State v. Carson , 2019 Ohio 4550 ( 2019 )

[Cite as State v. Carson, 2019-Ohio-4550.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180336
TRIAL NO. 17CRB-24874
Plaintiff-Appellee, :
vs. : O P I N I O N.
STEVEN CARSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 6, 2019
Paula Boggs Muething, City Solicitor, Natalie Harris, City Prosecutor, and Jennifer
Bishop, Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Steven Carson was accused of threatening and
pointing a handgun at Quincy White, a contractor who had come to Carson’s home to
install carpet in his basement. Carson was convicted of aggravated menacing in
violation of R.C. 2903.21. In two assignments of error, Carson argues that (1) his
conviction was contrary to law because it was against the manifest weight of the
evidence, and (2) the trial court erred in its rulings on two evidentiary matters—
when it admitted testimony regarding Carson’s mental health, and when it sustained
an objection to testimony from Quincy White which demonstrated his motive to lie.
For the following reasons, we affirm the judgment of the trial court.
Factual Background
{¶2} Quincy White was a carpet installer for a company that contracted with
Home Depot. On September 6, 2017, White arrived to install new carpet in Steven
Carson’s basement, which had recently flooded. White testified that the basement
was so cluttered that he couldn’t fit his tool bag through the clutter and had to take
his tools in one by one. Carson testified that the clutter consisted of many different
items, some of which were very valuable, including various pieces of memorabilia
and signed photographs. Many of the items were piled up and stacked on top of one
another in order to clear out the rooms where the carpet was being installed.
{¶3} White installed carpet throughout the morning and then took a break
for lunch. He contacted his cousin, Delma Hill, and told him to meet him outside of
Carson’s home so they could go to lunch together. Hill parked his car in front of
Carson’s house. White walked out of the basement door and sat in the front
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passenger seat of Hill’s car. As White and Hill were sitting in the car talking, Hill
grabbed a white Kroger bag from the back seat, got out of the car, and put the bag in
the trunk. White testified at trial that the bag may have had “gym clothes or
something” in it. Just as Hill sat back down in the car, Carson walked up and asked
White, “What of mine did you steal and put in his trunk?” White told Carson he did
not steal anything, and that Carson could look in the trunk if he wanted to.
According to White, Carson just walked back into his house. White testified that he
immediately called his supervisors and told them he had been accused of stealing.
He told Hill he could not have lunch with him and Hill drove away. White then went
to the basement to retrieve his tools, but the basement door was locked.
{¶4} White testified that while he was still on the phone with his
supervisors, Carson came out of the back door, located directly above the basement
door. Carson pulled out a gun and said, “Get the fuck off my property,
motherfucker.” White stated that the gun was a chrome revolver, and Carson pointed
the barrel at him. White informed Carson that he was leaving, and turned and
walked away, stopping briefly to grab some tools he had left in the driveway. White
testified that was on the phone with his supervisors the entire time. White testified
that as he was loading his tools in his van, he turned around and saw Carson at the
bottom of the driveway, still pointing the gun at him. White got into his van and left
while one of his supervisors called the police. White stated that he thought Carson
was going to shoot him.
{¶5} Officer Kristie Johnson testified that she and five other officers
responded to Carson’s house for a call about a gun. Carson refused to step outside,
and so Johnson talked to Carson while he stood in his doorway. Johnson’s body
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camera captured a portion of the conversation, and the footage was admitted as
evidence at trial.
{¶6} On the video, Carson told Johnson that White was “scoping out his
shit” earlier in the day. Then, he saw White and “another guy” on the street standing
behind a car with the trunk up, and he witnessed one of them reach into his clothes,
pull something out, and put it in the trunk. Carson confronted them and asked if
that was something of his they put in the trunk. He said White started cussing and
yelling at Carson, and Hill took off in his car. Carson came back in the house and
locked the basement door so White couldn’t come back in. He told White to “get his
shit and get out.” When Johnson asked Carson if he owned any firearms, he refused
to answer, stating, “I’m not going to answer that question.”
{¶7} Johnson informed him that it was aggravated menacing if he pointed a
gun at White. Johnson twice told Carson that White said that Carson pointed a gun
at him. Carson never denied pointing a gun at White, rather he told Johnson that he
was protecting his property, and so he does not understand how he is in any trouble.
{¶8} Johnson arrested Carson on the scene for aggravated menacing.
Johnson testified that the basis for her arrest was not only White’s statement, but
that White’s supervisors told her they had heard the “commotion” over the phone,
and White told them that Carson was pointing a gun at him as it was happening. The
police did not search the home or recover a firearm.
{¶9} Although not captured on the body camera, Johnson testified that
Carson told her that everybody steals from him. He told her that the water
restoration company stole from him, and that the moving company burglarized his
house.
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{¶10} Carson testified in his defense, as did his father and his wife. John
Carson, Carson’s father, stated that while White was working on the carpet, he asked
Carson if there was anything in the basement he wanted to get rid of, and Carson
said no. Later, White asked Carson a second time if he was willing to sell anything in
the basement, and Carson again declined. John told Carson to keep an eye on his
stuff, because he thought White was interested in it.
{¶11} Jennifer Carson, Carson’s wife, testified that when she came home that
day, Carson told her the carpet guy had stolen something. She helped him go
through everything to see what was missing. She stated that Carson did not own a
gun, and she had never seen him with a gun. Jennifer stated that she had never seen
Carson be violent.
{¶12} During cross-examination of both Jennifer and John, the prosecution
elicited testimony, over defense objection, that Carson had been diagnosed with
depression. Carson testified that he was diagnosed with cancer in 2010 and did not
have a good prognosis, so he went into a severe depression. He testified that he now
sees a doctor every six months and takes an antidepressant. He claimed that after he
beat the cancer, the depression had become much less than it had been and the
antidepressant doses had gone down.
{¶13} Carson testified that White asked him three to four times if he was
willing to sell anything, and Carson told him no each time. After White had been
working for a few hours, Carson saw White across the street with “another guy”
standing behind a car with the trunk open. He saw the “other guy” take something
out of his jacket, slide it into the trunk, and then close the trunk.
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{¶14} Carson stated that when he confronted them, they both got combative.
The “other guy” got into the car and pulled away quickly while White was yelling and
screaming. Carson testified that White never offered to let him look in the trunk.
Carson went inside and locked the basement door. White started beating on the
basement door and yelling. Carson went out the back door and told him to get out.
He stated that he did not have a gun, that he did not threaten White in any way, and
that he did not follow White out to the driveway.
{¶15} Carson testified that he did not call the police. Instead, he called
Home Depot and the flooring company, and they assured him they would cooperate
in finding the stolen item, and would send someone else to finish installing the
carpet. He stated that the police did not arrive until about two to three hours after
White left, and they never asked to search his house. Sometime after the fact, he
discovered that he was missing a signed Michael Jackson photograph. He testified
that he could tell White or the “other guy” placed an 8 x 10 frame picture in the
trunk, but he did not know which item had been stolen because he had over 40
signed photographs in his basement.
First Assignment of Error
{¶16} Carson’s first assignment of error is that his conviction for aggravated
menacing was contrary to law because it was against the manifest weight of the
evidence. When determining whether a conviction is against the manifest weight of
the evidence, an appellate court
weighs the evidence and all reasonable inferences, considers the
credibility of the witnesses, and determines whether in resolving conflicts
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OHIO FIRST DISTRICT COURT OF APPEALS
in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed.
State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Reversal
and the grant of a new trial should only be done in “exceptional cases in which the
evidence weighs heavily against the conviction.” Id. The trier of fact is in the best
position to judge the credibility of the witnesses and the weight to be given to the
evidence presented. State v. DeHass, 10 Ohio St. 2d 230, 231, 227 N.E.2d 212 (1967).
{¶17} The aggravated-menacing statute, R.C. 2903.21(A), provides in
relevant part that “[n]o person shall knowingly cause another to believe that the
offender will cause serious physical harm to the person or property of the other
person.” Aggravated menacing is a first-degree misdemeanor. R.C. 2903.21(B).
Serious physical harm includes any physical harm that carries a substantial risk of
death, involves substantial or permanent incapacity, or serious or permanent
disfigurement. R.C. 2901.01(A)(5).
{¶18} Testimony by the victim that the defendant pointed a gun at him, and
that the victim was afraid the defendant would shoot him, is sufficient to sustain a
conviction for aggravated menacing. See In re Shad, 1st Dist. Hamilton Nos. C-
080965 and C-081174, 2009-Ohio-3611, ¶ 17.
{¶19} There is no doubt that there was conflicting evidence in this case and
issues with regard to the credibility of the witnesses. Carson claims the verdict is
against the manifest weight of the evidence because White was not believable.
Carson claims that White fabricated his story about Carson having a gun in order to
avoid a theft accusation, which would have cost him his job. Carson and his
witnesses all testified that he did not own a gun. White testified that Carson not only
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had a gun, but that he pointed it at him. The body camera video reveals, however,
that when Johnson informed Carson of White’s allegation, Carson never stated that
he did not own a gun. In fact, when Johnson specifically asked Carson if he owned a
gun, Carson refused to answer. In addition, White’s supervisors were on the other
end of the call at the time of the incident and are the ones who actually called 911.
{¶20} The jury was in the better position to weigh the credibility of the
witnesses, and it did not err in believing White’s version of the events over Carson’s.
This is not one of those “exceptional cases in which the evidence weighs heavily
against the conviction” such that reversal is required, and so the conviction was not
against the manifest weight of the evidence. Carson’s first assignment of error is
overruled.
Second Assignment of Error
{¶21} In his second assignment of error, Carson contends that the trial court
erred with regard to two evidentiary rulings: (1) the trial court erred in allowing
testimony regarding his mental-health diagnosis because the testimony was
irrelevant, unfairly prejudicial, and amounted to inadmissible character evidence,
and (2) the trial court erred in precluding certain cross-examination of White about
his motive to lie.
{¶22} “A trial court has broad discretion in the admission of evidence, and
unless it has clearly abused its discretion and the defendant has been materially
prejudiced thereby, an appellate court should not disturb the decision.” State v.
Obermiller, 147 Ohio St. 3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 61. “An abuse of
discretion connotes more than an error of law or judgment; it implies that the court's
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attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5
Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶23} During cross-examination, the prosecutor asked both John and
Jennifer whether Carson had any mental-health “problems” or “diagnoses.” Defense
counsel objected to the questions, arguing that the evidence was not relevant and
was prejudicial. The judge allowed the witnesses to testify about Carson’s depression
diagnosis.
{¶24} On appeal, Carson argues that the evidence was not relevant, was
unduly prejudicial, misled the jury, and was improper character evidence. Evidence
is relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Evid.R. 401.
{¶25} The state was clearly trying to communicate to the jury that Carson’s
mental illness made him erratic and paranoid about people stealing from him. In
this way, the state was attempting to attack Carson’s credibility and rebut his defense
that White made up the story about the gun because White stole something from
Carson and would get fired if he were found out. The state brought out Carson’s
mental-health diagnosis of depression and inferred that it made him paranoid and
less credible.
{¶26} The problem is that the state did not actually produce any sort of
evidence to support its suggestion that Carson’s actions on the day in question were
linked to his depression. While questions about a witness’s mental health are
sometimes relevant to credibility, courts typically require expert testimony or
medical records to connect how a witness’s mental-health diagnosis might affect his
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credibility. See, e.g., State v. Browning, 98 Ohio App. 8, 11, 128 N.E.2d 173 (1st
Dist.1954) (expert psychiatric testimony of the witness’s “habits of sobriety,
condition of sobriety at the time of the alleged robbery, his mental health,
associations in life, similar accusations, and general habits in general could be quite
pertinent as reflecting on his credibility and the probabilities of the conflicting
versions of the parties.”); State v. Hadley, 3d Dist. Marion No. 9-11-30, 2013-Ohio-
1942, ¶ 70 (because defense counsel did not intend to present any credible evidence,
such as medical records or expert testimony, as to how the witness’s mental illness or
medications he was taking might have affected him on the day in question, the court
properly sustained objections to counsel’s attempts to cross-examine the witness
about his mental illness).
{¶27} There is no dispute that Carson suffered from depression and took
medication as a result. However, unlike in Browning, the testimony in Carson’s case
came from lay persons, and nobody testified as to whether his depression even
affected his actions that day, let alone how.
{¶28} In overruling the relevance objection, the court merely said, “I don’t
know anything about it, so I’ll allow the question to proceed.” This reasoning is
arbitrary and unreasonable. Prior to admitting the testimony, the court should have
determined what Carson’s mental illness was, and whether it was relevant to the
case. If the court was not sure how it would rule until it heard more testimony, then
it should have allowed the state to proffer evidence outside the presence of the jury.
The court’s explanation for overruling the objection was unreasonable. The fact that
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OHIO FIRST DISTRICT COURT OF APPEALS
Carson suffered from depression did not have any tendency to make a fact of
consequence more or less probable.1
{¶29} Nevertheless, that is not the end of our inquiry. Where a defendant
has not suffered any material prejudice as a result of the admission of the evidence,
the trial court’s decision will not be reversed on appeal, even if the court abused its
discretion in admitting the evidence. Obermiller, 147 Ohio St. 3d 175, 2016-Ohio-
1594, 63 N.E.3d 93, at ¶ 61; see State v. Williams, 2016-Ohio-5827, 71 N.E.3d 592, ¶
33 (1st Dist.) (the trial court abused its discretion in allowing the state to impeach its
own witness, but the defendant did not suffer material prejudice as a result). In
determining whether Carson suffered material prejudice as a result of the trial
court’s error, we must consider both the impact that the offending evidence had on
the verdict and the strength of the remaining evidence. State v. Cornwell, 2015-
Ohio-4617, 48 N.E.3d 169, ¶ 35 (9th Dist.), citing State v. Morris, 141 Ohio St. 3d 399,
2014-Ohio-5052, 24 N.E.3d 1153, ¶ 25.
{¶30} Although the trial court abused its discretion in admitting the
testimony about Carson’s mental health, Carson was not materially prejudiced as a
result. First, defense counsel was able to rehabilitate Carson’s credibility during his
direct examination of Carson by eliciting testimony that his mental-health diagnosis
was for depression as a result of being diagnosed with cancer, and that his
depression was much less severe than it used to be since he had survived the cancer.
Counsel also elicited testimony from Carson’s wife that his depression has never
manifested with him being violent.
1 Since the trial court abused its discretion in admitting the mental-health testimony, we do not
reach the questions of whether the testimony was unfairly prejudicial in violation of Evid.R. 403,
or was improper character evidence barred by Evid.R. 404.
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{¶31} Second, although the state’s questions regarding Carson’s mental
health were improper for the reasons discussed above, the state’s case did not hinge
on the testimony about Carson’s mental health. The state did not bring up Carson’s
mental health during its initial closing argument. The state only talked about it
briefly during rebuttal after defense counsel discussed it during his closing
argument. During rebuttal, the state argued that Carson’s bizarre and erratic
behavior that day could be explained by his mental-health diagnosis.
{¶32} Regardless, the jury was able to view Johnson’s body camera video and
judge for itself if it believed Carson’s behavior was bizarre and erratic, at least with
regard to his conversation with Johnson. While Carson’s credibility was a central
issue in this case, we hold that he has not shown that letting the jury hear that he
suffered from depression that was controlled with medication impacted the verdict.
Since Carson was not materially prejudiced as a result of the admission of testimony
about his mental health, we do not disturb the court’s judgment.
{¶33} In his second issue presented for review, Carson argues that White’s
testimony that he would lose his job if accused of theft was admissible to prove that
White had a motive to lie.
{¶34} During his cross-examination of White, defense counsel asked if White
would be fired if he was convicted of theft. White answered, “Yes,” but the
prosecution objected. The court sustained the objection and directed the jury to
disregard the statement.
{¶35} Contrary to Carson’s argument, White did not testify that he would
lose his job if he was accused of theft; rather he testified that he would lose his job if
convicted of theft. It is not clear on what basis the state objected or on what basis the
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trial court struck the testimony. Nevertheless, the state correctly points out in its
brief that the question called for speculation. The trial court did not abuse its
discretion by excluding a question that called for White to speculate as to what would
happen to him if he were convicted of theft.
{¶36} Also, even if not speculative, Carson was not materially prejudiced by
exclusion of the testimony. Carson elicited testimony throughout the trial to support
his theory that White had stolen from him, and therefore had a motive to lie and
make up the story about the gun to cover himself. Carson’s second assignment of
error is overruled.
Conclusion
{¶37} Carson’s conviction was not against the manifest weight of the
evidence. Although the trial court abused its discretion in admitting testimony
regarding Carson’s mental health, Carson was not materially prejudiced as a result.
Also, the trial court did not abuse its discretion in excluding White’s testimony as to
whether he would be fired if convicted of theft. For the foregoing reasons, both
assignments of error are overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
ZAYAS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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