State v. Junod ( 2009 )

[Cite as State v. Junod, 2009-Ohio-2817.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-09-03
v.
DALE A. JUNOD, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Municipal Court
Trial Court No. 08-CRB-279
Judgment Affirmed
Date of Decision: June 15, 2009
APPEARANCES:
John A. Poppe for Appellant
Darren L. Meade for Appellee
Case No. 2-09-03
ROGERS, J.
{¶1} Defendant-Appellant, Dale Junod, appeals the judgment of the
Auglaize County Municipal Court convicting him of assault, sentencing him to a
seven-day jail term, and imposing a community control sanction. On appeal,
Junod argues that he was denied his constitutional right to a fair trial and due
process of law by reason of prosecutorial misconduct, and that the jury verdict was
against the manifest weight of the evidence. Based on the following, we affirm
the judgment of the trial court.
{¶2} In April 2008, Junod was arrested and charged by complaint with
one count of assault in violation of R.C. 2903.13(A), a misdemeanor of the first
degree; one count of carrying a concealed weapon in violation of R.C.
2923.12(A)(1), a misdemeanor of the first degree; and, one count of menacing in
violation of R.C. 2903.22(A), a misdemeanor of the fourth degree. The charges
arose from an incident whereby Junod attacked his neighbor, Adrian Clark, with a
walking cane and then threatened him after he thought Adrian stole $200 from his
home. Subsequently, Junod entered a plea of not guilty to all charges, and the trial
court released Junod upon a personal recognizance bond, requiring him, among
other things, to have no contact with Adrian.
{¶3} In October 2008, the State filed a motion to revoke Junod’s bond,
stating that Junod “flipped Adrian the finger, yelled some profanity, and then
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threw something at [his] vehicle” while Adrian drove past Junod’s house on his
way home one day. (Oct. 2008 Motion to Revoke Bond, p. 3). Subsequently,
Junod was arrested and charged with one count of vehicular vandalism in violation
of R.C. 2909.09(B)(1), a misdemeanor of the first degree.1
{¶4} In November 2008, the case proceeded to a jury trial, at which
Adrian testified that, on April 16, 2008, he went to Junod’s house to help him tear
down an old building on his property; that, while helping Junod, he consumed
around twelve beers; that Junod also drank beers with him, but he could not
remember how many Junod consumed; that, after working with Junod, he went
home and had an argument with his wife, Leah Clark, who was upset because he
was intoxicated; that the police were called to his house because of the argument,
and they decided to take him back to Junod’s house because they were concerned
that he might get violent with Leah; that, when he arrived at Junod’s house, Junod
told him to go inside and sit down; that while he was there, he consumed another
beer and took a couple pills he believed to be Valium or Xanax, given to him by
Junod, and Junod drank wine, smoked marijuana, and also took pills that he
believed to be Valium or Xanax; that Junod’s nephew, Travis, was also at the
house; that, after some time, he called Leah and asked her to meet him at their
1
We note that the trial court consolidated the April 2008 case with the October 2008 case for trial.
However, only the April 2008 case is the subject of this appeal. Accordingly, we will only address the
arguments that relate to the April 2008 case.
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neighbor Bob Harruff’s home; that, when he arrived at Harruff’s, two other
individuals by the name of Mark Potter and Chrissy Miller were there drinking
and playing cards; that he was sitting in the living room talking to his wife and
watching television when Junod knocked on the door, came into the house, and
starting hitting him with a wooden cane; that he tried to shield the blows with his
arm as Junod proceeded to strike him in the eye, the leg, the ribs, the shoulder, and
the back of his neck; that, as Junod was hitting him, he accused him of taking his
“stash” (trial tr., vol. 1, p. 29), and stated that some of his pills were missing; that
Mark and Chrissy pushed Junod away and asked him to leave; that, as Junod was
outside, he yelled at him to “come out and * * * finish this” (Id. at 31); and, that
Junod also stated that he owed him $200 by tomorrow, and that if he or his family
came to his house, they would be shot.
{¶5} Adrian continued that he did not take Junod’s “stash”; that he could
see Junod’s truck outside the house before he left, and he saw the cane Junod used
to beat him and another cane sitting in the front seat of his truck; that the cane he
saw in the front seat of Junod’s truck was the same cane that hung in Junod’s
house that Junod had shown him before, which contained a concealed blade; that,
during the altercation, he did not try to hit or kick Junod, or try to pull a knife on
him; that he owns a small pocket knife and a Gerber knife which he keeps in his
tackle box, but that he does not own a “quick draw” knife; and, that, although he
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was intoxicated at the time of the altercation, he still remembers the facts very
clearly. Subsequently, Adrian identified several photographs depicting various
bruises and red marks on his body sustained as the result of the beating, including
marks on his shoulder, ribs, thigh, and hand.
{¶6} Leah testified that, on April 16, 2008, Adrian came home from
Junod’s house intoxicated; that an argument ensued during which the police were
called to the house; that, when the police arrived, they decided to take Adrian back
over to Junod’s house in order to allow her and Adrian to calm down, despite the
fact that she requested that Adrian not be taken to Junod’s house; that, later in the
evening, she agreed to meet Adrian at Bob Harruff’s house to resolve their
argument; that, as they were talking in Harruff’s living room, Junod knocked on
the door, came into the house, and began hitting Adrian with a cane and accusing
him of stealing his “stash”; that both Adrian and Junod were visibly intoxicated
during the altercation; that Junod hit Adrian about five or six times with the cane;
that Adrian attempted to block the cane with his hands, but he did not attempt to
strike Junod or pull out a knife; that when Junod left, he told Adrian that he owed
him $200; that, as a result of the altercation, Adrian had a cut above his eye and
bruises on his thigh and right leg; that she did not know what Junod meant when
he referred to his “stash”; that she had seen Junod smoke marijuana on prior
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occasions; and, that Adrian carries a small pocket knife, but she did not see it on
the night of the altercation.
{¶7} Harruff testified that, on April 16, 2008, he was at home drinking
with his friends, Mark and Chrissy, while Adrian and Leah were in the living
room; that he had around eighteen beers that night; that, subsequently, Junod
knocked on the door, he answered it, and Junod asked if Adrian was at the house;
that he then let Junod into the living room, Junod said something to Adrian, and
Junod began hitting Adrian with a cane; that Adrian attempted to block the strikes
but did not attack Junod; that, although he could not fully see Adrian’s right hand,
he did not see him pull out a knife; that, eventually, Mark was able to get Junod
outside; and, that Adrian went to the kitchen after the altercation, and not outside
or to the door.
{¶8} Sergeant Douglas Burke from the Auglaize County Sherriff’s Office
testified that, on April 16, 2008, he was dispatched to speak with Junod about an
assault that had taken place; that he and other police officers developed a plan to
make contact with Junod because he had been told by the other officers who
responded to the scene of the altercation that Junod threatened to “take out”
anyone who came onto his property (Id. at 157-158); that he knocked on Junod’s
door, but he did not answer; that he looked inside the house to see if he could see
anyone, and he noticed a wooden cane in the corner of the living room; that,
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eventually, he was able to gain access to the house through an unlocked door; that,
when he entered the house, Junod was asleep on the couch; that he awoke Junod
and told him he was from the sheriff’s office; that, as Junod awoke, he stated, “I
did mean to hurt him. There’s a difference between a swing and a swing” (Id. at
161); that he had encountered Junod intoxicated on previous occasions, and he
noticed that Junod was intoxicated when he awoke; that, subsequently, Junod was
arrested and questioned by Deputy Ahlers outside in his police cruiser; that Junod
never mentioned that Adrian drew a knife on him, that Adrian attacked him, or
that he used the cane to defend himself; and, that, although Adrian stated that there
were drugs in Junod’s house, he did not see any drugs.
{¶9} Deputy Ryan Ahlers from the Auglaize County Sherriff’s Office
testified that he and other deputies responded to the Harruff residence to
investigate a call about an assault that had taken place; that, upon responding to
the residence, he spoke with Adrian, Leah, and Chrissy, and was told that Adrian
was attacked by Junod with a cane as Adrian was sitting in the recliner in the
living room of the Harruff residence; that Adrian complained of pain from being
attacked, including being hit in the leg, testicle, and chest; that he subsequently
took photographs of the bruises and marks on Adrian’s body; that Adrian was
intoxicated but coherent when he spoke to him; and, that Adrian stated he felt
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threatened from Junod’s statements that he owed him $200, and that if anybody
went to his residence “he would take them out.” (Trial Tr., vol. 2, p. 203).
{¶10} Deputy Ahlers continued that he and the other deputies went to
Junod’s house to contact him; that, after unsuccessful attempts to get Junod to
open the door, he and the other deputies entered the house and woke Junod up;
that, while he was in the house, he observed two canes in the corner of a room;
that the deputies confiscated both canes; that, after Junod was arrested and read his
Miranda rights, Junod agreed to speak with him; that Junod was intoxicated but
coherent during the questioning; that, during the questioning, Junod stated that he
went to the Harruff residence to confront Adrian about money that Adrian stole
from him, and that he lost control while he was there; that Junod never mentioned
that Adrian attacked him with a knife, that he was defending himself from Adrian,
that Adrian ever struck him, or that Adrian had stolen his “stash”; that he did not
search Adrian to see if he had any money, but Adrian stated that he did not take
anything from Junod and voluntarily went into his pockets to show that he did not
have anything in them; that he did not notice any large wads of money or pills in
Adrian’s pockets; that he took the two confiscated canes to Adrian, and he
identified a wooden cane as one Junod used to assault him, and a metal cane as the
one that he saw in the truck; and, that Adrian had never mentioned anything to him
prior to that identification about a metal cane.
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{¶11} At the close of the State’s case-in-chief, Junod’s trial counsel made a
Crim.R. 29 motion for judgment of acquittal on all counts.2 The trial court granted
the motion with respect to the concealed weapon count.
{¶12} Subsequently, Junod testified that, on April 16, 2008, he and his
nephew Travis Junod were tearing down a shed on his property when Adrian
arrived and asked if there was anything he could do to make some extra money;
that he told Adrian he could help him tear down the shed; that Adrian began
helping them, and all three drank while they worked; that he had around four
beers, and Adrian had around twelve beers; that Adrian left after working and
went home; that, subsequently, he received a phone call from a deputy sheriff
asking if he could bring Adrian over to his house to “sober[] up” (Id. at 332), to
which he agreed; that, when Adrian arrived at his house, he told him to sit on a
chair on the porch, and he went back to tearing down the shed; that he told Travis
to “try to settle [Adrian] down because he was talking out of his mind” (Id. at
333); that, after some time, Travis came back and told him that Adrian was sitting
in the house; that he went back into the house because he did not want Adrian in
there by himself, and he saw Adrian walking into walls and knocking over things
in the house; and, that he then told Adrian that he needed to leave.
2
We note that the transcript reveals that Junod’s trial counsel actually moved for a directed verdict at the
close of the State’s case-in-chief; however, the trial court correctly construed his directed verdict motion as
a motion for judgment of acquittal pursuant to Crim.R. 29(A). A motion for a directed verdict is
appropriate only in a civil case under Civ.R. 50(A).
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{¶13} Junod continued that, after Adrian left, he decided to verify that the
money he kept in his checkbook was still there; that he kept his checkbook behind
his rocking chair with other paperwork; that, when he looked in his checkbook,
$200 was missing; that he went over to the Harruff residence to confront Adrian
about the missing money and took his cane with him, as he needed it to assist him
in walking due to his back pain; that, when he went in the residence, he asked
Adrian about the missing money, and Adrian told him that Travis took it; that he
and Adrian continued to argue about the missing money, and he told Adrian that
he should bring it to him tomorrow; that he then looked down at Adrian’s right
hand and saw it go into his pocket and pull out a pocket knife with the blade
drawn; that he then took his cane and began beating Adrian’s hand containing the
knife in order to protect himself; that Adrian never threatened him, lunged toward
him, or tried to kick him, but that he tried to swing at him with his left hand; that
he stopped hitting Adrian after he could no longer see a knife in his hand; that he
then proceeded to walk out of the house and asked Adrian if he wanted to come
outside “so [they] could talk about it or * * * fight about it” (Id. at 347); that
Adrian never came outside, so he drove back home; that, when he got home, he
drank about half a bottle of wine and a few beers, and fell asleep on the couch; that
he awoke surrounded by several deputies who asked him a few questions and then
arrested him; that he spoke with one of the deputies, but he never mentioned to the
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deputy that Adrian drew a knife on him or that he hit Adrian in self-defense; that
he decided he should not tell the police about Adrian’s knife or his self-defense
claim until he talked to his lawyer; and, that he did tell the deputy that he lost
control when he went to confront Adrian, that he should not have confronted
Adrian because he was very angry, and that he challenged Adrian to come outside
and “finish it.” (Id. at 389).
{¶14} Junod further testified that when he first arrived at the Harruff
residence, he saw Mark Potter, Chrissy Miller, and Bob Harruff “rolling joints”
(Id. at 345); that he did not see Leah in the house; that when Adrian drew the
knife, he feared that he might stab him, as Adrian had previously told him stories
about how he stabbed other inmates when he was in prison, and he had seen
Adrian do a “quick draw” with his knife (Id. at 393); that he never threatened
Adrian in any way during the altercation; that Adrian’s testimony that he was
smoking marijuana while Adrian was at his house was not true; that he never
attempted to contact the police about the money that he believed Adrian had
stolen; and, that he only took the wooden cane with him when he went to confront
Adrian, leaving the metal one at home.
{¶15} Travis testified that, on April 16, 2008, he was at Junod’s house
helping him tear down a shed; that, while they were working, a deputy sheriff
dropped Adrian off at the house; that Junod left him to work by himself while he
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watched Adrian; that, after about twenty minutes, Junod returned and asked him to
go speak with Adrian because “[Junod] couldn’t do anything with him” (trial tr.,
vol. 3, p. 432); that he went into the house and saw Adrian sitting on a bar stool;
that Adrian was acting erratic and complaining about his family and lack of
employment; that, after talking with Adrian, he left; that he was aware of Adrian’s
skill in “quick drawing” a knife and had seen him demonstrate the skill on prior
occasions; and, that he knew Junod kept money in his checkbook, but he did not
take the money.
{¶16} Subsequently, the jury convicted Junod of assault and acquitted him
of menacing and vehicular vandalism. The trial court filed a journal entry stating,
in part:
These cases proceeded to jury trial on charges of Assault R.C,
[sic] 2903.12 A1, Carrying a concealed weapon R.C, [sic] 2923.12
A1, and Menacing R.C. 2903.22 A in Case 2008 CRB 00279. The
case also proceeded to jury trial on the charge of Vehicular
Vandalism R.C. 2909.09 in case 2008 CRB 281.
At the close of the State’s case the Court dismissed the charge of
Carrying a Concealed Weapon holding that the weapon by its
very nature was not a concealed weapon.
The remaining counts were presented to the jury which returned
a verdict of guilty as to the charge of assault and verdicts of not
guilty as to the remaining charges of Menacing and Vehicular
Vandalism.
(Nov. 2008 Journal Entry).
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{¶17} In December 2008, the trial court sentenced Junod to a seven-day
jail term and imposed a community control sanction through January 2011. The
trial court filed a judgment entry which memorialized the sentence and stated that
Junod was convicted of assault in violation of R.C. 2903.12(A)(1).
{¶18} In January 2009, the trial court filed a judgment entry correcting the
November 2008 entry, stating that Junod was convicted of assault under R.C.
2903.13(A)(1) and not R.C. 2903.12(A)(1). However, the judgment entry did not
correct the misstated section number from the December 2008 judgment.
{¶19} It is from his assault conviction and sentence that Junod appeals,
presenting the following assignments of error for our review.
Assignment of Error No. I
THE DEFENDANT’S CONSTITUTIONAL RIGHTS TO A
FAIR TRIAL AND DUE PROCESS OF LAW WERE TAKEN
AWAY BY PROSECUTORIAL MISCONDUCT.
Assignment of Error No. II
THE VERDICT WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶20} Before addressing Junod’s assignments of error, we first note that
the trial court failed to correct the December 2008 judgment entry to accurately
reflect the proper section of the Revised Code of which Junod was convicted.
Although the trial court filed an order correcting the November 2008 judgment
entry, the December 2008 entry is the judgment entry from which Junod appeals,
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as it lists both his conviction and sentence. See State v. Baker, 119 Ohio St.3d
197, 201, 2008-Ohio-3330 (judgment entry must contain both a sentence and
means of conviction to be a final appealable order under R.C. 2505.02). It is clear
that the trial court was aware of the proper Revised Code section of which Junod
was convicted, as it corrected the same mistake in the November 2008 entry;
however, due to an obvious oversight, the trial court failed to make the correction
to the December 2008 judgment. Accordingly, we find this oversight to be a mere
clerical error, which will allow the trial court to file a nunc pro tunc entry that lists
the proper Revised Code section of which Junod was convicted. See Crim.R. 36;
State v. Yeaples, 3d Dist. No. 13-08-14, 2009-Ohio-184, ¶15, citing State ex rel.
Cruzado v. Zaleski, 111 Ohio St.3d 353, 356, 2006-Ohio-5795; Gold Touch, Inc.
v. TJS Lab, Inc. (1998), 130 Ohio App.3d 106, 109.
Assignment of Error No. I
{¶21} In his first assignment of error, Junod argues that he was denied his
constitutional rights to a fair trial and due process of law as a result of
prosecutorial misconduct. Specifically, Junod contends that he was denied a fair
trial and due process of law when the State continued to ask leading questions on
direct examination despite admonition from the trial court; when the State was
permitted to present evidence on his prior intoxication in the presence of sheriff’s
deputies; when the trial court allowed the admission of prejudicial hearsay
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testimony elicited by the State; and, when the State charged him with multiple
offenses without sufficient evidence to prove his guilt in order to coerce him into
accepting a plea bargain. We disagree.
{¶22} ‘“[T]he test for prosecutorial misconduct is whether the [conduct
was] improper and, if so, whether the [conduct] prejudicially affected the
accused's substantial rights.’” State v. Crisp, 3d Dist. No. 1-05-45, 2006-Ohio-
2509, ¶10, quoting State v. Twyford, 94 Ohio St.3d 340, 354-55, 2002-Ohio-894.
Consequently, in order to grant a new trial for prosecutorial misconduct, we must
not merely find the acts of the prosecutor to be culpable, but we must find that the
acts detrimentally affected the fairness of the proceedings. Twyford, 94 Ohio
St.3d at 355, citing Smith v. Phillips (1982), 455 U.S. 209, 219.
{¶23} First, Junod asserts that the State’s use of leading questions
constituted prosecutorial misconduct and prejudiced his right to a fair trial. There
were several instances throughout the trial where the State asked leading questions
to its witnesses on direct examination, including asking Adrian if the police were
called to his house due to his argument with his wife, how he and his wife decided
to resolve their disagreement, and asking about Junod’s threat to him as Junod left
the Harruff residence. In all three of these instances, Junod’s trial counsel
objected, and the trial court sustained the objection. Even though the use of
leading questions is not generally permitted on direct examination pursuant to
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Evid.R. 611(C), the questions about the police being called to Adrian’s house and
how he and his wife resolved their disagreement are merely foundational
questions. Moreover, Junod himself testified to asking Adrian to come outside
and fight. As such, we do not find that these leading questions amounted to
prosecutorial misconduct or affected the fairness of the proceedings.
{¶24} Secondly, Junod asserts that prejudicial prosecutorial misconduct
occurred due to the State’s introduction of evidence on his prior intoxication in the
presence of sheriff’s deputies. At trial, the State questioned Sergeant Burke about
Junod’s condition when they went into his home to question him. Burke testified
that Junod appeared to be intoxicated, and the State asked Burke whether he had
previously observed Junod intoxicated, to which Burke responded that he had
observed Junod intoxicated on prior occasions. Junod’s trial counsel objected on
the grounds that the evidence was not relevant, but the trial court overruled the
objection after the State’s explanation that the purpose of the evidence was to
bolster the officer’s assessment of Junod’s intoxication based on his prior contact
and experience with Junod. The trial court gave Junod’s trial counsel the
opportunity to stipulate that Junod was intoxicated that evening to prevent the
testimony from being introduced, but his trial counsel refused.
{¶25} Evid.R. 404(B) provides that evidence of other crimes, wrongs, or
acts is inadmissible to prove the character of a person in order to show conformity
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therewith, unless it is offered for some other purpose. See, also, State v. Rogers,
3d Dist. No. 9-95-50, 1996 WL 197410. Furthermore, Evid.R. 402 provides that,
unless an exception applies, all relevant evidence is admissible. See, also, State v.
Hines, 3d Dist. No. 9-05-13, 2005-Ohio-6696, ¶28. Here, the State offered the
testimony of Junod’s prior intoxication for the relevant purpose of bolstering the
credibility of Sergeant Burke’s assessment that Junod was intoxicated that
evening, and not for the improper purpose of demonstrating that Junod had a
drinking problem in order to assert that he might also have had difficulty
controlling his anger, which led to the assault. Additionally, Junod declined the
opportunity to stipulate to the intoxication so this testimony would not be
admitted. Consequently, we find there to be no prosecutorial misconduct in
eliciting Sergeant Burke’s testimony, let alone conduct that might prejudice the
proceeding.
{¶26} Third, Junod contends that prosecutorial misconduct deprived him of
a fair trial when the state introduced hearsay testimony through the statements of
Deputy Ahlers that Adrian told him that he felt threatened by Junod when Junod
told Adrian that “he better have the $200 by tomorrow morning” and that “if
anybody went to his residence * * * he would take them out.” (Trial tr., vol. 2, p.
202-203). Junod’s trial counsel properly objected to the testimony, but the trial
court overruled the objection and permitted the testimony.
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{¶27} All hearsay is inadmissible unless if falls into one of the specified
exceptions under the rules of evidence, Evid.R. 802; State v. Brooks, 3d Dist. No.
4-08-09, 2008-Ohio-6188, ¶5, and, when a hearsay statement is included within a
hearsay statement, each statement must conform to an exception of the hearsay
rules to be admissible. Evid.R. 805. Evid. R. 801(C) defines hearsay as “a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.”
Additionally, Evid.R. 801(D)(2)(a) provides that a statement is not hearsay if it is
offered against a party and is the party’s own statement. See, also, State v.
Newcomb, 3d Dist. No. 8-01-07, 2001-Ohio-2325.
{¶28} Here, Adrian’s statement to Deputy Ahlers was Junod’s own
statement being offered against him, and, therefore, the statement was admissible
under Evid.R. 801(D)(2)(a). Furthermore, Deputy Ahler’s account of Adrian’s
statement was not offered to prove the truth of the matter asserted, but was offered
to show that the statement caused Adrian to believe that Junod would cause him
physical harm, one of the elements of menacing under R.C. 2903.22(A).
Accordingly, because the prosecutor’s elicitation of testimony was proper under
the hearsay rules, we find that this conduct does not amount to prosecutorial
misconduct.
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{¶29} Finally, Junod contends that prosecutorial misconduct denied him
his right to a fair trial when the State charged him with multiple offenses with
insufficient evidence to prove those offenses in order to persuade him to take a
plea bargain. Here, Junod was charged with one count each of assault, carrying a
concealed weapon, and menacing.3 These offenses are defined as follows:
Assault:
No person shall knowingly cause or attempt to cause physical
harm to another * * *.
R.C. 2903.13(A).
Carrying a Concealed Weapon:
(A) No person shall knowingly carry or have, concealed on the
person's person or concealed ready at hand, any of the
following:
(1) A deadly weapon other than a handgun
R.C. 2923.12(A)(1).
Menacing:
No person shall knowingly cause another to believe that the
offender will cause physical harm to the person or property of
the other person, * * * or a member of the other person's
immediate family.
R.C. 2903.22(A).
{¶30} Here, testimony was presented by Adrian that Junod struck him with
3
Although Junod was also charged with vehicular vandalism under R.C. 2909.09(B)(1), that charge is not
the subject of this appeal, as noted in footnote one.
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a cane multiple times, told Adrian in a threatening manner that he needed to give
him $200 by the following day, threatened to shoot him or his family members if
they came onto his property, and brought a cane containing a concealed knife
when he came to confront him. Although the trial court dismissed the concealed
weapon charge, and the jury found Junod not guilty on the menacing charge, we
find that sufficient evidence existed to for the State to charge Junod with these
offenses. Consequently, we find no prosecutorial misconduct in charging Junod
with multiple offenses, let alone the necessary prejudice to warrant a new trial.
{¶31} Because we find there to be no prosecutorial misconduct in the
State’s use of leading questions, the State’s elicitation of testimony, or the State’s
decision to charge Junod with multiple offenses, we also find to be without merit
Junod’s argument that this conduct denied him his right to a fair trial.
{¶32} Accordingly, we overrule Junod’s first assignment of error.
Assignment of Error No. II
{¶33} In his second assignment of error, Junod argues that his conviction is
against the manifest weight of the evidence. Specifically, he contends that the
evidence supports a finding that he sustained his burden of proof on his self-
defense claim, and, consequently, that he should have been acquitted of the assault
charge. We disagree.
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{¶34} When an appellate court analyzes a conviction under the manifest
weight standard, it must review the entire record, weigh all of the evidence and all
of the reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the fact finder 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. Tompkins, 78 Ohio St.3d 380,
387, 1997-Ohio-52, superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-335, quoting State v. Martin
(1983), 20 Ohio App.3d 172, 175. Only in exceptional cases, where the evidence
“weighs heavily against the conviction,” should an appellate court overturn the
trial court’s judgment. Id.{¶35} In reviewing the testimony presented at trial, we find there to be
substantial evidence to support Junod’s assault conviction. Not only did Adrian
testify to the details of Junod’s assault on him, including that he did not draw a
knife or threaten Junod, but Leah also testified to the same details of the assault,
also stating that Adrian did not pull out a knife to threaten Junod. Although
Adrian and Leah are husband and wife, and, as such, could have a motive to
fabricate and corroborate their testimony, such a scenario seems unlikely, as their
testimony was also supported by Harruff, who testified that Junod hit Adrian with
a cane multiple times, and that he did not see Adrian draw a knife on Junod.
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Case No. 2-09-03
{¶36} Furthermore, Junod’s assault conviction is supported by the
testimony of Sergeant Burke and Deputy Ahlers. Sergeant Burke testified that
Junod told him that he meant to hurt Adrian, and that Junod never mentioned to
him that Adrian drew a knife on him, or that he assaulted Adrian in self-defense.
Also, Deputy Ahlers testified that Junod never mentioned during the interrogation
that Adrian drew a knife on him, or that his assault of Adrian was in self-defense.
{¶37} In support of his defense, the only evidence presented by Junod that
his assault on Adrian was in self-defense was his own testimony that Adrian drew
a knife on him when he confronted Adrian about the missing $200. While Junod
and Travis both testified to Adrian’s “quick drawing” skills, and Junod testified to
Adrian’s propensity for violence, there was no other evidence presented to
corroborate Junod’s testimony that the assault was in self-defense, in spite of the
fact that four other individuals witnessed the altercation.
{¶38} Accordingly, we overrule Junod’s second assignment of error.
{¶39} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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