[Cite as State v. Millay,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : Patricia A. Delaney, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 11 CAA 10 0090 : : TIMOTHY MILLAY : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Delaware County Court of Common Pleas Case No. 11-CR-I-06-031

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 16, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL HAMILTON O’BRIEN WILLIAM T. CRAMER Delaware County Prosecuting Attorney 470 Olde Worthington Rd. Suite 200 DOUGLAS DUMOLT Westerville, Ohio 43082 Assistant Prosecuting Attorney 140 N. Sandusky St., 3rd Floor Delaware, Ohio 43015 [Cite as State v. Millay,

.]

Edwards, J.

{¶1} Appellant, Timothy Millay, appeals a judgment of the Delaware County

Common Pleas Court convicting him of domestic violence with two prior convictions

(R.C. 2919.25(A)) and aggravated menacing (R.C. 2903.21(A)). Appellee is the State

of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} Appellant and Terri Dewart were involved in an on-and-off relationship

over a period of five years. Dewart described the relationship as volatile. In June of

2011, the couple lived together in Delaware County. Earlier that year, Dewart stopped

receiving unemployment compensation, and she and appellant began to fight about

money.

{¶3} On June 4, 2011, appellant spent the day drinking with a next door

neighbor. Dewart spent the day in the house she shared with appellant, drinking and

watching television. Appellant returned home and told her to leave the house now. She

told him she had nowhere to go and would leave the next day. Appellant pulled her by

the hair, uprooting some of her hair and creating a bald spot. He began punching her

arm and leg. Appellant told Dewart, “If I could kill you and get away with it I would.”

Appellant then tore up the house and yard before passing out on the porch. After

appellant passed out, Dewart obtained his cell phone, the only phone in the house, and

called 911.

{¶4} Genoa Township patrol officer Shawn Combs and K-9 officer Jason

Berner responded to the call. The yard was strewn with debris including beer cans, a Delaware County App. Case No. 11 CAA 10 0090 3

vase and a piece of lawn furniture turned upside down. Appellant was passed out on

the porch.

{¶5} The officers woke appellant up, and appellant became belligerent.

Appellant told them to “get the fuck out,” called them “pigs,” and told Officer Berner he

could whip his ass.

{¶6} Inside the house, Officer Combs found items upended, cigarettes on the

floor, an ashtray upended, a chunk of drywall missing where Dewart told officers

appellant had thrown the ashtray, laundry strewn about, and beer cans on the floor. In

the kitchen the refrigerator door was open and food had been thrown around the

kitchen.

{¶7} Dewart told officers that in addition to the incident for which she had just

called 911, on May 27, 2011, she said something appellant didn’t like while they were

talking on the neighbors’ porch. She told police that appellant chased her through the

house, telling her to never talk to him like that again in front of other people. She ran

into the den and tried to hold the door closed to keep appellant away from her. She told

police that appellant slammed her into the door, bruising her eye, and then shoved her

on to the coffee table.

{¶8} The officers handcuffed appellant and led him to the police cruiser.

Appellant told the officers he could whip their asses with his hands cuffed behind his

back. He yelled, “Bitch, you’re done, I didn’t hit you.” As they passed Officer Berner’s

cruiser where his canine partner Brutus sat in the backseat, appellant asked to be

placed in the seat with the dog, saying, “That dog’s a pussy, I’ll whip his ass.” While in

the holding area at the police station, appellant continued his tirade, saying that after he Delaware County App. Case No. 11 CAA 10 0090 4

got out of jail there would be more hitting, but not by him. He stated that he was going

to hire a “crack whore” to “fuck her up” and he was going to have her mother “done” too,

and he’d hire it done with a rock of crack.

{¶9} Appellant was charged with two counts of domestic violence (R.C.

2919.25(A)), both as third degree felonies because appellant had two prior convictions.

He was also charged with aggravated menacing (R.C. 2903.21(A)).

{¶10} The case proceeded to jury trial. At the beginning of the trial, the court

read the jury preliminary instructions concerning burden of proof, credibility, the function

of the judge and jury, and evidence. At the end of the trial the court did not repeat these

general instructions, but instructed the jury specifically concerning the charged offenses.

{¶11} Appellant was convicted of domestic violence and aggravated menacing

for the incident occurring on June 4, 2011. He was acquitted of domestic violence for

the incident on May 27, 2011. He was sentenced to four years incarceration for

domestic violence and sixty days incarceration for aggravated menacing, to be served

concurrently.

{¶12} Appellant assigns two errors on appeal:

{¶13} “I. APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS

TO DUE PROCESS AND FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT

FAILED TO REPEAT PRELIMINARY JURY INSTRUCTIONS ON CREDIBILITY, THE

PRESUMPTION OF INNOCENCE, THE BURDEN OF PROOF, AND THE DEFINITION

OF REASONABLE DOUBT AFTER CLOSING ARGUMENTS IN VIOLATION OF CRIM.

R. 30. Delaware County App. Case No. 11 CAA 10 0090 5

{¶14} “II. APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS

TO THE EFFECTIVE ASSISTANCE OF COUNSEL WERE VIOLATED WHEN TRIAL

COUNSEL FAILED TO OBJECT WHEN THE TRIAL COURT INDICATED THAT IT

WOULD NOT REPEAT THE PRELIMINARY INSTRUCTIONS ON CREDIBILITY, THE

PRESUMPTION OF INNOCENCE, THE BURDEN OF PROOF, AND THE DEFINITION

OF REASONABLE DOUBT.”

I

{¶15} In his first assignment of error, appellant argues the trial court violated

Crim. R. 30 by failing to repeat the preliminary jury instructions concerning credibility,

the presumption of innocence, the burden of proof and the definition of reasonable

doubt at the end of the case. Crim R. 30 provides:

{¶16} “(A) Instructions; error; record

{¶17} “At the close of the evidence or at such earlier time during the trial as the

court reasonably directs, any party may file written requests that the court instruct the

jury on the law as set forth in the requests. Copies shall be furnished to all other parties

at the time of making the requests. The court shall inform counsel of its proposed action

on the requests prior to counsel's arguments to the jury and shall give the jury complete

instructions after the arguments are completed. The court also may give some or all of

its instructions to the jury prior to counsel's arguments. The court shall reduce its final

instructions to writing or make an audio, electronic, or other recording of those

instructions, provide at least one written copy or recording of those instructions to the

jury for use during deliberations, and preserve those instructions for the record. Delaware County App. Case No. 11 CAA 10 0090 6

{¶18} “On appeal, a party may not assign as error the giving or the failure to give

any instructions unless the party objects before the jury retires to consider its verdict,

stating specifically the matter objected to and the grounds of the objection. Opportunity

shall be given to make the objection out of the hearing of the jury.

{¶19} “(B) Cautionary instructions

{¶20} “At the commencement and during the course of the trial, the court may

give the jury cautionary and other instructions of law relating to trial procedure,

credibility and weight of the evidence, and the duty and function of the jury and may

acquaint the jury generally with the nature of the case.”

{¶21} We note at the outset that appellant failed to object to the manner in which

the court gave the jury instructions, and therefore we must find plain error in order to

reverse. In order to prevail under a plain error analysis, appellant bears the burden of

demonstrating that the outcome of the trial clearly would have been different but for the

error. State v. Long,

,

(1978); Notice of plain error “is

to be taken with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.”

at paragraph three of the syllabus.

{¶22} In the instant case, the court informed the jury immediately after jury

selection that they would be instructed on preliminary matters before opening

statements. The court explained that following these instructions the parties would

make opening statements, each side would present evidence, and then the remaining

portion of the instructions would be given. While the court noted that each juror would

receive a copy of the written instructions with a table of contents when the jury retired to

deliberate, the record does not include a copy of such instructions. Tr. 6-7. Delaware County App. Case No. 11 CAA 10 0090 7

{¶23} In State v. Comen,

,

(1990),

the Ohio Supreme Court held that the trial court is required to repeat all preliminary

instructions at the end of the trial:

{¶24} “If the preliminary or cautionary instructions include matters of law vital to

the rights of a defendant, the trial court is not excused from including or repeating all

such instructions after the arguments are completed. Repeating instructions means fully

instructing the jury on the law applicable to the case and not providing them simply with

a cursory reminder of what was earlier provided in either the preliminary or cautionary

instructions. Regardless of the length of trial, the court cannot assume the jury recalls or

remembers the prior instructions.

{¶25} “Accordingly, we hold that before the taking of evidence, a trial court may

give preliminary instructions to the jury appropriate for the jury's guidance in hearing the

case. A court may also give cautionary instructions throughout the trial. After arguments

are completed, a trial court must fully and completely give the jury all instructions which

are relevant and necessary for the jury to weigh the evidence and discharge its duty as

the fact finder.”

{¶26} However, the Supreme Court went on to find that the defendant in Comen

was not prejudiced by the trial court’s failure to repeat preliminary instructions at the end

of the trial:

{¶27} “Turning our attention now to the case before us, and being mindful of our

previous discussion, we find appellant presents no evidence that he was prejudiced by

the trial court's refusal to repeat all instructions. Additionally, appellant presents no Delaware County App. Case No. 11 CAA 10 0090 8

evidence that the absence of instructions on credibility and weighing of the evidence at

the completion of counsel's arguments was prejudicial.

{¶28} “Accordingly, while we find that the proper procedure is for a trial court to

explicitly follow Crim.R. 30 when instructing a jury, we also find appellant's first

proposition of law not well-taken.”

{¶29} In the instant case, appellant has not demonstrated plain error in the trial

court’s failure to repeat instructions concerning credibility, burden of proof and weighing

the evidence. There was abundant evidence to support the convictions for the events

occurring June 4, 2011, by way of Dewart’s testimony, photographs of her injuries taken

by the police officers who responded to the scene, and the testimony of the officers

concerning the condition of the home and appellant’s ongoing threats toward Terri, her

mother, the officers, and Brutus the police dog. Appellant’s threats to hire someone to

hit Terri and her mother were recorded on video at the police station, and the DVD of

his statements at the station was admitted into evidence and played for the jury. None

of this evidence was contradicted at trial. Clearly the jury understood the previous

instructions on credibility and burden of proof because they acquitted appellant of the

May 27, 2011, incident, which was supported solely by Dewart’s testimony. Appellant

cannot demonstrate that had the court repeated all preliminary instructions at the end of

the trial, the result of the proceeding would have been different.

{¶30} The first assignment of error is overruled. Delaware County App. Case No. 11 CAA 10 0090 9

II

{¶31} In his second assignment of error, appellant argues that counsel was

ineffective for failing to object to the court’s failure to repeat the preliminary instructions

at the end of trial.

{¶32} A properly licensed attorney is presumed competent. State v. Hamblin,

,

(1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the

result of the proceedings would have been different. Strickland v. Washington,

,

,

(1984); State v. Bradley,

,

(1989). In other words, appellant must show that counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be

relied upon as having produced a just result.

{¶33} Appellant cannot demonstrate that had counsel objected and the

instructions been repeated, the result of the proceeding would have been different.

There was abundant evidence to support the convictions for the events occurring June

4, 2011, by way of Dewart’s testimony, photographs of her injuries taken by the police

officers who responded to the scene, and the testimony of the officers concerning the

condition of the home and appellant’s ongoing threats toward Terri, her mother, the

officers, and Brutus the police dog. Appellant’s threats to hire someone to hit Terri and

her mother were recorded on video at the police station, and the DVD of his statements

at the station was admitted into evidence and played for the jury. Clearly the jury

understood the previous instructions on credibility and burden of proof because they Delaware County App. Case No. 11 CAA 10 0090 10

acquitted appellant of the May 27, 2011 incident, which was supported solely by

Dewart’s testimony.

{¶34} The second assignment of error is overruled.

{¶35} The judgment of the Delaware County Common Pleas Court is affirmed.

By: Edwards, J.

Delaney, P.J. and

Wise, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/r0525 [Cite as State v. Millay,

.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : TIMOTHY MILLAY : : Defendant-Appellant : CASE NO. 11 CAA 10 0090

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Delaware County Court of Common Pleas is affirmed. Costs assessed

to appellant.

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JUDGES