State v. Wilson , 2014 Ohio 41 ( 2014 )

[Cite as State v. Wilson, 2014-Ohio-41.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 13CA39
JULIAN WILSON, JR. :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 2012
CR 0761
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 8, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. WILLIAM BRINGMAN
PROSECUTING ATTORNEY 13 East College Street
JILL COCHRAN Fredericktown, OH 43019-3015
ASSISTANT PROSECUTING ATTORNEY
38 South Park Street
Mansfield, OH 44902
[Cite as State v. Wilson, 2014-Ohio-41.]
Gwin, P.J.
{¶1} Defendant-appellant Julian Joseph Wilson, Jr. appeals his conviction
entered by the Richland County Court of Common Pleas. Plaintiff-appellee is the State
of Ohio.
Facts and Procedural History
{¶2} Karen Brown (“Brown”) and appellant Julian Wilson, Jr. began dating in
June of 2012. The two dated until October of 2012, breaking up for a brief period
between July and August. Throughout their relationship, Brown and appellant
maintained separate residences. Brown testified that on October 15, 2012, she and
appellant were dating and getting along well. However, on that date, while appellant
was at Brown’s home in Mansfield, Ohio, he went through her cell phone and found a
message from another man. Brown testified the message was an old message from a
friend. Appellant testified it was a recent and explicit text message from another man.
Brown and appellant started arguing. Brown stated appellant punched her in the hand,
causing her to drop the cell phone, took her cell phone, and left the residence. Brown
subsequently went to her friend’s house and called appellant to inform him she needed
him to return her phone. Brown testified appellant told her if she wanted the phone
back, she would have to return to her residence.
{¶3} Brown stated when she and her friend arrived at her home appellant met
her at her friend’s vehicle and lifted his shirt to display a kitchen steak knife with a
wooden handle tucked between his waistband and stomach. Brown’s friend did not see
the knife because Brown’s body blocked her view of appellant and Brown told her friend
Richland County, Case No. 13CA39 3
to return home. Brown testified appellant whispered to Brown that he would kill her right
then and there if she yelled and told Brown to get into the house.
{¶4} According to Brown, when she and appellant walked inside her home,
appellant shut and locked the door. After Brown and appellant started arguing,
appellant removed the knife from his waistband and used the knife to stab between her
legs at the pillow she was sitting on. The pillow was not damaged. Brown stated
appellant would not allow her to leave and when she requested to use the bathroom as
a ploy to escape through the bathroom window, appellant told her he would follow her to
the bathroom. Brown testified appellant told her the only way she was leaving the home
was in a body bag. When Brown’s sister called her, Brown stated appellant told her
sister he killed Brown. Brown testified the incident lasted approximately one hour,
during which time appellant would not let her leave her home. At one point, appellant
dropped or set the knife down and Brown was able to pick up the knife and hide it
between her legs. However, Brown stated that appellant then punched her in the face
to make her return the knife.
{¶5} Brown testified when her fifteen year old son, T.L., entered the home, she
escaped out the back door. Brown did not leave the scene or run to the neighbor’s
house, but yelled for T.L. to leave the house and told him appellant had a knife. On
cross-examination, Brown testified appellant previously punched her on the day of her
father’s funeral and one other time.
{¶6} T.L. testified when he got to Brown’s house, the door was locked. T.L.
could hear people inside, but it took them a long time to answer the door and he felt
something was not right about the entire situation. After two or three knocks, appellant
Richland County, Case No. 13CA39 4
answered the door and let T.L. inside the home. T.L. saw Brown crying and Brown told
T.L. appellant hit her. T.L. testified appellant admitted to striking Brown. T.L. and
appellant began fighting and appellant punched T.L. and pushed him out of the house
through the screen door. T.L. stated he did not see the knife until he and appellant got
outside and when appellant pulled the knife out of his pocket, T.L. attempted to pin the
knife hand against the wall. Brown stated she feared appellant was attempting to stab
her son and thus she wrapped her arms around T.L., pulling him back. When appellant
attempted to stab T.L., appellant stabbed Brown in the back of the hand. Appellant left
the scene and Brown received medical attention after a neighbor called the police.
Brown went to the hospital and was treated with several stitches in her hand.
{¶7} Office Corey Kaufman (“Kaufman”) was sent to the scene on report of a
stabbing. He was unable to locate appellant after the incident, but went to the hospital
to take pictures of Brown’s wounds. Kaufman testified Brown was scared and nervous
after the incident.
{¶8} Dr. Crouse (“Crouse”), an emergency room doctor at MedCentral in
Mansfield, treated Brown at the hospital. Brown informed Crouse she had been
punched in the face and stabbed in the hand. Crouse examined Brown and confirmed
her injuries were consistent with Brown’s allegations. Brown had bruising on the left
side of her face and this contusion was most likely from being struck by someone’s right
hand. The injury to Brown’s hand was consistent with being stabbed with a knife.
Crouse opined the knife that made the wound would have been capable of inflicting
death.
Richland County, Case No. 13CA39 5
{¶9} Appellant testified on his own behalf. Appellant stated he and Brown
never had any physical altercations, but did previously have verbal altercations.
Appellant testified on October 15, 2012, he was looking through Brown’s cell phone
while at her house. When he encountered an explicit text message on the phone
between Brown and another man, appellant confronted Brown and she “went crazy,”
stormed out of the house and left him with her cell phone. After Brown called appellant
to request her phone back, appellant stated he told her she had to come back and
retrieve it from him at her home. Appellant testified Brown returned home with a friend
and he met her at the car. Brown and appellant went into the home and appellant
stated he did not lock the door when they entered the home. Appellant estimates he
and Brown fought for approximately ten to fifteen minutes after going into the home.
Appellant testified he never hit Brown and never had a knife.
{¶10} According to appellant, T.L. knocked on the door and came into the house
because the door was unlocked. Appellant denied hitting Brown, but Brown told T.L.
that appellant hit her. Appellant stated after T.L. and appellant began fighting, T.L.
backed him up against the screen door and pulled out a folding knife that was brown
and gold and T.L. accidentally stabbed Brown in the hand as she reached around T.L.
Appellant testified he did not restrain Brown from leaving the home, did not threaten her
with a knife, and did not have a knife with him at any point on the day of October 15,
2012. Appellant left the scene but did see the police and ambulance arrive from down
the street. Appellant initially testified he went home after the incident, but later testified
he did not go home for three days after the incident. On cross-examination, appellant
opined that Brown made up the assault because she knew appellant intended to reunite
Richland County, Case No. 13CA39 6
with his ex-girlfriend. Appellant denied any knowledge of how Brown received her facial
injury. Appellant testified regarding his criminal record, including several prior felonies
for theft offenses and admitted a prior conviction for aggravated assault, but denied
physically harming anyone.
{¶11} Brown testified during rebuttal and stated that T.L. did not stab her
accidentally. Further, that she did not know at the time of the incident that appellant
was getting back together with an ex-girlfriend or that he had gotten back with her at the
time of trial.
{¶12} On November 13, 2012, appellant was indicted with one count of
kidnapping under R.C. 2905.01(A)(3), a felony of the first degree, one count of felonious
assault in violation of R.C. 2903.11(A)(1) for causing or attempting to cause serious
physical harm, a felony of the second degree, one of count of felonious assault under
R.C. 2903.11(A)(2) for causing or attempting to cause physical harm with a deadly
weapon, a felony of the second degree, and one count of assault under R.C.
2903.13(A).
{¶13} Appellant filed a Request for Intention to Use Evidence and Demand for
Discovery on November 28, 2012. Also on November 28, 2012, appellant filed a
request for bill of particulars pursuant to Criminal Rule 7(E). Appellee filed its Criminal
Rule 16 discovery compliance on November 28, 2012, listing Corey Kaufman, Karen
Brown, T.L., and Dorothy Latimore as witnesses for trial. Appellee supplemented
discovery on March 4, 2013, and March 21, 2013. The trial was continued from the
original trial date of February 25, 2013 to March 25, 2013. Counsel for appellant filed a
motion to continue the trial due to a pending custody trial set for the same day. The trial
Richland County, Case No. 13CA39 7
court denied the motion, stating that criminal cases assigned for trial have priority over
custody cases.
{¶14} On March 25, 2013, the day of trial, appellant filed a motion to quash or
dismiss indictment for failure of appellee to provide a bill of particulars as requested on
November 28, 2012. Appellee filed a bill of particulars on March 25, 2013, providing the
conduct that constituted the crime was as follows: “On October 15, 2012 at 75 Sturges
Avenue, Mansfield, Ohio, the defendant wielded a knife at Karen Brown, refusing to let
her leave for approximately an hour. He poked at her with the knife and stabbed her in
the hand as he was attempting and threatening to stab [T.L.]. Karen Brown required
stitches. The knife he used is capable of inflicting death.” The same facts were
included in each of the four counts in the bill of particulars.
{¶15} Prior to the beginning of the trial, the trial court heard arguments on
appellant’s motion to quash or dismiss indictment. Appellant argued he was prejudiced
because he only received the bill of particulars the day of trial. Appellee argued there
was no prejudice to appellant because the State gave appellant open file discovery,
including police reports, witness statements, and medical records. The trial court
denied the motion but informed appellant that “if as this trial develops you’re in a
position where you feel that you want to reargue this question because of the
development of the evidence, you’re not precluded from doing that.” No further motions
or objections were made on this matter during the trial.
{¶16} At the close of appellee’s case and again at the end of trial, appellant
made a Criminal Rule 29 motion for acquittal. The trial court denied appellant’s
motions. The trial court instructed the jury on the various counts. The trial court stated
Richland County, Case No. 13CA39 8
that, “in Count II of the indictment Julian Wilson, Jr., is charged with felonious assault on
Karen Brown * * * Before you can find Mr. Wilson guilty of felonious assault, which I will
call serious physical harm felonious assault, you must find beyond a reasonable doubt
that on or about the 15th day of October, 2012, in Richland County, Ohio, he knowingly
caused serious physical harm to Karen Brown.” Regarding Count III, the trial court
stated, “In Count III of the indictment Mr. Wilson is charged with felonious assault on
Karen Brown by means of a deadly weapon. * * * Before you can find Mr. Wilson guilty
of felonious assault, you must find beyond a reasonable doubt that on or about October
15, 2012, and in Richland County, Ohio, he knowingly caused or attempted to cause
physical harm to Karen Brown by means of a deadly weapon.” The trial court instructed
on Count IV that “before you can find Mr. Wilson guilty of assault, you must find beyond
a reasonable doubt that on or about the 15th day of October, and in Richland County,
Ohio, Mr. Wilson knowingly caused or attempted to cause physical harm to [T.L.].”
{¶17} The jury returned a verdict of not guilty of Count I kidnapping, guilty of
Count II felonious assault, not guilty of Count III felonious assault, and guilty of Count IV
misdemeanor assault. Appellant filed a pro se motion for judgment of acquittal on April
8, 2013. After the state responded on April 11, 2013, the trial court denied the motion.
Appellant was sentenced to four years on the Count II felonious assault and six months
on the Count IV misdemeanor assault to be served concurrent with each other but
consecutive to a one year sentence on a probation violation in Case No. 10-CR-622.
{¶18} Appellant now appeals and assigns as error the following:
{¶19} “I. THE TRIAL COURT ERRED IN NOT DISMISSING THE INDICTMENT
FOR APPELLEE’S FAILURE TO PROVIDE A TIMELY BILL OF PARTICULARS.
Richland County, Case No. 13CA39 9
{¶20} “II. THE TRIAL COURT ERRED IN NOT DISMISSING COUNT II AND IV
FOR APPELLEE’S FAILURE TO PROVE THE STATEMENTS SET FORTH IN ITS
BILL OF PARTICULARS FOR SAID COUNTS.”
I.
{¶21} Appellant first argues the trial court erred in not dismissing the indictment
for appellee’s failure to provide a timely bill of particulars. We disagree.
{¶22} Criminal Rule 7(E) provides that, “[w]hen the defendant makes a written
request within twenty-one days after arraignment but not later than seven days before
trial * * * the prosecuting attorney shall furnish the defendant with a bill of particulars
setting up specifically the nature of the offense charged and of the conduct of the
defendant alleged to constitute the offense.” Further, R.C. 2941.07 states that upon
the request of the accused, “the prosecuting attorney shall furnish a bill of particulars
setting up specifically the nature of the offense charged and the conduct of the
defendant which is alleged to constitute the offense.” The purpose of the bill of
particulars is to “elucidate or particularize the conduct of the accused alleged to
constitute the charged offense.” State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E.2d
781 (1985).
{¶23} However, the failure of the prosecuting attorney to provide a criminal
defendant with a bill of particulars after a timely request does not automatically result in
a reversal of a conviction. State v. Cossack, 7th Dist. No. 03MA110, 2005-Ohio-2784.
The failure to provide a bill of particulars upon request is harmless error unless a
defendant demonstrates that his “lack of knowledge concerning the specific facts a bill
of particulars would have provided him actually prejudiced him in his ability to fairly
Richland County, Case No. 13CA39 10
defend himself.” State v. Chinn, 85 Ohio St.3d 548, 1999-Ohio-288, 709 N.E.2d 1166(1999).
{¶24} In this case, the failure of appellee to provide a bill of particulars until the
day of trial did not preclude or hinder appellant from effectively presenting his defense.
Appellant provided no specific reason why he was prejudiced by the filing of the bill of
particulars on the date of trial. As indicated by appellee during the hearing on
appellant’s motion to dismiss, appellee had an “open discovery” policy through which
appellant and his counsel were provided with copies of the police reports, medical
records, and witness statements available to the State of Ohio. Appellant had the
opportunity to assess the evidence appellee planned to present during trial and
appellant had the opportunity during his testimony to assert that T.L. accidentally
stabbed Brown during the October 15, 2012 incident. Appellant thus prepared his
defense without a bill of particulars, did not complain of its absence until the day of trial,
and does not indicate how he could have defended himself differently had he been
provided with the bill of particulars prior to the date of trial.
{¶25} Appellant requested the bill of particulars on November 28, 2012. When
appellee failed to comply with appellant’s request, appellant took no further action until
the day of trial when he filed a motion to quash or dismiss indictment. “A proper method
of protesting the state’s failure to provide a bill of particulars would have been to file a
motion to compel compliance with the order.” State v. Shirley, 12th Dist. No. CA2012-
07-127, 2013-Ohio-1948, quoting State v. Ray, 12th Dist. No. CA2009-06-022, 2010-
Ohio-2434. Appellant failed to file a motion to compel and likewise failed to request a
continuance of the trial. Further, though the trial court denied appellant’s motion to
Richland County, Case No. 13CA39 11
quash or suppress, the trial court specifically informed appellant “if as this trial develops
you’re in a position where you feel that you want to reargue this question because of the
development of the evidence, you’re not precluded from doing that.” No further motions
or objections were made on this matter during the trial.
{¶26} Accordingly, appellant has failed to prove he was prejudiced by appellee’s
failure to provide a bill of particulars until the day of trial. Appellant’s first assignment of
error is overruled.
II.
{¶27} In his second assignment of error, appellant argues the trial court should
have dismissed Counts II and IV because appellee failed to prove the statements made
in the bill of particulars. Appellant contends since the same facts were included in the
bill of particulars under each charge and appellant was found not guilty of kidnapping,
appellee failed to prove the statements in the bill of particulars beyond a reasonable
doubt. Further, that since the facts contained in all counts of the bill of particulars were
the same, it was not clear as to which charge corresponded with each victim. We
disagree.
{¶28} The purpose of a bill of particulars is to “particularize the conduct of the
accused to constitute the charged offense.” State v. Sellards, 17 Ohio St.3d 169, 171,
478 N.E.2d 781 (1985). The bill of particulars is not designed to “provide the accused
with specifications of evidence or to serve as a substitute for discovery.” Id. Thus, it
must only set up the specific nature of the offense charged and the conduct of the
defendant alleged to constitute the offense. Crim. R. 7(E). Further, a bill of particulars
“need only be directed toward the conduct of the accused as it is understood by the
Richland County, Case No. 13CA39 12
[S]tate to have occurred.” State v. Gingell, 7 Ohio App.3d 364, 455 N.E.2d 1066 (1st
Dist. 1982). Criminal Rule 33(E)(2) provides that a variance between the allegations
and the evidence at trial is not reversible error unless the defense is prejudiced or
misled thereby.
{¶29} In this case, the indictment provided by appellee contained the statutory
language of each charge against him. The bill of particulars appellee supplied appellant
with provided a specific date, location, and description of the alleged offenses sufficient
to inform appellant of the conduct being alleged. The bill of particulars provided that
appellant “wielded a knife at Karen Brown, refusing to let her leave for approximately an
hour. He poked at her with the knife and stabbed her in the hand as he was attempting
and threatening to stab [T.L.]. Karen Brown required stitches.” The testimony
presented at trial supports the statements provided in the bill of particulars. Brown
testified appellant poked at her with a knife, stabbing the pillow she was sitting on.
Brown and T.L. testified appellant stabbed Brown in the back of the hand when she tried
to pull T.L. away as appellant attempted to stab T.L. Dr. Crouse stated the contusion
Brown sustained was in the back of her hand, required stitches, and was consistent with
a knife wound.
{¶30} Simply because the description provided in Count I of the bill of particulars
was the same as in Counts II and IV of the bill of particulars does not necessitate a
finding that appellee failed to meet their burden in this case. While the narrative
included facts regarding counts appellant was found not guilty of, it also specifically
included a description of the offenses in Counts II and IV, stating that appellant stabbed
[Brown] in the hand as he was attempting and threatening to stab T.L. and that Brown
Richland County, Case No. 13CA39 13
required stitches. We find appellant was on notice as to what conduct was being
alleged in Counts II and IV and there is no variance between the testimony at trial and
the allegations contained in the bill of particulars.
{¶31} Appellant also argues since the facts listed in the bill of particulars are the
same for each count, it is not clear which count corresponds with victim Brown and
which count corresponds with victim T.L. As noted above, the purpose of the bill of
particulars is to “elucidate or particularize the conduct of the accused alleged to
constitute the charged offense.” State v. Sellards, 17 Ohio St.3d 169, 171, 478 N.E.2d
781 (1985). The description of facts in each charge of the bill of particulars sets forth
the conduct of appellant alleged to constitute each offense. Further, the trial court made
it clear to the jury who was the victim in each charge in its jury instructions as the
victim’s name “Karen Brown” was included in Counts I, II, and III, and the victim’s name
“T.L” was included in Count IV.
{¶32} Appellant also argues in his second assignment of error that appellee
failed to prove beyond a reasonable doubt that appellant committed the Count II
felonious assault because appellant did not knowingly cause serious physical harm to
Brown as he was attempting to stab T.L. We disagree.
{¶33} Sufficiency of the evidence is the standard applied “to determine whether
the case may go to the jury or whether the evidence is legally sufficient as matter of law
to support the jury verdict.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). In reviewing the record for sufficiency, “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
Richland County, Case No. 13CA39 14
doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), superseded by
constitutional amendment on other grounds.
{¶34} Appellant was convinced of felonious assault in violation of R.C.
2903.11(A)(1) which provides that: “(A) No person shall knowingly * * * (1) Cause
serious physical harm to another * * *.” The requisite culpable mental state for felonious
assault is “knowingly,” which is defined, “[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). It is well established
that one may be presumed to intend results which are the natural, reasonable, and
probable consequences of his voluntary acts. State v. Farmer, 156 Ohio St. 214, 102
N.E.2d 11 (1951). Further, “it is not necessary that the accused be in a position to
foresee the precise consequence of his conduct; only that the consequence be
foreseeable in the sense that what actually transpired was natural and logical in that it
was within the scope of the risk created by his conduct.” State v. Losey, 23 Ohio
App.3d 93, 96, 491 N.E.2d 379 (10th Dist. 1985).
{¶35} In this case, Brown testified when she saw appellant take out the knife
when he and T.L. were fighting outside the home, she believed appellant was going to
stab T.L. in the back. Further, when she stepped in to pull T.L. away and prevent him
from being stabbed, appellant stabbed her in the back of the hand. T.L. also testified
appellant had the knife and stabbed Brown with the knife as she was reaching around
T.L. to pull him back from appellant. Dr. Crouse confirmed Brown had an injury on the
Richland County, Case No. 13CA39 15
back of her hand consistent with being stabbed. When appellant testified, he denied
having a knife and stated T.L. accidentally stabbed Brown.
{¶36} Viewing the evidence in a light most favorable to appellee, we find there
was sufficient evidence from which a rational trier of fact could conclude that the serious
physical harm Brown sustained in the hand was a natural and logical consequence and
within the scope of the risk created by appellant’s voluntary conduct and was the
reasonable and probable result of appellant’s actions. We find the evidence provided at
trial was sufficient to sustain appellant’s conviction.
{¶37} Appellant next contends an acquittal of Count III, felonious assault with a
deadly weapon, necessitates an acquittal on Count II, felonious assault with serious
physical harm, because the verdicts are inconsistent. We disagree. The Ohio Supreme
Court has held that each count of an indictment charges a complete offense and that
separate counts of an indictment are not interdependent, but are each complete in itself.
State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997). Further, “an
inconsistency in a verdict does not arise out of inconsistent responses to different
counts, but only arises out of inconsistent responses to the same count.” Id.; State v.
Brown, 12 Ohio St.3d 147, 465 N.E.2d 889 (1984). Thus, “inconsistent verdicts on
different counts of a multi-count indictment does not justify overturning a verdict * * *.”
State v. Gapen, 104 Ohio St.3d 358, 819 N.E.2d 1047, 2004-Ohio-6548 (2004). In this
case, appellant alleges inconsistency between the verdicts on a multi-count indictment.
As held by the Ohio Supreme Court, this is not the type of inconsistency that justifies
setting aside a verdict.
Richland County, Case No. 13CA39 16
{¶38} In the last paragraph of his reply brief, appellant argues the indictment
filed in the case does not contain any allegation of subject matter jurisdiction of where
the offenses occurred in violation of R.C. 2941.03(D) and requests this Court dismiss
the indictment against appellant. However, appellant did not assign as error the
insufficiency of the indictment in his appellant’s brief. App. R. 16(A)(7) provides that
assignments of error shall be argued in the brief of appellant. App. R. 16(C) states that
a reply brief is to “reply to the brief of the appellee.” New assignments of error cannot
be raised in a reply brief. State v. Nichols, 5th Dist. No. 01-CA-016, 2002-Ohio-4048,
citing Sheppard v. Mack, 68 Ohio App.2d 95, 427 N.E.2d 522 (8th Dist. 1980).
Therefore, we decline to address appellant’s argument regarding the sufficiency of the
indictment as it was raised for the first time in appellant’s reply brief. See
CSAHA/UHHS-Canton, Inc. v. Aultman Health Found., 5th Dist. No. 2010CA00303,
2012-Ohio-897.
{¶39} Based on the foregoing, the judgment of the Richland County Common
Pleas Court is affirmed.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur