State v. BrauchlerState v. Brauchler
Hon. William B. Hoffman, P.J.
Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
O P I N I O N
APPEARANCES:
For Plaintiff-Appellee:
ROBERT K. HENDRIX
Holmes Co. Prosecutor‘s Office
164 E. Jackson St.
Millersburg, OH 44654
For Defendant-Appellant:
DAVID M. HUNTER
244 West Main St.
Loudonville, OH 44842
{¶1} Appellant Barry L. Brauchler appeals from the February 12, 2019 Judgment Entry of Sentencing of the Holmes County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from the record of appellant‘s jury trial.
{¶3} On January 31, 2018, around 10:30 a.m., a drive-through teller at a bank on North Clay Street in Millersburg noticed a car stopped in the bank‘s fourth lane. The fourth lane is a lane of travel used to exit the parking lot. A man got out of the vehicle, a dark green Lincoln, and paced back and forth. He did not approach the A.T.M. or otherwise appear to have business at the bank.
{¶4} As the teller watched from the drive-through window, she saw the man pacing agitatedly, talking on a cell phone. He waved his arms in the air and walked toward bank customers parked in other drive-through lanes, gesturing at them. The teller called the bank manager over to watch, and they observed one customer roll up her window and drive off without conducting her transaction. At one point the man threw his cell phone down in the parking lot. The teller described the man‘s behavior as “unusual” and threatening toward the bank customers. The employees did not want to confront the man.
{¶5} Unnerved, the bank employees locked the doors and called the Millersburg Police. Captain Kim Hermann was dispatched for a report of a person with vehicle trouble. He found the man, identified as appellant, standing outside the Lincoln with its trunk open. Hermann asked appellant “what was going on,” and appellant responded that he was very thirsty. He also said “someone had taken over control of his vehicle and
{¶6} The driver‘s door of the vehicle was open, and Hermann observed a marijuana “joint” in plain sight on the floor in front of the passenger seat. When asked about the marijuana, appellant said it wasn‘t his but he had smoked it. Hermann asked appellant whether he mother was home but appellant said she was working; Hermann had determined that appellant would not be permitted to drive away from the scene and would have to be picked up.
{¶7} At that point, Hermann intended to write appellant a minor-misdemeanor citation for marijuana possession and to call someone to give appellant a ride. When Hermann asked appellant to sit in the backseat of the cruiser, though, appellant threw his cell phone to the ground and took off “at a jog.” Hermann ran after him, toward a sidewalk leading to the town square. Hermann asked appellant to return to the scene and appellant cooperated, turning around and returning to the bank parking lot without requiring Herrmann to apprehend him.
{¶8} Hermann placed appellant in the back seat of the cruiser and initially allowed him to keep his feet outside of the vehicle because appellant did not want the door shut. Hermann permitted this because appellant was calm and cooperative at that point. Hermann still intended to write a minor-misdemeanor citation for marijuana
{¶9} The bank employees watched the entire encounter from inside the bank. They observed appellant put his feet inside the cruiser and saw Hermann shut the door; then they observed the cruiser “physically shaking” and saw the officers open the doors to attempt to calm appellant. The employees could not see inside the cruiser but assumed appellant was kicking the door.
{¶10} Hermann testified that the molding of the cruiser door was pulled off, and he and Stryker both had minor injuries from the altercation, Hermann to his knee and Stryker to his knuckle. Eventually appellant was cuffed, but a squad was called and appellant was transported to a hospital under sedation. The vehicle was towed.
{¶11} Appellant was charged by indictment as follows: Count I, obstructing official business pursuant to
{¶12} Appellant entered pleas of not guilty and filed a motion to suppress. Appellee filed a memorandum in opposition. A suppression hearing was held and the trial court overruled the motion to suppress by judgment entry dated September 19, 2018.
{¶13} On January 18, 2019, appellee filed a Notice of State‘s Intention to Use Evidence, asserting appellee would introduce evidence of the following prior convictions of appellant pursuant to
{¶14} The matter proceeded to trial by jury, and the minor-misdemeanor drug possession charge was heard by the trial court. Appellant moved for judgments of acquittal pursuant to
{¶15} Appellant filed a motion for leave to file a delayed appeal, which we granted.
{¶16} Appellant now appeals from the February 12, 2019 Judgment Entry of Sentencing.
{¶17} Appellant raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶18} “I. WHETHER THE CONVICTIONS FOR OBSTRUCTING OFFICIAL BUSINESS, CRIMINAL DAMAGING, AND RESISTING ARREST ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE?
{¶19} “II. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION IN LIMINE?”
{¶20} “III. WHETHER THERE WAS MISCONDUCT OF THE PROSECUTOR THAT VIOLATED APPELLANT‘S RIGHT TO A FAIR TRIAL?”
{¶21} “IV. WHETHER THE DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL?”
ANALYSIS
I.
{¶22} In his first assignment of error, appellant argues his convictions upon Counts I through III are against the manifest weight of the evidence.1 Although not specified in the assignment of error, appellant also challenges the sufficiency of the
{¶23} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, 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, “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.”
{¶24} 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, supra, 78 Ohio St.3d at 387. 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.
{¶26} Regarding his conviction for obstructing official business [Count I], appellant argues there was no evidence that his actions inside the police car “alleged[ly] banging on the door” delayed performance of the officers’ official duties, nor created a risk of physical harm to either officer. He also argues there is no evidence his actions were purposeful. “A person acts ‘purposely’ when it is the person‘s specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offender‘s specific intention to engage in conduct of that nature.”
{¶27} Appellant‘s actions inside the cruiser were not merely “alleged;” he admitted striking the door with his shoulder to get the officers’ attention. There is ample evidence appellant‘s actions were purposeful. His actions inside the police cruiser of kicking the door, or slamming his shoulder to the door, were substantial enough to make the
{¶28} During the ensuing struggle, appellant caused physical harm to Hermann and Stryker: Hermann‘s knee was bleeding, and the knuckle of Stryker‘s glove was torn off and his knuckle was bleeding. A risk of physical harm can exist when an officer attempts to restrain a suspect. State v. Gordon, 2017-Ohio-7147, 95 N.E.3d 994, ¶ 22 (9th Dist.), appeal dismissed, 151 Ohio St.3d 1525, 2018-Ohio-557, 91 N.E.3d 757, citing State v. Vactor, 9th Dist. Lorain No. 02CA008068, 2003-Ohio-7195, 2003 WL 23095277, ¶ 39. Appellee was only required to present evidence that appellant‘s actions created a risk of physical harm to any person. Gordon, supra, at ¶ 23, citing State v. Washington, 9th Dist. Lorain No. 11CA010015, 2014-Ohio-1876, 2014 WL 1800410, ¶ 18. In the instant case, appellee presented evidence that physical harm resulted to both officers.
{¶29} We conclude the jury could have reasonably found appellant obstructed official business in struggling with the officers in the back of the cruiser and that his actions created a risk of physical harm.
{¶30} Appellant was also found guilty upon one count of resisting arrest pursuant to
{¶31} Finally, appellant challenges his conviction upon one count of criminal damaging pursuant to
{¶32} We find the trial court did not clearly lose its way and create a manifest miscarriage of justice requiring that appellant‘s convictions be reversed and a new trial
{¶33} The jury as the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness‘s credibility. “While the trier of fact may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant‘s conviction against the manifest weight or sufficiency of the evidence.” State v. Johnson, 2015–Ohio–3113, 41 N.E.3d 104, ¶ 61 (5th Dist.), citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996 WL 284714 (May 28, 1996). The jury need not believe all of a witness’ testimony, but may accept only portions of it as true. Id.
{¶34} Any inconsistencies in the evidence were for the trial court to resolve. State v. Dotson, 5th Dist. Stark No. 2016CA00199, 2017-Ohio-5565, ¶ 49. “The weight of the evidence concerns the inclination of the greater amount of credible evidence offered in a trial to support one side of the issue rather than the other.” State v. Delevie, 5th Dist. Licking No. 18-CA-111, 2019-Ohio-3563, ¶ 30, appeal not allowed, 158 Ohio St.3d 1410, 2020-Ohio-518, 139 N.E.3d 927, citing State v. Brindley, 10th Dist. Franklin No. 01AP-926, 2002-Ohio-2425, 2002 WL 1013033, ¶ 16. In the instant case, appellee‘s evidence was compelling, and the jury was free to weigh appellant‘s self-serving testimony accordingly.
{¶35} We find appellant‘s convictions are not against the manifest weight or sufficiency of the evidence. His first assignment of error is overruled.
{¶36} Appellant‘s remaining assignments of error are related and will be addressed together. He argues that the trial court erred in overruling his motion in limine and in admitting evidence of his prior convictions; that appellee committed prosecutorial misconduct in asking about the prior convictions and pending charges; and that defense trial counsel was ineffective in challenging admission of the prior convictions. We disagree.
{¶37} As noted supra in the statement of procedural history, appellee filed a notice of intent to use evidence of appellant‘s prior convictions and appellant responded with a motion in limine to exclude the evidence.
{¶38} The admission or exclusion of relevant evidence is a matter left to the sound discretion of the trial court. 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. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). We further note that a trial court‘s ruling upon a motion in limine “is a tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory treatment of the evidentiary issue” and “finality does not attach when the motion is granted.” State v. Grubb, 28 Ohio St.3d 199, 201–02, 503 N.E.2d 142 (1986), citing State v. White, 6 Ohio App.3d 1, 4, 451 N.E.2d 533 (8th Dist.1982). The trial court is at liberty to reconsider the ruling if circumstances arise at trial that further reflect upon the admissibility of the disputed evidence. State v. Holbrook, 5th Dist. Licking No. 16-CA-61, 2017-Ohio-2972, ¶ 24.
(A) General Rule. For the purpose of attacking the credibility of a witness:
* * * *
(2) notwithstanding
Evid.R. 403(A) , but subject toEvid.R. 403(B) ,2 evidence that the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the accused was convicted and if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.(3) notwithstanding
Evid.R. 403(A) , but subject toEvid.R. 403(B) , evidence that any witness, including an accused, has been convicted of a crime is admissible if the crime involved dishonesty or false statement, regardless of the punishment and whether based upon state or federal statute or local ordinance.
(B) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of community control sanctions, post-release control, or probation, shock probation, parole, or shock parole imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
{¶40} Appellant argues the trial court erred in overruling the motion in limine and in permitting appellee to cross-examine appellant about convictions older than 10 years because the trial court did not make a determination whether the probative value of admission of the prior convictions outweighed any prejudicial effect. Appellee responds that it was appellant who introduced evidence of his own prior convictions during his direct examination.
{¶41} After appellee rested and before appellant decided whether he would testify, the trial court addressed the admissibility of the prior convictions and appellant renewed his objection thereto, arguing that the prior convictions were irrelevant and
{¶42} Appellant chose to testify and during direct examination, defense trial counsel asked him specifically about each of the prior convictions, including the 2001 “aiding and abetting a robbery and abduction,” a 2005 weapons while under disability, and a 2009 misuse of credit cards and receiving stolen property. Counsel then asked, “Um were those [prior felonies] on your mind in any way when this event was going on?” and appellant responded, “No. I haven‘t been in trouble since then. I mean, it‘s felonies that.” (sic). T. 197.
{¶43} Upon cross-examination, the prosecutor asked appellant whether he had been “in trouble” since, and appellant responded that no, he said he hadn‘t had any felonies. The prosecutor then stated, “In fact right now you‘ve got a charge pending downstairs in Municipal Court and felonies pending.” Defense trial counsel immediately objected and the trial court stated this information was “highly prejudicial” and the prosecutor would be limited to questions about convictions, not cases that were still pending. T. 198. The prosecutor then stated, “You‘ve not been in any trouble since then, no wait, just felonies. You have had multiple criminal convictions since those cases ended, isn‘t that correct?” And appellant answered, “That‘s correct.” T. 198.
{¶44} We agree with appellee that appellant opened the door to the prior convictions. Appellant introduced two issues when he took the stand in his own defense: his prior felony convictions and his credibility, admitting on direct examination he had multiple felony convictions and identifying each of them. Further, appellant claimed, apparently falsely, that he has not been “in trouble” since. Thus, appellant opened the
{¶45} We further note the trial court did give the jury a limiting instruction, instructing the jury that it was to use the evidence of appellant‘s prior crimes only in considering his credibility and not for proving his character. T. 232.
{¶46} Finally, the evidence of appellant‘s guilt was substantial. Hermann‘s testimony about his encounter with appellant was buttressed by photos of the damage to the cruiser and injuries to the police and by the testimony of two bank-employee eyewitnesses. We find that the trial court did not err in permitting evidence of the prior convictions, and note any error was harmless because appellant ultimately introduced the evidence.
{¶47} Appellant next argues the prosecutor committed misconduct in introducing evidence of the prior convictions and in cross-examining him about the pending cases. The test for prosecutorial misconduct is whether the prosecutor‘s remarks and comments were improper and if so, whether those remarks and comments prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 596 (1990). In reviewing allegations of prosecutorial misconduct, we must review the complained-of conduct in the context of the entire trial. Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Prosecutorial misconduct will not provide a basis for reversal unless the misconduct can be said to have deprived appellant of a fair trial based on the entire record. Lott, supra, 51 Ohio St.3d at 166.
{¶49} As we found supra, the trial court did not abuse its discretion in allowing appellee to use appellant‘s prior convictions to impeach his credibility. Appellant‘s testimony on direct examination opened the door to further questioning on cross-examination about his prior convictions. Furthermore, since appellant‘s version of what occurred during the encounter with police contradicted the other witnesses, his credibility was at issue. See, State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 27. Under these circumstances, it was appropriate for the state to impeach appellant and to test his credibility by introducing testimony regarding these prior convictions. Id. Furthermore, we find no undue delay or needless accumulation in permitting such evidence under
{¶50} “No application of justice permits a defendant to intentionally lead a trial court astray and profit from the misdirection that the defendant himself created.” State v. Bachtel, 5th Dist. Holmes No. 99-CA-011, 2001 WL 310638, *3, citing State v. Jennings, 5th Dist. Ashland No. CA-770, unreported, 1982 WL 5564 (November 24, 1982). Furthermore, the trial court instructed the jury that said evidence could be considered for the sole purpose of evaluating appellant‘s credibility.
{¶52} Even if a defendant shows that counsel was incompetent, the defendant must then satisfy the second prong of the Strickland test. Under this “actual prejudice” prong, the defendant must show that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
{¶54} In the instant case, we find appellant has demonstrated neither ineffectiveness by counsel nor resulting prejudice. Appellant does not suggest what counsel should have done differently, other than request a limiting instruction. The record contains extensive discussion of a limiting instruction (T. 214-217) and as noted supra, the trial court did give a limiting instruction regarding appellant‘s prior convictions.
{¶55} Appellant‘s second, third, and fourth assignments of error are overruled.
{¶56} Appellant‘s four assignments of error are overruled and the judgment of the Holmes County Court of Common Pleas is affirmed.
By: Delaney, J.,
and Baldwin, J., Concur with
Hoffman conurring separately
{¶57} I concur in the majority‘s analysis and disposition of Appellant‘s second, third, and fourth assignments of error. I further concur in the majority‘s analysis and disposition of Appellant‘s first assignment of error as it pertains to his convictions for criminal damaging and resisting arrest.
{¶58} I also concur with the majority‘s decision to affirm Appellant‘s conviction for obstructing official business, but do so for a different reason.
{¶59} The majority concludes the jury could have reasonably found Appellant obstructed official business in struggling with the officers in the back of the cruiser which created a risk of physical harm. (Maj. Op. at ¶ 29). I suggest the same situation exists anytime a person resists arrest. But does that mean everyone who resists arrest is also guilty of obstructing official business? I think not.
{¶60} I find it is the actions of Appellant while inside the cruiser to get the officers’ attention which form the underlying basis for the offense. Appellant‘s actions occurred while Deputy Stryker was searching the vehicle. Appellant‘s actions impeded and/or delayed that search. This resulted in the officers redirecting their attention to gaining control of Appellant, and ultimately ended in injury to the officers. Accordingly, I concur in the decision to affirm Appellant‘s conviction on obstructing official business.