State v. Suman , 2010 Ohio 6204 ( 2010 )


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  • [Cite as State v. Suman, 2010-Ohio-6204.]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    ATHENS COUNTY
    STATE OF OHIO/CITY OF ATHENS,                    :
    :
    Plaintiff-Appellee,                 :   Case No: 10CA11
    :
    v.                                  :
    :   DECISION AND
    STEVEN SUMAN,                                    :   JUDGMENT ENTRY
    :
    Defendant-Appellant.                :   File-stamped date: 12-13-10
    APPEARANCES:
    Claire M. Ball, Athens, Ohio, for the Appellant.
    Patrick J. Lang, Athens Law Director, and James K. Stanley, Athens Assistant Law
    Director, Athens, Ohio, for the Appellee.
    Kline, J.:
    {¶1}         Steven Suman appeals his conviction in the Athens County Municipal Court
    for violating R.C. 2919.27(A)(1), which prohibits anyone from recklessly violating a
    protection order. On appeal, Suman contends that the trial court violated Evid.R. 402
    and Evid.R. 403(A) when it allowed a State witness to read from a criminal complaint
    against the witness that accused the witness of violating the protection order at
    Suman’s behest. Because we find that the criminal complaint is relevant and is not
    unfairly prejudicial, and because the witness pleaded guilty to it, we disagree. Suman
    next contends that the prosecution introduced a prior inconsistent statement of one of
    its own witnesses without the requisite showing of surprise and damage. Because
    Athens App. No. 10CA11                                                             2
    Suman’s counsel failed to object before the trial court, and because we do not find plain
    error, we disagree. Accordingly, we affirm the judgment of the trial court.
    I.
    {¶2}      Suman worked for Robert DePue who owns a small farm near Athens, Ohio.
    Apparently, the relationship between Suman and DePue soured, and DePue eventually
    moved for, and received, a protection order against Suman because Suman had
    threatened to kill him.
    {¶3}      After he was served with the protection order, Suman visited the house of his
    friends Brian Koon and Lori Frank. Koon and Frank were living together in a romantic
    relationship. Suman convinced Koon to telephone and threaten DePue. Koon called
    DePue, made a number of vague threats, and threatened to “wreck” DePue’s jaw.
    Unbeknownst to Koon, DePue’s answering machine recorded the entire conversation.
    DePue then called the Athens County Sheriff’s Office.
    {¶4}      Deputy Shannon Sheridan went to DePue’s house and established, with the
    help of the telephone company, that the phone call had been placed from the residence
    of Koon and Frank. Deputy Sheridan and others went to Koon and Frank’s residence
    and eventually secured a statement from Frank indicating that “[Suman] and [Koon]
    used [her] phone to make a call.” Transcript at 96. Koon initially refused to admit to any
    culpability and claimed that Suman made the phone call.
    {¶5}      Before Suman’s trial, Koon pleaded guilty to a criminal complaint that
    accused him of aggravated menacing. A portion of this complaint accused Koon of
    making the phone call at the behest of Suman.
    Athens App. No. 10CA11                                                              3
    {¶6}      Deputy Sheridan then filed a complaint accusing Suman of violating the terms
    of a protection order. The case was tried on January 28, 2010. During the trial, the
    prosecution called Frank to testify. Frank testified that Suman had told Koon not to call
    DePue and that Suman had not been present during the phone call. Koon also denied
    that Suman had asked him to make the telephone call. The prosecution used a prior
    inconsistent statement of Frank and had Koon read the factual statement of the
    complaint for aggravated menacing that he pleaded guilty to.
    {¶7}      The jury convicted Suman, and the trial court sentenced him to 180 days of
    incarceration, but suspended 178 days upon condition that Suman be a law abiding
    citizen for two years.
    {¶8}      Suman appeals and asserts the following assignments of error: I. “The trial
    court erred by admitting irrelevant evidence that was prejudicial to the appellant.” And,
    II. “The trial court erred by allowing the prosecutor to impeach his own witness with a
    prior inconsistent statement.”
    II.
    {¶9}      Both of Suman’s assignments of error concern the admission of evidence at
    trial. “‘[T]he admission or exclusion of relevant evidence rests within the sound
    discretion of the trial court.’” State v. Ahmed, 
    103 Ohio St. 3d 27
    , 2004-Ohio-4190, at
    ¶79, quoting State v. Sage (1987), 
    31 Ohio St. 3d 173
    , paragraph two of the syllabus.
    “[T]he term ‘abuse of discretion’ connotes more than an error of law; it implies that the
    court acted unreasonably, arbitrarily or unconscionably.” Rigby v. Lake Cty. (1991), 
    58 Ohio St. 3d 269
    , 271, citing Blakemore v. Blakemore (1983), 
    5 Ohio St. 3d 217
    , 219.
    A.
    Athens App. No. 10CA11                                                                   4
    {¶10}      Suman contends in his first assignment of error that the trial court erred when
    it permitted the prosecutor to ask Koon to read portions of the criminal complaint that he
    pleaded guilty to. What follows is the only objection Suman’s counsel made to the
    admission of this evidence:
    {¶11}      “Q:             Okay. Um, can you read the to wit section?
    {¶12}      “Defense:       Your Honor, may we approach the bench?
    {¶13}      “Court:         You may.
    {¶14}      “Defense:       Koon was charged with aggravated menacing. That to wit is not
    part of the [inaudible] . . .
    {¶15}      “Court:         Uh huh.
    {¶16}      “Defense:       . . . part of the charge [inaudible], an element of the crime. And,
    usually [inaudible] had many cases where, and facts is not part of [inaudible].
    {¶17}      “Court:         Uh huh.
    {¶18}      “Defense:       And, uh, and, so, try to make it, it [inaudible] put him up to
    because what was in the complaint. And . . .
    {¶19}      “Court:         Uh huh.
    {¶20}      “Defense:       . . . feel this [inaudible] is prejudicial to my client.
    {¶21}      “Court:         Well, I think, assuming that, uh, [the prosecutor] is going where I
    think he’s going with this, uh, if it turns out that he pled guilty to this complain[t], this
    particular case number, then the complaint will be admissible.
    {¶22}      “Defense:       Well, I doubt he pleaded guilty to it.
    {¶23}      “Court:         Okay. Objection overruled.” Trial Transcript at 114-15.
    Athens App. No. 10CA11                                                              5
    {¶24}     Suman claims that the trial court violated Evid.R. 402 and Evid.R. 403(A)
    when it admitted this evidence. (Because Suman does not claim that the admission of
    this evidence violated the hearsay rule, we will not consider the same.)
    1. Relevancy
    {¶25}     Suman maintains that the “to wit” section of the complaint was irrelevant
    evidence and the trial court erred when it failed to exclude it over his objection. Evid.R.
    402 prohibits the admission of irrelevant evidence while Evid.R. 401 defines relevant
    evidence. “‘Relevant evidence’ means evidence having any tendency to make the
    existence of any fact that is of consequence to the determination of the action more
    probable or less probable than it would be without the evidence.” Evid.R. 401.
    {¶26}     Initially, we note that there can scarcely be any question as to whether the
    facts alleged in the criminal complaint are relevant. The fact that a criminal complaint
    was filed against Koon alleging that he made the offending telephone call at the behest
    of Suman is, by itself, weak support for this fact, but nonetheless does tend to increase
    the likelihood of Suman having asked Koon to make the call. This is particularly true
    because Koon pleaded guilty to that complaint.
    2. Prejudice
    {¶27}     Suman also argues that the admission of this evidence is contrary to Evid.R.
    403(A). “Although relevant, evidence is not admissible if its probative value is
    substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or
    of misleading the jury.” 
    Id. We cannot
    agree. Even if we grant that Suman suffered
    unfair prejudice based on the admission of this statement, nonetheless we cannot say
    Athens App. No. 10CA11                                                                 6
    that the unfair prejudice substantially outweighed the probative effect of the evidence
    because Koon pleaded guilty to the complaint.
    {¶28}      In conclusion, we find that the trial court did not abuse its discretion in the
    admission of this evidence based on Evid.R. 402 and Evid.R. 403.
    {¶29}      Accordingly, we overrule Suman’s first assignment of error.
    B.
    {¶30}      In his second assignment of error, Suman contends that the trial court erred
    because the trial court allowed the prosecution to cross examine its own witnesses with
    a prior inconsistent statement without establishing the proper foundation. “The
    credibility of a witness may be attacked by any party except that the credibility of a
    witness may be attacked by the party calling the witness by means of a prior
    inconsistent statement only upon a showing of surprise and affirmative damage.”
    Evid.R. 607(A). “‘The decision as to whether a party is taken by surprise by the
    testimony of its hostile witness is a decision that is entrusted to the broad, sound
    discretion of the trial judge.’” State v. Lemaster (Jan. 27, 1998), Pickaway App. No. 96
    CA 18, quoting State v. Diehl (1981), 
    67 Ohio St. 2d 389
    , 391.
    {¶31}      But Suman did not object to this line of questioning before the trial court.
    Suman must therefore establish that the admission of this evidence amounts to plain
    error. See Ahmed at ¶80, citing State v. Slagle (1992), 
    65 Ohio St. 3d 597
    , 604.
    “Inherent in the [plain-error] rule are three limits placed on reviewing courts for
    correcting plain error.” State v. Payne, 
    114 Ohio St. 3d 502
    , 2007-Ohio-4642, at ¶15.
    “‘First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error
    must be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an error must be an
    Athens App. No. 10CA11                                                                 7
    ‘obvious’ defect in the trial proceedings. * * * Third, the error must have affected
    ‘substantial rights.’ We have interpreted this aspect of the rule to mean that the trial
    court’s error must have affected the outcome of the trial.’” 
    Id. at ¶16,
    quoting State v.
    Barnes, 
    94 Ohio St. 3d 21
    , 27, 2002-Ohio-68 (omissions in original). We will notice plain
    error “only to prevent a manifest miscarriage of justice.” State v. Long (1978), 53 Ohio
    St.2d 91, paragraph three of syllabus. And “[r]eversal is warranted only if the outcome
    of the trial clearly would have been different absent the error.” State v. Hill, 92 Ohio
    St.3d 191, 203, 2001-Ohio-141, citing Long at paragraph two of the syllabus.
    {¶32}     Here, we fail to see how the prosecutions’ use of the witness’s prior
    inconsistent statement would result in a manifest miscarriage of justice.
    {¶33}     In any event, there is little question but that Frank’s recantation damaged the
    State’s case. See Ferguson Realtors v. Butts (1987), 
    37 Ohio App. 3d 30
    , paragraph
    two of the syllabus (“‘Affirmative damage,’ under Evid.R. 607, is established when the
    witness testifies to facts which contradict, deny or harm the party’s trial position.”).
    Here, Frank testified that, contrary to her earlier statement, Suman did not ask Koon to
    call DePue and that Suman was not present when Koon made the phone call. There is
    little question but that this statement affirmatively damaged the prosecution’s case.
    {¶34}     The only question is the required showing of surprise. What follows is a
    portion of Frank’s testimony that establishes plausible evidence of surprise:
    {¶35}     “A:            I think that [Suman] knew that [Koon] was going to use the
    phone and told him not to.
    {¶36}     ***
    {¶37}      “Q:           And when was the last time that you and I spoke?
    Athens App. No. 10CA11                                                             8
    {¶38}     “A:            I believe it was yesterday.
    {¶39}     “Q:            Okay. And at any time, did you tell me that, um, [Suman] told
    Koon not to call?
    {¶40}     “A:            No.” Transcript at 96-97.
    {¶41}     In sum, Frank testified that she had changed her story from the previous day,
    and that she had never previously indicated to the State that Suman told Koon not to
    call DePue, notwithstanding several interviews. The prosecutor did state in closing that
    he “knew that Frank would come in here today and change her story.” Transcript at
    162. But the prosecutor said nothing about how he knew that Frank would change her
    story. Nor did the prosecutor explain precisely what facts he expected Frank to change
    in her story. In her statement to Deputy Sheridan, Frank also stated that Suman was
    present during the phone call, another statement she contradicted at trial. It is unclear
    what portions of Frank’s story the State expected her to change.
    {¶42}     It is possible, that the State may have been able to prove surprise
    notwithstanding the prosecutor’s statement in closing. In any event, we cannot agree
    that the trial court plainly erred because the court failed to reexamine the admission of a
    prior inconsistent statement because of the prosecutor’s statement during closing
    arguments. Even had Suman’s counsel objected to the admission of this evidence,
    there is a plausible argument that the prosecution could have established surprise, and,
    as such, we find that the admission of this evidence could not amount to plain error.
    {¶43}     Of course, even if this evidence was admissible, it should not have been
    considered for the truth of the matter asserted. “It is the generally accepted view that a
    prior inconsistent statement is only admissible to impeach the declarant and should not
    Athens App. No. 10CA11                                                             9
    be taken into evidence to prove the truth of the matter asserted. Ohio has long adhered
    to this general principle. * * * [T]he Ohio Supreme Court has said that ‘when taken by
    surprise by the adverse testimony of its own witness, * * * the state may interrogate
    such witness concerning his prior inconsistent * * * statement * * * for the purpose of
    refreshing the recollection of the witness, but not for the purpose of offering substantive
    evidence against the accused.’” State v. Dearmond, 
    179 Ohio App. 3d 63
    , 2008-Ohio-
    5519, at ¶26, quoting State v. Dick (1971), 
    27 Ohio St. 2d 162
    , 165 (alterations in
    original, other citation omitted). But again, Suman’s counsel raised no objection on this
    basis before the trial court, and his counsel on appeal raised no such argument before
    us on appeal. As such, we decline to sua sponte find plain error on this issue.
    {¶44}     Accordingly, we overrule Suman’s second assignment of error.
    III.
    {¶45}     Having overruled both of Suman’s assignments of error, we affirm the
    judgment of the trial court.
    JUDGMENT AFFIRMED.
    Athens App. No. 10CA11                                                       10
    Harsha, J., Dissenting:
    The admission of the two prior inconsistent statements as substantive evidence
    amounts to plain error.
    Athens App. No. 10CA11                                                          11
    JUDGMENT ENTRY
    It is ordered that the JUDGMENT BE AFFIRMED and appellant pay the 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 Athens
    County Municipal Court to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure. Exceptions.
    McFarland, P.J.: Concurs in Judgment and Opinion.
    Harsha, J.: Dissents with Dissenting Opinion.
    For the Court
    BY:
    Roger L. Kline, Judge
    NOTICE TO COUNSEL
    Pursuant to Local Rule No. 14, this document constitutes a final judgment
    entry and the time period for further appeal commences from the date of filing
    with the clerk.
    

Document Info

Docket Number: 10CA11

Citation Numbers: 2010 Ohio 6204

Judges: Kline

Filed Date: 12/13/2010

Precedential Status: Precedential

Modified Date: 10/30/2014