Lead Opinion
{¶ 2} Next, Smith contends that the record contains insufficient evidence to support his conviction for felonious assault because it contains no evidence that he caused or attempted to cause bodily injury. Because we find that the record contains evidence that Smith held his victim at knifepoint and threatened to cause her physical harm, we disagree. Smith also contends that the manifest weight of the evidence does not support his conviction for felonious assault because the state failed to prove beyond a reasonable doubt that he attempted to cause physical harm. Because we find that the record contains substantial evidence upon which the jury could reasonably conclude that the state proved beyond a reasonable doubt that Smith attempted to cause physical harm, we cannot say that the jury lost its way or created a manifest miscarriage of justice when it found Smith guilty of felonious assault. Accordingly, we overrule Smith's second and third assignments of error.
{¶ 3} Finally, Smith contends that the trial court illegally imposed non-minimum consecutive sentences upon him. Because we find that the trial court considered R.C.
{¶ 5} The trial testimony revealed that at the time of the September 18, 2004, incident underlying the charge of illegal use of minor in nudity-oriented material, Smith resided with his girlfriend, Cristi Hankins, and their three young sons in the home of Cristi's mother and step-father, Robert and Cynthia Smith.2 Cristi's younger sister also resided in the home.
{¶ 6} The illegal use of a minor in nudity-oriented material charge arose out of an incident where Cristi's younger sister discovered a video camera, which she recognized as Smith's, concealed in a pile of dirty clothes on the bathroom floor in her family's home. She noticed the camera lens, protruding from the pile of clothes and pointed directly at the toilet and shower area of the bathroom, as she used the toilet. When she removed the camera from its hiding place, she discovered that it was recording. After rewinding the tape a bit, she discovered that it recorded her using the toilet. Upset, she opened the camera and tore up the tape. She called her mother at work to tell her what happened. Robert returned to the home and reported the incident to the Ashville Police Department.
{¶ 7} After that incident, Robert asked Smith to leave the family's home. Smith then went to live with his sister in Hilliard, Ohio. Cristi and the boys also left to live with Smith at his sister's home for approximately two weeks.
{¶ 8} On October 4, 2004, Smith and Cristi left the boys in daycare, and left the childrens' car seats, formula, and diapers at Smith's mother's house, along with a note indicating that they were abandoning their sons. The two headed for Texas. Cristi testified that Smith took her against her will, and threatened to kill her or the children if she told anyone. But, Smith testified that she willingly left with him.
{¶ 9} On November 27, 2004, a third incident occurred at the Smith family home, forming the basis of Smith's aggravated burglary, kidnapping, and felonious assault charges. Robert testified that, on that date, he awoke to the sound of shattering glass. He went downstairs to discover that the side door glass was shattered, and the door was partially opened. He then heard Cynthia screaming upstairs. As he started up the stairs, Cynthia came down the stairs with Smith behind her. Smith had a twelve-inch kitchen knife, and said he wanted to have a family meeting about the earlier incidents. Robert asked Smith to put down the knife and leave the house, but Smith wanted to go upstairs. Robert testified that Smith told them that someone would get hurt if anybody called the cops.
{¶ 10} After about ten minutes, the three of them headed upstairs, where Robert knocked on Cristi's door and asked her to open it. Smith then kicked in the door, grabbed Cristi, holding the knife to her stomach. He then backed up, forcing Cristi's younger sister to retreat into the closet.
{¶ 11} Cynthia testified that the first thing she remembered was Robert getting out of bed and going downstairs to investigate the shattering noise that awakened him. She started to go down the stairs behind him, but decided to check on the two older boys in their room. She found Smith outside their bedroom. Cynthia saw Smith had a knife and started screaming. She then ran down the stairs, followed by Smith, and came to Robert. She headed toward the kitchen and picked up the phone, but the line was dead. Smith told her that he cut the line. Cynthia testified that Smith wanted to have a family talk about the videotape, and that he kept trying to get them to go back upstairs with him. She told him that he needed to leave. He kept saying "come on, come on" and gesturing toward the steps with the knife. Cynthia reported that Smith kept saying that nobody would get hurt unless the cops were called, but that if the cops were called, somebody was going to get hurt.
{¶ 12} Cynthia testified that she and Robert went back upstairs with Smith. She recalled Robert knocking on Cristi's door, and Cristi asking if he was alone. She indicated that when Smith saw the police lights through the blinds, he kicked in the bedroom door. She saw him go after Cristi, and stated that Cristi was screaming and running. As Smith went after Cristi, Cynthia heard pounding and ran down the stairs to let the police into the house. By the time she got back upstairs, the police had Smith on the ground.
{¶ 13} Cristi's younger sister testified that she awoke to the sound of glass shattering. She indicated that she got up and heard her mother say, "Oh, my god, Donnie, don't[,]" and then heard her mother scream. She grabbed the phone to call 911, but the line was dead. She got up and went to Cristi's room where she awakened Cristi and told her that Smith was in the house. She testified that Cristi grabbed her cell phone and called 911. The sister then locked the bedroom door, and went to stand by the closet door, while Cristi stood next to the baby's crib. Like Robert and Cynthia, Cristi's sister testified that Robert knocked on the door and told them to open it, and that when Cristi asked if he was alone, he said, "No."
{¶ 14} The sister then testified that Smith kicked in the door, grabbed Cristi, and put the knife to her stomach. She indicated that he started backing toward her, and that she started backing as well. She ended up in the closet, and Smith blocked her there, holding Cristi in his arms. Despite Robert's pleas, Smith would not let her out of the closet. The sister testified that Smith kept saying that they were going to have a family meeting, and that no one would get hurt if they did what he said. When asked what he said would happen if they did not have a family meeting or do what he said, the sister testified, "He said he would hurt us."
{¶ 15} Cristi testified that her sister woke her up early in the morning, telling her that Smith was in the house. She used her cell phone to call 911. While she spoke with the operator, Robert knocked on the door and asked her to open it. She asked if he was alone, and he replied, "No." Then Smith kicked in the door, rushed into the room yelling, grabbed her, put the knife on her stomach, and pulled her over in front of the closet. She recalled Robert and Smith yelling, but stated that she was "in shock" and could not remember exactly what they said. Cristi testified that Smith was "violent", and "wanted us to listen to him." When asked upon cross-examination how long Smith held her at knifepoint, Cristi estimated, "Probably five, ten minutes. I don't know."
{¶ 16} Officer Kevin Elliott of the Ashville Police Department testified that he was the first officer to arrive at the Smith household on November 27, 2004. Based upon the nature of the call and the information he received from the dispatcher, he requested backup from the South Bloomfield Police Department before he arrived at the scene. He testified that when he arrived at the scene, he could hear the South Bloomfield officers responding to the scene. As he approached the house, he noticed that the mini blind on the second floor was pulled back a little bit, as if somebody was trying to look out. When no one answered the front door, the dispatcher advised him that the suspect was in the residence with a knife. Officer Elliott unsuccessfully attempted to force entry. At that time, Officers David Parlow and James Chapman of the South Bloomfield Police Department arrived, and Officer Chapman forced open the front door.
{¶ 17} The officers entered the residence and Officer Elliott proceeded into the kitchen where he noticed the sliding glass door was shattered. The Officers proceeded up the stairs, and Officer Elliott observed a man with a large butcher knife holding a woman. The man had his left arm around her throat, and his right arm around her abdomen. Officer Elliott indicated that all three officers immediately approached the bedroom with their guns drawn, shouting for the man to drop the knife and let the woman go. He testified that it seemed to go on forever, kind of in slow motion, but that it was probably just a matter of seconds until the man, who he later identified as Smith, complied with their demands.
{¶ 18} Officer David Parlow responded to the scene on behalf of the South Bloomfield Police Department. He offered testimony substantially similar to that of Officer Elliott. He described the forced entry into the residence, noted that a female resident greeted them at the door and directed them upstairs. He indicated that they made a quick sweep of the downstairs before proceeding upstairs, where they observed a man holding a woman at knifepoint. He testified that Smith had a woman in a "bear hug," with one arm up around her upper chest area, and a large kitchen knife in his hand, pressed into the female's abdomen.
{¶ 19} Officers Elliott and Parlow both testified that after they cuffed Smith, they searched him and discovered a homemade sheath for one of the knives, a roll of duct tape, a plastic bag with various kinds of speaker or electrical wire. Additionally, on the inside of Smith's left leg, they discovered another homemade knife sheath and a black and yellow utility knife.
{¶ 20} The jury returned a verdict finding Smith guilty of all charges with the exception of the abduction charge, for which the jury returned a not guilty verdict. The court entered a judgment and sentenced Smith to serve seven years in prison for illegal use of a minor in nudity-oriented material in Case No. 2004-CR-234. The court entered a separate judgment for the other offenses in Case No. 2004-CR-253, and sentenced Smith to serve: (1) eight years in prison for aggravated burglary; (2) eight years in prison on each of the four kidnapping convictions; and (3) seven years in prison on the felonious assault conviction. The court ordered Smith to serve his sentences for aggravated burglary and each of the four kidnapping convictions concurrent to each other. Additionally, the court ordered him to serve his sentence for felonious assault consecutive to his sentences for aggravated burglary and kidnapping, and consecutive to the sentence it imposed for illegal use of a minor in nudity-oriented material in Case No. 2004-CR-234.
{¶ 21} Smith appeals, raising the following assignments of error: I. "The trial court erred by refusing to dismiss an indictment that did not allege a crime in violation of Article
{¶ 23} The primary purpose of an indictment is to inform a defendant of the offense with which he is charged to enable his preparation for trial. State v. Lindway (1936),
{¶ 24} While the rule permits an indictment to be in the words of the statute, the Ohio Supreme Court has recognized that "the courts might still require more to put the defendant on notice of the offense charged." State v. Ross (1967),
{¶ 25} In Ross, the Court held that: "Where a criminal statute does not clearly make a certain specific intent an element of the offense, but judicial interpretation has made such intent a necessary element, an indictment charging the offense solely in the language of the statute is insufficient." Id. at syllabus.
{¶ 26} "A judgment of conviction based upon an indictment which does not charge an offense is void for lack of jurisdiction of the subject matter and may be successfully attacked either on direct appeal to a reviewing court or by a collateral proceeding." State v. Cimpritz
(1953),
{¶ 27} Here, the grand jury indicted Smith on one count of illegal use of a minor in nudity-oriented material in violation of R.C.
{¶ 28} Smith's indictment states, in relevant part, that Smith: "ON OR ABOUT THE 18TH DAY OF SEPEMBER, 2004, AT THE COUNTY OF PICKAWAY, OR BY SOME MANNER ENUMERATED IN SECTION
{¶ 29} Smith first contends that his indictment for illegal use of a minor in nudity-oriented material or performance is insufficient to charge an offense because it fails to state the requisite mental element for commission of the offense. While R.C.
{¶ 30} Although not stated in R.C.
{¶ 31} Smith also contends that the indictment charging him with illegal use of a minor in nudity-oriented material is insufficient to charge him with the offense because the indictment fails to allege that the photographs were lewd. Smith contends that pursuant to the Ohio Supreme Court's decision in State v. Young (1988),
{¶ 33} In reviewing a case to determine whether the record contains sufficient evidence to support a criminal conviction, our function "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 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.Jenks (1991),
{¶ 34} This test raises a question of law and does not allow us to weigh the evidence. State v. Martin (1983),
{¶ 35} R.C.
{¶ 36} In State v. Brooks (1989),
{¶ 37} The Court later elaborated upon its ruling in Brooks, holding that "The act of pointing a deadly weapon at another coupled with a threat, which indicates an intention to use such weapon, is sufficient evidence to convict a defendant of the offense of `felonious assault' as defined by R.C. 2903.11(A)(2)." State v. Green (1991),
{¶ 38} Here, Smith does not dispute that he held a twelve-inch knife to Cristi's abdomen or that he threatened to cause her bodily injury. In fact, he concedes that the record contained "substantial evidence" that he held a knife to her abdomen and threatened to cause bodily injury. However, Smith contends that his failure to act upon his threat during the five minutes he held Cristi at knifepoint rebuts the inference that he was attempting to cause her physical injury. We believe that Smith's argument that the length of time he held Cristi at knifepoint without actually causing her physical harm goes to the weight of the evidence, rather than the sufficiency of the evidence. Therefore, we shall address it in the context of Smith's third assignment of error below.
{¶ 39} In light of the Ohio Supreme Court's holdings inBrooks and Green, supra, we conclude that Smith's holding Cristi at knifepoint, coupled with his repeated threats to cause bodily harm constitute sufficient evidence from which a rational trier of fact could conclude, beyond a reasonable doubt, that Smith committed felonious assault. Accordingly, we overrule Smith's second assignment of error.
{¶ 41} Even when sufficient evidence supports a verdict, we may conclude that the verdict is against the manifest weight of the evidence, because the test under the manifest weight standard is much broader than that for sufficiency of the evidence. State v. Banks
(1992),
{¶ 42} Pursuant to the Ohio Supreme Court's holdings inBrooks and Green, supra, the act of pointing a deadly weapon at a victim, coupled with a threat indicating an intention to use the weapon is sufficient evidence to establish felonious assault. Despite Smith's assertions, actual physical harm is not a necessary element of felonious assault. R.C.
{¶ 43} R.C.
{¶ 44} Here the record contains substantial evidence that Smith rushed into Cristi's bedroom, grabbed her, and held a twelve-inch knife to her abdomen. Further, the record contains substantial competent, credible evidence in the form of testimony from Cristi's mother, step-father, and sister, that Smith threatened to harm Cristi or her family members if they refused to participate in a "family meeting."
{¶ 45} Because Smith held a twelve-inch knife to Cristi's abdomen and threatened to harm her, it is reasonable to infer that he attempted to cause physical harm to her. Smith relies solely upon Cristi's own estimate of the length of time that he held her at knifepoint to rebut this inference. However, a reasonable jury could conclude that his failure to actually harm Cristi during the relatively short period of time in which he held her at knife point was insufficient to overcome his overt actions demonstrating a clear intention to harm her, particularly in light of the fact that the police quickly intervened to prevent him from carrying out his threats.
{¶ 46} After reviewing the entire record, we find that it contains substantial evidence upon which the jury could reasonably conclude that the state proved beyond a reasonable doubt that Smith attempted to cause physical harm to Cristi. Smith does not claim that the record lacks substantial evidence of the remaining elements of the crime, namely that he acted knowingly, and that the knife constituted a deadly weapon. Thus, we cannot say that the jury lost its way or created a manifest miscarriage of justice when it found Smith guilty of felonious assault. Accordingly, we overrule Smith's third assignment of error.
{¶ 48} In Foster, the Ohio Supreme Court found that, to the extent they required judicial fact finding, R.C.
{¶ 49} Here, the trial court considered R.C.
{¶ 50} Smith argues that because the application of Ohio's felony sentencing structure, as modified by Foster, will violate his constitutional right to due process by operating as an ex post facto law, we should instruct the trial court to impose minimum, concurrent sentences upon remand. However, we find that this issue is not yet ripe for our review because Smith has not yet been sentenced underFoster. See, e.g., State v. Muszynec, Cuyahoga App. No. 87447,
JUDGMENT AFFIRMED IN PART,
REVERSED IN PART,
CONVICTION FOR ILLEGAL USE OF A MINOR IN NUDITY-ORIENTED MATERIALVACATED,
SENTENCES VACATED,
AND CAUSE REMANDED.
Notes
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Court of Common Pleas 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 continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. The stay as herein continued will terminate in any event at the expiration of the sixty day period.
The stay shall terminate earlier if the appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec.2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of said 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.
McFarland, P.J.: Concurs in Judgment and Opinion of Judge Kline; Concurs with
Concurring Opinion of Judge Abele.
Abele, J.: Concurs in Judgment and Opinion with Opinion.
Concurrence Opinion
I concur in both the judgment and opinion, albeit very reluctantly with respect to appellant's first assignment of error concerning the sufficiency of the indictment. I agree that the indictment for the illegal use of a minor in nudity-oriented material offense failed to include a culpable mental state element. However, the language in the indictment mirrored the language of the statute. As the principal opinion points out, R.C.