State v. Frazier , 2012 Ohio 790 ( 2012 )

[Cite as State v. Frazier, 2012-Ohio-790.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25654
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
COTY T. FRAZIER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 08 10 3462
DECISION AND JOURNAL ENTRY
Dated: February 29, 2012
MOORE, Judge.
{¶1} Appellant, Coty T. Frazier, appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} On October 11, 2008, Coty T. Frazier was arrested due to incidents that occurred
at 542 Tennessee Place in the City of Barberton from October 8, 2008, through October 11,
2008. Toka Williams, who resides at 542 Tennessee Place, had been in an “on-and-off”
relationship with Frazier since January 2001. They had two children together. During the course
of the relationship, Frazier was convicted of domestic violence in 2004 and 2005. Toka was the
victim in each case.
{¶3} Toka testified that, on October 8, 2008, Frazier pushed her, pulled her off the
couch, placed his hands around her neck, and kicked her in the back. Police responded, but did
not press charges. On October 9, 2008, Toka again called the police to report damage to her car.
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She believed Frazier was responsible for the damage. On October 10, 2008, Toka received
threatening voicemails from Frazier. In them he threatens to come to her home dressed in black
to shoot her in her face. On that same date, Frazier came to her residence and a physical
altercation ensued between him and Matt Paig. Toka had become romantically involved with
Paig. Toka again called the police regarding the incident, and asked the officer to listen to the
threatening voicemails as well. Later that evening, Frazier returned and Toka heard shots while
she was standing on her front porch. She testified that she did not see what happened because
she wears glasses and it was dark outside. She told police that she had seen Frazier with a gun in
the past.
{¶4} Lucretia Williams testified that she was at her daughter’s apartment on October
10, 2008. She knew both Frazier and Toka because her daughter lives near Toka’s residence.
Lucretia heard a sound, which she described as a “pow,” followed by her neighbors saying that
someone had fired a gun into the air. Lucretia grabbed her binoculars and observed Frazier,
wearing a black hooded sweatshirt, shooting a firearm toward Toka’s residence at 542 Tennessee
Place. She testified that she observed two shots, and then the gun appeared to jam, and she
subsequently saw another shot fired. She averred that she heard Frazier say, “Die, bitch, die”
and “To the grave, to the grave.” Lucretia subsequently called 911. The 911 call was played for
the jury. In it, Lucretia stated that she witnessed shots fired at 512 Tennessee Place and
identified the shooter as Frazier. She described Frazier as a black male wearing a black hoodie.
{¶5} Gary Lee Bland testified that he was at his sister’s house on October 10, 2008.
She lives in the same complex as Toka. Bland also knew Frazier from the apartment complex.
Bland testified that he heard a gunshot, looked out the window, and witnessed Frazier firing a
handgun toward the building where the mother of Frazier’s children resides. He also testified
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that Frazier was wearing a black hooded sweatshirt. The following day, Frazier arrived at
Bland’s sister’s residence and asked to use the phone. Shortly thereafter, police arrived and
Frazier attempted to run but was arrested. Bland admitted that he initially gave police his
brother’s name because he had a warrant. Consequently, he was arrested and charged with
obstruction of official business. At the time of trial, Bland was incarcerated in the Summit
County jail and charges were still pending against him.
{¶6} Officer Brian Brown, a sergeant with the Barberton Police Department, testified
that he responded to a domestic violence call at 542 Tennessee Place on October 8, 2010. When
he arrived, Toka was crying and stated that she and Frazier had been in an argument. Frazier
would not leave her alone, and had taken her keys. She wanted her keys back and wanted “to be
done with him.” The officer told Frazier to stay away or he would be charged with trespass.
{¶7} Officer Stacy Colgan, a Barberton Police Officer, testified that she responded to a
911 call at 542 Tennessee Place on October 10, 2011 at around 4:15 in the afternoon. Toka told
her that Frazier had come into her house unannounced and started an altercation with Paig.
Frazier subsequently left, but had since been leaving her threatening voicemails. Officer Colgan
listened to and subsequently recorded the voicemails. She testified that Toka was upset about the
voicemails and that she wished to press domestic violence charges based on the threats.
{¶8} That same day, Officer Colgan received a second 911 call around 9:05 in the
evening regarding shots being fired. She arrived on scene and discovered some spent shell
casings and a live bullet. She testified that shootings were uncommon in this area. She further
testified that she was not surprised to be called back out to the residence because the voicemails
“were very specific in what [Frazier] intended to do to [Toka].”
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{¶9} Detective Shannon Davis, a detective with the Barberton Police Department,
testified regarding the events as well. During her testimony, a video tape from a surveillance
camera in the parking lot was played for the jury. In it, Frazier is seen in the parking lot, facing
Toka’s residence, wearing dark clothing. She further averred that the clothing worn by the
person in the video, which included a hooded sweatshirt, matched the description of the clothing
that Frazier was wearing at the time of his arrest. She testified that Frazier had told her that he
did not make any calls to Toka, even though the voicemails were later confirmed to be from him.
Frazier also told her that he had no prior convictions for domestic violence in this country. At
trial he stipulated to three prior domestic violence convictions.
{¶10} On October 30, 2008, the Summit County Grand Jury indicted Frazier on one
count of felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second degree, one
count of improperly discharging a firearm at or into a habitation or school in violation of R.C.
2923.161(A)(1), a felony of the second degree, one count of having weapons under disability in
violation of R.C. 2923.14, a felony of the third degree, one count of domestic violence stemming
from the October 8, 2008 incident in violation of R.C. 2919.25(A), a felony of the third degree,
one count of domestic violence stemming from the October 10, 2008 incident in violation of
R.C. 2919.25(A), a felony of the third degree, one count of domestic violence stemming from the
October 10, 2008 incident in violation of R.C. 2919.25(C), a misdemeanor of the first degree,
and one count of menacing by stalking in violation of R.C. 2903.211(A)(1), a felony of the
fourth degree. Frazier was further charged with a firearm specification with regard to the
charges of felonious assault and improperly discharging a firearm at or into a habitation or
school. Frazier pled not guilty to the counts in the indictment and the matter proceeded to a jury
trial. Frazier stipulated to having three prior domestic violence convictions.
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{¶11} At trial, Frazier admitted that he was outside in the parking lot at the time of the
shooting and admitted that the man on the surveillance video tape was him. He denied shooting
a firearm toward Toka’s residence and instead argued that he was confronted by a man dressed in
black who sounded like Paig. The man fired two shots into the air and said, “What’s up now?”
He told Detective Davis that a man fired a gun at him and then ran away.
{¶12} At the conclusion of trial, the jury found Frazier guilty of felonious assault,
improperly discharging a firearm at or into a habitation or school, having weapons under
disability, domestic violence stemming from the October 10, 2008 incident in violation of R.C.
2919.25(A), domestic violence stemming from the October 10, 2008 incident in violation of R.C.
2919.25(C), and menacing by stalking. The jury found Frazier not guilty of domestic violence
stemming from the October 8, 2008 incident.
{¶13} On February 19, 2009, the trial court sentenced Frazier to three years of
incarceration on the gun specification and ordered it to be served consecutively to the remaining
charges. Frazier was sentenced to seven years of incarceration for felonious assault, seven years
of incarceration for improperly discharging firearm at or into a habitation or school, four years of
incarcerations for having weapons while under disability, four years of incarceration for
domestic violence in violation of R.C. 2919.25(A), one hundred eighty days in the Summit
County Jail for domestic violence in violation of R.C. 2919.25(C), and one year of incarceration
for menacing by stalking. The trial court ordered that each of these sentences be served
concurrently with each other, but consecutively with the three-year gun specification charge, for
a total of ten years of incarceration.
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{¶14} Frazier timely filed a notice of appeal. He raises eight assignments of error for
our review. We have consolidated some of the assignments of error and address them out of
order to facilitate our review.
II.
ASSIGNMENT OF ERROR II
PURSUANT TO [FRAZIER’S] CONSTITUTIONAL RIGHT TO DUE
PROCESS, THE TRIAL COURT EMPLOYED THE WRONG LEGAL
STANDARD FOR EXAMINING THE SUITABILITY OF A JUROR,
THEREBY ENTITLING [HIM] TO A NEW TRIAL.
{¶15} In his second assignment of error, Frazier contends that the trial court applied the
incorrect legal standard in reviewing whether to excuse a prospective juror for cause. We do not
agree.
{¶16} Generally matters of whether to excuse prospective jurors for cause are left to the
sound discretion of the trial court. See State v. Cornwell, 86 Ohio St. 3d 560, 563 (1999). But
whether the trial court made an error as a matter of law in applying the incorrect legal standard is
a question that we review de novo. See Med. Mut. of Ohio v. Schlotterer, 122 Ohio St. 3d 181,
2009-Ohio-2496, ¶ 13. “When a court’s judgment is based on an erroneous interpretation of the
law, an abuse-of-discretion standard is not appropriate.” Id., citing Swartzentruber v. Orrville
Grace Brethren Church, 163 Ohio App. 3d 96, 2005-Ohio-4264, ¶ 6 (9th Dist.).
{¶17} Frazier directs this Court to State v. Moss, 9th Dist. No. 24511, 2009-Ohio-3866,
to support his contention that he is entitled to a new trial because the court applied the wrong
standard of law. In Moss, the State had moved to excuse a venireperson for cause. The trial
court excused the venireperson, not under the applicable standard set forth in R.C. 2945.25(B),
but instead under the standard set forth in Batson v. Kentucky, 476 U.S. 79 (1986). Id. at ¶ 12.
The Batson standard, however, is only applicable to peremptory challenges. Id. In Moss, we
7
held that the trial court’s application of “the lesser standard relative to a peremptory challenge,
[and] not the loftier standard applicable to a challenge for cause” warranted reversal. Id. at ¶ 13.
{¶18} Here, the State also moved to excuse a venireperson for cause. While the trial
court mentioned Batson, it is apparent from the record that the trial court actually applied the
appropriate standard set forth in R.C. 2945.25. R.C. 2945.25 and Crim.R. 24(C) provide the
reasons for which a juror in a criminal matter can be removed for cause. R.C. 2945.25 states, in
relevant part:
A person called as a juror in a criminal case may be challenged for the following
causes:
***
(B) That he is possessed of a state of mind evincing enmity or bias toward the
defendant or the state; but no person summoned as a juror shall be disqualified by
reason of a previously formed or expressed opinion with reference to the guilt or
innocence of the accused, if the court is satisfied, from examination of the juror or
from other evidence, that he will render an impartial verdict according to the law
and the evidence submitted to the jury at the trial[.]
{¶19} Similarly, Crim.R. 24(C) states, in relevant part:
(C) Challenge for cause. A person called as a juror may be challenged for the
following causes:
***
(9) That the juror is possessed of a state of mind evincing enmity or bias toward
the defendant or the state; but no person summoned as a juror shall be disqualified
by reason of a previously formed or expressed opinion with reference to the guilt
or innocence of the accused, if the court is satisfied, from the examination of the
juror or from other evidence, that the juror will render an impartial verdict
according to the law and the evidence submitted to the jury at the trial.
{¶20} In State v. Moss, we further stated that “[a]s long as a trial court is satisfied,
following additional questioning of the prospective juror, that the juror can be fair and impartial
and follow the law as instructed, the court need not remove that juror for cause.” Moss at ¶ 11.
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{¶21} Here, the trial court did not expressly state that it was excusing the venireperson
under Batson. Instead, it stated that it was excusing the venireperson because the venireperson
believed that the State should not “pursue domestic violence prosecutions” when there are no
physical injuries. This indicates that the trial court was excusing the venireperson under R.C.
2945.25(B) for bias toward the State. Clearly, the trial judge was not satisfied that the
venireperson could render an impartial verdict on the evidence. See also State v. White, 9th Dist.
No. 24960, 2010-Ohio-2865, ¶ 12 (distinguishing Moss because the trial court excused the
venireperson for hardship, not expressly under Batson). Accordingly, notwithstanding the
reference to Batson, the trial court applied the correct legal standard in dismissing the
venireperson for cause. Frazier’s second assignment of error is overruled.
ASSIGNMENT OF ERROR I
PURSUANT TO [FRAZIER’S] CONSTITUTIONAL RIGHT TO DUE
PROCESS, THE TRIAL COURT ERRED BY FAILING TO SUSTAIN [HIS]
OBJECTION TO REMOVING A JUROR FOR CAUSE WHERE NO SUCH
CAUSE EXISTS, THEREBY ENTITLING [HIM] TO A NEW TRIAL.
{¶22} In his first assignment of error, Frazier contends that the trial court erred in
allowing the removal of a venireperson for cause because no such cause existed. We do not
agree.
{¶23} We review the trial court’s decision to grant the for-cause challenge under the
abuse of discretion standard. State v. Smith, 80 Ohio St. 3d 89, 105 (1997). Under this standard,
we must determine whether the trial court’s decision was arbitrary, unreasonable, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983). As discussed above,
R.C. 2945.25 and Crim.R. 24 provide the reasons for which a venireperson in a criminal matter
can be removed for cause. One such reason is evidence of bias toward the defendant or the State.
R.C. 2945.25(B). “As long as a trial court is satisfied, following additional questioning of the
9
prospective juror, that the juror can be fair and impartial and follow the law as instructed, the
court need not remove that juror for cause.” Moss at ¶ 11.
{¶24} During voir dire, the venireperson indicated that two of his cousins had been
“railroaded” in domestic violence cases involving the same prosecutor. He indicated that he was
“very close” to them and that he did not feel they were treated fairly by the court system. In
addition, he believed that domestic violence cases should not be pursued where there are no
injuries to the victim. While the venireperson did indicate that he could be fair and impartial,
“[t]he determination of juror bias necessarily involves a judgment on credibility, the basis of
which often will not be apparent from an appellate record. Wainwright v. Witt, 469 U.S. 412,
429 (1985). For this reason, ‘deference must be paid to the trial judge who sees and hears the
juror.’ Id. at 426.” State v. DePew, 38 Ohio St. 3d 275, 280 (1988). Because Frazier has failed
to demonstrate that the trial court’s decision to excuse the juror for cause was an abuse of
discretion, his first assignment of error is overruled.
ASSIGNMENT OF ERROR V
PURSUANT TO THE EQUAL PROTECTION CLAUSE IN THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION,
THE TRIAL COURT ERRED BY FAILING TO SUSTAIN [FRAZIER’S]
OBJECTION TO THE PROSECUTION’S PEREMPTORILY [SIC]
REMOVING THE ONLY AFRICAN AMERICAN JUROR, THEREBY
ENTITLING [HIM] TO A NEW TRIAL.
{¶25} In his fifth assignment of error, Frazier argues that the trial court erred in allowing
the peremptory removal of the only African American venireperson. Our dispositions of the first
and second assignments of error indicate that the trial court properly excused the venireperson
for cause. This assignment of error merely reiterates the issues already discussed in the above
assignment of error. For the reasons set forth in discussion of the first and second assignments of
error, Frazier’s fifth assignment of error is likewise overruled.
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ASSIGNMENT OF ERROR III
PURSUANT TO [FRAZIER’S] CONSTITUTIONAL RIGHT TO DUE
PROCESS, THE TRIAL COURT ERRED BY FAILING TO SUSTAIN [HIS]
OBJECTION TO REMOVING A HISPANIC/PUERTO RICAN JUROR FOR
CAUSE WHERE NO SUCH CAUSE EXISTS, THEREBY ENTITLING [HIM]
TO A NEW TRIAL.
{¶26} In his third assignment of error, Frazier contends that the trial court erred in
removing a Puerto Rican venireperson for cause where no such cause existed. We do not agree.
{¶27} Under R.C. 2945.25(N), a person called as a juror in a criminal case may be
challenged if “English is not his native language, and his knowledge of English is insufficient to
permit him to understand the facts and law in the case[.]” The State moved to have the juror
excused because he indicated that he had difficulty understanding English, the parties had
difficulty understanding him, and the State also expressed concern that the language barrier
could create problems during deliberations.
{¶28} The trial court’s decision to grant the for-cause challenge must be reviewed under
the abuse of discretion standard. Smith, 80 Ohio St. 3d at 105. We must determine whether the
trial court’s decision was arbitrary, unreasonable, or unconscionable. Blakemore, 5 Ohio St. 3d at
219. “Crim. R. 24(B)(13) provides that a person may be challenged for cause when ‘English is
not his native language, and his knowledge of English is insufficient to permit him to understand
the facts and the law in the case.’” State v. Getsy, 84 Ohio St. 3d 180, 192 (1998).
{¶29} The trial court determined that the venireperson’s knowledge of the English
language was insufficient and excused him for cause. “We must defer to that finding if the
record supports it[.]” State v. Group, 98 Ohio St. 3d 248, 2002-Ohio-7247, ¶ 59, citing State v.
Wilson, 29 Ohio St. 2d 203, 211 (1972). A review of the transcript indicates that the
venireperson’s native language was Spanish. He averred that it could at times be hard to
11
understand the proceedings. In addition, he felt that the language barrier could affect his ability
to be a fair juror on the case. Because the record supports the trial judge’s decision to grant the
challenge for cause, Frazier’s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
PURSUANT TO [FRAZIER’S] CONSTITUTIONAL RIGHT TO DUE
PROCESS, THE TRIAL COURT EMPLOYED THE WRONG LEGAL
STANDARD FOR EXAMINING THE SUITABILITY OF A JUROR,
THEREBY ENTITLING [HIM] TO A NEW TRIAL.
{¶30} In his fourth assignment of error, Frazier contends that the trial court applied the
wrong legal standard in examining the suitability of a venireperson. We do not agree.
{¶31} As stated in the second assignment of error, generally matters of whether to
excuse prospective jurors for cause are left to the sound discretion of the trial court. See
Cornwell, 86 Ohio St. 3d at 563. But whether the trial court made an error as a matter of law in
applying the incorrect legal standard is a question that we review de novo. See Schlotterer at ¶
13. “When a court’s judgment is based on an erroneous interpretation of the law, an abuse-of-
discretion standard is not appropriate.” Id., citing Swartzentruber at ¶ 6.
{¶32} As discussed in the third assignment of error, the State moved to have the
venireperson excused for cause. The trial court properly reviewed the challenge under the for-
cause standard and excused the venireperson because “he did indicate concern whether he could
understand [English] well enough[.]” Although this was not a peremptory challenge, defense
counsel expressed his “greater concern” that the trial court was “removing all the non[-
]Caucasian people from this jury.” The trial court said the “Batson case doesn’t talk about all
non[-]Caucasian, so I don’t think it’s subject to a Batson challenge.” As this statement by the
court may have caused confusion, we will further address Frazier’s arguments.
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{¶33} Frazier correctly points out that “the Equal protection Clause of the United States
Constitution prohibits deliberate discrimination based on race by a prosecutor in his exercise of
peremptory challenges.” Moss at ¶ 9, citing Batson, 476 U.S. at 89. In Batson, the defendant,
who was black, appealed the prosecution’s use of peremptory challenges to remove “all four
black persons on the venire” leaving a jury composed of only white persons. Id. at 83. The
United States Supreme Court held that “[p]urposeful racial discrimination in selection of the
venire violates a defendant’s right to equal protection because it denies him the protection that a
trial by jury is intended to secure.” Id. at 86.
{¶34} The United States Supreme Court further held that a prima facie case of
purposeful discrimination in selection of the petit jury may be established by: (1) showing that
the defendant “is a member of a cognizable racial group * * * and that the prosecutor has
exercised peremptory challenges to remove from the venire members of the defendant’s race,”
(2) relying on the undisputable fact “that peremptory challenges constitute a jury selection
practice that permits those to discriminate who are of a mind to discriminate,” and (3) “that these
facts and any other relevant circumstances raise an inference that the prosecutor used that
practice to exclude the veniremen from the petit jury on account of their race.” (Internal
citations and quotations omitted.) Id. at 96. Once the inference of purposeful discrimination is
established, “the burden shifts to the State to come forward with a neutral explanation for
challenging black jurors.” Id. at 97.
{¶35} The Batson holding was extended in Powers v. Ohio, 499 U.S. 400 (1991). In
Powers, a defendant, who was white, objected to the State’s use of peremptory challenges to
remove seven black venirepersons from the jury. He requested the trial court to compel the
prosecutor to explain, on the record, his reasons for excluding the black venirepersons. His
13
objections were overruled. The United States Supreme Court acknowledged that Batson “spoke
of the harm caused when a defendant is tried by a tribunal from which members of his own race
have been excluded.” Id. at 406. However, “Batson was designed to serve multiple ends, only
one of which was to protect individual defendants from discrimination in the selection of jurors.
Batson recognized that a prosecutor’s discriminatory use of peremptory challenges harms the
excluded jurors and the community at large.” (Internal citations and quotations omitted.) Id.
The Court went on to hold that “a criminal defendant may object to race-based exclusions of
jurors effected through peremptory challenges whether or not the defendant and the excluded
juror share the same races.” Id. at 402.
{¶36} A Batson objection was also analyzed in Hernandez v. New York, 500 U.S. 352
(1991), where a prosecutor had used peremptory challenges “to exclude Latino potential jurors.”
Id. at 356. The prosecutor argued that he had struck these two jurors, who were both bilingual,
because he was “uncertain that they would be able to listen and follow the interpreter”
particularly because they had “looked away from [him]” and hesitated before responding to his
inquiry whether they would accept the translator as the final arbiter of the witnesses’ responses.
Id. On appeal, Hernandez argued that the explanation was not “race neutral.” Id. at 359. The
United States Supreme Court noted that “[i]n evaluating the race neutrality of an attorney’s
explanation, a court must determine whether, assuming the proffered reasons for the peremptory
challenges are true, the challenges violate the Equal Protection Clause as a matter of law. A
court addressing this issue must keep in mind the fundamental principle that official action will
not be held unconstitutional solely because it results in a racially disproportionate impact. Proof
of racially discriminatory intent or purpose is required to show a violation of the Equal
Protection Clause.” (Internal citations and quotations omitted.) Id. at 359-60. The Court
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concluded that the prosecutor offered a race-neutral basis for the peremptory strikes because he
“explained that the specific responses and the demeanor of the two individuals during voir dire
caused him to doubt their ability to defer to the official translation of Spanish-language
testimony.” Id. at 360.
{¶37} In the case at hand, although the trial court mentioned Batson, it is clear from the
record that it properly reviewed the challenge under the challenge-for-cause standard. As such,
Frazier’s argument that the trial court applied the lesser legal standard from Batson relative to a
peremptory challenge, and not the loftier standard applicable to a challenge for cause, is without
merit.
{¶38} As to Frazier’s argument that the trial court was “removing all the non[-]
Caucasian people from the jury[,]” the Ohio Supreme Court has stated that “[t]he right to trial by
an impartial jury means that prospective jurors must be selected by officials without the
systematic and intentional exclusion of any cognizable group. However it is not necessary that
every jury contain representatives of all economic, social, religious, racial, political, and
geographical groups in the community.” State v. Johnson, 31 Ohio St. 2d 106, 114 (1972). The
Ohio Supreme Court has also noted that “[a] party has no right to have any particular juror on the
panel. His right is to an impartial jury[.]” State v. Murphy, 91 Ohio St. 3d 516, 525 (2001).
Frazier has made no arguments regarding the impartiality of the remaining jurors. His fourth
assignment of error is overruled.
ASSIGNMENT OF ERROR VI
PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED
STATES CONSTITUTION AND ARTICLE ONE, SECTION 10 OF THE OHIO
CONSTITUTION, THE TRIAL COURT ERRED TO THE PREJUDICE OF
[FRAZIER] IN DENYING [HIS CRIMINAL] RULE 29 MOTION FOR
ACQUITTAL ON THE CHARGES OF FELONIOUS ASSAULT,
IMPROPERLY DISCHARGING A FIREARM INTO A HABITATION,
15
WEAPONS UNDER DISABILITY, DOMESTIC VIOLENCE (BY USE OF
THE FIREARM), DOMESTIC VIOLENCE (BY THREAT OF IMMINENT
HARM), AND MENACING BY STALKING WHEN THE STATE FAILED TO
PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.
{¶39} In his sixth assignment of error, Frazier contends that the trial court erred when it
denied his Crim.R. 29 motion. We do not agree.
{¶40} Crim.R. 29(A) provides that a trial court “shall order the entry of a judgment of
acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses.”
When considering a challenge to the sufficiency of the evidence, the court must determine
whether the prosecution has met its burden of production. To determine whether the evidence in
a criminal case was sufficient to sustain a conviction, an appellate court must view that evidence
in a light most favorable to the prosecution:
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of crime proven
beyond a reasonable doubt.
State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus.
{¶41} In support of his sufficiency argument, Frazier contends that the State failed to
establish that he fired a handgun, and thus he could not have committed the above charges. He
further challenges the evidence presented as to whether the victim believed that he would cause
her imminent physical harm. Finally, he challenges the credibility of the witnesses. We limit
our review to the issues raised by Frazier.
Handgun
{¶42} The victim, Toka Williams, testified that she heard two gunshots on the night in
question. Two of Frazier’s acquaintances, Lucretia Williams and Gary Bland, testified that they
16
heard three to four shots and personally observed Frazier shooting a firearm in the direction of
Toka’s apartment. Specifically, Lucretia obtained binoculars after hearing a gunshot, and
witnessed Frazier firing a gun from the parking lot. A video tape played for the jury shows
Frazier and the parking lot. One live bullet and two casings were found at the scene. In a
voicemail played for the jury, Frazier threatens the victim: “Bitch, I’m killing all you ass mother
f*****s;” and “I’m in all black and I’m comin, I’ll go to Tason Terrace, Crimson Terrace,
parson, wherever to find you bitch and I’m gonna shoot you in your f***ing face * * *.” Frazier
was not apprehended until the next day.
{¶43} Frazier essentially argues that the State failed to present sufficient evidence
because a handgun was never recovered. Circumstantial and direct evidence “possess the same
probative value[.]” Jenks, 61 Ohio St.3d at paragraph one of the syllabus. Two witnesses
testified that they witnessed the shots. Frazier threatened to shoot the victim in a voicemail
played for the jury. Finally, Frazier was not apprehended until the day after the incident,
providing him with ample opportunity to dispose of the weapon. After viewing this evidence in
a light most favorable to the State, we conclude that the trier of fact could reasonably find that
the State met its burden of production and presented sufficient evidence that he fired a handgun.
Accordingly, this portion of his sixth assignment of error is overruled.
Imminent Physical Harm
{¶44} Frazier was convicted of domestic violence in violation of R.C. 2919.25(C),
which provides: “No person, by threat of force, shall knowingly cause a family or household
member to believe that the offender will cause imminent physical harm to the family or
household member.” Frazier argues that the State failed to present evidence that the victim
believed he would cause her “imminent physical harm.”
17
{¶45} The State presented the testimony of the victim, Toka. She testified that she
called the police at least three times based on incidents involving Frazier. Her 911 calls were
played for the jury. In addition, six voicemails were played for the jury in which Frazier
threatens the victim. In one voicemail, Frazier threatens “Bitch * * * ain’t gonna be nothing
blessed about your day and night, [I’m] coming in all black, I’m warning you bitch I’m gonna
shoot you.” In a second voicemail, Frazier can be heard singing a song to Toka in which he
repeats: “Do you really wanna die today? Won’t hesitate to take your life away, I guarantee you
won’t see tomorrow.”
{¶46} Toka called the police after receiving these voicemails from Frazier. Officer
Colgan testified that Toka was upset about the voicemails and that she wished to press charges
based on the threats made in the voicemails. Officer Colgan further testified that she was not
surprised when she was called back out to the residence later that evening for a “shot-fired call”
because the voicemails “were very specific in what [Frazier] intended to do to [Toka].”
{¶47} Lucretia and Bland both testified that they witnessed Frazier in the parking lot
outside, dressed in dark clothing, firing a gun toward Toka’s residence while Toka stood on the
porch. A videotape was played for the jury in which Frazier is admittedly seen in the parking lot
in dark clothing. Detective Davis testified that Toka stated that she was not concerned with the
voicemails and that she did not feel threatened, but further testified that these statements were
made on October 16, 2008, after Frazier was apprehended and remained in police custody.
{¶48} “While it is true that victims may change their testimony to protect a spouse, there
must be some evidence either that a victim stated, or that from other evidence it could be
inferred, that the victim thought that the accused would cause imminent physical harm.”
Hamilton v. Cameron, 121 Ohio App. 3d 445, 449 (12th Dist.1997).
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{¶49} Reviewing the evidence presented at trial in a light most favorable to the State,
this Court concludes that any rational trier of fact could have found that the State presented
sufficient evidence that Toka believed Frazier would “cause imminent physical harm[.]”
Accordingly, this portion of his sixth assignment of error is overruled.
Witness Credibility
{¶50} Lastly, Frazier argues that there was insufficient evidence to support his
convictions because the testimony by Lucretia and Bland was not credible. “Because an
examination of the sufficiency of the evidence requires this Court to view the evidence in the
light most favorable to the State, credibility is not implicated.” (Internal citations omitted.) State
v. Garfield, 9th Dist. No. 09CA009741, 2011-Ohio-2606, ¶ 6. Accordingly, Frazier’s sixth
assignment of error is overruled.
ASSIGNMENT OF ERROR VII
PURSUANT TO ARTICLE FOUR SECTION 3(B)(3) OF THE OHIO
CONSTITUTION, THE VERDICT OF GUILTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL AND
WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶51} In his seventh assignment of error, Frazier contends that the verdict was against
the manifest weight of the evidence and was not supported by sufficient evidence. We do not
agree.
{¶52} 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 evidence 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 (1986).
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{¶53} This discretionary power should be invoked only in extraordinary circumstances
when the evidence presented weighs heavily in favor of the defendant. Id. We limit our review
to the manifest-weight issues raised by Frazier.
{¶54} Frazier argues that his conviction is against the manifest weight of the evidence
because some of the testimony presented by the State was contradictory or not credible. First, he
argues that the Lucretia and Bland were not credible witnesses and, therefore, their testimony
should not have been given any weight. Specifically, Frazier argues that Lucretia’s testimony
lacks credibility because she had just purchased the binoculars on the date of the incident.
Additionally, he argues that Lucretia contradicted herself when she testified that although it was
too dark to see, she was able to see Frazier with the aide of the binoculars. Finally, Frazier
argues that Lucretia’s testimony lacks credibility because she did not take note of the
“distinctive” striping on Frazier’s pants.
{¶55} Likewise, Frazier argues that Bland’s testimony lacks credibility because he too
failed to notice the striping on his pants. In addition, Bland had lied to the police regarding his
identity and also said that he hoped his assistance in this case might help him with his own
criminal case. This information was elicited from Bland on direct examination. He admitted
that he provided the officers with a false name because he had an outstanding warrant, but
averred that no one promised him anything in exchange for his testimony.
{¶56} This Court has held that, “in reaching its verdict, 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 (1993). Furthermore,
“[t]he weight to be given the evidence and the credibility of the witness[es] are primarily for the
trier of the facts”; in this case, the jury. Id. at 32-33, citing State v. Richey, 64 Ohio St. 3d 353,
20
363 (1992). The jury had the opportunity to weigh the testimony of the witnesses, victim, and
responding officers, view the video footage, and listen to the voicemails and 911 tapes, and “did
not lose its way simply because it chose to believe the State’s version of the events, which it had
a right to do.’” State v. Feliciano, 9th Dist. No. 09CA009595, 2010-Ohio-2809, ¶ 50, quoting
State v. Morten, 2d Dist. No. 23103, 2010-Ohio-117, ¶ 28.
{¶57} After reviewing the entire record, weighing the inferences and examining the
credibility of the witnesses, we cannot say that the jury clearly lost its way and created a manifest
miscarriage of justice. Otten, 33 Ohio App. 3d at 340. Accordingly, Frazier’s argument that the
verdict was against the manifest weight of the evidence is overruled. To the extent that he
reiterates the sufficiency arguments presented in the sixth assignment of error, it is also
overruled.
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO
SUSTAIN [FRAZIER’S] OBJECTION TO THE PROSECUTION SOLICITING
EVIDENCE FROM A PURPORTED EXPERT THAT IS BOTH IRRELEVANT
AND UNFAIRLY PREJUDICIAL TO [HIM].
{¶58} In his eighth assignment of error, Frazier argues that the trial court erred in
admitting expert testimony that was both irrelevant and unfairly prejudicial to him. We conclude
that Frazier has failed to demonstrate prejudice as a result of its admission.
{¶59} The State presented the testimony of Dana Zedak, a licensed social worker who is
employed as the director of services at the Battered Women’s Shelter, to testify as an expert
regarding the dynamics of domestic violence. She provided general testimony of the dynamics
of battered women’s syndrome which include victims returning to their abuser after the abuse.
{¶60} The Ohio Supreme Court has recognized that the State may introduce testimony
on the cycle of violence and battered-women’s syndrome in its case-in-chief, provided that such
21
testimony is relevant and helpful. State v. Haines, 112 Ohio St. 2d 393, 2006-Ohio-6711, ¶ 44.
For such testimony to be relevant, the State must set forth the requisite evidentiary foundation
showing that the witness is a battered woman. Id. at ¶ 46-47. Although the Court rejected any
“set of rigid foundational requirements,” it did impose two specific limitations on the admission
of cycle of violence and battered-women’s syndrome testimony. Haines at ¶ 47. First, the
evidence must be rehabilitative in nature. Id. at ¶ 44. Second, the couple at issue must have
“go[ne] through the battering cycle at least twice.” Id. at ¶ 49, quoting State v. Koss, 49 Ohio
St.3d 213, 216 (1990).
{¶61} Assuming without deciding that the trial court erred by admitting the expert
testimony without Haines’ foundational requirements having been met, we conclude that Frazier
has failed to demonstrate prejudice as a result of its admission. “[T]he question is whether there
is a reasonable possibility that the evidence complained of might have contributed to the
conviction.” Haines at ¶ 62, quoting State v. Conway, 108 Ohio St. 3d 214, 2006-Ohio-791, ¶ 78.
We conclude that there is not.
{¶62} In Haines, the Ohio Supreme Court concluded that the evidence regarding one of
the incidents for which Haines was charged was “almost entirely based upon [the victim’s]
testimony and therefore relie[d] on her credibility.” Haines at ¶ 63. As such, “[t]here [was] a
reasonable probability that evidence concerning her credibility might have contributed to the
jury’s verdict[.]” Id. On Haines’ remaining counts, however, the Ohio Supreme Court
concluded that the admission of the expert’s testimony was harmless beyond a reasonable doubt
because the jury also saw photographs of the victim’s injuries and heard testimony from her co-
workers and police officers. Id. at ¶ 64.
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{¶63} Here, as in State v. Anderson, 9th Dist. No. 25377, 2011-Ohio-563, the expert did
not offer an opinion as to whether Toka was a battered woman, and as such “the expert testimony
elicited in this case was, by itself, less prejudicial than the testimony elicited in Haines.” Id. at ¶
17. Moreover, other evidence in the record went to the heart of Frazier’s conviction. In fact,
Toka’s testimony was most helpful with regard to the incident that occurred on October 8, 2008,
for which Frazier was acquitted. This in and of itself demonstrates that the jury did not heavily
rely on the victim’s testimony. Compare Haines at ¶ 63. Toka provided very little testimony
with regard to the incident that occurred on October 10, 2008, except that she heard shots fired,
she was on the porch of her residence, and that she could not see what happened because she
wears glasses and it was dark outside.
{¶64} As to the incident on October 10, 2008, two eyewitnesses testified that they
observed Frazier with a gun firing shots toward Toka and her residence. The witnesses further
testified that Frazier was dressed in dark clothing. Frazier was arrested wearing clothing
consistent with this testimony, and the clothing was identified by the witnesses at trial as the
clothing he was wearing the night of the incident. Threatening voicemails, admittedly left by
Frazier on Toka’s cell phone, were played for the jury. In them he warns her that he is going to
come to her house dressed in all black to shoot her. A videotape was played for the jury and
Frazier admits that he can be seen in the parking lot of Toka’s residence dressed in dark clothing.
In the video he appears to be facing her residence and can be seen raising his arms, and then
dropping them and looking downward, and raising them again. This is consistent with Lucretia’s
testimony that after he fired a shot, the gun appeared to jam and he was forced to dislodge it prior
to firing additional shots. Two casings and a live bullet were recovered from the scene the day
after the shooting. The recovered bullet was consistent with the testimony that a bullet had been
23
in the chamber when it jammed, and it was subsequently dislodged from the gun. Finally, nine
police officers from the City of Barberton testified as to the events from October 8, 2008,
through October 11, 2008. Each of the officers’ testimony, corroborated by eyewitness
testimony and evidence found at the scene, supports the contention that Frazier was responsible
for the events in question.
{¶65} Given the other evidence in the record and the fact that the expert’s opinion
testimony was phrased in terms of generalities, we are not convinced that the admission of her
testimony prejudiced Frazier. Therefore, even if the trial court erred in admitting the expert’s
testimony, its error was harmless beyond a reasonable doubt. Frazier’s eighth assignment of
error is overruled.
III.
{¶66} Frazier’s eight assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas 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 Common
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
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, P. J.
DICKINSON, J.
CONCUR
APPEARANCES:
ERIC FINK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.