State v. Vance, 2008 Ohio 4763 (Ohio App. 9/17/2008)

Page 1

2008 Ohio 4763

State of Ohio, Plaintiff-Appellee, v. Richard A. Vance, Defendant-Appellant.

Case No. 2007-COA-035.

Court of Appeals of Ohio, Fifth District, Ashland County.

Date of Judgment Entry: September 17, 2008.

Criminal appeal from the Ashland County, Municipal Court, Case No. 07-CR-B-72.

Affirmed.

W. David Montague, Assistant Law Director, 1213 E. Main St., Ashland, OH 44805, For Plaintiff-Appellee.

Paul Mancino, Jr., 75 Public Square, Suite #1016, Cleveland, OH 44113-2098, For Defendant-Appellant.

Before Hon. William B. Hoffman, P.J., Hon. W. Scott Gwin, J., Hon. Sheila G. Farmer, J.

OPINION

GWIN, J.

{¶1} Defendant-appellant Richard A. Vance appeals from his conviction and sentence in the Ashland Municipal Court on one count of domestic violence, a misdemeanor of the first degree, in violation of R.C. 2919.25(A). Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On January 12, 2007 around 6:45 p.m. appellant returned home from work. Present at the home were his wife Rhonda and her three sons, Tristen, Taylor, and Tyler. Appellant became upset because the window was open and the light was left on upstairs in the room of 7-year old Taylor Vance. Appellant yelled at Taylor because he was wasting electricity. Taylor became scared and ran upstairs.

{¶3} Appellant also complained that the dishes were not done and the dishwasher had not been unloaded. According to Rhonda Vance appellant called her the dirtiest person he had ever known. Rhonda Vance testified she has worked as a certified Hospice Palliative Nursing Assistant for about seven (7) years.

{¶4} After a verbal argument between appellant and his wife, Rhonda told the boys to get in the truck because she was going to call her mother and go to stay at her house. Rhonda Vance testified when she went outside she did not have her cigarettes. Appellant followed his wife out to the garage. She walked behind appellant to go back up the steps into the house. While on the landing, appellant turned, faced the victim and prevented her from entering the house. Appellant stepped on Rhonda's feet hard enough so that she could not pull her feet away. Appellant was also pushing her. In response and in an attempt to keep from falling off the porch on to the concrete floor of the garage the victim slapped appellant. Rhonda Vance testified that appellant then pushed her off the landing and she flew across the garage on to the concrete floor. She further testified that she "hit pretty hard and it really hurt, really bad...the corner had went back into my shoulder...I didn't get up for a while...I couldn't get off the floor." Photographs depicting her injuries were admitted into evidence.

{¶5} Tyler Robertson, Rhonda Vance's son, testified that when appellant came home, he was complaining about the lights that were on upstairs and the window being open. He testified appellant was also complaining about the unwashed dishes. An argument ensued and both appellant and Rhonda went outside. At that point, Tyler went to the bathroom. When he came out of the bathroom, he saw his mother and appellant in the garage. He saw his mother on the ground and helped her up. An argument ensued between Tyler and appellant. Rhonda attempted to separate appellant and Tyler. During the struggle, appellant grabbed the cell phone from his wife and threw it against the wall. After Rhonda and her sons got into the truck, appellant got in the back seat and refused to leave. He stated that the truck belonged to him and the family could not take it. Rhonda and her sons got out of the appellant's truck and got in Tyler's car and left.

{¶6} Deputy Aaron Kline was the arresting and investigating officer for the State. Deputy Kline testified he listened to what Rhonda had to say and took her report at the station. He then left to speak to appellant at his home. Appellant told Deputy Kline there was an argument and Rhonda Vance hit him. While appellant was being hit, she lost her footing and fell.

{¶7} Deputy Kline testified the only persons he talked to were appellant and Rhonda Vance. He took no pictures of the house and did not go into the house. He did observe the garage area. Deputy Kline could not recall whether appellant asked him to take pictures of his injuries. On redirect examination by the prosecutor, Deputy Kline was allowed, over objection, to express his opinion concerning appellant's guilt. He also testified that appellant had requested an attorney after being given his Miranda warnings.

{¶8} Appellant presented two witnesses on his behalf. Attorney Deborah Mack testified that on January 12, 2007 she visited appellant at the jail. Ms. Mack testified that appellant told her that Rhonda Vance got into his face and she pushed him. At that point, he tried to defend himself while she was striking him on the side of his face. Ms. Mack took pictures of appellant's injuries. Ms. Mack testified that the photographs were taken between 12:30 and 3:30 a.m.

{¶9} Martin Yant, a licensed private investigator, testified that he took photographs of the home and the outside area where the events took place. He attempted to get into the home to take photographs but Rhonda Vance and some other unidentified people refused to allow him admittance to the home.

{¶10} At the conclusion of the trial, the judge instructed the jury concerning self-defense over the State's objection. During jury deliberations, the jury had a question concerning self-defense. The court gave further instructions. Thereafter, the jury returned a verdict of guilty.

{¶11} On July 2, 2007, the trial court sentenced appellant to serve ninety (90) days in the Ashland County jail, pay a fine $250.00 and court costs. The court suspended sixty (60) of the ninety (90) days, ordering defendant to serve thirty (30) days.

{¶12} Appellant timely appealed raising the following eight (8) Assignments of Error:

{¶13} "I. DEFENDANT WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL WHEN THE ARRESTING OFFICER WAS PERMITTED TO GIVE HIS OPINION OF DEFENDANT'S GUILT.

{¶14} "II. DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW WHEN THE COURT PERMITTED EVIDENCE OF DEFENDANT EXERCISING HIS RIGHTS AND [sic.] SUBSTANTIVE EVIDENCE OF GUILT.

{¶15} "III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED ON A COMPLAINT WHICH FAILED TO ALLEGE ALL OF THE ESSENTIAL ELEMENTS OF THE OFFENSE.

{¶16} "IV. DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO ACCESS TO EVIDENCE.

{¶17} "V. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT GAVE A CONFUSING AND CONFLICTING INSTRUCTION CONCERNING SELF-DEFENSE.

{¶18} "VI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION FOR JUDGMENT OF ACQUITTAL AS THE STATE FAILED TO PROVE DEFENDANT KNOWINGLY CAUSED OR ATTEMPTED TO CAUSE PHYSICAL HARM TO RHONDA VANCE.

{¶19} "VII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT FAILED TO ENTER A JUDGMENT OF ACQUITTAL AS DEFENDANT'S ACTIONS WERE IN SELF-DEFENSE.

{¶20} "VIII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT IMPOSED A JAIL SENTENCE BASED ON UNCHARGED CONDUCT AND JUDICIAL FINDINGS."

I.

{¶21} In his first assignment of error, appellant maintains that the trial court erred when it allowed, over objection, Deputy Kline to give his opinion of appellant's guilt.

{¶22} Appellant objects to the following exchange that occurred during the redirect examination of Deputy Kline:

{¶23} "Q. No. I mean, I mean what you gathered, you wish you would have been able to do some things differently. But would that change your opinion about Defendant's guilt and would it have changed your mind about arresting him?

{¶24} "A. No.

{¶25} "Q. And why not?

{¶26} "MS. BLAZEF: I'm going to object to this line or questioning

{¶27} "A. Because

{¶28} "THE COURT: Overruled.

{¶29} "By Mr. Montague:

{¶30} "Q. Go ahead.

{¶31} "A. — in my opinion he violated what domestic violence, the law of domestic violence." (T. at 126-27).

{¶32} Opinion testimony by police as to the guilt or innocence of a criminal defendant has been held inadmissible as a violation of due process. In Cooper v. Sowders (6th Cir. 1988), 837 F.2d 284, the Sixth Circuit Court of Appeals held inadmissible as a violation of due process, a police officer's testimony that all evidence pointed to the defendant as the perpetrator of the crime. Likewise, in Dubria v. Smith (9th Cir. 1999), 197 F.3d 390, the court held inadmissible police officer statements that the defendant was guilty and that no one would believe his story. See, also State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2 at ¶122, 880 N.E.2d 31.

{¶33} In order to constitute a violation of due process, however, the error must have been so prejudicial as to deprive a defendant of a fundamentally fair trial. Cooper v. Sowders, supra; see also Walker v. Engle (6th Cir. 1983), 703 F.2d 959, 962, cert. denied, 464 U.S. 962 (1983). In State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, the Ohio Supreme Court applied the "overwhelming evidence test" in finding that the erroneous admission of a police officer's testimony that the defendant "was being very deceptive" to them and his opinion that the defendant was being untruthful did not result in plain error. Id at ¶123.

{¶34} Crim.R. 52(A), which governs the criminal appeal of a non-forfeited error, provides that "[a]ny error * * * which does not affect substantial rights shall be disregarded."(Emphasis added.) Thus, Crim.R. 52(A) sets forth two requirements that must be satisfied before a reviewing court may correct an alleged error. First, the reviewing court must determine whether there was an "error"-i.e., a "[d]eviation from a legal rule." United States v. Olano (1993), 507 U.S. 725, 732-733, 113 S.Ct. 1770, 123 L.Ed.2d 508. Second, the reviewing court must engage in a specific analysis of the trial court record-a so-called "harmless error" inquiry-to determine whether the error "affect[ed] substantial...