 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
OTHER ACTS; PRIOR MURDER ADMISSIBLE , WHEN. State v. Bloomfield, No 03CA2720. (4th Dist. Ct. App., Ross County, 2-17-04), 2004 Ohio 749. Marcus Bloomfield, while imprisoned for murdering his wife, decided to murder her sister, Deb Davis. He believed that if his wife's sister were murdered in the same manner as his wife had been murdered, while he was in prison, then the authorities would believe that he was innocent of his wife's murder and reverse his conviction. Two inmates of the Ross County Correctional Institute, Tom Bolin and Todd Minnis, testified that Bloomfield tried to hire them to kill Ms. Davis. Bloomfield described to them how he had strangled and raped his wife as she was sleeping on her stomach. He described how Ms. Davis' clothing and legs were to be arranged. He wanted Bolin to kill Ms. Davis and then mail letters, to the newspaper and to the police, saying "she should have paid me the rest of the money she owed me for what I did to her sister. Now she gets to suffer the same fate as Jennifer. I would also like to thank the stupid police officer who arrested me convicted the wrong man. Hahahaha." ( the opinion fails to explain whether the defendant was so careless as to revert to first person in that "arrested me" or whether there was some error in the transcript or the opinion). The defendant, when interviewed, claimed he wanted Bolin to plant drugs in Ms. Davis' car only. The grand jury indicted Bloomfield for conspiracy to commit murder. The court permitted the state to introduce evidence of Jennifer Bloomfield's murder, including graphic descriptions. The defendant was convicted and he appealed. The Ross County Court of Appeals affirmed. The evidence was admissible under Evid. R. 404 both because it was evidence of motive, the court said, and because it showed scheme, plan, or system. The trial court properly held that Evidence Rule 403 failed to require excluding the evidence. Because of the purpose for which the evidence was admitted, the prejudicial effect of the evidence failed to substantially outweigh its probative value. The court affirmed the conviction. OTHER ACTS; FACTS OF PRIOR CONVICTION ADMISSIBLE, WHEN. State v. Simms, No. C-030138, (First Dist. Ct. Apps., Hamilton Co. 2-13-04), 2004 Ohio 652 Having served five years for raping his stepsister's thirteen year old daughter, William Simms confronted his victim on the street, threatening physical harm. The grand jury indicted him for retaliation under R.C. 2921.05(B). At his trial, Simms argued that the United States Supreme Court case of Old Chief v. United States (1997), 519 U.S. 172 prohibited the state from introducing evidence of the prior conviction. The United States Supreme Court held that the trial court had abused its discretion in refusing to accept the defendant's offer to stipulate to the prior offenses, when those offenses were elements of the indicted offense. [Editor's note: The United States Supreme Court decision in Old Chief is not binding on state courts. The court's holding was as follows: "A district court abuses its discretion under Rule 403 if it spurns a defendant's offer to concede a prior judgment and admits the full judgment record over the defendant's objection, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction." The court took the case to resolve a conflict of the circuit courts. As the case was decided not on constitutional grounds, but pursuant to the United States Supreme Court's supervisory power over federal courts, the states are not bound to follow Old Chief. See State v. Wilson (1972) 30 Ohio St. 2d 312]. Nevertheless, the Hamilton County Court of Appeals distinguished Old Chief v. United States. It was not the mere fact of conviction that mattered, the court said. The intimate nature of the previous crime was relevant to prove the indicted offense of retaliation. The appellate court affirmed the conviction for retaliation. EVIDENCE, ADMISSIBILITY: DEFENDANT CLAIMING SELF-DEFENSE MAY INTRODUCE PRIOR ACTS OF VIOLENCE, BUT MUST SHOW VIOLENT CONDUCT. State v. Roth, No. C-030303, (First Dist. Ct. App., Hamilton Co, 1-30-04), 2004 Ohio 374. Roger and Carol Roth were getting a divorce. During an argument, Roger slapped Carol four times. According to Roger, he tried to stay away from Carol but she kept coming toward him. Noticing that he had a tape-recorder in his pocket, Carol grabbed his shirt, trying to get the tape-recorder. Roger said he pushed her away. He denied slapping her. When the police arrived, Carol had a large knot over her eye. Charged with domestic violence, Roger asserted the affirmative defense of self-defense and tried to introduce evidence that Carol had been violent toward him. Defense witness Patricia Buntain (relationship to either of the parties unexplained) would have testified that when she was talking to Roger on the telephone, she heard Carol say that she would do whatever she had to do to take Roger for everything he had. Roger described an incident in which Carol had tried to take a digital camera away from him. She "leaped across my lap and was elbowing me and everything else to try to get the camera." The trial court said that the evidence showed no violence or threat of violence toward the defendant. The court refused to admit the evidence. The trial court found the defendant guilty of domestic violence and he appealed. The Hamilton County Court of Appeals affirmed. Although agreeing that appellant would have been permitted to introduce evidence of violence or threats of violence, the appellate court agreed that the evidence appellant sought to introduce failed to show violent conduct or a threat of violent conduct. A threat to cause financial harm is not a threat of violence. SELF-REPRESENTATION: COURT MUST ALLOW. State v. Smith No. C-020610, (First Dist. Ct. apps., Hamilton Co., 1-23-04), 2004 Ohio 250 Garey Smith was charged with aggravated murder with a death penalty specification, three counts of attempted murder, six counts of felonious assault with the accompanying firearm specifications, and having a weapon while under a disability. Garey Smith fired several bullets into a car carrying four persons. He killed one person, Jimmie Gordon, and seriously wounded Jeffrey King, Steven Franklin, and Andre Ridley. The jury returned guilty verdicts on a lesser included offense of murder, two counts of attempted murder, six counts of felonious assault, the firearm specification, and having a weapon while being under disability. Before trial began, Smith demanded to represent himself. The trial court apparently believed that the Superintendence Rules of the Ohio Supreme Court required that counsel continue to represent Smith. The appellate court reversed. The trial court, the appellate court said, failed to conduct an adequate colloquy with the defendant before refusing to allow him to represent himself. Although the court could have appointed "stand-by" counsel, the court said, that is different than ordering defense counsel to continue representing the defendant. Failing to honor a defendant's request to represent himself is per se reversible. The court remanded the case for retrial. MULTIPLE COUNTS: SEPARATE VICTIMS, SEPARATE OFFENSES. State v. Murray No. C-030371, First Dist Ct. Apps., Hamilton Co. 2-13-04), 2004 Ohio 654. Sonny Murray fired gunshots at a van in which there were four persons. Two bullets hit the driver, and the van crashed into a pole. The driver and one passenger were seriously injured. A jury convicted Murray of four counts of felonious assault under R.C. 2903.11(A)(2), knowingly causing or attempting to cause physical harm to another by means of a deadly weapon and two counts of felonious assault under R.C. 2903.11(A)(1), knowingly causing serious physical harm to another. On appeal, Murray argued that "some" of the counts should have merged. The opinion is unclear, but Murray apparently argued that all the counts should merge. The court quickly rejected that argument. Murray must have also argued that two counts of felonious assault, for attempting to cause physical harm with a deadly weapon, should have merged into two counts of felonious assault, causing physical harm, for the two persons he actually shot. (Although the opinion fails to say whether the second persons injuries were gunshots or injuries sustained during the traffic accident). Applying State v. Rance (1999), 85 Ohio St,.3d 632, 1999 Ohio 291, the Hamilton County Court of Appeals rejected the defendant's argument. As the offenses each contain an element that the other does not, the court said, the offenses are separate under R.C. 2941.25. The dissent said the following: Except in the looking-glass world of Ohio law, the crime of attempting to cause harm would merge with the act of actually causing harm and would result in conviction for four offenses, not six. But under State v. Rance, in which we are obliged to follow, common sense falls victim to sophistry. Because we must follow the dictates of the Ohio Supreme Court, I reluctantly concur in that part of the decision. The court affirmed the conviction. SPEEDY TRIAL: DEFENDANT'S MOTION FOR DISCOVERY TOLLS TIME. State v. Risner AKA Tuttle, No. 13-03-40, (Third Ap. Dist., Seneca Co., 1-20-04), 2004 Ohio 186. Phyllis Risner was on bond for an unrelated offense when she was arrested on September 10, 2002, for trafficking in cocaine, corrupting another with drugs, and possessing criminal tools. While awaiting arraignment on the new charges, Risner was held in the Seneca County jail. Upon motion by the state, the court on September 23, 2002, increased her bond on the unrelated charge. She was unable to post the increased bond. On November 19, 2002, the state transferred Risner to a state institution to serve her sentence on the first charge. She completed that sentence on April 18, 2003. Having been transferred to the Seneca jail to await trial on the drug charges, Risner filed, on April 15, 2003, a pro se motion to dismiss for failing to provide a speedy trial on the drug charges. The court's having denied her motion, Risner entered no contest pleas. Although the state and the defendant disagreed about how many days should be counted as three days instead of one, the court found it unnecessary to decide that issue. Accepting appellant's calculations, she was brought to trial on the drug charges on day 277. As the defendant filed a demand for discovery, to which the state responded in 17 days, the court held the defendant was brought to trial within 270 days. The state responded within a reasonable time, the court said, and motions by defendants toll the running of the statutory time in which to bring a defendant to trial. The court affirmed the convictions.
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