State v. Person

Citation2007 Ohio 6869,881 N.E.2d 924,174 Ohio App.3d 287
Decision Date21 December 2007
Docket NumberNo. C-060656.,C-060656.
PartiesThe STATE of Ohio, Appellee, v. PERSON, Appellant.
CourtUnited States Court of Appeals (Ohio)

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W. Springman Jr., Assistant Prosecuting Attorney, for appellee.

Gloria L. Smith, Columbus, for appellant.

DINKELACKER, Judge.

{¶ 1} Defendant-appellant, Dante Person, was convicted of two count of felonious assault with firearm specifications,1 carrying a concealed weapon,2 and having a weapon while under a disability.3 Having considered Person's seven assignments of error, we affirm.

"Officer Down"

{¶ 2} Cincinnati Police Officers Kristina Holtmann and Laureen Smith were on routine patrol in the early morning hours of January 11, 2006. The officers passed a vehicle with windows that appeared to be too darkly tinted. Additionally, the rear license plate was not illuminated. The officers activated their overhead lights and made a U-turn. The vehicle stopped and backed into a driveway before the police unit reached it. Officer Smith approached the driver's side and Officer Holtmann approached the passenger side. The driver of the car, Bryan Caulton, had an outstanding warrant. Officer Smith arrested Caulton and placed him in the back seat of the police car.

{¶ 3} While Officer Smith was dealing with Caulton, Officer Holtmann asked Person, who was in the front passenger seat, for identification, He did not have identification, but gave Officer Holtmann his name and date of birth. Based on previous encounters with Person, Officer Holtmann believed that he had given a false last name and asked him to get out of the car. After he emerged, Officer Holtmann ordered him to place his hands behind his back. Person turned, produced a handgun, and shot Officer Holtmann in the face.

{¶ 4} Person immediately fled. As he was running, Officer Holtmann saw him turn and point his gun at her. At this point, she and Officer Smith returned fire. One of the shots struck Person in the leg, but he was able to continue fleeing.

{¶ 5} As officers were establishing the crime scene, a witness came forward and told police that Person was in the basement of a nearby, residence. A perimeter was established around the home until a S.W.A.T. unit could arrive. Police then began a systematic search of the house, discovering Person in the basement. After Person was taken into custody, he was asked what he had done with the handgun. He told an officer to "go fuck [himself]."

{¶ 6} Person was subsequently indicted on two counts of attempted murder,4 three counts of felonious assault,5 carrying a concealed weapon,6 having a weapon while under a disability,7 possession of cocaine,8 and burglary.9 Person elected to have the weapon-under-disability count tried to the bench.

{¶ 7} At the close of the state's case, the trial court granted Person's Crim.R. 29 motions as to one count of attempted murder and one count of felonious assault— both relating to Officer Smith. At the conclusion of the jury trial, Person was acquitted on the second attempted-murder charge as well as the drug-possession and burglary charges. He was convicted on the remaining charges and sentenced accordingly.

Mistrial for Discovery Violations

{¶ 8} In his first assignment of error, Person argues that the trial court should have granted his motion for a mistrial because a statement he had made to police was not provided during discovery. We disagree.

{¶ 9} The statement at issue was made by Person when he was arrested. When he was asked where he had put the gun, he had told the officer to "go fuck [himself]." Person argued that the statement was inconsistent with his defense that the shooting was an accident and that he had cooperated with police throughout the incident. Had he received the statement, he insists, his presentation of the case would have been different.

{¶ 10} The trial court conducted an extensive hearing on the issue, adjourning the proceedings to allow the parties to research the legal issues and to present legal authority supporting their respective positions. The court ultimately determined that the state had failed to disclose the statement. But the court also found that the state had believed that it had provided the statement and that, at worst, the failure to provide the statement was inadvertent. The court further determined that Person would have benefited from having the statement before trial and that he would have been prejudiced if the jury were allowed to consider it.

{¶ 11} Rather than granting a mistrial, the trial court instructed the jury "to disregard the statement of Officer Stewart about any alleged statement that the defendant made in the basement. And you must treat it as though you never heard it. You may not rely on it in any way in reaching a decision in this case." The court carefully considered the legal authority cited by both sides and concluded that "in the interest of justice, the trial should proceed, that it can be cured by a curative instruction."

{¶ 12} The Ohio Rules of Criminal Procedure give the trial court discretion to fashion a remedy for discovery violations that occur during trial.10 Since the trial court is in the best position to determine whether a mistrial is needed,11 the decision to grant or deny a motion for a mistrial rests within the sound discretion of the trial court.12 We will not reverse the court's decision to deny a motion for a mistrial unless it abused its discretion.13 A defendant must show that the trial court's decision was arbitrary, unreasonable, or unconscionable.14 A trial court should not order a mistrial merely because an error or irregularity has occurred, unless it affects the defendant's substantial rights.15 The court should declare a mistrial "only when the ends of justice so require and when a fair trial is no longer possible."16

{¶ 13} In its discretion, the trial court in this case chose to give a curative instruction to the jury. Because the court determined that the interests of justice were best served by allowing the trial to continue, and because the court was in the best position to determine which remedy under Crim.R. 16(E) was most appropriate, we cannot conclude that its decision was arbitrary, unreasonable, or unconscionable. Person's first assignment of error is overruled.

Requested Jury Instructions— Assault and Negligent Assault

{¶ 14} In his second assignment of error, Person argues that the trial court improperly refused to give jury instructions on assault and negligent assault. We disagree.

{¶ 15} The determination whether a requested instruction is warranted involves deciding (1) whether the offense in the requested instruction is a lesser included offense of the crime charged17 and (2) whether the jury could reasonably conclude that the evidence supports a conviction for the lesser offense and not the greater.18 Since we conclude that the evidence presented at trial would not have reasonably supported both an acquittal on the crime charged, and a conviction on the lesser included offense, the trial court properly refused to give the requested instructions.19

{¶ 16} Person first argues that the jury could have found him guilty of assault while acquitting him of felonious assault. Person was charged with felonious assault under two different subsections of R.C. 2903.11. First, he was charged with felonious assault for knowingly causing serious physical harm to another.20 Second, he was charged with felonious assault for knowingly causing or attempting to cause physical harm to another by means of a deadly weapon.21

{¶ 17} As Person asserts, assault only requires evidence of some physical harm.22 Person correctly concludes that "[t]he critical issue is whether the evidence supported a finding only of serious physical harm to Officer Holtmann."

{¶ 18} Serious physical harm includes "[a]ny physical harm which involves some permanent disfigurement, or which involves some temporary, serious disfigurement."23 Officer Holtmann testified that she would always have the scar that resulted from the shooting in this case. The laceration required plastic surgery to repair. Additionally, Holtmann testified that her glasses were shattered and that glass shards had to be surgically removed from her eye. We hold, given the foregoing undisputed evidence, that the jury could not have concluded that Holtmann had not suffered serious physical harm.24 Therefore, Person was not entitled to an instruction on assault.

{¶ 19} Likewise, we hold that Per son was not entitled to an instruction on negligent assault. There is no evidence in the record to support the conclusion that Person had fired the shot accidentally. In fact, the state presented expert testimony that it would have been extremely unlikely that the handgun in this case would have fired as the result of a malfunction. The witness testified that he was unable to cause the handgun to discharge other than by holding the safety in the grip and pulling the trigger. We can find no support for Person's contention that "[t]he shooting could have been an accident based on the evidence presented at trial." Therefore, Person was not entitled to an instruction on negligent assault.

{¶ 20} Since Person was not entitled to instructions on assault and negligent assault, the trial court did not err when it refused to give them. Person's second assignment of error is overruled.

Felonious-Assault Convictions Not Allied Offenses

{¶ 21} In his third assignment of error, Person argues that the trial court should have merged the two felonious-assault convictions because they involved allied offenses of similar import. We disagree.

{¶ 22} This court has previously considered and rejected this argument.25 In State v. Payne, we reaffirmed our previous holding in State v. Coach, in which we concluded that felonious assault in violation of R.C. 2903.11(A)(1) and...

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