State v. Smith
| Decision Date | 03 July 1986 |
| Docket Number | No. CA-2345,CA-2345 |
| Court | Ohio Court of Appeals |
| Parties | The STATE of Ohio, Appellee, v. SMITH, a.k.a. Kennon, Appellant. |
Syllabus by the Court
1. In a charge for a violation of R.C. 2907.02(A) (rape), the court may not exclude defendant's evidence of the origin of semen on the basis that the court concludes that defendant's evidence is not credible, for credibility is for the jury. Thus, once the origin of semen becomes a fact in issue, the court's sole function is to determine the relevancy, competency and materiality of the defendant's evidence, and to weigh its inflammatory and prejudicial effect against its probative value. However, the defendant cannot introduce otherwise admissible evidence as to the origin of semen if the evidence is offered for the sole purpose of impeachment. Summarizing, in order to exclude defendant's evidence on the origin of semen, the court must do so on the grounds of relevancy, competency, materiality, prejudicial nature, or mere impeachment. (R.C. 2907.02[D] and Evid.R. 403[A], applied.)
2. The prosecutor's failure to provide the identity of a state's witness is excusable if the failure was inadvertent, or impossible, but it is error for the court to allow the testimony if the failure was not justifiable. (Crim.R. 16[B][e], applied.)
3. In order to qualify as an excited utterance, there must have been an occurrence sufficiently startling to render normal reflective thought processes inoperative, and the statement must not have been the result of reflective thought. The time span between the event and the statement is not the controlling factor. The controlling factor is whether the statement was made under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection, and the trial court has broad discretion in making this factual determination. (Evid.R. 803, applied.)
Cathy Dutton, Asst. Pros. Atty., for appellee.
Tarkowsky-Baran Legal Services and John Tarkowsky, Mansfield, for appellant.
There are five errors assigned in the appeal from a sentence entered by the Richland County Court of Common Pleas upon a jury verdict of guilty of "rape," former R.C. 2907.02(A)(1) (see 139 Ohio Laws, Part I, 523, 538-539, and 139 Ohio Laws, Part II, 2285, 2298-2299).
They read:
We sustain the first and second assignments of error, overrule the third, fourth and fifth assignments of error, reverse the judgment and remand for further proceedings. Our reasons follow in our serial consideration thereof.
First, the prosecution agrees for the limited purpose of this appeal with the appellant's statement of the case.
During its May 1985 term of service, the Richland County Grand Jury returned an indictment against defendant Marshall Smith, a.k.a. Marshall Kennon, alleging that on January 3, 1985, defendant did:
"[E]ngage in sexual conduct with another, not the spouse of the offender, by purposely compelling the other person to submit by force or threat of force, in violation of Section 2907.02(A)(1) of the Ohio Revised Code, an aggravated felony of the first degree."
On June 4, 1985, defendant filed a request for discovery requesting the state to provide a copy of or right to view the exhibits the state intended to call at trial and the identity of any expert witness along with a synopsis of his expected testimony. A motion for a bill of particulars was filed at the same time.
On June 19, 1985, the date of defendant's pretrial, the state provided defendant with a reply to the request for discovery revealing only defendant's prior record and nothing more. Defendant provided the state with whatever discovery was requested to the state's satisfaction.
The bill of particulars filed by the prosecution on July 23, 1985 reads, in part, as follows:
"On or about January 3, 1985 at approximately 10:45 p.m. at the County of Richland, 335 Newman Street, Mansfield, Ohio, he did engage in sexual conduct with Loreen Weeks, not the spouse of the offender, by purposely compelling her to submit by force or threat of force, in violation of Section 2907.02(A)(1) of the Ohio Revised Code, an aggravated felony of the first degree."
On August 6, 1985, defendant filed a motion requesting an in camera hearing to resolve any disputes concerning the evidence to be introduced at trial in accordance with R.C. 2907.02(E).
Also, on August 6, 1985, a motion in limine was filed by the defendant and served upon the prosecutor who tried the case; in addition, a copy was given to the trial judge during a conference in chambers held to continue the trial date from August 8, 1985 to September 10, 1985. The subject of the motion in limine was to preclude the state from submitting evidence at trial in the form of witness testimony or tangible objects not revealed in response to the request for discovery previously filed.
On September 6, 1985 the state offered defendant four names of witnesses it intended to call at trial, two of which names were in error.
On September 10, 1985, after the jury was selected in the case herein, the state furnished defendant with a list of thirteen additional witnesses it intended to call to testify. Defendant timely objected to their testimony.
Trial began September 10, and ended September 13, 1985. Prior to the admission of testimony before the jury and after a hearing held pursuant to R.C. 2907.02(E), defendant made a motion to allow the testimony of John Taylor as to his sexual conduct with the alleged victim within twenty-four hours of the alleged rape and as to the gathering of evidence after the alleged rape. The motion was denied. It was later renewed and again denied. Defendant made a motion in limine at that time to stop the state from presenting witnesses not previously disclosed by discovery. The motion was denied. Defendant made a motion for acquittal after the close of the state's presentation of evidence and at the close of the trial. The motions were denied. The jury found the defendant guilty of the offense charged. A journal entry was filed accordingly. On September 16, 1985, defendant was sentenced to a term of ten to twenty-five years of incarceration.
To appreciate the argument of the appellant, a recital of his claim as to the evidence is essential. It is here substantially repeated from his brief:
Loreen Weeks, the alleged victim, accused the defendant, Marshall Smith, a friend with whom she had lived on a prior occasion, of sexually assaulting her in a manner described as rape. Present at the time of the alleged rape were John Taylor, Weeks' boyfriend and defendant's cousin, and JoEllen Smith, a good friend whom Weeks alleged had beaten her with a baseball bat, but with whom she had also lived after the alleged rape, and to whom she subsequently had written letters inquiring as to the well-being of Marshall Smith. Also present was Loreen Weeks' son, Bobby.
Immediately prior to the alleged rape, Weeks had implicated JoEllen Smith's daughter (also appellant Marshall Smith's former stepdaughter) in a forgery scheme. This gave Marshall Smith cause to be angry with Weeks, and with JoEllen Smith, his former wife, for allowing Weeks into her home.
On January 3, 1985, and prior to the rape, Weeks had drunk some wine and was making conversation with her boyfriend and JoEllen Smith. Marshall Smith called on the telephone, became angry with JoEllen Smith due to Weeks' presence, and stated he would come to the home directly from work.
Weeks testified that upon entering the home, Marshall Smith began an argument with JoEllen Smith and ordered Weeks out. She testified that she left. She alleged being assaulted outside the home. She then alleges she was forced back into the home, where she was verbally assaulted. Defendant admits physically assaulting Weeks, but denies any sexual activity occurred. Weeks then alleged she was forced to admit she desired to have sexual relations with the defendant. Taylor and JoEllen Smith testified Weeks was not forced to admit same but did so after being questioned by the defendant. After the admission, JoEllen Smith became emotional and accused Weeks of betraying her.
A scuffle ensued between defendant and Weeks, which lasted approximately ten minutes, much of which was out of the view of Taylor and JoEllen Smith. Both Taylor and JoEllen Smith testified that for approximately five minutes, out...
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