State v. Boles , 2014 Ohio 744 ( 2014 )

[Cite as State v. Boles, 2014-Ohio-744.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-A-0026
- vs - :
ERNEST MAURICE BOLES, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2011
CR 392.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).
Ariana E. Tarighati, Law Offices of Ariana A. Tarighati, L.P.A., 34 South Chestnut
Street, #100, Jefferson, OH 44047 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Ernest Maurice Boles, appeals his convictions,
following a jury trial in the Ashtabula County Court of Common Pleas, for Attempted
Aggravated Murder, Attempted Murder, Felonious Assault, Kidnapping, Disrupting
Public Services, Endangering Children, and Domestic Violence. The issues to be
determined by this court are whether the State proved that a defendant had intent to
commit Murder when he stabbed the victim over 40 times, whether evidence of “other
acts” is admissible when it is used to rehabilitate a witness, and whether evidence of a
victim’s contact with a defendant after the crimes were committed is relevant under
Evid.R. 401. For the following reasons, we affirm the judgment of the court below.
{¶2} On September 28, 2011, the Ashtabula County Grand Jury issued an
Indictment, charging Boles with the following: one count of Attempted Aggravated
Murder (Count One), a felony of the first degree, in violation of R.C. 2903.01(B) and
2923.02; two counts of Attempted Murder (Counts Two and Three), felonies of the first
degree, in violation of R.C. 2903.02(A) and (B) and 2923.02; two counts of Felonious
Assault (Counts Four and Five), felonies of the second degree, in violation of R.C.
2903.11(A)(1) and (2); four counts of Kidnapping (Counts Six through Nine), felonies of
the first and second degree, in violation of R.C. 2905.01(A)(2) and (3) and (B)(1) and
(2); Disrupting Public Services (Count Ten), a felony of the fourth degree, in violation of
R.C. 2909.04(A)(3); three counts of Endangering Children (Counts Eleven through
Thirteen), misdemeanors of the first degree, in violation of R.C. 2919.22(A); and one
count of Domestic Violence (Count Fourteen), a misdemeanor of the first degree, in
violation of R.C. 2919.25(A).
{¶3} On October 12, 2011, Boles filed a Plea of Not Guilty by Reason of
Insanity and a Motion to Determine Competence to Stand Trial.
{¶4} Following a hearing, the trial court issued an April 16, 2012 Judgment
Entry, finding Boles competent to stand trial. On September 27, 2012, following a
hearing on Boles’ plea of Not Guilty by Reason of Insanity, the court found that he was
sane at the time of the commission of the offenses.
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{¶5} On January 10, 2013, Boles filed a Motion in Limine, requesting that
certain evidence be excluded, including testimony or evidence related to his bad
reputation and any other bad acts.
{¶6} A jury trial was held in this matter between March 6-8, 2013. The
following pertinent testimony and evidence were presented.
{¶7} On September 19, 2011, Brittany Hall was driving with her boyfriend,
Boles, with whom she had two young sons. The two were arguing over various issues,
including Boles’ drug use. Brittany told him that she did not want to date him anymore.
Following this argument, they returned home. Although Brittany planned on leaving,
Boles asked her to carry one of the children inside.
{¶8} After entering the home, Brittany made a phone call, and Boles
approached her from behind. Boles began stabbing her, she tried to escape, and fell
down. Boles got on top of her and continued stabbing her, while Brittany’s five-year-old
daughter watched. Brittany screamed, “Mo [Boles’ nickname], stop you’re killing me.”
According to Brittany, Boles stabbed her 63 times. Following the attack, Brittany
attempted to call 911, but Boles took the phone away from her. He then took the
batteries out of the phone, locked the doors, and left the home, taking one of their sons.
{¶9} Robert Butcher was on the phone with Brittany at the time the stabbing
began. During the conversation, Brittany stated “Mo, you’re killing me,” Butcher heard
children screaming and crying in the background, and the phone went dead. Butcher
and his fiancée, Lisa Hall, drove to Brittany’s house. After struggling to unlock the door,
Brittany’s five-year-old daughter let Lisa inside. Brittany’s daughter was “in hysterics”
and said “Mo killed my mom. He stabbed her to death.”
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{¶10} Lisa entered the home, where Brittany was lying on the floor in a pool of
blood. After unsuccessfully trying to locate the home phone, Lisa used her cell phone to
call 911. Lisa later found one of the two phones under a bed. Detective Brian
Cumberledge of the Ashtabula County Sheriff’s Department searched the home but was
unable to locate the second telephone.
{¶11} Brittany was taken to the Ashtabula County Medical Center. According to
emergency room physician Dr. Imraan Haniff, the stab wounds punctured Brittany’s lung
and were life-threatening. Medical records indicate that she was stabbed a total of 42
times.
{¶12} Deputy Steve Murphy of the Ashtabula County Sheriff’s Department
conducted an arrest of Boles on the date of the incident, following a vehicle stop.
Murphy noticed dried blood on Boles’ hands and blood stains on his shirt. Additional
clothing recovered from the car was also blood-stained. Detective Cumberledge
testified that swabs were taken from Boles’ hands, which were evaluated by the Ohio
Bureau of Criminal Identification and Investigation. Forensic scientist Melissa
Zielaskiewicz testified that the swabs were found to contain Brittany’s DNA.
{¶13} Detective George Taylor Cleveland testified that, upon interviewing Boles,
he gave a statement that Brittany came at him with a knife. Detective Cleveland also
noticed that Boles had blood stains on his hands and lacerations on a few of his fingers.
{¶14} Ernest Boles, Sr., Boles’ father, testified that Boles told him that Brittany
had come at him with a knife and said, “I think I killed her.” Rachel Hall, the mother of
two of Boles’ other children, who gave Boles a ride on the date of the incident, also
testified that he told her Brittany had been “chasing him with a knife.”
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{¶15} Brittany testified that subsequent to the stabbing and Boles’ arrest, she
continued to communicate with him while he was in jail. She purchased phone cards for
him to call her. She also sent him letters, stating that she loved him, as well as
photographs of herself and the children.
{¶16} At the conclusion of the State’s case, Boles’ counsel requested dismissal
of various charges, pursuant to Crim.R. 29. The court granted this motion as to three
counts of Kidnapping.
{¶17} The defendant, Ernest Boles, Jr., testified that on September 19, he and
Brittany were arguing about whether he would go to a dinner with Brittany that night.
Brittany screamed at him, telling him that she hated him and hoped that he died. After
the two went to their home, Boles saw Brittany holding a knife, still saying that she
hoped he died. He believed she was “going to do something” with the knife, and felt
threatened. Boles then wrestled with her to take the knife away. He testified that
Brittany had stabbed him in the past, and this is why he took the knife from her.
{¶18} Boles testified that after wrestling with Brittany over the knife, he “kind of
black[ed] out,” then saw blood on her, and called 911 three times, but hung up each
time. He explained that he never intended to kill Brittany.
{¶19} At the conclusion of Boles’ case, defense counsel moved to admit the
letters sent from Brittany to Boles while he was in jail, but the trial court denied this
request.
{¶20} On March 8, 2013, the jury found Boles guilty of all of the remaining 11
counts. This verdict was memorialized in the trial court’s March 12, 2013 Judgment
Entry.
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{¶21} A sentencing hearing was held on April 16, 2013, and an Amended
Sentencing Judgment Entry was filed on May 15, 2013. The court merged the
Attempted Aggravated Murder, Attempted Murder, Felonious Assault, and Kidnapping
convictions and sentenced Boles to serve nine years in prison. He was ordered to
serve a term of one year of incarceration, to run consecutively with the nine year
sentence, for Disrupting Public Services. He was also sentenced to six months on each
conviction for Child Endangering and for Domestic Violence, to be served concurrently
with the foregoing sentence, for a total term of imprisonment of ten years in prison.
{¶22} Boles timely appeals and raises the following assignments of error:
{¶23} “[1.] A trial court abuses its discretion and commits error by allowing
prejudicial other acts evidence to be introduced at trial in violation of the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United States Constitution.
{¶24} “[2.] The trial court erred to the prejudice of the defendant-appellant when
it returned a verdict of guilty against the manifest weight of the evidence in violation of
Article IV of the Ohio Constitution.
{¶25} “[3.] A trial court abuses its discretion and commits error by excluding the
admission of properly authenticated documents in violation of the Sixth and Fourteenth
Amendments to the United States Constitution.”
{¶26} In his first assignment of error, Boles asserts that Brittany was improperly
permitted to testify regarding “other acts,” including that he made her recant past
domestic violence allegations and that he was controlling.
{¶27} The State argues that the testimony was presented for purposes other
than showing Boles’ criminal propensity and, therefore, was admissible.
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{¶28} “[T]he determination to admit or exclude evidence is within the sound
discretion of the trial court and will not be reversed by an appellate court absent a
showing of an abuse of discretion.” State v. McCaleb, 11th Dist. Lake No. 2002-L-157,
2004-Ohio-5940, ¶ 27; State v. Sweeney, 11th Dist. Lake No. 2006-L-252, 2007-Ohio-
5223, ¶ 22 (“[e]videntiary rulings are matters within the sound discretion of the trial
court”).
{¶29} “Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.” Evid.R. 404(B);
State v. Wogenstahl, 75 Ohio St.3d 344, 366, 662 N.E.2d 311 (1996) (“evidence of * * *
bad acts independent of, and unrelated to, the offenses for which a defendant is on trial
is generally inadmissible to show criminal propensity”). However, when evidence of bad
acts is admitted for a purpose independent of showing criminal disposition, it is
admissible. State v. Lindsay, 5th Dist. Richland No. 2010-CA-0134, 2011-Ohio-4747, ¶
71.
{¶30} Brittany testified that she had committed “misdemeanor falsification” in the
past. During cross-examination, defense counsel inquired further into this conviction.
After questioning whether the prosecutor reminded her prior to testifying of the
importance of being honest, defense counsel then immediately brought up the
falsification conviction and asked whether it resulted from her giving a false police
report. The State then inquired further regarding the conviction on redirect, asking
about the circumstances surrounding the false police report and questioning whether it
was the result of filing a domestic violence complaint against Boles, which he asked her
to drop. She responded affirmatively. Although defense counsel generally objected to
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the admission of any “other acts” evidence in the Motion in Limine, counsel did not
object during this portion of the questioning, nor was this specific issue discussed when
the court issued its ruling on the Motion in Limine at the beginning of the trial. Since
counsel did not object, this issue must be evaluated under a plain error analysis. State
v. Cortner, 11th Dist. Trumbull No. 2005-T-0020, 2006-Ohio-871, ¶ 44. An alleged error
constitutes plain error only if the error is obvious and, but for the error, the outcome of
the trial clearly would have been different. State v. Yarbrough, 95 Ohio St.3d 227,
2002-Ohio-2126, 767 N.E.2d 216, ¶ 108.
{¶31} In the present case, defense counsel inquired into Brittany’s conviction as
part of a line of questioning used to attack her credibility. The State merely asked for
further explanation in order to rehabilitate Brittany, and show the reasons for the
falsification conviction. Evidence of a prior bad act is admissible when used to
rehabilitate a witness. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848
N.E.2d 810, ¶ 78. The State did not attempt to introduce this evidence to show Boles’
propensity for criminal behavior but to prove that the falsification conviction should not
adversely affect Brittany’s credibility.
{¶32} In addition, although Boles refers also to “numerous occasions” where
“other acts” evidence was improperly admitted, he does not provide specific examples
in support of this argument. To the extent that he appears to argue that testimony
regarding his controlling behavior was improper, we find that the trial court did not
abuse its discretion by allowing such testimony.
{¶33} During cross-examination, defense counsel inquired of Brittany regarding
letters she sent to Boles while he was awaiting trial in the present case. These letters
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stated that she loved him and generally related to their continued relationship following
the stabbing. On redirect, the State, over defense counsel’s objection, asked questions
regarding the couple’s relationship, elicited testimony that Boles was controlling, and
then inquired regarding Brittany’s inability to “run her life” and her need to continue
communicating with Boles following his incarceration. This line of questioning was a
response to the issues raised during cross-examination. Defense counsel opened the
door to such testimony regarding this issue, and thus, error cannot be claimed. State v.
Sands, 11th Dist. Lake No. 2007-L-003, 2008-Ohio-6981, ¶ 166 (defendant “opened the
door” to other acts testimony by raising certain issues as part of his defense); State v.
Barnett, 3rd Dist. Logan No. 8-12-09, 2013-Ohio-2496, ¶ 40 (by being “the first to
broach the topic” leading to certain testimony, the defendant “opened the door and
invited any error relating to the admission of this evidence”).
{¶34} In addition, defense counsel was on notice that its presentation of the
letters and related questioning could have opened the door to additional evidence of
phone calls between Boles and Brittany and to questioning regarding the issue of
whether Boles was controlling, as this issue was discussed with the court prior to the
commencement of Brittany’s testimony. “[A] criminal defendant may not make an
affirmative, apparently strategic decision at trial and then complain on appeal that the
result of that decision constitutes reversible error.” State v. Dorr, 8th Dist. Cuyahoga
No. 84433, 2005-Ohio-775, ¶ 7.
{¶35} Further, even if the admission of the foregoing testimony was in error,
given that there was overwhelming evidence to support the fact that Boles committed
the crime, including that Boles did not contest that he stabbed Brittany, the physical
9
evidence placing him at the scene of the crime, and the lack of evidence that the
stabbing was anything other than intentional, any potential error would be harmless.
State v. Sage, 31 Ohio St.3d 173, 181, 510 N.E.2d 343 (1987); State v. Elersic, 11th
Dist. Geauga Nos. 2001-G-2335 and 2003-G-2512, 2003-Ohio-7218, ¶ 35 (admission of
improper “other acts” evidence was harmless when there was overwhelming evidence
against the defendant).
{¶36} The first assignment of error is without merit.
{¶37} In his second assignment of error, Boles argues that his convictions for
Attempted Aggravated Murder and Attempted Murder were against the manifest weight
of the evidence, since the evidence showed that he had no intention to cause Brittany’s
death and “the jury should have found that he acted with sufficient provocation.”
{¶38} A challenge to the manifest weight of the evidence involves factual issues.
The “weight of the evidence addresses the evidence’s effect of inducing belief.”
(Citation omitted.) State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 25; State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997)
(“[w]eight of the evidence concerns ‘the inclination of the greater amount of credible
evidence, offered in a trial’”) (emphasis sic) (citation omitted). “In other words, a
reviewing court asks whose evidence is more persuasive -- the state’s or the
defendant’s?” Wilson at ¶ 25.
{¶39} Generally, the weight to be given to the evidence and the credibility of the
witnesses are primarily for the trier of fact to determine. State v. Thomas, 70 Ohio St.2d
79, 434 N.E.2d 1356 (1982), syllabus. When reviewing a manifest weight challenge,
however, the appellate court sits as the “thirteenth juror.” (Citation omitted.) Thompkins
10
at 387. The reviewing court must consider all the evidence in the record, the
reasonable inferences, and the credibility of the witnesses, to determine whether, “in
resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered. The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.” (Citation
omitted.) Id.{¶40} First, Boles argues that the convictions for Attempted Aggravated Murder
and the first count of Attempted Murder required the State to prove that he had a
specific intention to cause Brittany’s death, which it failed to do.
{¶41} For Boles to be convicted of Attempted Aggravated Murder, the State was
required to prove, beyond a reasonable doubt, that he attempted to “purposely cause
the death of another * * * while committing or attempting to commit * * * kidnapping.”
R.C. 2903.01(B). Further, in order to be convicted of Attempted Murder under R.C.
2903.02(A), the State was required to prove that Boles attempted to “purposely cause
the death of another.” This court has noted that “[t]he elements of attempted murder
are: (1) purposely or knowingly, (2) engaging in conduct that, if successful, would result
in, (3) the death of another.” State v. Kouns, 11th Dist. Portage No. 2011-P-0105,
2012-Ohio-5331, ¶ 23. Attempt is defined as a person “purposely or knowingly, and
when purpose or knowledge is sufficient culpability for the commission of an offense, * *
* engag[ing] in conduct that, if successful, would constitute or result in the offense.”
R.C. 2923.02(A).
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{¶42} The weight of the evidence supports the determination that Boles
purposely engaged in conduct that would result in the death of Brittany. The testimony
of Brittany established that, following an argument, Boles began to stab her repeatedly.
Although Brittany yelled that he was “killing her,” he continued to stab her. By her
account, she was stabbed over 60 times, while hospital records establish that she was
stabbed over 40 times. These stab wounds caused her to have a punctured lung and
were life-threatening. The sheer number of times he stabbed her support a conclusion
that he purposely acted to cause her death. See State v. Fisher, 8th Dist. Cuyahoga
No. 65562, 1994 Ohio App. LEXIS 2601, 10 (June 16, 1994) (when the victim was
stabbed 70 times, “the trier of fact could have properly found an intent to kill”).
{¶43} Moreover, testimony from both Brittany and Lisa established that Boles
removed or tampered with at least one phone and locked the doors, making it difficult
for Brittany to seek help for her injuries, which further supports a conclusion that he
intended to cause her death. Based on the foregoing facts, the jury was able to
properly infer that Boles had the requisite intent to commit the Attempted Murder and
Attempted Aggravated Murder offenses. State v. Franklin, 11th Dist. Geauga No. 2010-
G-2979, 2012-Ohio-1267, ¶ 100 (“purpose can be inferred from the facts in evidence”).
{¶44} Although Boles tries to show that he lacked intent to kill Brittany by
arguing that she was the initial aggressor, this is based solely on his own testimony and
statements he made to other witnesses that Brittany approached him with a knife.
Boles suffered only scratches on a few fingers, providing little support for any contention
that Brittany tried to attack him. Further, the assertion that he was “wrestling” with her
for the knife is dubious, given that Brittany was stabbed such a great number of times.
12
While Brittany and Boles gave different versions of the events, we find no reason to
second guess the jury’s decision to believe Brittany’s version of the events. The
determination of a witness’ credibility lies with the finder of fact and an appellate court
may not substitute its own judgment. State v. Awan, 22 Ohio St.3d 120, 123, 489
N.E.2d 277 (1986); State v. Higginbottom, 11th Dist. Portage No. 2012-P-0028, 2012-
Ohio-5834, ¶ 55 (“the factfinder is free to believe all, part, or none of the testimony of
each witness appearing before it”) (citation omitted).
{¶45} Second, Boles argues that the Felonious Assault convictions, which
provided a basis for the second Attempted Murder conviction under R.C. 2903.02(B),
were not supported by the evidence, and the jury should have found that he committed
the lesser included offense of Aggravated Assault, based on the existence of serious
provocation.
{¶46} Felonious Assault occurs when a person knowingly causes “serious
physical harm to another” or when he causes or attempts to cause “physical harm to
another * * * by means of a deadly weapon or dangerous ordnance.” R.C.
2903.11(A)(1) and (2). Aggravated Assault includes the same elements, but adds the
mitigating factor that the person is “under the influence of sudden passion or in a
sudden fit of rage, either of which is brought on by serious provocation occasioned by
the victim that is reasonably sufficient to incite the person into using deadly force.” R.C.
2903.12(A).
{¶47} “Provocation, to be serious, must be reasonably sufficient to bring on
extreme stress and the provocation must be reasonably sufficient to incite or to arouse
the defendant into using deadly force. In determining whether the provocation was
13
reasonably sufficient to incite the defendant into using deadly force, the court must
consider the emotional and mental state of the defendant and the conditions and
circumstances that surrounded him at the time.” State v. Johnson, 11th Dist. Lake No.
2006-L-259, 2007-Ohio-5783, ¶ 74, citing State v. Deem, 40 Ohio St.3d 205, 533
N.E.2d 294 (1988), paragraph five of the syllabus. If this standard is met, “the inquiry
shifts to a subjective standard, to determine whether the defendant in the particular
case ‘actually was under the influence of sudden passion or in a sudden fit of rage.’”
(Citation omitted.) State v. Mack, 82 Ohio St.3d 198, 201, 694 N.E.2d 1328 (1998).
{¶48} In the present case, Boles argues that serious provocation occurred,
which caused him to stab Brittany. While he argues he was provoked by Brittany
having the knife and threatening him, she testified that this did not happen. There was
no other evidence to corroborate Boles’ testimony that Brittany threatened him with the
knife. This issue is again a question for the finder of fact, since it deals with witness
credibility. Provided that the jury accepted Brittany’s version of events, it cannot be
argued that Boles was provoked into the attack. She testified that she merely was
arguing with him over his drug use and told him she no longer wanted to be with him.
This cannot be considered to have incited Boles into using such force against Brittany.
{¶49} The second assignment of error is without merit.
{¶50} In his third assignment of error, Boles argues that the trial court erred by
not admitting as evidence the letters Brittany sent to him while he was in jail. He argues
that since the letters were properly authenticated and related to “Mr. Boles’ intent and
Ms. Hall’s perception of that intent,” they were admissible.
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{¶51} As described above, the decision to admit or exclude evidence is
evaluated under an abuse of discretion standard. Renfro v. Black, 52 Ohio St.3d 27,
32, 556 N.E.2d 150 (1990).
{¶52} Evid.R. 402 provides: “All relevant evidence is admissible, except as
otherwise provided by the Constitution of the United States, by the Constitution of the
State of Ohio, by statute * * *, by these rules, or by other rules prescribed by the
Supreme Court of Ohio. Evidence which is not relevant is not admissible.”
{¶53} Relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Evid.R. 401.
{¶54} In the present matter, the letters were properly excluded due to their lack
of relevance.1 These letters were sent by Brittany to Boles, while he was in jail following
the stabbing. They discuss her feelings toward him, state that she still loves him, and
address various other issues related to their relationship and children. They do not
discuss the crimes that were the subject of this case. While Boles argues that they go
to his intent while committing the crime, he points to no statements in the letters which
relate to this. The mere fact that Brittany has continued to communicate with Boles
does not provide any indication of his intent at the time of the crime, nor does it show
whether he intended to kill her. Her feelings and decision to remain in contact have no
bearing on the elements of the crimes for which he was convicted.
{¶55} Further, Brittany admitted during cross-examination that she had sent him
letters while he was in jail, telling him that she loved him, and admitted that they were
1. Although the letters were not provided as part of the record as exhibits not admitted, they were made
part of the record as attachments to a Response to Discovery filed by defense counsel.
15
“letters of affection.” This, in essence, summarized the content of the letters. To the
extent that this fact was of any relevance, it was already before the jury.
{¶56} Regardless of whether these letters were properly authenticated, as was
addressed at length by Boles, the lack of relevance renders them inadmissible and we
cannot find that the trial court abused its discretion by excluding them.
{¶57} The third assignment of error is without merit.
{¶58} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas, finding Boles guilty of Attempted Aggravated Murder, Attempted
Murder, Felonious Assault, Kidnapping, Disrupting Public Services, Endangering
Children, and Domestic Violence, is affirmed. Costs to be taxed against appellant.
CYNTHIA WESTCOTT RICE, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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