[Cite as State v. Jones, 2011-Ohio-2362.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 10 CA 69
MARVEL JONES

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2009 CR 258D


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         May 17, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JAMES J. MAYER, JR.                            JEFFEREY R. STIFFLER
PROSECUTING ATTORNEY                           DAVID C. BADNELL CO., LPA
KIRSTEN L. PSCHOLKA-GARTNER                    21 North Walnut Street
ASSISTANT PROSECUTOR                           Mansfield, Ohio 44902
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 10 CA 69                                                       2

Wise, J.

      {¶1}   Appellant Marvel Jones appeals from his conviction, in the Court of

Common Pleas, Richland County, for multiple counts of felonious assault. The relevant

facts leading to this appeal are as follows.

      {¶2}   On September 2, 2008, appellant was an inmate at the Mansfield

Correctional Institution. On that day, while corrections officers in the Local Control Unit

of that facility were in the process of serving food trays, appellant’s cellmate, Guy

Cheers, threw a cup of urine through the cell door opening at Corrections Officer Kevin

Davis and tried to grab his keys and watch. After the incident was reported to

superiors, additional correctional staff conducted a “shake-down” search of the cell.

Appellant and Cheers were both placed in restraints. However, appellant and Cheers

got free of their restraints and got into a physical altercation with some of the officers.

During the incident, Corrections Officer Neal Prichard was thrown to the floor and

sustained a triple fracture to his ankle.

      {¶3}   Appellant was thereafter charged with one count of felonious assault

under R.C. 2903.11(A)(1), a second-degree felony, and three counts of aiding and

abetting assault under R.C. 2903.13(A)/(C)(2)(a), fifth-degree felonies. The case

proceeded to a jury trial on May 21, 2010. As further discussed infra, Cheers testified

via live closed-circuit video.   The jury found appellant guilty on all four counts as

charged. Appellant immediately filed a motion for a new trial, which the trial court

subsequently denied.

      {¶4}   On May 24, 2010, appellant was sentenced to seven years on the second-

degree felony assault. The court merged one of the fifth-degree felony assaults into the
Richland County, Case No. 10 CA 69                                                     3


aforesaid second-degree felony assault count. The court further sentenced appellant to

six months on each of the two remaining fifth-degree felony assault counts, all

consecutive. The total term was thus eight years in prison.

      {¶5}   On June 2, 2010, appellant filed a notice of appeal. He herein raises the

following three Assignments of Error:

      {¶6}   “I. APPELLANT’S CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND

FOURTEENTH AMENDMENT[S] TO THE UNITED STATES CONSTITUTION AND

SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION WERE VIOLATED.

      {¶7}   “II. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

FOR NEW TRIAL.

      {¶8}   “III.   APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

                                             I.

      {¶9}   In his First Assignment of Error, appellant argues the trial court violated

his constitutional rights by having his sole defense witness, former cellmate Guy

Cheers, testify via closed circuit television. We disagree.

      {¶10} The Confrontation Clause found in the Sixth Amendment to the United

States Constitution guarantees that “[i]n all criminal prosecutions the accused shall

enjoy the right * * * to be confronted with the witnesses against him.” This clause

reflects a preference for face-to-face confrontation at trial. See Maryland v. Craig

(1990), 497 U.S. 836, 849, 110 S.Ct. 3157, 111 L.Ed.2d 666; State v. Self (1990), 56

Ohio St.3d 73, 77, 564 N.E.2d at 450. It contains a two-fold right for presenting a

defense: It “guarantees a criminal defendant the right to present witnesses in his or her
Richland County, Case No. 10 CA 69                                                        4


own behalf and to use the power of the court to compel the attendance of those

witnesses, if necessary.” State v. Brock, Montgomery App.No. 19291, 2002-Ohio-7292,

¶ 11, citing Washington v. Texas (1967), 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019.

However, the right to compulsory process as guaranteed by the Sixth Amendment and

Article I, Section 10 of the Ohio Constitution is not an unlimited right. State v. Toles

(May 26, 1998), Stark App.No. 97-CA-0139, 1998 WL 400881. An exception must (1)

be justified on a case-specific finding based on important state interests, public

policies, or necessities of the case and (2) must satisfy the other three elements of

confrontation -- oath, cross-examination, and observation of the witness's demeanor.

State v. Marcinick, Cuyahoga App.No. 89736, 2008-Ohio-3553, ¶ 18, citing Harrell v.

State (Fla. 1998), 709 So.2d 1364, 1369. Furthermore, a defendant's conviction will

generally not be reversed on the basis of a constitutional error if the error is found to be

harmless beyond a reasonable doubt. See, e.g., State v. Walker (Feb. 20, 2001), Stark

App.No. 2000CA00128, citing Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct.

824, 17 L.Ed.2d 705.

      {¶11} In the case sub judice, apparently both the prosecutor and defense

counsel considered calling Cheers as a witness; however, the prosecutor obtained a

conveyance order directing Cheers to be released into the custody of the Richland

County Sheriff, while defense counsel obtained an order for Cheers to be conveyed

directly by the Ohio Department of Corrections. Due to the conflicting motions/orders,

Cheers was not conveyed at all. A conference at the bench ensued as follows:

      {¶12} “[DEFENSE COUNSEL] MR. KEYSER: We wanted to call Guy Cheers,

but apparently he never got conveyed here. My secretary called Lucasville, and they
Richland County, Case No. 10 CA 69                                                   5


said they got an order from the prosecutor that said the sheriff of Richland County was

going to convey him.

      “THE COURT: That is not true. I talked to my staff just now, both of my staff

people. In fact, Karen spoke with them at the Ohio Correctional Institution on Tuesday

and said that he needed to be transported, and they said they would do it.

      “MR. KEYSER: He is not here.

      “THE COURT: Uhm-hum. What are you asking?

      “MR. KEYSER: Asking for time to get him here.

      “THE COURT: Okay. Did you check yesterday and the day before whether he

was actually transported or not?

      “MR. KEYSER: Yes.

      “THE COURT: You know, I am very much troubled when you wait until last night

to tell me he isn’t here and needs to be transported. That is something you needed to

be checking on.

      “MR. KEYSER: I was checking on it everyday.

      “THE COURT: What do you think he is going to testify to?

      “MR. KEYSER: What do I think?

      “THE COURT: Uhm-hum.

      “MR. KEYSER: The events of what occurred.

      “THE COURT: Mr. Bishop?

      “[ASSISTANT PROSECUTOR] MR. BISHOP: I have no dog in this race, Your

Honor. I had at one time entertained the thought of calling Mr. Cheers as a witness

and determined that it wouldn’t benefit the state’s case, so I didn’t do anything more
Richland County, Case No. 10 CA 69                                                      6


with it. I was going to talk with him, anticipating he would be transported here, and talk

to him and hear him tell me that he wasn’t going to help me, you know.

         “THE COURT: Uhm-hum.

         “MR. BISHOP: But then I have no interest in securing his attendance at this

point.

         “THE COURT: Okay.

         “MR. BISHOP: One way or the other.

         “THE COURT: Shall we press forward without the witness?

         “MR. BISHOP: I think so. I think the idea here is that if you want witnesses

present and you know they are incarcerated, you need to make arrangements to get

them conveyed, the same burden we would have had if we wanted to call them.

         “THE COURT: He did submit a conveyance order. The conveyance order was

delivered to the prison. The prison didn’t deliver him here.

         “MR. BISHOP: Do we have any idea how long it would take them to get him

here? Can they get him here today, this morning, this afternoon?

         “MR. KEYSER: I don’t know.

         “MR. BISHOP: We don’t even know?

         “THE COURT: We will have to check into that.” Tr. at 155-157.

         {¶13} Upon review, we find the trial court properly allowed an exception to face-

to-face confrontation of witness Cheers based on the unusual exigencies of the case

and the interest of conserving judicial resources. A review of the transcript indicates

that Cheers was placed under oath, allowed to respond to direct and cross-

examination questions, and was observable by the members of the jury. Appellant
Richland County, Case No. 10 CA 69                                                        7


urges that Cheers was prevented from tying his testimony in with the prison security

video of the incident. However, the video in question (see footnote 1, infra) was

actually introduced by the State to buttress the testimony of the corrections officers, as

further analyzed infra, and we are unpersuaded that its non-utilization by Cheers

because of the logistics of his closed-circuit testimony was more than harmless error.

      {¶14} Appellant’s First Assignment of Error is overruled.

                                             II.

      {¶15} In his Second Assignment of Error, appellant argues the trial court erred in

denying his motion for a new trial. We disagree.

      {¶16} Crim.R. 33 controls new trial motions in criminal cases. The rule states in

pertinent part:

      {¶17} “(A) Grounds. A new trial may be granted on motion of the defendant for

any of the following causes affecting materially his substantial rights: (1) Irregularity in

the proceedings, or in any order or ruling of the court, or abuse of discretion by the

court, because of which the defendant was prevented from having a fair trial. ***.”

      {¶18} Motions for new trial are addressed to the sound discretion of the trial

court, and an appellate court will generally not reverse unless it finds the trial court

abused its discretion. See State v. Schiebel (1990) 55 Ohio St.3d 71, 76, 564 N.E.2d

54. The term abuse of discretion implies the court's attitude is unreasonable, arbitrary

or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144.

      {¶19} For reasons similar to our discussion regarding appellant’s first assigned

error, we are unable to conclude the trial court abused its discretion in denying
Richland County, Case No. 10 CA 69                                                        8


    appellant’s motion for a new trial. Appellant’s Second Assignment of Error is therefore

    overruled.

                                              III.

          {¶20} In his Third Assignment of Error, appellant maintains his felonious assault

    convictions are against the manifest weight of the evidence. We disagree.

          {¶21} Our standard of review on a manifest weight challenge to a criminal

    conviction is stated as follows: "The court, reviewing the entire record, weighs the

    evidence and all reasonable inferences, considers the credibility of witnesses and

    determines whether in resolving conflicts in the evidence, the jury 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. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d

    717. See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The

    granting of a new trial "should be exercised only in the exceptional case in which the

    evidence weighs heavily against the conviction." Martin at 175, 485 N.E.2d 717.

          {¶22} The bulk of the State’s evidence in the case sub judice consisted of a

    prison surveillance video, and the testimony of the corrections officers involved in the

    incident of September 2, 2008.1 Defense counsel utilized closed-circuit testimony of

    Inmate Cheers, as discussed supra. We will herein review the testimony of Cheers and

    each officer.




1
   The video system utilized in this instance was a scanning type for showing random
images of the prison area in question. Furthermore, we note the transcript contains the
additional testimony of Correction Officer Kevin Davis and a staff nurse who responded
to the injuries; in the interest of judicial economy, we will not restate their testimony.
Richland County, Case No. 10 CA 69                                                    9


                             Corrections Officer Prichard

      {¶23} Officer Prichard testified that he is a five-year veteran of the corrections

service of the prison. On September 2, 2008, he was engaged in interviewing inmates

in the segregation unit when the captain on duty directed him to report to the Local

Control Unit because of Cheers’ urine-throwing incident. He recalled that Lieutenant

Page made the decision to conduct a shakedown of the cell. Appellant and Cheers told

the officers that they preferred to be cuffed from the front, rather than from the back,

and the decision was made to cuff the two inmates accordingly and remove them from

the cell. Prichard and Officer Jacobs then proceeded with the search, while Lieutenant

Page stayed with the two inmates outside the cell. Suddenly, Officer Jacobs ran back

outside the cell, where Page had been forced to the ground by appellant and Cheers.

Prichard followed Jacobs into the area and grabbed appellant’s arm and one of the

handcuffs, which had slipped off one of appellant’s wrists. Appellant went on the

offensive and threw Prichard down to the ground, putting his knee into the officer’s

face. After Officer Jacobs intervened and pulled appellant off, Prichard realized his

ankle was not moving correctly.

                             Corrections Lieutenant Page

      {¶24} According to Lieutenant Page, after he responded to the disturbance call

and Cheers and appellant had been cuffed, he was “rushed” by the two inmates. He

started “tussling” with Cheers, while Prichard struggled with appellant. While Officer

Jacobs tried to help re-cuff Cheers, Prichard started falling toward the ground as

appellant tried to punch him. Cheers, Page, and Jacobs also went toward the ground.

Cheers was finally re-cuffed and placed back in the cell; Page and Jacobs then went to
Richland County, Case No. 10 CA 69                                                      10


help Prichard, who was being punched on the ground by appellant. Page saw that

Prichard’s foot was “mangled.”

                               Corrections Officer Jacobs

      {¶25} Officer Jacobs told the jury he entered the cell with Officer Prichard to start

the shakedown when he heard Lieutenant Page say something in the hallway. He saw

appellant and Cheers pushing Page. He intervened and was ultimately punched in the

jaw by Cheers; in the meantime, Prichard was yelling to Jacobs for assistance. He

recalled that a “pile” consisting of himself, Page, and Cheers went to the ground. After

Cheers was subdued, Jacobs saw Prichard up against the wall, with his left foot

looking twisted.

                                     Inmate Cheers

      {¶26} Cheers, who was in Mansfield Correctional on a twenty-one year to life

term for murder, testified via live video as a defense witness that he threw the urine at

Officer Davis because of an alleged racial remark. Cheers claimed that appellant was

in his bunk at that time, and that after the two inmates were taken outside their cell, the

officers “slammed” appellant to the floor for no reason. Cheers maintained that

appellant was quickly forced back into the cell, while Cheers went on struggling by

himself with Prichard, Page, and Jacobs.

                                  Analysis-Conclusion

      {¶27} Appellant points out certain variances in the testimony, such as Officer

Jacobs’ indication that he did not see appellant strike Prichard, and Page’s recollection

that Cheers alone initiated the physical contact with Page. The record thus may reveal

a limited number of such inconsistencies in the officers’ versions of events, in addition
Richland County, Case No. 10 CA 69                                                    11


to Cheers’ varying version of the altercation; however, as the State notes, the officers’

inconsistencies can be reasonably attributed to the highly dangerous situation erupting

in the cell area at the time. Upon review, we find the jury did not clearly lose its way

and create a manifest miscarriage of justice requiring that appellant's conviction be

reversed and a new trial ordered.

      {¶28} Appellant’s Third Assignment of Error is overruled.

      {¶29} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Richland County, Ohio, is hereby affirmed.


By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.



                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                               JUDGES
JWW/d 0425
Richland County, Case No. 10 CA 69                                             12


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
MARVEL JONES                              :
                                          :
       Defendant-Appellant                :         Case No. 10 CA 69




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
