2004 Ohio 3974 | Ohio Ct. App. | 2004
{¶ 2} Appellant filed a notice of appeal and raises the following assignments of error:
Assignment of Error No. 1:
The court of common pleas erred and deprived Defendant-Appellant of his right to a speedy trial under R.C.
Assignment of Error No. 2:
Defendant-Appellant was denied his right to due process and a fundamentally fair trial under U.S. Const. amend.
Assignment of Error No. 3:
Defendant-Appellant was deprived of his right to be present and to the presence and assistance of his counsel during a critical stage of his jury trial, and his right to due process and a fundamentally fair jury trial under the U.S. Const. amend.
Assignment of Error No. 4:
The entry of separate convictions and consecutive prison sentences for two counts of theft and one count of receiving stolen property involving the same victim and the same occurrence contravened R.C.
Assignment of Error No. 5:
Defendant-Appellant was denied his right to the effective assistance of counsel guaranteed to him under U.S. Const. amend.
Assignment of Error No. 6:
Defendant-Appellant's convictions for rape, kidnapping, and aggravated burglary are not supported by evidence sufficient to satisfy the requirements of due process under U.S. Const. amend.
Assignment of Error No. 7:
The aggregate 26 year prison term to which Defendant-Appellant was sentenced violated his statutory rights under R.C. Chap. 2929 and his right of due process under U.S. Const. amend.
Assignment of Error No. 8:
The adjudication that Defendant-Appellant is a sexual predator is not supported by the common pleas court's findings and is not supported by sufficient evidence.
{¶ 3} The charges against appellant arose out of events beginning on August 20, 2002. The first witness to testify at the trial was Candice Baugh ("Baugh") who stated that, on that date, she lived in an apartment near The Ohio State University campus. Baugh was a student and was working at the Development Office at The Ohio State University Medical Center. She had come home for lunch around 2:00 p.m., and was starting to make lunch when there was a knock on her door. Baugh peeked out her window and asked the man standing at her door what he wanted. Appellant asked if a different person lived there and then asked to use her telephone. Baugh opened the door slightly and gave him the telephone. When he was finished, she again opened the door slightly but, this time, appellant pushed the door open and entered the apartment. He pulled a silver gun out of his bag and told her to "shut up" and to take her clothes off. (Tr. at 64-65.) He told her to lay down on the living room floor and he laid on top of her and had intercourse. Afterwards, Baugh asked if she could put some clothes back on and she put on her shirt. He told her to pack up her laptop computer and he took her purse, cell phone, cordless phone and car keys. Appellant then left in her Honda Prelude. Baugh put on her pants and ran to her neighbor's apartment, and called the police and her stepfather. Later when the police showed her a photo array, she immediately identified appellant.
{¶ 4} Bryan Briskey, Baugh's neighbor, testified that Baugh seemed disoriented and looked as if she was fighting back tears when she came to his apartment to use the phone, explaining that she had just been raped and had her car stolen. Chip Thompson, a Columbus Police Officer on a bicycle unit, was the first to respond and stated that Baugh's demeanor when he talked to her was that she was very upset, crying, agitated and a little confused.
{¶ 5} Heather Camille Jones ("Jones") testified that she lived in an apartment across the street from Baugh. Jones was leaving to go to the store and noticed a man standing on the porch of Baugh's apartment. She was gone for approximately 20 to 30 minutes and, when she returned, the police were there. On September 6, 2002, she was shown a photo array and identified appellant as the man she saw, but she was not positive it was him. Jones did not remember appellant carrying a bag or backpack, but she stated she might not have seen it because she only saw his left side.
{¶ 6} Cheryll Minke ("Minke"), the Sexual Assault Nurse Examiner ("SANE") from Riverside Methodist Hospital who examined Baugh, found no physical trauma but did find redness on Baugh's cervix. She explained that redness is usually from some trauma or something that has occurred to the cervix and is consistent with recent vaginal intercourse and consistent with the history that Baugh related to her. Minke wrote" acquaintance" on the hospital exam form in response to the relationship of assailant to patient; however, the doctor who examined Baugh dictated notes that stated Baugh was assaulted "by a male that is not known to her."
{¶ 7} Elderberry Clodfelter ("Clodfelter") testified that, while standing on a street corner, he was approached by a male driving a blue Honda Prelude who was looking for drugs. Clodfelter got inside the car and appellant gave him a cell phone in exchange for drugs. Appellant then reached behind Clodfelter's seat and pulled out a chrome gun and wanted all Clodfelter's money. Clodfelter was able to run from the car. Clodfelter attempted to sell the cell phone, which was later identified as Baugh's phone. Clodfelter identified appellant out of a photo array, identified him in court and identified a picture of Baugh's car as the one appellant was driving.
{¶ 8} On September 2, 2002, a Columbus police officer saw Baugh's Honda traveling on Wilson Avenue and started to pursue it. After a high-speed chase, appellant hit another vehicle at the intersection of Broad Street and James Road. Appellant exited the car and ran. The police officer caught appellant, who continued to struggle and had a baggy of crack cocaine in his hand
{¶ 9} Appellant testified in his own defense. He stated that he met Baugh at the Heritage Festival where they exchanged telephone numbers, but he lost her number. On August 20, 2002, he was in Baugh's neighborhood, looking for his cousin's apartment when he saw her drive by him and wave. He went to her apartment and she let him inside. They began talking and kissing, and had sex on the couch. He did not have a gun or weapon. While Baugh took a shower, he stole her purse, cell phone, computer and car. He sold the cell phone to Clodfelter for money, not drugs, and he sold the laptop computer. On September 2, 2002, he was driving Baugh's car, attempted to flee from the police and had an accident.
{¶ 10} By the first assignment of error, appellant contends that the trial court erred and deprived appellant of his right to a speedy trial under R.C.
(C) A person against whom a charge of felony is pending:
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(2) Shall be brought to trial within two hundred seventy days after his arrest.
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(E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. * * *
{¶ 11} R.C.
{¶ 12} The Ohio Supreme Court has determined that the triple-count provision of R.C.
{¶ 13} The thrust of appellant's speedy trial argument was the validity of the first continuance. Appellant argues that the first continuance entry signed by his counsel is not valid because the attorney had stopped functioning as his attorney because of a conflict of interest.1 The trial was originally set for November 7, 2002, but, on November 4, 2002, defense counsel filed a motion for continuance because he was to be out of town until November 12, 2002. On November 21, 2002, defense counsel was removed because of a conflict of interest since counsel also represented Clodfelter. Appellant contends that counsel had stopped representing his interests when the continuance entry was signed and his speedy trial rights were waived. However, a defendant's right to be brought to trial within the limits of R.C.
{¶ 14} Appellant also asserts a constitutional speedy trial violation. The right to a speedy trial is guaranteed by both the United States and Ohio Constitutions. The
{¶ 15} In Barker v. Wingo (1972),
{¶ 16} We shall address appellant's third assignment of error next. By the third assignment of error, appellant contends that he was deprived of his right to be present and to the presence and assistance of his counsel during a critical stage of his jury trial, and of his right to due process and a fundamentally fair jury trial under the
{¶ 17} The jury submitted four sets of written questions to the court during its deliberations. Two responses were signed by the trial judge and two were signed by the trial judge's bailiff. Appellant contends that he and his attorney were not present during the preparation and submission of responses to the jury's questions, and his constitutional rights were violated.
{¶ 18} In response, appellee, State of Ohio, argues that, while appellant's counsel was contacted by telephone as to the jury's third question, the record does not demonstrate that appellant and his counsel were not present during the preparation and submission of responses to the jury's questions and, in the absence of such an indication, we must presume regularity in the proceedings.
{¶ 19} "A defendant in a criminal case has a right to be present at all stages of the proceedings, including a communication of the trial judge with the jury regarding his instructions pursuant to a request from the jury." Columbus v.Bright (June 21, 1984), Franklin App. No. 83AP-857; Crim.R. 43. Further, the
{¶ 20} The Ohio Supreme Court has held that a communication concerning instructions between the judge and jury without the presence of the defendant or his counsel does not constitute grounds for reversal where the defendant's right to a fair trial was not prejudiced by the communication and the error was harmless beyond a reasonable doubt. See State v. Abrams (1974),
{¶ 21} The transcript indicates that the following occurred:
Thereupon, the further trial of this cause was resumed pursuant to adjournment.
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Thereupon, at 9:00 o'clock a.m., the jury retired and proceeded to deliberate upon the case.
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Thereupon, at 10:25 o'clock a.m., the jury sent to the Court written questions which read as follows:
"Question:
"Can we have a TV/VCR?"
"Can we have a cassett [sic] recorder?"
"Can we take a break?"
The Court returned the following answer:
"18:42.28 is the start time."
"19:11.40 is the ending."
"This is the only portion to be viewed." [Answers signed by Judge Pfeiffer.]
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Thereupon, at approximately 12:00 o'clock p.m., the jury went to lunch.
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Thereupon, the jury resumed its deliberations upon the case pursuant to the luncheon recess.
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Thereupon, at 3:00 o'clock p.m., the jury sent to the Court written questions which read as follows:
"Questions:
"1) Can we have the 911 call record (printout)?"
"2) Is the initial police report available?"
"3) Are we able to obtain/review the transcripts of David Wade and Candace Baugh's testimony?"
The Court returned the following answers:
"1) You have all the exhibits admitted into evidence."
"2) You have all the exhibits admitted into evidence."
"3) A transcript has not been prepared." [Answers signed by Katherine Giacomelli Butcher, Bailiff for Judge Pfeiffer.]
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Thereupon, at 3:40 p.m., the jury sent to the Court written questions which read as follows:
"Question:
"A. Can you clarify the jury instruction for aggravated burglary and aggravated robbery? Can he be found guilty without a gun?
"The specifications are what is confusing with wording on jury instructions."
"B. Does `aggravated' mean weapon?"
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The Court returned the following answers:
"A. Yes, there are alternative theories upon which you could find aggravated burglary and aggravated robbery."
"B. No." [Answers signed by Katherine Giacomelli Butcher for Judge Pfeiffer.]
Thereupon, at 4:07 p.m., the jury sent to the Court a written question which reads as follows:
"A. It states that aggravated robbery must include a deadly weapon (Page 9). On your last response to us, you stated that `aggravated' does not mean weapon."
"Are we misreading or misunderstanding that in order to find the Defendant guilty of aggravated robbery he must have had a deadly weapon?"
The Court returned the following answer:
"You are correct as to the aggravated robbery." [Answer signed by Judge Pfeiffer.]
(Tr. at 560-562.)
{¶ 22} Admittedly, some of the questions were not substantive, such as: "Can we take a break?" (Tr. at 560.) However, several were substantive, such as: "Can you clarify the jury instruction for aggravated burglary and aggravated robbery? Can he be found guilty without a gun?" (Tr. at 561-562.) While the transcript indicates that, in one instance, defense counsel was available by telephone and objected to the answer that the trial court gave to the jury, there is no indication that appellant or defense counsel participated in the preparation or response to the last jury question regarding whether aggravated robbery must include a weapon. (Tr. at 564.) Unlike the situation in State v. Franklin,
{¶ 23} In several places, the transcript provides that proceedings occurred "in the presence of all Counsel and the Defendant, and in open court." (Tr. at 563, 567.) In other places, the transcript indicates that the jury is not present, such as: "[S]ince we're here without the jury" or "[T]he following proceedings were had between Court and Counsel in open court out of the presence and hearing of the jury as follows[.]" (Tr. at 482, 424, 230, 338.)
{¶ 24} In State v. Chinn (1999),
{¶ 25} In this case, the same is true. Not only was the jury confused concerning the instructions, but it is unclear whether the bailiff signed the responses at the direction of the judge or prepared the responses herself; however, given the substantive nature of the communication and the ambiguous signature by the bailiff, the procedure employed by the trial court was deficient. There is a possibility that the jury's conclusion was influenced by the court's responses. As in Sales, even if one aspect of the procedure is insufficient to warrant reversal, the combination of them requires reversal.
{¶ 26} The answers to the questions regarding a clarification of the aggravated burglary and aggravated robbery instructions were confusing and misleading. While in the abstract, "aggravated" does not mean weapon, in this case, appellant was charged with inflicting or threatening to inflict physical harm and/or had a deadly weapon. R.C.
{¶ 27} The state relies on State v. Taylor (1997),
{¶ 28} Appellant's third assignment of error is well-taken.
{¶ 29} Given our disposition of the third assignment of error, the second, fourth, fifth, seventh and eighth assignments of error are rendered moot.
{¶ 30} By the sixth assignment of error, appellant contends that his convictions for rape, kidnapping and aggravated burglary are not supported by evidence sufficient to satisfy the requirements of due process under the
{¶ 31} The standard of review for sufficiency of the evidence is if, while 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),
{¶ 32} In this case, the victim, Baugh, testified that appellant knocked on her door, asked to use the telephone and, when he was returning the phone, he pushed the door open and entered the apartment and pulled a silver gun out of his bag. He told her to lay down on the living room floor and he laid on top of her and had intercourse. Afterwards, he took her laptop computer, purse, cell phone, cordless phone and car keys, and left in her Honda Prelude.
{¶ 33} Thompson, a Columbus Police Officer on a bicycle unit, was the first officer to respond and he stated that Baugh's demeanor when he talked to her was that she was very upset, crying, agitated and a little confused. Bryan Briskey, Baugh's neighbor, also testified that Baugh seemed disoriented and looked as if she was fighting back tears when she came to his apartment to use the phone, explaining that she had just been raped and had her car stolen.
{¶ 34} Baugh's neighbor, who was going to the store, noticed a man standing on the porch of Baugh's apartment. She was shown a photo array and identified appellant as the man she saw, but she was not positive it was him. The SANE nurse who examined Baugh found no physical trauma, but did find redness on Baugh's cervix. Clodfelter testified that he was approached by appellant driving a blue Honda Prelude, who pulled out a chrome gun and wanted all of Clodfelter's money. Clodfelter purchased Baugh's cell phone from appellant. Appellant was arrested while driving Baugh's Honda Prelude.
{¶ 35} Appellant testified in his own defense and stated that he and Baugh had consensual sex. He admitted while Baugh took a shower, he stole her purse, cell phone, computer and car. He sold the cell phone to Clodfelter for money, not drugs, and he sold the laptop computer. He did admit that, while he was driving Baugh's car, he attempted to flee from the police and had an accident.
{¶ 36} Appellant argues that Baugh's testimony that he had a gun was implausible; however, Clodfelter also testified that appellant had a gun and they both stated that it was silver. Such determinations of credibility and the weight to be given to the evidence are for the trier of fact. State v. DeHass (1967),
{¶ 37} Given the evidence, and while 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. This part of appellant's sixth assignment of error is not well-taken.
{¶ 38} For the foregoing reasons, appellant's second, fourth, fifth, part of the sixth, seventh and eighth assignments of error are rendered moot; his first assignment of error and part of his sixth assignment of error are overruled; and the third assignment of error is sustained. The judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for a new trial in accordance with law and consistent with this opinion.
Judgment reversed and cause remanded for new trial.
Lazarus, P.J., and Bryant, J., concur.
