COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60577 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MARVIN H. MEREDITH : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 7, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COURT OF COMMON PLEAS CASE NO. CR-246808 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: MARY E. PAPCKE Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DAVID L. DOUGHTEN 4403 St. Clair Ave. Cleveland, Ohio 44103 -2- PARRINO, J.: Defendant-appellant Marvin H. Meredith ("appellant") appeals from his conviction for one count of Felonious Assault, in violation of R.C. 2903.11, with a firearm specification; one count of Attempted Aggravated Murder, in violation of R.C. 2923.02 and R.C. 2903.01, with a firearm specification; and one count of Aggravated Robbery, in violation of R.C. 2911.01, with a firearm specification. The facts giving rise to the instant appeal are as follows: On November 5, 1989, appellant and his pregnant wife, co- 1 defendant Ann Skerkavich, were looking for Kim Phillips. Kim Phillips and Ann Skerkavich had been friends for some time. Believing that Kim Phillips still lived with her fiance, the victim Thomas Lipovits, appellant and Ann Skerkavich walked to Thomas Lipovits' apartment located at 6145 Creekhaven in Parma Heights, Ohio. Unbeknownst to appellant and Ann Skerkavich, Kim Phillips had previously moved out of Tom Lipovits' apartment and moved in with her sister in North Olmsted, Ohio. However, the two still proceeded to Tom Lipovits' apartment in order to locate Kim Phillips. At approximately 8:30 P.M., appellant and Ann Skerkavich arrived at Tom Lipovits' apartment and knocked on his door. No 1 Ann Skerkavich sometimes used appellant's last name Meredith. -3- one answered the door, thus the two left. Tom Lipovits' neighbor, Theresa Silbaugh, observed appellant and Ann Skerkavich knocking on the door. At approximately 10:30 P.M., appellant and Ann Skerkavich returned to Tom Lipovits' apartment and knocked on his door. Once again, no one answered the door. Theresa Silbaugh saw them again and permitted Ann Skerkavich to use her telephone. After using the telephone, the two left again. As appellant and Ann Skerkavich left Tom Lipovits' apartment, Tom Lipovits returned home. The three had a conversation and appellant and Ann Skerkavich asked whether Tom Lipovits knew where Kim Phillips was living. Lipovits responded that he did know. At that point, they asked Lipovits for a ride and he agreed to drive them home. Apparently, it was cold and rainy and appellant Skerkavich did not have a car. At about 12:15 A.M., the three got into Tom Lipovits' 1985 silver Ford Escort. Tom Lipovits was the driver while Ann Skerkavich sat in the passenger's seat and appellant sat in the back seat. While driving en route to their apartment, Ann Skerkavich complained that she felt sick and asked Tom Lipovits to pull the car over. Tom Lipovits pulled over and parked the car in the Fernhill Area of the Cleveland Metroparks. Tom Lipovits could remember seeing the car door open, hearing a loud sound and ringing in his ear. The next thing he could remember was a paramedic trying to wake him up while he layed face down on the ground. -4- Tom Lipovits suffered two gunshot wounds to the head from a .22 caliber gun. Due to his serious condition, Tom Lipovits was air-flighted to Metropolitan General Hospital. After regaining consciousness, Tom Lipovits spoke to John Manzatt and Daniel E. Bader, the Cleveland Metroparks Rangers assigned to investigate this incident. He told them that appellant and Ann Skerkavich were in the car with him when he was shot. After the shooting, appellant and Ann Skerkavich took Tom Lipovits' car and drove to appellant's parents' home. They told appellant's father that they were going to Florida, but the trip was being delayed because the car brakes needed repairs. Appellant also offered to sell his father one of his two .22 caliber Derringers, since he needed the money for gas. On November 6, 1989, appellant and Ann Skerkavich left for Florida in Tom Lipovits' car. During their investigation, the Cleveland Metroparks Rangers learned the identity of appellant and Ann Skerkavich. They learned from appellants' brother that on November 1, 1989, appellant had just purchased two .22 caliber Derringers and ammunition. A few days after appellant and Ann Skerkavich left from Ohio, appellant's father contacted the Cleveland Metroparks Rangers and informed them that his son and Ann Skerkavich were in Tazewell, Virginia. Appellant and Ann Skerkavich were immediately arrested by the authorities in Virginia. -5- While in custody in Tazewell, Virginia, appellant provided the authorities with a statement. In his statement, appellant confessed that after Ann Skerkavich exited the car, he shot Tom Lipovits twice in the back of the head. When Ann Skerkavich returned to the car and asked him why he did it, appellant said - nothing and the two drove off in Tom Lipovits' car. On November 15, 1989, the Cleveland Metroparks Rangers drove to Tazewell, Virginia, in order to pick up appellant and Ann Skerkavich. When they took the two into custody, they also confiscated two jackets from Tom Lipovits' Ford Escort. Both jackets were subsequently tested for lead residue, and the test results were positive. Officer John Manzatt and David Bader transported appellant back to Cuyahoga County, Ohio, while two female officers transported Ann Skerkavich. During the return trip, appellant asked the officers to pull over so he could make a confession. The officers complied and entered a rest area, read appellant his rights, and permitted him to prepare a written confession. In his written confession, appellant, once again, admitted to shooting Tom Lipovits twice in the head while Ann Skerkavich was outside the car getting sick. He then stated that he pulled Tom Lipovits out of the car, Ann Skerkavich returned to the car, and they drove off. Also, on November 15, 1989, Ann Skerkavich provided a written statement to the Parma Police Department. Ann Skerkavich stated that after she got out of Tom Lipovits' car in order to -6- get sick, she heard two gunshots. When she returned to the car, she observed Tom Lipovits laying on the ground and appellant with a gun in his hand. On November 17, 1989, appellant provided another written statement to the Cleveland Metroparks Rangers. However, in his written statement, appellant recanted his prior confessions. Appellant claimed that while Tom Lipovits drove his car, he sat in the passenger seat and Ann Skerkavich sat in the back seat behind Tom Lipovits. Upon Ann Skerkavich's request, Tom Lipovits parked the car so she could get sick. Appellant then claimed that as he looked out the passenger window, he heard a click and then two gunshots. He tried to get out of the car but, instead, he turned to Tom Lipovits and asked him if he was all right. It was at that point that appellant observed Ann Skerkavich pull Tom Lipovits from the car and take his wallet. When asked by appellant why she did it, Ann Skerkavich said that Tom hurt Kim Phillips and that she had to shoot him. Ann Skerkavich started crying and told appellant that if he loved her and wanted to see their baby, he would go with her. She further told him that if they were caught, appellant should take the blame. Appellant stated that he previously confessed to the shooting because he feared that Ann Skerkavich would kill herself or he might never see his baby. He recanted his testimony because he was having nightmares and headaches, and he could not say he did something he did not do. -7- On January 11, 1990, appellant and Ann Skerkavich were both indicted for two counts of Attempted Aggravated Murder, in violation of R.C. 2923.02 and R.C. 2903.01, with both counts carrying a firearm specification. They were also indicted for one count of Aggravated Robbery, in violation of R.C. 2911.01, with firearm and violence specifications. At his arraignment on January 12, 1990, appellant pleaded not guilty. On March 6, 1990, appellant filed a motion to sever defendants. He claimed that he would be prejudiced if tried with Ann Skerkavich. Prior to trial, the trial court denied said motion. 2 On August 21, 1990, appellant's jury trial commenced. Just prior to the beginning of the trial, and upon the request of the State, the first count of the indictment was amended to felonious assault, with the firearm specification still remaining. At the close of the State's case-in-chief, Ann Skerkavich took the stand and testified. After her direct examination and prior to her cross-examination, Ann Skerkavich retracted her not guilty plea and pled guilty to the charge of felonious assault, with a firearm specification. The attempted aggravated murder and aggravated robbery charges were nolled. Appellant proceeded with the trial and then testified on his own behalf. After deliberations, the jury found appellant guilty of felonious assault, with a firearm specification; guilty of 2 Appellant was tried along with Ann Skerkavich. -8- attempted aggravated murder, with a firearm specification; and guilty of aggravated robbery, with a firearm specification. For sentencing purposes, the trial court merged Count One with Count Two. Appellant was sentenced on Count One to a term of 8 years to 15 years, plus three years actual incarceration for the firearm. On Count Three, appellant was sentenced to a term of 10 years to 25 years. The trial court ordered said sentences to run consecutively. Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND ABUSED ITS DISCRETION WHEN IT DENIED THE APPELLANT'S MOTION FOR SEPARATE TRIALS. II. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE CONVICTION OF FELONIOUS ASSAULT, ATTEMPTED MURDER AND AGGRAVATED ROBBERY. III. THE APPELLANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED BY THE PROSECUTOR'S FAILURE TO COMPLY WITH THE RULES OF DISCOVERY. IV. THE TRIAL COURT ERRED BY FAILING TO GIVE THE JURY A MERE PRESENCE INSTRUCTION. In his first assignment of error, appellant contends that the trial court erred in denying his request for separate trials, which he made prior to the commencement of trial. Appellant claims that the trial court should have severed his trial from Ann Skerkavich's trial, due to her statement implicating him in the shooting of Tom Lipovits. Crim. R. 14 provides in pertinent part: If it appears that a defendant or the state is prejudiced by a joinder of offenses -9- or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. In ruling on a motion by a defendant for severance, the court shall order the prosecuting attorney to deliver to the court for inspection pursuant to Rule 16(B)(1)(a) any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial. In order to substantiate a request to have separate trials, the defendant must affirmatively demonstrate that his rights were prejudiced and that the trial court abused its discretion. State v. Torres (1981), 66 Ohio St. 2d 340; See, also State v. White (Feb. 8, 1990), Cuyahoga App. No. 56518, unreported. An abuse of discretion can be demonstrated by the defendant showing the existence of actual prejudice. See, State v. Williams (1981), 1 Ohio App. 3d 156. Initially, we find that the trial court erred in failing to order the prosecuting attorney to deliver to the court for inspection any statements or confessions made by appellant and Ann Skerkavich, which the State intended to introduce in evidence at the trial. A review of both parties' statements would have revealed that each implicated the other with the commission of the crimes at issue. Although appellant made two confessions, his last statement recanted his confession and put the blame on his wife. Clearly, a review of the statements made by appellant and Ann Skerkavich would have revealed that their -10- defenses were completely antagonistic to each other. Thus, we conclude that the trial court erred when it failed to order the submittal of the parties' statements when it ruled upon appellant's motion for severance. Further, we find that the trial court erred in denying appellant's motion for severance under the circumstances of this case. We determine that since appellant and Ann Skerkavich were married at the time of the crime and during the trial, appellant was entitled to have his case severed from Ann Skerkavich's case. Competency of a spouse to testify against her husband in a criminal case is controlled by Evid. R. 601(B). Evid. R. 601(B) provides as follows: Every person is competent to be a witness except: *** (B) A spouse testifying against the other spouse charged with crimes except crimes against the testifying spouse or the children of either .... Evid. R. 601(B) clearly prohibits a wife to testify against her husband in criminal matters which do not involve offenses directed against the wife or her children. State v. Rahman (1986), 23 Ohio St. 3d 146; See, also State v. Mowery (1982), 1 Ohio St. 3d 192. In the instant case, there was no indication that the State was going to call Ann Skerkavich as a witness against appellant during its case-in-chief. However, knowing that appellant and Ann Skerkavich were being tried as co-defendants, one could reasonably conclude that Ann Skerkavich would testify on her own -11- behalf, which, in essence, would amount to testimony adverse to appellant's own defense. A review by the trial court of Ann Skerkavich's police statement would have demonstrated that Ann Skerkavich would implicate appellant if she testified, even if she testified in her own defense. Further, we find that Ann Skerkavich's testimony did constitute evidence against her husband. Ann Skerkavich agreed to plea bargain after her direct examination. She was never cross-examined and her direct examination remained as evidence against appellant. Ann Skerkavich's testimony indicated that appellant shot Thomas Lipovits twice in the back of the head while she was outside the car. Based upon the circumstances of the instant case, we find that Ann Skerkavich was incompetent to testify pursuant to Evid. R. 601(B). Accordingly, we conclude that appellant's request for a severance of defendants should have been granted. Moreover, we find that appellant has demonstrated that he was prejudiced as a result of the joinder of his trial and the trial of Ann Skerkavich. Although Tom Lipovits testimony places appellant at the scene of the crime, he could not conclusively say that appellant shot him in the back of the head. The only witness that could identify appellant as the triggerman was his wife, Ann Skerkavich. As mentioned previously, we find that she was incompetent to testify, and such testimony was prejudicial to appellant. -12- Appellant's first assignment of error is with merit and is sustained. In his second assignment of error, appellant contends that the evidence was insufficient to sustain his conviction for felonious assault, attempted aggravated murder and aggravated robbery. In State v. Martin (1983), 20 Ohio App. 3d 172, 175, the court stated: As to the claim of insufficient evidence, the test is whether after viewing the proba- tive evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia (1979), 443 U.S. 307, 319. A reviewing court will not reverse a lower court's verdict where there is substantial evidence upon which the trier of fact could conclude that all the elements of a crime were proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. Assessing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could find that appellant committed the crimes in which he was charged. The evidence in this case established that appellant participated in the attempted aggravated murder, felonious assault and aggravated robbery of Thomas Lipovits. Accordingly, we reject appellant's -13- contention that his conviction for these crimes was not supported by sufficient evidence. Appellant's second assignment of error is without merit and is overruled. Appellant argues in his third assignment of error that he was denied a fair trial due to the prosecutor's failure to comply with the rules of discovery pursuant to Crim. R. 16. Crim. R. 16 provides in pertinent part: (B) Disclosure of evidence by the prosecuting attorney. (1) Information subject to disclosure. (a) Statement of defendant or co- defendant. Upon motion of the defendant, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any of the following which are available to, or within the possession, custody, or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney: (i) Relevant written or recorded statements made by the defendant or co- defendant, or copies thereof; (ii) Written summaries of any oral statement, or copies thereof, made by the defendant or co-defendant to a prosecuting attorney or any law enforcement officer; When faced with an alleged violation of the discovery rules, the trial court is guided by Crim. R. 16(E)(3), which provides as follows: (E) Regulation of discovery. *** (3) Failure to comply. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, -14- the court may order such party to permit the discovery of inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances. A trial court is vested with discretion in selecting the proper procedure to be followed when a party allegedly fails to comply with Crim. R. 16. State v. Fricke (1984), 13 Ohio App. 3d 331. In the instant case, the trial court granted a continuance and delayed the trial so that appellant's counsel could review the documents that were allegedly not disclosed by the prosecutor. We find that the trial court did not abuse its discretion in granting a brief continuance. Appellant's third assignment of error is without merit and is overruled. Appellant argues in his fourth assignment of error that the trial court erred in failing to instruct the jury on "mere presence." Upon a careful review of the trial transcript, we find that appellant raised no objection to the trial court's failure to instruct the jury on "mere presence." In State v. Williams (1977), 51 Ohio St. 2d 112, paragraph one of the syllabus, the Ohio Supreme Court held: An appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. -15- We conclude that any objections about the trial court's failure to instruct the jury on "mere presence" were waived. Appellant's fourth assignment of error is not well taken and is overruled. Trial court judgment is reversed and this case is remanded for a new trial. -16- This cause is reversed and remanded for further proceedings consistent with this Journal Entry and pinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DYKE, P.J., AND JAMES D. SWEENEY, J. CONCUR. THOMAS J. PARRINO, JUDGE* (*Thomas J. Parrino, Retired Judge, of the Eighth Appellate District, Sitting by Assignment) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .