State v. McCullough, 2008 Ohio 3055 (Ohio App. 6/23/2008)
| Decision Date | 23 June 2008 |
| Docket Number | No. 12-07-09.,12-07-09. |
| Citation | 2008 Ohio 3055 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Mark E. Mccullough, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
William H. White, Attorney at Law, Reg. #0024936, 311 North Elizabeth Street, Lima, Ohio 45801, For Appellant.
Todd C. Schroeder, Asst. Prosecuting Attorney, Reg. #0075265, 234 East Main Street, Ottawa, Ohio 45875, For Appellee.
{¶1} Defendant-Appellant, Mark E. McCullough, appeals the May 25, 2007 Judgment Entry of the Court of Common Pleas of Putnam County, Ohio convicting him of domestic violence.
{¶2} In March 2007, the Putnam County Grand Jury indicted McCullough for one count of domestic violence in violation of R.C. 2919.25(A),(D)(4), a felony of the third degree. The indictment arose from an incident involving a physical altercation between McCullough and his live-in girlfriend and child's mother.
{¶3} In April 2007, McCullough entered a plea of not guilty.
{¶4} In May 2007, McCullough and the State filed a "Stipulation of Facts" stating that McCullough had been previously convicted of domestic violence in violation of R.C. 2919.25(A); that he had been previously convicted of abduction in violation of R.C. 2905.02(A)(1); and, that the abduction conviction was an offense of violence against his family or household member. The stipulation was signed by McCullough and his trial counsel.
{¶5} Thereafter, the case proceeded to a jury trial. Immediately prior to witness testimony, the trial court stated on the record that the parties had stipulated that McCullough had been previously convicted of domestic violence and abduction, and that the abduction was an offense of violence against a family or household member.
{¶6} Additionally, during opening statements, McCullough's counsel made the following statement:
And you might say as one of your fellow jurors asked me, well, why would [the victim] get up here and lie about it, because people have motives, and people have reasons for doing things that are only known to themselves. Let me give you what I believe is the motive in this case. The motive is how do I get rid of [McCullough], how can I make sure that [McCullough] has no contact with my baby from this point on, I'm tired of [McCullough], how must I do this, I must act like a victim, but wait, before I act like a victim, I must prepare, I will make plans to leave and go out of town, I have relatives there, I can tell everyone from out of town how scared I am of [McCullough], I will tell them all the stories of how [McCullough] has abused me in the past.
{¶7} Thereafter, the following testimony was heard.
{¶8} The victim, Sabrina Kistler, testified that she and McCullough began a relationship in April 2005; that, in October 2005, while she was pregnant with their child, McCullough prevented her from leaving their home, dragged her through the street, and then tried to force her into her car; that, around July 2006, he threw a laundry basket at her while she was holding their infant child; that he threatened to kill her if she left him; that he took her keys and locked her car in their garage to prevent her from leaving; that, in October 2006, he pushed her down and held her down by her throat; that he grabbed her throat on several occasions and scratched her; that, after McCullough had grabbed her throat for putting a pan in the wrong cupboard, her grandfather, Richard Knapp, asked her if he had been abusing her and she showed him bruises on her neck; that, on December 14, 2006, McCullough grabbed her throat, pushed her onto the ground, held her down by her neck, and kicked her in the back of the head; and, that she left their home the next day and stayed temporarily at a domestic violence shelter.
{¶9} Knapp testified that, over a period of approximately six months beginning in July 2006, the frequency of Kistler's contact with him lessened; that Kistler told him that this was because McCullough was taking her cell phone and locking her car in their garage; that he saw bruises on Kistler and she told him that McCullough had grabbed her throat and threatened to kill her because she had put a pan in the wrong place; and, that, from June 2006 until December 2006, Kistler's personality changed because it seemed she "was highly concerned that if anybody said anything [to McCullough,] * * * [he] would get mad and it would make it worse on her." (Trial Tr., p. 97).
{¶10} Lieutenant Mike Schroth of the Ottawa Police Department testified that he had been called to investigate domestic violence incidents between McCullough and Kistler twice; that, in the first incident, McCullough had pushed Kistler and told Lieutenant Schroth that "he was upset because [Kistler] was pregnant and he did not like that at all" (Trial Tr., p. 107); that, in response to the second incident, he went to McCullough's residence with another officer; that he rang the doorbell to the residence, knocked repeatedly, stated that it was the police, and no one answered; that he continued to knock for seven or eight minutes and then looked through the window and saw McCullough sitting in the living room; that he and the other officer continued to knock and yell, but McCullough did not answer the door; that he obtained a search warrant for the residence; that, after obtaining the warrant, he and several other officers knocked and announced their presence both outside and inside the residence, but received no response; that he observed three two-by-four boards screwed to the wall so that the back door to the residence could not be opened; that he located a trap door inside a closet in the residence, opened it, and noticed a fresh foot print in the crawl space below; that the officers repeatedly called into the crawl space and told McCullough to come out; that eventually they called into the crawl space that they were bringing in a canine unit; and, that McCullough then crawled out of the trap door.
{¶11} The trial court also gave the following instruction on consciousness of guilt as part of its charge to the jury:
Testimony has been admitted indicating that the Defendant resisted arrest or concealed his whereabouts from law enforcement. You are instructed that resisting arrest or concealing his whereabouts from law enforcement alone does not raise a presumption of guilt, but it may tend to indicate the Defendant's consciousness or awareness of guilt.
If you find that the facts do not support that the defendant resisted arrest or concealed his whereabouts from law enforcement, or if you find that some other motive prompted the Defendant's conduct, or if you are unable to decide what the Defendant's motivation was, then you should not consider this evidence for any purpose. However, if you find that the facts support that the Defendant engaged in such conduct and if you decide that the defendant was motivated by a consciousness or an awareness of guilt, you may, but are not required to, consider that the [sic] evidence in deciding whether the defendant is guilty of the crime charged. You alone will determine what weight, if any, to give to this evidence.
{¶12} Thereafter, the jury convicted McCullough of domestic violence and the trial court sentenced him to a five-year prison term.
{¶13} It is from this judgment that McCullough appeals, presenting the following assignments of error for our review.
THE STIPULATION ENTERED INTO BY THE ATTORNEYS IN THE COURT WAS NOT PROPERLY AGREED TO BY THE DEFENDANT.
TRIAL COURT ERRED IN PERMITTING CRITICALLY DAMAGING HEARSAY TO BE ADMITTED.
DEFENDANT-APPELLANT WAS DENIED RIGHT OF COMPETENT AND EFFECTIVE ASSISTANCE OF COUNSEL.
THE TRIAL COURT GAVE IMPROPER INSTRUCTIONS AS PART OF ITS CHARGE TO THE JURY.
{¶14} In his first assignment of error, McCullough claims that he did not agree to the stipulation of prior convictions his attorney entered on his behalf. Specifically, McCullough argues that the stipulation to his prior conviction was entered without his knowledge or consent.
{¶15} McCullough was convicted of domestic violence in violation of R.C. 2919.25(A), (D)(4) which provides in pertinent part:
A) No person shall knowingly cause or attempt to cause physical harm to a family or household member. ***
(D)(1) Whoever violates this section is guilty of domestic violence. ***
(3) Except as otherwise provided in division (D)(4) of this section, if the offender previously has pleaded guilty to or been convicted of domestic violence, a violation of an existing or former municipal ordinance or law of this or any other state or the United States that is substantially similar to domestic violence, a violation of section 2903.14, 2909.06, 2909.07, 2911.12, 2911.211, or 2919.22 of the Revised Code if the victim of the violation was a family or household member at the time of the violation, a violation of an existing or former municipal ordinance or law of this or any other state or the United States that is substantially similar to any of those sections if the victim of the violation was a family or household member at the time of the commission of the violation, or any offense of violence if the victim of the offense was a family or household member at the time of the commission of the offense, a violation of division (A) or (B) of this section is a felony of the fourth degree, and a violation of division (C) of this section is a misdemeanor of the second degree.
(4) If the offender previously has pleaded guilty to or been convicted of two or more offenses of domestic violence or two or more violations or offenses of the type described in division (D)(3) of this section involving a person who was a family or household member at...
To continue reading
Request your trial