[Cite as State v. Umstead, 2021-Ohio-10.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

CITY OF CLEVELAND, : 

 

 Plaintiff-Appellee, : 

 No. 109243 

 v. : 

 

ROBERT M. UMSTEAD, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: January 7, 2021 

 

Criminal Appeal from the Cleveland Municipal Court 

Case Nos. 2014 TRD 034472 and 2018 CRB 021900 

 

Appearances: 

Barbara A. Langhenry, Cleveland Director of Law, Karrie 

Howard, Chief Prosecuting Attorney, and Karyn J. Lynn, 

Assistant Prosecuting Attorney, for appellee. 

Jerome Emoff, for appellant. 

MARY EILEEN KILBANE, J.: 

Defendant-appellant, Robert Umstead (“Umstead”), appeals his 

conviction after a bench trial for aggravated menacing, a misdemeanor under the 

Cleveland Codified Ordinances in Cleveland M.C. No. 2018 CRB 021900. At the 
time of his conviction, he also had a pending case, Cleveland M.C. No. 2014 TRD 

034472. He was sentenced to community control sanctions on both cases. Umstead 

makes no assignment of error pertaining to M.C. No. 2014 TRD 034472; therefore, 

we affirm that case. 

Umstead presented five assignments of error in his appeal for M.C. 

No. 2018 CRB 021900. We will only address Umstead’s second assignment of error 

because it is controlling. Umstead’s second assignment of error relates to the trial 

court’s decision to not allow Umstead’s trial counsel to recross a witness. We find 

that this decision violates Ohio’s policy promoting broad cross-examination and is 

an abuse of discretion. Therefore, we reverse his conviction and remand this case to 

the trial court for a new trial. His other assignments of error are disregarded as 

moot. 

Procedural History and Witness Testimony 

On December 10, 2018, Umstead was charged in M.C. No. 2018 CRB 

021900 with aggravated menacing in violation of Cleveland Codified Ordinances 

621.06. On July 29, 2019, he was arraigned on the charge. Umstead elected to 

proceed with a bench trial, and on October 8, 2019, the trial court found him guilty. 

On October 29, 2019, the trial court held a sentencing hearing. The 

trial court imposed a $100 fine, 180 days in jail, with 177 days suspended and credit 

for 3 days served, and placed Umstead on 2 years active probation. The court further 

ordered Umstead to complete anger management classes and 60 hours of 
community work service. The trial court extended the community control sanctions 

that were in place as to Umstead’s pending traffic case. 

This case resulted from a confrontation between Umstead and Willie 

Palmer (“Palmer”). Palmer testified for the city of Cleveland (“the city”) that the 

incident occurred at Shay’s parking lot (“Shay’s”) where Cassandra Samuel 

(“Samuel”), Palmer’s girlfriend, worked. Palmer testified that he had dropped 

Samuel off at Shay’s on Saturday morning, December 7, 2018. He left to get Samuel 

something to eat, and when he returned in his truck, he noticed Umstead for the first 

time. Palmer knew that Umstead was Samuel’s ex-boyfriend. 

Palmer testified that Umstead was in his car and that when Palmer 

got out of his truck, Umstead drove his car at him. According to Palmer, Umstead 

revved the engine, stopping and starting several times, before eventually stopping 

abruptly several feet from Palmer. Palmer admits that he was yelling at Umstead 

throughout, and calling him names. 

Umstead got out of his car and went to the trunk to grab a gun. He 

pointed the gun at Palmer who continued yelling; Palmer testified that he believed 

Umstead was going to shoot him. Umstead instead approached Palmer and hit him 

with the gun. The two began wrestling. The fight ended when a person yelled that 

the police were coming. 

On cross-examination, Umstead’s trial counsel questioned Palmer 

about his memory of the incident, including a line of questioning about the actual 

date of the incident. Trial counsel indicated that he had a police report dated 
December 4, days before Palmer stated the incident occurred. Palmer stated that he 

was certain the incident occurred on a Saturday so the report must be wrong. 

Samuel then testified. She stated that she had dated Umstead for 

about nine years until they broke up in late 2017. Umstead would sometimes visit 

his brother, a fellow employee at Shay’s, but she had not seen him since 

approximately three months prior to the incident. 

The day of the incident, she stated that she and Palmer first noticed 

Umstead when Palmer returned to bring her food. On direct examination, she 

testified that Palmer got out of his vehicle and began yelling at Umstead, taunting 

him. Umstead did not reply, but instead drove his car towards Palmer, stopped, 

exited his car, opened his trunk, and retrieved a pistol. Umstead then approached 

Palmer and hit him with the gun. Palmer knocked the gun to the ground, where 

Samuel later retrieved it and gave it to Palmer. 

On cross-examination, Samuel testified that Umstead did not get out 

of his car until he was called names by Palmer. She also said that it’s not unusual 

for Umstead to be at the lot and agreed with Umstead’s trial counsel that Palmer 

initiated a verbal dispute. 

The city briefly reexamined Samuel and asked two questions. Samuel 

stated on redirect that Umstead was revving his engine at Palmer before exiting the 

vehicle and grabbing his gun. 
After the two questions, the court told the witness she could have a 

seat and the following exchange occurred between Umstead’s trial counsel and the 

court: 

DEFENSE ATTORNEY: Can I have one — 

THE COURT: No. No. 

DEFENSE ATTORNEY: One question. 

THE COURT: No. All right? 

DEFENSE ATTORNEY: I can’t recross? 

THE COURT: No. No means no, right? 

DEFENSE ATTORNEY: I want to recross. 

THE COURT: I said no. 

DEFENSE ATTORNEY: Is there a reason I don’t — I can’t — 

THE COURT: Because I don’t do that in 12-B and it’s my 

courtroom and I said no. 

The city rested its case. Umstead then testified in his own defense. 

Umstead said he was at the parking lot that morning and saw Samuel 

and Palmer. He said he just wanted to talk to Samuel. He stated that after Palmer 

returned and spotted him, Palmer pulled his truck in front of his, jumped out of his 

vehicle, and called him names. He said he did rev his engine but that he also felt 

threatened by Palmer. He said that he got out of his vehicle to go talk to Samuel and 

then Palmer moved his truck, blocking him in. Umstead was asked if he hit Palmer 

because he felt threatened. He said yes and said he never tried to shoot Palmer. 
On cross-examination, Umstead reiterated that Palmer blocked him 

in. He admitted that he hit Palmer first and that Palmer didn’t make overt threats, 

stating that Palmer just came out of the vehicle yelling insults, and he interpreted 

those as threats. 

The trial court reviewed the aggravated menacing statute on the 

record and found Umstead guilty of aggravated menacing. The trial court explained 

its verdict, stating: 

I think if I’m going to sit and wait and go in the back of my car and get 

a gun and point it at somebody and then attempt to hit them. That 

would cause me to believe that I was going to be harmed seriously. He 

had no duty, no right to be on that property at that time. He certainly 

had a duty to retreat, if he thought that he felt threatened. You feel 

threatened but you’re going to sit and wait; that doesn’t even make 

sense. 

This appeal follows. Umstead presents five assignments of error. 

Assignments of Error 

I. The Evidence Was Insufficient To Prove That The Alleged Victim 

Believed Appellant Would Cause Him Serious Physical Harm. 

II. The Trial Court Abused Its Discretion By Adopting A Blanket Policy 

Preventing Recross-Examination Resulting In A Denial Of A Fair Trial 

And Due Process. 

III. The Trial Court Denied Appellant A Fair Trial By Prohibiting 

Impeachment By Prior Inconsistent Statement. 

IV. Appellant Was Denied The Effective Assistance Of Counsel. 

V. The Trial Court’s Verdict Was against the Manifest Weight of the 

Evidence. 

As we stated previously, we will be limiting our review to Umstead’s 

second assignment of error. We find that his argument has merit and that the trial 
court did abuse its discretion by imposing a blanket ban on recross-examination. As 

a result, we reverse and remand consistent with this opinion and find that Umstead’s 

other four assignments of error are moot. 

The Second Assignment of Error: Recross-Examination 

Ohio takes a broad approach to cross-examination. “Evid.R. 611(B) 

requires trial courts to permit ‘[c]ross-examination * * * on all relevant matters and 

matters affecting credibility.’” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio5735, 70 N.E.3d 508, ¶ 171. Unlike the analogous Federal Rules of Evidence, Ohio 

does not limit the scope of cross-examination to the subject matter of direct 

examination. State v. Treesh, 90 Ohio St.3d 460, 481, 739 N.E.2d 749 (2001). 

Although “‘trial courts have wide latitude in imposing reasonable 

limits on the scope of cross-examination,” courts should impose such limits “based 

upon concerns about harassment, prejudice, confusion of the issues, the witness’s 

safety, or repetitive, marginally relevant interrogation.’” State v. Henderson, 8th 

Dist. Cuyahoga No. 106627, 2018-Ohio-3797, ¶ 18, quoting State v. Bolton, 8th Dist. 

Cuyahoga No. 96385, 2012-Ohio-169, ¶ 41. Under no circumstances is a blanket 

policy prohibiting all recross-examination appropriate. 

The second assignment of error relates to the testimony of the state’s 

second eyewitness, Samuel, who was then Palmer’s girlfriend and Umstead’s former 

girlfriend. After her testimony and cross-examination, the state asked her two 

questions on redirect. The first question on redirect was inaudible and could not be 
fully transcribed for the record. The second question asked when Umstead revved 

the car engine. 

After the state’s redirect examination of Samuel, Umstead’s counsel 

indicated that he had one more question for Samuel and asked the trial court for 

permission to recross-examine the witness. After the trial court denied trial 

counsel’s repeated requests to recross-examine Samuel, trial counsel asked the trial 

court why the request was denied. The trial court responded: “Because I don’t do 

that in 12-B and it’s my courtroom and I said no.” 

Eyewitness testimony like Samuel’s can carry great weight 

considering that a single credible eyewitness can sustain a conviction. State v. 

Robertson, 8th Dist. Cuyahoga No. 106279, 2018-Ohio-2934, ¶ 30 (“A factfinder 

may believe and convict a defendant based upon the testimony of a single 

eyewitness, including the victim.”). The state was given the opportunity to 

reexamine Samuel. Umstead’s counsel stated he had only one further question he 

wished to ask Samuel on recross-examination, which mitigates any concerns that 

might merit a reasonable limit on recross-examination. Nevertheless, his request to 

briefly recross Samuel was denied with no reason other than “I don’t do that in 12-

B and it’s my courtroom and I said no.” 

This statement demonstrates that the trial court had a blanket 

prohibition on recross-examination. The trial court abused its discretion in 

imposing this blanket prohibition, and Umstead was denied a fair trial as a result. 
We reverse Umstead’s conviction as to Cleveland M.C. No. 2018 CRB 

021900 and remand for a new trial. Umstead’s other four assignments of error are 

disregarded as moot. 

It is ordered that appellant recover from 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 

Cleveland Municipal 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. 

 

MARY EILEEN KILBANE, JUDGE 

MARY J. BOYLE, A.J., CONCURS; 

MICHELLE J. SHEEHAN, J., DISSENTS 

WITH SEPARATE DISSENTING OPINION 

MICHELLE J. SHEEHAN, J., DISSENTING: 

 I respectfully dissent from the majority opinion and would affirm 

appellant Robert Umstead’s conviction. In his second assignment of error, Umstead 

alleges that he was denied the right to due process and fair trial where the “trial court 

abused its discretion by adopting a blanket policy preventing recross-examination.” 

Blanket policies that affect substantial rights are not favored under the law and 

should not be employed. But when a court implements a blanket policy, the 

appellate court reviews the application of that policy under an abuse of discretion 
standard. State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d 474; State 

v. Switzer, 8th Dist. Cuyahoga No. 93533, 2010-Ohio-2473, ¶ 15. 

The record in this case does not definitively show the trial court 

employed a blanket prohibition on recross-examination. Of the three witnesses who 

testified, only Samuel was subject to redirect examination. After the brief redirect 

examination, appellant’s counsel asked for the ability to further question her. The 

trial court denied the request. Trial counsel then asked two more times, without 

offering any reasoning for the trial court to consider. The trial court denied the 

request both times. Only after the fourth request did counsel ask for a reason for the 

trial court’s decision, and the trial court responded, “Because I don’t do that in 12-B 

and it’s my courtroom and I said no.” At that point, the trial court had denied 

counsel’s request three times. When asked for a reason on the fourth request, the 

trial court stated, “I don’t do that in 12-B” and “I said no.” It is unclear if the trial 

court’s comments referred to a refusal to give a reason for denying recrossexamination or if the trial court employed a blanket policy against recrossexamination. 

Even if the trial court employed a blanket policy, reversal of the trial 

is not warranted because the denial of the ability to recross-examination of Samuel 

did not amount to an abuse of the trial court’s discretion. A trial court is vested with 

the authority to regulate the manner in which a trial is conducted by both 

R.C. 2945.03 and Evid.R. 611. In determining whether the denial of further 

examination in this case amounted to an abuse of discretion, it is important to note 
that appellant was not denied the constitutional right to confrontation of Samuel, 

because there is generally no right to recross-examination of a witness. In State v. 

Faulkner, 56 Ohio St.2d 42, 46, 381 N.E.2d 934 (1978), the Ohio Supreme Court 

held: 

Although a defendant must have the opportunity to cross-examine all 

witnesses against him as a matter of right, Kent v. State (1884), 42 Ohio 

St. 426; Weaver v. State (1929), 120 Ohio St. 97, the opportunity to 

recross-examine a witness is within the discretion of the trial court. 

Liberty Mutual Ins. Co. v. Gould (1976), 266 S. C. 521, 224 S. E. 2d 715; 

United States v. Morris (C.A. 5, 1973), 485 F. 2d 1385. Only where the 

prosecution inquires into new areas during redirect examination must 

the trial court allow defense the opportunity to recross-examine. See

Alford v. United States (1931), 282 U.S. 687. 

In applying this holding, this court has found that there is no absolute 

right to recross-examination even if new matters arise on redirect examination of a 

witness. State v. Hartley, 8th Dist. Cuyahoga No. 81706, 2003-Ohio-3946, ¶ 16, 

stating: 

Had the Supreme Court intended that all recross-examination, even of 

new matters, be permitted, it would have imposed a per se rule, not the 

abuse of discretion standard. * * * Hence, we do not interpret the 

“must” in Faulkner to indicate that recross-examination is mandatory, 

even when new evidence is presented during redirect examination. 

The redirect examination of Samuel consisted of two questions. The 

record does not reflect what the first question was, but in answering that question, 

Samuel clarified and repeated what Palmer said to Umstead, then repeated her prior 

testimony as to the order of the events she witnessed. In so doing, she included the 

fact that Umstead revved his engine “like he wanted to run him over.” The second 
question asked only about when the revving occurred. Samuel clarified that it was 

after Palmer got out of the car. 

Samuel testified on direct and cross-examination to the events she 

witnessed and the order in which they occurred. She stated that Umstead moved his 

car before getting out, retrieving a gun, and attacking Palmer. I cannot discern from 

the record that the city sought to inquire about new material or new issues in its redirect examination. In Hartley, this court stated there are “no hard and fast rules on 

what constitutes new material for purposes of recross-examination.” Id. at ¶ 20. We 

noted that “the [trial] court should seek to limit recross-examination to testimony 

on redirect examination which raises a new subject-matter that is both material and 

non-redundant in context.” Id. Here, the only new information that Samuel 

testified on redirect examination was that Umstead revved the engine “like he was 

going to run him over.” However, that fact was ultimately not at issue in trial and is 

not material. Appellant admitted he revved the engine, and the trial court based its 

verdict on its finding that appellant pointed a gun at Palmer, not on the revving of 

an engine or movement of a car. 

As to appellant’s remaining assignments of error, I would find that 

the trial court did not err in prohibiting the use of the police report to impeach 

Palmer. There was no showing it contained a prior inconsistent statement or that 

Palmer was the author of the police report. I would find there was sufficient 

evidence presented to sustain the conviction for aggravated menacing where Palmer 

testified that he believed appellant would shoot him and further find the conviction 
was not against the manifest weight of the evidence. Finally, I would find that 

appellant did not receive ineffective assistance of counsel where 1) trial counsel’s 

failure to move for acquittal is moot where sufficient evidence was presented to 

sustain the conviction, and 2) trial counsel’s failure to proffer the police report did 

not amount to ineffective assistance because the trial court properly disallowed the 

use of the police report to impeach Palmer.