STATE OF OHIO v. RICKY M. VEAL
C.A. No. 26005
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
August 8, 2012
[Cite as State v. Veal, 2012-Ohio-3555.]
COUNTY OF SUMMIT ss: APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 10 11 3142
Dated: August 8, 2012
MOORE, Presiding Judge.
{1} Appellant, Ricky Veal, appeals from the judgment of the Summit County Court of Common Pleas. This Court affirms.
I.
{2} On December 2, 2010, the Summit County Grand Jury indicted Mr. Veal on one charge of rape in violation of
II.
ASSIGNMENT OF ERROR IV
[MR. VEAL]‘S CONVICTION FOR ROBBERY, KIDNAPPING, AND RAPE IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{3} In his fourth assignment of error, Mr. Veal argues that his convictions were against the manifest weight of the evidence. We do not agree.
{4} When a defendant asserts that his conviction is against the manifest weight of the evidence,
an appellate court must review the entire record, weigh the evidencе 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 created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). In making this determination, this Court is mindful that “[e]valuating evidence and assessing credibility are primarily for the trier of fact.” State v. Shue, 97 Ohio App.3d 459, 466 (9th Dist.1994), citing Ostendorf-Morris Co. v. Slyman, 6 Ohio App.3d 46, 47 (8th Dist.1982) and Crull v. Maple Park Body Shop, 36 Ohio App.3d 153, 154 (12th Dist.1987).
{5} Here, Mr. Veal was convicted of rape in violation
{6} As part of its case-in-chief, the State presented the testimony of the victim, witnesses to the victim‘s behavior after the attaсk, employees of the Ohio Bureau of Criminal Identification (“BCI“), medical personnel, and police officers. The victim, Nichole, testified that, on July 16, 2010, she was six months pregnant, and the water service to her home had been shut off. She called her sister who worked at a nearby gas station. The sisters made plans to meet after Nichole‘s sister‘s shift ended at midnight. They planned to meet half-way between the gas station and Nichole‘s home to then walk to her sister‘s house so that Nichole could tаke a shower. While Nichole was walking to meet her sister, she encountered a dark-blue, four-door car, and the driver began flirting with her. After Nichole ignored his advances, the driver grabbed her, forced her in his car and drove onto an expressway. He exited the expressway and drove to a grassy clearing on Juneau Avenue, where he stopped. He told Nichole that he wanted to have sex with her, and she said no and told him she was pregnant. He then punched her in the face and grabbed her hair, pulling her out of the car. He ripped off her clothing, and she began screaming. He then placed an object by her side and told her that he was going to kill her if she did not be quiet. Nichole‘s attacker forced her to masturbate him, and he then vaginally raped her. After the attack, as Nichole was looking for her clothes in the clearing, her attacker drove
{7} Mr. Parker testified that he heard screaming in the early morning hours of July 17, and, after looking outside and seeing nothing, he returned indoors to watch television. He then heard another scream, and he went back outside, looked down the street, and saw a car drive away quickly. He returned inside, and looking out from inside his home, he saw a naked woman walk past his house. She then came to his house and told him that she had been raped, and Mr. Parker could see injuries to her head. He went inside and got her some clothes, and she left.
{8} Ms. Bell and Ms. Thornton testified that, in the early morning hours of July 17, a woman was knocking on Ms. Thornton‘s windows and door asking for help. After looking outside, they saw a naked woman in the street trying to flag down cars. The woman then obtained clothes at a neighbor‘s home, but returned to Ms. Thornton‘s house after another cаr drove off without helping her. Ms. Bell gave her a pair of shoes and called 9-1-1.
{9} Officer Jason Belacic of the City of Akron Police Department testified that he received a report of a rape in progress on July 17, and he and his partner were dispatched to Juneau Avenue. When they arrived, they saw a woman standing in the street sobbing. Her face was red and swollen, and she appeared to be “in severe distress.” She told the officers that she was walking home from a drive-thru, and a mаn pulled out in front of her and asked her to get in his car, and, after she refused, he forced her inside, drove to a wooded area just south of Stoner Street on Juneau Avenue, and raped her. When checking the area, the officers photographed visible tire tracks in the grass clearing on Juneau Avenue. The officers could not locate
{10} Willie Cheatham testified that he is a paramedic for the City of Akron Fire Department. He was dispatched to the scene on Juneau Avenue on July 17, and, when he arrived, he noticed injuries to Nichole‘s face and head. He gave her ice packs and tried to calm her down. On cross-examination, Mr. Cheatham testified that Nichole told him that her attacker did not hit her stomach, and, in response to a question he asked, which he could not remember, the victim told him something to the effect that her attacker had “looked cool” or had “looked familiar.”
{11} Diana Shaffer, a sexual assault nurse, performed a rape exam on Nichole at the hospital. She identified photographs admitted at trial which depicted injuries to Nichole‘s face and arms. Employees from the Ohio BCI testified that they received the rape kit, from which certain samples tested positive for semen. After completing a DNA analysis, the DNA profile obtained frоm the semen was consistent with Mr. Veal‘s DNA profile.
{12} Detective Jerome McMillan of the City of Akron Police Department testified that he went to the hospital to speak with Nichole and to receive a synopsis from the responding officers. Nichole had visible injuries to her face. The detective again met with her the next day and photographed her injuries. She told the detective that she did not know her attacker. After receiving the DNA analysis results from BCI, Detective McMillan compilеd a photo array. Nichole identified Mr. Veal as her attacker from the photo array. The detective had investigated Mr. Veal‘s listed residence and noted a dark blue, four-door car in the drive-way. On cross-examination, the detective verified that Nicole had specifically stated that her attacker was driving a Pontiac Grand Am, and the vehicle in the drive-way was not a Grand Am, but was
{13} Mr. Veal testified on his own behalf. Mr. Veal stated that he had met Nichole, whom he knew as Nicky, prior to July 17 at a “skill games” location. Nichole had asked him for money a few times, and after giving her money, she would perform oral sex on him or they would have sexual intercourse. Each time he had seen her, Nichole was with a man, whom she said was her brother-in-law, Larry. In the late evening hours of July 16 or early morning hours of July 17, Larry drove Mr. Veal and Nichole to what Mr. Veal believed was a party at Nichole‘s sister‘s house. When they arrived, Mr. Veal and Nichole sat outside the home, and Nichole began asking Mr. Veal about money. She then said she wanted to have sex with him, and they had intercourse outside the home; however, Mr. Veal believed that Nichole was acting strangely and trying to hold him down. When he was getting dressed, Larry came outside the house and threatened to shoot them because Mr. Veal had given Nichole a sexually transmitted disease, which she had given to Lаrry. Mr. Veal put his hands in the air, and Larry instructed Nichole to get his money. Mr. Veal tried to distract them and pushed Nichole down and threw a beer can at Larry. He then ran and hid. From his hiding place, he could hear Larry and Nichole arguing, and he saw Larry slap Nichole. He then heard Larry say that Mr. Veal would probably return with the police, and Larry told Nichole to go to one of the nearby houses to report that she was raped.
{14} In his merit brief, Mr. Veal argues that Nichole‘s testimony lacked credibility. In suрport, he argues that Nichole‘s testimony varied from his testimony as well as that of other witnesses. However, although the witnesses’ testimony presented alternate versions of events, “the jury is free to believe all, part, or none of the testimony of each witness.” Prince v. Jordan, 9th Dist. No. 04CA008423, 2004-Ohio-7184, ¶ 35, citing State v. Jackson, 86 Ohio App.3d 29, 33 (4th Dist.1993).
{15} After reviewing the entire record, weighing the inferences, and examining the credibility of witnesses, we cannot say that the jury clearly lost its way and created a manifest miscarriage of justice in finding Mr. Veal guilty of rape, kidnapping and robbery. Accordingly, Mr. Veal‘s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE PRO[SE]CUTION VIOLATED [MR. VEAL]‘S DUE PROCESS RIGHTS WHEN HE REPEATEDLY AND AGGRESSIVELY QUESTIONED [MR. VEAL] AS TO WHY HE DID NOT SPEAK TO POLICE EVEN THOUGH [MR. VEAL] HAD INVOKED HIS MIRANDA RIGHTS AND HAD REQUESTED AN ATTORNEY.
{16} In his first assignment of error, Mr. Veal argues that the prosecution engaged in misconduct and violated his due process rights by questioning him as to why he neglected to provide Detective McMillan with details of the incident during a post-arrest interview. We do not agree.
{18} Further, when the defendant fails to object to the purported acts of prosecutorial misconduct, he limits appellate review to that of plain error. State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, ¶ 45, citing State v. Slagle, 65 Ohio St.3d 597, 604 (1992). As Mr. Veal did not object to the statements made by the prosecutor that he now argues were improper, he may now only argue plain error. See id. Pursuant to
{20} On appeal, Mr. Veal argues that the State‘s references to his failure to provide these dеtails were improper. The United States Supreme Court has held that impeachment of a defendant by his silence violates the Constitution where a defendant has received the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966); Doyle v. Ohio, 426 U.S. 610 (1976). However, where the defendant has chosen to speak after receiving his Miranda warnings, he may be questioned as to his prior inconsistent statements, including his omission of details which are “not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement.” Anderson v. Charles, 447 U.S. 404, 409 (1980).
{21} Hеre, Mr. Veal received his Miranda warnings prior to the interview with Detective McMillan. The parties agree that Mr. Veal began to answer the detective‘s questions prior to invoking his Miranda rights. However, Mr. Veal argues that questions and comments made by the prosecutor regarding details that Mr. Veal omitted during his interview were tantamount to commenting on Mr. Veal‘s silence. The State responds that references to his silence were not improper where Mr. Veal had begun answering the detective‘s questions. The State relies on the Supreme Court‘s holding in Anderson.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN, IN THE PRESENCE OF THE JURY, IT DIRECTLY QUESTIONED [MR. VEAL] AS TO WHETHER OR NOT DEFENSE COUNSEL HAD PROVIDED EFFECTIVE REPRESENTATION.
{23} In his second assignment of error, Mr. Veal argues that the trial court violated his due process rights when, in the presence of the jury, the trial court asked Mr. Veal if he beliеved his attorney was providing him effective representation.
{24} In reviewing whether a judge‘s remarks prejudiced a defendant to the extent that it was error for the trial court to not grant a mistrial, we must take into account the following factors:
- The burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for, (3) the remаrks are to be considered in light of the circumstances under which they were made, (4) consideration is to be given to their possible effect upon the jury, and (5) to their possible impairment of the effectiveness of counsel.
State v. Wade, 53 Ohio St.2d 182, 188 (1978). See also State v. McCarley, 9th Dist. No. 22562, 2006-Ohio-1176, ¶ 10.
THE COURT: I have a question for you, sir, concerning Mr. Greven [defense counsel].
You said he didn‘t have a chance to talk to you at the jail?
[MR. VEAL]: We talked but not often. I talked to him with - - we never - - I never seen him often.
THE COURT: Do you have any concerns about him being able to represent you?
[MR. VEAL]: No. I - - he‘s my lawyer. I ain‘t got no complaints.
THE COURT: Do you feel like he‘s doing a good job for you?
[MR. VEAL]: Yes.
THE COURT: Okay.
MR. GREVEN: Can I approach?
THE COURT: Yeah. I mean you can see what my concern is.
{26} Aftеr a side-bar conversation, defense counsel then began to question Mr. Veal regarding his representation of him. The State then asked if counsel could approach, and the court stated as follows:
This is - - Ladies and Gentlemen, I may have made a mistake here. And at this point, I‘m going to ask you to disregard the questions. I have an obligation to make sure that everyone is represented and gets a fair trial, and you all know that already. And I may have made a mistake in asking the questions that I asked.
So at this point, I‘m going to ask you to strike that from your memory. I‘m ordering you to strike it. You can‘t consider it for any purpose.
{28} Mr. Veal‘s satisfaction with his attorney‘s representation was not relevant to any of the criminal charges that the jury was to consider. To the extent that other issues surfaced regarding the effectiveness of counsel‘s representation, the better course of action would have been for the court to place those matters on the record outside of the hearing of the jury. However, the trial court twice instructed the jury to disregard its questions posed to Mr. Veal. We presume that the jury followed the instructions of the trial court. State v. Truitt, 9th Dist. No. 25527, 2011-Ohio-6599, ¶ 45. Based upon the foregoing, we cannot say that the outcome of the trial would have been different absent the trial court‘s line of questioning, and thus Mr. Veal has failed to demonstrate prejudice. See Wade, 53 Ohio St.2d at 188. Accordingly, Mr. Veal‘s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE CUMULATIVE EFFECT OF THE PROSECUTORIAL AND JUDICIAL ERRORS [AND] TRIAL ERRORS VIOLATED [MR. VEAL]‘S DUE PROCESS RIGHTS.
{29} In his third assignment of error, Mr. Veal argues that the cumulative effect of the trial court‘s errors violated his due рrocess rights.
{30} To support a claim of cumulative error, there must be multiple instances of harmless error. State v. Garner, 74 Ohio St.3d 49, 64 (1995). Cumulative error exists only where the errors during trial actually “deprive[d] a defendant of the constitutional right to a fair
{31} In addition to the alleged errors set forth in his first and second assignments of error, which we overruled above, Mr. Veal contends that the trial court erred by improperly replacing a juror with an alternate juror, by allowing the State to imply that Mr. Veal had a burden of proof, and by allowing the State to play a video of the detective‘s interview with Mr. Veal, which showed him handcuffed. We will examine each of these issues separately.
Removal of Juror
{32}
Burden of Proof
{33} Mr. Veal next cites a statement made by, and two questions asked by, the prosecutor from which he argues that the jury could infer that Mr. Veal had a burden of proving his innocence. However, upon objections to the questions, the trial court sustained the objections and instructed the jury that the defendant had no burden of proof. As set forth in our discussion of Mr. Veal‘s second assignment of error, we presume that the jury followed the instructions provided by the trial court, and Mr. Veal has provided us no reason to presume otherwise. See Truitt, 2011-Ohio-6599, at ¶ 45.
Video of Interrogation
{34} During the State‘s rebuttal case, as set forth in our response to Mr. Veal‘s second assignment of error, the State played the recorded interview conducted by Detective McMillan. In the interview, Mr. Veal is handcuffed. No objection was made to the playing of the video. Thus, Mr. Veal has limited his challenge to that of plain error. See Smith, 97 Ohio St.3d at ¶ 45.
{35} The video displays Mr. Veal in the interrogation room, and his left wrist is handcuffed to the interrogation table. However, prior to playing the video for the jury, the State inquired of Detective McMillan as to the use of the handcuffs,
Q. And I should ask you also. In this video, Mr. Veal is actually cuffed. Is that true?
A. All prisoners are handcuffed as part of the procedure when you‘re brought into thе Akron Police Department if you‘re under arrest.
{36} Thus, the detective explained that the purpose of the handcuffs in the video was a procedure utilized by the police department in regard to all individuals under arrest. Upon review of the video, the footage is shot from the right side of Mr. Veal, and the handcuffs are not particularly noticeable. Under these circumstances, assuming without deciding that the trial court erred in allowing the State to play the video, we cannot say that the outcome of the trial would have been different had the trial court permitted only an audio version of the recording to be played.
{37} Based upon the foregoing, after reviewing the entire record, we cannot say that Mr. Veal was denied a right to a fair trial. DeMarco, 31 Ohio St.3d at paragraph two of the syllabus. Accordingly, Mr. Veal‘s third assignment of error is overruled.
III.
{38} Veal‘s assignments of error are overruled, and the judgment of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Commоn 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 App.R. 27.
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
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
DICKINSON, J. CONCURS.
BELFANCE, J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
GREGORY A. PRICE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.