2004 Ohio 6974 | Ohio Ct. App. | 2004
{¶ 2} On January 23, 2004, the Delaware County Grand Jury further indicted appellant on one count of tampering with evidence in violation of R.C.
{¶ 3} On May 14, 2004, a bill of information was filed charging appellant with domestic violence in violation of R.C.
{¶ 4} All three cases proceeded to trial on May 18, 2004. Prior to trial, the state dismissed one count of rape and one count of kidnapping. The jury found appellant guilty of the felonious assault count, the remaining rape count, the two remaining kidnapping counts, the tampering with evidence count, the intimidation of a witness count and the domestic violence charge. The jury found appellant not guilty of the attempted murder counts.
{¶ 5} By judgment entry filed June 29, 2004, the trial court sentenced appellant to eight years on the felonious assault, six years on the rape, five years on the kidnapping, four years on the tampering, six months on the intimidation and twelve months on the domestic violence. The eight years on the felonious assault and the four years on the tampering were ordered to be served consecutively for a total of twelve years. The remaining sentences were ordered to be served concurrently to each other and to the twelve year sentence.
{¶ 6} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
{¶ 17} On review for manifest weight, a reviewing court is to examine 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 jury 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. Martin (1983),
{¶ 18} Appellant complains of the following convictions, to wit: felonious assault in violation of R.C.
{¶ 19} "No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, 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: * * * To terrorize, or to inflict serious physical harm on the victim or another."
{¶ 20} Appellant also complains of the convictions for domestic violence in violation of R.C.
{¶ 21} "No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following: Make, present, or use any record, document, or thing, knowing it to be false and with purpose to mislead a public official who is or may be engaged in such proceeding or investigation, or with purpose to corrupt the outcome of any such proceeding or investigation."
{¶ 23} R.C.
{¶ 24} Jeffrey Mitchell, M.D., an emergency room physician at St. Ann's Hospital, treated Ms. Parrott immediately following the incidents. T. at 152-153. Dr. Mitchell testified to Ms. Parrott's physical appearance as a person who "was clearly beaten about the face; her face was swollen; it was black and blue." T. at 156. He also stated she "had scratches and abrasions here and there; she had a cut on her hand. She seemed quite upset." T. at 156.
{¶ 25} David Watson, M.D., an emergency room physician at Grady Memorial Hospital, examined Ms. Parrott the next day on December 1, 2003. T. at 130-131. Ms. Parrott had come in complaining of dizziness and increased pain in her right shoulder. T. at 131. Dr. Watson diagnosed "facial bruising, ecchymosis, and trauma to the eye; perforated right ear drum." Id. He also diagnosed right shoulder strain or separation amounting to grade one. T. at 131, 135. The next day, December 2, 2003, Dr. Watson saw Ms. Parrott again, this time for painful swallowing, associated with post-traumatic strangulation. T. at 136, 140-141. Dr. Watson opined Ms. Parrott's injuries caused her substantial suffering. T. at 147.
{¶ 26} A series of photographs of Ms. Parrott were admitted into evidence. See, State's Exhibits 31-38. All the photographs depicted a severely battered person.
{¶ 27} Ms. Parrott described her injuries and testified the soreness of her throat related to the strangulation lasted for four days, the injuries to her face lasted four weeks, she wore a sling for her separated shoulder for two weeks and the bruising of her torso lasted two weeks. She was off work for a month. T. at 305-306.
{¶ 28} From the above evidence, we find there was sufficient evidence for the jury to conclude Ms. Parrott suffered serious physical harm.
{¶ 30} "Q. Okay. And what did you tell him?
{¶ 31} "A. That I was not cheating on him.
{¶ 32} "Q. Did you tell him anything else?
{¶ 33} "A. I said, if you want to know if I'm cheating on you, then pull down the pants and check.
{¶ 34} "Q. And check. And I think your testimony was, you can't remember whether you pulled down your pants or whether Doug pulled down your pants?
{¶ 35} "A. I don't recall if he did it.
{¶ 36} "Q. Okay. But you definitely told him, `Go ahead and check
{¶ 37} "A. Yes.
{¶ 38} "Q. And then he did check?
{¶ 39} "A. Yes." T. at 321.
{¶ 40} Ms. Parrott testified she had passed out from the beatings during this part of the attack. T. at 298. Ms. Parrott admitted to being drunk. T. at 310-320, 323. She testified she did not expect the forceful vaginal penetration nor did she consent to it. T. at 323-324.
{¶ 41} The jury as the ultimate trier of facts could have concluded that Ms. Parrott had not given her consent or had been unable to give consent. We find the evidence is sufficient to support either conclusion.
{¶ 44} We read R.C.
{¶ 45} One letter instructed Ms. Parrott to say "you were drunk when they questioned you the officers got you all confused. * * * Call my attorney tell him you were drunk/confused when you gave statements now you remember that I didn't, hit you, rape you, or kidnap you." State's Exhibit 12. Several letters coached Ms. Parrott to state her injuries were the result of an attack at Max and Erma's and she continued the argument and that is why the police were called. State's Exhibits 12, 14, 19. Appellant encouraged Ms. Parrott by stating, "Please think about a way to get me out . . . You'll be glad you did!" and "I really wish you'd reconsider fixing the story." State's Exhibit 21.
{¶ 46} Under a strict reading of subsection (A)(2), we find it was not against the manifest weight of the evidence to find the letters that coached Ms. Parrott to lie to defense counsel, the police, the prosecution and the trial court violated R.C.
{¶ 47} Assignments of Error I, II, III and IV are denied.
{¶ 49} Crim.R. 8(A) governs joinder of offenses and states the following:
{¶ 50} "Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct."
{¶ 51} Crim.R. 14 governs relief from prejudicial joinder and states the following:
{¶ 52} "If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. In ruling on a motion by a defendant for severance, the court shall order the prosecuting attorney to deliver to the court for inspection pursuant to Rule 16(B)(1)(a) any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial."
{¶ 53} The evidence on the tampering count established appellant attempted to convince Ms. Parrott to recant her version of the facts and to fabricate an assault incident to account for her physical injuries.
{¶ 54} We find that coaching a witness and asking a witness to lie falls within the language of Crim.R. 8, "two or more acts or transactions connected together or constituting parts of a common scheme or plan."
{¶ 55} Further, from our review of the letters, appellant made admissions of guilt on the felonious assault offense that could have been admissible as an admission against interest. See, Evid.R. 801(D)(2).
{¶ 56} Upon review, we find no showing of undue prejudice from the joinder.
{¶ 57} Assignment of Error V is denied.
{¶ 59} The admission or exclusion of evidence lies in the trial court's sound discretion. State v. Sage (1987),
{¶ 60} Evid.R. 702 provides for expert testimony if it aids the trier of fact in determining the evidence:
{¶ 61} "A witness may testify as an expert if all of the following apply:
{¶ 62} "(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
{¶ 63} "(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
{¶ 64} "(C) The witness' testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
{¶ 65} "(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
{¶ 66} "(2) The design of the procedure, test, or experiment reliably implements the theory;
{¶ 67} "(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result."
{¶ 68} Ms. Parrott testified appellant choked her, and the choking caused her to blackout. T. at 294. The record on Ms. Parrott's testimony established a strangulation.
{¶ 69} The testimony of Nurse Downing included an explanation of the difference between choking and strangulation and the methodology of strangulation. T. at 210-212. She used a diagram of the head to explain strangulation. See, State's Exhibit 11. She also talked to and examined Ms. Parrott in the emergency room on December 2, 2003, and took photographs of her. T. at 216-218, 224.
{¶ 70} Defense counsel specifically objected to the degree of seriousness of the strangulation injury:
{¶ 71} "Q. Now, based on your experience in and out of consciousness repeatedly, losing control of her bowels, with ten being death and one being the lightest possible strangulation there could be, could you describe for the jury, characterize how serious this would have been?
{¶ 72} "Mr. Long: Objection.
{¶ 73} "It is very serious, given that many patients may die up to 36 hours after a strangulation and in particular a strangulation injury, even with no external injury to their body, and considering the injuries that she did have, and the loss of consciousness, I would have to say a nine." T. at 227-228.
{¶ 74} The next question posed was whether Ms. Parrott was close to death during the assault. T. at 228. Based upon this question, we find the purpose for the complained of testimony was as evidence for the attempted murder count. Regardless of the admissibility of the question, the jury found appellant not guilty of attempted murder. We therefore conclude any error would have been harmless error.
{¶ 75} Assignment of Error VI is denied.
{¶ 77} Appellant was convicted of rape pursuant to R.C.
{¶ 78} R.C.
{¶ 79} "In any case in which the sexually oriented offense in question is an aggravated sexually oriented offense, the court shall specify in the offender's sentence and the judgment of conviction that contains the sentence that the offender's offense is an aggravated sexually oriented offense."
{¶ 80} The trial court was mandated pursuant to the above statute to classify appellant as an aggravated sexually oriented offender.
{¶ 81} Appellant challenges the constitutionality of R.C. 2950 et seq., and cites cases in support. State v. Anthony, Hamilton App. No. C-030510, 2004-Ohio-3894; State v. Boeddeker (February 13, 1998), Hamilton App. No. C-970471. The challenges in these cases were based upon the former statutes as to registration and not as subsequently amended by the Ohio General Assembly. We find no showing of unconstitutionality sub judice.
{¶ 82} Assignment of Error VII is denied.
{¶ 84} In State v. Iddings (November 8, 2004), Delaware App. No. 2004CAA06043, ¶ 12, this court examined the Blakely decision and found it "do[es] not obviate entirely judicial discretion in sentencing a criminal defendant. Rather, the trial courts maintain discretion to select a sentence within the range prescribed by the legislature." This court further held at ¶ 20-21:
{¶ 85} "None of the factors set forth in either 2929.13(B) or 2929.14(B) subject an offender to a prison term in excess of what the law provides as the maximum sentence for a felony of the fourth or fifth degree. The Legislature has simply codified factors that sentences courts have always considered when deciding to sentence a defendant within the range permitted by statute. The fact that the legislature has chosen certain of the traditional sentencing factors and dictated the precise weight to be given those factors does not evade the requirements of the Fifth and Sixth Amendments. Harris v. United States, supra,
{¶ 86} Pursuant to this court's opinion in Iddings, we find the imposition of maximum sentences is not an exceptional sentence under Blakely.
{¶ 87} As for the consecutive nature of the sentences, appellant agrees the trial court stated the requisite findings pursuant to R.C.
{¶ 88} Upon review, we find the trial court did not err in sentencing appellant.
{¶ 89} Assignments of Error VIII and IX are denied.
{¶ 90} The judgment of the Court of Common Pleas of Delaware County, Ohio is hereby affirmed.
Farmer, J. Gwin, P.J. and Wise, J. concur.
