[Cite as State v. Cleary, 2011-Ohio-3725.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24217
vs. : T.C. CASE NO. 10CR453
BEAU CLEARY : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 29th day of July, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; R. Lynn Nothstine, Atty Reg. No.0061560, P.O. Box 972, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
Don Brezine, 188 West Hebble Avenue, Fairborn, OH 45324 Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Beau Cleary, appeals from his conviction and
sentence for attempted rape.
{¶ 2} In December of 2009, M.B. resided in an apartment in
Kettering, Ohio with her two young sons who were ages three years
and eighteen months. During the prior summer months, M.B. engaged
in a relationship with Defendant, Beau Cleary. Since then, Defendant had undertaken a relationship with another woman, who
was a friend of M.B.
{¶ 3} On December 29, 2009, at around 9:12 p.m., Defendant
called M.B. and asked if he could come over and visit M.B.’s
children. M.B. agreed, and Defendant later arrived at M.B.’s
apartment with his friend, Dustin Cooper.
{¶ 4} M.B. and her three year old son were in the living room,
watching television. M.B.’s eighteen month old son was upstairs
asleep. Upon arriving, Cooper sat down on the couch while
Defendant immediately went upstairs and used the bathroom.
Defendant came back downstairs, said something, and immediately
went back upstairs. Concerned about her younger son, M.B.
followed Defendant upstairs.
{¶ 5} Defendant went into M.B.’s bedroom. When M.B. tried to
remove Defendant from her bedroom, Defendant began kissing M.B.’s
neck, saying, “You know you want it.” M.B. told Defendant he was
drunk and needed to leave. Defendant then pushed M.B. onto the
bed, again telling her, “You know you want it.” M.B. responded,
“No, you need to leave.” A wrestling match ensued, and both M.B.
and Defendant fell off the bed onto the floor.
{¶ 6} Defendant held M.B. down with one hand while pulling down
his pants and M.B.’s pants with his other hand. Defendant then
attempted to insert his penis into M.B.’s vagina but was interrupted
by his ringing cell phone. M.B.’s three year old son, who had followed his mother upstairs and was in the bedroom and witnessed
this incident, began hitting Defendant with a gallon milk
container. When Dustin Cooper came upstairs and entered M.B.’s
bedroom and attempted to remove the boy, the boy “threw a fit.”
Cooper let go of the boy and left the bedroom. Defendant finally
gave up and he and Cooper left. Before Defendant left, he asked
M.B. if she was going to tell his new girlfriend about this incident.
When M.B. indicated that she did intend to tell the woman about
it, Defendant threatened to come back the next night.
{¶ 7} After Defendant and Cooper left, M.B. went to her next
door neighbor’s apartment for help. She was shaking and crying
hysterically. Police were called and M.B. was taken to Kettering
Medical Center for a sexual assault examination. Samantha
Griffith, the sexual assault nurse, found three areas of redness
on M.B.’s cervix that she concluded were consistent with digital
penetration and caused by trauma. DNA analysis of dried stains
found on M.B.’s neck and inner thigh showed a mixed DNA profile,
but Defendant was excluded as one of the contributors.
{¶ 8} Defendant was indicted on one count of attempted rape,
R.C. 2923.02(A), 2907.02(A)(2), and one count of forcible rape,
R.C. 2907.02(A)(2). Following a jury trial Defendant was found
guilty of attempted rape but not guilty of rape. The trial court
sentenced Defendant to four years in prison and classified him
as a Tier III sexual offender. {¶ 9} Defendant appealed to this court from his conviction and
sentence.
FIRST ASSIGNMENT OF ERROR
{¶ 10} “IT IS ERROR FOR THE COURT TO ALLOW OVER A DEFENDANT’S
OBJECTION THE PROSECUTOR TO CROSS EXAMINE THEIR OWN WITNESS WITHOUT
FIRST HAVING THAT WITNESS CLASSIFIED AS HOSTILE. FURTHER, IT IS
ERRONEOUS FOR A WITNESS TO BE CLASSIFIED AS A COURT’S WITNESS WHEN
THE COURT HAS NOT ASKED THE STATE TO IDENTIFY THE INCONSISTENCIES
AND WHEN THESE INCONSISTENCIES DO NOT IN FACT EXIST AND WHEN THE
PROSECUTOR ACTUALLY KNEW THAT THE CLAIM OF INCONSISTENCY IN THE
WITNESS WAS A RESULT OF THE DETECTIVE NOT FINDING THE WITNESS
CREDIBLE FOR HIS OWN REASONS, WHICH INCLUDE THE WITNESS’ REFUSAL
TO AGREE WITH WHAT THE DETECTIVE WANTED HIM TO SAY.”
{¶ 11} Defendant argues that the trial court erred by declaring
Dustin Cooper, a witness called by the State, a court’s witness
pursuant to Evid.R. 614, which then allowed the State to
cross-examine and impeach its own witness via prior inconsistent
statements without showing surprise and affirmative damage as
required by Evid.R. 607.
{¶ 12} Just prior to Defendant’s trial, the State filed a motion
requesting that Dustin Cooper be declared a court’s witness,
suggesting he had made inconsistent statements about the events,
refused to give police a written statement, is a friend of
Defendant, and had shown hostility toward the State. The State’s motion did not identify the specific prior inconsistent statements
Cooper gave to police or the specific inconsistencies with his
anticipated trial testimony.
{¶ 13} During the State’s direct examination of Dustin Cooper
at trial, Cooper denied telling police that he had gone upstairs
to use the bathroom while at M.B.’s apartment with Defendant.
Subsequently, the following occurred:
{¶ 14} “Q. I’m going to go back to February 3rd, 2010. The
Detective came out to talk you again; is that correct?
{¶ 15} “A. Yes.
{¶ 16} “Q. And on that particular date, he asked you to write
out a statement again; is that right?
{¶ 17} “A. Yeah.
{¶ 18} “Q. And what did you – how did you respond?
{¶ 19} “A. I told him I didn’t feel why I needed to, I didn’t
see why I needed to write out a statement. I mean it was kind
of a shock to me, he needed me to write out a statement and I didn’t
know what for.
{¶ 20} “Q. You didn’t ask if you should speak to a lawyer first?
{¶ 21} “A. Yeah. I believe it did.
{¶ 22} “Q. Okay. And what was his response?
{¶ 23} “A. I’m not sure.
{¶ 24} “Q. Okay. You don’t remember him saying -- {¶ 25} “MR. HARRISON: Objection --
{¶ 26} “BY MR. MICHENER:
{¶ 27} “Q. – you’ve got to write out --
{¶ 28} “MR. HARRISON: Objection.
{¶ 29} “THE COURT: Counsel. Approach.
{¶ 30} (At sidebar)
{¶ 31} “THE COURT: Is it time yet to decide on your motion to
have him declared a Court witness?
{¶ 32} “MR. MICHENER: I believe so, Your Honor. At this point
he’s denying making certain statements to the officer. That’s
inconsistent with what he told the officer, so at this point I’m
asking to have him declared the --
{¶ 33} “MR. HARRISON: Well --
{¶ 34} “MR. MICHENER: – Court’s witness.
{¶ 35} “MR. HARRISON: – he’s just – the only thing I’m
objecting to is you’re about to say the officer told him that was
– if he was going to lie, he needs a lawyer --
{¶ 36} “MR. MICHENER: Well --
{¶ 37} “MR. HARRISON: – or something like that.
{¶ 38} “MR. MICHENER: – yes
{¶ 39} “MR. HARRISON: That’s all I’m --
{¶ 40} “MR. MICHENER: He asked if he should get a lawyer, I
guess we’ll – that he did say, ‘You can write out a statement. And if you are going to lie then you should get a lawyer. If you’re
going to tell the truth --
{¶ 41} “MR. HARRISON: Yeah, I just --
{¶ 42} “MR. MICHENER: – then write out a statement.’
{¶ 43} “MR. HARRISON: I think that’s appealable. I think it’s
mistrial to --
{¶ 44} “MR. MICHENER: On what basis?
{¶ 45} “MR. HARRISON: – to attribute – to gratuitously have
this – have the --
{¶ 46} “MR. MICHENER: It’s a defendant’s action --
{¶ 47} “MR. HARRISON: – conversation --
{¶ 48} “THE COURT: Well I haven’t heard – well, first of all,
we’re going to have a – declare this a Court’s witness, so you
may cross now, now to include a statement. So because he can cross
now, you can ask him if he (indiscernible).
{¶ 49} “MR. MICHENER: Your Honor, what I’m trying to get it.
I’m trying to elicit the – what the officer said to see the effect
on the (indiscernible). So in other words, the officer says ‘if
you are going to lie, then yeah, you need a lawyer.’ He then says,
‘I want a lawyer.’ That basically shows the effect on the listener.
{¶ 50} “MR. HARRISON: I think that’s totally irregular.
{¶ 51} “THE COURT: I’m just trying to think – well, I’ve never
heard it before, but it doesn’t mean it’s not a clever police tactic. {¶ 52} “MR. HARRISON: Well, if --
{¶ 53} “MR. MICHENER: But, Judge, he certainly can argue to
the Jury what the relevance in that statement is, but the fact
that it was stated is what I’m trying to get in
{¶ 54} “THE COURT: Yeah.
{¶ 55} “MR. HARRISON: I don’t – you’re getting the testimony.
You’re – get the testimony about a police officer, and that’s
to give authority, an implied authority to this guy who just makes
an off-the-wall statement, ‘Well if you’re going to lie,’ and,
‘better get a lawyer.’ And so he says ‘Well, I’ll go get a lawyer.’
So now he’s lying. I mean this is – this is just too far out.
I mean it’s, you know, you could --
{¶ 56} “MR. MICHENER: Judge, the statement was made --
{¶ 57} “MR. HARRISON: – you could ask him if he was lying.
{¶ 58} “MR. MICHENER: He made the statement and then he reacted
a certain way.
{¶ 59} “MR. HARRISON: The cop made the statement.
{¶ 60} “MR. MICHENER: Well, and then he reacted a certain way,
and I think that’s relevant.
{¶ 61} “THE COURT: I’m going to – because it is cross now, we’re
going to note your objection and anticipate after – well, I don’t
– I haven’t seen what his answer is going to be yet.
{¶ 62} “MR. HARRISON: Well, let me -- {¶ 63} “THE COURT: Then you make any other motion --
{¶ 64} “MR. HARRISON: – ask you this. Why are we making this
the Court’s witness?
{¶ 65} “MR. MICHENER: Because he’s making inconsistent
statements.
{¶ 66} “THE COURT: Yeah.
{¶ 67} “MR. HARRISON: This is not inconsistent. I mean, hell
he --
{¶ 68} “MR. MICHENER: He just --
{¶ 69} “MR. HARRISON: – don’t even remember it.
{¶ 70} “MR. MICHENER: He just – if he says he doesn’t remember,
that is an inconsistent statement. If you look at the rule,
claiming you don’t know, making a statement --
{¶ 71} “THE COURT: Yeah.
{¶ 72} “MR. MICHENER: – is the basis of that.
{¶ 73} “THE COURT: That’s right.
{¶ 74} “MR. HARRISON: All right.
{¶ 75} (End sidebar)
{¶ 76} “BY MR. MICHENER:
{¶ 77} “Q. Sir, I’m going to ask you again. Do you remember
after you asked if you needed a lawyer, that the officer said if
you’re going to write out the truth, you don’t need a lawyer, but
if you’re going to write out a bunch of lies then you might want to get one. Do you remember that officer asking you that or saying
that?
{¶ 78} “A. Uh-huh.
{¶ 79} “Q. Okay. Do you remember saying to him (sic), I think
I’m getting into – going to get an attorney then?
{¶ 80} “A. No. I said I might need to speak with one.
{¶ 81} “Q. Okay. At that point you didn’t want to write out
a statement, you wanted to talk to an attorney, correct?
{¶ 82} Yeah. I wasn’t sure why I was being asked to write out
a statement.” (T. 197-202).
{¶ 83} Evid.R. 614(A) provides:
{¶ 84} “Calling by court. The court may, on its own motion
or at the suggestion of a party, call witnesses, and all parties
are entitled to cross-examine witnesses thus called.”
{¶ 85} A trial court may in the exercise of its sound discretion
call individuals as witnesses of the court. State v. Arnold,
189 Ohio App.3d 507, 2010-Ohio-5379; State v. Adams (1980), 62
Ohio St.2d 151. The purpose of Evid.R. 614 is to allow the jury
to hear evidence that would be beneficial to the jury in performing
its fact-finding responsibilities and ascertaining the truth of
the matter. Id. However, it is error to declare an individual
a court’s witness, solely for the purpose of allowing the party
calling that witness to impeach the credibility of its own witness by means of a prior inconsistent statement. Arnold. Doing so
improperly relieves the party of the burden specifically imposed
by Evid.R. 607(A) to first show surprise or affirmative damage.
{¶ 86} The State never claimed surprise or affirmative damage
to its case with respect to Cooper’s testimony. Instead, the State
alleged that Cooper was “making inconsistent statements” when he
testified that “he doesn’t remember” whether Detective Markowski
had made a statement to Cooper. A lack of recollection is not
an inconsistency. Furthermore, a witness’s recollection may be
refreshed, but through use of the witness’s own writings. Evid.R.
612. A simple assertion of a prior statement the witness allegedly
made is improper, absent an inconsistency with his trial testimony.
{¶ 87} Where the basis of a motion to declare an individual
a court’s witness is that the witness’s trial testimony will
contradict prior statements the witness has made to police, the
court must be presented with and know the specific inconsistencies
involved in order to exercise its discretion in ruling on the
motion. Here, the alleged specific prior inconsistent statements
Cooper made to police and the specific inconsistencies with his
trial testimony was not presented to the court, either in the
State’s motion to have Cooper declared a court’s witness or when
the trial court granted Defendant’s motion during trial.
Accordingly, the trial court abused its discretion by declaring
Dustin Cooper a court’s witness, allowing the State to cross-examine and impeach its own witness with prior inconsistent
statements Cooper made to police.
{¶ 88} Defendant objected to the testimony the State wished
to elicit from Cooper, which is the subject of Defendant’s second
assignment of error. However, Defendant failed to object
specifically to the State’s motion asking the trial court to
declare Cooper a court’s witness. Any error in the court’s ruling
declaring Cooper a court’s witness has been forfeited, except for
plain error. State v. Payne, 114 Ohio St.3d 501, 2007-Ohio-4642,
at ¶23. We see no plain error in this case.
{¶ 89} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 90} “IT IS ERROR FOR THE TRIAL JUDGE TO ALLOW TESTIMONY (FIRST
IN THE FORM OF HERESAY [SIC] AND LATER BY DIRECT TESTIMONY OF
MARKOWSKI) OF AN OFFICER’S OPINION OF WHEN A PERSON IS LYING.
SUCH TESTIMONY AMOUNTS TO AN EXPERT OPINION WITHOUT QUALIFYING
THE OFFICER AS AN EXPERT. FURTHERMORE, SUCH TESTIMONY HAS A HIGHLY
PREJUDICIAL EFFECT WHICH GREATLY OUTWEIGHS ANY PROBATIVE VALUE
IT MAY HAVE. WHILE THE OFFICER’S STATEMENT MAY BE A ‘CLEVER POLICE
TACTIC’ TRIAL TRANSCRIPT P. 199, AS IT WAS CLASSIFIED BY JUDGE
SINGER, IT IS IN NO WAY PROOF OR DISPROOF OF A PERSON’S VERACITY.
THE STATEMENT MADE TO THE WITNESS BY THE POLICE OFFICER WAS, ‘I
SAID IF YOU ARE SIMPLY GOING TO TELL ME THE TRUTH, WRITE OUT A
TRUTHFUL STATEMENT, YOU – THERE’S NO REASON TO HAVE A LAWYER. BUT IF YOU’RE GOING TO LIE TO ME, YEAH, YOU BETTER TALK TO A LAWYER.’
TRIAL TRANSCRIPT, P. 247:19-22.”
{¶ 91} On February 3, 2010, Detective Markowski spoke with
Dustin Cooper for the second time about the events in this case.
During that conversation, Detective Markowski asked Cooper to
provide a written statement. Cooper asked Detective Markowski
if he should talk to a lawyer first. At trial, Markowski testified:
{¶ 92} “I said if you are simply going to tell me the truth,
write out a truthful statement, you – there’s no reason to have
a lawyer. But if you’re going to lie to me, yeah, you’d better
talk to a lawyer.” (T. 247). Cooper said he was going to talk
to a lawyer and refused to provide a written statement at that
time. (T. 248).
{¶ 93} During the State’s prior direct examination of Dustin
Cooper, a sidebar conference was held during which the court and
counsel discussed, among other things, whether Cooper could be
asked about what Detective Markowski said to him regarding
providing a written statement. T. 197-200. The prosecutor
explained that he was trying to elicit what Detective Markowski
said to show its effect on the listener, Cooper. Defense counsel
objected to that testimony, calling it appealable, a mistrial,
totally irregular, and too “far out.”
{¶ 94} The trial court overruled Defendant’s objection and
allowed the prosecutor to elicit from Cooper what Detective Markowski said when Cooper asked if he should talk to an attorney.
Later, when Detective Markowski testified, the prosecutor asked
him, without further objection from Defendant, what he told Cooper
when Cooper asked him if he should talk to a lawyer before providing
a written statement, and Markowski then related the statement he
made to Cooper quoted above.
{¶ 95} The admission or exclusion of evidence rests within the
sound discretion of the trial court and will not be disturbed on
appeal absent an abuse of that discretion. State v. Sage (1987),
31 Ohio St.3d 173.
{¶ 96} “‘Abuse of discretion’ has been defined as an attitude
that is unreasonable, arbitrary or unconscionable. Huffman v. Hair
Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482
N.E.2d 1248, 1252. It is to be expected that most instances of
abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or
arbitrary.
{¶ 97} “A decision is unreasonable if there is no sound
reasoning process that would support that decision. It is not
enough that the reviewing court, were it deciding the issue de
novo, would not have found that reasoning process to be persuasive,
perhaps in view of countervailing reasoning processes that would
support a contrary result.” AAAA Enterprises, Inc. v. River Place
Community Redevelopment (1990), 50 Ohio St.3d 157, 161. {¶ 98} “‘Hearsay’ is a statement other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Evid.R.
801(C)). “In cases in which words have independent legal
consequences, the words are relevant without regard to their truth,
and as such, statements are not hearsay, . . . (because) relevancy
attaches to the making of the statement rather than the truth of
the statement.” Weissenberger’s Ohio Evidence Treatise (2010
Ed.), §801.8.
{¶ 99} The credibility of every witness who testifies under
an oath to the tell the truth is always in issue. Detective
Markowski’s statement that “liars ‘lawyer-up’” was not offered
to prove its truth, but to attack Cooper’s credibility by showing
that he then said he wanted to talk to a lawyer. The statement
was relevant for that limited purpose, Evid.R. 401, and was
therefore admissible. Evid.R. 402. The trial court did not abuse
its discretion in admitting the evidence for the limited purpose
of impeaching Cooper’s credibility.
{¶ 100} Defendant did not request an instruction that the jury
should not consider Markowski’s statement for the truth of the
matter asserted. Such an instruction would have exposed the
preposterous character of the State’s effort to impeach Cooper
on that basis. Evid.R. 403(A) provides: “Although 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.” We believe all of those would
apply in this instance. However, Defendant did not articulate
that particular objection.
{¶ 101} The second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 102} “IT IS ERROR FOR THE COURT, IN THE PERSON OF A JUDGE
WHO WAS NOT THE TRIAL JUDGE, TO OVERRULE DEFENDANT’S MOTION FOR
A MISTRIAL, THE MOTION BEING BASED ON THE TRIAL JUDGE ALLOWING
HIGHLY PREJUDICIAL TESTIMONY OF A DETECTIVE’S STATEMENT WHEN SAID
DECISION BY THE FILL-IN JUDGE TO OVERRULE IS BASED ON THE FILL-IN
JUDGE FINDING THAT THE TRIAL JUDGE HAD, ‘IN HIS EVIDENTIARY RULINGS,
ALLOWED THAT TESTIMONY’ (TRIAL TRANSCRIPT P. 300) WHERE THE FILL-IN
JUDGE DID NOT REQUEST TO HEAR THE TRIAL JUDGE’S WORDS AND DID NOT
KNOW FROM THE RECORD THAT THE TRIAL JUDGE HAD DEFERRED RULING ON
DEFENDANT’S OBJECTION AT THE TIME IT WAS MADE DURING TRIAL AND
HAD NEVER ‘ALLOWED THAT TESTIMONY’ WITH AN EVIDENTIARY RULING.
TRIAL TRANSCRIPT P. 200.”
{¶ 103} Defendant argues that the “stand-in judge,” Judge
Tucker, who was temporarily filling in for Judge Singer, who
presided over the trial in this case, abused his discretion by
ruling on Defendant’s motion for a mistrial without first reviewing
the record of the trial.
{¶ 104} During the second day of deliberations the jury sent a note to the trial court indicating that they were unable to reach
an agreement on a verdict. At that time, Judge Singer, who presided
over the trial, was out of the office on other business. In his
absence, Judge Tucker handled the issue. Before Judge Tucker
brought the jury in to the courtroom, he discussed the matter
with counsel. During that discussion, Defendant moved for a
mistrial on unrelated grounds, because the trial court had earlier
admitted the statement Detective Markowski made to Dustin Cooper
concerning whether Cooper should talk to an attorney before
providing a written statement to police. Defendant argued that
Markowski’s statement indicated to the jury that if you seek a
lawyer, then you’re lying, and on that basis he was moving for
a mistrial. Judge Tucker, without investigating the issue or
reviewing the record, ruled as follows:
{¶ 105} “THE COURT: All right. And obviously Judge Singer,
in his evidentiary rulings, allowed that testimony --
{¶ 106} “MR. HARRISON: Correct.
{¶ 107} “THE COURT: and I certainly understand, Jack, why you
are at this point making the motion for a mistrial. But on the
other hand, I’m simply going to confirm that which Judge Singer
has already done in allowing that testimony. And based upon that,
I will obviously overrule the motion for a mistrial.
{¶ 108} “MR. HARRISON: Of course.” (T. 300)
{¶ 109} The grant or denial of an order of mistrial lies within the sound discretion of the trial court. State v. Glover (1988),
35 Ohio St.3d 18. Moreover, mistrials need be declared only when
the ends of justice so require and a fair trial is no longer
possible. State of Franklin (1991), 62 Ohio St.3d 118.
{¶ 110} A review of this record discloses that Defendant moved
for a mistrial simply to preserve that issue for appeal. When
Judge Tucker voiced his understanding that defense counsel just
wanted to make his record, defense counsel responded: “Right.”
In any event, as we concluded in overruling the second assignment
of error, the error in the trial court’s ruling admitting Detective
Markowski’s statement to Dustin Cooper concerning whether Cooper
should talk to a lawyer before providing a written statement to
police was harmless beyond a reasonable doubt. Accordingly,
Defendant’s motion for a mistrial lacked merit. No abuse of
discretion on the part of Judge Tucker in overruling Defendant’s
motion for a mistrial has been demonstrated.
{¶ 111} Defendant’s third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 112} “IT IS ERROR FOR A JUDGE TO GIVE THE ‘DYNAMITE CHARGE’
TO THE JURY WHEN THAT JUDGE, HAVING NOT BEEN PRESENT AT TRIAL,
HAS NO BASIS FOR ASSESSING WHETHER AN IMPASSE REPORTED BY THE JURY
WARRANTS THAT CHARGE. THE STAND-IN JUDGE, NOT BEING PRESENT AT
THE TRIAL, DID NOT KNOW THE COMPLEXITY OF THE ISSUES FOR THE JURY
TO DELIBERATE ON, THEREFORE, IT WAS AN ABUSE OF THAT STAND-IN JUDGE’S DISCRETION TO USE HIS DISCRETION AT ALL.”
{¶ 113} Defendant argues that the “stand-in judge,” Judge
Tucker, erred by giving the deadlocked jury the so called Howard
or “dynamite” charge, because he had no knowledge of the complexity
of this case which Defendant contends must be considered in
determining whether a supplemental charge is warranted.
{¶ 114} Judge Singer was the presiding judge in this case who
heard all of the evidence presented at trial. During the second
day of deliberations, the jury sent a note to the trial court
indicating that they were unable to reach a unanimous verdict.
At that time, Judge Singer was out of the office because of another
commitment. In his absence, Judge Tucker, who Defendant refers
to as the “stand-in judge,” ruled on the issue.
{¶ 115} Judge Tucker discussed the matter with counsel for both
parties and indicated his intention to give the jury the so called
“dynamite” charge approved by the Ohio Supreme Court in State v.
Howard (1989), 42 Ohio St.3d 18, and which has been made a part
of Ohio Jury Instructions, CR429.09. When asked by the court if
he had any objections, defense counsel responded, “No.” At that
point Judge Tucker brought in the jury and gave them the Howard
charge that encourages a deadlocked jury to continue deliberations
and render a verdict if they can conscientiously do so.
{¶ 116} In Howard, the Ohio Supreme Court rejected the
traditional Allen charge (Allen v. United States (1896), 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed.528), as a proper supplemental charge
to be given to juries that have become deadlocked on the question
of conviction or acquittal, because the Allen charge lacks balance
and is coercive upon minority jurors to agree with the majority
jurors. In place of the Allen charge, the Supreme Court in Howard
fashioned and approved a new supplemental instruction that
encourages a verdict if one can conscientiously be reached, and
is fairly balanced, asking all jurors to reconsider their opinions
in light of the fact that others do not agree.
{¶ 117} Defendant concedes in his appellate brief that the
supplemental charge given to the deadlocked jury in this case by
Judge Tucker was given using neutral, non-coercive language that
comports with the requirements of law and the recommended
instruction set forth in Howard. Defendant argues, however, that
Judge Tucker nevertheless erred by giving the supplemental Howard
charge because, not being the presiding judge at trial, he had
no knowledge of the simplicity or complexity of the case.
{¶ 118} In support of his argument that the complexity of a
case plays a role in a trial judge’s determination of when the
“dynamite” charge is warranted, Defendant relies upon State v.
Maupin (1975), 42 Ohio St.2d 473, 487. Defendant’s reliance is
misplaced. An examination of that decision reveals that the
Supreme Court mentioned the simplicity of the issues the jury had
to determine, not as a factor that must be considered before a supplemental instruction may be given to a deadlocked jury, but
rather as one of several reasons why the Supreme Court was rejecting
Maupin’s claim that the supplemental charge was prematurely given.
Id., at p. 486-487. We are not aware of any case law that requires
a trial judge to consider the simplicity or complexity of the issues
for jury determination before deciding whether to give a
supplemental Howard charge to a deadlocked jury. We see no error,
much less plain error, on the part of Judge Tucker in giving this
deadlocked jury the supplemental Howard charge.
{¶ 119} Defendant’s fourth assignment of error is overruled.
FIFTH ASSIGNMENT OF ERROR
{¶ 120} “THE DECISION OF THE JURY WAS ERRONEOUS AS IT WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE. THE EVIDENCE IN THIS CASE
WEIGHS HEAVILY AGAINST THE CONVICTION, AND THE JURY’S DECISION
WAS NOT CONSISTENT WITH THE EVIDENCE OFFERED AT TRIAL.”
{¶ 121} “A weight of the evidence argument challenges the
believability of the evidence and asks which of the competing
inferences suggested by the evidence is more believable or
persuasive. State v. Hufnagle (Sept. 6, 1996), Montgomery App.
No. 15563. The proper test to apply to that inquiry is the one
set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:
{¶ 122} “The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and
a new trial ordered.” Accord: State v. Thompkins, 78 Ohio St.3d
380, 1997-Ohio-52.
{¶ 123} The credibility of the witnesses and the weight to be
given to their testimony are matters for the trier of facts to
resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State v.
Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:
{¶ 124} “Because the factfinder . . . has the opportunity to
see and hear the witnesses, the cautious exercise of the
discretionary power of a court of appeals to find that a judgment
is against the manifest weight of the evidence requires that
substantial deference be extended to the factfinder’s
determinations of credibility. The decision whether, and to what
extent, to credit the testimony of particular witnesses is within
the peculiar competence of the factfinder, who has seen and heard
the witness.”
{¶ 125} This court will not substitute its judgment for that
of the trier of facts on the issue of witness credibility unless
it is patently apparent that the trier of facts lost its way in
arriving at its verdict. State v. Bradley (Oct. 24, 1997),
Champaign App. No. 97-CA-03.
{¶ 126} In arguing that the verdict is against the manifest
weight of the evidence and that the jury lost its way, Defendant claims that there was no physical evidence linking him to the
alleged crime. As for the testimony of the victim, Defendant
points out that the jury found him not guilty of rape, which suggests
that the jury did not believe the victim’s testimony that Defendant
penetrated her vagina with his fingers. Yet, the jury had to find
the victim’s testimony that Defendant tried unsuccessfully to
penetrate her vagina with his penis credible in order to find him
guilty of attempted rape. According to Defendant, this shows the
jury “lost its way.”
{¶ 127} Defendant also points out that Dustin Cooper, who was
sitting in the living room while Defendant and the victim were
upstairs together, testified that he didn’t hear any noise at all,
despite the victim’s claim that she and Defendant wrestled around
and fell onto the floor. Furthermore, Cooper saw the victim when
she and Defendant came back downstairs, and noticed that she seemed
fine, was not crying or emotional, her hair wasn’t messed up, and
he didn’t see any red marks.
{¶ 128} On the other hand, the victim’s testimony about what
transpired was corroborated by photos showing red marks on her
body, by the testimony of the sexual assault nurse who found
traumatic injury to the victim’s cervix consistent with digital
penetration, and by the testimony of the victim’s neighbors
regarding the victim’s highly upset and emotional state just after
the sexual assault occurred. {¶ 129} The jury did not lose its way in this case simply because
it chose to believe the State’s witnesses rather than Defendant’s,
which it had a right to do. The credibility of the witnesses and
the weight to be given to their testimony were matters for the
trier of facts to decide. State v. DeHass, supra.
{¶ 130} Reviewing this record as a whole, we cannot say that
the evidence weighs heavily against a conviction, that the trier
of facts lost its way in choosing to believe the State’s witnesses,
or that a manifest miscarriage of justice has occurred.
Defendant’s conviction is not against the manifest weight of the
evidence.
{¶ 131} Defendant’s fifth assignment of error is overruled.
SIXTH ASSIGNMENT OF ERROR
{¶ 132} “APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO
THE
{¶ 133} UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10
OF THE OHIO CONSTITUTION.”
{¶ 134} Counsel's performance will not be deemed ineffective
unless and until counsel's performance is proved to have fallen
below an objective standard of reasonable representation and, in
addition, prejudice arose from counsel's performance.
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674. To show that a defendant has been prejudiced by counsel’s deficient performance, the defendant must affirmatively
demonstrate to a reasonable probability that were it not for
counsel’s errors, the result of the trial would have been different.
Id., State v. Bradley (1989), 42 Ohio St.3d 136.
{¶ 135} Defendant first claims that his counsel performed
deficiently because his questioning of the witnesses was inartful
and led to several objections that were sustained. For example,
while cross-examining the victim, M.B., counsel referred to Dustin
Cooper by the wrong name and had to be corrected by the prosecutor.
Defendant does not even argue, much less demonstrate, how these
mistakes by counsel prejudiced him. Absent a demonstration of
a reasonable likelihood that the outcome of this trial would have
been different but for counsel’s errors, ineffective assistance
of counsel has not been demonstrated.
{¶ 136} Defendant next claims that his counsel performed
deficiently by failing to call Defendant’s girlfriend to
corroborate his testimony that Defendant was not drunk, and to
contradict M.B.’s denial that she told Defendant’s girlfriend
that the hospital found semen on her leg. The record before us
in this appeal does not demonstrate what Defendant’s girlfriend
would have testified to had she been called as a defense witness.
Accordingly, deficient performance by counsel in failing to call
her as a witness has not been demonstrated.
{¶ 137} Finally, Defendant claims that his counsel performed deficiently by failing to properly object (1) when the prosecutor
elicited from Dustin Cooper the statement Detective Markowski made
to Cooper in response to Cooper’s question whether he should speak
with a lawyer before providing a written statement to police, and
(2) when the “stand-in” judge gave the Howard “dynamite” charge
to the deadlocked jury. As we discussed earlier in overruling
the second and fourth assignments of error, any error on the part
of the trial court in admitting Detective Markowski’s statement
to Cooper was harmless beyond a reasonable doubt, and the “stand-in
judge,” Judge Tucker, did not commit error, much less plain error,
by giving the deadlocked jury the supplemental “dynamite” charge
approved by the Ohio Supreme Court in Howard, supra. Therefore,
defense counsel did not perform deficiently by failing to object
to those matters, and Defendant has failed to demonstrate that
he suffered any prejudice resulting from counsel’s failure to
object. Ineffective assistance of counsel has not been
demonstrated.
{¶ 138} Defendant’s sixth assignment of error is overruled.
The judgment of the trial court will be affirmed.
FAIN, J. And DONOVAN, J., concur.
Copies mailed to:
R. Lynn Nothstine, Esq. Don Brezine, Esq. Hon. Gregory F. Singer