[Cite as State v. Martin, 2011-Ohio-810.]


                                        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. John W. Wise, J.
-vs-
                                                   Case No. 2010 CA 00085
WILLIAM P. MARTIN

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2009 CR 02043


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         February 22, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO                                KRISTINE W. BEARD
PROSECUTING ATTORNEY                           4580 Stephen Circle NW
RENEE M. WATSON                                Suite 300
ASSISTANT PROSECUTOR                           Canton, Ohio 44718
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2010 CA 00085                                                      2

Wise, J.

       {¶1}   Appellant William P. Martin appeals his conviction and sentence entered

in the Stark County Court of Common Pleas on domestic violence, intimidation of a

crime victim, violation of a protection order and resisting arrest.

       {¶2}   Appellee is State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶3}   Jennifer Parr and Appellant William Martin met in August of 2009, and she

moved in to his Alliance home in November of the same year. (T. at 103-104).

       {¶4}   On December 18, 2009, Parr and Martin got into an argument. Parr stated

that she attempted to end the argument by lying down on the sofa and closing her eyes.

She says that Martin responded by throwing a glass of water in her face. (T. at 105-

106). She stated that she then attempted to leave the house, but Martin blocked the

door and pushed her back into the house. When she went into the bedroom to put on

dry clothes, Martin followed her. She says that she tried to get into the bedroom by

herself and lock Martin out, but he pushed his way into the room. She claims that she

began screaming because she was frightened. Martin put his hand over her mouth and

nose, sat on top of her and screamed in her ear. She states that she became further

frightened because she could not breathe. (T. at 108-109).

       {¶5}   Parr testified that Martin threatened that if he went to jail, it was going to

be for a good reason. He also threatened that Parr had better move out before he got

out of jail, otherwise he would find her and her family. He then told Parr if she called

police, she would be dead before they got there. He then went back downstairs. Fearing
Stark County, Case No. 2010 CA 00085                                                   3


Martin meant what he said, Parr sent a text message to her daughter and asked her to

call police. (T. at 109-110, 132).

       {¶6}    Alliance police officers Dean and Shatzer arrived at the scene and were

met at the back door by Parr. Dean spoke with Parr in the kitchen and Shatzer spoke

with Martin in the living room. While Dean spoke with Parr, he noted she was quiet and

appeared fearful. Several times while he was speaking with her, Martin attempted to

enter the kitchen saying “don’t do this to me, you can’t do this to me.” (T. at 138-140).

After he finished gathering information from Parr, Dean went into the living room and

told Martin he was under arrest for domestic violence. Martin initially appeared to walk

toward the officers to comply with arrest, but then charged toward the kitchen and Parr.

The officers intercepted Martin and took him to the floor. Martin struggled against the

officers. They had to ask him several times to stop resisting before he finally complied

and was handcuffed. The entire time, Martin was screaming at Parr “don’t do this to me,

I can’t go to jail, don’t do this to me.” (T. at 141-142).

       {¶7}    On December 21, 2009, Parr attended Martin’s preliminary hearing. She

claims that during the hearing Martin gave her dirty looks, attempted to make comments

to her and generally made her feel uneasy. The same day, Parr obtained a civil

protection order. (T. at 114-115, 144).

       {¶8}    After the protection order was in place, Martin used his grandfather and a

female acquaintance to relay messages to Parr. He also wrote letters to Parr, sent them

to his grandfather and had his grandfather read them to Parr. (T. at 116-118, 154).

       {¶9}    On January 29, 2010, as a result of the above events, the Stark County

Grand jury indicted Martin on one count each of domestic violence, in violation of R.C.
Stark County, Case No. 2010 CA 00085                                                    4


§2919.25(A), a third degree felony, intimidation of a crime victim, in violation of R.C.

§2921.04(B), a third degree felony, resisting arrest, in violation of R.C. §2921.33(A), a

second degree misdemeanor, and violation of a protection order, in violation of R.C.

§2919.27(A)(1), a first degree misdemeanor.

       {¶10} Martin pled not guilty to the charges and on March 9, 2010, the matter

proceeded to a jury trial. The parties stipulated that Martin had two prior domestic

violence convictions and that the civil protection order was an accurate and valid

protection order.

       {¶11} After hearing all the evidence and deliberating, the jury found Martin guilty

as charged.

       {¶12} On March 10, 2010, Martin was sentenced to an aggregate total of ten

years incarceration. (T. at 148-149, 216-223, 233-236). The sentencing entry was filed

on March 16, 2010.

       {¶13} Appellant now appeals to this Court, assigning the following errors for

review:

                              ASSIGNMENTS OF ERROR

       {¶14} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING THE

INTRODUCTION OF OTHER ACTS EVIDENCE.

       {¶15} “II. THE STATE’S FAILURE TO LIST THE ELEMENTS OF THE

PREDICATE OFFENSE IN THE INDICTMENT FOR THE CRIME OF INTIMIDATION

OF A VICTIM, NAMELY, THE DATE AND LOCATION OF THE ALLEGED CRIME

CONSTITUTING THE PREDICATE OFFENSE, PREVENTS THE ACCUSED FROM
Stark County, Case No. 2010 CA 00085                                                      5


RECEIVING ADEQUATE NOTICE OF THE CHARGE OF INTIMIDATION OF A

VICTIM.

      {¶16} “III.   APPELLANT’S      CONVICTIONS        FOR     DOMESTIC       VIOLENCE,

INTIMIDATION AND RESISTING ARREST ARE AGAINST THE MANIFEST WEIGHT

AND SUFFICIENCY OF THE EVIDENCE.

      {¶17} “IV. APPELLANT’S FIVE YEAR SENTENCE FOR INTIMIDATION IS

GROSSLY DISPROPORTIONATE TO THE CRIME THEREFORE CONSTITUTES

CRUEL AND UNUSUAL PUNISHMENT.”

                                              I.

      {¶18} In his first assignment of error, Appellant claims that the trial court erred in

allowing the introduction of “other acts” evidence”. We disagree.

      {¶19} The admission or exclusion of evidence lies in the trial court's sound

discretion. State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343. In order to find an

abuse of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.

      {¶20} R.C. §2945.59 and Evid.R. 404(B) provide the rules for the admission or

exclusion of other crimes, wrongs, or acts.

      {¶21} R.C. §2945.59 states:

      {¶22} “In any criminal case in which the defendant's motive or intent, the

absence of mistake or accident on his part, or the defendant's scheme, plan, or system

in doing an act is material, any acts of the defendant which tend to show his motive or

intent, the absence of mistake or accident on his part, or the defendant's scheme, plan,
Stark County, Case No. 2010 CA 00085                                                      6


or system in doing the act in question may be proved, whether they are

contemporaneous with or prior or subsequent thereto, notwithstanding that such proof

may show or tend to show the commission of another crime by the defendant.” Id.

       {¶23} Evidence Rule 404(B) states as follows:

       {¶24} “(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.”

       {¶25} Generally, these rules are to be construed against admissibility of the

“other acts” evidence. State v. Burson (1974), 38 Ohio St.2d 157, 158, 311 N.E.2d 526.

       {¶26} The admissibility of other acts evidence is carefully limited because of the

substantial danger that the jury will convict the defendant solely because it assumes

that the defendant has a propensity to commit criminal acts, or deserves punishment

regardless of whether he or she committed the crime charged in the indictment. See

State v. Curry (1975), 43 Ohio St.2d 66, 68. This danger is particularly high when the

other acts are very similar to the charged offense, or of an inflammatory nature. State v.

Schaim, 65 Ohio St.3d 51, 60, 1992-Ohio-31; State v. Miley, Richland App. Nos. 2005-

CA-67, 2006-CA-4670; State v. Clay, 187 Ohio App.3d 633, 2010-Ohio-2720.

       {¶27} Evidence of other acts is admissible if (1) there is substantial proof that the

alleged other acts were committed by the defendant, and (2) the evidence tends to

prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident. State v. Carter (1971), 26 Ohio St.2d 79, 83; State v. Lowe, 69
Stark County, Case No. 2010 CA 00085                                                    7

Ohio St.3d 527, 530, 1994-Ohio-345. (Citing State v. Broom (1988), 40 Ohio St.3d 277,

282-283; Evid.R. 404(B); R.C. 2945.59); Miley, supra; Clay, supra.

       {¶28} Appellant herein is not claiming that Evid.R. 404(B) or R.C. §2945.39

preclude the admission of such evidence herein, but instead argues that the trial court

abused its discretion when it allowed “the State to inquire about the other acts evidence

in general rather than specific terms and in response permitted Parr to testify in general

terms about Martin’s alleged past acts of domestic violence.” (Appellant’s Brief at 6).

Appellant cites State v. Collie (1996), 108 Ohio App.3d 580, for the premise that the

State may use evidence of prior bad acts to prove a belief in the imminence of physical

harm only if it pinpoints specific acts, times and places.

       {¶29} Collie, supra, cited an opinion out of this Court, State v. Bolds (Jan. 19,

1993), Stark App. No. CA-9058, wherein this Court affirmed the trial court’s actions in

disallowing the victim’s testimony that the defendant had “done so many things” to her

in the past as not specific enough and requiring the victim to be more specific as to

time, place and description of events.

       {¶30} We have reviewed the transcript of the victim’s testimony and find that her

description of the “prior acts” and her statements that Appellant had “smacked [her] in

the head twice” and that “he had shoved his fingers down [her] throat so hard that he

scratched the back of [her] throat. He had thrown [her] naked onto the front porch” were

certainly specific as to what actions had occurred. We further find that the jury could

figure out for themselves that such acts had occurred sometime between when the

couple met in August of 2009 and the December, 2009, date of the assault for which

Appellant was on trial.
Stark County, Case No. 2010 CA 00085                                                     8


       {¶31} Further, we find that Appellant opened the door to this line of questioning

during his cross-examination of the victim, when he attempted to elicit testimony from

the victim that Appellant made no direct threats of imminent harm to her during their

telephone conversation. The victim’s testimony on re-direct was relevant to establishing

her state of mind.

       {¶32} Even if we were to determine that such evidence was inadmissible, we do

not find beyond a reasonable doubt that it affected the outcome of the trial. State v.

Williams (1988), 55 Ohio App.3d 212. Based upon the record before us, we conclude

that the error in admitting evidence of the past abuse was harmless beyond a

reasonable doubt. Separate from the other acts testimony, the state offered ample

evidence of Appellant’s guilt.

       {¶33} We first note that Appellant failed to request a jury instruction limiting the

use of other acts evidence, thus waiving all but plain error on appeal. State v. Grant

(1993), 67 Ohio St.3d 465, 472, 620 N.E.2d 50. Plain errors are obvious defects in trial

proceedings that affect “substantial rights,” and “although they were not brought to the

attention of the court,” they may be raised on appeal. Crim.R. 52(B). To affect

substantial rights, “the trial court's error must have affected the outcome of the trial.”

State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. The defendant

bears the burden of demonstrating that a plain error affected his substantial rights.

United States v. Olano (1993), 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508;

State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 14. Plain error is

recognized “only in exceptional circumstances * * * to avoid a miscarriage of justice.”
Stark County, Case No. 2010 CA 00085                                                    9

State v. Long (1978), 53 Ohio St.2d 91, 94-95, 372 N.E.2d 804 (internal citations

omitted).

       {¶34} Even if the defendant satisfies this burden, an appellate court has

discretion to disregard the error. State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759

N.E.2d 1240; State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804,

paragraph three of the syllabus; Perry at ¶ 14.

       {¶35} Upon review, in the instant case, while we find that a limiting instruction

should have been given, we cannot say that the court's failure to give such an

instruction affected Appellant's “substantial rights” or that a limiting instruction would

have altered the outcome of this case. Crim.R. 52(B); State v. Moreland (1990), 50 Ohio

St.3d 58, 62, 552 N.E.2d 894.

       {¶36} Based on the foregoing, we find that any erroneous admission of evidence

relating to past abuse was not prejudicial error. Accordingly, we find Appellant's first

assignment of error not well-taken and hereby overrule same.

                                            II.

       {¶37} In his second assignment of error, Appellant claims that the charge of

intimidation was based on a deficient indictment. We disagree.

       {¶38} “The purpose of an indictment is to inform the accused of the crime with

which he is charged. The indictment, therefore, provides notice to the defendant of the

charges against him so that he may prepare a defense.” (Internal citations omitted.)

State v. Davis (Sept. 17, 1992), Cuyahoga App. No 61076.

       {¶39} In the instant case, Appellant argues that the indictment was deficient

because it did not state the date and location of the alleged crime, thereby preventing
Stark County, Case No. 2010 CA 00085                                                     10


him from receiving notice of the charges against him. In support, Appellant relies on a

case out of the Eighth District, State v. Muniz, Cuyahoga App. No. 93528, 1010-Ohio-

3720.

        {¶40} Upon review, we find that Muniz is factually distinguishable in that such

case dealt with a defendant who was charged with a crime that had its foundation on

unindicted predicate acts. In Muniz, the Eighth District found:

        {¶41} “… we find that where a defendant is charged with intimidation of a “victim

of a crime,” an essential element of the charge is that the underlying crime occurred and

thus created a victim. Muniz is entitled to notice of the predicate crime in the indictment.

The charge of intimidation of a crime victim presupposes an earlier crime has been

committed. The state has the burden of proof on all essential elements of the crime as

charged; therefore, it must prove the underlying acts occurred for there to be a crime

victim, regardless of whether a complaint has been filed or a charge brought for that

underlying crime.”

        {¶42} Unlike the defendant in Muniz, the crime in which Ms. Parr is the victim is

contained in the same indictment as the intimidation charge. Furthermore, Appellant

was the alleged perpetrator in that charge also. As such, he can hardly be heard to

complain that he did not have notice of the charges against him.

        {¶43} Appellant’s second assignment of error is denied.

                                            III.

        {¶44} In his third assignment of error, Appellant claims that his convictions for

domestic violence, resisting arrest and intimidation are against the manifest weight and

sufficiency of the evidence. We disagree.
Stark County, Case No. 2010 CA 00085                                                 11


       {¶45}   When reviewing a claim of sufficiency of the evidence, an appellate

court's role 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. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492.

Contrary to a manifest weight argument, a sufficiency analysis raises a question of law

and does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio

App.3d 172, 485 N.E.2d 717, 175. 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.”

State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

       {¶46} Conversely, when analyzing a manifest weight claim, this Court sits as a

“thirteenth juror” and in 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.” State v.

Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, 548, quoting State v.

Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.

       {¶47} Appellant was convicted of domestic violence, intimidation of a crime

victim and resisting arrest.

       {¶48} Domestic violence, in violation of R.C. §2919.25(A), states:

       {¶49} “No person shall knowingly cause or attempt to cause physical harm to a

family or household member.

       {¶50} “ ***
Stark County, Case No. 2010 CA 00085                                                      12


       {¶51} “(D)(1) Whoever violates this section is guilty of domestic violence, and

the court shall sentence the offender as provided in divisions (D)(2) to (6) of this section.

       {¶52} “ ***

       {¶53} “(4) If the offender previously has pleaded guilty to or been convicted of

two or more offenses of domestic violence or two or more violations or offenses of the

type described in division (D)(3) of this section involving a person who was a family or

household member at the time of the violations or offenses, a violation of division (A) or

(B) of this section is a felony of the third degree…”

       {¶54} Appellant argues that there was a lack of physical evidence along with

material inconsistencies in the victim’s testimony.      Appellant claims that Ms. Parr’s

motivation in accusing Appellant was jealousy and/or revenge based on her belief that

Appellant was involved in a relationship with another woman.

       {¶55} As stated above, the State was required to prove that Appellant knowingly

caused or attempted to cause physical harm to a household or family member. The

State did this through Ms. Parr’s testimony wherein she stated that Appellant threw a

glass of water in her face, pushed her, held her down on the ground by sitting on her,

and covered her mouth and nose with his hand, thereby making it hard for her to

breathe.

       {¶56} In this matter, the jury chose to believe the testimony of the victim.

       {¶57} Additionally, because Appellant was charged with third degree felony, the

State was also required to prove that Appellant had at least two prior domestic violence

convictions. Appellant stipulated to two of his prior domestic violence convictions.
Stark County, Case No. 2010 CA 00085                                                     13


       {¶58} Based on the record before us, we find that the State presented sufficient

evidence to support the conviction on this charge and that such conviction was not

against the manifest weight of the evidence.

       {¶59} Appellant was also convicted of Intimidation, in violation of R.C.

§2921.04(B), which states:

       {¶60} “No person, knowingly and by force or by unlawful threat of harm to any

person or property, shall attempt to influence, intimidate, or hinder the victim of a crime

in the filing or prosecution of criminal charges or an attorney or witness involved in a

criminal action or proceeding in the discharge of the duties of the attorney or witness.”

       {¶61} At trial, the State presented recordings of the telephone calls to Ms. Parr

along with her testimony as to the threats made to her by Appellant during and after the

domestic violence incident where he warned her that she had better move before he got

out of jail or he would find her and her family. She also testified that he told her that if

she called the police and made a report, she would be dead before the police arrived.

(T. at 109-110, 132).

       {¶62} Upon review, we find sufficient credible evidence to support the jury's

finding of an unlawful threat of harm aimed at stopping Ms. Parr from testifying in court,

and no manifest miscarriage of justice.

       {¶63} Appellant also challenges his conviction for resisting arrest, as set forth in

R.C. §2921.33, which provides in pertinent part:

       {¶64} “(A) No person, recklessly or by force, shall resist or interfere with a lawful

arrest of the person or another.”
Stark County, Case No. 2010 CA 00085                                                       14


       {¶65} In support of this charge, the State presented the testimony of Officer

Dean, who stated that when Appellant was told he was under arrest, he charged at Ms.

Parr and had to be restrained by both Officers Dean and Shatzer. (T. at 140-142). He

further testified that Appellant continued to interfere with his arrest by struggling with the

officers and screaming, and that he had to be told numerous times to stop resisting

before finally complying. Id.

       {¶66} We find Appellant’s argument that because his actions in resisting arrest

lasted “less than three minutes and did not result in any interference with the arrest or

harm to the officers”, such does not “rise to the level of resisting arrest” to be both

unsupported by any case law and unpersuasive.

       {¶67} Based on the testimony presented at trial, we find that Appellant’s

conviction for resisting arrest was supported by sufficient evidence and that his

conviction was not against the manifest weight of the evidence,

       {¶68} Appellant’s third assignment of error is denied.

                                             IV.

       {¶69} In his fourth assignment of error, Appellant claims that his sentence on the

intimidation charge is grossly disproportionate to the crime and therefore constitutes

cruel and unusual punishment. We disagree.

       {¶70}    In State v. Weitbrecht, 86 Ohio St.3d 368, 715 N.E.2d 167, 1999-Ohio-

113, at 370-371, the Ohio Supreme Court explained:

       {¶71} “The Eighth Amendment to the Constitution of the United States provides:

‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.’ Section 9, Article I of the Ohio Constitution is couched in
Stark County, Case No. 2010 CA 00085                                                    15


identical language. Historically, the Eighth Amendment has been invoked in extremely

rare cases, where it has been necessary to protect individuals from inhumane

punishment such as torture or other barbarous acts. Robinson v. California (1962), 370

U.S. 660, 676, 82 S.Ct. 1417, 8 L.Ed.2d 758. Over the years, it has also been used to

prohibit punishments that were found to be disproportionate to the crimes committed. In

McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 203 N.E.2d 334, this court stressed that

Eighth Amendment violations are rare. We stated that ‘cases in which cruel and unusual

punishments have been found are limited to those involving sanctions which under the

circumstances would be considered shocking to any reasonable person.’ Id. at 70, 203

N.E.2d 334. Furthermore, ‘the penalty must be so greatly disproportionate to the offense

as to shock the sense of justice of the community.’ Id. See, also, State v. Chaffin (1972),

30 Ohio St.2d 13, 282 N.E.2d 46, paragraph three of the syllabus.”

       {¶72} Here, Appellant’s five-year sentence was within the statutory range and

thus, not contrary to law. It has been held that a sentence within the range allowed by a

valid statute generally is not cruel and unusual. State v. Hairston, 118 Ohio St.3d 289,

888 N.E.2d 1073, 2008-Ohio-2338.

       {¶73} In this case, given the seriousness of Appellant's multiple offenses, we

cannot say that the penalty was “so greatly disproportionate to the offense as to shock

the sense of justice of the community.” Weitbrecht at 373, 715 N.E.2d 167.
Stark County, Case No. 2010 CA 00085                                            16


      {¶74} Therefore, we overrule his fourth and final assignment of error.

      {¶75} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.



By: Wise, J.

Gwin, P. J., and

Hoffman, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
JWW/d 0211
Stark County, Case No. 2010 CA 00085                                         17


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




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
WILLIAM P. MARTIN                         :
                                          :
       Defendant-Appellant                :         Case No. 2010 CA 00085




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

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

       Costs assessed to Appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
