STATE OF OHIO, Plaintiff-Appellee, v. JOHN EDWARD PARTIN, Defendant-Appellant.
CASE NO. CA2012-09-189
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
7/1/2013
[Cite as State v. Partin, 2013-Ohio-2858.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2011-12-2100
Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant
OPINION
PIPER, J.
{1} Defendant-appellant, John Edward Partin, appeals his convictions and sentence in the Butler County Court of Common Pleas for single counts of having weapons under disability and obstructing official business.
{2} In the early morning hours of December 10, 2011, the Hamilton, Ohio 911 call center received several complaints about shots being fired in a residential neighborhood. One such call was made by Ferdinand Sneed, who stated that he heard and saw an
{3} Hamilton police cordoned off the neighborhood until the SWAT team appeared on the scene. After SWAT‘s arrival, Partin and the other occupants exited the house and were arrested. Upon questioning, Partin denied having heard or seen any gun fire, and claimed that he was not aware that police were surrounding the house until he exited once SWAT was on the scene. Police conducted a gunshot residue test and determined that Partin‘s test was positive for the existence of gunshot residue on his hands.
{4} Partin was indicted for single counts of having weapons while under disability and obstructing official business. The having weapons while under disability charge was predicated upon Partin‘s past adjudication as a juvenile delinquent for having committed felonious assault on a police officer. Partin pled not-guilty to his current charges, and the matter proceeded to a two-day jury trial.
{5} During the state‘s case-in-chief, Sneed testified that on the night of the incident, he was preparing for bed when he heard shots being fired and saw “a gentleman firing a firearm out of his—out of the kitchen window.” Sneed then testified that the kitchen light was on in his neighbor‘s house and that he could see that “two gentlemen, one being the defendant and then another gentleman who was standing slightly, a little back and to his side” were in the location where the shots had just been fired. Sneed then made an in-court
{6} On cross-examination, defense counsel asked Sneed to read a portion of his police statement, which stated “I could not make out faces. They both had short hair and looked scruffy, but I could not make out features. I called 911.”1 Defense counsel then asked Sneed whether he had seen a photograph of Partin after he made his statement, and Sneed confirmed that he had been shown photographs of the individuals who were in the house by a police officer. At that point, defense counsel requested a bar conference, and moved the trial court for a mistrial because the state had not divulged during discovery that Sneed was shown photographs of the individuals who were in the house on the night of the incident.
{7} The trial court, outside the presence of the jury, considered Partin‘s motion for a mistrial. The state explained that police never told the state about the use of photographs, and that the prosecutor had no idea that Sneed was shown photographs prior to his identification of Partin as the shooter. The trial court then held a hearing, during which the officer who showed the photographs to Sneed was called as a witness and questioned.
{8} Detective Calhoun testified that he only showed the photographs so that Sneed could identify the emblem on the shirt worn by the shooter. Detective Calhoun testified that because Sneed had told him that he was unable to identify faces, the photographs were being shown “just to see if the logo that he was describing was the one on the shirt.” Detective Calhoun stated that he did not ask Sneed to identify the shooter‘s face, only the logo from the shirt the shooter was wearing. Therefore, Detective Calhoun did not consider the showing of photographs to Sneed to be a photographic line-up that needed to be shared with the prosecutor.
{9} On cross-examination, Detective Calhoun admitted that he had not used a blind administrator to help show the photographs to Sneed, did not include any photographs of non-suspects, and that he did not put the pictures in any type of folder before showing them to Sneed. Defense counsel then argued to the trial court that the photographic identification process used by Detective Calhoun was in violation of Ohio‘s statute that sets forth proper identification procedures.
{10} The trial court overruled the motion for a mistrial, and instead gave defense counsel the opportunity to call Detective Calhoun in the presence of the jury so that the jury could hear more details specific as to how Sneed was able to identify Partin as the shooter. Defense counsel declined to call Detective Calhoun, and did not otherwise request a continuance or a separate hearing on a motion to suppress Sneed‘s identification, and instead continued with the trial after noting his objection to the trial court‘s ruling.
{12} Assignment of Error No. 1:
{13} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT AND ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT‘S MOTION FOR A MISTRIAL.
{14} Partin argues in his first assignment of error that the trial court abused its discretion when it denied his motion for a mistrial.
{15} “A mistrial should not be ordered merely because of some error or irregularity at trial.” State v. Sidibeh, 192 Ohio App.3d 256, 270, 2011-Ohio-712, ¶ 44 (10th Dist.). Instead, “mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible.” State v. Garner, 74 Ohio St.3d 49, 59 (1995). A trial court‘s decision to deny a motion for a mistrial is within the sound discretion of the trial court. State v. Gilbert, 12th Dist. No. CA2010-09-240, 2011-Ohio-4340, ¶ 83. An abuse of discretion connotes more than an error in law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. State v. Barnes, 94 Ohio St.3d 21, 23 (2002). “An appellate court will not disturb the exercise of this discretion absent a showing that the accused has suffered material prejudice.” State v. Blankenship, 102 Ohio App.3d 534, 549 (12th Dist.1995).
{16} After reviewing the record, we conclude Partin was not denied a fair trial and did not suffer material prejudice, thus the trial court did not abuse its discretion by denying Partin‘s motion for a mistrial.
{18} While the police most assuredly should have shared the information with the state that Sneed‘s identification of Partin as the shooter came after he was shown photographs of the suspects, we refuse to find that a mistrial was warranted. Partin, knowing that Sneed was going to and did identify him in court, cross-examined Sneed with the statement that Sneed gave the police regarding his inability to distinguish faces on the night of the incident. The jury, therefore, was made aware of the fact that only hours after the incident, Sneed told police that he was unable to identify the shooter by his face and was only able to identify the emblem on the shooter‘s shirt. Defense counsel declined to call Detective Calhoun, even though doing so would have drawn out further testimony that Sneed was unable to identify Partin‘s face, and that Sneed only made the identification after seeing the photographs of the suspects. Nonetheless, and despite Detective Calhoun not testifying during Partin‘s defense, the jury was aware of the circumstances of Sneed‘s identification of Partin and of Sneed‘s statement to police in which he clearly indicated that he could not make out faces on the night of the incident.
{19} Moreover, Partin was not deprived a fair trial, nor did he suffer material prejudice, because there was other evidence introduced at trial that supported Sneed‘s identification of Partin as the shooter. Sneed testified that he was able to identify which
{20} The jury was free to infer that Sneed‘s identification was due little weight because he never saw the shooter‘s face, and was not basing the identification on having seen Partin‘s face. However, the jury could have also given great weight to Sneed‘s testimony regarding the large red emblem on Partin‘s shirt, as well as the difference in body types between Partin and the other person who was standing near him on the night of the incident.2 The jury was shown the same photographs that Sneed was shown when he gave his statement, and could have deduced from those photographs that Partin is the only individual from the house who had a large red emblem on his shirt, and was larger than any
{21} Nor can we say that a mistrial was the proper means for addressing Detective Calhoun‘s mistake.3 Detective Calhoun admitted during his testimony that, in hind sight, he should have informed the state of his showing the photographs to Sneed. Had he done so, the state could have shared that information with Partin during discovery. However, as we have previously discussed, a mistrial should not be ordered merely because of some error or irregularity at trial, especially where that error could be rectified through several possible curative measures.
{22} As recently stated by the Ohio Supreme Court, parties to a trial should make an attempt to complete the trial procedure in the event of some discovery error without the trial court employing the strictest remedy available. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966. In Darmond, the court noted that “a continuance should be ordered if it is feasible and would allow for an opportunity to minimize any surprise or prejudice caused by the discovery violation.” Id. at ¶ 40.
{23} The error that occurred at Partin‘s trial could have been cured by means other than a mistrial, such as moving for a hearing on a motion to suppress, requesting a
{24} For example, the Tenth District Court of Appeals discussed how a continuance and a reevaluation of defense strategy can cure an improper photographic lineup procedure. State v. Sidibeh, 192 Ohio App.3d 256, 271, 2011-Ohio-712 (10th Dist.). In Sidibeh, the prosecutor made reference in its opening statement to a photographic array that was not produced to the defense during discovery. The trial court ordered that the jurors were not to consider the photographic array or the state‘s reference to it, but did not otherwise exclude the witness’ testimony regarding her in-court identification of the appellant based upon the photograph array. In affirming the trial court‘s denial of Sidibeh‘s motion for a mistrial, the court stated,
although the court did not strike [the witness‘] in-court identification of appellant, it granted appellant a continuance to allow him time to readjust his defense due to the newly discovered information. This remedy proved to be sufficient because, during the cross-examination of [the witness] and closing argument, defense counsel was able to challenge [the witness] on her identification of appellant as a perpetrator. Specifically, he suggested that [the witness‘] identification was based not on her recognizing appellant from the home invasion, but on her seeing a photograph of appellant on a social-networking website and seeing him in juvenile court.
{25} Partin did not move for any of the curative measures mentioned in Sidibeh, did not employ the curative measure suggested by the trial court, and did not pursue measures that were available to him upon request. Partin decided instead, to proceed with trial and assumedly argue on appeal that mistrial was the only remedy available. There is no indication in the record that the trial court would not have considered Partin‘s request for a
{26} Assignment of Error No. 2:
{27} THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT PROVIDED A JURY INSTRUCTION THAT INCLUDED AN INCORRECT AND MISLEADING STATEMENT OF LAW.
{28} Assignment of Error No. 3:
{29} APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, WHICH DENIAL RESULTED IN PREJUDICE.
{30} Partin argues in his second and third assignments of error that the trial court gave an erroneous jury instruction, and that he received ineffective assistance of counsel because his trial counsel failed to object to the jury instruction.
{31} As referenced, Partin‘s trial counsel did not object to the jury instructions. Therefore, we will review the instructions for plain error. According to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” However, “[a]n alleged error does not constitute plain error unless, but for the error, the outcome of the trial clearly would have been otherwise. *** Notice of plain error must be taken with utmost caution, under exceptional circumstances and
{32} A reviewing court may not reverse a conviction in a criminal case due to jury instructions unless “it is clear that the jury instructions constituted prejudicial error.” State v. Brown, 12th Dist. No. CA2008-12-049, 2009-Ohio-3933, ¶ 6, citing State v. Adams, 62 Ohio St.2d 151, 154 (1980). In order to determine whether an erroneous jury instruction was prejudicial, a reviewing court must examine the jury instructions as a whole. State v. Harry, 12th Dist. No. CA2008-01-013, 2008-Ohio-6380, ¶ 36, citing State v. Van Gundy, 64 Ohio St.3d 230, 233-34(1992). A jury instruction constitutes prejudicial error where it results in a manifest miscarriage of justice. State v. Hancock, 12th Dist. No. CA2007-03-042, 2008-Ohio-5419, ¶ 13.
{33} Partin argues that the trial court erred in instructing the jury on the having weapons while under disability charge. Partin specifically challenges the trial court‘s instruction as to how the jury was directed to use evidence that Partin had been previously adjudicated a delinquent child for having committed felonious assault against a police officer, the predicating conviction for why Partin was forbidden from having weapons.
{34} According to
(A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of the following apply:
(2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence
Based upon Partin‘s adjudication, he was prohibited from having, carrying, or using a firearm. Once Partin was identified as the shooter, he was charged with having weapons under
{35} The trial court admitted the juvenile court‘s judgment entry regarding Partin‘s adjudication for the felonious assault charge. The trial court gave the following jury instructions regarding how the jury was to use evidence of the adjudication.
Evidence was received about the commission of a crime other than the offenses with which the defendant is charged in this trial. That evidence was received only for a limited purpose. It was not received, and you may not consider it, to prove the character of the defendant in order to show that he acted in conformity with that character. If you find that the evidence of other crime[s] is true and that the defendant committed it, you may consider that evidence only for the purpose of deciding the identity of the person who committed the offense in this trial. That evidence cannot be considered for any other purpose.
Partin now argues that this jury instruction was erroneous and was plain error because the jury instruction advised the jury to consider Partin‘s prior adjudication when “deciding the identity of the person who committed the offense in this trial.”
{36} Partin argues that identification was a major issue at trial, and that the jury was confused regarding identification because the jury asked to see a transcript of Sneed‘s testimony, as well as the statement he gave to police after the incident occurred. Based upon the jury‘s questions, Partin asserts that the jury was confused regarding Sneed‘s identification of Partin as the shooter and that the jury instruction exacerbated the jury‘s confusion by stating that Partin‘s conviction was to be used to decide the “identity of the person who committed the offense in this trial.” We agree with Partin that the instruction was not stated as clearly as it could have been and was inartfully conveyed. However, after considering the jury instructions as a whole, we cannot say that the instructions constituted plain error.
{37} While the jury‘s questions possibly suggest that jurors may have been debating Sneed‘s identification of Partin as the shooter on the night of the incident, the questions do
{38} While the second part of the jury instruction could have been aimed at consideration of Partin‘s legal disability and should not have included reference to the “identity” of the person who committed this offense, the fact remains that the trial court specifically told the jury not to use the evidence for any other purpose except to determine whether Partin had previously been adjudicated and was therefore forbidden from having or using firearms. See State v. Ross, 135 Ohio App.3d 262, 277 (12th Dist.1999) (finding jury instructions proper where “the charge clearly informed the jury that it could not consider appellant‘s prior conviction as proof that he acted in conformity with character. The jury is presumed to have followed the instructions given unless appellant can demonstrate otherwise“). Given the clarity of the trial court‘s admonition of how the jurors could not use the evidence of Partin‘s prior adjudication, coupled with the fact that the jury is presumed to
{39} Regarding ineffective assistance of counsel, an appellant must establish that first, “his trial counsel‘s performance was deficient; and second, that the deficient performance prejudiced the defense to the point of depriving the appellant of a fair trial.” State v. Myers, 12th Dist. No. CA2005-12-035, 2007-Ohio-915, ¶ 33, citing Strickland v. Washington, 466 U.S. 668, 689 (1984). Regarding the first prong, an appellant must show that his counsel‘s representation “fell below an objective standard of reasonableness.” Strickland, 466 U.S at 688. The second prong requires the appellant to show “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
{40} While the jury instructions were not artfully crafted, we will not presume a misapplication of the instructions by the jury. All indications are that even if the instructions had been more precisely drafted, the exact same results would have been reached. Partin cannot demonstrate that his trial counsel‘s performance was deficient or that his counsel‘s failure to object to the jury instructions prejudiced the defense to the point of depriving him of a fair trial. Therefore, Partin‘s second and third assignments of error are overruled.
{41} Judgment affirmed.
RINGLAND, P.J., and S. POWELL, J., concur.