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State v. Combs

Court of Appeals of Ohio, First District

July 19, 2013

STATE OF OHIO, Plaintiff-Appellee,
HAROLD COMBS, Defendant-Appellant.

Criminal Appeal From: Hamilton County Court of Common Pleas Trial No. B-1204769

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

William Gallagher, for Defendant-Appellant.


Fischer, Judge.

{¶1} Defendant-appellant Harold Combs appeals his conviction for felonious assault, arguing that his right to a fair trial was allegedly violated when: the prosecutor improperly vouched for the credibility of the witnesses and Combs's guilt during closing argument; the state improperly introduced evidence of Combs's invocation of his right to remain silent; and Combs received ineffective assistance of counsel. While we determine that the prosecutor improperly vouched for the witnesses and Combs's guilt in closing, we cannot determine that plain error occurred as a result. Moreover, the reference to Combs's invocation of his right to remain silent was not so extensive as to stress to the jury an inference of guilt from the silence, so no error occurred. Finally, we cannot conclude that Combs received ineffective assistance of counsel. Therefore, we affirm the judgment of the trial court.

I. Factual Background and Procedural Posture

{¶2} On April 16, 2012, Combs and his girlfriend got into an argument while at Combs's apartment, which led to a physical altercation between the two. The argument ended with Combs's girlfriend out in the hallway of the apartment building, topless, with a bleeding cut on her forehead. One of the neighbors in the building called 911, and, as a result, Combs was arrested and then indicted for two counts of felonious assault, one under R.C. 2903.11(A)(1), and one under R.C. 2903.11(A)(2), for use of a deadly weapon or dangerous ordnance. The matter proceeded to a jury trial in the Hamilton County Court of Common Pleas.

{¶3} At trial, the state presented the testimony of two police officers who had responded to the 911 call from the neighbor. The first officer testified that when he and his partner had arrived on the scene, the victim had been sitting or standing just inside the apartment building, topless, with a shirt or towel covering her head. The officer had seen blood on the shirt or towel and on the floor, marks around the victim's neck, and a "gash" in her head. The officer then had gone to Combs's apartment to speak to Combs. The officer had seen blood throughout the bedroom, both on the bed and the floor, and he also had witnessed belongings knocked over in the closet.

{¶4} Combs had told the officer that the victim had "come at him" with scissors, but the officer had not seen any wounds on Combs, and the officer had observed a pair of scissors lying neatly on a tray table beside the bed. The officer testified that, after further questioning, Combs had become uncooperative and had said to the officer: "[T]ake me to jail." The officer testified that Combs had had no problems physically walking to the police car.

{¶5} The second officer also testified. He corroborated the first officer's testimony that he had not observed any injuries on Combs. The second officer had stayed with victim to get her story.

{¶6} Finally, the state presented the testimony of the victim. She testified that she was 54 years old. She had met Combs in February and had moved in with him at the end of March. On the night the incident had occurred, she and Combs had had a nice dinner, and he had been drinking wine and beer. After the two had gotten in bed, Combs had started to put on his clothes, and he asked her for money. The victim testified that she had given him $20 and had asked him where he was going and why he needed money. Combs had become agitated and had asked her for more money. When she had refused to give him any more, he had told her to get out of his apartment. According to the victim, Combs had started to choke her while lifting her out of the bed, telling her that she was not moving fast enough. Then, he had hit her with an unknown object, and he had dragged her out of the bedroom, out of the apartment, and into the hallway of the apartment complex. A neighbor had given the victim a shirt and had called 911. The victim had been taken to University Hospital where the wound on her head had been glued shut. She testified that she still had a scar.

{¶7} The state presented several pictures depicting a scratch and bruise on the victim's neck, bruises on her arms, and a gash in her head. The state also presented a picture of the scissors that the officer had seen resting on the bedside tray table. The victim denied having used the scissors to threaten Combs, and she testified that the scissors had been used to open her mail. The state also presented hospital records from University Hospital, which contained the victim's statement to medical personnel that she had been assaulted and choked, and which also stated that the victim had sustained a cut and bruising.

{¶8} Combs testified in his defense. He testified that he was 70 years old, and that he had trouble getting around and sometimes used a cane. He testified that that he did not drink, except the occasional beer, because drinking caused him to "black out." According to Combs, on the night he had been arrested, the victim had laid a 20 bill on his stomach while they had been lying in bed together, which he had returned to her immediately. Then, the victim had begun smoking in bed, and he testified that he did not "allow people to smoke in [his] house." He had directed the victim to the ashtray on the bedside table, which was "usually clean." The victim had refused to put out the cigarette.

{¶9} Combs testified that he had told the victim to get out. Then they had started arguing over their wedding rings and over Combs's hat that they had picked out together. He had stepped in front of her when she had reached for the hat in the closet, and then she had pushed him. When he had stood up, she had had a pair of scissors in her hand and had started "poking" him with the scissors. He had tried to get the scissors out of her hand, but then she had started biting his ear. He then had hit her with his hand or fist to stop her from biting him, and, he added, he had a fingernail that was "like a claw or something almost when it grows." Combs had denied dragging the victim out of the apartment.

{¶10} The jury found Combs guilty of felonious assault under R.C. 2903.11(A)(1), and the lesser-included offense of assault under R.C. 2903.13(A), but not guilty under R.C. 2903.11(A)(2). The trial court merged the assault offense with the felonious-assault offense and sentenced Combs to five years in the department of corrections. This appeal ensued.

II. Prosecutorial Misconduct

{¶11} In his first assignment of error, Combs argues that his right to a fair trial was violated when the prosecutor vouched for the credibility of state witnesses and commented on Combs's guilt during closing argument. Combs points to three specific incidents of alleged misconduct. In the first instance, the prosecutor, speaking about the victim, stated, "what it boils down to is for her credibility, and I'll be honest with you, I believe her. I've always believed her. I think it happened exactly that way." In the second instance, the prosecutor stated to the jury, "I am confident that * * * when you discuss this amongst yourselves, that you will conclude, as I have concluded, that the evidence warrants a conviction of the defendant * * *."

In the third instance, the prosecutor, speaking with regard to the officer-witnesses, stated:

I'll tell you, these two policemen, one's been on for eight years, one's been on for five, if there was a real issue as to their credibility * * * I guarantee that [defense counsel] would have had their personnel records. * * * If there was (sic) documented instances of misconduct by either one of these policemen, you would know about it. I would know about it. The judge would know about it, because that's [defense counsel's] job. He would have brought it out.

{¶12} At the outset, we note that Combs did not object to these statements during closing argument, so all but plain error has been waived. Crim.R. 52(B); State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). We will not reverse a judgment for plain error unless the outcome of the trial clearly would have been different absent the error. Id.; State v. Miller, 1st Dist. Hamilton No. C-070691, 2008-Ohio-5899, ¶ 22.

{¶13} In determining whether prosecutorial misconduct has occurred, the test is both whether the prosecutor's remarks were improper, "and if so, whether they prejudicially affected the accused's substantial rights." State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 200. "The touchstone of the analysis 'is the fairness of the trial, not the culpability of the prosecutor.' " Id., quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

{¶14} Combs argues that the prosecutor's remarks constituted improper vouching. "Vouching occurs when the prosecutor implies knowledge of facts outside the record or places his or her personal credibility in issue." State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ΒΆ 229. Thus, an attorney cannot express his or her personal beliefs or opinions as to the credibility of a witness or as to the ...

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