[Cite as State v. Hamilton, 2014-Ohio-3171.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :    JUDGES:
                                               :    Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :    Hon. Sheila G. Farmer, J.
                                               :    Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :
EDGAR LEE HAMILTON                             :    Case No. 13CA93
                                               :
        Defendant-Appellant                    :    OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2013-CR-404D




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   July 17, 2014




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JILL M. COCHRAN                                     WILLIAM PAUL BRINGMAN
38 South Park Street                                13 East College Street
Mansfield, OH 44902                                 Fredericktown, OH 43019
Richland County, Case No. 13CA93                                                           2

Farmer, J.

       {¶1}   On July 8, 2013, the Richland County Grand Jury indicted appellant,

Edgar Lee Hamilton, on two counts of felonious assault in violation of R.C. 2903.11, one

count of aiding escape or resistance to authority in violation of R.C. 2921.35, one count

of vandalism in violation of R.C. 2909.05, one count of disrupting public service in

violation of R.C. 2909.04, and one count of intimidation in violation of R.C. 2921.03.

       {¶2}   The felonious assault charges arose from an incident wherein appellant

struck John Greer and his girlfriend, Kathy Myers, with a baseball bat. The parties were

in the home of Bobbi Tubbs, appellant's girlfriend and Ms. Myers's daughter.             The

remaining counts arose from appellant's acts while in jail.

       {¶3}   The vandalism count was amended to criminal mischief in violation of R.C.

2909.07. A jury trial commenced on October 3, 2013. The jury found appellant guilty as

charged. By sentencing entry filed October 9, 2013, the trial court sentenced appellant

to an aggregate term of ten years in prison.

       {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                               I

       {¶5}   "THE TRIAL COURT ERRED IN NOT DISMISSING THE INDICTMENT

FOR    APPELLEE'S       FAILURE      TO    PROVIDE      TERRITORIAL       JURISDICTION

INFORMATION TO ESTABLISH SUBJECT MATTER JURISDICTION IN THE TRIAL

COURT."
Richland County, Case No. 13CA93                                                         3


                                            II

      {¶6}   "THE TRIAL COURT ERRED IN NOT DISMISSING THE INDICTMENT

FOR APPELLEE'S FAILURE TO ESTABLISH BY THE GREATER WEIGHT OF THE

EVIDENCE THAT APPELLANT IS GUILTY OF ALL COUNTS OF THE INDICTMENT."

                                           III

      {¶7}   "THE TRIAL COURT ERRED IN APPOINTING INCOMPETENT TRIAL

COUNSEL TO REPRESENT APPELLANT IN THE TRIAL COURT PROCEEDINGS."

                                           IV

      {¶8}   "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR

SEPARATE TRIALS FOR COUNTS 1 AND 2 FROM COUNTS 3, 4, 5, AND 6."

                                           V

      {¶9}   "THE TRIAL COURT ERRED IN ALLOWING APPELLEE'S COUNSEL TO

REPEATEDLY ASK LEADING QUESTIONS OF APPELLEE'S WITNESSES EVEN

THOUGH APPELLANT'S TRIAL COUNSEL DID NOT MAKE OBJECTIONS TO SAID

QUESTIONS."

                                            I

      {¶10} Appellant claims the indictment was defective because it failed to allege

the state in which the events resulting in the criminal charges occurred. We disagree.

      {¶11} Crim.R. 7(B) sets forth the nature and contents of an indictment and states

it shall "contain a statement that the defendant has committed a public offense specified

in the indictment.***The statement may be made in ordinary and concise language

without technical averments or allegations not essential to be proved."
Richland County, Case No. 13CA93                                                       4


      {¶12} R.C. 2901.11 governs criminal law jurisdiction. Subsection (A)(1) states:

"A person is subject to criminal prosecution and punishment in this state if any of the

following occur:***The person commits an offense under the laws of this state, any

element of which takes place in this state." Subsection (D) states the following:



             When an offense is committed under the laws of this state, and it

      appears beyond a reasonable doubt that the offense or any element of the

      offense took place either in this state or in another jurisdiction or

      jurisdictions, but it cannot reasonably be determined in which it took place,

      the offense or element is conclusively presumed to have taken place in

      this state for purposes of this section.



      {¶13} Each count of the indictment alleged the jurisdiction to be "at the County of

Richland." The specific counts were prefaced by the following:



      INDICTMENT FOR: FELONIOUS ASSAULT (2 counts), AIDING

      ESCAPE OR RESISTANCE TO LAWFUL AUTHORITY, VANDALISM,

      DISRUPTING PUBLIC SERVICE & INTIMIDATION

                   THE STATE OF OHIO, RICHLAND COUNTY, SS.

                             COURT OF COMMON PLEAS

      Of the term of May in the Year of our Lord two thousand thirteen.
Richland County, Case No. 13CA93                                                        5


      The jurors of the grand jury of the State of Ohio, within and for the body of

      the County aforesaid, on their oaths, in the name and by the authority of

      the State of Ohio, do find and present that:



      {¶14} We find this language is sufficient to establish the jurisdiction of the state

of Ohio, Richland County. As explained by the Tenth District in State v. Williams, 53

Ohio App.3d 1, *4 (10th Dist.1988):



              However, R.C. 2901.11(D) provides that, when an offense is

      committed under the laws of this state and it appears beyond a

      reasonable doubt that the offense or any element took place either in Ohio

      or in another jurisdiction and it cannot reasonably be determined in which

      it took place, such offense or element is conclusively presumed to have

      taken place in this state for purposes of this section.

              Appellees are accused of committing offenses under the laws of

      this state, i.e., R.C. 2913.02(A)(3), which is theft by deception, and

      also R.C. 2913.31(A)(3), which is uttering or possessing with purpose to

      utter   any   writing   which     he   knows     to   have   been    forged.

      Assuming, arguendo, that we do not know in which state these offenses

      were performed under R.C. 2901.11(D), Ohio still claims subject matter

      jurisdiction over the offenses.



      {¶15} Upon review, we find the indictment was not defective.
Richland County, Case No. 13CA93                                                       6


      {¶16} Assignment of Error I is denied.

                                           II

      {¶17} Appellant claims his convictions were against the manifest weight of the

evidence. We disagree.

      {¶18} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The

granting of a new trial "should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction." Martin at 175.

      {¶19} In Counts 1 and 2, appellant was convicted of felonious assault in violation

of R.C. 2903.11 which states: "(A) No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another's unborn; (2) Cause or attempt

to cause physical harm to another or to another's unborn by means of a deadly weapon

or dangerous ordnance."

      {¶20} Count 1 was the felonious assault of John Greer. Appellant argues Mr.

Greer was the aggressor and he was acting in self-defense. Self-defense was never

raised as an affirmative defense.

      {¶21} Kathy Myers testified she observed appellant shove Mr. Greer while Mr.

Greer was working in a closet. T. at 118. She heard appellant threaten Mr. Greer, and

observed him picking up a metal candlestick holder and taunt Mr. Greer to "[c]ome on,
Richland County, Case No. 13CA93                                                      7


come on." T. at 119. She was unsure who threw the first punch, but Mr. Greer was on

the ground when appellant picked up a baseball bat and hit him in the stomach and

back. T. at 119-121.

      {¶22} Mr. Greer substantiated her observations.        He testified while he was

hanging a dowel rod in the closet, appellant "nudged" him real hard. T. at 133. Mr.

Greer said "excuse me" and appellant responded, "You got a problem?" T. at 134.

Appellant then threatened him with a metal candlestick holder and said he would "leak"

him. Id. Mr. Greer understood this term to mean "he was going to hurt me." Id. They

tussled around and Mr. Greer tripped over some toys and fell to the ground with

appellant falling on top of him. T. at 135. Appellant hit him with a baseball bat about

four to eight times. T. at 136. Mr. Greer sustained bruising. T. at 136, 139.

      {¶23} Kaylee Smith, Ms. Myers's daughter, also witnessed appellant bump into

Mr. Greer and then threat him with the candlestick holder, and say "something about

leaking John." T. at 147-148. After Mr. Greer fell to the floor, appellant picked up a

baseball bat and "started swinging." T. at 149.

      {¶24} We find this testimony was sufficient to establish that appellant, not Mr.

Greer, was the aggressor, and that all the elements of felonious assault were met.

      {¶25} Count 2 was the felonious assault of Ms. Myers. Appellant does not deny

that he hit her, but claims he did not intend to hit her as it was an accident. As cited

above, the culpable mental state of felonious assault is "knowingly." "A person acts

knowingly, regardless of his purpose, when he is aware that his conduct will probably

cause a certain result or will probably be of a certain nature. A person has knowledge
Richland County, Case No. 13CA93                                                          8


of circumstances when he is aware that such circumstances probably exist."              R.C.

2901.22(B).

      {¶26} Ms. Myers testified to the attack as follows (T. at 121-122):



              A. ***I just screamed. I don't know what all I said, but I turned to my

      daughter Kaylee, and I said call 9-1-1 and run. And so when I said that he

      came at me and he went to swing the ball bat at me and he was going to

      hit me in the face.

              ***

              Q. You said it was coming towards your face?

              A. Right, and I did like this (indicating).

              Q. And did the ball bat hit your arm?

              A. Yes.



      {¶27} We find this testimony establishes more than an inadvertent attack and

meets the definition of "knowingly."

      {¶28} In Count 3, appellant was convicted of aiding escape or resistance to

authority in violation of R.C. 2921.35(B) which states: "No person who is confined in a

detention facility, and with purpose to promote or facilitate an escape or resistance to

lawful authority, shall make, procure, conceal, unlawfully possess, or give to another

inmate, any instrument or thing which may be used for such purposes."

      {¶29} The "instrument" in question was a cellular telephone. Appellant argues

the state failed to establish he knew he was not permitted to have it in the jail and knew
Richland County, Case No. 13CA93                                                        9


it could have been used to "promote or facilitate an escape or resistance to lawful

authority."

       {¶30} Corrections Officer Christopher Fletcher and Richland County Sheriff's

Lieutenant James Young both testified that all inmates are informed about the rules

prohibiting cellular telephones. T. at 191, 209-210. Appellant was observed with the

cell phone in his hand, appearing to be hiding it during a search by Lieutenant Young.

T. at 213. Appellant admitted to having the cell phone in his hand and to having used it.

T. at 285-286, 289. Once the cell phone was discovered, appellant threatened the

officer if he was charged with its possession. T. at 214. Also, there was evidence that

appellant called and sent text messages to his girlfriend, Bobbi Tubbs, in an effort to

persuade her from going to court. T. at 232-236. Appellant admitted to the telephone

calls and texts. T. at 287.

       {¶31} We find the illegal possession of the cellular telephone to communicate to

the outside world without the scrutiny of monitored jailhouse telephones, coupled with

actual communications, to be sufficient to establish the elements of R.C. 2921.35(B).

Appellant knew he was not permitted to have the cell phone in the jail as evidenced by

his attempt to hide the phone and his concern with being charged with its possession.

       {¶32} In Counts 4 and 5, appellant was convicted of criminal mischief in violation

of R.C. 2909.07(A)(1) and disruption of public services in violation of R.C.

2909.04(A)(3). R.C. 2909.07(A)(1) states: "(A) No person shall: (1) Without privilege to

do so, knowingly move, deface, damage, destroy, or otherwise improperly tamper with

the property of another." It is a misdemeanor of the first degree if the criminal mischief
Richland County, Case No. 13CA93                                                      10


creates a risk of physical harm to any persons. R.C. 2909.07(C)(2). R.C. 2909.04(A)(3)

states the following:



              (A) No person, purposely by any means or knowingly by damaging

       or tampering with any property, shall do any of the following:

              (3) Substantially impair the ability of law enforcement officers,

       firefighters, rescue personnel, emergency medical services personnel, or

       emergency facility personnel to respond to an emergency or to protect and

       preserve any person or property from serious physical harm.



       {¶33} The act in question was the tampering of a sprinkler head in the jail.

Although appellant admitted that he tampered with the sprinkler head and a videotape,

State's Exhibit 21, shows the resulting damage, he argues there was insufficient

evidence to establish his act caused a risk of physical harm or impaired law

enforcement officers or rescue personnel to respond or protect and preserve.

       {¶34} The breaking of the sprinkler head caused the entire sprinkler system to

be turned off while the broken head was repaired, thereby leaving the jail without a fire

suppression system. T. at 195-196, 218. The repair took almost an hour at a cost of

$347.95, placing the prisoners and staff at risk in the event of a fire. T. at 225. There

was sufficient evidence that the jail was staffed by Sheriff's deputies, law enforcement

officers under R.C. 2901.01(A)(11)(a); therefore, there was a disruption of public

services by those deputies. T. at 208, 223.
Richland County, Case No. 13CA93                                                       11


      {¶35} We find the elements of criminal mischief and disruption of public services

were satisfied by the admissions of appellant and the testimony of the officers.

      {¶36} In Count 6, appellant was convicted of intimidation in violation of R.C.

2921.03(A) which states the following:



             No person, knowingly and by force, by unlawful threat of harm to

      any person or property, or by filing, recording, or otherwise using a

      materially false or fraudulent writing with malicious purpose, in bad faith,

      or in a wanton or reckless manner, shall attempt to influence, intimidate, or

      hinder a public servant, party official, or witness in the discharge of the

      person's duty.



      {¶37} Appellant argues his statement to Lieutenant Young that "if he got any

charges out of this [possessing the cellular telephone] that he was going to make my life

a living hell" was not sufficient to establish intimidation because he was unable to carry

out his threat.   T. at 214.   "Notably, R.C. 2921.03(A) requires only an 'attempt' to

influence, intimidate, or hinder; it is not necessary to establish that the officer was

actually prevented from doing a particular task." State v. Myers, 3rd Dist. Henry No. 7-

99-05, 2000-Ohio-1677, *1. Lieutenant Young testified he took the words to be a threat.

T. at 214, 247-249. Lieutenant Young's wife is a sergeant and also works at the jail. T.

at 230. We find appellant's statement to be sufficient to establish a threat against

Lieutenant Young and the elements of intimidation.
Richland County, Case No. 13CA93                                                        12


       {¶38} Upon review, we find the testimony and exhibits support the findings of

guilty on all counts, and find no manifest miscarriage of justice.

       {¶39} Assignment of Error II is denied.

                                              III, V

       {¶40} Appellant claims he was denied the effective assistance of trial counsel as

his trial counsel failed on several issues, including requesting separate trials for Counts

1 and 2 from Counts 3, 4, 5, and 6, and failing to make objections to leading questions

by the state. We disagree.

       {¶41} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:



              2. Counsel's performance will not be deemed ineffective unless and

       until counsel's performance is proved to have fallen below an objective

       standard of reasonable representation and, in addition, prejudice arises

       from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

       O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

              3. To show that a defendant has been prejudiced by counsel's

       deficient performance, the defendant must prove that there exists a

       reasonable probability that, were it not for counsel's errors, the result of

       the trial would have been different.
Richland County, Case No. 13CA93                                                     13


       {¶42} Appellant argues his trial counsel was deficient in not timely requesting

separate trials. Defense counsel filed a "Motion for Relief from Prejudicial Joiner" on

October 2, 2013, one day before trial. See, Assignment of Error IV. The state did not

file an objection to timeliness.

       {¶43} Appellant also argues his trial counsel should have objected to leading

questions directed to witnesses Myers, Greer, Smith, Kilgore, Seman, Brubaker,

Fletcher, Naugle, Young, and Eichinger.

       {¶44} Evid.R. 611(A) states leading questions should not be used on direct

examination except as necessary to develop the testimony of a witness. As explained

by the Tenth District in Lagore v. Buckeye International, 10th Dist. Franklin No. 86 AP-

63, 1986 WL 9113 (Aug. 21, 1986), *1:



       Generally, a question is leading when it suggests to the witness the

       answer the interrogator seeks to elicit; when it assumes a fact to be

       proven which is not proven; or when embodying a material fact, it admits

       of an answer by a simple negative or affirmative. Crowell v. Western

       Reserve Bank (1854), 3 Ohio St. 406; 44 Ohio Jurisprudence 3d (1983)

       238, Evidence, Section 867.



       {¶45} With the exception of Eichinger, all of the complaints of leading questions

cover the entire direct examinations of the state's witnesses.    Except for scattered

preparatory leading questions about service, rank, knowledge of the individual, and day
Richland County, Case No. 13CA93                                                         14


of the incident, the questions were not leading. Preparatory questions can be leading in

nature to avoid a complete narrative by a witness and are not on their face prejudicial.

       {¶46} Objecting to preparatory questions lies within the trial strategy of counsel.

This court must accord deference to defense counsel's strategic choices made during

trial and "requires us to eliminate the distorting effect of hindsight." State v. Post, 32

Ohio St.3d 380, 388 (1987).

       {¶47} In addition, in his appellate brief at pages 15-16, appellant lists a litany of

other failures by trial counsel. We find none of these claimed errors to be unduly

prejudicial to appellant.

       {¶48} Upon review, we do not find ineffective assistance of trial counsel.

       {¶49} Assignment of Errors III and V are denied.

                                            IV

       {¶50} Appellant claims the trial court erred in not granting separate trials for

Counts 1 and 2 from Counts 3, 4, 5, and 6. We disagree.

       {¶51} Appellant argues Counts 1 and 2 involved felonious assault incidents on

February 28, 2013 and the remaining counts occurred while appellant was an inmate at

the county jail.

       {¶52} Defense counsel filed a motion for relief from prejudicial joiner on October

2, 2013. There is no ruling on the motion in the docket. However, the trial court

proceeded to trial as to counts collectively, therefore we presume the trial court denied

the motion.
Richland County, Case No. 13CA93                                                       15


       {¶53} Pursuant to Crim.R. 13, "[t]he court may order two or more indictments or

informations or both to be tried together, if the offenses or the defendants could have

been joined in a single indictment or information."

       {¶54} Crim.R. 8(A) governs joinder of offenses and states the following:



              Two or more offenses may be charged in the same indictment,

       information or complaint in a separate count for each offense if the

       offenses charged, whether felonies or misdemeanors or both, are of the

       same or similar character, or are based on the same act or transaction, or

       are based on two or more acts or transactions connected together or

       constituting parts of a common scheme or plan, or are part of a course of

       criminal conduct.



       {¶55} Crim.R. 14 governs relief from prejudicial joinder and states the following:



              If it appears that a defendant or the state is prejudiced by

       a joinder of offenses or of defendants in an indictment, information, or

       complaint, or by such joinder for trial together of indictments, informations

       or complaints, the court shall order an election or separate trial of counts,

       grant a severance of defendants, or provide such other relief as justice

       requires. In ruling on a motion by a defendant for severance, the court

       shall order the prosecuting attorney to deliver to the court for inspection
Richland County, Case No. 13CA93                                                        16


      pursuant to Rule 16(B)(1) any statements or confessions made by the

      defendants which the state intends to introduce in evidence at the trial.



      {¶56} The standard of review on this issue is set forth in State v. Torres, 66 Ohio

St.2d 340 (1981), syllabus:



             A defendant claiming error in the trial court's refusal to allow

      separate trials of multiple charges under Crim.R. 14 has the burden of

      affirmatively showing that his rights were prejudiced; he must furnish the

      trial court with sufficient information so that it can weigh the considerations

      favoring joinder against the defendant's right to a fair trial, and he must

      demonstrate that the court abused its discretion in refusing to separate the

      charges for trial.



      {¶57} In State v. Franklin, 62 Ohio St.3d 118, 122 (1991), the Supreme Court of

Ohio explained the following:



             The prosecutor may counter the claim of prejudice in two ways.

      State v. Lott, 51 Ohio St.3d at 163, 555 N.E.2d at 298. The first is the

      "other acts" test, where the state can argue that it could have introduced

      evidence of one offense in the trial of the other, severed offense under the

      "other acts" portion of Evid.R. 404(B). Id.; see, also, Bradley v. United

      States (C.A.D.C.1969), 433 F.2d 1113, 1118-1119. The second is the
Richland County, Case No. 13CA93                                                       17


      "joinder" test, where the state is merely required to show that evidence of

      each of the crimes joined at trial is simple and direct. State v. Lott,

      supra; State v. Roberts (1980), 62 Ohio St.2d 170, 175, 16 O.O.3d 201,

      204, 405 N.E.2d 247, 251; State v. Torres, 66 Ohio St.2d at 343-344, 20

      O.O.3d at 315, 421 N.E.2d at 1291. If the state can meet the joinder test,

      it need not meet the stricter "other acts" test. Thus, an accused is not

      prejudiced by joinder when simple and direct evidence exists, regardless

      of the admissibility of evidence of other crimes under Evid.R. 404(B).

      State v. Lott, supra; State v. Roberts, supra; State v. Torres, supra.



      {¶58} Admittedly, the felonious assault counts occurred at a separate place with

different witnesses. Therefore, the issue is whether "simple and direct evidence exists."

We answer this issue in the affirmative.

      {¶59} The witnesses and/or victims to the felonious assaults were Ms. Myers,

Mr. Greer, and Ms. Smith. The investigating officers to the felonious assaults were

Mansfield Police Officer Nelson Kilgore, and Mansfield Police Sergeants Douglas

Seman and Chad Brubaker. The witnesses to the incidents at the jail were Officer

Fletcher, Lieutenant Young, Robert Naugle, and Mansfield Police Officer Angela

Eichinger. There could be no confusion as to the events. Any trial of Counts 3 through

6 would necessarily imply that appellant was jailed for other offenses. The trial court

specifically instructed the jury to consider each count separately, and divided the jury

charge between the felonious assault charges and the jail related charges. T. at 345.

In addition, in his own testimony, appellant admitted to being a heroin addict at the time
Richland County, Case No. 13CA93                                                         18


of the felonious assaults, and breaking the sprinkler head and having a cellular

telephone in his possession while in jail. T. at 284-286, 294.

       {¶60} We find no undue prejudice to appellant in trying the six counts

collectively. Upon review, we find the trial court did not err in denying appellant's motion

for relief from prejudicial joinder.

       {¶61} Assignment of Error IV is denied.

       {¶62} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.




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