State v. RidleyState v. Ridley
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Pаul A. Dobson, Wood County Prosecuting Attorney, Gwen Howe-Gebers, Chief Assistant Prosecuting Attorney, Aaron T. Lindsey and David E. Romaker, Jr., Assistant Prosecuting Attorneys, for appellee.
Tim A. Dugan, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, George Ridley, appeals his conviction for felonious assault, a violation of
{¶ 2} The relevant facts of this case are as follows. On December 18, 2009, appellant was indicted on three counts (1) kidnapping, in violation of
{¶ 3} On February 9, 2010, appellant filed a pro se motion to remove his court appointed counsel, Daniel Arnold, which was granted by the trial court and attorney Kurt Bruderly was assigned. On March 15, 2010, upon motion by the state, appellant was ordered to undergo a competency evaluation after filing another pro se motion to remove Bruderly as his counsel. Subsequently, the trial judge referred the case to the Ohio Supreme Court for reassignment due tо conflicts arising from appellant‘s actions towards the county prosecutor and the court. Appellant‘s third counsel, David Klucas, was appointed on April 20, 2010, at which point appellant was also deemed to be competent to stand trial. Judge Michael Corrigan was appointed as visiting judge and special
{¶ 4} A jury trial commenced on October 4, 2010, and the following evidence was presented. Officer Rebecca Kincaid testified that on November 17, 2009, in Toledo, Lucas County, Ohio, she was dispatched to St. Vincent‘s Hospital to take an assault repоrt from the victim. Kincaid testified that the victim had a black eye, multiple cuts on her forehead, legs, knees and arms including one on her hand that was down to the bone. Kincaid stated that these injuries were consistent with wounds sustained from a knife and that the victim appeared terrified during initial questioning. After being reluctant to give Kincaid any information, Kincaid testified the victim described the events that led to her injuries. Kincaid provided testimony on photographs taken at the hospital of all the victim‘s injuries. Kincaid then testified that she went to Pinebrook Apartments, the location of the assault, and found bloody and torn clothing in a nearby dumpster. These possessions were identified as belonging to the victim.
{¶ 5} Sexual assault nurse examiner (SANE), Tracey Hinkle, testified next. Hinkle testified that she originally triaged the victim when she arrived at the hospital. Hinkle presented evidence of her notes from November 17, 2009, and testified that the victim described the entire sequence of events to her for purposes of conducting a medical history and rape-kit after the victim had spoken with Toledo Police. Hinkle testified that, over objection from appellant‘s counsel, the victim stated that appellant had
{¶ 6} Toledo Police Detective John Rose, the lead investigator for the case, presented testimony concerning conversations with the victim on November 18, 2009. Detective Rose testified that the victim was scared of appellant and had created a story about being jumped by a group of girls in order to get away from appellant and seek medical help.
{¶ 7} After much debate, the trial court allowed the state to present the testimony of Officer David Vasquez, who investigated a prior assault incident involving appellant, and Danella Torres, who testified that she was the victim of an assault perpetrated by appellant. The substance of the testimony will be discussed, in detail, below.
{¶ 8} The defense called several witnesses who testified that appellant and the victim were together on the night of the incident. Derrick Murphy testified that he saw an altercation between the victim and a group of girls during the early morning hours of November 17, 2009, although he did not report the fight to police at the time and had previously never given a statement about what he saw. Walter Holston, appellant‘s
{¶ 9} Appellant testified at the close of the trial. Appellant testified that he and the victim were together on the night of November 16, 2009, and into November 17, 2009. Appellant also testified that upon Holston entering their room at some point in the night, the victim suffered a knife wound to her hand when appellant accidently cut her while attempting to take the knife from her. Appellant stated that he also cut off a portion of the victim‘s hair with scissors and also cut articles of the victim‘s clothing and other possessions. Appellant then testified when he and the victim were leaving his apartment during the afternoon of November 17, 2009, a group of three to four girls attacked them. According to appellant, during this altercation, the victim suffered additional wounds.
{¶ 10} Following trial and deliberations, the jury found appellant guilty of felonious assault and not guilty of kidnapping and rape. The court sentenced appellant to eight years of imprisonment. This appeal followed.
{¶ 11} Appellant now raises the following six assignments of error for our consideration:
- The Trial Court violated appellant‘s right to a speedy trial.
- Appellant‘s conviction was not supported by legally sufficient evidence.
Appellant‘s conviction fell against the manifest weight of the evidence. - The Trial Court erred by allowing appellee to present evidence of other acts under 404(B) to the jury.
- The Trial Court erred by allowing appellee to present hearsay testimony to the jury.
- The cumulative effect of all the errors committed by the Trial Court deprived appellant of a fair trial.
{¶ 12} In his first assignment of error, appellant contends that his constitutional right to a speedy trial was violated and asks for a dismissal of the charges of which he was convicted. The right to a speedy trial is guaranteed by the United States and Ohio Constitutions. State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989). Pursuant to
{¶ 13} The time by which an accused must be brought to trial, however, may be tolled under certain conditions, including:
(B) Any period during which the accused is mentally incompetent to stand trial or during which his mental competence to stand trial is being determined * * *.
(E) Any period of delay necessitated by reason of a * * * motion, proceeding, or action made or instituted by the accused[.]
R.C. 2945.72 .
{¶ 14} It is well established that once an accused has demonstrated that the applicable sрeedy-trial time has expired, he or she has established a prima facie case for dismissal, and the burden shifts to the state to demonstrate any tolling or extensions of time permissible under the law. State v. McDonald, 153 Ohio App.3d 679, 2003-Ohio-4342, 795 N.E.2d 701, ¶ 27 (8th Dist.). The remedy for the violation of an accused‘s right to a speedy trial is a dismissal of the charge. State v. Major, 180 Ohio App.3d 29, 2008-Ohio-6534, 903 N.E.2d 1272, ¶ 25 (6th Dist.), citing Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 33 L.E.2d 101 (1972);
{¶ 15} Here, appellant was arrested on December 8, 2009 and trial in this case began on October 4, 2010, a total of 300 days of incarceration. It is undisputed that numerous tolling events took place between those two dates, all of which were properly counted against appellant‘s speedy trial computation. Appellant, however, claims that by April 16, 2010, over 90 untolled days had passed since his arrest and the charges against him should have been dismissed by the trial court. Appellant argues specifically that a discovery motion filed on February 11, 2010, and the subsequent 11 days it took for a
{¶ 16} Appellant‘s first argument that the period from February 11, 2010, when a second discovery motion by appellant was filed, to February 22, 2010, when the prosecutor responded to the motion, should not be tolled against him is not well-founded. Generally, a defendant‘s demand for discovery or bill of particulars is a tolling event pursuant to
{¶ 17} No case law exists to suggest that discovery motions beyond the first filed in a case, particularly when made after the dismissal of counsel as here, do not toll time under the speedy trial provisions. Discovery motions impose a burden on the prosecution since such motions necessitate a timely response and draw the prosecutor‘s attention away from preparing the case for trial. Brown at ¶ 23. Since appellant‘s first counsel had been dismissed from the case, largely due to appellant‘s own actions, the discovery motion made on February 11, 2010, by appellant‘s next counsel was customary to ensure that counsel was appropriately up to speed on the case and had all the materials he needed to proceed to trial.
{¶ 19} Appellant next arguеs that the competency request made by the state was improperly tolled against him.
{¶ 20} It is clear from the record that the trial court‘s decision to order a competency evaluation was not arbitrary or unreasonable in this case. To evaluate whether a trial court abused its discretion in ordering a competency evaluation, the following factors must be evaluated (1) doubts expressed by defendant‘s counsel as to the defendant‘s competence, (2) evidence of irrational behavior, (3) the defendant‘s demeanor at trial, and (4) prior medical opinion related to competence at trial. State v. Rubenstein, 40 Ohio App.3d 57, 60, 531 N.E.2d 732 (8th Dist.1987).
{¶ 21} Appellant‘s counsel at the time did voice concerns about appellant‘s competence to stand trial by indicating to the trial court that apрellant had previously been treated for bipolar disorder, which appellant denied in court. There is also ample evidence within the record of appellant‘s irrational behavior both inside and outside of the courtroom and questions existed as to whether he understood the nature of trial. Appellant in several recorded phone conversations indicated that he would hurt his defense counsel and that appellant felt his rights were being rail-roaded. Appellant often accused his own counsel of working for the prosecutor and argued that the trial court was conspiring against him. As the court found in Patton, supra, appellant‘s recidivism and contacts with the justice system, when coupled with the allegations against him in the current case, formed a sufficient basis for the trial court to believe an evaluation was necessary in this case. Id. at ¶ 10.
{¶ 23} In his second and third assignments of error, appellant argues that his conviction for felonious assault is not supported by sufficient evidence and is against the manifest weight of the evidence. Sufficiency of the evidence and manifest weight of the evidence are quantitatively and qualitatively different legal concepts. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Sufficiency of the evidence is purely a question of law. Id. At its core, sufficiency of the evidence is a determination of adequacy and a court must consider whether the evidence was sufficient to support the conviction as a matter of law. Id. The proper analysis is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996), quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
reviewing the entirе 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 25} Appellant was convicted of one count of felonious assault,
{¶ 27} Appellant argues that the jury lost its way in convicting him since evidence was presented that showed the victim received her injuries from an individual or individuals other than appellant. Testimony presented by appellant on this issue, however, was contradictory at best. Appellant testified that an attack by a group of girls in the early afternoon of November 17, 2009, resulted in the victim‘s wounds. Appellant further testified upon cross-examination, however, that he and the victim had gotten into
{¶ 28} All told, there was ample direct and circumstantial evidence, particularly given appellant‘s history and behavior, tending to show that the appellant inflicted the wounds upon the victim. The evidence to the contrary was contradictory and from unreliable sources. Weighing all of the evidence and considering the credibility of the witnesses, we cannot say that the jury lost its way and created a manifest injustice.
{¶ 29} Accordingly, we find that appellant‘s convictions were supported by sufficient evidence and that the jury did not lose its way and create a manifest miscarriage of justice. Appellant‘s second and third assignments of error are not well-taken.
{¶ 30} In his fourth assignment of error, appellant contends that the trial court erred in admitting into evidence certain testimony about appellant‘s past actions. Specifically, appellant argues that the testimony of Danella Torres and Officer David Vasquez was inadmissible as evidence of other acts of appellant. Appellant further asserts that the probative value of this evidence was outweighed by its prejudicial effect
{¶ 31} Evidence of other acts which are wholly independent of the crime charged is generally inadmissible. State v. Thompson, 66 Ohio St.2d 496, 497, 422 N.E.2d 855 (1981). In that vein,
{¶ 33} In determining whether the trial court abused its discretion in allowing Vasquez and Torres to testify about appellant‘s prior acts, we must use the three-step analysis determined recently by the Ohio Supreme Court:
The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
Evid.R. 401 . The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character оf the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated inEvid.R. 404(B) . The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. SeeEvid.R 403 . Williams at ¶ 20.
{¶ 34} The state offered the testimony of Vasquez and Torres to demonstrate identity, intent and absence of mistake or accident. Other acts may also prove identity by establishing a modus operandi applicable to the crime with which a defendant is charged. State v. Lowe, 69 Ohio St.3d 527, 531, 634 N.E.2d 616 (1994). By showing that the defendant had a behavioral fingerprint in other similar circumstances, the other acts evidence can show not that a defendant is a criminal but that they are the perpetrator of the crime in question. Id. Sо long as the other acts evidence is related to and share[s] common features with the crime in question, such evidence can be admitted. Id.
{¶ 35} Here, the testimony of Vasquez and Torres established firmly that appellant had a behavioral fingerprint of acting as he was alleged to have acted in this case. Both Vasquez and Torres testified that appellant had previously assaulted a woman in such a way so as to leave significant bruising around the victim‘s eyes and mouth. Torres also testified that appellant attempted to strangle her and threatened her life if she went to the police. Vasquez added that appellant blamed the prior injuries on a mystery ex-girlfriend. All of this evidence is closely related to and shares common features with the actions of which appellant was accusеd in this case. The victim suffered bruising to her face, marks consistent with strangulation and told others that the appellant threatened her repeatedly if she reported the incident. The appellant also attempted to place blame for
{¶ 36} Further, by the appellant‘s own evidence presented at trial, there were considerable questions as to intent or accident. The Second Appellate District has found that where a criminal defendant presеnted evidence suggesting a victim received injuries by accident, the state may present other acts evidence to prove intent and the lack of accident. State v. Grubb, 111 Ohio App.3d 277, 282, 675 N.E.2d 1353 (2d Dist.1996). In this case, appellant‘s testimony raised an issue regarding whether the victim‘s injuries were caused by accident and not by any intentional misconduct on his part. Therefore, the state was able to rebut this allegation by presenting contrary evidence that appellant had previously caused similar injuries intentionally and not through any accident. This evidence was relevant to a genuine issue in the case and passes the first-step established by Williams, supra.
{¶ 37} Appellant argues that the testimony of Torres was too dated to be relevant to this case. Although Ohio law does require a temporal, modal and situational relationship between an аlleged crime and other acts, temporal issues are not solely determinative in consideration of other acts evidence. State v. Zich, 6th Dist. No. L-09-1184, 2011-Ohio-6505, ¶ 101, quoting State v. Brooks, 7th Dist. No. 07-MA-79, 2008-Ohio-6600, ¶ 36. (Citation omitted.) Instead, the probative value of such conduct lies in its peculiar character rather than its proximity to the event at issue. State v. McAdory, 9th Dist. No. 21454, 2004-Ohio-1234, ¶ 18, quoting State v. DePina, 21 Ohio App.3d 91, 92, 486 N.E.2d 1155 (9th Dist.1984). Since appellant‘s behavior in this case mirrored so closely the testimony given by Torres regarding appellant‘s prior actions, the six-year difference between the actions does not defeat its probative value in this case.
{¶ 38} In Williams, supra, the next step relates to whether the evidence is presented to prove the accused‘s character in order to show that the conduct was in conformity with that character. In this case, the state did not present the evidence to prove that appellant aсted in conformity with a certain trait or characteristic. In fact, the trial court gave three limiting instructions that the testimony by Vasquez and Torres was not being offered to prove appellant‘s character—one during each of their respective testimonies and one prior to deliberation. We presume the jury followed those instructions. See State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995); Pang v. Minch, 53 Ohio St.3d 186, 195, 559 N.E.2d 1313 (1990).
{¶ 39} Finally, we consider whether the probative value of the other acts evidence as described by Vasquez and Torres is substantially outweighed by the danger of unfair prejudice. The testimony of Vasquez and Torres was not unduly prejudicial, because the trial court instructions lessened any prejudicial effect of the testimony. See Williams, 2012-Ohio-5695, at ¶ 23-24. Furthermore, the trial court limited any prejudicial effect by
{¶ 40} In addition, contrary to appellant‘s contention, there is no evidence that appellant was actually prejudiced by the admission of the testimony. The jury found appellant not guilty as to two of the three counts before it. Thus, the evidence of appellant‘s past acts did not prejudice the jury against the appellant before all the testimony was heard in the case.
{¶ 41} Therefore, we find that the trial court did not abuse its discretion in allowing limited testimony concerning other acts by appellant since they were introduced to show identity, intent and lack of accident or mistake. Appellant‘s fourth assignment of error is not well-taken.
{¶ 42} In his fifth assignment of error, appellant contends that the trial court erred by allowing hearsay testimony into evidence. Specifically, appellant argues that portions of testimony by SANE Nurse Tracey Hinkle relating to statements made by the victim should not have been allowed into evidence under the exceptions allowed for testimony of excited utterances or statements necessary for medical treatment or diagnosis.
{¶ 44} The determination of whether hearsay statements are subject to exception rests within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. State v. Hand, 107 Ohio St.3d 378, 393, 2006-Ohio-18, 840 N.E.2d 151, ¶ 92. An abuse of discretion occurs when the court‘s attitude is arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 45} Appellant complains that the trial court erred when it allowed into evidence, over objection from counsel, hearsay testimony of SANE nurse Tracey Hinkle concerning statements made by the victim. Specifically, Hinkle testified to the history of the incident given to her by the victim while at the hospital. Hinkle was acting under her capacity as a SANE nurse and spoke with the victim after the victim had been questioned by police. Hinkle contemporaneously wrote notes on her discussion with the victim and
{¶ 46} An excited utterance is [a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
{¶ 48} Nevertheless, we do not find that the trial court abused its discretion since the statements were properly admissible as statements used for medical diagnosis and treatment. So long as the evidentiary basis on which an appellate court decides a legal issue was adduced before the trial court and made a part of the record thereof, an
{¶ 49}
{¶ 50} We are convinced from the record that both Clary factors are present here. Hinkle‘s questioning of the victim was clearly within her capacity as a SANE nurse to properly diagnose and treat the victim. Even though Hinkle had previously triaged the
{¶ 51} Further, there is substantial precedent for allowing a victim‘s statements to a nurse or other medical provider into testimony as an exception to hearsay despite the fact that the victim had previously spoken with police. State v. Stahl, 9th Dist. No. 22261, 2005-Ohio-1137. In Stahl, a victim‘s statements to a specialist belonging to the Developing Options for Violent Emergencies (DOVE) unit, analogous in many ways to the SANE nurse program, were allowed even though the victim had already given a statement to a police officer. Id. The Ninth Appellate District reasoned that the differences in circumstances and intent of the questioning between the police questioning and the specialist‘s questioning were so dramatic as to make clear that the statements to the nurse were for aid and treatment, not prosecution. Id. at ¶ 19. Similarly, Hinkle was documenting the injuries that the victim had suffered and interviewed her for the purpоse of ensuring the victim received adequate care and comfort. See State v. Hicks, 6th Dist. No. L-83-074, 1991 WL 156534 (Aug. 16, 1991). It is clear from the evidence that the statements made to Hinkle were for the purposes of medical diagnosis and
{¶ 52} Appellant also argues that the victim‘s statements to Hinkle identifying the assailant or cause of her wounds were not properly admissible under the medical treatment and diagnosis exception. However, under the rules of evidence, a description of the encounter and even identification of the perpetrator are within the exception, as statements made for purposes of diagnosis or treatment. Stahl at ¶ 15. In the victim‘s statements to Hinkle, the victim only identified the perpеtrator of the assault as her boyfriend. In addition, the victim‘s statements merely identified the cause or external source of her pain and the alleged sexual assault, highly pertinent and relevant information for Hinkle‘s diagnosis and treatment. See Cockrell, supra, at ¶ 33. Therefore, we do not find that the victim‘s statements identifying the appellant as the assailant defeats the admissibility of those statements based upon the hearsay exception for medical diagnosis and treatment. Appellant‘s fifth assignment of error is not well-taken.
{¶ 53} In his sixth assignment of error, appellant contends that the cumulative errors in this case deprived him of a fair trial. We have stated that although a particular error by itself may not constitute prejudicial error, the cumulative effect of the errors may deprive a defendant of a fair trial and may wаrrant the reversal of his conviction. State v. Hemsley, 6th Dist. No. WM-02-010, 2003-Ohio-5192, ¶ 32, citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. However,
{¶ 54} On consideration whereof, we find that appellant was not prejudiced or prevented from having a fair trial and the judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Stephen A. Yarbrough, 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.