[Cite as State v. Daniels, 2013-Ohio-3656.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
KENJI MICHAEL DANIELS : Case No. 12CA121
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2012-CR-350H
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 21, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JILL M. COCHRAN PATRICIA O'DONNELL KITZLER
38 South Park Street 3 North Main Street
Mansfield, OH 44902 Suite 801
Mansfield, OH 44902
Richland County, Case No. 12CA121 2
Farmer, P.J.
{¶1} On June 11, 2012, the Richland County Grand Jury indicted appellant,
Kenji Michael Daniels, on one count of domestic violence in violation of R.C. 2919.25,
one count of failure to comply with order or signal of police officer in violation of R.C.
2921.33 (later amended to fleeing and eluding in violation of R.C. 2921.331), one count
of receiving stolen property in violation of R.C. 2913.51, and one count of attempted
aggravated burglary in violation of R.C. 2911.11 and 2923.02. Said charges arose from
an argument involving appellant's girlfriend, Jessica Mills, while they were at the
residence of Ms. Mills's cousin. Following the argument, police initiated an investigation
and attempted to speak with appellant which led to a police chase.
{¶2} A jury trial commenced on November 19, 2012. At the conclusion of the
state's case, the domestic violence count was dismissed. The jury found appellant
guilty of the amended count and the attempted aggravated burglary count. By
sentencing entry filed November 30, 2012, the trial court sentenced appellant to two
years on each count, to be served consecutively.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "APPELLANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL UNDER
THE U.S. AND OHIO CONSTITUTIONS WERE IMPERMISSIBLY VIOLATED BY THE
STATE'S WILLFUL FAILURE TO COMPLY WITH THE DISCOVERY REQUIREMENTS
OF CRIMINAL RULE 16, WHICH VIOLATION FURTHER CONSTITUTES
PROSECUTORIAL MISCONDUCT."
Richland County, Case No. 12CA121 3
II
{¶5} "APPELLANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL
UNDER THE U.S. AND OHIO CONSTITUTIONS DUE TO THE IMPROPER JURY
CHARGE ON COUNT IV, ATTEMPTED AGGRAVATED BURGLARY."
III
{¶6} "APPELLANT WAS DEPRIVED OF A FAIR TRIAL AND DUE PROCESS
OF LAW AS GUARANTEED BY THE SIXTH AMENDMENT TO THE U.S.
CONSTITUTION AND BY SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION
DUE TO THE INEFFECTIVENESS OF TRIAL COUNSEL."
IV
{¶7} APPELLANT'S CONVICTIONS ON COUNTS II AND IV ARE CONTRARY
TO THE MANIFEST WEIGHT AND SUFFICIENCY OF EVIDENCE PRESENTED AT
TRIAL, THUS DENYING APPELLANT A FAIR TRIAL AND DUE PROCESS OF LAW
UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION AND UNDER SECTION 10, ARTICLE 1 OF THE OHIO
CONSTITUTION."
V
{¶8} "APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL DUE
TO THE CUMULATIVE ERRORS HEREIN, IN DEROGATION OF THE U.S. AND
STATE CONSTITUTIONS."
I
{¶9} Appellant claims the state engaged in prosecutorial misconduct in failing
to disclose his statement made to a police officer in violation of Crim.R. 16.
Richland County, Case No. 12CA121 4
{¶10} The test for prosecutorial misconduct is whether the prosecutor's actions
were improper and if so, whether those actions prejudicially affected the substantial
rights of the accused. State v. Lott, 51 Ohio St.3d 160 (1990). In reviewing allegations
of prosecutorial misconduct, it is our duty to consider the complained of conduct in the
contest of the entire trial. Darden v. Wainwright, 477 U.S. 168 (1986).
{¶11} Crim.R. 16 governs discovery and inspection. Subsections (A) and (B)(1)
state the following:
Purpose, Scope and Reciprocity. This rule is to provide all parties
in a criminal case with the information necessary for a full and fair
adjudication of the facts, to protect the integrity of the justice system and
the rights of defendants, and to protect the well-being of witnesses,
victims, and society at large. All duties and remedies are subject to a
standard of due diligence, apply to the defense and the prosecution
equally, and are intended to be reciprocal. Once discovery is initiated by
demand of the defendant, all parties have a continuing duty to supplement
their disclosures.
Discovery: Right to Copy or Photograph. Upon receipt of a
written demand for discovery by the defendant, and except as provided in
division (C), (D), (E), (F), or (J) of this rule, the prosecuting attorney shall
provide copies or photographs, or permit counsel for the defendant to
copy or photograph, the following items related to the particular case
indictment, information, or complaint, and which are material to the
Richland County, Case No. 12CA121 5
preparation of a defense, or are intended for use by the prosecuting
attorney as evidence at the trial, or were obtained from or belong to the
defendant, within the possession of, or reasonably available to the state,
subject to the provisions of this rule:
(1) Any written or recorded statement by the defendant or a co-
defendant, including police summaries of such statements, and including
grand jury testimony by either the defendant or co-defendant;
{¶12} During trial, the state called Mansfield Police Officer Jeff McKinley who
transported appellant to the hospital for treatment following his arrest after a police
chase. During treatment, Officer McKinley testified to the following exchange between
appellant and a nurse (T. at 191-192):
A. As he was being assessed by the nurse, actually, they had had a
bit of an exchange as to how he was injured. She was inquiring as to
some of the injuries he was claiming and what they needed to do as far as
X-rays and things. The Defendant made a statement that he had been
driving the vehicle.
Q. He stated that he had been driving?
A. Yeah. He made a comment to the nurse.
Q. Okay. Did he make any other comments?
A. At that time I guess he realized that I was in the room and he
made a comment that I didn't hear him.
Richland County, Case No. 12CA121 6
Q. I'm sorry, what do you mean? What did he say?
A. After he made the comment to the nurse, he turned and said,
You didn't hear that, and uttered an obscenity at me.
{¶13} Officer McKinley admitted to supplementing the criminal report with what
he had overheard. T. at 193, 195.
{¶14} To justify its failure to provide the supplement, the state argued it was
aware of the exchange and told Officer McKinley to supplement his report, but had not
yet received it. T. at 199-200. All concede that the Richland County Prosecutor's Office
uses the open discovery method in compliance with Crim.R. 16.
{¶15} On July 5, 2012, the state provided discovery and disclosed Officer
McKinley as a witness. He was subpoenaed as a witness. The discovery compliance
notice filed July 5, 2012 includes the language: "All persons identified in any exhibits or
documents attached hereto or included in any records of any police agency,
government office or medical provider involved in this case are also considered
witnesses even if not listed hereon."
{¶16} Amended supplements to discovery were filed on November 14 and 16,
2012, three to five days prior to trial, but did not include the supplement of Officer
McKinley. The revelation of the supplement did not occur until Officer McKinley testified
on November 20, 2012. Officer McKinley was testifying to appellant's demeanor at the
hospital. T. at 191-192. The supplementation of a critical admission by appellant on the
second day of trial is a violation of the spirit of the rule.
Richland County, Case No. 12CA121 7
{¶17} The trial court handled the matter by ordering the supplement be given to
defense counsel after the "cat was out of the bag." T. at 200. Officer McKinley then
reviewed photographs and testified to appellant's appearance after the police chase. T.
at 201-203.
{¶18} The trial court's remedy was not in compliance with Crim.R. 16(A).
However, no alternative remedy was suggested by defense counsel.
{¶19} An error not raised in the trial court must be plain error for an appellate
court to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B). 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. Long. Notice
of plain error "is to be taken with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice." Id. at paragraph three of the
syllabus. Harmless error is described as "[a]ny error, defect, irregularity, or variance
which does not affect substantial rights shall be disregarded." Crim.R. 52(A).
Overcoming harmless error requires a showing of undue prejudice or a violation of a
substantial right.
{¶20} It was the state's position that appellant was the driver of the vehicle that
led police on a chase resulting in the fleeing and eluding charge. To support its
argument, the state presented Mansfield Police Officer Jason Bamman who testified he
was familiar with appellant as he had dealt with him in the past, had accessed
appellant's driver's license picture on his computer before the chase, and visually
identified appellant as the driver of the vehicle. T. at 206-208. In fact, prior to the
pursuit, Officer Bamman and appellant made eye contact. T. at 208. Officer Bamman
Richland County, Case No. 12CA121 8
maintained visual contact of the vehicle the entire time. T. at 210, 214. After an
extensive chase, Officer Bamman observed the vehicle stop and appellant exit the
driver's side. T. at 215-216.
{¶21} Mansfield Police Officer Terry Rogers also identified appellant from his
driver's license photo as the driver of the vehicle involved in the chase, and also had
face-to-face visual contact with him as he drove past the police. T. at 229-232. Officer
Rogers never saw any change of position of persons in the vehicle. T. at 233-234.
After the vehicle stopped, Officer Rogers observed a person wearing a red sweatshirt
exit the driver's side of the vehicle. T. at 234-235. Appellant was apprehended wearing
a white t-shirt, but a red sweatshirt was discovered at the scene. T. at 245.
{¶22} Defense counsel waived opening statement, standing on the plea of not
guilty to all the charges. T. at 88.
{¶23} Given the testimony of Officers Bamman and Rogers, we find appellant's
identity as the driver of the vehicle was firmly established. Therefore, we conclude the
discovery violation did not unduly prejudice appellant or affect the outcome of the trial.
{¶24} Assignment of Error I is denied.
II
{¶25} Appellant claims the trial court gave an incomplete charge on the
attempted aggravated burglary charge as it failed to define what underlying criminal
offense he intended to commit if he had entered the residence.
{¶26} Crim.R. 30 governs instructions. Subsection (A) states the following in
pertinent part: "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
Richland County, Case No. 12CA121 9
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."
Appellant did not object to the jury instructions therefore, the arguments herein shall be
reviewed under the plain error standard. Long, supra; Crim.R. 52(B).
{¶27} The trial court instructed the jury on the complained of issue as follows:
"Only a purpose to commit a criminal offense is necessary and not the actual
commission thereof. The criminal offense alleged to be committed is an attempted
aggravated burglary." T. at 393. The state concedes no specific definition or instruction
of the intended criminal offense was given. Appellee's Brief at 18. No specific offense
was alleged in the indictment.
{¶28} During closing argument, the state argued the intended criminal offense
was some form of physical violence, i.e., menacing, assault, domestic violence,
referencing the testimony of Carol Mills that appellant threatened to kill her, her
daughter Jessica, and her granddaughter. T. at 156-157, 372-373. Defense counsel
argued there was no intent to commit a criminal offense as appellant merely wanted to
retrieve his keys and cell phone. T. at 322-325, 378.
{¶29} Carol Mills testified several individuals where outside arguing, including
her daughter Jessica and appellant. During the argument, appellant threatened
everyone. T. at 151-152, 156-157. Appellant "took a bullet out of his pocket and threw
it and said, I got nine more, and he's, like, pointing at people." T. at 151. Everyone ran
into the residence, locking the door behind them. T. at 154-155. Appellant attempted to
gain entry and damaged the door and the framing around the door. T. at 155-156.
Richland County, Case No. 12CA121 10
After being informed that the police had been called, appellant stated "he had bullets for
the police, too, so let them come." Id.
{¶30} Appellant's intention was clearly defined as either innocent (retrieval of
keys and cell phone) or criminal (physical violent offense). We find no plain error on this
issue.
{¶31} Assignment of Error II is denied.
III
{¶32} Appellant claims he was denied the effective assistance of trial counsel
because his counsel should have requested a continuance or mistrial on the delayed
discovery (Assignment of Error I) and should have objected to the jury charge
(Assignment of Error II).
{¶33} 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
Richland County, Case No. 12CA121 11
reasonable probability that, were it not for counsel's errors, the result of
the trial would have been different.
{¶34} Appellant's arguments herein have been addressed in Assignments of
Error I and II wherein we concluded the outcome of the trial would not have been
affected by the complained of errors.
{¶35} Assignment of Error III is denied.
IV
{¶36} Appellant claims his conviction was against the sufficiency and manifest
weight of the evidence.
{¶37} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259 (1991). "The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt." Jenks at
paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). 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
Richland County, Case No. 12CA121 12
against the conviction." Martin at 175. We note the weight to be given to the evidence
and the credibility of the witnesses are issues for the trier of fact. State v. Jamison, 49
Ohio St.3d 182 (1990). The trier of fact "has the best opportunity to view the demeanor,
attitude, and credibility of each witness, something that does not translate well on the
written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.
{¶38} Appellant was convicted of fleeing and eluding in violation of R.C.
2921.331(B) and (C)(5)(a)(ii) which state the following:
No person shall operate a motor vehicle so as willfully to elude or
flee a police officer after receiving a visible or audible signal from a police
officer to bring the person's motor vehicle to a stop.
(C)(1) Whoever violates this section is guilty of failure to comply
with an order or signal of a police officer.
(5)(a) A violation of division (B) of this section is a felony of the third
degree if the jury or judge as trier of fact finds any of the following by proof
beyond a reasonable doubt:
(ii) The operation of the motor vehicle by the offender caused a
substantial risk of serious physical harm to persons or property.
{¶39} Appellant challenges the testimony of Officers Bamman and Rogers as to
whether he was the driver of the vehicle. Appellant testified he was sitting in the back
seat and "Bebe" was driving the vehicle. T. at 328-330. There is no dispute that the
Richland County, Case No. 12CA121 13
officers pursued the vehicle with visible and audible signals, the vehicle failed to stop,
and a chase ensued.
{¶40} The sole issue in dispute was the identity of the driver. As set forth in
Assignment of Error I, Officer Bamman had prior dealings with appellant, and both
officers reviewed his driver's license picture on their computers. T. at 206-208, 229-
230. Both officers testified to face-to-face encounters with the driver of the vehicle and
identified appellant as the driver. T. at 208, 231-232.
{¶41} After the vehicle stopped, Officer Bamman testified appellant exited the
driver's door and ran away. T. at 216-219. He testified appellant had been wearing a
red sweatshirt. T. at 221-222. Officer Rogers testified the driver who exited the vehicle
was wearing a red sweatshirt. T. at 234-235. Appellant and his witnesses testified he
was wearing a white t-shirt, and in fact, appellant was apprehended wearing a white t-
shirt, but a red sweatshirt was discovered near the site where he was found. T. at 245,
290, 297, 316, 326. Appellant was tracked by a canine officer. T. at 176-180, 237-239.
{¶42} We conclude there was ample testimony to support the jury's
determination of appellant's identity as the driver of the vehicle, and sufficient evidence
to substantiate the jury's guilty finding on the fleeing and eluding charge.
{¶43} Appellant was also convicted of attempted aggravated burglary in violation
of R.C. 2911.11(A)(1) and 2923.02 which state the following, respectively:
(A) No person, by force, stealth, or deception, shall trespass in an
occupied structure or in a separately secured or separately occupied
portion of an occupied structure, when another person other than an
Richland County, Case No. 12CA121 14
accomplice of the offender is present, with purpose to commit in the
structure or in the separately secured or separately occupied portion of the
structure any criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical
harm on another;
(A) No person, purposely or knowingly, and when purpose or
knowledge is sufficient culpability for the commission of an offense, shall
engage in conduct that, if successful, would constitute or result in the
offense.
{¶44} It is undisputed that appellant attempted to enter the residence. Jessica
Mills and appellant started arguing while outside of her cousin's residence. T. at 91.
Jessica's mother, Carol Mills, and Jessica's brother, Cliff Mills, came outside to defuse
the situation. T. at 149-150. Appellant made threats to everyone. T. at 92, 151-152,
157. Jessica, Carol, and Cliff went into the residence and shut and locked the door. T.
at 154. Thereafter, appellant broke open the door. T. at 155. After being notified that
the police had been called, appellant ran away. T. at 155-156. The responding officer,
Mansfield Police Officer Paul Lumadue, testified the front door and the door frame had
been kicked in and the dead bolt was bent. T. at 136; State's Exhibits 4, 5, and 6.
Photographs established force to the door and the door was broken from the outside
going in. T. at 136-137. Appellant testified Cliff pushed Carol back and she stumbled
against the door, breaking it. T. at 324. Appellant claimed he merely wanted to retrieve
his keys and cell phone. T. at 324-325.
Richland County, Case No. 12CA121 15
{¶45} We conclude there was sufficient evidence to substantiate the jury's guilty
finding on the attempted aggravated burglary charge.
{¶46} Upon review, we find sufficient evidence to support appellant's
convictions, and no manifest miscarriage of justice.
{¶47} Assignment of Error IV is denied.
V
{¶48} Appellant claims the cumulative errors treated as a whole denied him a
fair trial.
{¶49} Having found no error in the assignments of error above, this assignment
of error is denied.
Richland County, Case No. 12CA121 16
{¶50} The judgment of the Court of Common Pleas of Richland County, Ohio is
hereby affirmed.
By Farmer, P.J.
Wise, J. and
Delaney, J. concur.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. John W. Wise
_______________________________
Hon. Patricia A. Delaney
SGF/sg 723
[Cite as State v. Daniels, 2013-Ohio-3656.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
KENJI MICHAEL DANIELS :
:
Defendant-Appellant : CASE NO. 12CA121
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to
appellant.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. John W. Wise
_______________________________
Hon. Patricia A. Delaney
State v. Daniels
Combined Opinion