City of Columbus v. Nearhood

951 N.E.2d 452, 193 Ohio App. 3d 178
CourtOhio Court of Appeals
DecidedMarch 1, 2011
DocketNo. 10AP-694
StatusPublished

This text of 951 N.E.2d 452 (City of Columbus v. Nearhood) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Columbus v. Nearhood, 951 N.E.2d 452, 193 Ohio App. 3d 178 (Ohio Ct. App. 2011).

Opinion

Tyack, Judge.

{¶ 1} Steven Nearhood is appealing from his conviction on the charges of assault and disorderly conduct. He assigns five errors for our consideration:

[L] The trial court abused its discretion by dismissing for cause a deaf juror when an interpreter was available, thereby violating appellant’s right to a fair trial under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and Article I, Section 10 of the Ohio Constitution.
[II.] The trial court improperly overruled appellant’s motion to suppress his statements made to his parole officer, thereby violating his rights as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Constitution of the State of Ohio.
[III.] The trial court improperly admitted hearsay statements of the alleged victim in violation of the rules of evidence and appellant’s right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and comparable provisions of the Ohio constitution.
[IV.] The trial court violated appellant’s right of confrontation as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and comparable provisions of the Ohio Constitution by improperly admitting hearsay statements of the alleged victim.
[V.] The trial court violated appellant’s right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, [181]*181Section 10 of the Ohio Constitution by entering verdicts of guilty, as the jury’s verdict was against the manifest weight of the evidence.

{¶ 2} Addressing the fifth assignment of error, Columbus police encountered Nearhood in the early morning of November 7, 2009, when they responded to a 9-1-1 call. They found a visibly intoxicated K.L. K.L.’s face was covered in blood and she had clearly suffered trauma to the areas around her eyes. A medic transported her to a local hospital.

{¶ 3} A member of the Columbus Division of Police had encountered K.L. and Nearhood at Nearhood’s residence earlier in the morning. K.L. had been knocking on Nearhood’s door, which led Nearhood to call police, claiming that unknown people were knocking on his door. At that time, K.L. was intoxicated but not visibly injured. Nearhood had initially not wanted to let K.L. in. Eventually, Nearhood relented and did let K.L. in. Police then left the area until the later 9-1-1 call.

{¶ 4} The issue at trial was how K.L. got injured between her first encounter with police and her second encounter with police. K.L. did not testify at the trial, so the state of Ohio relied upon other evidence to support their allegation that Nearhood knowingly caused physical harm to K.L., specifically including a serious injury near her eyes.

{¶ 5} K.L. had told the medic who responded to treat her that “he” had punched her repeatedly in the face. One of her eyes was swollen to the point that the eyeball was barely visible.

{¶ 6} K.L. and Nearhood talked repeatedly while K.L. was in custody awaiting trial on her own charges. Some of the conversations were over the telephone and were recorded. In the conversations, Nearhood admitted hitting K.L. while she was “down on the ground.” He told her that her worst injuries were a result of her walking into a room divider and falling into a table. K.L. neither agreed nor disagreed with Nearhood’s assertions in the phone conversations.

{¶ 7} K.L. told a municipal court judge that she was partly at fault for what occurred, but that she did not deserve “to get beat up.”

{¶ 8} K.L. also executed affidavits to help in Nearhood’s defense, in which she claimed that she had lied when she earlier claimed that Nearhood had assaulted her. She also claimed that Nearhood had acted in self-defense and that she had fallen, leading to most of her injuries.

{¶ 9} In weighing the evidence, especially the affidavits, the jury could well have found that K.L., who claimed to love Nearhood, was stating under oath that which would help him at trial, not what had actually occurred. Nearhood had told her on the telephone what he wanted her to say, and she had subsequently sworn to it.

[182]*182{¶ 10} Statements made by K.L. to police and the paramedic indicated that Nearhood punched her in the face repeatedly. Her visible injuries were consistent with her story. The jury was free to believe what she had said originally, as opposed to K.L.’s subsequent claims. The verdicts were not against the manifest weight of the evidence.

{¶ 11} The fifth assignment of error is overruled.

{¶ 12} In the third and fourth assignments of error, counsel for Nearhood attacks the admissibility at trial of the statements initially made by K.L. about how she received her injuries.

{¶ 13} The trial court properly admitted the statements. Evid.R. 803(4) reads:

Statements for purposes of medical diagnosis or treatment.
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

{¶ 14} The paramedic who treated K.L. was concerned that something other than fists had been used to harm K.L. K.L.’s eye was swollen to the point that he could not tell whether her pupil was fixed and dilated. The possibility of a serious concussion was increased if some other instrument, such as a baseball bat, had been used on K.L.’s head. The medic had every right to inquire about how K.L. had suffered her injuries. That medical history was admissible at Near-hood’s trial.

{¶ 15} Use of a medical history under such circumstances is not a violation of the constitutional right of confrontation. The relatively recent case of Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, has clarified that statements that are made out of court and that are testimonial in nature can result in a violation of the constitutional right to confront the witnesses against a criminal defendant at trial. However, statements made in an ongoing emergency are admissible. See Davis v. Washington (2006), 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224. KL.’s medical condition was an ongoing medical emergency. See also State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, and State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944.

{¶ 16} The third and fourth assignments of error are overruled.

{¶ 17} In the second assignment of error, appellate counsel argues on behalf of Nearhood that a letter Nearhood wrote and gave to his parole officer should not have been admitted into evidence. The note could not have prejudiced Nearhood because it tracked the defense that Nearhood wished to present, [183]*183namely that Nearhood had acted in self-defense. The note also tracked the version of events that K.L. included in her affidavit.

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Related

Crawford v. Washington
541 U.S. 36 (Supreme Court, 2004)
Davis v. Washington
547 U.S. 813 (Supreme Court, 2006)
State v. Speer
2010 Ohio 649 (Ohio Supreme Court, 2010)
State v. Stahl
111 Ohio St. 3d 186 (Ohio Supreme Court, 2006)
State v. Muttart
875 N.E.2d 944 (Ohio Supreme Court, 2007)

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Bluebook (online)
951 N.E.2d 452, 193 Ohio App. 3d 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-columbus-v-nearhood-ohioctapp-2011.