2005 Ohio 5540 | Ohio Ct. App. | 2005
{¶ 2} The following errors are assigned for review and determination:
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT REFUSED TO GRANT DEFENDANT'S MOTION FOR ACQUITTAL AFTER THE STATE FAILED TO OFFER ANY EVIDENCE AS TO VENUE BEFORE CLOSING ITS CASE."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT REFUSED TO GRANT DEFENDANT A CONTINUANCE AFTER HE HAD FILED A NOTICE OF ALIBI WITH THE COURT AND IT BECAME APPARENT THAT THE STATE INTENDED TO OFFER PROOF OF ALLEGED CRIME OCCURRING ON A DATE DIFFERENT THAN THE DATE ALLEGED IN THE INDICTMENT."
THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT AFFIRMED THE VERDICT AFTER THE STATE FAILED TO ESTABLISH PROOF BEYOND A REASONABLE DOUBT AS TO EACH ELEMENT OF FELONIOUS ASSAULT."
FOURTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT MODIFIED, SUA SPONTE, THE DATE IN ITS INSTRUCTIONS TO THE JURY FROM DATE ALLEGED IN THE INDICTMENT."
{¶ 3} On the evening of July 13, 2004, Todd Lee was watching television at his mother's home when he heard a commotion outside. He looked outside and observed a red pick-up truck stop next to his truck. After a beer can came from the truck window and struck his vehicle, the truck drove through the yard. Lee jumped in his truck and followed the red truck to a house several miles away. After Lee exited his vehicle and confronted the driver, the driver (appellant) attacked Lee and repeatedly punched him in the face.
{¶ 4} Lee returned to his mother's residence and his mother, Virginia Lee, a licensed practical nurse, called authorities and then drove Lee to Holzer Medical Center. Lee's injuries were so extensive that he was transported by ambulance to the Ohio State University Medical Center in Columbus where he underwent surgery to repair numerous broken bones in his face.
{¶ 5} On August 17, 2004, the Meigs County Grand Jury returned an indictment charging appellant with felonious assault in violation of R.C.
{¶ 6} At trial Lee positively identified appellant as the assailant who attacked him on July 13th and he and his mother detailed the injuries that he received.2 Appellant testified that he spent the evening of July 13th at home with his girlfriend Debbie Lee, Todd Lee's wife. Debbie Lee corroborated appellant's alibi. Josh Starcher testified that appellant was not at his residence that evening and that no attack had occurred in his driveway.3
{¶ 7} The jury was apparently unswayed by the defense and returned a guilty verdict. At sentencing the trial court imposed an eight year prison term. This appeal followed.
{¶ 9} Our analysis begins with the well-settled premise that in a review for sufficiency, courts look to the adequacy of the evidence. In other words, an appellate court must determine whether the evidence, if believed, reasonably supports a finding of guilt beyond a reasonable doubt. State v. Jenks (1991),
{¶ 10} Felonious assault occurs when one knowingly inflicts serious physical harm to another. R.C.
{¶ 11} Appellant counters that the victim was the only witness for the prosecution, whereas he produced several witnesses who either placed him elsewhere that night or contradicted the view that the assault occurred in the Starcher driveway. We are not persuaded. There is no requirement in Ohio law, as appellant appears to suggest, that a victim's testimony be corroborated before it can be accepted as true by a trier of fact.State v. Artrip (May 28, 1998), Ross App. No. 97CA2325; State v. Miller
(Oct. 14, 1993), Meigs App. No. 92CA496. Issues of weight and credibility are left to the jury to determine as trier of fact. State v. Dye (1998),
{¶ 12} Thus, a trier of fact is free to believe all, part or none of the testimony of each witness who appears before it. State v. Long
(1998),
{¶ 13} We find appellant's contention that the prosecution did not establish serious physical harm equally meritless. R.C.
"(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
(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."
{¶ 14} The uncontroverted evidence is that Lee underwent extensive surgery to repair his face. Lee's jaw was wired shut for eight weeks during which time he could only consume pureed food.5 Lee also had titanium plates inserted into his head to hold his face together. Lee testified to the effect that the injuries, as well as the surgery and subsequent recuperation, were very painful. This is more than sufficient to establish serious physical harm.
{¶ 15} The question of venue is more complicated. Unfortunately, the prosecution elicited no direct testimony to establish that the assault occurred in Meigs County.
{¶ 16} Our analysis begins with the proposition that venue is a fact that must be proven in a criminal proceeding. State v. Headley (1983),
{¶ 17} Virginia Lee, Todd Lee's mother, testified that she lived in Chester, Ohio. Todd Lee testified that after he was assaulted, he drove "[a] mile and a half, two miles" to his mother's home. In light of the fact that Chester is well within Meigs County, and in view of the uncontroverted evidence that the assault occurred only a mile and a half to two miles from Chester, the jury could reasonably find that the assault occurred in Meigs County.
{¶ 18} For these reasons, we find that the jury's verdict of guilt is supported by sufficient evidence. Consequently, appellant's first and third assignments of error are hereby overruled.
{¶ 20} We begin our review by noting that a decision whether to grant a continuance rests with the sound discretion of the trial court, Statev. Mason (1998),
{¶ 21} Appellant correctly points out that if an indictment is amended, an accused is entitled to a "reasonable continuance" unless "it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect." Crim.R. 7(D). Considering the record as a whole, we believe appellant was neither misled nor prejudiced by the error in the indictment.
{¶ 22} First, although the indictment erroneously asserted that the assault occurred on July 14th, the prosecution provided discovery to appellant more than one month prior to trial that contained the correct date. An incident report stated that the assault occurred on July 13th. This discrepancy in dates between the indictment and the incident report should have put appellant on notice that something was amiss insofar as the date of the offense was concerned.
{¶ 23} Second, and most important, we are not persuaded that appellant suffered prejudice as a result of the indictment's error. Appellant testified at trial as to his whereabouts on July 13th and stated the he was at home with his girlfriend. His girlfriend, Debbie Lee, also corroborated his testimony. Furthermore, Josh Starcher testified that no assault occurred in his driveway on the evening of July 13th as the victim had claimed.
{¶ 24} Moreover, appellant did not assert during the trial court proceeding, nor does he assert now on appeal, that other evidence existed that he wished to present, but could not do so because the trial court refused a continuance. We will not find an abuse of discretion based on speculative harm.
{¶ 25} For these reasons, we find no merit in the second assignment of error and it is hereby overruled.
{¶ 27} To begin, it does not appear that appellant objected to this instruction. Thus, appellant waived all but plain error. See State v.Coe,
{¶ 28} We cannot conclude that this case's outcome would have been different had the trial court first amended the indictment and then given the jury instruction. Had the indictment been formally amended, there would have been no error in the instruction. It is very unlikely that the guilty verdict would have changed if the indictment and the instruction had both reflected the same date for the offense. Furthermore, Crim.R. 7(D) allows a trial court to amend an indictment anytime during or after trial in order to conform to the evidence presented at trial, provided that no change is made in the identity or name of the crime charged. Here, the parties impliedly proceeded as if the indictment had been amended to reflect the correct date (July 13th). See, generally, Statev. McCurry (Nov. 14, 1997), Montgomery App. No. 16168, (Fain, concurring). We note that the amendment changed only the date on which the offense occurred, and only changed it by one day. The variance in the date of the offense did not charge a new or different offense, nor did it change the substance of the offense.
{¶ 29} For these reasons, we find no error in giving jury instructions that conformed to evidence adduced at trial and appellant's fourth assignment of error is accordingly overruled.
{¶ 30} Having considered all four errors assigned and argued by appellant in his brief, and finding merit in none of them, we hereby affirm the trial court's judgment.
JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J.: Concurs in Judgment Only
Kline, J.: Concurs in Judgment Opinion