Opinion
109976
07-29-2021
STATE OF OHIO, Plaintiff-Appellee, v. MAURICE ROBINSON, Defendant-Appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Amanda Hall, Assistant Prosecuting Attorney, for appellee. Friedman | Gilbert | Gerhardstein, and Marcus S. Sidoti, for appellant.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-20-647378-A and CR-20-650170-A
JUDGMENT: AFFIRMED
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Amanda Hall, Assistant Prosecuting Attorney, for appellee.
Friedman | Gilbert | Gerhardstein, and Marcus S. Sidoti, for appellant.
JOURNAL ENTRY AND OPINION
SEAN C. GALLAGHER, JUDGE
{¶ 1} Maurice Robinson appeals his convictions on two counts of aggravated menacing in violation of R.C. 2903.21(A) and one count of aggravated assault in violation of R.C. 2903.12. The offenses were committed against two victims on separate days as charged in separate indictments. Robinson was sentenced to six months on each count to be concurrently served, but consecutive to a nine-month term imposed on a parole violation. We affirm.
{¶ 2} Robinson was cleaning his girlfriend's father's home when the father returned. Robinson and the father had a good relationship, but Robinson has a drug problem that at times interferes with his interactions. On the day of the incident, Robinson began arguing with the father about the father being a "snitch" and Robinson pulled a knife, threatening the father. Although the father testified to not being in fear of Robinson, he stated his belief that Robinson intended to stab him with the knife. The father had a cast on his arm at the time and used that to keep Robinson's "jukes" and "jabbing" motions with the knife at bay. The father clarified in his testimony that Robinson appeared intent on actually stabbing him.
{¶ 3} In the second incident, perpetrated against Robinson's girlfriend, police officers responded to an emergency call claiming that Robinson was naked and chasing the victim down the street with a knife. When officers arrived, the victim was hysterical and bleeding from a cut on her mouth that required stitches. The victim told the officers that Robinson had cut her with a knife. When the officers arrested Robinson in his apartment, they found blood droplets on the floor throughout the apartment and damage to the bathroom door that appeared to have been kicked in. Although Robinson had been injured in the altercation, the responding officers noted that the amount of blood found in the apartment was disproportionate to Robinson's injuries. Upon being arrested, Robinson provided a voluntary statement in which he claimed that the victim attacked him with a knife so he fought back, forcing the victim to barricade herself in the bathroom and that she escaped through the bathroom window as Robinson chased her from the apartment. Finally, the emergency call that was recorded and introduced at trial indicated that Robinson, armed with a knife, was chasing the victim down the street
Robinson does not challenge the introduction of the recording of the anonymous call as authenticated by the call-center employee who answered the call. It suffices for our purposes, however, that such a claim would be misplaced. State v. Szafranski, 2019-Ohio-4349, 147 N.E.3d 1173, ¶ 50 (8th Dist.).
{¶ 4} In the first assignment of error, Robinson claims that his conviction for aggravated menacing as committed against the father was against the weight of the evidence. When reviewing a claim challenging the weight of the evidence, the court, reviewing the entire record, must weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact 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, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). When a court of appeals concludes that a verdict is against the weight of the evidence, "the appellate court sits as the 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." Id. at 388. "[A]n appellate court's disagreement with the [finder of fact's] weighing of the evidence does not require the special deference accorded verdicts of acquittal." Id. A judgment of conviction should be reversed as against the manifest weight of the evidence only in the exceptional case in which the evidence weighs heavily against the conviction. Id. at 387, citing Martin at 175.
{¶ 5} Under R.C. 2903.21(A), "no person shall knowingly cause another to believe that the offender will cause serious physical harm to the person." "For the offense of aggravated menacing, '[i]t is sufficient to prove that the victim, in the moment, believed the defendant to be in earnest and capable of acting.' 'Evidence of a person's belief that an offender will cause serious physical harm can be proven with circumstantial evidence.'" Cleveland v. Garrett, 8th Dist. Cuyahoga No. 106512, 2018-Ohio-4713, ¶ 19, quoting Cleveland v. Reynolds, 8th Dist. Cuyahoga No. 105546, 2018-Ohio-97, ¶ 6. Although not always the case, stabbing another with a knife can result in the causing of serious physical harm. State v. Simmons, 8th Dist. Cuyahoga No. 97557, 2012-Ohio-3454, ¶ 17 (the stabbing that punctured the lungs of the victim constituted serious physical harm); State v. Davis, 10th Dist. Franklin No. 19AP-521, 2020-Ohio-4202, ¶ 22 (without evidence as to the severity of the stabbing, it was deemed unclear whether the stabbing actually resulted in serious physical harm although such a conclusion was possible).
{¶ 6} Since Robinson was convicted of aggravated menacing, the sole question is whether his conduct led the father to believe that Robinson intended to cause serious physical harm, not whether the harm was actually caused or whether the father was generally afraid of Robinson. At the onset, we must distinguish one recurrent theme in Robinson's brief. Robinson claims that because the father testified to not being in fear of Robinson, the state was unable to prove that the father believed that Robinson would cause serious physical harm.
{¶ 7} Regardless, according to the single paragraph of argument provided in the appellate briefing, Robinson claims that
[i]n the instant matter, a conviction for aggravated menacing would require the State of Ohio to prove that TW believed that the Appellant was going to cause him serious physical harm. The State of Ohio failed to so do. TW's testimony was, at best, contradictory. He indicated he wanted to tell the truth, yet he told different stories multiple times. Upon direct examination, he was fearful. Upon cross examination, he told his truth-that he was not afraid of the Appellant. (Tr. at 41). With this testimony it becomes incomprehensible that the Appellant would be convicted of causing TW to believe he was at risk of serious physical harm. As such, this conviction must be reversed and vacated.
Robinson has failed to identify the multiple inconsistencies from the father's testimony in the record as alluded to in the cursory argument. App.R. 16(A)(7).
{¶ 8} Nevertheless, although the father's testimony could be construed as his not being afraid of Robinson, the father expressly believed that Robinson intended to stab him and the father testified to having to deflect or dodge Robinson's attempts and testified that Robinson was capable of stabbing him during the altercation. That testimony alone is sufficient to sustain the conviction, but more importantly, the father's testimony was not inherently unreliable such that this case presents the exceptional case in which appellate intervention is necessary. The father explicitly indicated that he and Robinson were on good terms when Robinson was not under the influence of drugs. Although the father appeared reluctant to testify against Robinson, there is credible evidence that Robinson was attacking the father with a knife with the intent to actually stab him, regardless of the father's overall fear during the attack, and therefore, the state proved beyond a reasonable doubt that that Robinson committed the aggravated menacing crime. The first assignment of error is overruled.
{¶ 9} In the second assignment of error, Robinson claims that the trial court erred by permitting the state to introduce the victim's statements under Evid.R 804(B)(6), which provides an exception to the preclusion of hearsay for a "statement offered against a party if the unavailability of the witness is due to the wrongdoing of the party for the purpose of preventing the witness from attending or testifying." During pretrial proceedings, the state noticed its intent to introduce the victim's interview statements through the officers' testimony based on Robinson's attempts to urge the victim to ignore the state's subpoena and to not testify against him at trial, all of which were recorded on a jail-house phone call.
{¶ 10} Although the trial court overruled Robinson's motion in limine to preclude the state from introducing the victim's statements under Evid.R. 804(B)(6), the state nevertheless avoided invoking that evidentiary rule at trial. Tellingly, Robinson does not identify any statements at trial that were introduced under Evid.R. 804(B)(6). The state concedes that the responding officer testified to the initial statements made by the victim when she first approached the officers who responded to the emergency call and was in a hysterical state - the victim was bleeding and frantically told the officer that Robinson had cut her with a knife. That evidence was admissible under Evid.R. 803(2) as an excited utterance regardless of the witness's availability and is outside the scope of Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
{¶ 11} The Confrontation Clause generally precludes the introduction of testimonial statements at trial. Crawford, 541 U.S. at 54. "[N]ot all those questioned by the police are witnesses and not all 'interrogations by law enforcement officers' * * * are subject to the Confrontation Clause." Michigan v. Bryant, 562 U.S. 344, 355, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), quoting Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). "A 911 call * * * and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to 'establish or prove' some past fact, but to describe current circumstances requiring police assistance." (Emphasis added.) Davis, 547 U.S. at 827. Since the victim's statement, made immediately upon the police officer's responding to the emergency call, was admissible under the excited utterance doctrine of Evid.R. 803(2) regardless of the witness's availability, there was no error in its introduction.
{¶ 12} Importantly, the introduction of that one statement was not dependent on Evid.R. 804(B)(6), which was solely implicated by the pretrial motion in limine, the only argument presented by Robinson. "It is the long-standing practice of courts to decide only issues presented by the facts and to refrain from deciding issues that the facts do not place directly in issue." Allen v. Totes/Isotoner Corp., 123 Ohio St.3d 216, 2009-Ohio-4231, 915 N.E.2d 622, ¶ 9. Further, "'a ruling on a motion in limine may not be appealed and * * * objections * * * must be made during the trial to preserve evidentiary rulings for appellate review.'" State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 70, quoting Gable v. Gates Mills, 103 Ohio St.3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, ¶ 34. In light of the fact that Robinson constrained his appellate analysis to a pretrial evidentiary ruling that was not implicated at trial, any decision we could render based on the argument presented would be purely advisory and is not capable of being reviewed. The second assignment of error is, therefore, overruled.
{¶ 13} The convictions are 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 convictions 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.
MARY J. BOYLE, A. J., and LARRY A. JONES, SR., J., CONCUR.