[Cite as State v. Millay, 2012-Ohio-3776.]
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, 2012-Ohio-3776.]
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, 53 Ohio St.2d 91, 372 N.E.2d 804 (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.” Id. 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, 50 Ohio St.3d 206, 209-210, 553 N.E.2d 640 (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.” Id.
{¶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, 37
Ohio St.3d 153, 524 N.E.2d 476 (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, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (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. Id.
{¶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, 2012-Ohio-3776.]
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.
_________________________________
_________________________________
_________________________________
JUDGES