[Cite as State v. Clark, 2011-Ohio-4109.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95928
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
LEROY J. CLARK DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-537114
BEFORE: Celebrezze, J., Stewart, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: August 18, 2011 ATTORNEY FOR APPELLANT
Susan J. Moran 55 Public Square Suite 1616 Cleveland, Ohio 44113-1901
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: Kristin Karkutt Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, Leroy J. Clark, appeals his convictions for domestic
violence, theft, criminal damaging, and aggravated menacing. After careful
review of the record and pertinent law, we affirm appellant’s convictions.
{¶ 2} On May 19, 2010, appellant was indicted and charged with one
count of robbery in violation of R.C. 2911.02(A)(3); one count of kidnapping in
violation of R.C. 2905.01(A)(2); one count of domestic violence in violation of
R.C. 2919.25(A); two counts of theft in violation of R.C. 2913.02(A)(1); one
count of criminal damaging or endangering in violation of R.C. 2909.06(A)(1);
and one count of aggravated menacing in violation of R.C. 2903.21(A). {¶ 3} On September 13, 2010, appellant waived his right to a jury trial,
and the case proceeded to a bench trial where the following evidence was
presented.
{¶ 4} On April 30, 2010, appellant began drinking alcohol with his
girlfriend, Latoya Scruggs. Scruggs testified that she and appellant began to
argue as they drove to a local store in her vehicle. Scruggs stated that as the
argument intensified, appellant threatened to crash the vehicle into a pole.
She testified that appellant then became physical and, at one point, took her
glasses off her face, crumpled them up, and threw them out the window.
Scruggs stated that appellant then took his Black and Mild cigar and stuck it
on her neck, burning her. Once the vehicle stopped, Scruggs attempted to
jump out, but appellant prevented her from leaving the vehicle by grabbing
her by her sweater. Scruggs testified that she eventually broke away from
appellant and called the police from a nearby gas station. Scruggs stated
that as appellant sped away from the gas station, he threw her cell phone
down the sewer, stating, “this is what I think of your phone.”
{¶ 5} Officer Jamie Cruz of the Cleveland Police Department testified
that he responded to Scruggs’s 911 phone call and report of assault. Officer
Cruz testified that upon arriving at the scene, he was met by Scruggs and
observed a fresh burn mark on her neck. Officer Cruz testified that Scruggs
alleged that appellant had assaulted her and prevented her from leaving her vehicle. Thereafter, Officer Cruz located appellant and took him into
custody.
{¶ 6} At trial, appellant testified on his own behalf and denied
assaulting Scruggs. Appellant testified that in the midst of the argument
with Scruggs, she became enraged and attacked him while he was in the
driver’s seat of the vehicle. Appellant stated that Scruggs cracked a part of
his tooth during the attack. Appellant alleged that the cigar burned
Scruggs’s neck when she jumped on him and that he was also burned by the
cigar as a result of her actions. Additionally, appellant denied having any
involvement in the destruction of Scruggs’s glasses and indicated that he
owned the cell phone involved.
{¶ 7} At the conclusion of the case, appellant was found guilty of
domestic violence, theft, criminal damaging, and aggravated menacing. The
trial court found him not guilty of all other counts. At sentencing, appellant
was sentenced to a one-year term of imprisonment.
Law and Analysis
{¶ 8} Appellant appeals, raising three assignments of error for review:
{¶ 9} “I. “The state failed to present sufficient evidence to sustain
appellant’s convictions.”
{¶ 10} “II. “Appellant’s convictions were against the manifest weight of
the evidence.” {¶ 11} “III. “Appellant’s state and federal constitutional rights to
confront the witnesses against him were violated when the trial court
restricted his ability to explore motive and bias during cross-examination,
and the trial court abused its discretion when it limited the impeachment
testimony of appellant’s witnesses.”
I
{¶ 12} In his first assignment of error, appellant argues that the trial
court erred in denying his motion for acquittal. Appellant contends that the
state failed to present sufficient evidence to support his convictions. We
disagree.
{¶ 13} At the conclusion of the state’s case, appellant moved for acquittal
pursuant to Crim.R. 29, and the motion was denied by the trial court. A
motion for acquittal under Crim.R. 29(A) is governed by the same standard
used for determining whether a verdict is supported by sufficient evidence.
State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386. “The
relevant inquiry is 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.
Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the
syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560. “[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass (1967), 10
Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus.
{¶ 14} Appellant was convicted of domestic violence in violation of R.C.
2919.25(A), which provides: “[n]o person shall knowingly cause or attempt to
cause physical harm to a family or household member.” R.C. 2901.22(B)
states that “a person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or will probably be
of a certain nature.” “Physical harm” is defined as “any injury, illness, or
other physiological impairment, regardless of its gravity or duration.” R.C.
2901.01(A)(3).
{¶ 15} In this case, Scruggs testified that appellant was the father of her
three-year-old child and was living with her in an apartment at the time of
the incident. Over the course of the trial, the trial court heard evidence that
on April 30, 2010, appellant took his cigar and stuck it on Scruggs’s neck in
the midst of an argument. This purposeful act by appellant left a noticeable
burn mark on the side of Scruggs’s neck. The existence of the burn mark
was corroborated by the testimony of Officer Cruz, who testified that he
observed a fresh burn mark on the side of Scruggs’s neck upon arriving at the
scene of the altercation. Further, the prosecution presented the trial court
with a photograph of Scruggs taken after the altercation that clearly
illustrated the extent of her burn and other injuries. {¶ 16} In light of this evidence, we find that the prosecution presented
sufficient evidence to establish the elements of domestic violence beyond a
reasonable doubt.
{¶ 17} With respect to appellant’s convictions for theft, R.C. 2913.02
provides that, “[n]o person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the property or
services * * * without consent of the owner or person authorized to give
consent.” Appellant contends that he owned the cell phone that was the
subject of his theft conviction. Therefore, appellant submits the state failed
to establish Scruggs’s ownership in the cell phone, a necessary element of
theft.
{¶ 18} Despite appellant’s contentions, we find that the prosecution
presented sufficient evidence that the cell phone belonged to Scruggs. The
record reflects that Scruggs paid the bills for the cell phone and exercised
control over the cell phone at all times. Further, Scruggs testified that when
appellant dropped the cell phone into the sewer, he stated, “this is what I
think of your phone.” (Emphasis added.)
{¶ 19} Construing the evidence in a light most favorable to the
prosecution, the state’s evidence, if believed, is sufficient to convince a
reasonable trier of fact, beyond a reasonable doubt, that appellant permanently deprived Scruggs of her property without her consent or
authorization.
{¶ 20} With respect to appellant’s conviction for criminal damaging or
endangering, R.C. 2909.06 states, “[n]o person shall cause, or create a
substantial risk of physical harm to any property of another without the
person’s consent * * * knowingly, by any means.”
{¶ 21} Appellant argues that the state failed to present any physical
evidence of the alleged broken eye glasses that were the subject of his
criminal damaging conviction. At trial, Scruggs testified that, during the
parties’ argument, appellant “snatched her glasses off her face, crumpled
them up, and threw them out the vehicle’s window.” Scruggs testified that
she requires eye glasses to see and that, as a result of appellant’s conduct, she
was forced to wear new glasses because the destroyed pair of eye glasses were
never recovered.
{¶ 22} Viewing Scruggs’s testimony in a light most favorable to the
prosecution, we find the record contains sufficient evidence that appellant
damaged property owned by Scruggs.
{¶ 23} Finally, appellant’s conviction for aggravated menacing is
governed by R.C. 2903.21, which states, “[n]o person shall knowingly cause
another to believe that the offender will cause serious physical harm to the
person or property of the other person, the other person’s unborn, or a member of the other person’s immediate family.” Appellant asserts that
Scruggs’s testimony reveals that she did not believe he would cause serious
physical harm to her with threats he made. At trial, Scruggs testified that
during the parties’ argument, appellant threatened to crash the vehicle into a
pole, and these threats scared her.
{¶ 24} Construing this testimony in a light most favorable to the
prosecution, the state’s evidence, if believed, is sufficient to convince a
reasonable trier of fact, beyond a reasonable doubt, that appellant knowingly
caused Scruggs to believe he would cause her serious physical harm.
Appellant’s first assignment of error is overruled.
II {¶ 25} In his second assignment of error, appellant argues that his
convictions were against the manifest weight of the evidence. We disagree.
{¶ 26} “The criminal manifest-weight-of-the-evidence standard was
explained in State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678
N.E.2d 541. In Thompkins, the court distinguished between sufficiency of
the evidence and manifest weight of the evidence, finding that these concepts
differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541.
The court held that sufficiency of the evidence is a test of adequacy as to
whether the evidence is legally sufficient to support a verdict as a matter of
law, but weight of the evidence addresses the evidence’s effect of inducing
belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court
asks whose evidence is more persuasive — the state’s or the defendant’s? We
went on to hold that although there may be sufficient evidence to support a
judgment, it could nevertheless be against the manifest weight of the
evidence. Id. at 387, 678 N.E.2d 541. ‘When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of
the evidence, the appellate court sits as a “thirteenth juror” and disagrees
with the factfinder’s resolution of the conflicting testimony.’ Id. at 387, 678
N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72
L.Ed.2d 652.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865
N.E.2d 1264, ¶25. {¶ 27} In arguing that his convictions were against the manifest weight
of the evidence, appellant maintains that his testimony was more credible
than that of Scruggs. However, the determination of weight and credibility
of the evidence is for the trier of fact. State v. Chandler, Franklin App. No.
05AP-415, 2006-Ohio-2070, ¶9, citing DeHass, supra. The rationale behind
this well-settled tenet is that the trier of fact is in the best position to take
into account inconsistencies, along with the witnesses’ manner and demeanor,
and determine whether the witnesses’ testimonies are credible. State v.
Tinsley, Cuyahoga App. No. 92339, 2010-Ohio-2083, ¶31; State v. Williams,
Franklin App. No. 02AP-35, 2002-Ohio-4503. The trier of fact is free to
believe or disbelieve all or any of the testimony. State v. Sheppard (Oct. 12,
2001), Hamilton App. No. C-000553.
{¶ 28} Consequently, although we act as a “thirteenth juror” when
considering whether the manifest weight of the evidence requires reversal, we
are charged with the task of giving great deference to the fact finder’s
determination of the witnesses’ credibility. State v. Covington, Franklin
App. No. 02AP-245, 2002-Ohio-7037, ¶22. Upon review of the record, we find
no reason to dispute the trial court’s determination of witness credibility, and
there is no evidence that the trier of fact “lost its way.” Appellant’s second
assignment of error is overruled. III
{¶ 29} In his third assignment of error, appellant contends that the trial
court committed prejudicial error in limiting the admission of certain
testimony, the cumulative effect of which was to deny him a fair trial in
violation of his due process rights under the Ohio and United States
Constitutions. We disagree.
{¶ 30} We initially address appellant’s contention that his state and
federal constitutional rights to confront the witnesses against him were
violated when the trial court restricted his ability to explore motive and bias
during the cross-examination of Scruggs.
{¶ 31} The constitutional right of cross-examination includes the right to
impeach a witness’s credibility. State v. Green, 66 Ohio St.3d 141,
1993-Ohio-26, 609 N.E.2d 1253; State v. Brewer (Aug. 24, 1994), Montgomery
App. No. 13866; Evid.R. 611(B). Unlike federal Crim.R. 611, which generally
limits cross-examination to matters raised during direct, Ohio Crim.R. 611(B)
permits cross-examination on all relevant issues and matters relating to
credibility. Weissenberger, Ohio Evidence (2005), 245-246. Possible bias,
prejudice, pecuniary interest in the litigation or motive to misrepresent facts,
are matters that may affect credibility. Evid.R. 616(A); State v. Ferguson
(1983), 5 Ohio St.3d 160, 450 N.E.2d 265. The denial of full and effective
cross-examination of any witness who identifies a defendant as the perpetrator of the offense is the denial of the fundamental constitutional right
of confrontation essential to a fair trial. State v. Hannah (1978), 54 Ohio
St.2d 84, 374 N.E.2d 1359.
{¶ 32} On the other hand, trial courts have wide latitude in imposing
reasonable limits on the scope of cross-examination based upon concerns
about harassment, prejudice, confusion of the issues, witness safety, or
repetitive, marginally relevant interrogation. Delaware v. Van Arsdall
(1986), 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674. It is within the trial
court’s broad discretion to determine whether testimony is relevant and to
balance its potential probative value against the danger of unfair prejudice.
In re Fugate (Sept. 22, 2000), Darke App. No. 1512. The determination as to
whether otherwise relevant evidence must be excluded because of a threat of
unfair prejudice outweighing its probative value is within the sound
discretion of the trial court and will not be overturned on appeal absent a
showing of abuse of discretion. Cleveland v. Petko (1996), 112 Ohio App.3d
670, 676, 679 N.E.2d 1162. See, also, State v. Mason, 82 Ohio St.3d 144, 158,
1998-Ohio-370, 694 N.E.2d 932. An abuse of discretion implies an arbitrary,
unreasonable, unconscionable attitude on the part of the trial court. Id.
{¶ 33} In the present case, Scruggs was questioned on cross-examination
about whether she had ever assaulted appellant, to which she replied “no.”
When asked if the appellant had ever called the police on her she replied “yes”; when asked “why,” the state objected and the court sustained,
preventing further inquiry.
{¶ 34} Evid.R. 608(B) states, in pertinent part:
{¶ 35} “Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’s character for truthfulness, other than
conviction of crime as provided in Evid.R. 609, may not be proved by extrinsic
evidence. They may, however, in the discretion of the court, if clearly
probative of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness (1) concerning the witness’s character for
truthfulness or untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to which character the
witness being cross-examined has testified.”
{¶ 36} One commentator has noted that, “[u]nder Rule 608(B), a witness
may be impeached on cross-examination by interrogation as to specific prior
instances of conduct which are probative of untruthfulness.” Weissenberger,
Ohio Evidence (2008), 169. Under the rule, “specific acts of untruthful
behavior may only be inquired into on cross-examination, and they may not
be established by extrinsic evidence.” Id. Thus, “if the witness on
cross-examination denies the prior untruthful act, the cross-examiner is said
to be ‘stuck with the answer.’” Id. {¶ 37} However, even assuming that the evidence at issue was
admissible, its admissibility is still subject to Evid.R. 403, which states that
relevant evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury. See, e.g., State v. Buchanan, Brown App. No.
CA2008-04-001, 2009-Ohio-6042, ¶57 (“even if evidence was deemed
admissible pursuant to Evid.R. 608[B], it would still have been excluded
under Evid.R. 403[A].”).
{¶ 38} This case presents a classic “he said, she said” credibility contest
between Scruggs (the victim) and appellant. Scruggs’s testimony is the only
evidence that identifies appellant as the perpetrator of these crimes and
demonstrates the elements of the offenses with which appellant is charged.
Thus, Scruggs’s credibility was a crucial issue in establishing appellant’s
guilt. That said, however, we agree with the trial court that the issues about
which appellant wished to question Scruggs had no relevance as to whether,
on April 30, 2010, appellant assaulted Scruggs and unlawfully restrained her.
{¶ 39} Further, the Ohio Supreme Court has noted that the “rights to
confront witnesses and to defend are not absolute and may bow to
accommodate other legitimate interests in the criminal process.” Chambers
v. Mississippi (1973), 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297. This
includes discretion on the part of the trial court in considering the admission of extrinsic evidence that could “invite a trial within a trial” or lead to “juror
confusion.” Id. Therefore, testimony concerning Scruggs’s prior arguments
with appellant would have injected into this case legitimate concerns over
harassment of the victim and confusion of the issues, vis-a-vis putting the
victim on trial.
{¶ 40} Whatever marginal probative value these areas of inquiry might
have had in impeaching Scruggs’s truthfulness was far outweighed by the
danger of unfair prejudice that could result from inquiry into those areas.
Evid.R. 403(A). Under those circumstances, the limits the trial court placed
on the scope of cross-examination of the victim, Scruggs, were entirely
reasonable and not an abuse of discretion.
{¶ 41} We next consider appellant’s contention that the trial court
abused its discretion by limiting the use of impeachment testimony during
the direct examination of appellant’s witnesses, Wayne Allen and Doris
Bright. Specifically, appellant attempted to elicit testimony from Allen and
Bright regarding their knowledge of Scruggs’s violent tendencies toward
appellant in the past.
{¶ 42} In support of his argument, appellant relies on Evid.R. 616(A),
which provides that a witness may be impeached by extrinsic evidence
showing bias, prejudice, interest, or any motive to misrepresent.
Specifically, appellant argues that the testimony of both Allen and Bright “would have been admissible to impeach Ms. Scruggs with regard to her bias,
interest, prejudice, and motive to lie and accuse appellant of attacking her
when the truth was she had attacked him, as she had done in the past.”
{¶ 43} However, the admissibility of testimony under Evid.R. 616(A) is
subject to Evid.R. 403. In limiting the introduction of Scruggs’s prior acts,
the trial court indicated that any testimony relating to prior attacks on
appellant were irrelevant to a determination of what occurred on April 30,
2010. Further, the trial court expressed its concerns about conducting a trial
within a trial and the possibility of confusing the issues.
{¶ 44} Upon review, we find no abuse of discretion by the trial court in
finding that the probative value of the proffered extrinsic evidence was
substantially outweighed by the danger of unfair prejudice. Appellant’s
third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., and JAMES J. SWEENEY, J., CONCUR