State v. Graf
| Citation | 191 N.E.3d 539 |
| Decision Date | 24 June 2022 |
| Docket Number | 29202 |
| Parties | STATE of Ohio, Plaintiff-Appellee v. Elizabeth A. GRAF, Defendant-Appellant |
| Court | Ohio Court of Appeals |
STEPHANIE L. COOK, Atty. Reg. No. 0067101 and ANDREW D. SEXTON, Atty. Reg. No. 0070892, Assistant City of Dayton Prosecuting Attorneys, 335 West Third Street, Room 119, Dayton, Ohio 45402, Attorneys for Plaintiff-Appellee.
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, Ohio 45434, Attorney for Defendant-Appellant.
{¶ 1} Elizabeth A. Graf appeals from her conviction of aggravated menacing following a bench trial on charges of aggravated menacing and menacing.
{¶ 2} Graf contends the trial court erred in denying her a new trial after relying on information outside the record to assess her credibility and find her guilty.
{¶ 3} We conclude that the trial court improperly found Graf's trial testimony not credible based on its observation of her out of court on prior occasions. The trial court erred in relying on these other incidents to assess her credibility. The error violated Graf's due-process right to a fair trial. Accordingly, the trial court's judgment will be reversed, and the case will be remanded for a new trial.
{¶ 4} Graf was charged by complaint with aggravated menacing, a first-degree misdemeanor, and menacing, a fourth-degree misdemeanor. The charges involved her allegedly making threats to the victim, Luanna Burt. The case proceeded to a June 22, 2021 bench trial. The first witness at trial was Burt. She testified that she was home sitting at a table in her fenced yard on the evening of June 6, 2021, when she heard her dog barking. Burt looked up and saw her dog at her fence line. On the other side of the chain-link fence Burt saw Graf walking her own dog. Graf and her dog were just outside the fence but in Burt's yard. Graf appeared to be trying to provoke her dog to attack Burt's dog. Burt approached and asked Graf to walk her dog on the other side of the street where there was a sidewalk. According to Burt, Graf responded with a barrage of obscenities and racial slurs. Graf also unleashed her dog and sought to coax it into attacking Burt. According to Burt, Graf then pulled a knife, pointed it at her, and threatened to kill her. Burt retreated to call the police. Graf left the scene but returned minutes later in a car. Burt testified that Graf circled the block a few times and pulled up onto Burt's property before finally leaving.
{¶ 5} The prosecution's next witness was Burt's boyfriend, Jerome Arnold. He testified that he was approaching Burt's house on foot when he heard yelling. As he got closer, he saw Graf and her dog near Burt's chain-link fence. Arnold spoke to Graf and tried to get her to continue on her way. He testified that she responded by directing obscenities and racial slurs at him. Arnold decided to go inside Burt's house. As he started to do so, he saw Graf brandish a knife. He also heard her threaten to "gut" Burt. According to Arnold, Graf left but returned minutes later in a car. She pulled up over the curb in the grass while honking her horn and yelling.
{¶ 6} The final prosecution witness was Roy Barber, a neighbor. Barber testified that he lived two doors down from Burt. He went outside on his front porch after hearing "loud mouth cussing." He recalled seeing Graf and her dog across the street on a sidewalk where Graf was yelling obscenities and racial slurs at Burt. At one point, Barber saw Graf unleash her dog and shake the leash at Burt. Although Barber did not see Graf with a knife, he heard Burt say "oh, she's got a weapon." According to Barber, Burt then went inside her house and Graf left with her own dog. Barber testified Graf returned minutes later in a car, honking her horn and screaming. On cross-examination, Barber stated that he did not see Burt's dog outside. He also reiterated that he saw Graf and her dog across the street on a sidewalk, where they remained throughout his observation. Following Barber's testimony, the prosecution rested.
{¶ 7} Graf then testified in her own defense. She explained that she was walking her dog, a "rescue lab," on the sidewalk near Burt's property. As she did so, Burt's dog became excited and started barking. According to Graf, Burt responded by yelling at her and "running out of the fence." Graf testified that she was scared, that she asked to be left alone, and that she tried to continue on her walk. Graf denied threatening Burt in any way and specifically denied threatening to kill or "gut" her. Graf denied even possessing a knife during the incident. She also testified that she did not have a knife in her possession when police arrested her later that evening. On cross-examination, Graf denied raising her voice at Burt, calling Burt any names, unleashing her dog, or returning in a car.
{¶ 8} After hearing arguments from counsel, the trial court ruled from the bench and found Graf guilty of aggravated menacing and menacing. In support, the trial court reasoned:
* * * I do find the testimony of the three witnesses to be credible. I do not find the defendant's testimony to be credible in this case. I will note that this court, myself, I have experienced Ms. Graf, out here at our warrant enforcement window with extremely erratic and unexplainable behavior, so I know there is some components there. I know she is prone to that. I know we've had at least two or three incidents with her on cases that she did not have and that did not exist, but she was here yelling at our warrant enforcement office. And I've had to ask her myself, multiple times, to leave the building. So, I know Ms. Graf is capable of that type of behavior. So, I do find the State has met its burden in proving guilty beyond a reasonable doubt. Will enter findings of guilty as to both charges. * * *
{¶ 9} Prior to sentencing, Graf moved for a new trial under Crim.R. 33 and for voluntary recusal of the judge who presided over her trial. The trial court heard arguments on the motion on July 8, 2021. Graf's motion was predicated on the trial court's resolving witness credibility based on its out-of-court prior interactions with her. Graf claimed that the trial court's remarks revealed an improper bias against her testimony. The trial court rejected Graf's argument, insisting that its credibility determination was based solely on the testimony presented. In support of its ruling, the trial court stated:
Ok. The court, as we do with every jury and as I've made every effort to in my fifteen years on the bench, decided this case solely on the evidence presented here in this courtroom. Although the court did have prior interactions with Ms. Graf, the court did not use any of those interactions to weigh her credibility here in court. None of those prior actions had anything to do with credibility or her credibility or testing her credibility here in court. The court—all of the judges in this court have situations where we've had defendants in front of them for prior cases. We've made decisions on their cases in prior cases. We must lay all of that aside when hearing new cases. We hear these cases based upon the evidence solely presented during the case. That is what I did in this case. * * *
{¶ 10} The trial court proceeded to set forth a rationale, based on the trial testimony presented, for finding the State's witnesses to be more credible than Graf. Id. at 15-16. The trial court then insisted again that its verdict was based exclusively on the evidence presented, stating:
* * * Everything in this case was decided solely on the testimony presented in court. The evidence presented in court. That is where the issues of credibility came up. None of the other issues were factored in with regards to the determination of the defendant's guilt in this case. Having only seeing [sic] Ms. Graf on one or two occasions for literally seconds, I don't know her. I have no ill will towards her. She doesn't live in my neighborhood. She is just another defendant in this court. So I am going to overrule the motion at this point and maintain the guilty finding in this case. And then deny the motion for voluntary recusal, as well. * * *
{¶ 11} The trial court later merged aggravated menacing and menacing as allied offenses of similar import for sentencing. The prosecution elected to proceed on aggravated menacing. The trial court imposed a partially-suspended jail term and ordered Graf to serve two years of supervised probation. It also imposed a fine and ordered Graf to pay court costs. Finally, the trial court overruled Graf's motion to stay execution of sentence pending appeal.1
{¶ 12} In her sole assignment of error, Graf challenges the trial court's denial of her new-trial motion. She notes that the trial court explicitly referenced its own prior experiences with her when resolving the conflicting evidence and finding her guilty. She argues that the trial court allowed its prior knowledge of her to contaminate the proceeding and to create at least an appearance of improper bias or partiality.
{¶ 13} For its part, the State contends the trial court's challenged comments do not warrant a new trial. The State argues that the testimony of its witnesses established the elements of the charged offenses. The State also cites the trial court's assertion at the post-trial hearing that its verdict was based solely on the evidence presented. Finally, the State claims there is no reasonable probability that the outcome would have been different but for the trial court's remarks about Graf's prior behavior.
{¶ 14} Typically, we review a trial court's ruling on a Crim.R. 33 new-trial motion for an abuse of discretion. State v. Russell , 2d Dist. Clark No. 2020-CA-17, 2021-Ohio-4106, 2021 WL 5410643, ¶ 29. However, when the motion alleges a violation of a defendant's due-process...
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