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State v. Tawney

Court of Appeals of Ohio, Eleventh District, Portage

August 12, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
LARRY R. TAWNEY, Defendant-Appellant.

          Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR 00993.

         Judgment: Affirmed.

          Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, (For Plaintiff-Appellee).

          Michael J. Feldman, Lallo & Feldman Co., LPA, (For Defendant-Appellant).

          OPINION

          CYNTHIA WESTCOTT RICE, J.

         {¶1} 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.

         {¶2} 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 trial.

         {¶3} 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 her.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 kitchen occurred.

         {¶7} 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 return quickly.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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 into evidence.

         {¶11} 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 scar.

         {¶12} 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 evidence.

         {¶13} 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.

         {¶14} Mr. Tawney timely appealed, assigning for our review two assignments of error. The first states:

         {¶15} 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.

         {¶16} The statement to which Mr. Tawney refers occurred in the following segment of the state's closing argument:

         {¶17} [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.

         {¶18} 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].

         {¶19} But, ladies and gentlemen, he gets up here and he talks about how unreliable the victim was and how somehow this case is fabricated.

         {¶20} 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.

         {¶21} Now ask yourself, what else can he say? What can he say? He has zero evidence. And when the evidence is not -

         {¶22} [DEFENSE COUNSEL]: Objection, your Honor.

         {¶23} THE COURT: I'll sustain the objection.

         {¶24} [STATE]: The evidence is uncontroverted, ladies and gentlemen. Uncontroverted. (Emphasis added.)

         {¶25} 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:

         {¶26} [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.

         {¶27} THE COURT: [Prosecutor]?

         {¶28} [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.

         {¶29} 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].

         {¶30} Accordingly, the court instructed the jury, in ...


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