State v. McDuffie

2020 Ohio 5466

• Court: Ohio Court of Appeals
• Decided: November 30, 2020
• Docket: 9-19-82
• Status: Published

Opinion

[Cite as State v. McDuffie, 2020-Ohio-5466.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-19-82

v.

WILLIAM A. MCDUFFIE, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 19-CR-026

Judgment Affirmed

Date of Decision: November 30, 2020

APPEARANCES:

William T. Cramer for Appellant

Nathan R. Heiser for Appellee Case No. 9-19-82

ZIMMERMAN, J.

{¶1} Defendant-appellant, William A. McDuffie (“McDuffie”), appeals his

October 31, 2019 sentence of the Marion County Court of Common Pleas. For the

reasons that follow, we affirm.

{¶2} This case arose after the MARMET Drug Task Force (“Task Force”)

obtained and executed a search warrant at McDuffie’s residence in Marion, Ohio on

January 11, 2019. (Doc. No. 45). During the search of McDuffie’s bedroom, the

Task Force discovered 24.12 grams of crack cocaine located inside a plastic baggie

hidden in a plastic container. (Id.). Further, during the search, Kayla Hamm

(“Hamm”), McDuffie’s girlfriend, was searched yielding the discovery of a cell-

phone and $1,089 in cash thought to be the proceeds of illegal-drug sales. (Id.).

(See PSI).

{¶3} On January 24, 2019, the Marion County Grand Jury indicted McDuffie

and Hamm (in a joint indictment) on one count of Possession of Cocaine in violation

of R.C. 2925.11(A), (C)(4), a second-degree felony. (Doc. No. 2). McDuffie’s

indictment included a forfeiture specification as to property under R.C. 2941.1417

and R.C. 2981.02.1 (Doc. No. 2). On January 28, 2019, McDuffie appeared for

arraignment and entered a plea of not guilty. (Doc. No. 5).

1 Hamm ultimately plead guilty to Possession of Cocaine, a fourth-degree felony. (Oct. 9, 2019 Tr. at 143- 144).

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{¶4} On October 9, 2019, McDuffie’s case proceeded to a jury trial, where

he was found guilty of Possession of Cocaine. (Doc. No. 64). At McDuffie’s

sentencing hearing, the State moved to dismiss the forfeiture specification in the

indictment, which the trial court granted. (Doc. No. 67). Thereafter, the trial court

sentenced McDuffie to a mandatory-prison term of eight years.2 (Oct. 28, 2019 Tr.

at 13); (Doc. No. 67).

{¶5} McDuffie filed his notice of appeal on November 15, 2019, and he

raises two assignments of error for our review, which we will address separately.

(Doc. No. 71).

Assignment of Error No. I

Appellant’s due process right to a fair trial was violated by the admission of evidence of other acts that were used to draw an improper character inference.

{¶6} In McDuffie’s first assignment of error, he argues that the trial court

abused its discretion by permitting the State to use “other acts” evidence against

McDuffie (the accused) which violated his due process right to a fair trial.

Specifically, McDuffie asserts that the trial court erred when it permitted the State

to cross-examine Hamm (a witness) attempting to elicit testimony (from her) that

McDuffie had knowledge that there were drugs in their bedroom.

2 The trial court further ordered the imposition of a $7,500 mandatory-minimum-drug fine, and McDuffie received 72 days’ jail-time credit. (Oct. 28, 2019 Tr. at 13); (Doc. No. 67). The trial court later filed a nunc pro tunc judgment entry correcting a clerical error. (Doc. No. 69).

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Standard of Review

{¶7} “‘Generally, evidence which tends to show that the accused has

committed other crimes or acts independent of the crime for which he stands trial is

not admissible to prove a defendant’s character or that the defendant acted in

conformity therewith.’” State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-

7915, ¶ 21, quoting State v. Hawthorne, 7th Dist. Columbiana No. 04 CO 56, 2005-

Ohio-6779, ¶ 24, citing State v. Elliott, 91 Ohio App.3d 763, 770 (3d Dist.1993) and

Evid.R. 404. However, “[t]he admissibility of other-acts evidence pursuant to

Evid.R. 404(B) is a question of law.” State v. Hartman, ___ Ohio St.3d ___, 2020-

Ohio-4440, ¶ 22.

{¶8} Accordingly, this Court reviews de novo whether a trial court admitted

improper character evidence and will apply an abuse-of-discretion standard to

evidentiary decisions regarding the admission of other-acts evidence for permissible

purposes. See id. See also State v. Glenn-Culverson, 10th Dist. Franklin No. 16AP-

265, 2017-Ohio-2671, ¶ 24 (“Thus, a reviewing court will not reverse a trial court’s

evidentiary ruling absent an abuse of discretion that materially prejudices the

affected party.”), citing State v. Issa, 93 Ohio St.3d 49, 64 (2001).

{¶9} “De novo review is independent, without deference to the lower court’s

decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27,

citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147

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(1992). An abuse of discretion implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980).

However, “if the party wishing to exclude evidence fails to contemporaneously

object at trial when the evidence is presented, that party waives for appeal all but

plain error.” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 53,

citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 59-60, State v.

Barrett, 4th Dist. Scioto No. 03CA2889, 2004-Ohio-2064, ¶ 20, and State v. Lenoir,

2d Dist. Montgomery No. 22239, 2008-Ohio-1984, ¶ 19.

{¶10} “Crim.R. 52(B) governs plain-error review in criminal cases.” Bagley

at ¶ 55, citing State v. Risner, 73 Ohio App.3d 19, 24 (3d Dist.1991). “A court

recognizes plain error with the utmost caution, under exceptional circumstances,

and only to prevent a miscarriage of justice.” State v. Smith, 3d Dist. Hardin No. 6-

1414, 2015-Ohio-2977, ¶ 63, citing State v. Saleh, 10th Dist. Franklin No. 07AP-

431, 2009-Ohio-1542, ¶ 68. Under plain-error review, “[w]e may reverse only when

the record is clear that defendant would not have been convicted in the absence of

the improper conduct.” Id., citing State v. Williams, 79 Ohio St.3d 1, 12 (1997).

Analysis

{¶11} Initially, we must determine whether McDuffie preserved this issue

for appeal. McDuffie’s argument concerns the testimony of Hamm regarding the

ownership of and (McDuffie’s) knowledge of the drugs concealed in the plastic

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container found in their bedroom. (Oct. 9, 2019 Tr. at 81, 84-87, 92, 101, 110).

After Hamm testified that she was the sole owner and only person with knowledge

as to the location of the drugs, the State sought to impeach her through the use of

data recovered from the search of her cell-phone (which yielded text messages

between Hamm and McDuffie) that called her testimony into question. (Id. at 114-

115). Notably, McDuffie objected to the admission of the text messages on the basis

that such messages had not been authenticated, were prejudicial, and were stale

evidence. (Id. at 116-123). The trial court overruled McDuffie’s objections. (Id.

at 118, 124). Specifically, the trial court noted that the cross-examination of Hamm

(as to the content of the text messages) was permissible and the State would be given

some latitude because it was being offered as impeachment evidence regarding

Hamm’s credibility for truthfulness or untruthfulness under Evid.R. 608(B) and not

(nonpropensity evidence) under 404(B) as to McDuffie’s knowledge. (See id. at

118-119, 121-123). Importantly, McDuffie never objected to Hamm’s testimony

on any basis after his initial objections. Moreover, the State did not seek to offer

State’s exhibit 30 (the text message printout) into evidence. (Id. at 114-124). As

such, under the facts presented, we will apply plain error in our review. See Crim.R.

52(B).

{¶12} McDuffie contends that the trial court permitted Hamm to testify to

“other acts” evidence that is inadmissible because it suggests that McDuffie has a

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propensity or proclivity to commit drug-related crimes. However, because the

testimony was elicited on cross-examination to impeach Hamm (and not the

accused—McDuffie) as to her credibility for truthfulness or untruthfulness, the

evidence falls within the scope of Evid.R. 404(A)(3), 607, 611, 608(B) and not

404(B). See Evid.R. 404(A)(3), 607, 611, and 608(B). See also Evid.R. 616(A),

(B). (Oct. 9, 2019 Tr. at 118-119, 121-123).

{¶13} Evid.R. 607 states in pertinent part:

The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(A), 801(D)(2), or 803.

Evid.R. 607(A). “‘Cross-examination shall be permitted on all relevant matters and

matters affecting credibility.’” State v. Potts, 3d Dist. Hancock No. 5-16-03, 2016-

Ohio-5555, ¶ 73, quoting Evid.R. 611(B). Under Evid.R. 608, the credibility of a

witness may be attacked through opinion, reputation, and specific instances of

conduct evidence as to the character of the witness for truthfulness or untruthfulness.

See Evid.R. 608. Moreover, and relevant to the facts presented, under Evid.R. 616,

a witness may be impeached as to bias (motive to misrepresent), sensory or mental

defect (inability to remember the events), and specific contradictions within certain

limitations. See Evid.R. 616 (A)-(C).

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{¶14} Here, the State attacked the credibility of Hamm on cross-examination

under Evid.R. 608 and 616. (See Oct. 9, 2019 Tr. at 118-119, 121-123).

Notwithstanding the permissibility of such an attack on a witness’ credibility under

Evid.R. 608(B), Evid.R. 403(A) would mandate exclusion of this type of relevant-

character evidence “if its probative value is substantially outweighed by the danger

of unfair prejudice, of confusion of the issues, or of misleading the jury.”3

{¶15} However, and important to this discussion, Hamm testified that the

large quantity of crack cocaine (24.12 grams) seized was for her exclusive-personal

use and that McDuffie was not aware that she used crack cocaine or that the crack

cocaine was located in their bedroom. (See Oct. 9, 2019 Tr. at 87-88, 101, 110).

Here, the State’s line of questioning (of Hamm) attacked Hamm’s credibility, since

such evidence indicated that McDuffie was aware that Hamm possessed the drugs,

and that such drugs were not for Hamm’s exclusive-personal use. (See id.). As a

consequence, the jury was free to conclude that since Hamm was not credible

(because she was untruthful as to McDuffie’s knowledge of her drug use and the

purpose of her possession) perhaps the remainder of her testimony lacked any

indicia of truthfulness. See State v. Schwegmann, 1st Dist. Hamilton No. C-180053,

2018-Ohio-3757, ¶ 11, citing State v. Hussein, 1st Dist. Hamilton No. C-020155,

2003-Ohio-1369, ¶ 8, citing State v. Boggs, 63 Ohio St.3d 418, 421 (1992).

3 Because McDuffie does not challenge whether Hamm’s testimony is relevant or admissible as such, we will not address the applicability of Evid.R. 401 and 402.

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{¶16} Moreover, Hamm was subject to impeachment by the State as to bias

(i.e., her motive to misrepresent the ownership of the drugs as well as McDuffie’s

knowledge of the drugs because of their relationship) and to a sensory or mental

defect (for her inability to remember certain text messages with McDuffie despite

being able to recall other unrelated text messages). (See Oct. 9, 2019 Tr. at 97-98,

132, 133, 138, 141). See Hussein at ¶ 8-9. Her testimony is not merely contradictory

testimony on collateral issues, but rather, material to the issue presently before the

trial court regarding the truthfulness of this witness. See Boggs at 422.

{¶17} Nevertheless, the trial court admonished the parties to proceed

carefully because of its duty to consider mandatory exclusion under Evid.R. 403(A)

stating:

[Trial Court] Again, that being said, I want to caution the

parties that I’m going to continue to weigh the probative

value as compared to the prejudicial effect of any

evidence that might sought to be elicited.

The mere fact that I’m saying that this witness

can be cross-examined does not mean that everything is

now fair game. And I think the Prosecutors know

what I’m saying. Are [sic] well aware of the fact that

the Defendant in this case is not charged with

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Trafficking, that I’m not, by saying that this witness can

be cross-examined in order to examine potential

inconsistencies or untruthfulness that there may be in

her testimony for the purposes of impeaching her.

That does not mean that I’m saying that the State

would now have carte blanche to go into other things

that may be indicative of trafficking of drugs on the part

of the Defendant. We’re not going to go there. Let me

[sic] abundantly clear about that. So anything further

that we need to address while out of the presence of the

jury?

(Oct. 9, 2019 Tr. at 121-122). Notably, McDuffie never objected on the basis that

exclusion was mandatory or discretionary under Evid.R. 403.

{¶18} Thus, upon our review of the record, we cannot conclude that there is

an obvious defect in this trial that affected McDuffie’s substantial rights.

Notwithstanding the foregoing, and even if we were to have concluded otherwise,

McDuffie cannot demonstrate prejudice since Hamm was not able to recall the

content of any of the text messages despite the attempts made by the State to refresh

her recollection. (Id. at 132-133). See Evid.R. 612. Accordingly, McDuffie’s

argument is without merit.

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{¶19} Moreover, we cannot conclude that the there is any error and certainly

not error that rises to the level of plain error in relation to Hamm’s impeachment by

the State, which has caused a manifest miscarriage of justice warranting a new trial.

Therefore, McDuffie’s first assignment of error is overruled.

Assignment of Error No. II

Appellant’s due process right to a fair trial was violated by the prosecutor’s improper comments regarding the credibility of a witness during closing argument.

{¶20} In his second assignment of error, McDuffie asserts that during closing

arguments the prosecutor engaged in prosecutorial misconduct, denying him a fair

trial. Specifically, he claims that the prosecutor made a suggestion (during closing

argument) that Hamm while testifying in court, was being intimidated by McDuffie,

and thus, that there was an impermissible inference that jury should find her

testimony not credible.

{¶21} “The test for prosecutorial misconduct is whether the remarks were

improper and, if so, whether they prejudicially affected the accused’s substantial

rights.” State v. Liles, 3d Dist. Allen No. 1-14-61, 2015-Ohio-3093, ¶ 31, citing

State v. Smith, 14 Ohio St.3d 13, 14 (1984). “‘To establish prejudice, a defendant

must show that a reasonable probability exists that, but for the prosecutor’s improper

remarks, the result of the proceeding would have been different. Thus, “[n]ot every

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intemperate remark by counsel can be a basis for reversal.”’” Id., quoting State v.

Porter, 4th Dist. Meigs No. 10CA15, 2012-Ohio-1526, ¶ 20, quoting State v.

Landrum, 53 Ohio St.3d 107, 112 (1990). “In making this determination, an

appellate court should consider several factors: (1) the nature of the remarks, (2)

whether an objection was made by counsel, (3) whether corrective instructions were

given by the court, and (4) the strength of the evidence against the defendant.” State

v. Braxton, 102 Ohio App.3d 28, 41 (8th Dist.1995).

{¶22} McDuffie points to the following exchange between the prosecutor

and the jury regarding Hamm’s testimony:

[State of Ohio] I find it kind of interesting when she was on her

direct examination that Mr. McDuffie was staring her

straight in the face and she looked straight back at him.

She seemed deathly afraid of Mr. McDuffie. She

seemed deathly afraid of the people around. And she

seemed like she was trying testify just to please him

today.

(Oct. 9, 2019 Tr. at 170). At the conclusion of the State’s closing arguments, at a

sidebar, the defense moved for a mistrial on the basis that the prosecutor insinuated

to the jury that Hamm was being intimidated by or scared of McDuffie. (Id. at 173).

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Thereafter, the trial court admonished the prosecutor for his comments, but denied

the defense’s motion for a mistrial. (Id. at 174). Importantly, the trial court gave a

curative instruction to the jury (instructing them to disregard the comments made

by the prosecutor as part of his closing argument) prior to the defense’s closing

arguments. (Id. at 175).

{¶23} Addressing prosecutorial misconduct allegations related to closing

arguments, “[p]arties have wide latitude in their closing statements, particularly

‘latitude as to what the evidence has shown and what inferences can be drawn from

the evidence.’” State v. Wolff, 7th Dist. Mahoning No. 07 MA 166, 2009-Ohio-

7085, ¶ 13, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 213. State

v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 159, (“A prosecutor may state

an opinion if based on evidence presented at trial.”). “‘The test regarding

prosecutorial misconduct in closing arguments is whether the remarks were

improper and, if so, whether they prejudicially affected substantial rights of the

defendant.” State v. Rasawehr, 3d Dist. Mercer No. 10-19-15, 2020-Ohio-429, ¶

12, quoting State v. Encarnacion, 10th Dist. Franklin No. 16AP-817, 2017-Ohio-

5530, ¶ 9, citing State v. Smith, 14 Ohio St.3d at 14. “‘A prosecutor’s isolated

comments are not to be taken out of context and given their most damaging

meaning.’” Id. at ¶ 13, quoting Encarnacion at ¶ 10, citing State v. Noling, 98 Ohio

St.3d 44, 2002-Ohio-7044, ¶ 94, citing Donnelly v. DeChristoforo, 416 U.S. 637,

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647, 94 S.Ct. 1868, 1873 (1974). “‘Instead, an appellate court must review a closing

argument in its entirety to determine whether prejudicial error occurred.’” Id.,

quoting Encarnacion at ¶ 10, citing Noling at ¶ 94, citing State v. Frazier, 73 Ohio

St.3d 323, 342 (1995).

{¶24} Even if we assume, without deciding, that the prosecutor’s comments

were improper in satisfaction of the first prong of the prosecutorial-misconduct test,

McDuffie cannot establish prejudice here because the trial court gave the jury a

curative instruction which we conclude was sufficient to relieve any prejudice that

McDuffie may have suffered. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128,

¶ 170, citing State v. Loza, 71 Ohio St.3d 61, 75 (1994), overruled on other grounds,

(“The trial court’s curative instruction was sufficient to relieve any prejudice.”). As

such, McDuffie cannot establish the second prong of the prosecutorial-misconduct

test under the facts before us.

{¶25} In our review of the record, we cannot conclude that the statements of

the prosecutor made during closing argument are prejudicial error.

{¶26} Accordingly, McDuffie’s second assignment of error is overruled.

{¶27} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

SHAW, P.J. and WILLAMOWSKI, J., concur.

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