State v. RussellState v. Russell
Rendered on September 29, 2009
Ron O‘Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.
W. Joseph Edwards, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1} Joseph V. Russell, Jr., defendant-appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court found him guilty, pursuant to a jury verdict, of felonious assault, in violation of
{¶2} On August 26, 2008, at аpproximately 1:00 am, the female victim was walking on a sidewalk to a friend‘s home when appellant, who was driving a sport utility vehicle, drove by her. The victim testified at trial that appellant jumped out of his vehicle,
{¶3} Amy Welsh, a detective with the Columbus Pоlice Department, interviewed appellant, during which appellant indicated he was HIV positive. At trial, Detective Welsh testified that she told the victim appellant was HIV positive. Appellant‘s counsel objected, claiming that, because a positive HIV test was a crucial element of the case for the Statе of Ohio, plaintiff-appellee, evidence of such must be introduced via a medical record or testimony of a medical professional. At the close of the state‘s case, appellant‘s counsel moved for a judgment of acquittal pursuant to
I. APPELLANT‘S RIGHTS UNDER OHIO LAW AS WELL AS HIS DUE PROCESS RIGHTS UNDER THE U.S. AND OHIO CONSTITUTIONS WERE VIOLATED WHEN THE TRIAL
COURT DID NOT GRANT HIS REQUEST FOR DISMISSAL UNDER RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE[.] II. THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE APPELLANT WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION AND WAS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE[.]
III. WHEN COUNSEL‘S PERFORMANCE IS DEFICIENT IN THE CONDUCT OF TRIAL COUPLED WITH PREJUDICE INURING TO THE DETRIMENT OF THE APPELLANT, HIS RIGHT TO A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL ARE VIOLATED CONTRA THE OHIO AND FEDERAL CONSTITUTIONS[.]
{¶4} Appellant argues in his first assignment of error that the trial court erred when it denied his motion to dismiss based upon
{¶5} Here, appellant contends, under the concept of corpus delicti, the state could not present appellant‘s admission that he was HIV positive until it presented some other evidence of thе felonious assault. The corpus delicti of an offense consists of the act and the criminal agency of the act. State v. Edwards (1976), 49 Ohio St.2d 31. Before a confession of a crime may be admitted at trial, the state must introduce evidence independent of the confession to establish the corpus delicti of the offense. See State v. Maranda (1916), 94 Ohio St. 364, paragraphs one and two of the syllabus; see also State v. Van Hook (1988), 39 Ohio St.3d 256, 261. The cоrpus delicti rule is designed to protect persons who confess to crimes that they not only did not commit themselves but that were never committed by anyone. State v. Nobles (1995), 106 Ohio App.3d 246, 261-62. Accordingly, this rule does not require evidence, other than the confession, showing that the accused committed the crime but, rather, requires some evidence that a crime was, in fact, committed. State v. Hopfer (1996), 112 Ohio App.3d 521, 561.
{¶6} The evidence presented need not be so strong that it is capable of persuading a fact finder on some element of the crime beyond a reasonable doubt. Nobles at 262. Nor must the evidence be even enough to make it a prima facie case.
{¶7}
(B) No person, with knowledge that the person has tested positive as a carrier of a virus that causes acquired immunodeficiency syndrome, shall knowingly do any of the following:
(1) Engage in sexual conduct with another person without disclosing that knowledge to the other person prior to engaging in the sexual conduct[.]
Thus, the elements of felonious assault under
{¶8} Here, appellant‘s sole argument is that corpus delicti required the state to first present some evidence that he knew he had tested positive for HIV prior to the presentation of his admission that he was HIV positive, but no other evidence was admitted. However, as indicatеd above, the evidence adduced pursuant to corpus delicti need not meet all of the elements of the crime. The corpus delicti rule does not require evidence upon all elements of the crime but only some material element. Van Hook at
{¶9} Appellant argues in his second assignment of error that the jury‘s verdict was based upon insufficient evidence and against the manifest weight of the evidence. We have already discussed our standard of reviеw with regard to an insufficiency of the evidence claim. This court‘s function when reviewing the weight of the evidence is to determine whether the greater amount of credible evidence supports the verdict. Thompkins at 387. In order to undertake this review, we must sit as a “thirteenth juror” and review the entire record, weigh the evidence and all reasоnable inferences, consider the credibility of the witnesses, and determine whether the trier of fact clearly lost its way and created a manifest miscarriage of justice. Id., citing State v. Martin (1983), 20 Ohio App.3d 172, 175. If we find that the fact finder clearly lost its way, we must reverse the conviction and order a new trial. Id. On the other hand, we will not reverse a conviction so long as appellee, the State of Ohio, presented substantial evidence for a reasonable trier of fact to conclude that all of the essential elements of the offense were established beyond a reasonable doubt. State v. Getsy, 84 Ohio St.3d 180, 193-94, 1998-Ohio-533; State v. Eley (1978), 56 Ohio St.2d 169, syllabus.
{¶10} In addressing a manifest weight of the evidence argument, we are able to consider the credibility of the witnesses. See Martin at 175. However, in conducting our review, we are guided by the presumption that the jury, or the trial court in a bench trial, “is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80. Thus, a reviewing court must defer to the factual findings of the jury or judge in a bench trial regarding the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Concerning the issue of assessing witness credibility, the general rule of law is that “[t]he choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact.” State v. Awan (1986), 22 Ohio St.3d 120, 123. Indeed, the fact finder is free to believe all, part, or none of the testimony of each witness appearing before it. Hill v. Briggs (1996), 111 Ohio App.3d 405, 412. If evidence is susceptible to more than one construction, reviewing courts must give it the interpretation that is consistent with the verdict and judgment. White v. Euclid Square Mall (1995), 107 Ohio App.3d 536, 539. Mere disagreement over the credibility of witnesses is
{¶11} Appellant‘s оnly argument under this assignment of error is that there existed insufficient evidence, and the jury‘s verdict was against the manifest weight of the evidence, as to the elements of testing positive for HIV and possessing knowledge thereof. Appellant contends that there was insufficient evidence and the verdict was against the manifest weight of the evidence because the only evidence of these two elements was via the tape-recorded interview between appellant and Detective Welsh. Appellant maintains that he is not a medical doctor and is not an expert on whether he actually tested positive for HIV. We find this argument without merit. Appellant‘s сonfession was sufficient evidence to support the element of having a positive HIV test and knowledge thereof. The following conversation took place between appellant and Detective Welsh during the police interview:
Q Did you use a condom?
A No.
Q Do you think that‘s right knowing that you have – you‘re HIV?
A No, I don‘t think it‘s right.
* * *
Q Then why would you do that to someone? I mean, you know, you should at least tell them, and let them have the option to decide for themself [sic]. No?
A Yeah. You‘re right.
Q You know you have to cover up?
A Yeah, I know.
(Tr. 137-38.)
{¶12} It is unclear from the record how Detective Welsh became aware that appellant had HIV. Also, in the above exchange, appellant does not explicitly state that he has HIV. However, appellant‘s answers to the detective‘s questions sufficiently confirmed that he did, in fact, have HIV, and he knew he had HIV. It would be expected that appellant would have denied the detective‘s allegation that he had HIV were it not true. Appellant stated in the interview that he had “some college,” and he spoke plainly and had no problem artiсulating his opinions and thoughts. Throughout the interview, appellant also had no problem aggressively refuting claims and allegations asserted by Detective Welsh, and we are left with no doubt that appellant would have objected to the detective‘s statements regarding HIV and his knowledge of having HIV if they were not true. We find appellant‘s responses and tacit acknowledgement of his HIV-positive status during the interview provided sufficient evidence to prove the pertinent elements in
{¶14} An attorney properly licensed in the state of Ohio is presumed competent. State v. Lott (1990), 51 Ohio St.3d 160, 174. The defendant has the burden of proof and must overcome the strong presumption that counsel‘s performance was adequate or that counsel‘s action might be sound trial strategy. State v. Smith (1985), 17 Ohio St.3d 98, 100. In demonstrating prejudice, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would havе been different. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus.
{¶15} In the present case, appellant argues that his counsel was ineffective because he failed to object to appellant‘s adoptions of Detective Welsh‘s HIV-related questions when they were presented prior to the presentation of some evidence of corpus
{¶16} Accordingly, appellant‘s three assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BRYANT and McGRATH, JJ., concur.
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