State v. Given, CASE NO. 15 MA 0108
| Decision Date | 30 June 2016 |
| Docket Number | CASE NO. 15 MA 0108 |
| Citation | 2016 Ohio 4746 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. JEROME GIVEN, DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
For Plaintiff-Appellee:
Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
{¶1} Defendant-Appellant Jerome Given appeals from his conviction entered in Mahoning County Common Pleas Court for two counts of aggravated assault. Four assignments of error are raised in this appeal. In his first assignment of error, Appellant argues there was a hearsay violation at trial. In his second assignment of error, he asserts the trial court should have sua sponte granted a mistrial when a juror engaged in improper communication with a state's witness. The third assignment of error raises a manifest weight of the evidence argument. In his fourth assignment of error, Appellant argues the guilty verdicts for aggravated assault are inconsistent with the not guilty verdicts for the attendant gun specifications.
{¶2} For the reasons expressed below, all assignments of error lack merit. The conviction and sentence are affirmed.
{¶3} On July 11, 2014, an altercation occurred between Appellant and Charles Pete outside Appellant's house located on Compton Lane in Youngstown, Ohio. Charles was shot twice.
{¶4} The undisputed evidence shows Charles was on his way to pick up his girlfriend, Melissa Thomas, from work. Melissa is Appellant's ex-girlfriend and they have two children together. Charles admittedly had a few drinks prior to going to pick up Melissa.
{¶5} Charles drove past Compton Lane, which is a street that ends in a cul-de-sac. He saw Melissa's youngest child playing outside of Appellant's house and decided to stop, say hi, and talk to Appellant about their relationship. Appellant and Melissa were in a custody dispute over the children. Charles wanted to let Appellant know that there should not be problems between Appellant and Charles. Charles went down to the cul-de-sac, turned around, and stopped his vehicle in front of Appellant's house. Upon exiting the car, he left the car running and the driver's door open. Tr. 149, 298.
{¶6} At this point Charles' version of what occurred and Appellant's version of what occurred diverge.
{¶7} According to Charles, he walked up the driveway, said hi to Melissa's son, and spoke to Appellant. Tr. 134. He allegedly told Appellant there should not be problems between them because he loved the kids and Melissa. Tr. 134. At that point, Appellant told the child to go into the house. Tr. 134. Charles claimed Appellant said "I got you now mother-f****r," pulled a gun from his person, and hit Charles in the head with a gun. Tr. 135. [asterisks added to omit profanity.] Charles stated he attempted to leave when Appellant shot him in the left side of his back; his back was turned to Appellant and he was walking to the vehicle. Tr. 137-138. Charles got in the car and heard another gun shot. Tr. 139. He was shot twice. Tr. 139. Charles drove to the hospital and was in the hospital for three weeks; he was in a medically induced coma for a week.
{¶8} According to Appellant, the above version of events is inaccurate. He claimed that upon exiting the vehicle, Charles said to him, Tr. 299-300. [asterisks added to omit profanity.] Appellant stated he could tell Charles was on something by the look in his eyes. Tr. 299. In response to the statements, Appellant admitted he punched Charles in the jaw. Tr. 300. Charles went back to his vehicle and got a gun. Tr. 301. There was a struggle over the gun and a shot went off. Tr. 301. Appellant claims they were still struggling over the gun when Charles got into the vehicle. Tr. 301. Charles stomped on the gas and dragged Appellant up the street; Appellant was hanging onto the driver side door that was still open. Tr. 301-302. Appellant fell off of the vehicle before it reached the end of the street.
{¶9} After the incident, Appellant got his children and wife, who were in the house, and left town; they went to a hotel in Akron. Appellant testified he was scared for their safety because Charles indicated he had friends in the neighborhood.
{¶10} Following an investigation into the matter, Appellant was indicted for attempted murder, in violation of R.C. 2903.02(A)(D) and R.C. 2923.02(A), a first-degree felony; two counts of felonious assault, in violation of R.C. 2903.11(A)(1)(D) and R.C. 2903.11(A)(2)(D), both second-degree felonies; and having a weapon under disability, in violation of R.C. 2923.13(A)(2)(B), a third-degree felony. The attempted murder and felonious assault charges each contained attendant firearm specifications, a violation of R.C. 2941.145(A).
{¶11} The first three charges were tried to a jury. The fourth charge, weapon under disability, was tried to the bench.
{¶12} At trial, both Charles and Appellant testified to the above information.
{¶13} Officers that investigated the incident also testified. They found a revolver sticking out of the driver's seat headrest. Tr. 202, 213, 221. Three spent casing and three live rounds were in the revolver. Tr. 215-216. A bullet path from the driver's seat headrest to the front passenger seat was found with a bullet being removed from the front passenger seat. Tr. 213. There were scratches on the driver's side doors, and one officer testified Appellant looked like he "swimmed across the pavement." Tr. 219-220, 263.
{¶14} An expert from BCI testified about DNA found on the aforementioned revolver. DNA found on the trigger was not sufficient for comparison. However, DNA taken from the remainder of the gun was consistent with Appellant's DNA profile. He could not be excluded; his rate of inclusion was 1 in 22,000 people. Tr. 246. Charles was found to be inconclusive as a contributor. This meant there was data present consistent with his DNA profile, but not in a high enough amount that it could be found to be an inclusion. Tr. 242. There was also DNA from an unknown profile that was sufficient for comparison. Tr. 241.
{¶15} Melissa Thomas testified at trial, about a conversation she had with Daralynn Cooper. Tr. 171-175. Daralynn Cooper witnessed the event and relayed the events to Melissa while it was happening. Melissa, over objections, relayed that conversation to the jury; Daralynn Cooper did not testify at trial. Melissa also testified she had seen Appellant with that revolver years before when they were living together. Tr. 190.
{¶16} Christine Given, Appellant's wife, also testified. She stated she had not seen a gun in their home. Tr. 330.
{¶17} The jury returned a not guilty verdict on attempted murder. The jury also found Appellant not guilty of the felonious assault charges. However, the jury found him guilty of the inferior degree offenses, aggravated assault, in violation of R.C. 2903.12(A)(1)(B) and R.C. 2903.12(A)(2)(B), fourth-degree felonies. It did not find him guilty of the attendant firearm specifications. 5/22/15 J.E. The trial court found Appellant not guilty of having a weapon under disability. 5/22/15 J.E.
{¶18} The two aggravated assault convictions merged for purposes of sentencing. Appellant received a 15 month prison term. It is noted in the sentencing judgment entry, the trial court indicated Appellant was being sentenced for violating R.C. 2903.12(A)(1)(B) and R.C. 2903.12(A)(1)(B). 7/9/15 J.E. This statement was clearly a clerical error; the judgment entry journalizing the jury verdict, the jury verdicts and the court's statements at sentencing indicate Appellant was found guilty of R.C. 2903.01(A)(1)(B) and R.C. 2903.12(A)(2)(B) and was being sentenced for those convictions. 5/22/15 J.E; 5/15/15 Jury Verdicts; 7/1/15 Sentencing Tr. 13.
{¶19} Appellant timely appealed raising four assignments of error.
"The trial court erred when it admitted the hearsay statements of Daralynn Cooper through the testimony of witness Melissa Thomas."
{¶20} This assignment of error addresses Melissa's testimony relaying the conversation she had with Daralynn Cooper. The testimony is as follows:
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