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State v. Palmer

Court of Appeals of Ohio, Fifth District, Richland

March 30, 2018

STATE OF OHIO Plaintiff-Appellee
v.
WILLIAM PALMER Defendant-Appellant

          Criminal Appeal from the Court of Common Pleas, Case No. 16 CR 556

          GARY BISHOP PROSECUTING ATTORNEY JOSEPH C. SNYDER ASSISTANT PROSECUTOR For Plaintiff-Appellee For

          WILLIAM T. CRAMER Defendant-Appellant

          Hon. John W. Wise, P. J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J.

          OPINION

          Wise, P. J.

         {¶1} Appellant William Palmer appeals his convictions on one count of felonious assault, two counts of kidnapping, and one count of theft against an elderly victim, entered in the Richland County Common Pleas Court following a jury trial.

         {¶2} Appellee is State of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶3} Defendant-Appellant William Palmer was charged with one count of felonious assault, in violation of R.C. §2903.11(A)(1), a second degree felony, one count of kidnapping, in violation of R.C. §2905.01(B)(2) (substantial risk of serious physical harm) and one count of kidnapping, in violation of R.C. §2905.01(A)(3) (to terrorize or inflict serious physical harm), both first degree felonies. All three counts arose from an incident that occurred on or about August 6, 2016, involving Palmer's girlfriend D.L.

         {¶4} Appellant was also charged with theft, in violation of R.C. §2913.02, against an elderly victim, in an amount over $1, 000, a fourth degree felony. This count arose from an unfinished roofing job which Appellant had taken money to do during the summer of 2016.

         {¶5} The following testimony and evidence was presented at trial:

         Felonious Assault and Kidnapping

         {¶6} In June of 2016, D. L. and Appellant began a relationship. (T. at 256). During their relationship, D.L. lived with Appellant at 302 Lenox. (T. at 262). Near the end of July, Appellant cut her ear with a pocket knife to, in his mind, make sure she was being honest with him. (T. at 258). The cut to her ear left a scar. (T. at 259). Through her brief relationship with Appellant, D.L. was not allowed to use a phone or go anywhere without his permission. (T. at 274-275).

         {¶7} On the 6th of August, D.L. went out to eat with her parents and son for his birthday. (T. at 260). When she got back home, Appellant became angry about a Facebook message he had seen on her phone. Id. Appellant responded to this by gagging D.L., tying her up, and hitting her with a billy club, flashlight, his fist, and a mirror. (T. at 260). Appellant hit her with the flashlight somewhere between 20 to 30 times. (T. at 266).

         {¶8} The club was used to strike her legs repeatedly. (T. at 266). The club had "Billy's Club" written on it. (T. at 453). Appellant tied D.L.'s hands with the cinch from a robe and her feet with a leather belt. (T. at 262-263). She was hog-tied with her hands and ankles bound together behind her back with her laying on her stomach. (T. at 262). He also held a knife to her neck and demanded she tell him the truth, which he thought she was withholding.. Appellant regularly carried this knife with him. (T. at 265). Appellant kept D.L. tied up on a couch in the house for six hours. (T. at 263-264). During this time, he threatened to kill her, threats that she believed he would carry out. (T. at 277).

         {¶9} Eventually, Appellant untied D.L., but she did not have the opportunity to leave until the next day. (T. at 267). Appellant allowed her to leave with a friend of hers in order to get cigarettes and money for him, but instead she got dropped off in Shelby so she could get money from her parents and a hotel room. (T. at 268). After three days, she carne back to Mansfield to press charges. (T. at 269). D.L. did not immediately go to the police because she just wanted to be away from him. (T. at 268). While D.L. was hiding from Appellant, Appellant called a family friend of D.L.'s and threatened him in an attempt to find her. (T. at 585). D.L. went to a friend's house on Seventh Avenue, but Appellant found her there; however, but she would not let him into the house. (T. at 268).

         {¶10} On the 9th of August, 2016, D.L. contacted police and spoke with Officer Kiner. (T. at 273). The same day, D.L. went to Mansfield Ohio Health to be treated for her injuries. (T. at 273, 329). She was found to have a bruise on her right thigh, bruises to both eyes and both ears, and a scrape on her left ear. (T. at 333).

         {¶11} Later that day, Appellant asked a family friend, William Spognardi, to take him to a place on Seventh Avenue where he thought he might locate D.L. (T. at 349-350). Spognardi dropped Appellant off and did not hear from him again until late afternoon. (T. at 350). Appellant then asked him to come pick up him to take him back to his house. Id. When Mr. Spognardi found him, Appellant was sprawled out on the front porch of a house and needed help getting into the car. Id. Appellant wanted to go to a different place to look for D.L. but Mr. Spognardi was only willing to take him back home. Id.

         {¶12} On the way, they noticed a SWAT team at Appellant's home. They stopped at a McDonalds and Appellant asked Mr. Spognardi to take him to another house, but Mr. Spognardi asked why the police were there. (T. at 351). Appellant then told him that it was because he hurt D.L. and that was also why he was looking for her. (T. at 351, 364). Mr. Spognardi then started driving Appellant back to the house when the police surrounded them and Appellant was arrested. (T. at 351). When Appellant got out of the car, he left his crack pipe and phone on the seat, which were recovered by police. (T. at 352). A box cutter was also found in his possession. (T. at 373).

         {¶13} When Appellant was questioned about D.L.'s injuries he insisted he was not there when she was injured, and that she was always running around and doing things. (T. at 451). But then he said that she never leaves his side and he cannot get anything done because of it. Id. He told police that D.L.'s injuries happened before she went out to lunch with her parents on the 6th, but her parents said that she did not have any black eyes when they met her. Id.

         {¶14} After a search of Appellant's home, a couch cushion was recovered which appeared to have a bloodstain on it and a flashlight. (T. at 388-389). Tests of the box cutter found on Appellant when he was arrested and a mirror turned up the presence of blood. (T. at 418). There was a 50/50 DNA mixture on the knife blade and hinge area between a male and a female. D.L. could not be excluded from the mixture. (T. at 428). Tests of the blood found on the mirror found that it was a match for D.L.

         Theft

         {¶15} In June of 2016, Kelly Chapman and Gilbert Sellers hired Appellant to fix a roof on a property he rented in Butler. (T. at 488-492). Appellant went to the bank with Mr. Sellers and Appellant was given $4, 000 cash up front. (T. at 516). The first thing Appellant was supposed to do was pay for a dumpster the following weak, but it did not appear, and neither did Appellant. (T. at 493-494). Appellant told Mr. Chapman and Mr. Sellers that his sisters had died in a car accident, causing him to be out of state. (T. at 494-495). More time passed until August when Appellant still had not started any of the work, so Mr. Chapman and Mr. Sellers filed a police report. (T. at 495-496). Police contacted Appellant, and he said he would begin work by the 5th of August. (T. at 549). No work was ever performed on the property by Appellant. (T. at 498-499).

         {¶16} Following a jury trial, Palmer was convicted on all counts. The court merged the second count of kidnapping into the first count. The court then sentenced Palmer to eight (8) years for the felonious assault and eleven (11) years for the kidnapping, to be served consecutively. The court also imposed twelve (12) months on the theft count to be served concurrently to the other counts

         {¶17} Appellant now appeals, assigning the following errors for review:

         ASSIGNMENTS OF ERROR

         {¶18} "I. THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY EXCLUDING A WITNESS WHO COULD TESTIFY THAT THE VICTIM ADMITTED SHE HAD FABRICATED HER CLAIMS AGAINST APPELLANT.

         {¶19} "II. THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY EXCLUDING A WITNESS WHO COULD TESTIFY THAT THE VICTIM PREVIOUSLY HARMED HERSELF AND BLAMED IT ON SOMEONE ELSE.

         {¶20} "III. APPELLANT'S RIGHT TO DUE PROCESS AND THE RULES OF EVIDENCE WERE VIOLATED WHEN THE PROSECUTION IMPROPERLY USED THE VICTIM'S PRIOR STATEMENT TO THE POLICE ON DIRECT EXAMINATION TO BOLSTER HER TESTIMONY.

         {¶21} "IV. APPELLANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED WHEN COUNSEL FAILED TO OBJECT TO THE PROSECUTION'S IMPROPER USE OF THE VICTIM'S PRIOR STATEMENT.

         {¶22} "V. APPELLANTS RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN THE VICTIM TOLD THE JURY THAT APPELLANT HAD ALREADY BEATEN THIRTY-ONE COUNTS OF KIDNAPPING.

          {¶23} "VI. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO UTILIZE A DEPOSITION IN THE PLACE OF A MISSING WITNESS.

         {¶24} "VII. APPELLANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT DENIED A CONTINUANCE OF TRIAL TO PROVIDE APPELLANT WITH TIME TO LOCATE WITNESSES.

         {¶25} "VIII. APPELLANT'S RIGHT TO COUNSEL WAS VIOLATED WHEN THE TRIAL COURT DENIED DEFENSE COUNSEL'S MOTION TO WITHDRAW.

         {¶26} "IX. APPELLANT'S RIGHTS TO DUE PROCESS WERE VIOLATED WHEN HE SUFFERED CONVICTIONS FOR FELONIOUS ASSAULT AND KIDNAPPING THAT WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE.

         {¶27} "X. APPELLANT'S CONVICTIONS FOR ASSAULT AND KIDNAPPING WERE NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.

         {¶28} "XI. APPELLANT'S RIGHTS TO DUE PROCESS WERE VIOLATED WHEN HE SUFFERED A CONVICTION FOR THEFT THAT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

         {¶29} "XII. APPELLANT'S CONVICTION FOR THEFT WAS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.

         {¶30} "XIII. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY THE ...


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