[Cite as State v. Raia,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2013-P-0020 - vs - :

PAUL RAIA a.k.a. PETER PAUL RAIA, :

Defendant-Appellant. :

Criminal Appeal from the Portage County Municipal Court, Case No. 12 CRB 636.

Judgment: Reversed and remanded.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Frank J. Cimino, 250 South Chestnut Street, Suite #18, Ravenna, OH 44266 (For Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} This appeal is from the Portage County Municipal Court. Appellant Paul

Raia was found guilty of exposing his private parts in violation of R.C. 2907.09(A)(1), a

fourth degree misdemeanor. The jury also found that Raia had two prior convictions of

public indecency, elevating his current conviction to a second degree misdemeanor.

On appeal, Raia alleges that the single judgment entry containing both of his prior

convictions was improperly admitted because it did not set forth the trial judge’s

signature. He also alleges that the trial court’s various limitations on his cross- examination of the state’s witnesses violated his right to confrontation. For the

following reasons, we reverse and remand.

{¶2} On the afternoon of March 21, 2012, Danielle Keller and Stacey Parsons

went to a Burger King in Kent, Ohio for lunch. Parsons ordered a salad and sat at a

table where she saw Raia sitting at another table with his legs apart and his private

parts exposed. Parsons went to Keller, who was still ordering lunch, and told her what

she saw. The two decided to sit at the table where Parsons originally sat. Keller

glanced at Raia and saw that his testicles were exposed through the bottom of his

shorts and told Parsons “the mouse is back out of the house.”

{¶3} Parsons turned around and saw Raia smiling with his legs spread apart

and his testicles exposed. As a result, Parsons became distressed and went to the

restroom to call the police. However, because her cell phone battery was low, she

went to Gary Trump, a manager at the Burger King, to complain about the situation.

Trump testified that he went over to Raia to investigate. Upon walking over to the table

where Raia was sitting, Trump saw that Raia’s penis and testicles were exposed

through the bottom of his shorts. He informed Raia that his genitals were exposed and

told him to cover himself up. Raia complied.

{¶4} Shortly thereafter, Keller informed Parsons that Raia’s private parts were

exposed again. Keller and Parsons left the restaurant. After apologizing to Keller and

Parsons for the incident, Trump told Raia that he had to leave the restaurant. Upon

leaving, Keller and Parsons called the police who apprehended Raia shortly thereafter.

{¶5} At trial, Raia’s defense consisted solely of his own testimony. According

to Raia, he was the victim of various malicious lies directed at him. He claimed that

Keller and Parsons were lying because they were cross-dressers, and that because

2 cross-dressers have an intrinsic bias against men, they sought to make false

accusations against him. Raia also claimed the police officer wrongfully arrested him

because the officer is rewarded for each arrest he makes. Additionally, Raia claimed

that he could not have wrongfully exposed himself because he was wearing tight

underpants.

{¶6} As his first assignment of error, Raia alleges that:

{¶7} “The trial court committed prejudicial error in overruling the Defendant-

Appellant’s Motion to Exclude the conviction of Case No. K98 CVB 1221S filed in the

Portage County Municipal Court, in Kent Division, on December 2, 1998, in that the

judgment entry did not contain the signature of the presiding judge, Donald. H. Martell.”

{¶8} Within this assignment of error, Raia makes two arguments. He first

alleges that the trial court’s admission of the judgment entry of Raia’s two previous

convictions for public indecency was improper because the judgment entry did not

comply with R.C. 2945.75(B)(1) or Crim.R. 32(C). He also alleges that the judgment

entry was not properly authenticated. The State does not defend the propriety of the

trial court’s admission; rather, the state contends it is harmless error.

{¶9} We first address the issue of compliance with Crim.R. 32(C) and R.C.

2945.75(B)(1). A trial court has broad discretion in determining the admissibility of

evidence. State v. Hymore,

(1967). Unless an abuse of

discretion is apparent from a review of the record, appellate courts will not disturb

evidentiary rulings.

An “abuse of discretion” is one of art, connoting judgment

exercised by a court, which does not comport with reason or the record. State v.

Underwood, 11th Dist. Lake No. 2008-L-113,

, citing State v.

Ferranto,

(1925). The Second Appellate District also

3 recently adopted a similar definition of the abuse-of-discretion standard: an abuse of

discretion is the trial court's “‘failure to exercise sound, reasonable, and legal decision-

making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54,

, ¶62,

quoting Black's Law Dictionary (8 Ed.Rev. 2004). When an appellate court is reviewing

a pure issue of law, “the mere fact that the reviewing court would decide the issue

differently is enough to find error[.] * * * By contrast, where the issue on review has

been confined to the discretion of the trial court, the mere fact that the reviewing court

would have reached a different result is not enough, without more, to find error.” Id.

¶67.

{¶10} In regard to proving a past conviction, the state may prove the past

conviction pursuant to R.C. 2945.75(B)(1). R.C. 2945.75(B)(1) provides: “Whenever in

any case it is necessary to prove a prior conviction, a certified copy of the entry of

judgment in such prior conviction together with evidence sufficient to identify the

defendant named in the entry as the offender in the case at bar, is sufficient to prove

such prior conviction.” When proving a past conviction pursuant to R.C. 2945.75(B)(1),

the judgment entry must comply with Crim.R. 32(C). State v. Gwen,

,

. To comply with Crim.R. 32(C), “the judgment entry must set

forth (1) the fact of a conviction, (2) the sentence, (3) the judge's signature, and (4) the

time stamp indicating the entry upon the journal by the clerk.”

{¶11} The judgment entry admitted does not contain a signature of the trial judge

and therefore did not comply with Crim.R. 32(C). Consequently, the admission of the

judgment entry was improper. However, in Gwen, the Ohio Supreme Court made clear

that R.C. 2945.75(B)(1) is not the only way to prove a previous conviction. Id., ¶22. In

Gwen the court held that the defendant may admit or stipulate that the defendant has a

4 previous conviction. Id., ¶12, 14. Raia admitted on the stand that he had two previous

convictions for public indecency. Because his testimony acted as an alternate means

of proving his prior convictions for public indecency, the admission of the judgment

entry to prove the two previous convictions, although improper, was harmless error.

Id., ¶12; Crim.R. 52(A).

{¶12} In light of the foregoing, Raia’s alleged error with regard to the improper

authentication of the judgment entry is also harmless error. Accordingly, the first

assignment of error is without merit.

{¶13} Because the remaining assignments of error center on Raia’s right to

confront the state’s witnesses, we will consolidate these assignments for review. As

Raia’s second, third, and fourth assignments of error, he respectively alleges:

{¶14} “The trial court committed prejudicial error in sustaining granting (sic) the

Plaintiff-appellee’s Objection to allowing the Defendant-Appellant to cross-examine the

prosecution’s first witness, Gary Trump, on the sworn statement that he had made as

part of the complaint filed in the Portage County Municipal Court, Kent Division, on

March 21, 2012. Said Complaint was a sworn statement regarding the allegations of

the offense filed by the State of Ohio on that date.

{¶15} “The trial court committed prejudicial error in granting the Plaintiff-

Appellee’s Objection to the Defendant’-Appellants (sic) inquiry of witnesses Gary

Trump and Office (sic) John Stirm for signing under oath the Complaint and the

preparation of the Complaint by John Stirm in establishing a complaint that alleged

things that no witness testified to during the course of the trial. As a result of that, the

failure to allow cross-examination of the sworn statement by not only Gary Rump (sic)

but also prepared by Office (sic) John Stirm created prejudicial error to the Defendant

5 in the trial of this matter. Said prejudicial error can only be highlighted by the question

posed to the judge during deliberations. Said question required the court to allow

jurors to review the original complaint filed in this matter. The court refused to allow

said Complaint to be presented to the jury.

{¶16} “The trial court committed prejudicial error in precluding Defendant-

Apellant from questioning the two individuals, Parsons and Keller, as to their sexual

orientation as to whether or not they may be prejudiced against the male gender.”1

{¶17} Shortly before trial the state sought to amend the complaint that Trump

signed and charge Raia under R.C. 2907.09(A)(1) claiming that Raia exposed his

genitals instead of R.C. 2907.09(A)(3), which alleged that Raia engaged in conduct that

an ordinary person would view as sexual conduct or masturbation. Raia alleges that

the change in the amended complaint to charge Raia under R.C. 2907.09(A)(1) created

a prior inconsistent statement which could be used to impeach Trump and Officer

Stirm’s testimony. Specifically, Raia alleges that in the original complaint, Trump, as

the complaintant, alleged that Raia “engage[d] in conduct that to an ordinary observer

would appear to be sexual conduct or masturbation;” however, Trump never testified

that he saw either of those actions at trial. According to Raia, he should have been

able to cross-examine Officer Stirm and Trump as to why their testimony differed from

the initial complaint. The state claims that Raia has waived the issue because it should

have been addressed in a pre-trial motion.

{¶18} Before turning to the merits, we address waiver. The state contends that

the defense was aware the original complaint was mistakenly charged under R.C.

1. Although in the assignment of error Raia references impropriety in the cross-examination of Parson, in his brief he raises no argument in support. We therefore limit our analysis to the examination of Keller.

6 2907.09(A)(3), that Raia should have raised an objection to the original complaint, and

that this failure to do so resulted in his waiver of the issue. Under Crim.R. 12(H)

“[f]ailure by the defendant to raise defenses or objections or to make requests that

must be made prior to trial, at the time set by the court pursuant to division (D) of this

rule, or prior to any extension of time made by the court, shall constitute waiver of the

defenses or objections, but the court for good cause shown may grant relief from the

waiver.” Crim.R. 12(C) provides in pertinent part that:

{¶19} “Prior to trial, any party may raise by motion any defense, objection,

evidentiary issue, or request that is capable of determination without the trial of the

general issue. The following must be raised before trial: * * *

{¶20} “(2) Defenses and objections based on defects in the indictment,

information, or complaint (other than failure to show jurisdiction in the court or to charge

an offense, which objections shall be noticed by the court at any time during the

pendency of the proceeding).”

{¶21} The state’s waiver argument is unpersuasive because Raia is not

attacking the propriety of the original complaint. As Trump’s statement in the original

complaint was intended to be used solely for impeachment purposes, Raia is not

claiming the original complaint was defective. Rather, Raia is claiming that Trump was

an impeachable witness due to his prior inconsistent statement. Crim.R. 12(C)(2) does

not require the defense to raise an attack on credibility in a pre-trial motion.

{¶22} Turning to the merits, the Confrontation Clause entitles a defendant to

engage in an effective cross-examination of his or her accusers. Delaware v.

Fensterer,

(1985). It does not, however, guarantee a “cross-

examination that is effective in whatever way, and to whatever extent, the defense

7 might wish.”

A trial court may reasonably restrict the scope of cross-examination

based upon concerns for prejudice, harassment, confusion of the issues, or general

relevancy. State v. Melton, 11th Dist. Lake No. 2009-L-078,

, ¶35.

Therefore, the Confrontation Clause guarantees only an opportunity for effective cross-

examination.

The extent of cross-examination with respect to an

appropriate subject of inquiry is within the sound discretion of the trial court. State v.

Green,

(1993), citing Afford v. United States,

(1931).

{¶23} Evid.R. 607(A) governs the admissibility prior inconsistent statements for

the purposes of impeachment. Evid.R. 607 provides in pertinent part that:

{¶24} “(A) * * * The credibility of a witness may be attacked by any party except

that the credibility of a witness may be attacked by the party calling the witness by

means of a prior inconsistent statement only upon a showing of surprise and affirmative

damage. * * *

{¶25} “(B) A questioner must have a reasonable basis for asking any question

pertaining to impeachment that implies the existence of an impeaching fact.” The

Seventh District has provided the following definition of a prior inconsistent statement:

{¶26} “The Rules of Evidence do not define when a statement is inconsistent.

However, [a] general definition of an inconsistent statement is: It is enough if the

proffered testimony, taken as a whole, either by what it says or by what it omits to say,

affords some indication that the fact was different from the testimony of the witness

whom it is sought to contradict. Ohio's courts should be liberal when determining

whether two statements are inconsistent. A trial court has the discretion to determine

whether two statements are inconsistent and whether any differences between prior

8 statements and trial testimony are material inconsistencies.” (Citations and quotation

omitted.) (Emphasis added.) State v. Freeman, 7th Dist. Jefferson No. 07 JE 5, 2008-

Ohio-2925, ¶53.

{¶27} Exposing one’s private parts alone does not amount to engaging in

conduct that would appear to be sexual conduct or masturbation. Because Trump’s

testimony indicated Raia exposed his genitals in public but did not engage in sexual

conduct or masturbation, his testimony is inconsistent with his prior statement in the

complaint. Accordingly, cross-examination on that issue should have been permitted.

{¶28} Finding error, however, does not end the analysis. Confrontation Clause

errors are subject to harmless error review. Delaware v. Van Arsdall,

(1986). When applying a harmless error analysis to this type of constitutional

error, we must be sure such error was harmless beyond a reasonable doubt.

Chapman v. California,

(1967). “The * * * inquiry is whether, assuming that

the damaging potential of the cross-examination were fully realized, a reviewing court

might nonetheless say that the error was harmless beyond a reasonable doubt.

Whether such an error is harmless in a particular case depends upon a host of factors,

all readily accessible to reviewing courts. These factors include the importance of the

witness’ testimony in the prosecution's case, whether the testimony was cumulative,

the presence or absence of evidence corroborating or contradicting the testimony of

the witness on material points, the extent of cross-examination otherwise permitted,

and, of course, the overall strength of the prosecution's case.” Van

{¶29} To give full effect to the damaging potential of the improper denial of

Trump’s cross-examination, we must presume that Trump made a sworn statement

that Raia engaged in conduct that appeared to be sexual conduct or masturbation one

9 day yet testified under oath before the jury that Raia merely exposed himself. The full

damaging potential of Trump’s prior inconsistent statement cannot be

underemphasized. Trump’s prior statement and his testimony state two different types

of culpable conduct. Considering the entire case focused on whether Raia exposed

himself in public, inconsistent statements about Raia’s actions go to the heart of the

prosecution’s case.

{¶30} Raia also claims the trial court violated the Confrontation Clause in limiting

his cross-examination of Keller.

{¶31} Raia claims his right to confront Keller was violated because he was not

able to cross-examine her regarding her bias toward men. According to Raia’s

testimony Keller and Parsons are cross-dressers; cross-dressers harbor a bias against

men; this bias against men would motivate these witnesses to falsely accuse Raia of

exposing his genitals. Ergo, Raia claims he has a right to question Keller regarding her

bias toward men.

{¶32} During cross-examination of Keller, Raia’s attorney asked the following

questions:

{¶33} “[Raia’s defense attorney]: How long have the two of you [referring to

Keller and Parsons] been friends?

{¶34} “[Keller]: Um, I’m trying to think here. It’s been quite a few years now.

{¶35} “Any idea?

{¶36} “I think four years.

{¶37} “Four years?

{¶38} “Uh-huh.

{¶39} “How is it that your friendship evolved?

10 {¶40} “I met her through a support group.

{¶41} “[Prosecutor]: Your Honor, I’m going to object to anymore questioning

about their personal lives.”

{¶42} “THE COURT: I’ll sustain that objection.

{¶43} “[Raia’s defense attorney]: Well, I guess the concern I have is is (sic)

there any sensitivity that you have towards the male sex?

{¶44} “[Prosecutor]: Objection.

{¶45} “THE COURT: Excuse me. I’m going to sustain that objection we are not

going there. You do not have to answer that question.”

{¶46} The question regarding whether Parsons had any sensitivity toward the

male sex is a reasonable line of inquiry into Keller’s potential bias against men

regardless of whether Parsons was a cross-dresser. Evid.R. 607(A); State v. Zack, 9th

Dist. Lorain Nos. 99CA007321, 98CA007270,

, *23 (June

14, 2000). Accordingly, the trial court erred in sustaining the objection.

{¶47} Assuming the full damaging potential of the improper denial of the cross-

examination, Keller would have testified that she had a bias against men, and the jury

would have concluded such bias materially affected her perception of events.

{¶48} Consequently, Parsons’ testimony is the only untainted testimony. When

Parsons’ testimony, combined with the other tainted testimony is weighed against

Raia’s general denials, we cannot say the trial court’s errors were harmless beyond a

reasonable doubt and Raia denied the charges.

{¶49} Accordingly, the second, third and fourth assignments of error have merit.

{¶50} The judgment of the Portage County Municipal Court is reversed. We

remand to the trial court for further proceedings.

11 TIMOTHY P. CANNON, P.J., concurs,

CYNTHIA WESTCOTT RICE, J., concurs in part and dissents in part with a Concurring/Dissenting Opinion.

____________________

CYNTHIA WESTCOTT RICE, J., concurs in part and dissents in part with a Concurring/Dissenting Opinion.

{¶51} I concur with the majority’s disposition of appellant’s first assignment of

error. I also agree that the trial court committed error when it denied appellant the

opportunity to cross-examine the specified witnesses using the means cited in his

assignments of error. Because, however, the testimony of the three primary

prosecution witnesses, Trump, Parsons, and Keller, were completely consistent

regarding the material elements of the charge, I find these errors harmless. I therefore

dissent on the majority’s disposition of appellant’s second, third and fourth assignments

of error.

{¶52} In the context of one’s right to confront a witness, the United States

Supreme Court has commented:

{¶53} Whether such an error is harmless in a particular case depends

upon a host of factors, all readily accessible to reviewing courts.

These factors include the importance of the witness’ testimony in

the prosecution’s case, whether the testimony was cumulative, the

presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points, the extent of cross-

examination otherwise permitted, and, of course, the overall

12 strength of the prosecution’s case. Delaware v. Van Arsdall,

(1986).

{¶54} In this matter, the testimony of Trump, Parsons, and Keller, all witnesses

to the crime, were overwhelmingly consistent in their rendition of events. In particular,

each witness unequivocally testified that appellant exposed his private parts. The only

testimony that did not corroborate the state’s witnesses was, not surprisingly, that of

appellant. I would therefore hold the overall strength of the state’s case was so

significant as to render any error in precluding cross-examination relating to the original

complaint or any potential gender bias harmless beyond a reasonable doubt.

{¶55} For the foregoing reasons, I would affirm appellant’s conviction.

13