[Cite as State v. Suman, 2010-Ohio-6204.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ATHENS COUNTY


STATE OF OHIO/CITY OF ATHENS,                    :
                                                 :
             Plaintiff-Appellee,                 :   Case No: 10CA11
                                                 :
             v.                                  :
                                                 :   DECISION AND
STEVEN SUMAN,                                    :   JUDGMENT ENTRY
                                                 :
             Defendant-Appellant.                :   File-stamped date: 12-13-10



                                            APPEARANCES:

Claire M. Ball, Athens, Ohio, for the Appellant.

Patrick J. Lang, Athens Law Director, and James K. Stanley, Athens Assistant Law
Director, Athens, Ohio, for the Appellee.


Kline, J.:

{¶1}         Steven Suman appeals his conviction in the Athens County Municipal Court

for violating R.C. 2919.27(A)(1), which prohibits anyone from recklessly violating a

protection order. On appeal, Suman contends that the trial court violated Evid.R. 402

and Evid.R. 403(A) when it allowed a State witness to read from a criminal complaint

against the witness that accused the witness of violating the protection order at

Suman’s behest. Because we find that the criminal complaint is relevant and is not

unfairly prejudicial, and because the witness pleaded guilty to it, we disagree. Suman

next contends that the prosecution introduced a prior inconsistent statement of one of

its own witnesses without the requisite showing of surprise and damage. Because
Athens App. No. 10CA11                                                             2


Suman’s counsel failed to object before the trial court, and because we do not find plain

error, we disagree. Accordingly, we affirm the judgment of the trial court.

                                            I.

{¶2}      Suman worked for Robert DePue who owns a small farm near Athens, Ohio.

Apparently, the relationship between Suman and DePue soured, and DePue eventually

moved for, and received, a protection order against Suman because Suman had

threatened to kill him.

{¶3}      After he was served with the protection order, Suman visited the house of his

friends Brian Koon and Lori Frank. Koon and Frank were living together in a romantic

relationship. Suman convinced Koon to telephone and threaten DePue. Koon called

DePue, made a number of vague threats, and threatened to “wreck” DePue’s jaw.

Unbeknownst to Koon, DePue’s answering machine recorded the entire conversation.

DePue then called the Athens County Sheriff’s Office.

{¶4}      Deputy Shannon Sheridan went to DePue’s house and established, with the

help of the telephone company, that the phone call had been placed from the residence

of Koon and Frank. Deputy Sheridan and others went to Koon and Frank’s residence

and eventually secured a statement from Frank indicating that “[Suman] and [Koon]

used [her] phone to make a call.” Transcript at 96. Koon initially refused to admit to any

culpability and claimed that Suman made the phone call.

{¶5}      Before Suman’s trial, Koon pleaded guilty to a criminal complaint that

accused him of aggravated menacing. A portion of this complaint accused Koon of

making the phone call at the behest of Suman.
Athens App. No. 10CA11                                                              3


{¶6}      Deputy Sheridan then filed a complaint accusing Suman of violating the terms

of a protection order. The case was tried on January 28, 2010. During the trial, the

prosecution called Frank to testify. Frank testified that Suman had told Koon not to call

DePue and that Suman had not been present during the phone call. Koon also denied

that Suman had asked him to make the telephone call. The prosecution used a prior

inconsistent statement of Frank and had Koon read the factual statement of the

complaint for aggravated menacing that he pleaded guilty to.

{¶7}      The jury convicted Suman, and the trial court sentenced him to 180 days of

incarceration, but suspended 178 days upon condition that Suman be a law abiding

citizen for two years.

{¶8}      Suman appeals and asserts the following assignments of error: I. “The trial

court erred by admitting irrelevant evidence that was prejudicial to the appellant.” And,

II. “The trial court erred by allowing the prosecutor to impeach his own witness with a

prior inconsistent statement.”

                                            II.

{¶9}      Both of Suman’s assignments of error concern the admission of evidence at

trial. “‘[T]he admission or exclusion of relevant evidence rests within the sound

discretion of the trial court.’” State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, at

¶79, quoting State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus.

“[T]he term ‘abuse of discretion’ connotes more than an error of law; it implies that the

court acted unreasonably, arbitrarily or unconscionably.” Rigby v. Lake Cty. (1991), 58

Ohio St.3d 269, 271, citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

                                            A.
Athens App. No. 10CA11                                                                   4


{¶10}      Suman contends in his first assignment of error that the trial court erred when

it permitted the prosecutor to ask Koon to read portions of the criminal complaint that he

pleaded guilty to. What follows is the only objection Suman’s counsel made to the

admission of this evidence:

{¶11}      “Q:             Okay. Um, can you read the to wit section?

{¶12}      “Defense:       Your Honor, may we approach the bench?

{¶13}      “Court:         You may.

{¶14}      “Defense:       Koon was charged with aggravated menacing. That to wit is not

part of the [inaudible] . . .

{¶15}      “Court:         Uh huh.

{¶16}      “Defense:       . . . part of the charge [inaudible], an element of the crime. And,

usually [inaudible] had many cases where, and facts is not part of [inaudible].

{¶17}      “Court:         Uh huh.

{¶18}      “Defense:       And, uh, and, so, try to make it, it [inaudible] put him up to

because what was in the complaint. And . . .

{¶19}      “Court:         Uh huh.

{¶20}      “Defense:       . . . feel this [inaudible] is prejudicial to my client.

{¶21}      “Court:         Well, I think, assuming that, uh, [the prosecutor] is going where I

think he’s going with this, uh, if it turns out that he pled guilty to this complain[t], this

particular case number, then the complaint will be admissible.

{¶22}      “Defense:       Well, I doubt he pleaded guilty to it.

{¶23}      “Court:         Okay. Objection overruled.” Trial Transcript at 114-15.
Athens App. No. 10CA11                                                              5


{¶24}     Suman claims that the trial court violated Evid.R. 402 and Evid.R. 403(A)

when it admitted this evidence. (Because Suman does not claim that the admission of

this evidence violated the hearsay rule, we will not consider the same.)

                                      1. Relevancy

{¶25}     Suman maintains that the “to wit” section of the complaint was irrelevant

evidence and the trial court erred when it failed to exclude it over his objection. Evid.R.

402 prohibits the admission of irrelevant evidence while Evid.R. 401 defines relevant

evidence. “‘Relevant evidence’ means evidence having 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.

{¶26}     Initially, we note that there can scarcely be any question as to whether the

facts alleged in the criminal complaint are relevant. The fact that a criminal complaint

was filed against Koon alleging that he made the offending telephone call at the behest

of Suman is, by itself, weak support for this fact, but nonetheless does tend to increase

the likelihood of Suman having asked Koon to make the call. This is particularly true

because Koon pleaded guilty to that complaint.

                                       2. Prejudice

{¶27}     Suman also argues that the admission of this evidence is contrary to Evid.R.

403(A). “Although relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or

of misleading the jury.” Id. We cannot agree. Even if we grant that Suman suffered

unfair prejudice based on the admission of this statement, nonetheless we cannot say
Athens App. No. 10CA11                                                                 6


that the unfair prejudice substantially outweighed the probative effect of the evidence

because Koon pleaded guilty to the complaint.

{¶28}      In conclusion, we find that the trial court did not abuse its discretion in the

admission of this evidence based on Evid.R. 402 and Evid.R. 403.

{¶29}      Accordingly, we overrule Suman’s first assignment of error.

                                              B.

{¶30}      In his second assignment of error, Suman contends that the trial court erred

because the trial court allowed the prosecution to cross examine its own witnesses with

a prior inconsistent statement without establishing the proper foundation. “The

credibility of a witness may be attacked by any party except that the credibility of a

witness may be attacked by the party calling the witness by means of a prior

inconsistent statement only upon a showing of surprise and affirmative damage.”

Evid.R. 607(A). “‘The decision as to whether a party is taken by surprise by the

testimony of its hostile witness is a decision that is entrusted to the broad, sound

discretion of the trial judge.’” State v. Lemaster (Jan. 27, 1998), Pickaway App. No. 96

CA 18, quoting State v. Diehl (1981), 67 Ohio St.2d 389, 391.

{¶31}      But Suman did not object to this line of questioning before the trial court.

Suman must therefore establish that the admission of this evidence amounts to plain

error. See Ahmed at ¶80, citing State v. Slagle (1992), 65 Ohio St.3d 597, 604.

“Inherent in the [plain-error] rule are three limits placed on reviewing courts for

correcting plain error.” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, at ¶15.

“‘First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error

must be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an error must be an
Athens App. No. 10CA11                                                                 7


‘obvious’ defect in the trial proceedings. * * * Third, the error must have affected

‘substantial rights.’ We have interpreted this aspect of the rule to mean that the trial

court’s error must have affected the outcome of the trial.’” Id. at ¶16, quoting State v.

Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68 (omissions in original). We will notice plain

error “only to prevent a manifest miscarriage of justice.” State v. Long (1978), 53 Ohio

St.2d 91, paragraph three of syllabus. And “[r]eversal is warranted only if the outcome

of the trial clearly would have been different absent the error.” State v. Hill, 92 Ohio

St.3d 191, 203, 2001-Ohio-141, citing Long at paragraph two of the syllabus.

{¶32}     Here, we fail to see how the prosecutions’ use of the witness’s prior

inconsistent statement would result in a manifest miscarriage of justice.

{¶33}     In any event, there is little question but that Frank’s recantation damaged the

State’s case. See Ferguson Realtors v. Butts (1987), 37 Ohio App.3d 30, paragraph

two of the syllabus (“‘Affirmative damage,’ under Evid.R. 607, is established when the

witness testifies to facts which contradict, deny or harm the party’s trial position.”).

Here, Frank testified that, contrary to her earlier statement, Suman did not ask Koon to

call DePue and that Suman was not present when Koon made the phone call. There is

little question but that this statement affirmatively damaged the prosecution’s case.

{¶34}     The only question is the required showing of surprise. What follows is a

portion of Frank’s testimony that establishes plausible evidence of surprise:

{¶35}     “A:            I think that [Suman] knew that [Koon] was going to use the

phone and told him not to.

{¶36}     ***

{¶37}      “Q:           And when was the last time that you and I spoke?
Athens App. No. 10CA11                                                             8


{¶38}     “A:            I believe it was yesterday.

{¶39}     “Q:            Okay. And at any time, did you tell me that, um, [Suman] told

Koon not to call?

{¶40}     “A:            No.” Transcript at 96-97.

{¶41}     In sum, Frank testified that she had changed her story from the previous day,

and that she had never previously indicated to the State that Suman told Koon not to

call DePue, notwithstanding several interviews. The prosecutor did state in closing that

he “knew that Frank would come in here today and change her story.” Transcript at

162. But the prosecutor said nothing about how he knew that Frank would change her

story. Nor did the prosecutor explain precisely what facts he expected Frank to change

in her story. In her statement to Deputy Sheridan, Frank also stated that Suman was

present during the phone call, another statement she contradicted at trial. It is unclear

what portions of Frank’s story the State expected her to change.

{¶42}     It is possible, that the State may have been able to prove surprise

notwithstanding the prosecutor’s statement in closing. In any event, we cannot agree

that the trial court plainly erred because the court failed to reexamine the admission of a

prior inconsistent statement because of the prosecutor’s statement during closing

arguments. Even had Suman’s counsel objected to the admission of this evidence,

there is a plausible argument that the prosecution could have established surprise, and,

as such, we find that the admission of this evidence could not amount to plain error.

{¶43}     Of course, even if this evidence was admissible, it should not have been

considered for the truth of the matter asserted. “It is the generally accepted view that a

prior inconsistent statement is only admissible to impeach the declarant and should not
Athens App. No. 10CA11                                                             9


be taken into evidence to prove the truth of the matter asserted. Ohio has long adhered

to this general principle. * * * [T]he Ohio Supreme Court has said that ‘when taken by

surprise by the adverse testimony of its own witness, * * * the state may interrogate

such witness concerning his prior inconsistent * * * statement * * * for the purpose of

refreshing the recollection of the witness, but not for the purpose of offering substantive

evidence against the accused.’” State v. Dearmond, 179 Ohio App.3d 63, 2008-Ohio-

5519, at ¶26, quoting State v. Dick (1971), 27 Ohio St.2d 162, 165 (alterations in

original, other citation omitted). But again, Suman’s counsel raised no objection on this

basis before the trial court, and his counsel on appeal raised no such argument before

us on appeal. As such, we decline to sua sponte find plain error on this issue.

{¶44}     Accordingly, we overrule Suman’s second assignment of error.

                                            III.

{¶45}     Having overruled both of Suman’s assignments of error, we affirm the

judgment of the trial court.

                                                                 JUDGMENT AFFIRMED.
Athens App. No. 10CA11                                                       10


Harsha, J., Dissenting:

      The admission of the two prior inconsistent statements as substantive evidence

amounts to plain error.
Athens App. No. 10CA11                                                          11


                                  JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE AFFIRMED and appellant pay the costs
herein taxed.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Athens
County Municipal Court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.


       McFarland, P.J.: Concurs in Judgment and Opinion.
       Harsha, J.: Dissents with Dissenting Opinion.




                                         For the Court


                                         BY:
                                               Roger L. Kline, Judge




                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
