State v. Leslie
| Citation | 14 Ohio App.3d 343,471 N.E.2d 503 |
| Parties | , 14 O.B.R. 410 The STATE of Ohio, Appellee, v. LESLIE, Appellant. |
| Decision Date | 10 February 1984 |
| Court | United States Court of Appeals (Ohio) |
Syllabus by the Court
1. An order granting or denying a motion in limine is a tentative, preliminary or presumptive ruling about an evidentiary issue that is anticipated. An appellate court need not review the propriety of such an order unless the claimed error is preserved by a timely objection when the issue is actually reached during the trial.
2. The provision in R.C. 2905.01(C) reducing kidnapping to a felony of the second degree "[i]f the offender releases the victim in a safe place unharmed" is a circumstance the establishment of which mitigates a defendant's criminal culpability. It is not an element of the crime of kidnapping, but it is in the nature of an affirmative defense and is to be treated as such.
3. A defendant has no Sixth Amendment right to confront a witness with irrelevant evidence. It is within the sound discretion of a trial court to determine the relevancy of evidence and apply R.C. 2907.02(D), Ohio's rape shield law, to best meet the purpose behind the statute which is to exclude evidence of other sexual activity by the alleged victim or the defendant.
Lee C. Falke, Pros. Atty., and Sharon L. Ovington, Cincinnati, for appellee.
Steven M. Cox, Dayton, for appellant.
On January 3, 1983 defendant-appellant, Dwayne A. Leslie, was tried before a jury in the Montgomery County Common Pleas Court on two counts of rape, R.C. 2907.02(A)(1), two counts of kidnapping, R.C. 2905.01(- A)(4), and one count of gross sexual imposition, R.C. 2907.05(A)(1). On January 6, 1983 the jury returned its verdict finding defendant guilty as charged on all counts. Defendand has filed a timely appeal to this court asserting three assignments of error.
Appellant's first assignment of error states:
On December 28, 1982 appellant filed a pretrial motion in limine which requested the trial court for an order directing the prosecuting attorney to make no reference to appellant's prior criminal record during trial. In addition, appellant requested an evidentiary hearing on this motion.
The record discloses that the trial court did not conduct an evidentiary hearing upon appellant's motion in limine and we can find no evidence in the record that the trial court ruled upon appellant's motion. According to appellant's brief, however, the trial judge informed counsel prior to trial that the state would be permitted to question appellant as to his prior criminal record and to inquire of appellant that his prior convictions were for aggravated robbery, rape and kidnapping. Nevertheless, we can find no evidence of such a ruling in the record before us.
During trial, defendant-appellant took the witness stand and the evidence of appellant's prior convictions, which was the subject of appellant's pretrial motion in limine, was introduced by appellant during his direct examination. No objection was raised concerning its admissibility. It is appellant's contention that the trial court erred in overruling appellant's motion in limine prior to trial and in permitting testimony of appellant's prior criminal record to be admitted into evidence during the trial.
Generally, a motion in limine is a pretrial request to the trial court for a precautionary instruction to avoid error or prejudice by limiting the examination of witnesses in specified areas until the admissibility of certain evidence is determined by the court. A trial court may or may not rule upon such a motion prior to trial. If a trial court does rule upon the motion prior to trial, such a liminal order is to be effective only until the admissibility of the evidence is resolved at the appropriate time during trial when the court is required to make its ruling. State v. Spahr (1976), 47 Ohio App.2d 221, 353 N.E.2d 624 .
An order granting or denying a motion in limine is a tentative, preliminary or presumptive ruling about an evidentiary issue that is anticipated. An appellate court need not review the propriety of such an order unless the claimed error is preserved by a timely objection when the issue is actually reached during the trial. State v. White (1982), 6 Ohio App.3d 1, 451 N.E.2d 533; see, also, Evid.R. 103(A)(1).
In the present case, appellant himself, during direct examination, introduced evidence of his prior criminal record. No objection was made as to the admittance of this evidence during trial. Therefore, regardless of whether the trial court ruled upon appellant's motion in limine prior to trial, appellant waived his objection to the admittance of his prior criminal record when he admitted this evidence upon direct examination.
Accordingly, appellant's first assignment of error is overruled.
Appellant's second assignment of error provides:
"II. The trial court erred in overruling appellant's objection to its refusal to charge the jury that failure to release the victim in a safe place unharmed is an element of the kidnapping offenses and in refusing appellant's request that that element be included in the verdict forms for the jury's determination.
R.C. 2905.01, in effect at the time the alleged offenses occurred, reads in pertinent part:
It is appellant's contention that pursuant to subsection (C) of R.C. 2905.01, the offense of kidnapping as a first degree felony has as an element "the failure to release the victim in a safe place unharmed." Appellant submits that the trial court erred in omitting this element from the jury instructions and in refusing appellant's request that the element be included in the verdict forms for the jury's determination.
The provision in R.C. 2905.01(C) reducing kidnapping to a felony of the second degree "[i]f the offender releases the victim in a safe place unharmed" is a circumstance the establishment of which mitigates a defendant's criminal culpability. It is not an element of the crime of kidnapping, but it is in the nature of an affirmative defense and is to be treated as such. State v. Cornute (1979), 64 Ohio App.2d 199, 412 N.E.2d 416 .
In order to find a defendant guilty of kidnapping pursuant to R.C. 2905.01, there is no requirement on...
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