State v. ScottState v. Scott
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Joseph Macejko Youngstown City Prosecutor Atty. John H. Marsh Assistant Prosecuting Attorney 26 S. Phelps Street Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Douglas A. King Hartford, Dickey & King Co., LPA 91 West Taggart Street P.O. Box 85 East Palestine, Ohio 44113
{¶1} Appellant, Ceil C. Scott, appeals her conviction by jury in Youngstown Municipal Court for aggravated menacing, in violation of
{¶2} Appellant contends that the trial court‘s interpretation of the aggravated menacing statute was overly broad and contrary to law. She argues that the trial court committed plain error based on several instructions in the jury charge. Appellant further argues that there was insufficient evidence to convict her and that the greater weight of the evidence favored acquittal.
{¶3} Based on a review of the law and evidence in this case, the trial court properly interpreted
Facts
{¶4} Appellant filed a written report with the Youngstown Police Department accusing her sister, Cynthia Whitsett, of stealing money from her bank account. (Trial Tr., pp. 89-90.) She told the detective investigating the charge, Detective Sergeant Ramon Cox, that the funds that were stolen from her bank account were the proceeds of Social Security checks and PELL money. (Trial Tr., p. 96.) Inmates
{¶5} During his investigation, Det./Sgt. Cox determined that Whitsett was a co-signatory on the bank account in question. As such, she could not be charged with theft. (Trial Tr., p. 91.) According to Det./Sgt. Cox‘s testimony at trial, when he called Appellant on April 30, 2007 to inform her that he could not file charges against her sister, she became “irate” and stated that she was going to make the Youngstown Police Department and Boardman Police Department “pay” for their refusal to charge Whitsett with theft. (Trial Tr., pp. 91-92.) More specifically, Appellant said that she was going to get an AK-47 and “shoot it up,” making the shooting spree at Virginia Tech, which had occurred approximately two weeks prior to their conversation, “look like it was nothing.” (Trial Tr., pp. 92-93.)
{¶6} Because of Appellant‘s behavior on the phone, Det./Sgt. Cox reported the conversation to Captain Centorame. (Trial Tr., p. 97.) Capt. Centorame advised Cox to call the Boardman Police Department and inform them that a threat had been made against the department. (Trial Tr., p. 98.) Next, Det./Sgt. Cox prepared a police report memorializing his conversation with Appellant.
{¶7} According to the report, Appellant stated that she would take revenge on her sister, and make the Youngstown Police Department and the Boardman Police Department “pay” for not pursuing her charges. (4/30/07 Case Report, p. 1.) She further stated that her mother was not going to be the only one crying when this
{¶8} The following day, May 1, 2007, a complaint was filed in Youngstown Municipal Court charging that Appellant “DID, KNOWINGLY, CAUSE DET. SGT. RAMON COX TO BELIEVE THAT [SHE] WOULD CAUSE SERIOUS HARM TO THE PERSON OR PROPERTY OF CITIZENS OF YOUNGSTOWN, OR MEMBER OF THEIR IMMEDIATE FAMILY, TO-WIT: THREATENED TO MAKE THE VIRGINIA TECH SHOOTING LOOK LIKE IT WAS NOTHING, IN VIOLATION OF
{¶9} Although a motion for sanity and competency evaluations was filed, as well as a written plea of not guilty by reason of insanity, the disposition of these matters is not reflected in the record. The case proceeded to trial and Det./Sgt. Cox was the state‘s only witness. When asked on cross-examination whether he was in fear of Appellant, Cox responded, “I could have been, but probably not.” (Trial Tr., p. 106.) On redirect, Det./Sgt. Cox clarified this statement, conceding that he, “didn‘t think that this was [Appellant] around the corner with an AK-47, waiting to open up,” but explaining that he, “believed that [Appellant] would follow through with those actions.” (Trial Tr., p. 107.) He testified that it was his fear that prompted him to speak to Capt. Centorame.
{¶11} In support of the motion, Appellant‘s trial counsel cited two cases, one from this district, State v. Richard (1998), 129 Ohio App.3d 556, 718 N.E.2d 508, and another from the Fifth District, State v. Hileman, 5th Dist. No. 04 COA 48, 2005-Ohio-1698. Both cases stand for the proposition that a threat made to a third party who is not related to the subject of the threat cannot be the basis of a charge of aggravated menacing. The trial court denied the motion, reasoning that Det./Sgt. Cox was “A MEMBER OF THE CLASS OF PERSONS THAT WAS THREATENED,” that is, the Youngstown Police Department. (Trial Tr., p. 113.)
{¶12} Appellant took the stand in her own defense and testified that she suffers from bipolar disorder and manic-depression. (Trial Tr., p. 117.) She testified that she had been incarcerated for forty-four days in late February and early March for, “biting a Youngstown police officer‘s glove.” (Trial Tr., p. 117.)
{¶13} According to Appellant‘s testimony, Whitsett moved to Youngstown to assist her because she had no family in town. (Trial Tr., p. 119.) After she was
{¶14} Appellant accused Whitsett of stealing her money, and accused Det./Sgt. Cox of refusing to press charges against Whitsett because he was attending music concerts with her. (Trial Tr., pp. 127, 129.) She testified that she was not upset with Cox, because she believed that she could file theft charges with the Boardman Police Department, and she denied ever threatening him. Finally, she claimed that she was not aware of the shootings that occurred at Virginia Tech. (Trial Tr., p. 131.)
{¶15} The jury returned a verdict of guilty. On August 15, 2007, Appellant was sentenced to 18 months of intensive probation supervision and 40 hours of community service and ordered to submit to a mental health evaluation by Turning Point, with the trial court to monitor any treatment requirements.
{¶16} Appellant asserts eight assignments of error, however, the first part of her fourth assignment of error involves a question of law and, as a consequence, should be addressed first.
ASSIGNMENT OF ERROR NUMBER FOUR
{¶17} “THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT/APPELLANT‘S CRIMINAL RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL; ALTERNATIVELY, THE DEFENDANT/APPELLANT‘S CONVICTION
{¶18} In the first part of her fourth assignment of error, Appellant contends that the trial court erred in denying her
{¶19} The interpretation of a statute or ordinance is a question of law. State v. Frey, 166 Ohio App.3d 819, 2006-Ohio-2452, 853 N.E.2d 684, ¶9. In interpreting a criminal statute, courts must construe the statute strictly against the state and liberally in favor of the accused.
{¶21} The plain language of the statute criminalizes a person‘s threats of violence that create fear or cause apprehension of serious physical harm in another person. A threat to shoot up the Youngstown Police Department with an AK-47, if believed, would reasonably cause a member of the department to fear serious physical harm.
{¶22} In In re Cunningham, supra, we concluded that a student who left a letter at her school containing threats against her teachers had knowingly threatened those teachers. Id. at ¶23. Because she did not deliver the letter to the threatened teachers, the student argued that she could not be guilty of menacing. Id. at ¶21.
{¶23} The same is true in the case sub judice. Here, Appellant threatened to shoot up the Youngstown Police Department. Obviously, if she had threatened to shoot Det./Sgt. Cox, she would have acted knowingly in causing Cox to believe that she would cause serious physical harm to him. The fact that she chose to threaten the entire police department does not change the fact that she knowingly caused Det./Sgt. Cox to believe that she would cause serious physical harm to him as a member of the department.
{¶24} The remainder of Appellant‘s fourth assignment of error, her fifth assignment of error, and a part of the third assignment of error challenge the jury instructions and the evidence provided in this case as they relate to the essential elements of the crime, and, as such, will be discussed together for the purpose of judicial economy.
ASSIGNMENT OF ERROR NUMBER THREE
{¶25} “THE TRIAL COURT ERRED IN FAILING TO CORRECTLY INSTRUCT THE JURY WITH REGARD TO THE ELEMENTS OF THE OFFENSE CHARGED.”
ASSIGNMENT OF ERROR NUMBER FIVE
{¶26} “THE DEFENDANT/APPELLANT‘S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶28} Appellant‘s most compelling argument amounts to two lines at the conclusion of her manifest weight of the evidence challenge. She states, “the evidence, if not the charge, is vague, uncertain, conflicting or fragmentary. The court‘s confusion with regard to the charge itself, let alone the evidence, is demonstrated by the court‘s argument * * * that a class of persons was contemplated by
{¶29} Consequently, although it is buried in her manifest weight argument, Appellant appears to take issue for the first time on appeal with the definition of the elements of the crime in the jury charge. Likewise, she argues in her third assignment of error that the trial court erred in failing to explain, “what constitutes the citizens of Youngstown or members of their immediate family.” (Appellant‘s Brf., p. 11.) Because the jury charge parroted the language of the complaint, the foregoing arguments also challenge, albeit indirectly, the sufficiency of the complaint.
{¶30} By way of example, Appellant claims in her third assignment of error:
{¶32} In the state‘s merit brief, the state concedes that, “[t]he appellant threatened to shoot up the Youngstown police.” (Appellee‘s Brf., p. 13.) Then, in an eleventh-hour effort to harmonize the definition of the elements of the crime in the complaint and jury instructions and the evidence adduced at trial, the state asserts:
{¶33} “Any harm appellant caused would have affected the citizens of Youngstown by either diminished services by harming or causing the death of members of the Youngstown police or the expenditure of monetary funds to repair the damaged property or both. The salaries and the property owned by the Youngstown police are paid through the taxes collected from the citizens of Youngstown. Any harm inflicted on this taxpayer funded agency affects the citizens of Youngstown.
{¶35}
{¶36} The complaint and jury instructions in this case, in addition to failing to reflect the evidence adduced at trial, effectively omitted an essential element of the crime, that is, that the threat was directed at the “hearer” of the threat. In other words, based upon the defective indictment, the jury was instructed that the state must prove that Det./Sgt. Cox believed Appellant would cause serious physical harm to the citizens of Youngstown, not that he believed she would cause physical harm to him personally as a citizen of Youngstown.
{¶38} The Ohio Supreme Court has cautioned against the application of structural error in all but those rare cases where multiple violations of a defendant‘s rights follow the defective indictment. State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169, ¶6 (”Colon II“), citing Colon I at ¶29. In cases where errors in the complaint do not, ” ‘permeate the trial from beginning to end and put into question the reliability of the trial court in serving its function as a vehicle for determination of guilt or innocence,’ ” the plain-error analysis under
{¶39} Turning to the jury instruction, “[a]s a general rule, a defendant is entitled to have the jury instructed on all elements that must be proved to establish
{¶40} To constitute plain error, the error must be obvious on the record, palpable, and fundamental, so that it should have been apparent to the trial court without objection. See State v. Tichon (1995), 102 Ohio App.3d 758, 767, 658 N.E.2d 16. Moreover, plain error does not exist unless the appellant establishes that the outcome of the trial clearly would have been different but for the trial court‘s allegedly improper actions. State v. Waddell (1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043. Notice of plain error is to be taken with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Phillips (1995), 74 Ohio St.3d 72, 83, 656 N.E.2d 643.
{¶41} In Colon, the indictment omitted the mens rea element of recklessness, which was also omitted from the jury charge. The Supreme Court concluded that the defective indictment constituted structural error because of several constitutional violations: the indictment did not include all of the elements of the offense charged, which impinged upon the defendant‘s right to a grand jury indictment; there was no evidence on the record that the defendant was aware that recklessness was an element of the crime or that the state produced any evidence that the defendant acted recklessly, which violated his due process rights; and the defect allowed the state to treat aggravated burglary as a strict liability crime in its closing argument. Colon at ¶32.
{¶43} An essential element of the crime of aggravated menacing was omitted from both the complaint and jury instructions in this case. Despite the omission, it is clear from the record that the trial court, the state, and Appellant‘s trial counsel were aware of the elements of the crime, and that evidence was offered in support of each of the elements of aggravated menacing. Accordingly, we find that the omissions in the complaint and jury instructions do not constitute structural error. Thus, we are left to review the trial record to determine whether the outcome of the trial would have been different but for the omissions in the complaint and jury instructions.
{¶44} The evidence adduced at trial established that Appellant threatened to punish YPD for not pursuing her case; she threatened to get an AK-47 and “shoot it up,” and Cox believed that she would follow through on her threats. His testimony that he believed that Appellant would carry out her threats can reasonably be interpreted to mean that he feared for his own safety and the safety of the department.
{¶46} Accordingly, we find that the trial court did not commit plain error when instructing the jury on the elements of aggravated menacing. The foregoing analysis supports the conclusion that the evidence was both sufficient and sufficiently persuasive to survive Appellant‘s sufficiency and manifest weight arguments. Therefore, the remainder of Appellant‘s fourth assignment of error, the second part of her third assignment of error, and her fifth assignment of error are overruled.
{¶47} In the remainder of Appellant‘s third assignment of error, she argues that the trial court gave a confusing and unnecessary instruction involving the definitions of the terms of “cause,” “risk,” and “substantial risk.” Appellant raises her
{¶48} The jury instructions read, in pertinent part:
{¶49} “CAUSE IS AN ESSENTIAL ELEMENT OF THE OFFENSE. CAUSE IS AN ACT WHICH IN A NATURAL AND CONTINUOUS SEQUENCE DIRECTLY PRODUCES THE DEATH OR PHYSICAL HARM TO PERSONS OR PROPERTY, AND WITHOUT WHICH IT WOULD NOT HAVE OCCURRED.
{¶50} “* * *
{¶51} “RISK MEANS A SIGNIFICANT POSSIBILITY, AS CONTRASTED WITH A REMOTE POSSIBILITY, THAT A CERTAIN RESULT MAY OCCUR OR THAT CERTAIN CIRCUMSTANCES MAY EXIST.
{¶52} “SUBSTANTIAL RISK MEANS A STRONG POSSIBILITY, AS CONTRASTED WITH A REMOTE OR SIGNIFICANT POSSIBILITY, THAT A CERTAIN RESULT MAY OCCUR OR THAT CERTAIN CIRCUMSTANCES MAY EXIST.” (Tr., pp. 158-160.)
{¶53} Other than characterizing the foregoing definitions in the jury instructions as “mysterious” and “misplaced,” Appellant does not demonstrate that she suffered any prejudice as a result of the instructions. (Appellant‘s Brf., p. 10.) Although she states that, “the trial court failed to correctly instruct as to the essential elements of the offense charged,” Appellant does not articulate how the outcome of the trial was affected. (Appellant‘s Brf., p. 10.) Based on the above, the trial court did not commit plain error when it included the definitions of “cause,” “risk,” and
ASSIGNMENT OF ERROR NUMBER ONE
{¶54} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT GAVE THE DEADLOCKED JURY THE HOWARD CHARGE INSTEAD OF THE MARTENS JURY CHARGE.”
{¶55} In her first assignment of error, Appellant argues that the trial court erred when it gave a supplemental instruction to the jury after the jury inquired into the consequences of failing to reach a unanimous verdict. Appellant‘s trial counsel did not object to the supplemental instruction, and, as a result, we must review the trial court‘s decision for plain error
{¶56} In State v. Howard (1989), 42 Ohio St.3d 18, 537 N.E.2d 188, the Supreme Court of Ohio approved a supplemental charge to be given to a jury deadlocked as to judgment or acquittal. The Howard charge, which was read to the jury in this case verbatim, states:
{¶57} “In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusion of your fellows, each question submitted to you should be examined with proper regard and deference to the opinions of others. You should consider it desirable that the case be decided. You are selected in the same manner, and from the same source, as any future jury would be. There is no reason to believe the case will ever be submitted to a jury more capable, impartial, or
{¶58} Appellant argues that the trial court abused its discretion by failing to give a Martens charge. See State v. Martens (1993), 90 Ohio App.3d 338, 629 N.E.2d 462. The proposed charge in Martens, which was taken from 4 Ohio Jury Instructions (1992) 118, Section 415.50(4), reads:
{¶59} “It is conceivable that after a reasonable length of time honest differences of opinion on the evidence may prevent an agreement upon a verdict. When that condition exists you may consider whether further deliberations will serve a useful purpose. If you decide that you cannot agree and that further deliberations will not serve a useful purpose you may ask to be returned to the courtroom and
{¶60} The Martens Court recognized that the foregoing instruction, “changes the focus of deliberations by asking the jury to decide whether any verdict can be reached through further deliberations.” Id. As a consequence, the Martens Court cautioned that the instruction, if given prematurely, may be contrary to the goal of the Howard charge of encouraging a verdict where one can conscientiously be reached. Id.
{¶61} The record does not reflect the amount of time the jury deliberated before asking the trial court what would occur if they reached an impasse. The jury question read, “WE‘VE TAKEN 4 VOTES, THE LAST 2 WERE 7-1. IF WE CAN‘T REACH A CONSENSUS WHAT DO WE DO?” (Tr., p. 166.)
{¶62} The Supreme Court of Ohio has repeatedly upheld the use of the Howard charge, rather than a Martens charge, specifically finding that, “such an instruction is not coercive, and, in fact, ‘is intended for a jury that believes it is deadlocked, so as to challenge them to try one last time to reach a consensus.’ ” State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶38. The Howard charge served that very purpose in this case, and, therefore, the trial court did not commit plan error when it instructed the jury pursuant to Howard. Accordingly, Appellant‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER TWO
{¶64} Like the previous challenges to the jury charge, Appellant raises this objection for the first time on appeal. As such, she waives all but a plain error analysis. The trial court erroneously provided the civil jury instruction, rather than the criminal jury instruction, on inferences.
{¶65} The jury instructions read, in pertinent part, “YOU MAY INFER A FACT OR FACTS ONLY FROM OTHER FACTS OR CIRCUMSTANCES THAT HAVE BEEN PROVED BY THE GREATER WEIGHT OF THE EVIDENCE, BUT YOU MAY NOT MAKE INFERENCES FROM A SPECULATIVE OR REMOTE BASIS THAT HAS NOT BEEN ESTABLISHED BY THE GREATER WEIGHT OF THE EVIDENCE.” (Tr., p. 153.) Appellant asserts that the Committee Comment for Ohio Jury Instruction 5.10 clearly states that the foregoing instruction should be used in civil cases only.
{¶66} Last year, we addressed the very same challenge to the use of civil inference instruction in a criminal trial in State v. Young, 7th Dist. No. 07MA120, 2008-Ohio-5046. In that case, we relied on numerous references to the “reasonable doubt” standard in the remainder of the jury instructions to conclude that, “one erroneous instruction was insufficient to mislead the jury or to taint the entire pool of
{¶67} The same is true here. The trial court properly defined the standard to the jury. See
{¶68} “THE DEFENDANT IS PRESUMED INNOCENT UNTIL HER GUILT IS ESTABLISHED BEYOND A REASONABLE DOUBT. THE DEFENDANT MUST BE ACQUITTED UNLESS THE STATE PRODUCES EVIDENCE WHICH CONVINCES YOU BEYOND A REASONABLE DOUBT OF EVERY ESSENTIAL ELEMENT OF THE CRIME CHARGED IN THE COMPLAINT.
{¶69} “REASONABLE DOUBT IS PRESENT WHEN, AFTER YOU HAVE CAREFULLY CONSIDERED AND COMPARED ALL THE EVIDENCE, YOU CANNOT SAY YOU ARE FIRMLY CONVINCED OF THE TRUTH OF THE CHARGE. REASONABLE DOUBT IS BASED ON REASON AND COMMON SENSE. REASONABLE DOUBT IS NOT MERE POSSIBLE DOUBT, BECAUSE EVERYTHING RELATING TO HUMAN AFFAIRS OR DEPENDING ON MORAL EVIDENCE IS OPEN TO SOME POSSIBLE OR IMAGINARY DOUBT. PROOF BEYOND A REASONABLE DOUBT IS PROOF OF SUCH CHARACTER THAT AN ORDINARY PERSON WOULD BE WILLING TO RELY AND ACT UPON IT IN THE MOST IMPORTANT OF HIS LIFE AFFAIRS.
{¶70} “* * *”
{¶72} “* * *”
{¶73} “IF YOU FIND THAT THE STATE PROVED BEYOND A REASONABLE DOUBT ALL THE ESSENTIAL ELEMENTS OF THE OFFENSE OF AGGRAVATED MENACING, YOUR VERDICT MUST BE GUILTY.”
{¶74} “IF YOU FIND THAT THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT ANY ONE OF THE ESSENTIAL ELEMENTS OF THE OFFENSE OF AGGRAVATED MENACING, THEN YOUR VERDICT MUST BE NOT GUILTY.” (Tr., pp. 155-160.)
{¶75} Because the jury instructions read in their entirety properly explained the state‘s burden of proof, Appellant has failed to demonstrate that the trial court committed plain error. Accordingly, Appellant‘s second assignment of error is overruled.
{¶76} “THE COURT ERRED IN ADMITTING IMPERMISSIBLE OTHER ACTS/CHARACTER EVIDENCE OF DEFENDANT/APPELLANT IN VIOLATION OF
{¶77} Appellant contends that the trial court should have excluded any evidence referring to Appellant‘s felony conviction for assaulting a police officer due to unfair prejudice, as well as Det./Sgt. Cox‘s testimony about the Virginia Tech shooting, because he had not demonstrated any personal knowledge of that incident.
{¶78} Relevant evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
{¶79} In this case, Appellant‘s felony assault conviction was not admitted for the purpose of proving that she was likely to commit another assault. The conviction was admitted to demonstrate Det./Sgt. Cox‘s fear that she would carry out her threats of violence was reasonable. As stated earlier, the crime of aggravated menacing is not based upon the actual execution of the threatened action, but, instead, the fear or apprehension of serious physical harm instilled in the victim. Therefore, evidence of Appellant‘s prior assault conviction was not admitted for an improper purpose, but,
{¶80} At trial, Det./Sgt. Cox stated that the shootings at Virginia Tech took place on April 16th, 50 people were shot, and 30 or 31 people died. (Tr., p. 93.) He testified that his knowledge of the Virginia Tech shootings was based upon television news coverage. (Tr., pp. 93-94.) Appellant‘s counsel did not object to Det./Sgt. Cox‘s testimony regarding the Virginia Tech incident at trial. We review the decision of the trial court for plain error.
{¶81} Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted.
{¶82} The events at Virginia Tech were a matter of national concern and the subject of intense media coverage. Furthermore, the witness’ testimony regarding the Virginia Tech shootings was admitted to show his awareness of the event at the time that Appellant threatened the Youngstown Police Department, not to prove the truth of the matter asserted. Accordingly, the trial court did not commit plain error in admitting Det./Sgt. Cox‘s testimony regarding Appellant‘s prior felony conviction or the shootings at Virginia Tech, and her sixth assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER SEVEN
{¶83} “THE STATE OF OHIO COMMITTED PROSECUTORIAL MISCONDUCT IN ITS QUESTIONING OF THE DEFENDANT/APPELLANT AS WELL AS IN ITS CLOSING ARGUMENT.”
{¶85} “A prosecutor‘s remarks constitute misconduct if the remarks were improper and if the remarks prejudicially affected an accused‘s substantial rights.” State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, at ¶44, citing State v. Smith (1984), 14 Ohio St.3d 13, 14, 14 OBR 317, 470 N.E.2d 883. In determining whether the prosecutor‘s statements affected a substantial right of the defendant, an appellate court should consider the following factors: “(1) the nature of the remarks; (2) whether an objection was made by defense counsel; (3) whether the court gave any corrective instructions; and (4) the strength of the evidence presented against the defendant.” State v. Breland, 11th Dist. No. 2003-A-0066, 2004-Ohio-7238, ¶29. Prosecutorial misconduct will not provide a basis for reversal unless the misconduct can be said to have deprived the appellant of a fair trial based on the entire record. State v. Lott (1990), 51 Ohio St.3d 160, 166, 555 N.E.2d 293. Here, Appellant‘s trial counsel did not raise any objection to the prosecutor‘s statements before the trial court. Therefore, she has waived all but a plain error review.
{¶86} Appellant testified on direct examination that she suffers from bipolar disorder and manic-depression. On cross-examination, the prosecutor asked Appellant to list the medications she has been prescribed to treat her mental
{¶87} During his closing argument, the prosecutor stated:
{¶88} “[Appellant] was convicted of a felony assault, knowledge that [Cox] had at the time he filed the charges of aggravated menacing that she had violent tendencies.
{¶89} “It goes to his belief of whether or not this woman could or would follow up on the threats that she made. He believed the answer to be yes. He has had contact with her.” (Trial Tr., pp. 143-144.)
{¶90} The foregoing statement merely summarized the evidence admitted at trial. Therefore, the challenged statements were not prejudicial, nor did they deprive Appellant of a fair trial. Accordingly, Appellant‘s seventh assignment of error is overruled.
ASSIGNMENT OF ERROR NUMBER EIGHT
{¶91} “DEFENDANT/APPELLANT WAS DENIED A FAIR TRIAL DUE TO THE CUMULATIVE EFFECT OF THE ERRORS AS SET FORTH HEREIN.”
{¶92} Appellant contends that even if each single error alleged in her assignments of error is not worthy of reversal, the cumulative effect of these errors denied her a fair trial. However, errors do not become prejudicial, “by sheer weight of numbers.” State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶241. Cumulative error may only be found when the effect of multiple errors,
{¶93} The Ohio Supreme Court has observed that an assignment of error that simply intones the phrase “cumulative error” but offers no analysis or argument constitutes an assignment of error without substance. See State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶197. Appellant offers no analysis or argument in her brief.
{¶94} Although we have concluded that the trial court committed harmless error with respect to the definitions of the essential elements of the crime, cause, risk, and substantial risk, and the instruction on inferences, we cannot conclude that the trial court‘s errors acted in concert to deprive Appellant of a fair trial. There is no evidence on the record that suggests that a properly charged jury would have reached a different conclusion regarding Appellant‘s guilt.
{¶95} The jury obviously credited Det./Sgt. Cox‘s account of their April 30th phone conversation. Moreover, even though Cox conceded that he did not think Appellant was around the corner with an assault rifle, he testified that he feared she would carry out her threats in the future, and that his fear prompted him to report Appellant‘s call to Capt. Centorame. Because the trial court‘s errors did not deprive Appellant of her constitutional right to a fair trial, her eighth assignment of error is overruled.
{¶96} In summary, the facts adduced at trial fit squarely within the plain language of the aggravated menacing statute. To the extent that the sufficiency of
Donofrio, J., concurs.
Vukovich, P.J., concurs.
APPROVED:
_____________________________
CHERYL L. WAITE, JUDGE