State v. GutierrezState v. Gutierrez
Rendered on the 20th day of May, 2022.
MARIA L. RABOLD, Atty. Reg. No. 0089080, Assistant Prosecuting Attorney, Miamisburg Municipal Court Prosecutor‘s Office, 110 East Central Avenue, Miamisburg, Ohio 45342 Attorney for Plaintiff-Appellee
CHRIS BECK, Atty. Reg. No. 0081844, 1370 North Fairfield Road, Suite C, Beavercreek, Ohio 45432 Attorney for Defendant-Appellant
LEWIS, J.
I. Facts and Course of Proceedings
{¶ 2} On August 15, 2021, M.B. called the West Carrollton Police Department and requested a welfare check on his girlfriend, Samantha Gutierrez. October 11, 2021 Trial Transcript, p. 8-9, 17. M.B. feared that she had ingested a number of pills. Id. at 17. M.B. and Gutierrez lived together on Water Tower Lane in West Carrollton. Id. at 13-14, 29. When West Carrollton Police Officer Hogston arrived at the residence, he met M.B. outside by the front door. Id. at 9-10. Officer Hogston noticed that M.B. had dry blood on his lip and on his clothing. Id. According to Officer Hogston, M.B. explained to him that Gutierrez had tried to hit and slap M.B. and had made contact with the left side of his face, causing the injury to his lip. Id. at 11, 25-26. Ultimately, M.B. refused to press charges and would not write a statement. Id. at 14.
{¶ 3} On August 16, 2021, a criminal complaint was issued against Gutierrez. She was charged with one count of domestic violence, a first-degree misdemeanor in violation of
{¶ 4} At the beginning of the trial, Gutierrez‘s counsel requested that the trial judge put on the record the plea offer from the State that Gutierrez had rejected. Trial Transcript, p. 4-5. The trial court first explained that Gutierrez was facing a first-degree misdemeanor charge that carried with it up to 180 days in jail and $1,000 in court costs
{¶ 5} West Carrollton Police Officer Hogston, M.B., and Gutierrez testified at trial. At the conclusion of the trial, the court found Gutierrez guilty of domestic violence in violation of
II. Gutierrez‘s Conviction Is Supported By Sufficient Evidence And Is Not Against The Manifest Weight of the Evidence
{¶ 6} Gutierrez‘s first two assignments of error state:
THE STATE PRESENTED INSUFFICIENT EVIDENCE TO PROVE EVERY ESSENTIAL ELEMENT OF DOMESTIC VIOLENCE BEYOND A
APPELLANT‘S CONVICTION FOR DOMESTIC VIOLENCE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 7}
{¶ 8} Gutierrez contends that the evidence presented at trial was insufficient to establish that she was guilty of domestic violence in violation of
{¶ 9} “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing whether the State has presented sufficient evidence
{¶ 10} In contrast to the sufficiency of the evidence standard, “a weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” Wilson at ¶ 12. When evaluating whether a conviction is contrary to the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 11} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder‘s decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being against the
{¶ 12} At the trial, Police Officer Hogston testified that M.B. stated on the night of the incident that Gutierrez had made contact with the left side of M.B.‘s face when Gutierrez was trying to slap or hit him. Trial Transcript, p. 11, 25-26. As a result of this contact, M.B. had blood on his lip and his shirt when Officer Hogston arrived. Id. at 9-10, 15. Further, Gutierrez and M.B. both testified that they were living together. Id. at 17, 29. At trial, M.B. conceded that he told Officer Hogston on the night of the incident that he “may have been hit” by Gutierrez. Id. at 21. While denying that she intentionally hit M.B., Gutierrez did testify that “maybe my elbow or something may have, like, hit his lip or maybe as he was on the floor something happened.” Id. at 30.
{¶ 13} The trial court clearly credited Officer Hogston‘s testimony over the testimony of Gutierrez. This testimony, along with the admissions by Gutierrez and M.B. that they lived together and had been involved in a physical altercation over whether M.B. had been cheating on Gutierrez, was sufficient to establish all of the necessary elements for a domestic violence conviction.
{¶ 14} Gutierrez‘s first two assignments of error are overruled.
III. Gutierrez Failed To Present Any Evidence That She Was Prejudiced By The
{¶ 15} Gutierrez‘s third assignment of error states:
THE TRIAL COURT ERRED IN RULING THAT [M.B.] WAS A HOSTILE WITNESS.
{¶ 16} In her third assignment of error, Gutierrez contends that “the prosecution failed to establish that the testimony of [M.B.] surprised the court and in fact failed to provide any justification as to why they were requesting to treat [M.B.] as a hostile witness. The Court further failed to allow an opportunity for response from Defense counsel or to state any finding as to why the witness was being deemed hostile. The Court‘s decision violated Evidence Rule 607.” Gutierrez Appellate Brief, p. 9.
{¶ 17} M.B. testified as part of the State‘s presentation of its case against Gutierrez. During M.B.‘s testimony on direct examination, the prosecutor asked him whether he remembered telling the police officer on the night of the incident that Gutierrez had hit or slapped him, causing his lip to get cut and bleed. Trial Transcript, p. 21. M.B. stated that he did not remember telling the officers that. He then stated that “I told them that we tussled for my phone and I may have been hit.” Id. The prosecutor asked the trial judge to determine that M.B. was a hostile witness. Id. at 22. The trial judge granted the State‘s request and found M.B. to be a hostile witness. Gutierrez‘s trial counsel did not object to the State‘s request or the trial judge‘s ruling on the request. Id.
{¶ 18} A “hostile witness” is one who surprises the calling party at trial by turning against that party while testifying. State v. Darkenwald, 8th Dist. Cuyahoga No. 83440, 2004-Ohio-2693, ¶ 15. A “hostile witness” is addressed under Evid.R. 607, which states
{¶ 19} “When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.” Evid.R. 611(C). “A leading question is ‘one that suggests to the witness the answer desired by the examiner.’ ” (Citation omitted.) State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 149. “The decision as to whether a witness is a ‘hostile’ witness, which includes whether the elements of surprise and affirmative damage have been established, is entrusted to the broad, sound discretion of the trial court.” Johnson at ¶ 35, citing State v. Diehl, 67 Ohio St.2d 389, 391, 423 N.E.2d 1112 (1981).
{¶ 20} We need not determine whether the trial court abused its discretion when it allowed the State to treat M.B. as a hostile witness. That is because, even if we were to assume that the trial court abused its discretion, Gutierrez has not shown that she was
{¶ 21} The following is the remainder of M.B.‘s testimony for the State after he was declared a hostile witness:
Q: So Samantha accused you of cheating, correct?
A: Yes.
Q: Samantha was very upset as anyone would be that you‘re cheating, correct?
A: Yes.
Q: And then Samantha at some point in time hit you either with your phone or her hand and that caused your lip to bleed, correct?
A: I mean, that‘s like a trick question.
Q: Well, it‘s not a trick question.
THE COURT: Sir (indiscernible), did she hit you with the phone in your lip?
A: I don‘t --
THE COURT: Did she hit you with the phone on your lip --
A: But she asked me a question I don‘t know because like I keep telling you, I didn‘t even know my lip was bleeding. He pointed it out, which one -- ever one of the officers pointed it out. I didn‘t even know.
Q: But you did tell the officers that she in fact hit or slapped you; those were
your words to the officers, do you remember telling them that? A: Not entirely, no. I told them what happened through the tussle.
Q: The tussle?
A: Yeah. We tussled for my phone.
Q: Your Honor, I have no other questions.
Trial Transcript, p. 22-24.
{¶ 22} M.B.‘s answers to the State‘s leading questions after the trial judge declared him to be a hostile witness did not help prove any of the necessary elements in the domestic violence charge brought against Gutierrez. Indeed, we do not believe any material information was brought out in the few leading questions by the State. Therefore, Gutierrez has failed to prove any prejudice resulting from the trial judge‘s decision to declare M.B. a hostile witness.
{¶ 23} Gutierrez‘s third assignment of error is overruled.
IV. Gutierrez Failed To Establish Ineffective Assistance Of Counsel
{¶ 24} Gutierrez‘s fourth assignment of error states:
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
{¶ 25} In this assignment of error, Gutierrez takes issue with her trial counsel‘s handling of the plea offer from the State. According to Gutierrez, “[n]o discussion was
{¶ 26} We review alleged instances of ineffective assistance of trial counsel under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland at 688. To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel‘s conduct fell below an objective standard of reasonableness and that his or her errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id.
{¶ 27} At the beginning of the trial, Gutierrez‘s counsel asked the trial court to put on the record the plea offer that Gutierrez had decided to reject. Gutierrez‘s defense counsel and the trial court laid out for Gutierrez the differences in the charges and potential sentences between what she was currently charged with versus what she was being offered by the State in a plea deal. The trial judge pointed out that a domestic violence conviction would stay on her record and could result in a higher fine and jail
{¶ 28} The record makes clear that Gutierrez was informed of the plea offer from the State. Indeed, the trial court attempted to explain on more than one occasion the potential benefits that would arise from accepting the plea offered by the State versus being convicted of the domestic violence charge. But Gutierrez made it clear to her counsel and the trial judge that she was innocent and wanted to proceed with the trial. Further, she did not hesitate to turn down the plea offer even when it was pointed out that a conviction of domestic violence would have lasting effects on her record that a conviction for the lesser charge would not. There is no evidence in the record that Gutierrez‘s decision to turn down the plea offer was anything less than knowing and voluntary. Neither is there any record evidence that the conduct of Gutierrez‘s trial counsel fell below an objective standard of reasonableness in terms of communicating and explaining the State‘s plea offer to her.
{¶ 29} Gutierrez‘s fourth assignment of error is overruled.
V. Conclusion
{¶ 30} Having overruled all of Gutierrez‘s assignments of error, the judgment of the trial court is affirmed.
Copies sent to:
Maria L. Rabold
Chris Beck
Robert E. Messham, Jr., Visiting Judge