State v. Robert Kreischer
| Decision Date | 04 November 2002 |
| Docket Number | 01-CA18,02-LW-4640 |
| Citation | 2002 Ohio 6070 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. ROBERT KREISCHER, Defendant-Appellant Case |
| Court | Ohio Court of Appeals |
Criminal Appeal From Perry County Court of Common Pleas Case 00-CR-6984
Hon. W Scott Gwin, P.J., Hon. Julie Edwards, J., Hon. John Boggins J.
For Plaintiff-Appellee: JOSEPH FLAUTT, Perry County Prosecuting Attorney, P. O. Box 569, New Lexington, OH 43764.
For Defendant-Appellant: BARRY W. WILFORD, 28 West Henderson Road, Columbus, OH 43214
RICHARD M. LEWIS, 295 Pearl Street, Jackson, Ohio 45640
{¶1} Defendant-appellant Robert Kreischer appeals the denial of his Petition for Post- Conviction Relief by the Perry County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
{¶2} On June 22, 2000, the Perry County Grand Jury indicted appellant on one count of felonious assault in violation of R.C 2903.11(A)(1), a felony of the second degree. At his arraignment, appellant entered a plea of not guilty to the charge contained in the indictment. Thereafter, a jury trial commenced on January 22, 2001. The following evidence was adduced at the jury trial.
{¶3} On May 28, 2000, appellant and Terry Wooten, the victim herein owned adjacent properties located in Perry County, Ohio, which are accessible via a gravel access road. At trial, Wooten testified that, prior to May 28, 2001, he had problems with appellant with respect to the use of the access road "[f]rom time to time." (T. at 32).
{¶4} On May 28, 2000, Wooten and a friend, Brian Batross, were coming down the access road when they discovered that the road was blocked by two pickup trucks and a three wheeler. As Wooten was exiting his vehicle, he honked his horn. Appellant then approached with another man and told Wooten that he wanted to speak to him. Since appellant, who had a beer in his hand, appeared to be "a little intoxicated," Wooten took his eyeglasses off "just in case I got smacked." (T. at 35).
{¶5} Wooten testified that after appellant told him that "I want to kick your ass", he responded by stating (T. at 35). As Wooten walked behind his truck, appellant followed him. According to Wooten, appellant, who was behind him, "grabbed me and swung me around, got me in the eye" with his fist. (T. at 36). When Wooten fell to the ground, appellant kicked him five or six times in the head, neck and back. Wooten's account of what took place was corroborated by Brian Batross.
{¶6} Immediately after the assault, Wooten and Batross went to the Perry County Sheriff's Department where Wooten gave a statement to Deputy Ed Miller. According to Deputy Miller, appellant had abrasions and marks on his face, including injuries around both of his eyes and his right ear. Deputy Miller further testified that while Wooten's right eye was slightly discolored and "had some swelling to it", his left eye "was extremely swollen, and as time went on, as I was speaking with him and doing my interview with him, ...his eye began to close from the swelling." (T. at 92-93). Deputy Miller also noticed that the back of Wooten's hands "were kind of red". (T. at 105).
{¶7} Appellant testified at trial in his own behalf. Appellant testified that, after he told Wooten that all of the trucks blocking the access road could not be moved immediately since the owners of one of them were fishing at a nearby pond, Wooten "just freaked out". (T. at 171). The following is an excerpt from appellant's testimony at trial:
{¶8} "...I started walking back up the hill, and he's yelling at my kid, My son's like, "I can't even drive." He says, "You get somebody down here to move those F-ing trucks," and I go - - that's when I just walked up.
{¶9} "I says, "Wooten, what's your problem?" He says, "You get those F-ing trucks out of the road," and I told little Bob [appellant's son], I said "Get that four-wheeler out of the way." And he says - - he says, "This is just as much my road as it is yours," and he started going off on me. I said, "You're either going to go through or sit there for a while," because I knew the people that owned the truck were down fishing at the pond.
{¶10} "I told little Bob, I said, "Come on, little Bob," and we started walking back down to where they were working, and he just freaked out.
{¶11} "Q. Who's he?
{¶12} "A. Wooten. I heard the door slam on his truck, and I looked back, and he's ripping off his glasses and throws his glasses inside, rips his hat off, throws it on the ground, and comes running over to me and shoves me down the driveway. And I'm like, "What's your problem?"
{¶13} (T. at 171-172).
{¶14} According to appellant, at appellant's urging, the two then proceeded to walk away from Wooten's truck. Appellant testified that as the two approached Wooten's property line, Wooten started pushing him. When Wooten went to push appellant again, appellant . (T. at 173). Appellant, when asked, denied that he had ever kicked Wooten. Appellant and his friends, Gary Wojcik and James Ponsart, all testified at trial that appellant had only punched Wooten one time and that appellant had never kicked Wooten.
{¶15} As a result of the assault, Wooten suffered profound hearing loss in his left ear and, according to audiologist Jennifer Brown, a "mild, high-frequency sensory neural hearing loss" in this right ear. (T. at 108). In addition, Wooten's left facial bone was broken and permanently pushed in and Wooten suffered permanent vision loss.
{¶16} At the conclusion of the evidence and the end of deliberations, the jury, on January 22, 2001, returned with a verdict finding appellant guilty of felonious assault in violation of R.C. 2903.11(A)(1). Thereafter, as memorialized in a Judgment Entry filed on March 12, 2001, appellant was sentenced to two years in prison and ordered to make restitution to Wooten in the amount of $9,163.16.
{¶17} Appellant filed a direct appeal of his conviction and sentence wherein this Court found the basis for appellant's claim of ineffective assistance of counsel was not properly before this Court because such was not found in the record and that Postconviction relief, rather than a direct appeal, was a means by which the Appellant could bring claims of constitutional violations based upon matters outside the record. This Court did, however, find that the amount of the restitution was not supported by competent, credible evidence.
{¶18} Subsequently, on November 14, 2001, Appellant filed a Petition for Post Conviction Relief with the trial court styled as a Petition to Vacate or Set aside Judgment of Conviction or Sentence.
{¶19} On November 27, 2001, the trial court denied Appellant's Petition for Post Conviction Relief without making Findings of Fact and Conclusions of Law.
{¶20} Appellant filed a Notice of Appeal from such denial assigning error solely to the trial court's denial to issue Findings of Fact and Conclusions of Law.
{¶21} Upon the filing of briefs by each side, Appellant filed a Mandamus action with this Court to compel the trial court to enter Findings of Fact and Conclusions of Law.
{¶22} On April 17, 2002, the trial court issued Findings of Fact and Conclusions of Law, again denying the Petition without a hearing.
{¶23} Appellant filed an amended Notice of Appeal from such decision.
{¶24} It is from denial of this Petition that appellant now prosecutes his appeal, raising the following assignments of error:
ASSIGNMENTS OF ERROR
{¶25} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN DISMISSING HIS CLAIM THAT HE WAS DENIED CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW BY THE FAILURE OF THE PROSECUTOR TO DISCLOSE EXCULPATORY EVIDENCE MATERIAL TO HIS DEFENSE."
{¶26} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN DISMISSING HIS CLAIM THAT HE WAS DENIED CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBTAIN DISCOVERABLE WITNESS STATEMENTS WHICH WERE MATERIAL TO HIS DEFENSE."
{¶27} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN SUMMARILY DISMISSING HIS PETITION FOR POST-CONVICTION RELIEF WITHOUT A HEARING."
{¶28} Appellant, in his first assignment of error, maintains that the trial court erred in dismissing his claim that he was denied the right to a fair trial by appellee's failure to disclose Wooten's signed, written statement to the Sheriff's Department and Deputy Miller's typewritten notes summarizing Wooten's oral statements to him. We disagree.
{¶29} Appellant, in the case sub judice, had, on September 13, 2000, filed a written supplemental request for discovery pursuant to Crim.R. 16 requesting, in part, "[a]ny and all evidence favorable to the Defendant or applicable to his defense in this case".
{¶30} In Brady v. Maryland (1963), 373 U.S. 83, 87, it was established that the prosecution's failure to disclose evidence favorable to the accused upon request constitutes a violation of the Fourteenth Amendment's due process guarantee of a fair trial when "the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id.; see,...
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