[Cite as State v. Tilley, 2012-Ohio-1533.]


                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 96756



                                        STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                         ROY L. TILLEY
                                                      DEFENDANT-APPELLANT




                                     JUDGMENT:
                               REVERSED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-544047


        BEFORE:           Celebrezze, J., Blackmon, A.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                     April 5, 2012
ATTORNEY FOR APPELLANT

Timothy F. Sweeney
Law Office - Timothy Farrell Sweeney
The 820 Building
Suite 430
820 West Superior Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Mary Court Weston
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Defendant-appellant, Roy Tilley, appeals from his convictions for abduction

and kidnapping. After careful review of the record and relevant case law, we reverse and

remand for a new trial.

       {¶2} On November 15, 2010, appellant was named in a four-count indictment that

charged him with kidnapping in violation of R.C. 2905.01(A)(3); felonious assault in

violation of R.C. 2903.11(A)(1); domestic violence in violation of R.C. 2919.25(A), with

a prior conviction and pregnant victim specifications; and domestic violence in violation

of R.C. 2919.25(A), with a pregnant victim specification.

       {¶3} Appellant’s jury trial proceeded on March 3, 2011, with jury selection and

opening statements. On March 4, 2011, the prosecutor informed the trial court that,

following opening statements, she learned that the alleged victim, Brooke Herman, had

previously received two handwritten letters from appellant while he was incarcerated.

The prosecutor advised the court that she intended to use the letters as evidence.

Defense counsel objected based on the state’s failure to timely disclose the letters and

requested that the letters be excluded from the trial entirely. Finding that exclusion of

the letters was inappropriate, the trial court ordered a brief continuance to allow defense

counsel to meet with appellant to inspect the contents of the letters. Following the

continuance, the state proceeded with its case in chief.
       {¶4} Brooke Herman testified that she was appellant’s ex-girlfriend and lived with

him in an apartment in Lakewood, Ohio, from April 2010 to August 2010. While living

with appellant, Brooke became pregnant with his child. Subsequently, she moved to

Ashtabula, Ohio, to live with her father for the remainder of her pregnancy.

       {¶5} Brooke testified that on November 5, 2010, she was visiting appellant at his

mother’s apartment in Cleveland, Ohio.          At that time, she was approximately

eight-and-one-half months pregnant.       While inside the apartment, she and appellant

began to argue about his alleged infidelities. Brooke testified that as the argument

progressed, she attempted to leave the apartment, but appellant prevented her from

leaving by dragging her into the kitchen by the hood of her sweatshirt and stating, “you’re

not leaving me.”

       {¶6} Brooke stated that the argument became more intense when appellant forced

her into his bedroom. She testified, “I grabbed my bags up off the floor again, and he

punched me in the back of my neck and I fell on to the bed;1 and then we were on the

bed, he had his hands around my neck and I couldn’t breathe, really; and then I was

getting up, he punched me in the back.”

       {¶7} Brooke testified that the altercation in the bedroom ended when appellant’s

mother walked into the room. Brooke immediately left the apartment, telling appellant




       1Brooke testified that she believed that the strike to her neck caused her to
lose consciousness for a “split second.”
as she exited that she was going to the police station to report the assault. In response,

appellant stated, “if you go to the police station, Brooke, I’m going to kill you.”

       {¶8} Brooke walked to the Cleveland Police Second District police station and

informed the officers that she was pregnant and was the victim of domestic violence.

She testified that her throat, neck, and back were sore from the altercation. She was

immediately taken to MetroHealth Medical Center, where she was evaluated and placed

in a neck brace. She stated that once she arrived at the hospital, the medical staff decided

to induce her labor to avoid any potential complications.

       {¶9} Brooke testified that she received two letters from appellant while he was

awaiting trial. She identified the letters on the record, 2 and testified that the letters

contained apologies from appellant for the events of November 5, 2010.

       {¶10} Officer Patty Katynski of the Cleveland Police Department testified that she

responded to the radio broadcast relating to the domestic violence assault on Brooke.

She went to MetroHealth Medical Center, where she met Brooke in her hospital room.

Brooke was crying, upset, and complaining of pain. Officer Katynski testified that

Brooke informed her that she had been assaulted and threatened by appellant, the father

of her unborn child. She observed injuries consistent with an assault, including red

marks and swelling near Brooke’s neck and ear, however, she did not take photograph’s

of Brooke’s injuries.      Following her conversation with Brooke, she responded to

appellant’s mother’s residence and arrested appellant.


       2   State’s exhibit Nos. 1 and 2.
       {¶11} Detective John Freehoffer of the Cleveland Police Department testified that

on November 6, 2010, he went to MetroHealth to interview Brooke.              Brooke was

wearing a neck brace and had obvious redness on her neck. He attempted to interview

Brooke and have her complete a written statement. As Brooke was completing her

written statement, she began having painful contractions, which forced Det. Freeholder to

leave her hospital room prematurely. He was unable to take photographs of Brooke’s

injuries.

       {¶12} At the close of the state’s case, appellant made a motion for acquittal on all

counts. As to the felonious assault count, he argued that the state failed to present

evidence that Brooke sustained any “serious physical harm.”                 Upon careful

consideration, the trial court permitted the state to amend the charge to attempted

felonious assault. Subsequently, the trial court denied appellant’s motion for acquittal as

to the kidnapping count, but dismissed one count of domestic violence, without objection.

       {¶13} Brittnie Rusyn testified on behalf of appellant. She stated that she had been

sexually active with appellant while he was in a relationship with Brooke. She stated

that she was in the Hobbs residence at the time the alleged assault occurred.          She

observed Brooke arguing with appellant after his mother told Brooke she needed to go

home. Rusyn testified that appellant “never laid hands on [Brooke]” and if he had

assaulted Brooke, she would have witnessed it. She testified that as Brooke left the

apartment, she stated, “I’m going to the police station and saying you hit me.”
       {¶14} Appellant’s mother, Sonya Hobbs, testified that on November 5, 2010, she

informed appellant that Brooke had to leave her apartment because she did not want

guests there while she was away. She allowed Brooke to use her cell phone to call for a

ride to her father’s home in Ashtabula, Ohio. When she went into appellant’s bedroom

to retrieve her cell phone, she observed appellant and Brooke talking on the bed. She

denied the allegation that appellant was choking Brooke when she walked into his

bedroom. Sonya further testified that appellant did not prevent Brooke from leaving the

apartment and never hit Brooke, as alleged by the state.

       {¶15} At the conclusion of trial, the jury found appellant guilty of abduction, a

lesser included offense of kidnapping; and guilty of domestic violence with prior

conviction and pregnant victim specifications. The jury was unable to reach a verdict on

the amended attempted felonious assault charge, and the trial court declared a mistrial on

that count.3

       {¶16} At appellant’s sentencing hearing, the trial court determined that his

convictions for abduction and domestic violence were allied offenses of similar import,

and thus merged for sentencing purposes. The state elected to pursue sentencing on the

abduction charge, and appellant was sentenced to two years in prison, to run concurrently

to a one-year sentence received in an unrelated case.




       3On December 12, 2011, the trial court granted appellant’s motion to dismiss
Count 2 with prejudice, rendering this appeal a final, appealable order.
       {¶17} Appellant appeals his convictions, raising five assignments of error. 4

Because it is dispositive, we address his second assignment of error first.

                                     Law and Analysis

                               I. Prosecutorial Misconduct

       {¶18}    In his second assignment of error, appellant argues that prosecutorial

misconduct deprived him of his constitutionally guaranteed right to a fair trial.

       {¶19} The test for prosecutorial misconduct is whether the remarks were improper

and, if so, whether they prejudicially affected the substantial rights of the accused. State

v. Smith, 14 Ohio St.3d 13, 470 N.E.2d 883 (1984). A new trial will be ordered where

the outcome of the trial would clearly have been different but for the alleged misconduct.

State v. Brewer, 8th Dist. No. 67782, 1995 WL 371322 (June 22, 1995). When applying

this test, we consider “the effect the misconduct had on the jury in the context of the

entire trial.” State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993). In

analyzing whether an appellant was deprived of a fair trial, an appellate court must

determine whether, absent the improper questions or remarks, the jury still would have

found the appellant guilty. State v. Maurer, 15 Ohio St.3d 239, 266, 473 N.E.2d 768

(1984).

                           A. Witness Tampering Allegations




       4   Appellant’s assignments of error are contained in the appendix to this
opinion.
       {¶20} Initially, appellant contends that the state committed prosecutorial

misconduct when it informed the court that there was a possibility that witness tampering

had occurred during trial.     At the conclusion of the state’s case-in- chief, the state

alleged, outside the presence of the jury, that appellant’s uncle, Walter Hobbs, had

improperly discussed Brooke’s testimony with upcoming defense witnesses.                The

prosecutor stated:

       I want to place on the record during the break I was approached by three
       different people, those being Deputy Lawrence, Detective Freehoffer and
       victim advocate Lynn, who is in the back of the room, who advised me
       there is a gentlemen in the back of the room wearing a gray shirt who is
       reporting the testimony of the witnesses to the upcoming two witnesses.

       {¶21} Based on the allegations, the state moved to exclude the testimony of the

upcoming witnesses as a sanction for violating the trial court’s order requiring separation

of witnesses. The trial court stated that the unproven charge, if true, was “likely a

contempt of court.” The trial court ordered the deputy sheriff to immediately arrest

Walter Hobbs and set a hearing, outside the presence of the jury, to determine whether the

prosecutor’s allegations had merit. The trial court instructed the parties that “the jury is

not being inconvenienced by this,” and if the trial court is convinced that the witness

tampering had occurred, the trial court would then fashion an “instruction that there was a

violation * * * and that the jury may consider that violation when determining the

credibility of the witnesses.” However, the trial court permitted defense witnesses Rusyn

and Sonya Hobbs to testify, stating that the court would revisit appropriate sanctions at

the conclusion of the trial, if necessary.
      {¶22} We are unable to conclude that the state committed prosecutorial

misconduct by informing the court that possible witness tampering had occurred. The

record reflects that the state made the allegations in good faith based on information

received from three separate individuals, Deputy Sheriff Paul Lawrence, Detective John

Freehoffer, and victim advocate Lynn Nugent.       Accordingly, we find no merit to

appellant’s complaint of misconduct where the state’s tampering allegations were

supported by the testimony of Deputy Lawrence, Det. Freehoffer, and Ms. Nugent.

            B. Reference to Witness Tampering in the Presence of the Jury

      {¶23} Next, appellant complains that the state committed prosecutorial misconduct

when it referenced the alleged witness tampering and arrest of Walter Hobbs during the

cross-examination of defense witness, Rusyn. Appellant specifically complains of the

following question posed by the prosecutor during the state’s cross-examination of

defense witness Rusyn:

      PROSECUTOR: Would you agree with the proposition that if you really,
      really wanted to believe something, you might start believing it? Would
      you agree with that?

      RUSYN: Yes.

      PROSECUTOR: Did you know a young man sitting in the back of the
      courtroom today wearing a gray shirt?

      RUSYN: Yes.

      PROSECUTOR: Who is that person?
      RUSYN: Roy’s uncle.

      PROSECUTOR: In fact, did he not at one point come out into the hallway
      and talk to you about the case as it was progressing in here?
       RUSYN: No. He had us put money in the meter for him.

       PROSECUTOR: So would you be surprised to know that three other
       people reported he was talking about testimony?

       DEFENSE COUNSEL: Objection.

       THE COURT: Overruled.

       PROSECUTOR: Would it surprise you?

       DEFENSE COUNSEL: Objection, not in evidence your Honor.

       THE COURT: This is cross-examination.

       PROSECUTOR: Would you be surprised?

       RUSYN: Yeah, I would.

       PROSECUTOR: In fact, were you present in court today when that man
       was arrested for that?

       DEFENSE COUNSEL: Objection, your Honor.

       THE COURT: Well, why don’t we go on to another question.

       {¶24} Evid.R. 611(B) states that cross-examination shall be permitted on all

relevant matters and matters affecting credibility. “The limitation of * * *

cross-examination lies within the sound discretion of the trial court, viewed in relation to

the particular facts of the case. Such exercise of discretion will not be disturbed in the

absence of a clear showing of an abuse of discretion.” State v. Acre, 6 Ohio St.3d 140,

145, 451 N.E.2d 802 (1983). But “[i]t is improper for an attorney, under the pretext of

putting a question to a witness, to put before a jury information that is not supported by

the evidence.”    State v. Smidi, 88 Ohio App.3d 177, 183, 623 N.E.2d 655 (6th
Dist.1993). And “[p]rosecutors must avoid insinuations and assertions calculated to

mislead.” State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).

       {¶25} Upon reviewing the record in its entirety and weighing the effects the

prosecutor’s comments had on the jury, we find the prosecutor’s questions to be

improper. At the time the improper questions were posed, the trial court had yet to

conduct a hearing to weigh the merits of the prosecutor’s allegations of witness

tampering.    Therefore, the prosecutor’s insinuations that Rusyn’s testimony was

influenced by information she received from Walter Hobbs was not supported by the

evidence. Furthermore, the improper questions were made in direct violation of the trial

court’s explicit instructions to the parties that it wished to handle the prosecutor’s

allegations of witness tampering outside the presence of the jury.

       {¶26} Accordingly, we find that the prosecutor’s questions were improper and

wrongfully impugned the credibility of the defense witness offered in support of

appellant’s defense.

       {¶27} We now turn to the critical question of whether this line of questioning

deprived appellant of a fair trial. Here, given that the state’s case hinged primarily on the

testimony of Brooke — evidence that was highly contested at trial by appellant and his

witnesses, Rusyn and Sonya — the jury’s decision came down to a weighing of the

credibility of the witnesses. Thus, this is not a case in which the state’s evidence is so

overwhelming that we could otherwise ignore the improper attack on the credibility of the

witness. Indeed, the core of appellant’s defense rested on the credibility of his witnesses.
 Therefore, the unsupported insinuation that Rusyn’s testimony was improperly

influenced by Walter Hobbs affected appellant’s entire defense, thereby depriving him of

a fair trial. See State v. Davis, 10th Dist. No. 01AP-579, 2002 WL 576077 (Apr. 18,

2002), citing State v. Hunt, 97 Ohio App.3d 372, 375, 646 N.E.2d 889 (10th Dist.1994)

(“where the core of the case rests with the credibility of the defendant and witnesses, the

prosecutor’s conduct was prejudicial and deprived appellant of a fair trial”).

       {¶28} Moreover, any prejudice caused to appellant by the insinuation that Walter

Hobbs tampered with Rusyn’s testimony was further heightened by the trial court’s

failure to sustain defense counsel’s repeated objections and provide a curative instruction.

 See State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993) (trial court’s failure

to sustain an objection and provide curative instruction gives prosecutor’s comment its

approval in the jury’s eyes).

       {¶29} Accordingly, we conclude that appellant’s substantial rights were violated,

thereby depriving him of a fair trial. Appellant’s second assignment of error is sustained.

       {¶30} Having sustained this assignment of error, we find that the remaining

assignments of error are moot.

       {¶31} Judgment reversed and cause remanded for new trial.

       It is ordered that appellant recover of said appellee 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.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, A.J., and
KENNETH A. ROCCO, J., CONCUR
                             APPENDIX

Assignments of error:

I.      The trial court committed prejudicial error by permitting the state to introduce the
letters and statements that were not provided to the defense until after opening statements.

II.    Prosecutorial misconduct deprived Tilley of his constitutionally guaranteed right to
a fair trial, in violation of the Fifth and Fourteenth Amendments to the United States
Constitution and Section 10, Article I of the Ohio Constitution.

III.   Roy Tilley’s convictions in this case are based on evidence that is insufficient as a
matter of law, in violation of Tilley’s rights to due process and a fair trial as guaranteed
by Article I, Sections 10 and 16 of the Ohio Constitution, and the Fourteenth Amendment
to the United States Constitution.

IV. Roy Tilley’s convictions in this case are against the manifest weight of the
evidence.

V.    The trial court erred in denying Tilley’s Rule 29 motions as to the count of
attempted felonious assault because there is an absence of constitutionally sufficient
evidence to convict on that count.
