[Cite as State v. Pryor, 2013-Ohio-5693.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                      :   Hon. William B. Hoffman, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case No. 2013CA00016
                                               :
MARCUS ISIAH PRYOR                             :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, case no. 2012CR1233



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            December 16, 2013




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

JOHN D. FERRERO, JR.                               KRISTINE W. BEARD
STARK CO. PROSECUTOR                               4450 Belden Village St. NW
RONALD MARK CALDWELL                               Suite 703
110 Central Plaza S., Suite 510                    Canton, OH 44718
Canton, OH 44702-1413
Stark County, Case No. 2013CA00016                                                        2



Delaney, J.

       {¶1} Appellant Marcus Isiah Pryor appeals from the December 24, 2012

judgment entry of conviction and sentence entered in the Stark County Court of

Common Pleas. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} Appellant and M.E. have been in a relationship off and on for three years

and have a child together who was two years old at the time of these events. On July

23, 2012, appellant and M.E. had been “talking” and had texted each other throughout

the day. M.E. saw appellant earlier but had no plans that evening. She made a pizza,

put her child to bed, and fell asleep on the couch around 9:00 p.m. Around midnight

M.E. woke up because her daughter was awake and brought her downstairs to join her

on the couch. Both fell asleep.

       {¶3} M.E. was next awakened by what she described as a “crack on the step.”

By the light of the stairwell she could see appellant inside the house, and she asked him

what he was doing there. Appellant reportedly said, “I just want to talk to you.” M.E.

asked him how he got in, and he said he made a key. M.E. asked him to leave.

Appellant told her he put their daughter to sleep in her bed upstairs.

       {¶4} Appellant and M.E. began to argue about their relationship; M.E. testified

appellant became angry and showed her a black and silver handgun. He pointed the

gun at her and said she was going to “be with [him.]” Appellant looked at M.E.’s cell

phone stating “If I look at this phone and I find something, it’s over.” M.E. told him there

was nothing on her phone but appellant kept pointing the gun at her. Then he told her

to take off her clothes and she complied. Appellant ordered M.E. to submit to oral and
Stark County, Case No. 2013CA00016                                                     3


vaginal sexual intercourse, at one point with the gun to her head.       M.E. complied

because he said he was going to kill her.

      {¶5} Appellant does not have a car but M.E.’s car keys were on the dining room

table and appellant was looking for them. He told her, “I’m going to put you in the

trunk.” M.E. thought he intended to kill her. He told her to walk out the front door and

get in the car. She ran out the front door, followed by appellant, and they “tussled” for

several minutes in the front yard. M.E. tried to get away from appellant and he tried to

pull her back into the house. Finally M.E. ran up onto the porch of a neighboring duplex

and banged on the door.

      {¶6} The neighbor woman, who knows M.E. by sight but not well, eventually

came to the door. She heard M.E. yelling “Help me, help me, it’s [ ]” and banging on the

door. M.E. was dressed in shorts and a tank top. She was hysterical and told the

neighbor “He’s trying to kill me.” She also asked the neighbor to “look at him” to see

that appellant had a gun. The neighbor grabbed M.E. and pulled her into the house.

She briefly saw a person standing nearby outside, walking toward them, but she did not

look to see whether he had a gun or not before she closed her door and locked it. The

neighbor proceeded to call 911 as M.E. cried and repeated “my baby.” Then someone

started banging on the neighbor’s door and M.E. ran and hid. The neighbor’s husband

tried to comfort M.E. as the neighbor spoke on the phone with the 911 operator; she

had to ask M.E. for information to answer the operator’s questions.

      {¶7} The neighbor thought it took the police “a long time” to arrive. Once the

police arrived, the neighbor watched to make sure they accompanied M.E. back inside

her home, and then closed her door. She briefly spoke to the police again when they
Stark County, Case No. 2013CA00016                                                        4


asked her if she was the one who called 911.          She said she had, and asked if

everything was all right. The police told her they were not able to locate the suspect.

       {¶8} M.E. described what happened to officers who arrived on the scene. She

also called her mother and brother, who came to her home to take her to the hospital.

The police collected some evidence from the house including a cell phone later

identified as appellant’s. M.E.’s own cell phone was missing. Her mother later called it

and appellant answered.

       {¶9} M.E. was taken to the hospital by family members and submitted to a

sexual assault examination. The SANE nurse testified that in addition to gathering a

sexual assault evidence kit from M.E., she also photographed some apparent injuries

she observed: bruising on M.E.’s right shoulder and abrasions on both sides of her

neck. The nurse’s physical findings were consistent with the history related by M.E.

       {¶10} Swabs from the sexual assault evidence kit were examined for D.N.A.

evidence. Seminal fluid was located on vaginal, anal, and thigh swabs taken from M.E.

Appellant was determined to be the source of the D.N.A. on the swabs. Fingernail

scrapings from M.E. were also examined but no blood or foreign tissue was detected.

       {¶11} Appellant did not testify or present evidence on his own behalf at trial but

argued throughout that the sexual contact with M.E. was consensual.

       {¶12} Appellant was charged by indictment with one count of aggravated

burglary with a firearm specification, one count of kidnapping, and one count of rape

with a firearm specification. (Appellant was also charged with misdemeanor counts of

domestic violence and intimidation, to which he entered pleas of guilty outside the

presence of the jury.) Appellant entered pleas of not guilty to the felony charges and
Stark County, Case No. 2013CA00016                                                        5


the case proceeded to trial by jury. Appellant moved for judgments of acquittal pursuant

to Crim.R. 29(A) at the close of appellee’s evidence and at the close of all of the

evidence; the motions were overruled.        Appellant was found guilty of aggravated

burglary, kidnapping, and rape but not guilty of the firearm specifications. The trial court

sentenced appellant to an aggregate prison term of 12 years as follows: 9 years on

Count II, rape, consecutive to 3 years on Count I, aggravated burglary, concurrent with

3 years on Count III, kidnapping. Appellant was also sentenced to two concurrent six-

month terms on the misdemeanor counts of domestic violence and intimidation.

Appellant was determined to be a Tier I sex offender.

       {¶13} Appellant now appeals from the judgment entry of his convictions and

sentences.

       {¶14} Appellant raises five assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶15} “I.   APPELLANT’S CONVICTIONS FOR AGGRAVATED BURGLARY,

KIDNAPPING, AND RAPE ARE AGAINST THE SUFFICIENCY AND MANIFEST

WEIGHT OF THE EVIDENCE.”

       {¶16} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING

THE    INTRODUCTION         OF    JAIL   HOUSE      TAPE     RECORDED        TELEPHONE

CONVERSATIONS.”

       {¶17} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE

911 RECORDING.”
Stark County, Case No. 2013CA00016                                                        6

       {¶18} “IV. THE CUMMULATIVE (sic) ERRORS COMMITTED DURING THE

TRIAL DEPRIVED THE APPELLANT OF A FAIR TRIAL AND REQUIRE A REVERSAL

OF APPELLANT’S CONVICTION AND SENTENCE.”

       {¶19} “V. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT’S

MOTION FOR A MISTRIAL.”

                                        ANALYSIS

                                             I.

       {¶20} Appellant asserts in his first assignment of error that his convictions are

against the manifest weight and sufficiency of the evidence because they are based

primarily upon the uncorroborated testimony of M.E. We disagree.

       {¶21} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio

St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which

the Ohio Supreme Court held, “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 the crime proven beyond

a reasonable doubt.”
Stark County, Case No. 2013CA00016                                                     7


      {¶22} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

      {¶23} Appellant was found guilty of one count of rape pursuant to R.C.

2907.02(A)(2), which states, “No person shall engage in sexual conduct with another

when the offender purposely compels the other person to submit by force or threat of

force.” He was also found guilty of one count of aggravated burglary pursuant to R.C.

2911.11(A)(1), which states:

             No person, by force, stealth, or deception, shall trespass in an

             occupied structure or in a separately secured or separately

             occupied portion of an occupied structure, when another person

             other than an accomplice of the offender is present, with purpose to

             commit in the structure or in the separately secured or separately

             occupied portion of the structure any criminal offense, if any of the

             following apply: The offender inflicts, or attempts or threatens to

             inflict physical harm on another[.]
Stark County, Case No. 2013CA00016                                                       8


       {¶24} Finally, appellant was found guilty of one count of kidnapping pursuant to

R.C. 2905.01(A)(4),which states, “No person, by force, threat, or deception, or, in the

case of a victim under the age of thirteen or mentally incompetent, by any means, shall

remove another from the place where the other person is found or restrain the liberty of

the other person, for any of the following purposes: To engage in sexual activity, as

defined in section 2907.01 of the Revised Code, with the victim against the victim's will.”

“Sexual activity” includes the forced vaginal and oral intercourse alleged in this case

pursuant to R.C. 2907.01(A) and (C).

       {¶25} Appellant’s challenges to the manifest weight and sufficiency of the

evidence are based upon his repeated assertion the testimony of M.E. was “inconsistent

and unreliable.”      We have reviewed the entire record and disagree with this

characterization; moreover, it is well established determining the credibility of witnesses

in within the province of the trier of fact. See State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus.

       {¶26} M.E.’s testimony about finding appellant in her home, unwelcome and

uninvited, the ensuing angry confrontation, the forced sexual intercourse, and the

“tussle” in the front yard are buttressed by the testimony of the neighbor, who

discovered M.E. visibly hysterical banging on her front door, yelling that appellant was

trying to kill her.   The neighbor observed M.E.’s apparent fear: when M.E. thought

appellant was banging on the neighbor’s door, she hid. The SANE nurse corroborated

evidence of visible injury including bruising to her right shoulder and abrasions to both

sides of her neck. Sexual contact between M.E. and appellant was verified by the
Stark County, Case No. 2013CA00016                                                          9


sexual assault examination and resulting D.N.A. test; despite appellant’s assertions,

there is no evidence in the record the sexual contact was consensual.

       {¶27} We conclude appellant’s convictions are supported by sufficient evidence

and are not against the manifest weight of the evidence. Appellant’s first assignment of

error is overruled.

                                                 II.

       {¶28} In his second assignment of error, appellant contends the trial court

abused its discretion in admitting portions of recorded jail phone calls between appellant

and M.E. We disagree.

       {¶29} Before trial, appellant asked to plead to the misdemeanor counts of

domestic violence and intimidation, arguing pleas to these counts would render parts of

appellee’s evidence irrelevant, to wit, appellant’s telephone calls from jail to M.E. in

which he apologizes to the victim repeatedly. Appellee objected, arguing despite any

pleas to the misdemeanors, the jail calls were still highly relevant to the felony charges

of rape, kidnapping, and aggravated burglary.          The trial court initially determined it

would listen to the recordings outside the presence of the jury and determine their

admissibility in the context of the evidence presented at trial.

       {¶30} Later, prior to M.E.’s testimony, the trial court listened to the calls.

Appellant argued they should be excluded because they are prejudicial and it is not

clear why appellant is apologizing to M.E.; the apology might relate to other unrelated

domestic violence incidents. The trial court disagreed and admitted the calls, especially

because appellee edited out references to other bad acts by appellant. The trial court

noted appellant was free to cross-examine M.E. about the history between the two to
Stark County, Case No. 2013CA00016                                                       10


clear up any confusion over the conversations on the recordings. Overall, the trial court

found the probative nature of the calls outweighed any prejudice.

       {¶31} We have reviewed the recorded calls and find the trial court did not abuse

its discretion in admitting them. We note appellant clearly makes reference to the

“[expletive]-up things” he did to M.E., states that he would never want the same things

to happen to their daughter, and says he hasn’t told anyone at the jail “what charges are

on” him because he is ashamed of what he’s done. The admission or exclusion of

evidence is a matter left to the sound discretion of the trial court. Absent an abuse of

discretion resulting in material prejudice to the defendant, a reviewing court should be

reluctant to interfere with a trial court's decision in this regard. State v. Hymore, 9 Ohio

St.2d 122, 128, 224 N.E.2d 126 (1967). To be admissible, a tape recording must be

authentic, accurate, and trustworthy. State v. Were, 118 Ohio St.3d 448, 2008–Ohio–

2762, 890 N.E.2d 263, ¶ 109, citing State v. Rogan, 94 Ohio App.3d 140, 148, 640

N.E.2d 535 (2nd Dist.1994).

       {¶32} Relevant evidence is “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Evid.R.401.

Generally, all relevant evidence is admissible, and irrelevant evidence is inadmissible.

Evid.R. 402. Appellant’s statements in the jail calls are thus relevant. The appellant’s

out-of-court statements, offered against appellant by appellee, are admissible pursuant

to Evid.R. 801(D)(2)(a) as a statement against interest. State v. Johnson, 12th Dist.

Butler No. CA2002-04-100, 2003-Ohio-2540, at ¶ 21. Appellant does not contest the

authenticity of the jail calls; thus, the statements are admissible.
Stark County, Case No. 2013CA00016                                                        11


       {¶33} Appellant argues, though, the trial court erred in failing to exclude the

statements pursuant to Evid.R. 403(A), which provides that otherwise relevant evidence

is inadmissible “if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.” A trial court has broad

discretion to determine whether relevant evidence must be excluded in accordance with

Evid.R. 403(A) because “the exclusion of relevant evidence under Evid.R. 403(A) is

even more of a judgment call than determining whether the evidence has logical

relevance in the first place.” State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126,

767 N.E.2d 216, at ¶ 40.

       {¶34} Admission of portions of the jail calls was not an abuse of the trial court’s

discretion. We agree the evidence is relevant because the jury could infer appellant’s

apologies to M.E. on the tapes indicate consciousness of guilt. “[C]ourts in Ohio * * *

have affirmed that apologies constitute a “consciousness of guilt.” State v. Tvaroch,

11th Dist. Trumbull No. 2012-T-0008, 2012-Ohio-5836, 982 N.E.2d 751, appeal not

allowed, 134 Ohio St.3d 1508, 2013-Ohio-1123, 984 N.E.2d 1102, citing State v.

Tichaona, 11th Dist. Portage No. 2010–P–0090, 2011-Ohio-6001, ¶ 42; State v. Sims,

12th Dist. Butler No. 2007–11–300, 2009-Ohio-550, ¶ 24; People v. Grathler, 368

Ill.App.3d 802, 808, 306 Ill.Dec. 879, 858 N.E.2d 937 (5th Dist.2006); Commonwealth v.

Martin, 59 Mass App.Ct. 1109, 797 N.E.2d 947 (2003).                  Moreover, appellant

acknowledges pending criminal charges in reference to M.E. and asks her whether

she’s received his letters.

       {¶35} All relevant evidence is of course “prejudicial,” but the record reveals the

trial court properly admitted the portions of these jail calls after careful consideration of
Stark County, Case No. 2013CA00016                                                     12

their admissibility. See, State v. Sowell, 10th Dist. Franklin No. 06AP-443, 2008-Ohio-

3285, ¶ 81-82, appeal not allowed, 120 Ohio St.3d 1421, 2008-Ohio-6166, 897 N.E.2d

655.

       {¶36} Appellant’s second assignment of error is overruled.

                                               III.

       {¶37} In his third assignment of error, appellant argues the trial court abused its

discretion in allowing appellee to play the recording of the neighbor’s 911 call for the

jury. We disagree.

       {¶38} The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987),

paragraph two of the syllabus. We review the trial court's decision with an abuse-of-

discretion standard. See State v. Finnerty, 45 Ohio St.3d 104, 107, 543 N.E.2d 1233

(1989); State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). A statement

which is otherwise considered hearsay may be admissible as an excited utterance when

the following four criteria are met: “(1) an event startling enough to produce a nervous

excitement in the declarant, (2) the statement must have been made while still under

the stress of excitement caused by the event, (3) the statement must relate to the

startling event, and (4) the declarant must have personally observed the startling event.”

In re C.C., 8th Dist. Cuyahoga Nos. 88320, 88321, 2007-Ohio-2226, ¶ 50, citing State v.

Brown, 112 Ohio App.3d 583, 601, 679 N.E.2d 361 (12th Dist.1996).

       {¶39} The trial court properly concluded the statements on the 911 call were

excited utterances. Appellant objects to M.E.’s statements that could be overheard on

the call, although the neighbor spoke with the operator and related what M.E. told her.
Stark County, Case No. 2013CA00016                                                     13


The evidence of M.E.’s emotional, “hysterical” state when she interacted with the

neighbor is sufficient to find the statements on the 911 call admissible as excited

utterances. We have reviewed the recording of the 911 call and M.E. is clearly

distinguishable over the neighbor’s words, crying hysterically, telling the neighbor word

for word what transpired as the neighbor relates the information to the operator.

       {¶40} Appellant’s third assignment of error is overruled.

                                               IV.

       {¶41} In his fourth assignment of error, appellant argues he was deprived of a

fair trial by cumulative errors committed throughout his trial. We disagree.

       {¶42} In State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995), the Ohio

Supreme Court held pursuant to the cumulative error doctrine “a conviction will be

reversed where the cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of numerous instances of trial court

error does not individually constitute cause for reversal.” With respect to appellant’s

arguments that we have already addressed supra (admission of recordings of the jail

and 911 calls), we do not find multiple instances of harmless error triggering the

cumulative error doctrine. State v. Scott, 5th Dist. Richland No.11CA80, 2012-Ohio-

3482, ¶ 75-76, appeal not allowed, 133 Ohio St.3d 1491, 2012-Ohio-5459, 978 N.E.2d

910.

       {¶43} Appellant further raises three additional issues under this assignment of

error: opinion testimony by M.E.’s mother that appellant raped her daughter; the

responding police officer’s hearsay statement about what M.E. told him; and a

detective’s statement that an unrelated warrant for appellant’s arrest existed at the time
Stark County, Case No. 2013CA00016                                                      14


of the investigation. Because appellant did not separately assign these issues as error

or provide any supporting authority for his contentions, we reject them pursuant to

App.R. 12(A)(2) and App.R. 16(A)(7). State v. Blankenship, 9th Dist. Summit No. 18871,

unreported, 1998 WL 852632, *11 (Dec 09, 1998), appeal not allowed, 85 Ohio St.3d

1443, 708 N.E.2d 209 (1999).

       {¶44} Appellant’s fourth assignment of error is overruled.

                                                V.

       {¶45} In his fifth assignment of error, appellant argues the trial court should have

granted his motion for mistrial. We disagree.

       {¶46} In the instant case, appellant moved for mistrial upon Detective Monter’s

spontaneous statement that he learned appellant had a warrant for his arrest when he

was looking for him in connection with the instant investigation.          The trial court

immediately instructed the jury to disregard the statement and overruled appellant’s

motion for mistrial.

       {¶47} It was not unreasonable, arbitrary, or unconscionable for the trial court to

admonish the jury to ignore the stricken testimony rather than grant a mistrial. Curative

instructions are presumed to be an effective way to remedy errors that occur during trial.

State v. Treesh, 90 Ohio St.3d 460, 480, 2001-Ohio-4, 739 N.E.2d 749. In State v.

Ahmed,103 Ohio St.3d 27, 42, 2004-Ohio-4190, 813 N.E.2d 637, the Ohio Supreme

Court noted the following in determining a trial court properly failed to sua sponte

declare a mistrial:

              The determination of whether to grant a mistrial is in the discretion

              of the trial court. State v. Glover (1988), 35 Ohio St.3d 18, 19, 517
Stark County, Case No. 2013CA00016                                                        15

              N.E.2d 900; State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059,

              796 N.E.2d 506, ¶ 42. “[T]he trial judge is in the best position to

              determine whether the situation in [the] courtroom warrants the

              declaration of a mistrial.” Glover, 35 Ohio St.3d at 19, 517 N.E.2d

              900; see, also, State v. Williams (1995), 73 Ohio St.3d 153, 167,

              652 N.E.2d 721. This court will not second-guess such a

              determination absent an abuse of discretion.

       {¶48} We find the same to be true here. “The trial judge in this case gave a

short, authoritative instruction to the jury * * * that sufficed to remedy any possible error

regarding the struck testimony.” State v. Allen, 5th Dist. Delaware No. 2009-CA-13,

2010-Ohio-4644, ¶ 250, appeal not allowed, 127 Ohio St.3d 1535, 2011-Ohio-376, 940

N.E.2d 987. “A trial jury is presumed to follow the instructions given to it by the judge.”

Beckett v. Warren, 124 Ohio St.3d 256, 2010–Ohio–4, 921 N.E.2d 624, ¶ 18.

       {¶49} We find no abuse of discretion in the trial court’s decision not to grant a

mistrial. Appellant’s fifth assignment of error is overruled.

                                      CONCLUSION

       {¶50} Appellant’s five assignments are overruled and the judgment of the Stark

County Court of Common Pleas is affirmed.
Stark County, Case No. 2013CA00016                              16


By: Delaney, J. and

Gwin, P.J.

Hoffman, J., concur.



                                     HON. PATRICIA A. DELANEY




                                     HON. W. SCOTT GWIN



                                     HON. WILLIAM B. HOFFMAN
