State v. Bobby Alexander, 83-LW-4832

• Decision Date: 20 October 1983
• Docket Number: 83-LW-4832,46591
• Parties: State of Ohio, Plaintiff-Appellee v. Bobby Alexander, Defendant-Appellant
• Court: Ohio Court of Appeals

State of Ohio, Plaintiff-Appellee v. Bobby Alexander, Defendant-Appellant

No. 46591.

83-LW-4832 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

October 20, 1983

Criminal appeal from the Court of Common Pleas, Case No. CR-178867.

For Plaintiff-Appellee: John T. Corrigan, Esq., The Justice Center, 1200 Ontario Street, Cleveland, Ohio 44113.

For Defendant-Appellant: Marillyn Fagan Damelio, Esq., Marion Building, Suite 307, Cleveland, Ohio 44113.

JOURNAL ENTRY and OPINION

DAY P.J.

Defendant-appellant Bobby Alexander (defendant) appeals his conviction and sentence for felonious assault (violation of R.C. ] 2903.11) after a jury trial in Common Pleas Court. For the reasons adduced below the judgment is affirmed.

I.

On October 24, 1982, the defendant was residing with Teretha Jackson and her four children from previous relationships. Jackson testified at trial that she and the defendant had a domestic arguement early in the evening. Later that night she heard the defendant enter the bedroom where the children slept. Moments later she entered the room and claims she saw the defendant forcing her two-year old daughter to perform fallatio (Tr. 28-29). The argument resumed. At some point the defendant fired a gunshot out the bedroom window (Tr. 31) and brandished the weapon toward Jackson. In turn, Jackson threatened him with a kitchen butcher knife (Tr. 35). Jackson instructed her ten-year old son to call the police. When the police arrived, Jackson was holding the defendant at bay with the knife (Tr. 36). The police recovered a gun (with its firing mechanism cocked) from the ground directly below the bedroom window (Tr. 35-37).

The defendant was initially indicted for rape and felonious assault in Case No. 177675. After a pre-trial hearing he was reindicted for rape with force and felonious assault in Case No. 178867. The jury acquitted the defendant on the rape charge but returned a guilty verdict for felonious assault. He received a sentence for the maximum term of five to fifteen years, see R.C. ?? (B); 2929.11(B)(2).

II.

The defendant raises three assignments of error:

Assignment of Error No. I:

"DEFENDANT-APPELLANT WAS CONVICTED ON EVIDENCE INSUFFICIENT AS A MATTER OF LAW, THEREBY DENYING HIM DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I ] 16 OF THE OHIO CONSTITUTION."

Assignment of Error No. II:

"THE TRIAL COURT ERRED, ABUSED ITS DISCRETION, AND VIOLATED DEFENDANT'S DUE PROCESS RIGHT TO CONFRONTATION UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I ] 10 OF THE OHIO CONSTITUTION."

"A. APPELLANT'S SIXTH AMENDMENT CONFRONTATION RIGHT WAS ABRIDGED WHEN THE TRIAL COURT REFUSED TO ALLOW CROSS-EXAMINATION OF COMPLAINANT ON HER PRIOR RECORD.

"B. APPELLANT'S SIXTH AMENDMENT CONFRONTATION RIGHT WAS ABRIDGED WHEN THE TRIAL COURT REFUSED TO IMPOSE THE CRIMINAL RULE 16(E)(3) SANCTION OF CONTINUANCE AGAINST THE STATE WHEN IT FAILED TO COMPLY WITH APPELLANT'S PROPER REQUEST FOR DISCOVERY UNDER CRIMINAL RULE 16(B)(1)(e).

"C. APPELLANT'S SIXTH AMENDMENT CONFRONTATION RIGHT WAS ABRIDGED WHEN THE TRIAL COURT REFUSED TO GRANT A CONTINUANCE FOR APPELLANT TO OBTAIN A WITNESS FROM NEW YORK TO PRESENT EVIDENCE THE COURT WOULD ACCEPT AS ADMISSIBLE."

Assignment of Error No. III:

"THE TRIAL COURT ERRED, ABUSED ITS DISCRETION AND VIOLATED DEFENDANT-APPELLANT'S EIGHTH AMENDMENT RIGHTS BY BASING HIS SENTENCE ON A CHARGE OF WHICH HE WAS ACQUITTED."

III.

The constitutional standard for sufficiency of the evidence supporting a criminal conviction is set down in Jackson v. Virginia (1979), 443 U.S. 307, 319:

"[W]hether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."

It is argued that Teretha Jackson's testimony be totally disregarded because her credibility was diminished over the course of the trial. However,

"It is the province of the jury to determine the credibility of the witnesses. It may disbelieve, or believe, and this applies to any testimony which the defendant himself may give. The question of belief rests with the jury, and it is reversible error for a reviewing court to substitute its own opinion for that of the jury. The reviewing court must not invade the province of the jury as to the credibility of the witnesses, no matter how conflicting the evidence is, providing its weight is sufficient under the rules of criminal law to sustain the verdict of conviction." Sandoffsky v. State (1928), 29 Ohio App. 419, 422.

Further, the jury is free to accept part of the testimony of a witness while rejecting the remainder, Green v. B & O R.R. Co. (1964), 337 F. 2d 673, 675-676; cf. Winkler v. Columbus (1948), 149 Ohio St. 39, 44.

Carl Jackson testified that he heard the shot fired in his sister's bedroom (Tr. 120). Teretha Jackson testified that the defendant, while pointing the gun in her direction, threatened to "blow [her] brains out" (Tr. 35, 43). The sum of the evidence, if believed, establishes the elements of R.C. ] 2903.11®1¯ beyond a reasonable doubt. See State v. Eley (1978), 56 Ohio St. 2d 169, 172.

Footnote 1 . "] 2903.11 Felonious assault

"(A) No person shall knowingly:

"(1) Cause serious physical harm to another;

"(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code.

"(B) Whoever violates this section is guilty of felonious assault, a felony of the second degree."

This text of the statute was current at all times pertinent to the present case.

Assignment of Error No. I lacks merit.

IV.

A.

The defendant argues that his right to confrontation was abridged by the trial court's refusal to allow Jackson to be crossexamined about her prior criminal record in New York State. Defense counsel obtained a computer printout of the out-of-state record (Joint Ex. 1) and contends that a felony conviction appears there.®2¯

Footnote 2 . Evid. R. 609(A) permits the credibility of a witness to be impeached by evidence of a conviction where the crime is punishable by more than one year in prison or involves dishonesty or false statement. Discovery rules require the state to disclose a witness' record if it consists of any felony convictions, Crim. R. 16(B)(1)(e).

The record belies the defendant's contention. Joint Exhibit 1 indicates that although Jackson was arrested for a felony on April 12, 1976, that charge was dismissed and a four-month sentence imposed for an accompanying misdemeanor. Moreover, the defendant did, in fact, conduct extended cross-examination of Jackson on her failure, earlier in the trial, to admit that she had been convicted of crimes in New York (Tr. 157-164).®3¯ This examination was apparently effective in discrediting Jackson since the jury acquitted the defendant on the rape count.

Footnote 3 . It is debatable whether Jackson could properly be impeached on the basis of her prior New York convictions for petty larceny or shoplifting, see United States v. Crawford (D.C. Cir. 1979), 613 F. 2d 1045, 1051-1053; United States v. Papia (7th Cir. 1977), 560 F. 2d 827, 845-848 (interpreting parallel Federal Rules of Evidence 609). However, no disagreement can exist on the point that no error prejudicial to the defendant was committed by the trial court's allowance of cross-examination to the extent that was permitted.

B.

The defendant argues that error was committed by the failure to grant a continuance as a sanction for noncompliance with discovery rules. The grant of a continuance is a discretionary matter, State v. Kehn (1977), 50 Ohio St. 2d 11, 15. No abuse of discretion appears here because defense counsel was ultimately permitted to cross-examine the witness regarding her out-of-state convictions (Tr. 157-164).

C.

The defendant asserts that he should have been given time to produce a witness to establish the authenticity of the computer print-out from New York. The question of the authenticity of the document aside, more liberal impeachment on the prior convictions was granted than required under the rule.

Assignment of Error No. II lacks merit.

V.

The defendant contends that imposition of the maximum sentence allowed by statute®4¯ violates the proportionality aspect of the lighth Amendment's prohibition against cruel and unusual punishment, Solem v. Helm (1983), U.S. , 103 S. Ct. 3001, 51 U.S.L.W. 5019, 5023. Solem requires an analysis of the proportionality of a sentence to determine whether it is in sync with sentences for comparable convictions. If it is not, the Constitution is violated. The Solem standards attempt objectivity:

Footnote 4 . Ohio Revised Code ] 2929.11(B)(2).

"(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id.

However, the decision did not disturb the well settled rule that reviewing courts defer to legislatures in setting statutory punishments and to trial courts in imposing sentences within those statutory limits.

"[W]e do not adopt or imply approval of a general rule of appellate review of sentences. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court

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