STATE OF OHIO v. DEMETRIUS D. MILES
C.A. No. 26187
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Dated: June 13, 2012
2012-Ohio-2607
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 11 04 1055
WHITMORE, Presiding Judge.
{1} Defendant-Appellant, Demetrius Miles, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
I
{2} After Miles and his girlfriend, Georgetta Gomez, left a strip club together, they returned home and fought with one another. The result of the fight was that Miles bit Gomez’ lip, severing it and necessitating a later surgery. A grand jury indicted Miles on the following counts: (1) felonious assault, in violation of
{3} On July 26, 2011, Miles filed a motion for a mistrial, arguing that one of the jurors had admitted to improperly researching the definition of “knowingly” the night before the jury reached its verdicts. Miles asked the court to declare a mistrial, or alternatively, to voir dire the jury to inquire about any improper conduct. The court denied the motion, citing the evidence aliunde rule.
{4} Subsequently, the court empaneled another jury to retry the felonious assault charge. The second jury found Miles not guilty of felonious assault. For the crimes of domestic violence and violating a protection order, the trial court sentenced Miles to three years in prison.
{5} Miles now appeals from his convictions and raises four assignments of error for our review. For ease of analysis, we consolidate and rearrange several of the assignments of error.
II
Assignment of Error Number One
THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A FINDING THAT DEFENDANT IS GUILTY OF DOMESTIC VIOLENCE MENACING AND DOMESTIC VIOLENCE.
Assignment of Error Number Three
THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT‘S CRIMINAL RULE 29 MOTION WITH RESPECT TO THE DOMESTIC VIOLENCE MENACING CHARGE AND THE DOMESTIC VIOLENCE CHARGE.
{6} In his first and third assignments of error, Miles argues that the trial court erred by denying his Crim.R. 29 motions because his domestic violence convictions are based on insufficient evidence. We agree in part.
{7} “We review a denial of a defendant‘s Crim.R. 29 motion for acquittal by assessing the sufficiency of the State‘s evidence.” State v. Frashuer, 9th Dist. No. 24769, 2010-Ohio-634, ¶ 33. In order to determine whether the evidence before the trial court was sufficient to sustain a conviction, this Court must review the evidence in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).
An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
Id. at paragraph two of the syllabus; see also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “In essence, sufficiency is a test of adequacy.” Thompkins at 386.
{8} The jury convicted Miles of two forms of domestic violence; one pertaining to actual harm he caused, and the other to a threat of imminent physical harm he made. Under
{9} Officer Justin Ingham testified that he and his partner, Officer Brent Heller, responded to an assault dispatch at Akron General Medical Center and took statements from Gomez and Miles. Gomez first told the officers that she was attacked by a pimp at a strip club. Miles, who the officers had placed in another room, told Officer Ingham that he had left the strip club without Gomez and came to the hospital with her after he discovered she had been attacked.
Officer Heller testified that he did not believe Gomez’ statement, so after approximately thirty minutes had passed and Officer Ingham took Miles from the room, Officer Heller encouraged Gomez to be honest and tell him the truth. At that point, Gomez told Officer Heller that she and Miles had a fight, she threw something at him, and he then grabbed her and bit her lip. Officer Ingham testified that, although Miles was cooperative when he first spoke to him, Miles refused to make any further statements once he learned that Gomez had told the police he bit her.
{10} Officer Daniel Metzger also aided in the investigation by reporting to Gomez and Miles’ residence to explore the potential crime scene. Gomez gave the police permission to enter the residence when she spoke with Officer Heller at the hospital. Officer Metzger testified that he found a large amount of blood on the floor and walls of the bedroom. Dr. Lawrence Cervino, a staff surgeon at the Crystal Clinic who specializes in plastic surgery, testified that he repaired Gomez’ lip after the attack. The bite Gomez sustained completely severed her lip. To repair the injury, Dr. Cervino had to separately suture four layers of Gomez’ lip: the lining, two layers of muscle, and the underlying layer. Dr. Cervino opined that the injury was consistent with a bite wound and not a tearing injury because the lip was severed evenly. Due to the fact that a piece of Gomez’ lip was actually missing, Dr. Cervino had to stretch the existing tissue in the area across the wound to repair the damage.
{11} Although the State subpoenaed Gomez, she did not appear at trial to testify. Instead, the State played numerous excerpts from jail calls between Gomez and Miles. In the calls, the two repeatedly express their love for one another and Gomez states that she will not bring charges against Miles. Gomez also states that she knew Miles did not actually mean to bite her lip.
{12} Miles argues that his domestic violence convictions are based on insufficient evidence because there was no evidence that he: (1) acted knowingly to cause Gomez harm, (2) was the aggressor in the situation, or (3) threatened Gomez such that she believed she was in danger of imminent physical harm. We do not address the second argument here because it is a variation of Miles’ manifest weight argument, which is that he acted in self-defense. We address the aggressor argument in the next assignment of error where Miles argues that the jury lost its way by not believing his affirmative defense. See State v. Gatt, 9th Dist. No. 10CA0108-M, 2011-Ohio-5221, ¶ 9-13.
{13} Viewing the evidence in a light most favorable to the State, the record supports the conclusion that the State presented sufficient evidence that Miles knowingly caused physical harm to Gomez. See
{14} The same cannot be said, however, with regard to Miles’ other domestic violence conviction.
{15} Although a threat may be carried out through conduct, the State‘s theory would transform virtually every violation of
{16} Without a doubt, Gomez’ refusal to appear for trial placed the State in a difficult position. Even so, it was the State‘s burden to set forth “some evidence either that a victim stated, or that from other evidence it could be inferred, that the victim thought that the accused would cause imminent physical harm.” State v. Frazier, 9th Dist. No. 25654, 2012-Ohio-790, ¶ 48, quoting Hamilton v. Cameron, 121 Ohio App.3d 445, 449 (12th Dist.1997). The State failed
{17} Miles’ conviction under
Assignment of Error Number Two
THE VERDICT OF GUILTY OF DOMESTIC VIOLENCE MENACING AND DOMESTIC VIOLENCE WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. (Sic.)
{18} In his second assignment of error, Miles argues that his domestic violence convictions are against the manifest weight of the evidence. Due to our resolution of Miles’ first assignment of error, we only address the conviction arising from a violation of
{19} In determining whether a conviction is against the manifest weight of the evidence an appellate 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 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.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of the evidence challenge indicates that a greater amount of credible evidence supports one side of the issue than supports the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis that the conviction was against the manifest weight of the evidence, the appellate court sits as the “thirteenth juror” and disagrees with the factfinder‘s resolution of the conflicting testimony. Id. Therefore, this Court‘s “discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten, 33 Ohio App.3d at 340.
{20} “A defendant has the burden of establishing the affirmative defense of self-defense by a preponderance of the evidence.” State v. Gates, 9th Dist. No. 24941, 2010-Ohio-2994, ¶ 7.
To establish self-defense for the use of less than deadly force in defense of one‘s person, the defendant must prove: (1) he was not at fault in creating the situation which gave rise to the event in which the use of non-deadly force occurred; (2) he had honest and reasonable grounds to believe that such conduct was necessary to defend himself against the imminent use of unlawful force; and (3) the force used was not likely to cause death or great bodily harm.
State v. Tanner, 9th Dist. No. 3258-M, 2002-Ohio-2662, ¶ 21. “[I]n general, ‘one may use such force as the circumstances require to protect oneself against such danger as one has good reason to apprehend.‘” Gates at ¶ 7, quoting Akron v. Dokes, 31 Ohio App.3d 24, 25 (9th Dist.1986).
{21} Miles argues that his domestic violence conviction is against the manifest weight of the evidence because he did not knowingly harm Gomez. According to Miles, Gomez was the aggressor, attacked him, and was injured when he acted in self-defense.
{22} Miles testified that Gomez became angry with him after they left the strip club they were visiting. Gomez’ anger escalated when they arrived home, and she eventually threw an ashtray at Miles, which he ducked. Gomez later began trying to strike and bite Miles. According to Miles, he took hold of Gomez’ lip in her mouth to show her biting hurts and “it‘s kind of like you do unto others as you want them to do to you.” Gomez then pulled her face away and caused her lip to tear. Miles admitted that he and Gomez initially said that a pimp was responsible for the injury Gomez sustained, but explained that Gomez fabricated that story because she did not want anyone to get arrested.
{23} When Gomez told the police that Miles bit her, she did not describe the incident the way Miles later did. Gomez did say that she threw something at Miles, but not that she tried to strike or bite Miles or that she sustained the damage to her lip because she pulled away from him. Rather, Gomez told the police that she and Miles fought and then Miles grabbed her face and bit her lip. Dr. Cervino also testified that the injury Gomez sustained was consistent with a bite, not a tear. The injury itself was extremely severe. Additionally, while Gomez did not appear for trial, Officer Ingham testified that, in his experience, it is not uncommon for the victims of abuse to want to shield their abuser from the blame.
{24} Based on our review of the record, we cannot conclude that the jury lost its way in convicting Miles. Even if Miles testified that Gomez was the aggressor and bit him first, “[a] jury is free to believe or reject the testimony of each witness, and issues of credibility are primarily reserved for the trier of fact.” State v. Rice, 9th Dist. No. 26116, 2012-Ohio-2174, ¶ 35. This is not the “exceptional case in which the evidence weighs heavily against the conviction.” Martin, 20 Ohio App.3d at 175. Miles’ second assignment of error is overruled.
Assignment of Error Number Four
THE TRIAL COURT VIOLATED DEFENDANT‘S RIGHT TO DUE PROCESS UNDER THE OHIO CONSTITUTION AND THE CONSTITUTION OF THE UNITED STATES AS APPLICABLE THROUGH THE FOURTEENTH AMENDMENT WHEN IT FAILED TO CONDUCT A HEARING WITH RESPECT TO ALLEGATIONS OF JUROR MISCONDUCT.
{25} In his fourth assignment of error, Miles argues that the trial court erred by denying his motion for mistrial without first holding a hearing to explore potential juror misconduct. We disagree.
{26} A trial court need not hold a hearing in every instance of alleged juror misconduct. Akron v. McGuire, 9th Dist. No. 24638, 2009-Ohio-4661, ¶ 7. Evid.R. 606(B) provides, in part, as follows:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury‘s deliberations or to the effect of anything upon that or any other juror‘s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror‘s mental processes in connection therewith.
In contrast to certain exceptions that may apply when external influences have allegedly tainted the jury‘s verdict, Evid.R. 606(B) explicitly prohibits jurors from offering “internal evidence of the jury‘s deliberations in order to impeach the sentencing recommendations.” State v. Hessler, 90 Ohio St.3d 108, 124 (2000).
{27} The alleged misconduct that occurred here was that, after trial, one of the jurors admitted that he had conducted independent research on the term “knowingly” before the jury reached its final verdict. The only evidence that the juror conducted any independent research came from the juror himself. This is the exact type of evidence that Evid.R. 606(B) proscribes. State v. Williams, 149 Ohio App.3d 434, 2002-Ohio-4831, ¶ 52 (6th Dist.). See also Wicker v. Cleveland, 150 Ohio St. 434 (1948). In Williams, the appellant sought to impeach his jury‘s
{28} Miles did not point to any evidence aliunde in his motion for a mistrial. Compare State v. Sheppard, 84 Ohio St.3d 230, 233-234 (1998) (evidence aliunde rule did not prohibit evidence that juror contacted a psychologist friend for an outside opinion where the psychologist submitted an affidavit attesting to the conversation). The only evidence came directly from one of the jurors, who admitted to having conducted independent research during the deliberations. “[B]efore a juror may testify as to his own verdict, a foundation for that testimony must be acquired by the court, other than by testimony volunteered by the jurors themselves.” State v. Rogers, 68 Ohio App.3d 4, 8 (9th Dist.1990). Because Miles only supported his motion for a mistrial with inadmissible evidence, the court did not err by denying the motion without a hearing. Miles’ fourth assignment of error is overruled.
III
{29} Miles’ first and third assignments of error are sustained in part, and his domestic violence conviction under
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
BETH WHITMORE
FOR THE COURT
MOORE, J. CONCURS.
{30} I concur in the judgment. Mr. Miles has not challenged the denial of his motion for mistrial. Instead, he has limited his challenge to whether the trial court erroneously failed to hold a hearing. I concur that the trial court did not commit reversible error in failing to hold a hearing.
APPEARANCES:
CHRISTOPHER M. VANDEVERE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.