State v. Houk

• Decision Date: 10 April 2020
• Docket Number: No. 19CA02,19CA02
• Parties: STATE of Ohio, Plaintiff-Appellant, v. Branda HOUK, Defendant-Appellee.
• Court: Ohio Court of Appeals

153 N.E.3d 556

2020 Ohio 1547

STATE of Ohio, Plaintiff-Appellant,

v.Branda HOUK, Defendant-Appellee.

No. 19CA02

Court of Appeals of Ohio, Fourth District, Washington County.

DATE JOURNALIZED: April 10, 2020

DECISION AND JUDGMENT ENTRY

ABELE, J.

{¶ 1} This is an appeal from a Marietta Municipal Court judgment that granted a motion for a mistrial and dismissal with prejudice requested by Branda Houk, defendant below and appellee herein. The State of Ohio, plaintiff below and appellant herein, assigns three errors for review:

FIRST ASSIGNMENT OF ERROR:

"WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING DEFENDANT-APPELLEE'S ORAL MOTION FOR A MISTRIAL."

SECOND ASSIGNMENT OF ERROR:

"WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DISMISSED DEFENDANT-APPELLEE'S CASE."

THIRD ASSIGNMENT OF ERROR:

"WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY SIGNING THE ENTRY OF DISMISSAL PROFFERED UNILATERALLY BY DEFENDANT-APPELLEE OVER PROSECUTORIAL OBJECTION, AND WITHOUT ALLOWING THE

STATE TO BE HEARD ON THE RELEVANT LEGAL PRINCIPLES."

{¶ 2} Appellee, the alleged driver in a single vehicle accident, left the accident scene before police arrived. Subsequently, law enforcement authorities filed a complaint and alleged that appellee: (1) operated a vehicle while under the influence of alcohol and/or drugs in violation of R.C. 4511.19(A)(1)(a) ; (2) left the scene of an accident in violation of R.C. 4549.03(A) ; and (3) failed to maintain control of her vehicle. Appellee pleaded not guilty, appealed her administrative license suspension and demanded a jury trial.

{¶ 3} On September 17, 2018, appellant, the State of Ohio, filed a pre-trial Evid.R. 404(B) notice of evidence and request for a special limiting instruction. The state provided notice that its witness, Adam Muntz, stated that appellee spoke to him at the accident scene and indicated that she had one or more prior OVIs. The state thus indicated that the evidence in question consists of appellee's "criminal history, revealing two previous convictions for OVI dating November 1, 2013 and December 10, 2008 (convictions for prior acts)." The state further indicated it anticipated that appellee may "seek to dispute the credibility of eyewitness Adam Muntz on the veracity of his testimony that she stated to him that he should not report the accident because it would be her third OVI. This evidence of prior convictions would tend to show proof of the matters covered by Crim.R. 404(B)(motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) in corroboration with Mr. Muntz's testimony."

{¶ 4} Prior to the start of the February 5, 2019 jury trial, the parties discussed with the court issues concerning the appellee's prior OVI convictions. During that conference, the prosecutor stated that he would not discuss the prior OVI evidence during opening statement. Apparently, the parties and the court planned to address the issue when Muntz testified. However, after the court empaneled the jury and during opening statement, the prosecutor mentioned Muntz's anticipated testimony and explicitly stated "Mr. Muntz tells the Trooper that the woman tells him not to call the police because she cannot afford another DUI." Appellee thereupon requested a mistrial. The prosecutor responded "I did not agree not to mention the prior convictions from her statements, which are statements against interest, which may be proved by extrinsic evidence when it comes up."

{¶ 5} After a lengthy discussion, the trial court listened to the parties' recorded statements about any mention of appellee's prior OVI convictions during opening statement. That in-chambers discussion included the following dialogue:

DEFENSE COUNSEL: Yes, I have a question. First of all, I need to ask the Court, since the Court is not making a ruling about this prior coming in, at this point, then that should not be talked about in opening?

COURT: I don't know what his witness is going to say. If his witness says that, I mean, it is.

DEFENSE COUNSEL: Right. But I don't think it would be appropriate for the state in its opening to tell the jury that she has a prior conviction.

PROSECUTOR: To allay [Defense Counsel's] concerns, that was never part of the opening and will not be.

After consideration, the trial court granted appellee's motion for a mistrial. The court's entry provides:

the parties agreed that the prior OVI convictions of the Defendant would not be communicated to the jury during opening statements or otherwise until testimony from witnesses for the State was received by the Court and jury. Contrary to the agreement of counsel, the Assistant Law Director informed the jury during his opening statement that there would be evidence that the Defendant had prior convictions of OVI. At the conclusion of the attorney's opening statement, counsel for the Defendant made a motion for a mistrial.

The trial court concluded that, based upon "argument of counsel, the review of the record and it appearing proper to do so," the court granted appellee's motion for mistrial and subsequently dismissed the complaints with prejudice. This appeal followed.

I.

{¶ 6} In its first assignment of error, appellant asserts that the trial court abused its discretion by granting appellee's motion for a mistrial.

{¶ 7} Appellant argues that the prior OVI conviction evidence would: (1) support the witness's claim that he spoke with appellee at the scene; (2) establish appellee's identity as the vehicle's driver; and (3) show a motive for leaving the scene of the accident. Appellant claims that the witness, Muntz, heard the appellee's spontaneous admission about being in a similar condition in the past and this statement is strong evidence of the appellee's belief about her impairment. Appellant then contends that the "Defendant's statement was not necessarily an admission to having been charged with or convicted of anything: the charges/conviction would have become relevant only in the event of a dispute about whether this statement was made in the first place." Apparently, prosecutor appears to distinguish between extrinsic evidence of conviction that it anticipated it may use if cross-examination of the witness went a certain way, and the use of the statement that appellee allegedly made to that witness. Appellant also contends that the trial court's non-journalized oral decision did not give the prosecutor notice that a decision had been made, nor clarified the particulars of that ruling.

{¶ 8} Appellee, however, asserts that the prior convictions are not an element of the offense in the case at bar and the jury "would tend I believe to convict her of this case, based on her prior OVI rather than the facts as they would come out." Appellee further argues that the obvious prejudicial nature of the prior conviction evidence, and risk of the improper use of that evidence, reasonably supports the trial court's decision to prohibit any mention of appellee's prior convictions, at least until the witness who allegedly heard the accused's statement testifies about the exact nature of the alleged conversation.

{¶ 9} In general, the grant or denial of a motion for a mistrial rests in a trial court's sound discretion and should not be disturbed on appeal absent an abuse of that discretion. State v. Treesh , 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). To establish an abuse of discretion by failing to grant a mistrial, a defendant must demonstrate material prejudice. See State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 198. "Mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible." State v. Franklin , 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991).

{¶ 10} In support of its argument that the trial court's grant of the appellee's motion for mistrial constitutes an abuse of discretion the state cites Columbus v. Miller , 10th Dist. Franklin No. 89AP-111, 89AP-112, and 89AP-113, 1989 WL 104381. In Miller , the defendant allegedly stated that he would not take a breathalyzer test because he did not have a license to lose. During opening statement, after the prosecutor referred to Miller's statement, Miller objected and requested a mistrial. The court concluded that "it is not clear on this record that the prosecutor's misquotation of defendant's alleged statement was a deliberate attempt to sway the jury with prejudicial information." Id. at *2. The court also noted that the statement had previously been ruled admissible. By contrast, in the case at bar the trial court reserved ruling as to whether this information would be admissible. Moreover, on the morning of trial defense counsel inquired about the court's ruling and appellant replied, "To allay concerns, that was never part of the opening and will not be." Nevertheless, during opening statement appellant mentioned the prospective witness's expected testimony concerning appellee's alleged statement about her prior convictions. Thus, unlike Miller, in the instant case appellant's opening statement included information that should not have been conveyed to the jury.

{¶ 11} Appellant also cites Harwin v. Jaguar Cleveland Motors, Inc. , 8th Dist. Cuyahoga No. 40578, 1980 WL 354603, a civil case irrelevant to our analysis of whether the trial court abused its discretion in determining that appellant's opening statement prejudiced a criminal defendant. While it is true that, generally, counsel enjoys wide latitude during opening statement, that latitude does not include the mention of prejudicial and inadmissible evidence. As the trial court stated here, "[t]he parties agreed that the prior OVI convictions of the Defendant would not be communicated to the jury during opening statements or otherwise until testimony from witnesses for the State was received by the Court and jury. Contrary to the agreement of counsel, [appellant] informed the jury during his opening statement that there would be evidence that the...