State v. Comen, 89-402
| Citation | 553 N.E.2d 640,50 Ohio St.3d 206 |
| Decision Date | 18 April 1990 |
| Docket Number | No. 89-402,89-402 |
| Parties | The STATE of Ohio, Appellee, v. COMEN, Appellant. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court
1. Before the taking of evidence, a trial court may give preliminary instructions to the jury appropriate for the jury's guidance in hearing the case. A court may also give cautionary instructions throughout the trial. (Crim.R. 30[B], construed.)
2. After arguments are completed, a trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder. (Crim.R. 30[A], construed.)
In the early morning hours of Sunday, October 18, 1987, Sibley Arnebeck, while downstairs turning down the thermostat, noticed that the rear door to her home was open. Sibley closed the door and went upstairs to bed. Approximately a minute later, Sibley heard two car doors slam and a car drive away from the home. Becoming concerned, Sibley went downstairs and noticed the front hall closet doors were open and that candlesticks were missing from the dining room table. In fear of having been burglarized, Sibley awakened her husband, Clifford Arnebeck. Clifford, after inspecting the home, noticed that the VCR was missing. Clifford called the police.
At 4:11 a.m four Upper Arlington police officers were dispatched to a burglary in progress at the Arnebeck home. Sergeant Gerald Matto responded immediately from his position one-quarter mile from the Arnebeck home. Matto drove past the Arnebeck home and conducted a preliminary search of a few nearby streets. Matto did not spot a moving vehicle. Matto then radioed Officers Brian Young and Charles Kinney, informing them of his brief search. Kinney and Young, traveling in separate cruisers, arrived within minutes, and began a grid search of the neighboring streets.
Young testified that at approximately 4:21 a.m., while conducting the grid search, he noticed the only moving vehicle was a 1976 Mercury Monarch, which eventually stopped at a traffic light four blocks south of the Arnebeck home. Young stated that the vehicle was unusual for the neighborhood due to the vehicle's poor condition and that there was no frost on the Mercury Monarch's windows. Young testified that all the parked vehicles in the area had frosted windows. Young, traveling east, turned north at the intersection where the Mercury Monarch was stopped at the traffic light. Young stated that the passenger in the vehicle, Scott A. Comen, appellant herein waved at him. Young turned his cruiser around in a nearby driveway and pulled in behind the car. When the light changed, Young followed the car for a little over a block and simultaneously radioed Officer Kinney for backup assistance. Young testified that he then decided to stop the vehicle before his pursuit of the vehicle carried into an unfamiliar area.
After stopping the suspects' car, Young approached the driver's side and Kinney, as backup, approached the passenger side. At Young's request, the driver, Maurice Epperson, surrendered a driver's license which listed Epperson's address as North High Street. Young then asked Epperson why he was in the area at such an early hour. Epperson replied that he was working in the area on a construction job and wanted to show appellant the job site. However, when asked the location of the construction site, Epperson was unable to provide an address or street name.
Young noticed in the back seat of the Mercury Monarch what appeared to be a stereo receiver partially covered by a coat. In addition, Kinney observed that appellant was sitting on a large number of Buckeye stamp books. Kinney also noticed an electrical cord dangling from the rear door of the vehicle onto the pavement. Kinney, upon closer examination of the cord, deduced that it had probably not been dragging on the road very long since the cord did not contain any abrasions.
Young and Kinney then removed Epperson and appellant from the vehicle to conduct a pat-down search for weapons. Young testified that Kinney asked and received permission from Epperson to search the car. In addition, Kinney testified that Young received permission to search the vehicle. Kinney, during the search of the vehicle, found a VCR which contained a videotape labeled, "Kids at home, at Clydes." Subsequently, Clifford Arnebeck was transported to the suspects' vehicle where he identified the VCR and the videotape as those missing from his home. Epperson and appellant were immediately placed under arrest and the car was impounded.
Epperson was searched at the police station. As a result of the search, officers found four $100 bills and $68 in miscellaneous cash. At the police station, the contents of the Mercury Monarch were inventoried and, among other items, included the following: one pair of cloth gloves, forty-two Buckeye stamp books, a cheese knife, a 35-millimeter camera, a Sony VCR and videotape, and a black coat.
In addition to the burglary of the Arnebeck home, the nearby homes of Terrence Larrimer and Marvin Crosten were burglarized on that same night. Crosten reported that money from underneath his wallet and his wife's purse containing several credit cards were missing. The purse and credit cards were found the next day near the Arnebecks' driveway. The camera and Buckeye stamp books, found as a result of the vehicle inventory, belonged to members of the Larrimer household.
Appellant was indicted with specifications on three counts of aggravated burglary, four counts of receiving stolen property and three counts of theft. Prior to trial, the three counts of theft were dismissed.
Appellant filed a motion to suppress any evidence obtained from the search of the Mercury Monarch vehicle in which appellant was a passenger. The motion to suppress was overruled. A jury trial commenced on June 6, 1988. The court then gave preliminary instructions prior to the taking of evidence and further instructed the jury on two more occasions during the trial. Appellant was acquitted on one count of receiving stolen property. Appellant was found guilty on the remaining counts. Appellant was sentenced to consecutive terms of twelve to twenty-five years' incarceration for three counts of aggravated burglary. Appellant was also sentenced to four to ten years' incarceration on each of the remaining three counts of receiving stolen property. The receiving stolen property sentences and the aggravated burglary sentences were made to run concurrently with each other.
On appeal, the court of appeals affirmed.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Michael Miller, Pros. Atty. and Bonnie L. Maxton, Columbus, for appellee.
James Kura, County Public Defender, and Barbara J. Slutsky, for appellant.
At trial, and before any evidence was presented, appellant was informed by the trial court that the jury would be instructed on three separate occasions: before the opening statements of counsel, after the evidence was presented but before closing arguments, and after closing arguments. At that time, appellant did not object to the court's splitting of instructions.
Following his announced procedure, the trial judge, before counsel's opening statements, instructed the jury on its obligation to follow the law, the significance of objections, the function of the jury as a trier of fact, the role of counsel, the correlation between questions and answers, the meaning of direct and circumstantial evidence, permissible inferences, and the credibility and weighing of evidence.
After the evidence was presented, and before counsel's closing arguments, the court again informed appellant that it would split the jury instructions. At that time, and at the request of both parties, the court agreed to repeat instructions on circumstantial evidence. Also at that time, appellant requested that before the case was submitted to the jury, the court repeat all relevant instructions previously provided in its preliminary instructions. Appellant's request was denied. The trial court, in addressing the jury, stated:
After informing the jury that all of the previously given instructions would not be repeated, the trial court then instructed the jury on direct and circumstantial evidence, permissible inferences, prior convictions, and on the law as applied to this case. It further instructed the jury not to take into consideration that the defendant did not testify, and to look at the evidence against defendant Comen separately. 1
After the closing arguments of counsel, the court again instructed the jury. The court instructed the jury on how to fill out the verdict forms and on the deliberation process.
Following this last instruction, the jury retired to deliberate. During deliberations, the jury asked two questions. The jury asked the court to reread the definitions of aiding and abetting and aggravated burglary. The court complied and reread both definitions. In addition, the jury asked: "In a team effort are all parties guilty of total crime[?]" In declining to answer the second question, the court...
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