State v. Bradley J. Messineo

• Decision Date: 06 January 1992
• Docket Number: 1488 & 1493,92-LW-5705
• Parties: STATE OF OHIO, Plaintiff-Appellee v. BRADLEY J. MESSINEO, Defendant-Appellant CASE
• Court: United States Court of Appeals (Ohio)

STATE OF OHIO, Plaintiff-Appellee v. BRADLEY J. MESSINEO, Defendant-Appellant

No. 1488 & 1493.

92-LW-5705 (4th)

Court of Appeals of Ohio, Fourth District Athens

January 6, 1992

COUNSEL FOR APPELLANT:^[1] William H. Safranek, 34 Grosvenor Street, Athens, Ohio 45701.

COUNSEL FOR APPELLEE: K. Robert Toy, Prosecutor, Court House, Athens Ohio 45701

DECISION

ABELE J.

This is an appeal from a judgment of conviction and sentence entered by the Athens County Common Pleas Court finding Bradley J. Messineo, defendant below and appellant herein guilty of one count of abduction in violation of R.C 2905.02, guilty of one count of felonious assault in violation of R.C. 2903.11(A)(1), guilty of one count of felonious assault in violation of R.C. 2903.11(A)(2), and guilty of three firearm specifications.

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE COURT ERRED IN GRANTING THE STATE'S MOTION FOR LEAVE TO AMEND THE INDICTMENT ALLOWING THE ADDITION OF THE MENTAL ELEMENT OF KNOWING CONDUCT, WITH RESPECT BOTH TO COUNT I AND TO COUNT III, AND ALSO ERRED IN DENYING DEFENDANT'S MOTION TO ARREST JUDGMENT ON COUNTS I AND III FOLLOWING TRIAL."

SECOND ASSIGNMENT OF ERROR:

"APPELLANT'S CONVICTIONS ON COUNTS I AND III OF THE INDICTMENT SHOULD BE VACATED AS VOID BECAUSE THOSE COUNTS WERE NOT IN FACT AMENDED TO CHARGE A CRIMINAL OFFENSE."

THIRD ASSIGNMENT OF ERROR:

"THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS THE IDENTIFICATION TESTIMONY OF DANETTE KOON AND MATT CALKINS INSOFAR AS IT RELATED (1) TO THE LIVE, AS DISTINGUISHED FROM ANY PHOTOGRAPHIC, LINE UP AND ALSO (2) TO THE TAINTED IN COURT IDENTIFICATION RESULTING THEREFROM."

FOURTH ASSIGNMENT OF ERROR:

"THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR ACQUITTAL ON THE ALLEGATION OF ABDUCTION MADE AT THE CLOSE OF THE STATE'S CASE AND RENEWED AT THE CLOSE OF ALL THE EVIDENCE."

FIFTH ASSIGNMENT OF ERROR:

"THE COURT ERRED IN EXCLUDING FROM EVIDENCE DEFENDANT'S EXHIBIT 2, THE TRANSCRIPT OF A TAPE OF A TELEPHONE CONVERSATION BETWEEN DEFENSE COUNSEL AND THE WITNESS MATT CALKINS AND IN DECLINING TO HONOR THE JURY'S REQUEST THAT IT BE ALLOWED TO HAVE THE TRANSCRIPT WITH IT DURING DELIBERATIONS."

SIXTH ASSIGNMENT OF ERROR:

"THE DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE OF PROSECUTORIAL MISCONDUCT."

SEVENTH ASSIGNMENT OF ERROR:

"DEFENDANT-APPELLANT WAS DENIED DUE PROCESS OF LAW AS A RESULT OF THE FORM OF THE JURY VERDICT."

EIGHTH ASSIGNMENT OF ERROR:

"THE CONVICTIONS ON FIREARM SPECIFICATIONS ARE NOT SUSTAINED BY THE WEIGHT OF THE EVIDENCE."

NINTH ASSIGNMENT OF ERROR:

"ON THE EVIDENCE ADDUCED, AND, IN CONSIDERATION OF THE PROVISIONS OF REVISED CODE 2941.25, THE COURT ERRED IN SENTENCING THE DEFENDANT ON ALL THREE COUNTS ON WHICH THE JURY RETURNED VERDICTS OF GUILTY, RATHER THAN ON ONE COUNT ONLY."

On March 12, 1990, Ohio University students Danette Koon and Matthew Calkins decided to take a break from their studies along for an evening walk. When they walked along Court Street, a man on the steps of the Just Desserts Bakery called Koon a "bitch." Koon and Calkins crossed the street and continued walking for several blocks. When they were walking on Mound Street toward Fremont Street, they heard footsteps. Koon turned and saw the same man who earlier called her a "bitch." She told Calkins, "I think that weirdo from up town is following us."

At that point, the man starting running toward Koon and Calkins. The man shouted "I could kill you, I can kill you, I should kill you." Koon and Calkins noticed the man had a pistol in his hand. The man grabbed Koon by the arm, and then released her. When Koon started walking closer to Calkins, the man grabbed her arm again and started shaking her.

When Calkins tried to rescue Koon, the man pointed his gun at Calkins' groin and told him "I could blow your fuckin' balls off nigger." Calkins responded by holding his hands up in the air. The man then turned his attention to Koon and said "why are you walking with this nigger, I ought to kill you, I can kill you." At this time, the man started hitting Koon in the face with his gun and with his fist. Calkins ran for help. When the man was finished hitting Koon, he walked away. Soon afterwards, police cruisers arrived and took Koon to the hospital. The assault caused permanent damage to Koon's face.

With the assistance of a police artist on the morning after the assault, Koon; and Calkins made composite drawings of the man.

After publishing the composite drawings, the police received tips from concerned citizens. Koon and Calkins picked appellant's photograph from a photo line-up conducted on March 29, 1990.

When appellant learned he was suspected of the crime, he left his job, abandoned his new apartment without notice, assumed a new identity, and fled the area. When appellant told his ex-girlfriend he had to leave town because somebody was after him, she asked if he had "robbed a bank or something." He answered "well kind of something like that."

Police arrested appellant in Idaho Falls, Idaho on October 4, 1990. At the time of his arrest, appellant had obtained a birth certificate, social security card, driver's license, apartment lease, and telephone card, all in the name of one Keith A. McHenry, a young West Virginia boy who died in 1964. Police officers also found in appellant's possession an August 30, 1990 receipt for a passport application made out to Keith A. McHenry.

Koon and Calkins selected appellant in an in-person line-up on November 16, 1990. Koon testified that she had no idea she picked out the same person in both the photo line-up and the in person line-up. Koon further testified that when she saw the in person line-up, she knew immediately that appellant was the man who attacked her. Calkins testified he is positive that appellant is the man who attacked Koon on March 12, 1990.

Appellant and his brother testified that appellant was in Cincinnati when the crimes were committed. Appellant testified he fled the area and assumed a new identity when he believed he would not receive a fair trial exonerating him of the crimes.

On December 18, 1990, the grand jury indicted appellant on one count of abduction in violation of R.C. 2905.02, one count of felonious assault in violation of R.C. 2903.11(A)(1), one count of felonious assault in violation of R.C. 2903.11(A)(2), and three firearm specifications. On January 15, 1991, appellant filed a notice of alibi and a motion to suppress identification testimony.

On February 19, 1991, appellee filed a motion to amend the indictment to add the word "knowingly" to counts one and three of the indictment. Appellee noted that due to the fact appellant filed a notice of alibi claiming he did not commit the crimes, an amendment to the indictment would cause appellant no prejudice.

On January 28, 1991, the court held a hearing on the motion to suppress. Clyde Beasley of the Athens Police Department testified all the photos represented men similar in appearance. He further testified the in person line-up contained only men suspected of the crimes. All the men were approximately five feet, seven inches in height.

Koon and Calkins gave testimony indicating their identifications were reliable. Both testified that although the crimes were committed after dark, the lighting in the area allowed them to observe and remember their attacker. Koon testified she was positive in her identifications. Although appellant was the only person who appeared in both the photo line-up and the in-person line-up, Koon testified she didn't notice that fact. Koon testified the photo line-up did not influence her decision in the live line-up. Calkins testified that although the in person line-up had similar looking people, he was sure of the fellow he picked. Calkins identified appellant in court as the person who committed the crimes. The court denied appellant's motion to suppress Koon's and Calkin's identifications.

The jury found appellant guilty as charged after a trial held on February 26th, 27th, 28th, and March 1st, 1991. The court sentenced appellant to four to ten years and three years actual incarceration on the first count, six to fifteen years and three years actual incarceration on the second count, and six to fifteen years and three years actual incarceration on the third count. The court ordered the actual incarceration terms, all for the gun specifications, to be served concurrently with each other, but prior to and consecutive with the other sentences. The court further ordered the sentence for count two to be served consecutively with the sentence for count one, but the sentence for count three to be served concurrently with the other two sentences.

On April 11, 1991, appellant filed a timely notice of appeal from the March 19, 1991 judgment entry of conviction and sentence. That appeal is our Case No. 1488.

On April 5, 1991, appellant filed a motion for new trial. Appellant argued the court erred by denying his motion to suppress Koon's and Calkin's identification testimony. Appellant further argued the prosecutor erred during closing argument by telling the jury about the motion to suppress and the court's ruling on the motion.

On April 11, 1991, appellant filed a motion to vacate the court's sentence on count one, and on either count two or three. Appellant argued the court should have only sentenced him on one of the three counts.

On April 25, 1991, the court denied appellant's motion for new trial and his motion to vacate. On May 22, 1991, appellant filed a timely notice of appeal from the denials. That appeal is our Case No. 1493.

Although no one filed a motion to consolidate Case No. 1488 and Case No. 1493, each party filed only one brief to serve both appeals. Appellant did not divide his...