State v. Wright

• Citation: 990 N.E.2d 615
• Decision Date: 26 March 2013
• Docket Number: No. 11–MA–14.,11–MA–14.
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Richard WRIGHT, Defendant–Appellant.
• Court: United States Court of Appeals (Ohio)

990 N.E.2d 615

STATE of Ohio, Plaintiff–Appellee,
v.
Richard WRIGHT, Defendant–Appellant.

No. 11–MA–14.

Court of Appeals of Ohio,
Seventh District, Mahoning County.

March 26, 2013.

[990 N.E.2d 616]

Paul Gains, Prosecutor, Ralph M. Rivera, Assistant Prosecutor, Youngstown, OH, for plaintiff-appellee.

J. Dean Carro, University of Akron, School of Law, Akron, OH, for defendant-appellant.

Before: MARY DeGENARO, P.J., GENE DONOFRIO, and JOSEPH J. VUKOVICH, JJ.

DONOFRIO, J.

{¶ 1} Defendant-appellant, Richard Wright, appeals from a Mahoning County Common Pleas Court judgment convicting him of three counts of kidnapping and one count of felonious assault following a jury trial.

{¶ 2} On June 20, 2010, Sharitta Pagett was at her apartment in Youngstown getting ready for church. Appellant, who was Pagett's boyfriend at the time, was there with her. Pagett's cell phone rang and appellant answered it.

{¶ 3} According to Pagett, appellant became angry when the caller turned out to be a man she had “messed around with” and he then broke her cell phone. Pagett stated that appellant then started hitting and choking her. The two went downstairs and Pagett stated that appellant put a gun in her mouth and threatened to kill her. Pagett stated appellant told her to get into his truck with him and that if she screamed, he would kill her. Pagett got into appellant's truck. At one point, she stated appellant rolled down her window and fired the gun past her face and out the window. Pagett stated appellant took her to a house on Youngstown's east side and the two got out of the truck. Appellant told Pagett to shoot the gun and she fired it into the ground. She then returned the gun to appellant and the two got back into the truck. Appellant drove them back to Pagett's apartment.

{¶ 4} Pagett stated that appellant had been drinking and was getting sick. He went into her apartment and into her bedroom. He then asked Pagett to get a pill from his truck. Pagett went out and got the pill and then went across the street to seek her friend Theia's help. Theia returned to Pagett's apartment with her. Pagett brought appellant the pill and a glass of water. She told him, “I can't do this no more,” and he jumped out of bed. Pagett stated that she ran from the apartment to another house and called 911.

{¶ 5} A Mahoning County Grand Jury indicted appellant on one count of felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(2), and three counts of kidnapping, first-degree felonies in violation of R.C. 2905.01(A)(3), R.C. 2905.01(B)(1), and R.C. 2905.01(B)(2), respectively. Each of the four counts also carried a firearm specification in violation of R.C. 2941.145(A).

{¶ 6} The matter proceeded to a jury trial. The jury found appellant guilty of all four counts but not guilty on all of the firearm specifications.

{¶ 7} The trial court subsequently sentenced appellant to two years for felonious assault and eight years on each of the three kidnapping counts. The court merged the sentences for the three kidnapping counts resulting in one eight-year sentence to be served consecutive to the

[990 N.E.2d 617]

two-year felonious assault sentence for a total of ten years in prison.

{¶ 8} Appellant filed a timely notice of appeal on January 28, 2011.

{¶ 9} Appellant raises two assignments of error, the first of which states:

THE TRIAL COURT COMMITTED PLAIN ERROR AND AFFECTED APPELLANT WRIGHT'S SUBSTANTIAL RIGHTS WHEN IT FAILED TO GIVE JURY INSTRUCTIONS ON THE FACTORS THAT MITIGATE FIRST–DEGREE KIDNAPPING TO SECOND–DEGREE KIDNAPPING UNDER R.C. 2905.01(C).

{¶ 10} Appellant argues here that the trial court committed plain error by failing to instruct the jury on second-degree kidnapping. He contends that because the evidence demonstrated that he released Pagett unharmed in a safe place, he was entitled to an instruction on second-degree kidnapping. Appellant asserts that he released Pagett when he asked her to go to his truck and get his medicine. He further asserts that the area outside of Pagett's apartment where he released her was a “safe place.” And appellant claims that Pagett was unharmed because she had suffered no identifiable physical injuries. He argues that although Pagett testified that he hit and choked her, there was no evidence in the record that Pagett was actually injured. He notes that Officer Melvin Johnson did not notice any marks or bruising on Pagett that day when he interviewed her.

{¶ 11} Appellant failed to request a jury instruction on second-degree kidnapping. When an appellant fails to request a particular jury instruction, the failure to give the instruction is waived on appeal absent plain error. State v. Lewis, 7th Dist. No. 01–CA–59, 2002-Ohio-5025, 2002 WL 31115580, ¶ 46. To prevail on a claim governed by the plain error standard, an appellant must demonstrate that the trial outcome would have been clearly different but for the alleged error. State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996).

{¶ 12} First-degree felony kidnapping under R.C. 2905.01(A) and (B) is reduced to second-degree felony kidnapping if the defendant “releases the victim in a safe place unharmed.” R.C. 2905.01(C).

{¶ 13} The release of a victim unharmed is not an element of the kidnapping. State v. Sanders, 92 Ohio St.3d 245, 265, 750 N.E.2d 90 (2001). And there is no requirement on the part of the state to allege or establish that the defendant failed to release the victim in a safe place unharmed in order to prove that the defendant is guilty of kidnapping. State v. Leslie, 14 Ohio App.3d 343, 345, 471 N.E.2d 503 (2d Dist.1984). Instead, the defendant must plead and prove it as an affirmative defense. Sanders, at 265, 750 N.E.2d 90. “If, at trial, the defendant puts forth any evidence tending to establish that the victim was released in a safe place unharmed, the court is required to submit this issue to the jury under proper instructions.” Leslie, at 345, 471 N.E.2d 503.

{¶ 14} To determine if there was evidence that appellant released Pagett unharmed to a safe place, we must examine Pagett's testimony. Pagett's was the only testimony that was relevant to this issue.

{¶ 15} Pagett testified that on the morning in question, her cell phone rang and appellant answered it. (Tr. 282). Appellant became angry when he realized it was a man Pagett had “messed with” calling collect from the penitentiary. (Tr. 282). Appellant broke Pagett's phone and began to hit and choke her. (Tr. 282). The two went downstairs where appellant put a gun

[990 N.E.2d 618]

in Pagett's mouth and threatened to kill her. (Tr. 282–283). Appellant then told Pagett to get into his truck with him. (Tr. 283). He threatened to kill her if she screamed. (Tr. 283). While in the truck, appellant rolled down Pagett's window and shot the gun out the window past her face telling her he was going to kill her. (Tr. 284). Appellant drove to a house on the east side of Youngstown. (Tr. 283–285). The two got out of the truck and appellant ordered Pagett to shoot his gun. (Tr. 285). She fired it once into the ground and gave it back to appellant. (Tr. 285). The two got back into the truck and appellant drove them back to Pagett's apartment. (Tr. 285).

{¶ 16} Pagett testified that after she and appellant returned to her apartment, they went inside and appellant got sick and threw up. (Tr. 285). He went into her upstairs bedroom, undressed and asked Pagett if she could go outside and get a pill out of his truck. (Tr. 285). Pagett went outside. (Tr. 285). She went to appellant's truck and retrieved the pill. (Tr. 301). She then ran across the street to her friend Theia's house. (Tr. 285–286, 301). Pagett asked Theia if she would help her. (Tr. 286). Theia agreed and the two went back to Pagett's apartment. (Tr. 286).

{¶ 17} Pagett then brought a glass of water upstairs to appellant. (Tr. 286). She told him, “I can't do this no more,” and appellant jumped out of bed. (Tr. 286). Pagett ran down the stairs and out of the apartment. (Tr. 286). She ran to a neighbor's house where she first called a friend and then called 911. (Tr. 286). She stated that at the time, children were outside and neighbors were standing by their doors. (Tr. 293).

{¶ 18} Pagett's testimony demonstrates that once appellant returned Pagett to her apartment, he went to the upstairs bedroom and then “asked” Pagett to go outside to his truck to get a pill for him. Notably, appellant did not order Pagett to retrieve the pill nor did he threaten her if she refused to get the pill.

{¶ 19} When appellant asked Pagett to leave the apartment and go outside, he released her unharmed in a safe place.

{¶ 20} As to the release of the victim, it must be by the defendant's act, not by the victim seizing an opportunity to escape. See State v. Bettem, 7th Dist. No. 96–BA–39, 1999 WL 35296 (Jan. 15, 1999) (concluding that defendant failed to establish that he released his victims because the evidence demonstrated the victims escaped through a window “by their own efforts”); State v. Carson, 10th Dist. No. 98AP–784, 1999 WL 236095 (Apr. 22, 1999) (concluding that defendant left the victims “free and unrestrained,” and therefore released them, when he fled the scene). In this case, appellant left Pagett “free and unrestrained” when he asked her to go to his truck while he stayed upstairs, inside the apartment.

{¶ 21} As to leaving the victim “unharmed,” psychological harm is not considered. For instance in State v. Henderson, 10th Dist. No. 85AP–830, 1986 WL 4366 (Apr. 8, 1986), the court concluded that the fact that the victim may be terrorized does not necessarily mean the victim was harmed. And it has been held that even where the defendant fires a gun as a warning shot, the victim is not “harmed.” State v. Steverson, 10th Dist. No. 97AP11–1466, 1998 WL 634949 (Sept. 15, 1998). In the case at bar, while Pagett testified that appellant had hit and choked her, there was no evidence that she sustained any physical...