State v. O'Dell

543 N.E.2d 1220, 45 Ohio St. 3d 140, 1989 Ohio LEXIS 206
CourtOhio Supreme Court
DecidedAugust 23, 1989
DocketNo. 88-1223
StatusPublished
Cited by173 cases

This text of 543 N.E.2d 1220 (State v. O'Dell) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. O'Dell, 543 N.E.2d 1220, 45 Ohio St. 3d 140, 1989 Ohio LEXIS 206 (Ohio 1989).

Opinion

Wright, J.

The state of Ohio is appealing the reversal of O’Dell’s sentence, while O’Dell appeals her conviction and raises four propositions of law. For the reasons that follow, we affirm defendant’s conviction but reverse the court of appeals in part and reinstate the trial court’s sentence.

I

In the first of four propositions of law, defendant urges that her conviction was obtained in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Defendant alleges that the state failed to disclose a plea agreement between it and Payne whereby the state would recommend a six-month sentence in exchange for Payne’s testimony against defendant.

On appeal, defendant filed the transcript of the February 11, 1987 proceeding on David R. Payne’s plea, which was considered by the appellate court in its opinion.1 The plea proceeding is not part of the record in O’Dell’s trial, and it was error for the court of appeals to consider it. “A reviewing court cannot add matter to the record before it, which was not part of the trial court’s proceedings, and then decide the appeal on the basis of the new matter. ” (Emphasis added.) State v. Ishmail (1978), 54 Ohio St. 2d 402, 8 O.O. 3d 405, 377 N.E. 2d 500, paragraph one of the syllabus. See, also, State, ex rel. The Repository, v. Unger (1986), 28 Ohio St. 3d 418, 419, 28 OBR 472, 473, 504 N.E. 2d 37, 38, fn. 2; Drakulich v. Indus. Comm. (1940), 137 Ohio St. 82,17 O.O. 398, 27 N.E. 2d 932; App. R. 9(E).

As the state correctly points out, it was error for the appellate court to consider the transcript in Payne’s plea hearing, although the court of appeals did not base its decision upon the transcript. Payne, during his examination in O’Dell’s trial, revealed that he had entered a guilty plea to the theft charge, had agreed to testify in this case, had not yet been sentenced and had received no promises from the prosecutor or police regarding sentencing.2 He did admit that he hoped to receive a six-month sentence. Accord[143]*143ingly, the jury was fully apprised of Payne’s position and could therefore assess his credibility. There was no prosecutorial concealment here that requires a reversal such as that which occurred in the cases of Giglio v. United States (1972), 405 U.S. 150, and Napue v. Illinois (1959), 360 U.S. 264, upon which the defendant relies. Defendant’s first proposition of law is therefore denied.

The second and third propositions [144]*144of law of the defendant challenge the trial court’s refusal to give proposed instructions on (1) an accomplice’s special motive to distort testimony, and (2) constructive possession.

The court charged the jury that “* * * admitted or claimed complicity of a witness may affect his credibility and may make his testimony subject to grave suspicion and require that it be weighed with great caution.” This instruction is dissimilar to that in State v. Ferguson (1986), 30 Ohio App. 3d 171, 30 OBR 312, 507 N.E. 2d 388, upon which the defendant relies. In Ferguson, the trial court failed to instruct that an accomplice’s testimony is suspect; rather, it instructed that an accomplice’s testimony is to be evaluated as any other testimony. That instruction was held to be prejudicial error. Id. at 173-174, 30 OBR at 315-316, 507 N.E. 2d at 390-391. In this case, the trial court’s instruction concerning the testimony of an accomplice correctly stated the law and gave the sum and substance of defendant’s proposed instruction. That is all that is required. State v. Nelson (1973), 36 Ohio St. 2d 79, 65 O.O. 2d 222, 303 N.E. 2d 865, paragraph one of syllabus. Defendant’s second proposition is without merit.

Defendant also challenges the trial court’s failure to give a proposed jury instruction dealing with constructive possession.3 Twice defendant requested the instruction and twice it was refused. However, defendant’s counsel later withdrew the charge and made no objection before the jury was instructed. “The failure to object to a jury instruction constitutes a waiver of any claim of error relative thereto, unless, but for the error, the outcome of the trial clearly would have been otherwise.” State v. Underwood (1983), 3 Ohio St. 3d 12, 3 OBR 360, 444 N.E. 2d 1332, syllabus; Crim. R. 30(A).

Furthermore, during its deliberations the jury asked for clarification of certain terms. The court, with the approval of counsel, gave a supplemental charge on possession.4 That charge, along with the general charge defining “knowingly” given earlier, provided the sum and substance of the requested jury instruction. Defendant’s third proposition of law is overruled.

Defendant’s fourth and final proposition of law raises the issue of [145]*145whether accomplice testimony needs corroboration to sustain a conviction. In State v. Flonnory (1972), 31 Ohio St. 2d 124, 60 O.O. 2d 95, 285 N.E. 2d 726, this court held in paragraph three of the syllabus that “[a] conviction may be based upon the uncorroborated testimony of an accomplice, except where otherwise specifically provided by statute.”

Subsequent to the Flonnory decision, R.C. 2923.03(D) was passed. It provided in part that “[n]o person shall be convicted of complicity under this section solely upon the testimony of an accomplice, unsupported by other evidence.” (134 Ohio Laws, Part II, 1961.)

The current version of R.C. 2923. 03(D), effective September 17, 1986 and applicable to the charges in this case, deletes the above language and provides instead a legislatively mandated jury instruction5 which was given virtually verbatim by the trial judge in this case.

The effect of the statutory change is to leave the assessment of an accomplice’s credibility to a jury after it has been properly instructed concerning the treatment of that testimony. There is no longer a statutory requirement of corroboration of an accomplice’s testimony in Ohio, and the law on this issue is as it was under Flon-nory, supra. Under the revised statutes, a trier of fact is not precluded from basing a criminal conviction on uncorroborated accomplice testimony.

In any event, that is not the situation herein. As was the situation in Flonnory, there is corroborating evidence in the record in this case. Defendant was convicted on one count of receiving stolen property, R.C. 2913.51. The elements of that crime require the state to prove that the defendant received, retained or disposed of the property of another, knowing or having reasonable cause to believe that the property was obtained through the commission of a theft. R.C. 2913.51 (A). Four police officers observed defendant accompany Payne to or from the stores in question and shopping with him inside. One officer saw defendant insert her hands into the shipping carton used to smuggle out stolen merchandise. Defendant and Payne then exited the store and Fulford would shortly thereafter enter the store to “purchase” the carton full of stolen items.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Hale
2024 Ohio 2056 (Ohio Court of Appeals, 2024)
State v. Tinker
2023 Ohio 3216 (Ohio Court of Appeals, 2023)
State v. Grantham
2020 Ohio 4418 (Ohio Court of Appeals, 2020)
State v. Struffolino
2020 Ohio 1051 (Ohio Court of Appeals, 2020)
State v. Burmeister
2020 Ohio 1048 (Ohio Court of Appeals, 2020)
State v. Black
2019 Ohio 5017 (Ohio Court of Appeals, 2019)
State v. Robinson
2019 Ohio 4902 (Ohio Court of Appeals, 2019)
State v. Newton
2019 Ohio 3566 (Ohio Court of Appeals, 2019)
State v. Jones
Court of Appeals of Maryland, 2019
State v. Risko
2019 Ohio 1879 (Ohio Court of Appeals, 2019)
State v. Salman
2018 Ohio 3516 (Ohio Court of Appeals, 2018)
State v. Gibbons
2018 Ohio 3307 (Ohio Court of Appeals, 2018)
State v. Holman
2018 Ohio 1373 (Ohio Court of Appeals, 2018)
State v. Thomas
2017 Ohio 9274 (Ohio Court of Appeals, 2017)
State v. Orr
2016 Ohio 8463 (Ohio Court of Appeals, 2016)
State v. Cole
2016 Ohio 2936 (Ohio Court of Appeals, 2016)
State v. Tucker
2016 Ohio 1354 (Ohio Court of Appeals, 2016)
State v. Henry
2015 Ohio 5095 (Ohio Court of Appeals, 2015)
Miamisburg v. Rinderle
2015 Ohio 351 (Ohio Court of Appeals, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
543 N.E.2d 1220, 45 Ohio St. 3d 140, 1989 Ohio LEXIS 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-odell-ohio-1989.