State v. Camilo

1

2023-Ohio-3067

STATE OF OHIO Plaintiff-Appellee v. ANDRES CAMILO Defendant-Appellant

No. 22CA15

Court of Appeals of Ohio, Fifth District, Fairfield

August 30, 2023

Appeal from the Fairfield County Municipal Court, Case No CRB2101548

JUDGMENT AFFIRMED

For Plaintiff-Appellee: JOSEPH SABO City of Lancaster Law Director's Office

For Defendant-Appellant: MARK J. MILLER JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon Patricia A. Delaney, J.

OPINION

Delaney, J.

{¶1} Appellant Andres Camilo appeals from the April 27, 2022 Final Judgment Entry of the Fairfield County Municipal Court. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The following facts are adduced from the record of appellant's jury trial. At that time, appellant had been married to Jane Doe for three years and they had a child together who was almost four years old. Appellant is a U.S citizen and Jane Doe is a permanent resident with a green card. The parties were in the midst of a divorce.

{¶3} On May 22, 2021, appellant and Jane Doe argued throughout the day but things were calm by evening. Appellant went to a party at the house of his friend Antonio. At some point, Jane Doe's friend Lana brought Jane to Antonio's house. Jane and appellant remained at Antonio's party for about an hour. In the meantime, Lana was "thrown out" of the party and asked to leave.

{¶4} Jane Doe and appellant therefore left the party together in appellant's vehicle, described as a small Acura wagon. Because the passenger-side front seat was cluttered, Jane sat in the back seat as appellant drove. Jane found a packet of Viagra pills in the back seat and became angry, asking appellant "whether he was even cheating on her if he needed Viagra to be able to cheat."

{¶5} Jane testified appellant became enraged at her comment and drove recklessly, swerving back and forth. Jane wasn't wearing a seat belt and was thrown around in the back seat of the vehicle. She asked appellant to stop driving recklessly. Jane testified appellant pulled into the parking lot of the Nutt House on Route 256 around 11:30 p.m. He attempted to pull Jane out of the back of the car by her legs. Jane testified they were two miles from home and she did not want to walk home at night. When she refused to get out of the car, appellant started hitting her in the face. Jane testified appellant struck her with his hand in the face multiple times. She denied hitting, kicking, or scratching appellant.

{¶6} Jane called 911 as the assault occurred. The first 911 call was played at trial and transcribed into the record. Jane said, "this is [Jane Doe], I'm in the car with my husband; my husband is beating me." Jane tried to push appellant away as she spoke on the phone. The call ended as appellant drove away.

{¶7} The 911 operator called Jane back. The second 911 call is also transcribed into the record. Jane said she just got home and appellant was trying to leave; she also repeated, "don't touch me." Jane testified she was screaming in the driveway because appellant was approaching her until he realized she was on the phone with 911. At that point, appellant got in his car and drove away.

{¶8} Jane testified the assault left her with a swollen face, black eye, and bloody nose. She testified she called 911 because she was in fear of appellant.

{¶9} Police reported to the residence and contacted Jane but appellant was no longer at the scene. Jane told police what happened, but also said she did not want to press charges and did not want appellant arrested. At trial, Jane testified she was afraid to cooperate with police because she was afraid of appellant's retaliation.

{¶10} Ptl. Leberth of the Pickerington Police Department testified as the responding officer on May 22, 2021, and appellee introduced evidence of Leberth's bodycam. Leberth described Jane Doe as tearful and upset. Her face was swollen and she had a visible red mark over her right eye. Based upon his training and experience, Leberth testified Jane Doe appeared to have been struck in the face. He photographed her face and hands, noting no injury to her hands. Leberth testified he looked for signs that Jane was the primary aggressor and saw none. Appellant was not present at the scene and was not located that night. Leberth was concerned for Jane's safety because appellant's whereabouts were unknown, but neighbors offered her a place to stay.

{¶11} Jane believed appellant listened to her conversation with police through cameras on the exterior of the house and garage and she remained fearful of cooperating with law enforcement throughout the case.

{¶12} She and appellant remained in contact with each other through text messages and Facebook messages. Ten minutes after police left the home on the night of the incident, the following text conversation occurred, introduced at trial as appellee's Exhibit E, emphasis in original and sic throughout:

Appellant

Jane Doe

They pressed them without me saying shit. Lana and Mona was here i didnt say anything. They asked ur car etc i didnt tell NOTHING

I can't go to jail. You kidding me. Now they have records on coming to my house.

they said in Ohio When there is a Law When you have marks they have to press charges

And i have a Black eye. My nose is bleeding. My arms are bruiced

You can go against it. But whatever. This is ridiculous.

Now I have to live in a hotel until you leave

Because I'm not sleeping there Fuck that

So this is my fault?

I have a fucked up face

[illegible] the shit out of me.

{¶13} Appellant and Jane continued to have contact through text messages throughout the pendency of the case. Appellee also introduced a text conversation from June 22, 2021 as appellee's Exhibit G, emphasis in original and sic throughout:

Appellant

Jane Doe

Dentist thursday

IDK what they can do for it now but they will check and we will make the plan

Babe, my lawyer said he will reach out to you and to NOT talk to the prosecutor again. NO matter how many letters they send or call.

They're using the body cam against me.

So whatever i said the first moment When they walked in there

And after that i calmed down and didnt give no info anymore When they filled out the papers

Thats why they using the bodycam

Yup. So he said whatever you may say that might of came out wrong can be used against me.

Ok

{¶14} Appellant was the sole defense witness. He testified he and Jane argued throughout the day on May 22, 2021, and that night he went to Antonio's alone. Jane showed up with Lana, who was soon asked to leave. Appellant and Jane left the party together in his car, with Jane in the back seat. She found Viagra in the car and became angry, striking him as he tried to drive. Appellant said he began to defend himself and struck Jane several times. He said the fight occurred as they drove and he never stopped the car in a parking lot or tried to pull Jane out of the car. Upon their arrival at home, he fled because Jane called 911 and he didn't want to get in trouble.

{¶15} Appellant testified that since the incident, he and Jane have remained in contact via text messaging. On direct examination, he testified that his comments to Jane about the incident meant that the police only had one side of the story and Jane needed to be accountable for her own role. He denied pressuring Jane not to cooperate with the prosecutor.

{¶16} On cross examination, the prosecutor confronted appellant with appellee's Exhibits E and G. Appellant at first denied that his intent was to make Jane recant the allegations, although he admitted he asked her not to speak to the prosecutor and knew appellee would have a difficult time proving the case against him if Jane was uncooperative. When asked whether his goal was to have Jane not talk to the prosecutor, appellant said, "Correct." T.II, 345.

Charges trial, acquittals and conviction

{¶17} Appellant was charged by criminal complaint with one count of intimidation of a victim pursuant to R.C. 2921.04(A), a misdemeanor of the first degree. Appellant entered a plea of not guilty.

{¶18} On March 22, 2022, appellee filed a motion to join case numbers CRB 2100572 (domestic violence and assault) and CRB 2101548 (intimidation) for purposes of trial. The trial court granted the motion on March 22, 2022. On March 26, 2022, appellant's memorandum in opposition to joinder was filed. On March 31, 2022, the trial court filed an "Entry on Reconsideration of Joinder" noting appellant's response but concluding joinder of the two cases pursuant to Crim.R. 8(A) and Crim.R. 13 was still appropriate.

{¶19} The matter proceeded to trial by jury. Appellant moved for judgment of acquittal pursuant to Crim.R. 29(A) at the conclusion of appellee's evidence and at the conclusion of all of the evidence; the motions were overruled. In case number CRB 2100572, appellant was found not guilty of assault and not guilty of domestic violence. In case number CRB 2101548, appellant was found guilty of intimidation of a victim. Sentencing was deferred until April 27, 2022, at which time appellant was sentenced to a jail term of 180 days with 160 days suspended and credit for one day served.

{¶20} Appellant now appeals from the trial court's final judgment entry of conviction and sentence dated April 27, 2022.

{¶21} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶22} "I. THE TRIAL COURT ERRED IN ADMITTING IMPROPER CHARACTER EVIDENCE OF THE ACCUSED."

{¶23} "II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO GIVE APPELLANT'S REQUESTED JURY INSTRUCTION ON INTIMIDATION."

{¶24} "III. THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE INTIMIDATION AND THE APPELLANT'S CONVICTION FOR INTIMIDATION UNDER R.C. 2921.04(A) IS AGAINST THE MANIFEST WEIGHT OF...