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State v. Sandoval3/15/2002
DECISION AND JUDGMENT ENTRY
This case is before the court on appeal from the Sandusky County Court of Common Pleas, which entered judgment on a jury verdict finding appellant guilty of murder. For the reasons that follow, we affirm the judgment of the trial court.
On January 27, 1996, Alfredo Mendez Perez was found murdered outside a trailer located in the back of the El Rancho restaurant in Fremont. Perez, a visitor from Guatemala, had been staying in the trailer for several weeks before his murder. Though the murder remained unsolved for some time, appellant was eventually indicted for the crime on March 10, 2000. The indictment charged appellant with aggravated murder (prior design and calculation) in violation of R.C. 2903.01(A).
Appellant was tried before a jury in October 2000, and the jury found him guilty of the lesser included offense of murder. The trial court sentenced appellant to serve a term of incarceration of fifteen years to life, to begin at the end of the prison term appellant was then serving for an unrelated crime. Appellant now appeals, setting forth the following assignments of error:
"ASSIGNMENT OF ERROR I:
"'THE TRIAL COURT COMMITTED AN ERROR OF LAW BY ADMITTING PRIVILEGED EVIDENCE CONTRARY TO R.C. 2945.42 AND EVID.R. 601.'
"ASSIGNMENT OF ERROR II:
"'THE DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.'"
In his first assignment of error, appellant contends that the trial court erred in admitting the testimony of Heather Sandoval as that testimony should have been excluded based on Evid.R. 601 and R.C. 2945.42. Heather Sandoval was appellant's wife at the time of the offense, but they were divorced at the time of trial. Evid.R. 601 embodies the rule on competency of witnesses, and R.C. 2945.42 embodies the rule on privileges. State v. Rahman (1986), 23 Ohio St.3d 146, 148-49; State v. Adamson (1995), 72 Ohio St.3d 431, 433.
Turning first to the competency issue, Evid.R. 601 provides, in pertinent part:
"Every person is competent to be a witness except:
" *.
"(B) A spouse testifying against the other spouse charged with a crime except when either of the following applies:
"(1) A crime against the testifying spouse or a child of either spouse is charged;
"(2) The testifying spouse elects to testify."
As the decision to admit or exclude testimony is within the sound discretion of the trial court, we will only reverse such a decision if the trial court abused its discretion. See State v. Long (1978), 53 Ohio St.2d 91, 98; State v. Woodward (July 24, 1998), Lucas App. No. L- 97-1239, unreported. The Supreme Court of Ohio has stated that " he term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157.
Appellant contends that Heather Sandoval was not competent to testify because her testimony was not given voluntarily. At trial, Heather began to testify, but a question arose about her competency. At that point, the trial court, outside the hearing of the jury, explained to Heather that she was not required to testify if she chose not to. The trial court asked Heather if she was electing to testify and she responded that she was. Defense counsel then explained to the court that Heather's interview with the police had been videotaped, and on the tape the interviewing detective told Hea
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