[Cite as State v. Rudolph, 2019-Ohio-468.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
STATE OF OHIO, : : Case No. 17CA12 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY BRUCE J. RUDOLPH : : Defendant-Appellant. : Released: 02/05/19 _____________________________________________________________ APPEARANCES:
Alex Kochanowski, Cincinnati, Ohio, for Appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and W. Mack Anderson, Assistant Lawrence County Prosecuting Attorney, Ironton, Ohio, for Appellee. _____________________________________________________________
McFarland, J.
{¶1} Bruce J. Rudolph appeals two judgment entries of the Lawrence
County Court of Common Pleas dated July 20, 2017. Appellant was
convicted of one count of Complicity to Tampering with Evidence, R.C.
2923.03(A)(2)/R.C. 2921.12(A)(1)(b), a felony of the third degree. On
appeal, he asserts that (1) the trial court erred in overruling his Crim.R. 29
Motion for Acquittal; (2) the trial court erred by finding the State of Ohio
possessed subject matter jurisdiction in his case; and (3) the trial court erred
in overruling Appellant’s objection to inadmissible and highly prejudicial Lawrence App. No. 17CA12 2
evidence. Based upon our review of the record, we find no merit to
Appellant’s assignments of error. Accordingly, we affirm the judgment of
the trial court.
FACTS
{¶2} On November 29, 2016, Appellant was indicted on one count of
Tampering With Evidence, R.C. 2921.12(A)(1)(b). The indictment was
related to another criminal case, that of Marvin Sexton, who pleaded guilty
to attempted murder, burglary, and tampering with evidence, after he
severely beat and injured his ex-girlfriend, Melissa Howard, on November 3,
2016, who was in a coma and on life support. The assault took place in
Chesapeake, Ohio.
{¶3} Appellant was accused of tampering with evidence because he
admittedly burned Sexton’s jeans and socks after Sexton called him and
requested he “get rid of” the items Sexton was wearing at the time he beat
Ms. Howard. At the time of the assault, Sexton had been staying with
Appellant and another man, Frank Smith, in Huntington, West Virginia.
Appellant burned Sexton’s jeans and socks outside his residence in West
Virginia.
{¶4} Appellant eventually proceeded to trial. Prior to trial, his
attorney, Brian J. Cremeans, filed a Motion in Limine barring use of any and Lawrence App. No. 17CA12 3
all evidence against Defendant for lack of subject-matter jurisdiction.
Counsel argued that the State had disclosed no evidence through the
discovery process indicating that the tampering statute had been violated in
the State of Ohio. The State’s response submitted that the evidence at trial
would support a conviction of complicity to tampering with evidence and
that the State planned to request a complicity jury instruction. The trial
court denied the Motion in Limine.
{¶5} Defense counsel also filed a Motion in Limine requesting the
trial court prohibit the use of any pictures, video, testimony, or documentary
evidence describing the details of the attempted murder of Melissa Howard.
Counsel requested the State be limited to providing the facts as alleged in the
Bill of Particulars. Counsel argued Appellant would be unfairly prejudiced
due to the high probability that the jury would equate Appellant’s actions
with the crimes of Marvin Sexton. The trial court also denied this motion.
{¶6} Appellant proceeded to a jury trial on July 13 and 14, 2017. The
trial court issued a complicity instruction to the jury. Appellant was
convicted of Complicity to Tampering with Evidence, also a third-degree
felony. On July 18, 2017, Appellant was sentenced to a term of
incarceration of two (2) years in the appropriate state penal institution. Lawrence App. No. 17CA12 4
{¶7} Appellant’s notice of appeal was filed August 1, 2017 by
Attorney Warren Morford. The notice of appeal attached two entries, a
judgment entry which indicated Appellant’s conviction and established the
sentencing date, and a judgment entry final appealable entry [sic], which set
forth the entire sentence. Both entries were stamp-filed July 20, 2017. In
addition, the record transmitted to this court contained an amended judgment
entry final appealable entry [sic] stamp-filed August 29, 2017.
{¶8} Where necessary, additional facts will be set forth below.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION FOR ACQUITTAL WHEN THE EVIDENCE WAS INSUFFICIENT TO FINDING GUILT BEYOND A REASONABLE DOUBT.
II. THE TRIAL COURT ERRED IN FINDING THAT THE STATE OF OHIO POSSESSED SUBJECT MATTER JURISDICTION.
III. THE TRIAL OCURT ERRED IN OVERRULING APPELLANT’S OBJECTION TO THE PRESENTATION OF INADMISSIBLE AND HIGHLY PREJUDICIAL EVIDENCE.
{¶9} Before we proceed to analysis of Appellant’s arguments herein,
we note that that Amended entry filed August 29, 2017 was not
supplemented in some manner to the notice of appeal filed by Attorney
Morford. Our review of the record indicates the only difference between the Lawrence App. No. 17CA12 5
Amended entry and the Amended Judgment Entry Final Appealable Entry is
that in the twelfth paragraph on page three of the Amended entry, it is stated:
“Defendant is granted credit for time served, to-wit: 12 days, along with
future days while Defendant awaits transport to the appropriate state penal
institution.” In the appealed from Judgment Entry Final Appealable Entry,
that same paragraph sets for the number of days granted credit for time
served, along with setting forth the actual dates previously served. Both
entries were signed by the prosecuting attorney and Appellant’s trial
counsel, Attorney Cremeans.
{¶10} Appellate counsel was granted two extensions of time to file the
appellate brief. On March 9, 2018, Attorney Morford filed a motion to
withdraw as counsel, and this motion was granted. On March 23, 2018,
Appellant’s current counsel, Attorney Kochanowski, was appointed.
{¶11} Generally, after a notice of appeal has been filed, a lower court
loses jurisdiction to issue any orders that would impair the ability of the
appellate court to exercise jurisdiction over the issue that has been appealed.
Conley v. Warden, CM Newspapers, Inc. v. Dawson (Jan. 28, 1992), 10th
Dist. No. 91AP–1067, 1992 Ohio App. LEXIS 344. The impairment “must
be of a nature that actually interferes with the exercise of appellate Lawrence App. No. 17CA12 6
jurisdiction by the appellate court.” Olen Corp. v. Franklin Cty. Bd. of
Elections, 43 Ohio App.3d 189, 200, 541 N.E.2d 80 (1st Dist.1988).
{¶12} A similar situation to Appellant’s here occurred in State v.
Kase, 187 Ohio App.3d 590,932 N.E.2d 990, 2010-Ohio-2688 (7th Dist.).
There, after Kase filed a notice of appeal, the trial court sua sponte issued an
amended judgment entry of sentencing. The appellate court observed at 38:
“Once a case has been appealed, the trial court loses jurisdiction except to take action in aid of the appeal.” In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, at ¶ 9, citing State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). In other words, “the trial court retains all jurisdiction not inconsistent with the court of appeals' jurisdiction to reverse, modify, or affirm the judgment.” Yee v. Erie Cty. Sheriff's Dept., 51 Ohio St.3d 43, 44, 553 N.E.2d 1354 (1990), citing In re Kurtzhalz, 141 Ohio St. 432, 48 N.E.2d 657 (1943), paragraph two of the syllabus.”
The Kase court concluded that because the trial court's amended judgment
entry of sentencing did not change the sentence, but simply provided
additional reasoning underlying the court's sentencing decision, the amended
entry was not inconsistent with the appellate court's jurisdiction. Id. at ¶ 12.
Therefore, the Kase court considered the appeal.
{¶13} This reasoning is also applicable herein. The amended entry
issued after the notice of appeal was filed does not change Appellant’s
sentence. Nor does it impair this court’s ability to exercise its jurisdiction Lawrence App. No. 17CA12 7
over the issues Appellant has raised. Therefore, we proceed to consideration
of his assignments of error.
ASSIGNMENTS OF ERROR ONE AND TWO
{¶14} Appellant was convicted of Complicity to Tampering with
Evidence.1 In the first assignment of error, Appellant asserts the trial court
erred in overruling his Crim.R. 29 Motion for Acquittal when the State’s
evidence was insufficient to prove that Appellant knew anything about
Sexton’s criminal acts at the time he burned Sexton’s clothing. He also
argues there was insufficient evidence of subject matter jurisdiction in the
State of Ohio.
{¶15} In the second assignment of error, Appellant focuses on his
argument that the evidence presented at trial was insufficient to show that
Appellant tampered with evidence in the State of Ohio. Appellant points out
that the facts in this record indicate that (1) he was located in West Virginia
throughout the events alleged, and (2) the actions which gave rise to the
allegations occurred entirely within West Virginia. Therefore, Appellant
concludes, the State of Ohio lacked subject-matter jurisdiction and his
conviction must be vacated.
1 While Appellant was indicted on Tampering with Evidence and convicted of Complicity, it appears the pleadings have not been amended to conform to the evidence. Lawrence App. No. 17CA12 8
STANDARD OF REVIEW
{¶16} Under Crim.R. 29(A), “[t]he court on motion of a defendant *
* *, after the evidence on either side is closed, shall order the entry of
acquittal * * *, if the evidence is insufficient to sustain a conviction of such
offense or offenses.” State v. Colley, 2017-Ohio-4080, 92 N.E.3d 1 (4th
Dist.), at ¶ 39, quoting State v. Wright, 2016-Ohio-7654, 74 N.E.3d 695, ¶
21. “A motion for acquittal under Crim.R. 29(A) is governed by the same
standard as the one for determining whether a verdict is supported by
sufficient evidence.” Id. quoting State v. Tenace, 109 Ohio St.3d 255, 2006-
Ohio-2417, 847 N.E.2d 386, ¶ 37; State v. Husted, 2014-Ohio-4978, 23
N.E.3d 253, ¶ 10 (4th Dist.).
{¶17} In State v. Young, 4th Dist. Meigs No. 458, 1992 WL 18845
(July 28, 1992), Young, who was tried in Meigs County, asserted that there
was insufficient evidence of venue. Young argued that all elements of the
charged offense, kidnapping, were committed in West Virginia. This court
observed that Section 10, Article I of the Ohio Constitution fixes venue, or
the proper place to try a criminal matter, by stating that an accused shall be
allowed a speedy public trial by an impartial jury of the “county in which the
offense is alleged to have been committed * * *.” State v. Headley, 6 Ohio
St.3d 475, 477, 453 N.E.2d 716 (1983). Further, Crim.R. 18(A) provides that Lawrence App. No. 17CA12 9
the venue of a criminal case shall be as provided by law. We noted that the
provisions of R.C. 2901.12 were controlling.
{¶18} Although it is not a material element of the offense charged,
venue is a fact which must be proved in criminal prosecutions unless it is
waived by the defendant. Young, supra, at *3, citing State v. Giffin, 62 Ohio
App.3d 396, 398, 575 N.E.2d 887, (10th Dist.1991); see also State v.
McCartney, 55 Ohio App.3d 170, 547 N.E.2d 1189, (9th Dist.1988). In the
prosecution of a criminal case, it is not essential that the venue of the crime
be proved in express terms, provided it be established by all the facts and
circumstances, beyond a reasonable doubt, that the crime was committed in
the county and state as alleged in the indictment or criminal affidavit. State
v. Vrona, 47 Ohio App.3d 145, 150 (1988), citing State v. Gribble, 24 Ohio
St. 85, 150, 263 N.E.2d 904 (1970). R.C. 2901.12(G) vests venue in the
jurisdiction where the defendant's offense, or any element thereof, was
committed. Headley, supra, at paragraph one of the syllabus. In Young, we
observed that although venue is not an essential element of the crime, “it
appears intuitively logical that the sufficiency of the evidence standard of
review should apply here since, as with essential elements of the charged
crime, the state must prove venue beyond a reasonable doubt.” Id. Lawrence App. No. 17CA12 10
{¶19} Therefore, because the standard of review applicable to
Appellant’s arguments under the first and second assignments of error is the
“sufficiency-of-the-evidence” standard, we will address both assignments of
error jointly. “When a court reviews a record for sufficiency, ‘[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.’ ” Id. at 22,
quoting State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d
930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus; Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781(1979). In making its ruling a court does not weigh the evidence
but simply determines whether the evidence, if believed, is adequate to
support a conviction. In other words, the motion does not test the rational
persuasiveness of the State's case, but merely its legal adequacy. State v.
Reyes–Rosales, 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, at ¶ 15.
Over a century of well-established jurisprudence clearly mandates that a
motion for judgment of acquittal must be granted when the evidence is
insufficient for reasonable minds to find that venue is proper. State v.
Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 24.
LEGAL ANALYSIS AS TO WHETHER JURISDICTION TO TRY APPELLANT LIES IN LAWRENCE COUNTY, OHIO. Lawrence App. No. 17CA12 11
{¶20} Appellant was indicted on one count of Tampering with
Evidence. However, at trial, the State proceeded on a theory of complicity.
Appellant was convicted of R.C. 2923.03(A)(2)/2921.12(A)(1)(b). R.C.
2923.03(A)(2), Complicity, provides: “No person, acting with the kind of
culpability required for the commission of an offense, shall * * * [a]id or
abet another in committing the offense * * *.” R.C. 2921.12(A)(1),
Tampering with Evidence provides: “No person, knowing that an official
proceeding or investigation is in progress, or is about to be or likely to be
instituted, shall * * * [a]lter, destroy, conceal, or remove any record,
document, or thing, with purpose to impair its value or availability as
evidence in such proceeding or investigation * * *.” The trial court
instructed the jury as follows:
COMPLICITY
“The State of Ohio has presented a theory that the Defendant acted in complicity with the principle offender in the commission of tampering with evidence. A person who is complicit with another in the commission of a criminal offense is regarded as guilty as if he personally performed every act constituting the offense. This is true even if he did not personally perform every act constituting the original offense or was not physically present at the time the offense was committed.* * *.”
JURISDICTION Lawrence App. No. 17CA12 12
“A person is subject to criminal prosecution and punishment in this state if any of the following occur. The person commits an offense under the laws of this State, any element of which takes place in this state or while out of this state, the person conspires or attempts to commit or is guilty of complicity in the commission of an offense in this state. When the offense is complicity under division (A)(3) of section 2901.11 of the Revised Code. The offender may be tried in any jurisdiction in which the principle offender may be tried.”
{¶21} At trial, Marvin Sexton testified on behalf of the State. Sexton
acknowledged he had previously pleaded guilty to attempted murder,
burglary, and tampering with evidence in the Lawrence County Court of
Common Pleas. Sexton testified his convictions were for crimes which
occurred on November 3, 2016 in Chesapeake, Ohio. The court admitted
into evidence a certified copy of Appellant’s conviction as State’s Exhibit
15.
{¶22} Sexton testified that on the date he assaulted Melissa Howard,
he had been living intermittently in West Virginia with Frank Smith and
Appellant. Sexton had known Frank Smith for years, but had become
acquainted with Appellant only within the previous year. Sexton testified he
was heavily intoxicated on suboxone and beer. After assaulting Ms.
Howard, Sexton ran to the Ohio River and swam to the other end of
Chesapeake, where his truck was parked nearby. When Sexton reached his
truck, he used a cell phone to call Frank Smith and ask him to pick him up. Lawrence App. No. 17CA12 13
{¶23} When Smith arrived in Chesapeake, he drove Sexton back to
Appellant’s residence in West Virginia. Sexton quickly changed his clothes,
gathered his belongings, and left. Frank Smith then drove Sexton to
Steubenville, Ohio.
{¶24} On the way to Steubenville, Sexton made one phone call to
Appellant. He told Appellant to “get rid of” his pants because he knew they
were evidence. Sexton testified he was in West Virginia when he told
Appellant this.2
{¶25} Detective Aaron Bollinger testified he obtained a recorded
statement from Appellant on November 5, 2016. The State also introduced
Appellant’s recorded statement into evidence as Exhibit 15. The pertinent
portion of Appellant’s statement reads as follows:
Bollinger: What’s the next thing you know?
Rudolph: Frank got a call from him. * * * Rudolph: Yeah, same morning. Told him he had to pick him up or something. Then he said no, I’m just going to jump in the river. Then Frank, then he got a call back, after he hung up he got a call back and told Frank to pick him up, he was over 2 The State was unable to provide evidence of phone records establishing from where Sexton made his call to Appellant. Given that Sexton was traveling to Steubenville, Ohio, it is possible that the call was made in Ohio. The jury was instructed that the testimony of an accomplice was a matter for their determination. If the call was made in Ohio, this may be interpreted as some evidence of Sexton’s tampering activity in Ohio and thus, an element of Appellant’s crime occurring in Ohio. Lawrence App. No. 17CA12 14
laying in his truck at his ex-old lady’s house. And Frank went over there I guess to pick him up and brought him up here. Then they took off.
Bollinger: So they come up here, Marty and Frank Smith came up here to your all’s house?
Rudolph: Yeah.
Bollinger: Did he pack some clothes or what?
Rudolph: He took all of his clothes. * * *
Bollinger: What was Marty wearing when he got here?
Rudolph: He was wearing a pair of jeans and a sweatshirt. He put the sweatshirt back on when he left. * * *
Bollinger: And he had, took off his pants?
Rudolph: Took off his pants, they were soaking wet. Took off his pants and a pair of socks and I just threw them in the burn pile out here and burned them. * * *
Bollinger: Did Marty call you at some point while him and Frank, after him and Frank Left?
Rudolph: He didn’t call me.
Bollinger: Because Frank’s indicating to me that Marty called you and said he, did Marty have his clothes in the washer at some point?
Rudolph: He had them, no, he threw them in the washer and he told me to get them out of there and throw them in the burn pile. Bollinger: Who did?
Rudolph: Marty did. * * * Lawrence App. No. 17CA12 15
Bollinger: He called your cell phone?
RudolphL Yeah. * * *
Bollinger: And that was on Thursday they called you? It was after they left?
Rudolph: Yeah, the same day after they left. * * *
Bollinger: And he said burn his clothes huh?
Rudolph: Yeah. And there wasn’t nothing wrong with the clothes. There wasn’t nothing on them.
Bollinger: My understanding is that you seen one spot of blood.
Rudolph: One spot down here, I think it was the right or left knee. I forget which one it was. Because it had a hole in the knee. But there was like a small, a real small red spot on it. And I thought it was paint because they was always painting and shit too. But that was the only spot there’s any spots on the fucking jeans. * * *
***
Bollinger: Where did you burn them at?
Rudolph: Right here in this pit. * * *
Bollinger: Okay. If they’re damp, was it hard to burn them?
Rudolph: No, I threw them in the dryer first.
Bollinger: So you dried them first?
Bollinger: And then you burned them? Lawrence App. No. 17CA12 16
Bollinger: What else did you burn with it?
Rudolph: A pair of socks and the jeans. That’s the only thing he left. The socks, because he changed the socks. * * *
{¶26} The evidence adduced at trial clearly demonstrates that
Appellant’s actions of burning Sexton’s clothing took place in West
Virginia, and that at no time was Appellant present in Lawrence County,
Ohio. Given the absence of any evidence tying Appellant to Lawrence
County, we find jurisdiction necessarily hinges on R.C. 2901.11(A)(3),
given that Sexton, the principal offender, was tried in Lawrence County. A
certified copy of Sexton’s conviction states as follows at Paragraph 3:
“The Defendant previously entered a plea of guilty on March 15, 2017, to the Indictment charging * * * Tampering with Evidence, as charged in Count three of the Indictment, a felony of the third degree and Ohio Revised Code Section 2911.12 * * *.”
{¶27} Crim.R. 11 governs the process that a trial court must use
before accepting a felony plea of guilty or no contest.” State v. Meade, 4th
Dist. Scioto No. 17CA3816, 2018-Ohio-3541, at ¶ 7, quoting State v. Veney,
120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at ¶ 8. Before
accepting a guilty plea in a felony case, a trial court must address the
defendant personally and determine that “the defendant is making the plea
voluntarily, * * *.” Crim.R. 11(C)(2)(a). The court must both inform and Lawrence App. No. 17CA12 17
determine that the defendant understands that he is waiving various
constitutional rights including the right “to require the state to prove the
defendant's guilty beyond a reasonable doubt at a trial * * *.” Crim.R.
11(C)(2)(a). In addition to the various rights that would be waived, the court
must determine that the defendant “understands the effect of the plea of
guilty or no contest, * * *.” Crim.R. 11(C)(2)(b).
{¶28} While in Ohio, Sexton, by fleeing, removed the clothes from
the scene of the crime. Sexton knew his clothing would be considered
evidence when he asked Appellant to “get rid of” them. He entered a guilty
plea to tampering with evidence and we presume that the court properly
applied the law with regard to the acceptance of his guilty plea. National
City Real Estate Services LLC v. Frazier, 2018-Ohio-982, 96 N.E.3d 311
(4th Dist.) at ¶ 77, citing Savage v. Savage, 4th Dist. Pike No. 15CA856,
2015-Ohio-5290, at ¶ 23 (stating that “in the absence of evidence to the
contrary, we presume the regularity of the trial court proceedings and
presume that the trial court properly applied the law to the facts of the
case”). While we don’t know whether Sexton requested Appellant to “get
rid of” the clothing while he was in Ohio or West Virginia, his initial act of
removing the clothing from the crime scene occurred in Ohio. At least one
element of Sexton’s crime of tampering with evidence occurred in Ohio. Lawrence App. No. 17CA12 18
{¶29} Appellant aided and abetted Sexton by obliging his request,
albeit from a location in West Virginia. “When an individual acts to aid or
abet a principal in the commission of an offense, the individual and principal
are equally guilty and the individual is prosecuted and punished as if he were
a principal offender.” State v. Phillips, 9th Dist. Summit C.A. No. 27552,
2017-Ohio-1186, quoting State v. Shabazz, 146 Ohio St.3d 404, 2016–Ohio–
1055, ¶ 21, citing R.C. 2923.03(F).
{¶30} For the foregoing reasons, we find any rational trier of fact
could have found that venue was proven beyond a reasonable doubt. As
such, Appellant’s argument that venue is Lawrence County was not proper
has no merit. Accordingly, the portion of Appellant’s first assignment of
error relating to this argument and the second assignment of error are hereby
overruled.
LEGAL ANALYSIS AS TO APPELLANT’S KNOWLEDGE OF SEXTON’S CRIMINAL ACTS
{¶31} Under the first assignment of error in which Appellant asserts
error with regard to the trial court’s ruling on the Crim.R. 29 Motion for
Acquittal, he argues that the State failed to provide sufficient evidence that
Appellant knew anything about Sexton’s criminal acts or that the clothing
was evidence of a crime. Therefore, he was unaware he was destroying Lawrence App. No. 17CA12 19
potential evidence sought for use in an official investigation. For the reasons
which follow, we disagree.
{¶32} Appellant contends that the record demonstrates he barely knew
Sexton and that he was unaware Sexton had brutally beaten his ex-girlfriend,
Melissa Howard. Appellant makes much of the fact that Sexton’s trial
testimony indicates the matter was not discussed when Sexton briefly
stopped at Appellant’s residence to change clothes and flee the area.
Further, the evidence indicates the assault was not discussed when Sexton
later called Appellant and asked him to “get rid of” the clothing. At
sentencing, Appellant emphasized:
“Well, your Honor. Like he was saying, when I got the phone call I thought they were just arguing, you know. I didn’t know there was a death…you know, someone is going to die or anything. I thought they were just arguing and everything. * * * I didn’t really know what was going on. I didn’t know it was evidence until the police officer showed up at my house.”
{¶33} However, other evidence within the record, namely
Appellant’s recorded statement given to Detective Bollinger, Exhibit
10, belies Appellant’s denial and underscores his knowledge that a
serious crime had been committed. The relevant portions of his
recorded statement are set forth as follows:
Rudolph: * * * Yeah, he [Sexton] stayed up here with us about thirty days or something like that. If that. And then we got that phone call that night. Lawrence App. No. 17CA12 20
Bollinger: Phone call what night? Do you remember? * * *
Rudolph: I guess he butt dialed his phone or something to Frank’s phone and Frank put me on speaker so I could hear it. It sounded like she was saying ‘you’re killing me, you’re killing me’ and shit. * * *
Bollinger: And actually the morning of this, according to Frank, was Thursday morning. * * *
Rudolph: It might have been. It might have been. Cause I was sitting over there in my chair where I always sit. * * *
Bollinger: You know about what time it was?
Rudolph: About seven in the morning. Somewhere in there.
Bollinger: And what did you hear?
Rudolph: I heard screaming and shit.
Bollinger: Okay, what was she saying?
Rudolph: She was saying ‘please Marty, don’t.’ She was saying ‘Marty.’ Said ‘don’t.’ She said ‘you know I love you.’ And she said ‘don’t, you’re killing me.’
Bollinger: Did you hear what he said? Did you hear Marty’s voice?
Rudolph: No. I heard him call her a fucking whore but that’s it. Bollinger: Then what do you know next?
Rudolph: Then I heard glass break and shit and the phone went off. That was it.
{¶34} Later on in the recorded statement, this exchange occurred: Lawrence App. No. 17CA12 21
Bollinger: Then why would you even think about noticing blood, I mean, you had to know that something was fucking up. You know what I mean? Straight up.
Rudolph: I was. I was thinking, you know, because I heard that on the phone when the speaker was on. So I checked them * * *. I said no, I ain’t getting in trouble for this shit and that’s why I did go ahead and burn them. Because I wasn’t even going to burn them.
{¶35} Finally, the detective questioned Appellant as follows:
Bollinger: Anything else you know Bruce?
Rudolph: That’s it buddy. Just what I heard over the speaker of the phone and that shit. That’s the only thing I know. I didn’t even know the woman or nothing.
{¶36} The jury was instructed as follows:
“Before you can find the Defendant guilty you must find beyond a reasonable doubt that on or about the third day of November, 2016 and in Lawrence County, Ohio. The Defendant knowing that an official investigation was in progress or about to be instituted. Did aid or abet Marvin Sexton in altering, destroying, or concealing anything with purpose to impair it/s value or availability as evidence in this investigation.”
{¶37} In this case, we find after viewing the probative evidence and
inferences reasonably drawn therefrom in the light most favorable to the
prosecution, any rational trier of fact could have found all the essential
elements of the offense beyond a reasonable doubt. Based on his recorded
statement, a rational trier of fact could find Appellant was aware Sexton was Lawrence App. No. 17CA12 22
committing a criminal act by severely hurting or beating his ex-girlfriend
given that he overheard the accidental phone call, prior to Sexton’s arrival.
{¶38} The photographs and the investigating officers’ testimony
reveal that Sexton left Ms. Howard lying in a large pool of her own blood.
Additionally, the evidence demonstrates Sexton’s clothing was wet because
he had swum in the Ohio River to flee the crime scene. Appellant’s
statement indicates there was one red dot, which Appellant thought was
blood or possibly paint on a leg of the jeans. It is reasonable to infer
Appellant looked closely at the jeans to discover this dot. Not only did
Appellant burn the clothing, he dried it first to make sure it would burn
easily. Based on his statement that he wasn’t “going to get in trouble for this
shit,” a rational trier of fact could find Appellant was aware that the clothing
was evidence of a crime which was going to be investigated.
{¶39} The jury was instructed about direct and circumstantial
evidence, inferences which may be made, the credibility of witnesses, and
the exhibits. Specifically, the trial court instructed that, as to exhibits and
the testimony relating to them, “You will determine what weight, if any, the
exhibits should receive in light of all the evidence.” As to a sufficiency
analysis, we are mindful that “[i]n determining whether a conviction is based
on sufficient evidence, we do not address whether the evidence is to be Lawrence App. No. 17CA12 23
believed, but whether, if believed, the evidence against defendant would
support a conviction.” Id., citing State v. Smith, 10th Dist. Franklin No.
08AP-736, 2009-Ohio-2166, ¶ 26, State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus, and State v. Yarbrough,
95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. As with proof
of any element of an offense, complicity may be proved by circumstantial
evidence, which has the same probative value as direct evidence. Phillips at
19. See State v. Ward, 9th Dist. No. 24105, 2008–Ohio–6133, ¶ 18.
{¶40} For the foregoing reasons, we find the trial court did not
commit error by overruling the Crim.R. 29 Motion for Acquittal. The State
presented sufficient evidence which, if believed, would support Appellant’s
conviction. We find no merit to Appellant’s argument that he had a lack of
knowledge about Sexton’s having committed a criminal act and a lack of
knowledge that Sexton’s clothing could be evidence for use in an official
investigation. Assignment of error number one is also overruled on this
basis.
ASSIGNMENT OF ERROR THREE
{¶41} Appellant argues the trial court erred by overruling his Motion
in Limine and then his trial objections as to the unfairly prejudicial pictorial
and testimonial evidence concerning the crime scene and Melissa Howard’s Lawrence App. No. 17CA12 24
appearance and injuries. Appellant points out that he was not charged with
attempted murder or burglary and that he was unfairly prejudiced by
cumulative, gruesome photographic and testimonial evidence from the
State’s witnesses. He concludes that the jury was led astray by the highly
prejudicial photographs and evidence and improperly convicted Appellant of
complicity to tampering with evidence by equating his actions with those of
Sexton.
{¶42} We initially note that the admission or exclusion of evidence is
within the sound discretion of the trial court, and the trial court's decision to
admit or exclude such evidence cannot be reversed absent an abuse of
discretion. State v. Hogue, 23; State v. Craft, 4th Dist. Athens No. 97CA53,
1998 WL 255442, *7 (Internal citations omitted.). The term “abuse of
discretion” connotes more than an error of judgment; it implies that the
court's attitude is unreasonable, arbitrary, or unconscionable. Id.; citing State
v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992); State v. Montgomery, 61
Ohio St.3d 410, 575 N.E.2d 167 (1991) (reversed on other grounds). When
applying the abuse of discretion standard of review, we are not free to
merely substitute our judgment for that of the trial court. Craft at *7; citing Lawrence App. No. 17CA12 25
In re Jane Doe 1, 57 Ohio St.3d 135, 137–138, 566 N.E.2d 1181 (1991);
citing Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).
LEGAL ANALYSIS
{¶43} Melissa Howard was brutally beaten and the photographs of the
crime scene, in particular, State’s Exhibits 5-8, are difficult to view. These
photographs depict Ms. Howard lying in a large pool of blood appearing to
flow from her head and upper body. The record and Detective Bollinger’s
testimony indicate that the crime was committed in two instances. Ms.
Howard was first attacked outside her home with a lead pipe. She was later
attacked inside her home with a shovel. There was blood inside and outside
her home. Detective Bollinger testified “blood was strung everywhere,” and
that it was a “fairly bloody scene.”
{¶44} Appellee argues that the photographs were necessary to
establish the significant amount of the victim’s blood at the crime scene and
likely on Sexton’s clothing, the key item of evidence which Sexton directed
Appellant to destroy. While we agree with Appellee that it was reasonably
necessary for the State to establish that a significant amount of blood was at
the scene and likely on Sexton’s clothing, these four photographs and the
associated testimony is arguably unnecessary and cumulative. This is
especially true in light of the facts that Appellant’s crime was only Lawrence App. No. 17CA12 26
tampering with evidence and that he had no part in the attack on Melissa
Howard.
{¶45} Evid.R. 403(A) provides that “[a]lthough relevant, evidence is
not admissible if its probative value is substantially outweighed by the
danger of unfair prejudice, of confusion of the issues, or of misleading the
jury.” State v. Maher, 12th Dist. Fayette No. CA2016-10-015, 2017-Ohio-
7807, at ¶ 31. Under Evid.R. 403(A), only evidence that is unfairly
prejudicial is excludable. See State v. Crotts, 104 Ohio St.3d 432, 2004-
Ohio-6550, 820 N.E.2d 302. As the Ohio Supreme Court stated, “Evid.R.
403 speaks in terms of unfair prejudice. Logically, all evidence presented by
a prosecutor is prejudicial, but not all evidence unfairly prejudices a
defendant. It is only the latter that Evid.R. 403 prohibits.” State v. Skatzes,
104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 107, 819 N.E.2d 215; State v.
Barnett, 12th Dist. Butler No. CA2008-03-069, 2009-Ohio-2196, ¶ 44.
{¶46} Regardless, even if we were to find the trial court erred by
overruling Appellant’s motion in limine and objections regarding the
photographs and the testimony, due to other strong evidence of Appellant’s
guilt, the trial court's decision would constitute harmless error. “A
reviewing court properly finds the erroneous admission of evidence harmless
error where there is overwhelming evidence of guilt or some other indicia Lawrence App. No. 17CA12 27
the error did not contribute to the conviction.” State v. Gearhart, 12th Dist.
Warren No. 2017-12-168, 2018-Ohio-4180, at ¶17, quoting State v. Rowley,
12th Dist. Clinton No. CA2016-10-019, 2017-Ohio-5850, ¶ 24, citing State
v. Pottorf, 12th Dist. Warren No. CA2014-03-046, 2014-Ohio-5399, ¶ 20.
And, we find that is certainly the case here.
{¶47} We find no merit to Appellant’s argument that he was unfairly
prejudiced by admission of the evidence. Accordingly, the second
assignment of error is also overruled.
JUDGMENT AFFIRMED. Lawrence App. No. 17CA12 28
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J.: Concurs in Judgment Only. Harsha, J.: Dissents. For the Court,
BY: _____________________________ Matthew W. McFarland, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.