State v. RoyState v. Roy
Clayton G. Napier, 29 North “D” Street, Hamilton, Ohio 45013, for defendant-appellant
O P I N I O N
RINGLAND, J.
{¶1} Defendant-appellant, Maria E. Roy, appeals her conviction for obstructing official business in the Butler County Court of Common Plеas. We affirm.
{¶2} Sometime after midnight on November 1, 2008, officers of the West Chester Township Police Department were dispatched to 8740 Cincinnati-Dayton Road in response to a reported fight and unknown trouble at the property. The property is a large parcel of land of approximately 78 acres referred to as the Skinner property.
{¶3} Approximately three or four minutes later, Officer Guy Michael Veeneman arrived and the officеrs intended to go into the barn to deal with the suspect while a third officer would take care of the two assault victims. One of the residents of the property, Ray Skinner, approached the officers and to inquire about the disturbance. He told the officer “whoever is in that barn is trespassing. I don‘t want them on my property.” Officer Lovell instructed Skinner to “stay back.” Skinner stood by the side of the barn and told the officers, “just do what you need to do.” The officers then entered the barn to find three underage individuals with alcohol on a table inside. The juveniles were removed from the barn and held in custody for suspicion of underage consumption.
{¶4} A vehicle then approached at a high rate of speed through the grassy field finally coming to rest near the officers. Officer Veeneman left the juveniles with another
{¶5} After the case was bound over to the Butler County Grand Jury from Area III Court, appellant was indicted for obstructing official business in violation of
{¶6} In support of her defense, appellant submitted the testimony of her next-door neighbor and her brother, Rаy Skinner. The neighbor testified that she saw appellant “being grabbed up” and “slung” to the ground and handcuffed by “four or five” officers while appellant was yelling and the officers saying “just wait a minute and we‘ll tell you.” Skinner stated that appellant arrived at the scene in a “panicked, scared to death” state of mind asking what happened, but the officer did not reply to her and merely said “we‘ll tell you. Wе‘ll tell you. Ms. Roy, just calm down.” Then as she walked a few more steps, an officer pulled her arm, grabbed her and slammed her to the ground, put his knee on her back and handcuffed her. Skinner claimed an officer held a shotgun to her face.
{¶7} Appellant also testified in her own defense. Appellant testified that she had given $1,000 to her 17-year-old granddaughter to have a Halloween party at the bаrn. She stated that the party was supposed to be over at 11:30 p.m. at which time the kids came home to eat at the house where they were to spend the night. Before going to bed, she went outside to let her dogs out and looked towards the barn, where she saw a fire truck. She drove her vehicle up the hill where she observed three life squads and five police cruisers. She ran and began asking questions to determine what was happening, but was thrown to the ground, handcuffed, and arrested on unknown
{¶8} At the conclusion of trial, the jury found appellant guilty as charged. Appellant was sentenced to five yeаrs community control, four years of basic supervision, one year of intensive supervision, a $25 monthly supervision fee, drug and alcohol use monitoring, 200 hours of community service and 45 days in the Butler County Jail, with credit for 43 days served. Appellant timely appeals, raising four assignments of error.
{¶9} Assignment of Error No. 1:
{¶10} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY REFUSING TO GRANT A REASONABLE CONTINUANCE BY NOT PERMITTING APPELLANT‘S WITNESS TO TESTIFY AND BY PERMITTING IMPROPER REBUTTAL.”
{¶11} Appellant first argues that the trial court denied her right to due process and to present a defense by not allоwing her expert witness to testify on the first day of trial. Appellant alleges that the “defense tried every way possible to get his testimony in, yet, the Court decided sua sponte to break without even giving counsel a chance to raise the issue.” Appellant argues that the court was “so determined to start the case, it had the obligation to permit the defendant to get in her evidence. This was an absolute denial of due process.”
{¶12} After review of the record, we cannot say that appellant suffered any prejudice by the trial court‘s failure to allow the expert to testify out-of-order. Acknowledging that the expert would not be available to testify after the first day of trial, the trial court offered for a deposition of the testimony to be taken, which would be later read tо the jury. No deposition was taken. Since appellant failed to take the deposition or proffer the testimony, she has failed to preserve the issue for appellate review. See State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, ¶97; State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324, ¶67.
{¶13} Similarly, in the instant appeal, appellant again fails to submit any proffer relating to the expert‘s testimony. Appellant merely states that the expert‘s testimony would relate to the “etiology of [her] injury.” We cannot assess whether appellant was prejudiced by the exclusion of this testimony without knowing what the testimony would have been. Id. Accordingly, appellant‘s argument is not well-taken.
{¶14} Next, appellant complains that improper rebuttal testimony was offered. Appellant‘s witnesses testified that she had been “slung,” “slammed” or thrown to the ground by the police officers and threatened with a shotgun. The state offered the testimony of Officer Gleason in rebuttal. Officer Gleason was called to testify that, while he was there, he saw no such event occur. Appellant urges that this was improper cumulative rebuttal testimony.
{¶15} “The proper scope of rebuttal testimony lies within the sound discretion of the trial court. Thus, a trial court‘s decision regarding the scope of rеbuttal testimony will not be reversed unless the trial court‘s decision was unreasonable, arbitrary, or unconscionable.” In re Sadiku (2000), 139 Ohio App.3d 263, 267.
{¶16} We find no error by the trial court. Following an objection at trial, the trial court specifically instructed the prosecution to limit Officer Gleason‘s testimony to what
{¶17} Appellant‘s first assignment of error is overruled.
{¶18} Assignment of Error No. 2:
{¶19} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN PERMITTING THE PROSECUTOR TO INTRODUCE CHARACTER EVIDENCE IN ITS CASE IN CHIEF TO COMMIT PROSECUTORIAL MISCONDUCT AND TO ENGAGE IN BASELESS IMPEACHMENT.”
{¶20} In her second assignment of error, appellant argues the state committed prosecutorial misconduct by making statements and offering evidence to portray appellant as a “bad person.” Further, аppellant argues that the trial court erred by allowing the prosecutor‘s conduct. Specifically, appellant claims that there was no basis for the prosecution stating during the opening statement that the case was “about disrespect to police officers” and that appellant acted the way she did to prevent the police from discovering that an underage drinking party occurred at the barn.
{¶21} In order to reverse a conviction based upon prosecutorial misconduct, a defendant must prove that the prosecutor‘s actions were improper and that they prejudicially affected the defendant‘s substantial rights. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶62. The focus of an inquiry into allegations of prosecutorial misconduct is upon the fairness of the trial, not upon the culpability of the prosecutor. State v. Hill, 75 Ohio St.3d 195, 203, 1996-Ohio-222, quoting Smith v. Phillips (1982), 455 U.S. 209, 219, 102 S.Ct. 940. The Ohio Supreme Court has held that prosecutorial misconduct is not grounds for error unless the defendant has been denied a fair trial.
{¶22} The admissibility of relevant evidence rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus. Absent an abuse of discretion, an appellate court will not disturb a trial court‘s ruling as to the admissibility of evidence. State v. Martin (1985), 19 Ohio St.3d 122, 129. An abuse of discretion connotes more than merely an error of law or judgment; it implies that the trial court‘s attitude was unreasonable, arbitrary or unconscionable. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶40.
{¶23} After review of the record, we find no abuse by the trial court. Upon arriving at the scene the officers discovered evidence of underage drinking. Specifically, after talking to the assault victims, the officers entered the barn and observed three underage individuals with alcohol on a table inside. Additionally, the female assault victim informed the officers that “underage drinking” was occurring at the barn. Clearly, the prosecution had a basis for asking appellant about her knowledge of any underage drinking on her property and whether she sanctioned the drinking party. Further, the assault victim‘s testimony was not hearsay as apрellant contends. Specifically, it was not offered to prove the truth of the matter asserted, i.e., that minors were drinking.
{¶24} Appellant urges that she was not at the party and, when the officers arrived, neither was her granddaughter. As a result, she claims there is no evidence
{¶25} Appellant‘s second assignment of error is overruled.
{¶26} Assignment of Error No. 3:
{¶27} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING DEFENDANT‘S RULE 29 MOTIONS AT THE END OF THE STATE‘S CASE AND AT THE END OF ALL THE EVIDENCE.”
{¶28} In her third assignment of error, appellant argues that insufficient evidence was presented to overcome her
{¶29} Our review of a trial court‘s denial of a
{¶30} Appellant attempts to construe her argument in this assignment of error based upon a charge of “resisting arrest,” arguing that she was not under arrest when she was originally detained and handcuffed, and was justified in ordering the police off her property.
{¶31} However, appellant was charged with obstructing official business in violation of
{¶32} After reviewing the evidence in a light most favorable to the prosecution, we find sufficient evidence to support appellant‘s conviction for obstructing official business. The officers entered appellant‘s property in response to an alleged assault. After arriving at the property, the officers discovered two assault victims and evidence of an underage drinking party at the nearby barn. As thе officers were attempting to investigate both the assault and underage consumption, appellant actively interfered with the investigation by being belligerent and argumentative, ignoring the officers’ requests to calm down and stop, attempting to walk past Officer Veeneman, and struggling with him when he tried to temporarily detain her. Under the circumstances, the evidence was sufficient to show that appellant‘s conduct hampered or impeded the officers’ performance of their lawful duties. See State v. Wellman, 173 Ohio App.3d 494, 2007-Ohio-2953.
{¶33} Appellant‘s third assignment of error is overruled.
{¶34} Assignment of Error No. 4:
{¶35} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN REFUSING TO GIVE APPELLANT‘S REQUESTED JURY INSTRUCTIONS WHICH WERE PROPER UNDER THE LAW.”
{¶36} In her final assignment of error, appellant argues the trial court abused its discretion in denying requested jury instructions concerning the right to refuse entry upon her land and the right to resist an unlawful arrest.
{¶37}
{¶38} In reviewing the record to ascertain the presence of sufficient evidence to support the giving of a proposed jury instruction, an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction. State v. Risner (1997), 120 Ohio App.3d 571, 574. However, a trial court does not err in failing to instruct the jury on an affirmative defense where the evidence is insufficient to support the instruction. State v. Melchior (1978), 56 Ohio St.2d 15, 21-22.
{¶39} At trial, appellant‘s counsel withdrew his request regarding appellant‘s right to resist an unlawful arrest. Accordingly, the trial court did not abuse its discretion in refusing to give the instruction. Regarding the right to refuse entry onto the land instruction, the officers were lawfully justified in entering the property in response to the emergency situation. Further, one of the lawful owners, appellant‘s brother, consented to the officers being on the property. There was no factual basis for the instruction and, as a result, the trial court did not abuse its discretion.
{¶40} Appellant‘s fourth assignment of error is overruled.
{¶41} Judgment affirmed.
YOUNG, P.J., and BRESSLER, J., concur.