Case Information
*1
[Cite as
State v. Smith
,
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 09CA3321 :
vs. : Revised: November 22, 2010
:
REXFORD A. SMITH, : DECISION AND JUDGMENT
: ENTRY Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Gene Meadows, Portsmouth, Ohio, for Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________
McFarland, P.J.: Appellant, Rexford Smith, appeals his conviction by the Scioto
County Court of Common Pleas after a jury found him guilty of one count of murder, a special felony in violation of R.C. 2903.02(B), and felonious assault, in violation of R.C. 2929.13(D), a felony of the second degree. On appeal, Appellant contends that the trial court erred to his prejudice by 1) violating his due process rights to a fair trial by allowing the Stаte of Ohio to amend the indictment the day of trial; and 2) by failing to instruct the jury on the lesser-included offense of involuntary manslaughter.
{¶2} In our view, changing the date of the offense did not impermissibly change the name or identity of the crime, and because Appellant did not rely on an alibi as part of his defense, we cannot conclude that the trial court erred or abused its discretion in allowing the indictment to be amended the day of trial. As such, Appellant’s first assignment of error is overrulеd. Further, because the evidence presented at trial did not support the inclusion of an instruction on involuntary manslaughter, we cannot conclude that the trial court erred or abused its discretion in failing to give that instruction to the jury. Thus, Appellant’s second assignment of error is overruled. Accordingly, Appellant’s convictions for murder and felonious assault are affirmed.
FACTS On the evening of June 6, 2009, Appellant, Rexford Smith, and Mark Wells, were socializing and drinking alcohol with friends in Tracy Park, located in Portsmouth, Ohio. Later that evening, shortly before midnight, emergency workers and police responded to a call regarding a fight between two men near Kroger in Portsmouth, Ohio, located right across the street from Tracy Park. Upon arrival, Mark Wells was found lying in the road with blood pooled under his head and was unresponsive. Appellant, who matched the description given by witnesses to the fight, was *3 subsequently found a few blocks away and was arrested. Wells was transported to Southern Ohio Medical Center and then transferred to another hospital, where he died on June 9, 2009.
{¶4} On July 24, 2009, Appellant was indicted on one count of murder, a special felony in violation of R.C. 2903.02(B), and one count of felonious assault, in violation of R.C. 2903.11(A)(1)/(D)(1), a felony of the second degree. The indictment provided that the crimes occurred “on or about the 7 th day of June, 2009[.]” A subsequently filed bill of particulars also provided that the charged crimes occurred on or about June 7 th . The matter proceeded to a jury trial which began on August 31, 2009. On the morning of trial, the State moved to amend the indictment
to change the stated date of the offenses to “on or about the 6 th day of June, 2009.” The State simultaneously filed an amended bill of particulars changing the date as well. Appellant objected to the amendment but did not request a continuance or argue that it would impair an alibi defense. The trial court allowed the amendment and the matter procеeded to trial. At trial, the State presented several witnesses. Sergeant Michael
Hamilton testified that he arrived at the scene to find the victim, Mark Wells, lying in the road, unresponsive, with blood beginning to pool under his head. Captain Robert Ware testified that when he responded to the scene he began *4 looking for the assailant, described as a white male with no shirt and a white hat. He testified that he found Appellant, who matched the description, staggering on Findlay Street, a fеw blocks from Tracy Park. He testified that Appellant denied being in a fight with Wells but stated that Wells had hit him. He further testified that he accompanied Appellant back to the police station for booking, stating that Appellant was wearing an off-white or tan colored hat, denim pants, and work boots with a hard sole. Jack Woodson, friend of both Appellant and the victim, testified
that he had intervened in an argument between Appellant and Wells early in the evening on June 6, 2009, and that Appellant made a comment about his new steel toed boots and wondered what the steel toed boots would do to a human head. Amanda Hill, an unrelated witness who happened to be at Kroger that evening, testified that she saw two men shoving each other, one man with long hair, and the other man wearing a white hat. She testified that the long haired man was thrown to the ground and as he was trying to get up, the man in the white hat “stepped back and kicked his head like a football.” Thе State also presented Robin Holsinger, a friend of both Appellant and the victim and who had dated the victim on and off. Holsinger testified that after one of the arguments between Appellant and the victim in the park on the evening in question, Appellant stated that he wondered what a pair of *5 steel toed boots would do to a man’s head. Holsinger further testified that she heard a woman scream and ran towards Kroger to find Wells unresponsive and Appellant running away, towаrds a local bar.
{¶8} Dr. Susan Allen, a forensic pathologist who performed an autopsy on the victim also testified on behalf of the State. Dr. Allen testified that the victim died of blunt force trauma to the head causing a subdural hematoma, which resulted in herniation of the brain. Kristen Slaper, a forensic scientist from BCI&I also testified. She testified that blood samples taken from Appellant’s boot and clothing belonged to Mark Wells. Appellant’s theory at trial was that while he admittedly wаs in a fight with Wells on the night of June 6, 2009, the cause of the victim’s death was attributed to injuries sustained in a fight with another person, prior to the fight with Appellant on June 6, 2009. In support of his theory, Appellant presented three witnesses, each of whom testified that they observed Wells with scratches on his face and blackened eye, early on the evening of June 6 th , before the fight with Appellant occurred. At trial, Appellant requested a jury instruction on involuntary
manslaughter, arguing that the evidencе presented indicated that Appellant punched and kicked the victim, which Appellant argued only established an *6 assault, rather than felonious assault. The State objected and the trial court refused to give the instruction, reasoning as follows:
“Well here’s what kind of stuck out in my mind so far. There were at least two witnesses that he testified that he contemplated doing that even early, kicking a man in the head with a steel toed boot. Two different witnesses testified to that. And through the testimony by the young lady who has nothing to gain in this whatsoever, she just happened to be here at the right time, that he kicked his head like a football, stepping backwards and taking a step into him and kicking him. I think that’s the intent, to cause serious physical harm. So I am not going to give an instruction on involuntary manslaughter. All right?” Subsequently, Appellant was convicted of both murder and
felonious assault and was sentenced by the trial court. It is from the trial court’s September 11, 2009, judgment entry that Appellant now brings his timely aрpeal, assigning the following assignments of error for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT BY VIOLATING THE DEFENDANT- APPELLANT’S DUE PROCESS RIGHTS TO A FAIR TRIAL BY ALLOWING THE STATE OF OHIO TO AMEND THE INDICTMENT THE DAY OF TRIAL.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT-APPELLANT BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER.”
ASSIGNMENT OF ERROR I In his first assignment of error, Appellant contends that the trial
court erred to his prejudice and violated his rights to due process and a fair *7 trial when it allowed the State to amend the indictment on the day of trial. In response, the State contends that it simply amended the date of the offense, which did not change the name or identity of the crimes charged and which did not mislead or prejudice Appellant. Based uрon the following reasoning, we agree with the argument advanced by the State. Section 10, Article I of the Ohio Constitution states: "[N]o
person shall be held to answer for a capital, or otherwise infamous crime,
unless on presentment or indictment of a grand jury." This constitutional
provision "guarantees the accused that the essential facts constituting the
offense for which he is tried will be found in the indictment of the grand
jury. Where one of the vital elements identifying the crime is omitted from
the indiсtment, 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. Evans
,
Scioto App. No. 08CA3268,
Headley
(1983),
crime charged, we review the trial court's decision under an abuse of
discretion standard.
Evans
at ¶ 34; citing
State v. Beach
, 148 Ohio App.3d
181,
changed the date from “on or about the 7 th day of June, 2009” to “on or
*10
about the 6 th day of June, 2009” did not change the name or identity of the
offense. This court has previously held that amendments that change "only
the date on which the offense occurred * * * [do] not charge a new or
diffеrent offense, nor * * * change the substance of the offense."
Evans
at
¶35; citing
State v. Quivey
, Meigs App. No. 04CA8,
abused its discretion when it allowed the State to amend the date alleged in the indictment. As in Evans , supra, the amendment did not alter any of the essential elements of the crimes, and did not add any additional criminal acts. At all times Appellant remained charged with the same crimes resulting in the victim, Mark Wells’ death. The amendment simply corrected the date from June 7 th to June 6 th , 2009. Further, Appellant has not demonstrated that he suffered any specific prejudice as a result of the amendment.
Importantly, we note that Appellant had not filed a notice of alibi and did not present an alibi defense at trial. Instead, Appellant admitted to fighting with the victim, but based his defense on causation, suggesting Appеllant had been in an earlier fight with another person that caused injuries resulting in the victim’s eventual death.
{¶19}
Much like the argument set forth in
Evans
, supra, Appellant
relies on
State v. Vitale
(1994),
both the June 7 th and June 6 th , 2009 dates. Both the original indictment and the amended indictment alleged that Appellant’s actions resulted in serious physical harm and death to the victim. The amended indictment did not change the nature or identity of the crime charged by changing the date within which the alleged crime occurred. Thus, as in Evans , we find Vitale inapplicable. Further, the record reflects that although Aрpellant objected to
the amendment of the indictment, he did not request a continuance when the
State requested to amend the indictment or when the court granted the
request to allow the amendment. As such, Appellant failed to request the
*12
remedy that was available to him when the court permitted an amendment
that did not change the name or identity of the crime charged. See Crim.R.
7(D);
Columbus v. Bishop
, Franklin App. No. 08AP-300,
ASSIGNMENT OF ERROR II In his second assignment of error, Appellant contends that the
trial court erred to his prejudice when it failed to instruct the jury on the lesser-included offense of involuntary manslaughter. In response, the State acknowledges that involuntary manslaughter is a lesser-included offense of murder, but argues that such an instruction is only proper when the evidence presented at trial would support an acquittal on the charged crime and conviction upon the lesser includеd offense. The State further argues that the evidence presented at trial would not have supported acquittal on the felony murder charge and, as a result, Appellant was not entitled to such an instruction. Based upon the following reasoning, we agree with State’s argument. In reviewing a trial court's decision regarding whether to give a
jury instruction on a lesser-included offense, we employ a two-tiered
analysis.
State v. Wright
, Scioto App. No. 01CA2781,
offense of another charged offense, we then examine whether the record
contains evidentiary support upon which a jury could reasonably acquit the
defendant of the greater offense and convict him on the lesser offense. The
trial court has discretion in determining whether thе record contains
sufficient evidentiary support to warrant a jury instruction on the lesser-
included offense, and we will not reverse that determination absent an abuse
of discretion.
State v. Wright
at ¶23; citing
State v. Endicott
(1994), 99 Ohio
*14
App.3d 688, 693,
under R.C. 2903.02(B), the felony murder statute, which states: “No person shall cause the death of another as a proximate result of the offender's *15 committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation оf section 2903.03 [the voluntary manslaughter statute] or section 2903.04 [the involuntary manslaughter statute].” The Supreme Court of Ohio has held that the culpable mental state required to support a conviction under R.C.
2903.02(B) is the same one necessary to support a conviction for the
underlying felony offense of violence.
State v. Miller
,
“no person shall knowingly * * * cause seriоus physical harm to another * *
*.” It is punishable as a first or second-degree felony under R.C. 2903.11(D),
depending on the circumstances. Further, R.C. 2901.22(B) provides that
“[a] person acts knowingly, regardless of his purpose, when he is aware that
his conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when he is aware
that such circumstances probably exist.” (Emphasis added.)
At trial, Appellant requested that the jury bе provided with an
instruction on involuntary manslaughter based upon evidence presented via
testimony of witness Amanda Hill, indicating that the altercation between
*16
Appellant and the victim involved a punch and a kick. Appellant argued that
such conduct simply amounted to assault, not felonious assault, and as such
supported an instruction on involuntary manslaughter. Involuntary
manslaughter is defined in R.C. 2903.04 and states in section (A) that “[n]o
person shall cause the death of another * * * as а proximate result of the
offender's committing or attempting to commit a felony.” As with murder,
the culpable mental state for involuntary manslaughter is supplied by the
underlying offense.
State v. Wilson
(Ohio App. 8 Dist., 04-09-2009) 182
Ohio App.3d 171,
“(A) No person shall knowingly cause or attempt to cause physical harm to another or to another's unborn.
(B) No person shall recklessly cause serious physical harm to another or to another's unborn.” Here, a review of the record reveals Appellant scuffled with the
victim a few times in the early evening of June 6, 2009, while in Tracy Park with friends. Two different witnesses testified to hearing Appellant make statements that evening about wearing steel toed boots and wondering what the boots would do to a person’s head. Witness testimony established that Appellant and the victim left the park and headed towards Kroger.
Appellant doesn’t deny that he and the victim left the park together and ended up in a physical fight that evening. A completely unrelated witness who happened to be at Kroger that evening testified that she saw Appellant and the victim fighting, saw the victim on the ground and testified that Appellant “stepped back and kicked [the victim’s] head like a football. Further, evidence in the form of a recorded phone call placed by Appellant while in jail indicated that Appellant believed he had sustained a broken hand and broken foot during the fight with the victim. Additional evidence introduced regarding the DNA testing performed on Appellant’s boot established that the blood on the boot belonged to the victim. Finally, the evidence presented at trial established that the victim was unconscious at the time that paramedics arrived on the scene, and that he never regained consciousness before his death on June 9, 2009. After thoroughly reviewing the record before us, we cannot
conclude, even in a light most favorable to Appellant, that the jury could have reasonably found that Appellant did not act knowingly when he kicked his victim in the head while wearing steel toed boots. Because there was no evidence in the record tending to show any mens rea other than knowingly, the jury could not have acquitted Appellant of the greater offense, while *18 convicting him of the lesser offense. Thus, an instruction on the lesser- included of involuntary manslaughter was unnecessary.
{¶32}
Additionаlly, the injuries sustained by the victim were clearly
serious physical injuries which resulted in his death. It is axiomatic that “a
person is presumed to intend the natural, reasonable and probable
consequences of his voluntary acts.”
State v. Johnson
(1978), 56 Ohio St.2d
35, 39,
Accordingly, the decision and judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant 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 Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, J. and Kline, J.: Concur in Judgment and Opinion.
For the Court, BY: _________________________ Matthew W. McFarland Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.