2004 Ohio 1175 | Ohio Ct. App. | 2004
{¶ 2} On the night of November 23, 2001, Totarella spent the night with a female friend, Jill Holton ("Holton"), at a mutual friend's house in Willoughby, Ohio. The next morning, Totarella and Holton began to argue after Holton expressed her intention to return to her parents' house in Strongsville. Totarella and Holton left Willoughby driving each other's cars and came to Totarella's uncle's house on Regent Road in Wickliffe. They parked on the street with Holton's car in front of Totarella's car. There, Holton again told Totarella that she wanted to leave. Totarella became very upset and struck Holton on the side of the head. Totarella returned Holton's keys and told her to leave, but had secretly removed the ignition key. Both Totarella and Holton returned to their own cars. When Holton realized that she didn't have her ignition key, she went over to Totarella to ask for it. Totarella took Holton's head and smashed it against his car a couple of times and then returned the ignition key. Holton returned to her car and started it. At this point, Totarella drove his car into the driver's side door and front end of Holton's car.
{¶ 3} Holton was now hysterical and crying. She exited her car through the passenger's side door and went and sat on the porch of Totarella's uncle's house. Totarella approached her, grabbed her by the arm, and told her to come with him. Holton did not resist and went with Totarella to his car. They entered the car and Totarella drove away.
{¶ 4} At about eleven o'clock on the morning of November 24, 2001, Shirley Platko ("Platko") was returning to her home, next to Totarella's uncle's house, with her three children from visiting a friend. As Platko walked toward her house, she noticed Totarella arguing with Holton. Platko observed Holton trying to get her keys from Totarella. She observed Totarella put his arm around Holton's neck. At this point, Platko became scared and called to Totarella, whom she knew through his uncle, if he wanted her to call the police. Totarella shouted back that if Platko called the police, he would kill her. Platko, who was already on the phone with 9-1-1, went inside her house with the children, but continued to observe and report the confrontation between Totarella and Holton. She observed Totarella drive his car into Holton's car and she observed Holton and Totarella drive away together in Totarella's car.
{¶ 5} At about 11:13 that morning, Patrolman Donald E. Johnson ("Johnson") of the Wickliffe Police Department received a dispatch that a neighbor was reporting an ongoing domestic dispute on Regent Road. While en route to Regent Road, the dispatcher further advised Patrolman Johnson that a vehicle had been driven into another vehicle on Regent Road, and that the man and the woman involved in the dispute had entered "a dark colored black Cadillac" and were traveling westbound on Regent Road. As Patrolman Johnson traveled northbound on Worden Road, he spotted Totarella's dark brown Cadillac DeVille with two occupants turning onto Worden Road from Regent Road. Patrolman Johnson pulled the Cadillac over. At this time, Patrolman Anthony N. Regnier ("Regnier") of the Wickliffe Police Department arrived on the scene. Patrolman Regnier took Holton back to Regent Road and questioned her about the events. Holton told Regnier that she wanted charges brought against Totarella. Patrolman Regnier radioed Patrolman Johnson what he had learned from Holton. Patrolman Johnson placed Totarella under arrest. During a patdown search, Patrolman Johnson discovered a switchblade knife in the front pocket of Totarella's pants.
{¶ 6} Totarella assigns the following assignments of error:
{¶ 7} "[1.] Defendant was denied due process of law when the court overruled defendant's motion to suppress.
{¶ 8} "[2.] Defendant was denied due process of law when the court overruled his motion to dismiss the count of carrying a concealed weapon.
{¶ 9} "[3.] Defendant was denied a fair trial when the court would not limit the use of defendant's prior conviction which was only an element of carrying a concealed weapon.
{¶ 10} "[4.] Defendant was denied due process of law and his right of confrontation and cross-examination when the court would not allow cross-examination of Shirley Platko as to her mental conditions.
{¶ 11} "[5.] Defendant was denied his constitutional right of confrontation and cross-examination when the court limited cross-examination of prosecution witness Jill Holton.
{¶ 12} "[6.] Defendant was denied his constitutional right when the court permitted Jill Holton to read her statement to the jury.
{¶ 13} "[7.] Defendant was denied a fair trial when he was seen in the presence of the jury accompanied by deputy sheriffs and the court did not take proper corrective action.
{¶ 14} "[8.] Defendant was denied his
{¶ 15} "[9.] Defendant was denied due process of law and his
{¶ 16} "[10.] Defendant was denied due process of law when the court would not instruct on a lesser included offense of unlawful restraint.
{¶ 17} "[11.] Defendant was denied due process of law when the court overruled his motion for judgment of acquittal as to the offense of carrying a concealed weapon.
{¶ 18} "[12.] Defendant was denied due process of law when his motion for judgment of acquittal as to intimidation was overruled.
{¶ 19} "[13.] Defendant was denied due process of law when his motion for acquittal as to felonious assault was denied.
{¶ 20} "[14.] Whether defendant was subjected to unconstitutional multiple punishments when he was separately sentenced for felonious assault and kidnapping."
{¶ 21} In his first assignment of error, Totarella asserts that Patrolman Johnson's stop of his vehicle was unconstitutional. Johnson had not observed Totarella commit any crime or traffic violation prior to pulling Totarella over. Instead, Johnson relied solely on the dispatcher's relay of Platko's report of the incident, which Totarella describes as being from "an unknown individual whose credibility is unknown." This report, Totarella argues, did not provide Johnson with a reasonable suspicion of criminal activity to justify the stop. Accordingly, Totarella concludes, Johnson's stop was unconstitutional and the trial court erred by failing to suppress the evidence of the stop.
{¶ 22} At a suppression hearing, the trial court acts as the trier of fact. Ravenna v. Nethken, 2001-P-0040, 2002-Ohio-3129, at ¶ 13, citing State v. Mills (1992),
{¶ 23} The
{¶ 24} "Where an officer making an investigative stop relies solely upon a dispatch, the state must demonstrate at a suppression hearing that the facts precipitating the dispatch justified a reasonable suspicion of criminal activity." Maumeev. Weisner,
{¶ 25} In the present case, we find Platko's report contained sufficient indicia of reliability to justify Patrolman Johnson's stop of Totarella. Contrary to Totarella's characterization of Platko as an unidentified informant, we agree with the trial court's description of Platko as an "identifiable" informant. Platko identified herself as a neighbor and provided the address of where the incident was occurring. Moreover, Platko was an eyewitness. The initial dispatch to Johnson informed him of an ongoing domestic dispute. Platko remained on the line with the dispatcher, and so was able to inform the dispatcher that Totarella had rammed Holton's car and that both of them had left the scene in his car. On these facts alone, we find that Platko's information justified a reasonable suspicion of criminal activity. Cf. Weisner,
{¶ 26} In this case, there was also independent corroboration of Platko's information. Platko provided an accurate description of the car, the number of occupants, and the direction it was heading. The reliability of this information was confirmed when Johnson sighted a car matching that description in the location Platko indicated. For the foregoing reasons, the dispatch based upon Platko's information was sufficiently reliable to justify Johnson's investigatory stop. Totarella's first assignment of error is without merit.
{¶ 27} In his second assignment of error, Totarella challenges the constitutionality of R.C.
{¶ 28} Under the third assignment of error, Totarella argues that the trial court erred by admitting, as evidence, a written stipulation that Totarella had been previously convicted of felonious assault in violation of R.C.
{¶ 29} Pursuant to the third count of the indictment, Totarella was charged under R.C.
{¶ 30} Where the existence of a prior conviction elevates the degree of an offense, the prior conviction is an essential element of that offense and must be proved as a matter of fact.State v. Allen (1987),
{¶ 31} Prior to trial, Totarella filed a Motion for a Separate Hearing on Prior Convictions, essentially a motion in limine, in which he asked, among other things, that the prior conviction element of the offense be stipulated to "without identifying the nature of the conviction or any details of the conviction." The trial court considered the matter on the morning of the trial. At this time, the state expressed its intention to prove the prior conviction element of the charge by having Totarella's parole officer testify. The court noted that the prior conviction was an element of the offense charged and that the state was entitled to introduce evidence on this element. Totarella's attorney responded that, since the trial court was inclined to allow testimony on this issue, Totarella would stipulate to the prior convictions.2 Thereafter, the following stipulation was drafted and read to the jury at the beginning of the trial: "Thomas M. Totarella was previously convicted of an offense of violence, to-wit: Felonious Assault, a violation of O.R.C. §
{¶ 32} On appeal, Totarella argues that trial court erred by overruling his motion to limit the information about his prior convictions put before the jury and by informing the jury of his two prior convictions. Totarella relies on the United States Supreme Court's decision in Old Chief v. United States (1997),
{¶ 33} The Supreme Court ruled that the lower court erred by admitting this evidence. The question was not one of relevance but rather "the scope of a trial judge's discretion under [Fed.Evid.] Rule 403, which authorizes exclusion of relevant evidence when its `probative value is substantially outweighed by the danger of unfair prejudice.'" Id. at 180. By offering to stipulate, the petitioner presented the trial court "alternative, relevant, admissible evidence of the prior conviction" that was "seemingly conclusive" of the prior conviction element of the statute. Id. at 186. The court reasoned: "The issue is not whether concrete details of the prior crime should come to the juror's attention but whether the name or general character of that crime is to be disclosed. Congress * * * has made it plain that distinctions among generic felonies does not count for this purpose; the fact of the qualifying conviction is alone what matters under the statute. * * * The most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possessing a gun * * *." Id. at 190-191 (internal citations omitted). Since the petitioner's proposed stipulation provided a suitable evidentiary alternative to the order of judgment for petitioner's conviction without the risk of unfair prejudice inherent in the evidence of prior convictions, the trial court abused its discretion by not accepting petitioner's proffered stipulation. Id. at 191.
{¶ 34} Ohio Rule of Evidence 403(A) provides that evidence, although relevant, "is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice." "When considering evidence under Evid.R. 403, the trial court is vested with broad discretion and an appellate court should not interfere absent a clear abuse of that discretion." State v.Allen,
{¶ 35} In the present case, the trial court erred by admitting evidence of Totarella's prior convictions in the manner as stipulated. First, it was unnecessary to admit evidence of both of Totarella's prior convictions. To satisfy the prior conviction element of R.C.
{¶ 36} Second, the trial court erred by unnecessarily including the name and nature of Totarella's prior convictions in the stipulation. As in the case of Old Chief, distinctions among offenses of violence do not matter for the purpose of elevating the degree of the offense of carrying concealed weapons. In this respect, a prior conviction for aggravated homicide is just as probative as a prior conviction for intimidation. The most the jury would need to know is that Totarella had stipulated to a conviction for a crime defined under the Revised Code as an "offense of violence." Old Chief,
{¶ 37} Although it was error for the trial court to admit the stipulation as drafted, that error does not warrant the reversal of Totarella's convictions. We begin by noting that Totarella has failed to preserve this issue for review. Totarella requested a stipulation to exclude the name and nature of his prior convictions through a motion filed prior to trial. However, "the ruling in a motion in limine does not preserve the record on appeal." State v. Grubb (1986),
{¶ 38} Where an appellant has failed to preserve an issue for review, a reviewing court has the power, under Crim.R. 52(B), to recognize "plain errors or defects involving substantial rights."State v. Campbell,
{¶ 39} In his fourth and fifth assignments of error, Totarella challenges the trial court's rulings limiting his cross-examination of two of the state's witnesses. A defendant's right to cross-examine the state's witnesses is guaranteed by the confrontation clause of the
{¶ 40} Totarella claims that the trial court erred by limiting his cross-examination of Platko as regards her mental illness. Platko was Totarella's neighbor who witnessed the incident between Totarella and Holton and reported it to the police. During cross-examination, Totarella's attorney elicited from Platko that she is under the care of a psychiatrist. Totarella's attorney also questioned Platko about the medicines she was currently taking and whether these medications affected her ability to perceive the events in question. On two occasions, Totarella's attorney asked Platko about the specific condition for which Plakto was taking medication. On each occasion, the trial court sustained the state's objection. Totarella argues that he was thereby deprived of the opportunity to inquire into Platko's ability to perceive events and relate them accurately. Cf. Evid.R. 616(B) ("A defect of capacity, ability, or opportunity to observe, remember, or relate may be shown to impeach the witness either by examination of the witness or by extrinsic evidence.").
{¶ 41} We hold that the trial court did not abuse its discretion by limiting the cross-examination into Platko's mental illness. Prior to trial, the issue of Platko's condition was discussed by the court and both trial counsel. The trial judge acknowledged that mental illness could affect a person's ability to perceive reality and inquired of the prosecutor whether Platko was delusional in any way. The prosecutor replied that Platko was being treated for depression and anxiety. Satisfied that Platko's underlying psychological condition was not relevant to her ability to perceive and relate events, the trial judge decided to limit defense counsel's cross-examination of Platko to the medications she was currently taking. We agree that without a foundation for inquiring into Platko's mental health, the trial court properly limited the cross-examination of Platko in this regard.
{¶ 42} Totarella also claims that the trial court erred by preventing him from questioning the victim, Holton, concerning her employment. Again, the court and the attorneys discussed this issue of Holton's employment at a Cleveland strip club prior to trial. The prosecutor, contrary to Totarella's attorney, argued that Holton's place of employment had no relevance to her ability to perceive and relate events but would make her seem a "less desirable" victim. The trial judge ruled that defense counsel could ask Holton whether there was anything about her employment that might bear on her ability to perceive matters, but that he could not ask specifically where she works. Totarella also maintains that Holton's place of employment was relevant to Holton's credibility and to show bias.
{¶ 43} We disagree. Totarella advances no substantive argument why Holton's place of employment is relevant to her credibility, possible bias, or to any of the factual events underlying the charges against him. We are unable to conceive of any possible connection. Totarella is correct that "[a]ny abrogation of the defendant's right to a full and complete cross-examination of such witnesses is a denial of a fundamental right essential to a fair trial." State v. Hannah (1978),
{¶ 44} In his sixth assignment of error, Totarella asserts that the trial court erred by allowing Holton, during redirect examination, to read from a prior written statement she had given to police on the day of the incident with Totarella. Totarella argues that this prior statement constitutes inadmissible hearsay and exceeds the proper scope of redirect examination.
{¶ 45} On direct examination, Holton testified that Totarella forced her against her will to leave the scene at Regent Road in Totarella's car. On cross-examination, defense counsel sought to undermine this testimony by contrasting it with a written statement Holton had made for Patrolman Regnier on the day of the incident. Defense counsel asked Holton the following leading questions, "you never told the police in your statement you were forced in his car, correct?" and "you also put in your statement that Mr. Totarella begged you to leave because the police were coming, correct?" Defense counsel also quoted directly from Holton's statement, "I left because I thought I saw kids around." On redirect examination, over defense counsel's objection, the prosecutor had Holton read that portion of her statement that pertained to her accompanying Totarella to his car.3
{¶ 46} "Ordinarily, prior consistent statements of a witness are not admissible to rehabilitate him where his direct testimony has been impeached by the admission of prior statements inconsistent with such direct testimony." Shellock v. Klempay
(1958),
{¶ 47} We reject Totarella's argument. At no point during the cross-examination of Holton was it ever suggested that her direct testimony was a recent fabrication due to some improper influence.4 Totarella questioned Holton about her prior written statement in order to impeach her prior testimony regarding her motivation for accompanying Totarella from the crime scene without any explanation of apparent inconsistencies. In doing so, Totarella "opened the door" for the prosecutor to have Holton read directly from her statement. State v. Jones
(Mar. 15, 1995), 4th Dist. No. 94CA11, 1995 Ohio App. LEXIS 1022, at *7. "Where, on cross-examination, a witness is impeached by a showing of prior statements made by him in a written instrument apparently inconsistent with his statements on direct examination, reference to other statements in the same document used to impeach him is proper for the purpose of rehabilitation, where such other statements are consistent with the statements made on direct examination or are in explanation of such apparent inconsistency and do not serve to inject new issues into the case." Shellock,
{¶ 48} Totarella complains in his seventh assignment of error that he was denied a fair trial by the trial court's failure to take adequate corrective action after the jury observed him in the presence of sheriff's deputies. Following jury selection, the trial court ordered a brief recess. Prior to the jury exiting the courtroom, two sheriff's deputies approached Totarella at the defense table and accompanied him out of the courtroom. The jury may also have observed Totarella in the presence of the sheriff's deputies outside of the courtroom.
{¶ 49} Absent unusual circumstances, "no one should be tried while shackled." State v. Kidder (1987),
{¶ 50} In the present case, Totarella was in custody at the time of his trial. This fact, however, would not have been apparent to the jury had not Totarella been escorted from the courtroom by sheriff's deputies during a recess. Prior to the resumption of the trial, the matter was taken up by the trial judge and counsel. The possibilities of declaring a mistrial and of conducting a voir dire of the jury to determine exactly what the jury had witnessed were discussed. Ultimately, the trial judge decided to address the issue directly through a corrective instruction as follows: "[I]t has come to my attention that some of you may have seen Mr. Totarella in the company of deputies. That's right. Mr. Totarella is in jail. Mr. Totarella is in jail because he has either chose to or did not meet bond. So he is being held there because of the bond, not meeting bail. Not in there because of any imprisonment or any danger that he poses or anything of that nature."
{¶ 51} The Ohio Supreme Court has noted that, in such cases, "danger of prejudice to defendants is slight where a juror's view of defendants in custody is brief, inadvertent and outside of the courtroom." Kidder,
{¶ 52} In Totarella's eighth assignment of error, he argues that the trial court denied him the effective assistance of counsel by unreasonably limiting the scope of defense counsel's closing argument. The right of a defense counsel to present a closing summation of the facts and law to the jury is a constitutional right under the
{¶ 53} Totarella cites to three instances in which he claims the trial court unreasonably abrogated defense counsel's arguments during closing argument. In the first instance, defense counsel was attempting to bring to the jury's attention that Holton's car was never inventoried by the police but that, if it had, it was possible that the police would have found illegal drugs. The trial court properly upheld the prosecution's objection to this line of argument as speculative as well as irrelevant to the issue of Totarella's guilt or innocence. The next two instances involved the charge of carrying concealed weapons. Defense counsel first attempted to argue that the switchblade knife found on Totarella had not been adapted for use as a weapon and could be purchased at any sporting goods store. Defense counsel then stated that the prosecution had to show that the knife was being used as a weapon at the time. In both cases the trial court properly upheld the state's objections. We find defense counsel's assertion that the knife found on Totarella could be purchased at any sporting goods store to be unsupported by any evidence in the record. Moreover, the accuracy of defense counsel's claim is dubious in light of Ohio's ban on the sale of switchblade knives. See R.C.
{¶ 54} Totarella's ninth and tenth assignments of error concern the trial court's refusal to instruct the jury on the lesser included offense of assault to the charges of felonious assault and on the lesser included offense of unlawful restraint to the charge of kidnapping. "An offense may be a lesser included offense of another if * * * the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed." State v.Deem (1988),
{¶ 55} It is well-established that assault is a lesser included offense of felonious assault. State v. Nipper, 12th Dist. No. CA2002-06-135, 2003-Ohio-4449, at ¶ 24; State v.Cochran, 2nd Dist. No. 19448, 2003-Ohio-3980, at ¶ 10; State v.Booth, 4th Dist. No. 02CA30, 2003-Ohio-2064, at ¶ 13. As this court has observed, "[s]imple assault, as described in R.C.
{¶ 56} It is also well-established that unlawful restraint is a lesser included offense of kidnapping. State v. Garrett, 12th Dist. No. CA2002-05-111, 2003-Ohio-5000, at ¶ 34; State v.Cruz, 9th Dist. No. 03CA0031-M, 2003-Ohio-4782, at ¶ 24; State v.Brancho, 7th Dist. No. 97-CA-63, 2002-Ohio-5237, at ¶ 20. Totarella was indicted for kidnapping under R.C.
{¶ 57} In Totarella's eleventh, twelfth, and thirteenth assignments of error, he argues that the evidence adduced at trial was insufficient to support his convictions for carrying concealed weapons, intimidation, and felonious assault. Crim.R. 29(A) (a defendant may move the trial court for a judgment of acquittal "if the evidence is insufficient to sustain a conviction").
{¶ 58} The Ohio Supreme Court has defined "sufficiency" as "a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v. Thompkins,
{¶ 59} As regards the conviction for carrying concealed weapons, Totarella argues that the state failed to introduce evidence that the knife Patrolman Johnson found in Totarella's pocket constitutes a "deadly weapon." R.C.
{¶ 60} There is no presumption that a knife is a deadly weapon. State v. Cathel (1998),
{¶ 61} Totarella's indictment for intimidation required the state to prove that he "knowingly and by force, by unlawful threat of harm to any person or property * * * attempt[ed] to influence, intimidate, or hinder * * * a witness," Platko, "in the discharge of the person's duty." R.C.
{¶ 62} We summarily dismiss this argument. We are aware of no precise definition of a "proceeding" for the purpose of R.C.
{¶ 63} We also summarily dismiss Totarella's argument that his conviction for intimidation violated his right to free speech. Totarella waived this argument by not raising it in the trial court. State v. Awan (1986),
{¶ 64} In regards to his conviction for felonious assault, Totarella argues that there was no evidence of the intent on Totarella's part to use his car as a deadly weapon and that, at best, the facts support a charge of vandalism. We disagree. In Ohio, it is established that an automobile may constitute a "deadly weapon" for the purposes of R.C.
{¶ 65} In the present case, we find that a rational jury could have found beyond a reasonable doubt that Totarella attempted to cause Holton physical harm by means of his automobile, a thing capable of inflicting death and used, in this instance, as a weapon. Prior to the assault, Totarella and Holton had been arguing Holton being able to leave Totarella and return to her home. Totarella had frustrated her efforts to leave by taking her ignition key and beating her. When Holton was finally in a position to drive away in her automobile, Totarella rammed his automobile into her driver's side door with enough force to shatter the door's window. The jury was able to view the damage done to Holton's car and heard the testimony of two witnesses' describe the incident. There is no credible evidence that Totarella did not intend to run his automobile into Holton's in the manner described. Accordingly, there is sufficient evidence to sustain Totarella's conviction of felonious assault. Totarella's eleventh, twelfth, and thirteenth assignments of error lack merit.
{¶ 66} Under Totarella's fourteenth and final assignment of error, he asserts that, pursuant to Ohio's allied offenses statute, R.C.
{¶ 67} In State v. Blankenship (1988),
{¶ 68} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas is affirmed.
Judgment affirmed.
O'Neill and Rice, JJ., concur.
