        [Cite as State v. Femuels, 2020-Ohio-2926.]

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




STATE OF OHIO,                                   :    APPEAL NO. C-190486
                                                      TRIAL NO. C-17CRB-18183
     Plaintiff-Appellee,                         :
                                                         O P I N I O N.
  vs.                                            :

BRANDLEY FEMUELS,                                :

     Defendant-Appellant.                        :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 13, 2020



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Ben Swift, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.

       {¶1}    Defendant-appellant Brandley Femuels appeals the trial court’s

judgment convicting him of domestic violence in violation of R.C. 2919.25(A), raising

five assignments of error for our review. Finding his assignments of error to be

without merit, we affirm the trial court’s judgment.

                                 Factual Background


       {¶2}   On July 4, 2017, Femuels and his then-girlfriend Marlo Woods were

involved in a physical altercation at Assurance Health, where they were both

employed. Following the incident, Femuels was charged with domestic violence in

violation of R.C. 2919.25(A).

       {¶3}   At a bench trial, Woods testified that she and Femuels lived together

from February 3, 2017, until the day of the incident. They had previously lived

together from February 2016 until May 2016, and they had a son together. Woods

and Femuels drove to work together on July 4. Woods, a charge nurse, assisted

Femuels, a technician, with his patients throughout the morning. When Woods

joined Femuels in the breakroom for lunch, she overheard his end of a telephone

conversation. After hearing Femuels state, “I’m done with her” and “I’m coming to

you,” Woods told Femuels that their relationship was over and asked him to return

the keys to her house and car. Woods testified that Femuels then grabbed her

around the neck and began to choke her, stating, “Fuck these cameras. Fuck this job.

I’m going to kill you, bitch. You’re not going to take away my lifestyle.”

       {¶4}   According to Woods, Femuels threw her onto the floor and continued

to choke her. Woods could not breathe, and she felt as if her throat was being



                                               2
                          OHIO FIRST DISTRICT COURT OF APPEALS



crushed. Woods and Femuels were the only persons present when the altercation

began, but several coworkers came into the breakroom as Woods was trying to get off

the ground. Woods testified that her coworkers stood between her and Femuels, and

that Femuels continued to lunge at her several times. Woods suffered pain to her

ribs and her right eye following Femuels’s attack.

          {¶5}    Deborah Hall, a coworker of Femuels and Woods, testified that she

entered the breakroom after hearing someone screaming. She saw Femuels standing

over Woods, who was in the process of getting up off the floor. Woods had red

markings on her neck and arm and appeared frightened.                        Hall attempted to

deescalate the situation by standing between the two, but they continued to yell at

each other.       She twice heard Femuels threaten to kill Woods, once in the breakroom

and then again when she accompanied the parties outside for Femuels to get his

belongings out of Woods’s car.

          {¶6}    Curtis Hall1 also entered the breakroom after seeing several other

employees run in that direction. He saw Woods on one knee, trying to stand up, with

Femuels standing over her. Curtis noticed that Woods had red markings on her wrist

and neck. He testified that Woods wanted Femuels to return her keys, but that

Femuels would not comply. Curtis also went outside with the parties while Femuels

obtained his belongings from Woods’s car, and while outside he heard Femuels tell

Woods that “I will kill you.”

          {¶7}    Femuels testified in his own defense. He explained that he and Woods

argued the night before the incident after he became upset that Woods sent a text

message to his children, but that they drove to work together the following day.



1   We refer to Curtis Hall as Curtis because another witness has the same surname.


                                                      3
                     OHIO FIRST DISTRICT COURT OF APPEALS



Femuels testified that Woods overheard him at work on a telephone call with a

customer of a lawn care business that he owns, and that Woods subsequently

engaged in an aggressive conversation with him and told him to find a different ride

home. Femuels entered the breakroom to retrieve the keys to Woods’s car so that he

could get his belongings out of the car, and Woods followed him. Femuels testified

that Woods had taken the keys, and when he attempted to get them back, Woods

“went down to the ground” as he tried to snatch them from her hand. Femuels

explained that while Woods was on the ground, he kneeled over her and straddled

her. He denied hitting Woods, choking her, or threatening to kill her.

       {¶8}   The trial court found Femuels guilty. It sentenced him to 180 days in

jail, with 150 of those days suspended. It additionally imposed a fine, court costs,

and an 18-month period of community control.

                           Questioning by the Trial Court


       {¶9}   In his first assignment of error, Femuels argues that the trial court

abused its discretion by repeatedly interrupting the trial to ask the witnesses biased

questions.

       {¶10} Pursuant to Evid.R. 614(B), a trial court may interrogate witnesses in

an impartial manner.     State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, 75

N.E.3d 1185, ¶ 70; State v. Greenway, 1st Dist. Hamilton No. C-160511, 2017-Ohio-

7729, ¶ 6. A trial court’s questioning of a witness is improper where the questions

demonstrate bias on the part of the trial court. Greenway at ¶ 12. A biased question

is one that exhibits “a hostile feeling or spirit of ill will or undue friendship or

favoritism toward one of the litigants or his attorney, with the formation of a fixed

anticipatory judgment on the part of the judge, as contradistinguished from an open



                                             4
                     OHIO FIRST DISTRICT COURT OF APPEALS



state of mind which will be governed by the law and the facts.” Cepec at ¶ 73, quoting

State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph

four of the syllabus. In determining whether a trial court has exhibited bias, “[t]he

threshold inquiry is whether, with reference to a range of acceptable, though not

necessarily model, judicial behavior, the [trial] court’s conduct falls demonstrably

outside this range so as to constitute hostility or bias.” Id. at ¶ 74, quoting McMillan

v. Castro, 405 F.3d 405, 410 (6th Cir.2005).

       {¶11} We typically review a trial court’s interrogation of a witness for an

abuse of discretion. Greenway at ¶ 6. An abuse of discretion “connotes more than

an error of law or of judgment; it implies an unreasonable, arbitrary or

unconscionable attitude on the part of the court.” Pembaur v. Leis, 1 Ohio St.3d 89,

91, 437 N.E.2d 1199 (1982). But where no objection is raised to the trial court’s

interrogation of a witness, we review for plain error. Cepec at ¶ 84; State v. Payne,

1st Dist. Hamilton No. C-060437, 2007-Ohio-3310, ¶ 13. A plain error is one that

affects the outcome of the trial. State v. Rosemond, 1st Dist. Hamilton No. C-180221,

2019-Ohio-5356, ¶ 13.

       {¶12} Femuels’s assertion that the trial court interjected on multiple

occasions to ask questions of the witnesses is accurate. In all but two of these

instances, Femuels failed to object to the trial court’s questions. Following our

review of the record, we find no evidence of bias on the part of the trial court.

Rather, the questions were asked in a neutral manner for the purposes of

ascertaining what had transpired between Femuels and Woods in the breakroom and

understanding the parties’ relationship. Woods testified to one version of events,

and Femuels to another. The court’s questions were asked to assist it in discovering




                                               5
                     OHIO FIRST DISTRICT COURT OF APPEALS



what actually transpired between the parties. Further, we are mindful that the

questions were asked in the context of a bench trial, where it is presumed that the

trial court only considered relevant evidence. See State v. Pettus, 1st Dist. Hamilton

No. C-170712, 2019-Ohio-2023, ¶ 44.

       {¶13} The questions asked by the trial court did not indicate that it was

partial to either party. “In absence of 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.1982).

       {¶14} Finding no error or abuse of discretion in the trial court’s questioning

of the witnesses, we overrule the first assignment of error.

                          Ineffective Assistance of Counsel


       {¶15} In his second assignment of error, Femuels argues that his trial

counsel rendered ineffective assistance.

       {¶16} Counsel will not be considered ineffective unless her or his

performance was deficient and caused actual prejudice to the defendant. Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance

will only be deemed deficient if it fell below an objective standard of reasonableness.

Strickland at 688; Bradley at 142.     A defendant is only prejudiced by counsel’s

performance if there is a reasonable probability that the outcome of the proceeding

would have been different but for the deficient performance.             Strickland at



                                               6
                      OHIO FIRST DISTRICT COURT OF APPEALS



694; Bradley at 142. A reviewing court must indulge a presumption that counsel’s

behavior fell within the acceptable range of reasonable professional assistance.

Strickland at 689; Bradley at 142.

       {¶17} Femuels first argues that counsel was ineffective for failing to object to

the bulk of the questions that the trial court asked. Having determined that the trial

court’s questions were asked in an unbiased and impartial manner in an effort to

ascertain what had transpired, we cannot find that counsel performed deficiently by

failing to object to these questions. And even if Femuels had cleared the first hurdle

of establishing a deficient performance, we can find no prejudice where the questions

were asked in a bench trial, there was no jury to have been influenced by the court’s

questions, and it is presumed that the court only considered relevant evidence. See

Pettus, 1st Dist. Hamilton No. C-170712, 2019-Ohio-2023, at ¶ 44.

       {¶18} Femuels further argues that counsel was ineffective for failing to object

to the trial court’s limitation of his testimony concerning comments that Woods

made in the breakroom.       Femuels had testified regarding the conversation that

Woods overheard prior to their argument, and he attempted to testify as to

comments that Woods made in reaction.            The trial court prohibited him from

repeating Woods’s specific comments, but allowed him to testify that Woods was

aggressive with him during their conversation. Femuels contends that counsel was

ineffective for failing to object to the trial court’s limitation of his testimony because

the comments made by Woods were admissible as excited utterances pursuant to

Evid.R. 803(2). He also argues that the trial court’s limitation of his testimony

violated his right to confrontation.




                                                7
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19} We need not determine whether Woods’s comments would have been

admissible as excited utterances, because even if counsel had been deficient in failing

to object to the trial court’s limitation of Femuels’s testimony, Femuels suffered no

resulting prejudice. The comments that Femuels would have testified to did not

concern the actual domestic-violence incident, but rather concerned Woods’s

mindset prior to the incident. And the court heard other evidence regarding Woods’s

mindset when Femuels testified that she was aggressive with him after overhearing

his telephone conversation. We cannot say that the outcome of the proceedings

would have been different had the trial court allowed Femuels to testify to Woods’s

comments. With respect to Femuels’s assertion that the limitation of his testimony

violated his right to confrontation, he has failed to explain how such a violation

occurred, and we find his contention to be without merit.

       {¶20} Femuels additionally argues that counsel was ineffective for failing to

properly impeach Woods with evidence of a prior inconsistent statement under

Evid.R. 613(B).   In support of his argument, Femuels cites to a portion of the

transcript in which he attempted to testify about a text message that Woods sent his

children, from his phone, on the night before the domestic-violence incident. It

appears that counsel wanted to introduce the content of the text message to counter

Woods’s previous testimony that Femuels had not been home on the night preceding

the domestic-violence incident. The trial court did not allow Femuels to testify as to

the content of the text message. We interpret Femuels’s argument to be that counsel

was ineffective for failing to use the text message to impeach Woods during her own

testimony. But even if counsel could be considered ineffective for failing to impeach

Woods, Femuels suffered no prejudice.




                                              8
                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶21} The court heard extensive testimony about the injuries that Woods

suffered, and it also heard testimony from two neutral witnesses that Femuels

threatened to kill Woods. While a revelation that Woods had lied about Femuels’s

whereabouts the evening before the offense could have some bearing on her

credibility, we cannot say that the outcome of the proceedings would have been

different but for the fact that counsel failed to properly impeach Woods.

       {¶22} The second assignment of error is overruled.

                         Limitation of Femuels’s Testimony


       {¶23} In his third assignment of error, Femuels argues that the trial court

erred by impermissibly limiting his testimony. In support of his argument, he cites

portions of the transcript in which the trial court prohibited him from testifying

about the text message that Woods sent to his children and prohibited him from

testifying about the comments that Woods made in the breakroom after overhearing

Femuels’s telephone conversation. We review the trial court’s exclusion of evidence

for an abuse of discretion. State v. Jones, 1st Dist. Hamilton No. C-170647, 2020-

Ohio-281, ¶ 30; State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph

two of the syllabus.

       {¶24} Following our review of the record, we find that the trial court abused

its discretion in limiting Femuels’s testimony on these topics.       The statements

attributable to Woods that Femuels sought to introduce were not hearsay, as they

were not being offered for their truth, but rather to establish Woods’s potential bias

and motive to lie. See State v. Devaughn, 1st Dist. Hamilton No. C-180586, 2020-

Ohio-651, ¶ 40; Evid.R. 801(C).




                                              9
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶25} Having found that the trial court abused its discretion, we must

determine whether the trial court’s limitation of Femuels’s testimony was harmless

error pursuant to Crim.R. 52(A). Jones at ¶ 37. Crim.R. 52(A) provides that a

harmless error—which is an error that does not affect the defendant’s substantial

rights—shall be disregarded.

       {¶26} Here, we find that any error resulting from the limitation of Femuels’s

testimony was harmless. While Femuels was prohibited from testifying as to the

content of the text message that Woods sent his children, the trial court was aware

that the message was sent and that Woods and Femuels argued over the fact that she

sent it. And with respect to the comments that Woods made in the breakroom after

overhearing Femuels’s telephone conversation, the trial court heard testimony that

Woods was aggressive with Femuels after overhearing the conversation and that

Femuels had been told to find a different ride home. Much of the information that

Femuels sought to convey via his testimony was presented to the court indirectly.

       {¶27} Because the limitation of Femuels’s testimony did not affect a

substantial right and was harmless error, we overrule the third assignment of error.

                            Sufficiency of the Evidence


       {¶28} In his fourth assignment of error, Femuels contends that his

conviction was not supported by sufficient evidence.

       {¶29} In reviewing a challenge to the sufficiency of the evidence, this court
must determine whether, after construing all reasonable inferences in favor of the

state, any reasonable trier of fact could find that the state presented evidence to

prove each of the essential elements of the offense beyond a reasonable doubt. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.



                                             10
                       OHIO FIRST DISTRICT COURT OF APPEALS



          {¶30} Femuels was convicted of domestic violence in violation of R.C.

2919.25(A), which provides that “[n]o person shall knowingly cause or attempt to

cause physical harm to a family or household member.”              Femuels specifically

contends that the state failed to establish that Woods was a “family or household

member.”

          {¶31} R.C. 2919.25(F)(1)(b) provides that a family or household member is

“[t]he natural parent of any child of whom the offender is the other natural parent or

is the putative other natural parent.” Woods’s testimony that Femuels was the father

of her child was sufficient to establish that Woods was a family or household member

pursuant to R.C. 2919.25(F)(1)(b).

          {¶32} As to the other elements, Woods testified that Femuels choked her,

threw her to the floor, and threatened to kill her. She further testified that she felt as

if her throat were being crushed and that she suffered pain to her ribs and right eye

following the attack. Viewing this evidence in the light most favorable to the state, a

reasonable trier of fact could have found that Femuels knowingly caused physical

harm to Woods.

          {¶33} We hold that Femuels’s conviction for domestic violence was

supported by sufficient evidence. The fourth assignment of error is overruled.

                                      Sentencing


          {¶34} In his fifth assignment of error, Femuels argues that the trial court

exhibited bias and sentenced him based on unproven and improper considerations.

We review the imposition of a misdemeanor sentence for an abuse of discretion.

State v. Frazier, 158 Ohio App.3d 407, 2004-Ohio-4506, 815 N.E.2d 1155, ¶ 15 (1st

Dist.).



                                               11
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶35} R.C. 2929.21 sets forth the purposes of misdemeanor sentencing and

applicable sentencing considerations. And R.C. 2929.22 sets forth various factors for

the trial court to consider before imposing a misdemeanor sentence. “Where the

trial court imposes a misdemeanor sentence within the statutory range for the

offense, we presume that the trial court considered the appropriate misdemeanor-

sentencing considerations set forth in R.C. 2929.21 and 2929.22.” State v. Brown,

1st Dist. Hamilton No. C-140509, 2015-Ohio-2960, ¶ 10.

       {¶36} Femuels contends that the trial court erred in allowing Woods to

suggest what penalty should be imposed and in relying on allegations from Woods

that had not been proven at trial when imposing sentencing. These allegations

included an assertion that Woods had not known that Femuels was married until

after they moved in together and that Femuels did not want her to become fat “like

his wife.” The trial court admonished Femuels for his behavior related to these

allegations. Femuels asserts that the trial court’s admonishments and comments,

including the court’s statement that “You act like an animal, you’re going to be caged

like an animal,” demonstrated the court’s bias and judgment on his lifestyle.

       {¶37} Before imposing sentence, the trial court examined the victim-impact

statement and allowed Woods to speak.        This was entirely appropriate, as R.C.

2929.22(D)(1) provides that a sentencing court “shall consider any relevant oral or

written statement made by the victim.” We find that the trial court’s comments at

sentencing did not exhibit bias towards Femuels, but rather were a fair commentary

on the facts proven at trial and the information in the victim-impact statement. The

imposed sentence of 180 days in jail, of which 150 days were suspended, fell within

the available statutory range for Femuels’s conviction. See R.C. 2929.24(A)(1). We




                                             12
                      OHIO FIRST DISTRICT COURT OF APPEALS



therefore conclude that the trial court did not abuse its discretion in imposing

sentence.

       {¶38} The fifth assignment of error is overruled, and the judgment of the

trial court is accordingly 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.




                                                13
