State v. Harris , 2017 Ohio 2985 ( 2017 )

[Cite as State v. Harris, 2017-Ohio-2985.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104833
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL HARRIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-598240-A and CR-15-599227-A
BEFORE: S. Gallagher, J., McCormack, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: May 25, 2017
ATTORNEY FOR APPELLANT
Thomas A. Rein
820 West Superior Avenue, Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Jeffrey Schnatter
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Michael Harris appeals his convictions from Cuyahoga C.P. Nos.
CR-15-599227-A and CR-15-598240-A involving murder, domestic violence, and
criminal trespass. We affirm.
{¶2} Cuyahoga C.P. No. CR-15-598240-A (“the murder case”) involves the death
of a four-year-old. Harris was involved with the child’s mother, but he did not live with
the family. The two had a relationship for about a year before the child’s death but had
known each other much longer. The mother had five other children. On the day of the
child’s death, the mother was taking a shower. The child was at the bathroom door
crying. Mother asked Harris to watch the child, something mother routinely did if
needed when Harris was around. On her way out of the bathroom door, she saw the
child sitting upright on the couch with his siblings. Mother then went in the bedroom
and left the children on the couch. At a later undetermined time, she went to get three of
the children ready to leave and found the victim unresponsive and not breathing while
sitting upright on the couch. She called 911 and attempted to revive him. Emergency
medical services responded and transported the child to the emergency room to no avail.
Importantly, when the investigating police officers interviewed both mother and Harris,
there were no discrepancies in that time line.
{¶3} Eventually Children and Family Services removed all the children because of
neglect allegations. Evidently, mother is under investigation for having weapons and
selling drugs from the home. Further, there is evidence indicative of past abuse that the
child victim had suffered that could not be explained at trial.
{¶4} The child’s death was ruled a homicide by the coroner. It was determined
that he had died as a result of blunt force impact to the trunk with skeletal, visceral, and
soft tissue injuries. The autopsy revealed several freshly broken ribs, causing internal
hemorrhaging, along with evidence of healed fractures, which demonstrated the potential
for past abuse. The child’s spleen and liver were lacerated, causing bleeding in the
abdominal cavity. The blunt force impact could have been from a fist, a foot, or another
blunt object. The injuries occurred immediately before the child’s death, and according
to the state’s expert, CPR could be ruled out as to whether the rib fractures were caused
by mother’s attempt to resuscitate the child. The rib fractures occurred as a result of
trauma to the back. Further, from the nature of the injuries, the coroner concluded that
the child would have been incapacitated within minutes of sustaining the severe injuries.
{¶5} After the bench trial, Harris was found guilty of murder and sentenced to
serve a term of imprisonment for 15 years to life and subject to postrelease control. The
remaining counts merged into the murder conviction and are otherwise irrelevant to the
appeal.
{¶6} As it relates to case No. CR-15-599227-A (“the assault case”), Harris has not
presented any appellate arguments challenging the finding of guilt or sentence in that
case. His sole argument is that the trial court should not have joined the second abuse
case with the murder one. As such, we must affirm the conviction and sentence in the
assault case and will only address the arguments in the context of the murder case. The
assault case arose from unrelated events that occurred several months later than the events
underlying the murder case. The assault case involved Harris’s physical attack on
another girlfriend’s teenaged son, different persons from those in the murder case. The
two cases were based on crimes that were separate and distinct. The 18-month aggregate
sentence imposed on the criminal trespassing and domestic violence charges were
imposed concurrently to the indefinite sentence imposed in the murder case.
{¶7} In this appeal, Harris claims that (1) the trial court erred by joining the two
cases for the bench trial because that permitted the trier of fact to rely on other acts
evidence in finding Harris guilty of murder; and (2) the murder conviction was against the
sufficiency and manifest weight of the evidence. We find no merit to the assigned errors.
{¶8} Crim.R. 13 provides that a trial court may order two or more indictments to
be tried together “if the offenses or the defendants could have been joined in a single
indictment or information” under Crim.R. 8(A). “‘[J]oinder and the avoidance of
multiple trials is favored for many reasons, among which are conserving time and
expense, diminishing the inconvenience to witnesses and minimizing the possibility of
incongruous results in successive trials before different juries.’” State v. Anderson, 8th
Dist. Cuyahoga No. 104460, 2017-Ohio-931, ¶ 23, quoting State v. Torres, 66 Ohio St. 2d
340, 421 N.E.2d 1288 (1981). See also State v. Schiebel, 55 Ohio St. 3d 71, 86-87, 564
N.E.2d 54 (1990); State v. Schaim, 65 Ohio St. 3d 51, 58, 1992-Ohio-31, 600 N.E.2d 661.
Generally joinder is disfavored where the jury could potentially confuse the issues and
the facts essential to the elements of the distinct crimes. “To succeed on a motion to
sever, a defendant ‘must furnish the trial court with sufficient information so that it can
weigh the considerations favoring joinder against the defendant’s right to a fair trial.’”
State v. Lytle, 10th Dist. Franklin Nos. 15AP-748 and 15AP-754, 2016-Ohio-3532, ¶ 64,
quoting State v. Lott, 51 Ohio St. 3d 160, 163, 555 N.E.2d 293 (1990); Torres at syllabus.
The operative distinction is that these trials occurred before a jury. In a bench trial, the
defendant’s burden becomes steeper.
{¶9} In this case, Harris waived his right to a trial by jury in both cases. His sole
claim, as to the deprivation of a fair trial by the joinder, was because the trial court was
permitted knowledge of the distinct crimes and the court could have imputed criminal
liability in the murder case, not for the facts pertinent to the individual crimes, but
because Harris was charged with another abuse case. Harris further claims that Evid.R.
404(B) precluded the state from offering evidence of each crime at the joined trial.
{¶10} In effect, Harris is attempting to force the state to undertake the Evid.R.
404(B) analysis under the joinder analysis. Evid.R. 404(B) precludes the introduction of
other crimes, wrongs, or acts to prove conformity with that character. The state
introduced the evidence of the individual crimes to prove each individual crime at trial.
The evidence was not presented solely to prove conformity with the defendant’s
character. State v. Herring, 8th Dist. Cuyahoga No. 104441, 2017-Ohio-743, ¶ 12, citing
State v. Williams, 134 Ohio St. 3d 521, 2012-Ohio-5695, 983 N.E.2d 1278. The primary
issue in this case is not Evid.R. 404(B) evidence; it is the propriety of the joinder. If
error occurred in joining the two cases for trial, the admissibility of the Evid.R. 404(B)
evidence is moot. On the other hand, if there is no reversible error with respect to the
joinder, then Evid.R. 404(B) does not preclude the introduction of evidence for each
individual crime. If we concluded otherwise, the state would have been precluded from
presenting any evidence to prove the individual criminal charges.
{¶11} Further to this point, in Lott, 51 Ohio St. 3d 160, 555 N.E.2d 293, the
Supreme Court of Ohio upheld a conviction for murder after unrelated charges were
joined at trial. It was held that the defendant has the burden to affirmatively demonstrate
prejudice from the joinder. Id. at 163. Only then does the state bear any burden to
negate such claims. Id. The prosecutor can use two methods to do so, only one of
which relies on Evid.R. 404(B). Id. Under the first method, the “other acts” test, the
state may argue that it could have introduced evidence of previous crimes under the
evidentiary standards if the previous and current offenses had been severed for trial. Id.
The state has not argued that the “other acts” method is available in this case, and we
reject Harris’s attempt to force the state into the Evid.R. 404(B) argument. The two
methods under the Lott analysis are independent of each other. In this case, the state
solely relies on the second method.
{¶12} Under that method, the “joinder” test, the state is merely required to show
that evidence of each crime joined at trial is simple and direct irrespective of the
admissibility under Evid.R. 404(B). “When simple and direct evidence exists, an
accused is not prejudiced by joinder regardless of the non-admissibility of evidence of
these crimes as ‘other acts’ under Rule 404(B).” Id. In reaffirming Lott, the Ohio
Supreme Court also subjected the analysis to plain error review. State v. Spaulding, Slip
Opinion No. 2016-Ohio-8126, ¶ 74; State v. Marcinick, 8th Dist. Cuyahoga No. 89736,
2008-Ohio-3553, ¶ 28.
{¶13} Thus “a joinder cannot result in prejudice if the evidence of the offenses
joined at trial is simple and direct, so that a jury is capable of segregating the proof
required for each offense.” Lytle at ¶ 65. The lack of prejudice is even more
pronounced when the trier of fact is the court. State v. Campbell, 8th Dist. Cuyahoga
Nos. 100246 and 100247, 2014-Ohio-2181, ¶ 11; State v. Clyde, 6th Dist. Erie No.
E-14-006, 2015-Ohio-1859, ¶ 38. We can presume the trial court is competent and
capable of determining the facts pertinent to the distinct elements of the crimes in each
separate case. Campbell at ¶ 11. It is the defendant’s obligation to identify anything in
the record to demonstrate that the trial court considered improper evidence in determining
guilt. Id. Harris has not identified anything of the sort.
{¶14} Instead, Harris’s only response is that it is “absurd on its face and even more
absurd in reality” that the trial court sitting as the trier of fact is able to distinguish
between the evidence for each individual case in a joint trial of two separate and distinct
crimes. Even if we presume, for the sake of discussion, that the court erred by joining
the cases for the bench trial, Harris’s sole claim was that the trial court would hear
evidence of both crimes and find him guilty of murder because of the separate assault
charge. In a situation such as this, the trial court is always aware of the other crimes
pending before it. The judge presiding over the cases will have knowledge of the other
crimes for which the defendant stands to account. Once the jury was waived, there was
no way to avoid the trial court from having knowledge of both cases.
{¶15} In light of our conclusions, we cannot agree with Harris’s sentiment. We
must always rely on the trial court’s ability to consider only the relevant evidence for the
individual crimes. If a jury is permitted to hear multiple cases of distinct and separate
crimes, then a trial court with the benefit of the legal experience necessary to the position
would be in a better position to sift through the relevant evidence. See Campbell; State
v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 31 (“the law ‘recognizes
the presumption that a judge in a bench trial has no difficulty in disregarding inadmissible
evidence in reaching [a] verdict’”), quoting United States v. Cardenas, 9 F.3d 1139, 1155
(5th Cir.1993). In light of the arguments advanced, we decline to create the rule that
would essentially allow a trial court to act as trier of fact in only one of the defendant’s
multiple cases pending before that court. See Anderson, 8th Dist. Cuyahoga No. 104460,
2017-Ohio-931, ¶ 29 (the evidence for each of the four joined cases in the bench trial was
simple and direct, and joinder was not prejudicial); see also State v. Johnson, 8th Dist.
Cuyahoga Nos. 63250 and 63251, 1993 Ohio App. LEXIS 3638, 13 (July 22, 1993); State
v. Eames, 3d Dist. Union No. 14-93-3, 1994 Ohio App. LEXIS 868, 18 (Mar. 7, 1994) (at
a bench trial, the trial court is presumed to be capable of considering only the relevant
evidence for each individual charge).
{¶16} We also conclude that Harris’s conviction for murder is not against the
sufficiency or manifest weight of the evidence. A claim of insufficient evidence raises
the question whether the evidence is legally sufficient to support the verdict as a matter of
law. State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. In
reviewing a sufficiency challenge, “[t]he relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.” State v.
Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶17} The crux of Harris’s sufficiency argument is that the state only presented
circumstantial evidence in support of his conviction. According to Harris, because there
was no direct proof that he injured the child (there was no eyewitness testimony and no
DNA or other physical evidence linking Harris to the crime), the state failed to present
sufficient evidence of his guilt beyond a reasonable doubt. We can address this
argument as summarily as it was presented: “Circumstantial evidence and direct
evidence inherently possess the same probative value.” Jenks at paragraph one of the
syllabus.
{¶18} Taking the evidence in a light most favorable to the state, Harris was
responsible for the child immediately preceding the child’s death, which was undisputedly
caused by abuse that would have incapacitated the young child within minutes. The
other children present could not have caused the injuries according to the state’s experts,
and the only other adult in the home at the time was in the shower immediately before the
child was found incapacitated, another fact not in dispute. This is a quintessential case
of circumstantial evidence, and Harris has not presented any arguments demonstrating
why such evidence was otherwise insufficient based on the individual elements of the
charged crimes.1 App.R. 16(A)(7).
{¶19} Finally, when reviewing a claim challenging the manifest weight of the
evidence, the court, reviewing the entire record, must 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 must be reversed and a new trial
ordered. Thompkins, 78 Ohio St. 3d at 387, 1997-Ohio-52, 678 N.E.2d 541. On this
point, Harris contends that his conviction is against the weight of the evidence based on
(1) mother’s testimony that Harris never hurt the children in the past, (2) Harris’s
1
Harris’s entire sufficiency-of-the-evidence argument is as follows:
There is not sufficient evidence for a jury or any rational trier of fact that Appellant
Michael Harris caused the death of D.A. Furthermore, there is no evidence and
certainly not sufficient evidence that Mr. Harris caused Felonious Assault or took any
action which may have resulted in the infant’s death. There are no eyewitnesses to
what happened. There is no DNA or other physical evidence linking Mr. Harris any
crime charged here. The State’s case appears to be one of a process of elimination.
The two other children could not have caused the injury or injuries to [the victim].
That leaves only [mother] and Mr. Harris. The date of death of [the victim] is
January 10, 2014. Any testimony offered by the State reveals that it [sic] based on
inferences, and that the factfinder, in order to convict Appellant of anything including
Murder, Involuntary Manslaughter, Felonious Assault, Endangering Children or even
Domestic Violence, was then required to make further inferences based upon those
other inferences. These inferences piled upon other inferences means that the verdict
is flawed and must be vacated.
cooperation with the murder investigation, (3) the fact that children and family services
removed mother’s children after the murder, and (4) the fact that mother could not
explain the past injuries to the deceased toddler.
{¶20} Even assuming the worst, that mother abused the child in the past as Harris
contends, that does not address the allegations that on the day the child died, the child was
in Harris’s care and protection and the injuries caused could only have occurred through
the force of an adult — the other children present could not have caused the injuries. If
mother abused the child in the past and her children were removed for neglect in the
future, this is unrelated to the death of the child and simply goes to the credibility of the
state’s theory — a matter well within the province of the trier of fact.
{¶21} Of the utmost importance, Harris has not identified any evidence in the
record to support the appellate argument that mother — the only other adult present —
caused the injuries leading to the child’s death or that Harris did not cause the child’s
injuries or otherwise demonstrate that any element of the murder charge was not satisfied.
He has not even attempted to dispute the time line of the events leading to the child’s
death. He simply asks us to reverse his conviction because of the unproven, remote
possibility that mother could have caused the death of the child, a theory presented and
rejected by the trier of fact. Harris has not addressed the fact that the injuries the child
sustained would have incapacitated the child within minutes and that Harris was the only
person capable of inflicting that kind of damage at the time. Harris, in short, has not
presented any arguments challenging that evidence, nor has he identified anything in the
record that calls that evidence into question.
{¶22} It is not this court’s obligation to scour the transcript and build an argument
on Harris’s behalf. App.R. 16(A)(7). We acknowledge there is evidence that mother
might at the least have allowed the abuse to occur, but the trial court, as the trier of fact,
resolved those issues against Harris. On the arguments presented, Harris has failed to
demonstrate that a manifest injustice occurred.
{¶23} We affirm Harris’s convictions.
It is ordered that appellee recover from appellant costs herein taxed. The
court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
TIM McCORMACK, P.J., and
MARY J. BOYLE, J., CONCUR