State v. Umstead

2021 Ohio 10

• Court: Ohio Court of Appeals
• Decided: January 7, 2021
• Docket: 109243
• Status: Published

Opinion

[Cite as State v. Umstead, 2021-Ohio-10.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CITY OF CLEVELAND, :

Plaintiff-Appellee, : No. 109243 v. :

ROBERT M. UMSTEAD, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: January 7, 2021

Criminal Appeal from the Cleveland Municipal Court Case Nos. 2014 TRD 034472 and 2018 CRB 021900

Appearances:

Barbara A. Langhenry, Cleveland Director of Law, Karrie Howard, Chief Prosecuting Attorney, and Karyn J. Lynn, Assistant Prosecuting Attorney, for appellee.

Jerome Emoff, for appellant.

MARY EILEEN KILBANE, J.:

Defendant-appellant, Robert Umstead (“Umstead”), appeals his

conviction after a bench trial for aggravated menacing, a misdemeanor under the

Cleveland Codified Ordinances in Cleveland M.C. No. 2018 CRB 021900. At the time of his conviction, he also had a pending case, Cleveland M.C. No. 2014 TRD

034472. He was sentenced to community control sanctions on both cases. Umstead

makes no assignment of error pertaining to M.C. No. 2014 TRD 034472; therefore,

we affirm that case.

Umstead presented five assignments of error in his appeal for M.C.

No. 2018 CRB 021900. We will only address Umstead’s second assignment of error

because it is controlling. Umstead’s second assignment of error relates to the trial

court’s decision to not allow Umstead’s trial counsel to recross a witness. We find

that this decision violates Ohio’s policy promoting broad cross-examination and is

an abuse of discretion. Therefore, we reverse his conviction and remand this case to

the trial court for a new trial. His other assignments of error are disregarded as

moot.

Procedural History and Witness Testimony

On December 10, 2018, Umstead was charged in M.C. No. 2018 CRB

021900 with aggravated menacing in violation of Cleveland Codified Ordinances

621.06. On July 29, 2019, he was arraigned on the charge. Umstead elected to

proceed with a bench trial, and on October 8, 2019, the trial court found him guilty.

On October 29, 2019, the trial court held a sentencing hearing. The

trial court imposed a $100 fine, 180 days in jail, with 177 days suspended and credit

for 3 days served, and placed Umstead on 2 years active probation. The court further

ordered Umstead to complete anger management classes and 60 hours of community work service. The trial court extended the community control sanctions

that were in place as to Umstead’s pending traffic case.

This case resulted from a confrontation between Umstead and Willie

Palmer (“Palmer”). Palmer testified for the city of Cleveland (“the city”) that the

incident occurred at Shay’s parking lot (“Shay’s”) where Cassandra Samuel

(“Samuel”), Palmer’s girlfriend, worked. Palmer testified that he had dropped

Samuel off at Shay’s on Saturday morning, December 7, 2018. He left to get Samuel

something to eat, and when he returned in his truck, he noticed Umstead for the first

time. Palmer knew that Umstead was Samuel’s ex-boyfriend.

Palmer testified that Umstead was in his car and that when Palmer

got out of his truck, Umstead drove his car at him. According to Palmer, Umstead

revved the engine, stopping and starting several times, before eventually stopping

abruptly several feet from Palmer. Palmer admits that he was yelling at Umstead

throughout, and calling him names.

Umstead got out of his car and went to the trunk to grab a gun. He

pointed the gun at Palmer who continued yelling; Palmer testified that he believed

Umstead was going to shoot him. Umstead instead approached Palmer and hit him

with the gun. The two began wrestling. The fight ended when a person yelled that

the police were coming.

On cross-examination, Umstead’s trial counsel questioned Palmer

about his memory of the incident, including a line of questioning about the actual

date of the incident. Trial counsel indicated that he had a police report dated December 4, days before Palmer stated the incident occurred. Palmer stated that he

was certain the incident occurred on a Saturday so the report must be wrong.

Samuel then testified. She stated that she had dated Umstead for

about nine years until they broke up in late 2017. Umstead would sometimes visit

his brother, a fellow employee at Shay’s, but she had not seen him since

approximately three months prior to the incident.

The day of the incident, she stated that she and Palmer first noticed

Umstead when Palmer returned to bring her food. On direct examination, she

testified that Palmer got out of his vehicle and began yelling at Umstead, taunting

him. Umstead did not reply, but instead drove his car towards Palmer, stopped,

exited his car, opened his trunk, and retrieved a pistol. Umstead then approached

Palmer and hit him with the gun. Palmer knocked the gun to the ground, where

Samuel later retrieved it and gave it to Palmer.

On cross-examination, Samuel testified that Umstead did not get out

of his car until he was called names by Palmer. She also said that it’s not unusual

for Umstead to be at the lot and agreed with Umstead’s trial counsel that Palmer

initiated a verbal dispute.

The city briefly reexamined Samuel and asked two questions. Samuel

stated on redirect that Umstead was revving his engine at Palmer before exiting the

vehicle and grabbing his gun. After the two questions, the court told the witness she could have a

seat and the following exchange occurred between Umstead’s trial counsel and the

court:

DEFENSE ATTORNEY: Can I have one —

THE COURT: No. No.

DEFENSE ATTORNEY: One question.

THE COURT: No. All right?

DEFENSE ATTORNEY: I can’t recross?

THE COURT: No. No means no, right?

DEFENSE ATTORNEY: I want to recross.

THE COURT: I said no.

DEFENSE ATTORNEY: Is there a reason I don’t — I can’t —

THE COURT: Because I don’t do that in 12-B and it’s my courtroom and I said no.

The city rested its case. Umstead then testified in his own defense.

Umstead said he was at the parking lot that morning and saw Samuel

and Palmer. He said he just wanted to talk to Samuel. He stated that after Palmer

returned and spotted him, Palmer pulled his truck in front of his, jumped out of his

vehicle, and called him names. He said he did rev his engine but that he also felt

threatened by Palmer. He said that he got out of his vehicle to go talk to Samuel and

then Palmer moved his truck, blocking him in. Umstead was asked if he hit Palmer

because he felt threatened. He said yes and said he never tried to shoot Palmer. On cross-examination, Umstead reiterated that Palmer blocked him

in. He admitted that he hit Palmer first and that Palmer didn’t make overt threats,

stating that Palmer just came out of the vehicle yelling insults, and he interpreted

those as threats.

The trial court reviewed the aggravated menacing statute on the

record and found Umstead guilty of aggravated menacing. The trial court explained

its verdict, stating:

I think if I’m going to sit and wait and go in the back of my car and get a gun and point it at somebody and then attempt to hit them. That would cause me to believe that I was going to be harmed seriously. He had no duty, no right to be on that property at that time. He certainly had a duty to retreat, if he thought that he felt threatened. You feel threatened but you’re going to sit and wait; that doesn’t even make sense.

This appeal follows. Umstead presents five assignments of error.

Assignments of Error

I. The Evidence Was Insufficient To Prove That The Alleged Victim Believed Appellant Would Cause Him Serious Physical Harm.

II. The Trial Court Abused Its Discretion By Adopting A Blanket Policy Preventing Recross-Examination Resulting In A Denial Of A Fair Trial And Due Process.

III. The Trial Court Denied Appellant A Fair Trial By Prohibiting Impeachment By Prior Inconsistent Statement.

IV. Appellant Was Denied The Effective Assistance Of Counsel.

V. The Trial Court’s Verdict Was against the Manifest Weight of the Evidence.

As we stated previously, we will be limiting our review to Umstead’s

second assignment of error. We find that his argument has merit and that the trial court did abuse its discretion by imposing a blanket ban on recross-examination. As

a result, we reverse and remand consistent with this opinion and find that Umstead’s

other four assignments of error are moot.

The Second Assignment of Error: Recross-Examination

Ohio takes a broad approach to cross-examination. “Evid.R. 611(B)

requires trial courts to permit ‘[c]ross-examination * * * on all relevant matters and

matters affecting credibility.’” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-

5735, 70 N.E.3d 508, ¶ 171. Unlike the analogous Federal Rules of Evidence, Ohio

does not limit the scope of cross-examination to the subject matter of direct

examination. State v. Treesh, 90 Ohio St.3d 460, 481, 739 N.E.2d 749 (2001).

Although “‘trial courts have wide latitude in imposing reasonable

limits on the scope of cross-examination,” courts should impose such limits “based

upon concerns about harassment, prejudice, confusion of the issues, the witness’s

safety, or repetitive, marginally relevant interrogation.’” State v. Henderson, 8th

Dist. Cuyahoga No. 106627, 2018-Ohio-3797, ¶ 18, quoting State v. Bolton, 8th Dist.

Cuyahoga No. 96385, 2012-Ohio-169, ¶ 41. Under no circumstances is a blanket

policy prohibiting all recross-examination appropriate.

The second assignment of error relates to the testimony of the state’s

second eyewitness, Samuel, who was then Palmer’s girlfriend and Umstead’s former

girlfriend. After her testimony and cross-examination, the state asked her two

questions on redirect. The first question on redirect was inaudible and could not be fully transcribed for the record. The second question asked when Umstead revved

the car engine.

After the state’s redirect examination of Samuel, Umstead’s counsel

indicated that he had one more question for Samuel and asked the trial court for

permission to recross-examine the witness. After the trial court denied trial

counsel’s repeated requests to recross-examine Samuel, trial counsel asked the trial

court why the request was denied. The trial court responded: “Because I don’t do

that in 12-B and it’s my courtroom and I said no.”

Eyewitness testimony like Samuel’s can carry great weight

considering that a single credible eyewitness can sustain a conviction. State v.

Robertson, 8th Dist. Cuyahoga No. 106279, 2018-Ohio-2934, ¶ 30 (“A factfinder

may believe and convict a defendant based upon the testimony of a single

eyewitness, including the victim.”). The state was given the opportunity to

reexamine Samuel. Umstead’s counsel stated he had only one further question he

wished to ask Samuel on recross-examination, which mitigates any concerns that

might merit a reasonable limit on recross-examination. Nevertheless, his request to

briefly recross Samuel was denied with no reason other than “I don’t do that in 12-

B and it’s my courtroom and I said no.”

This statement demonstrates that the trial court had a blanket

prohibition on recross-examination. The trial court abused its discretion in

imposing this blanket prohibition, and Umstead was denied a fair trial as a result. We reverse Umstead’s conviction as to Cleveland M.C. No. 2018 CRB

021900 and remand for a new trial. Umstead’s other four assignments of error are

disregarded as moot.

It is ordered that appellant recover from appellee 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

Cleveland Municipal Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

MARY J. BOYLE, A.J., CONCURS; MICHELLE J. SHEEHAN, J., DISSENTS WITH SEPARATE DISSENTING OPINION

MICHELLE J. SHEEHAN, J., DISSENTING:

I respectfully dissent from the majority opinion and would affirm

appellant Robert Umstead’s conviction. In his second assignment of error, Umstead

alleges that he was denied the right to due process and fair trial where the “trial court

abused its discretion by adopting a blanket policy preventing recross-examination.”

Blanket policies that affect substantial rights are not favored under the law and

should not be employed. But when a court implements a blanket policy, the

appellate court reviews the application of that policy under an abuse of discretion standard. State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d 474; State

v. Switzer, 8th Dist. Cuyahoga No. 93533, 2010-Ohio-2473, ¶ 15.

The record in this case does not definitively show the trial court

employed a blanket prohibition on recross-examination. Of the three witnesses who

testified, only Samuel was subject to redirect examination. After the brief redirect

examination, appellant’s counsel asked for the ability to further question her. The

trial court denied the request. Trial counsel then asked two more times, without

offering any reasoning for the trial court to consider. The trial court denied the

request both times. Only after the fourth request did counsel ask for a reason for the

trial court’s decision, and the trial court responded, “Because I don’t do that in 12-B

and it’s my courtroom and I said no.” At that point, the trial court had denied

counsel’s request three times. When asked for a reason on the fourth request, the

trial court stated, “I don’t do that in 12-B” and “I said no.” It is unclear if the trial

court’s comments referred to a refusal to give a reason for denying recross-

examination or if the trial court employed a blanket policy against recross-

examination.

Even if the trial court employed a blanket policy, reversal of the trial

is not warranted because the denial of the ability to recross-examination of Samuel

did not amount to an abuse of the trial court’s discretion. A trial court is vested with

the authority to regulate the manner in which a trial is conducted by both

R.C. 2945.03 and Evid.R. 611. In determining whether the denial of further

examination in this case amounted to an abuse of discretion, it is important to note that appellant was not denied the constitutional right to confrontation of Samuel,

because there is generally no right to recross-examination of a witness. In State v.

Faulkner, 56 Ohio St.2d 42, 46, 381 N.E.2d 934 (1978), the Ohio Supreme Court

held:

Although a defendant must have the opportunity to cross-examine all witnesses against him as a matter of right, Kent v. State (1884), 42 Ohio St. 426; Weaver v. State (1929), 120 Ohio St. 97, the opportunity to recross-examine a witness is within the discretion of the trial court. Liberty Mutual Ins. Co. v. Gould (1976), 266 S. C. 521, 224 S. E. 2d 715; United States v. Morris (C.A. 5, 1973), 485 F. 2d 1385. Only where the prosecution inquires into new areas during redirect examination must the trial court allow defense the opportunity to recross-examine. See Alford v. United States (1931), 282 U.S. 687.

In applying this holding, this court has found that there is no absolute

right to recross-examination even if new matters arise on redirect examination of a

witness. State v. Hartley, 8th Dist. Cuyahoga No. 81706, 2003-Ohio-3946, ¶ 16,

stating:

Had the Supreme Court intended that all recross-examination, even of new matters, be permitted, it would have imposed a per se rule, not the abuse of discretion standard. * * * Hence, we do not interpret the “must” in Faulkner to indicate that recross-examination is mandatory, even when new evidence is presented during redirect examination.

The redirect examination of Samuel consisted of two questions. The

record does not reflect what the first question was, but in answering that question,

Samuel clarified and repeated what Palmer said to Umstead, then repeated her prior

testimony as to the order of the events she witnessed. In so doing, she included the

fact that Umstead revved his engine “like he wanted to run him over.” The second question asked only about when the revving occurred. Samuel clarified that it was

after Palmer got out of the car.

Samuel testified on direct and cross-examination to the events she

witnessed and the order in which they occurred. She stated that Umstead moved his

car before getting out, retrieving a gun, and attacking Palmer. I cannot discern from

the record that the city sought to inquire about new material or new issues in its re-

direct examination. In Hartley, this court stated there are “no hard and fast rules on

what constitutes new material for purposes of recross-examination.” Id. at ¶ 20. We

noted that “the [trial] court should seek to limit recross-examination to testimony

on redirect examination which raises a new subject-matter that is both material and

non-redundant in context.” Id. Here, the only new information that Samuel

testified on redirect examination was that Umstead revved the engine “like he was

going to run him over.” However, that fact was ultimately not at issue in trial and is

not material. Appellant admitted he revved the engine, and the trial court based its

verdict on its finding that appellant pointed a gun at Palmer, not on the revving of

an engine or movement of a car.

As to appellant’s remaining assignments of error, I would find that

the trial court did not err in prohibiting the use of the police report to impeach

Palmer. There was no showing it contained a prior inconsistent statement or that

Palmer was the author of the police report. I would find there was sufficient

evidence presented to sustain the conviction for aggravated menacing where Palmer

testified that he believed appellant would shoot him and further find the conviction was not against the manifest weight of the evidence. Finally, I would find that

appellant did not receive ineffective assistance of counsel where 1) trial counsel’s

failure to move for acquittal is moot where sufficient evidence was presented to

sustain the conviction, and 2) trial counsel’s failure to proffer the police report did

not amount to ineffective assistance because the trial court properly disallowed the

use of the police report to impeach Palmer.