State v. Gilmore, Unpublished Decision (3-24-2003)
State v. Gilmore, Unpublished Decision (3-24-2003)
Opinion of the Court
{¶ 2} On September 18, 2000, appellant informed the Mason Police Department that she had been abducted and sexually assaulted. An extensive investigation ensued. During the investigation on September 21, 2000, the Mason police were informed that a threatening note was left at appellant's residence. On October 6, 2000, in an effort to apprehend the perpetrator of the harassment, Mason police installed a video camera at the home of Carol Malich where appellant was residing. On October 13, 2000, the Mason police were informed that a condom and panties covered with a red substance were found outside appellant's residence.
{¶ 3} On November 7, 2000, Malich reported that the police department's camcorder and a diamond ring were stolen from the Malich residence. Mason police conducted another investigation into the robbery. However, the police suspected that the robbery was an "inside job" because cash, credit cards, blank checks, a television, a VCR, a computer, and numerous other valuable items were not taken in the robbery. The diamond ring was subsequently found in the Malichs' mailbox.
{¶ 4} On November 9, 2000, appellant again alleged that she had been abducted from her home, stripped, and sexually assaulted. Mason police investigated the allegation. During the investigation, a witness was found who stated that appellant had purchased beer and cigarettes at the time of the alleged abduction. The witness identified appellant as the individual in the store at the time of the alleged abduction. Beer and cigarettes were found in appellant's vehicle on the night in question. Appellant then refused to assist the police in their investigation and she could not describe her abductor.
{¶ 5} On November 10, 2000, appellant reported to the Mason police that a threatening letter had been left on the windshield of her car while she was shopping at a Butler County Kroger's with Malich. Although appellant was with Malich, they were separated during the shopping trip when appellant allegedly went to the restroom.
{¶ 6} On August 6, 2001, appellant was indicted on two counts (Counts one and two) of falsification in violation of R.C.
Assignment of Error No. 1
{¶ 7} "The trial court's decision was against the manifest weight of the evidence."
{¶ 8} Appellant argues that the state failed to prove that the rape and abduction did not occur. Appellant also argues that the state failed to prove that appellant's actions were done with the intent to mislead.
{¶ 9} When deciding whether a conviction is supported by the manifest weight of the evidence, a court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the fact-finder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. See State v. Thompkins,
{¶ 10} In the present case, Counts one and two of the complaint alleged a violation of R.C.
{¶ 11} "(A) No person shall knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when any of the following applies:
{¶ 12} "* * *[;]
{¶ 13} "(3) The statement is made with purpose to mislead a public official in performing the public official's official function."
{¶ 14} Counts four, five and six of the complaint alleged a violation of R.C.
{¶ 15} "(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:
{¶ 16} "* * *[;]
{¶ 17} "(2) Make, present, or use any record, document, or thing, knowing it to be false and with purpose to mislead a public official who is or may be engaged in such proceeding or investigation, or with purpose to corrupt the outcome of any such proceeding or investigation."
{¶ 18} Count one alleges that appellant made a false statement to the police on September 18, 2000. Appellant's statement asserts that she was abducted and that her abductor "got on top of [her] and [he] started forcing his penis into my vagina * * * he got mad and cut me on the leg * * * he made me turn over and he forced his penis into my rectum * * * then he cut me on the leg again." However, the medical examination of appellant conducted on September 18, 2000 revealed no signs of trauma to the vulva, introitus, vagina, cervix, rectum, or anus. Furthermore, there were no cuts found on appellant.
{¶ 19} Count four alleges that appellant tampered with evidence on September 21, 2000. To corroborate the September 18, 2000 statement that she was abducted, appellant and Malich delivered a threatening note, allegedly written by the abductor, to the Mason Police. However, during the investigation, a Compaq Presario laptop was removed from appellant's residence to determine if it was the source of the threatening notes. Jim Swauger, a computer forensic specialist for the Ohio Bureau of Criminal Identification and Investigation, testified that the Compaq was the source of the threatening notes. He testified that he "found the entire [September 21, 2000] note 11 times on the hard drive."
{¶ 20} Count two alleges that appellant gave a false statement on November 9, 2000. In appellant's November 9, 2000 written statement, she states that she went out to her car to look for her keys and she was abducted and sexually assaulted. However, a clerk from "the Thornton gas station" gave Sergeant Neal Garland of the Mason police a statement identifying appellant. The clerk gave Sgt. Garland the sales receipts for the night and the store videotape. The statement maintains that appellant was in the store purchasing beer and cigarettes when the abduction supposedly occurred.
{¶ 21} Count six alleges that appellant tampered with evidence on or about November 10, 2000 by placing a note on her car windshield at a Kroger's store. Malich testified that during the trip to Kroger's, appellant indicated that she was going to the washroom and then "disappeared from [Malich] for awhile." However, Malich testified that appellant did not go to the restroom. When they returned to the car, there was a note under the windshield.
{¶ 22} Count five alleges that appellant tampered with evidence on October 13, 2000. Michael Yazzo, a forensic scientist with the State of Ohio, Bureau of Criminal Identification and Investigation testified that the condom and panties presented to the Mason police on October 13, 2000 were stained with "a red pigment material in a starched based matrix." Yazzo concluded, based on the composition of the substance, that it is "something that would be in an edible product." Mason police also recovered a tube of "red gel used for cake decorating" from appellant's residence. Yazzo was asked if the stains on the condom and panties were the same substance as contained in the tube of cake decorating red gel. He stated that it was also a "red pigment material in a starch matrix" and that he "was unable to say that it was not" the same substance. Detective Scott Doughman of the Mason Police Department testified that he noticed the same red substance on the door knob to appellant's bedroom during a search of appellant's residence the day the condom and panties were reported.
{¶ 23} Upon reviewing the record and evidence, we conclude that the fact finder did not clearly lose its way and create such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Therefore, the first assignment of error is overruled.
Assignment of Error No. 2
{¶ 24} "The trial court erred in denying the motion for continuance the week prior to trial, depriving appellant of the right to effective assistance of counsel."
{¶ 25} Appellant argues that it was apparent her counsel was not prepared for trial. She therefore claims that the trial court abused its discretion and denied her the right to a fair trial by not granting her motion for a continuance.
{¶ 26} Even though a trial court's action may affect a defendant's right to assistance of counsel, "broad discretion must be granted trial courts on matters of continuances" because of the difficulties involved in scheduling trials. Morris v. Slappy (1983),
{¶ 27} As support for appellant's argument that her counsel was not adequately prepared to defend the case as a result of the denial of the continuance, appellant states that the "State of Ohio called 21 witnesses to the stand: the defense called none. The State of Ohio offered 87 exhibits for admission; the defense offered none. The State of Ohio put on three days of testimony; the defense put on none." However, appellant has not stated how these occurrences prejudiced her or demonstrated that these occurrences were anything but sound trial strategy.
{¶ 28} Since appellant did not demonstrate actual prejudice, we cannot say the trial court committed constitutional error. We hold that the denial of the continuance neither denied appellant her right to a fair trial nor deprived her of the effective assistance of counsel. Therefore, the second assignment of error is overruled.
Assignment of Error No. 3
{¶ 29} "The trial court erred in not granting a motion for acquittal as to count six of the indictment because the state failed to establish the venue of the offense."
{¶ 30} Appellant argues that there was no evidence that the note left on the windshield of appellant's vehicle at the Kroger store in Butler County had any connection to Warren County.
{¶ 31} A trial court has broad discretion to determine facts that would establish venue, and the court's decision should not be overturned on appeal unless it is contrary to the manifest weight of the evidence. See Toledo v. Taberner (1989),
{¶ 32} In this case, a letter was found on the windshield of appellant's car at a Kroger's store in neighboring Butler County. However, the threatening letter was reported to Officer Michael Jesse, an officer for the city of Mason, in Warren County. Furthermore, because the letter was reported to a Mason police officer, the resulting investigation occurred in Warren County.
{¶ 33} R.C.
Assignment of Error No. 4
{¶ 34} "The trial court erred in not sentencing appellant to the minimum sentence allowed by law."
{¶ 35} Appellant argues that the judgment entry of sentence does not contain the requisite findings and that the sentence must be reversed.
{¶ 36} Pursuant to R.C.
{¶ 37} The court stated on the record that it would sentence appellant to prison "on each of these convictions for tampering with evidence for a term of two years. I think any shorter term would demean the seriousness of your conduct and would not adequately protect the public from future crimes by you and others."
{¶ 38} The Supreme Court of Ohio determined that the findings required by the sentencing statutes may be made either orally at the sentencing hearing or in written form in the judgment entry. See Statev. Edmonson,
Judgment affirmed.
VALEN, P.J., and POWELL, J., concur.
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