State v. Strange

2019 Ohio 4188

STATE OF OHIO Plaintiff-Appellee v. STEVEN P.W. STRANGE Defendant-Appellant

Appellate Case No. 28200

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

October 11, 2019

Trial Court Case No. 2018-CR-2098/1

(Criminal Appeal from Common Pleas Court)

OPINION

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, 101 Southmoor Circle NW, Kettering, Ohio 45429 Attorney for Defendant-Appellant

DONOVAN, J.

{¶ 1} Steven Strange appeals from an October 31, 2018 judgment entry of conviction; he was found guilty of one count of intimidation of a victim, in violation of R.C. 2921.04(B)(1), a felony of the third degree, following a jury trial. We affirm the judgment of the trial court.

{¶ 2} Steven was initially charged on June 3, 2018, by way of complaint in the Montgomery County Municipal Court, Western Division, with one count of trespass in a habitation (person present or likely to be present), in violation of R.C. 2911.12(B), a felony of the fourth degree. A warrant for his arrest was issued the same day. The matter was subsequently transferred to the court of common pleas, and Steven was indicted on July 5, 2018, on one count of intimidation of a victim (Count I) and one count of trespass in a habitation (Count II). Count I included Heather Strange, the defendant's sister, as a co-defendant and provided that the offenses occurred between June 4 and July 3, 2018.¹ On July 10, 2018, the court entered a plea of not guilty on Steven's behalf.

{¶ 3} On October 10, 2018, Steven filed a motion in limine requesting that the trial court exclude evidence of certain text messages to his phone from "Kelly" (Kelly Strange, Steven's mother), as well as communications by his parents to the complaining witness. The following day, Steven filed an amended motion in limine, requesting that the court exclude text messages from Heather Strange and Bryanna Owens to the complaining witness. The court did not rule on the motions in limine on the record.

{¶ 4} Trial was held in October 2018.

{¶ 5} David Mullins testified that on June 2, 2018, he resided in New Lebanon with his girlfriend, Jessica Payne, and Payne's five-year-old daughter. He stated that, at thetime, their home did not have electricity, and they were using a generator that was low on gas. David testified that Jessica called Heather Strange to borrow money to purchase gas, and that Heather brought $80 to their home.

{¶ 6} David testified that, after going to bed that evening, he was awakened at 3:00 a.m. to a loud banging on their front door. He testified that he went downstairs with Jessica behind him, opened the door, and observed Steven "standing there screaming." Steven stated that "his [Steven's] dad was sleeping with my girlfriend and he wanted his sister's money and then he like banged into me into the door and pushed into the house." According to David, Jessica told Steven to get out or she was going to call the police. David also told Steven to get out, but Steven kept screaming. David testified that Steven then "put a cigarette in his mouth and went to light it and when he did I like hit him and shoved him out the door" and locked it. David observed two other men with Steven who did not enter his home.

{¶ 7} David testified that the police arrived minutes after Steven left, and they took his statement. He stated that he told Heather when she dropped off the money that he would pay her back on Sunday when he got paid. David identified a photo of the front door of his home, which he stated showed "Steven's shoeprint where he had been kicking my door." David testified that the police officers retrieved the cigarette, photographed his door, and copied text messages sent from Steven's mother to Jessica's phone.

{¶ 8} The following exchange occurred:

[PROSECUTOR] Q. * * * And later on, were you contacted by any members of Steven's family?

A. Yes.

Q. And around when was that that you, personally, were contacted by them?

A. Just like a couple days after.

Q. What happened?

A. At first, Heather had just been sending - - Steven's sister had been sending text messages saying - -

[DEFENSE COUNSEL]: Objection - -

THE WITNESS: - - if Steven goes to jail - -

* * *

THE COURT: Wait, one second. Counsel approach.

(At sidebar)

[PROSECUTOR]: I'm just trying to elicit the events - -

* * *

THE COURT: I guess part of my concern here is is there a connection. Was he talking to her because if, in fact, there's a chain of, you know, call her, do something and then she talks to someone that's part of the operative facts, so. It's beyond the hearsay exception. But there needs to be a connection and is that going to come out at some point through the phone calls - -

[PROSECUTOR]: Yes. So Steven contacts Heather to try to get her to take care of it as well.

THE COURT: And then - - and that was before these phone calls or texts - -

[PROSECUTOR]: Yes.

* * *

THE COURT: * * * I understand that but, again, threats can be direct or indirect. So I guess if there's a good-faith belief that the phone calls from the defendant to his sister are before these texts, then you can get into it.

* * *

THE COURT: And I won't know until you get that guy on.

* * *

THE COURT: You check it out and make sure the dates are - -

[DEFENSE COUNSEL]: Okay.

THE COURT: * * * Objection overruled.

(End sidebar)

David further testified that, toward the end of June, he and Jessica ran into Heather and her boyfriend, Eric, at the Dollar General in Drexel, and that Heather approached Jessica and repeatedly asked her for $80. He stated that after they got into their car, Eric came around to the driver's side and started beating on David's window.

{¶ 9} The following exchange occurred:

BY [PROSECUTOR]:

Q. And are you aware of anything else around that time, as well, that happened to you specifically?

A. Steven's dad had come in front of my dad's house.

Q. And around when was that? Was that in June as well or when was that?

A. Towards the end.

Q. Of June?

A. Yes.

Q. * * *. Of 2018?

A. Yes. He had - - Steven's dad pulled up in a black truck on the right side of my dad's house. There's a stop sign and then there's the brick wall of the highway in front so you have to go left or right. Well, he was in a black truck with a trailer dragging behind and he had turned the corner, took a left and stopped in front of my dad's and rolled the window down and told Jessica - -

[DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: Overruled.

THE WITNESS: He said * * * you're going to get yours, b****. And then he hold (sic) the brake and hit the gas until it got real smoky and then let off the brake and took off.

{¶ 10} David testified that after the incidents, he thought that if he and Jessica went "to court on Steven that they're going to try to hurt us." He testified that, as a result, Jessica began carrying pepper spray and he began carrying a knife, "[b]ecause if they all come up on me, I'm not going to let them kill me."

{¶ 11} On cross-examination, David stated that he did not observe Steven kicking the front door of his home. He stated that the men behind Steven "were just kinda like standing there back of him and the other guy was trying to get him to come on." David testified that after the incident at his father's house, he "flagged an officer down" in New Lebanon and "told him that they had approached me."

{¶ 12} Jessica Payne testified that she had known Heather Strange for two and a half years and was friends with her, Steven, and their sister, Ashley. She testified consistently with David regarding Steven's entering their home. Jessica testified that she called the police after Steven left and gave them a statement.

{¶ 13} The following exchange occurred after Jessica was asked if she had been approached by a member of the Strange family after the incident:

A. The first time was within a couple days after the incident on June 2nd which was by his mother. She came to my job [at Casey's gas station in New Lebanon.]

[PROSECUTOR] Q. Can you recall, at all, like a date?

A. No, I know it was before June 7th. It was in five days between June 2nd and June 7th.

Q. * * * What happened in that incident?

A. She had came in and - -

Q. She who?

A. Kelly did, Steven's mom.

* * *

A. Came in and told me that it was complete bullcrap that we were - -

[DEFENSE COUNSEL]: Objection, Your Honor.

THE WITNESS: - - that we called the police against Steven.

THE COURT: Overruled.

THE WITNESS: And told me that she was going to make me lose my job. I asked her how so. And she said that I had gave her free food before. I told her to get out of my job and I was going to make her trespass off - - I called the officer. He came and took a statement.

* * *

Q. * * * And how about the second incident? When did this happen?

A. The second incident was in the same - - within the same two weeks. I don't know the exact date. And Heather and Eric, which is Steven's sister and her boyfriend, came up to me and Dave - -

[DEFENSE COUNSEL]: Objection.

THE WITNESS: - - and my five-year-old daughter at the Dollar General in Trotwood.

BY [PROSECUTOR]: And what happened there?

A. She met me by the door entrance of the Dollar General and was telling me to give her $80 right then and to not go to court against Steven. We told her to get away because I had my daughter with us. I hurried up and got in the vehicle, shut all the doors. And that's when Heather's boyfriend, Eric, came around and started pounding on my windshield and the side doors.

Q. And how did you feel when this was happening.

A. Scared. My daughter was with me.

Q. Before that, did you have any issues with Eric?

A. * * * No, I have not.

* * *

Q. And how about the next incident, what happened?

A. I was standing at my boyfriend Dave's father's house in Trotwood and Steven's father,

...