State v. SmithState v. Smith
Robin N. Piper III, Butler County Prosecuting Attorney, Gloria J. Sigman, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011-0515, for plaintiff-appellee
Derek A. Farmer, P.O. Box 30083, Gahanna, Ohio 43230, for defendant-appellant
OPINION
YOUNG, P.J.
{¶1} Defendant-appellant, Robert B. Smith, Jr., appeals his conviction for obstruction of justice following a retrial in the Butler County Court of Common Pleas.
{¶2} Appellant was indicted in 2006 on one count of obstruction of justice, a felony of the third degree, in violation of
{¶3} In 2007, a jury acquitted appellant of third-degree felony obstruction of justice, but found him guilty of fifth-degree felony obstruction of justice, in violation of
{¶4} Appellant subsequently moved to dismiss the 2006 indictment (the original indictment). Appellant argued that given his acquittal at trial, to retry him on the third-degree felony obstruction of justice, the only count in the original indictment, would violate double jeopardy. Appellant also argued the original indictment did not contain all the elements of obstruction of justice (of either a third or fifth-degree felony) because it failed to allege the person aided “committed” a felony.
{¶5} By decision filed November 13, 2008, the trial court granted appellant‘s motion to dismiss. The trial court agreed that in light of his acquittal, to prosecute appellant on third-degree felony obstruction of justice, as charged in the original indictment, would violate double jeopardy. The trial court found, however, that because appellant‘s conviction was reversed due to trial error (prosecutorial misconduct) and not based upon the sufficiency of the evidence, appellant could be retried on a fifth-degree felony obstruction of justice charge.
{¶6} Appellant subsequently moved the trial court to clarify its decision.
{¶7} By decision filed November 21, 2008, the trial court reiterated that because double jeopardy does not bar the state from retrying a defendant who was found guilty of an offense that was later reversed on trial error grounds, “the State may retry Defendant on the lesser-included offense of Obstruction of Justice, a felony of the fifth degree.”
{¶8} Then, by journal entry filed November 26, 2008, the trial court granted appellant‘s motion to dismiss the original indictment “insofar as the State of Ohio is barred from further prosecution on the offense of Obstructing Justice, a third degree felony in violation of
{¶9} Appellant moved to dismiss the amended indictment but was unsuccessful. On December 12, 2008, a jury found him guilty of fifth-degree felony obstruction of justice, in violation of
{¶10} Appellant now appeals, raising six assignments of error. We will consider the third assignment of error out of order.
{¶11} Assignment of Error No. 3:
{¶12} “THE TRIAL COURT ERRED IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, WHEN IT FAILED TO GIVE A JURY INSTRUCTION
{¶13} Appellant challenges the trial court‘s jury instructions for obstruction of justice on the ground they do not require the jury to find that the person aided committed a felony, in violation of
{¶14} Jury instructions are matters which are left to the sound discretion of the trial court. State v. Guster (1981), 66 Ohio St.2d 266, 271. Ordinarily, requested instructions should be given if they are correct statements of the law, applicable to the facts in the case, and reasonable minds could reach the conclusion sought by the specific instruction. State v. Lawson (Apr. 30, 2001), Butler App. No. CA99-12-226, at 18, citing Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585. Ohio Jury Instructions are standard instructions and are not binding legal authority. State v. Goff, Lawrence App. No. 07CA17, 2009-Ohio-4914, ¶76. Strict compliance with OJI is not mandatory; deviation from OJI does not necessarily constitute error by a trial court. State v. Miller, Montgomery App. No. 22433, 2009-Ohio-4607, ¶14.
{¶16} In Mootispaw, we held it was not necessary to show that the person aided was actually convicted of a crime. Rather, it was sufficient to show that the person aided was charged with a crime:
{¶17} “Obviously, one cannot hinder the prosecution or conviction of another for crime unless a crime has actually occurred. The statute does not require, however, that the specific person being legally [sic] assisted be actually convicted of such crime. To hold otherwise would emasculate the purpose and intent of the legislature expressed in unambiguous terms. It is sufficient to show that the defendant‘s husband was charged with a crime, and that the defendant hindered his prosecution or conviction.” Mootispaw, 23 Ohio App.3d at 144. This court then upheld the denial of Mootispaw‘s Crim.R. 29 motion for acquittal.
{¶18} Subsequently, in State v. Penwell (Jan. 21, 1986), Fayette App. No. CA85-02-004, we addressed a trial court‘s refusal to instruct a jury that the state was required to prove, beyond a reasonable doubt, that the person aided committed a crime. In Penwell, the person aided had been indicted for the corruption of a minor. Relying on Mootispaw,
{¶19} “The jury instruction given by the trial court, regarding the elements of obstruction of justice, included inter alia, ‘the defendant did so [harbor or conceal, etc.] with purpose to hinder the discovery and/or apprehension of [the person aided] for a crime.’ Such an instruction was correct and in accord with our holding in Mootispaw and we adhere to our position in Mootispaw.” Id. at 9-10. (Emphasis sic.)
{¶20} Mootispaw and Penwell, therefore, stand for the proposition that while obstruction of justice cannot be committed unless an underlying crime has been committed, to sustain a conviction for obstruction of justice under
{¶21} In contrast with this court‘s position in Mootispaw and Penwell, the First Appellate District held that “[t]he crime of obstructing justice cannot be committed without the commission of an underlying crime by another[.] Therefore, it was incumbent upon the state to establish that the underlying crime had been committed.” State v. Bronaugh (1980), 69 Ohio App.2d 24, 25. Finding there was no proof that the underlying crime occurred, the appellate court reversed the trial court‘s denial of the defendant‘s Crim.R. 29 motion for acquittal and discharged the defendant.2
{¶22} At the time of the foregoing decisions, the degree of a defendant‘s guilt for
{¶23} Subsequently, the provision setting forth a defendant‘s guilt for obstruction of justice under
{¶24} Following the revision of
{¶25} We decline to follow the Fifth and Ninth Appellate Districts in requiring the state to prove beyond a reasonable doubt that the person aided committed the underlying crime. To so hold would place a considerable burden on the state and would result in a trial within a trial. Notwithstanding the revision of
{¶26} Under the obstruction of justice statute, a violation of
{¶27} “A person may be prosecuted for, and may be convicted of a violation of [
{¶28} As
{¶29} According to the Fifth and Ninth Appellate Districts, the commission of the underlying crime by the person aided must be proved to support a conviction for obstructing justice. The state would be required to prove the person aided was guilty of an offense beyond a reasonable doubt as well as proving the guilt of the defendant on trial. In other words, the actual guilt of the person aided (notwithstanding the language of newly amended
{¶30} If we were to follow the Fifth and Ninth Appellate Districts’ reasoning, how would the state prove a person aided committed an underlying crime, especially if such crime was a serious offense such as murder, an offense committed in another state, and/or an offense committed years ago? Further, in light of newly amended
{¶31} We therefore continue to adhere to our position in Mootispaw and Penwell. At this juncture, we note that contrary to the dissent‘s assertion, this court in Penwell did not agree with the First Appellate District in Bronaugh that the state is required to prove that a crime was committed by the aided party. (See fn. 2 of this opinion.) In Mootispaw, the person aided was charged with an underlying crime; in Penwell, the person aided was indicted for an underlying crime. In both cases, such evidence was sufficient.
{¶32} We therefore hold that to prove the crime of obstructing justice under
{¶33} In light of the foregoing, we find that the trial court‘s jury instructions for obstruction of justice were proper. The trial court did not abuse its discretion when it declined to instruct the jury under Section 521.32 of the Ohio Jury Instructions, and when it did not require the jury to find that Charles, the person aided, committed a felony. The trial court properly instructed the jury it was sufficient to show that Charles had been charged with a crime at the time of appellant‘s conduct. See State v. Davis (Sept. 28, 2000), Franklin App. No. 99AP-1428 (trial court did not err in instructing the jury that issuance of an indictment against the person aided was sufficient to prove the underlying
{¶34} Appellant‘s third assignment of error is overruled.
{¶35} Assignment of Error No. 1:
{¶36} “THE APPELLANT‘S CONVICTION MUST BE REVERSED BECAUSE THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE VERDICT AND/OR THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.”
{¶37} As noted earlier, the original charge against appellant stemmed from allegations that when police were attempting to ascertain the identity of one of his employees, appellant told police that his employee‘s name was Charles Williams when it was Charles Martin and that Charles had left the building shortly before he was found by police hiding inside the building. Appellant argues his conviction was supported by insufficient evidence and was against the manifest weight of the evidence because the state failed to prove (1) appellant lied to the police when he told them Charles had left the building; (2) appellant had any purpose to hinder the discovery of Charles when he made the statement to the police; and (3) Charles had committed or been charged with a felony at the time of the incident.
{¶38} “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry 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. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶70, certiorari denied (2006), 548 U.S. 912, 126 S.Ct. 2940, quoting State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. A reviewing court must not substitute its evaluation of the witnesses’ credibility for that of the jury‘s. See State v. Holdbrook, Butler
{¶39} When reviewing whether a conviction is against the manifest weight of the evidence, “[t]he court, reviewing the entire 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.” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. When reviewing the evidence, an appellate court must be mindful the original trier of fact was in the best position to judge the credibility of witnesses and weight to be given the evidence. State v. DeHass (1967), 10 Ohio App.2d 230, paragraph one of the syllabus.
{¶40} Appellant was convicted of obstruction of justice in violation of
{¶41} At appellant‘s second trial, the state presented the testimony of two Middletown police officers, Dennis Jordan and Jonathan Rawlings, and successfully moved to admit a certified copy of the Dayton Municipal Court‘s records relating to a felony robbery warrant against a Charles Martin. This time, the state‘s theory focused solely on appellant‘s statement to police that Charles was not in the building (and not his
{¶42} In the early hours of May 24, 2006, Officers Dennis Jordan and Jonathan Rawlings were dispatched to a used car lot in Middletown to investigate a possible break in. When the officers arrived at the lot, they encountered two men out in the lot, appellant and a man who identified himself as Charles Williams. Appellant told the officers that the car lot belonged to his mother and that they were rearranging cars. Appellant and Charles provided information as to their identity and the officers left. Officer Jordan entered the information into his police car computer. While the identification provided by appellant was correct, the social security number provided by Charles did not exist. Officer Jordan further discovered an outstanding traffic violation warrant for a Charles Williams. The officers drove back to the car lot.
{¶43} Upon arriving at the car lot, they observed Charles smoking a cigarette on the front porch of the office trailer. Officer Jordan observed Charles walk back towards the front door of the trailer. As the officers drove by to park, they lost sight of Charles. Neither officer saw Charles enter the trailer. By the time the officers parked and walked back to the trailer (two to three minutes after seeing Charles smoke), Charles was gone; a cigarette was laying on the railing. Officer Rawlings walked to the back of the trailer and stayed there; Officer Jordan walked to the front door of the trailer.
{¶44} Looking through the front door, “a full length pane of glass,” Officer Jordan saw appellant on the phone in an office, knocked, and made eye contact with appellant who ignored the officer. The officer knocked again and motioned appellant to come to the door. Appellant swiveled in his chair and turned his back to the officer. After a third knock, appellant finally came to the door and asked Officer Jordan what he needed. The
{¶45} The back of the trailer had a door. When Officer Rawlings was positioned at the back of the trailer, no one came out through the back door. However, the officer heard noise coming from inside the trailer. After Officer Jordan entered the trailer, Officer Rawlings walked back to the front door of the trailer, entered the trailer, and walked to the back of the trailer where he found Charles hiding in a back office with the door closed and the light off. Charles was found in the vicinity of where Officer Rawlings heard the noise.
{¶46} Following the discovery of Charles, Officer Rawlings tried to ascertain his true identity by talking to appellant. According to appellant, Charles had been employed at the car lot for a few months. While appellant was looking for Charles’ job application, Officer Rawlings noticed a monitor displaying a security camera with a live feed to the front of the trailer. Unable to find Charles’ job application, appellant called someone whom he referred to as his mother. Officer Rawlings felt that by referring to Charles as Charles Williams, appellant was trying to prompt his mother with regard to Charles’ identity.
{¶47} Although there was a traffic citation under the name of Charles Williams, it was later discovered that the traffic violation warrant which in part prompted the officers to return to the car lot was not for Charles. Despite a lengthy interview, the officers were
{¶48} Upon thoroughly reviewing the record, we find that appellant‘s conviction for obstruction of justice under
{¶49} “The making of unsworn false statements to a law enforcement officer with the purpose to hinder the officer‘s investigation of a crime is punishable conduct within the meaning of
{¶50} The record shows that when the officers came back to the car lot, they saw Charles smoking a cigarette on the front porch of the trailer; Officer Jordan observed Charles walk toward the front door of the trailer before losing sight of him. Officer Jordan was at the front door within two to three minutes of seeing Charles smoke. The record also shows that in the office where appellant was on the phone, there was a monitor
{¶51} Although much of the evidence against appellant is circumstantial, circumstantial evidence and direct evidence have the same probative value, and in some instances, certain facts can only be established by circumstantial evidence. Jenks, 61 Ohio St.3d at 272; State v. Mobus, Butler App. No. CA2005-01-004, 2005-Ohio-6164, ¶51. A conviction based on purely circumstantial evidence is no less sound than one based on direct evidence. State v. Apanovitch (1987), 33 Ohio St.3d 19, 27; Mobus at ¶51.
{¶52} Given the foregoing evidence, we cannot say that the jury lost its way in finding that appellant made false statements to the officer with the purpose to hinder the discovery or apprehension of Charles in the trailer. See Bailey, 71 Ohio St.3d at 448 (finding that words uttered by a defendant to officers as she blocked the entrance to her home constituted communication of false information under
{¶53} Appellant‘s first assignment of error is overruled.
{¶54} Assignment of Error No. 2:
{¶55} “THE TRIAL COURT ERRED IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I SECTIONS 10 & 16 OF THE OHIO CONSTITUTION WHEN IT FAILED TO DISMISS THE NOVEMBER 26, 2008 AMENDED INDICTMENT.”
{¶56} Appellant argues that the trial court erred when it failed to dismiss the amended indictment. Appellant asserts that when the trial court granted his motion to dismiss the original indictment in its first decision, it could not later amend an indictment that had already been dismissed. Appellant further asserts that the amended indictment is defective because it lacks the essential element under
{¶57} In the case at bar, the trial court issued two decisions before its journal entry. Based upon the reasons discussed earlier, the first decision stated that “Defendant‘s motion to dismiss is hereby GRANTED.” The second decision simply reiterated the reasoning set forth in the first decision. Then, in its journal entry, the trial court “ORDERED that the Defendant‘s motion to dismiss is granted insofar as the State of Ohio is barred from further prosecution on the offense of Obstructing Justice, a third degree felony in violation of
{¶58} The journal entry “FURTHER ORDERED that the State of Ohio may proceed upon retrial on the lesser included offense of Obstructing Justice, a fifth degree felony in violation of
{¶59} It is well-established that a court speaks only through its journal entries and not by oral pronouncement or through decisions. See Schenley v. Kauth (1953), 160 Ohio St. 109; Hayden v. Hayden, Warren App. No. CA2003-08-081, 2004-Ohio-6483. Without a journal entry, a decision or finding of a court has no force or effect. State v. Ronan, Franklin App. No. 06AP-63, 2007-Ohio-168, ¶9. It follows that notwithstanding the language used in the trial court‘s first decision, the trial court did not dismiss the original indictment in its decision. The trial court, therefore, did not amend an indictment that had been dismissed.
{¶60} In its journal entry, the trial court granted appellant the right not to be retried on third-degree felony obstruction of justice, allowed the state to retry appellant on fifth-degree felony obstruction of justice, and amended the original indictment to charge appellant with fifth-degree felony obstruction of justice ostensibly to conform to the evidence presented at the first trial. See State v. Breedlove (July 11, 1994), Butler App. No. CA93-12-230. We find no error.
{¶61} Appellant also asserts that the amended indictment is defective because it lacks the essential element under
{¶62} The purpose of an indictment issued by a grand jury has always been to give notice to the accused. An indictment is sufficient if it “first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, ¶9; Hamling v. United States (1974), 418 U.S. 87, 117, 94 S.Ct. 2887. Where one of the vital elements identifying a crime is omitted from the indictment, it is defective and cannot be cured by the court as such a procedure would permit the court to convict the accused on a charge essentially different from that found by the grand jury. State v. Wozniak (1961), 172 Ohio St. 517, 520; Harris v. State (1932), 125 Ohio St.257.
{¶63} We find that the specific language in
{¶64} In the case at bar, the amended indictment stated:
{¶65} “On or about May 24, 2006, at Butler County, Ohio, Robert B. Smith Jr., with purpose to hinder the discovery, apprehension, prosecution, conviction, or punishment of another for crime or to assist another to benefit from the commission of a crime (to wit: a
{¶66} As drafted, the amended indictment fully and fairly informed appellant of the nature and cause of the accusations against him, identified the underlying offense as a felony, and stated the degree of the offense allegedly committed by appellant, to wit fifth-degree felony obstruction of justice. We find the amended indictment was not defective.
{¶67} In light of all of the foregoing, we find that the trial court did not err when it failed to dismiss the amended indictment. Appellant‘s second assignment of error is overruled.
{¶68} Assignment of Error No. 4:
{¶69} “THE TRIAL COURT ERRED IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN IT FAILED TO SUPPRESS EVIDENCE THAT WAS SEIZED DURING A WARRANTLESS SEARCH.”
{¶70} Two days before trial, appellant moved to suppress the seizure of Charles’ person on the ground the search of the office trailer was unconstitutional. The state‘s attempt to dismiss the motion on the ground it was untimely filed was unsuccessful. Following a suppression hearing on the first day of trial, the trial court overruled the motion on the ground appellant lacked standing to challenge the search. Alternatively, the trial court found that Officer Jordan properly entered the trailer because he was let in voluntarily by appellant. It is conceded that the search of the trailer was conducted without a warrant.
{¶71} Appellant argues that the trial court erred in denying his motion to suppress. Appellant asserts that based on Officer Jordan‘s testimony at the second trial, the officers’ testimony at the first trial, and appellant‘s first trial testimony (as read into the record
{¶72} Appellate review of a trial court‘s decision on a motion to suppress involves mixed questions of law and fact. State v. Renner, Clinton App. No. CA2002-08-033, 2003-Ohio-6550, ¶8. When ruling on a motion to suppress evidence, the trial court assumes the role of the trier of fact and is in the best position to resolve questions of fact and to evaluate the credibility of witnesses. Id. Accordingly, an appellate court must defer to the trial court‘s findings of fact if competent, credible evidence supports them. Id. The appellate court must then independently determine, without deference to the trial court, whether the trial court properly applied the substantive law to the facts of the case. Id.
{¶73} Appellant alleges that the warrantless search of the trailer was conducted in violation of his constitutional rights. It is well-settled that the protections of the
{¶74} In the case at bar, appellant failed to demonstrate he had an expectation of
{¶75} Appellant nonetheless asserts there was sufficient evidence of standing because (1) his testimony from his first trial, which was read into the record, clearly established his relationship with the car lot; and (2) the trial court, which had presided over the first trial, could have taken judicial notice of the officers’ testimony from the first trial.
{¶76} With regard to appellant‘s first trial testimony, we note it was read into the record after the trial court declined to reconsider its ruling on the motion to suppress. The alleged evidence of appellant‘s relationship with the car lot was therefore not before the trial court when it ruled on appellant‘s motion to suppress. With regard to appellant‘s motion to reconsider, the record shows that following the two officers’ testimony during the second trial, appellant moved the trial court to reconsider its denial of the motion to suppress based upon additional evidence resulting from the officers’ testimony. The trial court summarily denied the motion.
{¶77} A motion to suppress is clearly a pre-trial motion which must be timely determined prior to trial.
{¶78} As for appellant‘s suggestion the trial court could have taken judicial notice of the officers’ testimony from the first trial, we disagree. “A trial court may not take judicial notice of prior proceedings in the court, but may only take judicial notice of the proceedings in the immediate case.” State v. Baiduc, Geauga App. No. 2006-G-2711, 2007-Ohio-4963, ¶20. “The rationale for this holding is that, if a trial court takes notice of a prior proceeding, the appellate court cannot review whether the trial court accurately interpreted the prior case because the record of the prior case is not before the appellate court.” Id. at ¶21. See, also, State v. Taylor (1999), 135 Ohio App.3d 634 (a court cannot take notice of proceedings in separate actions even when the separate actions involve the same parties and were before the same court.)
{¶79} We therefore find appellant lacked standing to challenge the warrantless search. In light of our holding, we need not address appellant‘s failure to consent to the search. Appellant‘s fourth assignment of error is overruled.
{¶80} Assignment of Error No. 5:
{¶81} “THE TRIAL COURT ERRED IN ACCEPTING THE STATE‘S PROFFERED RACE NEUTRAL REASON FOR STRIKING JUROR NO. 17 AND BY FAILING TO CONDUCT A COMPARATIVE JUROR ANALYSIS CONSISTENT WITH THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.”
{¶82} Appellant argues the trial court erred by permitting the state to use its peremptory challenges to remove the only African-American juror (Juror No. 17) from the
{¶83} Voir dire started with the state questioning prospective jurors. Then, during his questioning, defense counsel generally asked prospective jurors whether some of them were scared or nervous to stand up and speak in front of people. The record indicates several prospective jurors raised their hands; however, counsel only questioned two persons: a female non-African-American juror who stated she was nervous (the record does not indicate her juror number); and Juror No. 17 who stated she was shy and nervous. Defense counsel did not further question the two jurors about their nervousness; the state never questioned the two jurors about their nervousness. The other prospective jurors who had raised their hands were never identified. Thereafter, in exercising their peremptory challenges, both parties each removed a prospective juror. The state then removed Juror No. 17 and defense counsel objected on the basis of Batson.
{¶84} The state gave several nondiscriminatory reasons to the trial court for using a peremptory challenge against Juror No. 17: the state was not aware Juror No. 17 was African-American and instead assumed she was Asian; Juror No. 17 was 21 and a student; and the juror‘s nervousness and shyness. The trial court noted its belief the juror was Asian rather than African-American; heard arguments on appellant‘s objection; and then overruled it, finding that the state had offered sufficient race-neutral justifications for
{¶85} The Equal Protection Clause forbids the state‘s use of peremptory challenges to exclude potential jurors based solely on their race. Batson, 476 U.S. at 89. Batson set forth a three-prong test for determining whether a prosecutor‘s use of a peremptory challenge is racially motivated. First, the opponent of the peremptory challenge must make a prima facie case of racial discrimination by showing that the state used peremptory challenges to exclude potential jurors on the basis of race.5 Id. at 96. The burden then shifts to the state to offer a race-neutral explanation for the peremptory challenge. Id. at 97. The state‘s explanation need only be based on a juror characteristic other than race and not be pretextual. State v. McCuller, Butler App. No. CA2005-07-192, 2007-Ohio-348, ¶10. The ultimate burden of persuasion regarding racial motivation rests at all times with the opponent of the strike. Id.
{¶86} Finally, the trial court must determine whether the prosecutor‘s race-neutral explanation is credible or is instead a pretext for unconstitutional discrimination. Id. at ¶11. Because this stage of the analysis rests largely on the trial court‘s evaluation of the prosecutor‘s credibility, the findings of the trial court are given great deference. Id. “Deference is necessary because a reviewing court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial court is to make credibility determinations.” Miller-El v. Cockrell (2003), 537 U.S. 322, 339, 123 S.Ct. 1029; State v. Carver, Montgomery App. No. 21328, 2008-Ohio-4631. A trial court‘s determination that a
{¶87} In making this determination, the United States Supreme Court has set forth several factors to consider: (1) the bare statistics; (2) the similarity of answers to voir dire questions by African-American jurors who were peremptorily challenged and answers by non-African-American prospective jurors who were allowed to serve; (3) broader patterns of practice, including jury shuffling; (4) disparate questioning of African-American and non-African-American jurors; and (5) evidence that the prosecutor‘s office has historically discriminated against African-Americans in jury selection. Miller-El v. Dretke, 545 U.S. 231, 240-264; State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, ¶67.
{¶88} We find that the Dretke factors are not present in the case at bar. There is no evidence of broader patterns of practice and the state did not engage in jury shuffling.6 There is no evidence the Butler County Prosecutor‘s office has historically discriminated against African-Americans in the jury-selection process. There is no evidence of disparate questioning of African-American and non-African-American jurors.
{¶89} Further, there is no evidence that the “bare statistics” support a Batson challenge. While no African-American jurors served on the jury, the record indicates there was only one prospective juror who was possibly African-American, Juror No. 17. Indeed, as indicated earlier, while defense attorney raised a Batson challenge on the ground Juror No. 17 was African-American, the prosecutor and the trial court were both under the impression that Juror No. 17 was Asian. The lack of African-American jurors could very well be the result of so few African-American jurors being randomly selected for the original jury pool. See Frazier, 2007-Ohio-5048 at ¶69; Hunter, Montgomery App. No.22201, 2008-Ohio-2887 at ¶19.
{¶90} As for the last factor, appellant argues that the state‘s reason for excluding Juror No. 17 (nervousness) was improper because other jurors also expressed nervousness but were not peremptorily challenged. We disagree. While the record indicates several prospective jurors raised their hands when asked by defense counsel about nervousness, only two jurors were questioned: Juror No. 17 and the female non-African-American juror. Both provided similar short answers. Defense counsel did not further question the two jurors about their nervousness; the state never questioned the two jurors about their nervousness. Neither were allowed to serve on the jury: the state used a peremptory challenge to remove Juror No. 17; the defense used a peremptory challenge to remove the other juror. No other jurors were identified or questioned by either party regarding nervousness.
{¶91} In overruling appellant‘s Batson objection, the trial court stated: “the Court has watched all the jurors in their response to all the questions. And the Court would agree with the observation with the prosecuting attorney that [Juror No. 17] did appear to be nervous. She is 21, not married[.] I believe that the reason given by the prosecuting attorney is a race neutral reason. It was not motivated by any bias or prejudice on behalf of the State of Ohio. *** I certainly believe the reasons given are valid based on my observations of the juror.”
{¶92} Giving great deference to the trial court‘s findings and given that none of the Dretke factors apply, we find that the trial court did not err in determining that appellant failed to establish purposeful discrimination. Accordingly, the state‘s use of its peremptory challenge to remove Juror No. 17 did not violate equal protection or deny appellant a fair trial and an impartial jury. Appellant‘s fifth assignment of error is overruled.
{¶93} Assignment of Error No. 6:
{¶94} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT PERMITTED A POLICE REPORT [STATE‘S EXHIBIT 3] AND A COPY OF A WARRANT [STATE‘S EXHIBIT 2] TO BE ENTERED INTO EVIDENCE AND WHEN IT PERMITTED APPELLANT‘S PREVIOUS TRIAL TESTIMONY TO BE ADMITTED INTO EVIDENCE IN VIOLATION OF THE HEARSAY RULE AND FEDERAL AND STATE CONFRONTATION CLAUSES.”
{¶95} Appellant argues the trial court erred in admitting into evidence State Exhibit 2 (a certified copy from the Dayton Municipal Court Clerk of Courts and an attached computer printout showing a felony robbery warrant against Charles Martin); a police report prepared by Officer Jordan on May 24, 2006, the day of the incident; and appellant‘s first trial testimony (which was read into the record during the second trial). The record shows that following the officers’ testimony, the state told the trial court it had no further testimony to present. The state then successfully moved to admit Exhibit 2.7 The next day, after trial resumed, the state successfully moved to admit the police report and appellant‘s prior testimony.
{¶96} A trial court‘s decision to admit or exclude evidence will not be reversed by a reviewing court absent an abuse of discretion. State v. Williams, Butler App. No. CA2007-04-087, 2008-Ohio-3729, ¶8. An abuse of discretion implies that the court‘s decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶130.
{¶97} Appellant first argues the trial court erred in admitting Exhibit 2. Appellant asserts the documents in the exhibit were not properly authenticated; further, the certified copy from the Dayton Municipal Court shows a felony robbery “offense” but does not list a
{¶98} The trial court admitted the exhibit as a “self-authenticating document.” The court also overruled appellant‘s objection there was no evidence the Charles Martin referred to in the exhibit was the same Charles Martin present at the car lot on May 24, 2006. The trial court found the issue was addressed during Officer Jordan‘s testimony.
{¶99} Upon reviewing the record, we find that Exhibit 2 was properly admitted as a self-authenticating document pursuant to
{¶100} Appellant next argues the trial court erred in admitting Officer Jordan‘s police report in violation of the hearsay rule. Appellant used the report while cross-examining the two police officers. Following Officer Jordan‘s authentication of the report, the trial court admitted it on the basis of
{¶101} Police reports are generally considered to be inadmissible hearsay and should not be submitted to the jury. See State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, certiorari denied (2008), __ U.S. __, 129 S.Ct. 734. However, certain rules of evidence and exceptions may apply and result in a statement‘s admissibility. See State v. Jeffers, Gallia App. No. 08CA7, 2009-Ohio-1672.
{¶102}
{¶103} For the rule to apply, the declarant must be subject to cross-examination and the statement must be offered to rebut a charge that the declarant lied or was improperly influenced in his testimony. Williams, 2008-Ohio-3729, ¶12. To be admissible, prior consistent statements must have been made before the existence of any motive or influence to falsify testimony. Id. In determining whether to admit a prior consistent statement for rebuttal purposes, a trial court should take a generous view of the entire trial setting to determine if there was sufficient impeachment of the witness to amount to a charge of fabrication or improper influence or motivation. Grays at 12.
{¶104} After reviewing the record, we find that the trial court properly admitted the police report pursuant to
{¶105} Finally, appellant argues the trial court erred in admitting his prior testimony from the first trial. The testimony was admitted on the basis of Harrison v. United States (1968), 392 U.S. 219, 88 S.Ct. 2008, and State v. Slone (1975), 45 Ohio App.2d 24. In Harrison, the United States Supreme Court noted “the general evidentiary rule that a defendant‘s testimony at a former trial is admissible in evidence against him in later proceedings.” Harrison, 392 U.S. at 222. Both Harrison and Slone held that a defendant who voluntarily takes the stand on his own behalf at a prior trial waives his right to assert his constitutional privilege against self-incrimination in a subsequent trial where the prior testimony can be used against him. Harrison at 222; Slone, 45 Ohio App.2d at 27-28 (listing rationales used by state courts to justify the practice).9 In light of the foregoing, we find that the trial court did not err in admitting appellant‘s testimony from his first trial.
{¶106} Appellant‘s sixth assignment of error is overruled.
{¶107} Judgment affirmed.
HENDRICKSON, J., concurs.
RINGLAND, J., dissents.
RINGLAND, J., dissenting.
{¶109} However, “[s]ections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.”
{¶110} In Mootispaw, this court found that, to convict an individual for obstruction of justice, it was not necessary to show that the aided individual had been convicted of the underlying crime. 23 Ohio App.3d. at 144. This court found that it was sufficient to show the aided individual was charged with a crime. Id. While I agree with Mootispaw that it is not necessary to show that the specific person illegally assisted was actually convicted of a crime, it is not sufficient to show that the illegally assisted individual was merely charged with a crime.
{¶111} Subsequently, in Penwell, this court revisited Mootispaw to examine this court‘s decision in light of the First Appellate District‘s decision in Bronaugh. In Bronaugh, the First District held, “[t]he crime of obstructing justice cannot be committed without the commission of an underlying crime by another * * *. Therefore, it was incumbent upon the state to establish that the underlying crime had been committed.” 69 Ohio App.2d at 25.
{¶112} To the contrary, though, in a subsequent decision, which preceded both Mootispaw and Penwell, the First District had already clarified what was required by Bronaugh. In State v. Hopkins, Hamilton App. No. C-810539, 1982 WL 8511, the First District, citing Bronaugh, found that to support a conviction for obstruction of justice the underlying crime must be established beyond a reasonable doubt. Id. at *1. Despite any claims to the contrary by the Penwell court, a conflict clearly existed between Mootispaw and the decisions of the First District.
{¶113} Penwell obscured this district‘s position on the instant issue by proclaiming that no conflict existed with the First District and agreeing with Bronaugh‘s pronouncement that “the state has to show that an underlying crime has been committed,” while also reaffirming the holding of Mootispaw. Due to Penwell, it is unclear what evidence this court requires to support a conviction for obstruction of justice. Must the state prove that a crime was committed by the aided party, as required by the First District in Bronaugh and agreed with by this court in Penwell, or is it sufficient to merely show a pending criminal charge against the aided party? A crime being charged is not the same as a crime being committed. The majority in this case wishes to adhere to Mootispaw despite extensive revision to
{¶114} The former version of
{¶115}
{¶116} “(2) If the crime committed by the person aided is a misdemeanor or if the act committed by the child aided would be a misdemeanor if committed by an adult, obstructing justice is a misdemeanor of the same degree as the crime committed by the person aided or a misdemeanor of the same degree that the act committed by the child aided would be if committed by an adult.
{¶117} “(3) Except as otherwise provided in divisions (C)(4) and (5) of this section, if the crime committed by the person aided is a felony or if the act committed by the child aided would be a felony if committed by an adult, obstructing justice is a felony of the fifth degree.
{¶118} “(4) If the crime committed by the person aided is aggravated murder, murder, or a felony of the first or second degree or if the act committed by the child aided would be one of those offenses if committed by an adult and if the offender knows or has reason to believe that the crime committed by the person aided is one of those offenses or that the act committed by the child aided would be one of those offenses if committed
{¶119} “(5) If the crime or act committed by the person or child aided is an act of terrorism, obstructing justice is one of the following:
{¶120} “(a) Except as provided in division (C)(5)(b) of this section, a felony of the second degree;
{¶121} “(b) If the act of terrorism resulted in the death of a person who was not a participant in the act of terrorism, a felony of the first degree.”
{¶122} The majority acknowledges the strong emphasis placed upon the crime committed by the person aided in the revised version. Further, the majority explicitly recognizes that “the degree of guilt depends on the crime committed by the person aided.” (Emphasis added.) Yet, the majority then concludes it is sufficient to show that the person aided was merely charged with a crime. Without commission of an underlying crime, how can the degree of the offense be determined?
{¶123} The majority suggests that the legislature did not intend to “burden the state with proving the person aided committed the underlying crime,” advancing hypothetical situations where proving commission of an underlying offense could be difficult.
{¶124} The majority may, or may not, be correct. Nevertheless, it is not the court‘s role to speculate upon or inject a legislative intent because “courts do not have the authority to ignore the plain and unambiguous language of a statute under the guise of either statutory interpretation or liberal construction; in such situation, the courts must give effect to the words utilized.” Morgan v. Ohio Adult Parole Auth., 68 Ohio St. 3d 344, 346, 1994-Ohio-380. See, also, State v. Craig, 116 Ohio St.3d 135, 2007-Ohio-5752, ¶14. Even if the majority is correct, it is up to the legislature, not the courts, to amend the law.
{¶125} Additionally,
{¶126} The current version of
{¶127} As it currently stands, proof of the commission of an underlying crime is necessary to support a conviction for obstructing justice. In this case, it was not sufficient to merely show that Charles Martin was charged with a crime. Rather, the court should have instructed that the jury was required to find that Charles Martin committed an underlying offense. The trial court‘s jury instructions were incorrect. Additionally, the state failed to present any evidence demonstrating that Charles Martin committed an underlying crime. Instead, the state merely introduced evidence that Martin had a felony charge pending in another county. As a result, appellant‘s conviction is not supported by sufficient evidence and against the manifest weight of the evidence. I would sustain appellant‘s first and third assignments of error. I concur with the majority‘s resolution of the remaining assignments of error.