STATE OF OHIO, Plaintiff-Appellee, - vs - JOHN A. BROWN, Defendant-Appellant.
CASE NO. 2014-L-032
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
March 16, 2015
[Cite as State v. Brown, 2015-Ohio-950.]
CYNTHIA WESTCOTT RICE, J.
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 13 CR 000592. Judgment: Affirmed.
Paul H. Hentemann, Northmark Office Building, 35000 Kaiser Court, #305, Willoughby, OH 44094-4280 (For Defendant-Appellant).
O P I N I O N
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, John A. Brown, appeals from the judgment of the Lake County Court of Common Pleas convicting him of domestic violence and menacing by stalking. We affirm.
{¶2} Brandy Gallagher had moved into appellant‘s residence on approximately July 1, 2013. The couple had been in a tumultuous, albeit romantic, relationship for approximately two years. At the time, Ms. Gallagher had no other residence, and she
{¶3} At 4:00 p.m. that afternoon, appellant arrived at his home and began drinking. Ms. Gallagher was in the process of packing her belongings when the couple began to argue. As the argument escalated, appellant pushed Ms. Gallagher and she fell to the couch. Appellant also threatened to cut Ms. Gallagher up and bury her in a location where the couple had previously gone fishing.
{¶4} The argument continued as the evening wore on and, later, appellant picked up a utility box cutter as he and Ms. Gallagher were “having words.” Ms. Gallagher, concerned appellant would hurt her or himself, grabbed the wrist of the hand holding the box cutter. As she tried to take the implement from him or force him to drop it, appellant maneuvered his hand in such a way as to cut the top of Ms. Gallagher‘s hand several times. With Ms. Gallagher bleeding, appellant dropped the box cutter. Appellant told Ms. Gallagher if she told the neighbors about the incident, he would kill her. The left side of the shorts Ms. Gallagher was wearing was covered with blood from the injuries she sustained. Ms. Gallagher retrieved the box cutter and placed it in a cooler in the kitchen.
{¶5} Ms. Gallagher remained in the house and called the couple‘s neighbor, Holly Johnson, requesting cigarettes. Ms. Johnson later visited the house. Ms. Gallagher did not relate the incident to Ms. Johnson and Ms. Johnson did not specifically notice the cuts on Ms. Gallagher‘s hand or the blood on her shorts. Shortly
{¶6} At approximately 9:00 p.m., Patrolmen Matthew Gosnik and Ronald Hess from the Madison Township Police Department were dispatched to the location. The dispatch indicated there had been a domestic violence dispute between a couple involving a knife and the male threatened to “chop up” the female and “leave her in the woods.”
{¶7} Upon arriving, Patrolman Gosnik met with Ms. Gallagher, who appeared upset. He observed several cuts on the top of her hand and the blood on her shorts. Ms. Gallagher retrieved the box cutter from the cooler and gave it to the officer; the blade appeared to have dried blood and blond hair fibers on it. Ms. Gallagher‘s explanation of the event was consistent with her injuries.
{¶8} Patrolmen Hess and Gosnik spoke with appellant outside the home. Appellant denied both threatening as well as cutting Ms. Gallagher. He acknowledged, however, Ms. Gallagher had cut her hand earlier; he claimed he was eating a piece of cheese, tasted and observed blood on it, and concluded she must have cut herself while slicing the cheese. After inspecting the block of cheese in the home, however, they observed no blood on the cheese or bag in which it was contained. Appellant was ultimately arrested.
{¶9} On October 21, 2013, appellant was indicted by the Lake County Grand Jury on one count of felonious assault, a felony of the second degree, in violation of
{¶10} The matter proceeded to jury trial on January 21, 2014. Prior to trial, the prosecution moved the court to call Ms. Gallagher as a “court‘s witness” pursuant to
{¶11} After hearing the evidence, the jury found appellant not guilty of felonious assault, but guilty of both domestic violence and menacing by stalking. The matter was referred to the Lake County Adult Probation Department for a presentence investigation report and victim impact statement. After a hearing, appellant was sentenced to two years of community control; he was further ordered to serve 100 days in the Lake County Jail, with credit for 55 days. Additional sanctions and conditions of probation, none of which are specifically relevant to this appeal, were also part of appellant‘s sentence.
{¶12} Appellant assigns four errors for this court‘s review. For ease of discussion, appellant‘s assignments of error shall be addressed out of order. Appellant‘s second assignment of error asserts:
{¶13} “The defendant-appellant, John A. Brown, contends that the trial court erred when it granted the state‘s request to call Brandy Gallagher as a Court witness pursuant to
{¶14} Under this assigned error, appellant argues the trial court abused its discretion by granting the state‘s request to call the victim, Ms. Gallagher, as a court‘s witness, pursuant to
{¶15}
{¶16} Preliminarily, the state did not specifically characterize or suggest Ms. Gallagher was or would be a hostile witness. Rather, the state specifically requested the court to call her as its witness due to certain concerns regarding Ms. Gallagher‘s background and pre-trial acts and/or omissions; namely, she had been in a romantic relationship with appellant and, at the time of trial, she may have rekindled the
{¶17} [Ms. Gallagher] failed to appear for a couple meetings with the State. Not required to meet with them obviously, but she‘s failed to appear for meetings with the prosecutor to discuss matters. She has met with [defense counsel].
{¶18} There does appear to be an allegation here, doesn‘t seem to be disputed that there is a, was a relationship between the parties. You even indicated, meaning [defense counsel], that she continues to contact the Defendant in this case. I believe the standard for calling her as a Court‘s witness has been met
{¶19} This court has previously recognized that it may be the most prudent course to actually determine that a witness is varying materially from prior statements before calling her as a court‘s witness for impeachment purposes. Knapp, supra, at ¶72. Still,
{¶20} In this matter, it is clear the court was concerned that Ms. Gallagher‘s past and present relationship with appellant and her voluntary contact with appellant‘s counsel prior to trial, particularly in light of the fact that she refused to meet with the prosecutor, might affect her testimony at trial. In light of these foundational facts, the court possessed a reasonable basis to conclude that Ms. Gallagher would testify inconsistently with her prior statements to police; and, moreover, as the complaining witness, her testimony was unquestionably vital to ascertaining the truth in the matter. Accordingly, we hold the court was reasonably justified in calling Ms. Gallagher as a court‘s witness. We discern no abuse of discretion in the court‘s determination.
{¶21} One final point deserves attention. Appellant contends that calling Ms. Gallagher as a court‘s witness before any testimony was taken was merely an improper means to contravene
{¶22} Superficially, appellant is correct that
{¶23} In this matter, we have previously concluded the trial court‘s determination that Ms. Gallagher should be called as a court‘s witness was a reasonable exercise of its discretion. In this respect, the record does not support appellant‘s contention that the state used
{¶24} Appellant‘s second assignment of error lacks merit.
{¶25} Appellant‘s third and fourth assignments of error are related and shall therefore be addressed together. They provide:
{¶26} “[3.] The trial court failed to grant defendant-appellant‘s Rule 29 motion at the conclusion of the state‘s case.
{¶27} “[4.] The trial court failed to grant defendant-appellant‘s Rule 29 motion relative to the stalking charge.”
{¶29} A “sufficiency” argument raises a question of law as to whether the prosecution offered some evidence concerning each element of the charged offense. State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he proper inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Troisi 179 Ohio App.3d 326, 2008-Ohio-6062 ¶9 (11th Dist.).
{¶30} With respect to appellant‘s conviction for domestic violence, the state was required to offer some evidence that appellant knowingly caused or attempted to cause physical harm to a family or household member. See
{¶31} Appellant argues that the state failed to prove Ms. Gallagher was a “family or household member.” In particular, he argues the evidence failed to establish the parties had any intent to permanently dwell with one another. And, as a result, he maintains the state failed to prove, beyond a reasonable doubt, Ms. Gallagher was cohabitating with appellant. We do not agree.
{¶33} In State v. McGlothan, 138 Ohio St.3d 146, 2014-Ohio-85, the Court clarified that the “sharing of familial or financial responsibilities” does not require evidence of shared living expenses to establish cohabitation; rather, such conduct is merely one of a non-exhaustive list of factors a court may consider in determining cohabitation, none of which are, by themselves, a necessary condition for cohabitation.1 Id. ¶13-14. The Court emphasized that the domestic violence statute was enacted because the General Assembly “‘believed that an assault involving a family or household member deserves further protection than an assault on a stranger.‘” Id. at 17, quoting Williams, at 463. And that domestic violence legislation represents the General Assembly‘s desire to offer protection to a wide class of persons that include family members as well as residents of the same household. Id. at ¶17, citing State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, ¶32.
{¶34} In this case, evidence was presented that, although Ms. Gallagher had not resided with appellant for a lengthy period, she was indeed cohabitating with him at the time of the incident. At trial, Patrolman Ronald Hess testified he responded to appellant‘s home based upon a dispatch indicating there was a dispute involving a
{¶35} Finally, Ms. Gallagher testified she and appellant were in an intimate, romantic relationship at the time she agreed to live with him. And, during the brief period she resided in his home, they stayed under the same roof and shared food, utilities, as well as other amenities in the home.
{¶36} From the foregoing, we conclude the state presented sufficient evidence to establish appellant and Ms. Gallagher shared shelter, food, and utilities and, as a result, shared familial responsibilities. Moreover, while living in the home, appellant and Ms. Gallagher were involved in a romantic, intimate, and, therefore, conjugal relationship sufficient to establish consortium. As a result, we hold there was adequate, persuasive evidence for the jury to conclude, beyond a reasonable doubt, Ms. Gallagher was a “household member” who was “living as a spouse” to the extent she was “cohabitating,” as discussed in Williams and McGlothan, with appellant at the time of the incident. The evidence upon which appellant‘s domestic violence conviction was premised was therefore sufficient.
{¶37} Appellant was also convicted of menacing by stalking, in violation of
{¶38} ”
{¶39} Appellant, without any detailed argumentation, simply asserts the state failed to submit sufficient evidence to prove the elements of aggravated menacing. We do not agree with appellant‘s contention.
{¶40} At trial, evidence was adduced that, on January 29, 2012, appellant and Ms. Gallagher were at a party thrown by a neighbor of appellant. Later in the evening, appellant left the home, but Ms. Gallagher remained. One of the attendees, Tyler Dahlin, had laid down on a couch and started to fall asleep. He stated Ms. Gallagher was in a recliner in the same room. Mr. Dahlin was awakened by appellant reentering the home and yelling at Ms. Gallagher. He observed appellant, in a fit of anger, push
{¶41} Ms. Gallagher testified that she and appellant were fighting because appellant accused her of having an affair. She stated, however, that appellant merely grabbed her in an attempt to get her out of the house and, in the process, she fell due to her intoxication. Nevertheless, because of the fall, she had an MRI and was treated with pain medication.
{¶42} On October 12, 2012, Chae DiPietro, Ms. Gallagher‘s adult daughter, received a call from her mother. Ms. DiPietro testified her mother was whispering into the phone and she sounded scared and worried. Ms. Gallagher asked her daughter to call the police, which she did. Earlier that day, Ms. Gallagher had taken a trip to Erie, Pennsylvania with appellant in a limousine. They went to a casino where appellant became intoxicated and had a loud confrontation with Ms. Gallagher in which he accused her again of having an affair. Appellant berated Ms. Gallagher, calling her a slut and a whore; appellant was ultimately asked to leave the casino and, on the way home, Ms. Gallagher called her daughter.
{¶43} Police greeted appellant and Ms. Gallagher at appellant‘s house. According to Sergeant Matthew Byers from the Madison Township Police Department
{¶44} Finally, on July 9, 2013, the day of the underlying incident, Ms. Gallagher was moving out of appellant‘s house, when another argument commenced. During the exchange, appellant, again, cast various epithets at Ms. Gallagher and, at one point, pushed her to the couch. Appellant additionally threatened to cut Ms. Gallagher up and bury her where they had previously gone fishing. The argument continued and, eventually, appellant picked up a box cutter. In her statement to police, Ms. Gallagher asserted she could see the blade of the box cutter and appellant cut her with the implement multiple times on the hand. Appellant dropped the box cutter and Ms. Gallagher placed it in a cooler. After appellant left the house, she called the police.
{¶45} Ms. Gallagher testified that she was cut not through an intentional action of appellant, but when she grabbed his wrist to urge him to put the blade on the table. While holding his wrist, she testified, appellant attempted to pull away, at which point, the tip of the blade scratched her skin multiple times.
{¶46} Given the foregoing facts, the jury could conclude, beyond a reasonable doubt, that, through a pattern of conduct, appellant knowingly caused her to believe that he would cause physical harm or mental distress to Ms. Gallagher. In each of the three instances detailed above, one could reasonably conclude that appellant was aware his conduct, whether through a physical act or verbal abuse/threats, would probably cause
{¶47} Appellant‘s third and fourth assignments of error are without merit.
{¶48} Appellant‘s first assignment of error provides:
{¶49} “Because the appellant‘s felonious assault and domestic violence charges were committed by way of a single act and with a single state of mind, they are allied offenses pursuant to
{¶50} Under this assignment of error, appellant contends that had he been convicted of both felonious assault and domestic violence, the guilty findings would have merged for purposes of sentencing because the charges were based upon the same conduct and committed with the same state of mind. Appellant maintains the doctrine of merger should also apply to abrogate a conviction when a jury has reached an acquittal on a charge that arises out of the same conduct and state of mind as the charge of which a defendant is convicted. Applying this logic, appellant maintains that his acquittal on the felonious assault charge operated to preclude the jury from finding him guilty of domestic violence because each charge was premised upon the same
{¶51} First of all, the record does not indicate appellant raised this argument before the trial court. It is accordingly waived save plain error.
{¶52} The doctrine of merger, codified under
{¶53} It may be true that the charges of felonious assault and domestic violence would have merged had the jury found appellant guilty on each count. It does not follow, however, that an acquittal on the felonious assault charge necessitates an acquittal on the domestic violence charge. The elements of the felonious assault and the domestic violence charge against appellant were not the same such that an acquittal on one charge would necessarily lead to an acquittal on the other.
{¶55} To this point, the Supreme Court of the United States has determined that the sanctity of a jury verdict should be preserved despite potential inconsistencies. Dunn v. United States, 284 U.S. 390, 393 (1932). And an acquittal on one count cannot be asserted as res judicata as to another count, even though the evidence was the same to support each verdict. Id. In Dunn, the court observed:
{¶56} “The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant‘s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to
exercise, but to which they were disposed through lenity.” Id., quoting Steckler v. United States, 7 F.2d 59, 60 (2d Cir.1925)
{¶57} In sum, appellant was not entitled to have the trial court negate his conviction for domestic violence simply because the jury acquitted him on the felonious assault charge. Even though both crimes were premised upon the same conduct, the jury was free to weigh the evidence and arrive at a conclusion that reflected its perception of the facts and circumstances of the case.
{¶58} Appellant‘s first assignment of error lacks merit.
{¶59} For the reasons discussed in this opinion, the judgment of the Lake County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.