STATE v. HURLEY
2012 Ohio 310
State of Ohio, Plaintiff-Appellee,
v.
Jesse I. Hurley, Defendant-Appellant.
No. 12-11-01.
Court of Appeals of Ohio, Third District, Putnam County.
Date of Decision: January 30, 2012.
OPINIONROGERS, J.
{¶1} Defendant-Appellant, Jesse Hurley ("Hurley") appeals the judgment of the Court of Common Pleas of Putnam County convicting him of felonious assault. On appeal, Hurley argues that the trial court abused its discretion when it denied his request for expert fees, that the trial court erred in failing to grant his Crim.R. 29 motion for acquittal, that the jury verdict of guilty was not supported by sufficient evidence, and that the trial court erred by imposing the maximum sentence. For the following reasons we affirm the judgment of the trial court.
{¶2} In October 2010, the Putnam County Grand Jury indicted Hurley on count I: felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second degree. The complaint arose from an incident whereby Hurley was in the victim's sister's trailer, the victim arrived, told Hurley and his friends to leave, and before leaving the residence, Hurley attacked the victim with a kitchen knife. Subsequently, Hurley entered a not guilty plea to the charge.
{¶3} On December 15, 2010, the trial court denied Hurley's motion for expert fees. The case proceeded to a jury trial on December 28 and 29, 2010. At trial, the State presented the testimony of the victim, Nicole Kirk, Sergeant Brian Siefker, Deputy Mark Doster, Brent Hostettler, Sarah Tice, Joseph Kirk, and Victoria Kirk during its case in chief. Hurley moved for a Crim.R. 29 motion for acquittal at the close of the State's evidence. The trial court denied this motion. The defense then presented Wesley Hostettler, Sarah Tice, and Jesse Hurley.
{¶4} Nicole Kirk ("Nicole" or "Victim") testified that she knows Hurley because he has been dating her sister, Sarah Tice ("Sarah"), sporadically for the past five or six years and is the father of Sarah's daughter. On October 3, 2010, at approximately 8:00 p.m., Nicole took her dog to visit Sarah's children. When she arrived at Sarah's trailer, an unfamiliar man was in the living room with Hurley, Sarah's three children were also there, although one was asleep on the couch; food and empty food boxes were spread all over the living room, and the living room was filled with cigarette and marijuana smoke. Nicole took the children to their rooms to put them to bed. When she came back into the living room, a third man was there "with a joint in his hand." Trial Tr., p. 30. Nicole testified that she took the "joint" from his hand and threw it out the door. She told the men to leave and that she was going to call the police. As the Defendant stood up to leave, the other two men walked out the door, and instead of leaving, the Defendant shut the door, pushed her down onto the couch, said that she was not going to get him in any trouble, and cut and scraped her stomach with a knife. She described the knife as having a black handle and a serrated edge. Nicole testified that Hurley made six or seven cuts on her stomach. Nicole screamed and her dog came out of the bedroom and started barking, showed her teeth, and snapped towards him so that Hurley got up and ran out the door. When he ran out the door, she locked it and called the police.
{¶5} The State played the recording from Nicole's 911 telephone call. When the police officer arrived at the trailer, Nicole showed him the cuts on her stomach. The police officer took photos of the cuts, interviewed Nicole, and took her home.
1. As Hurley's motion requesting expert fees is absent from the record, we are unable to address any arguments contained therein.
2. A Crim.R. 29 motion is one for acquittal.
3. We note that the Supreme Court of Ohio's plurality opinion in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, established a two-part test utilizing an abuse of discretion standard for appellate review of felony sentencing decisions under R.C. 2953.08(G). While we cite to this Court's precedential clear and convincing review standard adopted by three dissenting Justices in Kalish, we note that our decision in this case would be identical under the Kalish plurality's two-part test.
4. Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all reached this conclusion.
5. Justices O'Connor, Moyer, O'Donnell, and Judge Willamowski, sitting by assignment, concurred in this position, although the first three would use both standards of review in all cases.