State v. Ballard , 2024 Ohio 4513 ( 2024 )

[Cite as State v. Ballard, 2024-Ohio-4513.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-23-048
WD-23-051
Appellee
Trial Court No. 2022 CR 0417
v.
Dwight Joseph Elliott Ballard DECISION AND JUDGMENT
Appellant Decided: September 13, 2024
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.
Dan M. Weiss, for appellant.
*****
SULEK, P.J.
{¶ 1} In this consolidated appeal, appellant, Dwight Ballard, appeals the
September 22, 2023 judgment of the Wood County Court of Common Pleas which,
following a jury trial convicting him of aggravated possession of drugs, sentenced
Ballard to an indefinite sentence of six to nine years of imprisonment. Because the trial
court did not abuse its discretion by denying his motion for a mistrial, the judgment is
affirmed.
I. Facts and Procedural Background
{¶ 2} On October 6, 2022, a grand jury indicted Ballard on one count of
aggravated trafficking in drugs, R.C. 2925.03, a first-degree felony, and one count of
aggravated possession of drugs, R.C. 2925.11(A), a second-degree felony, both with
forfeiture of money specifications. The charges stemmed from a traffic stop on
December 30, 2021, where a baggie of unmarked pills and cash were recovered from
Ballard’s coat pocket. Ballard pleaded not guilty to the charges.
{¶ 3} On June 12, 2023, a jury trial commenced. Lake Township Police Officer
Matthew Mariano testified that on December 30, 2021, at approximately 11:00 p.m., he
was on road patrol when he observed a white Jeep with an expired registration sticker.
Mariano initiated a traffic stop and smelled the odor of burnt marijuana as he approached
the driver’s side door. Mariano spoke with Ballard and ascertained that he did not have a
valid driver’s license. Mariano stated that there were three passengers in the vehicle,
including one child.
{¶ 4} Officer Mariano asked if there were any drugs in the vehicle and Ballard
handed him a “roach” or burnt marijuana cigarette. After running Ballard through
dispatch, Mariano asked him to exit the vehicle. Ballard was patted down and Mariano
pulled a wad of cash, $63 in single bills, and a baggie of 118 multicolored pills from his
left jacket pocket. Mariano testified that based on his training and experience the pills
appeared to be ecstasy. Ballard initially claimed they were pain medication but then
admitted they were ecstasy. Ballard was placed under arrest and transported to the Wood
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County Jail and the evidence was logged in at the police station. Mariano identified the
cash and baggie of pills recovered from Ballard and they were admitted into evidence.
{¶ 5} Ohio Bureau of Criminal Investigation forensic scientist, Samuel Fortner,
testified that 118 multicolored pills weighing 19.43 grams were submitted for testing. He
conducted a chemical analysis on 25 of the pills recovered from Ballard and stated that to
a reasonable degree of scientific certainty the pills contained methamphetamine and
cocaine.1 Fortner stated that he did not conduct a quantitative analysis to confirm the
specific amount of each substance. The July 10, 2022 report containing the findings was
admitted into evidence. The State then rested.
{¶ 6} Ballard presented two witnesses on his behalf. Brandi Toney testified that
on December 28, 2021, she, Ballard, and their minor daughter were staying at a hotel in
Perrysburg following a robbery at their house. Toney stated that on December 30, 2021,
after checking out of the hotel they pulled out of the parking lot and she noticed a police
officer make a U-turn and follow them. He pulled over the vehicle with occupants
Toney, Ballard, their daughter, and “another male.” Ballard had a warrant and was
placed under arrest. Toney testified that she had a warrant from a traffic ticket and was
also placed under arrest.
{¶ 7} When asked, Toney stated that she had no knowledge of Ballard ever
possessing or distributing methamphetamine, or any illegal substances. She stated that
1
The pills were not ecstasy, or methylenedioxy-methamphetamine (MDMA), as
originally believed.
3.
she has been with Ballard for nine years. Toney testified that she was not aware that
Ballard had any illegal substances on his person prior to his arrest.
{¶ 8} During cross-examination, Toney agreed that she had known Ballard for
approximately nine years and that she loves him. Toney was asked about her response to
the question regarding her knowledge of Ballard previously possessing illegal substances.
She reiterated that she was not aware of him possessing drugs. The State then asked:
“Are you aware, Ms. Toney, that your boyfriend, the person you love, has been convicted
of illegal conveyance of drugs of abuse?” Defense counsel objected and extensive
discussions were held in chambers and included the following exchanges:
THE COURT: Why are we asking this question? Because I’m going
to say – I heard him utter mistrial and I think it’s really damn close, and I
think it’s completely unnecessary. You – the statement is, essentially,
proving possession, so why would you risk a potential mistrial –
...
[THE STATE]: Judge, if I could answer the question why. When
they asked the question, have you ever known this person to possess drugs,
have you ever – they are speaking to his character. He’s not the type of
person to possess drugs, I’ve known him for nine years, that’s speaking to
his character. And the State is allowed to test that knowledge regarding the
character, opinion and reputation, and that’s exactly what I’m doing by
asking the question, are you aware? She’s saying, I’ve never known, never
heard of anything regarding him possessing drugs. Well, this is a person
that she lives with, that she is very familiar with, and I think it’s a fair
question to ask if she’s aware that he has been convicted of illegal
conveyance of drugs.
THE COURT: When was this conviction?
[THE STATE]: 2006.
...
[DEFENSE COUNSEL]: Your Honor, how – first of all, how is this
question even remotely appropriate? I mean, specific acts, inappropriate,
first of all, as it relates to that. But, secondly, how would she – how is this
question made in good faith, at all? He knows she doesn’t know him in
2006, it’s just a smear, Judge. I mean, the jury just heard it, you just rung a
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bell that can’t be un-rung at this point, you knew it was going to be
objected to, you knew it was going to be objected to right when you said it,
and you still said it.
...
[THE STATE]: . . . This is a long-recognized manner of
impeachment when a Defense witness opens the door by offering testimony
as to the character or reputation of the Defendant, whether it be for
truthfulness, whether it be for drug possession, whatever it may be. The
State is allowed to test the basis of those – that knowledge by asking the
questions, are you aware, did you know, type questions. It’s a perfectly
acceptable form of questioning recognized by the rules of evidence,
specifically, Evidence Rule 405(A), recognized by case law.
{¶ 9} The court ultimately determined that the State’s purpose in asking the
question was not impeachment but to introduce evidence of specific prior acts. The court
then denied the motion for a mistrial but sustained defense counsel’s objection and issued
the following curative instruction:
There was a question that was partially asked prior to going on the
break. The question wasn’t completed, nor was it answered. Therefore,
there has been no evidence that was offered as a result of that partial
question and you should disregard it from your consideration.
{¶ 10} Ballard testified that a few days prior to his arrest he was robbed by his
nephews at his home in Toledo. Ballard had Toney and their young daughter stay in a
hotel for a few nights in case the thieves returned. Ballard testified that he got the money
for the hotel from a close friend. He stated that he used an app to send the friend money
and in exchange, the friend gave him cash, all one-dollar bills, to pay for the hotel.
Ballard testified that he did not stay at the hotel; he returned to Toledo to investigate the
robbery.
5.
{¶ 11} Ballard testified that after checking them out, he pulled out of the hotel
parking lot and observed a police cruiser “speeding” up behind them. Ballard pulled into
a gas station and the cruiser followed. The officer walked up to the driver’s window and
asked if Ballard had a driver’s license, he indicated negatively. The officer stated that he
smelled burnt marijuana; Ballard informed him that he had a medical marijuana card but
that he would not smoke it around his daughter.
{¶ 12} The officer informed him that there was a warrant for his arrest and placed
him up against the cruiser. Ballard stated that he had no idea what the pills were that
were pulled from his pocket. He explained that after the robbery he asked a
neighborhood “street dude” to give him something for pain. He forgot the pills were in
his pocket. When questioned, he denied that he was selling the pills.
{¶ 13} At the conclusion of the evidence, the court relevantly instructed the jury:
The evidence does not include any statements that were stricken by
the Court or that you were instructed to disregard. You must not speculate
why an objection was sustained to any question, or what the answer to that
question might have been, because these are questions of law and rest
solely with the Court.
{¶ 14} Following deliberations the jury found Ballard not guilty of aggravated
trafficking in drugs and guilty of aggravated possession of drugs. On September 22,
2023, Ballard was sentenced to an indefinite term of six to nine years of imprisonment.
This appeal followed.
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II. Assignment of Error
{¶ 15} Ballard raises the following assignment of error:
Assignment of Error: The trial court abused its discretion when it
failed to declare a mistrial.
III. Analysis
{¶ 16} Ballard’s sole assignment of error is that the trial court erred by denying his
motion for a mistrial. Ballard maintains that he was denied the right to a fair trial by the
State’s improper cross-examination question regarding Ballard’s prior drug conviction.
The State contends that Ballard raised the issue during Toney’s direct examination and
that it was proper under Evid.R. 405(A)
{¶ 17} A trial court’s decision denying a mistrial is reviewed under an abuse of
discretion standard. State v. Durst, 2020-Ohio-607, ¶ 46 (6th Dist.); State v. Sage, 31
Ohio St.3d 173, 182 (1987). “A mistrial is only proper ‘when the ends of justice so
require and a fair trial is no longer possible.’” State v. Cantrill, 2020-Ohio-1235, ¶ 47
(6th Dist.), quoting State v. Franklin, 62 Ohio St.3d 118, 127, (1991). Mistrials are “an
extreme remedy.” Cantrill at ¶ 47, citing State v. Rossbach, 2011-Ohio-281, ¶ 39 (6th
Dist.), citing Franklin at 127. When the motion for a mistrial alleges prosecutorial
misconduct, “‘a reviewing court must undertake a due process analysis to determine
whether the conduct of the prosecutor deprived the defendant of his or her due process
right to a fair trial.’” State v. Gomez, 2019-Ohio-576, ¶ 59 (6th Dist.), quoting State v.
Saunders, 98 Ohio App.3d 355, 358, (6th Dist.1994). “In determining whether
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prosecutorial misconduct occurred, we must first consider whether remarks were
improper, and if we find improper remarks, whether those remarks prejudiced the
accused’s substantial rights.” Cantrill at ¶ 48, citing State v. Davis, 2008-Ohio-2, ¶ 231,
citing State v. Smith, 14 Ohio St.3d 13, 14 (1984).
{¶ 18} At issue in this case is the applicability of Evid.R. 405(A) which provides:
(A) Reputation or Opinion. In all cases in which evidence of
character or a trait of character of a person is admissible, proof may be
made by testimony as to reputation or by testimony in the form of an
opinion. On cross-examination, inquiry is allowable into relevant specific
instances of conduct.
{¶ 19} “It is well-settled that by presenting evidence of a defendant’s good
character, a defense attorney ‘opens the door’ to cross-examination of such character
witnesses regarding relevant specific instances of appellant’s past conduct.” State v.
Ogletree, 2004-Ohio-6297, ¶ 45 (8th Dist.). “Such instances can include appellant’s prior
criminal convictions.” Id.; see also State v. Oghojafor, 2023-Ohio-44, ¶ 80 (12th Dist.).
{¶ 20} In State v. Jackson, 57 Ohio St.3d 29 (1991), the defendant was convicted
of aggravated murder, aggravated robbery, and a death penalty specification alleging
murder in the course of aggravated robbery for an incident that occurred in 1987. During
the sentencing hearing, the defendant’s girlfriend, Carla Elliott, testified that the
defendant was “the sweetest person,” “a peaceful, loving person,” and nonviolent. Id. at
39. On cross-examination, the State asked Elliott whether she knew Jackson had
assaulted and robbed three women in 1983 and another woman in 1985. Id. Elliott
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responded that knowledge of these prior acts would not change her opinion about the
defendant’s character. Id.{¶ 21} The Supreme Court of Ohio held that Evid.R. 405(A) permitted the State’s
cross-examination of Elliott as to the defendant’s prior acts committed in 1983 and 1985
because “[Elliott’s] characterization of [the defendant] as sweet, gentle, and nonviolent
opened the door for cross-examination about specific instances of conduct sharply at
variance with her opinion testimony.” Id.{¶ 22} Similarly, in Ogletree, 2004-Ohio-6297 (8th Dist.), the defendant was
convicted in 2004 of two counts of gross sexual imposition. During the trial, the
defendant presented testimony from three character witnesses, Renita Eslick, Eric Elders,
and Rochelle Meredith. Each of the witnesses testified as to how long they had known
the defendant and that they believed him to be an honest person who would not lie. On
cross-examination, the State asked the witnesses whether they knew he was convicted of
drug trafficking twice in 1993 and that he violated his probation in 1998. Id. at ¶ 19-21.2
{¶ 23} Ogletree appealed, arguing that the trial court erred in permitting the State
to question the character witnesses about their knowledge of his past record. Id. at ¶ 39.
In rejecting this argument, the court of appeals held “defendant presented character
witnesses who testified that he has a reputation for honesty. Accordingly, under Evid.R.
2
Notably, Elders testified that he had only known the defendant for 5 years; therefore, he
would not have known the defendant at the time of the defendant’s prior acts committed
in 1993 or 1998.
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405(A), the State was permitted to cross-examine these witnesses regarding their
knowledge of specific instances of defendant’s conduct.” Id. at ¶ 46.
{¶ 24} Here, while Toney was a fact witness, she also testified regarding Ballard’s
character or reputation. Specifically, Ballard’s reputation for possessing or selling illegal
drugs was placed at issue on direct examination when Toney denied knowledge of
Ballard ever possessing or distributing illegal substances. And while Ballard contends
that the State’s attempted cross-examination of Toney regarding the 2006 conviction was
improper because they were not a couple at that time, nothing in the language of Evid.R.
405(A) limited the State’s cross-examination of Toney to prior instances of conduct that
occurred once she and Ballard had an established relationship. Nor has Ballard cited any
cases that impose such a limitation under Evid.R. 405(A). Thus, under Evid.R. 405(A),
the prosecutor’s question was not improper.
{¶ 25} Further, even if the question was improper, the trial court granted Ballard’s
objection and instructed the jury to disregard it. A jury is presumed to follow the court’s
instructions. State v. Peabody, 2024-Ohio-185, ¶ 53 (6th Dist.), quoting State v. Clinton,
2017-Ohio-9423, ¶ 52. A mistrial is an “extreme remedy,” Cantrill, 2020-Ohio-1235(6th Dist.), at ¶ 47, and the trial court properly employed less drastic means to cure any
prejudice that may have resulted from the prosecutor’s question.
{¶ 26} Accordingly, Ballard has not demonstrated that the court abused its
discretion in denying his motion for a mistrial or that he was denied his due process right
to a fair trial. Ballard’s assignment of error is not well-taken.
10.
IV. Conclusion
{¶ 27} Based on the foregoing, the September 22, 2023 judgment of the Wood
County Court of Common Pleas is affirmed. Pursuant to App.R. 24, Ballard is ordered to
pay the costs of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Myron C. Duhart, J.
____________________________
Charles E. Sulek, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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