Opinion
No. 105917
04-05-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. DURRELL FRIZZELL DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Richard E. Hackerd 55 Public Square, Suite 2100 Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Steven N. Szelagiewicz Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-15-596007-A BEFORE: Keough, J., E.T. Gallagher, P.J., and Celebrezze, J. ATTORNEY FOR APPELLANT Richard E. Hackerd
55 Public Square, Suite 2100
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Steven N. Szelagiewicz
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant Durrell Frizzell ("Frizzell") appeals from the trial court's judgment, rendered after a bench trial, finding him guilty of domestic violence and endangering children. Frizzell contends that he was denied due process and his right to a fair trial when the trial court limited his right to cross-examine a witness, and that his convictions were against the manifest weight of the evidence. Finding no merit to the appeal, we affirm.
I. Facts and Procedural Background
{¶2} Frizzell was indicted in a five-count indictment. Count 1 charged rape in violation of R.C. 2907.02(A)(2); Count 2 charged kidnapping in violation of R.C. 2905.01(A)(4); Count 3 charged domestic violence against Keyana Tillie ("Tillie") in violation of R.C. 2919.25(A); Count 4 charged domestic violence against S.F., Frizzell and Tillie's minor child, in violation of R.C. 2919.25(A); and Count 5 charged endangering children regarding S.F. in violation of R.C. 2919.22(B)(3). Frizzell pleaded not guilty and waived his right to a jury trial, and the matter proceeded to a bench trial.
{¶3} Tillie testified at trial that she and Frizzell did not live together. In April 2015, Tillie agreed that Frizzell could come to the house to speak with S.F., who had recently been getting into trouble at school and engaging in sex. Tillie testified that on April 15, 2015, Frizzell came to the house and went to S.F.'s bedroom. She said that Frizzell "seemed calm and rational," so she left the room to take a shower. As she was showering, she heard "a lot of noise, almost like furniture was being moved." She said she wrapped a towel around herself and went to S.F.'s room, where she saw Frizzell standing over S.F., who was on the floor. Tillie said she saw Frizzell kick S.F. once in the stomach and that she later saw various bruises on S.F.'s wrist, back, and stomach. Tillie told Frizzell to leave the house and went upstairs to her room to get dressed.
{¶4} Tillie said that Frizzell came into her bedroom and wanted to have sex with her. She told him she "was not in the mood" for sex but they had sex anyway. Frizzell then left the house.
{¶5} Tillie testified that she decided to report the incident to the police because several weeks prior, Frizzell had grabbed her and thrown her into the wall at her house while they were arguing.
{¶6} S.F. testified that she was 12 years old on April 15, 2015. She said that she was napping in her bedroom and woke up after Frizzell "playfully" hit her on her leg with his hands. She testified that Frizzell talked to her about why she was "acting up", and then the conversation turned "angry and physical" when Frizzell hit her four or five times on her arm. She said that as she was backing up because she did not want to get hit again, she tripped on a table and fell to the ground. She acknowledged that there was a bruise on her wrist from her fall but denied that Frizzell kicked her when she was on the floor. S.F. testified that she felt it was unnecessary to report the incident to the police, and that Frizzell apologized for hitting her.
{¶7} Algenon Pugh, a neighbor of Tillie's, testified that he went to Tillie's house on April 15, 2015 after she called him and told him what had happened. He said that he saw S.F. "folded up and crying," "holding her stomach," in her bedroom.
{¶8} Cleveland Heights Police Detective Brett Billi described his investigation of the incidents. He testified that he interviewed Tillie on May 5, 2015. He interviewed S.F. several days later but said "she was evasive and did not want to speak to us." He also went to Tillie's house and took a picture of the hole in the wall and of Tillie standing in front of the hole. He testified that the hole was nearly a "perfect outline" of Tillie's body.
{¶9} The trial court denied Frizzell's Crim.R. 29 motion. It subsequently found him not guilty of Counts 1 and 2, rape and kidnapping of Tillie. It found him guilty of Counts 3 and 4, domestic violence against Tillie and S.F. respectively, and Count 5, endangering children, and sentenced him to community control sanctions. This appeal followed.
II. Law and Analysis
A. Denial of Due Process and Right to a Fair Trial
{¶10} The following colloquy occurred during defense counsel's cross-examination of S.F.:
Q. Do you know when you went to talk to the Cleveland Police — Cleveland Heights Police?
A. No.
Q. Did you want to go to talk to the Cleveland Heights Police?
A. No.
Q. How did you feel about the questions they were asking you?
THE COURT: That's not a legitimate question. We don't care. Next question.
Q. Did you feel coerced?
[PROSECUTOR]: Objection.
THE COURT: Sir, we don't care. Her feelings about being asked the questions are not relevant to any issue of this case. Irrelevant. Proceed on a different line.
{¶11} In his first assignment of error, Frizzell asserts, citing the above colloquy, that he was denied due process and his right to a fair trial when the trial court precluded cross-examination of S.F. regarding whether she "felt pressured to testify."
{¶12} Frizzell's argument is specious. As the record clearly reflects, the question regarding whether S.F. felt coerced related to how she felt about the questions the Cleveland Heights police were asking her; the question had nothing whatsoever to do with whether she felt coerced to testify.
{¶13} Frizzell correctly asserts that "[t]he constitutional right of cross-examination includes the right to impeach a witness's credibility." State v. Bolton, 8th Dist. Cuyahoga No. 96385, 2012-Ohio-169, ¶ 40. "The denial of full and effective cross-examination of any witness who identifies a defendant as the perpetrator of the offense is the denial of the fundamental constitutional right of confrontation essential to a fair trial." Id., citing State v. Hannah, 54 Ohio St.2d 84, 374 N.E.2d 1359 (1978).
{¶14} Nevertheless, although a defendant must be given the opportunity to cross-examine all witnesses against him as a matter of right, the scope of that cross-examination is within the discretion of the trial court. State v. Marshall, 8th Dist. Cuyahoga No. 100736, 2015-Ohio-2511, ¶ 30. Trial judges may impose reasonable limits on cross-examination based on a variety of concerns, including harassment, prejudice, confusion of the issues, the witness's safety, repetitive testimony, or marginally relevant interrogation. Id., citing Cleveland v. Garcia, 8th Dist. Cuyahoga No. 100017, 2014-Ohio-1425, ¶ 7.
{¶15} Here, S.F.'s feelings about being questioned by the police were not even "marginally relevant" to any issue in the case. An abuse of discretion occurs when a decision is unreasonable; that is, when there is no sound reasoning process that would support the decision. Southworth v. N. Trust Secs., 8th Dist. Cuyahoga No. 99250, 2013-Ohio-2917, ¶ 17. Because S.F.'s feelings about the police questions were irrelevant to the facts at issue, the trial court did not abuse its discretion in limiting cross-examination as it did. The first assignment of error is overruled.
B. Manifest Weight of the Evidence - Counts 4 and 5
{¶16} In his second and third assignments of error, Frizzell contends that his convictions on Counts 4 and 5 were against the manifest weight of the evidence. We consider the assignments together because he makes the same arguments regarding each count.
{¶17} A manifest weight challenge questions whether the prosecution met its burden of persuasion. State v. Jamie, 8th Dist. Cuyahoga No. 102103, 2015-Ohio-3583, ¶ 37. A reviewing court "weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, 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." State v. Thompkins, 78 Ohio St.3d 380, 388, 678 N.E.2d 541 (1997).
{¶18} In Count 4, Frizzell was convicted of domestic violence against S.F. in violation of R.C. 2919.25(A), which provides that "[n]o person shall knowingly cause or attempt to cause physical harm to a family or household member." In Count 5, Frizzell was convicted of endangering children in violation of R.C. 2919.22(B), which provides that no parent of a child under the age of 18 shall "administer corporal punishment or other physical disciplinary measure * * * which is excessive under the circumstances and creates a substantial risk of serious physical harm to the child." The trial court noted that its finding of guilt on this count was related only to the kick that Frizzell administered to S.F.
{¶19} Frizzell contends that his convictions on Counts 4 and 5 were against the manifest weight of the evidence because S.F.'s testimony denying that he kicked her was more credible than Tillie's testimony that she saw him kick S.F., and S.F. denied that he harmed her and said she was injured when she backed into the table as she was attempting to evade his punishment. He further contends that S.F. testified that she expected to be disciplined, and his four or five hits to her were merely "disciplinary in nature." In short, Frizzell contends that the trial judge, as the factfinder, should have believed S.F. instead of Tillie and the other witnesses.
{¶20} It is well settled that the credibility of witnesses and the weight to be given their testimony are matters for the trier of fact to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). Although we consider the credibility of witnesses in a manifest weight challenge, we are mindful that determinations regarding witness credibility and the weight of the testimony rest primarily with the trier of fact because the trier of fact is in the best position to view the witnesses and observe their demeanor, gestures, and voice inflections — observations that are critical to determining a witness's credibility. State v. Wilkinson, 8th Dist. Cuyahoga No. 100859, 2014-Ohio-5791, ¶ 39. The trier of fact may take note of any inconsistencies in the testimony and resolve them accordingly; it is free to accept or reject any or all of the testimony of any witness. Id., citing State v. Smith, 8th Dist. Cuyahoga No. 93593, 2010-Ohio-4006, ¶ 16.
{¶21} Upon review, we find that Frizzell's convictions are not against the manifest weight of the evidence. The court believed Tillie's testimony that she saw Frizzell kick S.F. in the stomach, and did not believe S.F.'s testimony denying that it happened. Tillie's testimony about the kick was supported by testimony that she saw bruises on S.F.'s stomach and back, and Pugh's testimony that he saw S.F. holding her stomach shortly after the incident. Furthermore, Detective Billi testified that S.F. did not want to speak to the police or answer their questions about Frizzell. The judge, as the factfinder, was able to listen to each witness and judge their respective credibility, and reasonably could have concluded that S.F.'s testimony denying the kick was not credible. With respect to Frizzell's argument that the hits and kick were "just discipline," we note that the judge, as the factfinder, specifically found that the kick was excessive discipline under the circumstances and created a substantial risk of physical harm to S.F.
{¶22} Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial is reserved for only those "exceptional cases in which the evidence weighs heavily against the conviction." Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541 (1997). This is not that exceptional case. Our review of the record demonstrates that the factfinder did not lose its way or create a manifest miscarriage of justice in convicting Frizzell of domestic violence and endangering children. The second and third assignments of error are overruled.
{¶23} 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 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. /s/_________
KATHLEEN ANN KEOUGH, JUDGE EILEEN T. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR