[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-Ohio-
5735,
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 recross-
examination or if the trial court employed a blanket policy against recross-
examination.
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 re-
direct 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.
