Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-605780-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Aqueelah Jordan and Katherine E. Mullin,
Assistant Prosecuting Attorneys, for appellee.
Colovas, for appellant.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
i> Defendant-appellant, William Skerkavich
("appellant"), brings the instant appeal
challenging his conviction for felonious assault.
Specifically, appellant argues that the trial court abused
its discretion by considering inadmissible and prejudicial
evidence, questioned appellant in a confrontational manner,
and his conviction for felonious assault was based on
insufficient evidence. After a thorough review of the record
and law, this court vacates appellant's conviction and
sentence and remands for further proceedings consistent with
Factual and Procedural History
2} Appellant brings the instant appeal from Cuyahoga
C.P. No. CR-16-605780-A, in which appellant was charged with
one count of felonious assault, a second-degree felony in
violation of R.C. 2903.11(A)(1). The felonious assault charge
resulted from an altercation between appellant and the
victim, James Caraballo, where appellant kicked Caraballo in
the mouth. Caraballo sought medical treatment the following
day because his tooth was hanging by the gum. Caraballo
ultimately had a dental procedure performed, and the tooth
3} The altercation between Caraballo and appellant
occurred on West 6th Street in downtown Cleveland. On
Saturday April 2, 2016, appellant went out to the bars
located on West 6th Street to celebrate his roommate's
birthday. Appellant and some friends took a party bus to the
West 6th Street area. As appellant was leaving the bars early
Sunday morning, April 3, he encountered Caraballo. Caraballo
went out to the West 6th area with his cousin, Evelio Cedeno,
and two of Cedeno's female friends. Appellant knew
Caraballo because they grew up in the same neighborhood in
Cleveland. Appellant became upset upon seeing Caraballo
because they had gotten into a fist fight as eighth graders,
and Caraballo bested appellant in the fight.
4} Upon seeing Caraballo walk down the street on the
sidewalk, appellant yelled to Caraballo "do you remember
me, you kicked my ass in the eighth grade?" Appellant
then collected snow that had accumulated on the hood of a
nearby car, and threw a snowball at Caraballo, striking
Caraballo in the side of the face. Appellant again yelled to
Caraballo "do you remember me, you kicked my ass in the
eighth grade?" Appellant became enraged then charged at
Caraballo. Caraballo, in an effort to protect himself,
charged back at appellant. Appellant then punched Caraballo
in the face. Caraballo fell to the ground and was unable to
get back to his feet because the sidewalk pavement was icy.
Appellant then kicked Caraballo in the head as he was on the
ground. As a result, Caraballo was bleeding from the mouth
and had a tooth hanging by the gum.
5} The following day, Caraballo sought medical
attention for the tooth, and it was removed and replaced with
a fake tooth. While Caraballo was at the hospital being
treated for the injury to his tooth, a Cleveland police
officer took a report as to Caraballo's version of the
events. It is unclear from the record whether Caraballo or
hospital staff called the police to report the incident.
6} Appellant was arraigned on the one-count
indictment on May 6, 2016. Appellant pled not guilty to the
indictment, and the matter proceeded to a bench trial. The
bench trial commenced on December 12, 2016, and continued
through the following day. The trial court found appellant
guilty of felonious assault and continued the matter for
sentencing. On January 10, 2017, the trial court sentenced
appellant to four years of community control sanctions.
Appellant filed a notice of appeal on February 11, 2017.
7} On March 13, 2017, this court dismissed
appellant's appeal for failure to file a timely notice of
appeal. (Motion No. 505309.) This court then on March 22,
2017 reinstated appellant's appeal. (Motion No. 505611.)
Appellant failed to file an appellate brief, and this court
dismissed appellant's appeal on June 16, 2017, pursuant
to App.R. 18(C). (Motion No. 508001.) Appellant filed a
motion for reconsideration of this court's dismissal,
which was granted on June 20, 2017. On September 18, 2017,
this court then again sua sponte dismissed appellant's
appeal for failure to file a brief. (Motion No. 510372.)
8} On January 17, 2019, appellant filed an
application for reopening of his appeal pursuant to App.R.
26(B). This court then, sua sponte, issued an order to treat
appellant's application for reopening as an application
for reconsideration pursuant to App.R. 26(A), and granted
9} Appellant now brings the instant appeal and
assigns three errors for our review:
I. Whether [appellant] was denied due process of law by the
trial court in a bench trial where the court was either, 1)
predisposed in rendering its decision or, 2) otherwise abused
its discretion by eliciting and considering inadmissible
evidence, including but not limited to [appellant's]
driving record, juvenile record, misdemeanor record and
history of past acts in evaluating the credibility of
witnesses, thus resulting in [appellant's] conviction[.]
II. Whether the trial court abused its discretion by
questioning [appellant] in a confrontational manner and/or by
misinterpreting testimony or relying on testimony not part of
the record as part of the basis of its decision[.]
III. Whether the trial court abused its discretion in
determining that the actions of [appellant] rose to the level
of felonious assault[.]
Law and Analysis
10} Appellant's first and second assignments of
error pertain to questions posed to appellant by the trial
court during the bench trial. We find appellant's second
assignment of error dispositive of the instant appeal, and
thus, we will address this assignment of error first.
11} In appellant's second assignment of error,
he argues that the trial court abused its discretion by
questioning appellant in a confrontational manner. Appellant
also argues that the trial court misinterpreted testimony and
relied on testimony not a part of the record. In this way, we
interpret appellant's arguments to mean that the trial
court questioned appellant in a confrontational manner and,
thus, demonstrated bias and prejudice and essentially became
an advocate for the prosecution.
12} As an initial matter, we note that pursuant to
R.C. 2945.06, when a defendant waives his right to a jury
trial and elects to be tried by the court, "any judge of
the court in which the cause is pending shall proceed to
hear, try, and determine the cause in accordance with the
rules and in like manner as if the cause were being tried
before a jury."
13} With regard to the trial court's questioning
of witnesses, a trial court, in either a bench trial or a
jury trial and in accordance with Evid.R. 614(B), "may
interrogate witnesses, in an impartial manner, whether called
by itself or by a party." Evid.R. 614(B). "This
rule exists because the trial court has an 'obligation to
control proceedings, to clarify ambiguities, and to take
steps to insure substantial justice.'" State v.
Stadmire, 8th Dist. Cuyahoga No. 81188, 2003-Ohio-873,
¶ 26, quoting State v. Kay, 12 Ohio App.2d 38,
49, 230 N.E.2d 652 (8th Dist.1967). Furthermore, and pursuant
to Evid.R. 611(A), the trial court has discretion to control
the flow of the trial. "'This control includes
asking questions of the participants and the witnesses in a
search for truth.'" State v. Redon, 8th
Dist. Cuyahoga No. 92611, 2009-Ohio-5966, ¶ 8, quoting
State v. Prokos, 91 Ohio App.3d 39, 44, 631 N.E.2d
684 (4th Dist.1993), citing Evid.R. 614.
14} A trial court's powers pursuant to Evid.R.
611 and 614 are within its discretion. Redon at
¶ 8, citing Prokos at 44. Therefore,
"'[a] court reviewing a trial court's
interrogation of witnesses and comments must determine
whether the trial court abused that discretion.'"
Redon at id, quoting Prokos at 44,
citing State v. Davis, 79 Ohio App.3d 450, 607
N.E.2d 543 (4th Dist.1992).
15} "A judge abuses his [or her] discretion
when he [or she] plays the part of an advocate, but the rule
is not so restrictive that [a] judge is not permitted to
participate in a search for the truth.'"
Redon at ¶ 11, quoting State v. Kight,
4th Dist. Jackson No. 682, 1992 Ohio App. LEXIS 4727 (Sept.
9, 1992). In this way, a trial court "may interrogate
witnesses, in an impartial manner, whether called by itself
or by a party." Evid.R. 614(B). Absent "'any
showing of bias, prejudice, or prodding of a witness to
elicit partisan testimony, it will be presumed that the trial
court acted with impartiality [in propounding to the witness
questions from the bench] in attempting to ascertain a
material fact or to develop the truth.'" State
v. Baston, 85 Ohio St.3d 418, 426, 709 N.E.2d 128
(1999), quoting Jenkins v. Clark, 7 Ohio App.3d 93,
98, 454 N.E.2d 541 (2d Dist.1992).
16} However, "there are strict limits placed on
the propriety of judicial questions of witnesses, lest the
court by its inquiries give the appearance of favoring one
side or the other." Harper v. Roberts,
2007-Ohio-5726, 879 N.E.2d 264, ¶ 7 (8th Dist). With
regard to a bench trial, "the court is 'accorded
greater flexibility in questioning witnesses * * * [because]
when there is no jury, there is no one to be prejudicially
influenced by the judge's demeanor.'"
Sheflyand v. Schepis, 8th Dist. Cuyahoga Nos. 95665
and 95667, 2011-Ohio-2040, ¶ 35, quoting Mentor v.
Brancatelli, 11th Dist. Lake No. 97-L-011, 1997 Ohio
App. LEXIS 5439, 10 (Dec. 5, 1997).
17} In appellant's second assignment of error,
he takes issue with the trial court's questions posed to
him. Appellant argues that his due process rights were
violated because the trial court abandoned its duty of
18} In our review of the record, we note that the
facts of the case were very straightforward, and the
indictment consisted of one count of felonious assault.
Indeed, the state was tasked with presenting evidence that
demonstrated beyond a reasonable doubt that appellant
"knowingly caused serious physical harm to"
Caraballo. R.C. 2903.11(A)(1). Furthermore, appellant's
trial counsel presented the argument that Caraballo had
charged at appellant and that appellant was acting in
self-defense. Therefore, the issue at trial was whether or
not a snowball was thrown at Caraballo, and whether or not
appellant made provoking statements to Caraballo. In this
way, the trial hinged on whether or not Caraballo was the
initial aggressor, i.e., whether or not Caraballo charged at
appellant unprovoked by a snowball or appellant's
19} In our review of the trial transcript, we note
that appellant's direct examination spanned 14 pages.
Appellant's counsel asked appellant approximately 70
questions. Conversely, the prosecutor's cross-examination
of appellant spanned four pages of the trial transcript and
the prosecutor asked appellant 22 questions. After
appellant's counsel stated that he had no redirect
questions for appellant, the trial court asked appellant
approximately 85 questions. Indeed, this questioning by the
trial court spanned over 22 pages of transcript wherein the
entirety of the trial testimony spanned approximately 150
20} Further, the only other witness in which the
trial court engaged in a line of questioning with was
Caraballo. The trial court asked Caraballo approximately 15
questions, which all focused on whether or not Caraballo saw
appellant throw the snowball, and the circumstances of the
previous fight between Caraballo and appellant when they were
21} The entirety of the trial court's
questioning of appellant is as follows:
THE COURT: Let me ask you a question. Take the stand again,
if you would be so kind. So how many people were on the party
[APPELLANT]: Around 10, 12, maybe.
THE COURT: Male or female?
[APPELLANT]: Male and female.
THE COURT: A keg of beer on the party bus?
[APPELLANT'S COUNSEL]: I'm sorry, I didn't hear
THE COURT: A keg of beer.
[APPELLANT]: Oh, keg of beer, I thought you said, like, beer
on the bus. No.
THE COURT: Was there a keg of beer on the party bus?
[APPELLANT]: There was no keg of beer on the party bus.
THE COURT: Plenty of alcohol, right?
[APPELLANT]: There was alcohol on the bus.
THE COURT: And you were doing shots too, right?
[APPELLANT]: Yeah, I guess. I guess you could say they were
doing shots. I didn't drink until we got to the club.
THE COURT: Let's talk about that. Now, you're the guy
that likes to go out and party, because you got two DUIs,
[APPELLANT]: Yes, I have two DUIs.
THE COURT: The party bus, let's talk about this party
bus. What was the name of the limousine company?
[APPELLANT]: I couldn't tell you.
THE COURT: Who arranged for the limousine?
[APPELLANT]: I'm pretty sure Dominic or his mother.
THE COURT: And you said it was $50 a head to get on?
[APPELLANT]: Yeah, like 50 bucks a person.
THE COURT: Why would you pay $50 a person if you're not
going to be partying your keister off?
[APPELLANT]: I mean, I'm sure it was like - it was for
the majority of, like, everybody on there, make sure nobody
were to get any DUIs or anything.
THE COURT: No, but what I'm saying, if someone says to
me, [h]ey, Judge, you don't want to drink and you're
not really a drinker, because it interferes with your
workout, but we're going to be on a party bus and
it's $50 a person, come and join, I'd say, [h]ey, I
don't want to do that because I don't drink that
much. And if I only have two beers, like you said you had two
beers the whole evening, we're going to talk more about
that later, that comes down to $25 a drink, doesn't it?
[APPELLANT]: It does, yes, I guess.
THE COURT: Let's back up. When did you get on the party
bus, and where did you get on the party bus?
[APPELLANT]: We got on the party bus from our house.
THE COURT: From our house.
[APPELLANT]: Dominic was living with me at the time, we were
THE COURT: Dominic was living with you at the time?
THE COURT: You were roommates?
THE COURT: So the party bus showed up at your house?
THE COURT: What time of day was that?
[APPELLANT]: Probably 11:00.
THE COURT: 11 p.m.?
[APPELLANT]: 11 p.m., yes.
THE COURT: Isn't that a little bit late to go out
[APPELLANT]: No, because downtown, like, people usually go
out around 11 or 12:00.
THE COURT: So you're going to go close the bar?
THE COURT: You pay 50 bucks to get on the ...