 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Davis9/12/2003
sault and assault.
. Under the circumstances, we fail to see how the amendment to the bill of particulars prejudiced Davis, even if the amendment is considered to be substantive. Accordingly, we reject the claim that Davis was convicted on evidence that was different from the evidence presented to the grand jury. We also note that Davis failed to move for discharge of the jury. In similar circumstances, the court in O'Brien found no prejudice. 30 Ohio St.3d at 126.
. The fourth assignment of error is without merit and is overruled.
V.
. In the fifth assignment of error, Davis contends he was denied a fair trial by the State's repeated attempts to introduce evidence of other acts of his bad character through improper questions, objections to which were only occasionally sustained. The evidence in question concerned Davis' alleged dealing in drugs and stolen goods; his alcoholism; and his failure to either work or pay child support for his children.
. In responding to this assignment of error, the State says that evidence of illegal activities was relevant to the issue of motive. Specifically, the State's theory was that the relationship of the two men was intertwined with drugs, i.e., Powers allowed Davis certain favors like the use of his garage in exchange for drugs. In addition, Powers owed Davis money. Allegedly, the two men argued about these matters the night of the shooting. The State says the rest of the evidence was proper to rebut the claim that Davis was concerned for his children's safety.
. Under Evid. R. 404(B):
. " vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
. "Other acts" evidence is allowed where:
. "(1) substantial proof is adduced to show that the person against whom the evidence is offered committed the other act, (2) one of the matters enumerated in the rule or the statute is a material issue at trial, and (3) the evidence tends to prove the material enumerated matter." State v. Penland (1998), 132 Ohio App.3d 176, 189.
. In the present case, Davis does not argue that admitting each individual item of evidence was prejudicial error. Instead, he contends that the State's cumulative conduct deprived him of a fair trial. As a result, we interpret the assignment of error as one based on prosecutorial misconduct, which allows judgments to be reversed "only where the improper conduct deprived the defendant of a fair trial." State v. Urbin, 148 Ohio App.3d 293, 309, 2002-Ohio-3401, . "The test for prosecutorial misconduct is whether the remarks made were improper and, if so, whether the rights of the accused were materially prejudiced." Smith v. State, 97 Ohio St.3d 367, 376, 2002-Ohio-6659. In this regard, the key issue is the fairness of the trial, not the prosecutor's moral culpability. State v. Hill (1996), 75 Ohio St.3d 195, 203.
. After reviewing the record, we cannot agree that the trial court deprived Davis of a fair trial by admitting the challenged evidence. Evidence that Davis furnished drugs to Powers during their relationship, and had stored stolen cars in Powers's garage, was pertinent to motive for the crime and was also relevant to show the absence of an accident. Powers' sons testified that they had seen Davis giving or selling drugs to their father. They also testified that Powers had let Davis store stolen cars in their garage. One son testified that Po
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Ohio DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|