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State v. Finkes3/28/2002
APPEAL from the Franklin County Court of Common Pleas.
This is an appeal by defendant, Carol Finkes, from a judgment of the Franklin County Court of Common Pleas following a jury trial in which the jury returned verdicts finding defendant guilty of aggravated murder and tampering with evidence.
On July 25, 2000, an indictment was filed against defendant charging her with one court of aggravated murder in violation of R.C. 2903.01 and two counts of tampering with evidence in violation of R.C. 2921.12. Each of the three counts contained a firearm specification. The matter came on for trial on January 22, 2001.
Following presentation of the evidence, the jury returned verdicts finding defendant guilty of all charges in the indictment. The trial court sentenced defendant by entry filed February 15, 2001. On appeal, defendant advances the following seven assignments of error:
[I.] Defendant-Appellant was denied her rights under state law as well as her right to due process of law and to a fair trial under U.S. Const. amend. V and XIV and Ohio Const. art. I, section 16 as a result of the misconduct and overreaching of the prosecuting attorneys during cross-examination when she testified in her own behalf and during closing arguments to the jury. [II.] The court of common pleas committed prejudicial error under state law and denied Defendant-Appellant her right to due process of law and to a fair trial under U.S. Const. amend. V and XIV and Ohio Const. art. I, section 16 as a result of erroneous evidentiary rulings made during the trial, its failure to instruct the jury to disregard testimony as to which it sustained objections, its failure to give the jury a limiting instruction on the use of other acts evidence, and its failure to admonish the prosecutor in the jury's presence when the prosecutor continued to flagrantly disregard the court's evidentiary rulings. [III.] The court of common pleas committed prejudicial error under state law and denied Defendant-Appellant her right to due process and a fair trial under U.S. Const. amend. V and XIV and Ohio Const. art. I, section 16 when it granted the prosecution's motion in limine and prohibited the defense from eliciting testimony regard a past specific instance of the deceased's threatening and violent conduct and further prohibited the defense from mentioning during closing argument the aggravated menacing charge lodged against the deceased by his own mother for the purpose of showing that the deceased was the aggressor and that Defendant-Appellant was legally justified in shooting him in self defense. [IV.] The court of common pleas committed structural error, or alternatively, plain error, and denied Defendant-Appellant her right to due process and a jury determination on legal excuse or justification for the killing of the victim under U.S. Const. amend. V, VI, and XIV and Ohio Const. art. I, §§ 5 and 16 when it gave the jury a defective preponderance of the evidence instruction that permitted the jurors to render a verdict on aggravated murder without first resolving the question of whether she had met her burden of proving self defense by a preponderance of the evidence. [V.] The judgment of conviction for aggravated murder and for the tampering with evidence counts is not supported by evidence sufficient to satisfy the requirements of due process under U.S. Const. amend. V and XIV and Ohio Const. art. I, § 16, or, alternatively, is against the manifest weight of the evidence. [VI.] Defendant-Appellant was denied her right to the effective assistance of counsel guaranteed to her by U.S. Const. amend. VI and XIV and Ohio Const. art. I, § 10. [VII.] The sentence imposed by the court of common pleas, including th
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