State v. Coriell , 2023 Ohio 4113 ( 2023 )

[Cite as State v. Coriell, 2023-Ohio-4113.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Andrew J. King, J.
-vs- :
:
WILLIAM RALPH CORIELL, : Case No. CT2023-0011
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2022-0568
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 14, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WELCH RICHARD D. HIXON
Prosecuting Attorney 3808 James Court, Suite 2
Muskingum County, Ohio Zanesville, Ohio 43701
By: JOHN CONNOR DEVER
Assistant Prosecuting Attorney
Muskingum County, Ohio
37 North Fifth St., P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2023-0011 2
Baldwin, J.
{¶1} William R. Coriell appeals the verdict of the jury in the Muskingum County
Court of Common Pleas finding him guilty of domestic violence, a violation of R.C.
2919.25(A), a fourth degree felony as a result of a prior offense and Intimidation of an
Attorney, Victim or Witness in a Criminal Case, in violation of R.C. 2921.04(B)(1), a felony
of the third degree. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} Coriell contends the trial court erred when it permitted the victim of his
crimes to testify about his threats and assault and when it allowed a police officer to repeat
the victim’s post-assault complaint that Coriell had struck her, pushed her against the wall
and bruised her. He further contends the Counts should have been merged and that the
verdict was not supported by the manifest evidence. We reject Coriell’s claim that he was
entitled to shield his actions with the spousal privilege described in R.C. 2317.02(D), that
the victim’s statements were barred by the hearsay rule and that the charges should
merge. We find that the verdict was supported by the evidence and that Coriell’s
Assignments of Error have no merit.
{¶3} Patrolman Logan Miller of the Zanesville Police Department responded to a
call from the victim, Katlin Curliss on October 28, 2022 claiming that her husband, William
Coriell, had assaulted her. She explained that she was obligated to appear at a trial
regarding domestic violence charges against Coriell later that morning, and that the
threats and assault were an attempt to persuade her to change her testimony.
{¶4} Curliss told Officer Miller that she returned to her room at the Travel Inn
where she and her husband were staying and they began arguing about the upcoming
Muskingum County, Case No. CT2023-0011 3
domestic violence trial. She attempted to leave and Coriell grabbed her wrist and told her
that she was not going anywhere. She stayed in the room for several hours until it was
time to prepare to go to court.
{¶5} As she was preparing to leave, Coriell told her that “she needed to change
it, tell the judge nothing happened, and that she didn't want to file charges.” (Trial
Transcript, p. 182, lines 7-9). She told the Officer that Coriell “* * * grabbed her throat
and pushed her up against the wall and said, I want you to walk in the courtroom, tell the
judge that you want the charges dropped, that you were scared and upset, and that there
-- nothing else needs to happen with this” and then he let go. (Id. at lines 10-15). She
continued with her complaint by telling the Officer that they continued arguing and Coriell
grabbed her by the throat again and threw her down, injuring her elbow.
{¶6} Curliss insisted on showing the Officer each injury she received. Officer
Miller photographed each as she pointed out a bruise on her left arm, left elbow and left
wrist, a scratch and marks on her neck. Curliss filed a domestic violence complaint and
Officer Miller arrested Coriell.
{¶7} Coriell was charged with domestic violence, a violation of R.C. 2919.25(A),
a fourth degree felony as a result of a prior offense and Intimidation of an Attorney, Victim
or Witness in a Criminal Case in violation of R.C. 2921.04(B)(1), a felony of the third
degree. The case was presented to a jury who returned a guilty verdict and the trial court
imposed an aggregate prison term of thirty-six months.
{¶8} Coriell filed a timely appeal and submitted four Assignments of Error:
Muskingum County, Case No. CT2023-0011 4
{¶9} “I. THE JURY’S GUILTY VERDICT AS TO COUNT TWO OF THE
INDICTMENT WAS BASED ON INADMISSIBLE HEARSAY EVIDENCE, IN VIOLATION
OF DEFENDANT/APPELLANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS.”
{¶10} “II. THE JURY’S GUILTY VERDICTS AS TO COUNTS ONE AND TWO OF
THE INDICTMENT WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶11} “III. THE TRIAL COURT ERRED WHEN IT COMPELLED MS. CURLISS’S
TESTIMONY, DESPITE THE ASSERTION OF THE R.C. SEC. 2317.02(D) SPOUSAL
PRIVILEGE BY DEFENDANT/APPELLANT.”
{¶12} “III. THE TRIAL COURT ERRED IN SENTENCING
DEFENDANT/APPELLANT ON BOTH COUNTS ONE AND TWO, AS THE TWO
COUNTS SHOULD HAVE MERGED FOR THE PURPOSES OF SENTENCING UNDER
R.C. SEC. 2941.25.”
ANALYSIS
{¶13} Coriell has rearranged the order of his Assignments of Error between the
statement of the assignments and his argument. We will follow the order presented in his
argument.
{¶14} Further, he modified the First Assignment of Error between the statement
of the assignments and the argument. In his argument, he describes the assignment of
error as “The Trial Court Erred When It Allowed Ms. Curliss’s Testimony Regarding
Communications Made Between Spouses In Coverture Despite The Assertion Of The
R.C. Sec. 2317.02(D) Spousal Privilege By Defendant/Appellant” but the corresponding
assignment of error in the statement of assignments is “The Trial Court Erred When It
Compelled Ms. Curliss’s Testimony, Despite The Assertion Of The R.C. Sec. 2317.02(D)
Muskingum County, Case No. CT2023-0011 5
Spousal Privilege By Defendant/Appellant.” For purposes of our review, we will rely on
the assignment of error described in Coriell’s Argument.
I.
{¶15} Coriell argues in his First Assignment of Error that his demand that Curliss
“make it right” and his threats to her safety were communications made in coverture
without the presence of a third person competent to testify and therefore Curliss was not
permitted to testify regarding the content of those conversations or the acts he committed.
(R.C. 2317.02(D)). Coriell is implying, without stating, that the privilege is unlimited and
can be utilized to protect a criminal act when the victim is a spouse. We cannot accept
his interpretation of this statute and the privilege described therein.
{¶16} The Tenth District Court of Appeals, relying on Sessions v. Trevitt (1883),
39 Ohio St. 259, found the purpose of spousal privilege is the “public policy which requires
that husband and wife not be allowed to betray the trust and confidence which are
essential to the happiness of the marital estate.” Harrison v. Harrison, 10th Dist. Franklin
No. 91AP-888, 1992 WL 40556, *2. The court found that the privilege provided under
R.C. 2317.02(D) does not apply to statements that “are not confidential in nature” and
that “abusive language and conduct of one spouse against another, [was] not privileged
because they are unrelated to preservation of the marital relationship and do not contain
an indicia of confidentiality. See Ohio v. Taylor (Aug. 10, 1988), Lorain App. No. 4280,
unreported (Judge George concurring).” Id.{¶17} “Verbal threats and violent acts between spouses are not marital
“confidences” which the privilege was intended to shield from courtroom disclosure.” State
v. Greaves, 6th Dist. No. H-11-012, 2012-Ohio-1989, 971 N.E.2d 987, ¶ 19. The goal of
Muskingum County, Case No. CT2023-0011 6
the privilege, to “promote marital peace and harmony” is “wholly lost where one spouse
has threatened or physically assaulted the other.” Id. at ⁋ 20.
{¶18} Further, we have held that “[i]n criminal cases, spousal privilege is governed
by R.C. 2945.42* * * .” State v. Nowlin, 5th Dist. Muskingum No. CT2012-0015, 2012-
Ohio-4923, ¶ 38 and that statute expressly excludes communications made or acts done
“* * * in the case of personal injury by either the husband or wife to the other * * * .” “Such
threatening or turbulent behavior is incompatible with the traditional premise of inter-
spousal harmony out of which the confidences of marriage are imagined to
flow.”(Citations omitted.) Id. at ¶ 44.
{¶19} Coriell threatened Curliss in an attempt to convince her to change her
testimony and followed the threats with a physical attack. We find the spousal privilege
inapplicable to Coriell’s statements and actions as they are incompatible with the
“traditional premise of inter-spousal harmony out of which the confidences of marriage
are imagined to flow” and inconsistent with the goal of marital peace and harmony. The
threats directed toward Curliss and her assault by Coriell are not communications or acts
that are protected by spousal privilege.
{¶20} We find that the court did not err by denying Coriell’s assertion that Curliss’s
testimony violated the spousal privilege.
{¶21} The First Assignment of Error is denied.
II.
{¶22} In his Second Assignment of Error, Coriell contends that the jury’s guilty
verdict as to charge of Intimidation of an Attorney, Defendant. Victim, or Witness in a
Criminal Case was based on inadmissible hearsay evidence. Coriell acknowledges that
Muskingum County, Case No. CT2023-0011 7
trial counsel did not object to the alleged hearsay testimony so he is obligated to persuade
this court that the admission of the testimony was plain error.
{¶23} Pursuant to Crim.R. 52(B), a plain error or defect affecting substantial rights
may be noticed if not brought to the attention of the court. State v. Long, 53 Ohio St.2d
91, 94, 7 O.O.3d 178, 372 N.E.2d 804 (1978). Plain error is to be invoked only in
exceptional circumstances to avoid a miscarriage of justice. (Citation omitted.) Id.{¶24} The test for plain error is enunciated under Crim.R. 52(B). In order for
Crim.R. 52(B) to apply, a reviewing court must find that (1) there was an error, i.e., a
deviation from a legal rule; (2) that the error was plain, i.e., that there was an “obvious”
defect in the trial proceedings; and (3) that the error affected “substantial rights,” i.e.,
affected the outcome of the trial. (Citations omitted.) State v. Barnes, 94 Ohio St.3d 21,
27, 759 N.E.2d 1240 (2002). We will apply this test to determine whether the admission
of Curliss’s statements to the Officer was plain error.
{¶25} Coriell contends the Officer’s repetition of Curliss’s statements was hearsay
and trial court committed plain error by admitting them. Evid.R. 801(C) defines hearsay
as “a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay is
inadmissible at trial unless it falls under an exception to the rules of evidence.
{¶26} The state counters that even if the statements are hearsay, they are
otherwise admissible as an excited utterance. The excited utterance exception to the
hearsay rule is contained in Evid.R. 803(2). If applicable, the exception is valid regardless
of whether the declarant is available as a witness.
Muskingum County, Case No. CT2023-0011 8
{¶27} An excited utterance is “[a] statement relating to a startling event or
condition made while the declarant is under the stress of excitement caused by the event
or condition.” The rationale for the admission of these statements is that the shock of the
event causes the declarant's reflective process to be halted. Thus, the statement is
unlikely to have been fabricated and carries a high degree of trustworthiness.
{¶28} Coriell contends the shock of the alleged threats and assaults resolved
before Curliss made her statements to the Officer. While some time had passed between
the conflict and Curliss’s report, there is no per se amount of time after which a statement
can no longer be considered to be an excited utterance. The central requirements are
that the statement must be made while the declarant is still under the stress of the event
and the statement may not be a result of reflective thought.
{¶29} Curliss reported the assault hours after the incident but it was still evident
to Officer Miller that she was under the stress of the event. He reported that “She was
very adamant about showing me. She started taking her shirt off kind of right in the middle
of the conversation, and I told her slow down a little bit, let's figure it out. But, yes, she
was very adamant about pointing to every specific injury.” (Trial Transcript, p. 195, line
25 to p. 196, line 4). Officer Miller confirmed that she was “[v]ery upset and adamant about
wanting to report it” and angry with Coriell. (Id. at p. 196, lines 5-6, 14-15). The record
supports a finding that Curliss was still under the influence of the stress of the event,
eroding the foundation that the trial court committed plain error.
{¶30} The Supreme Court of Ohio has “acknowledged the discretionary aspect of
Crim.R. 52(B) by admonishing courts to notice plain error ‘with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.’ ” Barnes
Muskingum County, Case No. CT2023-0011 9
at 27, 759 N.E.2d 1240, quoting State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178,
372 N.E.2d 804, paragraph three of the syllabus as quoted in State v. Lynn, 129 Ohio
St.3d 146, 2011-Ohio-2722, 950 N.E.2d 931, ¶ 14. Our review for plain error in the context
of this assignment of error is also limited by the rule that “[a] trial court is vested with broad
discretion in determining the admissibility of evidence in any particular case, so long as
such discretion is exercised in line with the rules of procedure and evidence.” Rigby v.
Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). An abuse of discretion is
more than a mere error in judgment; it is a “perversity of will, passion, prejudice, partiality,
or moral delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d
748 (1993).
{¶31} We find no plain error in this case because we do not find that the trial court
abused its discretion by admitting the statement of Officer Logan Miller. There is sufficient
evidence to demonstrate that the statement was an excited utterance by Ms. Curliss as
she was still under the stress of the event.
{¶32} The Second Assignment of Error is overruled.
III.
{¶33} In his Third Assignment of Error, Coriell contends that the jury’s verdict was
against the manifest weight of the evidence. He argues that Curliss’s testimony was
internally contradictory and incorporates his argument that the testimony of the Officer
was hearsay and should not have been permitted.
{¶34} We have denied Coriell’s Second Assignment of Error and found that the
trial court did not commit plain error by failing to exclude Officer Miller’s testimony
Muskingum County, Case No. CT2023-0011 10
regarding Curliss’s description of the offense, so that issue is resolved leaving only
consideration of the credibility of Curliss.
{¶35} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541, 547 (1997) quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR
215, 219, 485 N.E.2d 717, 720–721 Reversing a conviction as being against the manifest
weight of the evidence and ordering a new trial should be reserved for only the
“exceptional case in which the evidence weighs heavily against the conviction.” Id. See
State v. Acker, 5th Dist. Holmes No. 22CA008, 2023-Ohio-2085, ⁋ 36.
{¶36} Coriell was charged with “knowingly causing or attempting to cause physical
harm” to his spouse, Curliss (Domestic Violence) and “knowingly and by force or by
unlawful threat of harm to [Curliss] or by unlawful threat to commit any offense or calumny
against [her] attempt to influence, intimidate, or hinder [her] in the filing or prosecution of
criminal charges.” (Intimidation).
{¶37} Curliss clearly described Coriell’s assault of her and pointed out the bruises
to the Officer for photographing. While Coriell cites to the domestic violence charge in
his argument and requests that his assignment be granted generally, he does not
expressly contend that this charge was against the manifest weight of the evidence. After
Muskingum County, Case No. CT2023-0011 11
a review of the record, we find that the jury did not lose its way when it found Coriell guilty
of domestic violence.
{¶38} The subject of Coriell’s threats and assault was the pending domestic
violence trial schedule for the next day. The circumstances support a conclusion that
Coriell acted to convince Curliss to “make it right” by changing her story in court. Coriell
offered no other explanation for his attack of Curliss. While Curliss’s testimony suggests
that she was not intimidated by the verbal and physical assaults, we find that the record
contains sufficient evidence from which the jury could conclude, beyond a reasonable
doubt, that Coriell knowingly attempted to “to influence, intimidate, or hinder [Curliss] in
the filing or prosecution of criminal charges.” After considering all the facts and
circumstances, we find that this was not “exceptional case in which the evidence weighs
heavily against the conviction.”
{¶39} The Third Assignment of Error is denied.
IV.
{¶40} In his Fourth Assignment of Error, Coriell argues that the trial court erred by
failing to merge the two charges for sentencing pursuant to R.C. 2941.25, contending that
the separate incidents were part of a continuing course of conduct rather than multiple
occurrences.
{¶41} Appellate review of an allied-offense question is de novo. State v. Miku, 5th
Dist. No. 2017 CA 00057, 2018-Ohio-1584, ¶ 70, appeal not allowed, 154 Ohio St.3d
1479, 2019-Ohio-173, 114 N.E.3d 1207 (2019), quoting State v. Williams, 134 Ohio St.3d
482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.
Muskingum County, Case No. CT2023-0011 12
{¶42} Revised Code 2941.25 protects a criminal defendant's rights under the
Double Jeopardy Clauses of the United States and Ohio Constitutions by prohibiting
convictions of allied offenses of similar import:
Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
information may contain Counts for all such offenses, but the defendant may
be convicted of only one.
Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain Counts for all such
offenses, and the defendant may be convicted of all of them.
{¶43} The application of R.C. 2941.25 requires a review of the subjective facts of
the case in addition to the elements of the offenses charged. State v. Hughes, 5th Dist.
Coshocton No. 15CA0008, 2016-Ohio-880, ¶ 21. In a plurality opinion, the Ohio Supreme
Court modified the test for determining whether offenses are allied offenses of similar
import. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The
Court directed us to look at the elements of the offenses in question and determine
“whether it is possible to commit one offense and commit the other with the same
conduct.” (Emphasis sic). Id. at ¶ 48. If the answer to such question is in the affirmative,
the court must then determine whether or not the offenses were committed by the same
conduct. Id. at ¶ 49. If the answer to the above two questions is yes, then the offenses
are allied offenses of similar import and will be merged. Id. at ¶ 50. If, however, the court
Muskingum County, Case No. CT2023-0011 13
determines that commission of one offense will never result in the commission of the
other, or if there is a separate animus for each offense, then the offenses will not merge.
Id. at ¶ 51.
{¶44} Johnson's rationale has been described by the Court as “incomplete.” State
v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11. The Supreme Court
of Ohio has further instructed us to ask three questions when a defendant's conduct
supports multiple offenses: “(1) Were the offenses dissimilar in import or significance? (2)
Were they committed separately? and (3) Were they committed with separate animus or
motivation? An affirmative answer to any of the above will permit separate convictions.
The conduct, the animus, and the import must all be considered.” State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.
{¶45} We have reviewed the record and find that there were two offenses
separated in time by several hours. After the first offense, Curliss went into the bathroom.
Hours later, when she was getting ready to go to court, the second offense occurred. The
offenses “were committed separately” and, therefore separate convictions are permitted.
{¶46} The Fourth Assignment of Error is denied.
Muskingum County, Case No. CT2023-0011 14
{¶47} The decision of the Muskingum County Court of Appeals is affirmed.
By: Baldwin, J.
Delaney, P.J. and
King, J. concur.