Columbus v. Hamilton

• Decision Date: 24 September 1992
• Docket Number: Nos. 92AP-410,AP-412,92AP-411,s. 92AP-410
• Citation: 78 Ohio App.3d 653,605 N.E.2d 1004
• Court: Ohio Court of Appeals
• Parties: CITY OF COLUMBUS, Appellee, v. HAMILTON, Appellant. , and 92

Page 653

78 Ohio App.3d 653

605 N.E.2d 1004

CITY OF COLUMBUS, Appellee, v. HAMILTON, Appellant.

Nos. 92AP-410, 92AP-411, and 92AP-412.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided Sept. 24, 1992.

Ronald J. O'Brien, City Atty., Marcee C. McCreary, City Prosecutor and Brenda J. Keltner, Asst. City Prosecutor, for appellee.

James Kura, Franklin County Public Defender, and John W. Keeling, Asst. Public Defender, for appellant.

BOWMAN, Judge.

Defendant-appellant, Darrold Hamilton, appeals his jury conviction on one count of assault and one count of disorderly conduct in violation of Columbus City Code 2303.01 and 2317.01(A)(1), respectively. Appellant was fined $250 plus costs and sentenced to one hundred and eighty days incarceration on the assault charge, with all but thirty days suspended. In addition, appellant received a concurrent sentence of thirty days incarceration on the disorderly conduct charge.

On October 22, 1991, appellant approached an ambulance occupied by paramedics Keith Kumler and Brian Roy, and Columbus Police Officer Kevin Wheeler, near the Raintree Cinema on Cleveland Avenue. Appellant had been injured and was bleeding profusely from the head. Bandaging appellant's head and securing his neck and head to a back board, the paramedics placed him in the ambulance and proceeded to St. Ann's Hospital. While Roy drove, Kumler and Wheeler assisted appellant.

When Kumler placed an oxygen mask over appellant's face, appellant resisted and attempted to remove the mask. In doing so, he grabbed and twisted Kumler's hand. Kumler testified that, while this was going on, appellant appeared agitated and made statements, such as: "You were the ones that did it to me." Realizing the danger to Kumler, Officer Wheeler handcuffed appellant in an effort to restrain him. As a result of appellant's actions, a ligament in Kumler's little finger was hyperextended, causing him to miss several days of work.

Appellant was charged with assault and disorderly conduct in connection with Kumler's injury, and also charged with a second count of assault in connection with a prior altercation at the movie theater. The matter proceeded to trial, with the second assault count being dismissed after the prosecution was unable to produce witnesses of the incident. The trial court denied motions for mistrial and acquittal, and the jury entered a verdict of guilty on the remaining two charges.

Prior to voir dire, appellant's attorney moved to dismiss the assault charge filed in connection with an altercation at the movie theater on the basis that no witnesses had appeared. The trial court overruled the motion for the reason that the complaint had been filed by the Columbus police officer and it might not be necessary to have the victim of the assault present if someone else witnessed the crime.

Appellant now raises one assignment of error:

"The trial court erred when it overruled the defendant's motion for a mistrial after the city presented prejudicial allegations to the jury not susceptible of proof but intended to influence the jury in reaching a verdict."

Prior to opening statements, the following references were made during voir dire as to the assault at the movie theater:

"The case that you are sitting here today on involves, as the Judge mentioned, an assault; actually two assaults, two charges of assault and a charge of disorderly conduct.

"Briefly, the facts of the case involve--or it is alleged that the defendant assaulted an individual of [sic] a movie theater. And it is also alleged that he assaulted a paramedic as the paramedic was trying to treat him en route to the hospital. It is also alleged that the defendant was unruly in the ambulance en route to the hospital and was asked numerous times by a Columbus Police officer to calm down, to cease and desist his unruly conduct, to which he refused."

Prior to commencing opening statements, the following comments were made:

"[THE COURT:] Ladies and gentlemen, we'll now proceed with the opening statements of counsel. What these lawyers tell you is not evidence. It is just their impression of what they believe the evidence will show you later on. It is kind of a road map to help you follow the evidence as it is presented.

"The prosecution may proceed.

"MS. VAN SICKLER: Thank you, Your Honor. We are going to make this case a little bit easier for you. I mentioned that there were two assaults involved and a disorderly conduct, three charges against the defendant. And we have been trying to locate witnesses for the first assault, the first assault in time, which happened at Raintree Cinema. We have been unable to locate the witness and so we'll not be presenting evidence on this charge.

"So instead, we will be focusing on the second assault and the disorderly conduct."

Defense counsel asked to approach the bench and moved for a mistrial. During a conference out of hearing of the jury, the prosecutor informed the court that the victim of the assault at the movie theater had moved out of state and the manager of the theater was no longer employed there. No explanation was offered as to why such information was not available prior to voir dire which had occurred just moments before opening statements commenced. The jury was then instructed as follows:

"THE COURT: Ladies and gentlemen, the remarks of the prosecutor that you just heard, you are instructed now to disregard. That would have been more appropriate coming to you from the bench. And you are instructed to disregard any of the facts relating to the alleged first assault that she may have alluded to during her last statement. That case will not be presented to you because the witness has moved away and they...