STATE OF OHIO v. DANIEL BURNHAM
CASE NO. 09 MA 82
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
June 16, 2010
2010-Ohio-3275
Hon. Mary DeGenaro, Hon. Joseph J. Vukovich, Hon. Gene Donofrio
Criminal Appeal from Mahoning County Court No. 4, Case No. 2008 CRB 01120AUS.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains, Prosecuting Attorney; Attorney Ralph M. Rivera, Assistant Prosecuting Attorney, 21 W. Boardman St., 6th Floor, Youngstown, OH 44503
For Defendant-Appellant: Attorney Damian Billak, City Centre One Bldg., 100 Federal Plaza East, Suite 101, Youngstown, OH 44503; Attorney Rhys Cartwright-Jones, 42 N. Phelps Street, Youngstown, OH 44503
DeGenaro, J.
{¶1} This timely appeal comes for consideration upon the record in the trial court, and the parties’ briefs. Defendant-Appellant, Daniel E. Burnham, appeals the decision of the Mahoning County Court No. 4 convicting him of one count of assault pursuant to
{¶2} Any rational fact-finder could have found the essential elements of assault proven beyond a reasonable doubt. The trial court did not commit plain error by allowing one of the State‘s witnesses to testify about out-of-court statements made by her unidentified friend. Finally, in convicting Burnham the trial court did not clearly lose its way so as to create a manifest miscarriage of justice. Accordingly, we affirm the judgment of the trial court.
Facts and Procedural Background
{¶3} On October 8, 2008, Burnham was charged by complaint with one count of assault, pursuant to
{¶4} William testified that on the evening of September 13, 2008, he went to Billy‘s Bar with his wife Diana to watch part of a football game where they stayed for approximately two hours. As William and Diana exited the bar, William said someone punched him in the jaw and he fell unconscious to the ground. William was unable to identify who hit him. When he regained consciousness, he walked out of the bar and to his truck. William stated he did not know why he was attacked and claimed he did nothing to provoke the incident. After the assault, he and Diana went home so he could change out of his bloody clothing and thereafter the two went to the hospital. As a result of the assault, William suffered a broken nose, a hurt back, and his eyes were black and
{¶5} Diana testified that while at Billy‘s Bar with her husband she consumed half of a beer. They sat at a table which was about 20-30 feet from the exit. The bar was very crowded and a lot of people were standing. After the football game ended, she and William decided to leave. Diana walked towards the exit, with William following behind her, holding her hand. Neither she nor her husband bumped into anyone or said anything mean-spirited to anyone on their way out. Suddenly, William let go of Diana‘s hand and Diana heard a loud commotion behind her. She turned around to look and saw William on the ground with several young men circled around him, kicking him while he was unconscious and unable to defend himself. Diana tried to throw herself onto William to protect him, but several people pushed her away. When she finally reached William, she saw Burnham, straddled over William and punching William in the face repeatedly while he lay unconscious on the floor. Diana identified Burnham as the defendant in the courtroom.
{¶6} Diana testified that earlier in the evening, before the fight, Burnham was dancing with another man at the bar. One of Diana‘s friends pointed out Burnham dancing and told Diana the man‘s first name was Daniel. After the fight, while Diana was at the hospital with her husband, Diana called her friend and asked for the first and last name of the man who was dancing because that was the same man she later saw hitting William. This friend had left Billy‘s Bar prior to the assault. Diana agreed there was no question in her mind that Burnham was the individual she saw hitting her husband that night.
{¶7} Bar owner Julie Brauer testified she was at Billy‘s Bar that evening. She said she was familiar with Burnham as he was a regular customer. When the scuffle broke, Brauer was on the opposite end of the bar. She ran over to see what was happening, however, by the time she made it to the area where the fight took place everyone had scattered into the parking lot. She did not see William on the floor. Brauer recalled passing Burnham as she walked from the other side of the bar to the area where the scuffle took place.
{¶8} Burnham testified in his own defense. He claimed he was playing darts at
{¶9} Burnham‘s friend Desmond also testified for the defense. Desmond said that while he was playing darts with Burnham he heard a female screaming at the front of the bar and ran up to see what was happening. He said that by the time he got there the commotion had moved outside to the parking lot. Once outside, Desmond saw two men rolling around on the ground fighting, and heard someone comment something to the effect of “that‘s my F-ing wife.” He identified one of the men as William, and said William had blood on his shirt and face and appeared to be losing the fight.
{¶10} Desmond said he never saw four or five men beating on one person. He claimed he never saw Burnham outside and he never saw Burnham hit William. Desmond said he tried to control the mass of people outside by telling everyone they either needed to go home or get in the bar. Desmond testified he made that statement in an attempt to prevent further fighting. He admitted that Brauer, the bar owner, is his cousin. He admitted he did not try to call the police, nor did he request that the bartender call police.
{¶11} After considering all the evidence, the trial court found Burnham guilty of the assault charge and not guilty of the complicity charge. The court sentenced Burnham to 180 days in jail with 150 days suspended, a $250 fine plus court costs, twelve months of community control, and restitution to the victim for out-of-pocket expenses related to the injuries. The court also ordered that Burnham have no contact with the victim or his family.
{¶12} Burnham, through his counsel, filed a motion to modify his sentence on April 10, 2009, requesting that he be permitted to serve the remainder of the sentence on electronically-monitored house arrest.
Sufficiency
{¶14} In his first assignment of error, Burnham asserts:
{¶15} “The trial court based its conviction on insufficient evidence.”
{¶16} Initially, we note that Burnham‘s sufficiency argument as presented is entirely based upon his claim that various pieces of evidence were inadmissible. Specifically, Burnham contends that the only evidence implicating him as the attacker, i.e., Diana‘s testimony, was improperly admitted.
{¶17} However, in State v. Peeples, 7th Dist. No. 07 MA 212, 2009-Ohio-1198, this court rejected the notion that an appellate court must first determine whether any evidence was inadmissible and then review the sufficiency of only the admissible evidence. Id. at ¶16. Rather, in reviewing whether a conviction is supported by sufficient evidence, “[i]t is well-established that the appellate court is to consider all of the testimony before the jury, whether or not it was properly admitted. State v. Yarbrough, 95 Ohio St.3d 227, 767 N.E.2d 216, 2002-Ohio-2126, ¶80, citing Lockhart v. Nelson (1988), 488 U.S. 33, 40-42, 109 S.Ct. 285, 102 L.Ed.2d 265. See, also, State v. Goff (1998), 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (failing to use the word “admissible” before “evidence” in the standard sufficiency test).” (Emphasis sic.) Peeples at ¶17.
{¶18} Thus, we will first address the sufficiency challenge looking at the totality of the evidence presented at trial, and then separately analyze Burnham‘s evidentiary arguments. “Sufficiency of the evidence is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the jury verdict.” State v. Smith (1997), 80 Ohio St.3d 89, 113, 684 N.E.2d 668. Thus, sufficiency is a test of adequacy. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. “Whether the evidence is legally sufficient to sustain a verdict is a question of law.” Id. “In reviewing the record for sufficiency, ‘[t]he
{¶19} Burnham was convicted of one count of assault pursuant to
Evidentiary Issues
{¶20} Burnham also contends within his first assignment of error that the trial court erred by admitting Diana‘s testimony which identified Burnham as William‘s assailant. He claims Diana‘s testimony was improper for several reasons: (1) it violated his Confrontation Clause rights; (2) it was inadmissible hearsay; and (3) it was the product of illegal leading questions by the prosecutor. Specifically, Burnham takes issue with Diana‘s testimony that her friend told her one of the men they saw dancing at the bar earlier in the evening was named Daniel Burnham.
{¶21} However, as Burnham concedes, the defense did not object to Diana‘s testimony at trial. It is well-established that the failure to object at a time when the problem could have been avoided waives all but plain error. See, e.g., State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶132. See, also,
{¶22}
{¶23} The trial court did not commit plain error. First, Diana‘s testimony that her friend told her Burnham was one of the men dancing at the bar did not violate Burnham‘s Confrontation Clause rights. The Sixth Amendment‘s Confrontation Clause only applies to testimonial statements. Crawford v. Washington (2004), 541 U.S. 36, 61, 124 S.Ct. 1354, 158 L.Ed.2d 177. For Confrontation Clause purposes, a testimonial statement includes statements that fall into three “core classes“: (1) ex parte in-court testimony or its functional equivalent, i.e., material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; (2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, and (3) statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, at ¶19, 36, following Crawford. Here, Diana testified she called her friend and asked for the full name of the man they saw dancing earlier in the evening. Diana related that her friend told her the man‘s name was Daniel Burnham. We conclude this statement does not fall into any of the above classes and is nontestimonial. Cf. State v. Meyers, 2d Dist. No. 2006 CA 2, 2006-Ohio-6125, at ¶10 (witness‘s testimony that friend told her before the shooting that defendant was riding around her house was nontestimonial).
{¶24} Moreover, Diana‘s testimony regarding what her friend told her is not hearsay. “Hearsay is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
{¶25} Alternatively, Burnham contends that Diana‘s testimony identifying Burnham should not have been admitted because it was the product of illegal leading questions by the prosecutor. We disagree. Diana‘s initial identification testimony was the product of open-ended questions. Diana testified she saw Burnham, straddling over William on his knees and punching him in the face repeatedly while William lay unconscious on the floor. Diana then identified Burnham as the defendant in the courtroom.
{¶26} During direct and cross-examination, Diana testified that earlier in the evening, before the fight, Burnham was dancing with another man at the bar. She said that one of her friends pointed out Burnham dancing and told Diana the man‘s first name was Daniel. Diana‘s friend was not present at the time of the assault against William; she had already left the bar. After the fight, while Diana was at the hospital with William, she called her friend and asked for the first and last name of the man who was dancing because that was the same man she later saw hitting William.
{¶27} In order to later clarify that testimony on redirect, the prosecutor did use some leading questions:
{¶28} “Q. Ma‘am, I‘m going to ask you a question. Pay attention, okay? What drew your attention to this defendant? Was it previously he was dancing in Billy‘s Bar with another male?
{¶29} “A. Yes.
{¶30} “Q. And your lady friend told you who he was by name?
{¶31} “A. Yeah.
{¶32} “Q. But you couldn‘t remember the name when it was important to tell the police who it was that you saw hitting, striking you husband with his fist?
{¶33} “A. Yeah.
{¶34} “Q. So you had to call her to refresh your memory?
{¶35} “A. Yes.
{¶36} “Q. So actually, the defendant here was the person who drew the attention
{¶37} “A. Yeah.
{¶38} “Q. When your husband saw him dancing with another guy, did your husband make a disparaging remark about two men dancing?
{¶39} “A. No. They weren‘t dancing together like - -
{¶40} “Q. What were they doing?
{¶41} “A. Just like dancing. All I remember is that‘s how I knew that was the same kid that was on top of him.
{¶42} “Q. Because you had seen him earlier that evening?
{¶43} “A. Correct.
{¶44} “Q. Any question in your mind that this is the individual that you saw hitting your husband?
{¶45} “A. No.
{¶46} “Q. Huh?
{¶47} “A. No. There‘s no question, sir.”
{¶48} The use of leading questions by the prosecutor does not constitute plain error in this case. “[E]ven on direct examination, leading questions are not strictly prohibited. The portion of the rule allowing leading questions to develop testimony is very broad. The trial court has latitude to exercise sound discretion in determining whether to allow leading questions on direct examination.” State v. Stragisher, 7th Dist. No. 03 CO 13, 2004-Ohio-6797, at ¶88; see, also,
{¶49} In Stragisher, this court held that the trial court did not abuse its discretion by allowing the use of leading questions by the prosecutor during redirect of the state‘s witnesses. This court noted that “if the prosecutor already elicited the evidence from the witness on direct examination without the use of leading questions or the defendant elicited the evidence on cross-examination, then the use of leading questions to review the testimony on re-direct is permissible.” Id. at ¶89. This court concluded that the use of leading questions was proper because the “prosecutor was just reviewing prior testimony and summing it up for quick reconfirmation.” Id. at ¶90.
Manifest Weight
{¶51} In his second assignment of error, Burnham asserts:
{¶52} “The manifest weight of the evidence supported acquittal.”
{¶53} In determining whether a verdict is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences and determine 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 (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541.
{¶54} “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.” (Emphasis sic.) Id. In making its determination, a reviewing court is not required to view the evidence in a light most favorable to the prosecution but may consider and weigh all of the evidence produced at trial. Id. However, a conviction will only be reversed as against the manifest weight of the evidence in exceptional circumstances. Id. This is so because the trier of fact is in a better position to determine credibility issues, since he personally viewed the demeanor, voice inflections and gestures of the witnesses. State v. Hill (1996), 75 Ohio St.3d 195, 204, 661 N.E.2d 1068; State v. DeHass (1967), 10 Ohio St.2d 230, 231, 39 O.O.2d 366, 227 N.E.2d 212.
{¶55} Ultimately, “the reviewing court must determine whether the appellant or the appellee provided the more believable evidence, but must not completely substitute its judgment for that of the original trier of fact ‘unless it is patently apparent that the
{¶56} Burnham argues that even if this court finds there was sufficient evidence supporting his conviction, that the greater weight of evidence supports acquittal. However, the outcome of this case essentially turned on a credibility call by the trial court as fact-finder. The court could have believed Burnham and his friend Desmond, who both testified that Burnham did not participate in the beating. On the other hand, the court could have believed Diana‘s testimony that Burnham punched William in the face repeatedly after he had fallen unconscious to the ground. Neither version of events is completely unbelievable, and therefore we defer to the credibility determination made by the trier of fact. The trial court did not clearly lose its way so as to create a manifest miscarriage of justice. Accordingly, Burnham‘s second assignment of error is meritless.
Conclusion
{¶57} All of Burnham‘s assignments of error are meritless. His conviction is not against the weight or the sufficiency of the evidence. Further, the trial court did not commit plain error in admitting Diana‘s testimony identifying Burnham as William‘s assailant. Accordingly, the judgment of the trial court is affirmed.
Vukovich, P.J., concurs.
Donofrio, J., concurs.
Dated: June 16, 2010