State v. RussellState v. Russell
M. POWELL, J.
{¶ 1} Defendant-appellant, George Asberry Russell, appeals his convictions in the Butler County Court of Common Pleas for domestic violence and abduction. For the reasons stated below, we affirm.
{¶ 2} In the early morning hours of November 2, 2011, Middletown Police Department responded to a 9-1-1 emergency call at the home of appellant and Toni Annette
{¶ 3} Upon arrival at the home, the police officers knocked on the door and identified themselves. McKnight then came to a second-story window and started yelling for help. The officers attempted to force entry into the residence but before they could, appellant opened the door. Upon entry into the apartment, police found McKnight distraught and crying. McKnight told police she had been held in the apartment since 6:00 p.m. and struck several times in the head and in the face. An officer observed that McKnight‘s left cheek was a little swollen. Appellant denied McKnight‘s accusations. Thereafter, appellant was arrested. On December 14, 2011, appellant was indicted on one count of felony domestic violence and one count of abduction.
{¶ 4} On February 2, 2012, a jury trial was held. At trial, McKnight testified that on November 2, 2011, appellant told her she could not leave the house after she requested to use his phone to call her brother. During the night, appellant grabbed her by the hair, hit her in the back of the head, struck her with an open palm on her face and head, kicked her in the stomach, and shoved her in the stomach with a board. A picture taken on November 2, 2011, showed swelling on McKnight‘s left cheek, bruising on her arm, and scrapes on her wrists. Appellant told her that if she tried to leave, he would “take [her] down a dark alley and cut [her] into pieces and no one would ever find [her].”
{¶ 5} Appellant testified in his own defense. Appellant denied causing McKnight‘s injuries. Instead, he explained that the left side of McKnight‘s face was “puffy” because she was “jumped” earlier that day. Additionally, he stated that McKnight‘s face was swollen because she punched herself to prevent appellant from leaving when the couple was having an argument. Appellant also denied causing the wounds on McKnight‘s wrists, explaining
{¶ 6} After the presentation of all the witnesses, a unanimous jury found appellant guilty of abduction and domestic violence. Appellant‘s domestic violence conviction was elevated to a third-degree felony because he had previously been convicted of two or more domestic violence offenses. Appellant was then sentenced to an aggregate prison term of 36 months.
{¶ 7} Appellant now appeals, asserting five assignments of error. We will begin with appellant‘s second assignment of error.
{¶ 8} Assignment of Error No. 2
{¶ 9} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT PERMITTED THE STATE TO SUBMIT EVIDENCE OF A THIRD CONVICTION OF DOMESTIC VIOLENCE WHEN THE STATE‘S BURDEN WAS TO PROVE ONLY TWO PRIOR CONVICTIONS.
{¶ 10} Appellant argues that the trial court erred when it admitted judgment entries of three of appellant‘s prior domestic violence convictions. Appellant was charged with committing domestic violence in violation of
{¶ 11} The admission or exclusion of relevant evidence rests within the sound
{¶ 12} When existence of a prior conviction does not simply enhance the penalty but transforms the crime itself by increasing its degree, the prior conviction is an essential element of the crime and must be proved by the state beyond a reasonable doubt. State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, ¶ 8. Additionally,
{¶ 13}
{¶ 15} We find that the trial court did not abuse its discretion in admitting evidence of appellant‘s three prior domestic violence convictions. We begin by noting that while we are not governed by the decisions of the Eleventh and Third Districts, these cases are distinguishable. In both Totarella and Lautenslager, the statutory language stated that the degree of an offense would be elevated if the defendant had been charged with a single previous offense. However, in this case, the express statutory language of
{¶ 16} Additionally, we do not find the probative value of the third conviction was substantially outweighed by its prejudicial effect. At trial, appellant did not offer to stipulate to any of his prior domestic violence convictions. Therefore, the jury could have rejected one of the prior convictions and needed the other two to elevate the offense to a third-degree felony. See State v. Henton, 121 Ohio App.3d 501, 506 (11th Dist.1997) (noting that admitting multiple prior offenses might be proper if defendant did not stipulate). Appellant only admitted
{¶ 17} Accordingly, we find the trial court did not abuse its discretion in admitting evidence of three of appellant‘s past domestic violence convictions. Appellant‘s second assignment of error is overruled.
{¶ 18} Assignment of Error No. 1
{¶ 19} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT PERMITTED THE STATE TO SUBMIT AN UNSIGNED ENTRY AS EVIDENCE OF A PRIOR CONVICTION.
{¶ 20} Appellant argues the court erred when it improperly admitted a judgment entry of one of his prior domestic violence convictions. Appellant maintains that the entry was improperly admitted because it did not contain the judge‘s signature.
{¶ 21} An appellate court will not disturb a trial court‘s evidentiary rulings absent an abuse of discretion. Lee, 191 Ohio App.3d 219, 2010-Ohio-6276 at ¶ 23. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981 at ¶ 181.
{¶ 22} When it is necessary to prove a prior conviction in a domestic violence case,
{¶ 23}
{¶ 24} Prior to appellant taking the stand, the state introduced three certified copies of judgment entries. One of these entries concerned appellant‘s 1997 domestic violence conviction in the Middletown Municipal Court. This entry did not contain the judge‘s signature. Subsequently, on direct examination, appellant admitted that he had been convicted of domestic violence on three different occasions. Specifically, appellant confessed that in 1997 he was convicted of domestic violence in the Middletown Municipal Court.
{¶ 25} We find that the trial court erred in admitting the 1997 judgment entry of conviction when it was unsigned by the judge. Therefore, the trial court abused its discretion in admitting a judgment entry to prove a prior conviction that did not contain the judge‘s
{¶ 26} However, while we find the admission of the entry constituted error, the error was harmless.
{¶ 27} Appellant‘s first assignment of error is overruled.
{¶ 28} Assignment of Error No. 3
{¶ 29} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT REFUSED TO ALLOW INTO EVIDENCE A VALID JUDGMENT ENTRY OF CONVICTION INVOLVING FALSITY BY A STATE‘S WITNESS.
{¶ 30} Appellant argues that the court abused its discretion when it refused to admit into evidence a judgment entry of McKnight‘s conviction of a crime involving dishonesty. Appellant asserts that this denial prevented him from establishing the name of the crime, the time and place of conviction, and the punishment imposed. Consequently, appellant maintains that in a case which hinged almost entirely on credibility, the refusal to admit McKnight‘s prior conviction prejudiced appellant. The state responds by arguing that once a
{¶ 31} As previously noted, an appellate court will not disturb a trial court‘s evidentiary rulings absent an abuse of discretion which is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Lee, 2010-Ohio-6276 at ¶ 23; Jackson, 2005-Ohio-5981 at ¶ 181.
{¶ 32}
(A) General Rule. For the purpose of attacking the credibility of a witness:
(3) Notwithstanding
Evid.R. 403(A) , but subject toEvid.R. 403(B) , evidence that any witness, including an accused, has been convicted of a crime is admissible if the crime involved dishonesty or false statement, regardless of the punishment and whether based upon state or federal statute or local ordinance.
{¶ 33} Under
{¶ 34}
[w]hen evidence of a witness‘s conviction of a crime is admissible under this rule, the fact of the conviction may be proved only by the testimony of the witness on direct or cross-examination, or by public record shown to the witness during his or her examination. If the witness denies that he or she is the person to whom the public record refers, the court may permit the introduction of additional evidence tending to establish that the witness is or is not the person to whom the public record refers.
{¶ 35} Prior to trial, the State stipulated out of the presence of the jury that McKnight had been convicted of making a false police report in 2007. The trial court held that this conviction involved dishonesty and defense could ask McKnight questions regarding the
{¶ 36} We will begin by addressing the state‘s contention that because McKnight admitted that she was convicted of a crime involving dishonesty, the trial court was prohibited from introducing into evidence a copy of her conviction. We disagree with this interpretation of
{¶ 37} McKnight admitted on cross-examination that she was convicted of making a false police report. Therefore, the jury was aware that she was convicted of a crime involving dishonesty. During closing arguments, appellant‘s counsel reminded the jury of McKnight‘s conviction and argued that her past conviction showed that her testimony was not credible. Thus, it is clear that the jury was aware of McKnight‘s past conviction and appellant was able to argue that this conviction showed she was not credible without the admission of a copy of the conviction into evidence.
{¶ 38} Additionally, we disagree with appellant‘s argument that the court‘s decision
{¶ 39} Appellant‘s argument fails for two reasons. First, appellant misconstrues the holding of Amburgey. The Court in Amburgey merely held that due to the discretion a trial court exercises over cross-examination, it does not err when it limits cross-examination regarding an impeachment offense to the name of the crime, the time and place of conviction, and the punishment imposed. The Court did not hold that a trial court must allow cross-examination regarding these matters. Second, even if this was the holding of Amburgey, the evidence does not establish that the trial court prevented counsel from inquiring into the name of the crime, the time and place of conviction, and the punishment imposed. Instead, the trial court only denied admission of a certified copy of McKnight‘s conviction into evidence; it did not prevent counsel from questioning McKnight further about the conviction. Accordingly, the trial court did not err by refusing to admit a copy of McKnight‘s conviction or by allowing counsel to question McKnight regarding the conviction.
{¶ 40} Appellant‘s third assignment of error is overruled.
{¶ 41} Assignment of Error No. 4
{¶ 42} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT PERMITTED THE STATE TO REHABILITATE THE STATE‘S WITNESS‘S CREDIBILITY DURING DIRECT EXAMINATION.
{¶ 43} Appellant argues that the court erred when it permitted the state to question McKnight regarding the circumstances surrounding her false report conviction. After the
{¶ 44} Appellant failed to object to the state‘s questions regarding the circumstances of McKnight‘s conviction. Accordingly, appellant has waived all but plain error on appeal. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 26. Plain error is present only if the error is obvious and, but for the error, the outcome of the trial clearly would have been different. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 108.
{¶ 45} As noted in the third assignment of error,
{¶ 46} Generally, testimony regarding the facts and circumstances of a witness‘s conviction are not permissible when the witness is being impeached. State v. Topping, 4th Dist. No. 11CA6, 2012-Ohio-5617, ¶ 52. In Topping, the court was determining whether a cross-examiner violated
[the cross-examiner] may ask about the name of the crime committed, i.e., murder or embezzlement. It will certainly add to the pungency of the impeachment where the crime was an aggravated one if he may ask about the circumstances, for example, whether the murder victim was a baby, the niece of the witness. And it has been suggested by a few courts that since proof by record is allowable, and the record might show some of these circumstances, the cross-examination should at least be permitted to touch all the facts that the record would. On the whole, however, the more reasonable practice, minimizing prejudice and distraction from the issues, is the generally prevailing one that beyond the name of the crime, the time and place of conviction, and sometimes the punishment, further details such as the name of the victim and the aggravating circumstances may not be inquired into. (Emphasis added.)
Id. at ¶ 52 quoting McCormick, Evidence, Section 42 at 57 (4th Ed.1992 Strong).
{¶ 47} Additionally, a court has held that where the state was simply trying to prove the defendant had a past conviction for purposes of enhancing the offense, testimony regarding the details of the prior convictions were not probative and highly prejudicial. State v. Kaufman, 10th Dist. No. 99AP-1366 (Nov. 9, 2000). See State v. Franklin, 178 Ohio App.3d 460, 2008-Ohio-4811, ¶ 79 (7th Dist.) (noting that impeaching a witness with prior conviction is limited to proving prior conviction and not facts surrounding conviction).
{¶ 48} In the case at bar, McKnight was impeached on cross-examination for her prior conviction involving dishonesty. During re-direct examination, the state asked McKnight a series of question regarding the details of her prior conviction. The following exchange occurred:
[STATE]: What kind of false report did you make?
[MCKNIGHT]: It was with the drug dealer, over a drug dealer.
[STATE]: Were you involved in the drug deal?
[MCKNIGHT]: No.
[STATE]: Tell us specifically – that doesn‘t help these ladies and gentlemen. I want to know what you told the police. [MCKNIGHT]: I told the police – well, my friend wanted to go buy some drugs, and she said that this drug dealer ripped her off and I got mad about it. And she wasn‘t going to do anything, so I called 911. And I told them that he took my purse.
[STATE]: Okay. Was that to get the police there?
[MCKNIGHT]: Yes.
[STATE]: To address the other matter?
[MCKNIGHT]: Yes.
[STATE]: That was in ‘07?
[MCKNIGHT]: Yes.
{¶ 48} We find that this testimony was admitted in error. Under
{¶ 49} While this testimony was admitted in error, it does not constitute plain error. Appellant has failed to point to evidence that shows but for this error, the outcome of the trial would have been clearly otherwise. After re-direct examination, appellant was able to further attack McKnight‘s credibility regarding the conviction in re-cross-examination and closing arguments. Appellant‘s counsel used the facts that the state elicited on direct examination to elaborate about the details of McKnight‘s conviction and show her lack of credibility. Additionally, other evidence, such as the similarities between the 9-1-1 call and McKnight‘s testimony, McKnight‘s injuries, and the parties’ behavior when the police arrived at their
{¶ 50} Accordingly, the trial court did not commit plain error in permitting McKnight‘s testimony regarding the circumstances of her conviction. Appellant‘s fourth assignment of error is overruled.
{¶ 51} Assignment of Error No. 5
{¶ 52} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT WHEN IT PERMITTED THE STATE‘S CROSS EXAMINATION OF THE DEFENDANT TO EXCEED THE SCOPE OF ADMISSIBILITY.
{¶ 53} Appellant argues the trial court erred when it allowed the state to inquire about appellant‘s domestic violence convictions on cross-examination as this went beyond the scope of admissibility. Appellant also challenges some of the state‘s comments in its closing arguments. Appellant argues that some of the state‘s comments were designed to convince the jury that appellant had a bad character and to convict him based on his past actions. Lastly, appellant argues that his conviction should be reversed because the cumulative effect of all the errors in the trial deprived him of a fair trial.3
{¶ 54} Appellant failed to object to the state‘s questions regarding appellant‘s prior convictions and the state‘s comments during closing arguments. Accordingly, appellant has waived all but plain error on appeal. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391 at ¶ 26. Plain error is present only if the error is obvious and, but for the error, the outcome of the trial clearly would have been different. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126 at ¶ 108.
{¶ 55} As stated in the second assignment of error, appellant was charged with committing domestic violence in violation of
{¶ 56} Pursuant to
{¶ 57} A cross-examiner may ask a question if the examiner has a good-faith belief that a factual predicate for the question exists. State v. Metcalf, 12th Dist. No. CA2010-12-326, 2012-Ohio-674, ¶ 26. Additionally, “[t]he prosecution is normally entitled to a certain degree of latitude in its concluding remarks.” State v. Vanloan, 12th Dist. No. CA2008-10-259, 2009-Ohio-4461, ¶ 31, citing State v. Smith, 14 Ohio St.3d 13, 13-14 (1984). Indeed, a prosecutor “is at liberty to prosecute with earnestness and vigor, striking hard blows. Yet, he may not strike with foul ones.” Vanloan at ¶ 31.
{¶ 58} During direct examination, appellant was questioned regarding his prior domestic violence convictions. Initially, appellant testified he was convicted of three prior domestic violence offenses, including the 1997 conviction out of Middletown Municipal Court, even though he was not sure if a case number was correct. On cross-examination, the following exchange occurred between the state and appellant:
[STATE]: Well, [appellant], let‘s start with those prior convictions. You don‘t deny the ‘05 conviction in Butler County Common Pleas Court, nor the ‘97 conviction in municipal court?
[APPELLANT]: I do not deny none of them.
[STATE]: What‘s that?
[APPELLANT]: I do not deny any of them.
[STATE]: The one in ‘97, even though you don‘t recognize the case number, you, in fact, were convicted of that particular case?
[APPELLANT]: Yes, I was. I pled the Fifth Amendment on that, which I wish I didn‘t.
[STATE]: Sir, you entered a plea, you pled guilty to that one, did you not?
[APPELLANT]: No I was found guilty.
[STATE]: You were represented by an attorney at that time, correct?
Chris Pagan.[STATE]: Is it your testimony that you did not enter a plea of guilty or no contest in case number 97—CR97080791?
[APPELLANT]: I pled the Fifth Amendment. So I never put in a plea. I never got to speak.
[STATE]: Well, would you argue with me that this judgment entry says the Court finds that the defendant has been convicted of domestic violence with a prior?
[APPELLANT]: No, I wouldn‘t argue with that.
[STATE]: That‘s what it says, and you had counsel.
[APPELLANT]: Yes. Does it say Chris Pagan?
[STATE]: Yes, it does. And you didn‘t go to trial on that, you pled guilty?
[APPELLANT]: No I did go to trial.
[STATE]: You actually went to trial on that, and were you found guilty?
[APPELLANT]: Yes, we went to trial. [STATE]: So you were found guilty of that?
[APPELLANT]: Yes.
{¶ 59} Later, the state brought up appellant‘s prior domestic violence conviction in its closing argument. The state argued, “[l]adies and gentlemen, leopards don‘t change their spots. They don‘t become zebras. They don‘t become lions. They remain leopards; [S]marter leopards maybe, but they‘re leopards.”
{¶ 60} We will begin by addressing whether the court erred when it permitted the state to inquire about appellant‘s convictions on cross-examination. In this case, appellant‘s 1997 conviction was not admissible to attack his credibility as it was not punishable in excess of one year. Additionally, the parties do not contend that appellant put his character at issue. Therefore, our inquiry turns on whether the state‘s questions on cross-examination violated
{¶ 61} In light of the fact that the state was required to prove the prior domestic violence offenses beyond a reasonable doubt and appellant did not stipulate to these offenses, the state‘s questions on cross-examination did not amount to plain error. During direct examination, appellant stated he was unsure whether counsel‘s recitation of his prior conviction case numbers were correct. When the state attempted to confirm that he was convicted of domestic violence in 1997 even though he did not recognize the case numbers, appellant responded that he “pled the Fifth Amendment.” The state‘s additional questions on cross-examination endeavored to clarify that appellant was found guilty of domestic violence in 1997 and not that he just “pled the Fifth Amendment.”
{¶ 62} Additionally, while the state‘s comments during closing argument are troublesome, the admission of these statements was not in plain error. It is clear that the comments the state made during its closing argument were made in violation of
{¶ 63} Further, the trial court instructed the jury that evidence of appellant‘s prior convictions are not admissible to show the character of appellant or that he acted in conformity with that character. Absent evidence to the contrary, the jury is presumed to follow the trial court‘s instruction. Standifer, 12th Dist. No. CA2011-07-071, 2012-Ohio-3132 at ¶ 38. Therefore, we find the court did not commit plain error in permitting the state to question appellant regarding his 1997 domestic violence conviction during cross-examination.
{¶ 64} Lastly, we disagree with appellant‘s contention that the cumulative effect of these errors warrants a vacation of his conviction or a new trial. “According 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 the numerous instances of trial court error does not individually constitute a cause for reversal.‘” State v. McClurkin, 12th Dist. No. CA2007-03-071, 2010-Ohio-1938, ¶ 105, quoting State v. Garner, 74 Ohio St.3d 49, 64 (1995). We have found that all of appellant‘s assignments of error are without merit and do not rise to the level of prejudicial error. Consequently, appellant was not deprived of a fair trial and the cumulative error doctrine is inapplicable.
{¶ 65} Appellant‘s fifth assignment of error is overruled.
{¶ 66} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.