State v. MyricksState v. Myricks
Rendered on the 2nd day of October, 2009.
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KELLY D. MADZEY, Atty. Reg. No.0079994, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, Talbott Tower, Suite 1210, 131 N. Ludlow Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Defendant-appellant Joseph Myricks appeals from his conviction and sentence for Felonious Assault. Because the trial court did not abuse its discretion in refusing to allow defense counsel to cross-examine the complaining witness about her pending criminal indictment in order to attack her credibility pursuant to
I
{¶ 2} On the afternoon of April 8, 2008, M.M. and D.D. went to Myricks’ apartment, where the three smoked crack cocaine. M.M and Myricks had been acquainted for approximately one month. D.D. left, but M.M. waited with Myricks for another friend to bring more crack cocaine. As they waited, Myricks suddenly attacked her, punching, slapping, and biting her. He dragged her to his bedroom, where he removed her clothes and took photographs of her. Myricks tried to have sexual intercourse with M.M., but he could not maintain an erection. At various times, Myricks poured beer, fruit juice, shaving cream, hand soap, and toothpaste on M.M.’s vagina, and he was eventually able to maintain an erection long enough to penetrate and to ejaculate.
{¶ 3} Before he allowed her to leave, Myricks threatened to kill M.M. if she told anyone what he had done. M.M. went to a nearby gas station where she called a friend, who picked her up and called the police. When Dayton Police Officer Imwalle responded, she found M.M. crying hysterically and bleeding from her mouth. Officer Imwalle spoke with M.M. and then sent her to the hospital. Officer Imwalle and three other officers went to Myricks’ apartment. They arrested Myricks and obtained a search warrant for his apartment. Inside, the officers saw blood droplets on the kitchen floor, near a mop and bucket. They recovered a disposable camera, beer cans, shaving cream, toothpaste, hand soap, and a bottle of fruit punch. They also found a large knife on the air conditioning unit in the bedroom.
{¶ 4} Police later informed M.M. that Myricks is HIV positive, and she sought
{¶ 5} When interviewed by Detective Olinger, Myricks admitted to having both oral and vaginal sex with M.M., but he insisted that the acts were consensual. Myricks admitted to the detective that he did not tell M.M. that he was HIV positive, explaining, “I didn’t tell her I was HIV positive. I tell nobody. It’s a secret.”
{¶ 6} Myricks was indicted on one count of felonious assault by way of engaging in sexual conduct, knowing that he carried HIV, but without disclosing that fact to the other person prior to engaging in the sexual conduct. Myricks testified at trial. He claimed that although he had engaged in oral sex with M.M., there was no vaginal penetration because he was unable to maintain an erection. However, he admitted on cross-examination that there had also been vaginal sex. Myricks insisted that the sexual acts were consensual and that he did tell M.M. that he was HIV positive prior to engaging in those acts. A jury found Myricks guilty as charged, and the trial court sentenced him to four years in prison. Myricks appeals.
II
{¶ 7} Myricks’ sole assignment of error:
{¶ 8} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN RULING THAT APPELLANT WAS NOT ALLOWED TO QUESTION THE STATE’S COMPLAINING WITNESS, [M.M.], ABOUT THE FACT THAT SHE WAS FACING A PENDING CRIMINAL CHARGE OF IMPERSONATING A POLICE OFFICER.”
{¶ 9} In his sole assignment of error, Myricks argues that the trial court erred in
{¶ 10} “THE COURT: *** it’s my understanding that this witness, the victim in this case [M.M.], is in custody?
{¶ 11} “MR. BREZINE: Yes, sir.
{¶ 12} “THE COURT: And, I want to know, Mr. Brezine, if there is any reason why I should allow any questioning about her being in custody or what she is in custody for?
{¶ 13} “MR. BREZINE: *** I believe that the questions go very much to her credibility as a witness.
{¶ 14} “THE COURT: What is she in custody for and what do you intend to ask her about what she is in custody for?
{¶ 15} “MR. BREZINE: Among other things, she’s in custody for impersonating a police officer, which is a dishonest thing to do.
{¶ 16} “MR. BARRENTINE: If she were convicted that would be true. She has not --
{¶ 17} “THE COURT: I guess that’s my concern. This is -- the State has not requested particularly a motion in limine, but I perceive that this might be a problem. So, how -- how is it not -- how is it admissible in the absence of a conviction?
{¶ 18} “***
{¶ 19} “[W]hether or not she had been arrested or she is in custody now for impersonating a police officer, unless and until you can show me specifically how it would
{¶ 20} “***
{¶ 21} “And that includes the fact that she’s in custody if that’s what she’s in custody for because that doesn’t have any relevance to this case, unless you can tell me how it’s relevant to this case.”
{¶ 22} Myricks insists that this testimony was necessary to attack the complainant’s credibility, which was of paramount importance because the only contested issue was whether or not he told M.M. that he was HIV positive prior to engaging in sexual conduct with her. The trial court determined that the information would only have been admissible had she been convicted of the crime. However, the court did allow cross-examination about the witness’ prior conviction and on her use of illegal drugs.
{¶ 23} “The admission or exclusion of relevant evidence rests within the sound discretion of the trial court.” State v. Sage (2009), 122 Ohio St.3d 297, ¶24. “The term ‘abuse of discretion’ connotes more than an error of law or of judgment; it implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151, 157, citations omitted.
{¶ 24} On appeal, Myricks presents a two-part argument in support of his assignment of error. First, he contends that the existence of M.M.’s pending charge for impersonating a police officer is admissible for impeachment under
{¶ 25} The Ohio Rules of Evidence clearly delineate the methods by which a party may impeach a witness’ credibility. A witness’ credibility may be attacked, under
{¶ 26} Evidence Rule 608(B) states in relevant part: “Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness‘s character for truthfulness, other than conviction of crime as provided in
{¶ 27} Myricks cites three cases in support of his claim that the indictment is relevant to M.M.’s truthfulness: State v. Frederick, Montgomery App. No. 18996, 2002-Ohio-1195; State v. Carlson (1986), 31 Ohio App.3d 72; and State v. McKinney, Wayne App. No. 01CA0038, 2002-Ohio-3194. However, none of those cases involves an indictment pending against a witness. In both Frederick and Carlson, the court was faced with witnesses who may have had a financial interest in the outcome of the criminal prosecution because they had filed, or were contemplating filing, a related civil suit. The McKinney court held that the witness’s previous false police report against the defendant was relevant to her credibility in the most recent case. However, in the case at bar, Myricks has pointed to no specific aspect of M.M.’s pending charge that would indicate a character for untruthfulness. The mere existence of an indictment, regardless of the charges contained therein, does not automatically equate with evidence of a witness’ character for untruthfulness. State v. Davis (Dec. 31, 1998), Lake App. No. 97-L-246.
{¶ 28} It is significant in this case that Myricks only sought to rely on the fact of the
{¶ 29} Myricks also maintains that M.M.’s indictment was relevant to the possibility that she was motivated to testify with the expectation or hope of more lenient treatment in her own case. Although this argument could have been raised in the trial court, it was not; Myricks raises it for the first time on appeal. Having failed to raise this argument in the trial court, Myricks has waived all but plain error.
{¶ 30} “While ordinarily the credibility of a witness may be attacked by proof of a conviction of crime, but not by proof of indictment, this rule is subject to the exception that a witness in a criminal case may be asked if he is under indictment for a crime, if such fact would reasonably tend to show that his testimony might be influenced by interest, bias, or a motive to testify falsely” under
{¶ 31} We conclude that the trial court did not abuse its discretion in refusing to allow Myricks to cross-examine M.M. about her pending indictment pursuant to
III
{¶ 32} Having overruled Myricks’ sole assignment of error, the judgment of the trial court will be Affirmed.
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BROGAN, J. and FAIN, J., concur.
Copies mailed to:
Kelly D. Madzey
Jeffrey T. Gramza
Hon. Michael T. Hall