State v. Hall

         [Cite as State v. Hall, 

.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                      :   APPEAL NOS. C-200298
                                                                     C-200299
        Plaintiff-Appellee,                         :                C-200300
                                                        TRIAL NOS. 19TRC-37672A
  vs.                                               :              19TRC-37672B
                                                                   19TRC-37672C
MARKEBRA HALL,                                      :

    Defendant-Appellant.                            :      O P I N I O N.




Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are:                Affirmed in C-200299 and C-200300; Appeal
                                            Dismissed in C-200298

Date of Judgment Entry on Appeal: September 10, 2021



Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Keith C. Forman, Supervising Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Presiding Judge.

       {¶1}   Following a jury trial, defendant-appellant Markebra Hall was found

guilty of operating a vehicle while under the influence of alcohol and operating a

vehicle with a prohibited breath-alcohol level, both of which were OVI offenses. She

was also found guilty of failing to maintain reasonable control. The trial court

merged the under-the-influence OVI offense with the prohibited-breath-alcohol OVI

offense, and sentenced Hall for the prohibited-breath-alcohol OVI offense. Because

Hall was therefore not convicted of the under-the-influence OVI offense, this court

lacks jurisdiction to hear the appeal relating to that offense, so we dismiss the appeal

in the case numbered C-200298. And, finding no merit to Hall’s challenges to her

prohibited-breath-alcohol OVI and reasonable-control convictions, we affirm the

trial court’s judgments in the cases numbered C-200299 and C-200300.

                      Background Facts and Procedure
       {¶2}   At trial, the state presented evidence that, on October 15, 2019, Hall

and her boyfriend Anthony Holly (“Holly”) were the only two occupants of a car that

crashed into a moving garbage truck.

       {¶3}   Michelle Wissman Schwiebert testified that she was driving on Gilbert

Avenue when she saw a car go left of center and collide with a garbage truck. She

called 911 and reported that the driver did not get out of the car, but that the

passenger jumped out.

       {¶4}   Schwiebert testified that after the collision, the damaged car continued

to move toward her before it stopped. She said that when the car came to a stop, she

saw a male figure jump out of the passenger side of the car.

       {¶5}    The driver of the garbage truck, Jason Boyd, testified that he and his

partner were heading up Gilbert Avenue when an approaching car crossed the double

line into their lane of traffic and struck the truck. He said that the car struck the




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driver’s side tire of the truck with enough force to “knock[] the lug nuts off of the

truck.”

          {¶6}   Boyd testified that there were two people, a man and a woman, in the

car that struck the garbage truck. As Boyd and his partner sat in the truck, a man

walked up to the truck and confronted them. Boyd described the man as “real

drunk” and “[i]nebriated.” According to Boyd, the man repeatedly asked, “Why did

you hit us?,” but the man “was staggering so we just ignored him.”

          {¶7}   According to Boyd, when Cincinnati Police Officer Jennifer Barge

arrived on the scene, he told the officer that he thought the man was driving the car,

but he was not sure. When asked on direct examination, “Did you see the driver that

day that hit you with your own eyes?,” Boyd responded, “No.” On cross-examination,

after watching the video from Officer Barge’s body camera, Boyd acknowledged that

he had told the officer that the man was “definitely” driving.

          {¶8}   Officer Barge testified that when she arrived on the scene of the

accident, she found Hall in the driver’s seat of the disabled car, which was

obstructing traffic in the middle of the road. At that time, Hall’s boyfriend Holly was

on the sidewalk.

          {¶9}   Officer Barge testified that Hall exhibited bloodshot, watery eyes and

slurred speech, and had a strong odor of alcohol about her breath. Hall told Officer

Barge that she had been drinking. Officer Barge asked Hall if she was driving, and

Hall said yes.

          {¶10} Officer Barge said that Hall did not appear to be injured. When the
officer told Hall to step out of the car to the sidewalk, Hall was staggering and

unsteady on her feet.

          {¶11} Officer Barge’s body camera video showed that she spoke to Boyd, the
garbage truck driver, and his partner as they stood near Hall and Holly on the

sidewalk. The officer asked Boyd and his partner if they had seen “him” (referring to


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                      OHIO FIRST DISTRICT COURT OF APPEALS



Holly) driving, and Boyd responded, “I didn’t see it.” Then, according to Officer

Barge, she led Boyd away from Holly and Hall so that Holly would not “get mad.”

Once Boyd was no longer standing near Holly, Boyd told the officer that “he”

(referring to Holly) was “definitely driving” the car.

       {¶12} Officer Barge testified that she told Boyd there were “conflicting stories
on who was driving.” The officer testified that Boyd “varied his statement two or

three times” and told her that he was “80 percent” certain that the male was driving.

       {¶13} Officer Barge testified that she led Hall away from Holly so that she
could explain to Hall the seriousness of being charged with OVI and to confirm

whether Hall was driving the car. Again, Hall stated that she was the driver.

       {¶14} Based upon witness statements, Hall’s admission to driving the car
that was involved in the accident, her admission to drinking, her slurred speech,

bloodshot and watery eyes, strong odor of alcohol, and staggering, Officer Barge’s

opinion was that Hall was under the influence of alcohol and that her ability to

operate a motor vehicle was appreciably impaired as a result.

       {¶15} Cincinnati firefighter Jeffrey Nienhaus testified that after he arrived on
the scene, he evaluated Hall by checking her vital signs. He asked Hall where she

had been seated in the car, “a common question that we ask in a motor vehicle

accident to determine how injured they may be based on the damage of the car.”

Hall told Nienhaus that she was the driver. Nienhaus testified that Hall complained

of right shoulder pain, but she refused treatment.

       {¶16} Officer Barge arrested Hall and took her to the police station, where an
Intoxilyzer test showed that Hall’s breath-alcohol content was 0.187.               She

determined that Hall was the registered owner of the car. Hall was charged with

operating a vehicle while under the influence of alcohol, in violation of R.C.

4511.19(A)(1)(a); operating a vehicle with a prohibited breath-alcohol level (of 0.17 or




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more), in violation of R.C. 4511.19(A)(1)(h); and failure to maintain reasonable

control, in violation of R.C. 4511.202.

       {¶17} Cincinnati Police Officer Timothy Watson testified that he was the
second officer to arrive on the accident scene. After Hall’s arrest and subsequent

breath-alcohol test at the police station, Officer Watson testified that, as a courtesy,

he drove Hall home. Video from the officer’s body camera showed that during the

car ride, he said to Hall, “I hope you didn’t take a charge for him,” referring to Hall’s

boyfriend Holly, and Hall responded, “I did.”

       {¶18} Hall’s theory of defense at trial was that she was not the driver of the
car.

       {¶19} The jury found Hall guilty of all three offenses. The trial court merged
the under-the-influence OVI offense with the prohibited-breath-alcohol OVI offense,

and sentenced Hall for the prohibited-breath-alcohol OVI offense to 180 days in jail,

suspended 174 days, and imposed one year of community control, a one-year driver’s

license suspension, a fine, and costs. For the reasonable-control offense, the trial

court imposed a $0 fine and remitted costs. Hall now appeals.

                    Nondisclosure of A Witness’s Address
       {¶20} In her first assignment of error, Hall argues that the trial court abused
its discretion by allowing Michelle Wissman Schwiebert to testify at trial. In its

discovery response, the state disclosed Schwiebert’s name to the defense, but it did

not disclose her address, pursuant to a certification of nondisclosure under Crim.R.

16. Hall contends that the state failed to properly certify the nondisclosure and that

the trial court failed to hold a proper Crim.R. 16(F) hearing on the matter.

       {¶21} Crim.R. 16(I) requires each party to provide to opposing counsel a
written witness list, including the names and addresses of any witness the party

intends to call in its case-in-chief, or reasonably anticipates calling in rebuttal. If the

prosecutor does not disclose materials under the rule, the prosecutor must certify to


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the court that the prosecutor is doing so for one of the reasons listed in Crim.R.

16(D). As relevant here, a prosecutor must have “reasonable, articulable grounds to

believe that disclosure will compromise the safety of a witness, victim, or third party,

or subject them to intimidation or coercion.”         Crim.R. 16(D)(1).    Reasonable,

articulable grounds “may include, but are not limited to, the nature of the case, the

specific course of conduct of one or more parties, threats or prior instances of

witness tampering or intimidation, whether or not those instances resulted in

criminal charges, whether the defendant is pro se, and any other relevant

information.” Crim.R. 16(D).

          {¶22} Upon motion by the defendant, the trial court shall review the
prosecutor’s “decision of nondisclosure … for abuse of discretion during an in

camera hearing conducted seven days prior to trial, with counsel participating.”

Crim.R. 16(F). If the trial court finds an abuse of discretion by the prosecutor, the

court “may order disclosure, grant a continuance, or other appropriate relief.”

Crim.R. 16(F)(1).      A trial court’s ruling on a prosecutor’s certification of

nondisclosure will not be reversed on appeal absent an abuse of discretion and proof

of material prejudice. State v. Baber, 

, ___ N.E.3d ___, ¶ 19-20 (1st

Dist.).

          {¶23} In this case, Hall filed a demand for discovery on October 5, 2019.
The state’s initial discovery response on November 5, did not identify Schwiebert as a

witness. The response included a recording of Schwiebert’s 911 call in which she

identified herself, and a copy of a police report that listed Schwiebert’s cell phone

number and her name, although the name was misspelled. The case was continued

several times at Hall’s request. In December 2019, Hall filed a jury demand and the

matter was set for jury trial on February 24, 2020.

          {¶24} The February trial date was continued at the state’s request until
March 11. On February 25, the state filed a supplemental discovery response in


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                        OHIO FIRST DISTRICT COURT OF APPEALS



which it identified “[a]ny witnesses listed or mentioned in the provided reports or in

the videos/audios from the provided discovery,” but it did not identify Schwiebert as

a witness. The state filed a supplemental discovery response on March 9 that, for the

first time, identified Schwiebert as a witness by name, but the response failed to

include Schwiebert’s address.

          {¶25} The March trial date was continued at Hall’s request until April 6. On
March 24, Hall filed a motion to compel the state to provide an address for

Schwiebert. The following day, the state filed a certification of nondisclosure, which

stated:

                 Pursuant to Crim.R. 16(D)(1), the [p]rosecution has reasonable,

          articulable grounds to believe that disclosure of address information

          will subject the witness to intimidation or coercion. Therefore, the

          address information is not being provided at this time.

          {¶26} On April 6, the case was continued to June 1 because jury trials in the
Hamilton County courthouse were suspended due to the COVID-19 pandemic. On

April 13, Hall filed a “motion in opposition to the state’s certification of

nondisclosure,” seeking that the court “review and [] deny the state’s certification of

nondisclosure,” and requested a hearing on the motion. However, the motion was

not scheduled for a hearing. The jury trial was continued from June 1 to July 21 and

then to August 3, because of the pandemic.

          {¶27} On the first day of trial, defense counsel informed the court that she
had previously requested a hearing on the state’s discovery certification with respect

to Schwiebert, and stated:

                 So specifically I am asking for this individual’s address.

          Alternatively I am asking what these reasonable and articulable

          grounds are that my client - - who has no criminal record and who is




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       53 years old, on an OVI case - - would intimidate or coerce an

       individual listed in discovery.

       {¶28} At no time did defense counsel ask that Schwiebert not be allowed to
testify, nor did she seek a continuance of the trial.

       {¶29} The trial court stated:
               First of all from a procedural standpoint obviously this case has

       been continued roughly four times for jury trial. The Court was not

       specifically made aware of the existence of this issue or this motion.

               We are up against the issue involving the COVID-19. And this

       is the first jury trial in Municipal Court since jury trials were ended

       pursuant to our administrative order and the dictates of the Ohio

       Supreme Court.

               And it was my understanding that when I put this case in the

       queue this afternoon roughly at 11:45, that there were no issues of this

       nature that needed to be addressed or resolved. So this quite frankly

       kind of blind sides the Court. Even though, yes, it was filed, I was not

       aware that this issue remained pending and thus needed to be

       addressed.

       {¶30} In response, the prosecutor argued that defense counsel had had
months to schedule her motion on the court’s docket, but had failed to do so. The

prosecutor stated that he had withheld Schwiebert’s address “because this witness

will be intimidated or coerced just by the very nature of anyone going to her

residence and knocking on her door.” The prosecutor described Schwiebert as “a

third party Good Samaritan who has fears of testifying.” He stated:

               We all know when the addresses are given, investigators from

       the Public Defender’s Office go out and they are entitled to do that.

       However, in this particular case I knew for certain that if that happens,


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                     OHIO FIRST DISTRICT COURT OF APPEALS



       she would be completely intimidated and not come to court. And that

       is why it was not disclosed to [defense counsel].

       {¶31} Although defense counsel never asked that Schwiebert be precluded
from testifying, the trial court considered the motion as a motion to exclude

Schwiebert’s testimony.     The court found that the prosecutor had sufficiently

articulated a reason for nondisclosure. Nonetheless, the court also determined that,

even if the state had improperly withheld Schwiebert’s address, Hall had suffered no

prejudice as a result of the nondisclosure because “there had been no supplemental

efforts [by defense counsel] in order to get that information[.]” The court denied the

motion but offered two remedies:

              [O]bviously one of the remedies would be a continuance.

                                         …

              As an alternative remedy what I might suggest is that between

       now and the time [Schwiebert] testifies … if she wants to avail

       herself - - if the defense attorney wants to meet with her to discuss, she

       can do that. Obviously as to whether[,] and a witness has at their

       discretion the ability to decline that request[,] but it would at least

       make her available for that sole purpose.

       {¶32} Defense counsel did not request a continuance, and the parties
proceeded to voir dire potential jurors. The next day, the trial court asked the parties

if there was anything they wanted to put on the record before the jurors entered the

courtroom, and defense counsel made no mention of any efforts, successful or

otherwise, to contact Schwiebert, and made no motion for a continuance, which the

trial court had made clear it would have granted.          Defense counsel raised no

objection to Schwiebert’s being allowed to testify when called by the state and elected

not to cross-examine her.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶33} Following our review of the record, we hold that the prosecutor’s
certification of nondisclosure under Crim.R. 16(D)(1) was inadequate because the

prosecutor lacked reasonable, articulable grounds to believe that disclosure of the

witness’s address would compromise her safety or subject her to intimidation or

coercion. Although one of Crim.R. 16’s stated purposes is “to protect the well-being

of witnesses,” see Crim.R. 16(A), that does not include a witness’s generalized “fears

of testifying,” to use the prosecutor’s phrase, or a witness’s apprehension about being

contacted by defense investigators or defense counsel. The prosecutor failed to cite

any of the “reasonable, articulable grounds” identified in Crim.R. 16(D) to justify

nondisclosure. Generalized apprehension is not enough. We recognize that the rule

sets forth a nonexhaustive list of examples of reasonable, articulable grounds, but in

this case, the prosecutor cited nothing about the nature of the case, any specific

course of conduct by Hall, any threats or intimidation, or any other relevant

information that would support nondisclosure. The trial court abused its discretion

by accepting the prosecutor’s certification of nondisclosure.

       {¶34} Nevertheless, the trial court proceeded as if did not accept the
prosecutor’s certification because the court offered Hall remedies set forth in Crim.R.

16(F)(1) that would have been appropriate relief for an inadequate certification of

nondisclosure.   The court proposed two remedies, either a continuance or an

opportunity to speak with Schwiebert before she testified, but defense counsel did

not take advantage of either of the court’s proposals and did not object to

Schwiebert’s being allowed to testify when she was called as a witness.

       {¶35} Although the state’s certification of nondisclosure was inadequate to
properly withhold Schwiebert’s address, Hall has failed to demonstrate that she was

materially prejudiced by the trial court’s acceptance of the certification. As conceded

by Hall’s appellate counsel, Hall’s prejudice claim is diminished by the fact that the

state’s initial discovery response, provided about nine months before trial, included a


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recording of the 911 call wherein Schwiebert identified herself and a copy of the

police report of the incident, which listed Schwiebert’s cell phone number. Hall has

failed to explain how she was prejudiced by the state’s withholding of Schwiebert’s

address where she knew Schwiebert’s name and cell phone number months before

trial, and where the trial court offered her a continuance or an opportunity to try to

speak to Schwiebert prior to her testimony. We overrule the first assignment of

error.

                           Prosecutorial Misconduct
         {¶36} In her second assignment of error, Hall argues that prosecutorial
misconduct during closing argument deprived her of a fair trial. She contends that

the prosecutor unfairly bolstered the credibility of the police officers and their

investigation.

         {¶37} The test for whether prosecutorial misconduct mandates reversal is
whether the prosecutor’s remarks were improper, and, if so, whether they

prejudicially affected the substantial rights of the accused. State v. Kirkland, 

, 

, 

. In evaluating prejudice, we

must consider the effect of the misconduct “on the jury in the context of the entire

trial.” State v. Clinton, 

, 

, 

,

quoting State v. Keenan, 

, 

 (1993). To be

prejudicial, the remarks must be “so inflammatory as to render the jury’s decision a

product solely of passion and prejudice.” State v. Ford, 

, 2019-

Ohio-4539, 

, ¶ 385, quoting State v. Williams, 

,

 (1986).

         {¶38} Improper vouching occurs when a prosecutor implies knowledge of
facts outside the record or places her or his personal credibility in issue. State v.

Myers, 

, 

, 

. A prosecutor

may not express a personal belief or opinion as to a witness’s credibility. 

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                      OHIO FIRST DISTRICT COURT OF APPEALS



        {¶39} During closing argument, the prosecutor referred to the police officers
as “amazing human beings.” The trial court overruled defense counsel’s objection

and admonished the prosecutor to “be careful in that regard.” Then the prosecutor

said that the police “did a great job.” Defense counsel did not object to the latter

remark. Later, the prosecutor stated, “Officer Watson was powerful testimony [sic].”

The court overruled a defense objection to the statement.

        {¶40} Because Hall objected to the “amazing human beings” and “powerful
testimony” comments, we apply a harmless-error standard of review. See State v.

Hayes, 

, 

 (1st Dist.). Under the harmless-error

standard, the state must demonstrate that the error did not affect the substantial

rights of the defendant, that is, that the error did not affect the outcome of the trial.

 citing State v. Jones, 

, 

, 

.

However, because Hall did not object to the “great job” remark, she must show that

(1) an error occurred, (2) the error was obvious, and (3) it affected the outcome of the

trial. Id. at ¶ 41.

        {¶41} Even if any of the prosecutor’s remarks constituted improper
vouching, we cannot say that they affected the outcome of the trial. The court

“mitigated the impact of the prosecutor’s statement[s] by instructing the jury that the

closing argument was ‘not evidence’ and that it was for the jury to decide what the

evidence showed.” See Kirkland, 

, 

, 

. In addition, the court instructed the jury that it was not required to

believe the testimony of any witness, and that it could “believe or disbelieve all or any

part of the testimony of any witness.” Viewing the prosecutor’s remarks in the

context of the entire trial, we cannot say that the outcome of the trial was affected.

Therefore, no plain error occurred in the court’s admission of the “great job” remark,

and the court’s admission of the “amazing human beings” and “powerful testimony”

comments was harmless error. We overrule the second assignment of error.


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                        OHIO FIRST DISTRICT COURT OF APPEALS



                         Manifest Weight of the Evidence
          {¶42} In her third assignment of error, Hall challenges the weight of the
evidence supporting her convictions.        Specifically, she contends that the state’s

evidence did not prove that she was the driver of the car.

          {¶43} In reviewing a challenge to the weight of the evidence, we sit as a
“thirteenth juror.” State v. Thompkins, 

, 

(1997).     We must review the entire record, weigh the evidence, consider the

credibility of the witnesses, and determine whether the trier of fact clearly lost its

way and created a manifest miscarriage of justice. 

          {¶44} Overall, the jury was in the best position to judge the credibility of the
witnesses. See State v. Spaulding, 

, 

, 

, ¶ 165. The jury was entitled to weigh the evidence, consider the motivations of

the witnesses, and choose to believe all, part, or none of the testimony offered. See

State v. Williams, 1st Dist. Hamilton No. C-180574, 

.

          {¶45} There was no dispute that Hall and Holly were the only two occupants
of the car, that Schwiebert saw a male exit from the passenger side of the car, and

that Officer Barge found Hall seated in the driver’s seat. Hall repeatedly stated that

she was the driver, despite having multiple opportunities at the scene and later at the

station to state otherwise. Hall did not claim that she was not the driver until after

she was charged with OVI and was on her way home from the police station. The

jury was entitled to believe the evidence that Hall was driving and to disbelieve her

postarrest statement to Officer Watson that she was not driving. In addition, the

jury was entitled to consider Boyd’s testimony and weigh it with all the evidence. It

was entitled to believe Boyd’s testimony that, although he said at the scene that the

man was driving the car, he had not actually seen whether the man or woman was

driving. Ultimately, it was for the jury to decide credibility and weigh the evidence.

This is not “the exceptional case in which the evidence weighs heavily against the


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                      OHIO FIRST DISTRICT COURT OF APPEALS



conviction.” See 

, quoting State v. Martin, 

, 

 (1st Dist.1983).

       {¶46} We overrule the third assignment of error, and we affirm the
judgments of the trial court in the cases numbered C-200299 and C-200300. We

dismiss the appeal in the case numbered C-200298.

                                                         Judgment accordingly.

CROUSE and BOCK, JJ., concur.

Please note:
       The court has recorded its own entry this date.




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