State v. Whitby

2012 Ohio 264

Opinion

[Cite as State v. Whitby, 2012-Ohio-264.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 96626

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

REBECCA A. WHITBY DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-526567

BEFORE: S. Gallagher, J., Celebrezze, P.J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: January 26, 2012 ATTORNEYS FOR APPELLANT

Jennifer Scott P.O. Box 770403 Lakewood, OH 44107

William L. Summers William L. Summers & Associates Co., LPA Landerbrook Corporate Center II 5910 Landerbrook Drive, Suite 200 Cleveland, OH 44124

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

By: Sherrie S. Royster T. Allan Regas Assistant Prosecuting Attorneys The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113

SEAN C. GALLAGHER, J.:

{¶ 1} Appellant, Rebecca Whitby, appeals her conviction in the Cuyahoga County

Court of Common Pleas for one count of assault on a peace officer and two counts of

resisting arrest. For the reasons stated herein, we affirm.

{¶ 2} The charges in this case stem from an incident occurring on April 25, 2009.

On that date, appellant’s father called 911 and, with a sense of urgency, reported that appellant was drunk and that he needed a mediator. Cleveland police officers Mitchell

Sheehan and James Bryant responded to the radio dispatch for an “intoxicated

disturbance” at 886 Alhambra in Cleveland. Upon their arrival, the officers were let

inside by appellant’s father.

{¶ 3} According to Officer Sheehan’s version of events, appellant was being held

back by her mother. Appellant had a little foam in the corner of her mouth, her eyes

were “real wide,” and she was swearing and screaming. Officer Sheehan testified that

appellant cursed at and tried to charge her father. When the officer tried to stop

appellant, she tried to punch the officer, cursed at him, and spat in his eyes and nose.

Officer Sheehan attempted to take appellant to the ground to get her under control and

handcuff her. The two fell to the floor. Officer Sheehan stated appellant was trying to

hit him, she was biting his elbow and chest, she was spitting at him, and she began

grabbing at his gun. He called out to his partner, who punched appellant in the head and

face. According to Officer Sheehan, appellant then lunged at Officer Bryant’s weapon,

causing Officer Bryant to punch the appellant again. She was then placed in handcuffs.

{¶ 4} While the officers took appellant down the stairs, she was spitting and

kicking at them, and she was trying to bite them. Officer Sheehan stated appellant’s

mother came from behind and pushed them, causing them to fall down the steps. The

officers continued to struggle with appellant while taking her outside and placing her in

the police car. Numerous other officers arrived on scene. Officer Bryant’s testimony

was largely consistent with the testimony of Officer Sheehan. {¶ 5} Appellant’s father, Timothy Walker, testified that although his daughter had

been drinking, he was mistaken in his choice of words that she was drunk. He stated that

when the officers arrived, he informed them they were no longer needed and everything

was fine. His grandson was also in the home at the time. Appellant’s father claimed the

officers proceeded upstairs, knocked on a closed door to the bathroom where his wife and

daughter were, and demanded appellant come out so they could arrest her. He stated the

officers arm-barred appellant in the face, tackled her to the ground, and punched her in

the ribs and face. He denied that appellant ever tried to grab for the officers’ guns.

Walker testified the officers continued to assault appellant as they handcuffed her and

dragged her down the stairs and through the front door. He stated other officers had

arrived on scene, and they surrounded appellant on the front porch. He claimed the

officers kicked and stomped on appellant, threw her into the police car “like she was a

sack of potatoes,” and tased her.

{¶ 6} Officer Michael Dunst responded to the scene to investigate the use of

nondeadly force. He concluded that the officers used nondeadly force to effect the

arrest, acted appropriately and did not use excessive force, and complied with applicable

rules, regulations, and procedures.

{¶ 7} Dawn Garrison, who was an inmate on the date of the incident, testified that

another inmate threw toilet water on her and was acting like she was insane, and a fight

broke out. Michelle Walker, a corrections officer, responded to the fight and observed

that the inmate was wet. Walker stated that appellant was “more or less out of it, real excited, jumpy, real irate[.]” Walker testified appellant was swinging and kicking while

being removed from the cell. Walker claimed she sustained personal injuries and went to

the hospital for treatment.

{¶ 8} Appellant testified that she had been drinking that night but was not drunk.

She was in the bathroom having a discussion with her mother when the police arrived.

The women informed the officers everything was okay. Appellant stated the officers told

her to come out of the bathroom and stated they were going to arrest her. She claims the

officers grabbed her arm, tackled her to the ground, punched and hit her in the face, head

and ribs, and choked her neck. She denied spitting at the officers. She claims the

officers handcuffed her, carried her down the stairs and dropped her, and slammed her

down on the front porch where she was stomped on and kicked. She stated she was

thrown into the police car, but did not recall being tased. She denied throwing toilet

water on the other inmate, and claimed water may have accidently spilled on her. She

claimed that when she was released from jail, she was told she was not being charged

with anything. She denied having been hit by the other inmate and claimed her injuries

were sustained from the officers in her home. It was not until she filed a complaint

against the officers that she found out she was being charged.

{¶ 9} Appellant’s mother, also named Rebecca Whitby, testified to her account of

the police assault on her daughter. She denied grabbing or pulling at the officers. A

few neighbors who claimed to have witnessed the portion of events transpiring outside

the home also testified for the defense. {¶ 10} Detective Albert Sardon investigated the allegations of assault on the police

officer. He found the officers’ reports were incomplete. After speaking with the

officers, it was his impression that appellant was wild and out of control. He testified to

proper handgun retention techniques. He indicated that Officer Bryant had stated he was

not aware of appellant’s attempts to grab his service weapon. He conceded that the word

“grabbed” appeared in the field report in reference to Officer Sheehan’s service weapon.

He also determined, based on his investigation, to present the case to a prosecutor.

{¶ 11} Photographs were taken of appellant following the altercation with the

inmate. The photographs depicted bruising to her left shoulder, redness on her right

shoulder, a cut to her lower left face near her neck line, and a cut to her forehead. Police

photographs of Officer Sheehan showed saliva on his uniform, as well as scratches and

bite marks on certain parts of his body. DNA evidence could not exclude the saliva on

Officer Sheehan’s uniform from belonging to appellant. No visible prints were found on

the officers’ guns. The state also introduced evidence demonstrating that the police

officers were not issued tasers until January 2010, which was after the incident herein.

{¶ 12} As a result of the incidents occurring at appellant’s home and at the jail,

appellant was charged in two separate cases. In State v. Whitby, Cuyahoga C.P. No.

CR-526567 (Mar. 8, 2011), she was indicted for one count of felonious assault on a peace

officer (R.C. 2903.11(A)(1)), two counts of assault on a peace officer (R.C.

2903.13(C)(3)), two counts of aggravated robbery (R.C. 2911.01(B)(1)), two counts of

resisting arrest (R.C. 2921.33(B)), and one count of endangering children (R.C. 2919.22(A)). Appellant’s mother was indicted as a codefendant for obstruction of

justice. The first charge of felonious assault later was nolled, and the remaining count

numbers were adjusted. In State v. Whitby, Cuyahoga C.P. No. CR-532867 (Feb. 7,

2011), appellant was indicted for felonious assault on a peace officer (R.C.

2901.11(A)(1)) and assault against a corrections officer (R.C. 2903.13(A)).

{¶ 13} The trial court denied a motion to sever the cases. The court also refused

to grant an oral motion made by the codefendant’s counsel for the transcription of the

grand jury testimony of the two officers testifying in the case. Ultimately, the cases

proceeded to a jury trial. The trial court denied appellant’s Crim.R. 29 motion, which

was made at the close of the state’s case and at the close of the defense’s case in chief.

{¶ 14} In Cuyahoga C.P. No. CR-526567, appellant was found guilty of one count

of assault on a peace officer and two counts of resisting arrest. She was found not guilty

of the remaining counts. In Cuyahoga C.P. No. CR-532867, appellant was found not

guilty on all counts. The trial court sentenced appellant to a prison term of six months

for the assault on a peace officer count, and to time served for the resisting arrest counts.

The court ordered her to pay her court costs and $40 in restitution to Officer Sheehan.

The court also advised appellant of postrelease control.

{¶ 15} Appellant filed this appeal, raising five assignments of error for our review.

Her first assignment of error provides as follows: “I. The appellant and certain jurors

were denied equal protection of the laws by the state’s systematic exclusion of

prospective jurors solely because of their race and gender.” {¶ 16} Appellant argues that the state engaged in race and/or gender discrimination

when exercising three of its peremptory challenges and offered no more than perfunctory

responses to appellant’s Batson claim.

{¶ 17} In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),

the United States Supreme Court recognized that the Equal Protection Clause of the

United States Constitution prohibits the use of peremptory challenges in a discriminatory

manner to exclude potential jurors solely on account of their race. Id. at 89; see also

State v. Hernandez, 63 Ohio St.3d 577, 581, 589 N.E.2d 1310 (1992).

A court adjudicates a Batson claim in three steps. First, the opponent of the peremptory challenge must make a prima facie case of racial discrimination. Second, if the trial court finds this requirement fulfilled, the proponent of the challenge must provide a racially neutral explanation for the challenge. Third, the trial court must decide, based on all the circumstances, whether the opponent has proved purposeful racial discrimination. A trial court’s finding of no discriminatory intent will not be reversed on appeal unless clearly erroneous.

In step three, the trial court may not simply accept a proffered race-neutral reason at face value, but must examine the prosecutor’s challenges in context to ensure that the reason is not merely pretextual. (Citations and quotations omitted.) State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 64-65.

{¶ 18} Here, three of the five jurors excused by the state through its peremptory

challenges were African-American. After defense counsel raised a Batson challenge, the

state offered the following reasons for excluding the prospective jurors. Juror No. 3 was

excused because of “some of the responses about how he feels about police officers.”

During voir dire, the juror indicated that he had negative experiences with police officers

as the victim of a robbery. Juror No. 12 was excused because “he seemed to have a lack of interest when being questioned.” Juror No. 13 was excused for being vague in her

description of her husband’s employment with the Sheriff’s Department and being

evasive regarding her own employment history. After considering the arguments of

counsel, the trial court accepted the state’s race-neutral reasons. In the end, the jury was

comprised of nine women and three men, and two of the jurors were African-American.

{¶ 19} The state cites other cases in which similar reasons for excusing jurors have

been found legitimate and non-discriminatory. See State v. Ford, 8th Dist. No. 90834,

2008-Ohio-5471, 2008 WL 4681786 (negative experiences with police); State v.

Williams, 8th Dist. No. 96244, 2011-Ohio-4126, 2011 WL 3654012 (uninterested in

proceeding); State v. Tichavakunda, 8th Dist. No. 78775, 2001 WL 1001103 (Aug. 23,

2001) (evasive responses). Upon our review, we do not find the trial court’s decision

was clearly erroneous. Appellant’s first assignment of error is overruled.

{¶ 20} Appellant’s second assignment of error provides as follows: “II. The

appellant was denied her constitutional right of due process based upon the failure of the

court to sever the two cases for purposes of trial.”

{¶ 21} Under Crim.R. 13, a court may order two or more cases be tried together “if

the offenses * * * could have been joined in a single indictment * * *.” Pursuant to

Crim.R. 8(A), two or more offenses may be joined if the offenses “are of the same or

similar character * * * or are based on two or more acts or transactions connected

together or constituting parts of a common scheme or plan, or are part of a course of

criminal conduct.” While the law favors the joinder of offenses that are of the “same or similar character,” a defendant may move to sever the charges under Crim.R. 14 upon a

showing of prejudice. State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990).

The defendant, however, bears the burden of proving prejudice and of proving that the trial court abused its discretion in denying severance.

The state may rebut a defendant’s claim of prejudicial joinder in two ways. First, if in separate trials the state could introduce evidence of the joined offenses as “other acts” under Evid.R. 404(B), a defendant cannot claim prejudice from the joinder. Second, the state can refute prejudice by showing that “evidence of each crime joined at trial is simple and direct.” (Internal citations omitted.) State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 95-96.

{¶ 22} Because appellant did not renew her objection to joinder at the close of

evidence, she has waived all but plain error. See State v. Miller, 105 Ohio App.3d 679,

691, 664 N.E.2d 1309 (4th Dist.1995); State v. Ferren, 8th Dist. No. 95094,

2011-Ohio-3382, 2011 WL 2651090, ¶ 34. Here, the charges in each case involved

appellant’s alleged assault against peace officers. The alleged acts were committed on

the night of April 25, 2009 and into the early morning hours of April 26, 2009. The first

action stemmed from the incident involving the police officers at appellant’s home, while

the second action stemmed from the incident with the corrections officer at the jail

following the earlier arrest. Only a few hours separated these incidents. The trial court

specifically instructed the jury that “the charges in the indictments constitute separate and

distinct matters” and to consider each count separately. The evidence in each matter was

simple and direct such that the jury was readily able to segregate the proof on each

charge, as demonstrated by their acquittal on all charges in Cuyahoga C.P. No.

CR-532867. {¶ 23} Upon our review, we find the trial court properly joined the action and the

claim of prejudicial joinder was refuted. Accordingly, appellant has not demonstrated

error, let alone plain error, in the trial court’s failure to sever the two cases for purposes of

trial. Appellant’s second assignment of error is overruled.

{¶ 24} Appellant’s third assignment of error provides as follows: “III. The

evidence was insufficient to sustain a finding of guilty because the state failed to present

evidence to establish beyond a reasonable doubt the elements necessary to support the

conviction.”

{¶ 25} When an appellate court reviews a claim of insufficient evidence, “‘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. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492, paragraph two of the syllabus (1991). The weight to be given the evidence

and the credibility of the witnesses are primarily for the trier of fact. State v. Tenace, 109

Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. 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. Id.

{¶ 26} Appellant was convicted of one count of assault on a peace officer in

violation of R.C. 2903.13(C)(3), which provides: “No person shall knowingly cause or attempt to cause physical harm to another * * *. If the victim is a peace officer * * *

assault is a felony of the fourth degree.”

{¶ 27} Appellant was also convicted of two counts of resisting arrest in violation

of R.C. 2921.33(B), which provides: “No person, recklessly or by force, shall resist or

interfere with a lawful arrest of the person * * * and, during the course of or as a result of

the resistance or interference, cause physical harm to a law enforcement officer.”

{¶ 28} Our review of the record reflects that Officers Sheehan and Bryant testified

that they responded to appellant’s home after the police received a 911 call from

appellant’s father reporting that his daughter “came in drunk and she is kind of out of

control.” When the police arrived, they observed the appellant screaming, swearing, and

foaming from her mouth. When Officer Sheehan attempted to stop appellant from

charging her father, she cursed and spit at Officer Sheehan and attempted to punch him.

She continued to assault the officer as he tried to handcuff her. After being placed in

handcuffs, she was spitting, kicking, and biting at the officers.

{¶ 29} While there were some inconsistencies in the testimony of the officers, a

review of the entire record shows that their testimony was neither inherently unreliable

nor unbelievable. Photographs were introduced depicting saliva on Officer Sheehan’s

uniform, a scratch on his neck, and bite marks on his arm. DNA testing could not

exclude appellant as the source of saliva.

{¶ 30} The defense witnesses offered a different account of events, suggesting

police brutality. However, appellant’s booking photo, which was taken after her fight with another inmate, depicted only minor injuries. Also, there were some inconsistencies

in the testimony of the witnesses, and there was evidence rebutting the claimed use of

tasers by the police officers. The jury was able to consider the credibility of the

witnesses and weigh the evidence presented.

{¶ 31} Sufficient evidence was presented to establish that appellant knowingly

committed assault against a peace officer and forcefully resisted a lawful arrest. We

find, when viewing the evidence in a light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the offenses proven beyond a

reasonable doubt. Appellant’s third assignment of error is overruled.

{¶ 32} Appellant’s fourth assignment of error provides as follows: “IV.

Appellant’s convictions were against the manifest weight of the evidence.”

{¶ 33} In reviewing a claim challenging the manifest weight of the evidence, the

question to be answered is whether

there is substantial evidence upon which a jury could reasonably conclude that all the elements have been proved beyond a reasonable doubt. In conducting this review, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether 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. (Internal citations and quotations omitted.) Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, at ¶ 81.

{¶ 34} Appellant’s argument is based on the credibility of the officers and the

inconsistencies in their testimony. Though there were some discrepancies, the testimony

of the officers was fairly consistent. The officers detailed appellant’s assault on Officer

Sheehan and her subsequent resistance to arrest. The jury chose to believe the officers’ account of events. After carefully reviewing the record, weighing the evidence, and

considering witness credibility, we cannot say the jury clearly lost its way and created a

manifest miscarriage of justice in convicting appellant of the assault on a peace officer

and resisting arrest charges. Appellant’s fourth assignment of error is overruled.

{¶ 35} Appellant’s fifth assignment of error provides as follows: “Appellant was

denied her constitutional right of due process and to confront her accusers when the trial

court failed to allow defense counsel an in camera inspection of the grand jury

testimony.”

{¶ 36} The oral motion for the grand jury transcripts was made by the

codefendant’s counsel. Because appellant never requested the transcripts or objected to

the denial of the same, she has waived all but plain error. See State v. Jennings, 10th

Dist. Nos. 09AP-70 and 09AP-75, 2009-Ohio-6840, 2009 WL 5062117, ¶ 27; State v.

Crosky, 10th Dist. No. 06AP-816, 2007-Ohio-6533, 2007 WL 4285153, ¶ 23, fn. 3

(“Appellant’s failure to object, notwithstanding her co-defendant’s objection, waives all

but plain error”).

{¶ 37} The Ohio Supreme Court has recognized a limited exception to the general

rule of grand jury secrecy:

[A]n accused is not entitled to review the transcript of grand jury proceedings unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy. A particularized need is established when the circumstances reveal a probability that the failure to provide the grand jury testimony will deny the defendant a fair trial. Determining whether a particularized need exists is a matter within the trial court’s discretion. (Internal citations and quotations omitted.) State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 41.

{¶ 38} Further, a speculative claim that the grand jury testimony might contain

material evidence or might aid in cross-examination does not establish a particularized

need. Id. at ¶ 44.

{¶ 39} Here, the stated need for the grand jury testimony was counsel’s desire to

review the testimony for possible impeachment of the officers. Information concerning

the testimony was purportedly provided by the grand jury foreman who signed the

indictments. The trial court noted that the foreman had arguably violated his grand jury

oath, and found the defense still had not demonstrated any particular need. It further

deferred any ruling until the filing of a written motion. No such motion was filed.

{¶ 40} Our review reflects that the request was based on no more than a

speculative belief that the grand jury testimony might contain inconsistencies. Ohio

courts have consistently found that a particularized need is not shown by anticipated

inconsistencies. State v. Godfrey, 181 Ohio App.3d 75, 2009-Ohio-547, 907 N.E.2d

1230 (3d Dist.), ¶ 16; State v. Luks, 8th Dist. No. 89869, 2008-Ohio-3974, 2008 WL

3126177, ¶ 48. Crosky, 2007-Ohio-6533, 2007 WL 4285153, at ¶ 124.

{¶ 41} Finding no error by the trial court, we overrule appellant’s fifth assignment

of error.

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 conviction 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.

SEAN C. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, P.J., and EILEEN A. GALLAGHER, J., CONCUR