State v. Graham , 2023 Ohio 1784 ( 2023 )

[Cite as State v. Graham, 2023-Ohio-1784.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 21AP0014
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BREANNA GRAHAM WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2020 CR-B 000764
DECISION AND JOURNAL ENTRY
Dated: May 30, 2023
FLAGG LANZINGER, Judge.
{¶1} Breanna Graham appeals her convictions for assault and disorderly conduct from
the Wayne County Municipal Court. For the following reasons, this Court affirms.
I.
{¶2} Ms. Graham was charged with one count of assault in violation of R.C. 2903.13(A),
and one count of disorderly conduct in violation of R.C. 2917.11(A)(1). The charges stemmed
from an altercation Ms. Graham had with the victim in this matter on July 6, 2020. Ms. Graham
and the victim are half-sisters who share the same biological mother. According to the testimony
adduced at trial, Ms. Graham’s mother gave Ms. Graham up for adoption when Ms. Graham was
young. Ms. Graham’s mother, however, maintained custody of the victim. This caused a strain in
the relationship Ms. Graham had with the victim and with her biological mother. Ms. Graham and
the victim reconnected as adults and began to have a cordial relationship. At the time of the
underlying incident, the victim worked part-time at the same restaurant that Ms. Graham managed.
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In addition to working together, the two half-sisters lived one house away from each other on the
same street.
{¶3} In the days prior to the incident, the victim’s father passed away. While the victim
was sorting through some of her father’s belongings, she found baby pictures of Ms. Graham. The
victim dropped off the baby pictures at Ms. Graham’s house on the afternoon of the underlying
incident. Ms. Graham was not home at the time, so the victim gave the pictures to Ms. Graham’s
husband. Ms. Graham called the victim later that evening and invited her over to talk. According
to the victim, she and Ms. Graham had been cordial prior to the incident. The victim expected the
conversation between herself and Ms. Graham to be a positive, therapeutic conversation regarding
her father’s recent death. According to Ms. Graham, she and the victim were not on good terms at
the time of the incident because there had been a familial dispute regarding their grandmother’s
medical records.
{¶4} According to the victim’s testimony at trial, when she arrived at Ms. Graham’s
house, Ms. Graham and their mutual cousin, J.H., were sitting on the back patio drinking alcohol.
The victim and J.H. did not get along. When the victim stepped through the sliding glass door that
led from the house onto the back patio, Ms. Graham blocked the three steps that led from the patio
into the backyard. J.H. then blocked the sliding glass door. The victim became anxious and felt
that she was being setup. The victim told Ms. Graham and J.H. that she wanted to leave, but Ms.
Graham told the victim that she just wanted to talk. According to the victim, Ms. Graham took her
cell phone from her and proceeded to berate and insult her and her mother for over an hour.
{¶5} The victim testified that Ms. Graham eventually gave her back her cell phone. The
victim also testified that Ms. Graham agreed to escort her off the back patio and walked her to the
steps that led from the patio into the backyard. When the victim got to the last step, Ms. Graham
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pulled the victim down by her hair, held her down, and punched her with a closed fist while J.H.
kicked her. The victim testified that she did not fight back, and that she called 911 as soon as she
was able to get up and get into the neighbor’s yard.
{¶6} Deputy Trent Hankins with the Wayne County Sheriff’s Office responded to the
scene. Deputy Hankins testified that the victim appeared distraught when he arrived. Deputy
Hankins also testified that the victim had signs of physical injuries, including a red cheek and a
scratch behind her ear. The trial court admitted photographs depicting these injuries into evidence.
Deputy Hankins also testified that the victim had dirt on her hands, which was consistent with the
victim’s statement that Ms. Graham had pulled her to the ground. Deputy Hankins further testified
that he interviewed Ms. Graham on the night of the incident, and that Ms. Graham initially denied
any altercation. Ms. Graham later admitted to Deputy Hankins that she had a verbal argument with
the victim, but she denied any physical altercation. Consistent with the victim’s testimony that Ms.
Graham had been drinking alcohol, Deputy Hankins testified that he smelled alcohol on Ms.
Graham’s person.
{¶7} At the close of the State’s case-in-chief outside the presence of the jury, Ms.
Graham’s defense counsel noted that the victim “blurted out that [Ms. Graham] had two
convictions for OVI” during his cross-examination of the victim. Ms. Graham’s defense counsel
stated that he “didn’t bring it up at the time because we were just trying to get through some of the
testimony presented,” but that he believed it was improper and grounds for a mistrial. The trial
court denied Ms. Graham’s defense counsel’s motion for a mistrial but offered to provide a curative
instruction to the jury. The trial court explained that a curative instruction might draw more
attention to the issue but stated that it would leave it up to defense counsel to decide whether he
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wanted the trial court to provide one to the jury. Ms. Graham’s defense counsel responded:
“Understood.”
{¶8} Ms. Graham then testified on her own behalf. According to her, she was resentful
toward her mother for putting her up for adoption, and she had no relationship with the victim until
recent years. Ms. Graham testified that the victim showed up unannounced to drop off baby
pictures, which upset her. Ms. Graham testified that she invited the victim over later that evening
to discuss the victim’s unannounced visit. Ms. Graham also testified that she wanted to talk with
the victim about a familial dispute concerning their grandmother’s medical records. Ms. Graham
admitted that she had been drinking alcohol the night of the incident but denied being drunk.
{¶9} Ms. Graham testified that she and the victim had a verbal argument. Ms. Graham
testified that the victim never asked to leave, and that she never blocked the victim from leaving.
Ms. Graham also testified that she never took the victim’s cell phone. Ms. Graham testified that
she eventually told the victim that it was time for her to leave, and that she escorted the victim to
the steps that led from the patio into the backyard. Ms. Graham denied any physical altercation
with the victim.
{¶10} The defense rested after Ms. Graham’s testimony. There is no indication that Ms.
Graham’s defense counsel requested a curative instruction regarding the victim’s reference to Ms.
Graham’s prior OVI convictions. Ms. Graham was then found guilty of assault and disorderly
conduct. She now appeals, raising two assignments of error for this Court’s review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED A REVERSIBLE ERROR WHEN IT
DENIED GRAHAM’S MOTION FOR MISTRIAL.
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{¶11} In her first assignment of error, Ms. Graham argues that the trial court erred by
denying her motion for a mistrial. For the following reasons, this Court disagrees.
{¶12} A mistrial must 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 (1991), citing Illinois v.
Somerville, 410 U.S. 458, 462-463 (1973) and Arizona v. Washington, 434 U.S. 497, 505-506
(1978). Because “the trial judge is in the best position to determine whether the situation in [the]
courtroom warrants the declaration of a mistrial[,]” the decision is one committed to the discretion
of the trial court. State v. Glover, 35 Ohio St.3d 18, 19 (1988). “This Court reviews a trial court’s
decision to deny a mistrial for an abuse of discretion.” State v. Rones, 9th Dist. Summit No. 30073,
2023-Ohio-60, ¶ 16. “In analyzing whether a defendant was deprived of a fair trial, an appellate
court must determine whether, absent the improper remarks, the jury would have found the
appellant guilty beyond a reasonable doubt.” Columbus v. Aleshire, 10th Dist. Franklin No. 09AP-
104, 2010-Ohio-2773, ¶ 42, citing State v. Maurer, 15 Ohio St.3d 239, 267 (1984).
{¶13} During his cross-examination of the victim, Ms. Graham’s defense counsel asked
the victim about her statement to Deputy Hankins that Ms. Graham was drunk at the time of the
incident. The victim responded: “[Ms. Graham is] always drunk. She’s an alcoholic. She’s had
numerous DUI’s.” Ms. Graham’s defense counsel immediately moved on to his next question
without addressing the victim’s testimony regarding Ms. Graham’s prior OVI convictions.
{¶14} In her merit brief, Ms. Graham asserts that the victim’s reference to her prior OVI
convictions was highly prejudicial because it indicated that she is a reckless criminal. Ms. Graham
also asserts that the jury might have inferred that she was intoxicated at the time of the incident
and, therefore, might have further inferred that she became violent because she was intoxicated.
For the following reasons, this Court concludes that Ms. Graham’s arguments lack merit.
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{¶15} Initially, this Court notes that the victim specifically testified that Ms. Graham was
drinking, slurring her words, and “probably drunk” at the time of the incident. The jury was free
to believe that testimony. State v. Haydon, 9th Dist. Summit No. 27737, 2016-Ohio-4683, ¶ 28
(“[T]he jury is free to believe or disbelieve any, or all, of the testimony from each witness.”).
Additionally, Deputy Hankins testified that he smelled alcohol on Ms. Graham’s person. Thus,
Ms. Graham’s argument that the jury might have inferred that she was intoxicated at the time of
the incident based upon the victim’s reference to her prior OVI convictions is unavailing.
{¶16} More importantly, however, Ms. Graham’s argument ignores the fact that her own
defense counsel elicited the testimony about her prior OVI convictions during his cross-
examination of the victim. Ms. Graham’s argument also ignores the fact that her defense counsel
never moved to strike that testimony, and that her defense counsel never requested a curative
instruction despite the trial court offering to provide one to the jury. This Court has previously
held that if a litigant first elicits certain testimony on cross-examination, then any error in the
admission of that evidence is invited error. State v. Edwards, 9th Dist. Summit No. 28164, 2017-
Ohio-7231, ¶ 37, citing State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, ¶ 75; see State v.
Scott, 6th Dist. Sandusky No. S-19-030, 2020-Ohio-4854, ¶ 27, citing State v. Grether, 9th Dist.
Summit No. 28977, 2019-Ohio-4243, ¶ 27 (“The doctrine of invited error prevents defendant from
asserting an error arising from the disclosure of a prior conviction as a result of his cross-
examination of the witness.”). Under the doctrine of invited error, a litigant cannot “take advantage
of an error which [she herself] invited or induced.” State v. Sowell, 148 Ohio St.3d 554, 2016-
Ohio-8025, ¶ 50, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury
Div., 28 Ohio St.3d 20 (1986), paragraph one of the syllabus. Here, Ms. Graham cannot use that
evidence as grounds for a mistrial because her defense counsel: (1) elicited the testimony regarding
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Ms. Graham’s prior OVI convictions during his cross-examination of the victim; (2) did not move
to strike that testimony; and (3) did not request a curative instructive despite the trial court offering
to provide one. State v. W.J., 10th Dist. Franklin No. 14AP-457, 2015-Ohio-2353, ¶ 51 (“When
defense counsel elicits testimony regarding a defendant’s prior criminal history, the defendant
cannot then use the evidence he elicited as grounds for a mistrial.”).
{¶17} Even if Ms. Graham could take advantage of any error that her defense counsel
invited or induced, Ms. Graham has not argued, much less established, that the jury would not
have found her guilty beyond a reasonable doubt absent the improper remarks. The State presented
evidence indicating that Ms. Graham caused physical harm to the victim when she pulled the
victim down by her hair and punched her in the face. This included photographs of a red mark on
the victim’s cheek, as well as a scratch on the victim’s neck. Additionally, the victim’s reference
to Ms. Graham’s prior OVI convictions was “fleeting,” and defense counsel immediately moved
on to his next question. See State v. Gary, 9th Dist. Wayne No. 12CA0014, 2012-Ohio-5813, ¶ 31
(holding that the trial court did not abuse its discretion when it denied the defendant’s motion for
a mistrial based upon a “fleeting” reference to a prior conviction). This Court concludes that,
absent the “fleeting” reference to Ms. Graham’s prior OVI convictions, the jury would have still
found Ms. Graham guilty beyond a reasonable doubt. See Aleshire, 2010-Ohio-2773, at ¶ 42, citing
Maurer, 15 Ohio St.3d at 267. Thus, even if Ms. Graham could take advantage of any error that
her defense counsel invited or induced, she has not established reversible error. Accordingly, Ms.
Graham’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
GRAHAM’S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
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{¶18} In her second assignment, Ms. Graham argues that her “conviction” was against the
manifest weight of the evidence. It is unclear which conviction (i.e., assault or disorderly conduct)
Ms. Graham is referring to in the caption of her assignment of error. In the body of her argument,
however, Ms. Graham quotes the language from R.C. 2903.13(A), which governs assault. This
Court will limit its analysis accordingly. See App.R. 16(A)(7).
{¶19} When considering a challenge to the manifest weight of the evidence, this Court is
required to consider 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
must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).
“A reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily
against the conviction.” State v. Croghan, 9th Dist. Summit No. 29290, 2019-Ohio-3970, ¶ 26.
This Court “will not overturn a conviction as being against the manifest weight of the evidence
simply because the trier of fact chose to believe the State’s version of events over another version.”
State v. Warren, 9th Dist. Summit No. 29455, 2020-Ohio-6990, ¶ 25, quoting State v. Tolliver, 9th
Dist. Lorain No. 16CA010986, 2017-Ohio-4214, ¶ 15.
{¶20} Ms. Graham argues that her assault conviction was against the manifest weight of
the evidence for several reasons. First, Ms. Graham argues that the State and the defense presented
conflicting evidence about the status of the relationship between Ms. Graham and the victim at the
time of the incident (i.e., whether they were on good terms). Second, Ms. Graham argues that the
physical evidence undermined the victim’s version of the events. In support of this argument, Ms.
Graham asserts that the victim’s clothes were not dirty and the grass in the backyard was not
flattened. According to Ms. Graham, this evidence undermined the victim’s claim that Ms. Graham
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pulled her to the ground. Ms. Graham also supports her argument by asserting that she (Ms.
Graham) did not have red marks on her hands that would indicate that she punched the victim.
Third, Ms. Graham argues that the victim was not credible. In support of this argument, Ms.
Graham asserts that the victim claimed to have a shoulder injury, yet the victim was able to hold a
clipboard while writing her statement to the police. Additionally, Ms. Graham asserts that the
medical records did not reflect a shoulder injury. Fourth, Ms. Graham asserts that the victim never
screamed for help, and there were no other witnesses to the alleged assault. Fifth, Ms. Graham
argues that despite claiming that Ms. Graham prevented her from leaving the back patio, the victim
could have left by jumping over the patio railing.
{¶21} Upon review of the record, this Court concludes that Ms. Graham has not
established that 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.” Otten, 33 Ohio App.3d at 340. The
victim testified that Ms. Graham invited her over to her house and then prevented her from leaving
for over an hour. The victim also testified that Ms. Graham escorted her to the steps that led from
the back patio into the backyard. The victim testified that Ms. Graham then grabbed her by her
hair, pulled her to the ground, and punched her in the face. Additionally, Deputy Hankins testified
that he observed physical injuries to the victim’s cheek and neck. The trial court admitted
photographs of these injuries into evidence. Deputy Hankins also testified that the victim had dirt
on her hands, which was consistent with her statement that Ms. Graham pulled her to the ground.
{¶22} Most of Ms. Graham’s argument on appeal relies upon her version of the events,
which the jury was not required to believe. State v. McManaway, 9th Dist. Wayne No. 20AP0046,
2022-Ohio-2086, ¶ 18, citing State v. Straughan, 9th Dist. Summit No. 29549, 2021-Ohio-1054, ¶
34. Additionally, the fact that other evidence may have further corroborated the victim’s version
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of the events (e.g., dirt on the victim’s clothes, marks on Ms. Graham’s hands, or flattened grass)
does not render Ms. Graham’s conviction against the manifest weight of the evidence. See In re
J.T., 9th Dist. Summit No. 30223, 2022-Ohio-3466, ¶ 18 (“The fact that the State did not present
additional evidence to corroborate the victim’s testimony does not render her delinquency
adjudication against the manifest weight of the evidence.”). As this Court has stated, a jury is “best
able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use
those observations in weighing the credibility of the proffered testimony.” State v. Quinn, 9th Dist.
Medina No. 18CA0022-M, 2019-Ohio-3980, ¶ 18. The jury in this case chose to believe the
victim’s version of the events over Ms. Graham’s version of events, which does not render Ms.
Graham’s conviction against the manifest weight of the evidence. State v. Fry, 9th Dist. Medina
No. 16CA0057-M, 2017-Ohio-9077, ¶ 13 (“We will not overturn a conviction as being against the
manifest weight of the evidence simply because the trier of fact chose to believe the State’s version
of events over another version.”). Ms. Graham’s second assignment of error is overruled.
III.
{¶23} Ms. Graham’s assignments of error are overruled. The judgment of the Wayne
County 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 Wayne County
Municipal Court, County of Wayne, 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.
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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 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.
JILL FLAGG LANZINGER
FOR THE COURT
HENSAL, P. J.
CARR, J.
CONCUR.
APPEARANCES:
WESLEY A. JOHNSTON, Attorney at Law, for Appellant.
ANGELA WYPASEK, Prosecuting Attorney, and JOEY MARULLO, Assistant Prosecuting
Attorney, for Appellee.