State v. Wigle ( 2011 )


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  • [Cite as State v. Wigle, 2011-Ohio-6239.]
    STATE OF OHIO                     )                  IN THE COURT OF APPEALS
    )ss:               NINTH JUDICIAL DISTRICT
    COUNTY OF SUMMIT                  )
    STATE OF OHIO                                        C.A. No.     25593
    Appellee
    v.                                           APPEAL FROM JUDGMENT
    ENTERED IN THE
    DAVID C. WIGLE                                       AKRON MUNICIPAL COURT
    COUNTY OF SUMMIT, OHIO
    Appellant                                    CASE No.   10-CRB-4268
    DECISION AND JOURNAL ENTRY
    Dated: December 7, 2011
    MOORE, Judge.
    {¶1}     Appellant, David Wigle, appeals the judgment of the Akron Municipal Court.
    This Court affirms.
    I.
    {¶2}     On April 25, 2010, appellant, David Wigle, called police because his neighbor,
    Nancy Pashley, allegedly trespassed on his property and threatened his sons. Officers arrived at
    Wigle’s home and were allowed into the home by Wigle’s wife, Nancy. They proceeded to the
    backyard to discuss the allegations with Wigle. After hearing his complaint, the officers went
    next door to investigate. Wigle returned inside his home, made popcorn, and sat down to watch
    a movie.
    2
    {¶3}    After questioning Pashley, the officers learned that she had a protection order
    against Wigle from the Summit County Court of Common Pleas. She played a video from her
    home security camera for the officers. The video was from the previous day and showed Wigle
    removing “ornamental grass” from her property. The officers spoke with their supervisor and
    were advised that a violation of a protection order should result in an arrest.
    {¶4}    The officers returned to Wigle’s home and were admitted by his wife. They
    advised Wigle of the video demonstrating that he had violated the protection order, and told him
    that he was under arrest for the violation. Wigle became argumentative and told the officers that
    he was not going to jail. He became loud, angry, made fists and took a fighting stance toward
    the officers. The officers drew their tasers and, when it had no effect, Wigle challenged them to
    tase him again. The officers also used pepper spray to gain compliance. The pepper spray
    brought Wigle to the floor with his hands underneath him. His behavior was described by the
    officers as violent, turbulent and alarming. Wigle’s son, Michael Wigle, used a cell phone to
    record video footage of portions of the officers’ efforts to arrest Wigle.
    {¶5}    On April 25, 2010, Wigle was charged with violating a protection order in
    violation of R.C. 2919.27, disorderly conduct in violation of Akron City Code 132.01(A), and
    resisting arrest in violation of R.C. 2921.33. He entered a plea of not guilty on April 29, 2010.
    On May 31, 2010, Wigle filed a motion for a bill of particulars, which was denied on July 20,
    2010. He also filed a motion to suppress defendant’s statements on June 3, 2010, which was
    denied on June 25, 2010. He filed a motion for severance on July 9, 2010, and the trial court
    denied the motion on July 13, 2010.
    {¶6}    Wigle also filed a motion to dismiss the protection order violation as
    unconstitutionally applied, and a motion to suppress the video taken by the victim neighbor, and
    3
    multiple motions for discovery. The trial court overruled the motion to dismiss and the motion
    to suppress. The State contends it provided Wigle open file discovery.
    {¶7}   A jury trial was conducted on July 22 and July 23, 2010. The jury returned a
    verdict of guilty on the resisting arrest and disorderly conduct charges, and not guilty on the
    charge of violating protection order. The trial court ordered a pre-sentence investigation and
    mental evaluation of Wigle. On July 30, 2010, Wigle was sentenced to 90 days of incarceration
    with 80 days suspended and ordered to undergo anger management treatment on the resisting
    arrest conviction. On the disorderly conduct conviction, Wigle was sentenced to 30 days of
    incarceration with 20 days suspended. The sentences were ordered to be served concurrently.
    {¶8}   Wigle timely filed a notice of appeal. He raises four assignments of error for our
    review.
    II.
    ASSIGNMENT OF ERROR I
    “THE TRIAL COURT ERRED IN FAILING TO SUSTAIN [WIGLE’S]
    OBJECTIONS AND INSTRUCT THE JURY REGARDING IMPROPER
    WORDS BY THE PROSECUTOR IN CLOSING.”
    {¶9}   In his first assignment of error, Wigle argues that the trial court erred in failing to
    sustain his objections and properly instruct the jury regarding improper words used by the
    prosecutor in his closing arguments. We do not agree.
    {¶10} “Generally during closing argument, the prosecution is entitled to a certain
    amount of latitude. The test regarding prosecutorial misconduct in closing arguments is whether
    the remarks were improper, and, if so, whether they prejudicially affected substantial rights of
    the defendant.” (Internal citations and quotations omitted). State v. Jones, 9th Dist. No. 24776,
    2010-Ohio-351, at ¶19, quoting State v. Smith (1984), 
    14 Ohio St. 3d 13
    , 14. The appellant must
    4
    demonstrate that there is “a reasonable probability that but for the prosecutor’s misconduct, the
    result of the proceeding would have been different.” State v. Overholt, 9th Dist. No. 02CA0108-
    M, 2003-Ohio-3500, at ¶47. In addition, “[c]omments made in closing argument are not viewed
    in isolation, rather the closing argument is reviewed in its entirety to determine whether remarks
    by the prosecutor were prejudicial.” State v. Henry, 9th Dist. No. 02CA008170, 2003-Ohio-
    3151, at ¶28, quoting State v. Smith (Jan. 17, 2001), 9th Dist. No. 99CA007451, at *1.
    {¶11} During closing arguments, Wigle objected to the prosecutor’s comments
    concerning the officers’ entry into the home and its effect on the charge of resisting arrest. R.C.
    2921.33(A) states: “No person, recklessly or by force, shall resist or interfere with a lawful arrest
    of the person or another.” A lawful arrest is an element of the crime of resisting arrest. R.C.
    2921.33; State v. Vactor, 9th Dist. No. 02CA008068, 2003-Ohio-7195, at ¶34. “An arrest is
    ‘lawful’ if the surrounding circumstances would give a reasonable police officer cause to believe
    that an offense has been or is being committed.” State v. Sansalone (1991), 
    71 Ohio App. 3d 284
    ,
    285-286. Throughout the trial, Wigle argued that because the arrest occurred inside of Wigle’s
    home, the consent of entry to the home was an issue of fact to be decided by the jury in
    determining the lawfulness of the arrest. During closing arguments, the prosecutor told the jury
    that if a defendant questions whether an entry was lawful, “the proper time to address that is
    prior to trial with a motion to suppress. That way the judge can evaluate what happened and we
    might not even be here today had that been done, but it wasn’t.” Defense counsel objected, and
    the trial court overruled the objection. The prosecutor went on to say that “[t]he entry into the
    home is not an issue for you to consider, because it should have been addressed prior to trial. It
    was not, so that is not something for you to consider today.” Defense counsel renewed his
    objection after this statement.
    5
    {¶12} In his brief, Wigle argues that the prosecutor commented on the lawfulness of the
    officers’ entry into the home, and his comments removed the State’s burden to prove the
    element. Assuming without deciding that the statement was improper, we conclude that there is
    no “reasonable probability that but for the prosecutor’s [alleged] misconduct, the result of the
    proceeding would have been different.” Overholt at ¶47.
    {¶13} “Isolated comments by a prosecutor are not to be taken out of context and given
    their most damaging meaning.” State v. Hill (1996), 
    75 Ohio St. 3d 195
    , 204, citing Donnelly v.
    DeChristoforo (1974), 
    416 U.S. 637
    , 647. Wigle contends that the issue at trial was whether or
    not Wigle’s wife gave the officers her consent to enter their home. There was uncontroverted
    testimony that Wigle initially called the police to his home to report a complaint regarding his
    neighbor. The officers were initially invited into the home by Wigle’s wife, and she directed
    them to the backyard to speak with Wigle.        After going next door and speaking with the
    neighbor, the police returned to Wigle’s home to confront him regarding the video tape and the
    violation of a protection order. Officer Stanar testified as to the wife’s consent to enter the
    home. Wigle, his wife, and his son testified to the contrary. This was an issue of disputed fact to
    be determined by the jury. The jury is in the best position to judge the credibility of witnesses
    because the jury “is best able to view witnesses and observe their demeanor, gestures and voice
    inflections, and use these observations in weighing the credibility of the proffered testimony.”
    State v. Cook, 9th Dist. No. 21185, 2003-Ohio-727, at ¶30, quoting Giurbino v. Giurbino (1993),
    
    89 Ohio App. 3d 646
    , 659.
    {¶14} The trial court permitted the defendant to pursue the issue of consent during
    cross-examination of the officers, direct examination of the defense witnesses, and to argue it
    during closing arguments. The trial court properly instructed the jury as to the essential elements
    6
    of resisting arrest, including the fact that the State was required to prove that the arrest was
    lawful and that the officers “had the authority to make the arrest at the time and place where the
    alleged resisting or interference took place[.]” Wigle has not argued that the definition it gave
    was incorrect. Finally, the trial court instructed the jury that the closing arguments presented by
    the State and the defendant “are not to be construed [] as evidence in this case or instructions on
    the law.” See State v. Boots (Nov. 9, 2001), 2d Dist. No. 2001 CA 1542, at *2 (concluding
    defendant was not prejudiced by prosecutor’s incorrect definition of reasonable doubt because
    “[t]he trial court made clear to the jurors that they were required to apply the law as set forth by
    the court, and the trial court properly defined reasonable doubt and proof beyond a reasonable
    doubt for the jurors in open court and in its written instructions to the jury.”).
    {¶15} In viewing the prosecutor’s closing comments in their totality, we conclude that
    Wigle has failed to demonstrate that the comments prejudicially affected his substantial rights or
    that, had the statements not been allowed, the result of the case would have been different.
    Accordingly, his first assignment of error is overruled.
    ASSIGNMENT OF ERROR II
    “THE TRIAL COURT ERRED BY FAILING TO GRANT [WIGLE’S]
    MOTION TO SEVER THE CHARGES, THUS PREJUDICING [HIM] AND
    CAUSING SUCH CONFUSION IN THE JURY AS TO CAUSE AN UNFAIR
    TRIAL.”
    {¶16} In his second assignment of error, Wigle argues that the trial court erred when it
    failed to grant his motion to sever the charges. We do not agree.
    {¶17} “The law favors joining multiple offenses in a single trial under Crim.R. 8(A) if
    the offenses charged ‘are of the same or similar character.’” State v. Lott (1990), 
    51 Ohio St. 3d 160
    , 163, quoting Crim.R. 8(A). A defendant claiming that the trial court erred in denying a
    motion to sever must affirmatively show that his rights were prejudiced and that the trial court
    7
    abused its discretion in refusing separate trials. State v. Torres (1981), 
    66 Ohio St. 2d 340
    , 343.
    An abuse of discretion is more than an error of judgment; it means that the trial court was
    unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio
    St.3d 217, 219. When applying the abuse of discretion standard, this Court may not substitute its
    judgment for that of the trial court. Pons v. Ohio State Med. Bd. (1993), 
    66 Ohio St. 3d 619
    , 621.
    {¶18} The State argues that Wigle has forfeited this argument because he failed to renew
    his motion when the state rested or at the close of evidence. However, that waiver only applies if
    the defendant moves to sever pursuant to Crim.R. 14. See State v. Smith, 9th Dist. No. 25069,
    2010-Ohio-3983, at ¶21. This Court has previously held that “[w]hile a defendant’s failure to
    renew a motion to sever based upon Rule 14 results in a forfeiture of that issue, ‘the same is not
    true for a motion based upon Rule 8[.]’” State v. Hatfield, 9th Dist. No. 23716, 2008-Ohio-2431,
    at ¶14, quoting State v. Williams, 9th Dist. No. 23560, 2008-Ohio-1048, at ¶52 (Dickinson, J.,
    concurring).
    {¶19} Crim.R. 8(A) provides:
    “Two or more offenses may be charged in the same indictment, information or
    complaint in a separate count for each offense if the offenses charged, whether
    felonies or misdemeanors or both, are of the same or similar character, or are
    based on the same act or transaction, or are based on two or more acts or
    transactions connected together or constituting parts of a common scheme or plan,
    or are part of a course of criminal conduct.”
    {¶20} Crim.R. 14 provides:
    “If it appears that a defendant or the state is prejudiced by a joinder of offenses or
    of defendants in an indictment, information, or complaint, or by such joinder for
    trial together of indictments, informations or complaints, the court shall order an
    election or separate trial of counts, grant a severance of defendants, or provide
    such other relief as justice requires.”
    {¶21} “The difference between the rules is that Rule 8 only addresses the joinder of
    multiple charges in the same indictment while Rule 14 also addresses the joinder of completely
    8
    separate indictments.” Hatfield at ¶14, citing United States v. Terry (C.A.9, 1990), 
    911 F.2d 272
    , 277-78. Here, Wigle’s motion for separate trials only mentioned Crim.R. 8, and the charges
    stem from the same compliant. Therefore, Crim.R. 8 is the applicable rule. Because the failure
    to renew a motion to sever based upon Crim.R. 8 does not result in a forfeiture of that issue,
    Wigle has not forfeited his argument. Hatfield at ¶14.
    {¶22} “When a defendant claims that he was prejudiced by the joinder of multiple
    offenses, a court must determine (1) whether evidence of the other crimes would be admissible
    even if the counts were severed, and (2) if not, whether the evidence of each crime is simple and
    distinct.” State v. Schaim (1992), 
    65 Ohio St. 3d 51
    , 59. See, also, State v. Singfield (Mar. 27,
    1996), 9th Dist. No. 17160, at *8.
    {¶23} In a case similar to this, the defendant argued that the trial court erred in failing to
    sever the aggravated burglary charge from the resisting arrest charge because “the offenses were
    committed at separate times, in separate locations, and involved separate police officers.” State
    v. Porter (Dec. 24, 1997), 9th Dist. No. 18384, at *2. This Court rejected Porter’s arguments and
    concluded that the charges were properly joined pursuant to Crim.R. 8. “The charge of resisting
    arrest resulted from defendant’s actions during the investigation of the burglary. Defendant was
    immediately pursued from the burglary scene, and the two officers originally investigating the
    burglary * * * were present during the subsequent struggle and eventual apprehension.” 
    Id. at *3,
    citing State v. Cisternino (Oct. 27, 1994), 8th Dist. No. 66387 (concluding that joinder was
    proper when violations occurring approximately one week apart were “interrelated”). Here, as in
    Porter, the charge of resisting arrest occurred while the officers were investigating the civil
    protection order violation. We cannot conclude that joinder was improper simply because the
    crimes occurred on two separate dates.
    9
    {¶24} Wigle further argues that the counts should have been severed because the
    evidence “was not simple and distinct enough.” We do not agree. Here, as in Porter, “the
    evidence of each charge was simple and direct, and the testimony provided by the State’s
    witnesses covered in detail the events leading up to the charges.” 
    Id. at *3.
    Wigle’s neighbor,
    Pashley, testified regarding the protection order violation. She claimed that Wigle removed
    “ornamental grass” from her property. After seeing video evidence of the allegation, the officers
    returned to Wigle’s home to arrest him for the violation. The arresting officers testified that
    Wigle became argumentative and refused to cooperate. They were forced to use tasers and
    pepper spray to gain compliance. This evidence led to the resisting arrest and disorderly conduct
    charges. “The jury was not at risk of confusing the evidence such that the charges should have
    been severed.” 
    Id. Furthermore, the
    fact that the jury acquitted Wigle of the protection order
    violation, and convicted him of the remaining charges demonstrates that the jury was capable of
    separating the issues. Accordingly, Wigle’s second assignment of error is overruled.
    ASSIGNMENT OF ERROR III
    “THE TRIAL COURT ERRED IN DENYING THE BILL OF PARTICULARS
    TIMELY REQUESTED BY [WIGLE], AND SUCH DENIAL PREJUDICED
    [HIM].”
    {¶25} In his third assignment of error, Wigle argues that the trial court erred in denying
    his request for a bill of particulars. We do not agree.
    {¶26} Upon review of the record, it is apparent that the trial court properly overruled
    Wigle’s request, as it was untimely. Wigle was arraigned on April 29, 2010, and he filed his
    motion for the bill of particulars on May 31, 2010. Crim.R. 7(E) requires that motions for a bill
    of particulars be filed within twenty-one days of the arraignment. See State v. Maken (Dec. 22,
    2000), 2d Dist. No. 17577. The trial court determined that Crim.R. 7(E) was complied with by
    10
    open-file discovery.     We need not reach that issue because the request was untimely.
    Accordingly, Wigle’s third assignment of error is overruled.
    ASSIGNMENT OF ERROR IV
    “[THE] TRIAL COURT ERRED IN DENYING [THE] MOTION TO
    SUPPRESS STATEMENTS OF [WIGLE] FOR THE REASON THAT
    ARRESTING OFFICERS FAILED TO GIVE MIRANDA WARNINGS AND
    MADE ILLEGAL ENTRY INTO [HIS] HOME.”
    {¶27} In his fourth assignment of error, Wigle argues that the trial court erred in denying
    his motion to suppress his statements because the officers failed to give Miranda warnings and
    made an illegal entry into his home. We do not agree.
    {¶28} The review of a motion to suppress presents a mixed question of fact and law for
    an appellate court. State v. Yeager, 9th Dist. Nos. 21091, 21112, and 21120, 2003-Ohio-1808, at
    ¶5, citing State v. Long (1998), 
    127 Ohio App. 3d 328
    , 332. This Court “is bound to accept
    factual determinations of the trial court made during the suppression hearing so long as they are
    supported by competent and credible evidence.” State v. Robinson (Oct. 25, 2000), 9th Dist. No.
    19905, at *2, quoting State v. Searls (1997), 
    118 Ohio App. 3d 739
    , 741. However, an appellate
    court reviews de novo the trial court’s application of the law to those facts. 
    Id. {¶29} In
    his motion to suppress, Wigle argued that his statements must be suppressed
    because he was “without benefit of the ‘Miranda warning.’” The trial court noted that “[o]nly a
    custodial interrogation triggers the need for a Miranda rights warning.” See State v. Trent (Dec.
    23, 1999), 2d Dist. No. 17705. The trial court denied the motion because there was no custodial
    interrogation, Wigle was placed under arrest and handcuffed almost immediately, and because
    his statements would be indicative of whether or not he resisted arrest.
    {¶30} Our review of the record indicates that there was no custodial interrogation, and
    the statements made by Wigle were not in response to any question from the officer. See State v.
    11
    Solomon (Sept. 27, 1978), 9th Dist. No. 8862. Prior to his arrest, the officers inquired why
    Wigle went on his neighbor’s property. He responded that it was not him and that he did not do
    anything. He then became loud and argumentative. Officer Harrison testified that after Wigle
    was told that he was under arrest, Wigle responded, “[N]o I’m not going to jail. No. I’m not
    going. You’ll have to tase me.”
    {¶31} “The law of Miranda * * * has no application to purely voluntary statements
    which are not the result of ‘express questioning or its functional equivalent.’” State v. Coleman
    (1989), 
    45 Ohio St. 3d 298
    , 306, certiorari denied (1990), 
    493 U.S. 1051
    , quoting Rhode Island v.
    Innis (1980), 
    446 U.S. 291
    , 300-01. “It is the premise of Miranda that the danger of coercion
    results from the interaction of custody and official interrogation.” Illinois v. Perkins (1990), 
    496 U.S. 292
    , 297. Because there was no custodial interrogation, and because the officers asked no
    questions after placing Wigle under arrest, the trial court properly denied the motion to suppress.
    {¶32} Wigle further argues that the statements should be suppressed due to an illegal
    entry into the home. However, the motion to suppress filed with the trial court only argued that
    the evidence should be suppressed due to a Miranda violation. “An appellate court need not
    consider an error which a party complaining of the trial court’s judgment could have called, but
    did not call, to the trial court’s attention at a time when such error could have been avoided or
    corrected by the trial court.” State v. Williams (1977), 
    51 Ohio St. 2d 112
    , paragraph one of the
    syllabus, citing State v. Glaros (1960), 
    170 Ohio St. 471
    . We decline to address this argument
    that could have been raised in the trial court. Accordingly, Wigle’s fourth assignment of error is
    overruled.
    III.
    12
    {¶33} Wigle’s assignments of error are overruled.           The judgment of the Akron
    Municipal Court is affirmed.
    Judgment affirmed.
    There were reasonable grounds for this appeal.
    We order that a special mandate issue out of this Court, directing the Akron Municipal
    Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    Costs taxed to Appellant.
    CARLA MOORE
    FOR THE COURT
    WHITMORE, P. J.
    DICKINSON, J.
    CONCUR
    APPEARANCES:
    ROBERT T. LYNCH, Attorney at Law, for Appellant.
    13
    CHERI B. CUNNINGHAM, Director of Law, DOUGLAS J. POWLEY, Chief City Prosecutor,
    and CARA KENNERLY-FORD, Assistant City Prosecutor, for Appellee.
    

Document Info

Docket Number: 25593

Judges: Moore

Filed Date: 12/7/2011

Precedential Status: Precedential

Modified Date: 10/30/2014