State v. Jones

• Decision Date: 15 November 1996
• Docket Number: No. 93,93
• Citation: 115 Ohio App.3d 204,684 N.E.2d 1304
• Parties: The STATE of Ohio, Appellee, v. JONES, Appellant. * C.A. 18. Seventh District, Mahoning County
• Court: Ohio Court of Appeals

Page 204

115 Ohio App.3d 204

684 N.E.2d 1304

The STATE of Ohio, Appellee, v. JONES, Appellant. ^*

No. 93 C.A. 18.

Court of Appeals of Ohio,

Seventh District, Mahoning County.

Decided Nov. 15, 1996.

James A. Philomena, Mahoning County Prosecuting Attorney, and Michele G. Cerni, Assistant Prosecuting Attorney, Youngstown, for appellee.

Albert A. Palombaro, Youngstown, for appellant.

COX, Judge.

This matter presents a timely appeal from a jury verdict and judgment entered upon the verdict by the Mahoning County Common Pleas Court, finding defendant-appellant, Ernest Jones, guilty on one count of felonious assault in violation of R.C. 2903.11(A)(2)(B) and two counts of aggravated robbery in violation of R.C. 2925.11(B)(1)(b), along with firearm and prior conviction specifications on all counts, and his subsequent sentencing thereon.

On March 6, 1992, the victims traveled to Atway's in Youngstown, Ohio, apparently to purchase cigarettes with food stamps. This location was known to be a high crime and drug area. Appellee, state of Ohio, alleges that upon leaving the store and returning to his vehicle, one victim, Greg Colaluca, was approached by appellant, who was carrying a gun, and asked for money. Apparently, appellant had been friends with this victim prior to this incident. When the victim ran back towards the store, appellant shot him and then turned to the remaining passengers in the vehicle and demanded money from them.

Appellant was indicted by the Mahoning County Grand Jury on one count of felonious assault and three counts of aggravated robbery, along with firearm and prior conviction specifications on each count. This matter proceeded to jury trial on January 6, 1993, and following deliberation, the jury found appellant guilty of felonious assault and guilty on two of the three counts of aggravated robbery. Appellant was also found guilty with regard to the firearm and prior conviction specifications.

Appellant was sentenced to an indefinite incarceration term of not less than eight years nor more than fifteen years, with eight years' actual incarceration, for felonious assault. He was further sentenced to an indefinite incarceration term of not less than ten years nor more than twenty-five years, with ten years' actual incarceration, for each of the aggravated robbery convictions. These sentences were ordered to run concurrently. With regard to sentencing on the firearm specifications, since the crimes were committed as part of the same act or transaction, appellant was sentenced to only one three-year term of actual incarceration. This appeal followed.

Appellant sets forth two assignments of error on appeal.

Appellant's first assignment of error alleges:

"The trial court committed plain error in not ordering a mistrial despite the fact that no mistrial was requested by trial counsel after experienced police detective testified that defendant-appellant had a prior record."

Appellant takes exception to the following exchange which took place during the trial between the prosecuting attorney and Sergeant Santillo, the Youngstown police officer who was assigned to investigate the alleged crimes:

"Q. And at the time of the contact would you tell us what you did with each one of those 3 people that I have mentioned?

"A. I interviewed all 3 people separately and took a written statement from each one of them. Mr. Colaluca knows the defendant personally. Had known him for approximately one year. And Mr. Colaluca gave me the defendant's name. The defendant had a prior record and a photo."

Defense counsel objected to Sergeant Santillo's remarks, and the objection was sustained by the trial court, which then instructed the jury to disregard the remarks. The trial court did not explain or give a cautionary instruction to the jury. Appellant complains that Sergeant Santillo's testimony came at the end of appellee's case-in-chief, and although testimony elicited from appellee's other witnesses established that he was a drug user and frequently used drugs with the one victim, Greg Colaluca, that did not permit an open season on him with regard to bad character or act testimony.

Appellant argues that since Sergeant Santillo had been a police officer for twenty-two years, he was accustomed to testifying in court, was very familiar with the rules of evidence and was experienced enough to recognize a defense counsel's trial strategy. Appellant also points out that Sergeant Santillo was present in the courtroom during the testimony which preceded his. Appellant cites State v. Reynolds (1988), 49 Ohio App.3d 27, 33, 550 N.E.2d 490, 497, wherein the court held:

"A mistrial should not be ordered in a criminal case merely because some error or irregularity has intervened, unless the substantial rights of the accused or the prosecution are adversely affected; this determination is made at the discretion of the trial court."

Appellant maintains that he was highly prejudiced by Sergeant Santillo's remarks concerning his prior record since he did not testify to or place his character at issue with regard to prior convictions. Appellant also points out that one of his witnesses, who was present during the commission of the alleged crimes, testified that he was not the perpetrator.

Appellant submits that the trial court's error in this regard was not harmless beyond a reasonable doubt given the circumstances. Appellant...