State v. Michael Childers

Decision Date11 June 1997
Docket Number97-LW-2047,96 CA 785
PartiesSTATE OF OHIO, Plaintiff-Appellee v. MICHAEL CHILDERS, Defendant-Appellant Case
CourtOhio Court of Appeals

COUNSEL FOR APPELLANT: John K. Clark, Jr., 213 East Broadway Wellston, Ohio 45692.

COUNSEL FOR APPELLEE: Mark A. Ochsenbein, Jackson County Prosecutor 266 East Main Street, Jackson, Ohio 45640.

DECISION

ABELE J.

This is an appeal from a Jackson County Common Pleas Court judgment of conviction and sentence. The jury found Michael Childers, defendant below and appellant herein, guilty of one count of felonious assault in violation of R.C. 2903.11, one count of inciting to violence in violation of R.C. 2917.01 and one count of aggravated riot in violation of R.C. 2917.02.

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHS (OF THE VICTIM) WHOSE PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN PERMITTING THE STATE TO IMPROPERLY AMEND A GRAND JURY INDICTMENT (WHICH FAILED TO COMPLY WITH THE CONSTITUTIONAL MANDATORY LANGUAGE OF ARTICLE IV SECTION 20 OF THE OHIO CONSTITUTION)."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT'S CRIM.R. 29 MOTION FOR AN ACQUITTAL, WHEN THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF EVIDENCE."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ADMITTING A DECLARANT'S (JASON SNYDER'S) STATEMENTS AS IT DID NOT COMPLY WITH EVID. RULE 804(B)(3) AND VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT ADVERSE WITNESSES." (sic)

FIFTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN NOT CONSIDERING THE DEFENDANT'S REQUEST OF THE COURT TO CONDUCT AN IN-CAMERA INSPECTION OF THE GRAND JURY TRANSCRIPTS."

At approximately 9 p.m. on February 2, 1996, sixteen-year-old Elijah Gatrell was driving his truck through Jackson, Ohio with veterinarian Dr. Aaron Myers as a passenger. Gatrell was forced to stop the truck when a young man placed himself in front of the truck near a crowd of about twenty young people, many of whom had been drinking alcoholic beverages that evening. Gatrell and the young man exchanged words and began to fight. Others joined in the fight against Gatrell. When Dr. Myers attempted to stop the fighting and calm the crowd, some people physically attacked Dr. Myers and rendered him unconscious. While Dr. Myers was on the ground, appellant kicked him more than once in the ribs. Dr. Myers suffered three broken ribs and numerous facial injuries as a result of the attack.

On February 21, 1996, the Jackson county Grand Jury indicted appellant on one count of felonious assault in violation of R.C. 2903.11, one count of inciting to violence in violation of R.C. 2917.01, and one count of aggravated riot in violation of R.C. 2917.02.

On March 4, 1996, appellant filed a motion for an order to review the grand jury record. In a memorandum in support of the motion, appellant noted that on the day after the grand jury indicted him, his counsel spotted a poorly erased chalkboard in the room where the grand jury met. Appellant's counsel read the following words on the chalkboard:

"Jaiman Wacker hit [illegible], knocked him down. Nathan Wacker hit him on [illegible] off. [illegible], Jay bragged about it. Randy

were w\Wackers"

Appellant argues that "it is not unreasonable to think [the chalkboard] was used as a summation of testimony" before the grand jury. Appellant further argues that if the chalkboard was used in this manner, then the chalkboard "demonstrates that there was no evidence that [appellant] did anything to cause serious physical harm to Aaron Myers * * * [,] that the indictment * * * is outside the scope and beyond the evidence brought before the grand jury * * * [,] that the indictment * * * is improper and unlawful."

On April 11, 1996, appellee filed a motion to amend the indictment to add the words "against the peace and dignity of the State of Ohio" at the end of each count. In the motion, appellee argued that the words were inadvertently omitted from the indictment. On April 17, 1996, the court granted appellee's motion to amend the indictment.

On June 12, 1996, appellant filed a motion to limit the use and size of color photographs of the felonious assault victim, Dr. Aaron Myers. In the motion, appellant argued that the prejudicial impact of the photographs outweighed any probative value of the photographs.

The trial began on June 13, 1996. Appellant presented fourteen witnesses. Jackson Police Department Officer Ray Lewis testified that when he responded to the crime scene, he observed a total of twenty-five to thirty people apparently divided into two factions. From his observations and investigations, Officer Lewis determined that there had been a "pretty large fight."

Dr. Myers testified that when he and Gatrell were driving that night, a group of people ran toward the road and one person ran into the road and thus forced Gatrell to stop his truck. The majority of the people went around to Gatrell's side of the truck and began fighting with Gatrell. When Dr. Myers attempted to reason with the crowd, some people began attacking him and knocked him unconscious. Dr. Myers suffered three fractured ribs, a shattered cheek bone, and a broken orbit around one eye. Dr. Myers described the attack on him and Gatrell as "a riot situation" involving twenty or more people.

Appellant objected to Gatrell's testimony about the assaults committed upon him. Appellant noted that the indictment specified crimes against Dr. Myers, not crimes against Gatrell. The prosecutor argued that testimony about the crimes committed against Gatrell relates to the aggravated riot count in the indictment. In response to this argument, appellant's attorney conceded, "I think he's already established that your Honor."

Randel Bentley testified that he was convicted of at least one of the many charges stemming from the incident. Bentley further testified that many people involved in the incident were at Jay Wacker's apartment both before and after the incident. Bentley stated that he believed that a few of the people in the apartment went uptown "to look for certain Oak Hill people * * * because of the incident that happened the weekend before."

Mike Euton testified that "pretty much all of us" at Jay Wacker's apartment that evening were drinking alcohol. Euton explained that during the prior weekend some boys from Oak Hill "supposedly hit" Jay Wacker's car with baseball bats.

Bradley Heath Edwards testified that the group from Jay Wacker's apartment went uptown "to find the boys that started in on us last weekend," meaning "the ones that jumped me, Jay and Randy Bentley at Sundry News" in Jackson. Edwards further testified that "we all [about twenty people] got out of our cars and stood, I don't know, stood in a big circle right there in front of the street" and at some point in time afterwards, "we all started fighting in the street."

Five witnesses linked appellant to the injuries suffered by Dr. Myers. Melissa Webb testified that she witnessed appellant kick Dr. Myers more than once in the stomach and ribs during the incident. William Adam Bailey testified that in his February 11, 1996 statement to the police, he said that appellant said "he got [Dr. Myers]" and appellant said "he was in the middle of it." Christie Parker testified that she saw appellant kick Dr. Myers a couple of times in the ribs. Wendy Knouse testified that appellant kicked Dr. Myers at least once in the chest or rib area. Carla Collins testified that she saw appellant kicking Dr. Myers.

Appellant presented four witnesses. Jackson Police Department officer Ray Lewis testified that Jay Wacker admitted he hit Dr. Myers during the incident. Joseph Casey testified that he didn't see appellant during the incident. Kevin M. Crabtree testified that he saw Brad Edwards "running his mouth" shortly after the incident, but didn't see anyone kicking Dr. Myers. Steve Snyder testified that although he saw a group of people around Dr. Myers when Dr. Myers was lying in the street, he didn't see appellant kicking Dr. Myers.

Appellee presented one rebuttal witness. Jackson City Police Department Patrolman Jim Callahan testified that when he interviewed Jason Snyder on February 7, 1996, Snyder stated that appellant kicked Dr. Myers while he was lying in the street and appellant later bragged about having kicked Dr. Myers.

The jury found appellant guilty as charged. The trial court sentenced appellant to six to fifteen years on the felonious assault charge, one year on the inciting to violence charge, and one year on the aggravated riot charge.

Appellant filed a timely notice of appeal.

I

In his first assignment of error, appellant asserts that the trial court erred by admitting photographs of the victim into evidence. Appellant contends that the probative value of the photographs was substantially outweighed by the danger of unfair prejudice. In particular, appellant contends that because no one testified that he struck Dr. Myers in the head or face, the photographs of his head and face should not have been admitted into evidence.

Under Evid.R. 403 and 611(A), the admission of photographs into evidence is left to the sound discretion of the trial court. State v. Slagle (1992), 65 Ohio St.3d 597, 601, 605 N.E.2d 916, 923, citing State v. Landrum (1990), 53 Ohio St.3d 107, 121, 559 N.E.2d 710, 726. The admission of potentially prejudicial exhibits is determined under a balancing test: the probative value of the evidence must be weighed against the danger of unfair prejudice. State v Franklin (1991), 62 Ohio St.3d 118, 580 N.E.2d 1. If the danger of undue...

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