State v. PetromilliState v. Petromilli
Matthew C. Bangerter, P.O. Box 148, Mentor, OH 44061 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
O P I N I O N
{¶1} Apрellant, Decio Petromilli, appeals from the judgment of the Lake County Court of Common Pleas, convicting him of kidnapping. At issue is whether the conviction is supported by sufficient evidence as well as the weight of the evidence. We affirm the judgment of the trial court.
{¶2} In the early morning hours of December 10, 2015, police were dispatched to the home of one Carmen Jones after a report of an assault. Upon arrival, officers
{¶3} As appellant emerged, he was calm and cooperative. He did not appear to have any injuries to his face, but was bleeding from several pronounced wounds on his right hand. Appellant stated Mr. Dukes attacked him with a knife. Officer Nicholas Scholtz entered Mr. Dukes’ home to commence evidence collection. He observed large amounts of blood on the floor as he entered the home as well as blood throughout the kitchen area. He testified there was a couch in the kitchen “covered in blood” and a roll of tape and a heating unit with blood on it. He was also searching for the alleged knife, which was never found.
{¶4} Mr. Dukes testified he met appеllant some 20 years ago. Apparently, appellant had asked him if he could stay at Mr. Dukes’ home approximately two months prior to the incident. Mr. Dukes allowed appellant to stay, rent free, and use the couch in the kitchen as a bed. Mr. Dukes testified he had repeatedly advised appellant to turn the bathroom ventilation fan off after exiting. Mr. Dukes asserted the fan increased his electrical bill and he wished to save energy. On the night of the incident, appellant left the fan running and Mr. Dukes, who had been drinking, directed him to switch it off.
{¶5} As Mr. Dukes applied the tape, appellant approached and delivered a right punch to his left temple, knocking Mr. Dukes to the floor. According to Mr. Dukes, the blow knocked him out temporarily and, when he regained consciousness, appellant was dragging him from the bathroom into the living room by his head. Mr. Dukes estimated the distance he was dragged was approximately 10‘-15‘.
{¶6} Shortly after the initial blow, Mr. Dukes heard appellant exclaim “I‘m going to kill you.” Mr. Dukes testified he yelled for Ms. Needs, who was not a witness to the assault, to call 911. Appellant continued to drag Mr. Dukes near the entryway and ultimately he threw Mr. Dukes onto the couch. Throughout the incident, appellant continued to strike Mr. Dukes with his right fist and, once on the couch, appellant wrapped the masking tape around Mr. Dukes’ wrists, in an apparent attempt to bind him. At this point, Ms. Needs emerged from a bedroom, inquired into what was going on, and, with a “surge of energy,” Mr. Dukes pulled his hands loose and ran out of the door.
{¶7} Mr. Dukes fled to the home of his neighbor, Carmen Jones. He knocked on her door, but she did not answer. He then attempted to find help at another neighbor‘s house; again, he received no answer. As he began walking down the street, an ambulance had arrived accompanied by police.
{¶8} Mr. Dukes was initially taken to a local hospital; he was then life-flighted to Metro Health Medical Center. As a result of the incident, Mr. Dukes suffered various
{¶9} Appellant was indicted on one count of kidnapping, a felony of the first degrеe, in violation of
{¶10} “[1.] The trial court erred to the prejudice of the defendant-appellant when it returned a verdict of guilty against the manifest weight of the evidence.
{¶11} “[2.] The trial court erred to the prejudice of the defendant-appellant in denying his motion for acquittal made pursuant to
{¶12} When a defendant moves the trial court pursuant to
{¶13} In contrast, a court reviewing the manifest weight observes the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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. State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 WL 738452, *4-*5 (Dec. 23, 1994).
{¶14} Witness credibility rests solely with the fact finder, and an appellate court may not substitute its judgment for that of the jury. State v. Awan, 22 Ohio St.3d 120, 123 (1986). Hence, in weighing the evidence submitted at a criminal trial, an appellate court must give substantial deference to the jury‘s determinations of credibility. State v. Tribble, 2d Dist. Montgomery No. 24231, 2011-Ohio-3618, ¶30. “The jury is entitled to believe all, part, or none of the testimony of any witness.” State v. Archibald, 11th Dist. Lake Nos. 2006-L-047 and 2006-L-207, 2007-Ohio-4966, ¶61. “Thе trier of fact is in the best position to evaluate inconsistencies in the testimony by observing the witness‘s manner and demeanor on the witness stand - attributes impossible to glean through a printed record.” State v. Williams, 11th Dist. Lake No. 2012-L-078, 2013-Ohio-2040, ¶21.
{¶15} Preliminarily, although the jury found appellant guilty of both kidnapping and felonious assault, the state elected to proceed to sentencing only on kidnaрping. Because the two crimes merged, appellant was not convicted of felonious assault. Hence, appellant‘s arguments challenging the weight and sufficiency of the evidence on
{¶16} Appellant was convicted of kidnapping, in violation of
{¶17} (A) No person, by force, * * * by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:
{¶18} * * *
{¶19} (3) To terrorize, or to inflict serious physical harm on the victim or another * * *.
{¶20} Appellant argues the state failed to meet its burdens of production and persuasion, beyond a reasonable doubt, on the above crime. Appellant maintains the state failed to advance sufficient, credible evidence that he removed or restrained Mr. Dukes. Appellant argues Mr. Dukes’ testimony was exaggerated and, because he was intoxicated on alcohol (with a BAC of .216), his rendition of events was not believable.
{¶21} Mr. Dukes testified appellant initially assaulted him in the bathroom because Mr. Dukes reprimanded him for failing to turn the ventilation fan off. Appellant does not dispute the assault. Mr. Dukes further testified appellant dragged him from the bathroom by his heаd, into the living room area, and ultimately threw him onto the couch. Throughout the incident, Mr. Dukes testified appellant continued to strike him with his right hand. According to Mr. Dukes, appellant attempted to bind him with masking tape, from which he was able to escape and flee the home.
{¶23} The assignments of error lack merit.
{¶24} On June 1, 2017, appellant filed a pro se motion with this court advancing additional arguments on appeal. Via judgment entry, this court elected to treat the pleading as a motion for leave to file a supplemental brief and granted the same. In his supplemental brief appellant alleges:
{¶26} Preliminarily, prior tо trial, appellant moved the court to represent himself pro se, with the aid of standby counsel. The court conducted a lengthy and thorough colloquy with appellant, during which the court emphasized that, even though appellant had the right to represent himself, he had two attorneys appointed who were prepared to defend him; аnd, furthermore, the court repeatedly advised appellant that representing himself, in light of the high-level felonies with which he was charged, was not a good idea.1 Nevertheless, appellant knowingly and voluntarily desired to proceed pro se. Appellant then signed a waiver of counsel form and proceeded pro se. “[I]t is settled lаw that a defendant who has elected to proceed pro se cannot later complain of his own ineffectiveness as a grounds for reversal.” United States v. Weisman, 858 F.2d 389, 391 (8th Cir.1988), citing Faretta v. California, 422 U.S. 806, 834-35 (1975), fn. 46. Accordingly, any argument relating to his own ineffectiveness is without merit.
{¶27} Notwithstanding the foregoing, as the trial progressed, appellant advised the court he wished to proceed with counsel. The state did not object and the court permitted stand-by counsel to defend appellant for the remainder of the proceedings. With this in mind, appellant makes several arguments relating to counsel‘s alleged ineffectiveness.
{¶29} Appellant initially argues trial counsel wаs ineffective for failing to call several purportedly relevant witnesses, notwithstanding appellant‘s claim that the witnesses were subpoenaed. Debatable tactical decisions generally do not constitute a deprivation of effective counsel. State v. Phillips, 74 Ohio St.3d 72, 85 (1995). The decision to call witnesses is a matter of trial strategy. See e.g. State v. Kovacic, 11th Dist. Lake No. 2010-L-065, 2012-Ohio-219, ¶46. “[T]he merе failure to call witnesses for a trial is not a substantial violation of defense counsel‘s essential duty to his client in the absence of any showing that the testimony of any one or more of the witnesses would have assisted his defense.” State v. Sanders, 11th Dist. Portage No. 2003-P-0072, 2004-Ohio-5629, ¶58. A reviewing court should refrain from second-guessing an attorney‘s strategic decisions. State v. Carter, 72 Ohio St.3d 545, 558 (1995). “This is especially the case where the purported testimony of a person who was not called to
{¶30} Appellant next takes issue with the responding officers’ alleged failure to issue him Miranda warnings and their subsequent warrantless search of the residence in which the assault took place. These arguments relate to issues that could have been raised in a pre-trial motion to suppress evidence, which was not filed. The record in this matter indicates that, when officers arrived and questioned appellant, he cаlmly discussed the events with officers and alleged Mr. Dukes attacked him with a knife. During the officers’ initial questioning, counsel could have reasonably concluded there was no formal arrest or a restraint on appellant‘s freedom of movement of a degree associated with a formal arrest. As such, counsel could have reasonably cоncluded there was no Miranda violation and therefore no need to raise this issue in a motion to suppress. Moreover, even assuming appellant had standing to challenge the officers’ entry into Mr. Dukes’ home (i.e., he could establish he possessed a reasonable expectation of privacy as a guest), he fails to specifically elucidate how he was prejudiced by the entry. Hence, counsel cannot be viewed ineffective for failing to file a motion to suppress evidence.
{¶31} Appellant next asserts the trial court erred when it excluded evidence of Mr. Dukes’ alleged past violent acts. Prior to trial, the state filed a motion in limine to prevent the introduсtion of Mr. Dukes’ past convictions because they were outside the 10-year time limitation set forth under
{¶32} Appellant alternatively argues he was entitled to testify regarding his knowledge of Mr. Dukes’ alleged prior violent conduct in order to establish the victim‘s state of mind to support his defense of self-defense. Courts have concluded a defendant may so testify. See e.g. State v. Baker, 88 Ohio App.3d 204, 208 (9th Dist.1993). Appellant, however, did not elect to testify. Accordingly, this principle of law was not relevant to the case sub judice. Appellant‘s arguments are without merit.
{¶33} For the reasons discussed in this opinion, the judgment of the Lake County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J., concurs,
COLLEEN MARY O‘TOOLE, J., concurs in judgment only.