STATE OF OHIO, PLAINTIFF-APPELLEE, v. MICHAEL T. GALBRAITH, DEFENDANT-APPELLANT.
CASE NO. 9-11-61
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
November 13, 2012
2012-Ohio-5231
ROGERS, J.
Aрpeal from Marion County Common Pleas Court, Trial Court No. 11-CR-231. Judgment Affirmed.
Kevin P. Collins for Appellant
Brent Yager for Appellee
{1} Defendant-Appellant, Michael Galbraith, appeals the judgment of the Court of Common Pleas of Marion County convicting him of assault on a corrections officer. On appeal, Galbraith claims that the trial court erred by: (1) handing down a conviction that was against the manifest weight of the evidence; (2) admitting testimony regarding his intent; (3) excluding testimony regarding his injuries; (4) refusing to instruct the jurors on the defense of voluntary intoxicаtion; and (5) failing to provide a fair trial due to the existence of cumulative error. For the reasons that follow, we affirm the judgment of the trial court.
{2} On May 26, 2011, the Grand Jury of Marion County indicted Galbraith with one count of assault on a corrections officer in violation of
{3} A jury trial commenced on October 11, 2011 and ended the next day. The following relevant evidence was presented at trial.
I asked [Galbraith] if he was gonna cooperate and he just looked at me and told me “f[---] you.” And I said, “do you have anything in your pockets that‘s gonna poke, stick me or my officer [during the pat-down search]?” He said, “well, f[------] find out yourself.” * * * He would not let us pat him down. He tried turning on us a couple times at the cоunter so we secured him again, gave him another chance to let us pat him down and everything and just – “I‘ll f[---] you guys up.” Id. at 93-94.
{5} Since Galbraith continued to be uncooperative, the officers decided to take him to the ground in an attempt to subdue him. Sergeant King described the incident as follows:
A: He [Galbraith] – I was standing to his left straddling his left leg, securing his left arm, and just as we were getting ready to take him to the ground, he lifted his leg up, he tried to take out my left knee.
Q: Did he actually strike you with his left foot?
A: Yes.
Q: I guess a horse kick, would that be a good description?
A: Yes. Id. at 94.
{6} During Sergeant King‘s testimony, the State played the video of the incident, which was admitted as Joint Exhibit 1. When the kick occurred, Officer Isom was standing in a position that obstructed the camera‘s view. However, the video shows Galbraith picking his leg up before delivering the kick described by Sergeant King and it shows Sergeant King reacting to the kick. The video also shows the resulting scuffle in which the corrections officers subdued Galbraith.
{7} The State later called Nurse Mary Sprang, who is an in-house licensed practical nurse (“LPN“) at Multi-County. On cross-examination, Galbraith‘s trial counsel attempted to elicit testimony regarding the existence and treatment of Galbraith‘s knee injury:
Q: After [Galbraith‘s] second refusal [of medical treatment] you then checked Mr. Galbraith the next day, didn‘t you?
A: No, the other nurse did, yeah, on the day shift, and she contacted the doctor.
Q: Did you ever x-ray Mr. – x-ray Mr. Galbraith to see that his knee was fractured, didn‘t you?
* * *
[Prosecutor]: Judge, I‘ll object. I don‘t believe she is in a position to do that.
The Court: Ask her what she did to treat this gentleman.
Q: What did you do to treat Mr. Galbraith?
A: I don‘t know how to answer you, but the other nurse called the doctor – can I just tell you what happened, is that okay?
* * *
The Court: Hang on a minute. What did you do to treat this gentleman during this period of time? Your treatment of him, what did you do with him?
A: When I got the x-ray results back I notified the doctor.
The Court: From whom?
A: I didn‘t get the order from the x-ray, Judge.
The Court: All right, that‘s your answer.
Q: What did the x-ray results indicate?
[Prosecutor]: Object Judge, it calls for a hearsay answer.
The Court: That‘s sustained.
Q: You notified [a police officer] that Mr. Galbraith had a fractured knee and needed to go to the Marion General Hospital, didn‘t you?
A: No –
[Prosecutor]: Judge, once again I‘ll object.
The Court: Hold it. Approach. Id. at 159-61.
Q: What did you observe when Mr. Galbraith came back from the hospital, Nurse Sprang?
A: When he came back from the hospital?
Q: From Marion General?
A: He had an immobilizer on –
[Prosecutor]: Judge, I‘ll object. I‘m not sure how it‘s relevant.
The Court: Sustained. Id. at 162-63.
Galbraith‘s trial counsel put a proffer on the record as to what Nurse Sprang‘s testimony would cover:
For the record I would like to proffer that Nurse Sprang would testify that Mr. Galbraith was given a portable x-ray at Multi-County Jail which indicated that he had a fracture of his knee the next morning. The next evening she ordered him sent to Marion General for the knee fracture and that they also indicated his knee was – his kneecap was fractured. At that time she would have followed the doctor‘s orders, and she would indicate such in her nurse‘s notes. And she did tell me that she did do an x-ray at the correctional institute and then an x-ray at Marion General and Morrow County Hospitals. All indicated a fracture of the kneecap. Id. at 189-90.
Officer Isom was present throughout the incident in which Galbraith allegedly kicked Sergeant King and he testified as follows:
A: As I‘m walking around the [booking] counter I see [Galbraith] starting coming off the counter like he‘s trying to swing around on [Sergeant King]. * * * [S]o when I came around the corner I saw him try to turn and then I saw [Galbraith] pick up his left leg and kick back toward Sergeant King‘s knee and I kind of saw Sergeant King‘s knee kind of go out from him * * *.
Q: So you saw [Galbraith] rear up and kick at Sergeant King?
A: Saw him lift his leg up and kick back. Id. at 170.
On cross-examination, Officer Isom did a physical demonstration of Galbraith‘s kicking motion that was consistent with Sergeant King‘s earlier demonstration. Then, on redirect examination, Officer Isom testified that Galbraith was “trying to take out [Sergeant King‘s] knee” and that he was attempting “to cause injury” to Sergeant King. Id. at 187.
{10} During the pendency of thе trial, Galbraith filed proposed jury instructions on October 12, 2011. The proposal included a request for a voluntary intoxication instruction that read “[i]ntoxication is not an excuse for an offense.
{11} On October 12, 2011, the jury returned a guilty verdict against Galbraith. The matter then proceeded to sentencing with a hearing on December 12, 2011 for that purpose. On December 14, 2011, the trial court issued a judgment entry of sentencing that ordered Galbraith to serve 11 months in prison.
{12} Galbraith filed this timely appeal, presenting the following assignments of errоr for our review. Before listing those assignments of error, we preliminarily note that the State did not file an appellate brief.
Assignment of Error No. I
DEFENDANT-APPELLANT‘S CONVICTION FOR ASSAULT IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
THE TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING OFFICER ISOM TO TESTIFY ABOUT DEFENDANT-APPELLANT‘S INTENT.
Assignment of Error No. III
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY EXCLUDING TESTIMONY OF NURSE SPRANG.
Assignment of Error No. IV
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY REFUSING TO GIVE THE JURY INSTRUCTION REGARDING INTOXICATION.
Assignment of Error No. V
THE COMBINATION OF THE AFOREMENTIONED ERRORS ARE SUFFICIENT TO CALL INTO QUESTION THE VALIDITY OF THE VERDICT, PREVENTING THE APPELLANT FROM OBTAINING THE FAIR TRIAL GUARANTEED BY THE FIFTH AND SIXTH AMENDMENTS TO THE U.S. CONSTITUTION AS MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT, AND ARTICLE ONE, SECTIONS TEN AND SIXTEEN OF THE OHIO CONSTITUTION.
{13} Due to the nature of the assignments of error, we address them out of order.
{14} In his second assignment of error, Galbraith contends that the trial court committed plain error in allowing Officer Isom to testify about Galbraith‘s intent in attempting to kick the victim. We disagree.
{15} Before turning to the merits of Galbraith‘s contention, there are two deficiencies in this assignment of error that need to be resolved. First, we note that Galbraith has failed to provide legal authorities to support his position that Officer Isom was unable to testify regarding Galbraith‘s intent in kicking Sergeant King. This is violative of
{16} Second, this assignment of error only complains of Officer Isom‘s testimony regarding Galbraith‘s intent in kicking Sergeant King‘s leg. But, a review of the record reveals that Sergeant King likewise testified that he had “no doubt whatsoever” that Galbraith was “trying to take out [his] knee.” Trial Tr., p. 121. Due to the concordant nature of Sergeant King‘s and Officer Isom‘s
Plain Error Standard
{17} Galbraith did not object to the admission of Officer Isom‘s or Sergeant King‘s testimony at the trial court level. Consequently, our review is limited to the existence of plain error in the trial court proceedings. See State v. Balo, 3d Dist. No. 1-10-48, 2011-Ohio-3341, ¶ 48. To have plain error under
Opinion Testimony
{18} Neither Officer Isom nor Sergeant King was offered as an expert witness. Accordingly, we consider whether their testimony was permissible as opinion testimony by lay witnesses.
{19} This matter falls within the Kehoe ambit of cases. Officer Isom and Sergeant King provided thorough testimony regarding their observations of Galbraith both before and after the kicking. They personally endured Galbraith‘s verbal abuse, which included various threats of harm to them, and they were present throughout the incident in which he kicked Sergeant King. Based on these
{20} Even if Officer Isom‘s and Sergeant King‘s testimony was inadmissible opinion testimony, its erroneous admission would still be harmless. The testimony adduced at trial is replete with references to Galbraith‘s combativeness during the booking process and his threats of violence towards the officers. The jury also received testimony from Officer Isom and Sergeant King regarding Galbraith‘s kicking and they partially saw the incident in the video. Based on the evidence of Galbraith‘s conduct, the jury could still find the existence of intent on Galbraith‘s part to cause physical harm without considering Officer Isom‘s and Sergeant King‘s testimony.
{21} Accordingly, we overrule Galbraith‘s second assignment of error.
Assignment of Error No. III
{22} In his third assignment of error, Galbraith argues that the trial court erroneously excluded Nurse Sprang‘s testimony regarding his fractured knee as irrelevant. We disagree.
{23}
{24} Here, Galbraith‘s trial counsel proffered that Nurse Sprang would merely testify that she took an x-ray of Galbraith‘s knee on the morning of May 11, 2011 and that the x-ray indicated Galbraith had a fractured knee. Neither this proffer nor the line of questioning surrounding Galbraith‘s injuries contains evidence of which knee was fractured, when the knee was fractured, or how the knee wаs fractured. Without this information, we are unable to assess the probative value of the evidence. Consequently, we are unable to find that it was
{25} Further, even if the trial court should have admitted Nurse Sprang‘s testimony, its exclusion would only constitute harmless error. Both Officer Isom and Sergeant King testified that Galbraith deliberately kicked Sergeant King and the video of the incident is consistent with such a kick. The admission of Nurse Sprang‘s testimony regarding Galbraith‘s knee injury would not reduce the import of this evidence or affect the outcome of the trial.
{26} Accordingly, we overrule Galbraith‘s third assignment of error.
Assignment of Error No. IV
{27} In his fourth assignment of error, Galbraith suggests that the trial court‘s refusal to instruct the jury on the defense of voluntary intoxication is reversible error. We disagree.
{28} We review a trial court‘s refusal to give a jury instruction for abuse of discretion. State v. Orians, 179 Ohio App.3d 701, 2008-Ohio-6185, ¶ 10. In performing this review, we are mindful that “[a] strong presumption exists in favor of the propriety of jury instructions.” Schnipke v. Safe-Turf Installation Group, L.L.C., 190 Ohio App.3d 89, 2010-Ohio-4173, ¶ 30. “It is well-settled that a criminal defendant is entitled to a complete and accurate jury instruction on all issues raised by the evidence.” State v. Wilson, 3d Dist. No. 14-06-19, 2006-Ohio-6930,
{29} Ohio recognizes the defense of voluntary intoxication in only one circumstance. Under
{30} Here, the evidence presented during trial did not establish that Galbraith was intoxicated to the point of unconsciousness, which compels us to reach the same finding as the McClaskey and Townsend courts. Galbraith was capable of walking into the correctional facility, standing at the booking desk, and shouting threatening remarks to the corrections officers and Officer Isom. Further, the video of the incident showed Galbraith lifting his left leg. Based on these actions, we find that Galbraith was physically caрable of kicking Sergeant King and that there was no evidence in the record to support the issuance of a voluntary intoxication instruction. Consequently, the trial court did not commit an abuse of discretion in denying such an instruction.
{31} Accordingly, we overrule Galbraith‘s fourth assignment of error.
Assignment of Error No. I
{32} In his first assignment of error, Galbraith argues that his conviction for assault of a police officer is contrary to the manifest weight of the evidence. Specifically, Galbraith claims that the evidenсe presented at trial established the following items, none of which supports a guilty verdict: (1) that, as a result of voluntary intoxication, he was physically incapable of assaulting Sergeant King;
{33} When an appellate court analyzes a conviction under the manifest weight standard it must review the entire record, weigh all of the evidence and all of the reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the fact finder 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, 387, (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). Only in exceptional cases, where the evidence “weighs heavily against the conviction,” should an appellate court overturn the trial court‘s judgment. Id.
{34} Galbraith was convicted of assault.
{36} Third, the video of the incident is consistent with both Sergeant King‘s and Officer Isom‘s testimony. While Officer Isom‘s placement partially obstructs the camera view and prevents viewers from observing the actual kick, the video captures images that are consistent with the type of kick the officers described. It shows Galbraith lifting his left leg and it shows Sergeant King lean back as though he has been kicked. Based on this, we find that the video is supportive of a conviction. In light of these three items of evidence, we do not find that Galbraith‘s conviction is against the manifest weight of the evidence.
{37} Galbraith‘s arguments to the contrary are unavailing. As stated above, the evidence does not suggest that his voluntary intoxication rendered
{38} Further, the testimony of Officer Isom and Sergeant King established that Galbraith‘s kicking motion was voluntary. For a defendant to be criminally liable, his actions must be voluntary.
{39} Finally, we reject Galbraith‘s contention regarding the de minimis nature of Sergeant King‘s injury as immaterial to his assault conviction. Critically, we note that the assault statute proscribes both “caus[ing]” and “attempt[ing] to cause” physical harm.
{40} Here, the State offered no evidence regarding Sergeant King‘s injury from the kick. But, this is not a fatal flaw in the State‘s case. According to
{41} In sum, the State offered the testimony of Officer Isom and Sergeant King that Galbraith kicked Sergeant King in his left leg. Further, the video of the incident reveals a sequence of events that is consistent with the officers’ testimony. Meanwhile, Galbraith‘s arguments regarding his voluntary intoxication, his allegedly involuntary action, and Sergeant King‘s de minimis injury are unavailing and immaterial to our finding that Galbraith‘s assault conviction is not contrary to the manifest weight of the evidence.
{42} Accordingly, we overrule Galbraith‘s first assignment of error.
Assignment of Error No. V
{43} In his fifth assignment of error, Galbraith contends that cumulative error in the trial court proceedings deprived him of due process. We disagree.
{44} The doctrine of cumulative error provides that “a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of numerous instances of trial court error does not individually constitute cause for reversal.” State v. Baucom,
{45} Accordingly, we overrule Galbraith‘s fifth assignment of error.
{46} Having found no error prejudicial to Galbraith, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
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