State v. Topping

2012 Ohio 5617

STATE OF OHIO, Plaintiff-Appellee,

v.FLINT E. TOPPING, Defendant-Appellant.

Case No. 11CA6

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

Dated: November 19, 2012

DECISION AND JUDGMENT ENTRY

APPEARANCES:

COUNSEL FOR APPELLANT: Timothy Young, Ohio State Public Defender, and Stephen A.

Goldmeier

COUNSEL FOR APPELLEE: J.B. Collier, Jr., Lawrence County Prosecuting Attorney, and

Robert C. Anderson, Lawrence County Assistant Prosecuting

Attorney

CRIMINAL CASE FROM COMMON PLEAS COURT

DATE JOURNALIZED: 11-19-12

ABELE, P.J.

{¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment of conviction and sentence. A jury found Flint Topping, defendant below and appellant herein, guilty of (1) felonious assault in violation of R.C. 2903.11(A)(1), and (2) kidnapping in violation of R.C. 2905.01(A)(3). The trial court sentenced appellant to serve concurrent prison terms of eight years for the felonious assault conviction and ten years for the kidnapping conviction.

{¶ 2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"THE COURT ERRED IN ALLOWING THE STATE TO ADMIT MR. TOPPING'S PREVIOUS CONVICTION FOR RAPE OR ANY DETAILS OF THAT CONVICTION UNDER EVIDENCE RULE 609, BECAUSE THE EVIDENCE'S PROBATIVE VALUE WAS OUTWEIGHED BY ITS PREJUDICIAL EFFECT, IN VIOLATION OF MR. TOPPING'S DUE PROCESS RIGHTS."

SECOND ASSIGNMENT OF ERROR:

"THE CONVICTIONS OF MR. TOPPING FOR KIDNAPPING AND FELONIOUS ASSAULT, COUNTS ONE AND TWO, ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND ARE BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION."

THIRD ASSIGNMENT OF ERROR:

"MR. TOPPING WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL DID NOT OBJECT TO THE PROSECUTION'S MISCONDUCT DURING CLOSING ARGUMENT, WHICH VIOLATED MR. TOPPING'S RIGHT TO DUE PROCESS AND TO EFFECTIVE ASSISTANCE OF COUNSEL."

{¶ 3} On the morning of December 11, 2011, Tom Snyder encountered appellant's stalled white truck along Big Branch Road. He asked appellant if he needed assistance and while doing so, he noticed a woman holding a child. The woman had swollen eyes and silently indicated to Snyder that she needed help. Snyder gathered that the woman was in distress and called 911.

{¶ 4} Lawrence County Sheriff's Deputy Darren Hamilin responded to the 911 dispatch.He photographed the female occupant, Patricia Cogan. Deputy Hamilin's photographs reveal that Cogan sustained several injuries: (1) a swollen left eye; (2) a damaged lip; (3) a red face; (4) scraping and abrasions on her right hand; (5) bruises on her legs; and (6) a snowball-size chunk of her hair removed from her head. Throughout the encounter with Deputy Hamilin, Cogan continually repeated to the deputy that "[appellant] was going to kill me thank God you saved my life [sic]." Deputy Hamilin subsequently arrested appellant. On February 7, 2011, a Lawrence County Grand Jury returned an indictment that charged appellant with felonious assault and kidnapping.

{¶ 5} At trial, the parties presented conflicting evidence. The state's primary witness, Cogan, stated that appellant removed her from a party, forced her into his truck, and drove around throughout the night and into the morning. She testified that appellant stopped the truck several times, dragged her from the car, and beat her. Cogan more particularly explained that on December 10, 2010, she had agreed to accompany appellant to Vanessa Dixon's birthday party. Cogan stated that she told appellant that after the party, she wanted to go to her sister's house, which was about a five-minute walk from Dixon's house. Cogan stated that she consumed alcoholic beverages at the party and that later in the evening, she fell and hit the floor. Cogan testified that she put her hands down to break her fall and stated that she did not hit her head when she fell. Cogan explained that she eventually fell asleep with her approximately two-year old son. She testified that she awoke to appellant slapping her in the face. She got out of bed and sat in Dixon's living room and heard appellant and Dixon arguing. She asked another party-goer, apparently Dixon's boyfriend, if he would walk her to her sister's house. Dixon called Cogan "a bitch and she said my boyfriend is not going anywhere with you." Cogan stated that Dixon "justwanted us out of there." She explained that she, her child, appellant, and Dixon continued the argument outside and Dixon put her child in the car seat that was inside appellant's truck. As Cogan climbed in the truck, appellant grabbed her by her hair and yanked her out of the truck. Dixon and appellant continued arguing, so Cogan removed her child from the car seat and intended to walk to her sister's house. Appellant yelled at her to get back in the truck and Dixon took the child and put him back in the car seat. Cogan told appellant that she was not going to get in the truck and that she was going to go to her sister's house. Dixon told Cogan that appellant would take her to her sister's house, but Cogan stated that she would not return to the truck. Cogan testified that appellant and Dixon eventually pushed her in the truck.

{¶ 6} Cogan explained that appellant drove the truck towards her sister's house, but turned around and did not take her there. She then realized that her wallet and pocket knife were missing. She told appellant "to turn around because his friends stole [her] wallet." Cogan stated that appellant stopped the truck and then hit her four or five times. Appellant started driving again, but a short time later, he stopped the vehicle, dragged Cogan out of the truck by her hair, and hit her in the face. When he finished hitting her, he pushed her back into the truck. They continued driving and appellant stopped the vehicle another three or four times and again hit Cogan each time. Throughout the encounter, appellant "kept telling [Cogan] that he was going to kill [her]." At one point, Cogan hit appellant in the head with a full can of beer. Appellant removed the beer can from her hand and hit her with it until she was unconscious. When she awoke, she discovered that they were parked at a Lowe's store parking lot. Appellant was still sleeping and she woke him to request that he start the car to warm it up inside. Cogan stated that she did not consider trying to sneak out of the truck and escape because she was afraid. Shetestified that she "was scared to death, and * * * [appellant] kept telling [her] throughout the night he was going to kill me, he's going to kill me, he's going to kill me, he's going to kill me, it was on and on."

{¶ 7} They subsequently left the Lowe's parking lot and drove to a secluded house, which Cogan learned belonged to appellant's mother. Cogan stated that appellant told her that "if [she] tried to make a run for it that he would run [her] down."

{¶ 8} Shortly after leaving his mother's house, appellant's truck stalled. Cogan stated that two people approached the car and she "was like mouthing to them to call 911." Once Deputy Hamilin arrived, she was still so "scared to death [that she] couldn't even talk." She "was just mouthing to him to please help [her]."

{¶ 9} Appellant's defense theory was that Cogan's injuries resulted when she became so drunk at Dixon's party that she fell face forward into the floor, into an end table, into a coffee table, and into an exercise machine. Dixon, appellant's life-long friend and former romantic partner, testified that Cogan "was completely out of her mind. She was falling everywhere [and] staggering." Dixon stated that another party-goer helped Cogan sit on a love seat, but Cogan stood up and fell "face first" into the hardwood floor. Dixon testified that Cogan "was falling and staggering" and that she fell into a coffee table and an end table. Dixon also stated that Cogan had "[q]uite a few" encounters with an exercise machine. Dixon explained that she and her boyfriend took Cogan to a bedroom and Dixon encouraged her to sleep. Dixon stated that after she placed Cogan on the bed, Cogan "stood up and fell backwards over" the exercise machine. Dixon further explained Cogan's fall into the exercise machine as follows: "I don't [know] if you've seen [a Bow Flex] or not but the arms are like this and they are metal she hit face first on that and just dropped.[sic]" Dixon stated that she again placed Cogan in bed and after she left the room, Dixon heard Dixon's grandmother yelling for help. Dixon testified that Cogan was laying on the floor in the hallway. She stated that she then told appellant that he needed to take Cogan out of her house.

{¶ 10} Dixon explained that Cogan picked up her son and fell "with him and busts his head off of the floor." Dixon stated that Dixon's seventeen-year old daughter, Rebecca, assisted Cogan with the child.

{¶ 11} Dixon continued to tell appellant that he needed to take Cogan home. Appellant stated that he would, but Cogan stated that she wanted to go to her sister's house. Dixon explained: "She's like take me to my sisters [sic], take me to my sisters [sic], she's like and your [sic] going to take me. I'm like I'm not taking you no where [sic]." Dixon told Cogan, "you came with [appellant] you are leaving with him [sic]. [Cogan]'s like well just fine, fine, fine. Just give me my kid, give me my kid." Dixon stated that Cogan "grab[bed]" the child and placed him in the car seat in appellant's truck.

{¶ 12} Dixon explained that appellant exited the house and Dixon told appellant: "let me just take her up there, he's like go ahead and drive and I'm like, no, no, no, wait it's my dad's truck, it's my dad's truck, it's my dad's truck. It ain't got insurance on it, it won't cover you I will just go ahead and take her. [sic]" Dixon stated that appellant entered the truck and Cogan "starts just way laying [sic] him. I mean beating him like she's in the...