State v. Martinez , 2013 Ohio 1025 ( 2013 )

[Cite as State v. Martinez, 2013-Ohio-1025.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97233
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JULIA MARTINEZ
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-536693
BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: March 21, 2013
ATTORNEYS FOR APPELLANT
Matthew M. Nee
Nee-Bittinger, L.L.C.
27476 Detroit Road
Suite 104
Westlake, Ohio 44145
Tamika S. Laldee
Nee-Bittinger, L.L.C.
The Gehring Building
1956 West 25th Street
Suite 302
Cleveland, Ohio 44113
David H. Brown
David H. Brown, L.L.C.
The Gehring Building
1956 West 25th Street
Suite 302
Cleveland, Ohio 44113
Nicholas A. Panagopoulos II
Nicholas A. Panagopoulos II, L.L.C.
The Gehring Building
1956 West 25th Street
Suite 302
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Holly Welsh
Kristen L. Sobieski
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Defendant-appellant, Julia Martinez, appeals from her convictions in the
common pleas court. Finding no merit to the instant appeal, we affirm the decision of
the trial court.
{¶2} On June 1, 2010, the Cuyahoga County Grand Jury returned a four-count
indictment charging appellant with one count of felonious assault in violation of R.C.
2903.11(A)(1); two counts of felonious assault in violation of R.C. 2903.11(A)(2); and
one count of domestic violence in violation of R.C. 2919.25(A). On June 15, 2010,
appellant appeared before the trial court with counsel and entered a plea of not guilty to
all counts.
{¶3} Following numerous continuances, appellant’s jury trial commenced on June
15, 2011. Before the jury was empaneled, the trial court dismissed one count of
felonious assault in violation of R.C. 2903.11(A)(2) at the state’s request. Thereafter, the
following facts were presented to the jury.
{¶4} The charges in this case arose out of an altercation between appellant and her
mother, Juana Cruz, on April 19, 2010. On that date, Juana invited appellant’s
17-year-old daughter, K.M., to her house. Juana asked K.M. to return two rings that had
previously been left at K.M.’s house by Juana’s 13-year-old daughter, S.M.
{¶5} During the visit, Juana learned that K.M. had only returned one of the rings.
As a result, tensions rose in the house between Juana and her granddaughter. Eventually,
K.M. became verbally aggressive towards Juana and was trying to get S.M. to leave the
house with her. At that time, Juana told K.M. that she needed to call appellant to come
pick her up. Subsequently, Juana called 911 to prevent S.M. from leaving the house with
K.M.
{¶6} At trial, S.M. testified that when appellant arrived at the house, she observed
appellant suddenly burst through the front door and immediately start choking Juana by
pushing her forearm against Juana’s throat. Appellant then began punching Juana in the
head and face with a closed fist. S.M. never saw Juana hit appellant or K.M.
Eventually, Juana managed to call 911, for a second time, to report appellant’s conduct.
Once officers arrived at the scene, Juana was taken to the hospital by ambulance and
treated for a sore neck, bruises, and scratches.
{¶7} Officer Frank Costanzo of the Cleveland Police Department testified that he
and his partner responded to Juana’s residence after receiving a radio dispatch indicating
that a domestic situation was in progress. When Officer Costanzo arrived on scene, he
heard crying and yelling coming from inside and found Juana in her wheelchair, pinned
behind a large mirror. Officer Costanzo testified that Juana told him that she and
appellant had an argument over a piece of jewelry. As Officer Costanzo was completing
his initial interview with Juana, appellant returned to the house and was arrested at that
time.
{¶8} Officer Paul Scott of the Cleveland Police Department testified that on April
20, 2010, he was assigned to further investigate this matter. Officer Scott testified that
during his interview with appellant, she admitted to striking her mother, but stated that
she only did so in response to Juana assaulting K.M. Additionally, Officer Scott
questioned Juana about the incident in her home. During the interview, Juana told Officer
Scott that during an altercation over jewelry, appellant suddenly attacked her and that
while the assault was occurring, K.M. struck her with a VCR player. Officer Scott
further testified that Juana denied striking K.M.
{¶9} Following the state’s case, appellant testified on her own behalf. Appellant
testified that on April 19, 2010, she dropped off her daughter, K.M., at Juana’s house so
that K.M. could spend time with her grandmother. Shortly thereafter, appellant received
a phone call from K.M. asking appellant to come pick her up. When appellant arrived at
Juana’s house to pick up K.M., she observed K.M. and Juana arguing at the front door of
the house. Appellant claimed that as she attempted to enter Juana’s house to see why
they were arguing, she tripped while going up the front steps, and fell into Juana.
Appellant testified that after she tripped into Juana, Juana pushed and subsequently struck
K.M. in her face with a closed fist. Appellant admitted that in response to Juana striking
K.M., she hit Juana three times, stating “she pushed my daughter and then she comes
across and punches her in the face, and then she went to lunge at her again and I stepped
in front of my daughter and I hit my mother.” K.M.’s testimony at trial reflects
appellant’s version of the altercation.
{¶10} At the conclusion of the trial, the jury found appellant guilty of domestic
violence and a lesser included misdemeanor assault. Appellant was found not guilty on
the remaining felonious assault count. At sentencing, the trial court imposed a six-month
term of imprisonment.
{¶11} Appellant brings this timely appeal raising two assignments of error for
review:
I. The trial court’s excluding taped conversations between witnesses
gutted appellant’s defense to such an extent that the ruling obviated her
Sixth Amendment right to confrontation.
II. Appellant’s conviction was against the manifest weight of the
conflicting evidence presented at trial and did not overcome her affirmative
defense that she acted in defense of her daughter.
Law and Analysis
I. Exclusion of Evidence
{¶12} In her first assignment of error, appellant argues that the trial court erred in
excluding taped conversations between K.M. and S.M. Appellant contends that the trial
court’s ruling “gutted her defense to such an extent that it obviated her Sixth Amendment
right to confrontation.”
{¶13} The decision whether to admit or exclude evidence at trial falls within the
sound discretion of the trial court. State v. Robb, 88 Ohio St.3d 59, 2000-Ohio-275, 723
N.E.2d 1019. The record must reflect an abuse of discretion, i.e., that the trial court
acted in an unreasonable, arbitrary, or unconscionable manner, in order for an appellate
court to disturb a ruling of the trial court as to the admissibility of evidence. State v.
Pruitt, 8th Dist. No. 98080, 2012-Ohio-5418, ¶ 10, citing State v. Hamilton, 8th Dist.
No. 86520, 2006-Ohio-1949, ¶ 19.
{¶14} Evid.R. 613(B) governs the admissibility of extrinsic evidence of a prior
inconsistent statement. It states, in relevant part:
Extrinsic evidence of a prior inconsistent statement by a witness is
admissible if both of the following apply:
(1) If the statement is offered solely for the purpose of impeaching the
witness, the witness is afforded a prior opportunity to explain or deny the
statement and the opposite party is afforded an opportunity to interrogate
the witness on the statement or the interests of justice otherwise require;
(2) The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of the action other
than the credibility of a witness * * *.
{¶15} Extrinsic evidence is not admissible under Evid.R. 613(B) unless a proper
foundation is laid for its admission. A foundation must be established through direct or
cross-examination in which: (1) the witness is presented with the former statement; (2)
the witness is asked whether he or she made the statement; (3) the witness is given an
opportunity to admit, deny, or explain the statement; and (4) the opposing party is given
an opportunity to interrogate the witness regarding the inconsistent statement. State v.
Morgan, 8th Dist. No. 97934, 2012-Ohio-4937, ¶ 14-15, citing State v. Theuring, 46 Ohio
App.3d 152, 155, 546 N.E.2d 436 (1st Dist.1988).
{¶16} If a witness denies making the statement, extrinsic evidence of the statement
is generally admissible, provided the evidence does not relate to a collateral matter. State
v. Soke, 105 Ohio App.3d 226, 239, 663 N.E.2d 986 (8th Dist.1995), citing State v.
Riggins, 35 Ohio App.3d 1, 3, 519 N.E.2d 397 (8th Dist.1986). If, however, the witness
admits making the prior statement, the trial court does not abuse its discretion by
thereafter refusing to admit extrinsic evidence of that statement. State v. Eason, 8th Dist.
No. 66060, 1994 Ohio App. LEXIS 4636, *13 (Oct. 13, 1994), citing State v. Johnson, 10
Ohio App.3d 14, 460 N.E.2d 625 (10th Dist.1983); see also State v. Pierce,
2011-Ohio-4873, 968 N.E.2d 1019, ¶ 82 (2d Dist.) (no need for extrinsic evidence if the
witness admits making the conflicting statement).
{¶17} In the case at hand, defense counsel intended to introduce phone
conversations between K.M. and S.M. that were taped by K.M. without S.M.’s
knowledge. Appellant contends that the introduction of the phone conversations were
necessary to impeach S.M.’s testimony at trial because the phone conversations
demonstrated that S.M. generally agreed with K.M.’s version of the facts and
“unequivocally establish that Juana threw the first punch.”
{¶18} On review of the record, it is evident that before defense counsel had the
opportunity to impeach S.M.’s testimony, the state questioned S.M. on direct about the
phone conversations at issue. When questioned about her phone conversations with K.M.,
S.M. openly admitted that she was not truthful with K.M. during those conversations.
S.M. explained that she minimized appellant’s role in the assault during her phone
conversations with K.M. because she considered K.M. to be her best friend and did not
want any further problems in the family.
{¶19} Because S.M. admitted to making the very statements defense counsel
sought to introduce through the taped phone conversations, i.e., that she had agreed with
K.M.’s version of the altercation during previous phone conversations, her testimony at
trial was not inconsistent with a prior statement. Accordingly, extrinsic evidence of the
prior statement was not admissible under Evid.R. 613(B). See State v. Kemp, 8th Dist.
No. 97913, 2013-Ohio-167, ¶ 40. Further, because S.M. admitted to making the
previous statements, the fact that she could not remember the exact details of the taped
conversations does not alter our conclusion.
{¶20} Appellant’s first assignment of error is overruled.
II. Manifest Weight
{¶21} In her second assignment of error, appellant argues that her convictions are
against the manifest weight of the evidence. When considering an appellant’s claim that
a conviction is against the manifest weight of the evidence, the reviewing court sits as a
thirteenth juror and may disagree with the factfinder’s resolution of conflicting testimony.
State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, citing Tibbs
v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The reviewing court
must examine the entire record, weigh the evidence and all reasonable inferences,
consider the witnesses’ credibility, and determine whether, in resolving conflicts in the
evidence, the jury 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. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In its review, this court remains
mindful that the credibility of witnesses and the weight of the evidence are matters
primarily for the jury to assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraphs one and two of the syllabus.
{¶22} On review of the record in its entirety, we are unable to conclude that this is
the exceptional case in which the evidence weighs heavily against appellant’s conviction.
At trial, appellant admitted to hitting Juana three times in the head and face area with a
closed fist. Thus, the jury was asked to resolve the conflicting testimony concerning
whether appellant acted in the defense of her child. The jury, as the trier of fact, was in
the best position to weigh the credibility of the witnesses and was free to find the
testimony of Juana and S.M. to be more credible than the testimony of the defense
witnesses. Deferring to the jury’s assessment of the credibility of the witnesses, as we
must, we cannot say that the trier of fact lost its way and performed a miscarriage of
justice in convicting appellant of assault and domestic violence.
{¶23} Appellant’s second assignment of error is overruled.
{¶24} 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.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
EILEEN T. GALLAGHER, J., CONCUR