[Cite as State v. Frazier, 2012-Ohio-790.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                         C.A. No.     25654

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
COTY T. FRAZIER                                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 08 10 3462

                                  DECISION AND JOURNAL ENTRY

Dated: February 29, 2012



        MOORE, Judge.

        {¶1}     Appellant, Coty T. Frazier, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                                 I.

        {¶2}     On October 11, 2008, Coty T. Frazier was arrested due to incidents that occurred

at 542 Tennessee Place in the City of Barberton from October 8, 2008, through October 11,

2008.    Toka Williams, who resides at 542 Tennessee Place, had been in an “on-and-off”

relationship with Frazier since January 2001. They had two children together. During the course

of the relationship, Frazier was convicted of domestic violence in 2004 and 2005. Toka was the

victim in each case.

        {¶3}     Toka testified that, on October 8, 2008, Frazier pushed her, pulled her off the

couch, placed his hands around her neck, and kicked her in the back. Police responded, but did

not press charges. On October 9, 2008, Toka again called the police to report damage to her car.
                                                2


She believed Frazier was responsible for the damage. On October 10, 2008, Toka received

threatening voicemails from Frazier. In them he threatens to come to her home dressed in black

to shoot her in her face. On that same date, Frazier came to her residence and a physical

altercation ensued between him and Matt Paig. Toka had become romantically involved with

Paig. Toka again called the police regarding the incident, and asked the officer to listen to the

threatening voicemails as well. Later that evening, Frazier returned and Toka heard shots while

she was standing on her front porch. She testified that she did not see what happened because

she wears glasses and it was dark outside. She told police that she had seen Frazier with a gun in

the past.

        {¶4}   Lucretia Williams testified that she was at her daughter’s apartment on October

10, 2008. She knew both Frazier and Toka because her daughter lives near Toka’s residence.

Lucretia heard a sound, which she described as a “pow,” followed by her neighbors saying that

someone had fired a gun into the air. Lucretia grabbed her binoculars and observed Frazier,

wearing a black hooded sweatshirt, shooting a firearm toward Toka’s residence at 542 Tennessee

Place. She testified that she observed two shots, and then the gun appeared to jam, and she

subsequently saw another shot fired. She averred that she heard Frazier say, “Die, bitch, die”

and “To the grave, to the grave.” Lucretia subsequently called 911. The 911 call was played for

the jury. In it, Lucretia stated that she witnessed shots fired at 512 Tennessee Place and

identified the shooter as Frazier. She described Frazier as a black male wearing a black hoodie.

        {¶5}   Gary Lee Bland testified that he was at his sister’s house on October 10, 2008.

She lives in the same complex as Toka. Bland also knew Frazier from the apartment complex.

Bland testified that he heard a gunshot, looked out the window, and witnessed Frazier firing a

handgun toward the building where the mother of Frazier’s children resides. He also testified
                                                3


that Frazier was wearing a black hooded sweatshirt. The following day, Frazier arrived at

Bland’s sister’s residence and asked to use the phone. Shortly thereafter, police arrived and

Frazier attempted to run but was arrested. Bland admitted that he initially gave police his

brother’s name because he had a warrant. Consequently, he was arrested and charged with

obstruction of official business. At the time of trial, Bland was incarcerated in the Summit

County jail and charges were still pending against him.

       {¶6}    Officer Brian Brown, a sergeant with the Barberton Police Department, testified

that he responded to a domestic violence call at 542 Tennessee Place on October 8, 2010. When

he arrived, Toka was crying and stated that she and Frazier had been in an argument. Frazier

would not leave her alone, and had taken her keys. She wanted her keys back and wanted “to be

done with him.” The officer told Frazier to stay away or he would be charged with trespass.

       {¶7}    Officer Stacy Colgan, a Barberton Police Officer, testified that she responded to a

911 call at 542 Tennessee Place on October 10, 2011 at around 4:15 in the afternoon. Toka told

her that Frazier had come into her house unannounced and started an altercation with Paig.

Frazier subsequently left, but had since been leaving her threatening voicemails. Officer Colgan

listened to and subsequently recorded the voicemails. She testified that Toka was upset about the

voicemails and that she wished to press domestic violence charges based on the threats.

       {¶8}    That same day, Officer Colgan received a second 911 call around 9:05 in the

evening regarding shots being fired. She arrived on scene and discovered some spent shell

casings and a live bullet. She testified that shootings were uncommon in this area. She further

testified that she was not surprised to be called back out to the residence because the voicemails

“were very specific in what [Frazier] intended to do to [Toka].”
                                                  4


       {¶9}    Detective Shannon Davis, a detective with the Barberton Police Department,

testified regarding the events as well. During her testimony, a video tape from a surveillance

camera in the parking lot was played for the jury. In it, Frazier is seen in the parking lot, facing

Toka’s residence, wearing dark clothing. She further averred that the clothing worn by the

person in the video, which included a hooded sweatshirt, matched the description of the clothing

that Frazier was wearing at the time of his arrest. She testified that Frazier had told her that he

did not make any calls to Toka, even though the voicemails were later confirmed to be from him.

Frazier also told her that he had no prior convictions for domestic violence in this country. At

trial he stipulated to three prior domestic violence convictions.

       {¶10} On October 30, 2008, the Summit County Grand Jury indicted Frazier on one

count of felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second degree, one

count of improperly discharging a firearm at or into a habitation or school in violation of R.C.

2923.161(A)(1), a felony of the second degree, one count of having weapons under disability in

violation of R.C. 2923.14, a felony of the third degree, one count of domestic violence stemming

from the October 8, 2008 incident in violation of R.C. 2919.25(A), a felony of the third degree,

one count of domestic violence stemming from the October 10, 2008 incident in violation of

R.C. 2919.25(A), a felony of the third degree, one count of domestic violence stemming from the

October 10, 2008 incident in violation of R.C. 2919.25(C), a misdemeanor of the first degree,

and one count of menacing by stalking in violation of R.C. 2903.211(A)(1), a felony of the

fourth degree. Frazier was further charged with a firearm specification with regard to the

charges of felonious assault and improperly discharging a firearm at or into a habitation or

school. Frazier pled not guilty to the counts in the indictment and the matter proceeded to a jury

trial. Frazier stipulated to having three prior domestic violence convictions.
                                                 5


        {¶11} At trial, Frazier admitted that he was outside in the parking lot at the time of the

shooting and admitted that the man on the surveillance video tape was him. He denied shooting

a firearm toward Toka’s residence and instead argued that he was confronted by a man dressed in

black who sounded like Paig. The man fired two shots into the air and said, “What’s up now?”

He told Detective Davis that a man fired a gun at him and then ran away.

        {¶12} At the conclusion of trial, the jury found Frazier guilty of felonious assault,

improperly discharging a firearm at or into a habitation or school, having weapons under

disability, domestic violence stemming from the October 10, 2008 incident in violation of R.C.

2919.25(A), domestic violence stemming from the October 10, 2008 incident in violation of R.C.

2919.25(C), and menacing by stalking. The jury found Frazier not guilty of domestic violence

stemming from the October 8, 2008 incident.

        {¶13} On February 19, 2009, the trial court sentenced Frazier to three years of

incarceration on the gun specification and ordered it to be served consecutively to the remaining

charges. Frazier was sentenced to seven years of incarceration for felonious assault, seven years

of incarceration for improperly discharging firearm at or into a habitation or school, four years of

incarcerations for having weapons while under disability, four years of incarceration for

domestic violence in violation of R.C. 2919.25(A), one hundred eighty days in the Summit

County Jail for domestic violence in violation of R.C. 2919.25(C), and one year of incarceration

for menacing by stalking.       The trial court ordered that each of these sentences be served

concurrently with each other, but consecutively with the three-year gun specification charge, for

a total of ten years of incarceration.
                                                 6


         {¶14} Frazier timely filed a notice of appeal. He raises eight assignments of error for

our review. We have consolidated some of the assignments of error and address them out of

order to facilitate our review.

                                                 II.

                                  ASSIGNMENT OF ERROR II

         PURSUANT TO [FRAZIER’S] CONSTITUTIONAL RIGHT TO DUE
         PROCESS, THE TRIAL COURT EMPLOYED THE WRONG LEGAL
         STANDARD FOR EXAMINING THE SUITABILITY OF A JUROR,
         THEREBY ENTITLING [HIM] TO A NEW TRIAL.

         {¶15} In his second assignment of error, Frazier contends that the trial court applied the

incorrect legal standard in reviewing whether to excuse a prospective juror for cause. We do not

agree.

         {¶16} Generally matters of whether to excuse prospective jurors for cause are left to the

sound discretion of the trial court. See State v. Cornwell, 86 Ohio St.3d 560, 563 (1999). But

whether the trial court made an error as a matter of law in applying the incorrect legal standard is

a question that we review de novo. See Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181,

2009-Ohio-2496, ¶ 13. “When a court’s judgment is based on an erroneous interpretation of the

law, an abuse-of-discretion standard is not appropriate.” Id., citing Swartzentruber v. Orrville

Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, ¶ 6 (9th Dist.).

         {¶17} Frazier directs this Court to State v. Moss, 9th Dist. No. 24511, 2009-Ohio-3866,

to support his contention that he is entitled to a new trial because the court applied the wrong

standard of law. In Moss, the State had moved to excuse a venireperson for cause. The trial

court excused the venireperson, not under the applicable standard set forth in R.C. 2945.25(B),

but instead under the standard set forth in Batson v. Kentucky, 476 U.S. 79 (1986). Id. at ¶ 12.

The Batson standard, however, is only applicable to peremptory challenges. Id. In Moss, we
                                                 7


held that the trial court’s application of “the lesser standard relative to a peremptory challenge,

[and] not the loftier standard applicable to a challenge for cause” warranted reversal. Id. at ¶ 13.

       {¶18} Here, the State also moved to excuse a venireperson for cause. While the trial

court mentioned Batson, it is apparent from the record that the trial court actually applied the

appropriate standard set forth in R.C. 2945.25. R.C. 2945.25 and Crim.R. 24(C) provide the

reasons for which a juror in a criminal matter can be removed for cause. R.C. 2945.25 states, in

relevant part:

       A person called as a juror in a criminal case may be challenged for the following
       causes:

        ***

       (B) That he is possessed of a state of mind evincing enmity or bias toward the
       defendant or the state; but no person summoned as a juror shall be disqualified by
       reason of a previously formed or expressed opinion with reference to the guilt or
       innocence of the accused, if the court is satisfied, from examination of the juror or
       from other evidence, that he will render an impartial verdict according to the law
       and the evidence submitted to the jury at the trial[.]

       {¶19} Similarly, Crim.R. 24(C) states, in relevant part:

       (C) Challenge for cause. A person called as a juror may be challenged for the
       following causes:

        ***

       (9) That the juror is possessed of a state of mind evincing enmity or bias toward
       the defendant or the state; but no person summoned as a juror shall be disqualified
       by reason of a previously formed or expressed opinion with reference to the guilt
       or innocence of the accused, if the court is satisfied, from the examination of the
       juror or from other evidence, that the juror will render an impartial verdict
       according to the law and the evidence submitted to the jury at the trial.

       {¶20} In State v. Moss, we further stated that “[a]s long as a trial court is satisfied,

following additional questioning of the prospective juror, that the juror can be fair and impartial

and follow the law as instructed, the court need not remove that juror for cause.” Moss at ¶ 11.
                                                 8


         {¶21} Here, the trial court did not expressly state that it was excusing the venireperson

under Batson. Instead, it stated that it was excusing the venireperson because the venireperson

believed that the State should not “pursue domestic violence prosecutions” when there are no

physical injuries. This indicates that the trial court was excusing the venireperson under R.C.

2945.25(B) for bias toward the State.       Clearly, the trial judge was not satisfied that the

venireperson could render an impartial verdict on the evidence. See also State v. White, 9th Dist.

No. 24960, 2010-Ohio-2865, ¶ 12 (distinguishing Moss because the trial court excused the

venireperson for hardship, not expressly under Batson).        Accordingly, notwithstanding the

reference to Batson, the trial court applied the correct legal standard in dismissing the

venireperson for cause. Frazier’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR I

         PURSUANT TO [FRAZIER’S] CONSTITUTIONAL RIGHT TO DUE
         PROCESS, THE TRIAL COURT ERRED BY FAILING TO SUSTAIN [HIS]
         OBJECTION TO REMOVING A JUROR FOR CAUSE WHERE NO SUCH
         CAUSE EXISTS, THEREBY ENTITLING [HIM] TO A NEW TRIAL.

         {¶22} In his first assignment of error, Frazier contends that the trial court erred in

allowing the removal of a venireperson for cause because no such cause existed. We do not

agree.

         {¶23} We review the trial court’s decision to grant the for-cause challenge under the

abuse of discretion standard. State v. Smith, 80 Ohio St.3d 89, 105 (1997). Under this standard,

we must determine whether the trial court’s decision was arbitrary, unreasonable, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). As discussed above,

R.C. 2945.25 and Crim.R. 24 provide the reasons for which a venireperson in a criminal matter

can be removed for cause. One such reason is evidence of bias toward the defendant or the State.

R.C. 2945.25(B). “As long as a trial court is satisfied, following additional questioning of the
                                                   9


prospective juror, that the juror can be fair and impartial and follow the law as instructed, the

court need not remove that juror for cause.” Moss at ¶ 11.

       {¶24} During voir dire, the venireperson indicated that two of his cousins had been

“railroaded” in domestic violence cases involving the same prosecutor. He indicated that he was

“very close” to them and that he did not feel they were treated fairly by the court system. In

addition, he believed that domestic violence cases should not be pursued where there are no

injuries to the victim. While the venireperson did indicate that he could be fair and impartial,

“[t]he determination of juror bias necessarily involves a judgment on credibility, the basis of

which often will not be apparent from an appellate record. Wainwright v. Witt, 469 U.S. 412,

429 (1985). For this reason, ‘deference must be paid to the trial judge who sees and hears the

juror.’ Id. at 426.” State v. DePew, 38 Ohio St.3d 275, 280 (1988). Because Frazier has failed

to demonstrate that the trial court’s decision to excuse the juror for cause was an abuse of

discretion, his first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR V

       PURSUANT TO THE EQUAL PROTECTION CLAUSE IN THE
       FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION,
       THE TRIAL COURT ERRED BY FAILING TO SUSTAIN [FRAZIER’S]
       OBJECTION TO THE PROSECUTION’S PEREMPTORILY [SIC]
       REMOVING THE ONLY AFRICAN AMERICAN JUROR, THEREBY
       ENTITLING [HIM] TO A NEW TRIAL.

       {¶25} In his fifth assignment of error, Frazier argues that the trial court erred in allowing

the peremptory removal of the only African American venireperson. Our dispositions of the first

and second assignments of error indicate that the trial court properly excused the venireperson

for cause. This assignment of error merely reiterates the issues already discussed in the above

assignment of error. For the reasons set forth in discussion of the first and second assignments of

error, Frazier’s fifth assignment of error is likewise overruled.
                                                10


                                ASSIGNMENT OF ERROR III

       PURSUANT TO [FRAZIER’S] CONSTITUTIONAL RIGHT TO DUE
       PROCESS, THE TRIAL COURT ERRED BY FAILING TO SUSTAIN [HIS]
       OBJECTION TO REMOVING A HISPANIC/PUERTO RICAN JUROR FOR
       CAUSE WHERE NO SUCH CAUSE EXISTS, THEREBY ENTITLING [HIM]
       TO A NEW TRIAL.

       {¶26} In his third assignment of error, Frazier contends that the trial court erred in

removing a Puerto Rican venireperson for cause where no such cause existed. We do not agree.

       {¶27} Under R.C. 2945.25(N), a person called as a juror in a criminal case may be

challenged if “English is not his native language, and his knowledge of English is insufficient to

permit him to understand the facts and law in the case[.]” The State moved to have the juror

excused because he indicated that he had difficulty understanding English, the parties had

difficulty understanding him, and the State also expressed concern that the language barrier

could create problems during deliberations.

       {¶28} The trial court’s decision to grant the for-cause challenge must be reviewed under

the abuse of discretion standard. Smith, 80 Ohio St.3d at 105. We must determine whether the

trial court’s decision was arbitrary, unreasonable, or unconscionable. Blakemore, 5 Ohio St.3d at

219. “Crim. R. 24(B)(13) provides that a person may be challenged for cause when ‘English is

not his native language, and his knowledge of English is insufficient to permit him to understand

the facts and the law in the case.’” State v. Getsy, 84 Ohio St.3d 180, 192 (1998).

       {¶29} The trial court determined that the venireperson’s knowledge of the English

language was insufficient and excused him for cause. “We must defer to that finding if the

record supports it[.]” State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, ¶ 59, citing State v.

Wilson, 29 Ohio St.2d 203, 211 (1972).          A review of the transcript indicates that the

venireperson’s native language was Spanish. He averred that it could at times be hard to
                                                 11


understand the proceedings. In addition, he felt that the language barrier could affect his ability

to be a fair juror on the case. Because the record supports the trial judge’s decision to grant the

challenge for cause, Frazier’s third assignment of error is overruled.

                                ASSIGNMENT OF ERROR IV

       PURSUANT TO [FRAZIER’S] CONSTITUTIONAL RIGHT TO DUE
       PROCESS, THE TRIAL COURT EMPLOYED THE WRONG LEGAL
       STANDARD FOR EXAMINING THE SUITABILITY OF A JUROR,
       THEREBY ENTITLING [HIM] TO A NEW TRIAL.

       {¶30} In his fourth assignment of error, Frazier contends that the trial court applied the

wrong legal standard in examining the suitability of a venireperson. We do not agree.

       {¶31} As stated in the second assignment of error, generally matters of whether to

excuse prospective jurors for cause are left to the sound discretion of the trial court. See

Cornwell, 86 Ohio St.3d at 563. But whether the trial court made an error as a matter of law in

applying the incorrect legal standard is a question that we review de novo. See Schlotterer at ¶

13. “When a court’s judgment is based on an erroneous interpretation of the law, an abuse-of-

discretion standard is not appropriate.” Id., citing Swartzentruber at ¶ 6.

       {¶32} As discussed in the third assignment of error, the State moved to have the

venireperson excused for cause. The trial court properly reviewed the challenge under the for-

cause standard and excused the venireperson because “he did indicate concern whether he could

understand [English] well enough[.]” Although this was not a peremptory challenge, defense

counsel expressed his “greater concern” that the trial court was “removing all the non[-

]Caucasian people from this jury.” The trial court said the “Batson case doesn’t talk about all

non[-]Caucasian, so I don’t think it’s subject to a Batson challenge.” As this statement by the

court may have caused confusion, we will further address Frazier’s arguments.
                                                   12


        {¶33} Frazier correctly points out that “the Equal protection Clause of the United States

Constitution prohibits deliberate discrimination based on race by a prosecutor in his exercise of

peremptory challenges.” Moss at ¶ 9, citing Batson, 476 U.S. at 89. In Batson, the defendant,

who was black, appealed the prosecution’s use of peremptory challenges to remove “all four

black persons on the venire” leaving a jury composed of only white persons. Id. at 83. The

United States Supreme Court held that “[p]urposeful racial discrimination in selection of the

venire violates a defendant’s right to equal protection because it denies him the protection that a

trial by jury is intended to secure.” Id. at 86.

        {¶34} The United States Supreme Court further held that a prima facie case of

purposeful discrimination in selection of the petit jury may be established by: (1) showing that

the defendant “is a member of a cognizable racial group * * * and that the prosecutor has

exercised peremptory challenges to remove from the venire members of the defendant’s race,”

(2) relying on the undisputable fact “that peremptory challenges constitute a jury selection

practice that permits those to discriminate who are of a mind to discriminate,” and (3) “that these

facts and any other relevant circumstances raise an inference that the prosecutor used that

practice to exclude the veniremen from the petit jury on account of their race.” (Internal

citations and quotations omitted.) Id. at 96. Once the inference of purposeful discrimination is

established, “the burden shifts to the State to come forward with a neutral explanation for

challenging black jurors.” Id. at 97.

        {¶35} The Batson holding was extended in Powers v. Ohio, 499 U.S. 400 (1991). In

Powers, a defendant, who was white, objected to the State’s use of peremptory challenges to

remove seven black venirepersons from the jury. He requested the trial court to compel the

prosecutor to explain, on the record, his reasons for excluding the black venirepersons. His
                                                13


objections were overruled. The United States Supreme Court acknowledged that Batson “spoke

of the harm caused when a defendant is tried by a tribunal from which members of his own race

have been excluded.” Id. at 406. However, “Batson was designed to serve multiple ends, only

one of which was to protect individual defendants from discrimination in the selection of jurors.

Batson recognized that a prosecutor’s discriminatory use of peremptory challenges harms the

excluded jurors and the community at large.” (Internal citations and quotations omitted.) Id.

The Court went on to hold that “a criminal defendant may object to race-based exclusions of

jurors effected through peremptory challenges whether or not the defendant and the excluded

juror share the same races.” Id. at 402.

       {¶36} A Batson objection was also analyzed in Hernandez v. New York, 500 U.S. 352

(1991), where a prosecutor had used peremptory challenges “to exclude Latino potential jurors.”

Id. at 356. The prosecutor argued that he had struck these two jurors, who were both bilingual,

because he was “uncertain that they would be able to listen and follow the interpreter”

particularly because they had “looked away from [him]” and hesitated before responding to his

inquiry whether they would accept the translator as the final arbiter of the witnesses’ responses.

Id. On appeal, Hernandez argued that the explanation was not “race neutral.” Id. at 359. The

United States Supreme Court noted that “[i]n evaluating the race neutrality of an attorney’s

explanation, a court must determine whether, assuming the proffered reasons for the peremptory

challenges are true, the challenges violate the Equal Protection Clause as a matter of law. A

court addressing this issue must keep in mind the fundamental principle that official action will

not be held unconstitutional solely because it results in a racially disproportionate impact. Proof

of racially discriminatory intent or purpose is required to show a violation of the Equal

Protection Clause.” (Internal citations and quotations omitted.) Id. at 359-60. The Court
                                                14


concluded that the prosecutor offered a race-neutral basis for the peremptory strikes because he

“explained that the specific responses and the demeanor of the two individuals during voir dire

caused him to doubt their ability to defer to the official translation of Spanish-language

testimony.” Id. at 360.

         {¶37} In the case at hand, although the trial court mentioned Batson, it is clear from the

record that it properly reviewed the challenge under the challenge-for-cause standard. As such,

Frazier’s argument that the trial court applied the lesser legal standard from Batson relative to a

peremptory challenge, and not the loftier standard applicable to a challenge for cause, is without

merit.

         {¶38} As to Frazier’s argument that the trial court was “removing all the non[-]

Caucasian people from the jury[,]” the Ohio Supreme Court has stated that “[t]he right to trial by

an impartial jury means that prospective jurors must be selected by officials without the

systematic and intentional exclusion of any cognizable group. However it is not necessary that

every jury contain representatives of all economic, social, religious, racial, political, and

geographical groups in the community.” State v. Johnson, 31 Ohio St.2d 106, 114 (1972). The

Ohio Supreme Court has also noted that “[a] party has no right to have any particular juror on the

panel. His right is to an impartial jury[.]” State v. Murphy, 91 Ohio St.3d 516, 525 (2001).

Frazier has made no arguments regarding the impartiality of the remaining jurors. His fourth

assignment of error is overruled.

                                 ASSIGNMENT OF ERROR VI

         PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED
         STATES CONSTITUTION AND ARTICLE ONE, SECTION 10 OF THE OHIO
         CONSTITUTION, THE TRIAL COURT ERRED TO THE PREJUDICE OF
         [FRAZIER] IN DENYING [HIS CRIMINAL] RULE 29 MOTION FOR
         ACQUITTAL ON THE CHARGES OF FELONIOUS ASSAULT,
         IMPROPERLY DISCHARGING A FIREARM INTO A HABITATION,
                                                 15


       WEAPONS UNDER DISABILITY, DOMESTIC VIOLENCE (BY USE OF
       THE FIREARM), DOMESTIC VIOLENCE (BY THREAT OF IMMINENT
       HARM), AND MENACING BY STALKING WHEN THE STATE FAILED TO
       PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.

       {¶39} In his sixth assignment of error, Frazier contends that the trial court erred when it

denied his Crim.R. 29 motion. We do not agree.

       {¶40} Crim.R. 29(A) provides that a trial court “shall order the entry of a judgment of

acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses.”

When considering a challenge to the sufficiency of the evidence, the court must determine

whether the prosecution has met its burden of production. To determine whether the evidence in

a criminal case was sufficient to sustain a conviction, an appellate court must view that evidence

in a light most favorable to the prosecution:

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of crime proven
       beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶41} In support of his sufficiency argument, Frazier contends that the State failed to

establish that he fired a handgun, and thus he could not have committed the above charges. He

further challenges the evidence presented as to whether the victim believed that he would cause

her imminent physical harm. Finally, he challenges the credibility of the witnesses. We limit

our review to the issues raised by Frazier.

Handgun

       {¶42} The victim, Toka Williams, testified that she heard two gunshots on the night in

question. Two of Frazier’s acquaintances, Lucretia Williams and Gary Bland, testified that they
                                                16


heard three to four shots and personally observed Frazier shooting a firearm in the direction of

Toka’s apartment.     Specifically, Lucretia obtained binoculars after hearing a gunshot, and

witnessed Frazier firing a gun from the parking lot. A video tape played for the jury shows

Frazier and the parking lot. One live bullet and two casings were found at the scene. In a

voicemail played for the jury, Frazier threatens the victim: “Bitch, I’m killing all you ass mother

f*****s;” and “I’m in all black and I’m comin, I’ll go to Tason Terrace, Crimson Terrace,

parson, wherever to find you bitch and I’m gonna shoot you in your f***ing face * * *.” Frazier

was not apprehended until the next day.

       {¶43} Frazier essentially argues that the State failed to present sufficient evidence

because a handgun was never recovered. Circumstantial and direct evidence “possess the same

probative value[.]” Jenks, 61 Ohio St.3d at paragraph one of the syllabus. Two witnesses

testified that they witnessed the shots. Frazier threatened to shoot the victim in a voicemail

played for the jury. Finally, Frazier was not apprehended until the day after the incident,

providing him with ample opportunity to dispose of the weapon. After viewing this evidence in

a light most favorable to the State, we conclude that the trier of fact could reasonably find that

the State met its burden of production and presented sufficient evidence that he fired a handgun.

Accordingly, this portion of his sixth assignment of error is overruled.

Imminent Physical Harm

       {¶44} Frazier was convicted of domestic violence in violation of R.C. 2919.25(C),

which provides: “No person, by threat of force, shall knowingly cause a family or household

member to believe that the offender will cause imminent physical harm to the family or

household member.” Frazier argues that the State failed to present evidence that the victim

believed he would cause her “imminent physical harm.”
                                               17


       {¶45} The State presented the testimony of the victim, Toka. She testified that she

called the police at least three times based on incidents involving Frazier. Her 911 calls were

played for the jury. In addition, six voicemails were played for the jury in which Frazier

threatens the victim. In one voicemail, Frazier threatens “Bitch * * * ain’t gonna be nothing

blessed about your day and night, [I’m] coming in all black, I’m warning you bitch I’m gonna

shoot you.” In a second voicemail, Frazier can be heard singing a song to Toka in which he

repeats: “Do you really wanna die today? Won’t hesitate to take your life away, I guarantee you

won’t see tomorrow.”

       {¶46} Toka called the police after receiving these voicemails from Frazier. Officer

Colgan testified that Toka was upset about the voicemails and that she wished to press charges

based on the threats made in the voicemails. Officer Colgan further testified that she was not

surprised when she was called back out to the residence later that evening for a “shot-fired call”

because the voicemails “were very specific in what [Frazier] intended to do to [Toka].”

       {¶47} Lucretia and Bland both testified that they witnessed Frazier in the parking lot

outside, dressed in dark clothing, firing a gun toward Toka’s residence while Toka stood on the

porch. A videotape was played for the jury in which Frazier is admittedly seen in the parking lot

in dark clothing. Detective Davis testified that Toka stated that she was not concerned with the

voicemails and that she did not feel threatened, but further testified that these statements were

made on October 16, 2008, after Frazier was apprehended and remained in police custody.

       {¶48} “While it is true that victims may change their testimony to protect a spouse, there

must be some evidence either that a victim stated, or that from other evidence it could be

inferred, that the victim thought that the accused would cause imminent physical harm.”

Hamilton v. Cameron, 121 Ohio App.3d 445, 449 (12th Dist.1997).
                                                   18


         {¶49} Reviewing the evidence presented at trial in a light most favorable to the State,

this Court concludes that any rational trier of fact could have found that the State presented

sufficient evidence that Toka believed Frazier would “cause imminent physical harm[.]”

Accordingly, this portion of his sixth assignment of error is overruled.

Witness Credibility

         {¶50} Lastly, Frazier argues that there was insufficient evidence to support his

convictions because the testimony by Lucretia and Bland was not credible.                 “Because an

examination of the sufficiency of the evidence requires this Court to view the evidence in the

light most favorable to the State, credibility is not implicated.” (Internal citations omitted.) State

v. Garfield, 9th Dist. No. 09CA009741, 2011-Ohio-2606, ¶ 6. Accordingly, Frazier’s sixth

assignment of error is overruled.

                                  ASSIGNMENT OF ERROR VII

         PURSUANT TO ARTICLE FOUR SECTION 3(B)(3) OF THE OHIO
         CONSTITUTION, THE VERDICT OF GUILTY WAS AGAINST THE
         MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL AND
         WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

         {¶51} In his seventh assignment of error, Frazier contends that the verdict was against

the manifest weight of the evidence and was not supported by sufficient evidence. We do not

agree.

         {¶52} When a defendant asserts that his conviction is against the manifest weight of the

evidence,

         an appellate court must review the entire record, weigh the evidence and all
         reasonable inferences, consider the credibility of witnesses and determine
         whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
         and created such a manifest miscarriage of justice that the conviction must be
         reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (1986).
                                                   19


       {¶53} This discretionary power should be invoked only in extraordinary circumstances

when the evidence presented weighs heavily in favor of the defendant. Id. We limit our review

to the manifest-weight issues raised by Frazier.

       {¶54} Frazier argues that his conviction is against the manifest weight of the evidence

because some of the testimony presented by the State was contradictory or not credible. First, he

argues that the Lucretia and Bland were not credible witnesses and, therefore, their testimony

should not have been given any weight. Specifically, Frazier argues that Lucretia’s testimony

lacks credibility because she had just purchased the binoculars on the date of the incident.

Additionally, he argues that Lucretia contradicted herself when she testified that although it was

too dark to see, she was able to see Frazier with the aide of the binoculars. Finally, Frazier

argues that Lucretia’s testimony lacks credibility because she did not take note of the

“distinctive” striping on Frazier’s pants.

       {¶55} Likewise, Frazier argues that Bland’s testimony lacks credibility because he too

failed to notice the striping on his pants. In addition, Bland had lied to the police regarding his

identity and also said that he hoped his assistance in this case might help him with his own

criminal case. This information was elicited from Bland on direct examination. He admitted

that he provided the officers with a false name because he had an outstanding warrant, but

averred that no one promised him anything in exchange for his testimony.

       {¶56} This Court has held that, “in reaching its verdict, the jury is free to believe all,

part, or none of the testimony of each witness.” Prince v. Jordan, 9th Dist. No. 04CA008423,

2004-Ohio-7184, ¶ 35, citing State v. Jackson, 86 Ohio App.3d 29, 33 (1993). Furthermore,

“[t]he weight to be given the evidence and the credibility of the witness[es] are primarily for the

trier of the facts”; in this case, the jury. Id. at 32-33, citing State v. Richey, 64 Ohio St.3d 353,
                                                 20


363 (1992). The jury had the opportunity to weigh the testimony of the witnesses, victim, and

responding officers, view the video footage, and listen to the voicemails and 911 tapes, and “did

not lose its way simply because it chose to believe the State’s version of the events, which it had

a right to do.’” State v. Feliciano, 9th Dist. No. 09CA009595, 2010-Ohio-2809, ¶ 50, quoting

State v. Morten, 2d Dist. No. 23103, 2010-Ohio-117, ¶ 28.

       {¶57} After reviewing the entire record, weighing the inferences and examining the

credibility of the witnesses, we cannot say that the jury clearly lost its way and created a manifest

miscarriage of justice. Otten, 33 Ohio App.3d at 340. Accordingly, Frazier’s argument that the

verdict was against the manifest weight of the evidence is overruled. To the extent that he

reiterates the sufficiency arguments presented in the sixth assignment of error, it is also

overruled.

                                ASSIGNMENT OF ERROR VIII

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO
       SUSTAIN [FRAZIER’S] OBJECTION TO THE PROSECUTION SOLICITING
       EVIDENCE FROM A PURPORTED EXPERT THAT IS BOTH IRRELEVANT
       AND UNFAIRLY PREJUDICIAL TO [HIM].

       {¶58} In his eighth assignment of error, Frazier argues that the trial court erred in

admitting expert testimony that was both irrelevant and unfairly prejudicial to him. We conclude

that Frazier has failed to demonstrate prejudice as a result of its admission.

       {¶59} The State presented the testimony of Dana Zedak, a licensed social worker who is

employed as the director of services at the Battered Women’s Shelter, to testify as an expert

regarding the dynamics of domestic violence. She provided general testimony of the dynamics

of battered women’s syndrome which include victims returning to their abuser after the abuse.

       {¶60} The Ohio Supreme Court has recognized that the State may introduce testimony

on the cycle of violence and battered-women’s syndrome in its case-in-chief, provided that such
                                               21


testimony is relevant and helpful. State v. Haines, 112 Ohio St.2d 393, 2006-Ohio-6711, ¶ 44.

For such testimony to be relevant, the State must set forth the requisite evidentiary foundation

showing that the witness is a battered woman. Id. at ¶ 46-47. Although the Court rejected any

“set of rigid foundational requirements,” it did impose two specific limitations on the admission

of cycle of violence and battered-women’s syndrome testimony. Haines at ¶ 47. First, the

evidence must be rehabilitative in nature. Id. at ¶ 44. Second, the couple at issue must have

“go[ne] through the battering cycle at least twice.” Id. at ¶ 49, quoting State v. Koss, 49 Ohio

St.3d 213, 216 (1990).

       {¶61} Assuming without deciding that the trial court erred by admitting the expert

testimony without Haines’ foundational requirements having been met, we conclude that Frazier

has failed to demonstrate prejudice as a result of its admission. “[T]he question is whether there

is a reasonable possibility that the evidence complained of might have contributed to the

conviction.” Haines at ¶ 62, quoting State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶ 78.

We conclude that there is not.

       {¶62} In Haines, the Ohio Supreme Court concluded that the evidence regarding one of

the incidents for which Haines was charged was “almost entirely based upon [the victim’s]

testimony and therefore relie[d] on her credibility.” Haines at ¶ 63. As such, “[t]here [was] a

reasonable probability that evidence concerning her credibility might have contributed to the

jury’s verdict[.]”   Id.   On Haines’ remaining counts, however, the Ohio Supreme Court

concluded that the admission of the expert’s testimony was harmless beyond a reasonable doubt

because the jury also saw photographs of the victim’s injuries and heard testimony from her co-

workers and police officers. Id. at ¶ 64.
                                                  22


       {¶63} Here, as in State v. Anderson, 9th Dist. No. 25377, 2011-Ohio-563, the expert did

not offer an opinion as to whether Toka was a battered woman, and as such “the expert testimony

elicited in this case was, by itself, less prejudicial than the testimony elicited in Haines.” Id. at ¶

17. Moreover, other evidence in the record went to the heart of Frazier’s conviction. In fact,

Toka’s testimony was most helpful with regard to the incident that occurred on October 8, 2008,

for which Frazier was acquitted. This in and of itself demonstrates that the jury did not heavily

rely on the victim’s testimony. Compare Haines at ¶ 63. Toka provided very little testimony

with regard to the incident that occurred on October 10, 2008, except that she heard shots fired,

she was on the porch of her residence, and that she could not see what happened because she

wears glasses and it was dark outside.

       {¶64} As to the incident on October 10, 2008, two eyewitnesses testified that they

observed Frazier with a gun firing shots toward Toka and her residence. The witnesses further

testified that Frazier was dressed in dark clothing. Frazier was arrested wearing clothing

consistent with this testimony, and the clothing was identified by the witnesses at trial as the

clothing he was wearing the night of the incident. Threatening voicemails, admittedly left by

Frazier on Toka’s cell phone, were played for the jury. In them he warns her that he is going to

come to her house dressed in all black to shoot her. A videotape was played for the jury and

Frazier admits that he can be seen in the parking lot of Toka’s residence dressed in dark clothing.

In the video he appears to be facing her residence and can be seen raising his arms, and then

dropping them and looking downward, and raising them again. This is consistent with Lucretia’s

testimony that after he fired a shot, the gun appeared to jam and he was forced to dislodge it prior

to firing additional shots. Two casings and a live bullet were recovered from the scene the day

after the shooting. The recovered bullet was consistent with the testimony that a bullet had been
                                                23


in the chamber when it jammed, and it was subsequently dislodged from the gun. Finally, nine

police officers from the City of Barberton testified as to the events from October 8, 2008,

through October 11, 2008.       Each of the officers’ testimony, corroborated by eyewitness

testimony and evidence found at the scene, supports the contention that Frazier was responsible

for the events in question.

       {¶65} Given the other evidence in the record and the fact that the expert’s opinion

testimony was phrased in terms of generalities, we are not convinced that the admission of her

testimony prejudiced Frazier. Therefore, even if the trial court erred in admitting the expert’s

testimony, its error was harmless beyond a reasonable doubt. Frazier’s eighth assignment of

error is overruled.

                                                III.

       {¶66} Frazier’s eight assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                24


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



WHITMORE, P. J.
DICKINSON, J.
CONCUR


APPEARANCES:

ERIC FINK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
