State v. McGrathState v. McGrath
RELEASED AND JOURNALIZED: September 23, 2010
FOR APPELLANT
Joseph McGrath, Pro se
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: Brett Kyker Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:
{¶ 1} Defendant-appellant, Joseph McGrath (“defendant”), appeals pro se following his convictions for three counts of menacing by stalking, two counts of violating a protection order, and resisting arrest. The convictions arise from separate criminal cases that were consolidated for trial. For the reasons that follow, we affirm.
{¶ 2} In Case No. CR-516312, defendant was charged with three counts of menacing by stalking in violation of
{¶ 3} The matter proceeded to trial. Michelle testified that she met defendant in 2005 and they began dating in April of that year. Although defendant would spend periods of time at her home in Cleveland, he would leave for several days. Michelle insisted that defendant did not reside with her as he maintained a separate residence elsewhere. During this time period, Michelle lived with her daughter, Jennifer, as well as Jennifer’s fiancé Jim, and their child. Michelle indicated that after defendant was arrested in January 2008, she returned his belongings to his brother, including his birth certificate and social security card.
{¶ 4} Michelle said she broke off her relationship with defendant sometime in 2006. He began calling her frequently and she did not answer her phone. Michelle worked at a grocery store in Parma. It was her testimony that she saw defendant in the parking lot of her job slashing her car tires.
{¶ 5} On January 18, 2007, the Parma Municipal Court held a hearing and a witness, Det. Michael Klein, testified that defendant was in attendance by video camera. On that date, defendant was arraigned and Det. Klein requested a temporary protection order,5 which the court issued that day (“TPO”). (Joint ex. 9.) It was not an ex parte order as reflected on the face of the document.6 Det. Klein testified that there was a hearing on the TPO, “they have the arraignment and TPO hearing.” On the TPO form, the line provided to set a date for hearing was not filled in and was not signed by defendant. However, Det. Klein was present at the hearing, which he said took place the same day the TPO was issued. Det. Klein presented evidence at the hearing in support of the request for the TPO.
{¶ 6} The Deputy Clerk of Parma Municipal Court testified that she took a copy of the TPO to the court’s bailiff for delivery to defendant. A corrections
{¶ 7} State’s ex. 10 is a dockеt from Parma Municipal Court concerning the charge against defendant for the January 15, 2007 incident. It reflects the issuance of the TPO and indicates that the matter was bound over to the common pleas court following a preliminary hearing on January 24, 2007. Defendant was indicted in CR-439644 and on March 21, 2007, the Cuyahoga County Common Pleas Court continued the TPO. That case was dismissed without prejudice on October 14, 2009.
{¶ 8} Sergeant Timothy Smith of the Cuyahoga County Sheriff’s Department testified that jail records reflect numerous telephone calls from the jail to Michelle’s cellular and home phones for the time periods between March 12, 2007 – December 28, 2007, and January 18, 2007 – February 1, 2008. In total, 9,578 calls were placed to those numbers from the jail during those time periods. Sgt. Smith initially testified that none of the calls were accepted, but subsequently acknowledged that about 50 calls were taken around the time period of May 18, 2007.
{¶ 9} Michelle testified that defendant would call incessantly each night. She said she did not answer most of the calls; however, she did speak with defendant around the May 18, 2007 time period. Michelle’s daughter, Jennifer,
{¶ 10} Michelle said she had loved the defendant but then only helped him because she felt sorry for him. According to Michelle, around May 2007, she paid $800 to an attorney for defendant. She also made at least one deposit into defendant’s commissary account of $100. Michelle could not recall if she had made another deposit, but denied making any more than two deposits for defendant.
{¶ 11} On September 26, 2008, Michelle received a message from defendant informing her that he was being released from jail and was on his way to her home. She locked the doors, closed the windows, and told her daughter and Jim about defendant’s impending arrival. When defendant arrived at the back door, he was told to leave and advised that the police had been called. Jim confronted defendant in thе front of the home. Defendant left and Jennifer followed him in her car to ensure police could locate defendant. Jennifer said she did this because she did not want defendant around her mother.
{¶ 12} Jennifer informed police by phone of defendant’s presence at a junkyard. Cleveland Police Officer Daugenti responded to the location, where a foot chase began. Officer Daugenti announced his status as a police officer and commanded defendant to stop, but defendant did not comply. Officer Daugenti drew his Taser weapon, being in fear for his own safety. Defendant continued to refuse Officer Daugenti’s orders and then began reaching behind his back. At
{¶ 13} The police contacted EMS and defendant was taken to the hospital. Officer Daugenti’s partner recalled defendant complaining thаt one of Michelle’s neighbors hit him with a baseball bat. Jennifer denied that there was any intervention or assault on defendant by any neighbors.
{¶ 14} While CR-439644 was pending, Det. Klein was contacted about defendant’s violations of the TPO, including the numerous phone calls to Michelle. He was also advised that defendant went to Michelle’s house on December 31, 2007, upon his release from jail. Det. Klein was preparing charges in connection with the alleged violations when he received notice of the September 26, 2008 incident. Det. Klein acknowledged that Michelle, against his advice, initiated some contact with defendant. He confirmed that it is permissible for the victim of the TPO to initiate contact with the defendant but not vice versa. Det. Klein said defendant violated the TPO by making phone and letter contact with Michelle.
{¶ 15} At the conclusion of the State’s case-in-chief, the defense moved for acquittal, which the trial court denied.
{¶ 16} The defense presented three witnesses: William Godale, Neal Watters, and defendant. Godale testified that he has known defendant since approximately 2004. Godale said that he sold defendant a Cadillac that was
{¶ 17} During cross-examination of Godale, the State played a DVD audio (State’s ex. 15), which consisted of several voicemail messages defendant had left for Michelle. In them, defendant accuses Michelle of damaging his car аnd owing him money. However, they also contain several threats of violence and are laced with profanity. On one occasion, defendant informs Michelle that he was walking down her street with an eight-pound sledgehammer to smash her car into “a million * * * pieces.” Godale recognized defendant’s voice on the recordings, but denied ever hearing anything that was played on the message system. On re-direct, Godale denied ever hearing defendant talk to Michelle like he did on the voicemail messages.
{¶ 18} Neal Watters was a part-time parochial vicar at the Cuyahoga County jail. According to Watters, defendant attended his religious services at the jail
{¶ 19} Defendant was the last witness to testify. Defendant testified that he maintained his own residence throughout the duration of his relationship with Michelle. He met Michelle in 2004. They began dating in early 2005.
{¶ 20} According to defendant, he installеd a “junk tire” on Michelle’s car that flattened during her shift at Giant Eagle. When he went to change the tire for her, she called the police and made a report. The charges against defendant that stemmed from that incident were dismissed.
{¶ 21} Defendant denied harassing Michelle by telephone on or about January 15, 2007. He did admit to meeting her at a Parma Speedway gas station. According to defendant, Michelle told him to meet her there, where she was to pay him $500 for damaging his car. But, when he arrived, Michelle was “stalling him” and asking if they could work something out. He allegedly said she could pay him later and they went to their respective vehicles. At that point, Parma police arrived, having been contacted by Michelle’s daughter’s boyfriend, and defendant was arrested.
{¶ 22} Defendant testified that Michelle broke the windows on his car because she was mad at him for watching a television commercial featuring women’s underwear. Defendant said Michelle was jumping up and down on the windshield of his Cadillac with a fence post in her hand, beating every window out of it. This allegedly caused $22,000 worth of damage to the car. Defendant
{¶ 23} Defendant admitted calling Michelle repeatedly demanding his money back and threatening to prosecute her. He went to the Speedway gas station in Parma to obtain money and was arrested by Parma police. Defendant admitted Michelle filed police reports in Parma, although he maintained her accusations were “bogus.” According to defendant, Michelle and her daughter’s boyfriend “set him up.”
{¶ 24} Defendant testified that he eventually got “out of jail with the stalking case from 2007,” but was rearrested “for that” on March 12. Defendant then said “that is what we’re in court for here today, from jail I stalked my girlfriend from jail.”
{¶ 25} While inсarcerated in Parma, defendant attended a preliminary hearing, where he “grilled” Det. Klein for approximately 20 minutes. Defendant recalled that he was “jumping up and down screaming at the judge.” Defendant acknowledged that the court docket reflects that he waived the preliminary hearing, which he contends is a falsification. The case was bound over after which defendant posted his bond.
{¶ 26} Defendant was re-arrested on March 12, 2007, and remained in Cuyahoga County jail until December 27, 2007, when allegedly Michelle posted
{¶ 27} Defendant was released from jail again on September 26, 2008 and took a bus to Michеlle’s house to obtain his belongings. Prior to doing so, defendant notified Michelle he was coming over and, according to him, she said “come on over.” Defendant maintains Michelle welcomed his arrival but her daughter’s boyfriend started a commotion and called the police. Defendant says he simply left. But, the daughter’s boyfriend rallied the neighbors to surround him and hit him. According to defendant, he lost a tooth. At this point, defendant ran away to McMahon’s junkyard. Thinking he was being chased and in fear for his life, he was then approached by “the little cop,” who told him to freeze and get on the ground. Defendant said he did not comply because he did not want to get dirty, which resulted in him being tasered. Defendant attempted to get up, denied resisting arrest, and stated he was handcuffed. Defendant alleged the police were civilly liable to him for assaulting and tasering him, but also testified that they were “really nice people” and he understood them “tasing” him.
{¶ 28} Defendant identified joint ex. J as a certified copy of the protection order issued by the Parma Municipal Court judge. According to defendant, this protection order was from an “old stalking case” he “beat.” Defendant denied ever being in court for a hearing on this order, and denied ever being subject to any prior protection order. He denied ever seeing the protection order prior to his indictment in this case, and denied that anyone ever told him about the protection order.
{¶ 29} Under cross-examination, defendant stated the Parma Municipal judge gave him a “verbal no-contact-with-the-victim” order but denied receiving the protection order. At this point, the State presented audio tape conversations of defendant’s phone conversations from Parma jail (State’s ex. 16), wherein he acknowledged a restraining order. Defendant insisted he was referring to the verbal no-contact order. Prior to his case being transferred to the common pleas court, defendant recalls a hearing at which he cross-examined Det. Klein. Defendant stated his belief that the protection order was void because he did not sign it.
{¶ 30} Defendant recalled his arraignment in county court, but claimed he did not hear anything beyond the amount of the bond because the public defender shut off the microphone. Nonetheless, the judgment entry reflects not only the bond, but also indicates “no contact with victim, temp protection order is continued.” (State’s ex. 12.) Defendant again denied being advised of the protection order.
{¶ 31} When asked if he ever “enter[ed] the business, the residence, school, business, or place of employment of Michelle * * * after the date of th[e] protective order, which was January 13, 2007?” defendant responded, “Yeah.”
{¶ 32} When asked if he surrendered “all keys and garage doors to [Michelle’s residence],” he said “No. Why would I?” Defendant admitted he had contact with Michelle but denied intimidating her.
{¶ 33} Defendant continued to adamantly maintain he had not seen the protective order prior to his incarceration in the County jail. According to defеndant, the witnesses who testified otherwise were all lying. Defendant testified that the jail guards simply come to work, write their name in the logbook, proceed to fall asleep, and then fill out the logbook ten minutes before they go home.
{¶ 34} According to defendant, Michelle sent him greeting cards and typed letters and placed money in his account.
{¶ 35} Defendant admitted contacting Michelle by phone from jail, estimating that he called maybe once or twice a day for approximately nine months. According to defendant, this was “mutual, consensual contact.” He also said he had permission to go to Michelle’s residence.
{¶ 36} Defendant acknowledged having prior convictions for domestic violence, aggravated assault, and felonious assault.
{¶ 37} Defendant suggested on re-direct that the reason there were 9,000 phone calls listed to Michelle’s number was because he could “dial a phone
{¶ 38} The defense rested and renewed its motion for acquittal, which the trial court again denied.
{¶ 39} In CR-516312, the jury found defendant guilty of menacing by stalking in violation of
{¶ 40} In CR-524159, the jury found defendant guilty on all three counts, along with findings that defendant had a history of violence.
{¶ 41} Defendant received the following sentence: in CR-516312, a 12-month prison term on Count 1; a five-year consecutive prison term on Count 4; and a six-month concurrent jail term on Count 6. In CR-524159, a 12-month concurrent prison term on Counts 1 and 2 to be served consecutive to the sentence imposed in CR-516312; and 90-day concurrent jail term on Count 3. The total aggregate sentence for both cases is seven years.
{¶ 42} Defendant now appeals raising 17 assignments of error for our review.
{¶ 43} “I. The trial court abused its discretion and committed reversible and/or plain error and violated the appellant’s Ohio and United States Constitutional rights by permitting the city of Parma to prosecute a criminal offense in the Court of Common Pleas, when no criminal offense was committed in the city of Parma’s political subdivision and/or territorial jurisdiction.”
{¶ 44} Although defendant complains that the city of Parma lacked jurisdiction to prosecute him in these matters, he was being prosecuted by the state of Ohio in the Cuyahoga County Court of Common Pleas. “The court of common pleas has original jurisdiction of all crimes and offenses except in cases of minor offenses the exclusive jurisdiction of which is vested in courts inferior to the court of common pleas.”
{¶ 45} “II. The appellant’s conviction [is] against the [manifest] weight of the evidence, in violation of the Ohio and United States Constitutions.”
{¶ 46} To warrant reversal of a verdict under a manifest weight of the evidence claim, this Court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.
{¶ 47} Here, defendant challenges his convictions for violating the protection order and menacing by stalking.
{¶ 48} Defendant was convicted of two counts of violating a protection order in violation of
{¶ 49} “(A) No person shall recklessly violate the terms of any of the following:
{¶ 50} “* * *
{¶ 51} “(2) A protection order issued pursuant to section
{¶ 52} The protection order contained in this record as joint ex. 9, was explicitly issued “per
{¶ 53}
{¶ 54} “(A) Except when a complaint involves a person who is a family or household member * * * upon the filing of a complaint that alleges a violation of section * * *
{¶ 55}
{¶ 56}
{¶ 57} Defendant attacks his convictions for violation of a protection order on the following grounds: (1) there was allegedly no hearing held concerning the order of protection; (2) the absence of his signature on the order allegedly proves he did not receive it; and (3) the order, if valid, terminated upon the trial court’s acceptance of his guilty plea in CR-493644. Defendant’s arguments are not supported by the record or applicable law.
{¶ 58} The Order of Protection was entered by the Parma Municipal Court on January 18, 2007. The State presented testimony that a complaint for menacing by stalking was initiated in Parma Municipal Court by the Parma police relating to the January 15, 2007 Speedway incident. An order of protection was requested by the complainant for Michelle. Det. Klein, who was an arresting officer at the Speedway scene, testified that he appeared for defendant’s arraignment, where a hearing was held on the motion for protective order. Based on Det. Klein’s testimony, the Parma Municipal Court issued joint ex. 9.
{¶ 59} Defendant insists that there was no hearing concerning the order of protection, but during his trial testimony, he clearly recollected discharging his assigned counsel and personally cross-examining Det. Klein.7 It is true that defendant did not acknowledge receipt of the protection order by signature and, in fact, adamantly maintains he did not know about it until his trial. However, the State presented the testimony of various witnesses, who described the process that was employed to serve defendant with a copy of the protection order in jail. The record also contains recorded conversations that took place during defendant’s incarceration in the Parma jail between defendant and Godale, where the existence of a protection order is discussed. (State’s ex. 16.)
{¶ 60} To the extent the evidence does contain some instances of consensual contact between defendant and Michelle around May 2007, joint ex. J clearly advises in bold print that:
“THE PERSONS PROTECTED BY THIS ORDER CANNOT GIVE YOU LEGAL PERMISSION TO CHANGE OR VIOLATE THIS ORDER. IF YOU VIOLATE ANY TERMS OF THIS ORDER, EVEN WITH THE PROTECTED PERSON’S PERMISSION, YOU MAY BE ARRESTED. * * * YOU ACT AT YOUR OWN RISK IF YOU DISREGARD THIS WARNING.”
{¶ 61} Additionally, the jury found defendant not guilty of violating the order
{¶ 62} The menacing by stalking charges in Parma were bound over to the common pleas court on January 24, 2007, where the order of protection was continued in CR-439644. Defendant maintains the protection order expired when he entered his guilty plea in that case. However, defendant pursued an appeal in that case and, among other things, successfully challenged the trial court’s acceptance of his guilty plea. The criminal proceedings in CR-439644 therefore continued until October 14, 2009, when that case was dismissed by the common pleas court without prejudice.8 Finally, the defense stipulated that CR-439644 was pending during the dates covered by the indictment being tried in this case. Defendant acknowledged that he understood this stipulation.
{¶ 63} Defendant does not contest that he tried to contact Michelle by phone and went to her house at times between January 18, 2007 and September 2008. This conduct violated the terms of joint ex. 9. Accordingly, his
{¶ 64} Defendant contends his convictions for menacing by stalking are against the manifest weight of the evidence because there was no evidence that he threatened Michelle or caused her mental distress.
{¶ 65}
{¶ 66} “No person by engaging in a pattern of conduct shall knowingly causе another person to believe that the offender will cause physical harm to the other person or cause mental distress to the other person.”
{¶ 67} There is ample evidence in the record from which a rationale trier of fact could conclude that defendant engaged in a pattern of conduct that knowingly caused Michelle mental distress. The record establishes a tumultuous relationship between Michelle and defendant beginning in early 2005. Ultimately, Michelle filed numerous police reports relating to defendant. Among other things, she accused defendant of slashing her car tires while she was at work.
{¶ 68} Many witnesses described Michelle as being afraid of defendant. She did not want to come to court to see him. The voicemail messages that defendant left for Michelle, which were played in court, included threats of bringing a sledge hammer to her house in order to smash her car. Defendant made over 9,000 phone calls to Michelle‘s telephone number. Michelle testified that there is something about defendant that “fears” her and said “one minute he
{¶ 69} Defendant also stipulated to his prior convictions for felonious assault, aggravated assault, and domestic violence, which would support a finding as to his history of violence.
{¶ 70} The jury did not clearly lose its way in finding defendant guilty of menacing by stalking under Count 1 of CR-516312 and Counts 1 and 2 under CR-524159. Assignment of Error II is overruled.
{¶ 71} “III. The sufficiency of the evidence does not support the appellant‘s convictions, in violation [of] the Ohio and United States Constitutions.”
{¶ 72} Under this assignment of error, defendant asserts that his convictions for violating the protection order and menacing by stalking were not supported by sufficient evidence. In support, defendant maintains that his contact with Michelle was mutual and consensual, that other people in the County jail were calling Michelle‘s telephone numbers, and that Michelle was not credible.
{¶ 74} As detаiled previously in this opinion, there was evidence, if believed, that would convince an average mind of defendant‘s guilt beyond a reasonable doubt concerning both the violations of the protective order and the counts of menacing by stalking. This assignment of error is overruled.
{¶ 75} “IV. The trial court abused its discretion and committed reversible and/or plain error and violated the appellant‘s Ohio and United States Constitutional rights by forcing the appellant to go through a jury trial wearing county orange clothing over the appellant‘s objections.”
{¶ 76} We recently addressed this issue in State v. Foster, Cuyahoga App. No. 93391, 2010-Ohio-3186. The relevant inquiry is “whether the accused‘s appearance before the jury in jail clothes was compelled. ‘The reason for this judicial focus upon compulsion is simple; instances frequently arise where a defendant prefers to stand trial before his peers in prison garments. The cases show, for example, that it is not an uncommon defense tactic to produce the
{¶ 77} The trial court did not compel defendant to stand trial in his jail garb. When the court asked defendant why he was “wearing orange,” defendant maintained that Michelle had all of his clothes. When defendant confirmed that his brother was there, the court asked if he could obtain clothing for the defendant. The defendant continued to insist that Michelle had everything he owned. The judge again asked, “Is it possible that your brother could bring you some additional clothing?” and defendant kept saying everything he owned was at Michelle‘s house.
{¶ 78} The issue of defendant‘s trial attire was later raised again by the judge, who offered to retrieve the clothes defendant was wearing at the time of his arrest. Defendant refused on the basis that the clothing was dirty. The judge noted that defendant had civilian clothing available and that the defense would likely be using defendant‘s jail attire as part of its defense. The judge reached an agreement with the parties that the jury would be told that defendant was unable to secure new clothing for trial.
{¶ 79} Because the trial court did not compel defendant to stand trial in jail garb, this assignment of error is overruled.
{¶ 81} Defendant makes a generalized complaint that he was not provided “discovery.” His only specific complaint is that he has “never heard State‘s ex. 169 CD, in its entirety, he has never read all of the letters the State refused to provide during trial, and he was only permitted to see evidence once it was presented to the jury.” The State responds that it provided written discovery in both cases on multiple occasions, which is supported by the dockets. E.g., R. 9, 39, and 40. The State identified, among other things, “phone records — jail, house,” which the State indicated was available for copying and inspection at defense counsel‘s convenience. Discovery was discussed prior to trial, where the State indicated it had рroduced materials to defendant including documentation of jail calls and court documents. The judge assured defendant that if the State had not produced evidence to him, it would not be admitted at trial. Defense counsel further confirmed receipt of requested police reports. Although counsel objected to the admission of the voicemail messages, it was on grounds other than a discovery violation. We can find no basis in the record to support defendant‘s contention that the State withheld any discovery. This assignment of error is overruled.
{¶ 83} Defendant maintains the trial court erred by failing to dismiss the misdemeanor counts for want of speedy trial under
{¶ 84} Defendant mistakenly premises his argument upon State v. Hughes (1999), 86 Ohio St.3d 424, 715 N.E.2d 540. Subsequent to the Ohio Supreme Court‘s decision in Hughes, the Ohio General Assembly amended
{¶ 85}
{¶ 86} “A person against whom one or more charges of different degrees, whether felonies, misdemeanors, or combinations of felonies and misdemeanors, all of which arose out of the same act or transaction, are pending shall be brought to trial on all of the charges within the time period required for the highest degree
of offense charged, as determined under divisions (A), (B), and (C) of this section.”
{¶ 87} The statutory speedy trial time can be extended by circumstances set forth in
{¶ 88} In CR-524159, the State had 270 days to bring defendant to trial. Defendant was incarcerated under two separate case numbers from at least October 7, 2008, when he was indicted in CR-516312.10 Therefore, even assuming defendant was entitled to receive the three-for-one count of
{¶ 89} “VII. The trial court abused its discretion and committed reversible and/or plain error and violаted the appellant‘s Ohio and United States
{¶ 90} We note that defendant did not object to the court‘s jury instructions relating to this assignment of error; therefore, we review this issue for plain error. See State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, at ¶25. See, also,
{¶ 91} Defendant complains that the trial court instructed the jury that “an order of protection issued under 2903.213 is effective until the disposition, by the court that issued the order * * * of the criminal proceedings arising out of the complaint upon which the order is based * * *.” Defendant contends it was plain error not to insert the word “only” as follows: “an order of protection issued under 2903.213 is only effective * * *.” Defendant contends that the omission of the word “only” implied that the protection order was effective “forever.” No reasonable person would have construed the subject instruction to mean that the protective order remains in effect indefinitely. To the contrary, the only reasonable understanding of the instructions given is that the protective order was only valid until the disposition of the criminal charges from which it arose or upon the issuance of an order of protection under
{¶ 92} “VIII. The trial court abused its discretion and committed reversible and/or plain error and violated the appellant‘s Ohio and United States Constitutional rights by permitting the State to ambush the appellant on the stand with a CD the appellant only heard for the first time [once] he was testifying on the stand.”
{¶ 93} The State utilized State‘s ex. 16, a CD of defendant‘s telephone conversations from jail, to cross-examine witnesses during defendant‘s case-in-chief. Defendant complained that he was ambushed by the CD, which consisted exclusively of his own conversations. The State informed the court that there was nothing exculpatory to the defendant on the CD and that the State had only received the recorded conversations during trial. Although defendant alleged he had not heard the CD, defense counsel confirmed that he had heard the entire CD.
{¶ 94} ”
{¶ 95} There is no evidence of a willful violation of
{¶ 96} “IX. The trial court abused its discrеtion and committed reversible and/or plain error and violated the appellant‘s Ohio and United States Constitutional rights by permitting the State over the appellant‘s objection to use ‘void prior criminal cases to enhance a pending criminal case.‘”
{¶ 97} In this assignment of error, defendant vaguely contends that the trial court erred by introducing “void prior criminal cases to enhance this case on appeal, with prior cases that were void for either no PRC,
{¶ 98} “X. The trial court abused its discretion and committed reversible and/or plain error and violated the appellant‘s Ohio and United States Constitutional rights by denying the appellant‘s use of civil discovery of production
{¶ 99}
{¶ 100} “XI. The trial court abused its discretion and committed reversible and/or plain error and violated the appellant‘s Ohio and United States Constitutional rights by not giving an anti-jury nullification jury instruction as the appellant requested.”
{¶ 101} Prior to trial, defendant specifically asked the judge, “I would like to ask you not to give — not to give an anti-jury nullification * * *.” In response, the judge informed defendant that standard jury instructions would be provided to each party, to which he would have an opportunity to object. Defendant now argues that the triаl court erred by allegedly failing to give an anti-jury nullification instruction.
{¶ 102} Jury nullification occurs when the jurors disregard the instructions and arrive at a verdict based upon their collective conscience. See Clev. Constr., Inc. v. Ohio Public Emps. Ret. Sys., Franklin App. No. 07AP-574, 2008-Ohio-1630, ¶38. An anti-jury nullification instruction would obviously provide for the opposite.
{¶ 103} The jury instructions given by the trial court in this case included the jury‘s “sworn duty to accept these instructions and apply the laws as I give it to
{¶ 104} “XII. The trial court Judge Deena R. [Calabrese] abused her discretion and committed reversible and/or plain error and violated the appellant‘s Ohio and United States Constitutional rights and was [biased] and prejudiced and penalized the appellant for having [two] rеlated criminal cases pending before the court and denied him bail and penalized the appellant with a [seven-year] sentence stating, ‘I‘m afraid of you [and] I am afraid of what you might do to me after what you did to the [two] judges, Judge Gaul and Judge Villanueva,’ [based] on the [appellant] exposing these [two] other judges for fixing criminal cases and falsifying [court] records as a means to secure convictions [] of the [appellants] in a prior case, and in the criminal case of Jeffrey C. Keith, Esq., all subject to the county corruption probe [requiring] her to recuse [herself].”
{¶ 105} This assignment of error is without merit. A review of the sentencing transcript reflects an adequate consideration of the relevant law and supports the sentence imposed by the trial court. See
{¶ 107} Defendant maintains that the trial court erred to his prejudice and in violation of
{¶ 108} “XIV. The appellant was denied the effective assistance of trial counsel in violation of the Ohio and United States Constitutions, [based] on [counsel‘s] failure to investigate, failure to object, failure to file motions to suppress.”
{¶ 109} The substance of defendant‘s entire argument under this assignment of error is contained in a single sentence whereby defendant contends his counsel was ineffective for “failure to object, failure to investigate, failure to file motions, failure to procure discovery.” Defendant‘s nebulous generalizations fail to establish a claim for ineffective assistance of counsel and
{¶ 110} “XV. The appellant is entitled to a new trial and/or reversal based on the cumulative effects of all issues [combined].”
{¶ 111} The Ohio Supreme Court defined the cumulative-error doctrine in State v. Garner (1995), 74 Ohio St.3d 49, 64, 656 N.E.2d 623. “Pursuant to this doctrine, 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.” See, also, State v. DeMarco (1987), 31 Ohio St.3d 191, 509 N.E.2d 1256. The cumulative-error doctrine does not apply in this case and therefore this assignment of error is overruled.
{¶ 112} “XVI. The trial court abused its discretion and committed reversible and/or plain error and violated the appellant‘s Ohio and United States Constitutional rights [when the] appellant was sentenced to allied offenses of [similar] import.”
{¶ 113} Defendant has failed to identify, argue, or present any facts or law as to which of his convictions he believes constitute allied offenses of similar import. In any case, each of defendant‘s convictions are supported by evidence that would support a finding that defendant acted with a separate animus in committing each offense of conviction. This assignment of error is overruled.
{¶ 115} Defendant never raised the issue of his competency in this case. Rather, the trial court sua sponte addressed the issue of defendant‘s competence prior to commencing trial. In an unrelated proceeding, defendant was declared incompetent and later restored to competency, but this finding was not made part of the record in that case before the trial court accepted defendant‘s guilty plea. See State v. McGrath, Cuyahoga App. No. 91261, 2009-Ohio-1361. For that reason, McGrath‘s plea was vacated and the matter was remanded for further proceedings. Defendant now relies upon our decision in McGrath to support his argument under this assignment of error.
{¶ 116} Notably, when the trial court inquired of defendant whether he was taking his medication, he said, “I don‘t take medication. The whole thing was a ruse. * * * [T]here was no mental health issues. I just wouldn‘t talk.” The trial court proceeded to question defendant to assess his understanding of the proceedings. The court reviewed various competency evaluations of defendant conducted on April 16, 2007 and September 18, 2007. The court noted the doctor‘s opinion in the later report that “defendant was suffering from no psychiatric disorders and he demonstrated no sign of a mental illness, he had an excellent understanding of the adversarial legal process * * *.” The trial court
Judgment affirmed.
It is ordered that appellee recover from appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
JAMES J. SWEENEY, JUDGE
PATRICIA A. BLACKMON, J., CONCURS;
CHRISTINE T. McMONAGLE, P.J., CONCURS IN JUDGMENT ONLY