DocketNumber: Court of Appeals No. OT-02-039, Trial Court No. 00-CR-044.
Judges: HANDWORK, P.J.
Filed Date: 1/9/2004
Status: Non-Precedential
Modified Date: 4/17/2021
{¶ 2} "I. The trial court's sentence is contrary to law and the trial court committed prejudicial error and abused it's discretion in sentencing appellant to a term of imprisonment rather than sentencing him to community control sanctions.
{¶ 3} "II. The trial court committed prejudicial error and abused it's discretion in admitting into evidence a letter written by appellant to his daughter, Brandi Slag."
{¶ 4} Appellant was charged with failing to support his two children from July 1, 1994, through June 30, 1996. Following a jury trial appellant was convicted of all of the counts, two felonies of the fourth degree and four felonies of the fifth degree. Appellant was sentenced to six months imprisonment on each count, and the sentences were to be served concurrently.
{¶ 5} In his first assignment of error, appellant argues that the trial court erred by sentencing him to a term of imprisonment rather than to community control sanctions.
{¶ 6} R.C.
{¶ 7} Before the court could sentence appellant in this case on the fourth and fifth degree felonies, it was required to consider if any of the factors of R.C.
{¶ 8} While the court found it could make "a good argument * * * the Defendant in fact did physical harm to persons, his daughter," it could only conclude that he caused psychological harm. Because psychological harm is not physical harm, the court could not find that any of the factors of R.C.
{¶ 9} Therefore, the court was not required to sentence appellant to a prison term or community control sanction under the requirements of R.C.
{¶ 10} We find that the trial court properly sentenced appellant. A community control sanction was not a feasible sanction because appellant lived outside the court's jurisdiction. Following R.C.
{¶ 11} In his second assignment of error, appellant argues that the trial court erred when it admitted into evidence a letter from appellant to his daughter wherein appellant threatened that he would not support her if she chose to live with her mother. The prosecution had failed to disclose the letter prior to trial stating that it had received the letter the morning of trial. Appellant argues that he should have at least received a copy of the letter before trial began and that it would have affected his decision not to testify at trial. Appellant argues that a continuance offered by the trial court would not have cured the prejudice.
{¶ 12} Crim.R. 16(E)(3) provides that if a party does not comply with the discovery rules, "* * * the court may order such party to permit the discovery or inspection, grant a continuance or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances."
{¶ 13} Generally, it is proper for the court to admit the item into evidence unless the record indicates that the failure to disclose was willful, the defendant would have benefited from knowledge of the item prior to trial, and admission of the item unfairly prejudiced the defense. State v. Parson (1983),
{¶ 14} First, the letter was written by appellant. He was, therefore, aware of its existence and could expect that it might be admitted at trial. Second, appellant's wife and daughter both testified that they recalled appellant's threat of non-support. Therefore, appellant was not unfairly prejudiced by the admission of the letter into evidence. Finally, while appellant objected to the admission of the letter at trial and requested a continuance to remedy the situation, he later rejected the court's offer to grant him a continuance. Therefore, appellant withdrew his objection. Evid.R. 103(A)(1) requires that error be predicated upon a specific objection at trial. Appellant does not assert on appeal that this alleged error rises to the level of plain error.
{¶ 15} Therefore, we find that the trial court did not abuse its discretion in admitting the letter into evidence. Appellant's second assignment of error is not well-taken.
{¶ 16} Having found that the trial court did not commit error prejudicial to appellant, the judgment of the Ottawa County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is hereby ordered to pay the court costs incurred on appeal.
JUDGMENT AFFIRMED.
Knepper and Lanzinger, JJ., concur.