State v. Secessions , 196 Ohio App. 3d 741 ( 2011 )

[Cite as State v. Secessions, 196 Ohio App. 3d 741, 2011-Ohio-6066.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
THE STATE OF OHIO, C.A. No. 25754
Appellee,
v. APPEAL FROM JUDGMENT
ENTERED IN THE
SECESSIONS, COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant. CASE No. CR 10 04 1055 (A)
DECISION AND JOURNAL ENTRY
Dated: November 23, 2011
APPEARANCES:
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Heaven
DiMartino, Assistant Prosecuting Attorney, for appellee.
J. Reid Yoder, for appellant.
DICKINSON, Judge.
INTRODUCTION
{¶1} After leaving her job for the night, Malissa Smith-Cage drove her coworker
Dedosha Smith, Smith’s boyfriend Timothy Secessions, and Secessions’s friend
Gordon Mosley to an after-hours bar. At the bar, Smith told Smith-Cage that she had
lost some money in Smith-Cage’s car, so Smith-Cage helped her look for it. As Smith-
Cage was looking under the driver’s seat, Secessions allegedly grabbed her neck from
behind and demanded her money. The grand jury indicted Secessions for aggravated
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robbery and robbery. A jury found him guilty of robbery, and the trial court sentenced
him to eight years in prison. Secessions has appealed, assigning as error that the trial
court incorrectly failed to declare a mistrial, that the state willfully failed to disclose
evidence, that his conviction is not supported by sufficient evidence, and that the jury’s
verdict was against the manifest weight of the evidence. We affirm because
Secessions has not established that the trial court committed plain error when it did not
declare a mistrial sua sponte, that the undisclosed evidence prejudiced his defense, that
his conviction is not supported by sufficient evidence, or that the jury’s verdict was
against the manifest weight of the evidence.
FACTS
{¶2} Smith-Cage testified that she was working at a club on the evening of April
10, 2010, when Smith asked if Smith-Cage could give her a ride after they were
finished. Smith-Cage agreed to take Smith because she thought she just needed a ride
home and it would not be out of her way. When the time came to go, Smith asked
Smith-Cage if she could take Secessions and Mosley too because the men had been
waiting for her. Smith-Cage eventually agreed.
{¶3} Smith-Cage testified that she did not know exactly where Smith wanted to
go so she followed her instructions as she drove. At some point they stopped for gas.
She testified that Smith guided her to an after-hours bar and asked her to drop them off.
By then, Smith-Cage had to use the bathroom, so she got out of the car with the others
and walked to the building. As she got near the door, she felt uncomfortable, so she
decided to return to her car. Before she could leave, Smith stopped her and told her
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that she thought she had dropped some money in the car. Smith-Cage, therefore,
helped Smith look for the money.
{¶4} According to Smith-Cage, she looked in the front of the car, then got out to
move the driver’s seat forward. As she was looking under the seat, Secessions
suddenly grabbed her neck from behind and started choking her. He pushed her into
the back of the car, grabbed her keys from her hand, and continued choking her. Smith,
meanwhile, got in the front passenger seat and began going through the car’s glove box
and console, looking for money and encouraging Secessions. Because Secessions
had his hands around her neck, Smith-Cage could not speak, but she pulled her shirt
down to show him that she had money tucked inside her bra. Secessions grabbed the
money and left. From the back of the car, Smith-Cage reached for her cellular phone,
which was in the center console, and got into a struggle with Smith, who had seen her
reaching for it. Smith-Cage testified that she won the struggle, that Smith fled the car,
and that she then called 9-1-1.
{¶5} Smith told an entirely different story. She testified that as Smith-Cage was
turning into the after-hours parking lot, she turned too sharply and almost drove into a
ditch. The car’s sudden stop tipped her purse over and spilled its contents on the floor.
Smith tried to pick everything up, but, apparently, did not see the money. She testified
that after Smith-Cage parked the car, the four of them entered the after-hours bar and
ordered drinks. When she tried to pay for her drink, however, she noticed that her
money was missing and told Smith-Cage that it must be in the car. Smith-Cage and
she went out to the car to look for it, with Smith going to the passenger’s side and
Smith-Cage going to the driver’s side.
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{¶6} Smith testified that before she could look in the car, she noticed that her
food-assistance-benefits card was on the ground next to it. She picked up the card and
turned to start looking in the car when she saw Smith-Cage pick up her money and put
it in her bra. Smith-Cage would not give the money back, so she started arguing with
her. At some point, Secessions exited the after-hours bar, learned what had happened,
and confronted Smith-Cage. When Smith-Cage got too close to him, Secessions
grabbed her by the neck and shoved her to the ground. At that point, Smith convinced
Secessions to leave with her, deciding she could bring the issue up again the next time
she saw Smith-Cage at work. She reentered the after-hours bar, Secessions paid for
their drinks, and then she, Secessions, and Mosley walked together to their houses,
which were only a few blocks away. As they were leaving, Smith-Cage threw her keys
at them and hit Secessions, so Smith picked up the keys and threw them in a field.
{¶7} Mosley testified that everyone entered the after-hours bar together and
ordered drinks. At some point the others got up and went outside, so he followed them.
When he got outside, he saw Smith-Cage “brushing up” on Secessions, “talking about
mak[ing] something right.” Secessions pushed Smith-Cage to get her off him. Smith,
Secessions, and he went back inside the after-hours bar, paid for their drinks, and then
walked home. He did not hear everything that the others were talking about outside, but
thought it was about lost money.
{¶8} Police officer Brent Heller testified that he was the first one to arrive after
Smith-Cage called 9-1-1. He said it was difficult to talk to Smith-Cage because “she
was crying, holding her throat, trying to breathe; she’s wheezing, you know, gasping for
air.” Smith-Cage told him, however, that Secessions had choked her and had taken her
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keys out of the car’s ignition. He said that because her skin tone is dark, he could not
see any discoloration, but could tell that “her neck was a little puffy.” He also testified
that it looked like the stuff in her car had been gone through, with everything that had
been in the glove box thrown onto the front passenger’s seat.
{¶9} Paramedic Brian Dusseau testified that he examined Smith-Cage outside
the after-hours bar. He said that she told him she had been choked with two hands for
a minute and complained of neck pain. Her pulse was 120. Although he did not see
any external injuries, he testified that it can take some time for bruises to appear. He
also said that he recommended to Smith-Cage that she go to the hospital for further
evaluation.
{¶10} Detective John Ross testified that he spoke to Smith-Cage while she was
waiting to see a doctor at the hospital and saw ligature marks across her throat. He
took a statement from her, then drove her home because she wanted to go home more
than wait to see a doctor. He returned to her house later that day to ask Smith-Cage
additional questions and take pictures of her neck. He also testified that the police had
to tow her car because they were concerned Secessions might return to the parking lot
and take it.
{¶11} The grand jury indicted Secessions and Smith for aggravated robbery and
robbery, and they were tried together to a jury. At the conclusion of the state’s case, the
trial court granted the defendants’ motions for directed verdict on the aggravated-
robbery charges. The jury found Secessions guilty of robbery, and the trial court
sentenced him to eight years in prison. He has appealed his conviction, assigning four
errors.
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MISTRIAL
{¶12} Secessions’s first assignment of error is that the court should have
declared a mistrial because the limiting instruction it gave regarding inadmissible
hearsay testimony by Smith-Cage was not sufficient to cure the prejudicial effect of the
testimony. Smith-Cage testified that after Secessions and Smith were indicted, Smith’s
brother came to her workplace “to offer me money not to come to court.” The
defendants objected, the trial court granted their motion to strike, and the court
instructed the jury to “disregard” and “ignore” Smith-Cage’s answer. Secessions has
argued that Smith-Cage’s statement was so inflammatory that the court’s instruction
was insufficient to cure the prejudice it may have aroused against him in the minds of
the jury.
{¶13} The Ohio Supreme Court has held that “ ‘[a]ttempts by persons other than
the accused to bribe witnesses * * * are evidence against the accused when, but only
when, it is proven that he was connected with such attempts. Acts and statements of
third persons, not known or authorized by him, are inadmissible.’ ” State v. Smith, 49
Ohio St. 3d 137, 143 (1990), quoting State v. Walker, 55 Ohio St. 2d 208, 215 (1978). In
this case, there was no evidence that Secessions or Smith was connected with Smith’s
brother’s attempt to bribe Smith-Cage. The trial court, therefore, correctly struck Smith-
Cage’s testimony and instructed the jury to ignore it.
{¶14} The next question is whether the trial court should not only have struck
Smith-Cage’s testimony, but also should have declared a mistrial. “It is well settled that
a trial court may grant a mistrial sua sponte or on motion by the parties when ‘there is a
manifest necessity for the act, or the ends of public justice would otherwise be
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defeated.’ ” State v. Herrington, 9th Dist. No. 25150, 2010-Ohio-6455, at ¶ 36, quoting
Cleveland v. Walters, 98 Ohio App. 3d 165, 168 (1994). We note that neither
Secessions’s nor Smith’s lawyers asked the court to declare a mistrial. Accordingly, we
review its failure to declare a mistrial for plain error. Id. Plain errors must be noticed
“with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” State v. Long, 53 Ohio St. 2d 91, 97 (1978).
{¶15} There are no exact standards to apply in evaluating whether a trial court
should declare a mistrial in a particular case. State v. Plant, 9th Dist. No. 2599, 1991
WL 81650, at *2 (May 15, 1991). “Instead, the law grants great deference to the trial
court’s discretion in this area, in recognition of the fact that the trial judge is in the best
position to determine whether the situation in his courtroom warrants the declaration of
a mistrial.” Id. According to the Ohio Supreme Court, “ ‘the law has invested Courts of
justice with the authority to discharge a jury from giving any verdict, whenever, in their
opinion, taking all the circumstances into consideration, there is a manifest necessity for
the act, or the ends of public justice would otherwise be defeated. They are to exercise
a sound discretion on the subject; and it is impossible to define all the circumstances,
which would render it proper to interfere. To be sure, the power ought to be used with
the greatest caution, under urgent circumstances, and for very plain and obvious
causes.’ ” State v. Widner, 68 Ohio St. 2d 188, 190 (1981), quoting United States v.
Perez, 22 U.S. 579, 580 (1824).
{¶16} Secessions has argued that his case is similar to State v. Talbert, 33 Ohio
App.3d 282 (1986). In that case, Chester Matthews hired attorney Bonford Talbert to
represent him in an eviction action. When Talbert visited the apartment complex’s
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rental manager, he allegedly kissed her and attempted to put his hand on her breast.
To obtain corroborating evidence, the police arranged a telephone call between the
rental manager and Talbert. Talbert was charged with sexual imposition based on the
statements he made during their conversation.
{¶17} At trial, the rental manager testified that Talbert, a former municipal-court
judge, told her that he “would pay anybody off to do anything for him in court.” Talbert
at 285. Talbert’s lawyer did not object, but the trial court found the testimony so
inflammatory that it stopped the trial to admonish the jury to disregard it. Talbert’s
lawyer then moved for a mistrial, but the trial court denied the motion after it polled the
jury to determine whether it could ignore the statement when considering the merits of
the case.
{¶18} The Third District Court of Appeals concluded that even though Talbert’s
lawyer did not initially object to the rental manager’s statement, under the
circumstances of the case, the declaration of a mistrial was the “only alternative to meet
the ends of justice.” Talbert, 33 Ohio App. 3d at 286. It explained that although the
jurors said they could ignore the remark, “[t]he fact remains that a former municipal
court judge from their own city, one well associated with the inner workings of the very
court in which he was on trial, had been accused of being able to obtain a favorable
verdict through bribery.” Id. Denying that it was giving Talbert special consideration,
the court reasoned that “the trial of a former official under these circumstances is
inherently fraught with the possibility of error.” Id. “Whereas the nature of the
statements complained of would be severe in any case, the prejudicial implication is
clearly heightened in this case. Ultimately, if the public is to have the security in the
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faithful, sound, and conscientious exercise of justice within the judicial system, all
parties must have the promise of a trial free of the unwarranted taint of partiality among
the jurors. Absent such a promise, the accused is denied a valued right and the public’s
interest in fair trials may be subordinated.” Id.
{¶19} The alleged bribery attempt in this case does not involve a former judge or
raise inherent questions about the integrity of the court system. It also does not involve
a bribery attempt by Secessions himself, but a family member of a co-defendant. Unlike
in Talbert, Smith-Cage’s single statement about Smith’s brother’s actions was not so
inflammatory regarding Secessions’s case to overcome the presumption that the jury
followed the trial court’s curative instructions. State v. Garner, 74 Ohio St. 3d 49, 59
(1995) (“A jury is presumed to follow the instructions, including curative instructions,
given it by a trial judge”). We conclude that Secessions has not demonstrated that his
case involves such exceptional circumstances that the trial court’s failure to sua sponte
declare a mistrial resulted in a miscarriage of justice. See State v. Smith, 49 Ohio St.
3d 137, 144 (1990) (concluding that “relatively short reference made to the jury
regarding [a] bribe attempt was harmless beyond a reasonable doubt”). Secessions’s
first assignment of error is overruled.
DISCOVERY
{¶20} Secessions’s second assignment of error is that the prosecution willfully
failed to disclose evidence that it was required to produce under Crim.R. 16,
substantially prejudicing his defense. He has argued that the state failed to tell him that
Smith-Cage told a prosecutor that Smith’s brother and the mother of Secessions’s
children had offered her money not to testify.
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{¶21} After Smith-Cage testified about Smith’s brother’s bribery attempt and
Smith’s lawyer objected, the trial court held a sidebar. The prosecutor explained that
she had been talking with Smith-Cage the previous day when Smith-Cage told her
about the attempted bribe. The prosecutor revealed that Smith-Cage also told her that
the mother of Secessions’s children had attempted to offer her money not to testify, but
said that she had not planned on asking Smith-Cage about that conversation.
Secessions’s lawyer told the court that the prosecutor had not told him about either of
the alleged bribery attempts.
{¶22} Under Crim.R. 16(B)(7), upon written demand, the prosecution must
provide a defendant with “[a]ny written or recorded statement by a witness in the state’s
case-in-chief.” While the rule mentions only written or recorded statements, the Ohio
Supreme Court has held that the state must also disclose oral statements, even though
they “may have not been actually reduced to a written summary.” State v. Parson, 6
Ohio St. 3d 442, 445 (1983); State v. Logan, 9th Dist. No. 18958, 1998 WL 668187, at *2
(Sept. 30, 1998). “Prosecutorial violations of Crim.R. 16 are reversible only [if] there is a
showing that (1) the prosecution’s failure to disclose was a willful violation of the rule,
(2) foreknowledge of the information would have benefited the accused in the
preparation of his defense, and (3) the accused suffered some prejudicial effect.” State
v. Joseph, 73 Ohio St. 3d 450, 458 (1995).
{¶23} Secessions has argued that the prosecutor’s question to Smith-Cage and
her statements at sidebar demonstrate that she knew about the bribery attempts before
trial and willfully violated the discovery rule. He has also argued that if he had known
about Smith-Cage’s allegations earlier, he could have used them to attack her credibility
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or called Smith’s brother to contradict her. He has further argued that even though the
trial court struck Smith-Cage’s answer and gave a curative instruction, the instruction
was insufficient to cure the testimony’s prejudicial effect.
{¶24} Secessions’s trial began on December 6, 2010, but Smith-Cage did not
testify until the next day. During the sidebar, the prosecutor said that Smith-Cage told
her about the bribery attempts “yesterday,” that is, the day trial began. Accordingly,
there is nothing in the record to suggest that the prosecution knew about Smith-Cage’s
allegations before trial. Of course, upon learning about Smith-Cage’s allegations, the
prosecutor should have told the defendants about them, even though the trial had
already begun.
{¶25} Regarding whether Secessions suffered any prejudice from not learning
about Smith-Cage’s accusations a day earlier, we note that during the sidebar, Smith’s
lawyer told the court that Smith-Cage’s testimony had put them “in a position where we
have to bring someone in to rebut this and if the State is going to go ahead * * * with
the line of questioning, surely the Court has to permit us to bring in witnesses who
would rebut anything about this statement.” The court replied: “I don’t see a problem
with that.” When the prosecutor explained that she did not have any further questions
on the subject, Smith’s lawyer declared that “[w]e may not touch it if that’s all th[ere] is.”
Secessions’s lawyer did not say anything about the issue at that point, but later
“join[ed]” Smith’s lawyer’s argument “[t]o avoid duplication.”
{¶26} After learning about Smith-Cage’s allegations, Secessions did not move
for additional time to prepare his cross-examination or to locate Smith’s brother.
Accordingly, he has not established that he would have altered his defense strategy if
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he had learned about the allegations earlier. Because Secessions has not
demonstrated that “foreknowledge of the information would have benefited [him] in the
preparation of his defense,” we conclude that the prosecutor’s failure to tell him about
Smith-Cage’s allegations was not prejudicial. State v. Joseph, 73 Ohio St. 3d 450, 458
(1995). Secessions’s second assignment of error is overruled.
ROBBERY
{¶27} Secessions’s third assignment of error is that the evidence presented at
trial was insufficient to support his conviction for robbery. Whether a conviction is
supported by sufficient evidence is a question of law that this court reviews de novo.
State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997); State v. West, 9th Dist. No.
04CA008554, 2005-Ohio-990, at ¶ 33. We must determine whether, viewing the
evidence in a light most favorable to the prosecution, it could have convinced the
average finder of fact of Secessions’s guilt beyond a reasonable doubt. State v. Jenks,
61 Ohio St. 3d 259, paragraph two of the syllabus (1991).
{¶28} The elements of robbery are contained in R.C. 2911.02. Under R.C.
2911.02(A), “[n]o person, in attempting or committing a theft offense * * * shall * * *
[i]nflict * * * physical harm on another [or] [u]se * * * force against another.” Although
many crimes qualify as “[t]heft offense[s],” the state alleged that Secessions violated
R.C. 2913.02(A)(1). See R.C. 2913.01(K) (defining theft offense). Under that section,
“[n]o person, with purpose to deprive the owner of property * * *, shall knowingly obtain
or exert control over * * * property * * * [w]ithout the consent of the owner.”
{¶29} Secessions has noted that the keys and money he allegedly took from
Smith-Cage were never recovered. He has argued that considering that he was
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arrested less than 24 hours after the alleged robbery, if he had actually taken Smith-
Cage’s money and keys, they would have been found in his possession when he was
arrested. According to Secessions, because he did not have Smith-Cage’s possessions
when he was arrested, there was no evidence that he had exerted control over them.
{¶30} To satisfy the elements of robbery, the state needed to present evidence
that Secessions “obtain[ed]” or “exert[ed] control” over Smith-Cage’s property. R.C.
2911.02(A) and 2913.02(A)(1). We have defined the term “obtain” to mean “ ‘to get, to
secure possession of.’ ” State v. Toney, 9th Dist. No. 04CA0013, 2004-Ohio-4877, at
¶ 18, quoting State v. Healy, 156 Ohio St.229, 239 (1951). Smith-Cage testified that
Secessions took her car keys from her hand and her money from her bra. We have no
hesitation concluding that those actions constituted “obtain[ing]” her property under R.C.
2913.02(A)(1). The fact that Secessions did not have possession of them at the time he
was arrested is immaterial. Secessions’s third assignment of error is overruled.
MANIFEST WEIGHT
{¶31} Secessions’s fourth assignment of error is that his conviction is against the
manifest weight of the evidence. If a defendant argues that his conviction is against the
manifest weight of the evidence, we “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[s] must be reversed
and a new trial ordered.” State v. Otten, 33 Ohio App. 3d 339, 340 (1986).
{¶32} Secessions has argued that Smith-Cage’s testimony was less credible
than Smith’s and Mosley’s testimony. According to him, there were inconsistencies in
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what she told the paramedic and police officers after they arrived. He has also argued
that if he had choked her as much as she claimed, her injuries would have been more
extensive than how they appeared in the photographs Detective Ross took.
{¶33} Secessions is correct that there were some inconsistencies in the
testimony of the state’s witnesses. According to Dusseau, Smith-Cage told him that
Secessions choked her for one minute and that she had drunk a 40-ounce beer earlier
that night. At trial, she testified that Secessions choked her for two to three minutes and
that although she had consumed a couple of alcoholic drinks, she had not had a 40-
ounce beer. According to Officer Heller, she told him that she dropped the others off at
the after-hours bar and drove back to it when they called her about Smith’s missing
cash. At trial, Smith-Cage testified that she exited the car with the others and was going
to enter the after-hours bar to use the bathroom until she changed her mind. Officer
Heller also testified that Smith-Cage told him that Secessions took the keys to her car
from the ignition. At trial, she testified that he took them from her hand.
{¶34} Officer Heller explained that it was difficult to take Smith-Cage’s statement
or piece together a story about what had happened because she was crying, holding
her throat, wheezing, and gasping for air. He thought she might be having an asthma
attack because of her difficulty breathing. He also explained that his goal was to gather
information as quickly as he could while the paramedics treated Smith-Cage so he
could notify other officers in case there were any suspects still in the area. Accordingly,
the jury could have reasonably attributed the inconsistencies between Dusseau’s and
Officer Heller’s reports and Smith-Cage’s testimony to the manner and the
circumstances under which the information was collected.
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{¶35} During their closing arguments, Secessions’s and Smith’s lawyers pointed
out each of the inconsistencies between what Smith-Cage testified and what she had
told Officer Heller, Dusseau, and Detective Ross the night of the event. The jury
reviewed the evidence, including Smith-Cage’s 9-1-1 call and the photographs of her
injuries, and concluded that she was credible. Upon review of the record, we are
unable to say that it clearly lost its way. Secessions’s fourth assignment of error is
overruled.
CONCLUSION
{¶36} Smith-Cage’s statement about Smith’s brother’s bribery attempt was not
so inflammatory that it was plain error for the trial court to fail to declare a mistrial sua
sponte. Secessions has not established that he was prejudiced by not knowing about
Smith-Cage’s bribery allegations a day earlier, his robbery conviction is supported by
sufficient evidence, and his conviction was not against the manifest weight of the
evidence. The judgment of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
BELFANCE, P.J., concurs separately.
CARR, J., concurs in judgment only.
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BELFANCE, Presiding Judge, concurring.
{¶37} I concur. I write separately to emphasize that I do not condone the
conduct of the prosecutor in failing to disclose the information concerning the alleged
bribe to defense counsel and eliciting this testimony from the witness. However, I agree
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that in light of the specific facts presented and our standard of review, the trial court’s
failure to sua sponte declare a mistrial does not rise to the level of plain error. The
alleged bribe was not made by Secessions or a member of Secessions’s family, and,
therefore, Secessions was not directly connected to the bribe. Accordingly, I concur.
__________________
CARR, Judge, concurring in judgment only.
{¶38} I join in Judge Belfance’s concerns in her separate opinion. I concur
separately on the basis that I would analyze the discovery dispute differently than the
majority. First, the prosecutor had a mandatory duty to disclose the alleged bribery
statement. Second, Secessions was not prejudiced because the testimony was stricken
by the trial court and the jury was instructed to disregard it.
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