State v. Spaulding

98 N.E.3d 1057, 2017 Ohio 7993
CourtCourt of Appeals of Ohio, Sixth District, Sandusky County
DecidedSeptember 29, 2017
DocketNo. S–16–028
StatusPublished
Cited by11 cases

This text of 98 N.E.3d 1057 (State v. Spaulding) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Sixth District, Sandusky County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Spaulding, 98 N.E.3d 1057, 2017 Ohio 7993 (Ohio Super. Ct. 2017).

Opinion

SINGER, J.

{¶ 1} Appellant, Mickey Spaulding, appeals his conviction and sentence from the May 27, 2016 judgment of the Sandusky County Court of Common Pleas, in which he was found guilty of felonious assault and tampering with evidence and was sentenced to a mandatory prison term. For the reasons that follow, we affirm.

Assignments of Error

{¶ 2} Appellant sets forth the following assignments of error:

1. The defendant was prevented from having a fair trial when the court failed to allow the defense to cross examine the victim on other injuries that caused serious physical harm and information on a tape of the victim's statements that were only given to the defense on the day of the trial, that went to provocation[.]
2. The court erred in allowing lesser included charges in the jury instructions.
3. The court erred in not sustaining defense counsel's motion to dismiss the tampering with evidence charge.
4. The court erred in awarding mandatory time when it was not indicated in the indictment.

Facts

{¶ 3} Late in the evening of October 29, 2015, and into the early morning hours of October 30, 2015, appellant was at a bar called Arrow Café in Clyde, Ohio. James Pollard, the victim, and some of Pollard's work friends were also at the bar celebrating a co-worker's birthday. At about 1:00 a.m. to 1:30 a.m., appellant was talking to one of the female members of Pollard's group, when Pollard's friend, Brandon Ruhlen, believed the woman was uncomfortable with appellant's attention. Ruhlen told appellant it was time for appellant to leave the bar. Words were exchanged. After appellant left the bar, Pollard and Ruhlen also left the bar so that Pollard could smoke a cigarette outside. As appellant headed toward his car in the parking lot, Ruhlen shouted "bye-bye bitch" at appellant. Appellant then grabbed a hammer from the trunk of his car, approached Pollard and struck Pollard on the head with the hammer, rendering Pollard unconscious ("the incident"). Appellant returned to his car with the hammer and started to drive off.

{¶ 4} Meanwhile, an on-duty police officer, who was parked in a nearby parking lot, witnessed the incident. The officer instructed appellant to stop as appellant drove past, but appellant continued to drive away. The officer rendered aid to Pollard, who lay bleeding on the ground. Medical help arrived and Pollard was taken to a hospital via ambulance. Shortly *1061thereafter, appellant was apprehended by police. Although appellant did not have the hammer when he was stopped, the hammer was recovered by police along the route that appellant had driven, about one block away from the bar.

{¶ 5} Appellant was indicted for attempted murder, in violation of R.C. 2903.02(A) and 2923.02, and tampering with evidence, in violation of R.C. 2921.12. The indictment did not mention appellant's previous attempted aggravated murder conviction.

{¶ 6} The matter proceeded to a jury trial. On the first day of trial, during Pollard's cross-examination by appellant, Pollard was asked if he had talked to police after the incident. Pollard indicated he did speak with police, and it was discovered that there was a recorded statement of Pollard's interview with police ("the recording"). The trial adjourned for the day so the state could locate the recording. A copy of the recording was located and provided to appellant, who was able to listen to Pollard's interview.

{¶ 7} The next day at trial, during Pollard's continued cross-examination, appellant asked Pollard if he had listened to the recording; Pollard had not. Pollard was given the opportunity to listen to the recording, outside of the presence of the jury, to refresh his recollection. Thereafter, Pollard's cross-examination resumed, but Pollard could still not remember the events on the recording. Appellant sought to play the recording for the jury to impeach Pollard. Instead of playing the recording for the jury, the court allowed appellant to cross-examine Pollard regarding certain statements on the recording. Appellant cross-examined Pollard about statements that Pollard was a boxer, and attempted to cross-examine Pollard about statements concerning a fight Pollard was in years ago which resulted in Pollard being seriously injured and going to the hospital. The state objected; the court sustained the objection.

{¶ 8} At the conclusion of the state's case in chief, appellant moved for acquittal under Crim.R. 29 on the tampering with evidence charge; the motion was denied. The case went to the jury. The jury found appellant not guilty of attempted murder but guilty of felonious assault, under R.C. 2903.11(A)(1), and tampering with the evidence. Appellant was sentenced to eight years of mandatory prison time for the felonious assault conviction and 36 months for the tampering with the evidence conviction, to run concurrently. Appellant timely appealed.

Legal Analysis

1. Extrinsic Evidence

{¶ 9} In the first assignment of error, appellant argues the trial court prevented him from having a fair trial by not allowing him to play the recording for the jury or cross-examine Pollard regarding injuries Pollard had previously sustained. Appellant sought to introduce the portion of the recording where Pollard made statements about previously being a boxer, the serious injuries Pollard sustained when he was attacked by a group of men approximately eleven years before the incident, and events which occurred in the bar before the incident. Appellant wanted to show that Pollard's injuries were caused by a previous injury and not by appellant's actions. Appellant also wanted to use the recording to prove Pollard was not telling the truth on the stand about the events which occurred at the bar before the incident, and that Pollard's acts provoked the incident.

{¶ 10} The state countered Pollard's prior injuries had no effect on the injuries he suffered as a result of the incident. In addition, the state maintained the recording *1062was rightfully excluded as appellant not only intended to impeach Pollard, but also sought to bring in evidence that appellant was provoked.

a) Serious Physical Harm

{¶ 11} Under R.C. 2901.01(A)(5), serious physical harm is defined as:

(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
* * *
(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity.

{¶ 12} In order for a defendant to be convicted of felonious assault under R.C. 2903.11(A)(1), the state must prove, among other elements, that the victim suffered "serious physical harm."

{¶ 13} In State v. Sykes , 6th Dist. Lucas No. L-16-1166, 2017-Ohio-1228, 2017 WL 1193835

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Cite This Page — Counsel Stack

Bluebook (online)
98 N.E.3d 1057, 2017 Ohio 7993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spaulding-ohctapp6sandusk-2017.