IN THE SUPREME COURT OF OHIO

STATE OF OHIO

Appellee

-vs-

SHAWN MCGRATH

Appellant

On Appeal from theCuyahoga County Courtof Appeals, EighthAppellate District Courtof AppealsCA: 88855

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT SHAWN MCGRATH

ROBERT L. TOBIK, ESQ.Cuyahoga County Public DefenderBY: JOHN T. MARTIN, ESQ. (COUNSEL OF RECORD)# 0020606Assistant Public Defender310 Lakeside AvenueSuite 200Cleveland, OH 44113(216) 443-7583(216) 443-3632 FAX

COUNSEL FOR APPELLANT, SHAWN MCGRATH

WILLIAM MASON, ESQ.Cuyahoga County ProsecutorThe Justice Center - 9`h Floor1200 Ontario StreetCleveland, OH 44113(216) 443-7800

FIN

NOY U 8 M0i

CLERK OF COURTSUPREME COURT OF OMIO

COUNSEL FOR APPELLEE, THE STATE OF OHIO

TABLE OF CONTENTS

PAGES

EXPLANATION OF WHY THIS CASE RAISES SUBSTANTIALCONSTITUITONAL QUESTIONS AND IS A MATTER OF GREAT PUBLICAND GREAT GENERAL INTEREST ...............................................................................1

STATEMENT OF THE CASE ............................................................................................2

STATEMENT OF THE FACTS .........................................................................................3

ARGUMENT ...................................................................... ................................................. 5

Proposition of Law I.-

Trial counsel is ineffective when counsel fails to ensure that a jury isinstructed about the limited admissibility of evidence that is only admissiblefor a limited purpose ..............................................................................................5

Proposition of Law II:

When a timely motion for directed acquittal has been made at the close of theState's case-n-chief, it is incumbent upon the appellate court to examinewhether the State failed to establish a prima facie case during its case-in-chief, the trial court's failure ...............................................................................6

Proposition ofLaw III:

Persons whose felonious conduct was committed prior to February 27, 2006,must be sentenced to minimum and concurrent terms of imprisonment.........8

CONCLUSION ..................................................................................................................14

S ERV ICE ...........................................................................................................................14

APPENDIXOpinion Eighth District Court of Appeals - State v. Shawn McGrath 2007 Ohio 4682..A1

I

EXPLANATION OF WHY THIS CASE RAISES SUBSTANTIAL CONSTITUITONALQUESTIONS AND IS A MATTER OF GREAT PUBLIC

AND GREAT GENERAL INTEREST

The instant case raises three issues that are worthy of this Court's review. First, this Court

is asked to examine whether counsel is ineffective when counsel fails to request a limiting

instruction that, if given, would prevent the jury from considering certain hearsay evidence for its

truth. The failure of trial attorneys representing criminal defendant to request such instructions is

altogether too common. As a result, juries are exposed daily in courts throughout the State to

evidence that is being considered without limitation when, under the law, it should have only

been considered for a limited purpose. This is particularly prevalent with respect to hearsay

statement admissible for purposes other than their truth.

The policy and practical effects of accepting this case will be to instruct trial courts and

the defense bar on the need to be observant of rules regarding limited admissibility. Prosecutors

will benefit as well by being reminded of their responsibility, as attorneys for the sovereign, to

remind trial courts of the danger of unlimited admissibility of evidence whose value is not

unlimited.

The rules of evidence are the language of the trial court. When the players on the trial

stage -judges, prosecutors and, in this situation particularly, defense counsel, fail to be mindful

of that language, defendants' fates are left in the hands of the illiterate. When the client's

"mouthpiece" cannot speak the language of the trial court, advocacy is ineffective.

The second proposition of law raises an issue in a criminal context upon which this Court

has recently rendered a related decision in a civil context. Mr. McGrath maintains that the

evidence was insufficient to sustain his conviction for domestic violence. In holding against him

on appeal, the Eighth District reviewed all of the evidence in the case, particularly evidence

2

elicited during cross-examination of a defense witness. In Williams v. City ofAkron, 107 Ohio

St.3d 203, 2005-Ohio-6286, this Court held recognized that courts of appeals should look at the

evidence presented in the plaintiff's case-in-chief in order to detennine whether a prima facie

case was made; this Court departed from the federal practice to the contrary. Applying Williams

to a criminal case is important. It reminds trial courts and defense counsel of the need to be

thorough in making motions for directed acquittals afler the State has rested - because the State

must have offered prima facie evidence of all elements by that time. And it ensures that appellate

courts will be able to review that very important ruling of the trial court when the motion for

directed acquittal is denied.

Finally, the third proposition of law raises an issue that is before this Court in State v.

Elmore, Case No. 2007-475. Elmore is a death penalty case in which this issue relates to a non-

capital count. This Court is asked to accept this Proposition and hold it for the decision in

Elmore. If, for some reason, the issue is not decided in Elmore, then this Court is requested to

establish a briefing schedule for the issue as it relates to this case.

STATEMENT OF THE CASE

Defendant-Appellant Shawn McGrath was indicted for five crimes:

Felonious assault, to wit: causing physical harm with a deadly weapon,against Kaylee Jackson, a second-degree felony (Count One).

Domestic violence against Kaylee Jackson, a first degree misdemeanor(Count Two).

Assault on Cleveland Police Officer Robert Nagy, a fourth degree felony(Count Three).

Assault on Cleveland Police Officer Edward Schulte, a fourth degreefelony (Count Four).

Resisting arrest, a third degree misdemeanor (Count Five).

3

The case proceeded to trial by jury. Prior to submission of the case to the jury, Count One

was reduced to a misdemeanor assault, to wit causing physical harm against Kaylee Jackson. The

jury retumed guilty on all counts as submitted to them.

Mr. McGrath was then sentenced to a total of three years: maximum and consecutive

eighteen month terms of imprisonment on Counts Three and Four, to run concurrently with six-

month jail terms on Counts One and Two and a three-month jail term on Count Five. Post-

release control was imposed for three years.

This appeal follows.

STATEMENT OF THE FACTS

On February 17, 2006, Officers Nagy and Schulte responded to Mr. McGrath's residence

in Cleveland at approximately 2:30 a.m. There, they initially spoke near the street in front of the

house with Jessica Jackson, the sister-in-law of Kaylee Jackson (the alleged victim in Count

One). While speaking with Jessica Jackson, the officers heard a scream from the rear of the

residence and proceeded in that direction. There, they saw Mr. McGrath with his hands around

Kaylee Jackson's neck; she was gagging.

As the officers arrived, Mr. McGrath ran back to his residence. Officer Nagy yelled to

Mr. McGrath, who was five feet ahead of Nagy that he was under arrest. Mr. McGrath continued

and entered the residence through a sliding glass door. Officer Nagy Officer Nagy grabbed the

rear waistband of Mr. McGrath's pants in an attempt to pull Mr. McGrath out of the house. Mr.

McGrath dragged Office Nagy (who was still holding Mr. McGrath's pants) into the house. Mr.

McGrath attempted to close the sliding glass door, slamming the door on Officer Nagy's arm.

As a result, Office Nagy received a minor bruise on his right arm, which was "a wee bit sore."

4

Meanwhile, Officer Schulte carne to Officer Nagy's aid and placed his own hand between

the partially open door and the door jam, in an effort to prevent Mr. McGrath from closing the

door. During the ensuing struggle over whether the door would or would not be closed, Officer

Schulte received an abrasion on the knuckles of his right hand; his right hand hurt for a moment

but he suffered no further injury.

During the struggle, the officers were able to wedge a flashlight into the door path and,

eventually, to gain entrance by breaking the glass door and derailing the door from its sliding

track. During the ongoing struggle, Officer Nagy injured his left shoulder.

Once inside, the officers confronted Mr. McGrath, who initially squared off as if to fight,

but eventually submitted to police authority and was arrested. Mr. McGrath was subsequently

treated for back injuries.

At the scene, the police spoke with Kaylee Jackson, who told them that she lived at Mr.

McGrath's residence. At trial, Kaylee Jackson testified as a defense witness that she did not

reside there and had only said that to the police so that she would be allowed to remain at the

residence that evening after Mr. McGrath was arrested. The police testified that, at the scene, Ms.

Kaylee Jackson stated that she had been assaulted by Mr. McGrath. At trial, Ms. Kaylee Jackson

denied that she ever said this and affirmatively testified that she had never been stricken or

harmed by Mr. McGrath that evening - she testified that she had assaulted him and that the only

thing the police saw was Mr. McGrath calming Ms. Jackson down after she had hit him.

At trial counsel never requested that the jury be instructed that Kaylee Jackson's prior

statements to the police were not admissible for their truth, but only insofar as they were

probative of the credibility of her sworn testimony at trial.

5

ARGUMENT

Proposition ofLaw I.•

Trial counsel is ineffective when counsel fails to ensure that a jury is instructedabout the limited admissibility of evidence that is only admissible for a limitedpurpose.

Mr. McGrath's trial counsel failed to provide him with the effective assistance of counsel in

several key aspects of the trial. In all criniinal prosecutions an accused has the right to the effective

assistance of counsel. Strickland v. Washington (1984), 466 U.S. 668, 686; Sixth Amendment,

United States Constitution; and Art. I, Sect. 10, Ohio Constitution. Counsel's deficiencies in this

regard are several.

First, counsel erred in a critical fashion by not asking the trial court to instruct the jury that

Ms. Kaylee Jackson's statements to the police were not admissible for the truth of the matter

asserted - only for impeachment. Evid. R. 801. See generally, United States v. Ince (C.A. 4,

1994), 21 F.3d 576 (construing Fed. R. Evid. 801 and condemning prosecution's use of prior

statements as substantive evidence when the statements should only have been admitted for

impeachment). Without these statements, the domestic violence conviction in Count Two could not

have occurred, because the Kaylee Jackson and Mr. McGrath never cohabited and thus never lived

as a spouse under the definition of "living as a spouse" given to the jury.

Similarly, without Ms. Kaylee Jackson's statements to the police being considered, the jury

may well have acquitted Mr. McGrath on Count One, simple assault of Ms. Jackson, While Officer

Nagy testified that Ms. Jackson was gagging and that Mr. McGrath had his hand on her throat, this

testimony was contradicted by Ms. Jackson's swom testimony that Mr. McGrath never assaulted

her. Faced with these contradictions, the jury may well have decided to believe Ms. Jackson's

statement at the time that she was assaulted - which is precisely what the jury was not allowed to

do. Evid. R. 801.

6

Second, counsel similarly erred in not requesting a linliting instruction with respect to the

out-of-court statements of objecting to the out-of-court statement that Jessica Jackson made to the

police when they arrived - to the effect that a man was beating a woman in the back of the house.

Again, the jury may well have considered this evidence as pivotal in breaking the stalemate between

the police observations of an assault and Kaylee Jackson's adamant denial that she was assaulted.

Because counsel's performance must be viewed 'ni the aggregate, and because counsel's

performance was, in the aggregate, ineffective, all convictions must be reversed and the case

remanded for a new trial.

In rejecting this proposition on appeal, the Eighth District dismissed the issue because there

was not a reasonable probability that the result at trial would have been different. Respectfully, the

Eighth District was in error. Here, there is no assurance that the jury would have believed the police

officer's testimony about what he observed as he ran upon the scene, when the alleged victim,

Kaylee Jackson, testified at trial that she was never assaulted. This type of contradiction in the

evidence in the State's case was such that the court should have concluded that confidence in the

outcome had been undermined. Strickdand. As such the convictions should all be reversed.

Proposition of Law II.•

When a timely motion for directed acquittal has been made at the close of theState's case-n-chief, it is incumbent upon the appellate court to examine whether theState failed to establish a prima facie case during its case-in-chief, the trial court'sfailure

The evidence was insufficient to sustain the conviction for domestic violence in Count

Two. Accordingly, Mr. McGrath's conviction for Count Two violates federal due process. U.S.

Const. Amends. V, XIV. .Iackson v. Virginia (1979), 443 U.S. 307. See also, State v. Thompkins

(1997), 78 Ohio St.3d 380; Ohio Const. Art., Sec. 10; A criminal conviction is not supported by

7

sufficient evidence when the prosecution has failed to "prove beyond a reasonable doubt every fact

necessary to constitute any crime for which it prosecutes a defendant." State v. Robinson (1976), 47

Ohio St.2d 103, 108, citing In Re Winship (1970), 397 U.S. 358. In such a situation, due process

demands are great and "neither a trial court nor an appellate court may abdicate its responsibility to

enter a judgment of acquittal when the evidence is legally insufficient to support a conviction." State

v. Goodin (1979), 56 Ohio St.2d 438, 442.

In order to convict Mr. McGrath of domestic violence, the jury was required to find that

Kaylee Jackson was a family or household member. R.C. 2919.25. The only applicable portion

of the statute that applied in this case was that Kaylee Jackson was "living as a spouse" with

Shawn McGrath. Indeed this was the only applicable theory on which the jury was charged.

Here, there was no evidence, admissible for its truth, that supported this conclusion and

which was introduced during the State's case-in-chief. Kaylee Jackson's statement to the police

to the contrary were not admissible for their truth. See supra. Thus, there was no evidence of

cohabitation and thus no evidence that Ms. Kaylee Jackson was "living as a spouse

with Mr. McGrath. The defense motion for a directed acquittal should have been granted.

Williams, supra.

Moreover, even the evidence viewed in its entirety was insufficient to sustain the

conviction for this Count. Jackson testified that she did not live with Mr. McGrath at that time.

The court of appeals, in rejecting this argument, seized upon what Jackson acknowledged that

she told the police at an earlier time. Again, these statements were not affirmed in open court by

Jackson, they were merely acknowledged. Thus, they continued to be prior statements, made out

of court and not admissible for their truth. See supra.

8

The Eighth District also seized upon Jackson's saying that she and McGrath "have no

curtains" at McGrath's residence. While this might be evidence that the two were living together

at the residence at the time of trial and that she was aware that there were not curtains on the

window at the time of the alleged offense it does not support a conviction premised upon her

actually residing with McGrath at the time of the offense.

Proposition ofLaw III.•

Persons whose felonious conduct was committed prior to February 27, 2006, mustbe sentenced to minimum and concurrent terms of imprisonment.

On February 27, 2006, ten days after Mr. McGrath's alleged offense conduct, in State v.

Foster 109 Ohio St.3d 1, 2006-Ohio-856, the Ohio Supreme Court held that sentences that

exceed minimum and concurrent terms of imprisonment violated the Sixth Amendment. Foster,

at ¶¶ 61, 64, 67. Foster, also correctly recognized that the remedy to be applied lay in one of

three directions: jury determination of the required sentencing findings, imposition of minimum

and concurrent terms, or severing the requirement of findings from the statutory scheme. Foster

at ¶ 85. Foster chose the last option, employing severance pursuant to R.C. 1.50. Foster at ¶¶ 92,

96-97. In so doing Foster overruled the remedy it prescribed in State ex rel. Mason v. Griffzn

(2004), 104 Ohio St.3d 279, 282 ("Moreover, insofar as Judge Griffin determined that Blakely

might render these statutes unconstitutional, he should apply the pertinent sentencing statutes

without any enhancement provisions found to be unconstitutional by him.").

As a matter of due process and ex post facto, Foster's new remedy cannot apply to

persons who committed their crimes prior to Foster having been decided.

1. Basic Principles of Ex Post Facto and Due Process

9

The Ex Post Facto Clause of Article I, Section 10 of the United States Constitution

prohibits, among other things, any legislation that "changes the punishment, and inflicts greater

punishment, than the law annexed to the crime, when committed." Miller v. Florida (1987), 482

U.S. 423, 429, quoting Calder v. Bull (1798), 3 Dall. 386, 390. The Ex Post Facto clause "looks

to the standard of punishment proscribed by the statute, rather than to the sentence actually

imposed." Lindsey v. Washington (1937), 301 U.S. 397, 401. Regardless of whether the change

"technically" increased the punishment for the crime, the legislative enactment falls within the ex

post facto prohibition if it: 1) is retrospective; and 2) disadvantages the offender affected by it.

Miller, at 430-32.

Although the Ex Post Facto Clause "does not of its own force apply to the Judicial

Branch of govenunent," the United States Supreme Court has recognized "that limitations on ex

post facto judicial decisionmaking are inherent in the notion of due process." Rogers v.

Tennessee (2001), 532 U.S. 451, 456. In Bouie v. South Carolina (1964), 378 U.S. 347, 356, the

United States Supreme Court held that the South Carolina Supreme Court's retroactive

application of its construction of the State's criminal trespass statute violated due process. The

Court explained that "an unforeseeable judicial enlargement of criminal statute, applied

retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution

forbids." Id. at 353. Given the similar impact of judicial decisionmaking and legislation on the

rights of criminal defendants, the fundamental principle that "the required criminal law must

have existed when the conduct in issue occurred" must be applied to restrict the retroactive

application of both. Id. at 354. In short, the Court explained:

If a state legislature is barred by the Ex Post Facto Clause from passing [aretroactive law], it must follow that a State Supreme Court is barred by theDue Process Clause from achieving precisely the same result by judicialconstruction.

10

Id. at 353. The Supreme Court emphasized that the petitioners lacked fair warning of the new

interpretation afforded the criminal trespass statute as it was "clearly at variance with the

statutory language" and it did not have "the slightest support in prior South Carolina decisions."

Id. at 356. Although Bouie involved a judicial attempt to expand the reach of a criminal statute,

subsequent courts have held that the due process clause likewise proscribes judicially-imposed

changes in how laws are interpreted when those changes unforeseeably expand upon the

punishment attendant to a conviction in ways that the defendant could not have anticipated at the

time he or she engaged in the offense conduct giving rise to the conviction. Devine v. New

Mexico Dep't of Corrections (C.A. 10 1989), 866 F.2d 339, 344-45.

2. Retroactive Application of Foster's Remedy Violates the Basic Principles of Ex

Post Facto and Due Process

As there can be no dispute that the application of the remedial portion of Foster to

criminal defendants' resentencing hearings is retroactive within the meaning of the Ex Post Facto

and Due Process Clauses, the ensuing discussion focuses on how the remedy constitutes a

marked departure from Ohio's prior sentencing law operating to the disadvantage of criminal

defendants.

a. Comparison ofPre- and Post-Foster Sentencing Regimes

As the Foster Court recognized, prior to its opinion, criminal defendants enjoyed a

presumption of a minimum and concurrent sentence pursuant to R.C. 2929.14(B), 2929.14(C),

and R.C. 2929.14(E)(2). See, e.g., Foster, at ¶¶ 60, 64, 97, 102. The trial court could only

impose "more than minimum," maximum, and/or consecutive sentences if it found certain

factors had been established. R.C. 2929.14(B), 2929.14(C), R.C. 2929.I4(E)(2). Moreover,

because, prior to the release of the decision in the instant case, Ohio's sentencing law

11

"provide[d] precise guidance for criminal sentencing within clearly defined constraints" and

required trial courts to follow "an articulated process when determining a sentence," it

"accord[ed] meaningful review of these sentencing decisions by the appellate courts." State v.

Corner (2003) 99 Ohio St. 3d 463, 465-66. A trial court could only impose a sentence that

exceeded the presumption if it made the statutorily required findings, gave reasons for those

findings, and "clearly align[ed]" its reasons with the findings they purport to justify. Id. at 467-

68; See State v. Edmonson (1999), 86 Ohio St. 3d 324, 325 and 328-29. If the trial court failed to

precisely follow the articulated process provided by the statute or if its findings and/or reasons

were insufficient, the sentence would be vacated and reversed on appeal. The requirement of

findings, and the further requirement of reasons in support of findings for imposing maximum

and consecutive terms, thus (a) limited the discretion of the trial court and, (b) as the Ohio

Supreme Court explained in Comer, provided a basis for "an appellate court [to] conduct a

meaningful review of the sentencing decision." 99 Ohio St. 3d at 468.

The retroactive application of the remedy in the instant case to resentencing hearings as

well as to new sentencing hearings for pre-Foster crimes, would cause criminal defendants to be

substantially disadvantaged in each of these two critical respects. First and foremost, they are

divested of the presumption of minimum and concurrent terms of imprisonment when facing

their sentencing judges at the trial court. Second, they lose the meaningful appellate rights that

existed prior to Foster. Before Foster, a defendant enjoyed a presumptive minimum-and-

concun•ent sentence, and, if he received a sentence greater than the presumption, he could be

assured a new sentencing hearing if the trial court failed to make the necessary findings, made

erroneous findings or failed to provide reasons for those findings made in support of maximum

or consecutive tenns. See State v. Mathis (2006), 2006-Ohio-855, ¶¶ 34, 37 (explaining that

12

"pre-Foster, R.C. 2953.08(G)(1) provided an opportunity for remand to the trial court if required

findings were missing" for a de novo sentencing hearing). If Foster's remedy is retroactively

applied to resentencings, these important rights, quite unexpectedly, will be lost.

b. Due Process Precludes the Retroactive Application of the SeveranceRemedy

By abolishing the statutory presumptions and eliminating critical appellate rights, Foster

has radically revised Ohio's sentencing law to the disadvantage of criminal defendants. Due

process prevents the retroactive application of this detrimental revision.

Although it involved state legislation rather than judicial decisionmaking, the United

States Supreme Court's opinion in Miller illustrates the fundamental problem with the retroactive

application of Foster's severance remedy. In Miller, the Supreme Court addressed a Florida law

that altered the presumptive sentencing range for particular offenses. 482 U.S. at 424. At the

time the defendant committed the crime for which he was convicted, Florida's sentencing

guidelines resulted in a presumptive sentence of 3 1/2 to 4 1/2 years of imprisonment. Id. The

sentencing judge "had discretion to sentence an offender anywhere within the presumptive range

without the requirement of a written explanation. Id. at 426. If, however, the sentencing judge

wished to depart outside of the range, he or she must "give clear and convincing reasons in

writing for doing so." Id. By the time the defendant in Miller was sentenced, the Florida

legislature had revised the sentencing guidelines such that the defendant's presumptive sentence

would have been 5 1/2 to 7 years. Id. Rejecting the defendant's ex post facto argument, the

sentencing judge applied the revised guidelines in effect at the time of sentencing and imposed a

sentence of 7 years. Id. at 428. The Supreme Court of Florida affirmed the trial court, finding

the modification of the sentencing guidelines did not implicate the Ex Post Facto Clause.

13

In a unanimous decision, the United States Supreme Court reversed the Florida Supreme

Court. Id. at 429. The Court began by noting that central to the ex post facto prohibition is a

concern for "the lack of fair notice and governmental restraint when the legislature increases

punishment beyond what was prescribed when the crime was consummated. " Id. at 430

(quoting Weaver v. Graham (1981), 450 U.S. 24, 28-29). Finding immaterial the claim that the

defendant could not definitively show he would have got a lesser sentence under the old

guidelines, the Supreme Court concluded that petitioner has been "substantially disadvantaged"

by the retroactive application of the revised guidelines, which allowed the judge to impose a

higher sentence than previously contemplated, without having to furnish reasons in support of

that higher sentence. Id. at 431-33.

For the reasons expressed in Miller, the Ex Post Facto Clause would prohibit the Ohio

General. Assembly from eliminating the statutory presumptions in Ohio's felony sentencing law

and applying that change retroactively. As in Miller, Ohio defendants had the expectation of

presumptive (minimum and concurrent) sentence that could only be overcome by judicial

findings, and of appellate rights which would ensure that any enhanced sentence rested squarely

on a permissible basis. The elimination of any presumptive sentence and the corresponding

diminished ability to challenge on appeal a departure from that presumptive sentence

substantially disadvantages criminal defendants. Accordingly, such legislation could not be

retroactively applied to defendants whose offense conduct pre-dated the legislation.

In Foster, the Ohio Supreme Court has attempted to do by judicial fiat that which the

Ohio General Assembly is precluded from doing by the Ex Post Facto Clause. As explained in

Bouie and Dale, the Due Process Clause can not countenance such a result. For defendants

whose criminal conduct pre-dates February 27, 2006, the severance remedy is unavailable as a

14

matter of constitutional law. As Foster recognizes, the decision to abolish sentencing

presumptions for criminal defendants constitutes a marked and unpredictable departure from the

law passed by the General Assembly. See, Foster, at ¶ 87 (explaining that "[t]he General

Assembly undoubtedly never anticipated that the judicial-finding requirements contained within

S.B. 2 would be held unconstitutionaP'). Given this unexpected and detrimental departure, due

process precludes the retroactive application of the now-severed provisions to defendants, such

as Mr. McGrath, whose offense conduct pre-dates the release of the opinion in Foster.

CONCLUSION

Wherefore, this Court should accept the instant case for plenary review and briefing on

Propositions of Law I and II, and hold Proposition of Law III pending the determination of State

v. Elmore, supra.

T.IVIARTIN, EAssistant Public Defender

SERVICE

^^^^r>D62y3Z.

A copy of the foregoing was mailed to William D. Mason, Cuyahoga County Prosecutor,

/47Justice Center, 1200 Ontario Street, 9th Floor, Cleveland, Oliio 44113 on this P day of

November, 2007.

J^fiI T. MARTIN, ESQ.sistant Public Defender

m` At^^ SEP 2 4 2007

A^^pta1o of (94tu,.._.taal SEP 2b P l:

rtt,.-.^ .,•

-

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

,.^l..L.,.'^^,., ^,`^,•-.^(,l. .^.t:,^ ^ii ... ..

JOUR.NAL ENTRY AND OPINIONNo. 88855

STATE OF OHIO

PLAINTIFF-APPELLEE '

vs.

SHAWN McGRATH^^^0.7P

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case No. CR-477817

BEFORE: Sweeney, P.J., Blackmon, J., and Stewart, J.

RELEASED: September 13, 2007

JOURNALIZED: SEP 2 4 2007

,JEE

TAXED

CA06088855 47746551

11111111111 Imi-064 s PR0477

ATTORNEY FOR APPELLANT

Robert L. TobikCuyahoga County Public DefenderJohn T. Martin, AssistantPublic Defender310 Lakeside AvenueSuite 200Cleveland, Ohio 44113

ATTORNEY FOR APPELLEE

William MasonCuyahoga County ProsecutorMatthew T. Waters, AssistantProsecuting Attorney1200 Ontario StreetCleveland, Ohio 44113

FILED ,RANDPPOR.R2 ^^ZED

SEP 2 4 2007

qEpALD E. PUERST

CLERK 06^FM^nCQURT OF APPEALS^ l^ // `

BY

p,M, 01101.0iCEF,IENT OF DECISIONPER A3'P.RR^ ^IBi,,T Sr(D),;^^^ 26(^

SEP 13 2007

CA06088855 47517331

I I^IIII'I'II I^'^I II^II II'lll"" III^' III'I Ilf^ I"^

QEBiALO E. PUERSTOLERK OF E3lE 0 E^RT9F APP D^'

ff3Y

N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D)and 26(A); Loc.App.R. 22. This decision will be journalized and will become thejudgment and order of the court pursuant to App.R. 22(E) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days ofthe announcement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this Court's announcementof decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

V01;0643 P90478.

JAMES J. SWEENEY, P.J.:

Defendant-appellant, Shawn McGrath ("defendant"), appeals from his

convictions and three-year prison sentence for the following offenses: assault,

domestic violence, two counts of assaulting a police officer, and resisting arrest.

For the reasons that follow, we affirm.

On February 17, 2006, at approximately 2:30 a.m., patrolmen Nagy and

Schulte responded to a call that reporEed a male beating a female at a residence

on West 915t Street in Cleveland, Ohio. They spoke with the sister-in-law of the

reported victim. They heard a female screaming in the backyard of a house next

door. The officers ran up the driveway and observed the defendant squatting

directly in front of the victim and choking her. He had his right hand around

her neck. She was gagging and he was pointing the other finger at her as if

admonishing her about something.

When defendant saw the police, he got up and attempted to enter the rear

of the house through a sliding glass door. Nagy told defendant to stop and that

he was under arrest. Defendant failed to comply, causing Nagy to grab the back

of defendant's pants in an effort to pull him back out of the house. Defendant

turned around and slammed the door on Nagy's arm, causing him pain. A few

minutes later, Officer Schulte began to assist Nagy in trying to pull the door

open. Defendant was still trying to shut the door. At one point, defendant closed

100643 P00479

-2-

the door so far that he actually bruised Schulte's knuckles on his right hand.

The State introduced a photograph which depicted Officer Schulte's hand injury.

It was dark inside of the house and the officers were concerned for their

safety. They were trying to prevent a standoff with defendant when they

proceeded to break the sliding glass door. Nagy injured his left elbow when he

pulled the door off the sliding track in pursuit of defendant. Nagy was treated

at Lakewood Hospital's emergency room for a left elbow strain that day and was

still receiving treatment for this injury as of the date of trial.

Defendant took a few steps back into a`Y"ighting stance." Eventually,

defendant submitted to his arrest.

The officers then spoke with the victim, who was intoxicated. She had

blood around her lips and her neck was visibly reddened. The victim was crying

quite a bit and her eyes were bloodshot. She was defendant's girlfriend and

reported living at the same address. The victim became uncooperative and

stated she no longer wished to have defendant arrested. She also refused

medical attention.

There was a'vehicle in the driveway that had been damaged, with a dent

above the driver's door and the driver's side door window smashed out.

The State rested following the testimony of Officers Nagy and Schulte.

yfl0 643 PR0480

-3-

The victim, Kalee Jackson, testified on behalf of the defendant.

February 17, 2006, Jackson drove from her "hometown" of Lisbon, Ohio to

defendant's residence in Cleveland. She drove defendant's car, which she was

purchasing from him. She was pretty drunk when she arrived at defendant's

residence.

Jackson began fighting with defendant because he did not want to go

downtown with her because she was already really drunk. According to Jackson,

the defendant kept trying to get the keys away from her. She testified that her

screaming was related to her efforts to keep and/or get her keys back from

defendant. She denied that defendant hurt her in any way.

Jackson said she ran down the driveway because she somehow locked her

keys inside the car with her purse. There she found her sister-in-law in a

taxicab. But, Jackson then ran back up the driveway because she had no money

(as her purse was inside the car). This is when she noticed that the window on

her car was broken. Jackson grabbed her purse and wanted her keys again

"because he [defendant] had gotten [her] keys again." Jackson then pushed, hit,

and kicked the defendant. Defendant then grabbed her face and was trying to

calm her down and kissed her.'

l0n cross-examination, Jackson stated that defendant grabbed her hands and"that's when he calmed [her] down."

-VR,@ 6 4 3 P,G04 81

.4-

The next thing Jackson heard was "hold it" and that's when defendant ran

into the house. Jackson testified that defendant shut and locked the sliding

door. Then, the officers broke the door. She does not recall either officer getting

their hands or arms caught in the door.

Jackson was questioned by the officers and was still angry that defendant

would not just let her leave. She denied that she was bleeding that night.

Jackson believed that she had a bloody lip from kissing defendant, who she

claimed was the one that was bleeding. She denied sustaining any injuries.

Jackson admitted that she refused to be photographed after the incident and

that she refused medical attention. The next day she went to the police station

to sign a statement that she was not going to press charges against defendant.

She found out later that evening that she was pregnant with defendant's child.

Jackson also testified that she had been in a relationship with defendant

off and on for the past two years. Defendant is the father of her child. She

stated that. she had been "living back down home for over a month before

[February 17, 2006]." She and defendant were dating and having sexual

relations.

The State questioned Jackson about her place of residence on the date in

question:

"Q. Okay. And they [the police] asked you for your address?

%JG43 PG0482.

-5-

"A. Yeah.

"Q. You told them West 91s`?

"A. Yeah: But I live - My dad's - I live there. Before I was pregnant my

dad always said I had hot feet. I'm all over the place.

«^^*

"Q. You told the officerrs that you and the Defendant lived together for the

past nine months?

"A. I might have. I can't really recall saying that about living with him

for nine months. I might have said off and on for nine months because that's

about what it was. We were off and on.

[{***

"Q. You gave them the West 9156 address?

"A. Yes. And I told them also my mailing address is the 41009 because

I'm everywhere. I mean, I don't really know what to say about that. I mean,

now I'm a little more tied down than what I used to be."

Later iin trial, Jackson denied living at the West 915` Street address.

However, during other testimony concerning defendant's arrest, Jackson was

asked if there were curtains on the windows. She responded "No, we have no

curtains."

Jackson never gave a written statement to police.

V61Q643 Pg0483

-6-

The defense rested after Jackson's testimony.

The State called Officer Nagy as a rebuttal witness. Nagy testified

concerning statements Jackson made to him on February 17, 2006. Jackson

stated that she parked her car in defendant's driveway. Defendant came out and

broke the driver's window when Jackson was still sitting in the driver's seat.

Defendant pulled Jackson from the car, hit her in the face, and then choked her.

Shortly after, Jackson stated she did not want defendant arrested. She

told police that she lived at 2086 West 91s` Street. Jackson indicated that she

had lived there for the past nine months. .

Defendant made an oral motion pursuant to Crim.R. 29 on counts one

through five. The State requested the court to consider a lesser included offense

under count one of misdemeanor assault. Subsequently, the State moved to

amend count one of the indictment pursuant to.Crim.R. 7(D) to a violation of

2903.11(A)(1). The trial court allowed an amendment on oount one of the

indictment that reduced the charge from felonious assault to misdemeanor

assault.

The.jury fouind defendant guilty of the following: assault in violation of

R.C. 2903.13(A); domestic violence in violation of R.C. 2919.25(A); two counts of

assaulting a police officer in violation R.C. 2903.13(A); and resisting arrest in

violation of R.C. 2921.33(A).

1^:=t^643 F60484

-7-

On September 8, 2006, the trial court conducted a sentencing hearing.

During sentencing, defense counsel acknowledged that Ohio Supreme Court

precedent had excised certain portions of the sentencing statutes, particularly

R.C. 2929.14(B), R.C. 2929.19(B), and R.C. 2929.41 and that "there is no judicial

fact finding necessary for either maximum or consecutive terms:"

The trial court considered the factors of the sentencing law with the stated

intention of imposing "a sentence commensurate with these. factors and not

demeaning the seriousness of the offense." The court noted that the offenses

involved "extremely serious conduct." The court further-considered that

defendant was choking the victim, broke the car window, disregarded police

orders, injured the officers, and resisted arrest. The trial court considered

defendant's prior record, which included a previous kidnapping and assaults of

other women. Defendant has numerous. probation violations: in his history and

prior incarceration. The trial court ' considered defendant a danger to the

community and likely to re-offend. Defendant was sentenced .to serve six month

terms for the assault and domestic violence charges, 18-month terms on the

assault convictiozis on counts three and four, and 90 days for resisting arrest.

The court ran the 18-month sentences consecutive to each other and concurrent

to the terms imposed on the remaining counts. The trial court found that

"defendant [received] consecutive terms because. [he] pose[s] the greatest

YO:O 6 43 P;u0 4 €i5

-8-

likelihood of committing future crimes." The court went on to give various

reasons in support of that finding.

The assignments of error will be addressed in the order presented for

review.

"I. Mr. McGrath was denied the effective assistance of couinsel."

To show that a defendant has been prejudiced by counsel's deficient

performance, the defendant must prove that there exists a reasonable

probability that, were it not for counsel's errors, the result of the trial would

have been different. Strickland v. Washington (1984), 466 U.S. 668. Counsel's

performance is deficient if it falls below an objective standard of reasonable

representation. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the

syllabus. To establish prejudice, "the defendant must prove that there exists a

reasonable probability that, were it not for counsel's errors, the result of the trial

would have been different." Id. at paragraph three of the syllabus.

Defendant maintains that his counsel was ineffective.because he did not

request a limiting instruction that Jackson's statements to police could only be

considered for purposes of impeachment. See Evid.R. 801 and 607.

Defendant believes that Jacksoin's statements to police were the. only

evidence that she cohabited with the defendant and that but for them; his

P,914643 ?0O406

-9-

conviction for domestic violence could not have occurred. The record reflects

otherwise.

As set forth in detail above, Jackson testified at trial that she cohabited

with defendant off and on for a period of nine months preceding the incident of

February 17, 2006. In State v. Williams (1997), 79 Ohio St.3d 459, the Ohio

Supreme Court held:

"The offense of domestic violence *** arises out of the relationship of the

parties rather than their exact living circumstances.

"The essential elements of 'cohabitation' are (1) sharing of familial or

financial responsibilities and (2) consortium." Id., paragraphs 1 and 2 of the

syllabus.

R.C. 2919.25(F)(2) provides:

"`Person living as a spouse' means a person who is living or has lived with

the offender in a common law marital relationship, who otherwise is eohabiting

with the offender, or who otherwise has cohabited with the offender within five

years prior to the date of the alleged commission of the act in question."

In Williams, the Ohio Supreme Court . declined to employ a narrow

definition of "reside" by limiting "`family and household members' to those who

actually share one.residential address." Id. at 462; see, also, State v. Carswell,

_ Ohio St.3d _, 2007-Ohio-3723, 135. Instead, the court found that "the

•9,0b 4 0 Pa 04A 7

-10-

offense of domestic violence arises out of the relationship itself, not the fact that

the parties happen to share one address." Id. at 463. The court suggested that

"[p]ossible factors establishing shared familial or financial responsibilities might

include provisions for shelter, food, clothing, utilities, and/or commingled assets.

Facts that might establish consortiuin include mutual respect, fidelity, affection,

society, cooperation, solace, comfort, aid of each other, friendship, and conjugal

relations. These factors are unique to each case and how much weight, if any,

to give to each of these factors must be decided on a case-by-case basis by the

trier of fact."

In this case, Jackson provided ample testimony that she lived with

defendant in Cleveland "off and on" for a period of nine months; they had a

boyfriend-girlfriend relationship spanning a period of at least two years, which

still existed at the time of trial; she was driving his car and carrying his child.

When questioned about whether there were curtains on the windows at the West

91s9 address, Jackson responded "No, we have no curtains." (Emphasis added.)

Jackson provided additional testimony of affection, society, solace, comfort,

friendship, and aid, including her claim that defendant was acting out of concern

for her well being. While Jackson's testiinony was conflicting as to her

residence, essentially portraying a nomadic- lifestyle, she did not claim to live

anywhere besides defendant's house either. For example, she indicated that she

Y61.a64 3 p,G0488

-11-

stayed with friends in Olmsted Falls sometimes and had a "mailing" address in

Lisbon, Ohio. Despite these contentions, the record reflects that she never

received the subpoenas delivered to any of these addresses, including the Lisbon

address. Based on Jackson's testimony, the jury could reasonably conclude that

defendant and Jackson commingled certain.assets and had a relationship based

upon society and conjugal relations. Accordingly, there was evidence beyond

Jackson's statements to police that substantively established the cohabitation

element of domestic violence and, therefore, the lack of a limitiing instruction did

not result in the ineffective assistance of counsel.

We are also not persuaded that counsel rendered ineffective assistance by

not requesting the limiting instruction with regard to the statements Jackson

made to police about defendant choking her. Both officers testified that they

observed defendant choking Jackson. She was bleeding and had red marks on

her neck. Jackson denied this during her testimony and denied being hurt

whatsoever. She tried to explain her bleeding lip by claiming that defendant

was bleeding and kissed her. She, however, admitted that she refused to be

photographed and refused medical attention. In light of all of the evidence, it is

not reasonably probable that Officer Nagy's brief rebuttal testimony impacted

the jury's decision to convict defendant on that count. Stated differently, it is not

118 6143 900489

-12-

reasonably probable that the jury would have acquitted defendant on that

charge in the absence of the rebuttal testimony.

Finally, it is not reasonably probable that the jury found the sister-in-law's

statement to police that "a man was beating a women," pivotal in reaching their

verdict on the assault charge involving Jackson.

Defendant has failed to establish a reasonable probability that had there

been a limiting instruction concerning Jackson's out-of-court statement, the

result of the trial would have been different. Accordingly, defendant's assigned

error that his counsel was ineffective for not requesting one is overruled.

"II. The evidence was insufficient to sustain the conviction for domestic

violence alleged in Count Two."

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 State, any

rational trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt. State v. Thompkins (1997), 78 Ohio St.3d 380, 386.

Defendant inaintains that there was insufficient evidence. to sustain his

conviction for domestic violence. In particular, defendant asserts that there was

iOL0643 P60490

-13-

no evidence that Jackson was "living as a spouse" beyond Jackson's out-of-court

statements to police on February 17, 2006. This is not correct:

R.C. 2919.25(F)(2) provides:

"`Person living as a spouse' means a person who is living or has lived with

the offender in a common law marital relationship, who otherwise is cohabiting

with the offender, or who otherwise has. cohabited with the offender within five

years prior to the date of the alleged commission of the.act in question."

Jackson's testimony concerning her actual residence on the date in

question is contained previously in this opinion.

Defendant misconstrues the law by limiting "reside" and "family or

household member" to be only those who share a residence in contradiction to

the Ohio Supreme Court's holding in Williams.

As discussed previously.in this opinion, there was sufficient evidence of

this element to allow the charge of domestic violence to proceed to the jury.

Alternatively, defendant argues that the "living as spouse" element of the

domestic violence statute is unconstitutional. This argument has recently been

rejected by the Ohio Supreme Court in State v. Carswell, _ Ohio St.3d

2007-Ohio-3723, ¶37, which holds:

"[T]he term `person living as a spouse' as defined in R.C. 2919.25 merely

identifies a particular class of persons for the purposes of domestic-violence

VOA 64 3 NO491

-14-

statutes. It does not create or recognize a legal relationship that approximates

the designs, qualties, or significance of marriage as prohibited by Section 11,

Articule XV of the Ohio Constitution. Persons who satisfy the `living as spouse'

category are not provided any rights, benefits, or duties of marriage. A`person

living as a spouse' is simply a classification with significance to only domestic-

violence statutes. Thus, R.C. 2919.25 is not unconstitutional and does not create

a quasi-marital relationship in violation of Section 11, Article XV of the Ohio

Constitution."

Assignment of Error II is overruled.

"III. The trial court erred in imposing more than six-month concurrent

prison terms on counts three and four."

Defendant argues that because his criminal conduct pre-dated State v.

Foster,109 Ohio St.3d 1, 2006-Ohio-856, that any retroactive application of

Foster is a violation of the ex post facto clause and due process.

We have already addressed and rejected this argument. See State v.

Shamaly, 2007-Ohio-3409, following State v. Mallette, CuyahogaApp. No. 87984,

2007-Ohio-715; State v. McCollins, Cuyahoga App. No. 88657, 2007-Ohio-2380;

State v. Ferho, Cuyahoga App. No. 88182, 2007-Ohio-1588; Stcite u. Brito,

Cuyahoga App. No. 88223, 2007-Ohio-1311; State v. Jones, Cuyahoga App. No.

V^:^643 FM 0 ii 92

-15-

88134, 2007-Ohio-1301. Further, defendant's sentence is not contrary to law and

is supported by competent credible evidence in the record.

Assignment of Error III is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant its 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

Court of Common Pleas to carry this judgment into execution. The defendant's

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

ENEY,PRES

PATRICIA A. BLACKMON, J., andMELODY J. STEWART, J., CONCUR

AlCJ643 %0493