Cleveland v. Washington

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-367

Case Date: 02/07/2013

Plaintiff: Cleveland

Defendant: Washington

Preview:[Cite as Cleveland v. Washington, 2013-Ohio-367.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 97945 and 97946
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
DAISEY L. WASHINGTON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cleveland Municipal Court
Case Nos. 2011 CRB 017672
and 2011 CRB 017651
BEFORE:   S. Gallagher, P.J., Rocco, J., and Keough, J.
RELEASED AND JOURNALIZED:   February 7, 2013

ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
By: Erika B. Cunliffe
Paul Kuzmins
Assistant Public Defenders
Courthouse Square Suite 200
310 Lakeside Avenue
Cleveland, Ohio                   44113
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Interim Director of Law
City of Cleveland
By: Bridget E. Hopp
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio                   44113

SEAN C. GALLAGHER, P.J.:
{¶1} Defendant-appellant, Daisey Washington (“Washington”), appeals from her
convictions for aggravated menacing, a petty offense.   For the reasons set forth below,
we affirm.
{¶2} Washington was charged with aggravated menacing and two counts of assault
in Cleveland M.C. Nos.  2011 CRB  17672 and  2011 CRB  17651.    The victims were
identified as Juahmea Harris (“Harris”) and Jeffrey Rivers (“Rivers”).   The matters were
consolidated for trial in municipal court.
{¶3} A week after oral argument, Washington filed a motion to supplement the
record with additional pretrial transcripts, dated June 14, 2011, June 28, 2011, July 19,
2011, August 2, 2011, August 17, 2011, September 12, 2011, and September 26, 2011.
There is still no transcript of the arraignment proceedings held on June 8, 2011.
{¶4}  Initially, Washington was represented by retained counsel, who attended
pretrials on June 14, 2011, June 28, 2011, July 19, 2011, August 2, 2011,1 and August 17,
2011.   Trial was set for September 12, 2011.
{¶5} On August  29,  2011, Washington’s counsel moved for leave to withdraw
because she had discharged him.    The court issued a journal entry on September 12,
2011, which was the original trial date, and granted the motion to withdraw.   Washington
1   There is a note on this journal entry indicating that “per atty, he is looking for additional
9-1-1 tapes Trial date to be set at next PT.”

was granted a continuance to obtain new counsel, and trial was re-set for September 26,
2011.
{¶6} On September 26, 2011, Washington appeared with a public defender and
trial was continued to October  17,  2011.    On that day, Washington appeared with a
different public defender for trial.   Counsel’s oral motion for jury trial was denied as
untimely, and his motion for continuance was also denied.   At the conclusion of the trial,
the  matter  was  continued  to  October                                                      24,   2011,  for  a  verdict.     The  court  found
Washington not guilty of assault but guilty of both menacing counts.   The court imposed
sentence but stayed it pending this appeal.   The substantive facts will be set forth where
relevant to resolving Washington’s assignments of error.
Assignment of Error I:
The  trial  court  abused  its  discretion  by  denying  Daisey  Washington  a
continuance so that she could invoke her right to a jury trial in accordance
with applicable rules and so that her attorney could prepare for trial.
{¶7}  On  October  24,  2011,  Washington’s  attorney  made  an  oral  request  to
continue to enable Washington the ability to timely request a jury trial.   See Crim.R.
23(A).   Counsel also indicated he was not prepared for trial because he had just recently
returned to work from a six-month leave.   The attorney had been assigned the docket that
day but had spoken with Washington over the weekend.   According to him, Washington
had not been advised about her jury trial option by either of her previous attorneys.

{¶8} The court was sympathetic to the  “predicament” of the public defender’s
office but expressed concern over the age of the case and indicated it was ready for trial.
The city was prepared to go forward with its witnesses for trial, and there had been
several  continuances  already.    The  matter  proceeded  to  trial  over  defense  counsel’s
objection.
{¶9}  After  closing  arguments,  Washington’s  attorney  proffered  additional
comments concerning the motion to continue.   He indicated that had a continuance been
granted, counsel would have obtained the 911 calls relevant to these cases.
{¶10}  The  court  extensively  clarified  its  grounds  for  denying  the  motion  to
continue by stating:
This case originally came in front of  the Court on June  14.    A
continuance was granted to June 28.   A continuance was granted until July
19.   Case came again, on July 19, continued to August the 2, with no final
— that being a final continuance.
August 2, another call was made * * * or another continuance was
made to August 7, actually August 17, at 1:30.
On August  17 at  1:30, a trial date was set, so actually this is the
second trial date this case has had, so we already had * * * a trial date set.
September the  12, case was set for trial at  1:30.   At that time,
Miss Washington and her attorney had * * * some disagreement of some
sort.   Counsel filed a Motion to Withdraw, which the Court allowed on
trial date.

The Court noted for the record and the journal entry, that on the trial
date, the City was ready to proceed at that time for a trial in front of the
Court, which would have been September 12, at 1:30.
Miss Washington was given a continuance on that date to seek to get
a new attorney, with the understanding the trial date had already been set
for trial.   It was set immediately thereafter.
Case  was  set  for  an  additional  continuance  two  weeks  later.
September the 26, at 1:30, also with the understanding that * * * she was
going to go to the public defender’s on September the 26 at 1:30.   The case
was set for a trial til today’s date, October 17, at 11:30.
The Court will note that on September the 26, that the attorney in
this case from the Public Defender’s Office, announced to the court that a
trial date should be set immediately.   That this case needed to come to a
head.   The Court did that.
So that is why the Court is not allowing an additional continuance
when counsel for defendant asked for that date and that time, and that it be
set quickly, and that isn’t that quickly.   That’s like two and a half, like two
weeks,  actually  three  weeks,                                                     * * *  so  that’s  why  the  Court  is  not
entertaining a continuance.
The second time the City is ready to proceed and the Court believes
that according to the rules, and the rules states, and there’s — there’s no
Jury Demand in this file, in this entire file.   Out of all the motions that have
been  filed,  there’s  a  Motion  for  Discovery  and  a  Motion  for  Bill  of
Particulars.

And in addition to that, the Criminal Rule states that a jury demand
is not demanded within the time set forth in the rules, it is waived.
And it was not filed prior to the first trial date.   It was not filed prior
to today.   It’s not proper for the Court to entertain that, and because the
City was ready to proceed for trial, the Court * * * went forward and had a
trial on this case.   So for the record, so that we’re all clear, and so that if
we have to go to the Court of Appeals, there they are.
{¶11} A determination of whether to grant or to deny a continuance is a matter left
to the broad, sound discretion of the trial judge.   State v. Unger, 67 Ohio St.2d 654, 23
N.E.2d  1078  (1981); State v. Wenzlick,  164 Ohio App.3d  155,  2005-Ohio-5741,  841
N.E.2d 408, ¶23 (6th Dist.), citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11
L.Ed.2d  921  (1964)  (“There are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process.   The answer must be found in the
circumstances present in every case, particularly in the reasons presented to the trial judge
at the time the request is denied.”); State v. Bayless, 48 Ohio St.2d 73, 101, 357 N.E.2d
1035 (1976).   The appellate court reviews the ruling by applying the abuse of discretion
standard.     Blakemore  v.  Blakemore,                                                         5  Ohio  St.3d   217,   219,   450  N.E.2d   1140
(1983)(“‘abuse of discretion’ connotes more than an error of law or judgment; it implies
that the court’s attitude is unreasonable, arbitrary or unconscionable”).
{¶12} Generally, where a party fails to timely retain substitute counsel just prior to
the date of trial, substitute counsel’s request for a continuance is not an adequate ground
for a continuance.    See Woods v. Woods,  2d Dist. No. C.A.  13487,  1994 Ohio App.

LEXIS  1272, at  *2  (Mar.  9,  1994).                                                        “[A] judge’s denial of a continuance because of
counsel’s  unpreparedness  is  not  an  abuse  of  discretion  if  the  unpreparedness  was
avoidable.”   Hartt v. Munobe, 67 Ohio St.3d 3, 9, 615 N.E.2d 617 (1993).
{¶13} Wenzlick identifies various factors to consider in making the assessment as
to whether a trial court abused its discretion by denying a continuance, including
the length of the delay requested; whether other continuances have been
requested  and  granted;  any  inconvenience  to  the  litigants,  witnesses,
opposing  counsel,  and  the  court;  whether  the  requested  delay  is  for
legitimate reasons or is merely dilatory, purposeful, or contrived; whether
the  defendant  contributed  to  the  circumstance  which  gives  rise  to  the
request for a continuance; and any other relevant factors, depending on the
unique facts of each case.
Wenzlick at ¶ 25 (other citations omitted).
{¶14}  This  case  presents  a  very  close  call.    Certainly  it  would  have  been
reasonable, and arguably more prudent, for the court to have allowed another continuance
in this case.    The length of delay would not have been unreasonable, nor do we find the
reason for continuance was merely dilatory or contrived.    However, we cannot conclude
that the trial court’s denial of another continuance in this case was unreasonable either.
{¶15} The public defender who was ultimately assigned to represent Washington
made efforts to prepare for trial, having received the assignment following an extended
leave from the office.    Counsel made a proffer on the record after trial that he would
have obtained the 911 tapes, if a continuance was granted.    For that reason, counsel felt
he was unprepared to go forward with the trial.    However, counsel indicated he had

spoken with Washington before the date of trial.    A review of the transcript shows
counsel was versed on the facts of the case and had defense witnesses present at the trial.
{¶16} Washington had sought and received continuances in this matter previously.
For example, a continuance was granted and the final pretrial date was re-set, with the
court’s journal entry indicating that defense counsel was attempting to secure “additional”
911 tapes.    The supplemental record establishes that all of the 911 tapes were obtained
and given to Washington’s first counsel. The September 12, 2011 transcript indicates that
this attorney gave Washington’s file to her.    The city had been prepared for trial on at
least two different occasions.    Initially, the trial was set for September 12, 2011, and the
court granted a continuance at that time to allow Washington some time to secure new
counsel because she had discharged her attorney.    Washington appeared on September
26, 2011, represented by the public defender’s office and another trial date was selected
for October  17,  2011.    The September  26,  2011 transcript reflects that Washington’s
counsel, from the public defender’s office, appeared ready for trial that day; however, the
trial was set for October 17, 2011.    There was no mention or request for a jury at that
time.    The city’s witnesses were present for the October 17, 2011 trial and would have
been inconvenienced by further delay.    The court expressed concern that the case had
been pending for quite some time and the court does have an obligation to manage its
docket efficiently.    Unger, 67 Ohio St.2d, 23 N.E.2d 1078, at 67.
{¶17} Washington maintains that this case requires a determination as to whether
judicial efficiency should trump a fundamental constitutional right, namely the right to a

jury trial.    It does not.   Crim.R. 5(A)(5) requires the judge or magistrate to inform the
accused of her “right, where appropriate, to jury trial and the necessity to make demand
therefore in petty offense cases” at the initial appearance.    The record establishes that
Washington was represented by two previous attorneys and had been represented by the
public defender’s office since September 26, 2011.2    The September 26, 2011 transcript
establishes  that  the  public  defender’s  office  assumed  Washington’s  representation
sometime after September 12 but before September  26.    During that hearing, counsel
indicated, “[Washington] is [represented by the public defender’s office] and has been *
* *. She has been to our office.”    Neither of Washington’s previous attorneys demanded
a jury trial, and the judge indicated the subject trial date was set at the suggestion of
Washington’s  counsel.    Indeed,  Washington’s  counsel  appeared  ready  for  trial  on
September 26 and did not mention or demand a jury.   We cannot infer from this record
that Washington was unaware of the need to timely demand a jury trial.3   Washington has
2    We are mindful that office policies and practices are likely in place that
sometimes result in a series of different public defenders being assigned/re-assigned
to each case.    How that may affect a client’s rights must be balanced with the
court’s  legitimate  interest  in  maintaining  its  docket  and  the  prompt,  efficient
administration of justice.   Unger, 67 Ohio St.2d, 23 N.E.2d 1078, at 67 (“Weighed
against any potential prejudice to a defendant are concerns such as a court’s right to control its own
docket and the public’s interest in the prompt and efficient dispatch of justice.”).
3 The pretrial transcripts reflect that Washington was advised of her right to
a jury on June 14, 2011 as follows:
You  have  the  right                                                                                    *   *                                                       *  to  a  trial  by  jury  in  all  but  Minor
                                                                                                             Misdemeanor cases which must be tried [to the court].

not provided us with a transcript of her arraignment proceedings, and thus we must
presume regularity and conclude that the municipal court complied with Crim.R. 5(A)(5)
by giving the advisements required at the initial appearance.   State v. Miyamoto, 3d Dist.
No. 14-05-43, 2006-Ohio-1776, ¶11 (“failure to provide an adequate record prevents a
defendant from arguing that the trial court failed to inform him of the need to demand a
jury trial,* * *.”).
{¶18} When all of the foregoing circumstances are considered in the context of the
applicable law, the trial court did not abuse its discretion by denying the continuance that
was requested on the day of trial.
{¶19} This assignment of error is overruled.
Assignment of Error II:
Ms. Washington was deprived of her liberty without due process of law,
where her convictions for aggravated menacing are against the weight of
the evidence presented.
{¶20} In reviewing a claim challenging the manifest weight of the evidence, the
question to be answered is whether
there is substantial evidence upon which a jury could reasonably conclude
that all the elements have been proved beyond a reasonable doubt.    In
conducting  this  review,  we  must  examine  the  entire  record,  weigh  the
evidence  and  all  reasonable  inferences,  consider  the  credibility  of  the
You have the right to waive or give up your jury trial and still have
this matter tried to [the court] on the facts and the law.
That advisement does not comply with Crim.R. 5(A) because it does not inform the
accused of the need to file a written demand for a jury trial.   However, Washington
was arraigned on June 8, 2011; therefore, this was not the initial appearance.

witnesses, and determine whether the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.
(Internal  citations  and  quotations  omitted.)    State  v.  Leonard,                        104  Ohio  St.3d  54,
2004-Ohio-6235, 818 N.E.2d 229, ¶81.
{¶21} The record evidence is summarized below.
{¶22} Jeffrey Rivers testified that he lived on E. 65th Street in Cleveland, Ohio,
across  the  street  from  Washington.    Rivers  owned  a  rental  property  next  door  to
Washington’s home.    The two had an ongoing dispute over maintenance and ownership
of a vacant lot between the two properties.4
{¶23} On May 19, 2011, Rivers was cutting the grass at his rental property with
some  other  workers.    One  worker  was  cutting  the  grass  on  the  vacant  lot  when
Washington came out and started yelling at him.5    Rivers took over the grass cutting, and
Washington then yelled at him to stop.    Washington maintained the lot belonged to her.
Rivers said Washington was hitting him as he continued to cut the grass.    Eventually,
Juahmea Harris, Rivers’s fiancée, got involved.
{¶24} Harris grabbed the lawn mower and told Rivers to walk away.    Washington
then  began  to  hit  Harris.    Rivers  said  his  father,  George  Rivers                    (“George”),  also
witnessed the incident.
4                                                                                              According to Rivers, the city of Cleveland owns the vacant lot.
5                                                                                              Rivers said he would cut the grass on half of the vacant lot.

{¶25} Rivers said he kept cutting the grass as George came over in an effort to
separate Harris and Washington.    At some point, Harris grabbed Washington’s hair and
wrestled her to the ground.    Washington went back inside    her house.
{¶26} Rivers heard yelling and screaming and turned around to see Washington
with a .45 automatic, black iron gun pointed to the back of his head.   Rivers said he is
familiar with guns because he goes to the shooting range.
{¶27} Washington allegedly said, “You’re about to stop this sh** right now.   I see
you are.”   Rivers said, “You’re right,” and backed across the street toward his father’s
house.   He was very much afraid.
{¶28} According to Rivers, Washington began chasing his workers and Harris with
the gun.   Eventually, Washington went back inside her house.
{¶29}  George  and  Rivers  both  called  the  police.     Rivers  called  a  police
commander that he knows.   Approximately five police cars arrived, and Rivers told the
officers what had happened.   The workers who were allegedly involved were no longer
there and did not speak to the police.
{¶30} Police went inside Washington’s home but did not find a gun.
{¶31} Juahmea Harris testified that she was helping Rivers with landscaping on
May 19, 2011.   She witnessed Washington confronting the worker who was cutting the
grass on the vacant lot.   Washington was yelling at the worker to get off of her property.
Harris was talking to George when Rivers went across the street to address the situation
with  Washington.    Washington  poked  Rivers  and  told  him  to  get  off  her  property.

Harris saw Washington’s foot near the running lawn mower.   Harris went over to get the
lawn mower out of the way.   Rivers and Washington were arguing.   Then, Washington
ran toward Harris, and the two women began pushing each other.   Washington punched
Harris.   Harris pulled Washington’s hair weave and restrained her.   Rivers and George
told Harris to let Washington go.   Washington went in her house.
{¶32} Harris called 911 to report that Washington had assaulted her.   While Harris
was on the phone, Washington came out of her house and pointed a gun at the back of
Rivers’s head.   Harris simultaneously reported this to 911.   After Rivers backed away,
Washington began waving the gun, saying  “I’m going to stop this sh** right now.”
Harris and the other workers ran away.   Harris said she was scared.
{¶33} Police arrived and handcuffed Harris for a period of time.    She gave a
statement to police.
{¶34} George also testified.   On May 19, 2011, he observed Washington yelling
at,  and  pushing,  Rivers.    George  and  Harris  went  across  the  street  to break up the
situation.                                                                                       But,  Washington  aggressively   “went  after”  Harris.     Harris  restrained
Washington by the hair.   George and Rivers told her to let Washington go.   Washington
went inside her house and then came back outside with a gun.   She ran up to Rivers and
put the gun to his head.    Rivers backed away, and Washington started going toward
Harris.   George called 911, as well as the commander’s office.   When the police arrived,
he gave a statement. He saw police officers go inside Washington’s house.

{¶35}  The police witnesses testified that they responded to E.  65th Street for
reports of a female with a gun.   The officers secured the area and made an assessment
from interviewing persons at the scene.   Washington was arrested although she denied
the charges.   Washington consented to a search of her home.   Numerous officers and a
K-9 searched her home at least three times but did not find a gun.   Washington was
advised of her rights and voluntarily gave a statement.   Washington denied punching
Harris.
{¶36} The defense presented the testimony of Tyrone Bell, Washington’s son.   He
was residing with Washington on May 19, 2011.   Bell testified that he did not see what
transpired between Washington and Harris that day.    Bell was not outside.    He was,
however, present when over ten officers and a dog searched his home.   They did not find
a gun.   Bell has never seen Washington with a gun, and she does not own one to his
knowledge.   Bell has not ever seen ammunition in his home.
{¶37}  Tiffany Browning, Bell’s girlfriend, was also present when the officers
searched  Washington’s  home.    She  said  that  Washington  came  inside  yelling  that
someone had “jumped on” her and her hair was all messed up.   Browning did not see
Washington with any gun.   Browning did not see anything that occurred outside of the
house.
{¶38} Washington testified in her defense.   She confirmed that she argued with
Rivers.   But according to her, Rivers confronted her and “started the lawn mower” at her.
Washington kicked the lawn mower.   Harris got involved and was telling Washington to

get off her property.   Harris grabbed Washington’s hair.   Washington ran inside to get
Bell and Browning to help her.   She denied hitting or threatening Harris or Rivers and
denied brandishing a gun.   She does not own or have a gun.   Washington said she also
called 911.
{¶39} Washington challenges her convictions for aggravated menacing pursuant to
Cleveland Codified Ordinances  621.06, which provides:                                          “No person shall knowingly
cause another to believe that the offender will cause physical harm to the person or
property of such other person or member of his or her immediate family.”
The  facts  support  Washington’s  convictions  for  aggravated  menacing.    There  was
testimony that Washington threatened both Harris and Rivers.   Three witnesses testified
that Washington pointed a gun to Rivers’s head and also chased Harris with it.   This type
of evidence has been deemed sufficient to support convictions on weapons offenses even
when  no  gun  is  ever  recovered.     E.g.,  State  v.  Warren,                               8th  Dist.  No.              95671,
2011-Ohio-4633.    Therefore,  similar  testimony  in  this  case  supports  a  finding  that
Washington threatened both Harris and Rivers at gunpoint even though no weapon was
recovered.   To the extent Washington maintains the testimony of those witnesses was not
credible, the trial court, acting as trier of fact, was in the better position to make that
assessment.
{¶40} This assignment of error is overruled.
{¶41} Judgment affirmed.

It is ordered that appellee recover of appellant 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 municipal
court 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.
SEAN C. GALLAGHER, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR

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