State v. Norman
| Decision Date | 09 May 2013 |
| Docket Number | No. 12AP–505.,12AP–505. |
| Citation | 992 N.E.2d 432 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Brian L. NORMAN, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Ron O'Brien, Prosecuting Attorney, and Valerie B. Swanson, for appellee.
Shaw & Miller, and Mark J. Miller, for appellant.
{¶ 1} Defendant-appellant, Brian L. Norman, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas. For the reasons that follow, the judgment of the trial court is affirmed in part and reversed in part, and this matter is remandedto the trial court for additional proceedings.
{¶ 2} Appellant was indicted by a Franklin County Grand Jury on one count of burglary, a second-degree felony, in violation of R.C. 2911.12, and two counts of theft, one a fourth-degree felony and one a fifth-degree felony, both in violation of R.C. 2913.02. The charges herein arose from a burglary that occurred during the early morning hours of November 10, 2010. During the relevant timeframes of this case, John Maddox, a professional gambler, lived with his daughter and his mother, Shizuko Maddox, at 5421 Teakwood Court in Columbus, Ohio. Approximately one and one-half years before this incident, John met Kara Styles at the gentlemen's club where she worked and the two became friends. According to John, while he initially sought to date Kara, he stopped pursuing her romantically sometime in May or June 2010. Though appellant is the father of Kara's three children and Kara has lived with appellant “off and on for nine, eight or nine years,” Kara introduced appellant to John as her brother, Josh Styles. (Tr. 236.) According to Kara, during her one to one and one-half year friendship with John, he and appellant “hung out” often but at no time was appellant's real identity divulged to John. (Tr. 240.) Kara also testified that John would often buy things for her and loan money to appellant.
{¶ 3} Shizuko testified that on November 10, 2010, after she and her granddaughter went to bed, she was woken by a “lot of noise.” (Tr. 221.) Shizuko stated she went downstairs and found the kitchen window and back door open and noticed several items missing from the home. According to Shizuko, missing from the home were three watches, valued at $125, $95, and $85, respectively, a $280 Coach purse, $1,400 in cash, and a laptop computer that she believed was purchased for approximately $895.
{¶ 4} John testified that although he and appellant had hung out together, appellant had only been to his house on one occasion in order to borrow $20 and was “in and out like one minute.” (Tr. 257.) On the night his house was burglarized, John was at his girlfriend's house. John testified appellant called him at approximately 1:30 a.m. on November 10, 2010 and asked to borrow money, but John told appellant that he was not at home and that he would not loan him any money. John then received a phone call from his daughter around 3:00 a.m. informing him that they had been “robbed” and that the police were there. (Tr. 260.) Therefore, John returned home. According to John, he did not learn of appellant's true identity or relationship to Kara until the police informed him of it a month after the burglary.
{¶ 5} Columbus Police Officer Rick Crum testified that on November 10, he was dispatched between 3:00 and 3:30 a.m. to John's residence on a burglary in progress. The point of entry into the residence was determined to be a kitchen window approximately seven feet from the ground, and the point of exit was determined to be the back door. Officer Crum found a black jacket on the ground outside of the kitchen window. Additionally, Officer Crum was able to take fingerprints from the kitchen window.
{¶ 6} Testing established the fingerprints collected at the scene matched the known prints of appellant. DNA testing revealed appellant could not be excluded as one of the contributor's whose DNA was found on the jacket.
{¶ 7} After the presentation of the above-described evidence, the state rested. Appellant made a motion for acquittal, pursuant to Crim.R. 29, and a motion for a mistrial based on the state's alleged withholding of Crim.R. 16 discovery materials. The trial court denied both motions. Thereafter, appellant indicated he would be testifying on his own behalf and calling Columbus Police Detective David Samuel as a witness.
{¶ 8} Detective Samuel testified that in mid-December 2010, he interviewed John, who, according to Detective Samuel, was surprised to learn of appellant's true identity. Detective Samuel also testified that John stated appellant had been to his house “two or three” times. (Tr. 391.) Additionally, Detective Samuel testified regarding his interview of appellant on December 22, 2010, wherein appellant admitted the game he and Kara had run on John, but denied being involved in the burglary of John's house. According to Detective Samuel, appellant stated that, prior to November 10, he had been to John's house several times and had also been in the backyard where he and John smoked marijuana. Appellant stated he knew about the burglary because John had told him about it after it had happened. When asked how his fingerprints would have come to be found on the window, appellant stated John may have placed them there.
{¶ 9} Appellant testified on his own behalf. Appellant admitted introducing himself to John as Kara's brother, Josh Styles. Appellant testified John had given him money on several occasions, including one instance when John gave him $3,000. According to appellant, John gave him $150 the night before this incident occurred. Appellant denied calling John and asking for money on November 10 and further denied having any involvement in the burglary.
{¶ 10} Additionally, appellant testified he had been inside of John's house two or three times and smoked marijuana in the backyard with John. When asked about his fingerprints on the window, appellant stated, (Tr. 469.) Appellant also testified that during the evening of November 9, 2010, he was with Jeff Warden and Tony Campbell at Tony's house, and that they stayed there the entire night until the following morning.
{¶ 11} The jury found appellant guilty of all charges. For sentencing purposes, the trial court merged the two theft counts into the burglary count and sentenced appellant to a three-year term of incarceration. Additionally, appellant was ordered to pay $2,730 in restitution and was awarded 26 days of jail-time credit.
{¶ 12} This appeal followed, and appellant brings the following six assignments of error for our review:
I. The prosecutor engaged in prosecutorial misconduct during trial by improperly arguing that the defendant had a duty to update his notice of alibi and to disclose or file his notice of alibi more promptly, thus depriving the defendant his right to a fair and impartial trial.
II. The trial court committed reversible error by failing to hold an evidentiary hearing to determine the amount of restitution owed by the appellant.
III. The trial court abused its discretion in failing to give his requested jury instruction pursuant to State v. Martens, 90 Ohio App.3d 338 , and also erred in failing to grant appellant's motion for mistrial.
IV. The trial court abused its discretion in failing to give his requested jury instruction regar[d]ing inferences.
V. The trial court abused its discretion in denying appellant's motion for mistrial because the state failed to disclose several potential witnesses as required by Criminal Rule 16.
VI. The trial court's cumulative errors deprived the appellant of a fair trial even if one error alone did not rise to that level.
{¶ 13} For ease of discussion, appellant's assigned errors will not be discussed in the order presented as we will discuss appellant's second assignment of error out of order.
A. First Assignment of Error
{¶ 14} In his first assignment of error, appellant argues the prosecutor engaged in prosecutorial misconduct by improperly referencing his alibi during his cross-examination, during the cross-examination of Detective Samuel, and during closing arguments.
{¶ 15} The test for prosecutorial misconduct is whether the remarks were improper, and, if so, whether they prejudicially affected the accused's substantial rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984); State v. Howard, 10th Dist. No. 08AP–177, 2009-Ohio-2663, 2009 WL 1610849, ¶ 31. The touchstone of the analysis “is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). The prosecutor's conduct cannot be grounds for a new trial unless the conduct deprives the defendant of a fair trial. State v. Keenan, 66 Ohio St.3d 402, 405, 613 N.E.2d 203 (1993). In considering prejudice, we must consider the following factors: (1) the nature of the conduct, (2) whether counsel objected, (3) whether the court gave corrective instructions, and (4) the strength of the evidence against the defendant. State v. Tyler, 10th Dist. No. 05AP–989, 2006-Ohio-6896, 2006 WL 3775876, ¶ 20.
{¶ 16} According to appellant, the first instance of prosecutorial misconduct occurred during the state's cross-examination of defense witness Detective Samuel, wherein the following exchanged occurred:
Q. [D]id you at some point have information about a possible alibi in this case?
A. Yes. I was later informed that he may have an individual that claimed had been with Mr. Norman during the incident.
Q. When did that first come to your attention?
A. You called me up and advised me.
Q. Do you recall about when that was?
A. Oh, boy, probably couple months ago. I don't recall when you called exactly.
Q. So would it have—we're April now—either beginning...
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