Court of Appeals of Ohio, Eleventh District, Portage
Criminal Appeal from the Portage County Court of Common
Pleas, Case No. 2017 CR 00993.
V. Vigluicci, Portage County Prosecutor, and Theresa M.
Scahill, Assistant Prosecutor, (For Plaintiff-Appellee).
Michael J. Feldman, Lallo & Feldman Co., LPA, (For
CYNTHIA WESTCOTT RICE, J.
Appellant, Larry R. Tawney, appeals the July 12, 2018
judgment of the Portage County Court of Common Pleas
sentencing him to a total of twenty-one years imprisonment
for two counts of felonious assault, and one count each of
abduction, aggravated burglary, robbery, disrupting public
service, and grand theft auto. For the reasons discussed
herein, the judgment is affirmed.
Mr. Tawney was indicted on seven counts: count one: felonious
assault, a felony of the second degree, in violation of R.C.
2903.11 (A)(2); count two: abduction, a felony of the third
degree, in violation of R.C. 2905.02(A)(2)(C); count three:
aggravated burglary, a felony of the first degree, in
violation of R.C. 2911.11(A)(1)(B); count four: felonious
assault, a felony of the second degree, in violation of R.C.
2903.11(A)(1); count five: robbery, a felony of the second
degree, in violation of 2911.02(A)(2)(B); count six:
disrupting public services, a felony in the fourth degree, in
violation of R.C. 2909.04(A)(1); and count seven: grand theft
auto, a felony of the fourth degree, in violation of R.C.
2913.02. He pleaded not guilty and the case proceeded to
Mr. Tawney and the victim were in a boyfriend-girlfriend
relationship. She testified that Mr. Tawney used cocaine,
methamphetamine, and marijuana daily and admitted that about
the time she met him, she also began using cocaine. According
to the victim's testimony, a few months into their
relationship, Mr. Tawney became physically abusive toward
According to the victim's testimony, on the evening of
November 8, 2017, she agreed to meet with Mr. Tawney. She
drove to his mother's house, where he resided, and from
there they walked to a friend's house where they
"hung out" and drank beer until the early morning.
Upon their return to Mr. Tawney's house, she wanted to
return home. He did not want her to leave and an argument
ensued. She got in her car and started it, but Mr. Tawney got
in the passenger's side, removed the keys from the
ignition, and took her phone and keys away from her. He told
her to go inside and when she did not get out of the car, he
went around to the driver's side door and dragged her by
her coat out of the car and into the house.
The victim testified that once they were inside, Mr. Tawney
demanded she cook him breakfast. When she refused, he pushed
her into a corner and held a serrated knife to her throat,
threatening to kill her and berating her with derogatory
names and insults. He eventually started making some eggs and
she tried to sneak past him, but he caught her, threw her to
the ground spouting more profanity, and put his foot on her
head with enough of his body weight that she couldn't get
up. At some point, his mother came in the room and stepped
over the crying victim without comment. Then, with his mother
still present, she tried to stand up and Mr. Tawney took the
hot cast iron skillet and held it "super close" to
her face and threatened to burn her so badly that no one
would want to look at her again. He then pushed her into a
chair at the kitchen table and she watched him eat.
On direct examination, and coinciding with the police report,
the victim testified that after Mr. Tawney ate, she then went
upstairs and took a nap until about 4:30 p.m. On cross
examination, the victim stated that she went upstairs and
took a nap immediately upon their return home until Mr.
Tawney woke her up at 4:30 p.m. and then the violence in the
Then, either directly after waking her up or directly
following the violence in the kitchen, Mr. Tawney told her he
was going to take her to Youngstown and sell her for money.
She was able to convince him that if he needed money so badly
she could borrow some money from her parents instead, so he
drove the victim in her car to her parents' house. Once
there, he instructed her to go inside, get the money, and
When she opened the garage, she realized her parents were not
home, so she ran into the house and deadbolted the door. She
thought she was safe but then she heard him kicking the door,
so she ran for the house phone. On the third kick, he broke
the door down. He grabbed the phone out of her hands,
dislodged the battery, threw her to the ground, stomped on
her head a number of times, and kicked her repeatedly in her
privates and in her back. He told her that if she got him in
trouble he would "hunt her down and end her." She
pleaded with him to just go get her purse and then she would
go with him. When he went for her purse, she ran across the
street, screaming for help and pounding on the neighbor's
windows. The neighbor called 9-1-1 and her parents. Mr.
Tawney took the victim's purse and drove off in her car.
The police and EMS arrived, followed shortly thereafter by
her parents. Though she was disheveled, bruised, and crying,
minimal immediate medical care was necessary, but upon the
recommendation of EMS and the police, her parents drove her
to the emergency room.
In addition to the victim's testimony, the state also
presented the testimony of the investigating police officer
and the nurse who saw her at the hospital. Their testimony
corroborated the victim's testimony. The police officer
who investigated the incident testified that he found the
door from the house to the garage was shattered, and inside
the house he found the phone and battery were separated and
on the floor. Pictures of the shattered door were entered
The nurse testified that the victim had blood in her urine,
which could be caused either by injuries to her back or
privates or a urinary tract infection, but that the victim
did not have a urinary tract infection. The nurse also
testified that based on the color of the bruises, they were
likely no older than a day or two, and that many bruises were
still developing. Numerous pictures of the victim's
bruises were admitted, including one showing a permanent
While the victim's injuries were not disputed, Mr. Tawney
maintained that he was not the perpetrator. Mr. Tawney did
not testify, nor did he call any witnesses or offer any
The jury found him guilty of all seven counts and the court
sentenced him to seven years imprisonment for each of the two
counts of felonious assault, twenty-four months for
abduction, and five years for aggravated burglary, all to run
consecutively to one another; and four years for robbery,
twelve months for disrupting public service, and twelve
months for grand theft auto to run concurrently to one
another and concurrent to the aforementioned consecutive
sentences for a total of twenty-one years imprisonment.
Mr. Tawney timely appealed, assigning for our review two
assignments of error. The first states:
The prosecutor's statements in closing argument related
to appellant's failure to testify violated
appellant's privilege against self-incrimination
guaranteed by the Fifth and Fourteenth Amendments of the
United States Constitution.
The statement to which Mr. Tawney refers occurred in the
following segment of the state's closing argument:
[STATE]: Now, ladies and gentlemen, his closing argument has
been nothing but speculation. The evidence in this case is a
solid match. Look at the evidence.
Now, I expected [defense counsel] to come up here and muddy
the waters. He's a very good advisory, and he did so very
charmingly. We've worked together for a lot of years and
I really respect [defense counsel].
But, ladies and gentlemen, he gets up here and he talks about
how unreliable the victim was and how somehow this case is
Now, it's no big surprise to me, ladies and gentlemen,
because that's the kind of defense that I see in the
hundreds of cases that I've litigated, that the evidence
is somehow fabricated or untrue. It's no big surprise to
me, ladies and gentlemen.
Now ask yourself, what else can he say? What can he say?
He has zero evidence. And when the evidence is not
[DEFENSE COUNSEL]: Objection, your Honor.
THE COURT: I'll sustain the objection.
[STATE]: The evidence is uncontroverted, ladies and
gentlemen. Uncontroverted. (Emphasis added.)
After closing arguments, defense counsel moved for a mistrial
based on the prosecutor's statement. The following
conversation occurred outside the presence of the jury:
[DEFENSE COUNSEL]: I have to at this time move for a mistrial
based on the Prosecutor's closing argument that states
that what evidence does the Defense have. It sort of implies
what has the Defense proven or presented. I think it violates
his right to remain silent, and, instead, invites the Jury to
consider those issues. And at this time I think I have to
move for a complete mistrial because I don't think
there's any instruction that would cure it without doing
more damage. Thank you.
THE COURT: [Prosecutor]?
[STATE]: Your Honor, the evidence in this case has been
uncontroverted and that's what I was indicating, that
they are to review the evidence in this case.
THE COURT: Okay. And I did sustain your objection. I will,
obviously, in my charge to the Jury acknowledge that the
Defendant is not required to testify, not required to prove
anything. And that should be a curative instruction, so
I'll deny your motion, [defense counsel].
Accordingly, the court instructed the jury, in ...