State v. Black

2013 Ohio 2105

STATE OF OHIO, Plaintiff-Appellee, v. GEORGE J. BLACK, Defendant-Appellant.

Case No. 12CA3327

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

RELEASED: May 22, 2013

DECISION AND

JUDGMENT ENTRY

APPEARANCES:

George A. Katchmer, Bloomingburg, Ohio, for Defendant-Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, Chillicothe, Ohio, for Plaintiff-Appellee.

Hoover, J.

IINTRODUCTION

{¶ 1} Appellant, George J. Black, raises seven assignments of error pertaining to his conviction and sentence in the Ross County Common Pleas Court on charges of Involuntary Manslaughter, Felonious Assault, and Failure to Stop After a Non-Public Road Accident. The assignments of error allege misconduct and improprieties from virtually every stage of trial: from the voir dire examination through sentencing. After a review of the trial record and transcripts, we find that the appellant was afforded a fair trial, however, the Judgment Entry of Sentence is lacking the requisite findings. This makes appellant's sentence clearly and convincingly contrary to law;therefore, appellant's fifth assignment of error has merit. Accordingly, we affirm the jury's verdict; but reverse the trial court's Judgment Entry of Sentence and remand the cause for proceedings consistent with this decision.

{¶ 2} Appellant raises the following seven assignments of error for review.

First Assignment of Error:

THE COURT ERRED IN PERMITTING IMPROPER QUESTIONING DURING VOIR DIRE.

Second Assignment of Error:

APPELLANT'S CONVICTION MUST BE REVERSED DUE TO PROSECUTORIAL MISCONDUCT DURING VOIR DIRE.

Third Assignment of Error:

THE APPELLLANT WAS DENIED A FAIR TRIAL DUE TO THE INEFFECTIVENESS OF COUNSEL.

Fourth Assignment of Error:

THE TRIAL COURT ERRED IN FAILING TO GIVE AN INSTRUCTION ON SELF DEFENSE.

Fifth Assignment of Error:

THE TRIAL COURT SENTENCED THE APPELLANT TO CONSECUTIVE TERMS BASED UPON UNDUE CONSIDERATION OF ONLY ONE SENTENCING FACTOR.

Sixth Assignment of Error:

THE TRIAL COURT SENTENCED THE APPELLANT TO CONSECUTIVE TERMS BASED UPON IMPROPER AND UNCONSTITUTIONAL CRITERIA.

Seventh Assignment of Error:

CUMULATIVE ERRORS DEPRIVED THE APPELLANT OF A FAIR TRIAL.

IIFACTS

{¶ 3} Appellant Black was indicted by the Ross County grand jury for one count of Involuntary Manslaughter, in violation of R.C. 2903.04; one count of Felonious Assault, in violation of R.C. 2903.11; and one count of Failure to Stop After a Non-Public Road Accident, in violation of R.C. 4549.021. After a two-day jury trial, appellant was found guilty of all counts.

{¶ 4} By Judgment Entry of Sentence, the trial court found that the offenses of Involuntary Manslaughter and Felonious Assault were crimes of similar import, and thus should be merged for sentencing purposes. The trial court sentenced appellant to nine years in prison for Involuntary Manslaughter, and three years in prison for Failure to Stop After a Non-Public Road Accident. The sentences for imprisonment were ordered to run consecutive to each other, for a cumulative sentence of twelve years.

{¶ 5} Appellant's conviction and sentence arise from the tragic events that occurred in the early morning hours of January 13, 2011, at the Valley Bar in Bainbridge, Ohio.

{¶ 6} On the night of January 12, 2011, appellant and his acquaintance Tim Keaton arrived at the Valley Bar. Also present among the patrons of the Valley Bar that evening was Bob Nibert. Mr. Nibert was accompanied by his friend Billy Self, his cousin Amanda McElwee, and her friend Jennifer.¹

{¶ 7} During the course of the evening, appellant struck up a conversation with Jennifer, bought her a drink, and asked her out on a date.

{¶ 8} In the early morning hours of January 13, 2011, the bartender, Melissa Cox, announced last call indicating that the bar was closing. At that time, appellant and Mr. Keaton exited the bar and retired to appellant's Chevrolet Silverado truck. Meanwhile, Mr. Nibert and Mr. Self stayed inside the bar and assisted bartender Cox with her closing duties. Instead of leaving the premises, however, appellant asked Mr. Keaton if he would go back into the bar to summons Jennifer, so that appellant could give her his telephone number.

{¶ 9} From here, the parties' versions of the facts differ.

{¶ 10} According to the state's witnesses, after being summoned by Mr. Keaton, Jennifer went outside with him to the parking lot where appellant's truck was parked. A short time later, Mr. Self walked out to the parking lot to start his car and observed appellant talking to Jennifer as she stood beside his truck.² When Mr. Self was returning to the bar, Jennifer asked him if he would escort her back into the bar.

{¶ 11} As Mr. Self escorted Jennifer back to the bar, an argument ensued between Mr. Self and Mr. Keaton. Mr. Keaton then jumped out of appellant's truck, came after Mr. Self, and stabbed him in the abdomen with a screwdriver. Mr. Self was able to fight back and subdue Mr. Keaton eventually forcing Mr. Keaton back into the passenger seat of appellant's truck. Meanwhile, during the commotion of the fight, bartender Cox, Mr. Nibert, and possibly others came out to intervene.

{¶ 12} As the individuals returned to the bar to tend to Mr. Self's wound, Mr. Nibert stayed outside, apparently telling appellant and Mr. Keaton that they needed to leave the premises. Appellant then allegedly backed up his truck several feet, turned his truck toward Mr. Nibert,accelerated quickly, and intentionally struck Mr. Nibert. The force of the impact severed Mr. Nibert's leg as appellant's truck crashed through a metal guardrail, wooden privacy fence, and into the bar's outdoor beer garden.

{¶ 13} After striking Mr. Nibert, appellant backed his truck up and left the Valley Bar. Appellant was later apprehended by sheriff's deputies on State Route 41 in Pike County, Ohio.

{¶ 14} After spending nearly three months in the hospital and undergoing numerous surgical procedures, including the amputation of his right leg, Mr. Nibert died on March 28, 2011. The coroner's report lists "[c]omplications of blunt force injuries of lower leg" as the immediate cause of death.

{¶ 15} Appellant's version of the facts is significantly different than the prosecution's case.³ According to appellant, when Mr. Keaton exited the bar (after having re-entered to summons Jennifer) he was being attacked by several individuals. Appellant testified that the individuals attempted to prevent Mr. Keaton from entering the truck and engaged in a tug-of-war with the truck door handle. Eventually, Mr. Keaton was able to enter the truck. The individuals allegedly threw a beer bottle into the truck during the struggle.

{¶ 16} Appellant further testified that he felt he was in danger, that the parking lot was a sheet of ice, and that he was merely trying to escape when he exited the parking lot. He said that en route to his home, he briefly exited the truck and noticed a small dent on the front fender; he immediately thought he may have hit the fence at the Valley Bar. He testified that he then returned to Bainbridge, but before reaching the bar, Mr. Keaton asked that he take him home. Appellant then returned Mr. Keaton to his residence and was allegedly on his way back to the barwhen he was stopped by the sheriff. Appellant denies hitting Mr. Nibert, the metal guardrail, or the wooden privacy fence. He testified that when he was backing up to leave the Valley Bar he did drive over what he thought to be a pile of snow, pushed aside from plowing the parking area.

III

LAW & ANALYSIS

A. Voir Dire

{¶ 17} For his first assignment of error, appellant contends that the trial court erred in permitting improper questioning during voir dire. Specifically, appellant takes issue with a line of questioning in which the state asked potential jurors about their personal history with automobile accidents. Appellant argues that the questions were an attempt to "pre-try the case" and to "indoctrinate the jury," thus violating his right to trial by a fair and impartial jury.

{¶ 18} Crim.R. 24(B) governs voir dire. The rule states:

Any person called as a prospective juror for the trial of any cause shall be examined under oath or upon affirmation as to the prospective juror's qualifications. The court may permit the attorney for defendant, or the defendant if appearing pro se, and the attorney for the state to conduct the examination of the prospective jurors or may itself conduct the examination. * * *.

{¶ 19} "The control of voir dire is a matter of the court's discretion. The manner of the questioning and the form of the questions are matters subject to the judgment of the court in the exercise of its sound discretion." (Citations omitted.) State v. Lechner, 4th Dist. No. 724, 1990 WL 252981, * 1 (Dec. 21, 1990); See also State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128,767 N.E.2d 166, ¶ 40. A trial court does not abuse its discretion unless it acts arbitrarily, unreasonably, or unconscionably. Lechner at *1; LaMar at ¶ 40.

{¶ 20} Initially, we note that trial counsel for appellant failed to object to the questions posed by the prosecutor. Failure to object constitutes waiver of any challenges on appeal except for plain error. State v. Garvin, 197 Ohio App.3d 453, 2011-Ohio-6617, 967 N.E.2d 1277, ¶51 (4th Dist.). Thus, we review this assignment of error for plain error, rather than under an abuse of discretion standard.

{¶ 21} Pursuant to Crim.R. 52(B), we may notice plain errors or defects affecting substantial rights. "Inherent in the rule are three limits placed on reviewing courts for correcting plain error." State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 15. " 'First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be 'plain' within the meaning of Crim.R. 52(B), an error must be an 'obvious' defect in the trial proceedings. * * * Third, the error must have affected 'substantial rights.' We have interpreted this aspect of the rule to mean that the trial...