State v. Urbina, 4-06-33 (6-25-2007)State v. Urbina, 4-06-33 (6-25-2007)
{¶ 1} Dеfendant-appellant Hyme J. Urbina appeals the judgment of the Defiance County Court of Common Pleas finding him guilty of burglary, robbery, theft, and possession of cocaine. For the reasons that follow, we affirm.
{¶ 2} On February 2, 2005, four individuals robbed Michael Partee at his home in rural Defiance County, Ohio. Accounts differ as to whether Urbina participated in the robbery. Partee claimed Urbina did; Urbina claimed he did not.
{¶ 3} On March 4, 2005, the Defiance County Grand Jury indicted Urbina, in Case No. 05 CR 09186, for the following: aggravated burglary in violation of
{¶ 4} The cases proceeded to a two-day jury trial. Ultimately, the jury found Urbina not guilty of aggravated burglary but guilty of the lesser-included offense of burglary, a violаtion of
{¶ 5} Shortly thereafter, the trial court held a sentencing hearing. As pertinent tо this appeal, the trial court sentenced Urbina to an eighteen-month prison term for burglary and an eight-year prison term for robbery. The trial court ordered Urbina to serve the terms consecutively for a cumulative term of nine years and six months.1
{¶ 6} Urbina subsequently moved for a new trial under
{¶ 7} Urbina now appeals to this court and sets forth three assignments of error for our review. We quote Urbina‘s assignments of error exactly as he presented them to us in his brief.
ASSIGNMENT OF ERROR NO. I
The verdict of the jury is inconsistent in finding defendant-appellant guilty of robbery and guilty of burglary instead of aggravated burglary.
{¶ 8} In his first assignment of error, Urbina argues the jury‘s not guilty verdict on the aggravated burglary count is inconsistent with the jury‘s guilty verdict on the robbery count. From this premise, Urbina concludes we must overturn the jury‘s guilty verdict on the robbery count.
{¶ 9} The prosecution charged Urbina with aggravated burglary, robbery, and grand theft in three different counts. Significantly, the Ohio Supreme Court has held “[t]he several counts of an indictment containing more than one count are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count.” State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393, 374 N.E.2d 137, paragraph two of the syllabus, vacated on other grounds (1978), 439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103; see, also, State v. Lovejoy (1997), 79 Ohio St.3d 440, 446, 683 N.E.2d 1112; State v. Hicks (1989), 43 Ohio St.3d 72, 78, 538 N.E.2d 1030, citing United States v. Powell (1984), 469 U.S. 57, 68, 105 S.Ct. 471, 83 L.Ed.2d 461.
{¶ 10} The two crimes at issue, aggravated burglary and robbery, require the prosecution to prove the same element; that Urbina did inflict or threaten to inflict physical harm to Partee.
{¶ 11} Even if we assume an inconsistency exists, the inconsistency pertainеd to the same element in two different crimes. Plus, the prosecution charged the two different crimes in two different counts. The foregoing authority makes clear that an “inconsistency in a verdict” does not arise under such circumstanсes. Accordingly, we conclude no inconsistency exists that justifies overturning the jury‘s guilty verdict on the robbery count, and we overrule Urbina‘s first assignment of error.
ASSIGNMENT OF ERROR NO. II
The court erred in denying defendant-appellant‘s request to recall state‘s witness оn cross-examination after newly-discovered evidence.
{¶ 12} In his second assignment of error, Urbina argues the trial court erred because it refused to permit him to recall Partee after Partee testified during the prosecutiоn‘s case-in-chief. As we discuss infra, Urbina sought to recall Partee to impeach him with “newly-discovered evidence,” the “surprise testimony” of defense witness Shane Chestnut. At trial, defense counsel alleged he did not learn about the testimоny until after Partee testified because Chestnut, who was incarcerated, did not provide the testimony until the second day of trial.
{¶ 13} On the first day of trial, the prosecution presented its case-in-chief. Partee testified for the prosecution, and he discussed the events surrounding the robbery. Specifically, Partee testified an individual who he could not identify
{¶ 14} Urbina presented his case-in-chief on the second day of trial. Chestnut testified for Urbina, and defense counsel asked Chestnut on dirеct-examination if he spoke with Partee in February 2005. The prosecution objected on hearsay grounds, and the trial court excused the jury and permitted defense counsel to proffer Chestnut‘s testimony. Chestnut testified: he spoke with Pаrtee in February 2005; Partee said Urbina did not follow anyone inside the house; and Partee said Urbina partially entered the house, turned around, walked away, and waited in the car. The trial court sustained the prosecution‘s hearsay оbjection.
{¶ 15} Immediately thereafter, the trial court, defense counsel, and the prosecution discussed two issues: whether Urbina could recall Partee on cross-examination; and, if so, whether Urbina could use Chestnut‘s testimony under Evid.R. 16(B) as еxtrinsic evidence of a prior inconsistent statement to impeach Partee. The record provides, in pertinent part, as follows:
The Court: That testimony [Chestnut‘s testimony] is not going to be admissible.
[Defense Counsel]: I think it goes — It goes to — It‘s nоt entered for the purpose of the truth of the matter. It‘s — It certainly goes to the credibility of Mike Partee.
The Court: It‘s certainly offered for the truth of the matter asserted under the circumstances in which you are presenting it. It is a, if anything, a prior inconsistent statement given by the witness and certainly would have been the subject of an appropriate cross examination of that witness. Whether you can then go on and try to prove the existence of that statеment by extrinsic evidence, uh, is — That is not the case. You can‘t prove the existence of that prior inconsistent statement by extrinsic evidence. The — This is — [Defense Counsel]: It goes to the credibility of that witness.
The Court: It‘s —
[Defense Counsel]: Well, I ought tо recall that witness then.
The Court: You can recall that witness and cross examine him but he — You‘re going to live with his answers. I mean this is — This is pure hearsay not within an exception the Court can see.
[Prosecutor]: Your Honor, I, uh, agree with the Court‘s rendition of Evidence Rule 613(B) but I‘m not sure that he would still be able to recall the witness just to open that line of questioning, uh, on a basis of a cross examination. I have to disagree with that. I think the Court‘s ruling was exactly correct.
(Emphasis added.)
{¶ 16} On appeal, Urbinа argues the trial court erred because it refused to permit him to recall Partee on cross-examination after Partee testified during the prosecution‘s case-in-chief. Clearly, however, the record reflects the triаl court permitted Urbina to recall Partee. Apparently, Urbina elected not to do so, presumably because the trial court indicated it would not permit Urbina to use Chestnut‘s testimony under Evid.R. 613(B) as extrinsic evidence.
{¶ 17} In short, we fail to see how the trial court erred. The trial court did not refuse to permit Urbina to recall Partee on cross-examination. Accordingly, we find Urbina‘s argument to the contrary meritless, and we overrule Urbina‘s second assignment of error.
ASSIGNMENT OF ERROR NO. III
The court erred in refusing to grant a new trial based on proffer of newly-discovered evidence.
{¶ 18} In his third assignment of error, Urbina claims the trial court erred when it denied his motion for a new trial under
{¶ 19} A trial court has discretion to deny a defendant‘s motion for a new trial under
{¶ 20} To prevail on a motion for a new trial based on newly discovered evidence, a defendant must show: the new evidence has been discovered since the
(A) Grounds.
A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights:
* * *
(6) When new evidence material to the defense is discovered which the defendant could not with reasonable diligence have discoverеd and produced at trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such еvidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances оf the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses.
(Emphasis added.)
{¶ 21} As a threshold matter, we fail to see how Chestnut‘s “surprise testimony” constitutes new evidence. But, еven if we assume that it does, we nevertheless conclude Urbina did not satisfy several of the requirements needed to prevail on a
{¶ 22} Furthermore, we conclude Urbina did not comply with the express procedural requirements set forth in
{¶ 23} In sum, we cannot say the trial court acted unreasonably, arbitrarily, or unconscionably when it denied Urbina‘s motion for a new trial. As such, the trial court did not abuse its discretion, and we overrule Urbina‘s third assignment of error.
{¶ 24} Finding no error prejudicial to Urbina in the particulars assigned and argued, we affirm.
Judgment affirmed.
SHAW and WILLAMOWSKI, JJ., concur.