State v. Pyles, 100418 OHCA4, 17CA3790

Docket Nº:17CA3790
Opinion Judge:Marie Hoover Presiding Judge
Party Name:STATE OF OHIO Plaintiff-Appellee, v. JACOB B. PYLES, Defendant-Appellant.
Attorney:Thomas R. Schiff, Hochwalt & Schiff, LLC, Kettering, Ohio, for appellant. Shane A. Tieman, Interim Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
Judge Panel:Abele, J. and McFarland, J. Concur in Judgment and Opinion.
Case Date:October 04, 2018
Court:Court of Appeals of Ohio
 
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2018-Ohio-4034

STATE OF OHIO Plaintiff-Appellee,

v.

JACOB B. PYLES, Defendant-Appellant.

No. 17CA3790

Court of Appeals of Ohio, Fourth District, Scioto

October 4, 2018

Thomas R. Schiff, Hochwalt & Schiff, LLC, Kettering, Ohio, for appellant.

Shane A. Tieman, Interim Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.

DECISION AND JUDGMENT ENTRY

Marie Hoover Presiding Judge

{¶1} Defendant-appellant, Jacob B. Pyles ("Pyles"), appeals the judgment of the Scioto County Court of Common Pleas, which convicted him of felonious assault and intimidation of attorney, victim, or witness in a criminal case and sentenced him to ten years of incarceration. On appeal, Pyles contends that: (1) the State failed to establish venue with respect to the intimidation charge; (2) the trial court erred in denying his motion for jury view; (3) trial counsel provided ineffective assistance;1 (4); the trial court erred in allowing an unadmitted exhibit to be published to the jury; (5) the State engaged in prosecutorial misconduct when it asked the victim to identify her prior unsworn statement; (6) the trial court erred in admitting an unauthenticated exhibit; and (7) his convictions are based upon insufficient evidence and/or are against the manifest weight of the evidence.

{¶2} Conversely, the State argues that: (1) venue was proven beyond a reasonable doubt with regard to the intimidation charge; (2) the trial court did not abuse its discretion in denying Pyles's motion for jury view; (3) Pyles failed to demonstrate that the result of the trial would have been different but for trial counsel's errors; (4) the trial court did not err in allowing State's Exhibit 6 to be published to the jury and, if it did, said error was harmless; (5) asking the victim to identify and read her unsworn statement was a harmless error; (6) the trial court did not abuse its discretion in admitting properly authenticated text messages; and (7) Pyles's convictions are based upon sufficient evidence and are not against the manifest weight of the evidence.

{¶3} For the following reasons, we find no merit in Pyles's assignments of error. Consequently, we affirm the judgment of the trial court.

I. Facts and Procedural History

{¶4} On or about October 13, 2016, Pyles allegedly assaulted Leah Ashley Adkins ("Adkins") at the address where the couple resided in Portsmouth, Ohio.On the date of the incident, three other individuals, Caroline Archey, Harold Murphy, and Todd Murphy, and seven dogs resided in the home. Adkins testified that she and Pyles "got into an argument over Facebook." According to Adkins, Pyles got mad and slapped her "a couple times." Adkins yelled for help until Pyles hit her in the face, causing her to lose consciousness.

{¶5} Adkins sought emergency medical treatment at King's Daughters Urgent Care in Portsmouth, Ohio. According to the initial encounter report by Luke Porginski, R.N., dated October 13, 2016, Adkins told hospital personnel that she was "jumped" by two females. Specifically, Adkins stated that she was hit with a closed fist to the left lateral eyebrow and suffered loss of consciousness. Matthew Harper, M.D., ("Dr. Harper"), a radiologist, remotely viewed Adkins's CT scans and rendered a preliminary report for the attending physician's use. In his report, Dr. Harper found Adkins had suffered mildly comminuted fractures of the medial wall of the left orbit. After conducting a physical examination and reviewing the CT scan results, the attending physician, Frank Prasnal, M.D. ("Dr. Prasnal"), diagnosed Adkins with a fracture of the left orbit, laceration of the eyebrow, and a cerebral concussion. Adkins received stitches for the laceration but did not require surgery and was discharged the same day.

{¶6} After being released from the hospital, Pyles picked her up and brought her back to the residence. The next day, Adkins took her things, left the residence, and stayed at her family camper and later at a friend's house in Franklin Furnace.

{¶7} On October 29, 2016, Adkins and her mother visited the Portsmouth Police Department, where they spoke to Portsmouth Police Officer Michael Queen ("Officer Queen") about filing a protection order. In her voluntary statement, Adkins reported that Pyles slapped her and then knocked her out during an argument at their residence in Portsmouth, Ohio. In addition to completing a medical release, Adkins provided Officer Queen with a record of the messages she allegedly received from Pyles via text and Facebook Messenger between October 15, 2016 and October 30, 2016.[2]

{¶8} Due to the seriousness of the injuries and the content of the text messages, Officer Queen ultimately spoke with Sergeant Benjamin Fugitt about filing criminal charges against Pyles. The incident report, which Officer Queen completed, stated that the alleged assault occurred on October 12, 2016. Officer Queen later testified that his "fat fingers" might have accidentally entered the wrong date.

{¶9} On December 20, 2016, the Scioto County Grand Jury issued a two-count indictment charging Pyles with Count 1: Felonious Assault, in violation of R.C. 2903.11, a felony of the second degree, and Count 2: Intimidation of Attorney, Victim, or Witness in a Criminal Case, in violation of R.C. 2921.04, a felony of the third degree. Pyles was arraigned on the charges in December 2016 and entered not guilty pleas.

{¶10} A trial was held over the course of three days beginning on January 23, 2017. Before the start of the first day of trial, the trial court ruled on multiple motions. The court denied Pyles's motion to exclude evidence and motion for jury view and granted the State's motion to amend indictment. Pursuant to Crim.R. 7(D), Count 1 of the indictment-which originally stated that the felonious assault occurred on or about October 12, 2013-was amended to "on or about October 13, 2016."

{¶11} After deliberations, the jury subsequently returned verdicts of guilty on both counts. Thereafter, the trial court sentenced Pyles to seven years of incarceration on Count 1: Felonious Assault, and thirty-six months of incarceration on Count 2: Intimidation of Victim in a Criminal Case, with said sentences to run consecutively.

II. Assignments of Error

{¶12} On appeal, Pyles assigns the following errors for our review: Assignment of Error I: Ohio Constitution Article 1, Section 10 states that an accused is entitled to a trial by an impartial jury of the county in which the offense is alleged to have been committed.

Assignment of Error II: Defendant was denied his right to a fair trial as a result of the court denying his request for a jury view.

Assignment of Error III: Counsel for Defendant was ineffective in failing to request a continuance as a result of the State's amendment of Count 1 of the Indictment on the day of trial and his failure to request a transcript of the Grand Jury testimony as a result of said amendment and his failure to do so constitutes ineffective assistance of counsel. [sic]

Assignment of Error IV: Counsel for Defendant provided ineffective assistance by allowing witnesses Prasnal, Harper, Porginski, to testify without the State laying the proper foundation. [sic]

Assignment of Error V: The Court committed reversible error by allowing an exhibit which had not been admitted into evidence to be published to the jury and, more significantly, allowed the jury to have said exhibit during deliberations.

Assignment of Error VI: Counsel for Defendant was ineffective and, but for counsel's ineffective assistance, the result of the trial would have been different.

Assignment of Error VII: The State was allowed to introduce Adkins' written statement in the absence of prior impeachment of her by Defendant.

Assignment of Error VIII: By the Court allowing text messages which Adkins could not authenticate as having been authored by or sent by Pyles, the Court committed reversible error.

Assignment of Error IX: Defendant's convictions were based upon insufficient evidence and were against the manifest weight of the evidence.

III. Law and Analysis

A. Venue Was Properly Established in Scioto County

{¶13} In his first assignment of error, Pyles contends that, as an accused, he was entitled to a trial by an impartial jury of the county in which his offenses were alleged to have been committed. In his brief, Pyles specifically argues that the State failed to establish venue for Count 2: Intimidation of Attorney, Victim, or Witness in a Criminal Case. According to Pyles, the State never asked Adkins to establish venue with respect to the text messages that Pyles allegedly sent Adkins and which form the basis for the intimidation charge. The State...

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