DocketNumber: C.A. NOS. 00CA007638.
Judges: BATCHELDER, Presiding Judge.
Filed Date: 4/25/2001
Status: Non-Precedential
Modified Date: 4/17/2021
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Appellant, Daniel L. Nixon, Sr., appeals his conviction in the Lorain County Court of Common Pleas. We affirm in part and reverse in part.
Ms. Nixon worked as an exotic dancer at Bugsy's Speakeasy ("Bugsy's"). According to Ms. Nixon, prior to the evening in question, Mr. Nixon began pressuring her to solicit men from Bugsy's for private dances and sexual favors for money, which were to be performed at the Nixon residence. Late in the evening of February 19, 1999, Ms. Nixon returned to the 5th Street residence after dancing at Bugsy's, and then, she and Mr. Nixon went to several bars looking for men who would be interested in a private dance. Eventually, they went to Mom's Open Kitchen, where Ms. Nixon approached Ted Squires, who was a patron of Bugsy's, and invited him back to the residence. Both Ms. Nixon and Mr. Squires testified that although they had known each other for several years, they had never had sexual relations with one another prior to that night.
Between approximately 2:00 to 3:00 a.m. on February 20, 1999, they arrived at the 5th Street residence and began drinking, listening to music, and ingesting cocaine, which was provided by Mr. Squires. They continued until approximately 7:00 a.m. when Mr. Nixon and Mr. Squires decided to purchase more beer, as their supply of both cocaine and beer had been depleted. At that time, Mr. Squires withdrew approximately fifty dollars from the ATM.
When they returned to the 5th Street residence, Ms. Nixon put on a dancing costume and began dancing on a makeshift stage in their dining room at Mr. Nixon's request. According to Mr. Squires, he kept telling Mr. Nixon that he had no money. After a few dances, Mr. Nixon began kissing Ms. Nixon. All three of them moved into the living room, where Ms. Nixon allowed Mr. Squires to perform cunnilingus on her. She testified that she had misgivings about the entire situation and started to cry, but that Mr. Nixon told her to perform oral sex on Mr. Squires. She performed oral sex on Mr. Squires for a few seconds before Mr. Squires asked her to stop. Mr. Nixon became instantly enraged and hit Mr. Squires on the back of the head with sufficient force to knock him nearly unconscious. Mr. Nixon continued to beat Mr. Squires while he was on the floor. Mr. Nixon ranted about Mr. Squires not finding Ms. Nixon attractive and that he had to pay her for the oral sex. After repeated threats of further violence, Mr. Squires gave Mr. Nixon all of his money.
Mr. Nixon grabbed a baseball bat and repeatedly swung it at Mr. Squires and Ms. Nixon, sometimes coming within inches of their heads. At some point, Mr. Nixon struck Ms. Nixon on the toe or foot with the bat. He also repeatedly threatened to kill them. Although Mr. Squires attempted to leave at one point, Mr. Nixon would not let him and blocked the front door by standing in front of it with the bat in hand. Both victims testified that Mr. Nixon was restraining them against their will.
Mr. Squires testified that Mr. Nixon ordered them into the bedroom, where he made Mr. Squires disrobe and lie on the bed. Mr. Nixon threatened to kill Ms. Nixon if Mr. Squires were to attempt to leave. Mr. Squires stated that Mr. Nixon had the baseball bat with him the entire time. On the other hand, Ms. Nixon testified that Mr. Nixon permitted her to go to the bedroom because she was tired, but a short time later, Mr. Nixon and Mr. Squires appeared. Mr. Nixon then informed her that they wanted to have "fun[.]" She refused.
Although Ms. Nixon's and Mr. Squires' testimonies differed as to how they arrived in the bedroom, their testimonies were consistent regarding the events which subsequently occurred there. Mr. Nixon hit Ms. Nixon and choked her, at first with his hands and then with the baseball bat. Ms. Nixon testified that he choked her until she lost consciousness and that when she regained consciousness, Mr. Nixon told her that she was going to be his "whore[.]" Both Mr. Squires and Ms. Nixon testified that Mr. Nixon forced her to perform oral sex on Mr. Squires, by slamming her head between Mr. Squire's legs, while Mr. Squire's penis was in her mouth. Mr. Nixon also forced her to perform oral sex on him. In addition, Mr. Nixon forcibly penetrated her vaginally and anally with his penis and anally penetrated her with a vibrator. All of these acts were done without either victim's consent.
Mr. Nixon subsequently locked them in the bedroom, at which time, they unsuccessfully attempted to break the window. Mr. Nixon then ordered them into the living room, continued to threaten them, and demanded that Ms. Nixon take a shower and get cleaned-up because he wanted to have more "fun[.]" As she was showering, Mr. Nixon came in, slapped her, and told her to start applying her make-up. At one point, Ms. Nixon noticed that Mr. Nixon's attention was diverted, so she ran naked out of the front door and proceeded to a neighbor's house. Mr. Nixon chased after her. Left unguarded, Mr. Squires ran out and got into his automobile. The neighbor, Dave Robbins, gave Ms. Nixon some clothing and called the police.
As Mr. Squires was pulling out of the driveway, Mr. Nixon jumped into the passenger's seat. Mr. Squires drove to an intersection, where he saw a local law enforcement officer on a routine traffic stop. Mr. Squires exited the vehicle, taking his keys with him. When Mr. Nixon exited the vehicle, Mr. Squires got back in and drove to the police officer's location.
Officers of the City of Elyria Police Department arrested Mr. Nixon that day and conducted a search of the 5th Street residence, pursuant to written consent given by Ms. Nixon. Items, such as the baseball bat and the vibrator, were seized pursuant to the search and admitted into evidence at trial. Detective Al Leiby of the City of Elyria Police Department interviewed Mr. Nixon on February 20, 1999. Mr. Nixon told Detective Leiby a vastly different story, stating that he was absent from the residence most of the night and that when he returned the next day, there was a wild party progressing and he was attacked by the party-goers. Detective Leiby testified that after the tape recorder was turned off, Mr. Nixon admitted to having been present at the residence the entire night, but declined to make any further statements.
On May 11, 1999, the Lorain County Grand Jury indicted Mr. Nixon on two counts of rape, in violation of R.C.
THE TRIAL COURT ERRED WHEN IT PERMITTED THE STATE TO INTRODUCE EVIDENCE OF OTHER "BAD" ACTS BY DEFENDANT-APPELLANT IN VIOLATION OF OHIO RULE OF EVIDENCE 404(B) AND OHIO REVISED CODE §2945.59 , THEREBY DENYING DEFENDANT-APPELLANT HIS RIGHTS UNDER THEFIFTH ,SIXTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLEI , SECTION10 OF THE OHIO CONSTITUTION.
In his first assignment of error, Mr. Nixon asserts that the trial court erred in permitting the state to introduce evidence of an incident that occurred approximately one week prior to the crime charged in the instant action, during which Mr. Nixon solicited a patron of Bugsy's for a private dance with Ms. Nixon and assaulted the patron when Ms. Nixon refused to continue dancing. He argues that this violated Evid.R. 404(B) and R.C.
"`The trial court has broad discretion in the admission * * * of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, [an appellate] court should be slow to interfere.'" (First alteration original.) State v.Maurer (1984),
Generally, evidence of prior criminal acts, wholly independent of the crime for which defendant is on trial, is inadmissible. State v.Thompson (1981),
In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
Similarly, Evid.R. 404(B) states that
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Evid.R. 404(B) is in accord with R.C.
In the case at bar, Ms. Nixon testified that approximately one week prior to the events that gave rise to the charges in the present case, Mr. Nixon solicited a patron of Bugsy's for a private dance with Ms. Nixon. He informed the patron that he had a dancer that was willing to do whatever he told her to do. Mr. Nixon brought the individual to his residence where Ms. Nixon was to dance on a makeshift stage in their dining room. When they arrived, Ms. Nixon was asked to put on an outfit and to model or dance for them. Ms. Nixon began to comply, but then, became upset, slapped Mr. Nixon, and refused to be his "whore[.]" Mr. Nixon stood up and "sucker-punched" the other man, who then put Mr. Nixon in a choke hold and would not release Mr. Nixon until he promised not to hurt Ms. Nixon when the man was gone. Ms. Nixon testified that she begged the man not to leave her alone because she was afraid of what Mr. Nixon would do, but the man left anyway.
At trial, the state argued that this testimony was admissible pursuant to the common plan, scheme, or system exception. The trial court found the contested evidence to be admissible upon Mr. Nixon's objection at trial.
"Scheme, plan or system" evidence is relevant in two general factual situations. First, those situations in which the "other acts" form part of the immediate background of the alleged act which forms the foundation of the crime charged in the indictment. In such cases, it would be virtually impossible to prove that the accused committed the crime charged without also introducing evidence of the other acts. To be admissible pursuant to this sub-category of "scheme, plan or system" evidence, the "other acts" testimony must concern events which are inextricably related to the alleged criminal act.
State v. Curry (1975),
We find that the evidence of Mr. Nixon's prior act provides inextricably related background information necessary to give a complete picture of the crimes charged and tends to show Mr. Nixon's motive for reacting violently against his victims. In the prior incident, when Ms. Nixon refused to comply with Mr. Nixon's requests to perform sexual favors, Mr. Nixon became violent and struck the patron, who curtailed Mr. Nixon's violent outburst by placing him in a chokehold. This incident tends to show Mr. Nixon's motive to punish Ms. Nixon and react even more violently when Ms. Nixon again expressed an unwillingness to prostitute herself at his insistence during the second incident. Moreover, the first incident provided necessary background for the heightened degree of violence and perversion in the second incident. We, therefore, cannot find that the trial court abused its discretion in admitting the aforementioned testimony. Furthermore, we conclude that, as there was overwhelming evidence of Mr. Nixon's guilt, any error in the admission of such testimony was harmless beyond a reasonable doubt. Accordingly, Mr. Nixon's first assignment of error is overruled.
THE TRIAL COURT ERRED BY FAILING TO GRANT DEFENDANT-APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AS TO THE SECOND COUNT OF THE INDICTMENT, RAPE IN VIOLATION OF REVISED CODE §2907.02 .
THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
In his second assignment of error, Mr. Nixon contends that the trial court erred in denying his motion for acquittal of the rape of Mr. Squires because he did not engage in any sexual conduct, as defined in R.C.
Crim.R. 29(A) Motion for Acquittal
Crim.R. 29(A) provides that a trial court "shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." A trial court may not grant an acquittal by authority of Crim.R. 29(A) if the record demonstrates that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt.State v. Wolfe (1988),
Mr. Nixon was indicted, in terms of the principal offense, for the rape of Mr. Squires, pursuant to R.C.
DANIEL L. NIXON, SR. * * * on or about February 20, 1999, did engage in sexual conduct with Ted Squires, who is not the spouse of DANIEL L. NIXON, SR.,2 the said DANIEL L. NIXON, SR. having purposely compelled the said Ted Squires to submit by force or threat of force[.]
(Emphasis added.) Although the indictment charged Mr. Nixon in terms of the principal offense, the state was able to pursue a charge of complicity to commit rape, as "[a] charge of complicity may be stated in terms of this section, or in terms of the principal offense." R.C.
The provision of the complicity statute applicable to the instant matter is R.C.
With the applicable law in mind, we now turn to the facts of the casesub judice. During the state's case-in-chief, Ms. Nixon and Mr. Squires testified that Mr. Nixon physically compelled Ms. Nixon to perform fellatio on Mr. Squires. Both testified that this act was done against their will. As previously discussed, at the close of the state's case-in-chief, the state still had the option of pursuing a charge of complicity to commit rape in addition to or rather than a charge in terms of the principal offense. See Keenan,
"A reversal based on the weight of the evidence can occur only after the State both has presented sufficient evidence to support conviction and has persuaded the jury to convict." Tibbs v. Florida (1982),
The Ohio Supreme Court has set forth the applicable standard for determining whether a conviction is supported by legally sufficient evidence: "[t]he 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 (1991), 61 Ohio St.3d at paragraph two of the syllabus. If the conviction is not sustained by sufficient evidence as a matter of law, retrial is barred under principles of double jeopardy.State v. Thompkins (1997),
As previously discussed, there was sufficient evidence to convict Mr. Nixon of complicity to commit rape of Mr. Squires for forcing his victims to engage in fellatio; however, Mr. Nixon was not convicted of complicity to commit rape, but rather, was convicted on the principal offense of rape. At trial, the state did not request an instruction on complicity and the trial court did not give such an instruction. We note that it is the trial court's obligation to "`give all instructions that are relevant and necessary for the jury to weigh the evidence and discharge its duty as the factfinder.'" State v. Cornwell (1999),
In Count Two of the indictment, the defendant is charged with rape.
Before you can find the defendant guilty of the offense charged in Count Two, you must find, by proof beyond a reasonable doubt, that the State of Ohio has proved [sic] all of the essential elements of the offense charged in Count Two, which are: (1) On or about February 20, 1999 (2) the defendant, Daniel L. Nixon, Sr. (3) did engage in sexual conduct with Ted Squires, who was not his spouse (4) by purposely compelling Ted Squires to submit by force or threat of force; and (5) that it happened in Lorain County, Ohio.
Since the jury was not instructed on complicity and found Mr. Nixon guilty of the principal offense of rape, this court must, therefore, determine whether there was sufficient evidence to support Mr. Nixon's conviction as the principal offender for the rape of Mr. Squires.
After an extensive review of the record, we must conclude that there is insufficient evidence as a matter of law to support Mr. Nixon's conviction for the principal offense of rape of Mr. Squires. Specifically, there is no evidence in the record that Mr. Nixon ever personally engaged in sexual conduct, as defined in R.C.
THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT-APPELLANT'S PRO S.E. MOTION TO DISCHARGE DEFENDANT PURSUANT TO REVISED CODE §§2945.71 AND2945.73 , THESIXTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLEI , SECTION10 OF THE OHIO CONSTITUTION.
In his third assignment of error, Mr. Nixon avers that he was not given a speedy trial, as guaranteed by the
The right to a speedy trial is guaranteed by the
R.C.
In the present case, Mr. Nixon argues that the state did not produce sufficient evidence of a parole holder, and therefore, the triple-count provisions should apply, and accordingly, the charges against him should be dismissed. Mr. Nixon, however, raises this argument for the first time on appeal. In Brown,
there was other sufficient evidence of the parole holder for the trial court to deny Brown's motion to dismiss. The transcripts of the hearing on the motion to dismiss [during which defense counsel did not dispute the existence of a parole holder] and the in-chambers conference on the day of trial [during which the trial court overruled the motion to dismiss, apparently based on the existence of a parole holder, and during which Brown's counsel did not assert that there was no parole holder] provide sufficient evidence of a parole holder.
Id. at 482.
In the case sub judice, Mr. Nixon's counsel raised the issue of whether there was sufficient evidence of a parole holder for the first time on appeal; therefore, we must presume the set of facts that validates the trial court's judgment. See id. at 481. Here, the state produced a copy of the "Order of Hold," issued on February 22, 1999, in its brief in opposition to Mr. Nixon's motion to discharge. Further, during the hearing on the motion to discharge, Mr. Nixon never denied that he was on parole at that time and did not argue that the initial institution of the order of hold was invalid. Moreover, in his memorandum in support of his motion to dismiss, Mr. Nixon admitted that a parole detainer was placed upon him on February 22, 1999. Consequently, we conclude that this evidence was sufficient to establish that a valid parole holder was placed upon Mr. Nixon on February 22, 1999. See id. at 482.
In the alternative, Mr. Nixon contends that the detainer expired or became invalid when he was not given an on-site (preliminary) hearing within ten days of his detention pursuant to Ohio Adm. Code
Here, the record reflects that a municipal court judge conducted a preliminary hearing, found that probable cause existed as to certain charges, and bound Mr. Nixon over to the grand jury. Moreover, the grand jury subsequently indicted Mr. Nixon on two counts of rape and four counts of kidnapping, among others charges. Accordingly, we conclude that the trial court did not err in finding that a valid parole holder existed and that, therefore, the triple-count provisions of R.C.
As Mr. Nixon was incarcerated for over 450 days while awaiting trial, we next turn to consider whether any of the tolling provisions of R.C.
The time within which Mr. Nixon must have been brought to trial was tolled by the following events: 1) on June 29, 1999, pretrial was continued at Mr. Nixon's request and was subsequently held on July 13, 1999; 2) on August 10, 1999, Mr. Nixon filed a motion to determine his competency to stand trial and changed his plea to not guilty by reason of insanity ("NGRI"). He withdrew his NGRI plea on October 26, 1999; 3) Mr. Nixon also filed two separate motions to suppress on July 19, 1999 and September 20, 1999; and lastly, 4) Mr. Nixon moved to dismiss on November 29, 1999 — a hearing on the matter was promptly held on December 20, 1999 and further briefing on the issue was requested by the trial court. After doing the calculations, we find that Mr. Nixon was brought to trial within 270 days as prescribed by R.C
THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE THE KIDNAPPING COUNTS WITH THE RAPE COUNTS, THE DOMESTIC VIOLENCE COUNT WITH THE FELONIOUS ASSAULT COUNT AND THE AGGRAVATED MENACING COUNT WITH THE COUNT SIX KIDNAPPING COUNT IN VIOLATION OF THEFIFTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLEI , SECTION10 OF THE OHIO CONSTITUTION AND REVISED CODE §2941.25 .
In his fourth assignment of error, Mr. Nixon argues that failing to merge various offenses, pursuant to R.C.
The Double Jeopardy Clauses of the United States and Ohio Constitutions protect criminal defendants from multiple punishments for the same offense. State v. Rance (1999),
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
In determining whether two crimes are allied offenses of similar import, the Ohio Supreme Court has stated:
With its multiple-count statute Ohio intends to permit a defendant to be punished for multiple offenses of dissimilar import. R.C.
2941.25 (B); State v. Blankenship (1988),38 Ohio St. 3d 116 ,117 ,526 N.E.2d 816 ,817 . If, however, a defendant's actions "can be construed to constitute two or more allied offenses of similar import," the defendant may be convicted (i.e. found guilty and punished) of only one. R.C.2941.25 (A). But if a defendant commits offenses of similar import separately or with a separate animus, he may be punished for both pursuant to R.C.2941.25 (B). State v. Jones (1997),78 Ohio St. 3d 12 ,13-14 ,676 N.E.2d 80 ,81 .* * * The applicable test for deciding that issue is as follows: If the elements of the crimes "`correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import.'" Id. at 13,
676 N.E.2d at 81 , quoting Blankenship,38 Ohio St.3d at 117 ,526 N.E.2d at 817 . If the elements do not so correspond, the offenses are of dissimilar import and the court's inquiry ends — the multiple convictions are permitted. R.C.2941.25 (B). See, also, State v. Mughni (1987),33 Ohio St. 3d 65 ,68 ,514 N.E.2d 870 ,873 .
(Emphasis original.) Rance,
We must first determine whether in the abstract, the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, and therefore, the crimes are of similar import. Id. at 636. If they are offenses of similar import, then we must determine whether the defendant committed those offenses separately or with a separate animus. Id. If the offenses were committed separately or with a separate animus, the defendant may be punished for both offenses. Id. No one factor is dispositive in determining whether there were separate acts or animi. State v. Jones
(1997),
Mr. Nixon first asserts that his convictions for rape and kidnapping must be merged, as they are allied offenses of similar import. Mr. Nixon was convicted of kidnapping, in violation of R.C.
This court has recognized that convictions for kidnapping and rape are allied offenses of similar import. Fields, supra, at 10. Therefore, we must determine whether under the facts of this case, the offenses of rape and kidnapping of Ms. Nixon, as contained in counts one and five of the indictment, were committed separately or with a separate animus. We find that they were.
The Ohio Supreme Court has held that with regard to kidnapping and another offense:
(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions;(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in the risk of harm separate and apart from that involved in the underlying crime * * *.
State v. Logan (1979),
Here, Mr. Nixon kidnapped Ms. Nixon when he prevented her from leaving the house by wielding a bat and threatening to kill her. Ms. Nixon remained in the house against her will for many hours, being moved from room to room at Mr. Nixon's command. At one point during that time, Mr. Nixon vaginally, orally, and anally raped her in the bedroom. Hence, we conclude that as Ms. Nixon's restraint continued over many hours and was not merely incidental to the rape, the rape and kidnapping of Ms. Nixon were committed with separate animi, and thus, Mr. Nixon could be punished for both offenses.
We decline to address whether count two (the rape of Mr. Squires) and count four (kidnapping of Mr. Squires) must be merged, as our reversal of the rape conviction contained in count two, renders the issue moot. See App.R. 12(A)(1)(c).
Next, Mr. Nixon contends that his convictions for domestic violence and felonious assault should have been merged by the trial court, as Ms. Nixon was assaulted only once. Ms. Nixon, however, was assaulted multiple times by Mr. Nixon on February 20, 1999. She testified that, at one point, Mr. Nixon came into the bedroom, said he wanted to have more "fun," and when she refused, he hit her with his fist and choked her. She also testified that while she was showering, Mr. Nixon struck her because she was not getting cleaned-up quickly enough. Both these incidents could constitute domestic violence, as Ms. Nixon was a household member at that time. Further, both Mr. Squires and Ms. Nixon related that at another time, Mr. Nixon, while threatening to kill them and swinging the baseball bat, struck Ms. Nixon with the bat. This incident is sufficient to constitute felonious assault, in violation of R.C.
Lastly, Mr. Nixon urges us to find that count six (kidnapping), in violation of R.C.
Accordingly, Mr. Nixon's fourth assignment of error is overruled in part and rendered moot in part.
THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT-APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM DEFENDANT-APPELLANT'S HOME AS A RESULT OF A WARRANTLESS SEARCH IN VIOLATION OF DEFENDANT-APPELLANT'SFOURTH ANDFOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION.
In his sixth assignment of error, Mr. Nixon contends that the trial court erred in denying his motion to suppress the evidence seized from his home, pursuant to a warrantless search. Specifically, he argues that Ms. Nixon did not have authority to consent to the search because she did not sign the lease and did not make any utility payments. We disagree.
The
In the present case, we find that Ms. Nixon possessed authority to give consent to search the 5th Street residence on February 20, 1999. At the suppression hearing, officers of the Elyria Police Department testified that they obtained Ms. Nixon's voluntary written consent to search 254 5th Street, based on her representations that she lived there with her ex-husband, Mr. Nixon. Mr. Nixon's testimony was consistent with this information. He testified that both he and Ms. Nixon moved into the 5th Street residence approximately two weeks prior to February 20, 1999 and that their daughter and Ms. Nixon's son also resided there. All four individuals kept their clothing at the residence. Mr. Nixon further testified that Ms. Nixon and the children had access to all rooms in the property. Consequently, we hold that the trial court did not err in denying Mr. Nixon's motion to suppress. Mr. Nixon's sixth assignment of error is overruled.
THE TRIAL COURT ERRED BY ORDERING CONSECUTIVE SENTENCES WHEN IT FAILED TO MAKE ALL THE NECESSARY FINDINGS REQUIRED BY REVISED CODE §2929.14 (E)(4), AND FAILED TO GIVE ANY REASONS FOR THE FINDINGS IT DID MAKE.
In his fifth assignment of error, Mr. Nixon contends that the trial court did not make the statutorily required findings when it sentenced him to consecutive terms of imprisonment. Mr. Nixon also asserts that the trial court's statements at the sentencing hearing and in the journal entry, reciting the court's decision and reasoning, were insufficient to fulfill the statutorily required findings for imposition of consecutive sentences. We disagree.
Our standard of review is controlled by R.C.
R.C.
(E)(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:(a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) The harm caused by the multiple offences was so great or unusual that no single prison term for any of the offences committed as part of a single course of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
"This Court has already extended the rationale of Edmonson to require the trial court to make findings and give its reasons to support the imposition of consecutive sentences." State v. Riggs (Oct. 11, 2000), Summit App. No. 19846, unreported, at 2. This court may review both the transcript of the sentencing hearing and the journal entry in determining whether the trial court has complied with Edmonson. Id. at 3-4.
In the instant case, we find that the trial court made all of the requisite findings in its sentencing entry6 for imposing consecutive sentences. The trial court found that "[c]onsecutive sentences are necessary to protect the public from future crime or to punish the defendant and [are] not disproportionate to the seriousness of the defendant's conduct and the danger the defendant poses to the public." It also concluded that all of the reasons enumerated in R.C.
The court also gave sufficient reasons to support its findings, stating that the crimes committed were unusually perverse because he forced two unwilling people to engage in sexual activities and because he "forced [his] former wife, the mother of [his] children, into prostitution, and perverted sex, and said it was fun." Accordingly, we hold that the trial court made the statutorily required findings and gave sufficient reasons to support its findings when it sentenced him to consecutive terms of imprisonment. Mr. Nixon's fifth assignment of error is overruled.
THE TRIAL COURT ERRED WHEN IT REQUIRED DEFENDANT-APPELLANT TO GO FORWARD ON THE HEARING ON THE DETERMINATION OF HIS SEXUAL PREDATOR STATUS IMMEDIATELY UPON RECEIVING THE VERDICT IN THE CASE WITHOUT PROVIDING DEFENDANT-APPELLANT WITH NOTICE OF THE TIME AND PLACE OF THE HEARING IN VIOLATION OF REVISED CODE §2950.09 (B)(1), THEREBY DENYING DEFENDANT-APPELLANT HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THESIXTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLEI , SECTION10 OF THE OHIO CONSTITUTION.
In his seventh assignment of error, Mr. Nixon argues that the trial court erred when it required Mr. Nixon to go forward with the sexual offender classification hearing without proper advance notice of the hearing issued to the parties, pursuant to R.C
R.C.
the judge who is to impose sentence upon the offender shall conduct a hearing to determine whether the offender is a sexual predator. The judge shall conduct the hearing prior to sentencing and, if the sexually oriented offense is a felony, may conduct it as part of the sentencing hearing required by section2929.19 of the Revised Code. The court shall give the offender and the prosecutor who prosecuted the offender for the sexually oriented offense notice of the date, time, and location of the hearing.
(Emphasis added.) "Defendants must have notice of the hearing in order to `have an opportunity to testify, present evidence, call and examine witnesses and expert witnesses, and cross-examine witness and expert witnesses regarding the determination as to whether the offender is a sexual predator.'" State v. Gowdy (2000),
In the present case, Mr. Nixon was not given proper advance notice of the sexual offender classification hearing. Immediately after the verdict was rendered and the jury discharged, the trial court informed defense counsel that it intended to proceed with the sexual offender classification hearing without delay. Defense counsel objected due to lack of notice of the hearing. Nevertheless, the hearing was held that day, and the trial court adjudicated Mr. Nixon a sexual predator a few days later at the sentencing hearing. Accordingly, we conclude that Mr. Nixon was not given proper advance notice of the sexual offender classification hearing pursuant to R.C.
DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THESIXTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLEI , SECTION10 OF THE OHIO CONSTITUTION.A. COUNSEL'S PERFORMANCE WAS BELOW AN OBJECTIVE STANDARD OF REASONABILITY DUE TO HIS FAILURE TO REQUEST THE MERGER OF THE KIDNAPPING COUNTS WITH THE RAPE COUNTS, THE DOMESTIC VIOLENCE COUNT WITH THE FELONIOUS ASSAULT COUNT AND THE AGGRAVATED MENACING COUNT WITH THE COUNT SIX KIDNAPPING COUNT.
B. COUNSEL'S PERFORMANCE WAS BELOW AN OBJECTIVE STANDARD OF REASONABILITY DUE TO HIS FAILURE TO OBJECT TO THE ADMISSION OF EVIDENCE SEIZED FROM DEFENDANT-APPELLANT'S HOME.
C. COUNSEL'S PERFORMANCE WAS BELOW AN OBJECTIVE STANDARD OF REASONABILITY DUE TO HIS FAILURE TO ASCERTAIN THE TIME AND PLACE OF THE HEARING ON THE SEXUAL OFFENDER CLASSIFICATION, TO BE PREPARED TO PROCEED FORWARD WITH THE HEARING IMMEDIATELY AFTER THE VERDICT WAS RETURNED AND HIS FAILURE TO PROPERLY PLACE UPON THE RECORD THE EVIDENCE AND TESTIMONY WHICH WOULD HAVE BEEN PRESENTED HAD HE BEEN GIVEN NOTICE OF THE HEARING.
D. COUNSEL'S PERFORMANCE WAS BELOW AN OBJECTIVE STANDARD OF REASONABILITY DUE TO HIS FAILURE TO CHALLENGE THE TRIAL COURTS [sic] DETERMINATION AS TO THE EXISTENCE OR LACK OF SAME OF INCONSISTENCIES BETWEEN STEPHANIE NIXON'S TRIAL TESTIMONY AND HER PRIOR STATEMENT TO THE POLICE.
In his eighth assignment of error, Mr. Nixon avers that he was denied the effective assistance of trial counsel, as guaranteed by the United States and Ohio Constitutions. He points to four specific instances of alleged ineffectiveness: 1) his counsel's failure to request the merger of specific counts in the indictment, 2) his counsel's failure to object to the admission of evidence seized from his residence, 3) his counsel's failure to ascertain the time and place of the sexual predator hearing, and 4) his counsel's failure to challenge the trial court's determination as to the inconsistencies between Ms. Nixon's trial testimony and her prior tape-recorded statement to the police. We disagree.
A two-step process is employed in determining whether the right to effective counsel has been violated.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by theSixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington (1984),
First, Mr. Nixon urges that he was denied the effective assistance of trial counsel when his trial counsel failed to raise the issue of the merger of certain counts before the trial court. As previously discussed, the merger of various counts in the indictment would be inappropriate in this case; therefore, we conclude that trial counsel's performance was not deficient and that even if counsel's performance were deficient, it did not prejudice the defense.
Next, Mr. Nixon argues that he was denied the effective assistance of counsel due to his trial counsel's failure to object to the admission of evidence seized from the 5th Street residence. As previously noted, the trial court properly denied Mr. Nixon's motion to suppress, as the search was conducted pursuant to valid consent obtained from Ms. Nixon. Hence, we conclude that trial counsel's performance in this matter was not deficient and did not prejudice the defense.
In addition, Mr. Nixon avers that his trial counsel should have ascertained the time and date of the sexual offender classification hearing, so that he could present a meaningful defense to the sexual predator classification. As previously discussed, we have vacated Mr. Nixon's classification as a sexual predator and remanded this cause for a sexual offender classification hearing with proper notice to the parties; therefore, we decline to address this portion of this assignment of error, as it has been rendered moot by our disposition of Mr. Nixon's seventh assignment of error. See App.R. 12(A)(1)(c).
Lastly, Mr. Nixon contends that his trial counsel failed to object to the trial court's determination that there were only minor inconsistencies between Ms. Nixon's trial testimony and the prior tape-recorded statement made by her to Detective Al Leiby, and therefore, he was denied the effective assistance of counsel. We disagree. Following Ms. Nixon's direct testimony, an in camera review of her audio-taped statement to police was held. The trial court found that only one minor inconsistency existed. Mr. Nixon asserts that because his trial counsel did not object to the trial court's determination, his counsel was ineffective. However, Mr. Nixon's counsel continued to attempt to introduce the alleged inconsistencies between Ms. Nixon's trial testimony and her prior statement, during his cross-examination of Detective Leiby. When the trial court sustained the state's objections to the admission of the prior statements made by Ms. Nixon, Mr. Nixon's trial counsel proffered what the testimony would have been if it had been permitted and enumerated various alleged inconsistencies. Mr. Nixon's counsel repeatedly tried to bring into evidence these alleged inconsistencies. In light of counsel's various efforts to introduce such evidence despite the trial court's ruling that it was inadmissible, we cannot conclude that Mr. Nixon's counsel's performance was deficient. Further, even if counsel's performance was deficient, we find that it did not prejudice the defense and deprive Mr. Nixon of a fair trial.
Accordingly, Mr. Nixon's eighth assignment of error is rendered moot as to his argument regarding the sexual offender classification hearing and overruled as to his remaining arguments.
THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
In his ninth assignment of error, Mr. Nixon asserts that his convictions were against the manifest weight of the evidence. Without any elaboration, Mr. Nixon argues that "[w]hen [the] evidence which should properly have been excluded, as set forth herein, is removed from the trial of this case, it becomes clear that the verdict in this case was against the manifest weight of the evidence." We disagree.
When a defendant asserts that his conviction is against the manifest weight of the evidence,
an appellate court must review 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 trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
Otten,
Previously, we addressed this assignment of error as it pertains to Mr. Nixon's conviction for the rape of Mr. Squires. Mr. Nixon's conviction on that specific charge was reversed, and consequently, his ninth assignment of error was sustained in part. Regarding his remaining convictions, we find that after a thorough review of the record, the jury did not act against the manifest weight of the evidence in rendering a guilty verdict as to those convictions. Accordingly, Mr. Nixon's ninth assignment of error is overruled in part.
The Court finds that there were reasonable grounds for these appeals.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, 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).
Costs taxed equally to both parties.
Exceptions.
______________________________________ WILLIAM G. BATCHELDER
BAIRD, J. CONCURS.
Inmates' Councilmatic Voice, Plaintiffs-Appellees-Cross-... , 541 F.2d 633 ( 1976 )
United States v. Matlock , 94 S. Ct. 988 ( 1974 )
Morrissey v. Brewer , 92 S. Ct. 2593 ( 1972 )
Jackson v. Virginia , 99 S. Ct. 2781 ( 1979 )
Tibbs v. Florida , 102 S. Ct. 2211 ( 1982 )
Illinois v. Rodriguez , 110 S. Ct. 2793 ( 1990 )