State v. Pinkelton, Ot-07-047 (1-23-2009)

Majority - Per Curiam

No, a prosecutor's closing argument comment on a defendant's pre-trial silence is permissible when the defendant voluntarily spoke to police, admitted to lying about his presence at the scene, and opened the door to the issue of his prior silence or incomplete statements during direct examination. The court addressed four assignments of error on appeal. First, regarding the manifest weight of the evidence, the court reviewed the entire record and acknowledged that prosecution witnesses (Christine Miller, Tarrence Scott, and Elisha Cannon) had credibility issues due to plea agreements and a prior false claim by Miller. However, the court also noted appellant Pinkelton's own testimony was of questionable weight because he initially lied to police about his presence at Beckman's house, a lie disproven by DNA evidence of Moir's blood on his shoes, which Pinkelton admitted at trial. Balancing these factors, the court concluded that the evidence did not weigh heavily against conviction and found no manifest miscarriage of justice, affirming the jury's verdict under the standard set in State v. Thompkins. Second, regarding the sufficiency of the evidence, the court found adequate evidence for each conviction. For aggravated robbery, based on Christine Miller's testimony that Pinkelton was kicking Moir while Scott was pulling a television, a rational trier of fact could find Pinkelton attempted to cause serious physical harm during a theft offense, consistent with State v. Sharp. For felonious assault, Moir's injuries—including two lost front teeth, a black eye, fat lips, a busted nose, and a swollen ear—constituted "serious physical harm" under R.C. 2901.01(A)(5)(c) and (d) (permanent incapacity or disfigurement, or temporary substantial incapacity or serious disfigurement), as supported by State v. Lee and State v. Grubach. For aggravated burglary, viewing the evidence most favorably to the prosecution, there was sufficient evidence that Pinkelton wrongfully entered Beckman's house by force (Scott testified Pinkelton kicked in the door), the structure was occupied, and Pinkelton had the purpose to commit a criminal offense upon entry (pointing Moir out to Cannon and discussing fighting on the way to the house), thus satisfying R.C. 2911.11, in line with State v. Terry. Third, the court found no error in the trial court's denial of Pinkelton's motion for a new trial and/or judgment of acquittal, applying the same sufficiency of evidence standard as previously discussed, consistent with State v. Carter. Fourth, concerning the prosecutor's closing argument comment on Pinkelton's post-arrest silence, the court held it was permissible. Pinkelton voluntarily spoke to police after being advised of his rights and testified at trial. On direct examination, his counsel raised that Pinkelton had not told Chief Rogers his full trial testimony "when he first started talking" to him, implying a lack of opportunity. The prosecutor's cross-examination clarified that Pinkelton had denied going to Beckman's, and her closing argument comment about Pinkelton not taking the opportunity to correct his false statement to police was a "fair response" to Pinkelton's claims. This fell within the exceptions to Doyle v. Ohio established by Anderson v. Charles (allowing inquiry into prior inconsistent statements after Miranda) and United States v. Robinson (allowing a fair response to defense claims regarding lack of opportunity to explain). Therefore, the comment was not an unconstitutional use of post-arrest silence.