State v. SmithState v. Smith
JUDGMENT: AFFIRMED
Robert L. Tobik
Cuyahoga County Public Defender
David M. King
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William Mason
Cuyahoga County Prosecutor
BY: Melinda Kowalski
T. Allan Regas
Thorin Freeman
Assistant Prosecuting Attorneys
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, Delonta Smith (defendant), appeals his convictions for felonious assault and domestic violence following a jury trial. Defendant also challenges being sentenced for a felony, rather than a misdemeanor, domestic violence conviction. For the reasons that follow, we affirm.
{¶ 2} Defendant was indicted on two counts of felonious assault and one count of domestic violence. The domestic violence count contained a furthermore clause specifying that defendant had been previously convicted of domestic violence. The defense stipulated to the furthermore clause and defendant‘s prior conviction for domestic violence. The defense then objected to submission of the conviction as a State‘s exhibit to the jury stating that, “[s]ince we have stipulated to that prior conviction of domestic violence, that‘s no longer an element that they [the jury] have to judge and determine whether there is proof beyond a reasonable doubt of that element, that furthermore clause. We‘re conceding it by stipulation. *** [T]here is no real relevance [of submitting the prior conviction to the jury as an Exhibit] because the jury doesn‘t have to determine that issue, the furthermore clause, that‘s conceded by stipulation.” (Tr. 144-145.) The court excluded State‘s Exhibit B, defendant‘s prior conviction for domestic violence, from the evidence “based on the stipulations agreed upon by the parties, the State and the defendant.”
{¶ 3} The defense also stipulated to the victim‘s medical records but requested redaction of the following note: “Patient was hit in head with metal can by boyfriend.” The trial court admitted the medical records without redaction.
{¶ 5} The victim did not open the door initially but eventually spoke to police. She signed a complaint for domestic violence and defendant was arrested. The victim then went to the hospital where she received stitches.
{¶ 6} The victim further authenticated several letters that defendant wrote to her, wherein he urged her not to appear for his trial.
{¶ 7} The defense called the investigating detective on cross-examination. She indicated that she spoke to the victim over the phone but was not able to obtain a written statement from her. The detective reviewed the 911 tapes and the parties’ criminal records. The 911 tapes were not provided to the defense nor introduced as exhibits at trial. The detective presented her evidence to the city prosecutor who instituted the charges against the defendant.
{¶ 9} The jury found defendant guilty of one count of felonious assault and domestic violence. The court sentenced defendant to serve a concurrent two-year prison sentence, comprised of one year for the domestic violence conviction and two years for the felonious assault conviction. Defendant did not object to being sentenced for a felony domestic violence conviction.
{¶ 10} Defendant now appeals, raising seven assignments of error for our review, which will be addressed together where appropriate for discussion.
{¶ 11} “I. The accused‘s conviction for felonious assault was not supported by sufficient evidence as required by due process in violation of U.S. Constitution Amendment XIV and
{¶ 12} “II. The accused‘s conviction for domestic violence was not supported by sufficient evidence as required by due process in violation of U.S. Constitution Amendment XIV and
{¶ 13} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a
{¶ 14} In count one, defendant was charged with felonious assault in violation of
{¶ 15} “(A) No person shall knowingly do either of the following:
{¶ 16} “(1) Cause serious physical harm to another or to another‘s unborn.”
{¶ 17} Defendant was also charged with domestic violence in violation of
{¶ 18} With regard to felonious assault, defendant believes the evidence is insufficient to establish serious physical harm.
{¶ 19}
{¶ 20} “(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
{¶ 21} “(b) Any physical harm that carries a substantial risk of death;
{¶ 22} “(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
{¶ 23} “(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
{¶ 25} This Court has held that “[w]here injuries to the victim are serious enough to cause him or her to seek medical treatment, the finder of fact may reasonably infer that the force exerted on the victim caused serious physical harm as defined by
{¶ 26} Defendant further maintains that there was insufficient evidence that he acted knowingly as required to submit either the domestic violence or the felonious assault counts to the jury.
{¶ 27}
{¶ 28} Assignments of Error I and II are overruled.
{¶ 30} To warrant reversal from a verdict under a manifest weight of the evidence claim, this Court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.
{¶ 31} The defendant challenges his conviction as being against the manifest weight of the evidence based upon his belief that the victim‘s testimony was not supported and questionable. The evidence established that, besides the presence of an infant, no one else witnessed the incident. The record establishes that the victim sustained injuries to her head, which she testified the defendant had inflicted. The medical records show that the victim received stitches. The investigating officer testified that various neighbors called 911, causing the police to respond to the residence.
{¶ 32} On cross-examination, the defense suggested that the victim sustained her injuries by falling on the steps, which she denied. The defense also questioned the victim about her level of intoxication at the time of the incident. The jury was also presented with letters reportedly authored by the defendant, which urged the victim not to appear for his trial.
{¶ 34} Assignment of Error III is overruled.
{¶ 35} “IV. The trial court erred by allowing hearsay testimony in the form of the medical records entered by the prosecution.”
{¶ 36} Defendant stipulated to the admission of the victim‘s medical records with the exception of the following statement: “Patient was hit in head with metal can by boyfriend.”
{¶ 37} Defendant maintains this statement identified him and was inadmissible hearsay.
{¶ 38} “Absent some evidence that the identity of the perpetrator is necessary for medical purposes, statements identifying an assailant are not properly admitted pursuant to Evid.R. 803(4). *** [H]earsay statements in medical records could not come in under the business records exception in Evid.R. 803(6) unless they had an independent basis for their admission. See Staff Notes to Evid.R. 803(6).” State v. Henderson (Aug. 20, 1999), Trumbull App. Nos. 98-T-0039, 98-T-0040 and 98-T-0041; see, also, State v. Morris (Dec. 12, 1991), Cuyahoga App. No. 59453, citing Mastran v. Urichich (1988), 37 Ohio St.3d 44, 48 (“the identity of the person who struck [the victim] was not reasonably pertinent to diagnosis or treatment.“)
{¶ 40} Assignment of Error IV is overruled.
{¶ 41} “V. The trial court erred by allowing inadmissible testimonial statements of the victim to be admitted through the admission of medical records in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution.”
{¶ 42} The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him ***.”
{¶ 43} Here, defendant maintains that the trial court improperly admitted testimonial statements from the victim‘s hospital records and thereby deprived him of the opportunity to confront witnesses against him.
{¶ 45} The defense stipulated to the admission of the medical records with the exception of the single statement addressed in Assignment of Error IV, where the victim/patient reported being hit by her “boyfriend.” Defendant contends this constitutes a testimonial out-of-court statement barred by the Confrontation Clause as set forth in Crawford v. Washington (2004), 541 U.S. 36.
{¶ 46} The Ohio Supreme Court has declined to include statements made to medical professionals within the meaning of “testimonial statements” as construed by Crawford. State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482. Furthermore, the victim/patient who made the disputed statement in the medical record testified at trial and was subject to cross-examination.
{¶ 47} Assignment of Error V is overruled.
{¶ 48} “VI. The prosecution violated Mr. Smith‘s constitutional rights under Article I, Section 10 of the Ohio Constitution, the Fifth Amendment to the United States Constitution, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution when it engaged in improper argument designed to appeal to the passions of the finder of fact.”
{¶ 50} “This may have been a violent relationship, but this has happened in the past and it will happen again if something is not done.”
{¶ 51} While improper, this statement did not prejudicially affect the substantial rights of the defendant or alter the outcome of the trial. Defendant stipulated to his prior domestic violence conviction. The defendant never objected to the subject statement. And, the defense informed the jury during opening statements of the “troubled relations” between the defendant and the victim. Considering the record as a whole, it is clear that the outcome of the trial was not affected by the prosecutor‘s isolated statement.
{¶ 52} Assignment of Error VI is overruled.
{¶ 53} “VII. The court erred when it sentenced Mr. Smith for a count of domestic violence as a felony of the fourth degree when the jury verdict was a finding of guilt as to a misdemeanor count of domestic violence.”
{¶ 54} Where a prior conviction is “needed for a penalty enhancement, the prior conviction must be proven to the jury if it is an essential element of the offense which increases the degree of the offense.” State v. Arnold (Jan. 24, 2002), Cuyahoga App. No. 79280, citing State v. Allen (1987), 29 Ohio St.3d 53 at 54 (other citations omitted.)
{¶ 55} Stipulating to a prior conviction is an acceptable and typical method of proving the prior conviction element of an offense. Id., citing State v. Ward (1999), 130 Ohio App.3d 551, at 559 (“A certified copy of a judgment entry of a prior conviction is not the exclusive method to prove a prior conviction. An offender may, and often does, stipulate to the prior conviction ***.“)
{¶ 57} In this case, the defendant stipulated to the prior conviction and urged the court to exclude any evidence of it from the jury, arguing that it was unnecessary for the jury to make the prior conviction finding. Based upon the defense objections and stipulation, the trial court did not submit evidence or instruct the jury as to the prior conviction element necessary for a felony domestic violence conviction. Although the trial court should have informed the jury of the stipulation and their duty to make the required finding, “defendant is not permitted to take advantage of an error which he himself invited or induced the trial court to make.” Id., quoting State v. Nievas (1997), 121 Ohio App.3d 451 at 455-56.
{¶ 58} Assignment of Error VII is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
JAMES J. SWEENEY, ADMINISTRATIVE JUDGE
COLLEEN CONWAY COONEY, J., and KENNETH A. ROCCO, J., CONCUR