Criminal Appeal from the Court of Common Pleas, Case No. 2012 CR 01221
For Plaintiff-Appellee JOHN D. FERRERO PROSECUTING ATTORNEY KATHLEEN O. TATARSKY ASSISTANT PROSECUTOR.
For Defendant-Appellant J KRISTINE W. BEARD.
W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.
JOHN W. WISE, J.
(¶1} Appellant Yusef Trammel appeals his convictions and sentence, in the Court of Common Pleas, Stark County, on one count of aggravated burglary, with a repeat violent offender specification. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
(¶2} Shortly after midnight on August 6, 2012, Darin Hutchinson returned to his home on Tremont Avenue in Massillon, Ohio, having finished his evening shift at a nearby bakery. That night, Darin's son Brad, age nineteen, was resting upstairs in his room, while Darin's wife Rebecca Hutchinson was staying late at her mother's house to help take care of her following a recent surgery. Darin fell asleep on the couch, but was awakened at about 3:30 am when he heard some banging on the front door. Thinking Rebecca was knocking, he went to open the door. As he approached the entrance area, the door was smashed open, striking him in the head. Appellant, a former boyfriend of Rebecca's, immediately came crashing into the interior of the house and jumped on top of Darin. Putting Darin in a choke hold and banging his head onto the floor, appellant threatened to kill him.
(¶3} Rebecca, who had come home earlier while Darin was sleeping, saw appellant attack Darin. She yelled for Brad to come downstairs to assist and she tried to call 911. Appellant knocked the cell phone out of her hand, but she managed to retrieve it and call for help. Brad meanwhile came down the steps and got hold of appellant, who was still choking and punching Darin. Darin later testified that he thought Brad "saved my life that night." Tr. at 138. The father and son together were able to restrain appellant until Massillon Police Officer Tim Anderson arrived, although appellant bit Darin in the arm during the fracas. Darin also apparently suffered a seizure due to the stress of the assault. Appellant was thereupon arrested and handcuffed by Officer Anderson.
(¶4} Appellant was thereafter bound over from the Massillon Municipal Court. On September 10, 2012, the Stark County Grand Jury indicted appellant on one count of aggravated burglary, R.C. 2911.11(A)(1), a first-degree felony, and one count of harassment with a bodily substance, R.C. 2921.38(B), a felony of the fifth degree. The aggravated burglary charge carried a repeat violent offender specification under R.C. 2929.01(CC) and 2941.149.
(¶5} Appellant entered pleas of not guilty, and the case was ultimately set for trial. On November 9, 2012, prior to commencement of the trial, appellant filed a motion requesting that the trial court decide the repeat violent offender ("RVO") specification. Said motion was granted, and the court later found appellant guilty of the RVO based on a prior felony burglary.
(¶6} The jury trial began on November 13, 2012. After the presentation of all of the testimony, appellant requested a jury instruction on assault, which the trial court denied. The jury subsequently returned with a verdict of guilty to the crime of aggravated burglary but not guilty to the crime of harassment with a bodily substance.
(¶7} The trial court ultimately sentenced appellant to ten years on the aggravated burglary conviction and no time on the RVO specification.
(¶8} On December 19, 2012, appellant filed a notice of appeal. He herein raises the following four Assignments of Error:
(¶9} "I. APPELLANT'S CONVICTION FOR AGGRAVATED BURGLARY IS AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.
(¶10} "II. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GIVE THE JURY AN INSTRUCTION ON THE OFFENSE OF ASSAULT.
(¶11} "III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED IT (SIC) DISCRETION BY IMPOSING A NON-MINIMUM, MAXIMUM SENTENCE.
(¶12} "IV. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANT'S REQUEST TO CALL REBECCA HUTCHINSON AS ON CROSS AS A COURT'S WITNESS."
(¶13} In his First Assignment of Error, appellant contends his conviction for aggravated burglary was not supported by sufficient evidence and was against the manifest ...