State v. Kincer, 2005 Ohio 5626 (OH 10/24/2005), CA2004-06-048.
| Decision Date | 24 October 2005 |
| Docket Number | No. CA2004-06-048.,CA2004-06-048. |
| Citation | 2005 Ohio 5626 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Kelly Lennie Kincer, Defendant-Appellant. |
| Court | Ohio Supreme Court |
Donald W. White, Clermont County Court of Common Pleas, David H. Hoffmann, 123 North Third Street, Batavia, Ohio 45103-3033, for plaintiff-appellee.
H. Fred Hoefle, 415 Provident Bank Bldg., 632 Vine Street, Cincinnati, Ohio 45202, for defendant-appellant.
{¶1} Defendant-appellant, Kelly Lennie Kincer, appeals his conviction in Clermont County Court of Common Pleas for the offense of interference with custody. We affirm the conviction for the reasons outlined below.
{¶2} Appellant was charged in 2002 with the fifth-degree felony of interference with custody, under R.C. 2919.23(A)(1), after he transported a 16-year-old female ("J.J.") from her workplace in Ohio to his home in Kentucky, overnight, without the permission of her parents.
{¶3} Appellant was found guilty by a jury in 2004 and sentenced accordingly. He presents five assignments of error in this appeal.
{¶4} Assignment of Error No. 1:
{¶5} "THE JUDGMENT OF CONVICTION IS CONTRARY TO LAW AND TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES IN THAT THERE WAS INSUFFICIENT EVIDENCE ADDUCED TO ESTABLISH EACH AND EVERY ELEMENT OF EACH OFFENSE BEYOND A REASONABLE DOUBT."
{¶6} Assignment of Error No. 2:
{¶7} "THE JUDGMENT OF CONVICTION IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE."
{¶8} Appellant combines both assignments together and specifically argues that there was insufficient evidence that appellant knew he was without privilege to entice, take, keep or harbor J.J. or that he was reckless in regard to his privilege, and that his conviction was against the manifest weight of the evidence on the issue of appellant's knowledge or recklessness.
{¶9} In resolving the sufficiency of the evidence argument, the relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of syllabus.
{¶10} In determining whether a conviction is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. A unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required to reverse a judgment of a trial court on the weight of the evidence in a jury trial. Thompkins at 389.
{¶11} R.C. 2919.23(A)(1) states that "[n]o person, knowing the person is without privilege to do so or being reckless in that regard, shall entice, take, keep, or harbor a person identified in division (A)(1), (2), or (3) of this section from the parent, guardian, or custodian of the person identified in division (A)(1), (2), or (3) of this section: (1) A child under the age of eighteen, or a mentally or physically handicapped child under the age of twenty-one; ***." R.C. 2919.23(D)(2) states that if the child is removed from the state, a violation of the division is a felony of the fifth degree.
{¶12} According to R.C. 2901.01(A)(12), "`[p]rivilege' means an immunity, license, or right conferred by law, bestowed by express or implied grant, arising out of status, position, office, or relationship, or growing out of necessity."
{¶13} R.C. 2901.22(B). R.C. 2901.22(C).
{¶14} Addressing appellant's specific argument on appeal, we note that there was abundant testimony, including appellant's admission, that appellant picked up J.J. from Ohio and drove her to his home in Kentucky and returned her to her place of employment in Ohio some 17 hours later.
{¶15} J.J.'s parents testified that appellant did not have permission to take J.J. The parents testified that they believed their daughter was going to work when they left her at her place of employment, and they spent the overnight hours looking for J.J., after they called her work and were informed she was not there and had not been scheduled to work. After they were unsuccessful in locating J.J., the parents called the police. Law enforcement authorities were waiting at J.J.'s place of employment when appellant brought J.J. back to her workplace that afternoon.
{¶16} J.J. testified that she told appellant during one of their initial contacts that she was 16 years of age. The girl also testified that she knew appellant was 26 years old at the time and that she and appellant hid their relationship from her parents.
{¶17} There was also evidence that will be more extensively discussed in another assignment of error that appellant had previous internet contact with J.J.'s minor sister, and had been instructed by law enforcement not to have any further contact with J.J.'s sister ("sister"), and with the "Jennings"1 family.
{¶18} Construing the evidence most favorably for the state on the sufficiency challenge, we find that a rational jury could have found the element of knowledge or recklessness and the other essential elements of the crime of interference with custody beyond a reasonable doubt.
{¶19} For purposes of the manifest weight of the evidence review, in addition to the evidence previously discussed, the state also presented evidence from J.J.'s parents that they were unaware of appellant's relationship with their daughter.
{¶20} Appellant emphasized to the jury that J.J. had testified in a previous hearing that she told appellant and his mother that she was 18 years of age. Both appellant and his mother testified that they were told by J.J. that she was18 years old and worked as a nurse. Appellant also testified that his relationship with J.J. was only a friendship, that their contact was much less frequent than J.J. had indicated, and that J.J. instigated the contact on the night in question and willingly spent the night in Kentucky.
{¶21} J.J. testified that appellant had coached her in her testimony for the previous hearing, that she believed she loved appellant at the time, and therefore, she lied at the previous hearing to protect appellant.
{¶22} We must be mindful that the original trier of fact was in the best position to judge the credibility of witnesses and the weight to be given the evidence. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of syllabus. The jury may believe or disbelieve any witness or accept part of what a witness says and reject the rest. State v. Antill (1964), 176 Ohio St. 61, 67.
{¶23} The jury believed that appellant knew that J.J. was under 18 years of age and knew he was without privilege from J.J.'s parents to take, keep, or harbor J.J. in another state, or was reckless in that regard. We find that the jury did not clearly lose its way and create such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Appellant's first and second assignments of error are overruled.
{¶24} Assignment of Error No. 3:
{¶26} Appellant's specific argument focuses on the trial court's refusal to grant his motion in limine and the trial court's subsequent admission of evidence and argument that appellant had been previously told by Clermont County law enforcement not to have contact with J.J.'s younger sister, who was less than 14 years of age at the time, and not to have contact with the Jennings family.
{¶27} In order to preserve the error in a ruling on a motion in limine, the evidence must be presented at trial, and a proper objection lodged. State v. Brown (1988), 38 Ohio St.3d 305, paragraph three of syllabus. An appellate court will then review the correctness of the trial court's ruling on the objection rather than the in limine ruling. State v. Davis, Stark App. No. 2003 CA 429, 2004-Ohio-7056, ¶26.
{¶28} The trial court enjoys broad discretion in admitting or excluding evidence. State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of syllabus. An appellate court will not disturb the trial court's decision absent a showing that the accused has suffered material prejudice. Id. at 182.
{¶29} Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Evid.R. 404(B).
{¶30}...
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