Opinion
No. 1123
Decided August 4, 1982.
Criminal procedure — Photographic lineup consisting of "mugshots" — Determination as to whether lineup impermissibly suggestive — Totality of circumstances must be considered — Common sense investigative work of police detective not "scientific tests or experiments" within meaning of Crim. R. 16 (B)(1)(d) — Criminal law — Kidnapping — Not error for court to instruct jury on lesser included offense of abduction, when.
O.Jur 3d Criminal Law §§ 202, 341.
1. A photographic lineup comprised of "mugshots" bearing the arrest dates of the subjects must be examined in light of the totality of the circumstances when determining whether the lineup was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. ( Neil v. Biggers, 409 U.S. 188, followed.)
O.Jur 3d Criminal Law §§ 1077, 1081.
2. Testimony of a detective concerning common-sense investigative work that he had performed, regarding possible routes taken by the defendant and the times of travel involved therein, need not be excluded under Crim. R. 16 (E)(3) since such work does not constitute discoverable "scientific tests or experiments" within the meaning of Crim. R. 16 (B)(1)(d).
O.Jur 3d Criminal Law §§ 996, 1716.
3. It is not error to instruct the jury on both the offense of kidnapping and the lesser included offense of abduction when, from the evidence presented, a jury could reasonably find that the defense offered by the defendant, even if accepted, would not preclude a conviction on the lesser offense. ( State v. Nolton, 19 Ohio St.2d 133 [48 O.O.2d 119]; and State v. Wilkins, 64 Ohio St.2d 382 [18 O.O.3d 528], followed.)
APPEAL: Court of Appeals for Medina County.
Mr. Gregory W. Happ, prosecuting attorney, for appellee.
Mr. V. Lee Winchell, for appellant.
Defendant-appellant, Samuel Goble, was indicted for kidnapping (R.C. 2905.01[B][1] and [2]) and felonious assault (R.C. 2903.11[A][2]). A trial by jury was had resulting in defendant's conviction of the lesser included offense of abduction and of felonious assault. Defendant now appeals and sets forth the following assignments of error:
"I. The trial court erred in admitting the photographic lineup which included the defendant-appellant into evidence and in permitting the victim to identify the defendant-appellant at the time of trial.
"II. The trial court erred in permitting Detective Michael Sobie to testify as to the results of physical tests performed by him, or in the alternative, in not granting the defendant-appellant's request for a continuance.
"III. The trial court erred by failing to grant defendant-appellant's motion for directed verdict in his favor in regards to Count two of the indictment.
"IV. The trial court erred by instructing the jury on the lesser included offense of abduction over the objection of the defendant-appellant."
We turn to the testimony given by Mrs. Randolph, the victim of the crimes charged against defendant, for some factual background. She indicated that on April 30, 1981, shortly after 6:00 a.m., she stopped at a Lawson's Store on her way to work to purchase cigarettes. Thinking to run in and out of the store quickly, she left her vehicle unlocked, with lights on, and with motor running. Returning to her car, she noticed nothing amiss and proceeded to drive away. Then, hearing a "rattling type noise," she started to look in the rear view mirror when a voice from the back seat told her to keep her eyes on the road. The defendant, apparently mistaking Mrs. Randolph for someone else, called her by the name "Mag" or "Meg" and pushed a knife against the back of her neck. Still holding the knife, he climbed from the back to the front bench seat and pushed it against Mrs. Randolph's rib cage producing a visible indentation mark. She asked him not to hurt her, to let her go, but defendant responded she would "go to the law" if he did so and pressed the knife harder into her side. A noise came from the front portion of the car, and Mrs. Randolph feigned that her hood had jerked up and acted as though she had to get out of the car to latch it. Defendant, at the same time, also began exiting the car and she drove away without him. Shortly thereafter, she called police.
During the time the defendant was climbing over the seat, and was in the front seat, Mrs. Randolph had opportunities to observe him and mentally told herself to remember what he looked like. She particularly noted a tattoo of the word "love" on one of his hands and a scar on his face.
Taking defendant's claims in chronological order, we first consider whether the court erred in admitting into evidence the photographic lineup and the victim's in-court identification. Defendant claims that circumstances surrounding his photographic identification by the victim and her testimony indicate that the identification was the product of an improper photographic lineup and not her independent recollection.
Defendant more specifically argues that the photographic lineup was so suggestive as to give rise to a substantial likelihood of misidentification because the photographs used in the lineup were all mugshots and all had dates of arrest therein. Several also showed the hands of the subjects. Of overriding significance in our review of this pre-trial photographic lineup is that, indeed, all the photos shown to the victim were "mugshots" bearing arrest dates, not just defendant's. See State v. Jackson (1971), 26 Ohio St.2d 74, 78 [55 O.O.2d 127]; and Simmons v. United States (1968), 390 U.S. 377 [64 O.O.2d 45].
Our review of the totality of the circumstances revealed by the instant record confirms that the photographic identification procedure herein was not so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons, supra, at page 384; Neil v. Biggers (1972), 409 U.S. 188, 197; and State v. Howze (1979), 66 Ohio App.2d 41, 47 [20 O.O.2d 106]. After consideration of pertinent case law, as well as the totality of the circumstances, we do not find this claim of error to be meritorious.
Nor do we find merit in defendant's second claim of error. The record before us does not reveal that defendant was prejudiced by Detective Sobie's testimony. Particularly in light of the fact that defendant claimed an alibi defense, it appeared reasonable for the prosecution to present testimony from a detective who, utilizing common sense, had performed investigative work regarding possible routes taken by defendant and the times of travel involved therein. We are unwilling to state that such work constituted a "scientific test" or "experiment" as is referred to in Crim. R. 16 (B)(1)(d). Further, however, defendant had ample opportunity to question other witnesses as to such matters, as well as the opportunity to cross-examine Detective Sobie. Avenues of refutation of this testimony were not foreclosed to defendant. "The mere fact that a party is unaware of reliable and probative evidence does not, in and of itself, give grounds for exclusion." State v. O'Neil (Feb. 17, 1982), Wayne App. No. 1771, unreported. In order to demonstrate prejudicial error, the appellant must show an abuse of the trial court's discretion in its determination as to whether to utilize Crim. R. 16 (E)(3) sanctions. O'Neil, supra. We find no such showing within this cause. Assignment of Error No. 2 is overruled.
In Assignment of Error No. 3, defendant contends that there is "a complete lack of proof of the element of felonious assault of causing or attempting to cause physical harm to the victim." At trial defendant moved at the close of the state's case and at the close of all of the evidence, for a directed verdict in regard to the count of felonious assault, in violation of R.C. 2903.11 (A)(2).
It is important to note at the outset that we are addressing the definition of "physical harm," as that phrase is used in the felonious assault statute. By the clear language of R.C. 2901.01 (C), the gravity or duration of the "injury, illness, or other physiological impairment" is not a factor for consideration. Where a knife has been held so tightly, and with such pressure, that a red indentation remains after the knife is no longer present, has the victim suffered "physical harm?" The aforementioned language of R.C. 2901.01 (C) mandates that any injury, regardless of its gravity or duration, may constitute physical harm. This being so, there was sufficient evidence presented in the instant cause to allow the trial jury to determine that physical harm was done by defendant to Mrs. Randolph. See Judge Whiteside's concurrence/dissent in State v. Conliff (1978), 61 Ohio App.2d 185, at 195-196 [15 O.O.3d 309]; see, also, State v. Tate (1978), 54 Ohio St.2d 444 [8 O.O.3d 441].
Accordingly, we find no merit in Assignment of Error No. 3.
Finally, appellant claims that the trial court committed error in instructing the jury concerning the lesser included offense of abduction because his defense was such that, if accepted by the jury, it would have constituted a complete defense to the crime of kidnapping as well as to the lesser included offense of abduction.
We do not agree. Our Supreme Court made it clear in State v. Wilkins (1980), 64 Ohio St.2d 382 [18 O.O.3d 528], that such a rigid ruling was clearly not intended by its decision in State v. Nolton (1969), 19 Ohio St.2d 133 [48 O.O.2d 119]. The Wilkins court then went on to restate the rule, at page 388, as follows:
"To clarify, we are restating the rule as follows:
"If the evidence adduced on behalf of the defense is such that if accepted by the trier of fact it would constitute a complete defense to all substantive elements of the crime charged, the trier of fact will not be permitted to consider a lesser included offense unless the trier of fact could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on the remaining elements, which, by themselves, would sustain a conviction upon a lesser included offense.
"The persuasiveness of the evidence regarding the lesser included offense is irrelevant. If under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense, the instruction on the lesser included offense must be given. The evidence must be considered in the light most favorable to defendant." (Emphasis added.)
See State v. Solomon (1981), 66 Ohio St.2d 214 [20 O.O.3d 213], paragraph two of the syllabus.
Defendant further contends that there was no evidence produced upon which the trier of fact could find for the defendant and against the state on a kidnapping element not required to prove abduction. From the evidence presented in the within cause the jury could have possessed reasonable doubt, and may well have, as to the proof of the kidnapping element of "substantial risk of serious physical harm to the victim." R.C. 2905.01 (B). In abduction the state must prove the creation of a "risk of physical harm to the victim or place him in fear." R.C. 2905.02 (A)(2). From the evidence presented the jury could reasonably determine the defendant to be guilty of abduction and not guilty of kidnapping.
The fourth assignment of error is overruled; the judgment is affirmed.
Judgment affirmed.
VICTOR, P.J., and QUILLIN, J., concur.