State v. OrtizState v. Ortiz
Alan W. Penamon, Wood County Special Prosecutor, for appellee.
Richard W. Schmidt, for appellant.
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DECISION AND JUDGMENT
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Jose Ortiz, appeals the July 2, 2010 judgment of the Bowling Green Municipal Court which, following a jury trial convicting him of failure to provide child support, sentenced appellant to 180 days in jail and a $1,000 fine. For the reasons set forth herein, we affirm.
{¶ 3} The jury trial commenced on June 22, 2010, and the following evidence was presented. Susan Stein, a case manager at Wood County Child Support Enforcement Agency, testified that she oversees the Support Enforcement Tracking System. Stein stated that from January through November 2009, despite a monthly support order, appellant made no payments.
{¶ 4} The mother of the minor child testified that from January through November 30, 2009, she received no child support payments. During the state‘s rebuttal, the mother testified that her daughter did not want to see appellant because he is mean to her and his girlfriend. Appellant‘s counsel objected to the testimony and the objection was sustained. The mother further stated that appellant was angry with the child and that appellant stated that he would have helped out with school expenses had she visited more often.
{¶ 5} Appellant acknowledged that he did not pay child support during the charged period. Appellant then testified regarding his work and injury history. Appellant testified that in 2007, he installed swimming pools until he was run over by a vehicle. Appellant stated that he was hospitalized for approximately one month with a broken
{¶ 6} Appellant testified that in September 2008, he was able to return to work. Appellant stated that he worked at an apple orchard for approximately three months but that his hand and arms were bothering him. Appellant stated that he then enrolled in truck driving school but that due to a prior eye injury, a detached retina, he was unable to get his Ohio Department of Transportation card.
{¶ 7} Appellant testified that he tried to obtain employment through the Bureau of Rehabilitation and The Source, in Toledo, Ohio, but he was not successful. Appellant also stated that a prior felony conviction, when he was 18, impeded his employment.
{¶ 8} In May 2009, appellant stated that he injured his knee and was referred to an orthopedic surgeon. The pro bono surgery was scheduled for July 3, 2009; however, appellant was jailed at the time for failure to pay child support. The surgery was performed in September 2009. Appellant was not able to complete physical therapy due to his girlfriend‘s serious illness and hospitalization. Appellant stated that in November 2009, he began to see a specialist for tingling and numbness in his arms and hands due to the 2007 auto accident.
{¶ 9} To aid in his defense, appellant subpoenaed medical records; the custodians of the records did not receive notice in time to appear and testify. A letter from a treating physician was admitted into evidence. The court denied admission of medical records’ summaries absent expert testimony.
{¶ 11} Appellant raises five assignments of error for our review:
{¶ 12} “1. The trial court‘s improper admission of hearsay and inflammatory statements denied appellant his right to a fair trial.
{¶ 13} “2. Prosecutorial misconduct during cross-examination of appellant and closing argument deprived appellant of his right to a fair trial.
{¶ 14} “3. The court‘s improper jury instructions violated appellant‘s right to a fair trial.
{¶ 15} “4. Trial counsel provided ineffective assistance in violation of appellant‘s Sixth Amendment rights.
{¶ 16} “5. The decision of the trier of fact against appellant was against the manifest weight of the evidence presented at trial pursuant to Ohio law and the U.S. Constitution.”
{¶ 17} In appellant‘s first assignment of error he contends that the trial court‘s improper admission of certain hearsay and inflammatory statements denied appellant‘s right to a fair trial. The statements were made during the mother‘s testimony. First, the mother testified that the child did not want to see appellant because he was mean. Appellant‘s counsel objected to this as hearsay and speculative; the objection was sustained.
{¶ 19} We first note that the trial court sustained the first objection and instructed the jury to disregard the mother‘s response. A jury is presumed to follow the court‘s instructions, including curative instructions. State v. Garner (1995), 74 Ohio St.3d 49, 59. The record reveals no evidence that the jury failed to follow the trial court‘s instructions.
{¶ 20} As to the remaining testimony, if there was error in its admission it did not rise to the level of plain error, under
{¶ 21} Appellant‘s second assignment of error contends that multiple comments made by the state were inflammatory and prejudicial and rose to the level of prosecutorial misconduct. “The test for prosecutorial misconduct is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the accused.” State v. Eley (1996), 77 Ohio St.3d 174, 187, overruled on other grounds; State v. Lott (1990), 51 Ohio St.3d 160, 165.
{¶ 23} Appellant further contends that the state‘s questioning during the cross-examination of appellant was in error. The questioning related to appellant‘s affirmative defense of inability to pay and was not in error. Appellant‘s second assignment of error is not well-taken.
{¶ 24} In his third assignment of error appellant argues that the trial court‘s improper affirmative defense jury instruction violated appellant‘s right to a fair trial. The court instructed the jury as follows:
{¶ 25} “Affirmative defense. The defense claim he was unable to provide support and provided such support as within the Defendant‘s ability to means affirmative defense verdict.”
{¶ 26} It appears that appellant is arguing that because the transcript language is not verbatim to the wording of the statute or the form jury instructions, the instruction was in error. The state contends that there was merely a transcription error. The relevant portion of the statute,
{¶ 27} “(D) It is an affirmative defense to a charge of failure to provide adequate support under division (A) of this section or a charge of failure to provide support established by a court order under division (B) of this section that the accused was unable
{¶ 28} Ohio Jury Instructions provide the following: “The defendant claims that (he) (she) was unable to provide adequate support, and provided such support as was within the defendant‘s ability and means.” 5 Ohio Jury Instructions (2008), Section 519.21(B), at 34. This instruction mirrors the proposed instruction filed by appellant‘s counsel.
{¶ 29} In addition, the trial transcript reveals that the written jury instructions were given to the jurors during their deliberations. Upon review, we find that even assuming that the court misstated the instruction, the written instructions were provided to the jury and there is no claim that those were erroneous. Appellant‘s third assignment of error is not well-taken.
{¶ 30} In his fourth assignment of error, appellant argues that his trial counsel provided ineffective assistance. Appellant argues that his counsel failed to make proper objections and failed to fully question him regarding his affirmative defense. To prevail on a claim of ineffective assistance of counsel, a defendant must prove two elements: “First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington (1984), 466 U.S. 668, 687. When considering a claim of ineffective assistance of
{¶ 31} Reviewing the trial transcript, appellant‘s counsel made several objections during the course of the trial; many were sustained. The fact that different counsel may have made additional objections does not, alone, rise to the level of ineffective assistance. See State v. Phillips (1995), 74 Ohio St.3d 72 (Debatable trial tactics generally do not constitute ineffective assistance of counsel.). Further, as to appellant‘s affirmative defense, counsel questioned him at length regarding his work and injury history. Appellant‘s fourth assignment of error is not well-taken.
{¶ 32} Appellant‘s fifth and final assignment of error argues that the jury‘s guilty verdict was against the manifest weight of the evidence. In an appeal of a criminal case where it is claimed that a verdict is against the manifest weight of the evidence, an appellate court acts as a “thirteenth juror,” reweighs the evidence, and may disagree with a factfinder‘s conclusions on conflicting testimony. State v. Thompkins (1997), 78 Ohio St.3d 380, 387; State v. Lee, 6th Dist. No. L-06-1384, 2008-Ohio-253, ¶ 12. “The court, 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 and a new trial ordered.” Thompkins at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. Reversals on this ground are granted “only in the exceptional case in which the evidence weighs heavily against the conviction.” Id.
{¶ 34} On consideration whereof, we find that appellant was not prejudiced or prevented from having a fair trial and the judgment of the Bowling Green Municipal Court is affirmed. Pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
JUDGE
Thomas J. Osowik, P.J.
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.