STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO v. MICHAEL A. SHUBA AND MICHAEL J. FILL
CASE NOS. 09 MA 185 09 MA 186
Ohio Court of Appeals, Seventh District, Mahoning County
September 29, 2011
2011-Ohio-5135
Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Criminal Appeals from the County Court No. 4 of Mahoning County, Ohio Case Nos. 09CRB177AUS 09CRB178AUS. JUDGMENT: Affirmed.
For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503
For Defendants-Appellants: Atty. Terry H. Gilbert 600 Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1752 Atty. Rhys B. Cartwright-Jones 42 N. Phelps Street Youngstown, Ohio 44503-1130
WAITE, P.J.
{1} Appellants, Michael J. Fill and Michael A. Shuba, appeal the judgment of the Mahoning County Court No. 4, convicting Fill of menacing, a violation of
{2} Appellants were involved in a confrontation with an off-duty police officer from the Boardman Police Department (“BPD“), Jack Cochran, on the afternoon of January 31, 2009 on a residential street in Austintown, Ohio. According to Cochran‘s testimony, Appellants cursed at him, threatened him, and Shuba approached him waving a walking stick in a threatening manner, causing Cochran to draw his weapon in self-defense. According to Shuba‘s testimony, though, Cochran brandished his weapon without provocation.
{3} In this appeal, Appellants contend that the trial court erred when it failed to sanction the state for its failure to provide notice of its intent to call a witness, Paula Salen, to testify at trial, and that the jury‘s verdicts were against the manifest weight of the evidence. Appellants further contend that the trial court erred when it
{4} According to Cochran‘s testimony, he was driving on Timberbrook Drive, which becomes Timber Lane, in Austintown, Ohio at approximately 1:00 p.m. on January 31, 2009. There was snow and ice on the road, and he was traveling approximately 5 miles below the posted limit of 25 miles per hour. He noticed Shuba‘s white van following very closely behind him. After stopping at the stop sign at the intersection of Timber Lane and Bentwillow, Cochran began to turn left (north) onto Bentwillow Lane, when the white van pulled along the driver‘s side of his SUV, cut him off, and made a left turn.
{5} Cochran testified that both vehicles travelled along Bentwillow, until the van, which was now in front of him, stopped in the middle of the road approximately two to three car lengths from Cochran‘s SUV. He claims that Appellants exited the van and began cursing at him for talking on his mobile phone and driving too slowly. Shuba exited from the driver‘s side and Fill exited from the passenger‘s side. The men walked to the back bumper of the van and stopped. Cochran got out of his SUV and stood by the driver‘s side door.
{6} According to Cochran, he tried to explain that he was driving slowly because of the road conditions, then he told the men that “enough is enough” and that they should “[g]et in [their] van and let [him] get on [his] way.” (Tr. Vol. I, p. 164.) Although Shuba told Fill to get back in the van, Fill did not move. Instead, Fill told
{7} According to Cochran, when Shuba directed Fill to get into the van, he told Cochran that Cochran was “about to get [his] ass beat by both of [them].” (Tr. Vol. I., p. 165.) The men approached Cochran, but stopped midway between the back bumper of the van and the front bumper of the SUV. Cochran testified that after Shuba told Fill to get back into the van, Cochran said, “[t]hat‘s some good advice. You guys need to go.” (Tr. Vol. I., p. 166.) Shuba responded, “[n]ow you‘re really going to get fucked up.” (Tr. Vol. I., p. 166.) Shuba turned back to the van, reached in, and took out a club, which was three or four feet in length. Cochran testified that, when he saw Shuba return to the van, he thought the confrontation was over, so he got back into his SUV. However, after Shuba retrieved the club, he “was coming at [Cochran] like he was a man on a mission.” (Tr. Vol. I., p. 167.) Cochran unholstered his weapon, pointed it at Shuba, and said, “[d]on‘t take another step closer.” (Tr. Vol. I., p. 167.) Shuba dropped the club and ran.
{8} Shuba ran between the vehicles, through the snow, and up to one of the houses. Cochran sat in his SUV as he watched Shuba run south through the neighboring yards. Shuba came back into the street behind Cochran‘s SUV and slapped his hand on the back of the vehicle. Cochran thought Shuba was attempting to open the tailgate.
{9} At this point, Cochran backed his SUV up the street to a stop sign to get away from Shuba, and called the Austintown Police Department (“APD“). At the
{10} Cochran testified that he believed that Shuba now had a gun, because only an armed man would approach another armed man. When Officer Keith Smith, a patrol officer from APD, arrived at the scene, Cochran waited until Smith spoke with Appellants and then he told his version of the events to Smith.
{11} On cross-examination, Cochran testified that he never identified himself as a police officer during the confrontation with Appellants. He further testified that, although he identified the instrument in Shuba‘s hand as a “club” during his direct testimony, it was actually a walking stick. Finally, Cochran noted that he did not call APD for assistance, but, instead, to ask them to run the license plate on the van and to warn the dispatcher that she would probably be receiving a 911 call.
{12} Shuba testified that he uses the walking stick because he has a chronic cartilage disease that has affected both knees, his left knee most severely, and he is too young to get a knee replacement. (Tr. Vol. II., pp. 58, 62.) He denied ever using the walking stick as a weapon. He also testified that he suffers from coronary artery disease, and that he suffered a heart attack approximately two years before the trial. (Tr. Vol. II., p. 60.) As a result, he claimed that he has been advised to avoid stressful situations. He further testified that he has a black belt in karate, which he
{13} According to Shuba, he and Fill were on their way to Shuba‘s parents’ house to pick something up. (Tr. Vol. II., p. 65.) He testified that when he came up to Cochran‘s vehicle on Timber Lane, the SUV was travelling five miles an hour. (Tr. Vol. II., p. 66.) Cochran‘s vehicle stopped at the stop sign at the intersection of Timber Lane and Bentwillow for approximately 30 seconds. Shuba testified that he honked his horn twice, and then the SUV “pulled up a little bit and turned right.” (Tr. Vol. II., p. 67.) Shuba turned left at the intersection.
{14} As Shuba and Fill travelled south on Bentwillow, Shuba noticed Cochran‘s SUV coming up behind his van at a high rate of speed. Shuba drove past his parents’ driveway, so he could back in the driveway. Before he could do so, Cochran pulled up, even with the Shubas’ driveway, approximately 30 feet behind Shuba‘s van. Shuba exited the van with his walking stick. He conceded that he used a thicker stick in the wintertime for better traction. Cochran asked what his problem was. Shuba responded that he had no problem but that Cochran should “get off [of his] cell phone and drive correctly.” (Tr. Vol. II., p. 71.) Then, Shuba and Fill got back in the van. Shuba denied yelling, cursing, or waving the stick. In fact, he testified that the roads were icy so that he needed to use both hands on the walking stick that day to steady himself.
{15} Because he could not back into his parents’ driveway, and neither he nor Fill had a cell phone, Shuba decided to try to walk up the driveway to call the
{16} Shuba claimed that Fill began running up the driveway, and that Shuba had to say, “[w]ait for me. Help me up.” (Tr. Vol. II., p. 74.) As the two men hurried up the driveway, Cochran walked to the end of the driveway and pointed the gun at them. When Appellants got to the garage, Cochran continued to point the gun at them. Shuba testified that Cochran never identified himself as a police officer.
{17} When Shuba reached the door of the residence, he called to his mother to dial 911. Shuba left the house after his mother called 911, because he was afraid for his parents’ lives. Shortly thereafter, Shuba‘s mom came out to the garage to give Fill a pencil and paper to write down Cochran‘s license plate number.
{18} At some point, Cochran yelled to Shuba that he was leaving. Concerned that they would not be able to identify Cochran if he left the scene, Shuba and Fill walked back down the driveway, then to Cochran‘s car to record the license plate number. Shuba claimed that he had to wipe dirt from the license plate in order to read it. He also claimed that Cochran kept putting the SUV in reverse, and then back into drive, and that when Shuba was copying the license plate, Cochran put the SUV in reverse and “the tire was spinning and he caught just the edge of [Shuba‘s] foot.” (Tr. Vol. II., p. 83.)
{20} When Appellants returned to the house, Shuba was sweating profusely and experiencing chest pain. When paramedics arrived, Shuba initially refused treatment. He claimed he did so because he was uninsured. Smith testified that Shuba was very uncooperative with his investigation. (Tr. Vol. I., p. 137.) Shuba was hospitalized for three days, but he was not aware of the “brush burns” on his foot until he left the hospital. (Tr. Vol. II., p. 83.)
{21} According to the paramedic that transported Shuba to the hospital, Fill was permitted to accompany Shuba to the hospital. In the ambulance, Fill told Shuba that Cochran was a Boardman police officer, and that he should call a lawyer. Tammy Templin, another emergency medical technician that treated Shuba, testified that Fill expressed contempt for both APD and BPD. (Tr. Vol. I., p. 91.)
{22} The paramedic, Jacqueline Dick, related comments by Shuba regarding his belief that Boardman police were not prosecuted for crimes they committed, so it was clear that he and Fill would have to “take care of it themselves.” (Tr. Vol. I., p. 106.)
{23} The Chief of the BPD interviewed Shuba and Fill approximately 25 minutes after the confrontation, and told them that if they wanted to pursue charges
{24} Appellants were convicted and sentenced on November 3, 2009. Fill was sentenced to 30 days in jail, with 27 days suspended, a $150 fine and court costs, and 12 months of community control. Shuba was sentenced to 90 days in jail, with 87 days suspended, a $150 fine and court costs, and 12 months of community control. Both Shuba and Fill filed separate appeals on November 5, 2009. The two appeals were consolidated on December 22, 2009.
First Assignment of Error
{25} “Prosecutorial Misconduct: The prosecution failed to provide Crim.R. 16 materials and surreptitiously commandeered the defense‘s investigator by abuse of the subpoena process.”
{26} Appellants contend that the trial court abused its discretion when it did not sanction the state for its failure to identify Paula Salen as a government witness. Salen is a private detective employed by Shuba to investigate matters relating to this case. Salen also prepared Shuba‘s statement to the police.
{27}
{29} According to the trial transcript, Salen sat at Appellants’ table during voir dire. Prior to the commencement of testimony, the state subpoenaed Salen, then objected to Salen‘s presence at Appellants’ table. Appellants argued that the state subpoenaed Salen during voir dire for the sole purpose of preventing her from sitting at Appellants’ table during the trial. (Tr. Vol. I, p. 11.) Appellants further argued that the jury would be confused because she was at their trial table during voir dire, but not during the trial, and that the only testimony that she could provide was that she wrote Shuba‘s statement to the police. In response to Appellants’ arguments, the trial court stated:
{30} “Listen. I don‘t disagree with anything you‘re saying. If she is a witness and she investigated the case and he intends to call her, I can‘t let her sit here. I don‘t disagree with anything you said, but I can‘t stop him from trying his case the way he wants to. As a result, I‘ll ask [Salen] to leave the courtroom. * * * I don‘t think
{31} Appellants’ counsel asked the trial court, “[a]nd what happens if he doesn‘t call her? Are you going to hold him in contempt?” (Tr. Vol. I, p. 12.)
{32} Appellants argue that the trial court‘s statements indicate that, although it believed that the state had acted in bad faith, it did not believe that it had the power to sanction the state. However, the state correctly argues in its brief that the most severe sanction that the trial court could have imposed in this case for a
Second Assignment of Error
{33} “Manifest Weight: The manifest weight of the evidence supported acquittal.”
{34} Appellants contend that the weight of the evidence in this case does not support the guilty verdict. More particularly, Appellants argue that they presented a better case than the state, and that the jury should not have convicted them. In determining whether a criminal judgment is against the manifest weight of the evidence, an appellate court acts as a “thirteenth juror” to determine whether “the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. The verdict is not against the weight of the evidence when there is evidence which, if believed, will convince the average person of the accused‘s guilt beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, 172, 383 N.E.2d 132. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact to determine. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, at paragraph one of syllabus.
{35}
{36} Appellants contend that Officer Cochran‘s testimony was incredible based on his admitted failure to immediately report the incident to APD or his superiors. Whether or not this single aspect of Cochran‘s testimony undermined its credibility was for the trier of fact to determine. Shuba and Fill‘s testimony, on the other hand, had many aspects that made their version of the events difficult to believe. A prime example is the testimony that Shuba and Fill walked back to Cochran‘s SUV to record his license plate number after Cochran brandished a gun
{37} In this case, the jury was asked to accept one of two diametrically opposed stories. Although neither story may have warranted complete belief, we cannot conclude that the jury lost its way in giving more weight to Cochran‘s version of the events at issue in this case. Accordingly, Appellants’ second assignment of error is overruled.
Third Assignment of Error
{38} “Bond: The trial court erred in requiring the defendants to post a cash or surety appellate bond in a misdemeanor case.”
{39} Appellants contend that the trial court ordered an illegal appellate bond in this case. Local Rule I(B)(2) of the Seventh District Court of Appeals deals with bail and suspension of sentence on appeal, and states: “[i]f the defendant is on bail when such a notice of appeal is filed, the execution of the sentence shall thereby be suspended and the defendant shall continue on the same bail during the pendency of the appeal unless the magistrate or this Court, for good cause shown, orders a new
{40} Appellants’ argument is not correct. Appellants were not released on bail when this case was appealed. They had been released on a bail bond during the pendency of the trial, but such a bond is only valid until the verdict is rendered or it is otherwise continued by the trial court.
{41} Generally, a criminal defendant must first apply to the trial court to have a sentence suspended and to set bail pending appeal.
Fourth Assignment of Error
{42} “Improper Impeachment: The trial court erred in allowing in incongruent, unnoticed, impeachment testimony.”
{43} Appellants offered the testimony of two witnesses to establish that Shuba is a truthful, peaceful person. Concetta Precurato testified that Shuba was “very mild mannered,” and never “disrespectful.” (Tr. Vol. II, p. 50.) Max Ciscell, Shuba‘s partner in a karate school for children, testified that Shuba was “never enraged or aggressive” and that he was a “reputable person.” (Tr. Vol. II, pp. 30-31.)
{44} In rebuttal, the state offered the testimony of Jason Herman. The state characterized Herman‘s testimony as a “road rage” incident involving Appellants. Herman testified that he was driving in front of Shuba and Fill on Route 46 in Austintown, Ohio, when Shuba swung around Herman‘s car, cut Herman off, and then almost immediately applied his brakes. (Tr. Vol. II, p. 124.) Herman claimed that he almost hit Shuba‘s car, and that Herman‘s wife and children, who were passengers in his car, were thrust forward and then back in their seats.
{45} Herman followed Shuba into a parking lot and confronted him. When Herman asked Shuba for an explanation as to why he cut him off and then applied
{46} Herman testified that he was furious, and that while he was “ranting and raving,” one of the men in Shuba‘s car began taking photographs for “evidence.” (Tr. Vol. II, p. 126.) The confrontation concluded when Herman “showed [Shuba] the moon” and the police intervened. (Tr. Vol. II, pp. 126-127.)
{47} Appellants contend that Herman‘s testimony was incongruent with the reputation testimony offered by the defense. Appellants argue that, because Shuba did not act angrily or violently toward Herman, the evidence should not have been admitted. Appellants claim that, “[i]ndeed, if one believes this line of testimony, Shuba and Fill would have appeared nonchalant—far from violent or non peaceable [sic]. The key phrase, ‘[He said] he enjoys doing this.’ ” (Emphasis in original.) (Appellants’ Brf., p. 32.)
{48} Appellants predicate the first part of their argument on
{49} Appellants offered testimony to establish that Shuba was non-violent and respectful of others. Herman‘s testimony demonstrated that Shuba had a proclivity for aggressive, reckless, and confrontational driving, and thus, it directly contradicted the testimony that Shuba was a peaceful and respectful person once he was behind the wheel of a car. The fact that Shuba may also have enjoyed the results of his aggressive and disrespectful behavior is irrelevant. A person may express enjoyment in any number of ways, many of which are not particularly peaceful. As a consequence, the trial court did not abuse its discretion based upon
{50} Next, Appellants contend Mr. Herman‘s testimony violated
{51} Finding neither of Appellants’ arguments persuasive, we overrule their fourth assignment of error.
{52} At this point we note that there may be another problem with this testimony. The concurrence is partially correct that the testimony may have been
{53} In summary, we conclude that the trial court‘s failure to sanction the state for the
Donofrio, J., concurs.
DeGenaro, J., concurs in judgment only; see concurring in judgment only opinion.
DeGenaro, J., concurring in judgment only.
{54} I write separately because I disagree with the analysis used by the majority to resolve Appellants’ fourth assignment of error. Although not specifically argued by appellate counsel, I believe that pursuant to
{55} The day before trial, counsel for Appellants filed a motion in limine regarding Herman‘s testimony about a prior road rage incident, arguing such testimony would be inadmissible pursuant to
{56} The issue raised in the fourth assignment of error is whether Herman‘s testimony was admissible to rebut the good character evidence Shuba put on about himself. The defense had offered opinion and reputation testimony to establish that Shuba is a truthful, peaceful person. I agree with the majority that
{57} What I find troubling is the fact that the State used an improper method to prove character via its rebuttal witness.
{58} Here, Herman‘s testimony provided more than just reputation or opinion evidence, rather he testified extensively about a specific prior “bad act” of the Appellants, characterized by the prosecutor as a road rage incident.
{59}
{60} In the end, although I feel it was error for the trial court to have permitted Herman‘s prior acts testimony, even absent this evidence it is clear beyond a reasonable doubt that the jury would have found Appellants guilty, and thus there was no apparent prejudice. Accordingly, I concur in judgment only.
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro