State v. Varouh

[Cite as State v. Varouh, 2020-Ohio-528.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 18CA011415

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHRISTOPHER VAROUH OBERLIN MUNICIPAL COURT
COUNTY OF LORAIN, OHIO
Appellant CASE No. 17CRB00784

DECISION AND JOURNAL ENTRY

Dated: February 18, 2020

HENSAL, Judge.

{¶1} Christopher Varouh appeals his convictions in the Oberlin Municipal Court. For

the following reasons, this Court affirms.

I.

{¶2} Mr. Varouh’s ex-wife called the Lorain County Sheriff’s Department after she

received a telephone call from Mr. Varouh’s then girlfriend and learned that the daughter she had

with Mr. Varouh could be in danger. A deputy who responded to Mr. Varouh’s address found

that Mr. Varouh’s girlfriend had red marks and bruises on her face, neck, and arm. After talking

to the girlfriend, the deputy charged Mr. Varouh with one count of domestic violence, one count

of assault, and one count of aggravated menacing, all of which were misdemeanors of the first

degree.

{¶3} The case proceeded to a bench trial. On the day of trial, Mr. Varouh’s girlfriend

did not appear. After initially requesting a continuance, the State decided to go ahead with the
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trial, calling the deputy and Mr. Varouh’s ex-wife as witnesses. When the State rested, Mr.

Varouh moved for a judgment of acquittal under Criminal Rule 29. After listening to the

arguments of both sides, the municipal court requested written briefs. In its brief, the State

conceded that it had not met its burden with respect to the domestic violence and aggravated

menacing offenses but requested a hearing on whether statements the girlfriend had made to the

deputy and Mr. Varouh’s ex-wife should have been admissible with respect to the aggravated-

menacing charge.

{¶4} The trial court construed the State’s request for a hearing as a motion to reopen its

case, which it granted. Mr. Varouh subsequently moved for the trial judge to recuse himself and

moved for a trial by jury. The court denied Mr. Varouh’s motions and scheduled a date for the

reopening of the trial. Following the testimony of the girlfriend and additional testimony of the

deputy and the ex-wife, the trial court found Mr. Varouh guilty of the offenses. At sentencing, it

merged the assault offense into the domestic violence offense and sentenced Mr. Varouh to 180

days in jail on both of the remaining counts. Mr. Varouh has appealed, assigning six errors,

which we have rearranged and combined to facilitate their disposition.

II.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE
STATE TO REOPEN ITS CASE AFTER RESTING FOLLOWING THE
MOTION FOR ACQUITTAL.

{¶5} Mr. Varouh argues that the trial court abused its discretion when it allowed the

State to reopen its case after he moved for a judgment of acquittal under Criminal Rule 29(A).

Revised Code Section 2945.10 sets forth the order of proceedings for criminal trials but indicates

that “[t]he court may deviate from the order of proceedings listed in this section.” R.C.
 3

2945.10(G). Construing that provision, the Ohio Supreme Court has held that “[a]ny decision to

vary the order of proceedings at trial in R.C. 2945.10 is within the sound discretion of the trial

court, and any claim that the trial court erred in following the statutorily mandated order of

proceedings must sustain a heavy burden to demonstrate the unfairness and prejudice of

following that order.” State v. Bayless, 48 Ohio St.2d 73 (1976), paragraph three of the syllabus.

{¶6} One of the variations that a trial court may allow is for the State to reopen its case

after the defendant has moved for a judgment of acquittal. State v. Pertee, 9th Dist. Wayne No.

95CA0033, 1995 WL 688800, *2 (Nov. 22, 1995). Consistent with Bayless, this Court has held

that “[a] trial court’s decision to allow the State to reopen its case following a defendant’s Rule

29 motion for acquittal will not be reversed absent an abuse of discretion.” State v. Mathis, 9th

Dist. Summit No. 23507, 2007-Ohio-2345, ¶ 5. “Under this standard, we must determine

whether the trial court’s decision was arbitrary, unreasonable, or unconscionable.” State v.

Hilton, 9th Dist. Wayne No. 09CA0036, 2010-Ohio-1923, ¶ 7, citing Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983).

{¶7} In its written response to Mr. Varouh’s motion to dismiss, the State noted that the

evidence it had admitted on the aggravated menacing charge was “insufficient to prove the

charge[.]” It explained that the victim’s out-of-court statements were critical to proving the

charge, and agreed with Mr. Varouh that those statements were prohibited from being introduced

under Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Although noting that there were

exceptions to Crawford, it explained that the victim’s statements could not be analyzed to

determine whether they fell within an exception because they were not allowed into evidence.

Instead of conceding that the victim’s statements could not fall within an exception to Crawford,
 4

however, the State “request[ed] that the Court hold a special hearing to determine if the

statements meet the exception laid out in Ohio v. Clark.”

{¶8} The trial court construed the State’s request for a hearing as a motion to re-open

its case. Mr. Varouh does not argue that the court’s interpretation of the request was

unreasonable. The trial court wrote in its entry that it was “in the interest of justice” to re-open

the case “for the limited purpose of recalling [Mr. Varouh’s ex-wife] to inquire of her any

statements made to her by her daughter and by the alleged victim and recalling the Deputy to

inquire of statements made by the alleged victim.” When the case re-opened, however, the trial

court did not proceed on that limited course. Instead, the trial court essentially began the trial

anew, allowing the State to call Mr. Varouh’s girlfriend, even though the State had previously

chosen to go forward without her testimony. It also imposed no limits on the scope of the State’s

examination of the deputy and ex-wife.

{¶9} Mr. Varouh argues that the trial court incorrectly allowed the State to deviate

from the limited purpose of its requested hearing and, instead, “permit[ted] the State to prove

every element of each offense[.]” We note, however, that, after the State presented its additional

evidence, Mr. Varouh’s counsel made a “point of reference” and noted that he had not objected

to the State’s calling of Mr. Varouh’s girlfriend. When the court asked Mr. Varouh’s counsel

what he meant, counsel reminded the court that it “had said [the State] could call the two

witnesses [called at the original trial] * * * to establish whether or not Crawford was in fact

applicable * * *[a]nd whether or not there was an excited utterance issue.]” Defense counsel

explained that he recognized that he could have objected to “[t]he State calling [Mr. Varouh’s

girlfriend]” because it was beyond the scope of the trial court’s order. He specifically explained,

however, that he had decided that he was “not going to object” because he knew that Mr.
 5

Varouh’s girlfriend had “recanted her story” before the hearing. Thus, in the estimation of Mr.

Varouh’s counsel, the calling of Mr. Varouh’s girlfriend by the State “actually worked out to

[Mr. Varouh’s] benefit.”

{¶10} Because Mr. Varouh did not object to the trial court’s deviation from its order

regarding the scope of the reopened trial, we conclude that he has forfeited his argument for

purposes of appeal. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 23; Evid.R.

103(A)(1). While he made still argue plain error, “this court will not sua sponte undertake a

plain-error analysis if a defendant fails to do so.” State v. Cross, 9th Dist. Summit No. 25487,

2011-Ohio-3250, ¶ 41.

{¶11} Upon review of the record, and in light of our precedent, we are compelled to

conclude that Mr. Varouh has not established that the trial court exercised improper discretion

when it allowed the State to re-open its case. Mr. Varouh’s second assignment of error is

overruled.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED WHEN IT DENIED THE CRIMINAL RULE 29
MOTIONS AS VENUE/JURISDICTION AND THE ELEMENTS OF EACH
CRIME WERE NOT PROVED BEYOND A REASONABLE DOUBT.

ASSIGNMENT OF ERROR III

APPELLANT’S CONVICTION WAS NOT SUPPORTED BY SUFFICIENT
EVIDENCE IN VIOLATION OF ARTICLE IV, SECTION 3 OF THE OHIO
CONSTITUTION[.]

{¶12} In his first assignment of error, Mr. Varouh argues that the State failed to prove

that the alleged offenses occurred within the jurisdiction of the municipal court. In his first and

third assignments of error, he also argues that his convictions were not supported by sufficient

evidence and that the court should have granted his motion for judgment of acquittal under Rule
 6

29(A). Under Rule 29(A), a defendant is entitled to a judgment of acquittal on a charge against

him “if the evidence is insufficient to sustain a conviction * * *.” Crim.R. 29(A). Whether a

conviction is supported by sufficient evidence is a question of law, which we review de novo.

State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this determination, we must view

the evidence in the light most favorable to the prosecution:

An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind
of the defendant’s guilt beyond a reasonable doubt. 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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

{¶13} Although venue is not a material element of a criminal offense, the State must

prove it beyond a reasonable doubt unless it is waived by the defendant. State v. Patterson, 9th

Dist. Lorain No. 16CA011035, 2017-Ohio-8196, ¶ 17. We note, however, that, if a defendant

does not make a specific objection to venue before the trial court, he forfeits all but plain error.

Id. at ¶ 16. Mr. Varouh did not object in the trial court that the municipal court was not the

proper venue for the alleged offenses. He, therefore, has forfeited his argument for appellate

review. Id. Mr. Varouh has not alleged that the error was plain, and we decline to develop an

argument for him. Cross, 2011-Ohio-3250, at ¶ 41.

{¶14} Regarding whether the trial court incorrectly denied his motion for judgment of

acquittal, we note that, because the court allowed the State to reopen its case, it did not rule on

Mr. Varouh’s motion until after the State presented all of its additional evidence. In order to

convict Mr. Varouh of domestic violence, the State had to prove that he knowingly caused or

attempted to cause physical harm to a family or household member. R.C. 2919.25(A). In order
 7

to convict him of assault, it had to prove that he knowingly caused or attempted to cause physical

harm to another. R.C. 2903.13(A). In order to convict him of aggravated menacing, it had to

prove that Mr. Varouh “knowingly cause[d] another to believe that the offender will cause

serious physical harm to the person or property of the other person * * * or a member of the

other person’s immediate family.” R.C. 2903.21(A).

{¶15} Mr. Varouh’s girlfriend testified that she lived with Mr. Varouh at the time of the

alleged offenses. The deputy testified that, when he saw Mr. Varouh’s girlfriend, he

immediately noticed that she had a bruise on her bicep. When he asked where she had gotten it,

she said that Mr. Varouh had grabbed her. The girlfriend went on to explain to him that a red

mark on her cheek was from a slap by Mr. Varouh and that a mark on her temple was from when

he slammed her into a kitchen cabinet. Mr. Varouh’s ex-wife testified that, when his girlfriend

initially called, she said that Mr. Varouh was high on cocaine, that he had beaten her up

throughout the day, and that she did not believe it was a safe place for the child because she

suspected that Mr. Varouh was going to try to kill her. Mr. Varouh’s girlfriend went on to

explain that Mr. Varouh had already beaten her with a broom, choked her, and put a gun to her

head. She also said that she had locked herself in her bedroom away from Mr. Varouh.

{¶16} Mr. Varouh argues that some of the testimony should not have been admitted

because it was hearsay that did not meet the requirements of an excited utterance. He also argues

that some of the evidence that was admitted did not have an adequate foundation to be

authenticated. These arguments, however, fall outside the scope of his stated assignments of

error. Because Mr. Varouh has not separately assigned as error that the trial court incorrectly

admitted evidence, we decline to address Mr. Varouh’s arguments regarding whether evidence
 8

was improperly admitted. State v. Bennett, 9th Dist. Lorain No. 14CA010579, 2015-Ohio-2887,

¶ 13; App.R. 16(A)(7).

{¶17} Viewing the testimony of the witnesses in a light most favorable to the State, we

conclude that there was evidence that Mr. Varouh knowingly caused physical harm to a

household member, which is sufficient to uphold his convictions for domestic violence and

assault. There was also evidence that he knowingly caused another to believe that he would

cause serious physical harm to her, which is sufficient to uphold his conviction for aggravated

menacing. The trial court, therefore, did not err when it denied his motion for judgment of

acquittal under Rule 29(A). Mr. Varouh’s first and third assignments of error are overruled.

ASSIGNMENT OF ERROR IV

APPELLANT’S CONVICTION WAS NOT SUPPORTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF ARTICLE IV,
SECTION 3 OF THE OHIO CONSTITUTION.

{¶18} Mr. Varouh next argues that his convictions are against the manifest weight of the

evidence. If a defendant asserts that his convictions are against the manifest weight of the

evidence,

an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction[s] must be
reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d 380, at 387. An appellate court should only exercise its power to

reverse a judgment as against the manifest weight of the evidence in exceptional cases. State v.

Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.
 9

{¶19} Mr. Varouh notes that his former girlfriend explained during her testimony that

she only said what she said to the deputy and Mr. Varouh’s ex-wife because she found out he

had been seeing an ex-girlfriend. She initially told Mr. Varouh’s ex-wife earlier in the day that it

might not be the best day for the daughter to be in the home because Mr. Varouh and she had

been arguing a lot. When Mr. Varouh returned from picking up his daughter, she was unable to

refrain from continuing the argument. She told Mr. Varouh that she was going to leave him, but

he said that he did not care, so she decided to get him arrested by saying that he had hit her. The

girlfriend also explained that, although the marks on her body were caused by Mr. Varouh, it was

from violent consensual sexual activity that they had engaged in earlier that day. She admitted

that her tear tracks were authentic because she had been crying because Mr. Varouh had cheated

on her. The girlfriend further testified that Mr. Varouh’s ex-wife knew about her plan and

agreed to it because she wanted full custody of her daughter.

{¶20} Mr. Varouh argues that his former girlfriend did not have any motive to lie at trial

because she had long since broken up with him and moved on with her life and had not even

seen him since the day of his arrest. She did not need him for emotional or financial support, and

they did not share any children. He also notes that she risked a perjury charge if she lied under

oath at trial. He argues that, if you look at the deputy’s testimony about his conversation with

the girlfriend, she was more focused on Mr. Varouh’s cheating than any injuries she had

suffered. She also refused medical treatment. He further argues that, even though Mr. Varouh’s

ex-wife admitted that the girlfriend called her and told her about the fighting at Mr. Varouh’s

house before Mr. Varouh and she met her to exchange their daughter, she still allowed Mr.

Varouh to take the daughter and merely told the girlfriend to call her if they started fighting

again.
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{¶21} Although Mr. Varouh’s ex-wife recounted a number of details of the fight that the

girlfriend relayed to her, it is not clear from the ex-wife’s testimony whether she learned those

details during their first or second conversation. Regarding whether Mr. Varouh’s girlfriend’s

testimony was credible, we recognize that “the trial court was in the best position to observe the

witnesses’ demeanor and to ‘use th[o]se observations to weigh the credibility [of the witnesses]

and resolve the conflicts in the testimony.’” State v. Robinson, 9th Dist. Wayne No. 18AP0045,

2019-Ohio-3613, ¶ 10, quoting State v. Andrews, 9th Dist. Summit No. 25114, 2010-Ohio-6126,

¶ 28. Upon review of the record, we cannot say that the trial court lost its way when it chose to

believe what Mr. Varouh’s former girlfriend told the deputy and his ex-wife on the day of the

incident over what she testified to in court. We conclude that this is not the exceptional case

where the evidence weighs heavily against Mr. Varouh’s convictions. Mr. Varouh’s fourth

assignment of error is overruled.

ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED IN FAILING TO GIVE DEFENDANT-
APPELLANT A TRIAL BY JURY.

{¶22} Mr. Varouh next argues that the trial court incorrectly denied his right to a jury

trial, which he demanded after the court allowed the State to re-open its case. He argues that,

because the trial court essentially allowed the State to start its case over, he should have been

able to have the new case heard by a jury, especially because he made his request approximately

60 days before the second trial date.

{¶23} Criminal Rule 23(A) provides that, “[i]n petty offense cases, where there is a

right of jury trial, the defendant shall be tried by the court unless he demands a jury trial.” A

demand for jury trial “must be in writing and filed with the clerk of court not less than ten days
 11

prior to the date set for trial * * *.” Crim R. 23(A). “Failure to demand a jury trial as provided

in this subdivision is a complete waiver of the right thereto.” Id.

{¶24} At the time Mr. Varouh demanded a jury trial, the trial court had not ordered a

complete restart of the trial. Instead, it had ordered the State’s case re-opened “for the limited

purpose of recalling [Mr. Varouh’s ex-wife] to inquire of her any statements made to her by her

daughter and by the alleged victim and recalling the Deputy to inquire of statements made by the

alleged victim.” Although the State ended up calling an additional witness, it was not until after

the trial court denied Mr. Varouh’s jury demand. As this Court explained earlier, Mr. Varouh’s

counsel stated at trial that he did not object to the expansion of the State’s re-opened case

because it worked to Mr. Varouh’s benefit.

{¶25} Upon review of the record, we conclude that, because the court did not order a

completely new trial following the State’s request for a hearing, the court’s order did not renew

Mr. Varouh’s right to demand a jury trial under Rule 23(A). The trial court, therefore, did not err

when it denied Mr. Varouh’s jury demand. Mr. Varouh’s fifth assignment of error is overruled.

ASSIGNMENT OF ERROR VI

THE TRIAL COURT ERRED WHEN IT DID NOT RECUSE ITSELF.

{¶26} Mr. Varouh’s final argument is that the trial court incorrectly failed to recuse

itself after it allowed the State to re-open its case. He argues that the trial court demonstrated its

lack of independence by giving the novice prosecutor pages of instructions regarding hearsay

instructions, confrontation clause issues, eliciting testimony from witnesses, and avoiding

objections. He contends that the court went so far as to give examples to the prosecutor of how

she should have questioned the witnesses.
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{¶27} Section 2701.031 provides that, “[i]f a judge of a municipal * * * court * * *

allegedly is related to or has a bias or prejudice for or against a party to a proceeding pending

before the judge * * * any party to the proceeding or the party’s counsel may file an affidavit of

disqualification with the clerk of the supreme court.” It is the exclusive means by which a

litigant may assert that a municipal court judge is biased or prejudiced. State v. Hunter, 151

Ohio App.3d 276, 2002-Ohio-7326, ¶ 17 (9th Dist.) Interpreting the language of Section

2701.031, we have determined that this Court has “no authority to render a decision with regard

to disqualification * * * or to void a trial court’s judgment on the basis of personal bias or

prejudice on the part of the trial judge.” Id. at ¶ 18. Consequently, we conclude that we are

unable to address the merits of Mr. Varouh’s argument. State v. Polke, 9th Dist. Medina No.

18CA0061-M, 2019-Ohio-904, ¶ 7. Mr. Varouh’s sixth assignment of error is overruled.

III.

{¶28} Mr. Varouh’s assignments of error are overruled. The judgment of the Oberlin

Municipal Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Oberlin Municipal

Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
 13

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL
FOR THE COURT

SCHAFER, J.
CONCURS.

CALLAHAN, P. J.
DISSENTING.

{¶29} I disagree with the majority’s conclusion that the trial court did not abuse its

discretion by allowing the State to reopen its case after Mr. Varouh moved for a judgment of

acquittal under Crim.R. 29(A). For that reason, I respectfully dissent.

{¶30} I recognize that this Court and others have concluded that a trial court may

exercise its discretion to regulate proceedings by permitting the State to reopen its case after a

defendant has moved for a judgment of acquittal. One court, for example, has concluded that the

decision to do so is not an abuse of discretion when the trial court permits a witness who has

already testified to clarify a point with reference to demonstrative aids. State v. Salaam, 1st

Dist. Hamilton No. C-020324, 2003-Ohio-1021, ¶ 9-10, 13-14. Others have reached the same

result when the trial court allowed the State to offer testimony regarding the degree of an

offense, when all of the elements of the offense were established in the case-in-chief and the

evidence is readily at hand. State v. Roberson, 8th Dist. Cuyahoga No. 88215, 2007-Ohio-1981,
 14

¶ 28-29; State v. Gaskins, 3d Dist. Seneca No. 13-04-12, 2004-Ohio-5427, ¶ 13-20. The decision

to reopen the State’s case to permit an officer to accurately identify a photograph referenced

during his testimony is not an abuse of discretion because “the circumstances causing the need

for the further presentation of evidence * * * were nothing more than a tendency for human error

during the process of reading letters, numbers, and symbols on the back of 26 consecutive

images.” State v. Steele, 12th Dist. Butler No. CA2003-11-276, 2005-Ohio-943, ¶ 140.

Similarly, this Court has concluded that a trial court does not abuse its discretion by permitting

the State to reopen its case based on a misunderstanding about the scope of a stipulation. State v.

Austin, 9th Dist. Summit No. 16239, 1993 WL 525874, * 1-2 (Dec. 8, 1993).

{¶31} This case is different. The trial court’s decision to allow the State to reopen its

case did not accommodate correction of a misunderstanding, permit the clarification of prior

testimony, or assist in the identification of an exhibit. In this case, the State simply did not frame

the police officer’s direct examination in accord with Crawford v. Washington, 541 U.S. 36

(2004), Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009), and Davis v. Washington, 547

U.S. 813, 821 (2006). See generally State v. Doss, 9th Dist. Wayne No. 18AP0027, 2019-Ohio-

436, ¶ 4-12 (discussing the application of the Confrontation Clause in the context of domestic

violence cases). “Crim.R. 29 is a means by which a defendant in a criminal case moves the court

for a judgment of acquittal at the close of either the state’s evidence or at the close of the trial. It

is not a vehicle by which the defense informs the State of fatal deficiencies in its case, so that it

can have a second bite at the apple.” State v. Nerren, 9th Dist. Wayne No. 05CA0052, 2006-

Ohio-2855, ¶ 28 (Moore, J., concurring).

{¶32} Although I agree with the majority’s observation that defense counsel made a

strategic decision not to object to the testimony of Mr. Varouh’s girlfriend once the reopened
 15

proceeding commenced, I believe that it was error for the proceeding to have been reopened in

the first place. For this reason, I do not agree that Mr. Varouh has forfeited his argument for

purposes of appeal, and I would sustain his second assignment of error.

{¶33} I respectfully dissent.

APPEARANCES:

JACK W. BRADLEY, Attorney at Law, for Appellant.

FARAH EMEKA, Prosecuting Attorney, for Appellee.