clark County in November 2006 that she was employed at Cambridge Home Healthcare. And she believed that Clark County, in transferring her case, would send this information to Champaign County. She simply misunderstood the questions regarding her employment and income. The glitch in her defense, however, is that, while Murley did tell Clark County of this job in November, at that time she was not earning a paycheck because she was on maternity leave. Clark County based her assistance on the fact that, although technically employed, she was not earning an income. Murley was obligated to tell Clark County when she returned to work, but she failed to do so after she returned to gainful employment there in January 2007. In her testimony at trial, Murley admitted to this. Kim Smith, Murley‘s caseworker in Clark County, also testified that Murley did not tell her that she had returned to work. Why Murley did not tell is controverted. Betsy Kite, a Champaign County supervisor, testified that Murley told her that she did not tell Clark County because, not being sure how much money she
{¶ 28} Two of the newly discovered documents, however, could remove the glitch from her defense because they suggest that Murley did in fact tell Clark County she had returned to work. One document is a Clark County employment verification form. It was signed by a manager at Cambridge Home Healthcare on February 18, 2007, and it was signed by Murley, according to the date beside her signature, on February 16, 2008. Murley claims that she mistakenly wrote “2008” and should have written “2007,” the actual year, she claims, in which she signed it. The form states that she began working for Cambridge on August 8, 2006, and states that Murley is currently employed there earning $9.00 per hour. The other document is a fax-transmission receipt that Murley claims proves that she faxed the verification form to Clark County. The receipt shows that a document was faxed on February 24, 2007. According to the receipt‘s header, the document was sent from an
{¶ 29} These two documents raise several issues. First, they contradict Kim Smith‘s testimony that Clark County did not know Murley was back to work. More important, however, the documents contradict Murley‘s own admission that she did not tell Clark County she had returned to work. At trial, Murley never said that she faxed this employment verification form to Clark County, she never even hinted that she told Clark County sometime in early 2007 that she had returned to work. As we noted above, she testified that she did not tell Clark County because no one had told her she needed to. Second, when Murley signed the verification form remains a live issue. The trial court notes the dispute over the date on the form, saying that the state contends that Murley in fact signed the document in 2008, like she wrote, not 2007, like she now claims. The court did not resolve the issue but simply assumed, “arguendo,” that Murley was correct. Third, while the fax transmission receipt is supposed to be proof that Murley sent the form to Clark County, there is no way to link the two documents based on internal evidence. That is, it is simply not possible to conclude, looking only at the two documents, that the receipt was printed after the employment verification form was faxed. The receipt does not identify the document that was faxed.
{¶ 31} Upon reviewing the documents, we agree with the trial court. While the remaining documents suggest that Murley may not have hid her employment from Clark County in 2006, her offenses were against Champaign County in 2007. None of these documents suggest that she was honest and truthful with Champaign County concerning her employment at Cambridge Home Healthcare. Thus we need not review the remaining documents in any more detail.
{¶ 32} “[T]he task for the trial judge is to determine whether it is likely that the jury would have reached a different verdict if it had considered the newly discovered
{¶ 33} The second assignment of error is overruled.
III
{¶ 34} Having overruled both assignments of error, the judgment of the trial court is Affirmed. . . . . . . . . . . . . .
DONOVAN, P.J., and FROELICH, J., concur.
Copies mailed to:
Nick A. Selvaggio
Miranda A. Warren
Hon. Roger B. Wilson