Opinion
Case No. 2019CA00051
12-20-2019
STATE OF OHIO Plaintiff-Appellee v. MARGARET REGINA BROWN Defendant-Appellant
APPEARANCES: For Plaintiff-Appellee KRISTEN BATES AYLWARD CANTON LAW DIRECTOR JASON P. REESE CANTON CITY PROSECUTOR BRITTANY M. FLETCHER ASSISTANT PROSECUTOR 218 Cleveland Avenue, SW, PO Box 24218 Canton, Ohio 44701-4218 For Defendant-Appellant BERNARD L. HUNT 2395 McGinty Road, NW North Canton, Ohio 44720
JUDGES: Hon. John W. Wise, P. J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.
OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Canton Municipal Court, Case No. 2019CRB0316 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee KRISTEN BATES AYLWARD
CANTON LAW DIRECTOR
JASON P. REESE
CANTON CITY PROSECUTOR
BRITTANY M. FLETCHER
ASSISTANT PROSECUTOR
218 Cleveland Avenue, SW, PO Box 24218
Canton, Ohio 44701-4218 For Defendant-Appellant BERNARD L. HUNT
2395 McGinty Road, NW
North Canton, Ohio 44720 Wise, John, P. J.
{¶1} Appellant Margaret Regina Brown appeals her conviction, in the Canton Municipal Court, Stark County, on one count of misdemeanor domestic violence. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} Appellant and Daniel M. are the biological parents of a ten-year-old daughter (hereinafter "N.M."). On January 19, 2019, Daniel M. and N.M. stopped by appellant's residence in Pike Township, Ohio, in order to have her accompany them on a trip to Alliance to look at a puppy. After appellant got into the car, an argument developed between appellant and Daniel, purportedly concerning the volume of the music on the radio. Daniel decided to take appellant back to her residence. When they got there, appellant refused to exit the vehicle. A physical altercation ensued, and Daniel ended up with scratches on his face and abrasions on his chin.
{¶3} Sergeant Gary Six of the Magnolia Police Department responded to the location in question after a neighbor called 911.
{¶4} On January 21, 2019, appellant was charged by complaint in the Canton Municipal Court with one count of domestic violence (R.C. 2919.25(A)), a first-degree misdemeanor. On January 28, 2019, appellant posted bond and agreed to have no contact with the alleged victims.
{¶5} The matter proceeded to a jury trial on March 6, 2019. Prior to voir dire, both sides filed motions in limine. In particular, the State sought to exclude testimony of "prior dealings" between Sergeant Six, appellant, and/or Daniel M. Tr. at 8. Defense counsel objected, asking the court not to "strictly rule" on the issue, arguing that the prior dealings might become relevant if the issue would go to credibility. The court essentially agreed. See Tr. at 9-10. Defense counsel subsequently asked to have Daniel M. referred to as the alleged or listed victim instead of "victim." The court agreed. Tr. at 23-24.
{¶6} In addition, one of defense counsel's motions in limine concerned N.M., the daughter of appellant and Daniel M. First, defense counsel moved to exclude any testimony regarding appellant pushing or shoving N.M. based on lack of relevance. Tr. at 13. At that time, the court did not rule on the motion, implicitly giving trial counsel the opportunity to renew the motion during trial. See Tr. at 14. Defense counsel also moved to exclude any testimony regarding which parent had custody of N.M. based on lack of relevance. Tr. at 15. The court ruled that the question of which parent N.M. lived with on the day of the incident (i.e., Daniel) was relevant. Tr. at 16-17.
{¶7} Following voir dire and opening arguments, the trial went forward, with the State calling four witnesses. The first was Sergeant Six. Among other things, Six stated that he had spoken to Daniel at the scene and was informed that after appellant was taken back to her apartment, she refused to get out of the car, and then started recording with her cell phone. Tr. at 126-127. Six then was informed that Daniel tried to grab the cell phone, at which point appellant "attacked" him, causing him to fall against another vehicle. Tr. at 127. Six agreed that at some point, appellant ended up on the ground in the fracas, but Six testified he had no evidence that Daniel had ended up on top of appellant. Tr. at 144. However, Six was shown Daniel's written statement where he had written that he was, eventually, on top of appellant. Tr. at 146. He also agreed that Daniel was listed as five inches taller than appellant, and more than thirty pounds heavier. Id.
{¶8} N.M., the child witness, told the jury that appellant had "lunged" at Daniel, and that she saw him pinned down by appellant, near some standing water. Tr. at 169- 170. She did not see Daniel ever hit appellant; instead, he just splashed water from the puddle at her face. Id. Daniel himself subsequently also testified that appellant had pinned him down, so he splashed some of the water in her face to get her away. Tr. at 180. A neighbor, Chas Smart, told the jury he had heard yelling outside of his apartment. After he went outside, he observed Daniel with blood "all over his face," and he proceeded to call 911. Tr. at 236-238.
{¶9} The sole defense witness, Karl Gausewitz, appellant's landlord, recalled that Daniel told him he had slipped on the ice and snow, falling against Gausewitz's car, even though Sergeant Six had testified that Karl described appellant as the aggressor during the police investigation. Tr. at 127, 249, et seq.
{¶10} After hearing the evidence and arguments, the jury found appellant guilty of domestic violence. On the same day, appellant was sentenced inter alia to 180 days in jail, with all but ten days suspended and with credit for ten days served. She was also fined $10.00 and ordered to pay court costs.
{¶11} On April 3, 2019, appellant filed a notice of appeal. On April 17, 2019, the trial court granted a stay as to fines, costs, and other services pending appeal. Appellant herein raises the following three Assignments of Error:
{¶12} "I. THE TRIAL COURT FAILED TO PROPERLY SWEAR IN THE JURY, TO THE PREJUDICE OF THE DEFENDANT.
{¶13} "II. THE DEFENDANT WAS DENIED HER RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
{¶14} "III. THE TRIAL COURT ERRED WHEN IT OVERRULED THE DEFENDANT'S EVIDENCE RULE 403(A) [MOTION] TO EXCLUDE THE TESTIMONY OF N.M."
I.
{¶15} In her First Assignment of Error, appellant contends the court committed reversible error in utilizing a bailiff for administering the oath to the jury. We disagree.
{¶16} A criminal defendant's fundamental right to a fair and impartial jury is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution. State v. Payne, 11th Dist. Lake No. 2004-L-118, 2005-Ohio-7043, ¶ 30. In Ohio, jurors in criminal cases take an oath to diligently and carefully deliberate all matters before the court. " '* * * [T]there is nothing to be gained, and there is everything to lose, by infringing upon the sacred and fundamental right to trial by jury.'" State v. Hale, 5th Dist. Muskingum No. CT2008-0041, 2009-Ohio-3110, ¶ 17, quoting Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 343, 662 N.E.2d 287, 1996-Ohio-137, Douglas, J., dissenting.
R .C. 2945.28(A) Requirements
{¶17} R.C. 2945.28(A) states in part: "In criminal cases jurors and the jury shall take the following oath to be administered by the trial court or the clerk of the court of common pleas, and the jurors shall respond to the oath 'I do swear' or 'I do affirm': 'Do you swear or affirm that you will diligently inquire into and carefully deliberate all matters between the State of Ohio and the defendant (giving the defendant's name)? Do you swear or affirm you will do this to the best of your skill and understanding, without bias or prejudice? So help you God.' ***." (Emphasis added).
The statute also allows a juror making an affirmation to substitute the words "this you do as you shall answer under the pains and penalties of perjury" for the words "[s]o help you God."
{¶18} In the case sub judice, after the jury had been selected, the trial court bailiff administered the oath to the jurors. See Tr. at 108. Appellant subsequently raised no objection. In State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, the Ohio Supreme Court recognized that a defendant's failure to object to a bailiff's administering of the oath to jurors constitutes a waiver of all but plain error. See id. at ¶ 54. In order to find plain error under Crim.R. 52(B), it must be determined, but for the error, the outcome of the trial clearly would have been otherwise. See, e.g., State v. Walker, 5th Dist. Stark No. 2013 CA 00204, 2014-Ohio-3693, ¶ 33.
{¶19} Appellant appears to contend that certain comments or questions by some of the jurors "indicated a bias toward [her] that caused her to cry in open court." Appellant's Brief at 5. However, appellant fails to convincingly draw a nexus between this claimed bias and the technical error of using a bailiff to swear in the jury. In State v. Boykin, 2nd Dist. Montgomery No. 19896, 2004-Ohio-1701, which was referenced by the Ohio Supreme Court in Conway, supra, the Second District Court of Appeals observed that under the facts of that case there was "no indication that the jurors did not believe they were properly sworn, or that they failed to appreciate the importance of the oath." Id. at ¶ 165.
{¶20} In a similar vein, upon review, we find no demonstration of plain error in regard to the issue of the administration of the oath to the jury under the circumstances presented.
R .C. 2945.27 Requirements
{¶21} Although not separately argued, appellant also points out that the trial court, at an earlier point in the proceedings, did not have the prospective jurors sworn in at the commencement of voir dire.
{¶22} R.C. 2945.27 states as follows: "The judge of the trial court shall examine the prospective jurors under oath or upon affirmation as to their qualifications to serve as fair and impartial jurors, but he shall permit reasonable examination of such jurors by the prosecuting attorney and by the defendant or his counsel."
{¶23} In the present case, the trial court judge, about one-fourth of the way through the voir dire process, announced that he had forgotten to have the prospective jurors placed under oath. See Tr. at 54. The judge thus had the bailiff immediately give the following: "Do each of you solemnly swear that you will truthfully respond to all inquiries addressed to you by respective counsel or by the court, so help you God?" Id. No objections to this action by the trial court are evident in the record. The judge also asked if anyone wanted to change their earlier answers following the taking of the oath. None of the prospective jurors responded affirmatively. Id. at 55.
We also observe that R.C. 2945.27, unlike R.C. 2945.28, does not specifically state who is designated to give an oath or affirmation to the prospective jurors.
{¶24} An error not raised in the trial court must be plain error for an appellate court to reverse. See State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804; Crim.R. 52(B).
In order to find plain error under Crim.R. 52(B), it must be determined, but for the error, the outcome of the trial clearly would have been otherwise. Long, supra, paragraph two of the syllabus; State v. Walker, supra, ¶ 33.
{¶25} In State v. Glaros, 170 Ohio St. 471, 166 N.E.2d 379, 383 (1960), the Ohio Supreme Court addressed this issue under R.C. 2945.27, but found there was "nothing in the record *** to indicate that defendant was in any way prejudiced by any false answer that a juror may have given on his voir dire examination." Id. at 476. The Supreme Court also reasoned: "It is not even suggested that any false answer was given by a juror on the voir dire examination of jurors. Hence, it is apparent that there is nothing in the record to show that the failure of the trial judge to have oaths or affirmations administered to prospective jurors before their voir dire examination could in any way have prejudiced the defendant." Id.
{¶26} Upon review in the case sub judice, we reach a similar conclusion to that of Glaros.
{¶27} Accordingly, appellant's First Assignment of Error is overruled.
II.
{¶28} In her Second Assignment of Error, appellant contends she was deprived of her constitutional right to the effective assistance of trial counsel. We disagree.
{¶29} Our standard of review for ineffective assistance claims is set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for ineffective assistance of counsel. First, we must determine whether counsel's assistance was ineffective; i.e., whether counsel's performance fell below an objective standard of reasonable representation and was violative of any of his or her essential duties to the client. If we find ineffective assistance of counsel, we must then determine whether or not the defense was actually prejudiced by counsel's ineffectiveness such that the reliability of the outcome of the trial is suspect. This requires a showing that there is a reasonable probability that but for counsel's unprofessional error, the outcome of the trial would have been different. Id. However, trial counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267. In addition, the United States Supreme Court and the Ohio Supreme Court have held that a reviewing court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697, 104 S.Ct. 2052.
{¶30} In addressing this claim, we also remain mindful that "[a] defendant is entitled to a fair trial but not a perfect one." See State v. Bleigh, 5th Dist. Delaware No. 09-CAA-03-0031, 2010-Ohio-1182, 2010 WL 1076253, ¶ 133, quoting Bruton v. United States (1968), 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (internal quotations omitted).
Claim of Ineffective Assistance re: State's Motion in Limine
{¶31} Appellant first argues that trial counsel failed to properly object to the State's motion in limine regarding prosecution witness Sergeant Gary Six.
{¶32} "A motion in limine is a motion directed to the inherent discretion of the trial court judge to prevent the injection of prejudicial, irrelevant, inadmissible matters into trial." State v. Strait, 5th Dist. Delaware No. 14 CAA 12 0081, 2015-Ohio-4264, 2015 WL 5968655, ¶ 24, quoting Mason v. Swartz, 76 Ohio App.3d 43, 55, 600 N.E.2d 1121 (6th Dist.1991). The granting or denying of a motion in limine is reviewed under an abuse of discretion standard of review. Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, ¶ 22. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983). "[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Huth v. Kus, 5th Dist. Tuscarawas No. 2017 AP 06 0015, 2018-Ohio-1931, 113 N.E.3d 140, 2018 WL 2230727, ¶ 30, quoting Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991).
{¶33} Before voir dire, the State moved to exclude any testimony of prior dealings between Sergeant Six and the other witnesses in the case. Tr. at 8. However, appellant's emphasis on this aspect of the proceedings is unclear, as his trial counsel not only objected to the motion, but the court essentially ruled in appellant's favor, although the court stated that it would be best to conduct the trial in a "vacuum" as much as possible as to everyone's previous encounters with Sergeant Six. Tr. at 8-10. But defense counsel argued that the prior dealings might become relevant for purposes of credibility, and the court seemingly agreed. See Tr. at 9-10.
{¶34} Upon review, we find no demonstration of ineffective assistance concerning defense counsel's handling of the State's motions in limine.
Claim of Ineffective Assistance re: Testimony of N .M.
{¶35} Appellant next argues that trial counsel was ineffective in failing to object to N.M.'s testimony. As indicated in our recitation of facts, trial counsel made two challenges regarding N.M.'s testimony, moving to exclude any testimony regarding appellant pushing or shoving the girl in the throat area, based on lack of relevance. Tr. at 13. At that time, the court did not rule on the motion, but it effectively gave trial counsel the opportunity to renew the motion during trial. Tr. at 14. The record reveals that defense counsel did renew his motion during the trial, and the court ruled in appellant's favor. Tr. at 167-168.
{¶36} Secondly, defense counsel moved to exclude any testimony regarding which parent had custody of the child. Although it is undisputed that defense counsel did not bring up the exact issue again via an objection during trial, he clearly had the normal opportunity to cross-examine N.M. and challenge her eyewitness testimony to the fight. See Tr. at 173-78.
{¶37} We observe that appellant presents these claims on appeal with the benefit of hindsight, but we find she has failed to overcome the burden of the presumption that defense counsel's action was within the realm of sound trial strategy. Strickland v. Washington, supra.
Claim of Ineffective Assistance re: Attorney-Client Communication at Trial
{¶38} Appellant secondly references a moment during pretrial discussions where trial counsel told appellant on the record to "stop talking." See Tr. at 23. This took place while trial counsel was seeking to have Daniel M. referred to as the "alleged victim" instead of the "victim," which the trial court effectively granted. See Tr. at 23-24. We find this incident of trial counsel trying to extinguish an interruption while in the middle of arguing an important motion on behalf of a client is insufficient to show that counsel's performance fell below an objective standard of reasonable representation or that appellant was deprived of a fair trial.
Claim of Ineffective Assistance re: Timing of Motion in Limine Hearing
{¶39} Appellant lastly argues that the motion in limine hearing should have taken place prior to the scheduled trial date, rather than right before voir dire. In particular, appellant suggests that defense counsel was thus forced to accede to the introduction of a bodycam video without knowing its contents, although she does not articulate what damaging evidence, if any, was on the video. We note Crim.R. 12(D) generally provides that a pretrial motion "shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier." However, it has been aptly recognized that "oral motions in limine just before the commencement of trial are routine." State v. DeSarro, 7th Dist. Columbiana No. 13 CO 39, 2015-Ohio-5470, ¶ 17.
{¶40} Upon review, even assuming trial counsel's decision concerning the timing of appellant's motion in limine fell below an objective standard of reasonable representation, we are unpersuaded that appellant was prejudiced thereby.
Conclusion
{¶41} Having considered in toto the foregoing claims, we hold appellant was not deprived of the effective assistance of trial counsel in violation of her rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.
{¶42} Appellant's Second Assignment of Error is therefore overruled.
III.
{¶43} In her Third Assignment of Error, appellant contends the trial court erred in overruling her Evid.R. 403(A) motion to exclude the testimony of N.M. We disagree.
It is not clear from the record that appellant sought to exclude N.M.'s testimony in its entirety, as the text of this assigned error suggests. See Tr. at 13.
{¶44} Evid.R. 403(A) states as follows: "Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."
{¶45} The admission or exclusion of relevant evidence rests in the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343. Our standard task is to look at the totality of the circumstances and determine whether the trial court acted unreasonably, arbitrarily or unconscionably in allowing or excluding the disputed evidence. State v. Oman, 5th Dist. Stark No. 1999CA00027, 2000 WL 222190. Furthermore, "*** the rules of evidence do not attempt to bar all prejudicial evidence—to do so would make reaching any result extremely difficult. Rather, only evidence that is unfairly prejudicial is excludable." State v. King, 5th Dist. Richland No. 08-CA-335, 2010-Ohio-4844, ¶ 28, quoting State v. Crotts (2004), 104 Ohio St.3d 432, 820 N.E.2d 302, ¶ 23.
{¶46} Although N.M. was an important eyewitness to the altercation between her parents in this matter, appellant appears to ask us to consider the court's allowance of her testimony in light of the record of the jury voir dire. For example, we note one of the unidentified prospective jurors stated, in response to a question about using child witnesses: "*** I find that children at that age are much more truthful than most adults." Tr. at 70. Defense counsel explored the issue further, asking the following: "How do you know who a kid loves more than the other? How do you know which parent the kid loves more?" An unidentified prospective juror responded: "It's the parent she defends the most viciously." Tr. at 72. Appellant reiterates that the jury was also allowed to hear the identity of the parent with whom N.M. was residing. See Tr. at 16.
{¶47} We note the transcript before us does not contain the subsequent jury challenges before the trial court (see Tr. at 105), and thus we cannot ascertain if the above-referenced "unidentified" prospective jurors were actually seated for the trial. However, as the State suggests in its response brief, the extant voir dire transcript indicates a general consensus among the prospective jurors who answered the line of questions concerning child witnesses that they would not automatically assume a ten-year-old girl is more reliable than any other witness and that they would try to fairly weigh all of the evidence presented. See Tr. at 69-76.
{¶48} Upon review, we find no abuse of discretion in the trial court's denial of appellant's attempts to exclude N.M.'s testimony.
{¶49} Appellant's Third Assignment of Error is therefore overruled.
{¶50} For the reasons stated in the foregoing opinion, the judgment of the Canton Municipal Court, Stark County, Ohio, is hereby affirmed. By: Wise, John, P. J. Baldwin, J., and Wise, Earle, J., concur.
/s/_________
HON. JOHN W. WISE
/s/_________
HON. CRAIG R. BALDWIN
/s/_________
HON. EARLE E. WISE, JR. JWW/d 1125