[Cite as State v. Yerena, 2016-Ohio-7635.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     OTTAWA COUNTY


State of Ohio                                          Court of Appeals No. OT-15-049

          Appellee                                     Trial Court No. 15 CR 088

v.

Jesus Pablo Yerena                                     DECISION AND JUDGMENT

          Appellant                                    Decided: November 4, 2016

                                               *****

          Mark E. Mulligan, Ottawa County Prosecuting Attorney, and
          Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee.

          Russell V. Leffler, for appellant.

                                               *****

          SINGER, J.

          {¶ 1} Appellant, Jesus Yerena, appeals the December 22, 2015 judgment of

conviction of the Ottawa County Court of Common Pleas. For the following reasons, we

affirm.

          {¶ 2} Appellant sets forth four assignments of error:

                 I. The trial court erred by dismissing the jury’s verdicts of

          aggravated assault at the state’s request.
              II. The trial court erred by not properly instructing the jury as to the

       relationship between the aggravated assault and the felonious assault

       counts.

              III. At a minimum, the trial court erred in not explaining that the

       aggravated assault provocation provisions applied to the felonious assaults.

              IV. The trial court erred by communicating with the jury during

       deliberations in the absence of the defendant, his counsel, and the

       prosecutor.

       {¶ 3} On July 25, 2015, appellant was drinking and socializing in Put-in-Bay with

friends. Around midnight, while appellant was at Mr. Ed’s Tavern (“Mr. Ed’s”), a fight

occurred between appellant and Matthew Dale. Both men were ejected from the bar.

Dale was escorted out of the bar first, then appellant left the bar. Just outside of the door,

Dale ran up to appellant and punched appellant in the face. Appellant fell to the ground

and a melee ensued with Dale and other people piled on top of appellant. Appellant, Dale

and the other people were eventually separated. As appellant got up from the ground,

Dale picked up and swung a cigarette receptacle at appellant’s head. Appellant went

after Dale and Dale was stabbed numerous times in the side. Appellant and Dale again

separated. Dale stumbled off and collapsed a short distance away. Appellant walked

away and shortly thereafter was detained by police. Both men received medical

attention. Dale was life-flighted to a hospital where he remained for three weeks.

Appellant received stitches in his hand and an ice pack for his ankle.




2.
       {¶ 4} On August 5, 2015, the Ottawa County Grand Jury issued a seven-count

indictment against appellant. Count 1 charged appellant with attempted murder, in

violation of R.C. 2903.02(A), a felony of the first degree, Counts 2 and 3 charged

appellant with felonious assault, in violation of R.C. 2903.11(A)(2) and (1), respectively,

both felonies of the second degree, Counts 4 and 5 charged appellant with aggravated

assault, in violation of R.C. 2903.12(A)(1) and (2), respectively, both felonies of the

fourth degree, Count 6 charged appellant with tampering with evidence, in violation of

R.C. 2921.12(A)(1), a felony of the third degree, and Count 7 charged appellant with

carrying a concealed weapon, in violation of R.C. 2923.12(A)(1), a felony of the fourth

degree. In addition, Counts 1 through 5 each contained a repeat violent offender

specification (“RVO”). Appellant pled not guilty to all counts.

       {¶ 5} On October 20, 2015, a jury trial commenced. During opening arguments,

the state discussed the two fights which resulted in the assault charges against appellant.

The first fight consisted of Dale and the pile of people on appellant, while the second

fight involved Dale being stabbed by appellant. The state maintained appellant used a

knife against Dale in both fights. The state argued the aggravated assault charges related

to the first fight while the felonious assault charges were associated with the second fight.

The defense countered in its opening argument that there were three fights—one fight

inside the bar and two fights outside of the bar, and the two fights outside were

videotaped. Despite the video, appellant denied “he was the stabber.” Therefore, self-

defense was not raised by appellant at trial.




3.
       {¶ 6} The jury found appellant guilty of two counts of aggravated assault, two

counts of felonious assault and one count of tampering with evidence, and not guilty of

attempted murder and carrying a concealed weapon. Appellant had submitted the

consideration of the RVO to the court; the court found him guilty of the RVO.

       {¶ 7} The state requested the two counts of aggravated assault be dismissed; the

court granted the request. The state then elected to proceed to sentencing on Count 3 of

felonious assault, rather than Count 2, as those counts were allied offenses.

       {¶ 8} On December 22, 2015, appellant was sentenced to prison for eight years on

the felonious assault conviction, one year for tampering with evidence and two years on

the RVO, for a total of eleven years. Appellant timely appealed.

       {¶ 9} In his first assignment of error, appellant asserts the trial court erred by

dismissing the jury’s verdict of two counts of aggravated assault at the state’s request.

Appellant argues the indictment appears to show the aggravated assault and felonious

assault charges were alternate ways of viewing the same facts, and the bill of particulars

set forth only one event relating to the stabbing so there was no indication that the

aggravated assault was a separate event from the felonious assault. Appellant contends

since he was convicted of aggravated assault, he should have been sentenced for that.

       {¶ 10} The state counters there were two separate events which resulted in two

separate charges: the aggravated assault occurred during the melee when appellant was

stabbing at the pile of people on top of him including Dale, while the felonious assault

occurred after appellant escaped from the pile of people and went after and stabbed Dale.




4.
The state submits the bill of particulars incorporated the discovery, which included the

video which showed the two courses of conduct. The state further argues appellant has

not shown he was prejudiced by any insufficiency in the bill of particulars. In addition,

the state observes nothing in Crim.R. 48 precludes the state from dismissing a count of

the indictment after a jury verdict. The state cites to State v. Jones, 8th Dist. Cuyahoga

No. 101311, 2015-Ohio-1818, in support of its argument.

       {¶ 11} R.C. 2941.07 provides that upon written request, “the prosecuting attorney

shall furnish a bill of particulars setting up specifically the nature of the offense charged

and the conduct of the defendant which is alleged to constitute the offense.” See also

Crim.R. 7(E). “A bill of particulars is not designed to provide the accused with

specifications of evidence or to serve as a substitute for discovery.” State v. Sellards, 17

Ohio St.3d 169, 171, 478 N.E.2d 781 (1985). If a defendant seeks reversal of his

conviction due to an insufficient bill of particulars, the defendant must show the lack of

knowledge of facts which should have been included in the bill of particulars prejudiced

him from properly defending himself. State v. Chinn, 85 Ohio St.3d 548, 569, 709

N.E.2d 1166 (1999).

       {¶ 12} Crim.R. 48(A) provides “[t]he state may by leave of court and in open

court file an entry of dismissal of an indictment, information, or complaint and the

prosecution shall thereupon terminate.” Furthermore, “the prosecution has discretion,

with permission of the court, to determine when and which charges should be dropped.”

Jones at ¶ 31.




5.
       {¶ 13} Here, a review of the bill of particulars shows that it references one event,

the stabbing of Dale. However, the bill of particulars also provides “[t]he indictment and

discovery * * * are hereby incorporated into this Bill of Particulars.” The record reveals

the state produced in discovery eight DVDs, which included the security video from Mr.

Ed’s. The defense acknowledged at trial that in discovery it was provided with the video

from Mr. Ed’s which showed the “whole thing.” That video was admitted into evidence

at trial without objection.

       {¶ 14} While the bill of particulars only referred to one event, the record indicates

the discovery provided to the defense, which supplemented the bill of particulars,

revealed the entire interaction between appellant and Dale outside of the bar. What is

more, appellant’s counsel recognized that appellant was involved in three fights on the

night in question, two of which were on the video from Mr. Ed’s. We therefore find

appellant failed to demonstrate that he was prejudiced by the insufficiency of the bill of

particulars.

       {¶ 15} With respect to the dismissal of the aggravated assault counts, the state had

the discretion, with the court’s permission, to dismiss these counts at any time.

Moreover, nothing in the record indicates the trial court erred in allowing the state to

dismiss these counts. Accordingly, appellant’s first assignment of error is not well-taken.

       {¶ 16} In his second assignment of error, appellant asserts the trial court did not

properly instruct the jury as to the relationship between the aggravated assault and the

felonious assault counts. Appellant maintains when the indictment sets forth alternate




6.
theories, the jury should be properly instructed. Appellant notes the jury submitted a

question on this issue and “[t]he Court simply repeated the lack of an answer.” Appellant

contends the jury’s verdicts are inconsistent.

       {¶ 17} The state argues appellant assumes the conduct associated with the

aggravated assault and felonious assault charges was the same, but it was different

conduct. The state argues the jury instructions were not erroneous.

       {¶ 18} A review of the record shows defense counsel did not object at trial to the

jury instructions which were given. Thus, appellant has waived all but plain error on

review. State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 139.

“Plain error does not exist unless it can be said that but for the error, the outcome of the

trial would clearly have been otherwise.” State v. Wogenstahl, 75 Ohio St.3d 344, 357,

662 N.E.2d 311 (1996).

       {¶ 19} When instructing the jury, the trial court must provide “a plain, distinct,

and unambiguous statement of the law applicable to the evidence.” Marshall v. Gibson,

19 Ohio St.3d 10, 12, 482 N.E.2d 583 (1985). A jury instruction is proper when “(1) the

instruction is relevant to the facts of the case; (2) the instruction gives a correct statement

of the relevant law; and (3) the instruction is not covered in the general charge to the

jury.” State v. Kovacic, 2012-Ohio-219, 969 N.E.2d 322, ¶ 15 (11th Dist.). In addition,

the trial court must “give all instructions which are relevant and necessary for the jury to

weigh the evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio

St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus.




7.
       {¶ 20} Here, as to the felonious assault counts, the jury was instructed it must find

appellant guilty of felonious assault if the state proved beyond a reasonable doubt that

appellant caused serious physical harm to Dale or caused or attempted to cause physical

harm to Dale by means of a deadly weapon.

       {¶ 21} Regarding the aggravated assault counts, the jury was instructed it must

find appellant guilty of aggravated assault if it finds the state proved beyond a reasonable

doubt that appellant, while under the influence of sudden passion or sudden fit of rage,

either of which was brought on by serious provocation occasioned by Dale that was

reasonably sufficient to incite appellant into using deadly force, knowingly caused

serious physical harm to Dale or caused or attempted to cause physical harm to Dale by

means of a deadly weapon.

       {¶ 22} Upon review, the jury instructions as given were in accordance with the

Ohio Jury Instructions and properly set forth the elements of the crimes of felonious

assault and aggravated assault. Furthermore, the instructions are relevant to the facts of

the case. While the instructions did not explain the relationship between the felonious

assault and aggravated assault counts, as discussed above, appellant was charged with

aggravated assault for one fight and felonious assault for the second fight. The

aggravated assault charge was not an alternate theory of the felonious assault charge.

Therefore, it was not necessary for the court to instruct the jury on the relationship

between the felonious assault and aggravated assault counts.




8.
       {¶ 23} We find the trial court did not err in instructing the jury on the aggravated

assault and felonious assault counts. Accordingly, appellant’s second assignment of error

is not well-taken.

       {¶ 24} In his third assignment of error, appellant asserts plain error occurred when

the trial court did not explain that the aggravated assault provocation provisions applied

to the felonious assault charges. Appellant argues no jury instruction was given “as to

Aggravated Assault as a lesser to the Felonious Assault.” Appellant insists “a separate

instruction and clarification should have been given as to Aggravated Assault as an

affirmative defense” because there was no real break in the fighting or time to cool off

between the fights. Appellant acknowledges his trial counsel did not request such an

instruction or object to the jury instructions which were given.

       {¶ 25} In addressing the issue of whether a defendant indicted for felonious assault

is entitled to a jury instruction on aggravated assault, the Ohio Supreme Court has stated:

              [A]s statutorily defined, the offense of aggravated assault is an

       inferior degree of the indicted offense -- felonious assault -- since its

       elements are identical to those of felonious assault, except for the additional

       mitigating element of serious provocation. * * * Thus, in a trial for

       felonious assault, where the defendant presents sufficient evidence of

       serious provocation (such that a jury could both reasonably acquit

       defendant of felonious assault and convict defendant of aggravated assault),

       an instruction on aggravated assault (as a different degree of felonious




9.
       assault) must be given. State v. Deem, 40 Ohio St.3d 205, 210-211, 533

       N.E.2d 294 (1988).

       {¶ 26} Here, appellant’s defense was not that he was seriously provoked by Dale

and therefore stabbed Dale. Rather, appellant claimed he was not involved in Dale’s

stabbing. Under these facts and circumstances, an instruction on aggravated assault

would be inconsistent with appellant’s defense at trial. Therefore, the trial court did not

err in failing to give an instruction on aggravated assault as a lesser degree of felonious

assault. Accordingly, appellant’s third assignment of error is not well-taken.

       {¶ 27} In the fourth assignment of error, appellant contends the trial court erred by

communicating directly with the jury during deliberations in the absence of appellant, his

counsel or the prosecutor. Appellant argues the jury’s questions regarding felonious and

aggravated assault show the “jurors were struggling with the relationship of the Counts

where they were instructed there was no relationship.” Appellant submits “[p]erhaps the

Court went over the question, and a proposed answer with counsel. Perhaps.”

       {¶ 28} The state counters appellant waived this issue as the court consulted with

the state and defense before answering the jury’s question. The state further claims any

error was harmless because appellant cannot show prejudice since the communication at

issue was a clarification of the elements of aggravated assault and felonious assault. The

state notes the communication actually benefitted appellant.

       {¶ 29} In order to establish prejudice from a court’s ex parte communication with

jurors, “the complaining party must first produce some evidence that a private contact,




10.
without full knowledge of the parties, occurred between the judge and jurors which

involved substantive matters.” State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264

(1984), paragraph thirteen of the syllabus. The complaining party then must show actual

prejudice. State v. Schiebel, 55 Ohio St.3d 71, 84, 564 N.E.2d 54 (1990).

      {¶ 30} Here, during the course of its deliberations, the jury submitted two written

questions to the court. The judge addressed the jury, on the record, and stated, “The

attorneys didn’t need to be here. I talked to them.” The jury’s questions were, “What is

the difference between felonious assault and aggravated assault?” and “What are the

different elements of each?” The judge answered, “All I can do is refer you to the

charge.” The judge also provided the jurors with a simplified explanation of the charges

by highlighting the differences between the charges. A juror then orally posed the

question, “Can you be guilty of [counts] four and five, but not two and three?” The judge

answered, “The answer would be yes, he could be guilty of [counts] four and five

[aggravated assault] and not two and three [felonious assault]. Yes. Okay.” The entire

exchange between the judge and jury was on the record.

      {¶ 31} The record shows the trial judge talked to counsel before entering the jury

room to answer the jury’s written questions, but there is no evidence what exactly was

discussed. Since appellant has not shown his counsel did not have full knowledge of the

judge’s contact with the jury when responding to the jury’s written questions, appellant

cannot establish he was prejudiced by the court’s ex parte communication with the jury.




11.
       {¶ 32} As to the juror’s oral question, the record shows the judge’s contact with

the jury was without full knowledge of counsel. However, appellant has not shown that

he was prejudiced by this communication. The answer given by the judge to the juror’s

oral question was in accordance with the law and the jury instructions given to the jury

before deliberations commenced. The jury instructions provided in relevant part:

                 Count 2

                 ***

                 Now if you find that the State proved beyond a reasonable doubt all

       of the essential elements of felonious assault, your verdict must be guilty.

                 If you find the State failed to prove beyond a reasonable doubt any

       one of the essential elements of felonious assault, your verdict must be not

       guilty.

                 ***

                 Count 3

                 ***

                 Now if you find the State proved beyond a reasonable doubt all of

       the essential elements of this offense of felonious assault, your verdict must

       be guilty.

                 If you find the State failed to prove beyond a reasonable doubt any

       one of the essential elements of the offense of felonious assault, your

       verdict must be not guilty.




12.
              ***

              Count 4

              ***

              Now if you find that the State proved beyond a reasonable doubt all

       of the essential elements of the offense of aggravated assault, your verdict

       must be guilty. If you find the State failed to prove beyond a reasonable

       doubt any one of the essential elements of the offense of aggravated assault,

       your verdict must be not guilty.

              ***

              Count 5

              ***

              Now if you find the State proved beyond a reasonable doubt all of

       the essential elements of the offense of aggravated assault, your verdict

       must be guilty.

              If you find the State failed to prove beyond a reasonable doubt any

       one of the essential elements of the offense of aggravated assault, your

       verdict must be not guilty.

       {¶ 33} While the jury instructions did not specifically set forth that the jury could

find appellant guilty of aggravated assault but not guilty of felonious assault, it could be

inferred. Although the trial judge erred by answering the juror’s oral question outside of

the presence of counsel and without counsel’s full knowledge, appellant has not shown




13.
the judge’s response was prejudicial. We therefore find the error was harmless.

Accordingly, appellant’s fourth assignment of error is not well-taken.

       {¶ 34} The judgment of the Ottawa County Court of Common Pleas is affirmed.

Costs of this appeal are assessed to appellant pursuant to App.R. 24.


                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, P.J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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