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State v. Montgomery

Court of Appeals of Ohio, Second District

July 12, 2013

STATE OF OHIO Plaintiff-Appellee
v.
CLIFTON MONTGOMERY Defendant-Appellant

(Criminal Appeal from (Common Pleas Court) Trial Court Case No. 2010-CR-4028

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee.

DARRELL L. HECKMAN, Atty. Reg. #0002389, Harris, Meyer, Heckman & Denkewalter, One Monument Square, Attorney for Defendant-Appellant.

OPINION

HALL, J.

{¶ 1} Clifton Montgomery appeals his conviction for felonious assault with a deadly weapon and the imposition of court costs. He contends that the trial court admitted inadmissible hearsay; permitted the prosecutor, during cross examination, to ask an improper line of questions; and permitted the prosecutor, during closing arguments, to vouch for the credibility of a witness. These contentions are meritless. Montgomery also contends that the trial court should not have imposed court costs on him. This contention has merit. We therefore affirm in part and reverse in part and remand.

I. Facts and Evidence

{¶ 2} At trial, the victim, Montgomery's girlfriend Tierra Montgomery (no relation), testified about what happened. Around 4 a.m., on December 18, 2010, Clifton Montgomery called her and asked if he could come to her apartment, and she told him that she would call him when she got home. Tierra arrived at her apartment around 5 a.m. She found her cousin Destiny Gregory asleep in the living room. Tierra called Clifton Montgomery and when he arrived around 5:15 a.m. they went to her bedroom and started listening to music. Not long after, Clifton Montgomery said to Tierra, "'You smell like sex and perfume.'" (Tr. 36). She responded, "'How do I smell like sex and perfume and I've been over at my sister's house?'" (Id.). Then things turned ugly. Clifton Montgomery punched Tierra twice in the face. Pinning her on the bed, he pulled out a big knife. When Tierra tried to grab the knife, she cut her hand. She was also cut on her shoulder. As they struggled, Tierra screamed for her cousin. Gregory testified that she heard Tierra's frightened screams and that they scared her. Gregory walked to Tierra's room and slowly opened the door. She saw Clifton Montgomery poised over Tierra with a big knife in his hand. After unsuccessfully trying to persuade him to leave, Gregory went to the living room and used her cell phone to call 911. While she was talking to the 911 operator, Tierra managed to escape from Clifton. She ran into the living room crying and screaming. Clifton came out yelling and left the apartment. All of this was recorded by the 911 operator and played at trial. When the police arrived, Tierra told them what had happened and who had done it. She told the police that Clifton lived in his parent's house-only about a block away from her apartment. The police found the appellant there and arrested him. A police officer testified that Clifton Montgomery had told the police that he had been home all night. Another officer, Mark Orick, testified that he heard his sergeant ask Clifton Montgomery's mother, Edwina Adams, whether Clifton had been home all evening and that Adams said she did not know.

{¶ 3} The appellant presented alibi testimony from three people. His mother testified that Clifton was home when she went to bed around 11:30 p.m. She said that she did not see him again until the police arrived. Clifton's father, Clifton Montgomery, Sr., testified that the last time he saw his son was around 4:30 a.m. LiLica Williams, the mother of one of the appellant's children, testified that she spent the night in Clifton's parent's house with him. She said that the only place he went that night was outside to smoke.

{¶ 4} On the jury's guilty verdict, the trial court entered a judgment of conviction, which imposed court costs on him as required by R.C. 2947.23.

{¶ 5} Montgomery appealed.

II. Review

{¶ 6} Montgomery assigns four errors to the trial court. He alleges that the court erred by imposing court costs on him; by admitting the 911-call recordings and Officer Orick's testimony about what his mother said; by permitting the prosecutor, on cross examination, to ask his mother about his children and their mothers; and by permitting the prosecutor, during closing arguments, to vouch for the credibility of Destiny Gregory.

A. Imposition of Court Costs

{¶ 7} The first assignment of error alleges that the trial court erred by imposing court costs because at the sentencing hearing the trial judge did not tell him that it would do this. The state concedes that this is reversible error. We agree.

{¶ 8} "Despite the fact that former R.C. 2947.23 (like current R.C. 2947.23(A)) requires a judge to assess costs against all convicted criminal defendants, * * * 'waiver of [the payment of] costs is permitted but not required if the defendant is indigent.'" State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 11, quoting State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 14. If the judge fails to orally notify a defendant that it is imposing court costs on him, the defendant is "denied the opportunity to claim indigency and to seek a waiver." Id. at ΒΆ 22. The failure is ...


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