State v. Plemmons-GreeneState v. Plemmons-Greene
JOURNAL ENTRY AND OPINION
PLAINTIFF-APPELLEE vs. GLORIA PLEMMONS-GREENE DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square, Suite 1016
Cleveland, OH 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Joseph C. Patituce
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
N.B. This entry is an announcement of the court‘s decision. See
MELODY J. STEWART, J.:
{¶ 2} Appellant lived in the downstairs apartment of a duplex on West 140th Street in Cleveland. Appellant‘s granddaughter, Roxanne Daley, and her baby were staying with the resident оf the upstairs apartment, Christy Bishop. On June 16, 2007, Lisa Daley (“Daley“), appellant‘s daughter and Roxanne‘s mother, came to the duplex to pick up Roxanne and the baby to take them to her house. Bishop and Daley began to argue. Appellant went upstairs and joined in the argument. According to Daley and Roxanne, appellant pushed Daley on the bed, punched her, kneed her, choked her with her necklace, and punched her in the eye.
{¶ 3} Police and an ambulance were called to the scene. Daley was examined in the аmbulance by EMTs, but elected to drive herself to the hospital rather than leave her car at the apartment. Appellant was arrested and jailed by Cleveland police.
{¶ 4} A criminal summons charging appellant with domestic violence was issued by the Cleveland Municipаl Court on June 21, 2007. The municipal court case was subsequently dismissed on March 3, 2008, with the notation that the case was to be presented to the grand jury as felonious
{¶ 5} Appellant filed this timely appeal raising five assignments of error for our review.
{¶ 6} In her first assignment of error, appellant asserts that the trial court erred by denying her motion to dismiss on speedy trial grounds without first holding an evidentiary hearing.
{¶ 7} The Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution guaranteе a criminal defendant the right to a speedy trial. To implement the guarantee,
{¶ 8} A person‘s speedy trial time may be waived or the period may be tolled under certain circumstances.
{¶ 9} A waiver is an intentional relinquishment of a known right. Id., citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224. A waiver relinquishes the right, at least until the waiver is withdrawn. However, “[w]hen an accused waives the right to a speedy trial as to an initial charge, this waiver is not applicable to additional charges arising from the same set of circumstances that are brought subsequent to the execution of the waiver.” State v. Adams (1989), 43 Ohio St.3d 67, 70, 538 N.E.2d 1025.
{¶ 10} Tolling does not waive a person‘s speedy trial right. Rather,
{¶ 12} In this case, there are two separate and relevant periods of time to be analyzed. The first period of time commences with appellant‘s arrest and ends with the dismissal of the municipal court case. The second period of time commences with the second indictment and ends with the trial. The period of time between indictments is not counted against the state. See State v. Broughton (1991), 62 Ohio St.3d 253, 259, 581 N.E.2d 541.
{¶ 13} While appellant was not indicted on the felonious assault charge until March 20, 2008, her speedy trial rights began to run on June 16, 2007, when she was arrested for the domestic violence charge brought in the Cleveland Municipal Court case. “When new and additional charges arise from the same facts as did the original charge, and the state knew of such facts at the time of the initial indictment, the time within which trial is to begin on the additional charges is subject to the same statutory limitations period that is applied to the original charge.” State v. Dunbar, 8th Dist. No. 8731, 2007-Ohio-3261, quoting State v. Clay (1983), 9 Ohio App.3d 216, 459 N.E.2d 609, syllabus. Thus, in calculating the time the state had to bring appellant to trial, we will not apply appеllant‘s speedy trial waiver against the felonious assault charge, but must take into account the time between indictments and any time tolled for reasons permitted under the statute.
{¶ 14} The docket from the domestic violence case in Cleveland, case no. 2007CRB019961, shows that 13 days wеre tolled while the state responded to appellant‘s discovery motion, and another 67 days were tolled due to continuances granted at appellant‘s request. The docket from the instant case shows that 56 days were tolled as a result of motions filed by appellant, and an additional 39 days were tolled as a result of continuances at appellant‘s request. Therefore, of the 427 days that elapsed from arrest to trial, 175 days are not charged against the state.
{¶ 15} After a careful review of the dockets in both cases, we conclude appellant was brought to trial within 270 days within the meaning of
{¶ 16} In her second, third, and fourth assignments of error, appellant challenges both the weight and sufficiency of the evidencе supporting her convictions for assault and domestic violence. Although these arguments involve
{¶ 17} Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486. A conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶ 18} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial tо determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could hаve found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
{¶ 19} A reviewing court may find a verdict to be against the manifest weight of the evidence even though legally sufficient evidence supports it. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a mаnifest weight of the evidence claim, this court reviews the entire record, weighs the evidence and all reasonable inferences, considers
{¶ 20} The jury found appellant guilty of domestic violence, a first degree misdemeanor, in violation of
{¶ 21} The jury also found appellant guilty of assault, a first degree misdemeanor, in violation of
{¶ 22} “(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
{¶ 23} “(b) Any physical harm that carries a substantial risk of death;
{¶ 24} “(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
{¶ 26} “(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.”
{¶ 27} Appellant challenges the sufficiency of the evidence, arguing that there is no evidence that Daley suffered “serious physical harm” or that Daley was “a household or family member.” Appellant also challenges the weight of the evidence, arguing that therе was no credible evidence to prove that appellant knowingly caused or attempted to cause Daley physical harm. She contends that the entire incident was an unfortunate accident.
{¶ 28} Appellant‘s contention that Daley is not a family or a housеhold member lacks merit. Appellant testified that she is Daley‘s mother, that Daley is her daughter by blood, and that she lived with her in the past. Thus, Daley fits the statutory definition of a family or household member.
{¶ 29} We also find that the state presented sufficient evidence for the jury to find serious physicаl harm. The state‘s evidence showed that appellant punched, kicked, kneed, and choked her daughter. As a result of appellant‘s attack, Daley suffered a black eye, the entire right side of her face was swollen and bruised, her neck was scratched and sorе, and she had bruises all over her thighs and buttocks. A police photograph shows serious
{¶ 30} Viewing this evidence in a light most favorable to the state, we conclude that it is sufficient to establish all of the elements of assault and domestic violence.
{¶ 31} We also do not find that the jury clearly lost its way in resolving conflicts in the evidence or that this is one of those exceptional cases in which the evidence weighs heavily against conviction. Daley and Roxanne both testified that appellant shoved Daley onto the bed, kneed and punched her, and tore the necklace off of Daley‘s neck. And, while appellant maintained that she did not intend to hurt her daughter, she testified that she knew her daughter bruised easily but still, “hauled off and hit her.” The second, third, and fourth assignments of error are overruled.
{¶ 32} In her fifth and final assignment of error, aрpellant argues that the court erred in not correcting the record. Appellant contends that the
Judgment affirmed.
It is ordered that appellee rеcover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The dеfendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
PATRICIA ANN BLACKMON, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR