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State v. Skerkavich

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 5, 2019

STATE OF OHIO, Plaintiff-Appellee,
WILLIAM SKERKAVICH, Defendant-Appellant.

          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.

          Dean A Colovas, for appellant.


          FRANK 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 this opinion.

         I. 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 was removed.

         {¶ 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 appellant's motion.

         {¶ 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[.]

         II. 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 impartiality.

         {¶ 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 statements.

         {¶ 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 pages.

         {¶ 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 eighth graders.

         {¶ 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 bus?
[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 question.
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, right?
[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 roommates.
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 partying?
[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 ...

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