State v. Briscoe

Decision Date28 December 1992
Docket NumberNo. 61200,61200
Citation84 Ohio App.3d 569,617 N.E.2d 747
CourtOhio Court of Appeals
PartiesThe STATE of Ohio, Appellee, v. BRISCOE, Appellant. *

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., and Kevin Cafferkey, Asst. Pros. Atty., Cleveland, for appellee.

Kenneth A. Bossin, Cleveland, for appellant.

NAHRA, Presiding Judge.

Clyde Briscoe, defendant-appellant, appeals his conviction of one count of attempted patient abuse under R.C. 2903.34 and 2923.02.

From October 1989 to March 1990, Clyde Briscoe was employed as a habilitation aide at the Northeast Care Center ("Northeast"), an institution for mentally retarded people located in North Royalton, Ohio. Employees at Northeast take care of the mentally retarded and work to improve the daily living skills of their patients.

On March 14, 1990, Lynn Johnson, Briscoe's co-employee at Northeast, walked into a bathroom at Northeast and discovered Stephen Bremmer, a mentally retarded patient, alone. Bremmer had been unattended for some time; Johnson observed him standing in the bathtub and urinating into the tub. Johnson testified that under no circumstances were patients to be left alone, since they might hurt themselves. Clyde Briscoe was Bremmer's attendant and responsible for watching him.

Upon learning of the lack of care given to Bremmer, Lynn McNeely, the house manager at Northeast, commenced an investigation. She discovered that Briscoe had struck Bremmer with a belt on January 21, 1990. Briscoe had explained to Johnson that Bremmer's father often spanked his son when he acted up. Johnson smelled alcohol on Briscoe's breath at such time and observed Briscoe carrying a plastic drinking bottle which contained gin when he left the building. Johnson expressed her reluctance to testify because of threats Briscoe had made to her.

On January 24, 1990, Laurie Leasure, a Northeast habilitation supervisor, saw Briscoe in the kitchen; Briscoe asked her to handle Eugene Lascone, a patient, because he could not get Lascone into bed. Leasure then walked over to Lascone; Lascone, who cannot speak, made choking signals and punching signs and pointed at Briscoe. Leasure also observed a cut on Lascone's forehead. Leasure called for a nurse after speaking with Briscoe.

McNeely's investigation revealed that another incident occurred between Briscoe and an autistic patient, Brian Scott Harmon. On March 12, 1990, Harmon was making a fuss in the kitchen when Briscoe pushed him against the wall. When Harmon turned around, Briscoe pushed him again.

Finally, McNeely's investigation revealed another incident on January 6, 1990 for which Briscoe was convicted. On such day, Jackie Bryan Wright, Briscoe's co-employee, was cooking dinner when she heard commotion in the back of the house. Ron Kmiecik, a slim, five-foot, two-inch mentally retarded patient was having a behavior problem. Briscoe threw Kmiecik down and began choking him. Briscoe's knees pinned Kmiecik's arms and Briscoe's hands were around Kmiecik's throat. Wright yelled at Briscoe, but he did not respond. Eventually, Briscoe got off Kmiecik; Briscoe and Wright then went back to work. Briscoe later threatened Wright that she better not report him, to which she complied.

On June 12, 1990, Briscoe was indicted for four counts of patient abuse pursuant to R.C. 2903.34. On November 26, 1990, a bench trial ensued and a variety of witnesses testified on behalf of the state. At the end of the state's case-in-chief, Briscoe made a motion for acquittal pursuant to Crim.R. 29(A). The trial court stated that it was inclined to grant Briscoe's motion, since none of the patients suffered physical harm. However, shortly thereafter, the trial court amended the indictment to four counts of attempted patient abuse and overruled Briscoe's motion. Briscoe proceeded to present his case.

The trial court found Briscoe guilty of one count of attempted patient abuse and not guilty of the remaining three counts of attempted patient abuse.

In December 1990, the trial court sentenced Briscoe to six months of imprisonment, which it suspended and placed him on probation for one year. This appeal follows.

I

Appellant's first assignment of error states:

"The trial court erred in allowing the prosecutor to present any additional information after the court had granted defendant's motion for acquittal."

Briscoe contends that the trial court erred by allowing the state to present additional evidence after the trial court had announced its decision to grant his motion for acquittal pursuant to Crim.R. 29.

A review of the record reveals that the state did not present any additional evidence. Instead, the state merely made the trial court aware of the attempt statute pursuant to the trial court's request. The trial court's initial announcement of its inclination to grant Briscoe's motion for acquittal did not constitute a final judgment, since the trial court did not sign an order to that end. State v. Benson (1985), 29 Ohio App.3d 321, 29 OBR 448, 505 N.E.2d 987, paragraph one of the syllabus. The trial court proceeded to overrule the motion for acquittal and allowed Briscoe to present evidence in defense of the amended charge of attempted patient abuse. Since the trial court's announcement of its inclination to grant the motion for acquittal was not a signed, final order and because no additional evidence was presented by the state, the trial court did not commit any error.

Briscoe's assertion that the trial court erred when it amended the indictment during trial and thereby precluded him from preparing adequately for the charge of attempted patient abuse lacks merit. Under Crim.R. 7(D), the original indictment can be amended during trial if the amended charge is a lesser included offense of the original charge. See Middletown v. Blevins (1987), 35 Ohio App.3d 65, 67, 519 N.E.2d 846, 849; see, also, State v. Morris (1982), 8 Ohio App.3d 12, 8 OBR 13, 455 N.E.2d 1352. We find that the amended charge of attempted patient abuse is a lesser included offense of patient abuse, since under the lesser offense of attempted patient abuse the element of actually causing serious physical harm to a patient need not be proved. Accord State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, paragraph three of the syllabus. We also do not find that Briscoe lacked adequate notice of the offense with which he was charged such that he was unable to prepare an adequate defense.

Appellant's assignment of error lacks merit and is overruled.

II

Appellant's second assignment of error states:

"The trial court erred in finding appellant guilty of attempted patient abuse in that the verdict was unsupported by the evidence."

Briscoe appears to argue that the evidence was insufficient to convict him of attempted patient abuse and that the verdict was against the weight of the evidence. Briscoe contends that he did not intend to cause any harm to the patients and that his actions constituted a reasonable means to restrain them.

The weight to be given evidence and the credibility of witnesses are determinations to be made by the trier-of-fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the trier-of-fact to find a defendant guilty beyond a reasonable doubt, this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. When reviewing the sufficiency of evidence to support a criminal conviction, an appellate court's function is to examine the evidence to determine if such evidence would convince the average mind of defendant's guilt beyond a reasonable doubt. After viewing the evidence in a light most favorable to the prosecution, the relevant inquiry is whether any rational trier-of-fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

R.C. 2903.34, which constitutes the crime of patient abuse, states in pertinent part:

"(A) No person who owns, operates, or administers, or who is an agent or employee of a care facility shall do any of the following:

" * * *

"(2) Commit abuse against a resident or patient of the facility[.]"

R.C. 2903.33(B)(2) defines the term "abuse" as follows:

"(2) 'Abuse' means knowingly causing physical harm or recklessly causing serious physical harm to a person by physical contact with the person or by inappropriate use of a physical or chemical restraint, medication, or isolation on the person."

R.C. 2901.22 provides that:

"(B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist."

R.C. 2923.02 defines "attempt" and states:

"(A) No person, purposely or knowingly, and when purpose and knowledge is sufficient culpability for the commission of an offense shall engage in conduct which, if successful, would constitute or result in the offense."

A "criminal attempt" is an act that is a substantial step in a course of conduct planned to culminate in the commission of a crime. A substantial step is one that strongly corroborates criminal purpose. State v. Woods (1976), 48 Ohio St.2d 127, 2 O.O.3d 289, 357 N.E.2d 1059, paragraph one of the syllabus, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 3133, 57 L.Ed.2d 1153.

Our review of the record indicates that there was sufficient evidence to convict Briscoe of one count of attempted patient abuse beyond a reasonable doubt. Jackie Bryan Wright testified that she observed Briscoe using his knees to pin the arms of Ron Kmiecik, a diminutive patient at...

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