Opinion
No. 14AP-826
03-03-2016
State of Ohio, Plaintiff-Appellee, v. Beau A. Stephenson, Defendant-Appellant.
On brief: Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee. Argued: Laura R. Swisher On brief: Nemann Law Offices, and Adam Lee Nemann, for appellant. Argued: Adam Lee Nemann
(C.P.C. No. 13CR02-679) (REGULAR CALENDAR) DECISION On brief: Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee. Argued: Laura R. Swisher On brief: Nemann Law Offices, and Adam Lee Nemann, for appellant. Argued: Adam Lee Nemann APPEAL from the Franklin County Court of Common Pleas KLATT, J.
{¶ 1} Defendant-appellant, Beau A. Stephenson, appeals from a judgment of conviction entered by the Franklin County Court of Common Pleas. For the following reasons, we affirm that judgment.
I. Factual and Procedural Background
{¶ 2} On February 8, 2013, a Franklin County Grand Jury indicted appellant with two counts of aggravated robbery in violation of R.C. 2911.01, and kidnapping in violation of R.C. 2905.01, and single counts of aggravated murder in violation of R.C. 2903.01, murder in violation of R.C. 2903.02, attempted murder in violation of R.C. 2903.02, tampering with evidence in violation of R.C. 2921.12 and having a weapon while under disability in violation of R.C. 2923.13. The charges arose out of the shooting death of Christopher Manley. Appellant entered a not guilty plea and proceeded to a jury trial.
All counts but the weapon while under disability count also contained a firearm specification pursuant to R.C. 2941.145.
{¶ 3} At trial, the jury heard two different versions of events leading to Manley's death. The state presented the testimony of Henry Romine. Manley was Romine's nephew and the two men lived together in a trailer on Harmon Avenue in Columbus, Ohio. Manley sold drugs out of the trailer. At some point in the early morning hours of January 28, 2013, appellant came to the trailer. Through the trailer's security system, Romine could see who was outside of the trailer on the television. Romine recognized appellant as someone who had previously been at the trailer to buy drugs from Manley so he told Manley that appellant was outside. Manley told Romine to let appellant in the trailer. Appellant entered the trailer and joined Manley in the kitchen where they ingested drugs as Romine watched television in another room.
{¶ 4} Romine then heard a scuffle in the kitchen. He looked into the kitchen and saw appellant holding one of Manley's guns, a .45 caliber handgun, to Manley's head. Appellant ordered both men to the floor. Appellant then told Manley to give him all his money and drugs. Manley emptied his pockets and gave appellant everything he had. Appellant then asked Manley for the location of the safe. Manley tried to get the key out of his pocket but a scuffle erupted between Manley and appellant over the key. Romine never saw Manley with possession of the gun. Romine started toward the men and heard a shot. Manley had been shot and fell to the ground. Appellant then pointed the gun at Romine and asked him for the safe. Romine told him the safe was in the bedroom. The two men went to the bedroom where Romine gave appellant the safe, which contained some jewelry and money. Appellant then ordered Romine to give him the security camera footage. Romine tried to trick him by giving him a speaker from the entertainment system, but that did not fool appellant, who threw the speaker down and demanded the surveillance footage. So Romine disconnected the security system and let appellant have it, including the hard drive that contained the footage of the night's events. Appellant then left the trailer with a bag full of drugs, money, jewelry, and the surveillance equipment and got into a waiting car outside.
{¶ 5} Manley died from a single gunshot wound to his upper chest. The coroner testified that the wound was caused by a gun shot at close range although not in contact with Manley's skin.
{¶ 6} Appellant presented a different version of events. He testified that he met Manley shortly before his death when a friend took him to Manley's trailer to buy some drugs and to inquire about doing business together. Appellant gave Manley some counterfeit money to pay for the drugs during this meeting. Shortly after that meeting, appellant arranged another meeting with Manley to buy more drugs and to talk about business again. Appellant and his girlfriend, Cassandra McBee, drove to the trailer. McBee stayed in the car while appellant went inside the trailer. He and Manley went into the kitchen and started talking. Manley then accused appellant of using counterfeit money when appellant previously bought drugs from him. Appellant denied using counterfeit money and reached for a pepper gel spray can he had in his pocket. Manley became more upset with appellant and reached for a gun he had holstered on his hip. Appellant saw this and lunged toward Manley. At that time, appellant saw Manley pull the gun out of the holster. Appellant grabbed the barrel of the gun and also pulled the spray can out of his pocket and started spraying pepper spray at Manley. The two men were both holding and fighting for the gun when it fired, hitting Manley. At that point, the gun dropped between appellant and Manley. Romine started to walk into the kitchen, so appellant picked up the gun, pointed it at him and told him to stay away. Appellant walked out of the kitchen to get out of the trailer. On his way, he took a plastic bag with marijuana in it and threw the gun inside the bag. Appellant ran outside to the car with the bag and drove away with McBee. Appellant denied knowing anything about the trailer's surveillance system or asking for money or a safe.
{¶ 7} Appellant argued to the jury that he acted in self-defense. The jury rejected his claim, finding him guilty of all counts except for the aggravated murder of Manley and the attempted murder of Romine. The trial court sentenced him accordingly.
II. The Appeal
{¶ 8} Appellant appeals and assigns the following errors:
[1.] The trial court committed error when it admitted the testimony of Cassandra [McBee].
[2.] The prosecutor committed prosecutorial misconduct by making improper statements during trial.
[3.] The verdict was against the manifest weight of the evidence.
[4.] The evidence was insufficient to sustain a verdict of guilty.
A. First Assignment of Error—The Testimony of Cassandra McBee
{¶ 9} Appellant argues in this assignment of error that the trial court should not have allowed Cassandra McBee to testify at his trial. We disagree.
{¶ 10} At the time of Manley's death, McBee and appellant lived together with McBee's two children. They had been dating for three years and were engaged to be married. She testified that she drove appellant to Manley's trailer to purchase drugs. She stayed in the car for 15 to 20 minutes while appellant was inside the trailer. Appellant returned to the car with a pillow case that he threw into the car's backseat. McBee then drove them to a hotel room. At the hotel, appellant took the pillow case into the room and told McBee to go back to their house to check on the kids and to get him a change of clothes. She thought something was wrong, but appellant refused to tell her anything. After returning from their house, McBee drove appellant to West Jefferson and, on the way, appellant reached into the pillowcase and took out a gun, which he threw out of the car. He continued not to tell her anything about what had happened. She dropped him off at a friend's house and picked him up again about one and one-half hours later. While appellant did not have the pillowcase anymore, he had a plastic bag that contained cell phones and a hard drive in it. They drove to an apartment complex near their house where appellant threw the plastic bag and its contents into a trash dumpster. They then went home, where police later arrested appellant.
{¶ 11} Relevant to this assignment of error, however, is the fact that Javier Armengau represented appellant on these charges upon the filing of the indictment in February 2013. Armengau also briefly represented McBee on unrelated pending drug charges. Additionally, sometime around May 2013, unbeknownst to appellant at the time, McBee and Armengau began a sexual relationship. By June 2013, the trial court had disqualified Armengau from representing appellant because of his dual representation of McBee and appellant and the strong likelihood of a conflict of interest. This court affirmed that decision. State v. Stephenson, 10th Dist. No. 13AP-609, 2014-Ohio-670. For a short time in the spring of 2014, while McBee and Armengeau were romantically involved, McBee also worked at Armengau's law office. It appears that she helped him move offices.
That relationship apparently continued until shortly before appellant's trial, which occurred in August 2014. --------
{¶ 12} At trial, appellant's counsel requested the trial court to prohibit McBee from testifying based on a concern that she had been "tainted" and that she may have seen privileged information relevant to appellant's case while working at Armengau's office. The trial court denied that request, concluding that no evidence supported appellant's allegation that McBee looked at privileged information.
{¶ 13} Appellant argues that the trial court's decision was erroneous. He argues that her personal knowledge of the facts in this case has been "irrevocably altered" because of the information McBee learned from documents in Armengau's office. He argues that the relationship between McBee and Armengau developed into an attorney-client relationship that included appellant. He also argues that McBee's value as a fair witness was substantially compromised simply due to the "tangled web of events" that occurred in this case and Armengau's or McBee's conflict of interest. These arguments fail to address how they would render McBee's testimony inadmissible as a matter of law.
{¶ 14} In large part, these arguments are premised on the underlying assumption that McBee learned privileged information from looking at appellant's file while she worked for Armengau. At a hearing on this issue, a defense witness testified that McBee stated that she intended to look at appellant's file while she worked at Armengau's office. (Tr. Vol. 2, 56-58.) The witness did not know whether McBee actually looked at the file. (Tr. Vol. 2, 69.) The trial court, however, rejected that premise and factually found that there was no evidence that McBee looked at appellant's file. (Tr. Vol. 2, 86.) That finding is supported by competent and credible evidence. McBee testified that she did not have access to or look through appellant's file while working at Armengau's office. (Tr. Vol. 2, 17; Vol. 3, 49, 74-75.)
{¶ 15} Additionally, trial counsel questioned McBee extensively about the "tangled web of events" that occurred in this case in an attempt to impeach her credibility. These issues do not implicate the admissibility of her testimony but concern the weight of that testimony. Thus, trial counsel properly questioned her about those issues, and the jury was well aware of all the events surrounding McBee, Armengau and appellant. The jury could consider those events when weighing the credibility of McBee's testimony.
{¶ 16} The trial court did not err by allowing McBee to testify at trial. Accordingly, we overrule appellant's first assignment of error.
B. Second Assignment of Error—Prosecutorial Misconduct
{¶ 17} Appellant argues in his second assignment of error that the prosecutor engaged in misconduct during closing arguments by suggesting that appellant's self-defense claim was untruthful and fabricated only after he discovered that McBee would be testifying for the state. We disagree.
{¶ 18} To evaluate allegations of prosecutorial misconduct, we determine (1) whether the prosecutor's conduct was improper and (2) if so, whether it prejudicially affected appellant's substantial rights. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 121. Because prosecutorial misconduct implicates due-process concerns, "[t]he touchstone of the analysis 'is the fairness of the trial, not the culpability of the prosecutor.' " State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, ¶ 200, quoting Smith v. Phillips, 455 U.S. 209, 219 (1982).
{¶ 19} In 2013, McBee originally told investigators that she and appellant were at home at the time of the offenses. She lied to protect both appellant and herself. (Tr. Vol. 2, 124.) Later, she told investigators that appellant had left the house that night alone and that she stayed at home. (Tr. Vol. 4, 168.) She continued not to tell the police everything that occurred that night in an attempt to protect appellant. (Tr. Vol. 2, 126.) Appellant knew this and wrote to McBee that "I'm gonna get out of here. I swear. Javier said that you don't have anything to worry about, it's been 14 months and you haven't went to their side. He said if they was gonna do anything to you they would have done it already, and they got to know your gonna stay out of it. If you stay - if you stay out of it and [Romine] don't show up it will be dismissed baby." (Tr. Vol. 4, 146.) Appellant thought that if McBee and Romine did not testify, the state would have no case against him. (Tr. Vol. 4, 152-53.)
{¶ 20} Nevertheless, appellant was constantly worried that McBee would not stay on his team. (Tr. Vol. 2, 127.) The prosecutor repeatedly questioned appellant about his concerns about McBee and his numerous attempts to keep McBee "on his team" and "on his side." Appellant's trial counsel also questioned appellant about McBee being on his team and appellant's concerns about her testifying. (Tr. Vol. 4, 121-23.) Appellant admitted that he had concerns about McBee cooperating with the state and his concern grew as McBee's criminal case came closer to trial. (Tr. Vol. 4, 139-40, 150-52, 183.)
{¶ 21} In early 2014, McBee entered into an agreement with the state in which she agreed to provide the police with additional information and to testify against appellant in exchange for a reduction in the criminal charges she faced. Significantly, in addition to what she testified to above, she also told police that when appellant came out of the trailer, he did not mention that he shot Manley, even in self-defense. (Tr. Vol. 3, 62.) In contrast, appellant testified that when he got into the car with McBee after leaving the trailer, he told her that Manley pulled a gun on him and that they got into a struggle for the gun. He said the gun went off and that Manley had been shot. (Tr. Vol. 4, 92.)
{¶ 22} During cross-examination, the prosecutor asked appellant when he decided to present a self-defense theory at trial and whether that decision occurred only after McBee agreed to testify on behalf of the state. The trial court sustained appellant's trial counsel's objections to those questions on the theory that the question involved legal terminology that appellant would not understand. (Tr. Vol. 4, 205, 215-16.) In closing argument, the prosecutor again raised appellant's self-defense theory, stating that:
It was an identity case. And I submit to you it was an identity case from his perspective all the way until Casey [McBee] switched sides. And then once Casey switches sides, you can't argue it's not me there, baby. You got to come up with something else. And they did. Self-defense. But you can tell from his actions that it wasn't self-defense from the start in this case. You can tell that not from his words but from his actions.(Tr. Vol 5, 37.) Later on in the argument, the prosecutor commented similarly:
Again, folks, the defense that this man is going with on January 28, 29, 30 and on and on isn't self-defense. You can tell that from his actions. It also became self-defense when [McBee] switched teams and you couldn't argue anymore not me, wasn't there.(Tr. Vol. 5, 49-50.)
{¶ 23} The prosecutor went on to argue how appellant's actions after the shooting were inconsistent with his current claim of self-defense. Specifically, he did not contact the police or tell McBee that he shot in self-defense and that he threw the gun out of the car after the shooting. Lastly, the prosecutor also argued that if appellant had truly told McBee that the shooting was in self-defense, why would McBee originally lie to police and tell them that they were not there, when self-defense would be a defense that would have assisted his case. The prosecutor argued that McBee did not tell the police that appellant acted in self-defense because she and appellant had agreed to tell the police another story when she was still "on his team." Their plan was to prevent the prosecution from proving appellant shot Manley. According to the prosecutor, that is why appellant was so concerned about McBee staying on his team. That plan evaporated, however, when McBee agreed to testify against him.
{¶ 24} Appellant now argues that the prosecutor's comments about his self-defense theory constitute prosecutorial misconduct. We disagree.
{¶ 25} Because appellant's trial counsel did not object to any of the prosecutor's comments, we only review for plain error. State v. Hunt, 10th Dist. No. 12AP-1037, 2013-Ohio-5326, ¶ 17. Under Crim.R. 52(B), plain errors affecting substantial rights may be noticed by an appellate court even though they were not brought to the attention of the trial court. To constitute plain error, there must be: (1) an error, i.e., a deviation from a legal rule, (2) that is plain or obvious, and (3) that affected substantial rights, i.e., affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Even if an error satisfies these prongs, appellate courts are not required to correct the error. Appellate courts retain discretion to correct plain errors. Id.; State v. Litreal, 170 Ohio App.3d 670, 2006-Ohio-5416, ¶ 12 (10th Dist.). Courts are to notice plain error under Crim. R. 52(B) " 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.' " Barnes, quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of syllabus; Hunt.
{¶ 26} As a general matter, it is improper for a prosecutor to express his or her personal belief or opinion on the credibility of a witness. State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 197. Neither should the state unfairly suggest that a defense case was untruthful or not honestly presented. Id. at ¶ 194; State v. Canterbury, 4th Dist. No. 13CA34, 2015-Ohio-1926, ¶ 25. However, a prosecutor "may draw reasonable inferences from the evidence presented at trial, and may comment on those inferences during closing argument." State v. Treesh, 90 Ohio St.3d 460 (2001). Further, "the prosecutor may comment fairly on the credibility of witnesses based on their in-court testimony, or may even suggest to a jury that the evidence demonstrated that the witness was lying." State v. Jones, 2d Dist. No. 18789, 2002-Ohio-1780. "It is not prosecutorial misconduct to characterize a witness as a liar or a claim as a lie if the evidence reasonably supports the characterization." State v. Stroud, 2d Dist. No. 18713, 2002-Ohio-940, citing State v. Gunn, 2d Dist. No. 16617 (Aug. 7, 1998); State v. Canada, 10th Dist. No. 14AP-523, 2015-Ohio-2167. Prosecutors are given wide latitude in summation regarding what the evidence has shown and the reasonable inferences that can be drawn therefrom. State v. Lott, 51 Ohio St.3d 160, 165 (1990).
{¶ 27} The prosecutor's comments about appellant's self-defense theory and its relation to McBee's agreement to testify were reasonable inferences from the evidence presented at trial. During this trial, there was significant testimony about appellant's worry and concern over the nature of McBee's anticipated testimony. Originally, McBee told investigators that she and appellant were not at the trailer at the time of the murder. Later, she only told investigators that she was not present. Either way, appellant benefitted because he could claim he was not there and McBee could not testify about events that took place when she was not present. However, when it became clear that McBee would testify for the state and that she would place appellant at the scene of the murder, it would be much more difficult for appellant to assert that he was not there-thereby creating the need for a self-defense theory. Additionally, the prosecutor pointed out that appellant did not tell McBee that he shot in self-defense and that appellant's conduct after the shooting was inconsistent with a claim of self-defense. State v. Smith, 168 Ohio App.3d 141, 2006-Ohio-3720, ¶ 106-11 (1st Dist.) (comments insinuating that defendant's self-defense theory was made up after the crime not improper because comments based on evidence that supported prosecutor's comments and contradicted the defense). Therefore, the prosecutor did not engage in misconduct when he argued that appellant asserted a self-defense theory only after appellant learned that McBee would testify for the state and place appellant at the scene of the murder. Id.; State v. Rick, 3d Dist. No. 9-08-27, 2009-Ohio-785, ¶ 55-57 (comment that self-defense was "made up to try to get out of trouble in this case" not improper).
{¶ 28} Because the prosecutor's comments did not constitute misconduct, we find no error, let alone plain error, that warrants reversal. Accordingly, we overrule appellant's second assignment of error.
C. Third and Fourth Assignments of Error—The Sufficiency and Manifest Weight of the Evidence
{¶ 29} In these assignments of error, appellant contends that his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence. We disagree.
{¶ 30} Appellant's sufficiency arguments fail. He first argues that McBee's testimony was not credible. In a sufficiency review, however, appellate courts do not assess whether the state's evidence is to be believed, but whether, if believed, the evidence admitted at trial supports the conviction. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-80 (evaluation of witness credibility not proper on review for sufficiency of evidence); State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that "in a sufficiency of the evidence review, an appellate court does not engage in a determination of witness credibility; rather, it essentially assumes the state's witnesses testified truthfully and determines if that testimony satisfies each element of the crime"); State v. Preston-Glenn, 10th Dist. No. 09AP-92, 2009-Ohio-6771, ¶ 38 (witness credibility argument "misplaced" in a sufficiency analysis).
{¶ 31} Additionally, to the extent he argues that the evidence supports his claim of self-defense, we note that self-defense is an affirmative defense under Ohio law. State v. Calderon, 10th Dist. No. 05AP-1151, 2007-Ohio-377, ¶ 30. A review for sufficiency of the evidence does not apply to affirmative defenses, because this review does not consider the strength of defense evidence. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 37; State v. Harrison, 10th Dist. No. 06AP-827, 2007-Ohio-2872, ¶ 23; State v. Levonyak, 7th Dist. No. 05 MA 227, 2007-Ohio-5044, ¶ 38-41. The claim of insufficient evidence challenges the sufficiency of the State's evidence. Thus, appellant cannot challenge the jury's rejection of his claim of self-defense on the ground of sufficiency of the evidence. State v. Cooper, 170 Ohio App.3d 418, 2007-Ohio-1186, ¶ 15; State v. Campbell, 10th Dist. No. 07AP-1001, 2008-Ohio-4831, ¶ 21.
{¶ 32} The weight of the evidence concerns the inclination of the greater amount of credible evidence offered to support one side of the issue rather than the other. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). When presented with a challenge to the manifest weight of the evidence, an appellate court may not merely substitute its view for that of the trier of fact, but must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of 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. Id. at 387. An appellate court should reserve reversal of a conviction as being against the manifest weight of the evidence for only the most " 'exceptional case in which the evidence weighs heavily against the conviction.' " Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983); State v. Strider-Williams, 10th Dist. No. 10AP-334, 2010-Ohio-6179, ¶ 12.
{¶ 33} In addressing a manifest weight of the evidence argument, we are able to consider the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6. However, in conducting our review, we are guided by the presumption that the jury, or the trial court in a bench trial, " 'is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.' " Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Accordingly, we afford great deference to the jury's determination of witness credibility. State v. Redman, 10th Dist. No. 10AP-654, 2011-Ohio-1894, ¶ 26, citing State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 55. See also State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus (credibility determinations are primarily for the trier of fact).
{¶ 34} To the extent that appellant attacks the credibility of McBee's testimony in his manifest weight argument, we note that the jury was aware of her credibility issues and could evaluate her credibility in light of those issues. State v. Scott, 10th Dist. No. 10AP-174, 2010-Ohio-5869, ¶ 17, citing State v. Thompson, 10th Dist. No. 08AP-22, 2008-Ohio-4551, ¶ 21; State v. Reed, 10th Dist. No. 09AP-84, 2009-Ohio-6900, ¶ 26. The jury was in the best position to weigh and determine her credibility and was entitled to believe or disbelieve her testimony. State v. Hudson, 10th Dist. No. 06AP-335, 2007-Ohio-3227, citing State v. Woodward, 10th Dist. No. 03AP-398, 2004-Ohio-4418, ¶ 19-20. None of appellant's arguments render McBee's testimony inherently unreliable and unworthy of belief. State v. Stewart, 10th Dist. No. 08AP-33, 2009-Ohio-1547, ¶ 24. We also note that McBee was not in the trailer when Manley was shot and, therefore, could not testify about what occurred in the trailer.
{¶ 35} Appellant also argues that the physical evidence and witness testimony was consistent with his claim of self-defense. While appellant points to evidence of a struggle in the trailer's kitchen and evidence that only a single shot was fired, that evidence is consistent with both his and Romine's versions of events. Romine testified that appellant robbed them and shot Manley when Manley reached for a key in his pants. He specifically denied that appellant shot Manley while fighting for a gun. The jury did not lose its way when it believed Romine's version of a robbery gone bad and disbelieved appellant's claim of self-defense. See State v. Crawford, 10th Dist. No. 03AP-986, 2004-Ohio-4652, ¶ 10; State v. Webb, 10th Dist. No. 10AP-189, 2010-Ohio-5208, ¶ 17; State v. Purdin, 4th Dist. No. 12CA944, 2013-Ohio-22, ¶ 19. Accordingly, in light of all the evidence presented, we cannot say that the jury lost its way or created a manifest miscarriage of justice in finding appellant guilty. State v. Lindsey, 10th Dist. No. 14AP-751, 2015-Ohio-2169, ¶ 49 (rejecting a manifest-weight challenge to the jury's finding that defendant did not act in self-defense).
{¶ 36} For all these reasons, we overrule appellant's third and fourth assignments of error.
III. Conclusion
{¶ 37} Having overruled appellant's four assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.