State v. Beebe

2018 Ohio 1899

• Court: Ohio Court of Appeals
• Decided: May 11, 2018
• Docket: 17CAC080055
• Status: Published

Opinion

[Cite as State v. Beebe, 2018-Ohio-1899.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 17CAC080055 : VINCENT L. BEEBE : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware Municipal Court, Case No. 16 CRB 03567

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: May 11, 2018

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

ELIZABETH A. MATUNE APRIL F. CAMPBELL Delaware City Prosecutor 545 Metro Place S., Ste. 100 70 North Union St. Dublin, OH 43017 Delaware, OH 43015 Delaware County, Case No. 17CAC080055 2

Delaney, J.

{¶1} Appellant Vincent L. Beebe appeals from the judgment entry of conviction

upon one count of aggravated menacing entered in the Delaware Municipal Court.

Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

An Incident of Road Rage: Appellee’s Case

{¶2} This case arose on November 18, 2016, shortly after 10:00 p.m., when John

Doe and his wife Jane drove home after going out to dinner. The couple stopped at the

intersection of State Route 315 and Powell Road in Delaware County, Ohio. The Doe car

was the first vehicle stopped at the traffic light, ahead of a line of other vehicles.

{¶3} The light changed and Doe proceeded up the hill of Powell Road, traveling

around the speed limit of 35 M.P.H. John Doe noticed a vehicle speed up behind him

and come very close to the rear of his vehicle, flashing its lights. The speed limit

increased to 45 M.P.H. and Doe increased his speed, but the vehicle continued “on his

tail.” He increased his speed but the vehicle continued to tailgate him.

{¶4} Doe and his wife were concerned and traveled faster to a traffic light on

Bennett Parkway. Doe stopped at the red light in the left lane, intending to make a left

turn. The vehicle pulled up behind Doe again, with lights flashing. The Does thought

something must be wrong, possibly an issue with one of the vehicles or a medical issue.

John Doe put his car in park and got out. The other driver was already out of his vehicle.

{¶5} John Doe asked, “Is there a problem?” and the other driver responded, “I’m

going to kick your homeboy ass.” Doe asked, “What’s going on?” and the other driver

said he was a “CPD” officer. Doe responded, “So what?” and asked to see his badge. Delaware County, Case No. 17CAC080055 3

The passenger in the other car then stepped out of the vehicle and told Doe, “We’re going

to f*** you up.” The driver told Doe, “I’m going to shoot your sorry ass.” Doe did not see

a gun.

{¶6} At this point Doe got back into his own car, locked the doors, and told his

wife to call 911.

{¶7} The driver of the other car, identified as appellant, returned to his vehicle

and pulled up alongside the Doe vehicle, with appellant and his passenger “yelling and

screaming.” Jane Doe told the pair she had 911 on the phone although the call had not

gone through. The light changed and John Doe made the left turn. Appellant and his

passenger continued west on Powell Road and John Doe intended to proceed on his way

home through a neighborhood.

{¶8} Doe was next stopped at a stop sign when appellant’s vehicle approached

again, at a high rate of speed with lights flashing. Doe was alarmed because appellant

had returned to continue the confrontation. The Does called 911 and John Doe spoke to

a dispatcher who transferred him to the Ohio State Highway Patrol. While the Does spoke

to the dispatcher, appellant continued to follow them, pulling up again beside the car and

driving away when Jane Doe said she was talking to 911. The Does obtained a

description of the vehicle and the plate number, and John Doe met the state trooper at

the Powell Police Department to complete a written statement.

{¶9} John Doe testified he was afraid for his wife and himself; he feared for his

life because appellant threatened to shoot him and Doe didn’t know if appellant might

carry out his threat, or ram his car, or force him off the road. Delaware County, Case No. 17CAC080055 4

{¶10} Jane Doe testified at trial and her description of events mirrored her

husband’s, although she remained in the vehicle throughout the ordeal and didn’t hear

everything that was said. She testified that appellant’s manner was loud, agitated, and

threatening, and she was afraid.

{¶11} Trooper Scott Maul also testified on behalf of appellee. He took John Doe’s

written statement on the night of the incident and eventually spoke with appellant by

phone. Appellant told Maul his passenger yelled something at Doe who “gave them the

finger” and drove off. To Maul’s knowledge, no threats were made by Doe.

Defense Case: “No Big Deal”

{¶12} Joshua Anderson, appellant’s friend and his passenger on the night in

question, testified on appellant’s behalf. Anderson said John Doe repeatedly “brake-

checked” them, yelled, and “flipped [them] off.” Anderson denied threatening the Does

himself and claimed the back-and-forth went on for about an hour but no one got out of

their vehicles at any point.

{¶13} Appellant also testified and his account generally aligned with Anderson’s;

appellant denied threatening Doe. Appellant said Doe “brake-checked” him repeatedly,

and acknowledged he flashed his lights at Doe. Appellant claimed the vehicles were

aligned with each other and there was yelling when Doe repeatedly pulled into “oncoming

traffic.” How this occurred is not clear from appellant’s testimony. Appellant said neither

he nor Anderson ever got out of their vehicle. Appellant said he went home after the

interaction and “didn’t think anything of it” because he “didn’t think it was a big deal.” Delaware County, Case No. 17CAC080055 5

Aggravated Menacing Charge, Trial, and Conviction

{¶14} Appellant was charged by criminal complaint with one count of aggravated

menacing pursuant to R.C. 2903.21(A), a misdemeanor of the first degree, and entered

a plea of not guilty. On June 28, 2017, appellee filed a motion in limine to exclude “the

fact that the victim has a concealed carry license and may have had his legally possessed

firearm on him during the commission of this crime.”

{¶15} The matter proceeded to trial by jury and appellant was found guilty as

charged. The trial court sentenced appellant to a jail term of 60 days and stayed the

sentence pending appeal.

{¶16} Appellant now appeals from the trial court’s judgment entry of conviction

and sentence dated July 11, 2017.

{¶17} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶18} “THE TRIAL COURT ABUSED ITS DISCRETION IN NOT ALLOWING

DEFENSE TO QUESTION THE ALLEGED AGGRAVATED MENACING VICTIM ABOUT

THE WEAPON HE POSSESSED, THEREBY DENYING BEEBE’S RIGHT TO

CONFRONT THE ESSENTIAL WITNESS AGAINST HIM.”

ANALYSIS

{¶19} In his sole assignment of error, appellant argues he should have been

permitted to cross-examine John Doe about whether Doe had a gun during the road-rage

incident because if he possessed a gun that night, that fact is relevant to whether he

feared serious physical harm. On the basis of the record before us, we disagree. Delaware County, Case No. 17CAC080055 6

{¶20} At some point prior to trial, the prosecutor, defense counsel, John Doe, and

a victim advocate met for the purpose of allowing defense counsel to speak to Doe. It is

not clear from the record what was said, but appellant asserted John Doe made

statements at this meeting which were “inconsistent” with his written statement to Trooper

Maul.

{¶21} Arising from this meeting, appellant subpoenaed the prosecutor and victim

advocate as trial witnesses, and appellee filed motions to quash both subpoenas. The

trial court granted the motion to quash the subpoena for the prosecutor, noting that even

after an oral hearing, it was not evident that John Doe made inconsistent statements or

how any such statements would be relevant at trial.

{¶22} The issue was (somewhat) clarified when appellee filed a motion in limine

on June 28, 2017, moving the trial court to exclude evidence that John Doe “has a

concealed carry license and may have had his legally possessed firearm on him during

the commission of this crime” because any such evidence was irrelevant. Immediately

prior to trial, an oral hearing was held and the trial court asked why appellant sought to

introduce the evidence. Appellant responded that it went to John Doe’s mindset, i.e.,

whether he was in fear of serious physical harm from appellant. Appellant acknowledged

he was not raising a self-defense argument. The trial court concluded that any such

evidence was likely irrelevant, but deferred ruling on the motion because the evidence

would be considered in the context of what evidence developed at trial.

{¶23} John Doe was appellee’s first witness and testified as described supra.

During a contentious cross-examination in which defense trial counsel was admonished

several times, defense counsel asked Doe whether he told appellant that he (Doe) had a Delaware County, Case No. 17CAC080055 7

gun. Appellee’s objection was sustained and the parties had a bench conference. The

trial court asked defense trial counsel whether she had a good-faith basis to ask the

question, and defense trial counsel acknowledged no witness would testify that Doe told

appellant he had a gun.1 T. 175. Defense trial counsel argued Doe told her, the

prosecutor, and the victim advocate he had a gun. The trial court established, and

appellant acknowledged, no evidence existed that Doe told appellant he had a gun on

the night of the incident. T. 180-181. The trial court therefore sustained appellee’s

objection and instructed the jury to disregard the question.

{¶24} We note that in the remaining testimony of each witness (Jane Doe, Trooper

Maul, Joshua Anderson, and appellant) no evidence was ever introduced that John Doe

had a gun or told appellant that he had a gun. In fact, Anderson and appellant testified

they did not feel threatened and thought the incident was “no big deal,” and Maul testified

he had no evidence Doe made any threats.

{¶25} On appeal, however, appellant argues the trial court impermissibly

restricted defense trial counsel’s questions to Doe “about the gun in his possession.” As

we have stated supra, it is not evident in this record that Doe had a gun in his possession

on the night of November 18, 2016, or that he told appellant that he had a gun. We

therefore share the trial court’s confusion as to how any such evidence is relevant, if it

exists.

1A cross-examiner may ask a question if he or she has a good-faith belief that a factual predicate for the question exists. State v. Jenkins, 5th Dist. Stark No. 2008 CA 00191, 2009-Ohio-6254, ¶ 43, appeal not allowed, 124 Ohio St.3d 1522, 2010-Ohio-1075, 923 N.E.2d 622, citing State v. Gillard, 40 Ohio St.3d 226, 533 N.E.2d 272 (1988), paragraph two of the syllabus, abrogated on other grounds, and State v. McGuire, 80 Ohio St.3d 390, 1997-Ohio-335, 686 N.E.2d 1112. Delaware County, Case No. 17CAC080055 8

{¶26} Appellant’s argument that any such evidence would go to the mindset of

John Doe and whether he truly felt under threat of serious physical harm by appellant is

premised upon speculation unsupported by the record.

{¶27} Generally, the trial court has broad discretion in imposing limits on the scope

of cross-examination. State v. Green, 66 Ohio St.3d 141, 147, 609 N.E.2d 1253 (1993);

State v. Cobb, 81 Ohio App.3d 179, 183, 610 N.E.2d 1009 (9th Dist.1991). An appellate

court will not interfere with a trial court's decision about the scope of cross-examination

absent an abuse of discretion. In re Fugate, 2nd Dist. Darke No. 1512, unreported (Sept.

22, 2000). The term abuse of discretion “connotes more than an error in * * * judgment; it

implies that the court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶28} Based upon the record before us, we cannot conclude that the trial court

abused its discretion in sustaining appellee’s objection to appellant’s question of John

Doe as to whether he had a gun on the night in question. See, Jenkins, supra, 5th Dist.

Stark No. 2008 CA 00191, 2009-Ohio-6254, appeal not allowed, 124 Ohio St.3d 1522,

2010-Ohio-1075, 923 N.E.2d 622; State v. Ickes, 5th Dist. Tuscarawas No.

1999AP080052, 2000 WL 874728, appeal not allowed, 90 Ohio St.3d 1439, 736 N.E.2d

902 (2000); State v. Southall, 5th Dist. Stark No. 2008 CA 00105, 2009-Ohio-768; State

v. Martin, 5th Dist. Delaware No. 14 CAA 03 0016, 2015-Ohio-1106, appeal not allowed,

143 Ohio St.3d 1500, 2015-Ohio-4468, 39 N.E.3d 1271.

{¶29} Appellant’s sole assignment of error is overruled. Delaware County, Case No. 17CAC080055 9

CONCLUSION

{¶30} Appellant’s sole assignment of error is overruled and the judgment of the

Delaware County Municipal Court is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Baldwin, J., concur.