FROM JUDGMENT ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO CASE No. 2015 CR-B 000085
BROOKS CAMERON and CHRISTOPHER JANKOWSKI, Attorneys at Law,
R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
A. TEODOSIO J.
Appellant, Cary R. Granakis, appeals from his convictions in
the Wayne County Municipal Court. We affirm.
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.
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.
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.
Mr. Granakis now appeals from his conviction and raises five
assignments of error for this Court's review.
For ease of analysis, we will rearrange and consolidate some
assignments of error.
OF ERROR ONE
CHARACTER EVIDENCE WAS IMPROPERLY ADMITTED AT TRIAL BECAUSE
GRANAKIS DID NOT PUT HIS CHARACTER INTO QUESTION.
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.
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.
"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).
"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
State v. Baskerville, 9th Dist. Summit No. 28148,
2017-Ohio-4050, ¶ 7, quoting State v.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶
"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).
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.
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
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 ...