[Cite as State v. Jones, 2011-Ohio-2362.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 10 CA 69
MARVEL JONES
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2009 CR 258D
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 17, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. JEFFEREY R. STIFFLER
PROSECUTING ATTORNEY DAVID C. BADNELL CO., LPA
KIRSTEN L. PSCHOLKA-GARTNER 21 North Walnut Street
ASSISTANT PROSECUTOR Mansfield, Ohio 44902
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 10 CA 69 2
Wise, J.
{¶1} Appellant Marvel Jones appeals from his conviction, in the Court of
Common Pleas, Richland County, for multiple counts of felonious assault. The relevant
facts leading to this appeal are as follows.
{¶2} On September 2, 2008, appellant was an inmate at the Mansfield
Correctional Institution. On that day, while corrections officers in the Local Control Unit
of that facility were in the process of serving food trays, appellant’s cellmate, Guy
Cheers, threw a cup of urine through the cell door opening at Corrections Officer Kevin
Davis and tried to grab his keys and watch. After the incident was reported to
superiors, additional correctional staff conducted a “shake-down” search of the cell.
Appellant and Cheers were both placed in restraints. However, appellant and Cheers
got free of their restraints and got into a physical altercation with some of the officers.
During the incident, Corrections Officer Neal Prichard was thrown to the floor and
sustained a triple fracture to his ankle.
{¶3} Appellant was thereafter charged with one count of felonious assault
under R.C. 2903.11(A)(1), a second-degree felony, and three counts of aiding and
abetting assault under R.C. 2903.13(A)/(C)(2)(a), fifth-degree felonies. The case
proceeded to a jury trial on May 21, 2010. As further discussed infra, Cheers testified
via live closed-circuit video. The jury found appellant guilty on all four counts as
charged. Appellant immediately filed a motion for a new trial, which the trial court
subsequently denied.
{¶4} On May 24, 2010, appellant was sentenced to seven years on the second-
degree felony assault. The court merged one of the fifth-degree felony assaults into the
Richland County, Case No. 10 CA 69 3
aforesaid second-degree felony assault count. The court further sentenced appellant to
six months on each of the two remaining fifth-degree felony assault counts, all
consecutive. The total term was thus eight years in prison.
{¶5} On June 2, 2010, appellant filed a notice of appeal. He herein raises the
following three Assignments of Error:
{¶6} “I. APPELLANT’S CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND
FOURTEENTH AMENDMENT[S] TO THE UNITED STATES CONSTITUTION AND
SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WERE VIOLATED.
{¶7} “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR NEW TRIAL.
{¶8} “III. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
I.
{¶9} In his First Assignment of Error, appellant argues the trial court violated
his constitutional rights by having his sole defense witness, former cellmate Guy
Cheers, testify via closed circuit television. We disagree.
{¶10} The Confrontation Clause found in the Sixth Amendment to the United
States Constitution guarantees that “[i]n all criminal prosecutions the accused shall
enjoy the right * * * to be confronted with the witnesses against him.” This clause
reflects a preference for face-to-face confrontation at trial. See Maryland v. Craig
(1990), 497 U.S. 836, 849, 110 S.Ct. 3157, 111 L.Ed.2d 666; State v. Self (1990), 56
Ohio St.3d 73, 77, 564 N.E.2d at 450. It contains a two-fold right for presenting a
defense: It “guarantees a criminal defendant the right to present witnesses in his or her
Richland County, Case No. 10 CA 69 4
own behalf and to use the power of the court to compel the attendance of those
witnesses, if necessary.” State v. Brock, Montgomery App.No. 19291, 2002-Ohio-7292,
¶ 11, citing Washington v. Texas (1967), 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019.
However, the right to compulsory process as guaranteed by the Sixth Amendment and
Article I, Section 10 of the Ohio Constitution is not an unlimited right. State v. Toles
(May 26, 1998), Stark App.No. 97-CA-0139, 1998 WL 400881. An exception must (1)
be justified on a case-specific finding based on important state interests, public
policies, or necessities of the case and (2) must satisfy the other three elements of
confrontation -- oath, cross-examination, and observation of the witness's demeanor.
State v. Marcinick, Cuyahoga App.No. 89736, 2008-Ohio-3553, ¶ 18, citing Harrell v.
State (Fla. 1998), 709 So.2d 1364, 1369. Furthermore, a defendant's conviction will
generally not be reversed on the basis of a constitutional error if the error is found to be
harmless beyond a reasonable doubt. See, e.g., State v. Walker (Feb. 20, 2001), Stark
App.No. 2000CA00128, citing Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct.
824, 17 L.Ed.2d 705.
{¶11} In the case sub judice, apparently both the prosecutor and defense
counsel considered calling Cheers as a witness; however, the prosecutor obtained a
conveyance order directing Cheers to be released into the custody of the Richland
County Sheriff, while defense counsel obtained an order for Cheers to be conveyed
directly by the Ohio Department of Corrections. Due to the conflicting motions/orders,
Cheers was not conveyed at all. A conference at the bench ensued as follows:
{¶12} “[DEFENSE COUNSEL] MR. KEYSER: We wanted to call Guy Cheers,
but apparently he never got conveyed here. My secretary called Lucasville, and they
Richland County, Case No. 10 CA 69 5
said they got an order from the prosecutor that said the sheriff of Richland County was
going to convey him.
“THE COURT: That is not true. I talked to my staff just now, both of my staff
people. In fact, Karen spoke with them at the Ohio Correctional Institution on Tuesday
and said that he needed to be transported, and they said they would do it.
“MR. KEYSER: He is not here.
“THE COURT: Uhm-hum. What are you asking?
“MR. KEYSER: Asking for time to get him here.
“THE COURT: Okay. Did you check yesterday and the day before whether he
was actually transported or not?
“MR. KEYSER: Yes.
“THE COURT: You know, I am very much troubled when you wait until last night
to tell me he isn’t here and needs to be transported. That is something you needed to
be checking on.
“MR. KEYSER: I was checking on it everyday.
“THE COURT: What do you think he is going to testify to?
“MR. KEYSER: What do I think?
“THE COURT: Uhm-hum.
“MR. KEYSER: The events of what occurred.
“THE COURT: Mr. Bishop?
“[ASSISTANT PROSECUTOR] MR. BISHOP: I have no dog in this race, Your
Honor. I had at one time entertained the thought of calling Mr. Cheers as a witness
and determined that it wouldn’t benefit the state’s case, so I didn’t do anything more
Richland County, Case No. 10 CA 69 6
with it. I was going to talk with him, anticipating he would be transported here, and talk
to him and hear him tell me that he wasn’t going to help me, you know.
“THE COURT: Uhm-hum.
“MR. BISHOP: But then I have no interest in securing his attendance at this
point.
“THE COURT: Okay.
“MR. BISHOP: One way or the other.
“THE COURT: Shall we press forward without the witness?
“MR. BISHOP: I think so. I think the idea here is that if you want witnesses
present and you know they are incarcerated, you need to make arrangements to get
them conveyed, the same burden we would have had if we wanted to call them.
“THE COURT: He did submit a conveyance order. The conveyance order was
delivered to the prison. The prison didn’t deliver him here.
“MR. BISHOP: Do we have any idea how long it would take them to get him
here? Can they get him here today, this morning, this afternoon?
“MR. KEYSER: I don’t know.
“MR. BISHOP: We don’t even know?
“THE COURT: We will have to check into that.” Tr. at 155-157.
{¶13} Upon review, we find the trial court properly allowed an exception to face-
to-face confrontation of witness Cheers based on the unusual exigencies of the case
and the interest of conserving judicial resources. A review of the transcript indicates
that Cheers was placed under oath, allowed to respond to direct and cross-
examination questions, and was observable by the members of the jury. Appellant
Richland County, Case No. 10 CA 69 7
urges that Cheers was prevented from tying his testimony in with the prison security
video of the incident. However, the video in question (see footnote 1, infra) was
actually introduced by the State to buttress the testimony of the corrections officers, as
further analyzed infra, and we are unpersuaded that its non-utilization by Cheers
because of the logistics of his closed-circuit testimony was more than harmless error.
{¶14} Appellant’s First Assignment of Error is overruled.
II.
{¶15} In his Second Assignment of Error, appellant argues the trial court erred in
denying his motion for a new trial. We disagree.
{¶16} Crim.R. 33 controls new trial motions in criminal cases. The rule states in
pertinent part:
{¶17} “(A) Grounds. A new trial may be granted on motion of the defendant for
any of the following causes affecting materially his substantial rights: (1) Irregularity in
the proceedings, or in any order or ruling of the court, or abuse of discretion by the
court, because of which the defendant was prevented from having a fair trial. ***.”
{¶18} Motions for new trial are addressed to the sound discretion of the trial
court, and an appellate court will generally not reverse unless it finds the trial court
abused its discretion. See State v. Schiebel (1990) 55 Ohio St.3d 71, 76, 564 N.E.2d
54. The term abuse of discretion implies the court's attitude is unreasonable, arbitrary
or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.
{¶19} For reasons similar to our discussion regarding appellant’s first assigned
error, we are unable to conclude the trial court abused its discretion in denying
Richland County, Case No. 10 CA 69 8
appellant’s motion for a new trial. Appellant’s Second Assignment of Error is therefore
overruled.
III.
{¶20} In his Third Assignment of Error, appellant maintains his felonious assault
convictions are against the manifest weight of the evidence. We disagree.
{¶21} Our standard of review on a manifest weight challenge to a criminal
conviction is stated as follows: "The court, 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 reversed
and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d
717. See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The
granting of a new trial "should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction." Martin at 175, 485 N.E.2d 717.
{¶22} The bulk of the State’s evidence in the case sub judice consisted of a
prison surveillance video, and the testimony of the corrections officers involved in the
incident of September 2, 2008.1 Defense counsel utilized closed-circuit testimony of
Inmate Cheers, as discussed supra. We will herein review the testimony of Cheers and
each officer.
1
The video system utilized in this instance was a scanning type for showing random
images of the prison area in question. Furthermore, we note the transcript contains the
additional testimony of Correction Officer Kevin Davis and a staff nurse who responded
to the injuries; in the interest of judicial economy, we will not restate their testimony.
Richland County, Case No. 10 CA 69 9
Corrections Officer Prichard
{¶23} Officer Prichard testified that he is a five-year veteran of the corrections
service of the prison. On September 2, 2008, he was engaged in interviewing inmates
in the segregation unit when the captain on duty directed him to report to the Local
Control Unit because of Cheers’ urine-throwing incident. He recalled that Lieutenant
Page made the decision to conduct a shakedown of the cell. Appellant and Cheers told
the officers that they preferred to be cuffed from the front, rather than from the back,
and the decision was made to cuff the two inmates accordingly and remove them from
the cell. Prichard and Officer Jacobs then proceeded with the search, while Lieutenant
Page stayed with the two inmates outside the cell. Suddenly, Officer Jacobs ran back
outside the cell, where Page had been forced to the ground by appellant and Cheers.
Prichard followed Jacobs into the area and grabbed appellant’s arm and one of the
handcuffs, which had slipped off one of appellant’s wrists. Appellant went on the
offensive and threw Prichard down to the ground, putting his knee into the officer’s
face. After Officer Jacobs intervened and pulled appellant off, Prichard realized his
ankle was not moving correctly.
Corrections Lieutenant Page
{¶24} According to Lieutenant Page, after he responded to the disturbance call
and Cheers and appellant had been cuffed, he was “rushed” by the two inmates. He
started “tussling” with Cheers, while Prichard struggled with appellant. While Officer
Jacobs tried to help re-cuff Cheers, Prichard started falling toward the ground as
appellant tried to punch him. Cheers, Page, and Jacobs also went toward the ground.
Cheers was finally re-cuffed and placed back in the cell; Page and Jacobs then went to
Richland County, Case No. 10 CA 69 10
help Prichard, who was being punched on the ground by appellant. Page saw that
Prichard’s foot was “mangled.”
Corrections Officer Jacobs
{¶25} Officer Jacobs told the jury he entered the cell with Officer Prichard to start
the shakedown when he heard Lieutenant Page say something in the hallway. He saw
appellant and Cheers pushing Page. He intervened and was ultimately punched in the
jaw by Cheers; in the meantime, Prichard was yelling to Jacobs for assistance. He
recalled that a “pile” consisting of himself, Page, and Cheers went to the ground. After
Cheers was subdued, Jacobs saw Prichard up against the wall, with his left foot
looking twisted.
Inmate Cheers
{¶26} Cheers, who was in Mansfield Correctional on a twenty-one year to life
term for murder, testified via live video as a defense witness that he threw the urine at
Officer Davis because of an alleged racial remark. Cheers claimed that appellant was
in his bunk at that time, and that after the two inmates were taken outside their cell, the
officers “slammed” appellant to the floor for no reason. Cheers maintained that
appellant was quickly forced back into the cell, while Cheers went on struggling by
himself with Prichard, Page, and Jacobs.
Analysis-Conclusion
{¶27} Appellant points out certain variances in the testimony, such as Officer
Jacobs’ indication that he did not see appellant strike Prichard, and Page’s recollection
that Cheers alone initiated the physical contact with Page. The record thus may reveal
a limited number of such inconsistencies in the officers’ versions of events, in addition
Richland County, Case No. 10 CA 69 11
to Cheers’ varying version of the altercation; however, as the State notes, the officers’
inconsistencies can be reasonably attributed to the highly dangerous situation erupting
in the cell area at the time. Upon review, we find the jury did not clearly lose its way
and create a manifest miscarriage of justice requiring that appellant's conviction be
reversed and a new trial ordered.
{¶28} Appellant’s Third Assignment of Error is overruled.
{¶29} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Richland County, Ohio, is hereby affirmed.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
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JUDGES
JWW/d 0425
Richland County, Case No. 10 CA 69 12
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MARVEL JONES :
:
Defendant-Appellant : Case No. 10 CA 69
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES