Opinion
NO. 02-17-00134-CR
04-19-2018
CHIEDOZIE OFURUM APPELLANT v. THE STATE OF TEXAS STATE
FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
TRIAL COURT NO. CR-2016-06415-A MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
I. Introduction
A jury found Appellant Chiedozie Ofurum guilty of the Class A misdemeanor offense of interference with an emergency request for assistance and assessed his punishment at 365 days' confinement. The trial court sentenced him accordingly and then suspended the sentence and placed Ofurum on community supervision for twenty-four months. See Tex. Penal Code Ann. § 12.21(2) (West 2011), § 42.062(a) (West 2016); Tex. Code Crim. Proc. Ann. art. 42A.053(a)(1) (West Supp. 2017). In two issues, Ofurum appeals, arguing that the trial court erred by denying his motion for directed verdict upon the closing of the State's case and that the evidence is insufficient to support the jury's verdict. We affirm.
A challenge to the denial of a motion for instructed verdict is a challenge to the sufficiency of the evidence. Canales v. State, 98 S.W.3d 690, 693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003).
II. Sufficiency of the Evidence
Ofurum was charged with knowingly preventing or interfering with his wife's ability to place an emergency telephone call or request assistance in an emergency from a law enforcement agency. See Tex. Penal Code Ann. § 42.062(a); Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (stating that sufficiency is measured by charged offense's statutory elements as modified by charging instrument). A person acts "knowingly" (1) with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist and (2) with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Tex. Penal Code Ann. § 6.03(b) (West 2011). An "emergency," within the context of section 42.062 and this case, is "a condition or circumstance in which any individual is or is reasonably believed by the individual making a call or requesting assistance to be in fear of imminent assault." See id. § 42.062(d). A "reasonable belief" is "a belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Id. § 1.07(a)(42) (West Supp. 2017).
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at 599.
The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016). Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448-49; see Blea, 483 S.W.3d at 33.
B. Evidence
1. State's Case
On the evening of February 5, 2016, Carrollton Police Officers Christopher Gent and Adam Morris were dispatched to respond to a domestic disturbance "in progress," including a reported assault. While the officers were en route, dispatch relayed to them that the husband—Ofurum—had tried to take away the wife's phone. Ofurum left the scene before the officers arrived, while his wife was still on the phone with 911.
Officer Morris testified that more than one officer is normally dispatched to a domestic dispute "[b]ecause they're a volatile situation" if the suspect is still on the scene and more than one officer is needed "to separate people and talk to both sides."
Officer Gent stated that leaving the scene can be an indication that the party has "fled for whatever reason. Sometimes they go for a drive. It -- it just -- it depends, but a variety of reasons."
Officer Morris spoke with the wife, Ericka, who told him that Ofurum had tried to twist the phone out of her hands while she was talking with 911. Based on his conversation with her, and the redness that he observed on her neck, Officer Morris believed that Ofurum had committed a family violence assault and interference with a 911 call. The trial court admitted into evidence the photographs that Officer Morris had taken of Ericka that night and allowed them to be published to the jury. Officer Morris opined that an emergency occurs if someone calls 911 because she is being assaulted. Officer Morris also testified that he indicated in his report to the investigator that Ericka was interested in obtaining an emergency protective order.
Ofurum's counsel raised hearsay and Confrontation Clause objections to the officer's testimony about what Ericka told him, but the trial court overruled these objections, and Ofurum does not complain about the admission of this evidence on appeal. Further, we must consider all of the evidence admitted at trial, even improperly admitted evidence, when performing a sufficiency review. See Jenkins, 493 S.W.3d at 599; Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004).
Carrollton Police Detective Kent Rogers testified that he investigated Ofurum's assault and interference-with-an-emergency-call cases. He said that interference cases are frequently companions to such assault cases, described the cycle of violence involved in family violence cases, and stated that it was common for victims to stay with their abusers and to seek to drop the charges. Here, Ericka told Detective Rogers that she wanted to drop the charges against Ofurum.
Detective Rogers contacted Ofurum on February 17 and arranged to interview him on February 18 so Ofurum would have the opportunity to tell his side of the story. Ofurum called on the morning of February 18 to reschedule the appointment to February 23. After missing his February 23 appointment, Ofurum called the detective and asked if he was going to be arrested. Detective Rogers told him that he had a warrant for Ofurum's arrest, they talked about the arrest process, and Ofurum told Detective Rogers that he would call him back to set a time to turn himself in.
Detective Rogers testified that he had sought an arrest warrant for Ofurum on the interference with an emergency call charge based on the photographs, Ericka's handwritten affidavit that was not admitted into evidence, the offense report from the officers who had been at the scene, and his conversation with Ericka. Ericka's written statement was not admitted into evidence at trial, but Detective Rogers testified that it "support[ed] the story that she told the officers and that was written in the report" and was consistent with the information he later obtained from her. Likewise, the offense report was not admitted into evidence, but Detective Rogers testified that the form was filled out by the responding officers and that next to the question about whether Ericka wanted information on emergency shelters, "[t]he check box 'yes' [was] checked."
True to his word, Ofurum did turn himself in.
The trial court admitted into evidence Detective Rogers's taped conversations with Ofurum—the February 17 conversation and a conversation after Ofurum turned himself in—and allowed the State to publish them to the jury. Most of the February 17 phone call was spent trying to coordinate their schedules so that Ofurum could come in to give his version of events the next day, but during the two-and-a-half-minute conversation, Detective Rogers asked Ofurum whether he knew that Ericka had made a police report about the February 5 incident. Ofurum indicated that although he was aware that the police had been called, he did not know what had happened.
The second phone call, which lasted less than three minutes, included an apology from Detective Rogers, who had been out when Ofurum turned himself in. During that call, Detective Rogers explained that the assault charge was a Class C misdemeanor and would be handled by the city like a traffic ticket, while the interference case would be turned over to the District Attorney's office.
Denton County District Attorney's Office Investigator Paul Nathan testified that he had been a police officer for "[j]ust shy of 24 years" when he started helping prepare cases for the DA's office. He testified that in this case he had to serve Ericka with a subpoena at least twice but added that it was not uncommon to have an uncooperative victim in a family violence case and that such victims frequently sought dismissal of those cases because "they're still with the abuser."
Ericka's last subpoena—delivered to her on March 23, 2017—was admitted into evidence and published to the jury. Although the subpoena commanded Ericka to be at court at 10 a.m. for the April 10, 2017 trial, she did not show up as ordered. The District Attorney's office then obtained a writ of attachment to secure her attendance. When the deputy sheriff went to her house with the writ, one of her daughters told the deputy that Ericka was at work.
At the beginning of trial the next day, Nathan testified that a deputy from the warrant division had gone to Ericka's house that morning but that she was not there and that "a male subject answered the door [and] let him come into the residence and check for her." The male subject told the deputy that "Ericka did not want to participate in this and didn't want anything to do with it, and she [was] possibly staying with her mother in Dallas." The deputy also went to Ericka's work address but was unable to locate her there. At the time of trial, the deputy was still trying to locate Ericka at her mother's address in Dallas.
Ofurum admitted at trial that he was the "male subject" who spoke with the deputy on that occasion.
Ericka did not appear at the trial, and her 911 call was not admitted into evidence.
2. Defense's Case
Forty-two-year-old Ofurum, a chiropractor, testified that he and his wife Ericka had four children, ages 22, 14, 10, and 2. On the morning of February 5, 2016, Ericka, suspicious of infidelity, confronted him about a message that she had seen on his phone. He became upset that she had accessed his phone, and they both started yelling at each other. After a period of time, they both went to work, but they resumed their argument when they returned home later that evening.
During cross-examination, Ofurum denied that he had been yelling in Ericka's face so close that his nose touched her face and that it would not be correct if that was what she had told the police.
While they argued that evening, the couple's then-11-month-old child was in the room. At some point, Ericka took the child with her into the closet and she started packing. After Ofurum asked her what she was doing, she told him that she was leaving. He responded that it was fine if she left but that she could not take the baby with her at that time of night. He estimated that they struggled over the child for "[a] couple seconds" before he realized how tightly she was holding the baby; then he let go. Ofurum denied having grabbed Ericka by the neck or shoving her against the wall.
Ofurum said he did not recall whether Ericka asked their then- 13- and 9-year-old daughters to take the baby upstairs.
Ofurum did not recall the exact time but said that because it was dark outside, it was "late at night" to him.
Ofurum agreed that he was into competitive bodybuilding—as was his wife—but denied that he was strong enough to pick Ericka up by her neck and lift her off the ground.
Ofurum decided that he would leave, but as he was leaving, he saw that Ericka was on the phone. He asked her who she was on the phone with, and she told him that she was on the phone with 911. He told her that he did not think the situation required involving the police.
Ofurum testified that he did not try to prevent Ericka from calling 911 and that he neither assaulted nor threatened her, and he denied having touched her phone. Instead, according to Ofurum, he took his bag and left the residence. Ofurum said that he left so that Ericka would not have to leave with the baby since she had been unclear about where she was going. He said that at the time he left, he was unaware that the police were on their way. He returned home the next afternoon.
During cross-examination, Ofurum admitted that while Ericka was on the phone with 911, he had summoned their daughters from upstairs, saying, "Come here; listen to your mom; she's sending me to jail; look, girls," but he claimed that he had told them this to explain why he was leaving.
Ofurum said that when he spoke with Detective Rogers, he had not been aware that "there was such a thing" as being charged with interfering with a 911 call and that he explained to the detective that he had not interrupted Ericka's phone call. When he found out he could be arrested for that charge, he sought legal counsel and turned himself in. He went to court on the assault case, and it was dismissed. Ofurum said that he did not know why that case was dismissed, but he agreed that Ericka did not appear for that trial either. Ofurum admitted that he did not show up for either of the appointments that he made with Detective Rogers and that the only contact that he had with the Carrollton police was when he turned himself in.
When asked about his conversation with the deputy when the deputy showed up at his house regarding Ericka's writ of attachment and warrant that morning, Ofurum said that he told the officer that Ericka had received an emergency call to attend to some family matters with her mother. Ofurum said that the emergency call must have occurred the previous day because Ericka left not long after he saw her at 6 p.m., but he also said that Ericka had "been dealing with this issue for a few days now." When he learned on the first day of trial that there was a warrant issued for her arrest for her failure to appear at the trial, he said he told her about it on his way home from court.
Ofurum recalled Officer Morris to the stand and asked him to define "interference" and "preventing." Officer Morris defined "interference" as anything relating to stopping someone from reporting an emergency such as trying to stop a person from calling or stopping a call in progress, while "preventing" would be "taking the phone away prior to the call." The call in this case was made at 8:02 p.m., and the police arrived at the house at 8:13 p.m. Although Officer Morris did not see any physical evidence of interference such as a damaged phone or any physical injuries other than the redness around Ericka's neck "from part of the assault she described," he testified that dispatch had told him that "the person calling said they were having a -- an altercation or a -- a domestic situation and that the person they were having it with attempted to take the phone from their hands."
C. Analysis
Ofurum argues that the State failed to present any evidence that would indicate that (1) he knowingly "prevented" or "interfered" with Ericka's 911 call and (2) that Ericka was in fear of imminent assault "before, during, or after she called 911" because no witness testified who was present when the 911 call occurred and the recording of the 911 call was never played for the jury. However, as with so many of these cases, the verdict turns on which evidence the jury chose to believe. See, e.g., Robinson v. State, No. 02-15-00113-CR, 2016 WL 1267741, at *5 (Tex. App.—Fort Worth Mar. 31, 2016, no pet.) (mem. op., not designated for publication) (observing that appellant "acknowledges that this case involves a 'he-said/she-said dispute of facts' from which the jury was entitled to decide who to believe").
During the State's case, the jury heard that Ericka had told the police that Ofurum had tried to twist the phone out of her hands while she was talking with 911, and the jury heard that the dispatcher told Officer Morris that Ericka said her assailant was trying to take the phone from her hands. The jury also heard Ofurum's admission to Detective Rogers that he knew Ericka had called the police and that during the incident he had called out to his daughters that their mother was calling 911 to try to send him to jail.
Although Ofurum testified that he did not try to prevent Ericka from calling 911 or touch her phone, the jury was entitled to believe all, some, or none of his testimony. See Franklin v. State, 193 S.W.3d 616, 620 (Tex. App.—Fort Worth 2006, no pet.) ("[T]he jury is free to accept or reject any or all of the evidence of either party, and any or all of the testimony of any witness."). Viewed in the light most favorable to the verdict, then, the jury could have found that Ofurum had knowingly interfered with Ericka's ability to request assistance in an emergency from a law enforcement agency. See Tex. Penal Code Ann. § 1.07(a)(42) (defining "reasonable belief"), § 6.03(b) (defining "knowingly" as awareness of the nature of one's conduct and the circumstances surrounding that conduct or the results therefrom), § 42.062(a), (d) (defining "emergency" as "a condition or circumstance in which any individual is or is reasonably believed by the individual making a call or requesting assistance to be in fear of imminent assault," and describing one of the ways of committing the offense as knowingly interfering with someone's ability to place an emergency call or to request assistance in an emergency from a law enforcement agency); see also id. § 22.01(a) (West Supp. 2017) (stating that a person commits the offense of assault if he intentionally, knowingly, or recklessly causes bodily injury to another; intentionally or knowingly threatens another with imminent bodily injury; or intentionally or knowingly causes physical contact with another when he knows or should reasonably believe that the other will regard the contact as offensive or provocative); Stefanoff v. State, 78 S.W.3d 496, 501 (Tex. App.—Austin 2002, pet. ref'd) (op. on reh'g) (stating that something is "imminent" if it is "immediate, something that is going to happen now").
The jury also heard evidence about the parties' argument, including a physical struggle over their youngest child and testimony that Ofurum had left the scene before the police arrived. The jury saw photographs and heard Officer Morris's testimony that he observed Ericka's neck at the scene and that it was "red." The jury also learned about Ericka's attempt to drop the charges and witnessed her absence from trial despite the issuance of more than one subpoena for her appearance. And while Ofurum testified that he neither assaulted nor threatened her, once again, the jury was entitled to believe all, some, or none of his testimony. See Franklin, 193 S.W.3d at 620. Viewing the evidence in the light most favorable to the verdict, we conclude that the jury could have found beyond a reasonable doubt that Ofurum knowingly interfered with Ericka's ability to call 911 and that she reasonably believed that she was in danger of an imminent assault based, at least in part, on his having previously assaulted her that evening. See Tex. Penal Code Ann. §§ 1.07(a)(42), 6.03(b), 42.062(a), (d); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray, 457 S.W.3d at 448. Therefore, we overrule both of Ofurum's issues.
III. Conclusion
Having overruled both of Ofurum's issues, we affirm the trial court's judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
CHIEF JUSTICE PANEL: SUDDERTH, C.J.; WALKER and MEIER, JJ. MEIER, J., concurs without opinion. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: April 19, 2018