STATE OF OHIO v. MARCUS ISIAH PRYOR
Case No. 2013CA00016
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
December 16, 2013
[Cite as State v. Pryor, 2013-Ohio-5693.]
Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, case no. 2012CR1233. JUDGMENT: AFFIRMED.
For Plaintiff-Appellee:
JOHN D. FERRERO, JR.
STARK CO. PROSECUTOR
RONALD MARK CALDWELL
110 Central Plaza S., Suite 510
Canton, OH 44702-1413
For Defendant-Appellant:
KRISTINE W. BEARD
4450 Belden Village St. NW
Suite 703
Canton, OH 44718
{¶1} Appellant Marcus Isiah Pryor appeals from the December 24, 2012 judgment entry of conviction and sentence entered in the Stark County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant and M.E. have been in a relationship off and on for three years and have a child together who was two years old at the time of these events. On July 23, 2012, appellant and M.E. had been “talking” and had texted each other throughout the day. M.E. saw appellant earlier but had no plans that evening. She made a pizza, put her child to bed, and fell asleep on the couch around 9:00 p.m. Around midnight M.E. woke up because her daughter was awake and brought her downstairs to join her on the couch. Both fell asleep.
{¶3} M.E. was next awakened by what she described as a “crack on the step.” By the light of the stairwell she could see appellant inside the house, and she asked him what he was doing there. Appellant reportedly said, “I just want to talk to you.” M.E. asked him how he got in, and he said he made a key. M.E. asked him to leave. Appellant told her he put their daughter to sleep in her bed upstairs.
{¶4} Appellant and M.E. began to argue about their relationship; M.E. testified appellant became angry and showed her a black and silver handgun. He pointed the gun at her and said she was going to “be with [him.]” Appellant looked at M.E.‘s cell phone stating “If I look at this phone and I find something, it‘s over.” M.E. told him there was nothing on her phone but appellant kept pointing the gun at her. Then he told her to take off her clothes and she complied. Appellant ordered M.E. to submit to oral and
{¶5} Appellant does not have a car but M.E.‘s car keys were on the dining room table and appellant was looking for them. He told her, “I‘m going to put you in the trunk.” M.E. thought he intended to kill her. He told her to walk out the front door and get in the car. She ran out the front door, followed by appellant, and they “tussled” for several minutes in the front yard. M.E. tried to get away from appellant and he tried to pull her back into the house. Finally M.E. ran up onto the porch of a neighboring duplex and banged on the door.
{¶6} The neighbor woman, who knows M.E. by sight but not well, eventually came to the door. She heard M.E. yelling “Help me, help me, it‘s [ ]” and banging on the door. M.E. was dressed in shorts and a tank top. She was hysterical and told the neighbor “He‘s trying to kill me.” She also asked the neighbor to “look at him” to see that appellant had a gun. The neighbor grabbed M.E. and pulled her into the house. She briefly saw a person standing nearby outside, walking toward them, but she did not look to see whether he had a gun or not before she closed her door and locked it. The neighbor proceeded to call 911 as M.E. cried and repeated “my baby.” Then someone started banging on the neighbor‘s door and M.E. ran and hid. The neighbor‘s husband tried to comfort M.E. as the neighbor spoke on the phone with the 911 operator; she had to ask M.E. for information to answer the operator‘s questions.
{¶7} The neighbor thought it took the police “a long time” to arrive. Once the police arrived, the neighbor watched to make sure they accompanied M.E. back inside her home, and then closed her door. She briefly spoke to the police again when they
{¶8} M.E. described what happened to officers who arrived on the scene. She also called her mother and brother, who came to her home to take her to the hospital. The police collected some evidence from the house including a cell phone later identified as appellant‘s. M.E.‘s own cell phone was missing. Her mother later called it and appellant answered.
{¶9} M.E. was taken to the hospital by family members and submitted to a sexual assault examination. The SANE nurse testified that in addition to gathering a sexual assault evidence kit from M.E., she also photographed some apparent injuries she observed: bruising on M.E.‘s right shoulder and abrasions on both sides of her neck. The nurse‘s physical findings were consistent with the history related by M.E.
{¶10} Swabs from the sexual assault evidence kit were examined for D.N.A. evidence. Seminal fluid was located on vaginal, anal, and thigh swabs taken from M.E. Appellant was determined to be the source of the D.N.A. on the swabs. Fingernail scrapings from M.E. were also examined but no blood or foreign tissue was detected.
{¶11} Appellant did not testify or present evidence on his own behalf at trial but argued throughout that the sexual contact with M.E. was consensual.
{¶12} Appellant was charged by indictment with one count of aggravated burglary with a firearm specification, one count of kidnapping, and one count of rape with a firearm specification. (Appellant was also charged with misdemeanor counts of domestic violence and intimidation, to which he entered pleas of guilty outside the presence of the jury.) Appellant entered pleas of not guilty to the felony charges and
{¶13} Appellant now appeals from the judgment entry of his convictions and sentences.
{¶14} Appellant raises five assignments of error:
ASSIGNMENTS OF ERROR
{¶15} “I. APPELLANT‘S CONVICTIONS FOR AGGRAVATED BURGLARY, KIDNAPPING, AND RAPE ARE AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.”
{¶16} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE INTRODUCTION OF JAIL HOUSE TAPE RECORDED TELEPHONE CONVERSATIONS.”
{¶17} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE 911 RECORDING.”
{¶19} “V. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT‘S MOTION FOR A MISTRIAL.”
ANALYSIS
I.
{¶20} Appellant asserts in his first assignment of error that his convictions are against the manifest weight and sufficiency of the evidence because they are based primarily upon the uncorroborated testimony of M.E. We disagree.
{¶21} The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court held, “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.”
{¶23} Appellant was found guilty of one count of rape pursuant to
No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply: The offender inflicts, or attempts or threatens to inflict physical harm on another[.]
{¶25} Appellant’s challenges to the manifest weight and sufficiency of the evidence are based upon his repeated assertion the testimony of M.E. was “inconsistent and unreliable.” We have reviewed the entire record and disagree with this characterization; moreover, it is well established determining the credibility of witnesses in within the province of the trier of fact. See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
{¶26} M.E.’s testimony about finding appellant in her home, unwelcome and uninvited, the ensuing angry confrontation, the forced sexual intercourse, and the “tussle” in the front yard are buttressed by the testimony of the neighbor, who discovered M.E. visibly hysterical banging on her front door, yelling that appellant was trying to kill her. The neighbor observed M.E.’s apparent fear: when M.E. thought appellant was banging on the neighbor’s door, she hid. The SANE nurse corroborated evidence of visible injury including bruising to her right shoulder and abrasions to both sides of her neck. Sexual contact between M.E. and appellant was verified by the
{¶27} We conclude appellant’s convictions are supported by sufficient evidence and are not against the manifest weight of the evidence. Appellant’s first assignment of error is overruled.
II.
{¶28} In his second assignment of error, appellant contends the trial court abused its discretion in admitting portions of recorded jail phone calls between appellant and M.E. We disagree.
{¶29} Before trial, appellant asked to plead to the misdemeanor counts of domestic violence and intimidation, arguing pleas to these counts would render parts of appellee‘s evidence irrelevant, to wit, appellant‘s telephone calls from jail to M.E. in which he apologizes to the victim repeatedly. Appellee objected, arguing despite any pleas to the misdemeanors, the jail calls were still highly relevant to the felony charges of rape, kidnapping, and aggravated burglary. The trial court initially determined it would listen to the recordings outside the presence of the jury and determine their admissibility in the context of the evidence presented at trial.
{¶30} Later, prior to M.E.‘s testimony, the trial court listened to the calls. Appellant argued they should be excluded because they are prejudicial and it is not clear why appellant is apologizing to M.E.; the apology might relate to other unrelated domestic violence incidents. The trial court disagreed and admitted the calls, especially because appellee edited out references to other bad acts by appellant. The trial court noted appellant was free to cross-examine M.E. about the history between the two to
{¶31} We have reviewed the recorded calls and find the trial court did not abuse its discretion in admitting them. We note appellant clearly makes reference to the “[expletive]-up things” he did to M.E., states that he would never want the same things to happen to their daughter, and says he hasn‘t told anyone at the jail “what charges are on” him because he is ashamed of what he‘s done. The admission or exclusion of evidence is a matter left to the sound discretion of the trial court. Absent an abuse of discretion resulting in material prejudice to the defendant, a reviewing court should be reluctant to interfere with a trial court‘s decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). To be admissible, a tape recording must be authentic, accurate, and trustworthy. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 109, citing State v. Rogan, 94 Ohio App.3d 140, 148, 640 N.E.2d 535 (2nd Dist.1994).
{¶32} Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
{¶34} Admission of portions of the jail calls was not an abuse of the trial court‘s discretion. We agree the evidence is relevant because the jury could infer appellant‘s apologies to M.E. on the tapes indicate consciousness of guilt. “[C]ourts in Ohio *** have affirmed that apologies constitute a ‘consciousness of guilt.’” State v. Tvaroch, 11th Dist. Trumbull No. 2012-T-0008, 2012-Ohio-5836, 982 N.E.2d 751, appeal not allowed, 134 Ohio St.3d 1508, 2013-Ohio-1123, 984 N.E.2d 1102, citing State v. Tichaona, 11th Dist. Portage No. 2010-P-0090, 2011-Ohio-6001, ¶ 42; State v. Sims, 12th Dist. Butler No. 2007-11-300, 2009-Ohio-550, ¶ 24; People v. Grathler, 368 Ill.App.3d 802, 808, 306 Ill.Dec. 879, 858 N.E.2d 937 (5th Dist.2006); Commonwealth v. Martin, 59 Mass App.Ct. 1109, 797 N.E.2d 947 (2003). Moreover, appellant acknowledges pending criminal charges in reference to M.E. and asks her whether she‘s received his letters.
{¶35} All relevant evidence is of course “prejudicial,” but the record reveals the trial court properly admitted the portions of these jail calls after careful consideration of
{¶36} Appellant‘s second assignment of error is overruled.
III.
{¶37} In his third assignment of error, appellant argues the trial court abused its discretion in allowing appellee to play the recording of the neighbor‘s 911 call for the jury. We disagree.
{¶38} The admission or exclusion of relevant evidence rests within the sound discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. We review the trial court‘s decision with an abuse-of-discretion standard. See State v. Finnerty, 45 Ohio St.3d 104, 107, 543 N.E.2d 1233 (1989); State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). A statement which is otherwise considered hearsay may be admissible as an excited utterance when the following four criteria are met: “(1) an event startling enough to produce a nervous excitement in the declarant, (2) the statement must have been made while still under the stress of excitement caused by the event, (3) the statement must relate to the startling event, and (4) the declarant must have personally observed the startling event.” In re C.C., 8th Dist. Cuyahoga Nos. 88320, 88321, 2007-Ohio-2226, ¶ 50, citing State v. Brown, 112 Ohio App.3d 583, 601, 679 N.E.2d 361 (12th Dist.1996).
{¶39} The trial court properly concluded the statements on the 911 call were excited utterances. Appellant objects to M.E.‘s statements that could be overheard on the call, although the neighbor spoke with the operator and related what M.E. told her.
{¶40} Appellant‘s third assignment of error is overruled.
IV.
{¶41} In his fourth assignment of error, appellant argues he was deprived of a fair trial by cumulative errors committed throughout his trial. We disagree.
{¶42} In State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995), the Ohio Supreme Court held pursuant to the cumulative error 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.” With respect to appellant‘s arguments that we have already addressed supra (admission of recordings of the jail and 911 calls), we do not find multiple instances of harmless error triggering the cumulative error doctrine. State v. Scott, 5th Dist. Richland No.11CA80, 2012-Ohio-3482, ¶ 75-76, appeal not allowed, 133 Ohio St.3d 1491, 2012-Ohio-5459, 978 N.E.2d 910.
{¶43} Appellant further raises three additional issues under this assignment of error: opinion testimony by M.E.‘s mother that appellant raped her daughter; the responding police officer‘s hearsay statement about what M.E. told him; and a detective‘s statement that an unrelated warrant for appellant‘s arrest existed at the time
{¶44} Appellant‘s fourth assignment of error is overruled.
V.
{¶45} In his fifth assignment of error, appellant argues the trial court should have granted his motion for mistrial. We disagree.
{¶46} In the instant case, appellant moved for mistrial upon Detective Monter‘s spontaneous statement that he learned appellant had a warrant for his arrest when he was looking for him in connection with the instant investigation. The trial court immediately instructed the jury to disregard the statement and overruled appellant‘s motion for mistrial.
{¶47} It was not unreasonable, arbitrary, or unconscionable for the trial court to admonish the jury to ignore the stricken testimony rather than grant a mistrial. Curative instructions are presumed to be an effective way to remedy errors that occur during trial. State v. Treesh, 90 Ohio St.3d 460, 480, 2001-Ohio-4, 739 N.E.2d 749. In State v. Ahmed, 103 Ohio St.3d 27, 42, 2004-Ohio-4190, 813 N.E.2d 637, the Ohio Supreme Court noted the following in determining a trial court properly failed to sua sponte declare a mistrial:
The determination of whether to grant a mistrial is in the discretion of the trial court. State v. Glover (1988), 35 Ohio St.3d 18, 19, 517 N.E.2d 900; State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 42. “[T]he trial judge is in the best position to determine whether the situation in [the] courtroom warrants the declaration of a mistrial.” Glover, 35 Ohio St.3d at 19, 517 N.E.2d 900; see, also, State v. Williams (1995), 73 Ohio St.3d 153, 167, 652 N.E.2d 721. This court will not second-guess such a determination absent an abuse of discretion.
{¶49} We find no abuse of discretion in the trial court‘s decision not to grant a mistrial. Appellant‘s fifth assignment of error is overruled.
CONCLUSION
{¶50} Appellant‘s five assignments are overruled and the judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J. and
Gwin, P.J.
Hoffman, J., concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN