State v. Rudolph
| Decision Date | 05 February 2019 |
| Docket Number | Case No. 17CA12 |
| Citation | 2019 Ohio 468 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. BRUCE J. RUDOLPH Defendant-Appellant. |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Alex Kochanowski, Cincinnati, Ohio, for Appellant.
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and W. Mack Anderson, Assistant Lawrence County Prosecuting Attorney, Ironton, Ohio, for Appellee.
{¶1} Bruce J. Rudolph appeals two judgment entries of the Lawrence County Court of Common Pleas dated July 20, 2017. Appellant was convicted of one count of Complicity to Tampering with Evidence, R.C. 2923.03(A)(2)/R.C. 2921.12(A)(1)(b), a felony of the third degree. On appeal, he asserts that (1) the trial court erred in overruling his Crim.R. 29 Motion for Acquittal; (2) the trial court erred by finding the State of Ohio possessed subject matter jurisdiction in his case; and (3) the trial court erred in overruling Appellant's objection to inadmissible and highly prejudicial evidence. Based upon our review of the record, we find no merit to Appellant's assignments of error. Accordingly, we affirm the judgment of the trial court.
{¶2} On November 29, 2016, Appellant was indicted on one count of Tampering With Evidence, R.C. 2921.12(A)(1)(b). The indictment was related to another criminal case, that of Marvin Sexton, who pleaded guilty to attempted murder, burglary, and tampering with evidence, after he severely beat and injured his ex-girlfriend, Melissa Howard, on November 3, 2016, who was in a coma and on life support. The assault took place in Chesapeake, Ohio.
{¶3} Appellant was accused of tampering with evidence because he admittedly burned Sexton's jeans and socks after Sexton called him and requested he "get rid of" the items Sexton was wearing at the time he beat Ms. Howard. At the time of the assault, Sexton had been staying with Appellant and another man, Frank Smith, in Huntington, West Virginia. Appellant burned Sexton's jeans and socks outside his residence in West Virginia.
{¶4} Appellant eventually proceeded to trial. Prior to trial, his attorney, Brian J. Cremeans, filed a Motion in Limine barring use of any and all evidence against Defendant for lack of subject-matter jurisdiction. Counsel argued that the State had disclosed no evidence through the discovery process indicating that the tampering statute had been violated in the State of Ohio. The State's response submitted that the evidence at trial would support a conviction of complicity to tampering with evidence and that the State planned to request a complicity jury instruction. The trial court denied the Motion in Limine.
{¶5} Defense counsel also filed a Motion in Limine requesting the trial court prohibit the use of any pictures, video, testimony, or documentary evidence describing the details of the attempted murder of Melissa Howard. Counsel requested the State be limited to providing the facts as alleged in the Bill of Particulars. Counsel argued Appellant would be unfairly prejudiced due to the high probability that the jury would equate Appellant's actions with the crimes of Marvin Sexton. The trial court also denied this motion.
{¶6} Appellant proceeded to a jury trial on July 13 and 14, 2017. The trial court issued a complicity instruction to the jury. Appellant was convicted of Complicity to Tampering with Evidence, also a third-degree felony. On July 18, 2017, Appellant was sentenced to a term of incarceration of two (2) years in the appropriate state penal institution.
{¶7} Appellant's notice of appeal was filed August 1, 2017 by Attorney Warren Morford. The notice of appeal attached two entries, a judgment entry which indicated Appellant's conviction and established the sentencing date, and a judgment entry final appealable entry [sic], which set forth the entire sentence. Both entries were stamp-filed July 20, 2017. In addition, the record transmitted to this court contained an amended judgment entry final appealable entry [sic] stamp-filed August 29, 2017.
{¶8} Where necessary, additional facts will be set forth below.
{¶9} Before we proceed to analysis of Appellant's arguments herein, we note that that Amended entry filed August 29, 2017 was not supplemented in some manner to the notice of appeal filed by Attorney Morford. Our review of the record indicates the only difference between the Amended entry and the Amended Judgment Entry Final Appealable Entry is that in the twelfth paragraph on page three of the Amended entry, it is stated: "Defendant is granted credit for time served, to-wit: 12 days, along with future days while Defendant awaits transport to the appropriate state penal institution." In the appealed from Judgment Entry Final Appealable Entry, that same paragraph sets for the number of days granted credit for time served, along with setting forth the actual dates previously served. Both entries were signed by the prosecuting attorney and Appellant's trial counsel, Attorney Cremeans.
{¶10} Appellate counsel was granted two extensions of time to file the appellate brief. On March 9, 2018, Attorney Morford filed a motion to withdraw as counsel, and this motion was granted. On March 23, 2018, Appellant's current counsel, Attorney Kochanowski, was appointed.
{¶11} Generally, after a notice of appeal has been filed, a lower court loses jurisdiction to issue any orders that would impair the ability of the appellate court to exercise jurisdiction over the issue that has been appealed. Conley v. Warden, CM Newspapers, Inc. v. Dawson (Jan. 28, 1992), 10th Dist. No. 91AP-1067, 1992 Ohio App. LEXIS 344. The impairment "must be of a nature that actually interferes with the exercise of appellate jurisdiction by the appellate court." Olen Corp. v. Franklin Cty. Bd. of Elections, 43 Ohio App.3d 189, 200, 541 N.E.2d 80 (1st Dist.1988).
{¶12} A similar situation to Appellant's here occurred in State v. Kase, 187 Ohio App.3d 590,932 N.E.2d 990, 2010-Ohio-2688 (7th Dist.). There, after Kase filed a notice of appeal, the trial court sua sponte issued an amended judgment entry of sentencing. The appellate court observed at 38:
"Once a case has been appealed, the trial court loses jurisdiction except to take action in aid of the appeal." In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, at ¶ 9, citing State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97, 378 N.E.2d 162 (1978). In other words, "the trial court retains all jurisdiction not inconsistent with the court of appeals' jurisdiction to reverse, modify, or affirm the judgment." Yee v. Erie Cty. Sheriff's Dept., 51 Ohio St.3d 43, 44, 553 N.E.2d 1354 (1990), citing In re Kurtzhalz, 141 Ohio St. 432, 48 N.E.2d 657 (1943), paragraph two of the syllabus."
The Kase court concluded that because the trial court's amended judgment entry of sentencing did not change the sentence, but simply provided additional reasoning underlying the court's sentencing decision, the amended entry was not inconsistent with the appellate court's jurisdiction. Id. at ¶ 12. Therefore, the Kase court considered the appeal.
{¶13} This reasoning is also applicable herein. The amended entry issued after the notice of appeal was filed does not change Appellant's sentence. Nor does it impair this court's ability to exercise its jurisdiction over the issues Appellant has raised. Therefore, we proceed to consideration of his assignments of error.
{¶14} Appellant was convicted of Complicity to Tampering with Evidence.1 In the first assignment of error, Appellant asserts the trial court erred in overruling his Crim.R. 29 Motion for Acquittal when the State's evidence was insufficient to prove that Appellant knew anything about Sexton's criminal acts at the time he burned Sexton's clothing. He also argues there was insufficient evidence of subject matter jurisdiction in the State of Ohio.
{¶15} In the second assignment of error, Appellant focuses on his argument that the evidence presented at trial was insufficient to show that Appellant tampered with evidence in the State of Ohio. Appellant points out that the facts in this record indicate that (1) he was located in West Virginia throughout the events alleged, and (2) the actions which gave rise to the allegations occurred entirely within West Virginia. Therefore, Appellant concludes, the State of Ohio lacked subject-matter jurisdiction and his conviction must be vacated.
{¶16} Under Crim.R. 29(A), "[t]he court on motion of a defendant * * *, after the evidence on either side is closed, shall order the entry of acquittal * * *, if the evidence is insufficient to sustain a conviction of such offense or offenses." State v. Colley, 2017-Ohio-4080, 92 N.E.3d 1 (4th Dist.), at ¶ 39, quoting State v. Wright, 2016-Ohio-7654, 74 N.E.3d 695, ¶ 21. "A motion for acquittal under Crim.R. 29(A) is governed by the same standard as the one for determining whether a verdict is supported by sufficient evidence." Id. quoting State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37; State v. Husted, 2014-Ohio-4978, 23 N.E.3d 253, ¶ 10 (4th Dist.).
{¶17} In State v. Young, 4th Dist. Meigs No. 458, 1992 WL 18845 (July 28, 1992), Young, who was tried in Meigs County, asserted that there was insufficient evidence of venue. Young argued that all elements of the charged offense, kidnapping, were committed in West Virginia. This court observed that Section 10, Article I of the Ohio Constitution fixes venue, or the proper place to try a...
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