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State v. Granakis

Court of Appeals of Ohio, Ninth District, Wayne

November 6, 2017

STATE OF OHIO Appellee
v.
CARY R. GRANAKIS Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO CASE No. 2015 CR-B 000085

          JOHN BROOKS CAMERON and CHRISTOPHER JANKOWSKI, Attorneys at Law, for Appellant.

          DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          THOMAS A. TEODOSIO J.

         {¶1} Appellant, Cary R. Granakis, appeals from his convictions in the Wayne County Municipal Court. We affirm.

         I.

         {¶2} On the night of December 22, 2014, Sergeant Eric Peters of the Wayne County Sheriffs Office was dispatched to a residence for a domestic violence complaint. He spoke to the victim ("K.D.") and her mother at the home. K.D. told the officer that she had a confrontation with Mr. Granakis over his attempted removal of a fan from their upstairs bedroom. She attempted to block the doorway so Mr. Granakis could not remove the fan, and he grabbed her arm, pushed her, and swatted her face. K.D. was upset, crying, and had red marks on her nose and arm. She told the officer that she was fearful due to this incident and prior incidents with Mr. Granakis, including a time when he poured body wash and talcum powder on her and shook her head back and forth. Mr. Granakis was no longer in the residence when the police arrived, but he called K.D. while police were still present. Sergeant Peters spoke to Mr. Granakis on the phone and asked him to return to the residence. Mr. Granakis returned and spoke to the officer, but only admitted to grabbing K.D.'s arm to move it since she was blocking the doorway. No one was arrested that night, but Mr. Granakis was later charged with domestic violence for the December 22nd incident in January of 2015.

         {¶3} In June of 2015, police interviewed K.D. about the domestic violence incident, and she also discussed past undocumented incidents of physical violence with Mr. Granakis, including the body wash and talcum powder incident and another time when he hit her so hard that she was off work for approximately one week. Soon thereafter, Mr. Granakis was charged with seven more offenses.

         {¶4} After a jury trial, Mr. Granakis was convicted of three counts of domestic violence, one count of aggravated menacing, and one count of menacing by stalking. The trial court ordered a pre-sentence investigation report and subsequently sentenced Mr. Granakis to 360 days in jail, fines, and costs. The jail sentence was suspended and Mr. Granakis was placed on 36 months of community control. The sentence was stayed pending appeal.

         {¶5} Mr. Granakis now appeals from his conviction and raises five assignments of error for this Court's review.

         {¶6} For ease of analysis, we will rearrange and consolidate some assignments of error.

         II.

         ASSIGNMENT OF ERROR ONE

CHARACTER EVIDENCE WAS IMPROPERLY ADMITTED AT TRIAL BECAUSE GRANAKIS DID NOT PUT HIS CHARACTER INTO QUESTION.

         ASSIGNMENT OF ERROR TWO

OTHER ACTS EVIDENCE WAS IMPROPERLY ADMITTED AT TRIAL BECAUSE ITS ONLY LOGICAL PURPOSE WAS TO SHOW CONFORMITY THEREWITH AND THE STATE DID NOT GIVE PROPER NOTICE.

         {¶7} In his first assignment of error, Mr. Granakis argues that the trial court committed plain error by improperly admitting character evidence in its case-in-chief prior to Mr. Granakis testifying and "the effect of this prejudicial disadvantage clearly affected the outcome of the trial." In his second assignment of error, Mr. Granakis argues that the trial court erred by improperly admitting the same testimony as "other acts" evidence. We disagree with both propositions.

         {¶8} "Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, " except "[evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same is admissible * * * " Evid.R. 404(A)(1). Thus, "the Supreme Court of Ohio has held that when a defendant offers evidence regarding his good character, the introduction opens the door for the prosecution to inquire about a defendant's bad character." State v. Mills, 9th Dist. Medina Nos. 02CA0037-M, 02CA0038-M, 2002-Ohio-7323, ¶ 54, citing State v. McGlaughlin, 9th Dist. Summit No. 19019, 1998 Ohio App. LEXIS 5484, *5 (Nov. 18, 1998), citing State v. Wright, 48 Ohio St.3d 5, 8 (1990).

         {¶9} "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evid.R. 404(B). Trial courts conduct a three-step analysis in determining whether to admit other acts evidence:

The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice.

State v. Baskerville, 9th Dist. Summit No. 28148, 2017-Ohio-4050, ¶ 7, quoting State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 20.

         {¶10} "The admission or exclusion of evidence rests soundly within the trial court's discretion." State v. Scheck, 9th Dist. Medina No. 05CA0033-M, 2006-Ohio-647, ¶ 13. We review a trial court's decision regarding the admission or exclusion of evidence for an abuse of discretion. Id. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd, 66 Ohio St.3d 619, 621 (1993).

         {¶11} Mr. Granakis argues in his first assignment of error that, prior to his own testimony at trial, the State improperly introduced evidence from several witnesses who testified as to his character and character traits, specifically:

[He] would get mad based on his mannerisms, that he's aggressive, untrustworthy because he goes through other's phones, he argued with his girlfriend, gave out bad vibes based on his actions, made others feel uneasy or pressured, was borderline obsessed talking about [K.D.], made others feel threatened, and yelled at employees due to frustration.

         In his second assignment of error, he argues that the improper testimony mentioned many other acts, specifically: "[He] yells at work, gets mad at [K.D.], uses [K.D.] to benefit himself, provides preferential treatment to [K.D.], goes through employees' property, reduces employees' work hours because they did not cooperate with him, and other acts of intimidation, among other things." Mr. Granakis argues that the evidence is not relevant to the charges and the timeframe of the witnesses' observations cannot be linked to the criminal conduct. The State argues that this testimony was not improper character evidence, but simply observations by the witnesses of Mr. Granakis' controlling, obsessive, and abusive acts toward K.D., which were properly admitted to establish the "engaging in a pattern of conduct" element of the menacing by stalking charge.

         {¶12} R.C. 2903.211(A) addresses the offense of menacing by stalking and states: "No person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person * * * or cause mental distress to the other person * * *." A "pattern of conduct" is defined as "two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents * * *." R.C. 2903.211(D)(1). "Mental distress" is defined as: (1) "[a]ny mental illness or condition that involves some temporary substantial incapacity" or (2) "[a]ny mental illness or condition that would normally require psychiatric treatment, psychological treatment, or other mental health ...


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