State v. Taylor , 2013 Ohio 1587 ( 2013 )

[Cite as State v. Taylor, 2013-Ohio-1587.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
TIFFANY TAYLOR
Defendant-Appellant
Appellate Case No. 25146
Trial Court Case No. 2011-CR-2377
(Criminal Appeal from
(Common Pleas Court)
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OPINION
Rendered on the 19th day of April, 2013.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Blvd., Springboro, Ohio
45066
Attorney for Defendant-Appellant
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WELBAUM, J.
{¶ 1} Defendant-Appellant, Tiffany Taylor, appeals from her criminal conviction and
sentence on two counts of Felonious Assault following a jury trial. Appellant contends that the
jury’s verdict was against the manifest weight of the evidence. In addition, Appellant claims
that the prosecutor engaged in prosecutorial misconduct by making allegedly improper remarks
regarding the burden of proof during closing argument. We conclude that the jury verdict was
not against the manifest weight of the evidence. We also conclude that the prosecutor did not
engage in prosecutorial misconduct. Accordingly, the judgment of the trial court will be
affirmed.
I. Facts & Course of Proceedings
{¶ 2} On the morning of July 18, 2011, Jessica Tarrance was driving her six-year-old
daughter to day care with her boyfriend, Kenyon Jones, riding as a passenger. As they were
traveling on Elsmere Street in Dayton, Ohio, they noticed that the Appellant was following them
in her car. The Appellant was Jones’ ex-girlfriend, and their relationship did not end well. The
Appellant was upset at Jones for taking some movies that belonged to her children when he
moved out.
{¶ 3} Upon arriving at the day care facility, Tarrance and Jones parked next to the
curb, and the Appellant pulled her vehicle beside them. Tarrance and her daughter went inside
the day care facility, and Jones was left sitting in the vehicle. The Appellant then exited her
vehicle and approached Jones. She asked him to get out of his vehicle and talk to her. When
Jones refused, the Appellant threatened to damage his vehicle. Jones then got out of his vehicle,
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and the Appellant demanded that he return her children’s movies. Jones said he would not give
the movies back until she returned some property that she had taken from him. The Appellant
then grabbed the collar of Jones’ shirt with one hand and threatened to physically harm him.
{¶ 4} Tarrance returned from the day care facility and saw the Appellant holding
Jones by his shirt collar. Jones attempted to remove the Appellant’s hand from his shirt, and as a
result, the two began to scuffle. As they scuffled, Jones noticed a pocket knife in the
Appellant’s other hand. He tried to back away from the knife by pushing himself away from the
Appellant. As he pushed away, he was able to escape the Appellant’s grasp by slipping out of
his shirt and undershirt. His outer shirt was cut in the process.
{¶ 5} Meanwhile, in an effort to get the Appellant away from the day care facility,
Tarrance told the Appellant that if she wanted to fight, to move up the street. Tarrance then
attempted to get back into her vehicle, but it was locked. Tarrance testified that she thought
about taking the Appellant’s vehicle, which was left running in the street, but as she looked over
at the vehicle, the Appellant suddenly ran toward her. Tarrance put her fists up, preparing to
fight. When the Appellant was an arm’s-length away, Tarrance realized that the Appellant had a
shiny blade in the palm of her hand. Tarrance then backed up and put her hands up to protect
her face. Immediately thereafter, Tarrance was stabbed in her left palm.
{¶ 6} After stabbing Tarrance, the Appellant ran back to her vehicle. Jones grabbed
his undershirt and gave it to Tarrance, and she wrapped it around her bleeding hand. Tarrance
then called 911 from the street while the Appellant remained seated in her parked vehicle. The
911 call recorded Tarrance and the Appellant arguing. Tarrance said, “Because you can’t fight,
you’re going to run up with a knife?” Trial Transcript, Vol. II, p. 210, ln. 15 (referring to
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content of 911 tape recording). The Appellant responded, “Yeah. I was going to stab you and
him. Now how about that?” Id. at Vol. II, p. 211, ln. 9-10 (referring to content of 911 tape
recording).
{¶ 7} As Tarrance began to describe the Appellant’s car and license plate number to
the 911 dispatcher, the Appellant backed her vehicle up, and pulled it forward to leave. As the
Appellant pulled forward, she swerved and hit Tarrance and Jones’ vehicle. The Appellant then
immediately drove away. About five minutes later, Officer Chuck Hurley and Officer William
Gross of the Dayton Police Department arrived at the scene. Tarrance and Jones gave brief
statements to the officers, and one or two minutes later, an ambulance arrived for Tarrance.
Tarrance was taken to Good Samaritan Hospital where she received sutures for the laceration on
her left palm.
{¶ 8} Approximately two and one-half hours later, the Appellant called the Dayton
Police Department and claimed that she had been assaulted during the incident with Tarrance and
Jones. The Appellant also changed the license plates on her vehicle. Shortly thereafter, the
Appellant was arrested for felonious assault, and the police towed her vehicle. The day after her
arrest, she gave a statement to Detective Michael August of the Dayton Police Department
regarding the events leading up to her arrest. She stated that she had approached Jones about her
children’s movies in front of the day care facility. She admitted to grabbing the collar of his
shirt and scuffling with him. She stated that Tarrance took the keys from her car’s ignition, and
that she thought Tarrance was going to take her car. The Appellant claimed that she fought with
Tarrance over the keys and that Tarrance was cut by a corkscrew that was on her key chain.
{¶ 9} Tarrance testified that she did not take the Appellant’s car keys. During the
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investigation of this matter, a corkscrew was not found nor was it turned over to police. A knife
was also not found.
{¶ 10} On August 15, 2011, the Appellant was indicted on two counts of felonious
assault. On August 18, 2011, the Appellant pleaded not guilty to the charges. A jury trial was
held on March 5th and 6th of 2012. After hearing all the evidence, which included the 911 tape
recording, the jury returned verdicts of guilty on both counts of Felonious Assault. Following
the verdicts, the trial court sentenced the Appellant to community control sanctions for a period
not to exceed five years. The Appellant now appeals her conviction and sentence.
II. Was the Conviction Against the Manifest Weight of the Evidence?
{¶ 11} The Appellant’s First Assignment of Error states that:
The jury’s verdicts should be reversed as they were against the manifest
weight of the evidence.
{¶ 12} Under this assignment of error, the Appellant contends that the jury’s verdicts
are against the manifest weight of the evidence because of inconsistencies in testimony given by
Jessica Tarrance and Kenyon Jones. The Appellant also argues that her statement given to
Detective August, which explains her version of the July 18, 2011 incident, is more credible, and
contradicts both Tarrance’s and Jones’ testimony.
{¶ 13} “When a conviction is challenged on appeal as being against the weight of the
evidence, an appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider witness credibility, 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.
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Hill, 2d Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8, quoting State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997). “A judgment should be reversed as being against the
manifest weight of the evidence ‘only in the exceptional case in which the evidence weighs
heavily against the conviction.’ ” Hill at ¶ 8, quoting State v. Martin, 20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983).
{¶ 14} We have reviewed the entire record and find no basis upon which to conclude
that the jury clearly lost its way and created a manifest miscarriage of justice when it found that
the Appellant was guilty of felonious assault. To be guilty of Felonious Assault, a defendant
must knowingly “[c]ause or attempt to cause physical harm to another * * * by means of a deadly
weapon or dangerous ordnance.” R.C. 2903.11(A)(2). “A person acts knowingly, regardless of
his purpose, when he is aware that his conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when he is aware that
such circumstances probably exist.” R.C. 2901.22(B).
{¶ 15} In this case, the record establishes that on the morning of July 18, 2011, the
Appellant approached Jones outside the day care center, grabbed his shirt collar, and demanded
that he return her children’s movies. There is also no dispute that the Appellant and Tarrance
had a physical altercation, and that Tarrance’s left palm was stabbed as a result. The Appellant
told police that Tarrance was cut by a corkscrew on her key chain while they were fighting over
the Appellant’s car keys. Tarrance testified that she never took the Appellant’s car keys, and
that she saw a blade of a knife in the Appellant’s hand. Jones also testified that he saw the
Appellant holding a pocket knife. The testimony of Tarrance and Jones is supported by the 911
recording which captured the Appellant admitting to having a knife and stating that it was her
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intent to stab Tarrance and Jones.
{¶ 16} When considering the Appellant’s statements in the 911 recording in conjunction
with the fact that Tarrance was stabbed, the evidence does not weigh heavily against finding that
the Appellant knowingly caused physical harm to Tarrance using a deadly weapon. Likewise,
when considering the Appellant’s statements in the 911 recording in conjunction with the fact
that Jones’ shirt was cut, the evidence does not weigh heavily against finding that the Appellant
knowingly attempted to cause physical harm to Jones using a deadly weapon.
{¶ 17} The Appellant argues that the jury weighed Jones’ and Tarrance’s credibility
improperly because it chose to ignore three inconsistencies in their trial testimony. The first
inconsistency is related to Tarrance’s testimony that she saw the Appellant holding Jones by his
shirt collar. The Appellant argues that Tarrance’s testimony is inconsistent because Tarrance
later testified that Jones was not wearing a shirt when she came out of the day care facility. This
inconsistency is irrelevant, given that the Appellant admitted to grabbing Jones’ collar and
scuffling with him in her statement to Detective August.
{¶ 18} The second inconsistency is related to Tarrance’s testimony that Jones and the
Appellant were talking so quietly that she could not hear them. The Appellant argues that
Tarrance’s testimony is inconsistent because she had previously testified at the preliminary
hearing that the two were “whispering”. There is no inconsistency here. Whispering and
talking quietly are similar descriptions of the activity Tarrance observed.
{¶ 19} The third inconsistency is related to Jones’ testimony that the Appellant had a
knife in her right hand when she grabbed his shirt collar. The Appellant argues that Jones’
testimony is inconsistent because he had previously testified at the preliminary hearing that the
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knife was in the Appellant’s left hand. Once again, we find this inconsistency to be of no
consequence. The weight of the evidence supports a finding that the Appellant had a knife.
Whether it was in Appellant’s left hand or right hand is not determinative.
{¶ 20} Based on the preceding discussion, there is no basis upon which to conclude that
the jury clearly lost its way and created a manifest miscarriage of justice when it found the
Appellant guilty of two counts of Felonious Assault. Accordingly the First Assignment of Error
is overruled.
III. Did the Prosecutor’s Remarks During Closing Argument Amount to Prosecutorial
Misconduct?
{¶ 21} The Appellant’s Second Assignment of Error states that:
The prosecutor’s improper remarks during closing argument attempting to
shift the burden of proof to the Appellant amounted to prosecutorial misconduct.
{¶ 22} Under this assignment of error, the Appellant argues that the following
statement by the prosecutor during closing argument was improper and affected the substantial
rights of the Appellant.
How logical would it have been for her to ditch the knife that she knows
caused the cut to Jessica Tarrance’s hand? How far fetched is that? Where is –
* * * Where is the keychain with the corkscrew, ladies and gentlemen? Trial
Transcript, Vol. II, p. 422, ln. 23-25; p. 423, ln. 4-5.
{¶ 23} The Appellant objected to this statement at trial on grounds that it shifted the
burden of proof to the Appellant. The trial court overruled the objection, finding that the
statement did not shift the burden of proof. The prosecutor then expanded the argument by
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stating:
Where is the keychain with the corkscrew? It doesn’t exist. You heard
Detective August tell you that it wasn’t recovered when the police went to tow the
car. You heard Detective August tell you that it wasn’t recovered when the
police went to arrest Tiffany Taylor.
The Defendant didn’t say, “Oh yes, by the way, I did cut Jessica. It was
an accident. And here’s the keychain that was used during the struggle that we
had.” She didn’t produce that. If you were truly the victim of an accident and
you were trying to make things right with the police, wouldn’t you show them
what was involved? Trial Transcript, Vol. II p. 423 ln. 14-24.
{¶ 24} “ ‘The test regarding prosecutorial misconduct in closing arguments is whether
the remarks were improper and, if so, whether they prejudicially affected substantial rights of the
defendant.’ ” State v. Frazier, 73 Ohio St.3d 323, 341-342, 652 N.E.2d 1000 (1995), quoting
State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “[T]he closing argument must be
reviewed in its entirety” to determine prejudicial error. Frazier at 342, citing State v. Moritz, 63
Ohio St.2d 150, 157, 407 N.E.2d 1268 (1980).
A. The Prosecutor’s Remarks Were Not Improper
{¶ 25} “ ‘Parties are granted latitude in closing arguments, and the question as to the
propriety of these arguments is generally considered one falling within the sound discretion of the
trial court.’ ” Frazier at 341, quoting State v. Loza, 71 Ohio St.3d 61, 78, 641 N.E. 2d 1082(1994); State v. Maurer, 15 Ohio St.3d 239, 269, 473 N.E.2d 768 (1984). “It is not improper
for the prosecution, in closing, to point out the lack of evidence supporting the defense theory of
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the case.” State v. Jackson, 8th Dist. Cuyahoga No. 76141, 2000 WL 426556, *11 (April 20,
2000), citing State v. Williams, 23 Ohio St.3d 16, 20, 490 N.E.2d 906 (1986). “The prosecution is
not prevented from commenting upon the failure of the defense to offer evidence in support of its
case.” Williams at 20, citing Lockett v. Ohio, 438 U.S. 586, 595, 98 S.Ct. 2954, 57 L.Ed.2d 973(1978); State v. Lane, 49 Ohio St.2d 77, 86, 358 N.E.2d 1081 (1976).
{¶ 26} In this case, the prosecutor’s statement was not improper. When read in the
context of the entire closing argument, it is apparent that the prosecutor’s statement is not an
attempt by the prosecutor to shift the burden of proof. The prosecutor is simply pointing out the
fact that there is no evidence to support the Appellant’s claim that Tarrance was cut with a
corkscrew. There is nothing improper about this argument because the prosecution is permitted
to comment on the failure of the defense to offer evidence in support of its case.
B. The Prosecutor’s Remarks Did Not Prejudicially Affect the Substantial Rights of the
Appellant
{¶ 27} “For a prosecutor's closing argument to be prejudicial, the remarks must be ‘so
inflammatory as to render the jury's decision a product solely of passion and prejudice.’ ” State
v. Arrone, 2d Dist. Greene No. 2005 CA 89, 2006-Ohio-4144, ¶ 126, quoting Williams at 20.
Assuming arguendo that the prosecutor’s statement in this case was improper, reversible error
exists “only where it is clear beyond a reasonable doubt that, absent the prosecutor’s comments,
the jury would not have found appellant guilty.” State v. Benge, 75 Ohio St.3d 136, 142, 661
N.E.2d 1019 (1996), citing Loza, 71 Ohio St.3d at 78, 641 N.E.2d 1082.
{¶ 28} In this case, the record fails to indicate that the prosecutor’s statement impacted
the verdict. The jury still would have heard all the witness testimony regarding the knife. It
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would have also heard the 911 tape recording in which the Appellant admits to having a knife
and her plan to stab Jones and Tarrance. Given this evidence, it is not clear beyond a reasonable
doubt that the prosecutor’s statement changed the outcome of the trial, or prevented Appellant
from receiving a fair trial. Furthermore, the prosecution’s remarks were not of a nature to render
the jury’s decision a product solely of passion and prejudice.
{¶ 29} Based on the preceding discussion, the prosecutor’s statement was not improper
and it did not prejudicially affect the substantial rights of the Appellant. Accordingly we find no
prosecutorial misconduct. The Appellant’s Second Assignment of Error is overruled.
IV. Conclusion
{¶ 30} All of Appellant’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
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FROELICH and HALL, JJ., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Marshall G. Lachman
Hon. Mary Lynn Wiseman