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State v. Shaw

Court of Appeals of Ohio, Seventh District, Belmont

March 31, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JAMES ROBERT SHAW DEFENDANT-APPELLANT

         Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 15 CR 174

          For Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County Prosecutor Atty. Kevin Flanagan Chief Assistant Prosecuting Attorney.

          For Defendant-Appellant: Atty. John M. Jurco.

          JUDGES: Hon. Cheryl L. Waite, Hon. Mary DeGenaro, Hon. Carol Ann Robb.

          OPINION

          WAITE, J.

         {¶1} Appellant James Robert Shaw appeals the conviction in Belmont County Common Pleas Court for his third offense of domestic violence, in violation of R.C. 2919.25(A). Appellant raises five issues on appeal dealing with his conviction and sentence. Following a review of this record, Appellant's assignments of error are without merit and are overruled. The trial court's decision is affirmed.

         Factual and Procedural Background

         {¶2} On August 5, 2015, the Belmont County Grand Jury indicted Appellant on his third offense of domestic violence, in violation of R.C. 2919.25(A), a felony of the third degree, for events transpiring on July 1, 2015. The indictment stated that Appellant:

did knowingly cause or attempt to cause physical harm to a family or household member, to-wit: [victim]. All in violation of Ohio Revised Code Section 2919.25(A).
[APPELLANT] WAS PREVIOUSLY CONVICTED OF TWO (2) PRIOR DOMESTIC VIOLENCE OFFENSES AS FOLLOWS: 1) ON SEPTEMBER 30, 2003, IN CASE NO. 03M1439, IN THE OHIO COUNTY MAGISTRATE COURT - WHEELING, WEST VIRGINIA; AND 2) ON JULY 29, 2005, IN CASE NO. 05M11, IN THE MARSHALL COUNTY CIRCUIT COURT - MOUNDSVILLE, WEST VIRGINIA.

         {¶3} On August 13, 2015, an arraignment was held where Appellant pleaded not guilty and defense counsel was appointed. Pretrial conference was held on August 24, 2015 and two days later the trial court issued a judgment entry denying Appellant's oral request for a recognizance bond. Appellant's earlier request for recognizance bond, sent to the court by letter, was also denied.

         {¶4} A hearing was held on September 8, 2015, where the parties informed the court that no plea agreement had been reached. At this hearing, the state provided information about newly discovered evidence. Appellant had made telephone calls to the victim while he was incarcerated, despite the existence of a restraining order. Defense counsel objected to the use of the evidence. On September 11, 2015, the state filed supplemental discovery.

         {¶5} A jury trial was held on September 15, 2015. Appellant was found guilty of third offense domestic violence, in violation of R.C. 2919.25(A). On October 5, 2015, Appellant was sentenced to thirty months in prison, with ninety-seven days credit for time served.

         {¶6} Appellant filed this timely appeal.

         ASSIGNMENT OF ERROR NO. 1

         The trial court erred in not declaring a mistrial.

         ASSIGNMENT OF ERROR NO. 2

         The trial court erred in introducing other acts evidence of allegedly broken ribs.

         ASSIGNMENT OF ERROR NO. 3

         The trial court erred in introducing the Wheeling, Ohio County, West Virginia conviction to prove up ...


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