State v. SwabyState v. Swaby
Dated: July 29, 2009
WHITMORE, Judge.
{¶1} Defendant-Appellant, Vincent Swaby, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.
I
{¶2} In the early morning hours of May 11, 2008, Ariel Swaby became engaged in an altercation with her husband, Swaby. As a result of the altercаtion, Ariel left the Swaby‘s residence with her eighteen-month old son and drove to the Circle K gas station in Twinsburg. Ariel called 911 at approximately 4:20 a.m. from the gas station and reported that Swaby had attacked her. Summit County Sheriff‘s Deputy Rocky Croft responded to Ariel‘s call and took her statement. Deputy Croft noted that Ariel had cuts on her forearm and ankle and that her son had glass in his hair and on his clothes from the shattered back window of Ariel‘s car.
{¶3} On June 17, 2008, the grand jury indicted Swaby оn the following counts: (1) kidnapping, in violation of
{¶4} Swaby now appeals from his convictions and raises two assignments of error for our review.
II
Assignment of Error Number One
“DEFENDANT WAS DENIED HIS RIGHT OF CONFRONTATION AND CROSS-EXAMINATION WHEN THE COURT ADMITTED A STATEMENT FROM A NON-TESTIFYING WITNESS OFFERED THROUGH A POLICE OFFICER.”
{¶5} In his first assignment of error, Swaby argues that the trial court erred in admitting statements made by Ariel Swaby through the testimony of Deputy Croft. Specifically, Swaby argues that Ariel‘s statements were testimonial hearsay and their admission violated his Confrontation Clause rights. We disagree.
{¶6} The Sixth Amendment to the United States Constitution guarantees an accused the right to confront witnesses against him. Crawford v. Washington (2004), 541 U.S. 36, 54. Testimonial statements made by a witness may only be admitted when the declarant is unavailable and the defendant has previously been afforded the opportunity for cross-examination. Id. at 59. Statements are testimonial when the circumstances objectively indicate
{¶7} At trial, Deputy Croft testified over objection about statements that Ariel made to him when he took her report at the Circle K. Deputy Croft testified that Ariel told him Swaby had assaulted her, come after her with a pair of scissors, and had kicked a door off its hinges when she attempted to get away from him. Swaby argues that the trial court erred by admitting Ariel‘s statements through Deputy Croft because the statements wеre testimonial hearsay. Even if the trial court erred by admitting the statements, any such error was harmless. See Delaware v. Van Arsdall (1986), 475 U.S. 673, 684 (holding that constitutional challenges based on alleged violations of the Confrontation Clause are subject to harmless еrror analysis).
{¶8} Before Deputy Croft testified, the State played the tape of Ariel‘s 911 call for the jury. In the 911 call, Ariel said that Swaby had assaulted her and physically injured her. Ariel specified that she received a cut to her ankle and two cuts to her forearm as a result of Swaby‘s attack. Swaby did not object to the 911 call. Indeed, when the trial court specifically asked whether Swaby‘s counsel had any objection to the admission of the call, he indicated that he did not. At the close of the State‘s case, Swaby‘s counsel indicated, “[t]he 9-1-1 [call], I can‘t object to it. I don‘t dispute that, Judge, because it‘s been construed to not be testimonial[.]” The statements that Ariel made in her 911 call parаllel the statements that were admitted through the testimony of Deputy Croft. As such, Swaby has not shown that the outcome of his trial would
Assignment of Error Number Two
“THE TRIAL COURT ERRED IN DENYING DEFENDANT‘S CRIM. R. 29(A) MOTION FOR ACQUITTAL BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUPPORT HIS CONVICTION AND THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶9} In his second assignment of error, Swaby argues that his convictions are based on insufficient evidence and are against the manifest weight of the evidence. We disagree.
{¶10} A review of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate аnd legally distinct determinations. State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600, at *1. “While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest weight challenge questions whether the state has met its burden of persuasion.” Id., citing State v. Thompkins (1997), 78 Ohio St.3d 380, 390 (Cook, J., concurring). In order to determine whether the evidence before the trial court was sufficient to sustain a conviction, this Court must review the evidence in a light most favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259, 274. Furthermore:
“An appellate court‘s functiоn 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 crimе proven beyond a reasonable doubt.” Id. at paragraph two of the syllabus; see, also, Thompkins, 78 Ohio St.3d at 386.
In State v. Roberts, this Court explained:
“[S]ufficiency is required to take a case to the jury[.] *** Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” (Emрhasis omitted.) State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462, at *2.
Accordingly, we address Swaby‘s challenge to the weight of the evidence first, as it is dispositive of his claim of sufficiency.
{¶11} In determining whether a conviction is against the manifest weight of the evidence an appellate court:
“[M]ust review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and сreated such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten (1986), 33 Ohio App.3d 339, 340.
A weight of the evidence challenge indicates that a greater amount of credible evidence suppоrts one side of the issue than supports the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis that the conviction was against the manifest weight of the evidence, the appellate court sits as the “thirteenth juror” and disagrees with the factfinder‘s resolution of the conflicting testimony. Id. Therefore, this Court‘s “discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the convictiоn.” State v. Martin (1983), 20 Ohio App.3d 172, 175; see, also, Otten, 33 Ohio App.3d at 340.
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{¶16} Swaby does not separately address his various convictions or point to any law in support of his manifest weight argument. Rather, Swaby collectively challenges all of his convictions on the basis that “there was simply no admissible evidence whatsoever to convict [him] of the charges.” We disagree.
{¶17} In her 911 call, Ariel stated that Swaby attacked her and that she suffered two cuts to her forearm and one cut to her ankle as a result of the attack. Deputy Croft testified that when he arrived at the Circle K gas station Ariel appeared “emotionally upset,” looked as if she had
{¶18} Ariel testified for the defense. According to Ariel, she consumed sixteen ounces of straight Vodka shortly before going home on the morning of the incident and engaged in a verbal disagreement with Swaby, whom she suspected оf cheating on her. Ariel testified that she cut her own forearm, called 911, and completed a police report framing Swaby for assault because she was extremely intoxicated and angry with him. Shortly after Ariel‘s 911 call, several individuals had contact with her: Deputy Croft, Officer Roy Cunningham, and Kelly Whapham, a paramedic/firefighter for the City of Macedonia. None of the foregoing individuals indicated that Ariel, who stood 5‘4” and weighed about 130 pounds at the time, apрeared intoxicated. Despite Ariel‘s assertion that she drank sixteen ounces of Vodka, both Officer Cunningham and Whapham specifically testified that Ariel did not appear impaired or intoxicated.
{¶19} Based on the evidenсe in the record, we cannot conclude that the jury lost its way in convicting Swaby of unlawful restraint, assault, domestic violence, child endangerment, and criminal damaging and endangering. Accordingly, Swaby‘s convictions are not against the mаnifest weight of the evidence.
{¶20} Having disposed of Swaby‘s challenge to the weight of the evidence, we similarly dispose of his sufficiency challenge. See Roberts, supra, at *2. Ariel‘s 911 call and Deputy
III
{¶21} Swaby‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issuе out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
MOORE, P. J.
DICKINSON, J.
CONCUR
JAYE M. SCHLACHET, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.