State v. Smith, 2010 Ohio 1721 (Ohio App. 4/19/2010)

Decision Date19 April 2010
Docket NumberNo. CA2009-02-038.,CA2009-02-038.
PartiesState of Ohio, Plaintiff-Appellee, v. Robert B. Smith, Defendant-Appellant.
CourtOhio Court of Appeals

Robin N. Piper III, Butler County Prosecuting Attorney, Gloria J. Sigman, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011-0515, for plaintiff-appellee.

Derek A. Farmer, P.O. Box 30083, Gahanna, Ohio 43230, for defendant-appellant.

OPINION

YOUNG, P.J.

{¶1} Defendant-appellant, Robert B. Smith, Jr., appeals his conviction for obstruction of justice following a retrial in the Butler County Court of Common Pleas.

{¶2} Appellant was indicted in 2006 on one count of obstruction of justice, a felony of the third degree, in violation of R.C. 2921.32(A)(5) and (C)(4). The charge stemmed from allegations that when police were attempting to ascertain the identity of one of his employees, appellant told police that his employee's name was Charles Williams when it was Charles Martin and that this same employee had left the building shortly before he was found by police hiding inside the building. Authorities later discovered a felony charge pending against the employee in another county.

{¶3} In 2007, a jury acquitted appellant of third-degree felony obstruction of justice, but found him guilty of fifth-degree felony obstruction of justice, in violation of R.C. 2921.32(A)(5) and (C)(3). We reversed appellant's conviction on the grounds of prosecutorial misconduct and ineffective assistance of counsel and remanded the case to the trial court for further proceedings. State v. Smith, Butler App. No. CA2007-05-133, 2008-Ohio-2499. Finding appellant's third assignment of error (sufficiency and manifest weight of the evidence) to be moot, we declined to address it.

{¶4} Appellant subsequently moved to dismiss the 2006 indictment (the original indictment). Appellant argued that given his acquittal at trial, to retry him on the third-degree felony obstruction of justice, the only count in the original indictment, would violate double jeopardy. Appellant also argued the original indictment did not contain all the elements of obstruction of justice (of either a third or fifth-degree felony) because it failed to allege the person aided "committed" a felony.

{¶5} By decision filed November 13, 2008, the trial court granted appellant's motion to dismiss. The trial court agreed that in light of his acquittal, to prosecute appellant on third-degree felony obstruction of justice, as charged in the original indictment, would violate double jeopardy. The trial court found, however, that because appellant's conviction was reversed due to trial error (prosecutorial misconduct) and not based upon the sufficiency of the evidence, appellant could be retried on a fifth-degree felony obstruction of justice charge.

{¶6} Appellant subsequently moved the trial court to clarify its decision. Appellant pointed out that he was never indicted for fifth-degree felony obstruction of justice; the only indictment issued was the original third-degree felony indictment; and because the trial court had dismissed that indictment, there was no charge or indictment pending against him "to go forward on."

{¶7} By decision filed November 21, 2008, the trial court reiterated that because double jeopardy does not bar the state from retrying a defendant who was found guilty of an offense that was later reversed on trial error grounds, "the State may retry Defendant on the lesser-included offense of Obstruction of Justice, a felony of the fifth degree."

{¶8} Then, by journal entry filed November 26, 2008, the trial court granted appellant's motion to dismiss the original indictment "insofar as the State of Ohio is barred from further prosecution on the offense of Obstructing Justice, a third degree felony in violation of R.C. 2921.32(A)(5) as charged in the indictment ***." Finding, however, that the state could retry appellant "on the lesser included offense of Obstructing Justice, a fifth degree felony in violation of R.C. 2921.32(A)(5)," the trial court sua sponte amended the original indictment to charge appellant with one count of fifth-degree felony obstruction of justice.

{¶9} Appellant moved to dismiss the amended indictment but was unsuccessful. On December 12, 2008, a jury found him guilty of fifth-degree felony obstruction of justice, in violation of R.C. 2921.32(A)(5), as charged in the amended indictment.

{¶10} Appellant now appeals, raising six assignments of error. We will consider the third assignment of error out of order.

{¶11} Assignment of Error No. 3:

{¶12} "THE TRIAL COURT ERRED IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, WHEN IT FAILED TO GIVE A JURY INSTRUCTION

WHICH REQUIRED THE JURY TO FIND APPELLANT GUILTY BEYOND A REASONABLE DOUBT OF EACH AND EVERY ELEMENT OF THE OFFENSE OF OBSTRUCTION OF JUSTICE — SPECIFICALLY, THE TRIAL COURT DID NOT REQUIRE THE JURY TO FIND THAT THE PERSON AIDED COMMITTED A FELONY."

{¶13} Appellant challenges the trial court's jury instructions for obstruction of justice on the ground they do not require the jury to find that the person aided committed a felony, in violation of R.C. 2921.32 and in deviation from 3 Ohio Jury Instructions (2009) 92, Section 521.32.1 At trial, finding it was sufficient to show the person aided had been charged with a crime at the time of the defendant's conduct, based on this court's decision in State v. Mootispaw (1985), 23 Ohio App.3d 142, the trial court declined to instruct the jury under Section 521.32.

{¶14} Jury instructions are matters which are left to the sound discretion of the trial court. State v. Guster (1981), 66 Ohio St.2d 266, 271. Ordinarily, requested instructions should be given if they are correct statements of the law, applicable to the facts in the case, and reasonable minds could reach the conclusion sought by the specific instruction. State v. Lawson (Apr. 30, 2001), Butler App. No. CA99-12-226, at 18, citing Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585. Ohio Jury Instructions are standard instructions and are not binding legal authority. State v. Goff, Lawrence App. No. 07CA17, 2009-Ohio-4914, ¶76. Strict compliance with OJI is not mandatory; deviation from OJI does not necessarily constitute error by a trial court. State v. Miller, Montgomery App. No. 22433, 2009-Ohio-4607, ¶14.

{¶15} The trial court instructed the jury that "[1] before you can find the defendant guilty, you must find beyond a reasonable doubt that *** the defendant, did communicate false information to another person with purpose to hinder the discovery, apprehension, prosecution, conviction, or punishment of another for a crime or to assist another to benefit from the commission of a felony crime; [2] it is not necessary that the State prove that the person aided by the defendant be actually convicted of a crime. Rather, it is sufficient to show that he had been charged with a crime at the time of the defendant's conduct; and [3] if you find the defendant guilty of obstruction of justice, you must separately determine beyond a reasonable doubt whether Charles Martin had the charge of robbery, a felony of the second degree, pending against him."

{¶16} In Mootispaw, we held it was not necessary to show that the person aided was actually convicted of a crime. Rather, it was sufficient to show that the person aided was charged with a crime:

{¶17} "Obviously, one cannot hinder the prosecution or conviction of another for crime unless a crime has actually occurred. The statute does not require, however, that the specific person being legally [sic] assisted be actually convicted of such crime. To hold otherwise would emasculate the purpose and intent of the legislature expressed in unambiguous terms. It is sufficient to show that the defendant's husband was charged with a crime, and that the defendant hindered his prosecution or conviction." Mootispaw, 23 Ohio App.3d at 144. This court then upheld the denial of Mootispaw's Crim.R. 29 motion for acquittal.

{¶18} Subsequently, in State v. Penwell (Jan. 21, 1986), Fayette App. No. CA85-02-004, we addressed a trial court's refusal to instruct a jury that the state was required to prove, beyond a reasonable doubt, that the person aided committed a crime. In Penwell, the person aided had been indicted for the corruption of a minor. Relying on Mootispaw, we rejected the defendant's argument as follows:

{¶19} "The jury instruction given by the trial court, regarding the elements of obstruction of justice, included inter alia, `the defendant did so [harbor or conceal, etc.] with purpose to hinder the discovery and/or apprehension of [the person aided] for a crime.' Such an instruction was correct and in accord with our holding in Mootispaw and we adhere to our position in Mootispaw." Id. at 9-10. (Emphasis sic.)

{¶20} Mootispaw and Penwell, therefore, stand for the proposition that while obstruction of justice cannot be committed unless an underlying crime has been committed, to sustain a conviction for obstruction of justice under R.C. 2921.32, the state need not prove the person aided committed the underlying crime; rather, the state need only prove the person aided was charged with the underlying crime at the time of the defendant's conduct.

{¶21} In contrast with this court's position in Mootispaw and Penwell, the First Appellate District held that "[t]he crime of obstructing justice cannot be committed without the commission of an underlying crime by another[.] Therefore, it was incumbent upon the state to establish that the underlying crime had been committed." State v. Bronaugh (1980), 69 Ohio App.2d 24, 25. Finding there was no proof that the underlying crime occurred, the appellate court reversed the trial court's denial of the...

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