State v. Hall ( 2021 )

[Cite as State v. Hall, 2021-Ohio-3121.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-200298
C-200299
Plaintiff-Appellee, : C-200300
TRIAL NOS. 19TRC-37672A
vs. : 19TRC-37672B
19TRC-37672C
MARKEBRA HALL, :
Defendant-Appellant. : O P I N I O N.
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed in C-200299 and C-200300; Appeal
Dismissed in C-200298
Date of Judgment Entry on Appeal: September 10, 2021
Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Keith C. Forman, Supervising Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Following a jury trial, defendant-appellant Markebra Hall was found
guilty of operating a vehicle while under the influence of alcohol and operating a
vehicle with a prohibited breath-alcohol level, both of which were OVI offenses. She
was also found guilty of failing to maintain reasonable control. The trial court
merged the under-the-influence OVI offense with the prohibited-breath-alcohol OVI
offense, and sentenced Hall for the prohibited-breath-alcohol OVI offense. Because
Hall was therefore not convicted of the under-the-influence OVI offense, this court
lacks jurisdiction to hear the appeal relating to that offense, so we dismiss the appeal
in the case numbered C-200298. And, finding no merit to Hall’s challenges to her
prohibited-breath-alcohol OVI and reasonable-control convictions, we affirm the
trial court’s judgments in the cases numbered C-200299 and C-200300.
Background Facts and Procedure
{¶2} At trial, the state presented evidence that, on October 15, 2019, Hall
and her boyfriend Anthony Holly (“Holly”) were the only two occupants of a car that
crashed into a moving garbage truck.
{¶3} Michelle Wissman Schwiebert testified that she was driving on Gilbert
Avenue when she saw a car go left of center and collide with a garbage truck. She
called 911 and reported that the driver did not get out of the car, but that the
passenger jumped out.
{¶4} Schwiebert testified that after the collision, the damaged car continued
to move toward her before it stopped. She said that when the car came to a stop, she
saw a male figure jump out of the passenger side of the car.
{¶5} The driver of the garbage truck, Jason Boyd, testified that he and his
partner were heading up Gilbert Avenue when an approaching car crossed the double
line into their lane of traffic and struck the truck. He said that the car struck the
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OHIO FIRST DISTRICT COURT OF APPEALS
driver’s side tire of the truck with enough force to “knock[] the lug nuts off of the
truck.”
{¶6} Boyd testified that there were two people, a man and a woman, in the
car that struck the garbage truck. As Boyd and his partner sat in the truck, a man
walked up to the truck and confronted them. Boyd described the man as “real
drunk” and “[i]nebriated.” According to Boyd, the man repeatedly asked, “Why did
you hit us?,” but the man “was staggering so we just ignored him.”
{¶7} According to Boyd, when Cincinnati Police Officer Jennifer Barge
arrived on the scene, he told the officer that he thought the man was driving the car,
but he was not sure. When asked on direct examination, “Did you see the driver that
day that hit you with your own eyes?,” Boyd responded, “No.” On cross-examination,
after watching the video from Officer Barge’s body camera, Boyd acknowledged that
he had told the officer that the man was “definitely” driving.
{¶8} Officer Barge testified that when she arrived on the scene of the
accident, she found Hall in the driver’s seat of the disabled car, which was
obstructing traffic in the middle of the road. At that time, Hall’s boyfriend Holly was
on the sidewalk.
{¶9} Officer Barge testified that Hall exhibited bloodshot, watery eyes and
slurred speech, and had a strong odor of alcohol about her breath. Hall told Officer
Barge that she had been drinking. Officer Barge asked Hall if she was driving, and
Hall said yes.
{¶10} Officer Barge said that Hall did not appear to be injured. When the
officer told Hall to step out of the car to the sidewalk, Hall was staggering and
unsteady on her feet.
{¶11} Officer Barge’s body camera video showed that she spoke to Boyd, the
garbage truck driver, and his partner as they stood near Hall and Holly on the
sidewalk. The officer asked Boyd and his partner if they had seen “him” (referring to
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OHIO FIRST DISTRICT COURT OF APPEALS
Holly) driving, and Boyd responded, “I didn’t see it.” Then, according to Officer
Barge, she led Boyd away from Holly and Hall so that Holly would not “get mad.”
Once Boyd was no longer standing near Holly, Boyd told the officer that “he”
(referring to Holly) was “definitely driving” the car.
{¶12} Officer Barge testified that she told Boyd there were “conflicting stories
on who was driving.” The officer testified that Boyd “varied his statement two or
three times” and told her that he was “80 percent” certain that the male was driving.
{¶13} Officer Barge testified that she led Hall away from Holly so that she
could explain to Hall the seriousness of being charged with OVI and to confirm
whether Hall was driving the car. Again, Hall stated that she was the driver.
{¶14} Based upon witness statements, Hall’s admission to driving the car
that was involved in the accident, her admission to drinking, her slurred speech,
bloodshot and watery eyes, strong odor of alcohol, and staggering, Officer Barge’s
opinion was that Hall was under the influence of alcohol and that her ability to
operate a motor vehicle was appreciably impaired as a result.
{¶15} Cincinnati firefighter Jeffrey Nienhaus testified that after he arrived on
the scene, he evaluated Hall by checking her vital signs. He asked Hall where she
had been seated in the car, “a common question that we ask in a motor vehicle
accident to determine how injured they may be based on the damage of the car.”
Hall told Nienhaus that she was the driver. Nienhaus testified that Hall complained
of right shoulder pain, but she refused treatment.
{¶16} Officer Barge arrested Hall and took her to the police station, where an
Intoxilyzer test showed that Hall’s breath-alcohol content was 0.187. She
determined that Hall was the registered owner of the car. Hall was charged with
operating a vehicle while under the influence of alcohol, in violation of R.C.
4511.19(A)(1)(a); operating a vehicle with a prohibited breath-alcohol level (of 0.17 or
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OHIO FIRST DISTRICT COURT OF APPEALS
more), in violation of R.C. 4511.19(A)(1)(h); and failure to maintain reasonable
control, in violation of R.C. 4511.202.
{¶17} Cincinnati Police Officer Timothy Watson testified that he was the
second officer to arrive on the accident scene. After Hall’s arrest and subsequent
breath-alcohol test at the police station, Officer Watson testified that, as a courtesy,
he drove Hall home. Video from the officer’s body camera showed that during the
car ride, he said to Hall, “I hope you didn’t take a charge for him,” referring to Hall’s
boyfriend Holly, and Hall responded, “I did.”
{¶18} Hall’s theory of defense at trial was that she was not the driver of the
car.
{¶19} The jury found Hall guilty of all three offenses. The trial court merged
the under-the-influence OVI offense with the prohibited-breath-alcohol OVI offense,
and sentenced Hall for the prohibited-breath-alcohol OVI offense to 180 days in jail,
suspended 174 days, and imposed one year of community control, a one-year driver’s
license suspension, a fine, and costs. For the reasonable-control offense, the trial
court imposed a $0 fine and remitted costs. Hall now appeals.
Nondisclosure of A Witness’s Address
{¶20} In her first assignment of error, Hall argues that the trial court abused
its discretion by allowing Michelle Wissman Schwiebert to testify at trial. In its
discovery response, the state disclosed Schwiebert’s name to the defense, but it did
not disclose her address, pursuant to a certification of nondisclosure under Crim.R.
16. Hall contends that the state failed to properly certify the nondisclosure and that
the trial court failed to hold a proper Crim.R. 16(F) hearing on the matter.
{¶21} Crim.R. 16(I) requires each party to provide to opposing counsel a
written witness list, including the names and addresses of any witness the party
intends to call in its case-in-chief, or reasonably anticipates calling in rebuttal. If the
prosecutor does not disclose materials under the rule, the prosecutor must certify to
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OHIO FIRST DISTRICT COURT OF APPEALS
the court that the prosecutor is doing so for one of the reasons listed in Crim.R.
16(D). As relevant here, a prosecutor must have “reasonable, articulable grounds to
believe that disclosure will compromise the safety of a witness, victim, or third party,
or subject them to intimidation or coercion.” Crim.R. 16(D)(1). Reasonable,
articulable grounds “may include, but are not limited to, the nature of the case, the
specific course of conduct of one or more parties, threats or prior instances of
witness tampering or intimidation, whether or not those instances resulted in
criminal charges, whether the defendant is pro se, and any other relevant
information.” Crim.R. 16(D).
{¶22} Upon motion by the defendant, the trial court shall review the
prosecutor’s “decision of nondisclosure * * * for abuse of discretion during an in
camera hearing conducted seven days prior to trial, with counsel participating.”
Crim.R. 16(F). If the trial court finds an abuse of discretion by the prosecutor, the
court “may order disclosure, grant a continuance, or other appropriate relief.”
Crim.R. 16(F)(1). A trial court’s ruling on a prosecutor’s certification of
nondisclosure will not be reversed on appeal absent an abuse of discretion and proof
of material prejudice. State v. Baber, 2021-Ohio-1506, ___ N.E.3d ___, ¶ 19-20 (1st
Dist.).
{¶23} In this case, Hall filed a demand for discovery on October 5, 2019.
The state’s initial discovery response on November 5, did not identify Schwiebert as a
witness. The response included a recording of Schwiebert’s 911 call in which she
identified herself, and a copy of a police report that listed Schwiebert’s cell phone
number and her name, although the name was misspelled. The case was continued
several times at Hall’s request. In December 2019, Hall filed a jury demand and the
matter was set for jury trial on February 24, 2020.
{¶24} The February trial date was continued at the state’s request until
March 11. On February 25, the state filed a supplemental discovery response in
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OHIO FIRST DISTRICT COURT OF APPEALS
which it identified “[a]ny witnesses listed or mentioned in the provided reports or in
the videos/audios from the provided discovery,” but it did not identify Schwiebert as
a witness. The state filed a supplemental discovery response on March 9 that, for the
first time, identified Schwiebert as a witness by name, but the response failed to
include Schwiebert’s address.
{¶25} The March trial date was continued at Hall’s request until April 6. On
March 24, Hall filed a motion to compel the state to provide an address for
Schwiebert. The following day, the state filed a certification of nondisclosure, which
stated:
Pursuant to Crim.R. 16(D)(1), the [p]rosecution has reasonable,
articulable grounds to believe that disclosure of address information
will subject the witness to intimidation or coercion. Therefore, the
address information is not being provided at this time.
{¶26} On April 6, the case was continued to June 1 because jury trials in the
Hamilton County courthouse were suspended due to the COVID-19 pandemic. On
April 13, Hall filed a “motion in opposition to the state’s certification of
nondisclosure,” seeking that the court “review and [] deny the state’s certification of
nondisclosure,” and requested a hearing on the motion. However, the motion was
not scheduled for a hearing. The jury trial was continued from June 1 to July 21 and
then to August 3, because of the pandemic.
{¶27} On the first day of trial, defense counsel informed the court that she
had previously requested a hearing on the state’s discovery certification with respect
to Schwiebert, and stated:
So specifically I am asking for this individual’s address.
Alternatively I am asking what these reasonable and articulable
grounds are that my client - - who has no criminal record and who is
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OHIO FIRST DISTRICT COURT OF APPEALS
53 years old, on an OVI case - - would intimidate or coerce an
individual listed in discovery.
{¶28} At no time did defense counsel ask that Schwiebert not be allowed to
testify, nor did she seek a continuance of the trial.
{¶29} The trial court stated:
First of all from a procedural standpoint obviously this case has
been continued roughly four times for jury trial. The Court was not
specifically made aware of the existence of this issue or this motion.
We are up against the issue involving the COVID-19. And this
is the first jury trial in Municipal Court since jury trials were ended
pursuant to our administrative order and the dictates of the Ohio
Supreme Court.
And it was my understanding that when I put this case in the
queue this afternoon roughly at 11:45, that there were no issues of this
nature that needed to be addressed or resolved. So this quite frankly
kind of blind sides the Court. Even though, yes, it was filed, I was not
aware that this issue remained pending and thus needed to be
addressed.
{¶30} In response, the prosecutor argued that defense counsel had had
months to schedule her motion on the court’s docket, but had failed to do so. The
prosecutor stated that he had withheld Schwiebert’s address “because this witness
will be intimidated or coerced just by the very nature of anyone going to her
residence and knocking on her door.” The prosecutor described Schwiebert as “a
third party Good Samaritan who has fears of testifying.” He stated:
We all know when the addresses are given, investigators from
the Public Defender’s Office go out and they are entitled to do that.
However, in this particular case I knew for certain that if that happens,
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OHIO FIRST DISTRICT COURT OF APPEALS
she would be completely intimidated and not come to court. And that
is why it was not disclosed to [defense counsel].
{¶31} Although defense counsel never asked that Schwiebert be precluded
from testifying, the trial court considered the motion as a motion to exclude
Schwiebert’s testimony. The court found that the prosecutor had sufficiently
articulated a reason for nondisclosure. Nonetheless, the court also determined that,
even if the state had improperly withheld Schwiebert’s address, Hall had suffered no
prejudice as a result of the nondisclosure because “there had been no supplemental
efforts [by defense counsel] in order to get that information[.]” The court denied the
motion but offered two remedies:
[O]bviously one of the remedies would be a continuance.
***
As an alternative remedy what I might suggest is that between
now and the time [Schwiebert] testifies * * * if she wants to avail
herself - - if the defense attorney wants to meet with her to discuss, she
can do that. Obviously as to whether[,] and a witness has at their
discretion the ability to decline that request[,] but it would at least
make her available for that sole purpose.
{¶32} Defense counsel did not request a continuance, and the parties
proceeded to voir dire potential jurors. The next day, the trial court asked the parties
if there was anything they wanted to put on the record before the jurors entered the
courtroom, and defense counsel made no mention of any efforts, successful or
otherwise, to contact Schwiebert, and made no motion for a continuance, which the
trial court had made clear it would have granted. Defense counsel raised no
objection to Schwiebert’s being allowed to testify when called by the state and elected
not to cross-examine her.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶33} Following our review of the record, we hold that the prosecutor’s
certification of nondisclosure under Crim.R. 16(D)(1) was inadequate because the
prosecutor lacked reasonable, articulable grounds to believe that disclosure of the
witness’s address would compromise her safety or subject her to intimidation or
coercion. Although one of Crim.R. 16’s stated purposes is “to protect the well-being
of witnesses,” see Crim.R. 16(A), that does not include a witness’s generalized “fears
of testifying,” to use the prosecutor’s phrase, or a witness’s apprehension about being
contacted by defense investigators or defense counsel. The prosecutor failed to cite
any of the “reasonable, articulable grounds” identified in Crim.R. 16(D) to justify
nondisclosure. Generalized apprehension is not enough. We recognize that the rule
sets forth a nonexhaustive list of examples of reasonable, articulable grounds, but in
this case, the prosecutor cited nothing about the nature of the case, any specific
course of conduct by Hall, any threats or intimidation, or any other relevant
information that would support nondisclosure. The trial court abused its discretion
by accepting the prosecutor’s certification of nondisclosure.
{¶34} Nevertheless, the trial court proceeded as if did not accept the
prosecutor’s certification because the court offered Hall remedies set forth in Crim.R.
16(F)(1) that would have been appropriate relief for an inadequate certification of
nondisclosure. The court proposed two remedies, either a continuance or an
opportunity to speak with Schwiebert before she testified, but defense counsel did
not take advantage of either of the court’s proposals and did not object to
Schwiebert’s being allowed to testify when she was called as a witness.
{¶35} Although the state’s certification of nondisclosure was inadequate to
properly withhold Schwiebert’s address, Hall has failed to demonstrate that she was
materially prejudiced by the trial court’s acceptance of the certification. As conceded
by Hall’s appellate counsel, Hall’s prejudice claim is diminished by the fact that the
state’s initial discovery response, provided about nine months before trial, included a
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OHIO FIRST DISTRICT COURT OF APPEALS
recording of the 911 call wherein Schwiebert identified herself and a copy of the
police report of the incident, which listed Schwiebert’s cell phone number. Hall has
failed to explain how she was prejudiced by the state’s withholding of Schwiebert’s
address where she knew Schwiebert’s name and cell phone number months before
trial, and where the trial court offered her a continuance or an opportunity to try to
speak to Schwiebert prior to her testimony. We overrule the first assignment of
error.
Prosecutorial Misconduct
{¶36} In her second assignment of error, Hall argues that prosecutorial
misconduct during closing argument deprived her of a fair trial. She contends that
the prosecutor unfairly bolstered the credibility of the police officers and their
investigation.
{¶37} The test for whether prosecutorial misconduct mandates reversal is
whether the prosecutor’s remarks were improper, and, if so, whether they
prejudicially affected the substantial rights of the accused. State v. Kirkland, 160
Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716, ¶ 115. In evaluating prejudice, we
must consider the effect of the misconduct “on the jury in the context of the entire
trial.” State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 228,
quoting State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993). To be
prejudicial, the remarks must be “so inflammatory as to render the jury’s decision a
product solely of passion and prejudice.” State v. Ford, 158 Ohio St.3d 139, 2019-
Ohio-4539, 140 N.E.3d 616, ¶ 385, quoting State v. Williams, 23 Ohio St.3d 16, 20,
490 N.E.2d 906 (1986).
{¶38} Improper vouching occurs when a prosecutor implies knowledge of
facts outside the record or places her or his personal credibility in issue. State v.
Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 145. A prosecutor
may not express a personal belief or opinion as to a witness’s credibility. Id.
11OHIO FIRST DISTRICT COURT OF APPEALS
{¶39} During closing argument, the prosecutor referred to the police officers
as “amazing human beings.” The trial court overruled defense counsel’s objection
and admonished the prosecutor to “be careful in that regard.” Then the prosecutor
said that the police “did a great job.” Defense counsel did not object to the latter
remark. Later, the prosecutor stated, “Officer Watson was powerful testimony [sic].”
The court overruled a defense objection to the statement.
{¶40} Because Hall objected to the “amazing human beings” and “powerful
testimony” comments, we apply a harmless-error standard of review. See State v.
Hayes, 2020-Ohio-5322, 162 N.E.3d 947, ¶ 51 (1st Dist.). Under the harmless-error
standard, the state must demonstrate that the error did not affect the substantial
rights of the defendant, that is, that the error did not affect the outcome of the trial.
Id., citing State v. Jones, 160 Ohio St.3d 314, 2020-Ohio-3051, 156 N.E.3d 872, ¶ 18.
However, because Hall did not object to the “great job” remark, she must show that
(1) an error occurred, (2) the error was obvious, and (3) it affected the outcome of the
trial. Id. at ¶ 41.
{¶41} Even if any of the prosecutor’s remarks constituted improper
vouching, we cannot say that they affected the outcome of the trial. The court
“mitigated the impact of the prosecutor’s statement[s] by instructing the jury that the
closing argument was ‘not evidence’ and that it was for the jury to decide what the
evidence showed.” See Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d
716, at ¶ 117. In addition, the court instructed the jury that it was not required to
believe the testimony of any witness, and that it could “believe or disbelieve all or any
part of the testimony of any witness.” Viewing the prosecutor’s remarks in the
context of the entire trial, we cannot say that the outcome of the trial was affected.
Therefore, no plain error occurred in the court’s admission of the “great job” remark,
and the court’s admission of the “amazing human beings” and “powerful testimony”
comments was harmless error. We overrule the second assignment of error.
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Manifest Weight of the Evidence
{¶42} In her third assignment of error, Hall challenges the weight of the
evidence supporting her convictions. Specifically, she contends that the state’s
evidence did not prove that she was the driver of the car.
{¶43} In reviewing a challenge to the weight of the evidence, we sit as a
“thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541(1997). We must review the entire record, weigh the evidence, consider the
credibility of the witnesses, and determine whether the trier of fact clearly lost its
way and created a manifest miscarriage of justice. Id.{¶44} Overall, the jury was in the best position to judge the credibility of the
witnesses. See State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d
554, ¶ 165. The jury was entitled to weigh the evidence, consider the motivations of
the witnesses, and choose to believe all, part, or none of the testimony offered. See
State v. Williams, 1st Dist. Hamilton No. C-180574, 2020-Ohio-1367, ¶ 36.
{¶45} There was no dispute that Hall and Holly were the only two occupants
of the car, that Schwiebert saw a male exit from the passenger side of the car, and
that Officer Barge found Hall seated in the driver’s seat. Hall repeatedly stated that
she was the driver, despite having multiple opportunities at the scene and later at the
station to state otherwise. Hall did not claim that she was not the driver until after
she was charged with OVI and was on her way home from the police station. The
jury was entitled to believe the evidence that Hall was driving and to disbelieve her
postarrest statement to Officer Watson that she was not driving. In addition, the
jury was entitled to consider Boyd’s testimony and weigh it with all the evidence. It
was entitled to believe Boyd’s testimony that, although he said at the scene that the
man was driving the car, he had not actually seen whether the man or woman was
driving. Ultimately, it was for the jury to decide credibility and weigh the evidence.
This is not “the exceptional case in which the evidence weighs heavily against the
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conviction.” See Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983).
{¶46} We overrule the third assignment of error, and we affirm the
judgments of the trial court in the cases numbered C-200299 and C-200300. We
dismiss the appeal in the case numbered C-200298.
Judgment accordingly.
CROUSE and BOCK, JJ., concur.
Please note:
The court has recorded its own entry this date.
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