State v. Parks ( 2011 )


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  • [Cite as State v. Parks, 
    2011-Ohio-3037
    .]
    COURT OF APPEALS
    STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                               :      JUDGES:
    :      Hon. Sheila G. Farmer, P.J.
    Plaintiff-Appellee                  :      Hon. John W. Wise, J.
    :      Hon. Patricia A. Delaney, J.
    -vs-                                        :
    :
    ANGELO PARKS                                :      Case No. 2010CA00349
    :
    Defendant-Appellant                 :      OPINION
    CHARACTER OF PROCEEDING:                        Appeal from the Court of Common Pleas,
    Case No. 2010CR1272
    JUDGMENT:                                       Affirmed
    DATE OF JUDGMENT ENTRY:                         June 20, 2011
    APPEARANCES:
    For Plaintiff-Appellee                          For Defendant-Appellant
    JOHN D. FERRERO                                 MATTHEW PETIT
    Stark County Prosecutor                         116 Cleveland Avenue North
    Suite 808
    By: RONALD MARK CALDWELL                        Canton, OH 44702
    110 Central Plaza South
    Suite 510
    Canton, OH 44702-1413
    Stark County, Case No. 2010CA00349                                                    2
    Farmer, P.J.
    {¶1}     On September 17, 2010, the Stark County Grand Jury indicted appellant,
    Angelo Parks, on one count of felonious assault in violation of R.C. 2903.11(A)(1)
    and/or (2).    Said charge arose after appellant and Maurice Jackson, appellant's
    girlfriend's son, had an argument and appellant, while holding a knife, swung at Maurice
    and cut his eye.
    {¶2}     A jury trial commenced on November 29, 2010. The jury found appellant
    guilty as charged. By judgment entry filed December 3, 2010, the trial court sentenced
    appellant to seven years in prison.
    {¶3}     Appellant filed an appeal and this matter is now before this court for
    consideration. Assignments of error are as follows:
    I
    {¶4}     "THE TRIAL COURT'S FINDING OF GUILT IS AGAINST THE MANIFEST
    WEIGHT AND SUFFICIENCY OF THE EVIDENCE."
    II
    {¶5}     "IT WAS PLAIN ERROR FOR THE TRIAL COURT TO FAIL TO
    INSTRUCT THE JURY ON THE LESSER OFFENSES OF FELONIOUS ASSAULT."
    III
    {¶6}     "THE TRIAL COURT VIOLATED THE APPELLANT'S RIGHT TO
    CONFRONTATION BY ADMITTING TESTIMONIAL EVIDENCE OF OUT-OF-COURT
    DECLARATION THROUGH POLICE OFFICER TESTIMONY."
    Stark County, Case No. 2010CA00349                                                        3
    I
    {¶7}   Appellant claims his felonious assault conviction was against the
    sufficiency and manifest weight of the evidence. We disagree.
    {¶8}   On review for sufficiency, a reviewing court is to examine the evidence at
    trial to determine whether such evidence, if believed, would support a conviction. State
    v. Jenks (1991), 
    61 Ohio St.3d 259
    . "The 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." Jenks at
    paragraph two of the syllabus, following Jackson v. Virginia (1979), 
    443 U.S. 307
    . On
    review for manifest weight, a reviewing court is to examine the entire record, weigh the
    evidence and all reasonable inferences, consider the credibility of witnesses and
    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." State v. Martin (1983), 
    20 Ohio App.3d 172
    , 175. See also, State
    v. Thompkins, 
    78 Ohio St.3d 380
    , 
    1997-Ohio-52
    . The granting of a new trial "should be
    exercised only in the exceptional case in which the evidence weighs heavily against the
    conviction." Martin at 175.
    {¶9}   Appellant was convicted of felonious assault in violation of R.C.
    2903.11(A)(1) and/or (2) which states the following:
    {¶10} "(A) No person shall knowingly do either of the following:
    {¶11} "(1) Cause serious physical harm to another or to another's unborn;
    {¶12} "(2) Cause or attempt to cause physical harm to another or to another's
    unborn by means of a deadly weapon or dangerous ordnance."
    Stark County, Case No. 2010CA00349                                                   4
    {¶13} Appellant argues proof was not presented to establish that he "knowingly"
    caused physical harm to his girlfriend's son, Maurice Jackson.        "A person acts
    knowingly, regardless of his purpose, when he is aware that his conduct will probably
    cause a certain result or will probably be of a certain nature. A person has knowledge
    of circumstances when he is aware that such circumstances probably exist."        R.C.
    2901.22(B).
    {¶14} On August 21, 2010, appellant's live-in girlfriend, Jacquez Jackson,
    decided to move out of the parties' residence after an argument. Ms. Jackson called
    her nineteen year old son Maurice to come over and help her. Upon Maurice's arrival,
    an argument ensued between appellant and Maurice. Appellant exited the residence
    with a knife in his hand, swung at Maurice, and cut his eye.
    {¶15} Ms. Jackson testified on the evening/early morning hours in question,
    appellant had been drinking. T. at 109. She and appellant got into an argument and
    she decided to call her son Maurice to help her move out. 
    Id.
     While she was on the
    phone, appellant went to the kitchen and got a knife. T. at 109-110. Appellant placed
    the knife in his pocket. T. at 111. When Maurice arrived, appellant was up on the
    balcony of the residence and threw a full beer can at Maurice, striking his foot. T. at
    111-112. Appellant told Maurice he was tired of him and he was going to "kick his
    behind." T. at 111. Maurice laughed at appellant and assured him he was only there to
    get his mother. T. at 112. Appellant went out the door and ran downstairs. T. at 112-
    113. Ms. Jackson heard a "bunch of rustling" and her son screaming. T. at 113. By the
    time Ms. Jackson got outside, her son was bent over, holding his eye. T. at 114.
    Appellant was standing there, "saying that he was sorry, that he didn't mean to cut him
    Stark County, Case No. 2010CA00349                                                        5
    in his eye." 
    Id.
     Admittedly, there was tension between appellant and Maurice prior to
    this incident. T. at 108.
    {¶16} Appellant testified when Maurice arrived, he was "yelling and screaming
    and cursing" at appellant. T. at 159. Maurice threatened appellant and was kicking on
    the door. T. at 160. Appellant testified he went downstairs to try to talk to him, to say
    "hey, man, go on home, I don't want no problems." 
    Id.
     Appellant admitted he had the
    knife in his hand when he confronted Maurice because he was scared and angry. T. at
    160-161. Appellant testified to the following after he went outside:
    {¶17} "A. When I walked out my front door, he ran up in my presence, he was in
    my face, and I like - - I told him to get back. I said, Well, get back, you know, because I
    was really nervous and scared because I had already been through an altercation like
    this in the past before, and I pushed him back and I said, Man - - I said, Get, get back,
    get back. And he got up in my face again, and I happened to look out of my peripheral
    vision to my left and I - - something told me to look down, and I looked - - glanced out of
    my eye and I seen he had something in his hand so I, I panicked, you know; I was
    scared. I said, Get back, and I swung on him." T. at 161-162.
    {¶18} Appellant testified he didn't mean to stab Maurice in the eye, but "was just
    trying to back him off of, off of me. I didn't want him to get on me to hurt me." T. at 163.
    Appellant acknowledged that he told the police he punched Maurice. T. at 172.
    {¶19} The responding officer, Canton Police Officer Michael Rastetter, testified
    to appellant's admissions at the scene:
    Stark County, Case No. 2010CA00349                                                       6
    {¶20} "Yes, ma'am. He stated that he did come down the stairs outside and did
    have a knife in his right hand. Punched at Mr. Jackson with the knife in his hand and he
    believed that he just cut him below the eye." T. at 133.
    {¶21} During trial, defense counsel readily conceded that Maurice suffered
    serious physical harm. T. at 103.
    {¶22} We note the weight to be given to the evidence and the credibility of the
    witnesses are issues for the trier of fact. State v. Jamison (1990), 
    49 Ohio St.3d 182
    ,
    certiorari denied (1990), 
    498 U.S. 881
    . The trier of fact "has the best opportunity to view
    the demeanor, attitude, and credibility of each witness, something that does not
    translate well on the written page." Davis v. Flickinger, 
    77 Ohio St.3d 415
    , 418, 1997-
    Ohio-260.
    {¶23} We find the evidence substantiated that appellant acted "knowingly."
    Appellant was angry, had threatened Maurice about kicking his behind, had a weapon in
    his hand, went downstairs and out the door to confront Maurice, and took a swing at him
    with the hand that held the knife. Despite appellant's claim that he saw something in
    Maurice's hand, the evidence was that Maurice only had a cell phone in his hand.
    {¶24} Upon review, we conclude sufficient credible evidence was presented to
    establish that appellant "knowingly" caused serious physical harm, and we find no
    manifest miscarriage of justice.
    {¶25} Assignment of Error I is denied.
    Stark County, Case No. 2010CA00349                                                      7
    II
    {¶26} Appellant claims the trial court erred in not instructing the jury on the
    lesser-included offenses of aggravated assault, negligent assault, and assault. We
    disagree.
    {¶27} Crim.R. 30 governs instructions. Subsection (A) states the following in
    pertinent part:
    {¶28} "On appeal, a party may not assign as error the giving or the failure to give
    any instructions unless the party objects before the jury retires to consider its verdict,
    stating specifically the matter objected to and the grounds of the objection. Opportunity
    shall be given to make the objection out of the hearing of the jury."
    {¶29} Appellant did not object to the jury instructions. Further, defense counsel
    conceded during opening statement that the issue was appellant's mental state at the
    time of the incident, not the serious physical harm caused. Therefore, the only possible
    lesser-included offenses are aggravated assault (R.C. 2903.12) or assault (R.C.
    2903.13) which can only be reviewed under a plain error standard. In order to prevail
    under a plain error analysis, appellant bears the burden of demonstrating that the
    outcome of the trial clearly would have been different but for the error. State v. Long
    (1978), 
    53 Ohio St.2d 91
    ; Crim.R. 52(B). Notice of plain error "is to be taken with the
    utmost caution, under exceptional circumstances and only to prevent a manifest
    miscarriage of justice." Long, at paragraph three of the syllabus.
    {¶30} The evidence established that it was appellant who took himself into the
    fray, armed with a knife, and punched Maurice. Appellant readily admitted he was
    angry with the young man. Any words or actions on Maurice's part were not reasonably
    Stark County, Case No. 2010CA00349                                                          8
    sufficient to incite someone to use deadly force (aggravated assault). Appellant did not
    move his hand in a reckless manner for some other purpose other than to punch
    Maurice (assault).
    {¶31} Upon review, we find pursuant to Crim.R. 30(A), and given the sufficiency
    of the evidence as to felonious assault, appellant has failed to demonstrate plain error.
    {¶32} Assignment of Error II is denied.
    III
    {¶33} Appellant claims the testimony of Officer Rastetter violated appellant's
    right to confrontation. We disagree.
    {¶34} The Sixth Amendment's Confrontation Clause provides, "[i]n all criminal
    prosecutions, the accused shall enjoy the right***to be confronted with the witnesses
    against him." In Crawford v. Washington (2004), 
    541 U.S. 36
    , 59, the United States
    Supreme Court explained, "[t]estimonial statements of witnesses absent from trial have
    been admitted only where the declarant is unavailable, and only where the defendant
    has had a prior opportunity to cross-examine." The Crawford court at 68 reiterated that
    "[w]here testimonial evidence is at issue, however, the Sixth Amendment demands what
    the common law required: unavailability and a prior opportunity for cross-examination."
    {¶35} In Davis v. Washington (2006), 
    547 U.S. 813
    , 822, the United States
    Supreme Court established an "ongoing emergency" exception to the definition of
    testimonial evidence:
    {¶36} "Statements are nontestimonial when made in the course of police
    interrogation under circumstances objectively indicating that the primary purpose of the
    interrogation is to enable police assistance to meet an ongoing emergency. They are
    Stark County, Case No. 2010CA00349                                                       9
    testimonial when the circumstances objectively indicate that there is no such ongoing
    emergency, and that the primary purpose of the interrogation is to establish or prove
    past events potentially relevant to later criminal prosecution."
    {¶37} As set forth in Appellee's Brief at page 23, the Davis court outlined the
    following four-part test for a statement to qualify for the "ongoing emergency" exception:
    {¶38} "To qualify for the 'on-going emergency' exception, the Court ruled (1) that
    the statements described the events as they were happening, as opposed to explaining
    events that had happened in the past, (2) that any reasonable listener would conclude
    that the statements were made in the face of an ongoing emergency, (3) that the
    interrogation was objectively necessary to resolve the ongoing emergency, and (4) that
    the interrogation was informal because it was conducted over the phone and the
    answers were provided frantically while in an unsafe environment."
    {¶39} Further, in Michigan v. Bryant (February 28, 2011), ___ U.S. ___, 
    131 S.Ct. 1143
    , 1157, (
    2011 WL 676964
    ), a testimonial exception was more discretely
    defined as follows:
    {¶40} "The existence of an ongoing emergency is relevant to determining the
    primary purpose of the interrogation because an emergency focuses the participants on
    something other than 'prov[ing] past events potentially relevant to later criminal
    prosecution.'***Davis, 
    547 U.S., at 822
    , 
    126 S.Ct. 2266
    . Rather, it focuses them on
    'end[ing] a threatening situation.' 
    Id., at 832
    , 
    126 S.Ct. 2266
    . Implicit in Davis is the
    idea that because the prospect of fabrication in statements given for the primary
    purpose of resolving that emergency is presumably significantly diminished, the
    Stark County, Case No. 2010CA00349                                                     10
    Confrontation Clause does not require such statements to be subject to the crucible of
    cross-examination." (Footnote omitted.)
    {¶41} We note there was no objection to the complained of testimony, therefore
    we will review this assignment under the plain error doctrine set forth supra.
    {¶42} Maurice did not appear for trial.      Officer Rastetter testified after Ms.
    Jackson who testified as to Maurice's excited utterance immediately after the incident
    and appellant's admission to cutting Maurice's eye. T. at 113-114. The complained of
    testimony by Officer Rastetter was as follows:
    {¶43} "A. Okay. Myself and my partner, Officer Barnhouse, when we arrived at
    the scene we were met on - - by the sidewalk by Ms. Jacquez Jackson. She stated that
    her son Maurice had been stabbed in the eye by Angelo Parks. We asked her where
    her son was at, and she stated that he was up on the hill next to the apartment.
    {¶44} "At that time myself and my partner went up to - - towards the apartment -
    - it's kind of up on a hill - - and we were met by Maurice. Maurice was holding his eye
    and stated that he had been stabbed in the eye by Mr. Parks." T. at 129-130.
    {¶45} Thereafter, while still on direct, Officer Rastetter testified that appellant
    had admitted to punching Maurice and cutting his eye. T. at 133.
    {¶46} We conclude the statement made by Maurice as testified to by Officer
    Rastetter were within the four-part test of the ongoing emergency exception. Officer
    Rastetter testified he was unable to ascertain the full nature of Maurice's injury and was
    attempting to secure the area because of the presence of the knife. T. at 129-131.
    Clearly, the statement was given at the beginning of the police investigation, upon
    Officer Rastetter's arrival after being dispatched for a stabbing in the eye. T. at 129.
    Stark County, Case No. 2010CA00349                                                 11
    Officer Rastetter was directed to Maurice who stated he had been stabbed by appellant.
    The ambulance attendants had yet to treat Maurice. T. at 131.
    {¶47} Further, appellant's theory of the case was not to deny that he had
    stabbed Maurice, which he readily admitted. The theory of the case was to justify or
    emolliate his actions as was pointed out in opening statement.
    {¶48} We conclude there was no Crawford violation sub judice, and the "ongoing
    emergency" exception applies.
    {¶49} Assignment of Error III is denied.
    {¶50} The judgment of the Court of Common Pleas of Stark County, Ohio is
    hereby affirmed.
    By Farmer, P.J.
    Wise, J. and
    Delaney, J. concur.
    s/ Sheila G. Farmer__________________
    _s/ John W. Wise________________
    _s/ Patricia A. Delaney________________
    JUDGES
    SGF/sg 524
    Stark County, Case No. 2010CA00349                                            12
    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                           :
    :
    Plaintiff-Appellee               :
    :
    -vs-                                    :        JUDGMENT ENTRY
    :
    ANGELO PARKS                            :
    :
    Defendant-Appellant              :        CASE NO. 2010CA00349
    For the reasons stated in our accompanying Memorandum-Opinion, the
    judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to
    appellant.
    s/ Sheila G. Farmer__________________
    _s/ John W. Wise________________
    _s/ Patricia A. Delaney________________
    JUDGES
    

Document Info

Docket Number: 2010CA00349

Judges: Farmer

Filed Date: 6/20/2011

Precedential Status: Precedential

Modified Date: 10/30/2014