      [Cite as State v. Carson, 2019-Ohio-4550.]

                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




STATE OF OHIO,                                     :   APPEAL NO. C-180336
                                                       TRIAL NO. 17CRB-24874
      Plaintiff-Appellee,                          :

      vs.                                          :     O P I N I O N.

STEVEN CARSON,                                     :

      Defendant-Appellant.                         :



Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 6, 2019




Paula Boggs Muething, City Solicitor, Natalie Harris, City Prosecutor, and Jennifer
Bishop, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




CROUSE, Judge.

       {¶1}   Defendant-appellant Steven Carson was accused of threatening and

pointing a handgun at Quincy White, a contractor who had come to Carson’s home to

install carpet in his basement. Carson was convicted of aggravated menacing in

violation of R.C. 2903.21. In two assignments of error, Carson argues that (1) his

conviction was contrary to law because it was against the manifest weight of the

evidence, and (2) the trial court erred in its rulings on two evidentiary matters—

when it admitted testimony regarding Carson’s mental health, and when it sustained

an objection to testimony from Quincy White which demonstrated his motive to lie.

For the following reasons, we affirm the judgment of the trial court.

                                Factual Background


       {¶2}   Quincy White was a carpet installer for a company that contracted with

Home Depot. On September 6, 2017, White arrived to install new carpet in Steven

Carson’s basement, which had recently flooded. White testified that the basement

was so cluttered that he couldn’t fit his tool bag through the clutter and had to take

his tools in one by one. Carson testified that the clutter consisted of many different

items, some of which were very valuable, including various pieces of memorabilia

and signed photographs. Many of the items were piled up and stacked on top of one

another in order to clear out the rooms where the carpet was being installed.

       {¶3}   White installed carpet throughout the morning and then took a break

for lunch. He contacted his cousin, Delma Hill, and told him to meet him outside of

Carson’s home so they could go to lunch together. Hill parked his car in front of

Carson’s house.    White walked out of the basement door and sat in the front



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passenger seat of Hill’s car. As White and Hill were sitting in the car talking, Hill

grabbed a white Kroger bag from the back seat, got out of the car, and put the bag in

the trunk.     White testified at trial that the bag may have had “gym clothes or

something” in it. Just as Hill sat back down in the car, Carson walked up and asked

White, “What of mine did you steal and put in his trunk?” White told Carson he did

not steal anything, and that Carson could look in the trunk if he wanted to.

According to White, Carson just walked back into his house. White testified that he

immediately called his supervisors and told them he had been accused of stealing.

He told Hill he could not have lunch with him and Hill drove away. White then went

to the basement to retrieve his tools, but the basement door was locked.

        {¶4}    White testified that while he was still on the phone with his

supervisors, Carson came out of the back door, located directly above the basement

door.    Carson pulled out a gun and said, “Get the fuck off my property,

motherfucker.” White stated that the gun was a chrome revolver, and Carson pointed

the barrel at him. White informed Carson that he was leaving, and turned and

walked away, stopping briefly to grab some tools he had left in the driveway. White

testified that was on the phone with his supervisors the entire time. White testified

that as he was loading his tools in his van, he turned around and saw Carson at the

bottom of the driveway, still pointing the gun at him. White got into his van and left

while one of his supervisors called the police. White stated that he thought Carson

was going to shoot him.

        {¶5}    Officer Kristie Johnson testified that she and five other officers

responded to Carson’s house for a call about a gun. Carson refused to step outside,

and so Johnson talked to Carson while he stood in his doorway. Johnson’s body




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camera captured a portion of the conversation, and the footage was admitted as

evidence at trial.

         {¶6}   On the video, Carson told Johnson that White was “scoping out his

shit” earlier in the day. Then, he saw White and “another guy” on the street standing

behind a car with the trunk up, and he witnessed one of them reach into his clothes,

pull something out, and put it in the trunk. Carson confronted them and asked if

that was something of his they put in the trunk. He said White started cussing and

yelling at Carson, and Hill took off in his car. Carson came back in the house and

locked the basement door so White couldn’t come back in. He told White to “get his

shit and get out.” When Johnson asked Carson if he owned any firearms, he refused

to answer, stating, “I’m not going to answer that question.”

         {¶7}   Johnson informed him that it was aggravated menacing if he pointed a

gun at White. Johnson twice told Carson that White said that Carson pointed a gun

at him. Carson never denied pointing a gun at White, rather he told Johnson that he

was protecting his property, and so he does not understand how he is in any trouble.

         {¶8}   Johnson arrested Carson on the scene for aggravated menacing.

Johnson testified that the basis for her arrest was not only White’s statement, but

that White’s supervisors told her they had heard the “commotion” over the phone,

and White told them that Carson was pointing a gun at him as it was happening. The

police did not search the home or recover a firearm.

         {¶9}   Although not captured on the body camera, Johnson testified that

Carson told her that everybody steals from him.         He told her that the water

restoration company stole from him, and that the moving company burglarized his

house.




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       {¶10} Carson testified in his defense, as did his father and his wife. John

Carson, Carson’s father, stated that while White was working on the carpet, he asked

Carson if there was anything in the basement he wanted to get rid of, and Carson

said no. Later, White asked Carson a second time if he was willing to sell anything in

the basement, and Carson again declined. John told Carson to keep an eye on his

stuff, because he thought White was interested in it.

       {¶11} Jennifer Carson, Carson’s wife, testified that when she came home that

day, Carson told her the carpet guy had stolen something. She helped him go

through everything to see what was missing. She stated that Carson did not own a

gun, and she had never seen him with a gun. Jennifer stated that she had never seen

Carson be violent.

       {¶12} During cross-examination of both Jennifer and John, the prosecution

elicited testimony, over defense objection, that Carson had been diagnosed with

depression. Carson testified that he was diagnosed with cancer in 2010 and did not

have a good prognosis, so he went into a severe depression. He testified that he now

sees a doctor every six months and takes an antidepressant. He claimed that after he

beat the cancer, the depression had become much less than it had been and the

antidepressant doses had gone down.

       {¶13} Carson testified that White asked him three to four times if he was

willing to sell anything, and Carson told him no each time. After White had been

working for a few hours, Carson saw White across the street with “another guy”

standing behind a car with the trunk open. He saw the “other guy” take something

out of his jacket, slide it into the trunk, and then close the trunk.




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       {¶14} Carson stated that when he confronted them, they both got combative.

The “other guy” got into the car and pulled away quickly while White was yelling and

screaming. Carson testified that White never offered to let him look in the trunk.

Carson went inside and locked the basement door. White started beating on the

basement door and yelling. Carson went out the back door and told him to get out.

He stated that he did not have a gun, that he did not threaten White in any way, and

that he did not follow White out to the driveway.

       {¶15} Carson testified that he did not call the police. Instead, he called

Home Depot and the flooring company, and they assured him they would cooperate

in finding the stolen item, and would send someone else to finish installing the

carpet. He stated that the police did not arrive until about two to three hours after

White left, and they never asked to search his house. Sometime after the fact, he

discovered that he was missing a signed Michael Jackson photograph. He testified

that he could tell White or the “other guy” placed an 8 x 10 frame picture in the

trunk, but he did not know which item had been stolen because he had over 40

signed photographs in his basement.

                             First Assignment of Error


       {¶16} Carson’s first assignment of error is that his conviction for aggravated

menacing was contrary to law because it was against the manifest weight of the

evidence. When determining whether a conviction is against the manifest weight of

the evidence, an appellate court

     weighs the evidence and all reasonable inferences, considers the

     credibility of the witnesses, and determines whether in resolving conflicts




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     in the evidence, the jury clearly lost its way and created such a manifest

     miscarriage of justice that the conviction must be reversed.

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Reversal

and the grant of a new trial should only be done in “exceptional cases in which the

evidence weighs heavily against the conviction.” Id. The trier of fact is in the best

position to judge the credibility of the witnesses and the weight to be given to the

evidence presented. State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967).

       {¶17} The aggravated-menacing statute, R.C. 2903.21(A), provides in

relevant part that “[n]o person shall knowingly cause another to believe that the

offender will cause serious physical harm to the person or property of the other

person.” Aggravated menacing is a first-degree misdemeanor. R.C. 2903.21(B).

Serious physical harm includes any physical harm that carries a substantial risk of

death, involves substantial or permanent incapacity, or serious or permanent

disfigurement. R.C. 2901.01(A)(5).

       {¶18} Testimony by the victim that the defendant pointed a gun at him, and

that the victim was afraid the defendant would shoot him, is sufficient to sustain a

conviction for aggravated menacing. See In re Shad, 1st Dist. Hamilton Nos. C-

080965 and C-081174, 2009-Ohio-3611, ¶ 17.

       {¶19} There is no doubt that there was conflicting evidence in this case and

issues with regard to the credibility of the witnesses. Carson claims the verdict is

against the manifest weight of the evidence because White was not believable.

Carson claims that White fabricated his story about Carson having a gun in order to

avoid a theft accusation, which would have cost him his job.          Carson and his

witnesses all testified that he did not own a gun. White testified that Carson not only




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had a gun, but that he pointed it at him. The body camera video reveals, however,

that when Johnson informed Carson of White’s allegation, Carson never stated that

he did not own a gun. In fact, when Johnson specifically asked Carson if he owned a

gun, Carson refused to answer. In addition, White’s supervisors were on the other

end of the call at the time of the incident and are the ones who actually called 911.

       {¶20} The jury was in the better position to weigh the credibility of the

witnesses, and it did not err in believing White’s version of the events over Carson’s.

This is not one of those “exceptional cases in which the evidence weighs heavily

against the conviction” such that reversal is required, and so the conviction was not

against the manifest weight of the evidence. Carson’s first assignment of error is

overruled.

                             Second Assignment of Error

       {¶21} In his second assignment of error, Carson contends that the trial court

erred with regard to two evidentiary rulings: (1) the trial court erred in allowing

testimony regarding his mental-health diagnosis because the testimony was

irrelevant, unfairly prejudicial, and amounted to inadmissible character evidence,

and (2) the trial court erred in precluding certain cross-examination of White about

his motive to lie.

       {¶22} “A trial court has broad discretion in the admission of evidence, and

unless it has clearly abused its discretion and the defendant has been materially

prejudiced thereby, an appellate court should not disturb the decision.” State v.

Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 61. “An abuse of

discretion connotes more than an error of law or judgment; it implies that the court's




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attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶23} During cross-examination, the prosecutor asked both John and

Jennifer whether Carson had any mental-health “problems” or “diagnoses.” Defense

counsel objected to the questions, arguing that the evidence was not relevant and

was prejudicial. The judge allowed the witnesses to testify about Carson’s depression

diagnosis.

       {¶24} On appeal, Carson argues that the evidence was not relevant, was

unduly prejudicial, misled the jury, and was improper character evidence. Evidence

is relevant if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” Evid.R. 401.

       {¶25} The state was clearly trying to communicate to the jury that Carson’s

mental illness made him erratic and paranoid about people stealing from him. In

this way, the state was attempting to attack Carson’s credibility and rebut his defense

that White made up the story about the gun because White stole something from

Carson and would get fired if he were found out. The state brought out Carson’s

mental-health diagnosis of depression and inferred that it made him paranoid and

less credible.

       {¶26} The problem is that the state did not actually produce any sort of

evidence to support its suggestion that Carson’s actions on the day in question were

linked to his depression.    While questions about a witness’s mental health are

sometimes relevant to credibility, courts typically require expert testimony or

medical records to connect how a witness’s mental-health diagnosis might affect his




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credibility. See, e.g., State v. Browning, 98 Ohio App. 8, 11, 128 N.E.2d 173 (1st

Dist.1954) (expert psychiatric testimony of the witness’s “habits of sobriety,

condition of sobriety at the time of the alleged robbery, his mental health,

associations in life, similar accusations, and general habits in general could be quite

pertinent as reflecting on his credibility and the probabilities of the conflicting

versions of the parties.”); State v. Hadley, 3d Dist. Marion No. 9-11-30, 2013-Ohio-

1942, ¶ 70 (because defense counsel did not intend to present any credible evidence,

such as medical records or expert testimony, as to how the witness’s mental illness or

medications he was taking might have affected him on the day in question, the court

properly sustained objections to counsel’s attempts to cross-examine the witness

about his mental illness).

       {¶27} There is no dispute that Carson suffered from depression and took

medication as a result. However, unlike in Browning, the testimony in Carson’s case

came from lay persons, and nobody testified as to whether his depression even

affected his actions that day, let alone how.

       {¶28} In overruling the relevance objection, the court merely said, “I don’t

know anything about it, so I’ll allow the question to proceed.” This reasoning is

arbitrary and unreasonable. Prior to admitting the testimony, the court should have

determined what Carson’s mental illness was, and whether it was relevant to the

case. If the court was not sure how it would rule until it heard more testimony, then

it should have allowed the state to proffer evidence outside the presence of the jury.

The court’s explanation for overruling the objection was unreasonable. The fact that




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Carson suffered from depression did not have any tendency to make a fact of

consequence more or less probable.1

        {¶29} Nevertheless, that is not the end of our inquiry. Where a defendant

has not suffered any material prejudice as a result of the admission of the evidence,

the trial court’s decision will not be reversed on appeal, even if the court abused its

discretion in admitting the evidence. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-

1594, 63 N.E.3d 93, at ¶ 61; see State v. Williams, 2016-Ohio-5827, 71 N.E.3d 592, ¶

33 (1st Dist.) (the trial court abused its discretion in allowing the state to impeach its

own witness, but the defendant did not suffer material prejudice as a result). In

determining whether Carson suffered material prejudice as a result of the trial

court’s error, we must consider both the impact that the offending evidence had on

the verdict and the strength of the remaining evidence. State v. Cornwell, 2015-

Ohio-4617, 48 N.E.3d 169, ¶ 35 (9th Dist.), citing State v. Morris, 141 Ohio St.3d 399,

2014-Ohio-5052, 24 N.E.3d 1153, ¶ 25.

        {¶30} Although the trial court abused its discretion in admitting the

testimony about Carson’s mental health, Carson was not materially prejudiced as a

result. First, defense counsel was able to rehabilitate Carson’s credibility during his

direct examination of Carson by eliciting testimony that his mental-health diagnosis

was for depression as a result of being diagnosed with cancer, and that his

depression was much less severe than it used to be since he had survived the cancer.

Counsel also elicited testimony from Carson’s wife that his depression has never

manifested with him being violent.



1 Since the trial court abused its discretion in admitting the mental-health testimony, we do not
reach the questions of whether the testimony was unfairly prejudicial in violation of Evid.R. 403,
or was improper character evidence barred by Evid.R. 404.



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       {¶31} Second, although the state’s questions regarding Carson’s mental

health were improper for the reasons discussed above, the state’s case did not hinge

on the testimony about Carson’s mental health. The state did not bring up Carson’s

mental health during its initial closing argument. The state only talked about it

briefly during rebuttal after defense counsel discussed it during his closing

argument.    During rebuttal, the state argued that Carson’s bizarre and erratic

behavior that day could be explained by his mental-health diagnosis.

       {¶32} Regardless, the jury was able to view Johnson’s body camera video and

judge for itself if it believed Carson’s behavior was bizarre and erratic, at least with

regard to his conversation with Johnson. While Carson’s credibility was a central

issue in this case, we hold that he has not shown that letting the jury hear that he

suffered from depression that was controlled with medication impacted the verdict.

Since Carson was not materially prejudiced as a result of the admission of testimony

about his mental health, we do not disturb the court’s judgment.

       {¶33} In his second issue presented for review, Carson argues that White’s

testimony that he would lose his job if accused of theft was admissible to prove that

White had a motive to lie.

       {¶34} During his cross-examination of White, defense counsel asked if White

would be fired if he was convicted of theft.         White answered, “Yes,” but the

prosecution objected. The court sustained the objection and directed the jury to

disregard the statement.

       {¶35} Contrary to Carson’s argument, White did not testify that he would

lose his job if he was accused of theft; rather he testified that he would lose his job if

convicted of theft. It is not clear on what basis the state objected or on what basis the




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trial court struck the testimony. Nevertheless, the state correctly points out in its

brief that the question called for speculation. The trial court did not abuse its

discretion by excluding a question that called for White to speculate as to what would

happen to him if he were convicted of theft.

       {¶36} Also, even if not speculative, Carson was not materially prejudiced by

exclusion of the testimony. Carson elicited testimony throughout the trial to support

his theory that White had stolen from him, and therefore had a motive to lie and

make up the story about the gun to cover himself. Carson’s second assignment of

error is overruled.

                                       Conclusion


       {¶37} Carson’s conviction was not against the manifest weight of the

evidence.      Although the trial court abused its discretion in admitting testimony

regarding Carson’s mental health, Carson was not materially prejudiced as a result.

Also, the trial court did not abuse its discretion in excluding White’s testimony as to

whether he would be fired if convicted of theft. For the foregoing reasons, both

assignments of error are overruled, and the judgment of the trial court is affirmed.

                                                                      Judgment affirmed.



ZAYAS, P.J., and WINKLER, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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