State v. Cottrill

2023 Ohio 600

• Court: Ohio Court of Appeals
• Decided: February 28, 2023
• Docket: 2022 CA 00052
• Status: Published

Opinion

[Cite as State v. Cottrill, 2023-Ohio-600.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2022 CA 00052 CHRISTOPHER COTTRILL

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Canton Municipal Court, Case No. 2022 CRB 00862

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 28, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JASON P. REESE D. COLEMAN BOND Canton Law Director 116 Cleveland Avenue, N.W. Suite #600 KATIE M. ERCHICK GILBERT Canton, Ohio 44702 Canton City Prosecutor

KRISTINA M. LOCKWOOD Chief Assistant Prosecutor 218 Cleveland Avenue, S.W. Canton, Ohio 44702 Stark County, Case No. 2022 CA 00052 2

Hoffman, P.J. {¶1} Defendant-appellant Christopher Cottrill appeals the judgment entered by

the Canton Municipal Court convicting him, following jury trial, of domestic violence (R.C.

2919.25(C)) and sentencing him to forty days in jail. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On February 18, 2022, Appellant’s wife (hereinafter “victim”) served

Appellant with divorce papers. Appellant did not believe in divorce. Appellant shredded

the papers and told the victim the divorce was not going to happen. Appellant told the

victim he would rather take them both out than go through a divorce. At the time Appellant

made this statement, the couple was in the living room, where Appellant had access to a

loaded gun. Appellant took the victim’s phone and she did not have a car of her own

because Appellant sold her car after they were married. Although she feared for the

safety of herself and her young son, she was unable to leave the house the night he made

the threat.

{¶3} The next day the victim took her son and went to her aunt’s house, where

she called the police. Officer Richard Zeren responded to the call. The officer believed

the victim had a real fear she was in danger from Appellant.

{¶4} After Appellant was arrested, the victim called Canton police officers to

remove Appellant’s guns from the home. Officers removed a loaded shotgun from the

living room and a pellet gun from elsewhere in the residence.

{¶5} Appellant was charged with one count of domestic violence with

specifications of two prior convictions of domestic violence. The case proceeded to jury

trial in the Canton Municipal Court. Appellant was found guilty. The trial court sentenced Stark County, Case No. 2022 CA 00052 3

Appellant to 40 days in jail with credit for 29 days served, and placed Appellant on

probation for two years.

{¶6} It is from the March 24, 2022 judgment of the trial court Appellant

prosecutes his appeal, assigning as error:

I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO

SUSTAIN A CONVICTION AGAINST THE APPELLANT FOR THE

OFFENSE OF DOMESTIC VIOLENCE IN VIOLATION OF R.C.

2919.25(C)(D)(4).

II. THE APPELLANT’S CONVICTION IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.

III. THE APPELLANT WAS DENIED A FAIR TRIAL DUE TO

PROSECUTORIAL MISCONDUCT.

I., II.

{¶7} Appellant argues the judgment was against the sufficiency and manifest

weight of the evidence because there was no evidence the threat to the victim was

imminent, and further the jury lost its way because of the introduction of improper

character evidence; specifically, Appellant had a prior felony conviction and was not

permitted to own guns.

{¶8} An appellate court's function when reviewing the sufficiency of the evidence

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 Stark County, Case No. 2022 CA 00052 4

proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

{¶9} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’ ” State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

{¶10} Appellant was convicted of domestic violence in violation of R.C.

2919.25(C), which provides, “No person, by threat of force, shall knowingly cause a family

or household member to believe that the offender will cause imminent physical harm to

the family or household member.”

{¶11} Appellant cites State v. Collie, 108 Ohio App.3d 580, 671 N.E.2d 338

(1996), in support of his argument the threat of harm to the victim was not imminent

because the threat was contingent on following through with the divorce. In Collie, the

defendant told the victim, “If I had a gun, I would shoot you.” The court held the statement

was a conditional threat, and the State failed to meet its burden of demonstrating the

victim had a belief this threat was imminent. Id. at 584.

{¶12} We find the evidence in the instant case was sufficient to demonstrate the

victim believed the threat was imminent. While Appellant attempts to argue the threat

was conditioned on the victim following through with the divorce, we find her testimony

she served Appellant with divorce papers on the date in question, and his response he Stark County, Case No. 2022 CA 00052 5

would “take them both out” rather than go through a divorce, for which he had just been

served papers, is sufficient to demonstrate the threat of harm was imminent. There was

evidence Appellant made this threat in the living room, where a loaded shotgun was

accessible to Appellant. Although the victim did not leave the home the night Appellant

made the threat, she testified she feared she and her son were in danger. However, she

testified Appellant had taken her phone and her car, making it impossible to leave. The

victim left the next morning and went to her aunt’s house, where she called the police. In

addition, Officer Zeren testified based on his experience, he believed the victim’s fear she

was in danger was real. We find this evidence sufficient to demonstrate the victim

believed Appellant would cause imminent physical harm to her, and the jury did not lose

its way in so concluding.

{¶13} Appellant also argues the jury lost its way due to the introduction of improper

character evidence he was a convicted felon. Appellant has failed to separately assign

the admission of his prior felony conviction into evidence as error. Further, the document

demonstrating the prior felony conviction was admitted into evidence without objection by

Appellant. Appellant requested only that a proper limiting instruction be given concerning

the jury’s use of the prior convictions.1

{¶14} Further, Appellant used the evidence of his prior felony conviction as

evidence he could not legally own a firearm to support his theory of the case. In opening

statement, Appellant argued to the jury the victim was motivated by a desire to get rid of

Appellant and send him to jail. Before the State inquired about whether a convicted felon

1 Although the parties stipulated to the prior convictions, the exact terms of the stipulation are not a part of the record before this Court on appeal. It appears from Appellant’s failure to object to the admission of the documents the stipulation may have gone solely to the admission of the past convictions without the need to present evidence to authenticate the documents. Stark County, Case No. 2022 CA 00052 6

could own a weapon, counsel for Appellant elicited testimony the victim asked the officers

who removed the guns from the house if Appellant would do more jail time because the

weapon was loaded. On cross-examination of the victim, counsel elicited testimony she

made sure the police knew Appellant had a felony conviction. In closing argument, after

the State argued the fact Appellant could not legally possess a firearm supported its claim

the victim’s fear of harm was imminent, counsel for Appellant argued:

She tells ‘em again, “I—I called about the guns on Saturday.” Why

always the guns? ‘Cuz she knows that he’s a convicted felon and he’s not

supposed to have a gun. She asked the officer if these, the bullets, will

count toward him. What’s she saying? She wants him to go away longer.

She even says to the officer before she leaves it will give her a chance to

go back to the house.

{¶15} Tr. 160.

{¶16} We find the jury did not lose its way by consideration of evidence, admitted

without objection, Appellant was a convicted felon, and the judgment is not against the

manifest weight of the evidence.

{¶17} The first and second assignments of error are overruled.

III.

{¶18} In his third assignment of error, Appellant argues the prosecutor committed

misconduct by introducing evidence Appellant was a convicted felon and as such, was

not permitted to own a firearm. Stark County, Case No. 2022 CA 00052 7

{¶19} When reviewing a claim of prosecutorial misconduct, the relevant question

is whether the prosecutor’s conduct “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181,

106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637,

643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). To answer this question, we consider whether

the conduct was improper and whether it prejudicially affected the defendant's substantial

rights. State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 243. In

evaluating prejudice, we review the effect of the misconduct on the jury in the context of

the entire trial. State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993).

{¶20} Again, we note Appellant has not assigned error to the admission of the

evidence Appellant had a prior felony conviction, and the accompanying testimony as a

convicted felon he was not permitted to own a firearm. Appellant argues based on the

stipulation of the prior convictions, the State did not need to admit into evidence the

document demonstrating he was a convicted felon. However, Appellant did not object to

its admission into evidence. Further, the terms of the stipulation are not apparent from

the record, and therefore we cannot determine if the parties stipulated to the fact of the

convictions without admission of the documents demonstrating the conviction, or

stipulated solely to admission of the documents without evidence authenticating the

documents.

{¶21} Further, as discussed earlier in this opinion, Appellant’s theory of the case

was the victim was lying in order to send Appellant to jail as long as possible. In support

of this theory, Appellant argued the victim made sure police knew Appellant possessed

guns with a prior felony conviction. Therefore, even were we to find prosecutorial Stark County, Case No. 2022 CA 00052 8

misconduct, we find Appellant has not demonstrated prejudice in the context of the entire

trial.

{¶22} The third assignment of error is overruled.

{¶23} The judgment of the Canton Municipal Court is affirmed.

By: Hoffman, P.J. Wise, J. and Baldwin, J. concur