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State v. Wynn

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 1, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-595910-A

          ATTORNEY FOR APPELLANT John H. Lawson

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Owen M. Patton Assistant Prosecuting Attorney

          BEFORE: E.A. Gallagher, P.J., Stewart, J., and Blackmon, J.



         {¶1} Defendant-appellant Antoinne Wynn appeals his felonious assault conviction in the Cuyahoga County Court of Common Pleas. The judgment of the trial court is affirmed.

         Facts and Procedural Background

         {¶2} On May 26, 2015 Wynn was indicted for one count of felonious assault. The case proceeded to a jury trial with Wynn representing himself, pro se, until late in the trial when he chose to have standby counsel handle his case. The following facts were adduced at trial.

         {¶3} On May 10, 2015 Wynn and Ramona Roberts engaged in an argument outside the St. Andrew's Towers apartments in Cleveland. Wynn and Roberts had been involved in a relationship that ended in April 2015. The argument culminated in Roberts throwing a hair product canister at Wynn's feet. Roberts then entered the apartment complex and visited a friend on the sixth floor. She spent five minutes on the sixth floor before taking the stairs to the second floor where she was living with her friend, Amanaah Bass. Upon exiting the second floor stairwell, Roberts was attacked by Wynn who struck her several times in the face and head with his fists. Roberts suffered significant bleeding from a 5 cm laceration to her forehead and her right eye was swollen shut. The attack occurred at approximately 12:30 p.m. and ended with Roberts entering the second floor apartment she shared with Bass. Bass called 911 and Roberts was examined at the scene by responding emergency medical services personnel but she refused transport to a hospital. She eventually sought treatment at the Cleveland Clinic emergency room where she received seven stitches for the laceration to her forehead and she bore a scar at the time of trial. Responding police officers arrived at the scene by 12:50 p.m., observed Roberts' injuries and discovered a large amount of blood on the floor and on the wall near the second floor elevator where the incident occurred. The officers were unable to locate Wynn at St. Andrew's Towers on May 10, 2015.

         {¶4} The jury returned a verdict of guilty to the charge of felonious assault in violation of R.C. 2903.11(A)(1). The trial court sentenced Wynn to a prison term of six years.

         Law and Analysis

         I. Motion for Continuance

         {¶5} In his first assignment of error, Wynn argues that the trial court erred in denying an oral motion for continuance made on the day of trial.

         {¶6} A determination of whether to grant or to deny a continuance is a matter left to the discretion of the trial judge, and an appellate court may not disturb the trial court's ruling absent an abuse of discretion. State v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

          {¶7} A reviewing court determines, on a case-by-case basis, whether the trial court's denial of a continuance motion was so arbitrary as to deprive the defendant of due process, paying particular attention to the reasons presented to the trial judge at the time the request was denied. Unger at 67, citing Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964).

         {¶8} In determining whether the trial court abused its discretion, an appellate court "weighs * * * any potential prejudice to a defendant [against] concerns such as a court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice." Id.

         {¶9} The Unger court stated that, in evaluating a motion for a continuance, a court should consider: (1) the length of the delay requested; (2) whether other continuances have been requested and received; (3) the inconvenience to litigants, witnesses, opposing counsel and the court; (4) whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful or contrived; (5) whether the defendant contributed to the circumstance that gives rise to the request for a continuance; (6) and other relevant factors, depending on the unique facts of each case. Id. at 67-68, citing United States v. Burton, 584 F.2d 485, 189 U.S.App.D.C. 327 (D.C.Cir.1978); Giacalone v. Lucas, 445 F.2d 1238 (6th Cir.1971).

         {¶10} In this instance, Wynn moved for a continuance on the day of trial due to the fact that (1) he had been provided with the criminal history of Amanaah Bass on the morning of trial and (2) portions of security guard notes from St. Andrew's Towers were redacted. The record reflects that Bass had no criminal history and we agree with the trial court's assessment that a continuance was inappropriate as to that material.

         {¶11} In regards to the redacted discovery materials, the state represented to the trial court that the redacted portions were limited to personal information of individuals, including addresses and dates of birth, that were not associated with the case. Crim.R. 16(F)(1) provides for in camera inspection of material designated "counsel only" for an abuse of discretion by the prosecuting attorney. However, pursuant to Crim.R. 16(F) and (M), a defendant is required to file a motion for such inspection no later than seven days prior to trial or three days after the opposing party provides discovery, whichever is later. In camera inspection did not occur in this instance because Wynn never filed a motion seeking review of the "counsel only" materials by the trial court under Crim.R.16(F)(1). The trial court retained discretion to strike Wynn's last-minute request as untimely pursuant Crim.R. 16(M). State v. Blair, 3d Dist. Marion No. 9-12-14, 2013-Ohio-646, ¶ 45.

         {¶12} Finally, for the first time on appeal Wynn argues that the state failed to disclose Cleveland police officer Matthew Nycz as a witness. However, Wynn did not make a motion for continuance with respect to Officer Nycz and the record reflects that the state disclosed to Wynn during a pretrial that it intended to call the arresting officer from his traffic stop and Wynn failed to object to Officer Nycz's testimony.

         {¶13} In light of the above facts, we cannot say that the trial court abused its discretion in denying Wynn's motion for a continuance.

          {¶14} Wynn's first assignment of error is overruled.

         II. Motion to Dismiss

         {¶15} In his second assignment of error, Wynn argues that the trial court erred in denying a motion to dismiss the indictment due to the state's failure to provide him with a preliminary hearing following his arrest on May 16, 2015. Wynn also argues that his motion to dismiss should have been granted because his indictment was defective.

         {¶16} We review a trial court's decision on a motion to dismiss an indictment pursuant to a de novo standard of review. State v. Knox, 8th Dist. Cuyahoga Nos. 103662 and 103664, 2016-Ohio-5519, ¶ 12, citing State v. Gaines, 193 Ohio App.3d 260, 2011-Ohio-1475, 951 N.E.2d 814, ¶ 14 (12th Dist). "De novo review requires an independent review of the trial court's decision without any deference to the trial court's determination." Id., quoting State v. Clay, 2d Dist. Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5.

         {¶17} Wynn's argument that he was denied a preliminary hearing in violation of R.C. 2945.91 and Crim.R. 5(B) is without merit because he was indicted on May 26, 2015 and a defendant's right to a preliminary hearing is extinguished by the return of an indictment. State v. Jackson, 8th Dist. Cuyahoga Nos. 62671 and 62672, 1993 Ohio App. LEXIS 5347 ...

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