State v. Graf , 2022 Ohio 2169 ( 2022 )

[Cite as State v. Graf, 2022-Ohio-2169.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29202
:
v. : Trial Court Case No. 2021-CRB-1933
:
ELIZABETH A. GRAF : (Criminal Appeal from Municipal Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 24th day of June, 2022.
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STEPHANIE L. COOK, Atty. Reg. No. 0067101 and ANDREW D. SEXTON, Atty. Reg.
No. 0070892, Assistant City of Dayton Prosecuting Attorneys, 335 West Third Street,
Room 119, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek,
Ohio 45434
Attorney for Defendant-Appellant
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TUCKER, P.J.
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{¶ 1} Elizabeth A. Graf appeals from her conviction of aggravated menacing
following a bench trial on charges of aggravated menacing and menacing.
{¶ 2} Graf contends the trial court erred in denying her a new trial after relying on
information outside the record to assess her credibility and find her guilty.
{¶ 3} We conclude that the trial court improperly found Graf’s trial testimony not
credible based on its observation of her out of court on prior occasions. The trial court
erred in relying on these other incidents to assess her credibility. The error violated Graf’s
due-process right to a fair trial. Accordingly, the trial court’s judgment will be reversed,
and the case will be remanded for a new trial.
I. Factual and Procedural Background
{¶ 4} Graf was charged by complaint with aggravated menacing, a first-degree
misdemeanor, and menacing, a fourth-degree misdemeanor. The charges involved her
allegedly making threats to the victim, Luanna Burt. The case proceeded to a June 22,
2021 bench trial. The first witness at trial was Burt. She testified that she was home sitting
at a table in her fenced yard on the evening of June 6, 2021, when she heard her dog
barking. Burt looked up and saw her dog at her fence line. On the other side of the chain-
link fence Burt saw Graf walking her own dog. Graf and her dog were just outside the
fence but in Burt’s yard. Graf appeared to be trying to provoke her dog to attack Burt’s
dog. Burt approached and asked Graf to walk her dog on the other side of the street
where there was a sidewalk. According to Burt, Graf responded with a barrage of
obscenities and racial slurs. Graf also unleashed her dog and sought to coax it into
attacking Burt. According to Burt, Graf then pulled a knife, pointed it at her, and threatened
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to kill her. Burt retreated to call the police. Graf left the scene but returned minutes later
in a car. Burt testified that Graf circled the block a few times and pulled up onto Burt’s
property before finally leaving.
{¶ 5} The prosecution’s next witness was Burt’s boyfriend, Jerome Arnold. He
testified that he was approaching Burt’s house on foot when he heard yelling. As he got
closer, he saw Graf and her dog near Burt’s chain-link fence. Arnold spoke to Graf and
tried to get her to continue on her way. He testified that she responded by directing
obscenities and racial slurs at him. Arnold decided to go inside Burt’s house. As he started
to do so, he saw Graf brandish a knife. He also heard her threaten to “gut” Burt. According
to Arnold, Graf left but returned minutes later in a car. She pulled up over the curb in the
grass while honking her horn and yelling.
{¶ 6} The final prosecution witness was Roy Barber, a neighbor. Barber testified
that he lived two doors down from Burt. He went outside on his front porch after hearing
“loud mouth cussing.” He recalled seeing Graf and her dog across the street on a sidewalk
where Graf was yelling obscenities and racial slurs at Burt. At one point, Barber saw Graf
unleash her dog and shake the leash at Burt. Although Barber did not see Graf with a
knife, he heard Burt say “oh, she’s got a weapon.” According to Barber, Burt then went
inside her house and Graf left with her own dog. Barber testified Graf returned minutes
later in a car, honking her horn and screaming. On cross-examination, Barber stated that
he did not see Burt’s dog outside. He also reiterated that he saw Graf and her dog across
the street on a sidewalk, where they remained throughout his observation. Following
Barber’s testimony, the prosecution rested.
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{¶ 7} Graf then testified in her own defense. She explained that she was walking
her dog, a “rescue lab,” on the sidewalk near Burt’s property. As she did so, Burt’s dog
became excited and started barking. According to Graf, Burt responded by yelling at her
and “running out of the fence.” Graf testified that she was scared, that she asked to be
left alone, and that she tried to continue on her walk. Graf denied threatening Burt in any
way and specifically denied threatening to kill or “gut” her. Graf denied even possessing
a knife during the incident. She also testified that she did not have a knife in her
possession when police arrested her later that evening. On cross-examination, Graf
denied raising her voice at Burt, calling Burt any names, unleashing her dog, or returning
in a car.
{¶ 8} After hearing arguments from counsel, the trial court ruled from the bench
and found Graf guilty of aggravated menacing and menacing. In support, the trial court
reasoned:
* * * I do find the testimony of the three witnesses to be credible. I do
not find the defendant’s testimony to be credible in this case. I will note that
this court, myself, I have experienced Ms. Graf, out here at our warrant
enforcement window with extremely erratic and unexplainable behavior, so
I know there is some components there. I know she is prone to that. I know
we’ve had at least two or three incidents with her on cases that she did not
have and that did not exist, but she was here yelling at our warrant
enforcement office. And I’ve had to ask her myself, multiple times, to leave
the building. So, I know Ms. Graf is capable of that type of behavior. So, I
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do find the State has met its burden in proving guilty beyond a reasonable
doubt. Will enter findings of guilty as to both charges. * * *
Trial Tr. at 60-61.
{¶ 9} Prior to sentencing, Graf moved for a new trial under Crim.R. 33 and for
voluntary recusal of the judge who presided over her trial. The trial court heard arguments
on the motion on July 8, 2021. Graf’s motion was predicated on the trial court’s resolving
witness credibility based on its out-of-court prior interactions with her. Graf claimed that
the trial court’s remarks revealed an improper bias against her testimony. The trial court
rejected Graf’s argument, insisting that its credibility determination was based solely on
the testimony presented. In support of its ruling, the trial court stated:
Ok. The court, as we do with every jury and as I’ve made every effort
to in my fifteen years on the bench, decided this case solely on the evidence
presented here in this courtroom. Although the court did have prior
interactions with Ms. Graf, the court did not use any of those interactions to
weigh her credibility here in court. None of those prior actions had anything
to do with credibility or her credibility or testing her credibility here in court.
The court—all of the judges in this court have situations where we’ve had
defendants in front of them for prior cases. We’ve made decisions on their
cases in prior cases. We must lay all of that aside when hearing new cases.
We hear these cases based upon the evidence solely presented during the
case. That is what I did in this case. * * *
July 8, 2021 Tr. at 14.
{¶ 10} The trial court proceeded to set forth a rationale, based on the trial testimony
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presented, for finding the State’s witnesses to be more credible than Graf. Id. at 15-16.
The trial court then insisted again that its verdict was based exclusively on the evidence
presented, stating:
* * * Everything in this case was decided solely on the testimony
presented in court. The evidence presented in court. That is where the
issues of credibility came up. None of the other issues were factored in with
regards to the determination of the defendant’s guilt in this case. Having
only seeing [sic] Ms. Graf on one or two occasions for literally seconds, I
don’t know her. I have no ill will towards her. She doesn’t live in my
neighborhood. She is just another defendant in this court. So I am going to
overrule the motion at this point and maintain the guilty finding in this case.
And then deny the motion for voluntary recusal, as well. * * *
Id. at 16-17.
{¶ 11} The trial court later merged aggravated menacing and menacing as allied
offenses of similar import for sentencing. The prosecution elected to proceed on
aggravated menacing. The trial court imposed a partially-suspended jail term and ordered
Graf to serve two years of supervised probation. It also imposed a fine and ordered Graf
to pay court costs. Finally, the trial court overruled Graf’s motion to stay execution of
sentence pending appeal.1
II. Analysis
1
Graf’s act of seeking a stay of execution in the trial court precludes any possible
argument about her appeal being moot. Cleveland Heights v. Lewis, 129 Ohio St.3d 389,
2011-Ohio-2673, 953 N.E.2d 278, ¶ 24-26.
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{¶ 12} In her sole assignment of error, Graf challenges the trial court’s denial of
her new-trial motion. She notes that the trial court explicitly referenced its own prior
experiences with her when resolving the conflicting evidence and finding her guilty. She
argues that the trial court allowed its prior knowledge of her to contaminate the proceeding
and to create at least an appearance of improper bias or partiality.
{¶ 13} For its part, the State contends the trial court’s challenged comments do not
warrant a new trial. The State argues that the testimony of its witnesses established the
elements of the charged offenses. The State also cites the trial court’s assertion at the
post-trial hearing that its verdict was based solely on the evidence presented. Finally, the
State claims there is no reasonable probability that the outcome would have been
different but for the trial court’s remarks about Graf’s prior behavior.
{¶ 14} Typically, we review a trial court’s ruling on a Crim.R. 33 new-trial motion
for an abuse of discretion. State v. Russell, 2d Dist. Clark No. 2020-CA-17, 2021-Ohio-
4106, ¶ 29. However, when the motion alleges a violation of a defendant’s due-process
right to a fair trial, de novo review applies. This is so because whether a constitutional
due-process violation exists involves a legal question. State v. Bentz, 2017-Ohio-5483,
93 N.E.3d 358, ¶ 134-135 (3d Dist.); see also State v. Smith, 2d Dist. Montgomery No.
27853, 2018-Ohio-4691, ¶ 24-25 (applying de novo review to denial of new-trial motion
alleging a due-process violation based on the prosecution’s suppression of evidence
favorable to the accused); State v. Johnson, 1st Dist. Hamilton No. C-990482, 2000 WL
1714213, *6 (Nov. 17, 2000) (“If the ruling on the [new-trial] motion requires the exercise
of discretion, e.g., what was done or not done, said or not said, * * * then a trial court will
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be reversed only upon a showing of abuse of that discretion. * * * Where the resolution of
the issues within a motion for a new trial does not involve discretion, the trial court’s
decision must be shown to be erroneous as a matter of law.”).2
{¶ 15} “It is well settled that a criminal trial before a biased judge is fundamentally
unfair and denies a defendant due process of law.” State v. LaMar, 95 Ohio St.3d 181,
2002-Ohio-2128, 767 N.E.2d 166, ¶ 34, citing Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct.
3101, 92 L.Ed.2d 460 (1986). Judicial bias has been characterized as “ ‘a hostile feeling
or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney,
with the formation of a fixed anticipatory judgment on the part of the judge, as
contradistinguished from an open state of mind which will be governed by the law and the
facts.’ ” State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, quoting State
ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the
syllabus.
{¶ 16} “If the record evidence indicates that the trial was infected by judicial bias,
the remedy is a new trial.” State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 73
N.E.3d 414, ¶ 43, citing Dean at ¶ 2. “In determining whether purported judicial bias
resulted in a due process violation, we presume that a judge is unbiased and unprejudiced
in the matters over which he or she presides, and the appearance of bias or prejudice
must be compelling in order to overcome the presumption.” (Citations omitted.) Cleveland
v. Goodman, 8th Dist. Cuyahoga Nos. 108120, 108678, 2020-Ohio-2713, ¶ 18.
2
Parenthetically, we note that we would reach the same conclusion based on our
analysis herein even if we were to apply abuse-of-discretion review to the trial court’s
denial of Graf’s new-trial motion.
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{¶ 17} Judicial bias does not necessarily arise when a judge forms an opinion
based on facts or events occurring in a prior judicial proceeding. The issue is whether the
prior opinion results in a “deep-seated” antagonism that makes a fair judgment
impossible. Dean at ¶ 49, citing Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct.
1147, L.Ed.2d 474 (1994). Likewise, a judge’s remarks critical or disapproving of a party
do not necessarily establish bias or partiality. However, such remarks may support a bias
or partially charge “if they reveal an opinion that derives from an extrajudicial source,” and
they will support a challenge if they reveal a degree of antagonism that makes a fair
judgment impossible. Id.{¶ 18} Even if a judge holds a negative opinion about a litigant, “[j]udges are
expected to be able to keep their prior opinions from intruding on their duties to fairly and
impartially decide each case.” In re Disqualification of Vercillo, 137 Ohio St.3d 1237,
2013-Ohio-5763, 1 N.E.3d 414, ¶ 5. In other words, “ ‘a judge is presumed to be capable
of separating what may properly be considered from what may not be considered.’ ” Id.,quoting In re Disqualification of Basinger, 135 Ohio St.3d 1293, 2013-Ohio-1613, 987
N.E.2d 687, ¶ 5.
{¶ 19} The problem in the present case is that the trial court’s challenged remarks
establish that it based its assessment of Graf’s credibility on the judge’s prior interaction
with her outside of the courtroom. Indeed, the trial court explicitly linked its credibility
determination to the judge’s prior experiences with her. The trial court cited its prior out-
of-court observations of Graf engaging in “extremely erratic and unexplainable behavior”
and professed its knowledge that “she is prone to that.” After citing specific examples of
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Graf engaging in erratic behavior, the trial court concluded: “So, I know Ms. Graf is
capable of that type of behavior. So, I do find the State has met its burden in proving guilty
beyond a reasonable doubt.” Trial Tr. at 60-61.
{¶ 20} In our view, the trial court erred in assessing the credibility of Graf’s
testimony based at least in part on its prior out-of-court observations and experiences
with her. The trial court’s remarks demonstrate that it did not set aside any preconceived
opinions or views regarding Graf. To the contrary, it cited and relied on its prior
observations and interactions with her as a basis for finding her testimony not credible.
Under these circumstances, we are compelled to find a violation of Graf’s due-process
right to a fair trial. Credibility determinations must be made impartially based on the
testimony and other evidence presented, not based on a fact-finder’s prior out-of-court
interactions with a defendant. This is particularly true in the present case, which
essentially involved weighing Graf’s testimony against the testimony of Burt and Arnold,
the only two witnesses who claimed to have seen her threaten Burt with a knife.
{¶ 21} Although the trial court denied during the post-trial hearing that it relied on
its prior interactions with Graf to weigh her credibility, this denial is belied by the trial
court’s own remarks at the conclusion of her trial. The trial court also insisted at the
hearing that it did set aside its prior knowledge about Graf when deciding the case. But,
again, the trial court’s comments at the conclusion of trial are at odds with this assertion.
Because the trial court’s denial of partiality or bias is controverted by the trial transcript,
we conclude that Graf has overcome the presumption of impartiality with regard to the
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trial court’s assessment of her credibility.3
{¶ 22} In reaching our decision, we reject the State’s passing assertion that there
is no reasonable probability the outcome would have been different but for the trial court’s
“innocuous statements.” Graf properly raised the issue of judicial bias and sought a new
trial under Crim.R. 33. The record persuades us that the trial court’s statements were not
innocuous. Rather, the trial court explicitly weighed the competing testimony and
evaluated credibility based on its prior out-of-court interactions with Graf. Therefore, Graf
established grounds for relief based on a due-process violation of her right to a fair trial.
The only way to find no reasonable probability that the outcome would not have been
different if the trial court had not improperly assessed credibility would be for us to weigh
the competing testimony ourselves, to make our own credibility assessments, and to
declare the prosecution witnesses credible. But witness credibility primarily is a matter for
the trier of fact to resolve, and we give substantial deference to the fact-finder’s
determination. Buckeye Retirement Co., LLC, Ltd. v. Busch, 2017-Ohio-4009, 82 N.E.3d
66, ¶ 106 (2d Dist.).
{¶ 23} We note too that the evidence was not overwhelming or undisputed enough
to find no reasonable probability of a different outcome if the trial court properly had
evaluated witness credibility. To be sure, portions of Graf’s testimony were questionable.
She denied raising her voice, calling Burt any names, or returning to Burt’s house in her
3
Although a court of appeals has no authority to hear a disqualification matter or to
declare a trial court’s judgment void on the basis of judicial bias, we note that “a trial
court’s judgment may be reversed due to bias if the bias or prejudice violated the
defendant’s right to due process and deprived the defendant of a fair hearing. Goodman,
8th Dist. Cuyahoga Nos. 108120, 108678, 2020-Ohio-2713, at ¶ 15-16.
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car. According to Graf, she did nothing objectionable and simply attempted to walk her
dog past Burt’s house. On the other hand, portions of the testimony from Burt and Arnold
also reasonably could be questioned. Burt and Arnold both claimed that Graf was in Burt’s
yard near the chain-link fence. But Burt’s neighbor, Roy Barber, testified that Graf
remained across the street on a sidewalk. On the crucial issue of whether Graf threatened
Burt with a knife, which seems to be the basis of the misdemeanor charges, Graf testified
that she did not have a knife in her possession at the time of the incident or later when
she was arrested. Conversely, Burt and Arnold testified that Graf did brandish a knife.
Barber, the most objectively-neutral witness, testified that he did not see Graf in
possession of a knife. Whether Graf would have been found guilty of aggravated
menacing and menacing if the trial court had made its credibility determinations impartially
based solely on the testimony presented in court is at least questionable.
{¶ 24} In any event, we note that “[t]he presence of a biased judge on the bench
is, of course, a paradigmatic example of structural constitutional error, which if shown
requires reversal without resort to harmless-error analysis.” State v. Sanders, 92 Ohio St.
3d 245, 278, 750 N.E.2d 90 (2001), citing Arizona v. Fulminante, 499 U.S. 279, 309-310,
111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); see also State v. Stafford, 158 Ohio App. 3d
509, 2004-Ohio-3893, 817 N.E.2d 411, ¶ 58 (1st Dist.) (“A biased trial court is a structural
constitutional error and, if shown, requires reversal without resorting to a harmless-error
analysis.”). At least when an objection has been raised in the trial court, structural error
“is grounds for automatic reversal.” State v. West, Ohio Slip Opinion No. 2022-Ohio-1556,
__ N.E.3d __, ¶ 2.
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{¶ 25} Here Graf did not object to the trial court’s comments during trial. She could
not do so given that the challenged credibility assessment came after trial when the trial
court was announcing its rationale for a guilty verdict. We fail to see how Graf
meaningfully could have objected to the trial court’s explaining the basis for its decision.
The trial court already had made its credibility determination, and Graf realistically could
not ask it to form a different opinion about her and become unbiased. By expressing the
views that it did, the trial court overtly demonstrated that it was incapable of setting aside
its preconceptions about Graf. Therefore, she pursued the best option available to her:
while still in the trial court, she moved for a new trial after the verdict and before
sentencing.
{¶ 26} Under these circumstances, we believe Graf preserved the issue of
structural error in the form of judicial bias, meaning that reversal would be automatic
notwithstanding the language of Crim.R. 33 providing for relief when an error materially
affects a defendant’s substantial rights. As the Ohio Supreme Court recognized in Dean,
127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, where a defendant does not receive
a fair trial from an impartial judge, “the remedy is a new trial.” Id. at ¶ 2. In essence, the
trial court’s violation of Graf’s due-process right to a fair trial necessarily affected her
substantial rights. For each of the foregoing reasons, Graf’s assignment of error is
sustained.
III. Conclusion
{¶ 27} Having sustained Graf’s assignment of error, we reverse the judgment of
the Dayton Municipal Court, Criminal Division, and remand the case for a new trial.
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DONOVAN, J. and EPLEY, J., concur.
Copies sent to:
Stephanie L. Cook
Andrew D. Sexton
Robert Alan Brenner
Hon. Christopher D. Roberts