State v. Crawford , 2016 Ohio 7779 ( 2016 )

[Cite as State v. Crawford, 2016-Ohio-7779.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104055
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
VERONICA CRAWFORD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-595355-A
BEFORE: Keough, P.J., Blackmon, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: November 17, 2016
ATTORNEY FOR APPELLANT
John P. Parker
988 East 185th Street
Cleveland, Ohio 44119
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Khalilah A. Lawson
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:
{¶1} Defendant-appellant, Veronica Crawford (“Crawford”), appeals from the
trial court’s judgment, rendered after a jury trial, finding her guilty of negligent assault
and sentencing her to 30 days in jail and three years probation. Finding no merit to the
appeal, we affirm.
I. Background
{¶2} Crawford was charged with felonious assault in violation of R.C.
2903.11(A)(1). The indictment arose out of an incident involving Adrienne Walker
(“Walker”) that occurred on April 25, 2015.
{¶3} Walker testified at trial that she and Crawford agreed that she would clean
two buckets of chitterlings for Crawford for $25. She said that on April 25, 2015,
Crawford gave her $10 as a downpayment for her services, and she took the buckets to
her home and cleaned the chitterlings. She testified that she returned to Crawford’s
house at approximately 5 p.m. with two ziploc bags of cleaned chitterlings and two
buckets of scraps from the cleaned chitterlings.
{¶4} Walker testified that Crawford gave her $10, and told her that the job was
not finished because there was a third bucket of chitterlings for her to clean, and that she
would get the remaining $5 when she cleaned the third bucket. Walker stated that she
told Crawford that was not their agreement, and she was not cleaning a third bucket of
chitterlings. Walker said that she grabbed the ziploc bags of cleaned chitterlings and left,
but Crawford followed her out of the house, pulling on her ponytail to try to drag her back
into the house.
{¶5} Walker testified that when she reached the parking lot, Crawford rushed at
her, grabbed her by her collar, and tried to “slam” her to the ground. Walker said that as
she and Crawford fell to the ground, she heard “the crushing of my face hitting the
concrete barrier.” On cross-examination, Walker repeatedly stated that she did not trip or
lose her balance prior to falling, and that Crawford “was trying to injure me and slam
me.”
{¶6} Cleveland police and EMS responded to the scene, and Walker was taken to
the hospital, where she was treated for a broken nose, a concussion, facial lacerations, and
a swollen eye. Walker testified that she still suffers headaches and dizziness as a result
of the incident.
{¶7} Crawford’s version of the incident differed from Walker’s. She testified
that she had agreed to pay Walker $25 to clean three buckets of chitterlings, and that
Walker took two buckets home to clean. She said that she gave Walker $15 as a
downpayment, and was to give Walker the remaining $10 when the job was completed.
Crawford testified that when Walker returned with the two cleaned buckets, she told
Walker there was $10 in the kitchen that she could have when she returned with the third
bucket of cleaned chitterlings. Crawford said that Walker then grabbed the money and
the chitterlings, and left the house.
{¶8} Crawford admitted that she followed Walker out of the house and
confronted her, and the women exchanged words. She further admitted that she grabbed
Walker when Walker started to walk away. She said that Walker hit her after she
grabbed her, so she hit her back, and they began “tussling.” Crawford testified that as
the two women were holding on to each other, Walker tripped over a concrete parking
barrier and they both hit the ground. Crawford said that she helped Walker up, and took
her back to her house to treat her injuries.
{¶9} When the police arrived, Crawford was arrested and subsequently charged
with felonious assault in violation of R.C. 2903.11(A)(1). At trial, the prosecutor asked
the judge to also instruct the jury on the lesser included offenses of aggravated assault in
violation of R.C. 2903.12(A)(1), and assault in violation of R.C. 2903.13(B). Defense
counsel asked the judge to instruct the jury on the lesser included offense of negligent
assault in violation of R.C. 2903.14. The trial court gave all requested instructions.
{¶10} The jury found Crawford not guilty of felonious assault, aggravated assault,
and assault, but guilty of negligent assault. The judge sentenced Crawford to 60 days in
jail, 30 days suspended, and three years probation. This appeal followed.
II. Law and Analysis
A. Jury Instruction on Accident
{¶11} In her first assignment of error, Crawford contends that the trial court erred
in failing to instruct the jury regarding the defense of accident.
{¶12} Pursuant to Crim.R. 30(A), “a party may not assign as error the giving or
failure to give any instruction unless the party objects before the jury retires to consider
its verdict, stating specifically the matter objected to and the grounds of the objection.”
A failure to object to jury instructions constitutes a waiver of that issue, unless but for the
error the outcome of the trial clearly would have been different. State v. Jackson, 92
Ohio St.3d 436, 444, 751 N.E.2d 946 (2001).
{¶13} Because defense counsel failed to object to the lack of an accident
instruction prior to jury deliberations, we review the trial court’s failure to give an
accident instruction for plain error. Plain error is an obvious error or defect in the trial
court proceeding that affects a substantial right. State v. Gray, 8th Dist. Cuyahoga No.
92303, 2010-Ohio-240, ¶ 17, citing State v. Long, 53 Ohio St.2d 91, 94, 372 N.E.2d 804(1978). We take notice of plain error with the “utmost caution, under exceptional
circumstances, and only to prevent a manifest miscarriage of justice.” Long at paragraph
three of the syllabus. The burden of demonstrating plain error is on the party asserting
the error. State v. McFeeture, 2015-Ohio-1814, 36 N.E.3d 689, ¶ 84 (8th Dist.).
{¶14} Generally, a trial court must provide the jury with all instructions that are
relevant and necessary to weigh the evidence and discharge their duty as factfinders.
State v. Joy, 74 Ohio St.3d 178, 181, 657 N.E.2d 503 (1995). If a requested instruction
contains a correct statement of the law and is appropriate to the facts, the instruction must
be included, at least in substance, in the charge. State v. Nelson, 36 Ohio St.2d 79, 303
N.E.2d 865 (1973), paragraph one of the syllabus, overruled on other grounds, 1 Ohio
St.3d 19, 437 N.E.2d 583. In reviewing the record to ascertain the presence of sufficient
evidence to support the giving of an instruction, an appellate court should determine
whether the record contains evidence from which reasonable minds might reach the
conclusion sought by the instruction. Feterle v. Huettner, 28 Ohio St.2d 54, 275 N.E.2d
340 (1971), at syllabus.
{¶15} “Accident” is defined as a “mere physical happening or event, out of the
usual order of things and not reasonably (anticipated) (foreseen) as a natural or probable
result of a lawful act.” Ohio Jury Instructions 75, CR Section 421.01(2) (2010). “An
accidental result is one that occurs unintentionally and without any design or purpose to
bring it about.” Id.{¶16} In this case, the record arguably supports an instruction on the defense of
accident. Crawford testified that Walker tripped over the concrete barricade. She
denied “slamming” Walker down or even trying to push her down, and said that she never
saw the concrete barrier over which Walker fell. The record also reflects that defense
counsel argued several times in closing that Walker’s fall was an accident and not
criminal activity, and the state rebutted the accident theory in its closing. Thus, it is
arguable that the trial court erred in not providing a jury instruction on the accident
defense.
{¶17} Nevertheless, “[e]ven if it is arguable that the trial court erred in failing to
provide a jury instruction on the accident defense, ‘if the trial court’s general charge was
otherwise correct, it is doubtful that this error of omission would ever satisfy the test for
plain error by affecting the outcome of the trial.’” State v. Sunderman, 5th Dist. Stark
No. 2006-CA-00321, 2008-Ohio-3465, ¶ 27, quoting State v. Stubblefield, 1st Dist.
Hamilton No. C-890597, 1991 Ohio App. LEXIS 610 (Feb. 13, 1991). This is because
the defense of accident is not an excuse or justification for the admitted act; it is a
complete denial that an unlawful act was committed because the defendant did not have
the requisite mens rea. State v. Poole, 33 Ohio St.2d 18, 19, 294 N.E.2d 888 (1973).
Thus, the accident instruction simply reminds the jury that the defendant presented
evidence of accident to negate the defendant’s criminal intent. Sunderman at ¶ 27. If
the jury believes the defendant’s accident argument, it would be required to find the
defendant not guilty pursuant to the court’s general instructions. Id.{¶18} The record in this case reflects that the trial court’s general charge to the
jury included instructions for felonious assault, aggravated assault, reckless assault, and
negligent assault. The trial court also instructed the jury that the state bore the burden of
proving every element of each of the charged offenses by proof beyond a reasonable
doubt. Furthermore, as Crawford concedes, “[n]ot only did Ms. Crawford testify that
Ms. Walker tripped, but defense counsel argued in closing that it was an accident on at
least four occasions and not criminal activity.” Thus, even without a specific instruction
on the defense of accident, the jury was free to consider her accident defense and acquit
her on that basis if they had believed the defense. Despite Crawford’s assertion
otherwise, the trial court’s failure to instruct on accident did not mislead the jury nor deny
her a “complete defense” under the Sixth and Fourteenth Amendments to the United
States Constitution.
{¶19} We find no plain error because the failure to instruct on the defense of
accident did not affect the outcome of the trial. The first assignment of error is therefore
overruled.
B. A Deadly Weapon
{¶20} Crawford was convicted of negligent assault under R.C. 2903.14(A), which
provides that “no person shall negligently, by means of a deadly weapon or dangerous
ordnance as defined in section 2923.11 of the Revised Code, cause physical harm to
another * * *.” R.C. 2923.11 defines “deadly weapon” as “any instrument, device, or
thing capable of inflicting death, and designed or specially adapted for use as a weapon,
or possessed, carried, or used as a weapon.” The alleged deadly weapon in this case was
the concrete parking barrier upon which Crawford slammed Walker’s head.
{¶21} In her second assignment of error, Crawford contends that her conviction
should be reversed because there was insufficient evidence that the concrete parking
barrier was a deadly weapon. She asserts that if the curb is a deadly weapon, then the
ground in general would likewise be a deadly weapon every time anyone falls and is
injured. She contends that the state’s overbroad definition of deadly weapon in this case
“cannot be upheld.”
{¶22} Crawford’s argument has no merit because defense counsel — not the state
— requested the jury instruction on negligent assault under R.C. 2903.14 and, further,
asked the court to make a finding that, as used in this case, the concrete parking barrier
was a deadly weapon or dangerous ordnance. (Tr. 296-297).
{¶23} Under the invited error doctrine, a party is not entitled to take advantage of
an alleged error that the party induced or invited the court to make. State ex rel. Fowler
v. Smith, 68 Ohio St.3d 357, 359, 626 N.E.2d 950 (1994). “[A] litigant cannot be
permitted, either intentionally or unintentionally to induce or mislead a court into the
commission of an error and then procure a reversal of the judgment for an error for which
he was actively responsible.” Lester v. Leuck, 142 Ohio St. 91, 93, 50 N.E.2d 145(1943). The doctrine precludes a litigant from making “an affirmative and apparent
strategic decision at trial” and then complaining on appeal that the result of that decision
constitutes reversible error. State v. Doss, 8th Dist. Cuyahoga No. 84433,
2005-Ohio-775, ¶ 7, quoting United States v. Jernigan, 341 F.3d 1273 (11th Cir.2003).
{¶24} In this case, defense counsel made an obvious strategic decision to ask for a
jury instruction on negligent assault as a lesser included offense of felonious assault
because negligent assault is a third-degree misdemeanor that carries a lesser sentence than
felonious assault, a second-degree felony; aggravated assault, a fourth-degree felony; and
assault, a first-degree misdemeanor, the other offenses of which Crawford could have
been convicted. Crawford cannot now complain that there was insufficient evidence to
support her conviction for negligent assault. The second assignment of error is overruled.
C. Sentencing
{¶25} At the sentencing hearing, Crawford, who was 50 years old, admitted that
she had used crack cocaine since she was 18. She admitted further that although she
went for drug rehabilitation treatment in 2011, she began using crack cocaine again
approximately one year prior to the incident involving Walker, and that she was under
the influence of crack cocaine and alcohol when she assaulted Walker. The trial judge
then told her:
You know you were very lucky. You were very lucky. You have a very
good set of attorneys here that got you off on this low level crime. It
should have been a higher level. We all know that.
So you were very lucky. You owe a very big thank you to those attorneys
standing with you. They did a very fine job representing you. But, you
know, your actions in this case were horrific. You know this is the kind of
violence we’re seeing every day in our community. What I call stupid
violence. You know, you don’t want to pay the $5 for her to clean your
[chitterlings]? Fine. Don’t beat her up. You know. You don’t do that.
And of course, what are you going to say? I didn’t do that. Well, you’re
on cocaine and alcohol. How do you know what you did and didn’t do?
{¶26} The trial court then sentenced Crawford to 60 days in jail, 30 days
suspended, and three years probation upon satisfactory completion of the 30 days in jail.
The judge told Crawford that after 30 days in jail, the judge would bring her back to court
to determine “what we need to do to get you to be a law-abiding, productive member of
society, free of drugs and alcohol.”
{¶27} In her third assignment of error, Crawford contends that the trial court
abused its discretion in sentencing her to 30 days in jail and three years probation because
the maximum sentence for a third-degree misdemeanor is 60 days. Crawford contends
that the judge was upset with the jury’s verdict, as evidenced by the judge’s statement
Crawford should have been convicted of a higher level offense, and that the sentence was
“vindictive and in retribution” for the jury’s favorable verdict. Crawford asserts that the
trial judge “willfully ignored the misdemeanor sentencing statutes” so that she could
impose a higher sentence. Crawford’s argument is without merit.
{¶28} The guidelines for misdemeanor sentencing are substantially similar to those
applied in felony sentencing. Cleveland v. Peoples, 8th Dist. Cuyahoga No. 100955,
2015-Ohio-674, ¶9. The court must be guided by the purposes of misdemeanor
sentencing, which are “to protect the public from future crime by the offender and others
and to punish the offender.” R.C. 2929.21(A). When determining the appropriate
sentence, the court must consider the factors listed in R.C. 2929.22(B), including the
nature and circumstances of the offense and whether the circumstances indicate that the
offender has a history of persistent criminal activity and poses a substantial risk of
reoffending. R.C. 2929.22(B)(1). However, there is no requirement that a trial court
sentencing on misdemeanor offenses specifically state its reasons for the sentence on the
record. Strongsville v. Jaeger, 8th Dist. Cuyahoga No. 99579, 2013-Ohio-4476, ¶ 5.
“When the court’s sentence is within the statutory limit, a reviewing court will presume
that the trial judge followed the standards in R.C. 2929.22, absent a showing to the
contrary.” Cleveland v. Go Invest Wisely, 8th Dist. Cuyahoga Nos. 95172, 95173,
95174, 95175, 95176, and 95177, 2011-Ohio-3047, ¶ 10, quoting State v. Downie, 183
Ohio App.3d 665, 2009-Ohio-4643, 918 N.E.2d 218, ¶ 48 (7th Dist.).
{¶29} Crawford was convicted of negligent assault, a third-degree misdemeanor,
which carries a maximum jail sentence of 60 days and a maximum fine of $500. R.C.
2929.24 and 2929.28. The trial court sentenced Crawford to 60 days in jail, 30 days
suspended, and three years probation; it did not impose a fine.
{¶30} Because the sentence was within the statutory limit, and we find nothing in
the record to suggest otherwise, we presume the trial judge considered and followed the
R.C. 2929.22 sentencing factors. Furthermore, the trial court’s sentence was not
vindictive. In light of the evidence of Crawford’s assault on Walker and Walker’s
resulting injuries, the judge’s comment that Crawford was “lucky” not to have been
convicted of a higher offense was an accurate statement. Moreover, in sentencing
Crawford, the judge was free to consider the victim impact statement made by Walker at
sentencing, in which Walker advised the court that she still experiences headaches and
dizziness as a result of the assault, and that she is afraid to go outside because Crawford
lives in the neighborhood. And despite Crawford’s assertion on appeal that the sentence
was improper because she had no prior criminal record, defense counsel admitted at
sentencing that Crawford had been convicted of a prior misdemeanor offense.
{¶31} The record indicates that rather than being vindictive, the judge was trying
to help Crawford to be drug free and law abiding. At sentencing, the judge told
Crawford that after her successful completion of 30 days in jail, the judge would bring her
back to court to “see what we need to do to get you to be a law-abiding, productive
member of society, free of drugs and alcohol.” When Crawford returned after 30 days to
receive the terms of her probation, the judge told her, “I’m not going to ask you to do
anything that hurts you. I’m just going to ask you to do things that will help you and our
community.” The judge then imposed probation conditions requiring Crawford to
abstain from drugs and alcohol, complete an anger management class, and obtain
full-time employment. We do not perceive the judge’s original 30-day jail sentence nor
the probation conditions to be vindictive in any way. Rather, the sentence reflects the
judge’s attempt to both punish Crawford for her crime and assist her in becoming a
productive, law-abiding citizen. The third assignment of error is therefore overruled.
D. Ineffective Assistance of Counsel
{¶32} In her fourth assignment of error, Crawford asserts that trial counsel was
ineffective for (1) not requesting a jury instruction on the defense of accident, and (2)
failing to object to the sentence imposed by the court and its vindictiveness in imposing it.
{¶33} To substantiate a claim of ineffective assistance of counsel, the appellant
must show that (1) counsel’s performance was deficient; and (2) the deficient
performance prejudiced the defendant so as to deprive him of a fair trial. State v.
Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, citing Strickland v.
Washington, 3466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Judicial
scrutiny of defense counsel’s performance is highly deferential. Strickland at 689. In
Ohio, there is a presumption that a properly licensed attorney is competent. State v.
Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999).
{¶34} As discussed above, counsel’s failure to request a jury instruction on the
defense of accident did not prejudice Crawford. The judge gave proper general
instructions to the jury, and defense counsel argued the accident defense at trial and in
closing. Even without a jury instruction on accident, the defense was before the jury, and
it could have acquitted Crawford on this basis. Thus, counsel’s failure to request the
accident instruction did not prejudice Crawford and, accordingly, was not ineffective
assistance of counsel. Likewise, because, as discussed above, the trial court’s sentence
was not vindictive, counsel’s failure to object to the sentence was not ineffective
assistance of counsel. The fourth assignment of error is therefore overruled.
{¶35} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR