State v. SanchezState v. Sanchez
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-515338 and CR-507055
BEFORE: Cooney, J., Kilbane, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: December 16, 2010
John B. Gibbons
2000 Standard Building
1370 Ontario St.
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶ 1} Defendant-appellant, Jose Sanchez (Sanchez), appeals his convictions following trial on four counts of felonious assault and one count of domestic violence including two specifications relating to prior domestic violence convictions. We find some merit to the appeal and affirm in part and reverse in part.
{¶ 2} This consolidated appeal arises from two separate criminal cases that were consolidated for trial. In CR-507055, Sanchez was charged with one
{¶ 3} During opening statements, the State explained that Sanchez was on trial for two separate cases and that the evidence in each case should be kept separate from the other. In its instructions to the jury, the trial court informed the jury that, [t]he charges set forth in each count of the indictments constitute separate and distinct matters. You must consider each count and the evidence applicable to each count separately.
{¶ 4} In CR-507055, Rodriguez testified that on December 14, 2007, she and her friends Ashley Adkins (Adkins) and Licenia Laboy (Laboy) had been drinking at a bar before going to Sanchez‘s house. She admitted that they were highly intoxicated. Rodriguez and Laboy started arguing and went outside to fight. As they argued, Sanchez struck Rodriguez‘s face with a bottle. Rodriguez saw Sanchez holding a broken bottle with jagged edges in his hand.
{¶ 5} Adkins, who is Sanchez‘s cousin, testified that she witnessed Sanchez strike Rodriguez in the face with a Corona bottle and that the bottle shattered when it hit Rodriguez. Upon further questioning, Adkins stated that Sanchez was the only one who could have hit Rodriguez.
{¶ 6} In CR-515338, Dr. Gerald Maloney (Dr. Maloney) testified that he was the physician who attended to Judy Garcia (Garcia), when she came to MetroHealth complaining of pain in her rib cage, knee, and right hand. Dr. Maloney testified that Garcia told him she was injured when Sanchez, her ex-boyfriend, attempted to steal her car. She explained to Dr. Maloney that as she attempted to prevent the theft, Sanchez drove away, dragging her for a period of time before she fell from the car. Dr. Maloney further testified that it is customary to ask questions regarding how the injuries occurred and who the perpetrator was in order to adequately treat the patient and ensure a safe environment for recovery.
{¶ 7} Sgt. Robert Bartos (Sgt. Bartos) testified that on March 8, 2008, he was dispatched to Garcia‘s home where he observed Garcia crying, yelling, and gesturing in an animated fashion. She told Sgt. Bartos that her boyfriend, Sanchez, had taken her car and caused her injuries.
{¶ 8} At the close of the State‘s case, Sanchez moved for acquittal pursuant to
{¶ 9} The court proceeded immediately to sentence Sanchez to eight years in prison on each of the felonious assault convictions in CR-507055, to run concurrently. In CR-515338, the court sentenced Sanchez to eight years in prison on each of the felonious assault convictions and five years for the domestic violence conviction. The court ordered these sentences to run concurrently with each other and consecutive to the term of incarceration imposed in CR-507055. Sanchez was sentenced to an aggregate sixteen-year prison term. He now appeals, raising five assignments of error.
Out-of-Court Statements
{¶ 10} We begin our discussion with the third assignment of error, which concerns the admissibility of an out-of-court statement, because evidence of this out-of-court statement is relevant to our analysis of the first and second assignments of error. In the third assignment of error, Sanchez argues he was denied due process of law when the trial court allowed a non-hearsay statement
{¶ 11} Generally, out-of-court statements offered to prove the truth of the matter asserted are inadmissible hearsay.
{¶ 12} For a statement to be admissible as an excited utterance, four prerequisites must be satisfied: (1) the occurrence of an event startling enough to produce a nervous excitement in the declarant; (2) a statement made while still under the stress of excitement caused by the event; (3) a statement related to the startling event; and (4) the declarant‘s personal observation of the startling event. State v. Taylor (1993), 66 Ohio St.3d 295, 300-301, 612 N.E.2d 316. There is no specific time limit to determine whether a victim of violence is making a statement under the stress of a startling occurrence; these statements must be analyzed in light of the particular facts and circumstances in which [they were]
{¶ 13} Further, in Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, the United States Supreme Court found that the Confrontation Clause of the
{¶ 14} In determining whether a statement constitutes testimonial hearsay, the consolidated cases of Davis v. Washington and Hammon v. Indiana (2006), 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 are instructive. In Davis, the United States Supreme Court held that statements made during police
{¶ 15} In Hammon, the hearsay statements at issue were made to police officers
{¶ 16} responding to a domestic-violence complaint after they had secured the scene. Id. at 817-821. The Supreme Court held that these statements were testimonial and were barred by the
{¶ 17} Sanchez contends Garcia‘s statement to Sgt. Bartos was not admissible under
{¶ 18} During Sgt. Bartos‘s testimony, the following exchange took place:
Q: When you did arrive, what did you observe?
A: Um, the person that was the victim was upset. Actually, don‘t [sic] think she had shoes on that day, as well, which was kind of strange for me, being that it was three feet of snow, give or take.
She was just upset, crying, that kind of thing.
Q: Could you, again, describe in more detail, her state of anxiety that you just described?
A: In terms of her physical behavior?
Q: Yes. And her emotional behavior. How she was explaining to you.
A: Like I said, she was upset. She was waving her hands, yelling, just carrying on in an upset manner.
THE COURT: Officer, listen carefully, because on the next questions that he asks you, you can only answer those questions if she was in an excited state. If it didn‘t happen in the condition that you just described, then you need to indicate it to me Okay?
THE WITNESS: Okay.
Q: * * * Did she identify the person who caused her injuries, while she was in that excited state?
MR. MAGEE: Objection.
THE COURT: Only answer the question if she said it when she was excited.
A: Yes, she did.
THE COURT: Objection overruled.
* * *
Q: Now, she identified her assailant or the person who caused her injuries. What was the name of the person that she gave you?
A: Jose Sanchez.
Q: And did she give you this name when she was still feeling the — or exhibiting the emotions that you described?
A: Yes.
Q: What else did she tell you while she was still exhibiting those emotional signs?
A: That he was her boyfriend, and that he took her car.
{¶ 19} Clearly, the prosecutor laid a foundation by inquiring about Garcia‘s demeanor and her emotional state as expressed by her behavior. All of the foundational requirements for admission of Garcia‘s statement as an excited utterance were satisfied: the existence of a startling or shocking event, the declarant‘s possessing firsthand knowledge of that event and being under the
{¶ 20} Further, we do not find Garcia‘s statements were testimonial in nature. Although Sanchez was no longer at the scene when the police arrived, the emergency was still in progress. In contrast to Hammon where the police questioned the victim some time after the events occurred and the witness told police she was fine, the events in the instant case occurred just moments before police arrived, and Garcia exhibited signs of distress. The perpetrator had not yet been apprehended, and Garcia was injured and crying. In Cleveland v. Colon, Cuyahoga App. No. 87824, 2007-Ohio 269, ¶20, this court found that such circumstances objectively indicate that the primary purpose of the interrogation was to enable the police to assist the victim in an ongoing emergency. Therefore, Garcia‘s statement does not constitute testimonial hearsay.
{¶ 21} Sanchez also claims, [s]uch an identification statement is non-hearsay and is admissible pursuant to 501(D) Ohio Rules of Evidence, if the Declarant testifies at the Hearing and is subject to cross-examination. Sanchez suggests that because Garcia was not available to testify at trial, her statement identifying Sanchez as the perpetrator was not admissible under
{¶ 22} Therefore, we find Sanchez‘s argument lacks merit. The court properly admitted Garcia‘s out-of-court statement identifying Sanchez as the person who assaulted her pursuant to
Consolidated Cases
{¶ 23} In the first assignment of error, Sanchez claims the trial court violated his due process rights by compelling him to stand trial before a jury on two unrelated cases. Sanchez argues that the evidence of unrelated crimes, including prior domestic violence convictions applicable to CR-515338, unfairly prejudiced his defense against allegations of felonious assault in CR-507055. He also claims his defense was prejudiced by being forced to defend two unrelated cases in a single trial.
{¶ 24} We initially note that because Sanchez failed to renew his objection to the joinder of the indictments at the close of the State‘s evidence or at the conclusion of all the evidence, he has waived this issue on appeal except for plain error. State v. Owens (1975), 51 Ohio App.2d 132, 146, 366 N.E.2d 1367; see, also, State v. Saade, Cuyahoga App. Nos. 80705 and 80706, 2002-Ohio-5564; State v. Hill, Cuyahoga App. No. 80582, 2002-Ohio-4585; State v. Fortson (Aug. 2, 2001), Cuyahoga App. No. 78240. Under
{¶ 25}
Joinder of offenses. Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged * * * are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct.
{¶ 26}
The court may order two or more indictments or informations or both to be tried together, if the offenses or the defendants could have been joined in a single indictment or information.
{¶ 27} Thus, pursuant to
{¶ 28} However, if joinder would prejudice a defendant, the trial court is required to order separate trials.
{¶ 29} In the instant case, the two cases are separate and distinct. They are similar in that they both involve allegations of felonious assault, but they are not based on connected transactions, nor do they form a course of conduct. Further, evidence of Sanchez‘s domestic violence convictions would not have been admissible in CR-507055 to prove the two counts of felonious assault involving Rodriguez. Hence, there was undoubtedly some prejudice caused by the joinder of the two cases. However, the evidence in each case was simple and direct.
{¶ 30} Moreover, the joinder of the two cases did not affect their outcome. In CR-507055, there was direct evidence from two eyewitnesses who testified that Sanchez struck Rodriguez in the face with a bottle. Rodriguez testified that
{¶ 31} There was substantial evidence of Sanchez‘s guilt in CR-515338. Although Garcia did not testify at trial, Officer Bartos testified that he responded to the scene immediately after the assault occurred. As previously discussed, he described Garcia as being in an excited state when she told him that Sanchez stole her car, dragging her until she fell. Dr. Maloney also testified that Garcia told him that Sanchez dragged her with her car. Sanchez‘s prior domestic violence convictions were also properly admitted into evidence to prove the domestic violence specifications that enhanced the penalty for domestic violence. It is important to note that the jury found Sanchez not guilty of grand theft of the motor vehicle, thus demonstrating its ability to separately analyze each of the two cases. See State v. Reuschling, 11th App. No. 2007-A-0006, 2007-Ohio-6726.
{¶ 32} Therefore, although the joinder of the two cases was arguably improper under
Sufficiency of Evidence
{¶ 34} Pursuant to
{¶ 35} A challenge to the sufficiency of the evidence supporting a conviction requires a court to determine whether the State has met its burden of production at trial. State v. Thompkins (1997), 78 Ohio St.3d 380, 390, 678 N.E.2d 541. On review for sufficiency, courts are to assess not whether the State‘s evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. Id. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
{¶ 36} Sanchez argues that, because Garcia did not testify, the admission of her out-of-court statements violated the Confrontation Clause of the
{¶ 37} As set forth above, Garcia‘s statement to Sgt. Bartos accusing Sanchez of assaulting her with her car was admissible as nontestimonial hearsay pursuant to
{¶ 38} Sanchez suggests that the circumstantial nature of these out-of-court statements renders this evidence too tenuous to support his convictions. However, in Jenks, the Ohio Supreme Court explained that [c]ircumstantial evidence and direct evidence inherently possess the same probative value. Id. at 272. Further, [i]n some instances certain facts can only be established by circumstantial evidence. Id. The credibility and weight of the out-of-court statements are, of course, still to be judged by the factfinder. Nevertheless, in reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the prosecution. If the out-of-court statements are believed, then any rational trier of fact could have found the essential elements of felonious assault and domestic violence involving Judy Garcia proven beyond a reasonable doubt.
{¶ 39} Accordingly, the second assignment of error is overruled.
Prosecutorial Misconduct
{¶ 40} In the fourth assignment of error, Sanchez argues he was denied due process of law when the prosecuting attorney engaged in misconduct during his final closing argument. Specifically, Sanchez claims the prosecutor improperly told the jury that Adkins, a witness to the felonious assault of Rodriguez, was afraid to testify for fear that Sanchez would harm her, her
{¶ 41} We note at the outset that defense counsel did not object to these statements during closing arguments. Therefore, we review the State‘s closing argument under plain error analysis. As previously stated, in order to find plain error under
{¶ 42} Although the prosecuting attorney told the jury during closing arguments that Adkins was afraid to testify, this statement rebutted a conspiracy theory that defense counsel raised in closing argument in which the defense highlighted the same testimony. In closing argument, referring to Adkins, defense counsel stated:
And I think she may have been reluctant to testify, not out of any kind of fear, but out of being put in a bad position. She‘s friends with Ms. Rodriguez. * * *
Now, she did give an interview over the phone, and she indicated at that time, well, Raven didn‘t hit her, but somebody threw a bottle that hit Licenia in the head. Now she doesn‘t put that in her written statement later. And I would submit to you, that‘s because she had time to talk to Ms. Rodriguez, and they now had to put together a story, and she realizes someone throwing a bottle doesn‘t make any sense. Because as you heard Ms. Rodriguez and Ashley indicated that only the three of them were outside.
I don‘t know where Mr. Magee got half the stuff he just said, because it never came out at trial. And about the collaboration between Raven Rodriguez and Ashley Adkins, to cook up a story, I think was the words he used. Where was the evidence?
* * * You heard her. She‘s afraid of him. That‘s why she didn‘t come in here. There‘s no conspiracy theory. I had to provide her with an escort to get her here because she‘s afraid. You heard her say that. And I don‘t see anything wrong with a seventeen-year-old girl coming in here with a room of adults, facing the man who hurt her friend with a bottle. Mr. Magee says that doesn‘t make any sense. I don‘t think there is anything clearer than a seventeen-year-old girl being afraid of this man.
{¶ 44} Clearly, the prosecutor‘s reference to Adkins was made simply to rebut the defense‘s suggestion that Adkins was hesitant to testify because she and Rodriguez had fabricated a story. Furthermore, contrary to Sanchez‘s claim that there was no foundation for the prosecutor‘s statement, the record reflects otherwise. During direct examination, Adkins testified:
Q: Did you want to be here yesterday?
A: No.
Q: How did you arrive here yesterday?
A: The police came and picked me up from my house.
Q: Is that because you did not want to come testify?
A: Yes.
Q: Had Detective Fraticelli ever attempted to take to you before?
A: Yes.
Q: Did you talk to her over the phone?
A: Yes.
Q: What did you tell her when you talked to her over the phone?
A: That I was scared to testify.
Q: Why were you scared to testify?
A: Cause I didn‘t — I got two kids, and I didn‘t want nothing happening to them and my grandmother.
Q: Okay. And that‘s the reason you weren‘t coming in until, essentially, today?
A: Yes.
{¶ 45} Therefore, because the prosecutor‘s statements were made to rebut defense counsel‘s conspiracy theory and because there was evidence in the record to support the prosecutor‘s statements, we find no prosecutorial misconduct that could have affected the outcome of the trial.
{¶ 46} Accordingly, the fourth assignment of error is overruled.
Allied Offenses
{¶ 47} In the fifth assignment of error, Sanchez argues the felonious assault charges are allied offenses that should be merged. The State concedes that two counts of felonious assault against the same victim in both CR-507055 and CR-515338 should have been merged.
{¶ 48} Sanchez also argues the domestic violence conviction should be merged with the felonious assault conviction. The State contends the felonious assault conviction and domestic violence conviction are not allied offenses and therefore should not be merged.
{¶ 49}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 50} In State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, the Ohio Supreme Court established a two-part test for determining whether offenses are allied offenses of similar import under
{¶ 51} In the second step, the court reviews the defendant‘s conduct to determine whether the crimes were committed separately or with a separate animus for each crime. Id. at ¶14. If so, the defendant may be convicted of both offenses. Id. If the reviewing court concludes that two offenses are allied offenses of similar import under
{¶ 52} We first compare the elements of the offenses in the abstract. Cabrales at paragraph one of the syllabus. Sanchez was convicted of felonious assault under
{¶ 53} In comparing the respective elements of these two offenses, we find that the offenses are not allied offenses of similar import. Although the offenses share the elements of knowledge and causation, felonious assault involves a finding of serious physical harm committed against any person, whereas
{¶ 54} Accordingly, the fifth assignment of error is sustained in part. Judgment affirmed in part, reversed in part, and case remanded for merger of allied offenses and for resentencing.
It is ordered that appellant and appellee share the 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 common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
MARY EILEEN KILBANE, P.J., and
JAMES J. SWEENEY, J., CONCUR