State v. Miller, 101225.
| Decision Date | 12 February 2015 |
| Docket Number | No. 101225.,101225. |
| Citation | 27 N.E.3d 564 |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Ronald MILLER, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Gordon S. Friedman, Friedman & Gilbert, Cleveland, OH, for appellant.
Timothy J. McGinty, Cuyahoga County Prosecutor By: Gregory Mussman, Assistant Prosecuting Attorney, Cleveland, OH, for appellee.
Before: CELEBREZZE, A.J., S. GALLAGHER, J., and E.A. GALLAGHER, J.
{¶ 1} Appellant Ronald Miller appeals his convictions for attempted aggravated murder, attempted murder, and felonious assault. For the reasons stated herein, we reverse the judgment of the trial court, vacate the convictions and remand the case for a new trial.
{¶ 2} On April 10, 2013, appellant was indicted on charges of attempted aggravated murder, attempted murder, felonious assault, and violating a protection order. He ultimately entered a plea of no contest to the charge of violating a protection order, and his conviction for that offense has not been appealed. He entered a plea of not guilty to the remaining counts and was found guilty following a jury trial. The first three counts were merged for sentencing. The trial court sentenced appellant to a prison term of eight years on Count 1, attempted aggravated murder, and six months on Count 4, violating a protection order, to run concurrently. The court also imposed a mandatory five years of postrelease control and ordered appellant to pay a $10,000 fine and costs. Appellant has appealed his conviction on the first three charges.
{¶ 3} On February 8, 2013, appellant's wife (referred to herein as R.M.) was involved in a motor-vehicle accident. She was driving her 1994 Honda Civic while running errands. While driving through a shopping plaza, her vehicle began to accelerate despite her foot being on the brake. She drove into a brick pillar, and the vehicle was spun through the front window of a nail salon. R.M. called appellant, and the police were called to the scene. When a police officer started the vehicle in order to back it out, the engine began accelerating rapidly. A towing company then was called to remove the vehicle.
{¶ 4} After the vehicle was pulled away from the building, the hood was opened. A wood shim was observed in the throttle mechanism of the vehicle.
{¶ 5} R.M. refused treatment and returned home with appellant. Upon being questioned by police, R.M. reported that her marriage to appellant had its “ups and downs.” Appellant described their relationship as “love/hate.” They both were doing well financially. R.M. described appellant as being a quiet person, normally showing little emotion. Appellant and R.M. had been married since 1999. The topic of divorce was discussed early on in the marriage, and appellant had expressed how expensive and unpleasant it is to divorce. Nevertheless, at the time of the crash, there were no plans by either party to divorce.
{¶ 6} The police recovered wood shims from the home; however, this was not unusual. R.M. indicated that appellant had used them in the home, although infrequently. The police also found small shards of wood in the garage where R.M. stored her vehicle. When asked whether he put the shim in the accelerator, appellant acknowledged that he was mechanically inclined, but he indicated he did not have the knowledge to do something like that to a vehicle. Despite appellant's claims to not having the knowledge to compromise a throttle mechanism, a voluminous mechanical owner's manual for appellant's Pontiac Fiero was located in the home. Appellant also had a large amount of automotive tools.
{¶ 7} Appellant did not report any recent work having been done on R.M.'s vehicle, nor did he mention anything about changing the wiper blades. When he was informed a wood shim had been found in the accelerator, appellant mentioned it was not uncommon to find things in a vehicle.
{¶ 8} At one point during the investigation, appellant made reference to a mistaken identity theory and the possibility that someone mistakenly tampered with R.M.'s vehicle, believing the car belonged to someone else. He also asked the police to check surveillance video. When the police followed up with the requests, nothing turned up.
{¶ 9} Shortly following the accident, appellant and R.M. went to Motorcars Honda in Cleveland Heights. Appellant appeared upset and was asking whether someone could have tampered with the vehicle under the hood if the vehicle were locked. On March 1, 2013, the police brought the vehicle to Motorcars Honda for an inspection. It was discovered that appellant and R.M. had been there previously inquiring about the vehicle. The inspection of the vehicle revealed no abnormalities.
{¶ 10} Meanwhile, the police had submitted the wood shim to the Bureau of Criminal Investigation for DNA testing. The testing determined that DNA found on the shim was consistent with appellant's DNA. Another unidentified person's DNA was also found on the shim.
{¶ 11} Thereafter, the police arrested appellant, and he was charged with the crimes herein. R.M. felt disbelief upon learning appellant was a suspect.
{¶ 12} At trial, appellant indicated he and R.M. basically had a good marriage, but at times they did not agree and it was more difficult. Appellant claimed R.M. had been complaining about her windshield wipers and she wanted him to fix the problem. He testified that several weeks before the accident, he decided to change the windshield wipers on her vehicle. He had difficulty detaching the wiper blades. He opened the hood and tried to unbolt the arm from the motor mechanism, but the bolt was too tight. He decided to use a wood shim, affixed with a rubber band, to elevate one of the blades off the windshield so he could hit it with a hammer. He claimed the rubber band flew off and the shim fell into the engine. He was not able to locate the shim. He denied ever placing the shim in the throttle mechanism of R.M.'s vehicle.
{¶ 13} R.M. did not recall ever discussing the need to change the windshield wipers with appellant and was not aware that he had changed them. Appellant drove her car very little.
{¶ 14} Both sides called an expert to testify at trial. The state's expert opined that the vehicle's throttle was held in an open condition by a wood shim that had been placed in the throttle mechanism. The expert indicated that “the throttle could be normally operated through small pedal inputs with the wood shim providing no interference or stuck-throttle conditions,” but that “a larger throttle pedal input and subsequent pedal release” could cause the shim to become entrapped and thereby hold the throttle “open or in a stuck-throttle condition.” The expert was able to replicate the scenario three times, but was not able to consistently repeat the scenario.
{¶ 15} The defense expert found it highly unlikely that the shim could have been placed in the throttle mechanism because, according to him, had that happened, the engine would have been running at a very high rate of speed throughout. He opined that the shim had been in the engine compartment for an extended period of time before it became entangled in the throttle mechanism.
{¶ 16} During the trial, the state called appellant's first wife to testify. She had been married to appellant from 1966 to 1984 and had two children with him. She testified over objection that when she approached appellant about getting divorced, he threatened that he would “do something to the brakes so you'll be driving and you won't have brakes.” The threat was made in 1983; she testified no report was made to the police, and nothing ever happened to her brakes. She also testified over objection to threats appellant made against her father's business, although the trial court sustained an objection to this testimony and told the jury to disregard that statement. During appellant's testimony, he denied ever threatening to cut the brakes on his first wife's vehicle.
{¶ 17} Also during trial, the mechanic who towed the vehicle out from the storefront was permitted to testify over objection that
{¶ 18} On appeal, appellant raises four assignments of error for our review. Under his first assignment of error, appellant claims the trial court erred by allowing the introduction of improper other-acts evidence. Appellant argues that the testimony from his first wife regarding 30–year–old threats made by appellant upon the end of their marriage was not admissible under Evid.R. 404(B) or R.C. 2945.59.
{¶ 19} We begin our analysis by noting the excellent investigation conducted in this case by the Richmond Heights Police Department. Rarely do we review a case where police go to such lengths to investigate facts related to a possible crime. The police here did a comprehensive investigation, leaving no stone unturned.
{¶ 20} With the investigation complete and a crime charged, a trial court has broad discretion regarding the admissibility of other-acts evidence under Evid.R. 404(B), and its decision will not be interfered with absent an abuse of that discretion that created material prejudice. See State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 81. Other-acts evidence “ ‘is not generally admissible to demonstrate that the defendant has a propensity for crime or that his character is in conformity with the other acts.’ ” State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 26, quoting State v. Mann, 19 Ohio St.3d 34, 482 N.E.2d 592 (1985), paragraph one of the syllabus; see also Evid.R. 404(B). However, such evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Evid.R. 404(B). Evid.R. 404(B) is in accord with R.C. 2945.59. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-569...
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