Criminal Appeal from the Canton Municipal Court, Case No.
Plaintiff-Appellee KRISTEN BATES AYLWARD CANTON LAW DIRECTOR,
JASON P. REESE, CANTON CITY PROSECUTOR BRITTANY M. FLETCHER
Defendant-Appellant BERNARD L. HUNT.
JUDGES: Hon. John W. Wise P.J., Hon. Craig R. Baldwin J.,
Hon. Earle E. Wise, Jr., J.
Appellant Margaret Regina Brown appeals her conviction, in
the Canton Municipal Court, Stark County, on one count of
misdemeanor domestic violence. Appellee is the State of Ohio.
The relevant facts leading to this appeal are as follows.
Appellant and Daniel M. are the biological parents of a
ten-year-old daughter (hereinafter "N.M."). On
January 19, 2019, Daniel M. and N.M. stopped by
appellant's residence in Pike Township, Ohio, in order to
have her accompany them on a trip to Alliance to look at a
puppy. After appellant got into the car, an argument
developed between appellant and Daniel, purportedly
concerning the volume of the music on the radio. Daniel
decided to take appellant back to her residence. When they
got there, appellant refused to exit the vehicle. A physical
altercation ensued, and Daniel ended up with scratches on his
face and abrasions on his chin.
Sergeant Gary Six of the Magnolia Police Department responded
to the location in question after a neighbor called 911.
On January 21, 2019, appellant was charged by complaint in
the Canton Municipal Court with one count of domestic
violence (R.C. 2919.25(A)), a first-degree misdemeanor. On
January 28, 2019, appellant posted bond and agreed to have no
contact with the alleged victims.
The matter proceeded to a jury trial on March 6, 2019. Prior
to voir dire, both sides filed motions in
limine. In particular, the State sought to exclude
testimony of "prior dealings" between Sergeant Six,
appellant, and/or Daniel M. Tr. at 8. Defense counsel
objected, asking the court not to "strictly rule"
on the issue, arguing that the prior dealings might become
relevant if the issue would go to credibility. The court
essentially agreed. See Tr. at 9-10. Defense counsel
subsequently asked to have Daniel M. referred to as the
alleged or listed victim instead of "victim." The
court agreed. Tr. at 23-24.
In addition, one of defense counsel's motions in
limine concerned N.M., the daughter of appellant and
Daniel M. First, defense counsel moved to exclude any
testimony regarding appellant pushing or shoving N.M. based
on lack of relevance. Tr. at 13. At that time, the court did
not rule on the motion, implicitly giving trial counsel the
opportunity to renew the motion during trial. See
Tr. at 14. Defense counsel also moved to exclude any
testimony regarding which parent had custody of N.M. based on
lack of relevance. Tr. at 15. The court ruled that the
question of which parent N.M. lived with on the day of the
incident (i.e., Daniel) was relevant. Tr. at 16-17.
Following voir dire and opening arguments, the trial
went forward, with the State calling four witnesses. The
first was Sergeant Six. Among other things, Six stated that
he had spoken to Daniel at the scene and was informed that
after appellant was taken back to her apartment, she refused
to get out of the car, and then started recording with her
cell phone. Tr. at 126-127. Six then was informed that Daniel
tried to grab the cell phone, at which point appellant
"attacked" him, causing him to fall against another
vehicle. Tr. at 127. Six agreed that at some point, appellant
ended up on the ground in the fracas, but Six testified he
had no evidence that Daniel had ended up on top of appellant.
Tr. at 144. However, Six was shown Daniel's written
statement where he had written that he was, eventually, on
top of appellant. Tr. at 146. He also agreed that Daniel was
listed as five inches taller than appellant, and more than
thirty pounds heavier. Id.
N.M., the child witness, told the jury that appellant had
"lunged" at Daniel, and that she saw him pinned
down by appellant, near some standing water. Tr. at 169-170.
She did not see Daniel ever hit appellant; instead, he just
splashed water from the puddle at her face. Id.
Daniel himself subsequently also testified that appellant had
pinned him down, so he splashed some of the water in her face
to get her away. Tr. at 180. A neighbor, Chas Smart, told the
jury he had heard yelling outside of his apartment. After he
went outside, he observed Daniel with blood "all over
his face," and he proceeded to call 911. Tr. at 236-238.
The sole defense witness, Karl Gausewitz, appellant's
landlord, recalled that Daniel told him he had slipped on the
ice and snow, falling against Gausewitz's car, even
though Sergeant Six had testified that Karl described
appellant as the aggressor during the police investigation.
Tr. at 127, 249, et seq.
After hearing the evidence and arguments, the jury found
appellant guilty of domestic violence. On the same day,
appellant was sentenced inter alia to 180 days in
jail, with all but ten days suspended and with credit for ten
days served. She was also fined $10.00 and ordered to pay
On April 3, 2019, appellant filed a notice of appeal. On
April 17, 2019, the trial court granted a stay as to fines,
costs, and other services pending appeal. Appellant herein
raises the following three Assignments of Error:
"I. THE TRIAL COURT FAILED TO PROPERLY SWEAR IN THE
JURY, TO THE PREJUDICE OF THE DEFENDANT.
"II. THE DEFENDANT WAS DENIED HER RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.
"III. THE TRIAL COURT ERRED WHEN IT OVERRULED THE
DEFENDANT'S EVIDENCE RULE 403(A) [MOTION] TO ...