State v. Whitby

[Cite as State v. Whitby, 2012-Ohio-264.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96626
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
REBECCA A. WHITBY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-526567
BEFORE: S. Gallagher, J., Celebrezze, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: January 26, 2012
ATTORNEYS FOR APPELLANT
Jennifer Scott
P.O. Box 770403
Lakewood, OH 44107
William L. Summers
William L. Summers & Associates Co., LPA
Landerbrook Corporate Center II
5910 Landerbrook Drive, Suite 200
Cleveland, OH 44124
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Sherrie S. Royster
T. Allan Regas
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant, Rebecca Whitby, appeals her conviction in the Cuyahoga County
Court of Common Pleas for one count of assault on a peace officer and two counts of
resisting arrest. For the reasons stated herein, we affirm.
{¶ 2} The charges in this case stem from an incident occurring on April 25, 2009.
On that date, appellant’s father called 911 and, with a sense of urgency, reported that
appellant was drunk and that he needed a mediator. Cleveland police officers Mitchell
Sheehan and James Bryant responded to the radio dispatch for an “intoxicated
disturbance” at 886 Alhambra in Cleveland. Upon their arrival, the officers were let
inside by appellant’s father.
{¶ 3} According to Officer Sheehan’s version of events, appellant was being held
back by her mother. Appellant had a little foam in the corner of her mouth, her eyes
were “real wide,” and she was swearing and screaming. Officer Sheehan testified that
appellant cursed at and tried to charge her father. When the officer tried to stop
appellant, she tried to punch the officer, cursed at him, and spat in his eyes and nose.
Officer Sheehan attempted to take appellant to the ground to get her under control and
handcuff her. The two fell to the floor. Officer Sheehan stated appellant was trying to
hit him, she was biting his elbow and chest, she was spitting at him, and she began
grabbing at his gun. He called out to his partner, who punched appellant in the head and
face. According to Officer Sheehan, appellant then lunged at Officer Bryant’s weapon,
causing Officer Bryant to punch the appellant again. She was then placed in handcuffs.
{¶ 4} While the officers took appellant down the stairs, she was spitting and
kicking at them, and she was trying to bite them. Officer Sheehan stated appellant’s
mother came from behind and pushed them, causing them to fall down the steps. The
officers continued to struggle with appellant while taking her outside and placing her in
the police car. Numerous other officers arrived on scene. Officer Bryant’s testimony
was largely consistent with the testimony of Officer Sheehan.
{¶ 5} Appellant’s father, Timothy Walker, testified that although his daughter had
been drinking, he was mistaken in his choice of words that she was drunk. He stated that
when the officers arrived, he informed them they were no longer needed and everything
was fine. His grandson was also in the home at the time. Appellant’s father claimed the
officers proceeded upstairs, knocked on a closed door to the bathroom where his wife and
daughter were, and demanded appellant come out so they could arrest her. He stated the
officers arm-barred appellant in the face, tackled her to the ground, and punched her in
the ribs and face. He denied that appellant ever tried to grab for the officers’ guns.
Walker testified the officers continued to assault appellant as they handcuffed her and
dragged her down the stairs and through the front door. He stated other officers had
arrived on scene, and they surrounded appellant on the front porch. He claimed the
officers kicked and stomped on appellant, threw her into the police car “like she was a
sack of potatoes,” and tased her.
{¶ 6} Officer Michael Dunst responded to the scene to investigate the use of
nondeadly force. He concluded that the officers used nondeadly force to effect the
arrest, acted appropriately and did not use excessive force, and complied with applicable
rules, regulations, and procedures.
{¶ 7} Dawn Garrison, who was an inmate on the date of the incident, testified that
another inmate threw toilet water on her and was acting like she was insane, and a fight
broke out. Michelle Walker, a corrections officer, responded to the fight and observed
that the inmate was wet. Walker stated that appellant was “more or less out of it, real
excited, jumpy, real irate[.]” Walker testified appellant was swinging and kicking while
being removed from the cell. Walker claimed she sustained personal injuries and went to
the hospital for treatment.
{¶ 8} Appellant testified that she had been drinking that night but was not drunk.
She was in the bathroom having a discussion with her mother when the police arrived.
The women informed the officers everything was okay. Appellant stated the officers told
her to come out of the bathroom and stated they were going to arrest her. She claims the
officers grabbed her arm, tackled her to the ground, punched and hit her in the face, head
and ribs, and choked her neck. She denied spitting at the officers. She claims the
officers handcuffed her, carried her down the stairs and dropped her, and slammed her
down on the front porch where she was stomped on and kicked. She stated she was
thrown into the police car, but did not recall being tased. She denied throwing toilet
water on the other inmate, and claimed water may have accidently spilled on her. She
claimed that when she was released from jail, she was told she was not being charged
with anything. She denied having been hit by the other inmate and claimed her injuries
were sustained from the officers in her home. It was not until she filed a complaint
against the officers that she found out she was being charged.
{¶ 9} Appellant’s mother, also named Rebecca Whitby, testified to her account of
the police assault on her daughter. She denied grabbing or pulling at the officers. A
few neighbors who claimed to have witnessed the portion of events transpiring outside
the home also testified for the defense.
{¶ 10} Detective Albert Sardon investigated the allegations of assault on the police
officer. He found the officers’ reports were incomplete. After speaking with the
officers, it was his impression that appellant was wild and out of control. He testified to
proper handgun retention techniques. He indicated that Officer Bryant had stated he was
not aware of appellant’s attempts to grab his service weapon. He conceded that the word
“grabbed” appeared in the field report in reference to Officer Sheehan’s service weapon.
He also determined, based on his investigation, to present the case to a prosecutor.
{¶ 11} Photographs were taken of appellant following the altercation with the
inmate. The photographs depicted bruising to her left shoulder, redness on her right
shoulder, a cut to her lower left face near her neck line, and a cut to her forehead. Police
photographs of Officer Sheehan showed saliva on his uniform, as well as scratches and
bite marks on certain parts of his body. DNA evidence could not exclude the saliva on
Officer Sheehan’s uniform from belonging to appellant. No visible prints were found on
the officers’ guns. The state also introduced evidence demonstrating that the police
officers were not issued tasers until January 2010, which was after the incident herein.
{¶ 12} As a result of the incidents occurring at appellant’s home and at the jail,
appellant was charged in two separate cases. In State v. Whitby, Cuyahoga C.P. No.
CR-526567 (Mar. 8, 2011), she was indicted for one count of felonious assault on a peace
officer (R.C. 2903.11(A)(1)), two counts of assault on a peace officer (R.C.
2903.13(C)(3)), two counts of aggravated robbery (R.C. 2911.01(B)(1)), two counts of
resisting arrest (R.C. 2921.33(B)), and one count of endangering children (R.C.
2919.22(A)). Appellant’s mother was indicted as a codefendant for obstruction of
justice. The first charge of felonious assault later was nolled, and the remaining count
numbers were adjusted. In State v. Whitby, Cuyahoga C.P. No. CR-532867 (Feb. 7,
2011), appellant was indicted for felonious assault on a peace officer (R.C.
2901.11(A)(1)) and assault against a corrections officer (R.C. 2903.13(A)).
{¶ 13} The trial court denied a motion to sever the cases. The court also refused
to grant an oral motion made by the codefendant’s counsel for the transcription of the
grand jury testimony of the two officers testifying in the case. Ultimately, the cases
proceeded to a jury trial. The trial court denied appellant’s Crim.R. 29 motion, which
was made at the close of the state’s case and at the close of the defense’s case in chief.
{¶ 14} In Cuyahoga C.P. No. CR-526567, appellant was found guilty of one count
of assault on a peace officer and two counts of resisting arrest. She was found not guilty
of the remaining counts. In Cuyahoga C.P. No. CR-532867, appellant was found not
guilty on all counts. The trial court sentenced appellant to a prison term of six months
for the assault on a peace officer count, and to time served for the resisting arrest counts.
The court ordered her to pay her court costs and $40 in restitution to Officer Sheehan.
The court also advised appellant of postrelease control.
{¶ 15} Appellant filed this appeal, raising five assignments of error for our review.
Her first assignment of error provides as follows: “I. The appellant and certain jurors
were denied equal protection of the laws by the state’s systematic exclusion of
prospective jurors solely because of their race and gender.”
{¶ 16} Appellant argues that the state engaged in race and/or gender discrimination
when exercising three of its peremptory challenges and offered no more than perfunctory
responses to appellant’s Batson claim.
{¶ 17} In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),
the United States Supreme Court recognized that the Equal Protection Clause of the
United States Constitution prohibits the use of peremptory challenges in a discriminatory
manner to exclude potential jurors solely on account of their race. Id. at 89; see also
State v. Hernandez, 63 Ohio St.3d 577, 581, 589 N.E.2d 1310 (1992).
A court adjudicates a Batson claim in three steps. First, the opponent of
the peremptory challenge must make a prima facie case of racial
discrimination. Second, if the trial court finds this requirement fulfilled,
the proponent of the challenge must provide a racially neutral explanation
for the challenge. Third, the trial court must decide, based on all the
circumstances, whether the opponent has proved purposeful racial
discrimination. A trial court’s finding of no discriminatory intent will not
be reversed on appeal unless clearly erroneous.
In step three, the trial court may not simply accept a proffered race-neutral
reason at face value, but must examine the prosecutor’s challenges in
context to ensure that the reason is not merely pretextual. (Citations and
quotations omitted.) State v. Frazier, 115 Ohio St.3d 139,
2007-Ohio-5048, 873 N.E.2d 1263, ¶ 64-65.
{¶ 18} Here, three of the five jurors excused by the state through its peremptory
challenges were African-American. After defense counsel raised a Batson challenge, the
state offered the following reasons for excluding the prospective jurors. Juror No. 3 was
excused because of “some of the responses about how he feels about police officers.”
During voir dire, the juror indicated that he had negative experiences with police officers
as the victim of a robbery. Juror No. 12 was excused because “he seemed to have a lack
of interest when being questioned.” Juror No. 13 was excused for being vague in her
description of her husband’s employment with the Sheriff’s Department and being
evasive regarding her own employment history. After considering the arguments of
counsel, the trial court accepted the state’s race-neutral reasons. In the end, the jury was
comprised of nine women and three men, and two of the jurors were African-American.
{¶ 19} The state cites other cases in which similar reasons for excusing jurors have
been found legitimate and non-discriminatory. See State v. Ford, 8th Dist. No. 90834,
2008-Ohio-5471, 2008 WL 4681786 (negative experiences with police); State v.
Williams, 8th Dist. No. 96244, 2011-Ohio-4126, 2011 WL 3654012 (uninterested in
proceeding); State v. Tichavakunda, 8th Dist. No. 78775, 2001 WL 1001103 (Aug. 23,
2001) (evasive responses). Upon our review, we do not find the trial court’s decision
was clearly erroneous. Appellant’s first assignment of error is overruled.
{¶ 20} Appellant’s second assignment of error provides as follows: “II. The
appellant was denied her constitutional right of due process based upon the failure of the
court to sever the two cases for purposes of trial.”
{¶ 21} Under Crim.R. 13, a court may order two or more cases be tried together “if
the offenses * * * could have been joined in a single indictment * * *.” Pursuant to
Crim.R. 8(A), two or more offenses may be joined if the offenses “are of the same or
similar character * * * or are based on two or more acts or transactions connected
together or constituting parts of a common scheme or plan, or are part of a course of
criminal conduct.” While the law favors the joinder of offenses that are of the “same or
similar character,” a defendant may move to sever the charges under Crim.R. 14 upon a
showing of prejudice. State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990).
The defendant, however, bears the burden of proving prejudice and of
proving that the trial court abused its discretion in denying severance.
The state may rebut a defendant’s claim of prejudicial joinder in two ways.
First, if in separate trials the state could introduce evidence of the joined
offenses as “other acts” under Evid.R. 404(B), a defendant cannot claim
prejudice from the joinder. Second, the state can refute prejudice by
showing that “evidence of each crime joined at trial is simple and direct.”
(Internal citations omitted.) State v. Diar, 120 Ohio St.3d 460,
2008-Ohio-6266, 900 N.E.2d 565, ¶ 95-96.
{¶ 22} Because appellant did not renew her objection to joinder at the close of
evidence, she has waived all but plain error. See State v. Miller, 105 Ohio App.3d 679,
691, 664 N.E.2d 1309 (4th Dist.1995); State v. Ferren, 8th Dist. No. 95094,
2011-Ohio-3382, 2011 WL 2651090, ¶ 34. Here, the charges in each case involved
appellant’s alleged assault against peace officers. The alleged acts were committed on
the night of April 25, 2009 and into the early morning hours of April 26, 2009. The first
action stemmed from the incident involving the police officers at appellant’s home, while
the second action stemmed from the incident with the corrections officer at the jail
following the earlier arrest. Only a few hours separated these incidents. The trial court
specifically instructed the jury that “the charges in the indictments constitute separate and
distinct matters” and to consider each count separately. The evidence in each matter was
simple and direct such that the jury was readily able to segregate the proof on each
charge, as demonstrated by their acquittal on all charges in Cuyahoga C.P. No.
CR-532867.
{¶ 23} Upon our review, we find the trial court properly joined the action and the
claim of prejudicial joinder was refuted. Accordingly, appellant has not demonstrated
error, let alone plain error, in the trial court’s failure to sever the two cases for purposes of
trial. Appellant’s second assignment of error is overruled.
{¶ 24} Appellant’s third assignment of error provides as follows: “III. The
evidence was insufficient to sustain a finding of guilty because the state failed to present
evidence to establish beyond a reasonable doubt the elements necessary to support the
conviction.”
{¶ 25} When an appellate court reviews a claim of insufficient evidence, “‘the
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. Leonard, 104 Ohio St.3d 54,
2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492, paragraph two of the syllabus (1991). The weight to be given the evidence
and the credibility of the witnesses are primarily for the trier of fact. State v. Tenace, 109
Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. A motion for acquittal under
Crim.R. 29(A) is governed by the same standard used for determining whether a verdict is
supported by sufficient evidence. Id.{¶ 26} Appellant was convicted of one count of assault on a peace officer in
violation of R.C. 2903.13(C)(3), which provides: “No person shall knowingly cause or
attempt to cause physical harm to another * * *. If the victim is a peace officer * * *
assault is a felony of the fourth degree.”
{¶ 27} Appellant was also convicted of two counts of resisting arrest in violation
of R.C. 2921.33(B), which provides: “No person, recklessly or by force, shall resist or
interfere with a lawful arrest of the person * * * and, during the course of or as a result of
the resistance or interference, cause physical harm to a law enforcement officer.”
{¶ 28} Our review of the record reflects that Officers Sheehan and Bryant testified
that they responded to appellant’s home after the police received a 911 call from
appellant’s father reporting that his daughter “came in drunk and she is kind of out of
control.” When the police arrived, they observed the appellant screaming, swearing, and
foaming from her mouth. When Officer Sheehan attempted to stop appellant from
charging her father, she cursed and spit at Officer Sheehan and attempted to punch him.
She continued to assault the officer as he tried to handcuff her. After being placed in
handcuffs, she was spitting, kicking, and biting at the officers.
{¶ 29} While there were some inconsistencies in the testimony of the officers, a
review of the entire record shows that their testimony was neither inherently unreliable
nor unbelievable. Photographs were introduced depicting saliva on Officer Sheehan’s
uniform, a scratch on his neck, and bite marks on his arm. DNA testing could not
exclude appellant as the source of saliva.
{¶ 30} The defense witnesses offered a different account of events, suggesting
police brutality. However, appellant’s booking photo, which was taken after her fight
with another inmate, depicted only minor injuries. Also, there were some inconsistencies
in the testimony of the witnesses, and there was evidence rebutting the claimed use of
tasers by the police officers. The jury was able to consider the credibility of the
witnesses and weigh the evidence presented.
{¶ 31} Sufficient evidence was presented to establish that appellant knowingly
committed assault against a peace officer and forcefully resisted a lawful arrest. We
find, when viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the offenses proven beyond a
reasonable doubt. Appellant’s third assignment of error is overruled.
{¶ 32} Appellant’s fourth assignment of error provides as follows: “IV.
Appellant’s convictions were against the manifest weight of the evidence.”
{¶ 33} In reviewing a claim challenging the manifest weight of the evidence, the
question to be answered is whether
there is substantial evidence upon which a jury could reasonably conclude
that all the elements have been proved beyond a reasonable doubt. In
conducting this review, we must examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the
witnesses, and determine whether the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered. (Internal citations and quotations omitted.)
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, at ¶ 81.
{¶ 34} Appellant’s argument is based on the credibility of the officers and the
inconsistencies in their testimony. Though there were some discrepancies, the testimony
of the officers was fairly consistent. The officers detailed appellant’s assault on Officer
Sheehan and her subsequent resistance to arrest. The jury chose to believe the officers’
account of events. After carefully reviewing the record, weighing the evidence, and
considering witness credibility, we cannot say the jury clearly lost its way and created a
manifest miscarriage of justice in convicting appellant of the assault on a peace officer
and resisting arrest charges. Appellant’s fourth assignment of error is overruled.
{¶ 35} Appellant’s fifth assignment of error provides as follows: “Appellant was
denied her constitutional right of due process and to confront her accusers when the trial
court failed to allow defense counsel an in camera inspection of the grand jury
testimony.”
{¶ 36} The oral motion for the grand jury transcripts was made by the
codefendant’s counsel. Because appellant never requested the transcripts or objected to
the denial of the same, she has waived all but plain error. See State v. Jennings, 10th
Dist. Nos. 09AP-70 and 09AP-75, 2009-Ohio-6840, 2009 WL 5062117, ¶ 27; State v.
Crosky, 10th Dist. No. 06AP-816, 2007-Ohio-6533, 2007 WL 4285153, ¶ 23, fn. 3
(“Appellant’s failure to object, notwithstanding her co-defendant’s objection, waives all
but plain error”).
{¶ 37} The Ohio Supreme Court has recognized a limited exception to the general
rule of grand jury secrecy:
[A]n accused is not entitled to review the transcript of grand jury
proceedings unless the ends of justice require it and there is a showing by
the defense that a particularized need for disclosure exists which outweighs
the need for secrecy. A particularized need is established when the
circumstances reveal a probability that the failure to provide the grand jury
testimony will deny the defendant a fair trial. Determining whether a
particularized need exists is a matter within the trial court’s discretion.
(Internal citations and quotations omitted.) State v. Lang, 129 Ohio St.3d
512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 41.
{¶ 38} Further, a speculative claim that the grand jury testimony might contain
material evidence or might aid in cross-examination does not establish a particularized
need. Id. at ¶ 44.
{¶ 39} Here, the stated need for the grand jury testimony was counsel’s desire to
review the testimony for possible impeachment of the officers. Information concerning
the testimony was purportedly provided by the grand jury foreman who signed the
indictments. The trial court noted that the foreman had arguably violated his grand jury
oath, and found the defense still had not demonstrated any particular need. It further
deferred any ruling until the filing of a written motion. No such motion was filed.
{¶ 40} Our review reflects that the request was based on no more than a
speculative belief that the grand jury testimony might contain inconsistencies. Ohio
courts have consistently found that a particularized need is not shown by anticipated
inconsistencies. State v. Godfrey, 181 Ohio App.3d 75, 2009-Ohio-547, 907 N.E.2d
1230 (3d Dist.), ¶ 16; State v. Luks, 8th Dist. No. 89869, 2008-Ohio-3974, 2008 WL
3126177, ¶ 48. Crosky, 2007-Ohio-6533, 2007 WL 4285153, at ¶ 124.
{¶ 41} Finding no error by the trial court, we overrule appellant’s fifth assignment
of error.
Judgment affirmed.
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
FRANK D. CELEBREZZE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR