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State v. Norton

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
Mar 4, 2019
2019 Ohio 1212 (Ohio Ct. App. 2019)

Opinion

Case No. 2018CA00049

03-04-2019

STATE OF OHIO Plaintiff - Appellee v. BURELL NORTON Defendant - Appellant

APPEARANCES: For Plaintiff-Appellee KRISTEN BATES-AYLWARD Canton Law Director JASON P. REESE Canton City Prosecutor By: BEAU D. WENGER Assistant City Prosecutor 218 Cleveland Ave. SW Canton, Ohio 44702 For Defendant-Appellant AARON KOVALCHIK 116 Cleveland Ave. NW Suite 808 Canton, Ohio 44702


JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Hon. Earle E. Wise, J.

OPINION

CHARACTER OF PROCEEDING: Appeal from the Canton Municipal Court, Case No. 2018CRB01069 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee KRISTEN BATES-AYLWARD
Canton Law Director JASON P. REESE
Canton City Prosecutor By: BEAU D. WENGER
Assistant City Prosecutor
218 Cleveland Ave. SW
Canton, Ohio 44702 For Defendant-Appellant AARON KOVALCHIK
116 Cleveland Ave. NW
Suite 808
Canton, Ohio 44702 Baldwin, J.

{¶1} Burell Norton appeals his conviction of a violation of R.C. 2919.25(C), domestic violence, a misdemeanor of the Fourth Degree. Appellee is the State of Ohio.

{¶2} Appellant was charged with a violation of R.C. 2919.25(C) which states that "no person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member." Appellant seeks reversal of his conviction asserting that it was against the manifest weight and sufficiency of the evidence, that the trial court violated the rules of evidence in admitting prior acts and that the trial court abused its discretion regarding jury selection.

STATEMENT OF FACTS AND THE CASE

{¶3} Appellant resides with the victim, his seventy-five year old grandmother. He takes medication for some type of emotional issue, but the record does not reveal any detail of a diagnosis, treatment or prescription. The victim testified that appellant "acted up" without his medication and on one prior occasion he poured "bleach water" on the floor and began throwing things. She suspected appellant once again failed to take his medication because he was "acting up" and frightening her. She told him that he could no longer stay with her if he failed to take his medication. While wrapped in nothing more than a blanket, he began making sounds, gestures and statements the victim interpreted as threatening. He told her that if he could not stay at the home, she could not or, alternatively, if he had no place to stay, she would not have a place to stay, leading the victim to worry that he may burn the house. He put the blanket over his head and using his hands and voice, mimed shooting the victim. While she did not believe he had a gun, she feared that he would harm her.

{¶4} She feared calling the police directly because she believed he would react forcefully by taking the phone from her and may harm her as a result. Instead she called her daughter in Florida, who in turn called the Canton City Police.

{¶5} The police officers arrived and found appellant wrapped in a blanket and reluctant to speak with them. They noticed that his voice was normal, and then became low and raspy when he claimed to be unable to speak. After speaking with the victim and the appellant, the officers concluded that the appellant should be transported to the hospital for evaluation and appellant appeared to agree. As they left the home, appellant ran from the officers for several blocks but eventually cooperated with transport to the hospital. The officers requested notice regarding the results of the evaluation and when none was received, the officer's filed a complaint alleging a violation of R.C. 2919.25(C).

{¶6} The case was schedule to be tried to a jury in the Canton Ohio Municipal Court on March 26, 2018. Two of the jurors expressed some concern about their ability to remain unbiased. Juror Number Four made the following comments:

BY JUROR NUMBER FOUR: My daughter.

MR. WENGER: Your daughter. She was a victim?

BY JUROR NUMBER FOUR: Yeah.

MR. WENGER: Okay. And, uh,

BY JUROR NUMBER FOUR: Number Four.

MR. WENGER: And how did that make you feel?

BY JUROR NUMBER FOUR: Not very happy.
MR. WENGER: Not very happy? And do you think based on your experience with your daughter being a victim you could come in today and be an unbiased juror?

BY JUROR NUMBER FOUR: No.

MR. WENGER: No, you couldn't be unbiased?

BY JUROR NUMBER FOUR: (NO AUDIBLE RESPONSE)

THE COURT: Juror Number Four, let me ask you this question: In the event you were sitting up here as the accused, would you be comfortable with somebody such as yourself being on the particular jury?

BY JUROR NUMBER FOUR: No.
Trial Transcript, p. 24, lines 9-25; p. 25, lines 1-4.

{¶7} The appellant did not provide this court any supplemental information regarding the inaudible portion of Juror Number Four's response. When asked for challenges for cause, appellant at first suggested that this juror stated that she would be biased, but the trial court corrected her stating ""no, no, they did not. They said they had a daughter that was a victim but did not indicate that they would not be able to do it." Appellant's counsel's response was "okay." (Trial transcript, page 49, lines 5-13). Appellant did not use a peremptory challenge to remove this juror.

{¶8} Juror Number Thirteen also expressed reservations:

BY JUROR NUMBER THIRTEEN: And I will be honest with you, honest to God. I look over at this young man -- I don't know how old he is, I just turned forty-six on the Twelfth of last month -- and I see
myself. I also see my son who just got thirty-two years about four months ago.

MR. WENGER: Alright.

BY JUROR NUMBER THIRTEEN: Turned twenty-one. It's not that I can't uphold the law, but so if somebody is under the law that (WORDS INAUDIBLE) good by me.

MR. WENGER: Okay.

BY JUROR NUMBER THIRTEEN: So me sittin- here (WORDS INAUDIBLE).

MR. WENGER: So you think based on your experience with --

BY JUROR NUMBER THIRTEEN: Based on --

MR. WENGER: -- your son --

BY JUROR NUMBER THIRTEEN: -- experience -- I don't even know why I'm here.

MR. WENGER: Okay.

BY JUROR NUMBER THIRTEEN: I'd rather be at work.

MR. WENGER: Okay.

BY JUROR NUMBER THIRTEEN: So --

MR. WENGER: All right.

BY JUROR NUMBER THIRTEEN: -- there you have it.

MR. WENGER: Anyone else feel that way?

BY JUROR NUMBER THIRTEEN: I'm Thirteen.

{¶9} The state did not challenge Juror Number 13 but instead challenged Juror Fifteen. They later admitted their error when comments regarding Juror Number Thirteen were brought to the attention of the court.

THE COURT: It has come to the Court's attention -- and we're going to put on the record -- that -- what is the juror number, Thirteen, is that the correct number?

MR. WENGER: Yes, Juror Thirteen is the correct...

THE COURT: Juror Number Thirteen made a comment, uh, to Mr. Jones on his way out during the first break, and what was that comment, Mr. Jones?

BY BAILIFF JONES: Um, Your Honor, he, uh, he said that he felt that he was selected for -- as a juror to be punished for a comment that he made during voir dire.

THE COURT: And it's clear to the Court that his entire body language from the time that I had indicated that Juror Number Thirteen was to sit in the jury box has been anything but exemplary. I mean it's just been -- and at this point the combination of those things along with his answers to questions, and I believe Mr. Wenger you had indicated to the Court that it was actually your intention to excuse Juror Number Thirteen instead of Juror Number Fifteen.

MR. WENGER: Yes, Your Honor.
THE COURT: And it is proven that, uh, that kind of attitude may infect the entire jury pool, that the Court is going to then excuse Juror Number Thirteen, and the alternate, Number Thirty, will take his place.

MS. ZIPAY: Your Honor, may I --

THE COURT: And you may --

MS. ZIPAY: -- address that as --

THE COURT: -- put on the record --

MS. ZIPAY: -- well as something else? Okay.

THE COURT: Yeah, put it on the record.

MS. ZIPAY: I do object to that, Your Honor, and I would just like to bring to the Court's attention that I notice very similar body language from Juror Number Four as well, and I would just ask that the Court consider that equally and I would move to strike him for cause since I don't believe that there was much of a difference in behavior there.

THE COURT: I had not noticed anything with respect to Juror Number Four, so that will be overruled.

MS. ZIPAY: Thank you.

THE COURT: That will be it.

MR. WENGER: Thank you, Your Honor.
Trial Transcript, p. 60, lines 8-25; p. 61, lines 1-24.

{¶10} The jury was seated and the trial court provided preliminary instructions prior to the presentation of evidence. The State presented the testimony of the victim and the arresting officers, offered a portion of the video from the officer's body cam and rested. Appellant's counsel consulted with her client and presented no testimony. The trial court instructed the jury and after deliberation they returned a guilty verdict. The trial court imposed a fine of fifty dollars and a jail sentence of thirty days. All but fourteen days of the jail sentence was suspended and appellant was given credit for fourteen days, time served. Appellant filed a timely notice of appeal and submitted four assignments of error:

{¶11} "I. APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."

{¶12} "II. THE TRIAL COURT ERRED IN ALLOWING TESTIMONY OF PRIOR BAD ACTS."

{¶13} "III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT REMOVE A JUROR FOR CAUSE."

{¶14} "IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REMOVED A JUROR OVER OBJECTION OF TRIAL COUNSEL."

{¶15} In his first assignment of error, appellant contends the verdict of the jury should be reversed as it was against the manifest weight of the evidence or sufficiency of the evidence. In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as the "thirteenth juror," and after "reviewing the entire record, 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 overturned and a new trial ordered." State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the "exceptional case in which the evidence weighs heavily against the conviction." Id.

{¶16} We note the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶17} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins, supra, paragraph two of the syllabus. The standard of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court held as follows: "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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."

{¶18} Appellant was charged with a violation of R.C. 2919.25(C) which states: "No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member." The appellant does not contest that the victim is his grandmother and a household member, so that part of the charge is unchallenged. The victim testified that she feared appellant based upon his actions and threats. While she was confident that he did not have a gun, his threats to do her in, his miming shooting her and the threats toward her when she intended to call the police all can be interpreted as threatening conduct by appellant who was aware that the conduct will probably cause the victim to fear that he would harm her. Further, the police officer's testimony corroborated the victim's description of appellant's behavior as unusual and disturbing.

{¶19} Appellant attempts to discredit the victim with references to inconsistencies in the her statements and testimony, but any contradictions are for the fact finder, in this case the jury, to resolve within its determination of the credibility of the witnesses.

{¶20} We find that 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". Further, we cannot find that this is a case in which ""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," Thompkins, supra, so we must hold that the conviction is not against the manifest weight of the evidence or the sufficiency of the evidence.

{¶21} Appellant's first assignment of error is overruled.

{¶22} In his second assignment of error, appellant contends "the trial court erred in allowing testimony of prior bad acts" in violation of the prohibition in Evid. R. 404(B), referring to appellant's prior action of throwing things, pouring bleach water and smoking marijuana, and that these acts were offered by the State to prove appellant's character and that he acted in conformity with those acts.

{¶23} Appellant's objections refer to two separate portions of the record. The first appears on page 76 of the trial transcript at lines 9 through 19:

Q. And when you—when you describe problems, what you mean problems with him?

A. Okay, (word unintelligible) when he would smoke weed—

MS. ZIPAY: Objection.

THE COURT: Overruled

Q. Keep going.

A. Okay he would smoke weed and then he -- he would be mellowed out for a while, but then when, like I say, he come off is high, he would just get to cursin', callin' me names and just saying what he would do."
The second objection occurs after questions beginning on page 78 and continuing on page 79 of the trial transcript.
Q. Lucille, what you mean by, uh "he did that before,"?

A. Okay, he had act up before and I had to call the cops when he was --before he was pouring bleach water all over the floor and throwing stuff --

MS.ZIPAY: Objection, Your Honor.

THE COURT: Overruled.

A. Okay, the cops had to come and get him before and -- different cops -- that he was acting up before and saying stuff, and even, he talked to them 'cuz they had sent a girl up the steps to try to get him because he refused to come down and he told him to leave alone and he was just doin' stuff before, --
Q. Okay.

A. -- but they took him to the hospital and like I said, then they took him to Massillon State and got him some help, but then he quit takin' his medication and he starts actin' up again.
(Trial transcript, page 78, lines 24-25; page 79, lines 1-14).

{¶24} The admission or exclusion of relevant evidence rests in the sound discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 180, 510 N.E.2d 343 (1987). As a general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120, 122, 573 N.E.2d 622 (1991). Absent an abuse of discretion resulting in material prejudice to the defendant, a reviewing court should be reluctant to interfere with a trial court's decision in this regard. Sage, 31 Ohio St.3d 173.

{¶25} Rule 404(B) of the Ohio Rules of Evidence and R.C. 2945.59 preclude admission of other acts evidence to prove a character trait in order to demonstrate conduct in conformity with that trait. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 16. The Rules of Evidence carve out exceptions: Evidence of other crimes, wrongs, or acts of an accused tending to show the plan with which an act is done may be admissible for other purposes, such as those listed in Evid.R. 404(B)—to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident—and in considering other acts evidence, trial courts should conduct a three-step analysis. The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See Evid.R 403.Williams, at ¶¶ 19-20.

{¶26} In the case at bar, one of the critical facts to be proven is the victim's apprehension of imminent physical harm as a result of the behaviors of the appellant. We have held that testimony regarding prior acts can be relevant to establish the victim's state of mind if the testimony includes limitations regarding the time, place and description of the events. State v. Martin, 5th Dist. Stark No. 2010 CA 00085, 2011-Ohio-810, ¶¶ 29-32. The testimony does provide sufficient evidence of the events—pouring bleach water, throwing things and smoking marijuana, and the location is clearly the home of the victim. The record lacks any clear description of the time or date of these events, making the admission of the evidence potentially prejudicial under our analysis in Martin, supra. However, appellant pursues this line of questioning further during cross examination by asking "And you said that he acts up sometimes because you don't believe he is taking his medication?" and "And over the time that he's living with you, it's just been kind of difficult?" (Trial Transcript, Page 81, Lines 6-7, 12-13). We find that appellant's cross examination regarding past behaviors is a tacit waiver of any objection to allowing the initial testimony. State v. Miller (1988), 56 Ohio App.3d 130, 565 N.E.2d 840, syllabus 1, State v. Steele, 5th Dist. Stark No. CA-8541, 1991 WL 270669, *3 (Dec. 9, 1991).

{¶27} Further, even if we were to determine that such evidence was inadmissible, we find beyond a reasonable doubt that it did not affect the outcome of the trial. State v. Williams, 55 Ohio App.3d 212, 215, 563 N.E.2d 346 (8th. 1988). Based upon the record before us, we conclude that any error in admitting evidence of the past events was harmless beyond a reasonable doubt. Separate from the other acts testimony, the state offered ample evidence of appellant's guilt.

{¶28} Appellant's second assignment of error is overruled.

{¶29} Appellant's third and fourth assignments of error criticize the trial court's actions during jury selection so we will address them together. Appellant complains that the court abused its discretion when it did not remove a juror for cause and when it removed a juror over appellant's objection.

{¶30} The "selection and qualification of jurors are largely under the control of the trial court and, unless an abuse of discretion is clearly shown with respect to rulings thereon, they will not constitute ground for reversal." State v. Trummer, 114 Ohio App.3d 456, 461, 683 N.E.2d 392 (7th Dist.1996), citing Berk v. Matthews, 53 Ohio St.3d 161, 559 N.E.2d 1301 (1990). A juror " * * * ought not to suffer a challenge for cause when the court is satisfied from an examination of the prospective juror or from other evidence that the prospective juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial." State v. Duerr, 8 Ohio App.3d 404, 457 N.E.2d 843 (1st Dist.1982), paragraph two of the syllabus.

{¶31} We therefore hold that the determination of whether a prospective juror should be disqualified for cause is a discretionary function of the trial court. Such determination will not be reversed on appeal absent an abuse of discretion. Berk v. Matthews, supra. 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, 450 N.E.2d 1140 (1983), Brown v. Martin, 5th Dist. Fairfield No. 14-CA-31, 2015-Ohio-503, ¶ 26.

{¶32} We must deny appellant's third assignment of error contending the trial court erred by failing to grant his request to remove Juror Number Four for cause. After appellant's request was denied, he had the opportunity to remove Juror Number Four with a peremptory challenge, but he did not do so. "If the trial court erroneously overrules a challenge for cause, the error is prejudicial only if the accused eliminates the challenged venireman with a peremptory challenge and exhausts his peremptory challenges before the full jury is seated." State v. Tyler, 50 Ohio St.3d 24, 30-31, 553 N.E.2d 576 (1990).State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 87 (2008). Because appellant failed to use a peremptory challenge to remove Juror Number Four, he cannot now claim prejudicial error. State v. Sexton, 5th Dist. Stark No. 1996CA00306, 1998 WL 404477, *5.

{¶33} Appellant's third assignment of error is overruled.

{¶34} Appellant complains that Juror Number Thirteen should not have been removed over his objection "because he did not say or do anything that showed he could not be a fair and impartial juror." (Appellant's Brief, P. 11).

{¶35} Juror Number 13 engaged in a conversation with the assistant prosecutor and, while some of the conversation was inaudible, he did suggest that perhaps he should not be on the jury. Prior to commencement of the trial, juror number 13 complained to the bailiff regarding his selection to sit on the jury and the bailiff relayed that information to the trial court leading to exchange described above.

{¶36} As we noted, trial courts have discretion in determining a juror's ability to be impartial. State v. Williams, 6 Ohio St.3d 281, 288, 452 N.E.2d 1323 (1983). The trial court's removal of a juror for cause "will not be disturbed on appeal unless it is manifestly arbitrary* * *so as to constitute an abuse of discretion.' State v. Tyler, 50 Ohio St.3d 24, 31, 553 N.E.2d 576 (1990). 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, 450 N.E.2d 1140 (1983), State v. D'Ostroph, 5th Dist. Coshocton No. 2017CA0003, 2018-Ohio-232, ¶¶ 33-34.

{¶37} The circumstances of Juror Number Thirteen do not constitute an action that was unreasonable, arbitrary or unconscionable. This court relies upon trial courts to employ their discretion to render a judgment based not only upon the words of the juror but also the physical behavior, tone and emphasis of the juror while making comments and responding to his election to the jury panel. The trial court clearly stated the reasons for removing juror thirteen and we cannot find any support for a finding of abuse of discretion in the record.

{¶38} Appellant's fourth assignment of error is overruled.

{¶39} The decision of the Canton Municipal Court is affirmed. By: Baldwin, J. Gwin, P.J. and Wise, Earle, J. concur.


Summaries of

State v. Norton

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
Mar 4, 2019
2019 Ohio 1212 (Ohio Ct. App. 2019)
Case details for

State v. Norton

Case Details

Full title:STATE OF OHIO Plaintiff - Appellee v. BURELL NORTON Defendant - Appellant

Court:COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

Date published: Mar 4, 2019

Citations

2019 Ohio 1212 (Ohio Ct. App. 2019)