[Cite as State v. Cash, 193 Ohio App.3d 224, 2011-Ohio-1404.]




         IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

THE STATE OF OHIO,                                  :

        Appellee,                                   :     C.A. CASE NO. 23731

v.                                                  :     T.C. CASE NO. 09-CRB-8451

CASH,                                               :     (Criminal Appeal from
                                                           Municipal Court)
        Appellant.                       :

                                              .........

                                             OPINION

                             Rendered on the 25th day of March, 2011.

                                              .........

John Danish, City of Dayton Law Director, Stephanie Cook, Chief Prosecuting Attorney, and
Matthew Kortjohn, Asstistant Prosecuting Attorney, for appellee.

Victor A. Hodge, Assistant Public Defender, for appellant.

                                              .........

        GRADY, Presiding Judge.

        {¶ 1} Defendant, Ann Cash, appeals from her conviction and sentence for assault.

        {¶ 2} On July 26, 2009, at around 12:50 a.m., Vanessa Robinson was with her

boyfriend, Jerome Hunt, at his home at 4114 Silven Drive, in Dayton, Ohio. As Robinson and

Hunt were leaving Hunt’s residence, defendant pulled up in her vehicle. Defendant and Hunt

have a five-year-old child. Defendant exited her vehicle and immediately began arguing with

Hunt, questioning why he was with Robinson. Before long, defendant and Robinson were

arguing with each other over Hunt. The verbal altercation included cussing and name calling
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and soon turned physically violent.

       {¶ 3} According to Robinson, after she called defendant a felon, defendant punched

her in the face. Robinson fell to the ground, and there was no further physical contact between

her and defendant. Robinson was having difficulty breathing and used Hunt’s phone to call

9-1-1. By the time police arrived, defendant had fled. Robinson was transported to Good

Samaritan Hospital for treatment of her injuries, which included bruises on her jaw.

       {¶ 4} According to Hunt and defendant, Robinson started the physical altercation by

trying to hit defendant, who struck Robinson in self-defense. Robinson managed to pull

defendant’s hair, causing defendant to fall and injure her knee.        When Hunt restrained

Robinson, defendant left the scene.

       {¶ 5} Defendant was charged by complaint filed in Dayton Municipal Court with one

count of assault, R.C. 2903.13(A), a misdemeanor of the first degree. At Robinson’s request,

the trial court issued a criminal protection order, R.C. 2903.213, as a pretrial condition of

defendant’s release, prohibiting defendant from having any contact with Robinson. Following

a trial to the court, defendant was found guilty of assault. The trial court sentenced defendant

to pay a $100 fine plus costs and continued the protection order already in place.

       {¶ 6} Defendant timely appealed to this court.

       FIRST ASSIGNMENT OF ERROR

       {¶ 7} “The cumulative effect of errors denied appellant a fair trial and the right to

effective representation of counsel.”

       {¶ 8} Defendant argues that due to the cumulative effect of the trial court’s multiple

errors, she was denied a fair trial. State v. DeMarco (1987), 31 Ohio St.3d 191.

       {¶ 9} With respect to the alleged multiple errors committed by the trial court to which
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defendant refers, defendant first argues that the trial court erred on two separate occasions by

unduly limiting the scope of cross-examination of Robinson, which defendant claims denied

her due process and her right to a fair trial. The first occasion involved the following exchange

between defense counsel and Robinson:

       {¶ 10} “Q. Well, you stated that your relationship began in December?

       {¶ 11} “A. That is correct

       {¶ 12} “Q. And Mr. Hunt and Miss Cash share a child together, correct?

       {¶ 13} “A. That’s correct.

       {¶ 14} “Q. So their relationship has lasted much longer than your relationship with

Mr. Hunt?

       {¶ 15} “THE COURT:          You know I’m going to sua sponte to stop this questioning

because you, yourself objected to anything outside of the particular incident, so don’t go there.

       {¶ 16} “THE DEFENSE: O.K.”

       {¶ 17} Evid.R. 611 provides:

       {¶ 18} “(A) Control by court. The court shall exercise reasonable control over the

mode and order of interrogating witnesses and presenting evidence so as to (1) make the

interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless

consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

       {¶ 19} “(B) Scope of cross-examination. Cross-examination shall be permitted on all

relevant matters and matters affecting credibility.”

       {¶ 20} In State v. Ross, Montgomery App. No. 22958, 2010-Ohio-843, at ¶ 9, we

observed:

       {¶ 21} “On cross-examination, a party may inquire into all matters pertinent to the case
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that the party calling the witness would have been entitled or required to raise. In re Fugate

(Sept. 22, 2000), Darke App. No. 1512, citing Smith v. State (1932), 125 Ohio St. 137, 180 N.E.

695, paragraph one of the syllabus. However, the trial court has broad discretion in imposing

limits on the scope of cross-examination. State v. Cobb (1991), 81 Ohio App.3d 179, 183, 610

N.E.2d 1009. Trial judges have wide latitude ‘to impose reasonable limits on such

cross-examination based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally

relevant.’ Delaware v. Van Arsdall (1986), 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674.

An appellate court will not interfere with a trial court's decision about the scope of

cross-examination absent an abuse of discretion. Fugate, supra. The term ‘abuse of discretion’

‘connotes more than an error in * * * judgment; it implies that the court's attitude is

unreasonable, arbitrary or unconscionable.’ Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,

219, 450 N.E.2d 1140.”

       {¶ 22} Defense counsel’s question during cross-examination of Robinson concerning

the nature and length of her relationship with Jerome Hunt was not relevant to any fact of

consequence in determining whether defendant knowingly caused physical harm to Robinson.

Accordingly, the trial court’s sua sponte exclusion of that evidence was not an unreasonable

exercise of the court’s discretion in limiting questioning of the witnesses to relevant matters.

No abuse of the trial court’s discretion has been demonstrated.

       {¶ 23} The second alleged instance of trial-court error involved the following exchange

between defense counsel and Robinson:

       {¶ 24} “Q. And, could you explain to the court because you didn’t—what happened to

Miss Cash’s purse?
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        {¶ 25} “A. I don’t know what happened with her purse.

        {¶ 26} “Q. You didn’t throw her purse?

        {¶ 27} “A. No, I did not. My purse—her purse and my purse, my belongings—

        {¶ 28} “THE COURT: You know, I’m going again, because the prosecution is not

objecting, sua sponte this was not part of direct so could we limit cross to what addressed in

direct? Maybe you can bring it up in your case in chief?

        {¶ 29} “THE DEFENSE: OK, well—Your Honor, you’re saying that I can’t ask her any

other questions? I’m stuck with the answers that she gave during direct?

        {¶ 30} “THE COURT: Well, that is the rule isn’t it?

        {¶ 31} “THE DEFENSE: Ah—

        {¶ 32} “THE COURT: Your cross is limited to what was asked in direct. He did not

open the door with regards to a purse. If there’s a purse of significant (sic) to the defense, you

may do that in your case in chief, in this instance I don’t see it.

        {¶ 33} “THE STATE: your Honor, if I may—

        {¶ 34} “THE COURT: Yes, please.

        {¶ 35} “THE STATE: I know that defense counsel is allowed to ask questions to

impeach the witness. I guess at this point based on similar questions that were asked, I

would—

        {¶ 36} “THE COURT: Is that an impeachment, Miss Vernekar?

        {¶ 37} “THE DEFENSE: Ah—Well Your Honor, I’m just trying to get the whole story.

I think that the story she gave was limited to the questions that she was asked on direct.

        {¶ 38} “THE COURT: Alright.

        {¶ 39} “THE DEFENSE: So, I can’t impeach her because she wasn’t asked the
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question on direct.

         {¶ 40} “THE COURT: I will give you some latitude with regards to that. Let’s just try

to keep a focus, OK?

         {¶ 41} “Q. Let me ask my question in a different way, did you ever throw Miss Cash’s

purse?

         {¶ 42} “A. No, I didn’t.

         {¶ 43} “Q. Did you ever see Mr. Hunt with a flashlight trying to find Miss Cash’s keys

so that she could leave?

         {¶ 44} “A. No, I didn’t.

         {¶ 45} “Q. So, that didn’t happen according to you?

         {¶ 46} “A. Nope.”

         {¶ 47} In limiting defense counsel’s cross-examination to matters that were raised on

direct examination, the trial court may have confused Fed.Evid.R. 611(B), which includes that

limitation, with its Ohio counterpart, Ohio Evid.R. 611(B), which has no such requirement.

Both rules permit cross-examination on matters affecting credibility. In that regard, the state

suggested that defense counsel might be asking questions about whether Robinson ever threw

defendant’s purse, causing the contents including her car keys to spill, in order to impeach

Robinson. At that point the trial court reversed its own ruling and allowed defense counsel

some leeway in asking about the purse. Defense counsel then asked whether Robinson threw

defendant’s purse and whether Robinson ever saw Hunt with a flashlight looking for the

contents of defendant’s purse. While the trial court’s initial sua sponte ruling may have been

error, the court clearly corrected itself and allowed defense counsel to ask about the purse. No

abuse of discretion has been demonstrated.
                                                                                                7

       {¶ 48} Defendant next argues that the trial court erred by questioning one of the state’s

witnesses, Officer Jennifer Stack. That exchange was as follows:

       {¶ 49} “THE COURT: I have a question, through the process of your brief

investigation, did you have an opportunity to learn who if anyone had been—who was attacked

and who was the attacker?

       {¶ 50} “OFFICER STACK: Yes, when I went to the hospital. I actually went to

Grandview? Good Sam after I left Silven and spoke with the victim at the hospital.

       {¶ 51} “THE COURT: And is that person who is the alleged perpetrator in the

courtroom today?

       {¶ 52} “OFFICER STACK: I never—

       {¶ 53} “THE COURT: You wouldn’t know. Thank you.

       {¶ 54} “OFFICER STACK: Right, I never had any contact with her that night.

       {¶ 55} “THE COURT: Thank you.”

       {¶ 56} Evid.R. 614 provides:

       {¶ 57} “(A) Calling by court. The court may, on its own motion or at the suggestion of

a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

       {¶ 58} “(B) Interrogation by court.       The court may interrogate witnesses, in an

impartial manner, whether called by itself or by a party.

       {¶ 59} “(C) Objections. Objections to the calling of witnesses by the court or to

interrogation by it may be made at the time or at the next available opportunity when the jury is

not present.”

       {¶ 60} At the outset, we note that defendant did not object to the trial court’s

questioning of Officer Stack. Therefore, defendant has waived all but plain error. Plain error
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does not exist unless it can be said that but for the error, the outcome of the trial clearly would

have been different. State v. Long (1978), 53 Ohio St.2d 91.

       {¶ 61} The trial court has the authority to question witnesses called by the parties.

Evid.R. 614(B). The defense in this case was that defendant hit Robinson in self-defense after

Robinson attacked defendant.            Defense counsel had previously inquired during

cross-examination of Robinson whether she had hit defendant. The court’s questioning of

Officer Stack was simply designed to determine who the initial aggressor had been in the

physical altercation between defendant and Robinson, an important factor in a self-defense

claim. The court’s question was relevant and proper. No error, much less plain error, has

been demonstrated.

       {¶ 62} Finally, defendant argues that certain statements the trial court made suggest

that the court applied incorrect legal standards.       For instance, in overruling defendant’s

Crim.R. 29 motion for acquittal at the close of the state’s case, the trial court stated: “I’m going

to deny your motion. I think that it’s the court’s opinion that there was sufficient evidence to

suggest that Miss Robinson was in fact hit. I acknowledge that it was only her word. She was

credible and therefore I find that this crime did occur.” Based upon that statement, defendant

argues that the trial court improperly used determinations that are reserved for the trier of facts

concerning the credibility of the witnesses as a basis to overrule defendant’s Crim.R. 29

motion.

       {¶ 63} A Crim.R. 29 motion challenges the legal sufficiency of the evidence. A

sufficiency-of-the-evidence argument challenges whether the state has presented adequate

evidence on each element of the offense to allow the case to go to the jury or sustain the verdict

as a matter of law. State v. Thompkins (1997), 78 Ohio St.3d 380. When considering a
                                                                                                      9

Crim.R. 29 motion for acquittal, the trial court must construe the evidence in a light most

favorable to the state and determine whether reasonable minds could reach different

conclusions on whether the evidence proves each element of the offense charged beyond a

reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261. The motion will be granted

when reasonable minds could only conclude that the evidence fails to prove all the elements of

the offense. State v. Miley (1996), 114 Ohio App.3d 738.

        {¶ 64} The trial court’s statement in its entirety demonstrates that in overruling

defendant’s Crim.R. 29 motion for acquittal the court relied upon its conclusion that the state

presented sufficient evidence to prove that defendant assaulted Robinson. Furthermore, as the

trier of facts in this case, it was up to the trial court to determine the credibility of the witnesses.

The trial court did not apply an incorrect legal standard.

        {¶ 65} Defendant additionally argues that the trial court applied an incorrect burden of

proof when at the end of the trial the court stated: “I find for the prosecution and find probable

assault.” The court’s entire statement was as follows:

        {¶ 66} “Therefore, I find for the prosecution and find probable assault. Excuse me

before I say that, I don’t, it’s my opinion that there was insufficient evidence to suggest that

there was a self-defense; all within the testimony of Miss Cash. Therefore, I find that assault

was committed. I find for Miss Robinson.”

        {¶ 67} Subsequently, the trial court stated: “I find you guilty of assault,” and “I find you

guilty and your fine will be a hundred dollars plus court costs.” The court’s journal entry

reflects that the court found defendant guilty following trial. Although the court does not

specifically state that it found defendant guilty “beyond a reasonable doubt,” we will not

presume from a silent record that the court applied an incorrect legal standard. To the
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contrary, we must presume the regularity and validity of the trial court’s proceedings, and that it

applied the correct legal standard, in the absence of evidence to the contrary. State v. Carroll

(Sept. 23, 1980), Montgomery App. No. 6532. No error on the part of the trial court has been

demonstrated.

         {¶ 68} Because defendant has failed to demonstrate that multiple errors were

committed by the trial court, the cumulative-error doctrine is not applicable in this case. State

v. Whitfield, Montgomery App. No. 22432, 2009-Ohio-293.

         {¶ 69} Defendant’s first assignment of error is overruled.

         SECOND ASSIGNMENT OF ERROR

         {¶ 70} “The trial court erred by continuing in effect the protection order issued in this

case.”

         {¶ 71} On July 28, 2009, the trial court issued a criminal protection order pursuant to

R.C. 2903.213, prohibiting defendant from having any contact with Robinson, as a condition of

defendant’s pretrial release. The court reaffirmed that order on August 7, 2009, when it

imposed defendant’s sentence. Defendant argues that the trial court lacked authority to

continue that protection order as part of her sentence, because R.C. 2903.213(E)(2) states that

such protection orders terminate as a matter of law upon disposition of the criminal case.

         {¶ 72} The state concedes in its appellate brief that pursuant to R.C. 2903.213(E)(2) the

trial court lacked authority to continue the protection order as part of defendant’s sentence, and

that the protection order issued in this case terminated as a matter of law when the trial court

found defendant guilty of assault and sentenced her accordingly. We agree.

         {¶ 73} Defendant’s second assignment of error is sustained.

         {¶ 74} Pursuant to R.C. 2953.08(G)(2), that portion of the trial court’s sentence
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continuing the protection order issued pursuant to R.C. 2903.213 is reversed and vacated. As

so modified, the trial court’s judgment and sentence is otherwise affirmed.

                                                                    Judgment affirmed in part

                                                                          and reversed in part.

       HALL, J., concurs.

       FAIN, J., concurs separately.

                                  __________________

       FAIN, J., concurring.

       {¶ 75} I concur fully in the judgment and the reasoning of the court. I write separately

merely to renew my objection to the “more than an error of law” formulation for abuse of

discretion. See State v. Beechler, Clark App. No. 09-CA-54, 2010-Ohio-1900, ¶ 60-70.
