2007 Ohio 5524 | Ohio Ct. App. | 2007
Lead Opinion
{¶ 1} Appellant/Cross-Appellee, Stanley Smith ("Appellant"), appeals from the decision of the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
{¶ 3} On April 21, 2006, Appellant was indicted on one count of kidnapping, in violation of 2905.01(B)(1), one count of felonious assault, in *3
violation of R.C.
"THE TRIAL COURT ERRED IN PERMITTING STATE WITNESSES TO OFFER PREJUDICIAL `OTHER ACTS' TESTIMONY IN VIOLATION OF EVIDENCE RULES 403, 404, AND R.C. §2945.59 , WHICH DEPRIVED HIM OF HIS RIGHTS TO A FAIR TRIAL AND SUBSTANTIVE DUE PROCESS GUARANTEED BY ARTICLE1 , SECTION10 OF THE OHIO CONSTITUTION AND THEFIFTH ANDFOURTEENTH AMENDMENT[S] TO THE UNITED STATES CONSTITUTION."
{¶ 4} In his first assignment of error, Appellant contends that the trial court erred in permitting the State's witnesses to offer prejudicial other act testimony, which deprived him of his right to a fair trial and denied him substantive due process.
{¶ 5} The Rules of Appellate Procedure clearly state that we"may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based * * * as required under App.R. 16(A)." (Emphasis added.) App.R. 12(A)(2). Appellant assigns error to "witnesses'" testimony; however, it appears that Appellant is specifically arguing that the trial court erred when it admitted Abrams' statements regarding other alleged incidents of choking. Appellant has neglected to cite this Court to the specific statements in the record to support his argument as required by App.R. 16(A)(7) and Loc.R. 7(B)(6). However, we gather from Appellant's third assignment of error that he only contests the admission of Abrams' statements regarding these other acts, and as such will overlook the defect in *5 Appellant's first assignment of error.1 Therefore, we will address the error on its merits, only as it pertains to Abrams' statements, cited to in his third assignment of error. We decline to address any error that the trial court may have made with regard to any other act testimony solicited through other witnesses.
{¶ 6} We note that Appellant did not object at his trial to the evidence of which he now complains. It has "long been recognized, in civil as well as criminal cases, that failure to timely advise a trial court of possible error, by objection or otherwise, results in a waiver of the issue for purposes of appeal." Goldfuss v. Davidson (1997),
{¶ 7} Appellant asserts that the admission of Abrams' statements violated Evid.R. 404(B) and as a result, his "constitutional right to a fair trial was prejudiced." We find that Abrams' statements were properly admitted under Evid.R. 404(B). For ease of analysis we will address Evid.R. 404(B) here, but note that our discussion is also applicable to a portion of Appellant's third assignment of error.
{¶ 8} On direct examination, Abrams testified that on some nights she was unable to make dinner for Appellant and that he would become angry if she failed to tape a television show for him. She stated that "at times [Appellant] would choke me for things like that." She also testified that "I couldn't breathe that time. He had never choked me so long ever. And he never choked me so hard." According to Abrams, this is why she relented and had sex with Appellant. On cross-examination, Appellant's counsel inquired as to why Abrams went with Appellant to his dorm room and why she did not try to escape. Abrams explained that because he had choked her before, she knew "he wouldn't stop until he got what he wanted." She also stated that she "didn't want to call the police on him because I thought that it was going to be like every other time." She testified that Appellant told her not to ever "call the cops on him because he'll come back and do what he wants to you." On redirect examination, Abrams again stated that she *7 did not ever call the police before because the choking had never resulted in as much damage as it did on April 11, 2006. She also explained that she was afraid Appellant would hurt her if she called the police. Finally, Abrams stated that she had screamed and yelled during past incidents of choking, but did not this time because no one ever came to help her. According to Abrams, if she would scream for help, Appellant would just choke her harder. We find that Appellant cannot show prejudice in this instance, as the statements were properly admitted under Evid.R. 404(B).
{¶ 9} Evid. R. 404(B) provides that evidence of prior criminal acts completely independent of the crime for which a defendant is being tried may be admissible for purposes other than proving the conformity of an accused with a certain character trait during the incident in question. Specifically, Evid.R. 404(B) provides the following:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." (Emphasis added.)
{¶ 10} This Court has previously held that "prior bad acts by a defendant against the same victim are admissible in domestic violence cases to prove the defendant's intent[.]" (Alterations sic.) State v.Blonski (1997),
"APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY ARTICLEI , SECTION10 OF THE OHIO CONSTITUTION AND THESIXTH ANDFOURTEENTH AMENDMENT[S] TO THE UNITED STATES CONSTITUTION DUE TO HIS ATTORNEY'S FAILURE TO (i) OBJECT TO UNFAIRLY PREJUDICIAL `OTHER ACTS' EVIDENCE, (ii) REQUEST JURY INSTRUCTIONS ON LESSER-INCLUDED OFFENSES WHILE SIMULTANEOUSLY MAKING ARGUMENTS THAT WERE INCONSISTENT WITH SMITH'S CLAIMS OF ACTUAL INNOCENCE, AND (iii) ASK THAT THE COURT GIVE CURATIVE INSTRUCTIONS."
{¶ 11} In his third assignment of error, Appellant contends that he was denied his right to effective assistance of counsel. We do not agree.
{¶ 12} In evaluating an ineffective assistance of counsel claim, this Court employs a two step process as described in Strickland v.Washington (1984), *9
Failure to object to "Other Acts" evidence
{¶ 13} Appellant first contends that his counsel was ineffective by failing to object to Abrams' testimony about prior choking incidents. We do not agree. *10
{¶ 14} As we stated in Appellant's first assignment of error, Abrams' statements were properly admitted under Evid.R. 404(B). Where there is no error, Appellant cannot show that an objection would have changed the outcome of his trial. Accordingly, based on our analysis above, Appellant cannot satisfy the second prong of the Strickland test. Therefore, we overrule this portion of Appellant's argument.
Failure to ask that the court give curative instructions
{¶ 15} Appellant next contends that his counsel was ineffective in failing to ask the trial court to strike the testimony of prior acts and request that the trial court issue a curative instruction to the jury admonishing them to disregard the evidence. As we discussed above, Abrams' testimony regarding other choking incidents was properly admitted under Evid.R. 404(B). Accordingly, because a request for a curative instruction, if made, would have been properly denied, Appellant cannot show that the outcome of his trial would have been different. Therefore, Appellant cannot satisfy the second prong of theStrickland test.
Failure to request jury instructions on lesser included offenses
{¶ 16} Finally, Appellant contends his counsel was ineffective by failing to ask the trial court to issue instructions that would have enabled the jury to consider lesser-included offenses such as assault instead of felonious assault or abduction or unlawful restraint instead of kidnapping. We do not agree. *11
{¶ 17} The law is clear that debatable trial tactics do not give rise to a claim of ineffective assistance of counsel. State v. Clayton
(1980),
"`[w]e deem it misleading to decide an issue of competency by using, as a measuring rod, only those criteria defined as the best of available practices in the defense field.' * * * Counsel chose a strategy that proved ineffective, but the fact that there was another and better strategy available does not amount to a breach of an essential duty to his client." Id. quoting Lytle,
48 Ohio St.2d at 396 .
{¶ 18} As Appellant aptly points out in his brief, the decision not to request jury instructions regarding lesser included offenses may be part of a "sound trial strategy aimed at acquiring a complete acquittal."State v. Davis, 9th Dist. No. 21794,
"APPELLANT HAS BEEN DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BY A JURY OF HIS PEERS DUE TO THE STATE'S EXCLUSION OF AN AFRICAN AMERICAN PANEL MEMBER AND THE TRIAL COURT'S ERRONEOUS DECISION TO OVERRULE HIS BATSON CHALLENGE."
{¶ 19} In his second assignment of error, Appellant contends that he has been deprived of his right to a fair trial by a jury of his peers due to the State's exclusion of an African American panel member and the trial court's erroneous decision to overrule his challenge based onBatson v. Kentucky (1986),
{¶ 20} To properly review Appellant's Bats on challenge we must review the facts and circumstances surrounding the State's exercise of the peremptory challenge. State v. Hill (1995),
"APPELLANT HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTIONS FOR FELONIOUS ASSAULT AND DOMESTIC VIOLENCE, WHICH WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
{¶ 21} In his fourth assignment of error, Appellant claims that his convictions for felonious assault and domestic violence were against the manifest weight of the evidence and were based on insufficient evidence. An evaluation of the weight of the evidence is dispositive of both issues in this case. *14
{¶ 22} "While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion." State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600, at *4, citing State v. Thompkins (1997),
"[b]ecause sufficiency is required to take a case to the jury, a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency. Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency." (Emphasis omitted.) State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462, at *5.
{¶ 23} Therefore, we will address Appellant's claim that his convictions were against the manifest weight of the evidence first, as it is dispositive of Appellant's claims of insufficiency.
{¶ 24} When a defendant asserts that his conviction is against the manifest weight of the evidence,
"an appellate 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 the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Otten (1986),
33 Ohio App. 3d 339 ,340 .
We decline to address Appellant's argument regarding his conviction for domestic violence. We have recently explained that
"[t]he Ohio Supreme Court has held that `where a defendant, convicted of a criminal offense, has * * * completed the sentence for that offense, an appeal is moot when no evidence is offered from *15 which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction.' State v. Berndt (1987),
29 Ohio St. 3d 3 ,4 , quoting State v. Wilson (1975),41 Ohio St. 2d 236 , syllabus. See also State v. McCombs, 9th Dist. No. 22837,2006-Ohio-3289 , at ¶16 . In State v. Payne, 9th Dist. No. 21178, 2003-Ohio-1140, this Court found that the appellant would not suffer any collateral disability or loss of civil rights where the six month misdemeanor assault sentence ran concurrently with a longer felony sentence and the misdemeanor sentence had been fully served. Id. at ¶ 12." State v. Parker, 9th Dist. No. 23303,2007-Ohio-960 , at ¶12 .
{¶ 25} In the instant case, Appellant was sentenced to 90 days incarceration, to run concurrent with the longer felony sentences, and he has served the 90 day sentence in its entirety. He does not make an argument regarding any collateral disability or loss of civil rights. Accordingly, we decline to address this portion of Appellant's assignment of error.
{¶ 26} Appellant was convicted of felonious assault, in violation of R.C.
{¶ 27} Abrams testified that Appellant choked her 10 to 15 times. According to Abrams, Appellant told her that if she would not be in a relationship with him, then he would kill her. She testified that Appellant made several threats on her life and eventually *16
"he lunged toward me and he took both of his hands around my neck and began shaking me back and forth and kind of turned me sideways and threw me on the bed and kept — just put both of his hands pushing down on my throat so I could not breathe at all. I remember my head had been whipping back and forth and my neck had already been extremely sore at that point. And he — he held on for a very long time. I could not breathe at all. And at one point everything went black, and I saw like — it looked like a lightning bolt and I thought that I was dying."
We do not agree with Appellant's argument that this testimony was vague. Abrams clearly testified that due to Appellant's violent assault, she almost lost consciousness. Dr. Goldman, who treated Abrams when she arrived at the emergency room on April 12, 2006, testified that Abrams had a petechial rash on the upper portion of her face and eyes. He explained that a petechial rash consists of small red dots that occur on the skin when capillaries burst. He testified that this is the result of extreme pressure, consistent with Abrams' allegations that Appellant choked her. It is hard to fathom how choking a victim to the brink of unconsciousness does not, as Appellant would like us to find, amount to a "substantial" risk of death. To this end, Dr. Goldman stated that being strangled or choked was a life-threatening act. After a review of the record, we conclude that the jury's finding that Appellant's conduct with Abrams caused a substantial risk of death or, minimally, a substantial risk of temporary incapacity, is supported by the evidence.State v. Carver, 2d Dist. No. 21328,
"THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE FOUR-YEAR PRISON TERMS BECAUSE THE SENTENCES WERE DISPROPORTIONATE WITH THE COURT'S SENTENCES IN SIMILAR CASES AND UNJUSTIFIED GIVEN THE SLIGHT HARM TO THE VICTIM CAUSED BY THE ALLEGED ASSAULT AND KIDNAPPING."
{¶ 28} In Appellant's fifth assignment of error, he contends that the trial court erred in sentencing him to consecutive four year prison terms because the sentences were disproportionate with the court's sentences in similar cases and unjustified given the slight harm to the victim. We disagree.
{¶ 29} In State v. Foster,
{¶ 30} Additionally, Foster altered this Court's standard of review which was previously a clear and convincing error standard. State v.Windham, 9th Dist. No. 05CA0033,
{¶ 31} The Foster Court noted that "there is no mandate for judicial fact-finding in the general guidance statutes. The court is merely to `consider' the statutory factors." Foster, supra, at ¶ 42. Moreover, post Foster, it is axiomatic that "[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Id. at paragraph seven of the syllabus. Therefore, post-Foster, trial courts are still required to consider the general guidance factors in their sentencing decisions. A review of the record indicates that the trial court's decision to impose more than the minimum sentence took into account those statutory factors.
{¶ 32} Appellant was convicted of a first degree felony and a second degree felony. Accordingly, the trial court was permitted to utilize its discretion to sentence him within the range of three to ten years incarceration for the first degree felony conviction, and within the range of two to eight years incarceration for the second degree felony. R.C.
{¶ 33} Upon review, this Court cannot say that the trial court abused its discretion in sentencing Appellant to a total of eight years incarceration. The record reflects that Appellant has had several prior convictions, including a prior assault conviction. R.C.
{¶ 34} Accordingly, based upon a consideration of the factors in R.C.
{¶ 35} We need not address Appellant's argument that the trial court erred in imposing a term of incarceration that is not proportionate to similarly situated offenders as Appellant has forfeited this argument for appeal. In the instant case, Appellant failed to raise this argument at the original sentencing hearing held on October 3, 2006. Due to Appellant's failure to raise this argument below, he has deprived the trial court of the opportunity to correct the alleged errors in the first *20 instance and has thereby forfeited this argument on appeal. SeeState v. Quine, 9th Dist. No. 20968, 2002-Ohio-6987, at ¶ 7 (finding that the appellant's failure to object to his sentence on the ground that his sentence was inconsistent with sentences imposed for similar crimes committed by similar offenders generally constitutes waiver of this argument absent assertion of plain error). Accordingly, we decline to address this issue.
{¶ 36} Appellant's fifth assignment of error is overruled.
"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN NOT CONDUCTING A SEXUAL OFFENDER CLASSIFICATION HEARING."
{¶ 37} The State argues in its cross-appeal that the trial court erred and abused its discretion in not conducting a sexual offender classification hearing. We agree.
{¶ 38} During the sentencing hearing, the trial court denied the State's request for a sex offender classification hearing, explaining that
*21"the reason I'm denying that is because the jury was charged as per your indictment with kidnapping to commit — to terrorize or to commit serious physical harm or for sexual activity. There was no sexual motivation specification which the law allows you to file, and we don't know which-since he was found not guilty of the rape, I cannot have a sexual offender hearing[.] * * * He was not convicted of a sex offense at this trial. He was convicted of serious physical harm and kidnapping. I assume to commit serious physical harm. So that motion is denied."
We find this reasoning to be in error, and reverse with instructions to hold a hearing.
R.C.
"[t]he judge who is to impose sentence on a person who is convicted of * * * a sexually oriented offense that is not a registration-exempt sexually oriented offense shall conduct a hearing to determine whether the offender is a sexual predator if any of the following circumstances apply:
* * *
"(ii) Regardless of when the sexually oriented offense was committed, the offender is to be sentenced on or after January 1, 1997, for a sexually oriented offense that is not a registration-exempt sexually oriented offense, and either of the following applies: the sexually oriented offense is a violent sex offense and a sexually violent predator specification was not included in the indictment, count in the indictment, or information charging the violent sex offense; or the sexually oriented offense is a designated homicide, assault, or kidnapping offense and either a sexual motivation specification or a sexually violent predator specification, or both such specifications, were not included in the indictment, count in the indictment, or information charging the designated homicide, assault, or kidnapping offense." (Emphasis added.)
{¶ 39} It is clear from this section that, contrary to what the trial court determined, a sexual motivation specification is not a necessary prerequisite for it to hold a sex offender classification hearing. Without a sexual motivation specification, the issue becomes whether Appellant's conviction for kidnapping under R.C.
{¶ 40} As indicated in the trial court's sentencing entry, Appellant was convicted and sentenced for a violation of R.C.
"[n]o person, by force, threat, or deception shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: * * * (4) To engage in sexual activity, as defined in section2907.01 of the Revised Code, with the victim against the victim's will[.]"
{¶ 41} We note that the trial court instructed the jury as to the three subsections under which it could find Appellant guilty of kidnapping. The trial court stated that because the jury acquitted Appellant of rape, it must have found him guilty of kidnapping due to "serious physical harm on the victim[.]" R.C.
Judgment affirmed in part, reversed in part, and cause remanded.
The Court finds that there were reasonable grounds for this appeal.*24
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
WHITMORE, P. J. CONCURS
Concurrence Opinion
{¶ 43} I agree that Mr. Smith's convictions should be affirmed and that it is necessary to remand this matter for a hearing on whether he should be classified a sexual predator. I write separately, however, for three reasons. *25
{¶ 47} The first step in determining whether a defendant is a sexually oriented offender, a habitual sex offender, or a sexual predator is a determination of whether he has committed a sexually oriented offense. See State v. Cook,
{¶ 48} On remand, the trial court should hold a classification hearing. If it determines that the State has proven by clear and convincing evidence that Mr. Smith kidnapped the victim with a sexual motivation, it should then determine whether the State has also proven by clear and convincing evidence that he is either a habitual sex offender or a sexual predator. If it determines that the State *28 has failed to prove that he kidnapped the victim with a sexual motivation, it should decline to classify Mr. Smith as a sexually oriented offender, a habitual sex offender, or a sexual predator.
(Reece, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to, § 6(C), Article IV, Constitution.) *1