[Cite as State v. Loyd , 2021-Ohio-4508.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD-21-021 Appellee Trial Court No. 2019CR0467

v. Christie M. Loyd DECISION AND JUDGMENT Appellant Decided: December 22, 2021 * * * * * Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Jeffrey P. Nunnari, for appellant. * * * * * DUHART, J. {¶ 1} Appellant, Christie Loyd, appeals the judgment entered by the W ood County Court of Common Pleas, sentencing her to three years of communi ty control after a jury found her guilty of felonious assault. For the reasons that fo llow, we reverse the judgment of the trial court.2. Statement of the Case {¶ 2} Appellant was indicted on February 6, 2020, in a two-count indi ctment. Count one charged her with aggravated assault, which was a felo ny of the fourth degree. Count two charged her with felonious assault, which was a felon y of the second degree. {¶ 3} After plea negotiations failed, a jury trial ensued. At the co mmencement of the trial, the state of Ohio dismissed the charge for aggravate d assault. Following the trial, appellant was found guilty on the charge of felonious as sault, and, later, she was sentenced to three years of community control. Appellant appea ls on the grounds that the trial court abused its discretion when it failed to grant her m otion for mistrial, which was lodged in connection with remarks that were made by the prosecu tion during her crossexamination.
Statement of the Facts {¶ 4} At the time of the offense, Danny Chandler was intimately invol ved with both appellant and the victim. This tripartite arrangement cau sed considerable friction between the two women. Events culminated on September 24, 2019 , when the victim pulled her car in front of the home shared by appellant and Cha ndler. According to appellant, the victim sounded her horn, shouted obscenities, an d stated something to the effect that she had been with Chandler “all day”, while appella nt was at work. After a time, appellant drove to the apartment complex where the victim was staying. Appellant and the victim encountered each other in the parking lot, and a physical altercation took place.3. {¶ 5} The victim’s and appellant’s accounts about what happened durin g the altercation are drastically divergent. Under the victim’s vers ion of the facts, appellant’s car approached the victim aggressively as appellant entered the parking lot, and appellant and an unknown female accomplice exited the vehicle and assault ed the victim with a box cutter and a crowbar. Under appellant’s version of the fac ts, however, it was appellant who was approached aggressively by the victim, just a s appellant exited her vehicle. According to appellant, a brief fight took place betw een the two women, without any weapons or additional parties. {¶ 6} Testimony by a third, disinterested, witness, one Julian Castro , largely corroborated the victim’s version of events, but he additionall y provided that the victim threw a bicycle at the car that appellant was driving. Althoug h there was evidence to suggest that there were other witnesses to the altercation, no other eyewitness accounts were entered into evidence. {¶ 7} During the state’s cross-examination of appellant, the prosecut or, with some papers in his hand, said to appellant, “What if I told you that there are other written statements that corroborate Mr. Castro. Would they be lying?” Appellant’s counsel objected and, while in chambers, moved for a mistrial. The tri al court denied appellant’s motion, but did issue a curative instruction to the jury. The cross-examination then resumed. At the conclusion of appellant’s testimony, the court received questions from jurors to be asked of appellant. One of those questions was, “ Are there any more eyewitness statements to corroborate Mr. Castro’s statement?” Appellant’s counsel4. renewed his motion for a mistrial, citing the fact that the jur y had not adhered to the court’s cautionary instruction. The trial court denied the mot ion a second time, after which the jury went on to find appellant guilty. Assignment of Error {¶ 8} Appellant asserts the following as her sole assignment of error : The trial court erred to appellant’s prejudice by failing to de clare a mistrial for the prosecutor’s improper vouching for a state’s w itness. Analysis {¶ 9} We review a trial court’s decision denying a mistrial under an abuse of discretion standard. State v. Sage , 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987). “A mistrial is only proper ‘when the ends of justice so require an d a fair trial is no longer possible.’” State v. Cantrill , 6th Dist. Lucas No. L-18-1047, 2020-Ohio-1235, ¶ 47, citing State v. Franklin , 62 Ohio St.3d 118, 127, 580 N.E.2d 1 (1991). Mistrials are “ an extreme remedy.” Cantrill at ¶ 47, citing State v. Rossbach , 6th Dist. Lucas No. L-09- 1300, 2011-Ohio-281, ¶ 39, citing Franklin at 127. Where a motion for mistrial is based on claims of prosecutorial misconduct, an appellate court “must undertake a due process analysis to determine whether the conduct of the prosecutor dep rived the defendant of [her] due process right to a fair trial.” State v. Saunders , 98 Ohio App.3d 355, 358, 648 N.E.2d 587 (6th Dist. 1994), citing State v. Johnson , 39 Ohio St.3d 48, 60, 529 N.E.2d 898 (1988). Our focus, when conducting this analysis, is on “t he fairness of the trial, not the culpability of the prosecutor.” State v. Talley , 2016-Ohio-8010, 74 N.E.3d 868, ¶ 335. (6th Dist.), citing State v. Lott , 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). “In determining whether prosecutorial misconduct occurred, we must first consider whether remarks were improper, and if we find improper remarks, whether those remarks prejudiced the accused’s substantial rights.” Cantrill at ¶ 48, citing State v. Davis , 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 231, citing State v. Smith , 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). {¶ 10} Here, appellant argues that the prosecutor, during his cross-ex amination of appellant, improperly vouched for the testimonies of the victim and witness Castro. “Vouching occurs when the prosecutor implies knowledge of facts outside the record or places his or her personal credibility in issue.” Davis at ¶ 232, citing State v. Jackson , 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 117. The law is clear that “[i]t is improper for a prosecutor to vouch for the credibility of a witness at trial.” State v. Graham , 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 96. Ap pellant asserts that the prosecutor, while cross-examining appellant, implied k nowledge of facts outside of the record and, by so doing, bolstered Castro’s and the vict im’s credibility -- at the expense of appellant’s -- and, at the same time, he interjected his own credibility into the proceedings. {¶ 11} The relevant sequence of events began with the prosecutor’s cro ssexamination of appellant, where he asked appellant about discre pancies between her testimony and that of witness Julian Castro, who had previously testified.6. Q Yesterday afternoon as we held the jury later than we had sa id and the State was allowed to put Mr. Julian Castro on the stand , you were sitting here, right?
A Correct. I was. Q As you sit here and listen to yourself speak, do you realize that every single thing you said matches absolutely nothing to his s tory? A I do. Q Why is that? Is Julian Castro lying? A I’m not going to say he’s lying. But he clearly saw somethi ng that happened before. Q So he stated it was on the same day, at the same time, at th e same place. Other than that he is out of his mind, he’s out of line or he ought to be evaluated? [Defense Counsel]: Objection. THE COURT: Wait. A I’m not saying – THE COURT: Wait. Wait. Wait. [Defense counsel]. [DEFENSE COUNSEL]: It’s a compound question. It’s argumentative because the prosecutor is putting words into her mouth about he was lying. She’s already said she doesn’t think he was lyin g. THE COURT: Sustained.7. BY [THE PROSECUTOR]: Q What do you think were the reasons between the different, dramatic differences between the stories? A Well, he did mention I was taking a parking spot of his. An d clearly I didn’t park in a parking spot. Q I don’t remember saying anything of the such. A Yeah. He said he was going to park in a parking spot that h e normally parks in. Q Do you remember him saying he was following you in his vehicle? A I do. Q Do you remember him saying you ran up on the curb and it appeared to him that you were trying to hit [the victim]? A I heard him say that, yes, I did. Q Is he lying? A I don’t know what he’s doing. Q You heard him say that someone got out and got a tire iron, right? A I did. I heard him say that, too. Q Is he lying about that? A I can’t say whether he’s lying or not. Q Did [the victim] throw a bike at your vehicle?8. A No, she did not. Q So is he lying about that, too? A She didn’t throw and hit my car. If she threw a bike and hi t my car, I would have had a dent or something on there.
* * * Q We’ve spoken for a few minutes. So I thought maybe this wou ld be easier to answer. So I’m going to ask it one more time. Ca n you explain how everything you’ve said is different from Mr. Castro’s testi mony? A The fact that I rolled up on the curb trying to hit [the vic tim], her throwing the bike at my car, and the second person. Q What if I told you that there are other written statements t hat corroborate Mr. Castro. Would they be lying? [DEFENSE COUNSEL]: Objection THE COURT: s Let’s get in the other room. The in-chambers discussion took place as follows. THE COURT: [Defense Counsel]. DEFENSE COUNSEL: Your Honor, we’ve been over this time and time again that this other testimony is not admissible unless s he appears here. Do I need to re-cite the case law for the court involvin g the rules of hearsay and rights of confrontation? The State of Ohio has pre sented evidence to the jury that there’s other witness statements that we can’t9. cross-examine, that we can’t talk to, that’s going to corrobora te Castro’s testimony. That was a deliberate attempt of the State to circu mvent the Court’s order. And we ask for a mistrial. THE COURT: [Prosecutor]. THE PROSECUTOR: I held my personal sheets where I made my own notes. You wanted to talk about hearsay. We’ve spent thre e hours of [defense counsel] using hearsay. I can fake whatever I want an d ask her whether or not something exists. And I can ask her again why i s it nobody else has the same story you do. Those are my own personal notes. I didn’t present anything to the jury. They can’t see it. It’s in red and black. Those are my handwritten notes. I didn’t present any evidence to the jury. THE COURT: Let’s stop for a minute. You asked the question. The question stated we have other statements from other people that corroborate. [THE PROSECUTOR]: I said are you aware. So she can say I’m not aware of any other statements. She’s opened the door. THE COURT: But you are implicitly saying that you have them. [THE PROSECUTOR]: Of course. This entire line of hearsay questioning is trying to imply something.10. THE COURT: Understand this * * *I want to be very careful with this. The defendant has a right, a Sixth Amendment right about confrontation. It’s a little bit different than the hearsay ru le. [THE PROSECUTOR]: Then I can bring the exact name, are you aware of who Sarah Jahns is. Was Sara Jahns that day there. W ould she tell the same story? I’ll be happy to use name, place, story. I’ll be happy to go down that road with her. [DEFENSE COUNSEL]: That doesn’t make her available and for the record, the prosecutor held up the statements in his hand a s he directed his questions to her. [THE PROSECUTOR]: No. Those were notes. [DEFENSE COUNSEL]: I’m sorry. Everybody on that jury knows what’s going on. He had in hand these statements, holding them up saying there’s people here that are going to disagree with your testim ony. That’s what he was doing. Everybody on the jury saw that. They know that. Now they not only know there’s people out there that aren’t goi ng to be here and testify that are going to corroborate the State’s case

. THE COURT: The objection will be sustained. I will deny the mistrial. I will tell the jury that they must ignore the state ments of the prosecutor as if they were never said.11. Addressing the jury, the trial court instructed, “Ladies and ge ntlemen of the jury, the statements that just came from the prosecutor are stricken from the record and to be assumed by you that they were never said.” We agree with the t rial court and find that the state improperly vouched for the victim’s credibility by im plying knowledge of evidence outside the record which supported her version of even ts. Davis , 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, at ¶ 231. {¶ 12} Having determined that the state’s conduct was improper, we mus t determine whether “those remarks prejudiced the accused’s subst antial rights.” Cantrill , 6th Dist. Lucas No. L-18-1047, 2020-Ohio-1235, at ¶ 47. Appellant argues that the jury’s failure to disregard the state’s prejudicial conduct, de spite being instructed that the conduct was not evidentiary and could not be considered, denied her a fair trial. We

agree. {¶ 13} Generally, a curative instruction is presumed to be an effectiv e remedy for the introduction of improper statements during the course of a trial. See State v. Zeurn, 32 Ohio St.3d 56, 61, 512 N.E.2d 585 (1987). Moreover, a jury is presumed to follow the court’s curative instructions concerning improper comments. See State v. Ahmed , 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 93 (stating th at the jury can be presumed to have followed the court’s instructions to disregard testimony). This presumption can be rebutted, however, by a showing that “the ev idence could not have been ignored and that serious prejudice likely occurred.” State v. Westwood , 4th Dist. Athens No. 01CA50, 2002-Ohio-2445, ¶ 42 (citation omitted).12. {¶ 14} Here, the record shows that shortly after appellant’s testimony concluded, the court told the jury to write any questions they might have on a piece of paper and to pass the paper to the bailiff. Back in chambers, the trial cou rt read to the prosecutor and defense counsel the following question that had been submitted by the jury, “Are there any more eyewitness statements to corroborate Mr. Castro’s stat ement?” At this point, defense counsel renewed the motion for mistrial and the prosecu tor acknowledged that the jury was “not following the Court’s instructions.” The cou rt denied the renewed motion. Notably, the trial court did not renew its instruction to disregard the state’s previously-stricken question or inform the jury as to why the q uestion was not asked. {¶ 15} Later, the trial court instructed the jury that “[e]vidence doe s not include statements which were stricken by the Court or which you were i nstructed to disregard, which the Court did at one point during this trial,” and that “ [s]uch statements are not evidence and must be treated as though you never heard them.” The trial court also gave a general instruction to the jury that it “should not draw any conclusion from the fact that your question was or was not asked of any particular witness.” The trial court did not, however, give the jury any specific instruction regarding its u nasked question which was directly contrary to the previously-given curative instruction. Therefore, at the time it retired to deliberate, the trial court had not specifically add ressed the jury’s continued consideration of the improper statements the trial court explic itly instructed it to disregard. For these reasons, we find that appellant has ident ified sufficient evidence to rebut the presumption that the jury followed the trial court’s instruction. See State v.13. Doren, 6th Dist. Wood No. WD-06-064, 2009-Ohio-1667 (holding that a ju ry’s continued inquiry regarding conduct it was ordered to disregard rebuts the presumption that the jury followed the trial court’s curative instruction). {¶ 16} Further, we find that the jury’s failure to follow the trial co urt’s instruction prejudiced appellant’s right to a fair trial. In the instant c ase, where appellant and the victim had opposing stories about the circumstances of the figh t that took place between them, and where the defense proposed that Castro’s testimony in support of the victim’s story may, in fact, have referred to an altogether different co nfrontation, the critical issue was the jury’s determination of the witnesses’ credibility. It is with this situation in mind that we consider the misconduct allegations, because impropriet ies affecting the jury’s credibility determinations were most likely to have prejudiced appellant. See State v. Cody , 8th Dist. Cuyahoga No. 77427, 2002-Ohio-7055, ¶ 23 (where the critical issue was witness credibility, misconduct affecting the jury’s credibilit y determinations were deemed most likely to have prejudiced the defendant). {¶ 17} The prosecutor, in suggesting that there existed other written statements that corroborated the testimony of Mr. Castro, clearly engaged in improper vouching that bolstered Castro’s and the victim’s testimony by implying knowl edge of facts outside the record. See Graham , 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3dd 841, at ¶ 96;

Davis at ¶ 232. And despite the trial court’s curative instruction, the jury demonstrated sustained curiosity about the existence of additional eyewitnes s statements that would corroborate Mr. Castro’s statement. Given that the final jury instructions on the matter14. were as nonspecific as the initial, clearly ineffective, curati ve instruction, we find that the jury’s failure to disregard the prosecutor’s improper statement resulted in substantial prejudice to appellant, such that a fair trial was no longer po ssible. See Westwood at ¶ 42. Therefore, we are compelled to find that the trial court abused its discretion by refusing to declare a mistrial. Cantrill , 6th Dist. Lucas No. L-18-1047, 2020-Ohio-1235, at ¶ 47. Appellant’s assignment of error is found well-taken. {¶ 18} For all of the foregoing reasons, the judgment of the Wood Coun ty Court of Common Pleas is reversed. This matter is remanded for proce edings consistent herein. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment reversed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ________________
_______________ JUDGE Gene A. Zmuda, P.J.

_______________________________ Myron C. Duhart, J. JUDGE CONCUR.

_______________________________ JUDGE This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.