State v. Crawford

[Cite as State v. Crawford, 2017-Ohio-4401.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patrica A. Delaney, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JAMES D. CRAWFORD : Case No. 16-CA-00011
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court
of Common Pleas, Case No. 15-CR-
0042
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 19, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. FLAUTT JAMES S. SWEENEY
Prosecuting Attorney James Sweeney Law, LLC
111 North High Street, P.O. Box 569 341 South Third Street, Suite 100
New Lexington, Ohio 43764 Columbus, Ohio 43215
Perry County, Case No. 16-CA-00011 2
Baldwin, J.
{¶1} Appellant James D. Crawford appeals a judgment of the Perry County
Common Pleas Court convicting him of felonious assault (R.C. 2903.11(A)(1)) and
sentencing him to five years incarceration. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On Friday April 25, 2014, Richard McGrath received a phone call from
appellant asking him to come over to talk about some problems appellant was
experiencing. McGrath lived with Kimberly Hanning, his long-term girlfriend, and drove
his pickup truck to appellant’s home.
{¶3} Appellant and McGrath drank beer and moonshine at appellant’s home,
before driving to the home of Darla Jackson in McGrath’s pickup truck. Appellant and
McGrath had a disagreement at Jackson’s home, and appellant stated to McGrath,
“[T]hen I’ll just beat the fuck out of you.” Tr. 139. The pair left Jackson’s home shortly
before midnight.
{¶4} After arriving back at appellant’s residence, McGrath made a statement to
appellant which appellant did not like. Appellant hit McGrath and drug him outside. While
outside, appellant continued to hit McGrath, kicked him in the jaw while wearing steel-
toed boots, and kicked him in the ribs.
{¶5} Appellant and a man Hanning did not know brought McGrath home the next
morning. They did not bring McGrath’s pickup truck, but sometime the next day Hanning
noticed the truck had been returned. McGrath was unable to walk and the men carried
him into the house with McGrath’s arms around their shoulders and his feet barely
Perry County, Case No. 16-CA-00011 3
touching the floor. They placed him in a recliner, which he promptly fell out of. Appellant
told Hanning that McGrath had fallen off a wall.
{¶6} Hanning noted that McGrath’s face looked strange, and he was barely able
to talk. He did not want her to call 911 or the police. She drug him into the bedroom
using a sheet, and took off his clothing. He moaned a lot. Eventually, he agreed that she
should call 911. He was initially treated at a hospital in Nelsonville before being
transferred to Grant Hospital in Columbus. Bruising on McGrath’s face, as depicted in
pictures taken at the hospital, resembled the imprint of a boot.
{¶7} McGrath woke up in the Columbus hospital with two broken jaws, a broken
leg, five broken ribs, and a broken shoulder. He had surgery on his jaw, and at the time
of trial needed surgery on his eye and shoulder.
{¶8} On the day after the assault, Clarence Fulk, appellant’s brother-in-law, had
a birthday party at his home. While at the party, appellant told Fulk that he and McGrath
got into a fight, and he might have choked McGrath. McGrath’s brother, Robert, was also
at the party. Appellant told Robert, “You’re [sic] fucking brother will never drink moonshine
in my house again.” Tr. 144. Appellant later told Robert that he “beat the hell out of him.”
Id.{¶9} Appellant was indicted on one count of felonious assault by the Perry
County Grand Jury. The case proceeded to jury trial in the Common Pleas Court.
{¶10} At trial, appellant presented the testimony of James Bray, a neighbor and
friend, who testified that he saw McGrath drive his pickup truck the Saturday morning
after the alleged assault. He remembered seeing McGrath because the pickup had a flat
tire. Appellant’s estranged wife testified that she saw McGrath sitting in his truck at
Perry County, Case No. 16-CA-00011 4
appellant’s house on Saturday morning, needing the truck’s battery charged, and he
appeared to be fine.
{¶11} Appellant testified that while McGrath was at his house, they drank beer and
moonshine. Appellant was grilling chicken and thought McGrath was going to “take a
leak.” Tr. 200. He then heard “moaning and groaning” as McGrath fell off a wall by the
side of the house. He was unable to lift McGrath because of his bad back, and called his
brother to help lift McGrath. He testified that they put McGrath to bed downstairs because
he was too drunk to drive.
{¶12} Appellant’s brother, Thomas Fulk, testified that appellant called him at about
2:00 in the morning because he wanted someone out of his house. When Fulk arrived,
he found appellant and McGrath in the living room, and both were impaired. He called
his uncle, David Starner, who testified that Fulk said he needed help with a “couple of
drunks.” Tr. 249. They testified that they ultimately took McGrath to a basement
bedroom, and they observed only minor injuries on him.
{¶13} The jury found appellant guilty as charged. The court convicted him of
felonious assault and sentenced him to five years incarceration.
{¶14} Appellant assigns three errors on appeal to this Court:
{¶15} “I. THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT
AGAINST THE APPELLANT WHEN THE JUDGMENT WAS NOT SUPPORTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶16} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER
APPELLANT’S MILITARY SERVICE AT SENTENCING AS REQUIRED BY
R.C.2929.12(F).
Perry County, Case No. 16-CA-00011 5
{¶17} “III. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
MOTION TO PRODUCE AND TRANSCRIBE GRAND JURY PROCEEDINGS.”
I.
{¶18} Appellant argues that the judgment convicting him of felonious assault is
against the manifest weight of the evidence. He specifically argues that the testimony of
McGrath identifying appellant as the assailant is not credible in light of the testimony of
appellant and the other defense witnesses.
{¶19} 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 (1997). 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. We note the weight to be
given to the evidence and the credibility of the witnesses are issues for the trier of fact.
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact “has the
best opportunity to view the demeanor, attitude, and credibility of each witness, something
that does not translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415,
418, 674 N.E.2d 1159 (1997).
Perry County, Case No. 16-CA-00011 6
{¶20} Appellant was convicted of felonious assault in violation of R.C.
2903.11(A)(1), which provides that no person shall knowingly cause serious physical
harm to another.
{¶21} While appellant is correct that the State’s witnesses and his witnesses
provided conflicting testimony about the events on the evening of April 25, 2014 and
McGrath’s condition the next morning, the judgment is not against the manifest weight of
the evidence. McGrath testified that appellant hit him and kicked him, causing him to
suffer two broken jaws, a broken leg, five broken ribs, and a broken shoulder. Manning
testified that when appellant and another man brought McGrath home the morning of April
26, 2014, McGrath was not able to walk and could barely talk.
{¶22} The testimony of McGrath that appellant assaulted him on the night of April
25, 2014, is further supported by the testimony of Darla Jackson, who testified that earlier
that evening, she heard appellant say to McGrath, “[T]hen I’ll just beat the fuck out of
you.” Tr. 139. Clarence Fulk, appellant’s brother-in-law, testified that at a birthday party
on Saturday, April 26, appellant told Fulk that he and McGrath got into a fight, and he
might have choked McGrath. McGrath’s brother, Robert, was also at the party. Robert
testified that appellant told him at the party, “You’re [sic] fucking brother will never drink
moonshine in my house again.” Tr. 144. Appellant later told Robert that he “beat the hell
out of him.” Id.{¶23} Although appellant and his witnesses testified that McGrath fell off a wall
outside appellant’s property and was only minimally injured, the credibility of witnesses is
primarily within the province of the jury. The jury did not lose its way in finding appellant
guilty of felonious assault.
Perry County, Case No. 16-CA-00011 7
{¶24} The first assignment of error is overruled.
II.
{¶25} In his second assignment of error, appellant argues that the trial court erred
in failing to consider his military service in sentencing.
{¶26} R.C. 2929.12(F) provides:
(F) The sentencing court shall consider the offender's military service record
and whether the offender has an emotional, mental, or physical condition
that is traceable to the offender's service in the armed forces of the United
States and that was a contributing factor in the offender's commission of the
offense or offenses.
{¶27} While the statute requires the court to consider the offender’s military
service, the statute does not require the trial court to make specific findings concerning
military service:
If the General Assembly had made the policy decision to require trial
courts to make explicit findings under R.C. 2929.12(F), then it could have
exercised its constitutional authority to do so. Instead, the statutory
language chosen merely guides a trial court's sentencing authority by
directing it to consider a defendant's military service, his physical/mental
condition traceable to his service, and whether that condition was a
contributing factor to the commission of the offenses, in the exercise of its
independent sentencing discretion. The General Assembly chose not to
require a trial court to make such findings, as it has with other sentencing
statutes.
Perry County, Case No. 16-CA-00011 8
{¶28} State v. Brooks, 7th Dist. Mahoning 14 MA 0150, 2016-Ohio-5685, ¶ 31,
appeal not allowed, 148 Ohio St.3d 1444, 2017-Ohio-1427, 72 N.E.3d 657, ¶ 31 (2017).
{¶29} The trial court stated that it considered the sentencing criteria contained in
R.C. 2929.12. While appellant testified at trial that he served in the Army Reserve for six
years, the record is devoid of any evidence that he has an emotional, mental or physical
condition traceable to his service which was a contributing factor in the commission of the
instant offense. We find no error in the trial court’s failure to make a specific finding
relative to military service.
{¶30} The second assignment of error is overruled.
III.
{¶31} In his final assignment of error, appellant argues that the trial court erred in
denying his motion for a transcript of McGrath’s grand jury testimony. In his motion,
appellant argued that the transcript was necessary to demonstrate that the victim had not
identified appellant as the assailant. He stated in the motion that he had a witness who
had spoken to McGrath multiple times about the incident, and McGrath told this witness
that he did not know how he was injured because he was drunk at the time. Appellant
argued that there was a “very real chance” that McGrath’s testimony before the grand jury
was inconsistent with what his testimony at trial would be concerning his ability to identify
his assailant.
{¶32} Ohio Crim. R. 6(E) provides, in part, that “[d]eliberations of the grand jury
and the vote of any grand juror shall not be disclosed.” However, if the defense shows a
“particularized need” for disclosure that outweighs the need for secrecy, all relevant
portions of a grand jury transcript should be produced. State v. Greer, 66 Ohio St.2d 139,
Perry County, Case No. 16-CA-00011 9
420 N.E.2d 982 (1981), paragraph two of the syllabus. A “particularized need” exists
“when the circumstances reveal a probability that the failure to provide the grand jury
testimony will deny the defendant a fair trial.” State v. Davis, 38 Ohio St.3d 361, 365, 528
N.E .2d 925 (1988). A claim of particularized need cannot be replete with speculation
and innuendo. State v. Stojetz, 84 Ohio St.3d 452, 460, 1999–Ohio–464, 705 N.E.2d 329.
Impeachment purposes may be a proper basis for disclosure of grand jury testimony, but
that purpose alone is not sufficient: the “particularized need” standard must still be met.
State v. Hernandez, 7th Dist. Columbiana No. 87-C-56, 1991 WL 44362, aff'd, 63 Ohio
St.3d 577, 589 N.E.2d 1310 (1992).
{¶33} The decision whether to release grand jury testimony “is within the
discretion of the trial court.” Greer, supra, at paragraph one of the syllabus. A decision to
deny release will not be reversed absent an abuse of discretion. State v. Brown, 38 Ohio
St.3d 305, 308, 528 N.E.2d 523 (1988). In order to find an abuse of discretion, the
reviewing court must determine that the trial court's decision was unreasonable, arbitrary,
or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶34} The trial court did not abuse its discretion in overruling appellant’s motion
for disclosure of the victim’s grand jury testimony. Appellant’s motion merely speculated
that McGrath may have failed to identify appellant as the offender in his grand jury
testimony based on the statement of a witness who claimed McGrath stated he could not
identify his assailant. As noted in Hernandez, supra, a defendant must show a
particularized need for disclosure beyond the mere use of the grand jury testimony for
impeachment purposes. Appellant did not do so in the instant case.
Perry County, Case No. 16-CA-00011 10
{¶35} The third assignment of error is overruled.
{¶36} The judgment of the Perry County Common Pleas Court is affirmed. Costs
are assessed to appellant.
By: Baldwin, J.
Delaney, P.J. and
Hoffman, J. concur.