[Cite as Cleveland v. Graham, 2013-Ohio-2091.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98858
CITY OF CLEVELAND PLAINTIFF-APPELLEE
vs.
MARION GRAHAM DEFENDANT-APPELLANT
JUDGMENT: MODIFIED AND REMANDED
Criminal Appeal from the Cleveland Municipal Court Case No. 2012 CRB 010582
BEFORE: Rocco, P.J., E.A. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: May 23, 2013 ATTORNEY FOR APPELLANT
Judith M. Kowalski 333 Babbitt Road Suite 323 Euclid, Ohio 44123
ATTORNEYS FOR APPELLEE
Victor R. Perez Chief City Prosecutor
BY: Bryan Fritz Assistant City Prosecutor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, P.J.:
{¶1} Defendant-appellant Marion Graham (“Graham”) appeals from his conviction
for resisting arrest under Cleveland Codified Ordinances (“CCO”) 615.08(b).
According to Graham, his conviction should be reversed because the trial court erred in
failing to grant him a continuance, because he received ineffective assistance of counsel,
because there was insufficient evidence to sustain the conviction, and because his
conviction was against the manifest weight of the evidence. We conclude that the
evidence was insufficient to convict Graham for resisting arrest under CCO 615.08(b),
but was sufficient to convict him of the lesser offense of resisting arrest under CCO
615.08(a). Accordingly, we modify Graham’s conviction and remand for resentencing.
{¶2} The incident leading to Graham’s conviction took place at the Embassy
Suites Hotel (“Embassy”) where Graham worked as a security guard. At Graham’s trial,
the city of Cleveland (“the City”) presented three witnesses: Officer Choat, John Pugh
(“Pugh”), and Robert Siddall (“Siddall”).
{¶3} Officer Choat testified that, on the night of the incident, she was an off-duty
special deputy with the Cuyahoga County Sheriff’s Office working for a security
company at the Embassy. Officer Choat responded to a confrontation taking place in the
lobby between Charles Jordan (“Jordan”), an Embassy valet, and Siddall, another
Embassy security guard. Jordan pushed Siddall, and Officer Choat jumped between
them, putting her arm between the two men. Officer Choat testified that Jordan grabbed her jaw, squeezed firmly, and pushed her back. At that point, Officer Choat told Jordan
that he was under arrest for assaulting a police officer. Jordan continued to pull away so
as to avoid being arrested by Officer Choat, “aggressively pushed back,” and was
“resisting, and fighting and pulling away * * *.” Tr. 104. Two other security guards
became involved, attempting to help Officer Choat secure Jordan.
{¶4} Officer Choat testified that Graham took her by the arm, pulling her away
from Jordan. Officer Choat told Graham to either help her arrest Jordan or to let her go.
Officer Choat was then able to extricate herself from Graham. Officer Choat averred
that, at another point, Graham restricted her movement by placing his forearm across her
chest. She testified that she grabbed Graham’s shoulders and pushed him off of her.
Officer Choat testified that Graham said, “You don’t want to do this,” and “We all just
need to calm down.” Tr. 122. According to Officer Choat, as a result of the entire
incident, she sustained bruising. The jury also watched a surveillance video that
recorded the Embassy lobby on the night of the incident, and Officer Choat testified as to
the events transpiring in the video.
{¶5} Pugh testified next. Pugh worked as a security guard at the Embassy and
was in the lobby during the incident. Pugh testified that he observed the confrontation
between Jordan and Siddall and that he saw Jordan shove Officer Choat by the head.
According to Pugh, Graham pushed Officer Choat’s hands away as she was attempting to
arrest Jordan. {¶6} Siddall testified that Jordan was angry with Siddall because of an incident
that took place earlier that evening. Jordan shoved Siddall. Siddall testified that Officer
Choat, Pugh, Graham, and another security guard responded to the confrontation.
According to Siddall, when Officer Choat attempted to arrest Jordan, Graham grabbed her
hands from behind her back trying to take the handcuffs out of her hands. Officer Choat
told Graham to either help her arrest Jordan or to let her go. Siddall testified that during
the course of the incident Graham said, “It doesn’t have to be like this,” and “We don’t
want no more of this.” Tr. 135.
{¶7} At the close of the city’s evidence, Graham moved the trial court for a
continuance in order to secure three witnesses who had been served with subpoenas two
days earlier. The trial court denied the motion. Graham was the sole witness testifying
in his defense.
{¶8} Graham testified that he witnessed Siddall and Jordan talking. At first
Graham was concerned that it would escalate into a fight, but he then observed the two
turning away from each other as if the confrontation had finished. Graham testified that,
at that moment, Officer Choat came out of nowhere and charged at Jordan. By the time
Graham arrived at the scuffle, another Embassy employee and Jordan were both tussling
with Officer Choat. Graham testified that he took it upon himself to break up the
confrontation, running over to the scene and yelling, “Don’t touch her.” Tr. 159.
Graham stretched his arms out to separate the individuals, stepping between them. Tr.
159. {¶9} Graham testified that after he stepped between the parties, Officer Choat
grabbed Graham’s face with one hand, and he responded by grabbing her hand away from
his face. Graham stated that Officer Choat took her other hand and grabbed Graham’s
face again and told Graham, “[Jordan] grabbed my face. You wouldn’t let anybody do
this to you. Either help me arrest him or I[‘ll] see to it that you’re arrested too.” Tr.
160. Graham testified that he chose not to help with the arrest because he had been
watching Jordan and had not seen him do anything illegal. Graham stated that he,
nonetheless, allowed Officer Choat to complete the arrest.
{¶10} The jury found Graham guilty of violating CCO 615.08(b), and the trial
court sentenced Graham to ninety days in jail, with eighty-eight days suspended; a
$750.00 fine, with $500.00 suspended; a one-year probation; and completion of the
court’s COP program. Graham filed a notice of appeal and presents four assignments of
error for our review.
I. The trial court erred and deprived Graham of due process by denying his request for a continuance to secure the appearance of defense witnesses.
II. Graham was denied effective assistance of counsel, in violation of his Sixth Amendment rights.
III. The trial court erred in denying Graham’s Crim.R. 29 motion because there was insufficient evidence to sustain the conviction.
IV. The guilty verdict was against the manifest weight of the evidence.
{¶11} In his first assignment of error, Graham unpersuasively argues that the trial
court deprived him of his right to due process, because the trial court denied Graham’s
motion for a continuance to secure the appearance of defense witnesses. The decision to grant or deny a motion for continuance is left to the broad and sound discretion of the trial
judge, and we will not disturb the trial court’s ruling absent an abuse of discretion.
Cleveland v. Washington, 8th Dist. Nos. 97945 and 97946, 2013-Ohio-367, ¶ 11, citing
State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981).
{¶12} A reviewing court determines on a case-by-case basis whether the trial
court’s denial of a continuance motion was so arbitrary as to deprive the defendant of due
process, paying particular attention to the reasons presented to the trial judge at the time
the request was denied. Unger at 67. In determining whether the trial court abused its
discretion, we “weigh[] * * * any potential prejudice to a defendant [against] concerns
such as a court’s right to control its own docket and the public’s interest in the prompt
and efficient dispatch of justice.” Id.
{¶13} Graham had requested a continuance in order to bring in three witnesses for
whom he had issued subpoenas. In denying Graham’s motion for a continuance, the
trial court noted that although the trial had been set seven weeks prior, Graham’s counsel
had not issued the subpoenas until only two days prior to trial. The trial court also stated
that it did not want to delay the trial any longer because there had already been a number
of lengthy delays. The trial court’s articulated reasons for denying the motion fall within
its broad range of discretion, as the trial court expressed valid concerns about controlling
its docket and efficiently dispatching justice. The trial court also acted within its
discretion in considering the fact that Graham had not timely served the subpoenas on the
absent witnesses. {¶14} In support of his position that the trial court’s ruling constituted an abuse of
discretion, Graham relies on State v. Dukes, 34 Ohio App.3d 263, 518 N.E.2d 28 (8th
Dist.1986). In Dukes, we concluded that the defendant did not receive effective
assistance of counsel where the trial court had denied a motion for a continuance. Two
weeks prior to trial, defense counsel had filed a motion to withdraw as counsel. The
trial court did not rule on the motion until the morning of trial and refused to grant a
continuance. The record revealed that the defendant had not cooperated with his
counsel in preparing his defense, that he had discharged defense counsel out of mistrust,
and that counsel had acknowledged that defendant’s mistrust had impeded her ability to
prepare a defense. Further, the defendant’s basis for mistrusting his counsel was not
groundless. Id. at 265-266. We concluded that, on these facts, failure to grant a
continuance created a situation where the defendant could not receive effective assistance
of counsel.
{¶15} Dukes was limited to the specific facts of that case, facts that we are not
presented with in the instant case. Graham did not request a continuance to secure new
counsel, and neither Graham nor his defense counsel indicated that their relationship was
such that defense counsel could not adequately represent Graham.1 Accordingly, Dukes
is not on point. Because the trial court did not abuse its discretion in denying Graham’s
motion for a continuance, we overrule the first assignment of error.
1 Although we do find that Graham’s trial counsel was deficient in failing to timely serve subpoenas on the proposed witnesses, we do not conclude that counsel’s deficiency required the trial court to grant the motion for a continuance. {¶16} We likewise overrule the second assignment of error. Graham asserts that
he was deprived of his Sixth Amendment right to effective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
(setting forth a criminal defendant’s right to effective assistance of counsel). To
determine whether a defendant received ineffective assistance of counsel, we first
evaluate whether counsel’s performance was deficient, meaning errors were so serious
that counsel was not functioning as “counsel” guaranteed to the defendant under the Sixth
Amendment. Id. at 687.
{¶17} Because our scrutiny of an attorney’s performance is highly deferential,
State v. Sallie, 81 Ohio St.3d 673, 674, 693 N.E.2d 267 (1998), we presume that
counsel’s conduct falls within the wide range of reasonable professional assistance,
meaning it is the defendant’s burden to demonstrate that the challenged action could not
be considered sound trial strategy. Strickland at 689-690. Debatable trial tactics do not
establish ineffective assistance of counsel. State v. Conway, 109 Ohio St.3d 412,
2006-Ohio-2815, 848 N.E.2d 810, ¶ 101.
{¶18} If we determine that counsel’s performance was deficient under the first
prong, we must then determine whether the errors prejudiced the defendant such that the
defendant was deprived of a fair and reliable trial. Strickland at 692. We determine
prejudice by analyzing whether “there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “Reasonable probability” is defined as probability sufficient to undermine
confidence in the outcome. Id.
{¶19} Graham sets forth several bases in support of his claim that he received
ineffective assistance of counsel. First, Graham asserts that defense counsel was
ineffective at voir dire because he did not make any challenges for cause, used only one
peremptory challenge to excuse a police officer, and did not challenge a corrections
officer who ultimately sat on the jury. Second, Graham argues that defense counsel’s
opening statement was less than one transcript page long, and that he “said little more
than that the [prosecution] could not prove its case * * * .” Graham Br. at 10. Third,
Graham points out that the cross-examinations of Officer Choat and Siddall were “quite
brief” and that defense counsel chose not to cross-examine Pugh at all. Id. Finally,
Graham asserts that his counsel was ineffective for failing to issue the subpoenas for his
defense witnesses until two days before the start of trial. None of these witnesses
appeared on the day of trial to testify.
{¶20} With regard to the first three allegations, we presume that the choices made
by defense counsel constituted sound trial strategy. There are numerous reasonable
explanations for why defense counsel would decide against challenging jurors for cause
and for why defense counsel would choose to retain the juror who was a corrections
officer. See State v. Abdul, 8th Dist. No. 90789, 2009-Ohio-225, ¶ 35 (“Voir dire is
largely a matter of strategy and tactics.”). Graham makes no argument to overcome the presumption that his counsel’s choices fell within the wide range of reasonable
professional assistance.
{¶21} Similarly, defense counsel’s choice to make a short opening statement is
also presumptively sound trial strategy as there are numerous reasons why defense
counsel would opt for brevity when speaking to the jury. The choice as to how or
whether to cross-examine Officer Choat, Pugh, and Siddall is also a matter of trial
strategy falling within defense counsel’s sound discretion, and “which this court shall not
disturb * * * on appeal absent a clear showing of prejudice.” State v. Young, 8th Dist.
No. 92197, 2010-Ohio-3059,
¶ 22. Graham makes no argument to overcome the presumption that his counsel’s
decisions regarding cross-examination were anything less than trial strategy.
{¶22} Although we do find that Graham’s counsel was deficient in waiting two
days before trial before issuing subpoenas to defense witnesses, we cannot establish on
direct appeal whether Graham was prejudiced by this deficiency. We can find no sound
trial strategy for waiting until the eve of trial to attempt to procure all of Graham’s
defense witnesses. Two days is simply not enough time to inform all of defendant’s
witnesses that their appearance is required at trial. Had defense counsel chosen not to
subpoena these witnesses at all, we might have determined that defense counsel had a
reasonable explanation, such as a concern that these witnesses could prove damaging to
Graham’s defense. But once defense counsel chose to subpoena the witnesses, his
failure to do so in a timely manner cannot constitute a sound trial strategy. See State v. Rankin, 7th Dist. No. 98-BA-9, 2001 Ohio App. LEXIS 2255, *13 (May 18, 2001)
(finding “no way to categorize trial counsel’s [failure to subpoena witnesses] as a trial
tactic,” because “trial counsel’s attempt to continue trial to secure the defense witnesses,”
demonstrated an “obvious strategy * * * to present these witnesses to contradict the
[state’s] testimony”).
{¶23} We are unable to determine on direct appeal, however, whether defense
counsel’s deficiency prejudiced Graham. On direct appeal we are limited to a review of
the record. State v. Johnson, 8th Dist. No. 97698, 2012-Ohio-3812, ¶ 28. Because the
record gives us no indication as to how these defendants would have testified had they
appeared at trial, Graham cannot demonstrate prejudice. See id. (“If ‘the claimed
ineffectiveness is a failure to call certain witnesses, a defendant will never be able to
establish prejudice on a direct appeal because the appellate court is limited to facts that
appear in the record before the trial court.’”), quoting State v. Rivera, 9th Dist. No.
06CA008909, 2007-Ohio-2156, ¶ 20. Accordingly, we overrule the second assignment
of error.
{¶24} In his third assignment of error, Graham argues that the state’s evidence
was insufficient to sustain a conviction for violating CCO 615.08(b). We agree. When
a defendant makes a motion under Crim.R. 29(A), the trial court shall enter a judgment of
acquittal if the evidence is insufficient to sustain a conviction for the offense. When we
review on appeal whether the verdict was supported by sufficient evidence, our task is to
determine whether “‘after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.
{¶25} Graham was convicted for resisting arrest, under CCO 615.08(b) which
provides that “[n]o person, recklessly or by force, shall resist or interfere with a lawful
arrest of the person or another person and, during the course of or as a result of the
interference, cause physical harm to a law enforcement officer.” Accordingly, to convict
Graham for violating CCO 615.08(b), the jury would have to conclude that Graham
recklessly or forcefully interfered with Officer Choat’s arrest of Jordan, that the arrest
was lawful, and that during the course of Graham’s interference or as a result of his
interference, Officer Choat was physically harmed.
{¶26} We agree with Graham that there was insufficient evidence on the element
of physical harm. Indeed, the evidence presented at trial indicates that Jordan was most
likely the cause of Officer Choat’s injuries. Officer Choat testified that she sustained
bruising as a result of “the entire incident,” but she does not testify that any of these
bruises were caused by Graham. Other than this inconclusive testimony, there was no
other evidence presented that tended to show that Graham was the cause of the bruising.
{¶27} Although we conclude that there was insufficient evidence to convict
Graham for resisting arrest under CCO 615.08(b), the record does contain sufficient
evidence to convict Graham for the lesser offense of resisting arrest under CCO 615.08(a). Rather than ordering an acquittal or a new trial, we have the authority to
reduce a conviction to that of a lesser included offense when it is supported by the record.
State v. Miller, 8th Dist. No. 96781, 2012-Ohio-1191, ¶ 17, citing State v. Reddy, 192
Ohio App.3d 108, 2010-Ohio-5759, 948 N.E.2d 454, ¶ 35 (8th Dist.). In Miller, we
examined whether there was sufficient evidence to convict the appellant for assault on a
peace officer. Although we concluded that there was insufficient evidence to prove that
the appellant acted knowingly in causing or attempting to cause physical harm to the law
enforcement officer, we determined that the record did contain sufficient evidence to
convict the appellant for disorderly conduct, which is a lesser, included offense of assault.
Miller at ¶ 16.
{¶28} Similarly, in the instant case, although we conclude that there was
insufficient evidence to prove that Graham caused Officer Choat physical harm, the
record does contain sufficient evidence to convict Graham on the lesser included offense
of CCO 615.08(a), which does not require the defendant to physically harm a law
enforcement officer. Rather, this provision provides that “[n]o person, recklessly or by
force, shall resist or interfere with a lawful arrest of himself or herself or another.”
{¶29} The testimony of the witnesses was sufficient to establish that Graham acted
recklessly or forcefully in interfering with Choat’s arrest of Jordan. Officer Choat
testified that while she was arresting Jordan, Graham pulled her away, and later placed his
forearm across her chest, preventing her from continuing her arrest of Jordan. Pugh
testified that he observed Graham push Officer Choat’s hands away as she was attempting to arrest Jordan. Siddall testified that he saw Graham hold Officer Choat’s hands from
behind her back and observed Graham attempting to take the handcuffs out of Officer
Choat’s hand. Having determined that the evidence at trial sustains a conviction under
CCO 615.08(a) but not under CCO 615.08(b), the third assignment of error is sustained,
in part, and Graham’s conviction is modified accordingly.
{¶30} In his fourth assignment of error Graham argues that his conviction was
against the manifest weight of the evidence. Given our modification of Graham’s
conviction, this assignment of error is moot.
{¶31} The trial court’s judgment is modified to reduce the conviction from a
violation of CCO 615.08(b) to a violation of CCO 615.08(a). This matter is remanded
for sentencing consistent with the conviction, as modified.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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.
__________________________________________ KENNETH A. ROCCO, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and MARY EILEEN KILBANE, J., CONCUR