[Cite as State v. Humphries, 2020-Ohio-1116.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                Plaintiff-Appellee,              :
                                                          No. 108459
                v.                               :

DAVID HUMPHRIES,                                 :

                Defendant-Appellant.             :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: March 26, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-18-631403-A


                                           Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Jonathan Block, Assistant Prosecuting
                Attorney, for appellee.

                The Law Offices of Eric L. Foster, L.L.C., and Eric L.
                Foster, for appellant.


MARY EILEEN KILBANE, J.:

                  Defendant-appellant David Humphries (“Humphries”) appeals his

conviction arguing that his conviction was against the manifest weight of the

evidence and that the trial court erred in limiting cross-examination. For the
reasons that follow, we affirm Humphries’s conviction and find that the trial court

did not err.

                                       Facts

               On August 10, 2018, Humphries was indicted with: one count of

aggravated robbery, a first-degree felony, with one-year and three-year firearm

specifications, a notice of prior conviction specification, and a repeat violent

offender specification; one count of robbery, a second-degree felony, with one-year

and three-year firearm specifications, a notice of prior conviction specification, and

a repeat violent offender specification; one count of abduction, a third-degree

felony; one count of gross sexual imposition, a fourth-degree felony; and one count

of petty theft, a first-degree misdemeanor.

               Humphries pled not guilty to all the charges, and the case proceeded

to a bench trial. Humphries’s appeal focuses on the testimony of the victim in this

case (“R.W.”), a woman whom the state described as having some memory and

mental health difficulties.

               According to the testimony of R.W., the robbery occurred on May 18,

2018. R.W. had spent the day cleaning her son’s apartment before going to the ATM

to withdraw cash for her son. He was incarcerated in the Cuyahoga County Jail at

the time, and had asked his mother to put money “on his books.” R.W. withdrew

$600 from the ATM and planned on depositing the money the next day. Upon

returning home she noticed an individual — a person she later identified as

Humphries — wearing all black in the parking lot behind her apartment. Humphries
approached her as she was parking, pointed a gun at her, and demanded she get in

the back seat of her car. Humphries ordered her to take off her skirt, lifted her shirt,

and then order groped her chest looking for the money. He finally found the money

and fled. R.W. attempted to chase him down in her car but he escaped.

               After returning to her apartment, R.W. took some time to compose

herself before asking neighbors for help and notifying police. On March 28, 2018,

R.W. was asked by police to look at a photo lineup. She identified Humphries as the

individual who had robbed her, identifying him in part by the tattoos on his face.

               At trial, R.W. testified and the state offered video evidence that

verified details of R.W.’s account. Multiple times during her direct examination, the

court paused questioning to ask R.W. to calm down. R.W. also testified that she had

memory problems and took medication for her mental health.

               During cross-examination, R.W. continued to act distressed and the

court often had to halt questioning to ask defense counsel to wait to give R.W. time

to calm down. The state also presented evidence from four other witnesses, all police

officers, but R.W. was the only eyewitness to the crime.

               At the conclusion of the bench trial, the judge found Humphries guilty

of aggravated robbery, robbery, abduction and petty theft; Humphries was found

not guilty of gross sexual imposition. For purposes of sentencing, the parties agreed

that the counts for aggravated robbery, robbery, and petty theft merged. The trial

court sentenced Humphries to six years of incarceration with five years of

postrelease control.
               Humphries presents two assignments of error for our review.

                                Assignment of Error I
      The trial court erred in finding David Humphries guilty of Counts one,
      two, three, and four as they are against the manifest weight of the
      evidence.

                               Assignment of Error II
      The trial court violated David Humphries’s Sixth Amendment right to
      confront witnesses when it refused to order [R.W.] to answer questions
      on cross-examination.

               We will review them in turn.

                                  Manifest Weight

               As the sole eyewitness and victim of the alleged crime R.W.’s

testimony was essential to proving Humphries’s guilt; he argues that she was not

credible and that the weight of the evidence is against his conviction. We disagree.

               In our manifest weight review of a bench trial verdict, we recognize

that the trial court is serving as the factfinder, and not a jury:

      Accordingly, to warrant reversal from a bench trial under a manifest
      weight of the evidence claim, this 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
      evidence, the trial court clearly lost its way and created such a manifest
      miscarriage of justice that the judgment must be reversed and a new
      trial ordered.

State v. Bell, 8th Dist. Cuyahoga No. 106842, 2019-Ohio-340, ¶ 41 citing State v.

Strickland, 183 Ohio App.3d 602, 2009-Ohio-3906, 918 N.E.2d 170, ¶ 25 (8th Dist.).

See also State v. Kessler, 8th Dist. Cuyahoga No. 93340, 2010-Ohio-2094, ¶ 13.

               A conviction should be reversed as against the manifest weight of the

evidence only in the most “exceptional case in which the evidence weighs heavily
against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997). In contrast to a challenge based on sufficiency of the evidence, a

manifest weight challenge attacks the credibility of the evidence presented and

questions whether the state met its burden of persuasion at trial. State v. Whitsett,

8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing Thompkins, 78 Ohio

St.3d at 387, 678 N.E.2d 541; State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-

Ohio-3598, ¶ 13. We find that the state met its burden here.

              Admittedly, there were several instances where R.W. was inconsistent

in her testimony. R.W. was combative throughout her cross-examination with

defense counsel, often contradicting herself on details from her direct examination.

For example, on direct, she mentioned that she had been cleaning her son’s

apartment the day of the incident, but on cross-examination insisted that she had

been cleaning her own apartment. She could not seem to remember whether she

went to her apartment immediately after the incident or whether she first asked

neighbors for help. However, her description of the robbery itself was consistent.

We find her to be a credible witness.

              Based on our review of the entire record in this case, weighing the

strength and credibility of the evidence presented and the inferences to be

reasonably drawn therefrom, we cannot say that the conviction is against the

manifest weight of the evidence. There is clear, consistent, and credible evidence

that Humphries robbed R.W.

              The first assignment of error is without merit.
                               Cross-Examination

               In his second assignment of error, Humphries contends that the trial

court did not permit meaningful cross-examination denying him his right to

confrontation under the Ohio and United States Constitutions.            Humphries’s

argument is that his attorney was prevented by the trial court from effectively

demonstrating R.W.’s flawed memory. We disagree.

               The Sixth Amendment to the U.S. Constitution gives a defendant the

right “to be confronted with the witnesses against him.” See also Ohio Constitution,

Article I, Section 108 (“the party accused shall be allowed * * * to meet the witnesses

face to face”). But this protection “guarantees only ‘an opportunity for effective

cross-examination.’” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954

N.E.2d 596, ¶ 83, quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88

L.Ed.2d 15 (1985). Trial courts have “wide latitude to impose reasonable limits on

such cross-examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or interrogation that is

repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679,

106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

               Similarly, Evid.R. 611(B) requires trial courts to permit “[c]ross-

examination on all relevant matters and matters affecting credibility.” However,

under Evid.R. 611(A), a trial court “shall exercise reasonable control over the mode

and order of interrogating witnesses and presenting evidence.”
              When a defendant challenges a trial court’s limitation on cross-

examination on appeal, the standard of review turns on the nature of the limitation.

“Limitations that deny a defendant ‘the opportunity to establish that the witnesses

may have had a motive to lie’ infringe on core Sixth Amendment rights” and are

reviewed de novo. State v. Gonzales, 151 Ohio App.3d 160, 2002-Ohio-4937, 783

N.E.2d 903, ¶ 45 (1st Dist.), quoting United States v. Nelson, 39 F.3d 705, 708 (7th

Cir.1994). Here, to establish a confrontation violation, Humphries must show that

he was “prohibited from engaging in otherwise appropriate cross-examination.”

Van Arsdall at 680. He cannot.

              Even during direct R.W. was a challenging witness to examine. The

record indicates she was distressed throughout the proceeding, allegedly because

she was facing the man who robbed her. Her distress was only amplified by cross-

examination, which made her exchanges with defense counsel tense affairs. Despite

that, it is clear from the record that defense counsel was able to ask relevant

questions, highlight R.W.’s memory problems, and effectively try Humphries’s case.

Humphries argues, however, that his rights were infringed as a result of the trial

court supposedly shielding the witness from distressing questions. An examination

of the record does not support his argument.

              Humphries offers two instances where the trial court stepped in and

ordered defense counsel to move on. In the first instance, defense counsel was

pressing R.W. on why her son was in jail; R.W., protesting that she did not want to
discuss her son’s business, would not answer.          The trial court, seeming to

understand the point counsel was making, asked counsel to move on.

              In the second instance, defense counsel asked R.W. why it had taken

her a month to try and put money in her son’s jailhouse account. R.W. protested

that it had not taken her that long and began to explain; defense counsel then cut

her off and asked for the court’s assistance. After some back and forth about

relevance, which included objections from the state, the court explained that:

      It is relevant, because we’re talking about that that was the premise that
      you set up. Now her answer is her answer. Now, you have to ask the
      question. You understand – I mean, you put on the record that she has
      mental issues. Her answer is her answer.

              Counsel, seemingly unsatisfied with the answer R.W. had given,

continued to ask for the court’s assistance; the court asked defense counsel to move

on. Humphries contends that the trial court should have ordered R.W. to testify as

counsel was attempting to test R.W.’s memory. However, counsel had already

succeeded in making clear to the judge that the witness had memory problems.

              Neither exchange cited by Humphries was relevant to the elements of

any charges. Further, in the second exchange, it was actually the defense counsel

who cut off the witness before she could answer. There is nothing in this record that

shows defense counsel was “prohibited from engaging in otherwise appropriate

cross-examination.” Van Arsdall, 475 U.S. 679-680, 106 S.Ct. 1431, 89 L.Ed.2d 674

(1986).
               It must be noted that this was a bench trial with an experienced and

capable trial court; the court was clear that the witness was credible and extremely

consistent in describing the robbery. There was sufficient evidence presented and

the court did not need additional information on the background of the witness in

order to make the correct decision. This assignment of error lacks merit.

               For the foregoing reasons, we affirm Humphries’s conviction and the

decision of the trial court as to the extent of his cross-examination.

      It is ordered that appellee recover from appellant 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

common pleas court to carry this judgment into execution.            The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MARY EILEEN KILBANE, JUDGE

EILEEN T. GALLAGHER, A.J., and
SEAN C. GALLAGHER, J., CONCUR
