State v. Robert Becker, 85-LW-2840

CourtUnited States Court of Appeals (Ohio)
PartiesState of Ohio, Plaintiff-Appellee v. Robert Becker, Defendant-Appellant
Docket Number85-LW-2840,83 X 20
Decision Date09 May 1985

Messrs Bertram & Porter, Randall L. Porter, Marietta, Ohio, for Appellant.

Mr Michael G. Spahr, Prosecuting Attorney, Marietta, Ohio for Appellee.


Stephenson P.J.

This is an appeal from a judgment of conviction and sentence entered by the Common Pleas Court of Washington County, Ohio upon a jury verdict finding Robert Becker, defendant below and appellant herein, guilty of assault in violation of R.C. 2903.13.

The appellant sets forth the following assignments of error:

"I. The Trial Court erred in recessing in between the state's eyewitnesses.
II. The conviction of appellant for assault, a first degree misdemeanor, in violation of Section 2903.13 of the Ohio Revised Code was not supported by credible evidence of such a nature which a jury could find appellant guilty beyond a reasonable doubt."
(Numbered By The Court)

On June 14, 1983, the Washington County, Ohio grand jury returned a two-count indictment charging appellant with felonious assault against Pam Sears and assault against Pat Kelly, as proscribed by R.C. 2903.11 and R.C. 2903.13, respectively. At trial, evidence was adduced by the prosecution tending to establish that on April 19, 1983, Pam Sears, Pat Kelly, and Michele Leeson went to the Maple Cafe in Marietta, Ohio. At about 9:30 P.M., appellant entered the Maple Cafe where he sat down and talked to some friends and their children. Pam Sears, who had about a month earlier broken off a relationship with appellant, approached appellant and started swearing at him for giving a necklace to her second cousin, Terri Waters.

After appellant had left the Maple Inn, the three women decided to go home. At approximately 1:00 A.M., they decided to stop in at the Little Inn to see Pam Sear's ex-husband. Upon arriving at the Little Inn, the three noticed appellant at the bar. The three women testified that they left the Little Inn upon discovering appellant's presence. They walked out either the front or side door of the bar. Pam Sears testified that appellant called her "bitch", whereupon she turned around and was punched in the face by appellant. Appellant then punched Pat Kelly, who fell to the ground. Both Pam Sears and Pat Kelly were taken to a local hospital. Pam Sears suffered a seriously broken nose, which required surgery and would require further surgery to permanently correct the injury.

Appellant presented evidence, including his testimony, tending to establish that Pam Sears had a violent temper and had a reputation for pulling out her gun on slight provocation. Several defense witnessess also testified that Pam Sears, Pat Kelly, and Michele Leeson had seen appellant dancing with two women at the Little Inn that night and said they were going to get that "little bitch", referring to one of the women with whom appellant had been dancing.

Appellant testified that he followed Pam Sears and her two friends outside, warning them not to bother his friends and to remain in West Virginia. Appellant claimed that Pam Sears then waved her gun at him, and in fear of serious bodily harm, he punched Pam Sears in the nose. Appellant then testified that Pat Kelly jumped on him and forced him to punch her in the chest.

After hearing in chief of testimony from two of appellee's witnesses, Michele Leeson and Pat Kelly, the court sought to recess to dispose of another criminal matter and for lunch. The court asked for consent of respective counsel for the two-hour recess. Apparently, though not affirmatively appearing in the record, appellant's attorney sought a separation of appellee's three eye witnesses during the recess to assure that they would not confer about their respective testimony. The court responded to appellant's attorney's request in the following manner:

"JUDGE RIGGS: For the record, the court notices the presence in open court of Pamela Sears, the presence of Patricia Sue Kelly and the presence of Michele. You are instructed not to confer with each other concerning your testimony in this case and if you have not testified as yet, do not confer-absolutely not confer with the other two parties who have testified. That is a Court Order. If you disobey, the Court will dismiss this charge. (inaudible).
MR. SPAHR: They may be together, but they may not discuss. . .
JUDGE RIGGS: I'd just as soon they did not even eat together, but they be separated during this period."

No objection was made to the court after recess that the witnesses had violated the separation order nor was any evidence adduced tending to show a violation. The jury returned a verdict of guilty as to the lesser offense of assault with respect to the charge of felonious assault upon Pam Sears and returned a verdict of not guilty with respect to the charge of assault upon Pat Kelly. A journal entry reflecting the jury verdict was filed on the same day.

Appellant's first assignment of error contends that the trial court erred in recessing after two of appellee's eye-witnesses and before appellee's final eye-witness testified even though no such objection appears in the record. Appellant claims that the inconsistencies developed in Michele Leeson and Patricia Kelly's testimony raised the issue of whether their testimony was fabricated and necessitated the trial court order concerning their separation during recess or the postponement of recess until Pam Sears testified. Appellant then argues that by allowing three witnesses to have lunch together without court supervision violated his constitutional right to effective cross-examination. We disagree.

The separation of witnesses was held to be under longstanding Ohio law not a matter of right of the parties, but to be within the sound discretion of the trial court. In re Brown, Weiss, and Wohl (1963), 175 Ohio St. 149; Fulkerson v Fulkerson (App. 1932), 12 Ohio Law Abs. 324; Meyer v Renner Co. (App. 1951), 63 Ohio Law Abs. 356; Dibert v Ross Pattern & Foundry Development Co. (1957), 105 Ohio App. 264; State v Ross (1886), 9 Ohio Dec. Rep. 590.

However, the Ohio Rules of Evidence, as enacted in 1980, provided in Evid. R. 615, the following:

"At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its

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