State v. Schwegmann ( 2018 )

[Cite as State v. Schwegmann, 2018-Ohio-3757.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180053
TRIAL NO. 17CRB-10871
Plaintiff-Appellee, :
O P I N I O N.
vs. :
RYAN SCHWEGMANN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 19, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, Joshua Thompson, Assistant
Public Defender, and Demetra Stamatakos, Assistant Public Defender, for
Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Defendant-appellant Ryan Schwegmann appeals his conviction,
following a bench trial, for domestic violence in violation of R.C. 2919.25(A). In two
assignments of error, he argues that the trial court abused its discretion in
preventing Schwegmann from cross-examining the victim about her prior threat to
file a false domestic-violence charge, and that his conviction was not supported by
sufficient evidence. Finding no merit to his arguments, we affirm the trial court’s
judgment.
Factual Background
{¶2} On April 22, 2017, Ryan Schwegmann and Faith Thomas were lying in
bed, and Schwegmann began insulting and belittling her. Thomas testified that she
told him to leave the home, and he lit her hair on fire. After she ran into the
bathroom to extinguish the fire, he followed her, put his hands over her mouth,
grabbed her, threw her on the bed, and hit her in the face and head. Then he threw
her on the ground, hit her in the lower back, put his hands over her mouth to stop
her from screaming, and put his fingers down her throat.
{¶3} She escaped and told her daughter to call 911. Schwegmann told his
daughter, who was spending the night, that Thomas had head-butted him and
injured her face. Schwegmann left the home, and Thomas spoke with the police.
{¶4} Thomas testified that she had dated Schwegmann for six months, and
that he had lived with her for a month. She further testified that he stayed overnight,
every night, and had moved most of his belongings into her home. Frequently, his
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daughter would come to their home to visit, and she would occasionally spend the
night.
{¶5} On cross-examination, she testified that Schwegmann had previously
lived with his mother. She did not know whether he was paying for the home in
which his mother resided. When asked specifically if Schwegmann had another
home with his mother, she testified that he was living with her and staying with her
every night. She was the sole tenant on the apartment lease, and all of the utilities
were in her name because she had been living in the home for over a year when
Schwegmann moved in with her. None of the finances were in his name.
{¶6} Then Thomas was asked if she would call the police and falsely accuse
someone of domestic violence, and she responded that she would never do that. She
was asked if she had ever threatened to call the police and make a false accusation.
The state objected to the question.
{¶7} Schwegmann’s counsel stated that he had obtained a recording from
Michael Powell, who had dated Thomas after Schwegmann. Counsel further
proffered that the recording was of Powell telling Thomas that he was afraid that she
would call the police and falsely accuse him of hurting her. Thomas responded, “I
threatened you with that at the beginning of this relationship.” Although counsel did
not know the exact date that the recording was made, he informed the court that the
audiotape was recorded after her relationship with Schwegmann had ended. The
trial court sustained the objection because the audiotape was not relevant to the
charge against Schwegmann.
{¶8} Officer Eric Robinson of the Norwood Police Department testified that
he responded to the 911 call and took photographs of the injuries. When he arrived,
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Thomas was crying, short of breath, had urinated on herself, and was very emotional
and hard to understand. Robinson also testified that it appeared that there was a
struggle in the apartment. Robinson was wearing a body camera that evening. The
footage from the camera, the 911 call, and the photos of the injuries were admitted
into evidence.
{¶9} The trial court found Schwegmann guilty because it determined that
Thomas’s testimony was credible, believable, and corroborated by the officer’s
testimony, the 911 call, the body cam video, and the photographs.
Limitation on Cross-examination
{¶10} In his first assignment of error, Schwegmann argues that the trial
court abused its discretion in preventing him from cross-examining the victim about
prior threats to falsely accuse a person of domestic violence. “The limitation of * * *
cross-examination lies within the sound discretion of the trial court, viewed in
relation to the particular facts of the case. Such exercise of discretion will not be
disturbed in the absence of a clear showing of an abuse of discretion.” State v. Acre,
6 Ohio St. 3d 140, 145, 451 N.E.2d 802 (1983). An abuse of discretion is more than a
mere error in judgment; it suggests that the court acted in an unreasonable,
arbitrary, or unconscionable manner. State v. Adams, 62 Ohio St. 2d 151, 157-158,
404 N.E.2d 144 (1980).
{¶11} Under Evid.R. 608(B), a defendant is permitted to cross-examine a
victim regarding false accusations if they are clearly probative of truthfulness or
untruthfulness. State v. Husseln, 1st Dist. Hamilton No. C-020155, 2003-Ohio-1369,
¶ 8, citing State v. Boggs, 63 Ohio St. 3d 418, 421, 588 N.E.2d 813 (1992). In
addition, evidence of a prior false accusation is admissible under Evid.R. 616(A) to
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OHIO FIRST DISTRICT COURT OF APPEALS
show the victim's bias, prejudice, interest, or motive for misrepresentation. Husseln
at ¶ 9. Prior false accusations are clearly probative when the false accusation was
against the defendant. See State v. Messenger, 3d Dist. Marion No. 9-09-19, 2010-
Ohio-479, ¶ 52.
{¶12} Here, Thomas repeatedly testified that she had not called the police
and made any false accusations against any person, including Schwegmann. If
Schwegmann had obtained proof that she had made false accusations of domestic
violence against him to the police, it may have been probative of truthfulness and
admissible to show bias, prejudice, interest, or a motive for misrepresentation. See
id.
{¶13} However, Schwegmann sought to cross-examine Thomas regarding a
threat made to make a false accusation of domestic violence against Powell. An
alleged threat that did not involve Schwegmann is not clearly probative, especially in
light of Thomas’s testimony that she had not made any false accusations against
Schwegmann or anyone else. We cannot find that the trial court abused its
discretion by not allowing the cross-examination.
{¶14} Accordingly, we overrule the first assignment of error.
Manifest Weight of the Evidence
{¶15} In his second assignment of error, Schwegmann contends that his
conviction was against the manifest weight of the evidence because Thomas’s
testimony did not satisfy the cohabitation element. Specifically, he argues that the
record established that he had another residence that he shared with his mother
despite Thomas’s subjective belief that the two were cohabiting.
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{¶16} In determining whether the conviction is against the manifest weight
of the evidence, “th[is] court, reviews 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 [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.” State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983), quoted in State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541
(1997).
{¶17} R.C. 2919.25(A) provides: “No person shall knowingly cause or
attempt to cause physical harm to a family or household member.” “ ‘Family or
household member’ means (a) [a]ny of the following who is residing or has resided
with the offender: (i) A spouse, a person living as a spouse, or a former spouse of the
offender.” R.C. 2919.25(F)(1). “ ‘Person living as a spouse’ means a person * * * who
is cohabiting with the offender.” R.C. 2919.25(F)(2).
{¶18} In enacting the offense of domestic violence, the legislature intended
to protect persons from violence by residents of the same home. State v. McGlothan,
138 Ohio St. 3d 146, 2014-Ohio-85, 4 N.E.3d 1021, ¶ 17. Testimony that the victim
lived with the accused establishes they shared a residence. Id. at ¶ 15. Testimony
that the defendant was the victim’s boyfriend, and that they had lived together,
established cohabitation and that the two were living as spouses. Id.
{¶19} Thomas testified that she had been dating Schwegmann for six
months, and that they had been living together for about a month. She further stated
that he stayed overnight every night, and had moved most of his belongings into her
home, and that his daughter visited and had spent a few nights with them. When
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asked specifically if Schwegmann had another home with his mother, she again
stated that he was living with her and staying with her every night.
{¶20} Upon our review of the record, we cannot conclude that the trial court
lost its way and created a manifest miscarriage of justice in resolving the factual
issues. Thomas repeatedly testified that she and Schwegmann had been dating, he
lived with her for a month, and that he had moved most of his belongings into her
apartment. No evidence was presented to establish that Schwegmann lived with his
mother or had a second home with his mother.
{¶21} Because the record demonstrates that Schwegmann’s conviction was
not against the weight of the evidence, we overrule the second assignment of error.
Conclusion
{¶22} Having overruled Schwegmann’s assignments of error, we accordingly
affirm the trial court’s judgment.
Judgment affirmed.
MOCK, P.J., concurs.
MYERS, J., concurs separately.
MYERS, J., concurring separately.
{¶23} I write separately because, while I concur in the judgment, I would
find that the trial court abused its discretion in not allowing the victim to be cross-
examined about whether she threatened to falsely accuse anyone of domestic
violence. I would find, however, that the error was harmless, and thus concur in
affirming the trial court’s judgment.
{¶24} Evid.R. 608(B) permits cross-examination about specific instances of
conduct concerning the witness’s character for truthfulness or untruthfulness, so
long as they are clearly probative of the same. I would find that a threat to make a
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false allegation of domestic violence is clearly probative of truthfulness or
untruthfulness in a domestic-violence case. Whether extrinsic evidence of such a
threat would be admissible is not before us. However, I would find that the court
erred in disallowing the question on cross-examination. But because the error was
harmless in light of the overwhelming evidence, I would affirm the judgment.
Judgment affirmed.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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