State v. McDuffieState v. McDuffie
APPEARANCES:
William T. Cramer for Appellant
Nathan R. Heiser for Appellee
{1} Defendant-appellant, William A. McDuffie (“McDuffie“), appeals his October 31, 2019 sentence of the Marion County Court of Common Pleas. For the reasons that follow, we affirm.
{2} This case arose after the MARMET Drug Task Force (“Task Force“) obtained and executed a search warrant at McDuffie‘s residence in Marion, Ohio on January 11, 2019. (Doc. No. 45). During the search of McDuffie‘s bedroom, the Task Force discovered 24.12 grams of crack cocaine located inside a plastic baggie hidden in a plastic container. (Id.). Further, during the search, Kayla Hamm (“Hamm“), McDuffie‘s girlfriend, was searched yielding the discovery of a cell-phone and $1,089 in cash thought to be the proceeds of illegal-drug sales. (Id.). (See PSI).
{3} On January 24, 2019, the Marion County Grand Jury indicted McDuffie and Hamm (in a joint indictment) on one count of Possession of Cocaine in violation of
{5} McDuffie filed his notice of appeal on November 15, 2019, and he raises two assignments of error for our review, which we will address separately. (Doc. No. 71).
Assignment of Error No. I
Appellant‘s due process right to a fair trial was violated by the admission of evidence of other acts that were used to draw an improper character inference.
{6} In McDuffie‘s first assignment of error, he argues that the trial court abused its discretion by permitting the State to use “other acts” evidence against McDuffie (the accused) which violated his due process right to a fair trial. Specifically, McDuffie asserts that the trial court erred when it permitted the State to cross-examine Hamm (a witness) attempting to elicit testimony (from her) that McDuffie had knowledge that there were drugs in their bedroom.
{7} “Generally, evidence which tends to show that the accused has committed other crimes or acts independent of the crime for which he stands trial is not admissible to prove a defendant‘s character or that the defendant acted in conformity therewith.” State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶ 21, quoting State v. Hawthorne, 7th Dist. Columbiana No. 04 CO 56, 2005-Ohio-6779, ¶ 24, citing State v. Elliott, 91 Ohio App.3d 763, 770 (3d Dist.1993) and
{8} Accordingly, this Court reviews de novo whether a trial court admitted improper character evidence and will apply an abuse-of-discretion standard to evidentiary decisions regarding the admission of other-acts evidence for permissible purposes. See id. See also State v. Glenn-Culverson, 10th Dist. Franklin No. 16AP-265, 2017-Ohio-2671, ¶ 24 (“Thus, a reviewing court will not reverse a trial court‘s evidentiary ruling absent an abuse of discretion that materially prejudices the affected party.“), citing State v. Issa, 93 Ohio St.3d 49, 64 (2001).
{9} ”De novo review is independent, without deference to the lower court‘s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992). An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980). However, “if the party wishing to exclude evidence fails to contemporaneously object at trial when the evidence is presented, that party waives for appeal all but plain error.” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 53, citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶¶ 59-60, State v. Barrett, 4th Dist. Scioto No. 03CA2889, 2004-Ohio-2064, ¶ 20, and State v. Lenoir, 2d Dist. Montgomery No. 22239, 2008-Ohio-1984, ¶ 19.
{10} ”
Analysis
{11} Initially, we must determine whether McDuffie preserved this issue for appeal. McDuffie‘s argument concerns the testimony of Hamm regarding the ownership of and (McDuffie‘s) knowledge of the drugs concealed in the plastic
{12} McDuffie contends that the trial court permitted Hamm to testify to “other acts” evidence that is inadmissible because it suggests that McDuffie has a
{13}
The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to
Evid.R. 801(D)(1)(A) ,801(D)(2) , or803 .
{15} However, and important to this discussion, Hamm testified that the large quantity of crack cocaine (24.12 grams) seized was for her exclusive-personal use and that McDuffie was not aware that she used crack cocaine or that the crack cocaine was located in their bedroom. (See Oct. 9, 2019 Tr. at 87-88, 101, 110). Here, the State‘s line of questioning (of Hamm) attacked Hamm‘s credibility, since such evidence indicated that McDuffie was aware that Hamm possessed the drugs, and that such drugs were not for Hamm‘s exclusive-personal use. (See id.). As a consequence, the jury was free to conclude that since Hamm was not credible (because she was untruthful as to McDuffie‘s knowledge of her drug use and the purpose of her possession) perhaps the remainder of her testimony lacked any indicia of truthfulness. See State v. Schwegmann, 1st Dist. Hamilton No. C-180053, 2018-Ohio-3757, ¶ 11, citing State v. Hussein, 1st Dist. Hamilton No. C-020155, 2003-Ohio-1369, ¶ 8, citing State v. Boggs, 63 Ohio St.3d 418, 421 (1992).
{17} Nevertheless, the trial court admonished the parties to proceed carefully because of its duty to consider mandatory exclusion under
[Trial Court] Again, that being said, I want to caution the parties that I‘m going to continue to weigh the probative value as compared to the prejudicial effect of any evidence that might sought to be elicited.
The mere fact that I‘m saying that this witness can be cross-examined does not mean that everything is now fair game. And I think the Prosecutors know what I‘m saying. Are [sic] well aware of the fact that the Defendant in this case is not charged with
Trafficking, that I‘m not, by saying that this witness can be cross-examined in order to examine potential inconsistencies or untruthfulness that there may be in her testimony for the purposes of impeaching her. That does not mean that I‘m saying that the State would now have carte blanche to go into other things that may be indicative of trafficking of drugs on the part of the Defendant. We‘re not going to go there. Let me [sic] abundantly clear about that. So anything further that we need to address while out of the presence of the jury?
(Oct. 9, 2019 Tr. at 121-122). Notably, McDuffie never objected on the basis that exclusion was mandatory or discretionary under
{18} Thus, upon our review of the record, we cannot conclude that there is an obvious defect in this trial that affected McDuffie‘s substantial rights. Notwithstanding the foregoing, and even if we were to have concluded otherwise, McDuffie cannot demonstrate prejudice since Hamm was not able to recall the content of any of the text messages despite the attempts made by the State to refresh her recollection. (Id. at 132-133). See
Assignment of Error No. II
Appellant‘s due process right to a fair trial was violated by the prosecutor‘s improper comments regarding the credibility of a witness during closing argument.
{20} In his second assignment of error, McDuffie asserts that during closing arguments the prosecutor engaged in prosecutorial misconduct, denying him a fair trial. Specifically, he claims that the prosecutor made a suggestion (during closing argument) that Hamm while testifying in court, was being intimidated by McDuffie, and thus, that there was an impermissible inference that jury should find her testimony not credible.
Standard of Review
{21} “The test for prosecutorial misconduct is whether the remarks were improper and, if so, whether they prejudicially affected the accused‘s substantial rights.” State v. Liles, 3d Dist. Allen No. 1-14-61, 2015-Ohio-3093, ¶ 31, citing State v. Smith, 14 Ohio St.3d 13, 14 (1984). “To establish prejudice, a defendant must show that a reasonable probability exists that, but for the prosecutor‘s improper remarks, the result of the proceeding would have been different. Thus, [n]ot every
Analysis
{22} McDuffie points to the following exchange between the prosecutor and the jury regarding Hamm‘s testimony:
[State of Ohio] I find it kind of interesting when she was on her direct examination that Mr. McDuffie was staring her straight in the face and she looked straight back at him. She seemed deathly afraid of Mr. McDuffie. She seemed deathly afraid of the people around. And she seemed like she was trying testify just to please him today.
(Oct. 9, 2019 Tr. at 170). At the conclusion of the State‘s closing arguments, at a sidebar, the defense moved for a mistrial on the basis that the prosecutor insinuated to the jury that Hamm was being intimidated by or scared of McDuffie. (Id. at 173).
{23} Addressing prosecutorial misconduct allegations related to closing arguments, “[p]arties have wide latitude in their closing statements, particularly ‘latitude as to what the evidence has shown and what inferences can be drawn from the evidence.‘” State v. Wolff, 7th Dist. Mahoning No. 07 MA 166, 2009-Ohio-7085, ¶ 13, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 213. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 159, (“A prosecutor may state an opinion if based on evidence presented at trial.“). “The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant.” State v. Rasawehr, 3d Dist. Mercer No. 10-19-15, 2020-Ohio-429, ¶ 12, quoting State v. Encarnacion, 10th Dist. Franklin No. 16AP-817, 2017-Ohio-5530, ¶ 9, citing State v. Smith, 14 Ohio St.3d at 14. “A prosecutor‘s isolated comments are not to be taken out of context and given their most damaging meaning.” Id. at ¶ 13, quoting Encarnacion at ¶ 10, citing State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, ¶ 94, citing Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873 (1974). “Instead, an appellate court must review a closing argument in its entirety to determine whether prejudicial error occurred.” Id., quoting Encarnacion at ¶ 10, citing Noling at ¶ 94, citing State v. Frazier, 73 Ohio St.3d 323, 342 (1995).
{24} Even if we assume, without deciding, that the prosecutor‘s comments were improper in satisfaction of the first prong of the prosecutorial-misconduct test, McDuffie cannot establish prejudice here because the trial court gave the jury a curative instruction which we conclude was sufficient to relieve any prejudice that McDuffie may have suffered. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 170, citing State v. Loza, 71 Ohio St.3d 61, 75 (1994), overruled on other grounds, (“The trial court‘s curative instruction was sufficient to relieve any prejudice.“). As such, McDuffie cannot establish the second prong of the prosecutorial-misconduct test under the facts before us.
{25} In our review of the record, we cannot conclude that the statements of the prosecutor made during closing argument are prejudicial error.
{26} Accordingly, McDuffie‘s second assignment of error is overruled.
{27} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.