Manchester, David 8/26/2017
For Educational Use Only
State v. Mahoney, Not Reported in N.E.2d (1991)
1991 WL 81485
Only the Westlaw citation is currently available.
CHECK OHIO SUPREME COURT RULES
FOR REPORTING OF OPINIONS AND
WEIGHT OF LEGAL AUTHORITY.
Court of Appeals of Ohio, Eighth
District, Cuyahoga County.
STATE of Ohio, Plaintiff-Appellee,
v.
David MAHONEY, Defendant-Appellant.
No. 58513.
|
May 16, 1991.
Criminal Appeal from Common Pleas Court, Case No.
240354.
Attorneys and Law Firms
Stephanie Tubbs Jones, Cuyahoga County Prosecutor,
Cleveland, for plaintiff-appellee:
J. Ross Haffey, Jr., Lyndhurst, for defendant-appellant:
JOURNAL ENTRY AND OPINION
JAMES D. SWEENEY, Judge.
*1 Lucell Agee died on May 27, 1989, at approximately
2:10 a.m. of a single gunshot wound to the head. Dr.
Murthy of the Cuyahoga County Coroner's Office ruled
the death a homicide. Tests conducted on the decedent's
urine, blood and stomach proved positive for cocaine.
Tests for trace metal and gunshot residue on decedent's
hands performed by Sharon Rosenberg of the Coroner's
Office were negative. Evidence from the Coroner's Office
reflects that the victim was wearing a red jacket. See
Exhibits O and P.
Mr. Willie Toler lives in the house adjacent to the empty
lot where Mr. Agee was killed. Mr. Toler testified that he
heard someone outside say give me my twenty dollars,
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and then within seconds heard four or five shots. Mr.
Toler estimated the time as 2:08 a.m. (T. 89, 90, 93).
Ms. Regina Bland, who also lives in the same apartment
as Mr. Willie Toler, testified that she heard someone say,
Give me my money,. She then heard four shots, and
estimated the time as 2:10 a.m. (T. 141).
The private security guard who patrolled the area that
night was Floyd Morris. He testified that his shift ended at
1:30 a.m. At approximately 2:00 a.m., he was in the area
of 93rd Street and Hough Avenue. He saw a man running,
heard shots, and then saw the man fall. Mr. Morris saw a
male standing next to the same type of car that appellant
was driving that night. After the shots, the car sped off.
Mr. Morris rushed to the victim, who he recognized as
Lucell Agee.
Mr. Morris also testified that earlier that evening, in the
same vicinity, he heard shots fired. He attributed these
shots to gang fights.
Detective Mel Goldstein, of the homicide unit of the
Cleveland Police Department, arrived on the scene at
approximately 2:25 a.m. Since the victim had already
been taken to Mt. Sinai, Officer Goldstein spoke with
the investigating officers at the scene. Those officers had
interviewed witnesses and determined that the suspect was
wearing a beige, short-sleeved shirt and beige pants with
low cut, white tennis shoes.
Appellant's brother-in-law, Michael Ingram, testified that
he loaned his 1979 sky blue, 4-door Pontiac Bonneville to
the appellant at approximately 6:00 p.m. on May 26, 1989.
The car was returned by 11:00 a.m. the next day by Mr.
Mahoney.
Bill Turner was with appellant on the night Mr. Agee was
killed. He testified that appellant came to his house, they
drank a few beers, and left after 15 minutes or so. Turner
stated that he could not recall the exact time, but it was
close to being night. (T. 303). They proceeded to a bar
on East 131st Street and Harvard Avenue. Mr. Turner did
not enter the bar, but instead went to visit his mother. Mr.
Mahoney went into the bar and the two of them met 45
minutes later and went to the home of Ms. Sue Yarish.
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State v. Mahoney, Not Reported in N.E.2d (1991)
Upon arrival, Mr. Turner went to the store to purchase
more beer. Upon return, he went into the house and they
drank the beer.
Later, the three of them left in the car Mahoney was
driving to go back to Mr. Turner's residence. Mr. Turner
was in the rear seat, and Ms. Yarish was in the front
passenger seat.
*2 While enroute to Mr. Turner's home, appellant
stopped the car near the intersection of 93rd Street and
Hough Avenue. Appellant got out of the car and ran
across the street towards a group of people. Mr. Turner
lost sight of Mr. Mahoney, but he saw another man
running. He did hear shots in the area where appellant was
heading. At that point, Mr. Turner got out of the back
seat and into the driver's seat. As appellant was returning
to the car, Turner began to pull off. Appellant slipped and
fell, then managed to get into the car. Mr. Turner drove
back to his home, where he and Mr. Mahoney sat on the
porch and drank beer. Turner testified that he did not see
Mahoney with a gun. When he asked appellant what was
going on, he was told, don't worry about it. (T. 317).
The testimony of Ms. Sue Yarish partially corroborates
that of Mr. Turner. She stated that appellant and Bill
Turner came to her house after midnight on May 27, 1989.
They arrived in a car owned by appellant's brother-in-law.
When they left, appellant was driving, Mr. Turner was in
the rear seat and Ms. Yarish was in the front passenger
seat. She testified that appellant stopped the car in the area
of 93rd Street and Hough Avenue. He grabbed a gun off
of the floor, got out of the car, and chased a man wearing
a red jacket. Ms. Yarish lost sight of appellant, and she
then heard gun shots. Mr. Turner got into the driver's
seat and appellant returned to the car. The car moved
as appellant was trying to get in and he fell. Ms. Yarish
testified that appellant said he thought he hit him but he
did not know. (T. 258). As they drove away, Ms. Yarish
observed appellant taking bullets out of the gun.
After dropping off Mr. Turner, Ms. Yarish and appellant
returned to her house. She testified that appellant was
wearing white pants, and that she washed those pants that
night because appellant had skinned his knee when he fell
trying to get into the car. She was unable to remove the
blood stain.
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Ms. Yarish stated that appellant stayed with her every
day until his arrest which was several days later. On
Sunday, May 28, 1989, Ms. Yarish stated that she read the
newspaper and discovered that someone had been shot in
the area of 93rd Street and Hough Avenue on May 27,
1989. When she questioned appellant he threatened her
by saying, If I breathed a word to anybody at any time,
I'd be deader than his mother. (T. 265). Ms. Yarish also
testified that during her conversation with appellant, he
mentioned something about Lucell Agee and bad dope.
(T. 263).
Gina Drake, an employee of the Lake County Sheriff's
Department, testified that on May 26, 1989, between 11:30
p.m. and midnight, she picked up Mr. Mahoney in her
automobile at the Shaker Rapid station and returned
with him to her home in Beachwood. She stated that Mr.
Mahoney was dressed in white pants and a blue top. Ms.
Drake recalled specifically that Mr. Mahoney stayed with
her from midnight until 6:30 a.m. on the Friday night of
the last weekend in May.
*3 Ms. Drake testified that she has known appellant
since high school, but that she did not know where the
appellant was living at the time in question, nor did she
know how to reach him by telephone. At the request of
appellant, Ms. Drake never contacted the police about her
alibi after learning appellant was in jail and charged with
murder.
The trial judge conducted a voir dire examination of
Ms. Yarish to determine whether or not a common law
marriage existed between her and the appellant. Mr.
Mahoney raised the issue of matrimonial privilege to
prohibit Ms. Yarish from testifying.
Ms. Yarish testified that she was 32 years old; her prior
marriage ended in divorce; she had a divorce decree from
the court; she had known appellant for 9 or 10 years;
she lived with appellant uninterrupted for at least six
years; that they ate and slept together and that they did
everything as a married couple would. Ms. Yarish related
that one afternoon in 1980, she and appellant were in the
park, and met a third person. She introduced herself as
appellant's wife. Afterwards she and appellant discussed
marriage, and agreed to live as husband and wife. Ms.
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Yarish testified that they did, in fact, hold themselves out
as husband and wife. In the past, when appellant was in
jail, Ms. Yarish visited him as his wife.
In the years that they lived together, they never co-signed a
loan or mortgage, and with one exception, did not co-sign
lease agreements. During those years, Ms. Yarish received
Aid to Dependent Children (ADC), as a single mother for
her children. They also never filed a joint tax return. Ms.
Yarish testified that she had been arrested several times
over the years and each time she told the authorities she
was single. (T. 230).
Within the last year, Ms. Yarish filed a domestic violence
report, only to be told by the Cleveland City prosecutor's
office that since appellant was her common law husband
they could not make him leave her house unless she
filed for separation or divorce. Ms. Yarish testified that
because of appellant's temper she wanted him to have a
separate residence so he would have somewhere to go to
cool off. (T. 240).
Ms. Yarish testified that although she and appellant have
not lived together in the last 2 or 3 years, she still considers
them to be married, and hopes the marriage will last
forever.
It is worthy to note that during his testimony, Michael
Ingram, appellant's brother-in-law, stated that Ms. Yarish
was the wife of the appellant. In addition, appellant
proffered evidence that Karen Ingram, appellant's sister,
would testify that Ms. Yarish and appellant were husband
and wife.
Appellant's First Assignment of Error.
I
THE TRIAL COURT ERRED WHEN IT
FOUND THAT THE DEFENDANT AND SUE
ANN YARISH'S RELATIONSHIP DID NOT
CONSTITUTE A COMMON LAW MARRIAGE.
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Common law marriage is the joinder of a man and woman
without formal proceedings. These marriages are not
favored in Ohio. Nestor v. Nestor (1984) 15 Ohio St.3d 143.
The necessary elements to establish a common law
marriage are:
*4 1) an agreement of marriage in praesenti;
2) made by parties competent to contract;
3) accompanied and followed by cohabitation as husband
and wife;
4) being treated and reputed as such in the community and
circle in which they move.
Nestor, supra, and Jackson v. Jackson (Sept. 20, 1984)
Cuyahoga App. No. 48179, unreported.
All of these elements are necessary to establish a common
law marriage, however, the Nestor court reasoned:
The fundamental requirement to establish the existence of
a common law marriage is a meeting of the minds between
the parties who enter into a mutual contract to presently
take each other as man and wife. The agreement to marry
in praesenti is the essential element of a common law
marriage. Its absence precludes the establishment of such
a relationship even though the parties live together and
openly engage in cohabitation. Although cohabitation
and reputation are necessary elements of a common law
marriage, this court has previously held that standing
alone they do not constitute a common law marriage. In
re Redman (1939), 135 Ohio St. 554 [29 O.O. 143].
The court went on to state:
The contract of marriage in praesenti may be proven either
by way of direct evidence which establishes the agreement,
or by way of proof of cohabitation, acts, declarations,
and the conduct of the parties and their recognized status
in the community in which they reside. However, all of
the essential elements to a common law marriage must be
established by clear and convincing evidence. Markley v.
Hudson, supra, at 169; In re Redman, supra, at 558.
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State v. Mahoney, Not Reported in N.E.2d (1991)
Appellant did not prove that a common law marriage
existed between himself and Ms. Yarish by clear and
convincing evidence.
The testimony of Ms. Yarish included the following: that
upon arrest she always told authorities she was single; that
she received ADC as a single mother; that she filed no joint
tax return with appellant; and that she had not been living
with the appellant for the last 2 or 3 years.
Given this testimony, we cannot find that the trial
judge abused his discretion in determining that there was
insufficient evidence to establish a common law marriage
between Ms. Yarish and the appellant. This assignment of
error is not well taken.
Appellant's Second Assignment of Error.
II
THE TRIAL COURT ERRED IN PERMITTING
THE COMMON LAW WIFE OF THE DEFENDANT,
OVER THE OBJECTION OF THE DEFENDANT, TO
TESTIFY AGAINST THE DEFENDANT AND FOR
THE STATE OF OHIO.
In State v. Bradley (1986), 30 Ohio App.3d 181, the Court
of Appeals for Cuyahoga county dealt with a factually
complex case, but one directly on point on the issue of the
ability of a wife, who is living separately, to testify against
her spouse in a criminal case.
The court held that in a criminal case, R.C. 2945.42
is applicable to determine the spousal communication
privilege. This court went on to cite State v. Canitia (Jan.
19, 1984), Cuyahoga App. No. 46946, unreported:
In State v. Canitia, supra, this court followed the holding
of the Ohio Supreme Court in McEntire v. Mcentire
(1923), 107 Ohio St. 510, 140 N.E. 328. This court held,
as did the court in McEntire, that the spousal privilege
for confidential communications does not apply when the
spouses are separated and not living as husband and wife.
State v. Canitia, supra, at 16-17.
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*5 In the case sub judice, Ms. Yarish testified that she
and appellant had been living separately for the last 2 or
3 years. Therefore, the court did not err in allowing Ms.
Yarish to testify.
This assignment of error is not well taken.
Appellant's Third Assignment of Error.
III
THE DEFENDANT WAS DENIED HIS FREEDOM
WITHOUT DUE PROCESS OF LAW BY HIS
CONVICTIONS WHICH WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
The scope of review to be used where a party alleges
the judgment of the trial court is against the manifest
weight of the evidence was recently stated by this court in
State v. Scott (Mar. 23, 1989), Cuyahoga App. No. 55114,
unreported, at p. 7-8:
The primary task of weighing evidence and judging the
credibility of witnesses is left to the trier of fact, in this
case the jury. State v. DeHass (1967), 10 Ohio St.2d 230,
at syllabus number 1. Therefore, a reversal of a judgment
based on manifest weight of the evidence will only be
done in exceptional cases. State v. Woods (1985), 25 Ohio
App.3d 35.
A reviewing court will not reverse where there is
substantial, competent and credible evidence supporting
the criminal conviction. State v. Eley (1978), 56 Ohio St.2d
169, syllabus.
In the present case, the jury had ample competent, credible
evidence upon which to convict. Further, viewing the
evidence and inferences reasonably drawn therefrom in a
light most favorable to the prosecution, we find that there
was sufficient evidence to convict.
This assignment of error is overruled.
The judgment of the trial court is affirmed.
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State v. Mahoney, Not Reported in N.E.2d (1991)

the judgment and order of the court and time period for
DYKE, P.J., and BLACKMON, J., concur.
review will begin to run.
N.B. This entry is made pursuant to the third sentence
of Rule 22(D), Ohio Rules of Appellate Procedure. This
is an announcement of decision (see Rule 26). Ten (10) All Citations
days from the date hereof this document will be stamped
to indicate journalization, at which time it will become Not Reported in N.E.2d, 1991 WL 81485

End of Document 2017 Thomson Reuters. No claim to original U.S. Government Works.

2017 Thomson Reuters. No claim to original U.S. Government Works. 5