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State v. Smith

Court of Appeals of Ohio, Fourth District

June 27, 2005

STATE OF OHIO, Plaintiff-Appellee.
v.
BROCK SMITH, Defendant-Appellant.

Journalized June 27, 2005

David Reid Dillon, Ironton, Ohio, for Appellant.

J.B. Collier, Jr., Prosecuting Attorney, Ironton, Ohio, and Brigham M. Anderson, Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee.

DECISION

Matthew W. McFarland, Judge.

{¶1} Defendant/Appellant Brock Smith appeals from a jury verdict in favor of the State, finding Appellant guilty of felonious assault and aggravated robbery, each with firearm specifications, in violation of R.C. 2903.11(A)(2) and 2911.01(A)(1), respectively. Appellant argues, with respect to his felonious assault conviction, that the trial court erred in failing to grant a continuance and subsequent motion for acquittal. He also argues the trial court erred in denying admission of certain evidence regarding the felonious assault charge. Finally, he argues the trial court erred with regard to non-minimum and consecutive sentencing of the felonious assault and aggravated robbery charges. We find that the trial court's failure to grant a continuance as to the felonious assault charge resulted in prejudice to Appellant and thus, a failure of justice.

{¶2} In light of the disposition of Appellant's second assignment of error, all other assigned errors, with the exception of Part B of assignment of error IV are rendered moot. Accordingly, we reverse the jury's finding of guilt with regard to the felonious assault charge and remand to the trial court for proceedings consistent with this holding. We also find that Part B of assignment of error IV has merit and therefore we reverse the trial court's imposition of sentence regarding the aggravated robbery conviction and remand for re-sentencing.

{¶3} On May 17, 2004, the State of Ohio indicted Appellant, Brock Smith, for Aggravated Robbery, in violation of R.C. 2911.01(A)(1), a first degree felony, and Felonious Assault, in violation of R.C. 2903.11(A)(2), a second degree felony, with firearm specifications on both charges. Both charges were stated in the indictment to have occurred on or about March 7, 2004. The charge of aggravated robbery stemmed from a robbery that occurred at Papa John's Pizza in Ironton, Ohio, and the charge of felonious assault stemmed from an incident occurring at the residence of Timothy Bare of Ironton, Ohio. Upon completion of an investigation by the Ironton Police Department, Appellant was arrested and charged with these crimes.

{¶4} At his arraignment on May 19, 2004, Appellant pled not guilty to both charges and on the same day, through counsel, filed a request for discovery. Discovery was thereafter provided by both parties. On July 15, 2004, counsel for Appellant filed a motion to dismiss, claiming prejudice as a result of misconduct by agents of the state, alleging by affidavit that certain members of the police department had instructed several witnesses not to cooperate with Appellant's investigators. The trial court denied Appellant's motion the same day. On July 16, 2004, Appellant filed a conditional notice of alibi, claiming to have spent part of the "day" in question "in the company of Scott Chatfield in South Point, Ohio, and also at the home of Tony Smith in Ironton."

{¶5} Appellant's trial began on July 19, 2004. During voir dire, the prosecutor identified that the Papa John's robbery occurred on the evening of March 7, 2004, and the felonious assault occurred on the evening of March 6, 2004. Upon completion of voir dire, Appellant's counsel immediately claimed surprise and prejudice and moved the court for additional time to prepare a defense, or for a dismissal of the charge. The state opposed the motion, citing the indictment stated the offense occurred "on or about March the 7th, " and that there was no request for a bill of particulars that particularly gave the time in this case. The trial court overruled Appellant's motion, reasoning that "[t]he indictment charges on or about March 7 and 'on or about' would include, obviously, March 6th." A jury trial ensued where, in accordance with his previously filed conditional notice of alibi, Appellant presented alibi testimony for the evening of March 7, 2004, and flatly denied the occurrence of the alleged felonious assault the evening prior.

{¶6} On July 20, 2004, the jury returned a verdict of guilt on both charges, including the firearms specifications. On July 23, 2004, Appellant filed a motion for acquittal with regard to the felonious assault conviction only, on sufficiency of evidence grounds. On July 28, 2004, the trial court overruled Appellant's motion for acquittal and sentenced Appellant to consecutive terms of imprisonment, totaling twenty-two years and fines totaling $35, 000.00

{¶7} It is from this judgment entry that Appellant filed his timely notice of appeal, assigning the following errors:

{¶8} "I. THE TRIAL COURT ERRED IN REFUSING TO GRANT DEFENDANT'S MOTION FOR ACQUITTAL IN CONNECTION WITH THE CHARGE OF FELONIOUS ASSAULT AGAINST HIM."

{¶9} "II. THE TRIAL COURT ERRED IN REFUSING TO GRANT A CONTINUANCE TO DEFENDANT ON THE FELONIOUS ASSAULT CHARGE DESPITE SURPRISE AND PREJUDICE TO HIM."

{¶ 10} "III. THE TRIAL COURT ERRED IN DENYING ADMISSION TO A THREATENING PHONE CALL MADE TO DEFENDANT BY ONE OF THE ...


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