[Cite as Cleveland v. Greear, 2020-Ohio-29.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, : No. 108190 v. :
KENNETH GREEAR, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED RELEASED AND JOURNALIZED: January 9, 2020
Criminal Appeal from the Cleveland Municipal Court Case No. 18CRB011420
Appearances:
Barbara A. Langhenry, Cleveland Director of Law, and Karrie D. Howard, Sharon Ross, Marco A. Tanudra and Christopher Enoch, Assistant Prosecuting Attorneys, for appellee.
Web Norman Law, Inc., L.L.C., and William Norman, for appellant.
FRANK D. CELEBREZZE, JR., J.:
Defendant-appellant, Kenneth Greear (“appellant”), brings the instant
appeal challenging his conviction for domestic violence. Specifically, appellant
argues that his conviction for domestic violence was based on insufficient evidence and was against the manifest weight of the evidence, and that the trial court erred in
admitting hearsay statements. After a thorough review of the record and law, this
court vacates appellant’s conviction and sentence, and remands for further
proceedings consistent with this opinion.
I. Factual and Procedural History
On July 14, 2018, appellant was charged in a two-count complaint in
Cleveland Municipal Court with one count of domestic violence in violation of R.C.
2919.25(A), a first-degree misdemeanor, and one count of unlawful restraint in
violation of R.C. 2905.03(A), a third-degree misdemeanor. These offenses were
alleged to have occurred on July 12, 2018, and were the result of an alleged physical
altercation between appellant and his girlfriend, W.V. As of July 12, appellant and
W.V. were dating and lived together in Cleveland in appellant’s home. On, July 14,
2018, appellant pled not guilty to the complaint and a temporary protection order
was issued against appellant.
On July 12, 2018, appellant and W.V. were at a grocery store when they
engaged in a verbal argument as to the whereabouts of appellant’s lighter. As a
result of the argument, W.V. left the grocery store and returned home. Appellant
then returned home sometime after W.V. left the grocery store. Back at the home,
appellant again confronted W.V. as to the whereabouts of the lighter. Appellant then
became upset and allegedly physically assaulted W.V. Appellant pushed W.V. to the
ground and kicked her in the face. Appellant then pressed his whole body weight down on W.V.’s face as she lay on the ground. As a result, W.V. suffered a bruised
and bloodied lip.
Approximately one hour after the alleged assault, W.V. called 911 and
requested police assistance. W.V. stated to the 911 operator “my boyfriend accused
me of taking a lighter and he choked me and kicked me in my face.” W.V. further
stated that “I can’t talk right because my lip is popped up.” Sometime after W.V.
placed the 911 call, Cleveland police officers responded to the home and spoke with
W.V. Appellant had left the home prior to officers responding. Police officer body
camera captured W.V.’s encounter with responding officers. In the body camera
footage, W.V. stated to the responding officers that appellant was “kicking on my
head” and appellant “put all his weight on my head, stomping on my head, my lip
was pouring blood.”
On July 19, 2018, at the first scheduled pretrial, W.V. appeared and
requested that the trial court terminate the temporary protection order. The trial
court granted W.V.’s request, and the temporary protection order was terminated.
The matter then proceeded to a bench trial on November 14, 2018.
Plaintiff-appellee, the city of Cleveland (“city”), presented one witness,
W.V., in its case-in-chief. Appellant presented no witnesses. The trial court found
appellant guilty of domestic violence, but not guilty of unlawful restraint. The trial
court ordered a presentence investigation report and continued the matter for
sentencing to December 5, 2018. On November 29, 2018, appellant filed a “motion for acquittal or
alternatively a motion for a new trial” and a “motion for leave to file a brief in support
of out of time motion.” On December 4, 2018, appellant filed a brief in support of
his motion for acquittal or motion for a new trial. On December 5, 2018, the trial
court continued the matter to January 3, 2019, to allow the city time to respond to
appellant’s motions.
On December 5, 2018, appellant was apprehended on an arrest
warrant. The arrest warrant was issued regarding an unrelated matter in the state
of Michigan. The trial court held a hearing on December 21, 2018, related to the
extradition to Michigan, and at that time, appellant’s counsel orally withdrew his
motion for acquittal or motion for a new trial.
On January 3, 2019, the trial court held a sentencing hearing and
sentenced appellant to 180 days jail with 160 days being suspended. The trial court
placed appellant on community control sanctions for a period of one year and
ordered him to complete a Domestic Intervention Education Training program.
Appellant filed the instant appeal on February 6, 2019. He assigns
three errors for our review:
I. The [city] failed to offer sufficient proof to allow a reasonable fact- finder to find [appellant] guilty beyond a reasonable doubt.
II. The manifest weight of the evidence did not support a conviction for domestic violence.
III. The trial court erred in admitting out-of-court statements to 911 operator and police. We address appellant’s third assignment of error first because we find it dispositive
of the instant appeal.
II. Law and Analysis
In appellant’s third assignment of error, he argues that the trial court
erred in admitting the victim’s statements in the 911 call and in the body camera
video. Appellant argues that the victim’s statements were inadmissible hearsay.
In the instant case, the city presented W.V. as the only witness at trial.
At the beginning of W.V.’s direct testimony, the prosecutor asked W.V. various
preliminary questions to which W.V. testified that she was engaged to appellant and
had been living with him for over a year. The prosecutor then asked W.V. “[d]o you
remember calling 911 [on July 12, 2018]?” W.V. responded “[y]eah.” (Tr. 47.) The
prosecutor then sought to play the 911 tape and the following exchange occurred:
[PROSECUTOR]: Okay. For the record, [city’s] [e]xhibit [t]wo.
THE COURT: Okay.
[APPELLANT’S COUNSEL]: Your [h]onor, I would object to the playing of this 911 tape. Your [h]onor, first of all and I’d imagine that they would try to get it in under some sort of excited utterance. [W.V.] specifically stated on the tape that the — that [appellant] had left the scene; there was no continuing emergency.
Additionally your [h]onor, we believe that once [W.V.] testifies, this would act to kind of impeach her testimony based on her prior inconsistent statement which my colleague can’t do because he called [W.V.] to the stand. So your [h]onor we would ask that the tape not be played.
THE COURT: All right. [PROSECUTOR]: Well, your [h]onor, the victim’s testifying I think it’s making an argument about confrontation. It’s a 911 call made by the victim on the date of the incident.
THE COURT: All right. You can play the tape. Motion to not play the tape is denied.
(Tr. 47-48.) The tape was then played in open court. The prosecutor then asked
W.V. the following questions while playing the 911 tape:
[PROSECUTOR]: Do you recognize your voice on the 911 call?
THE COURT: Is that your voice, ma’am?
[W.V.]: Yeah.
[PROSECUTOR]: Okay. So far as you can hear, is that a true and accurate reflection of the 911 call that you made that day?
[W.V.]: Yes.
(Tr. 49.)
Later on in W.V.’s testimony, the prosecutor sought to play the police
officer’s body camera and appellant’s counsel renewed his objection.
[PROSECUTOR]: And did the police respond to the residence?
[PROSECUTOR]: Okay. Do you remember them talking to you?
[W.V.]: Vaguely; I don’t know.
[PROSECUTOR]: If I showed you footage of them talking to you, would that kind of help you out? Would you be able to recognize it?
[W.V.]: I mean they were asking me if I was staying there.
[PROSECUTOR]: Okay.
[W.V.]: Or if I was moving — leaving the premises. [PROSECUTOR]: Okay.
[PROSECUTOR]: I’ll play [p]laintiff’s [e]xhibit two, your [h]onor.
[APPELLANT’S COUNSEL]: Same objection, your [h]onor.
THE COURT: So noted.
[APPELLANT’S COUNSEL]: Trying to let this evidence serve against her testimony.
THE COURT: Okay overruled.
The prosecutor then played a body camera video of one of the police officers who
responded to the scene on July 12, 2018. The prosecutor then asked W.V. the
following questions:
[PROSECUTOR]: For the record [W.V.], do you recognize yourself in the body camera?
[PROSECUTOR]: Does it truly and accurately reflect from what you remember from that day when the police responded? “Yes” or “no.”
(Tr. 54-55.)
At trial, appellant’s counsel objected to the playing of the 911 call and
the body camera video based upon hearsay and improper impeachment grounds.
However, now on appeal, appellant argues that the 911 tape and body camera video
were not properly authenticated because neither the police officer nor the 911
operator testified at trial.
In our review of the record, we note that appellant did not object on
authentication grounds at trial. An appellant cannot present arguments for the first time on appeal, therefore, we find that appellant has waived any argument related
to the 911 call or body camera video authentication. Revilo Tyluka, L.L.C. v. Simon
Roofing & Sheet Metal Corp., 2011-Ohio-1922, 952 N.E.2d 1181, ¶ 23-26 (8th Dist.).
Notwithstanding the fact that appellant has waived any argument related to
authentication, we find that the prosecutor properly authenticated the 911 call and
the body camera video.
A. Authentication
Pursuant to Evid.R. 901(A), a party must establish the authentication
or identification of evidence prior to that evidence being admissible. Evid.R. 901(A)
provides in pertinent part, “[t]he requirement of authentication or identification as
a condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.”
By way of illustration, Evid.R. 901(B) provides that evidence may be properly authenticated by “testimony of witness with knowledge” that “a matter is what it is claimed to be.” Further, the authentication requirement of Evid.R. 901(A) is a low threshold that does not require conclusive proof of authenticity, but only sufficient foundation evidence for the trier of fact to conclude that the evidence is what its proponent claims it to be. State v. Toudle, 8th Dist. Cuyahoga No. 98609, 2013-Ohio-1548, ¶ 21, citing Yasinow v. Yasinow, 8th Dist. Cuyahoga No. 86467, 2006-Ohio-1355, ¶ 81.
State v. Maust, 8th Dist. Cuyahoga No. 103182, 2016-Ohio-3171, ¶ 24. This court
reviews a trial court’s ruling on the adequacy of authentication for an abuse of
discretion. State v. Bowling, 8th Dist. Cuyahoga No. 93052, 2010-Ohio-3595, ¶ 33,
citing State v. Easter, 75 Ohio App.3d 22, 26-27, 598 N.E.2d 845 (4th Dist.1991). Considering the low threshold of authentication, we find that W.V.’s
testimony properly authenticated the 911 tape and the body camera video. W.V. had
knowledge that the 911 tape and the body camera video were what each recording
claimed to be. In addition, W.V. testified and affirmed that both the 911 tape and
the body camera video introduced were an accurate representation of what
happened on that particular day. Accordingly, we find the city satisfied Evid.R.
901(A), and we find no merit to appellant’s argument that the city failed to properly
authenticate the 911 tape and the body camera video.
B. Admissibility
Having found that the city properly authenticated the 911 tape and the
body camera video, we turn next to whether or not the 911 tape and body camera
video were properly admitted as evidence. At trial, appellant objected to the playing
of the 911 tape and body camera video, and argued W.V.’s statements within the
recordings would be inadmissible hearsay statements and improper impeachment
testimony.
The admission of evidence is within the trial court’s sound discretion.
State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). A trial court will have
abused its discretion when its decision is contrary to law, unreasonable, not
supported by the evidence, or grossly unsound. State v. Taylor, 8th Dist. Cuyahoga
No. 98107, 2012-Ohio-5421, ¶ 22, citing State v. Boles, 187 Ohio App.3d 345, 2010-
Ohio-278, 932 N.E.2d 345, ¶ 16-18 (2d Dist.). In addition, the trial court’s abuse of
its discretion must have materially prejudiced the defendant. State v. Lowe, 69 Ohio St.3d 527, 532, 634 N.E.2d 616 (1994), citing State v. Maurer, 15 Ohio St.3d 239,
265, 473 N.E.2d 768 (1984).
In the instant case, prior to playing the 911 tape or the body camera
video, W.V. did not testify as to any events regarding the July 12, 2018 incident as it
pertained to the charges of domestic violence and unlawful restraint. The
prosecutor simply asked W.V. if she called 911 on the night in question, to which
W.V. responded that she did. Then, the prosecutor played the 911 call for the trial
court. The prosecutor then confronted W.V. with various photos of her lip and leg.
These photos were taken by responding officers. Then the prosecutor asked W.V. if
the police responded to her house on July 12, 2018, and if she remembered speaking
to the officers. W.V. stated that police responded to her home and that she “vaguely”
remembered speaking with officers. Then the prosecutor played the body camera
video for the trial court.
However, at no point did the prosecutor ask W.V. what happened the
night of July 12, 2018, as it pertained to the charges of domestic violence and
unlawful restraint. The only question posed to W.V. by the prosecutor regarding the
domestic violence or unlawful restraint charges was the following exchange:
[PROSECUTOR]: Okay. But how did you get your injuries?
[W.V.]: I went to stand up on the bed and probably trying to crack him with the [video game controller] and then I fell. I don’t remember.
(Tr. 58-59.)
In appellant’s third assignment of error, he argues that the trial court
erred in admitting W.V.’s statements within the 911 call and the body camera video because her statements were inadmissible hearsay. Furthermore, and although
offered within appellant’s first assignment of error, appellant also argues that W.V.’s
statements were not properly admitted as prior inconsistent statements.
Hearsay is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Evid.R. 801(C). Pursuant to Evid.R. 802, hearsay is
inadmissible unless it falls within an exception provided by the rules of evidence.
State v. Wright, 8th Dist. Cuyahoga No. 100803, 2014-Ohio-5424.
The city argues that W.V.’s statements in the 911 call and the body
camera video were nonetheless admissible under the excited utterance and present
sense impression exceptions. Pursuant to Evid.R. 803(1), a present sense
impression is a “statement describing or explaining an event or condition made
while the declarant was perceiving the event or condition, or immediately thereafter
unless circumstances indicate lack of trustworthiness.” Pursuant to Evid.R. 803(2),
an excited utterance is a “statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or
condition.”
The city argues that W.V.’s statements fall under the present sense
impression exception. More specifically, the city argues that W.V. “volunteered the
statements recorded on the body camera videos as she relived the event in her mind,
in close proximity to when the event actually occurred.” In support of its argument in this regard, the city directs this court’s
attention to State v. Jordan, 8th Dist. Cuyahoga No. 70783, 1997 Ohio App. LEXIS
5107 (Nov. 13, 1997), and State v. Essa, 149 Ohio App.3d 208, 2011-Ohio-2513, 955
N.E.2d 429 (8th Dist.). In Jordan, this court noted that a child’s statement qualified
as a present sense impression because the statement was spontaneous and
unsolicited. Jordan at 16. The child stated to various witnesses that he had
previously observed Jordan place tape over the baby victim’s mouth to stop the baby
from crying. The child did not testify at trial. This court found that the child’s
statement qualified as a present sense impression because the child uttered the
statement to various witnesses in conjunction with the child’s realization that the
baby had stopped breathing. Id.
In Essa, this court found that a murder victim’s statement to her
friend just moments before the victim’s death qualified as a present sense
impression. At trial, the friend testified that she spoke to the victim on the phone,
and the victim indicated that she believed a pill given to her by Essa was causing her
present nausea symptoms. Essa at ¶ 127. This court noted that the victim personally
observed Essa give her a pill, then personally experienced nausea, all of which she
recounted to her friend as it was happening in real time. Id.
We find that the instant case is distinguishable from Jordan and Essa.
First, the city does not present any actual statements W.V. made either in the 911
call or the body camera video that W.V. had previously made when she was
observing the alleged assault. However, in our review of both the 911 call and the body camera video, W.V. does not provide any of her own statements that she had
previously made when she was observing the alleged assault. In the 911 call and the
body camera video, W.V. was simply describing to the 911 operator and to the
responding officers what events she had previously observed. In this way, within
the 911 call and body camera video, W.V. does not provide a statement that
described or explained an event or condition made while she was perceiving the
event or condition. As such, we find that W.V.’s statements made within the 911 call
and body camera video do not fall under the present sense impression exception.
W.V.’s statements within the 911 call and body camera video also do
not qualify under the excited utterance exception. A statement may be found to fall
under the excited utterance exception even if that statement is not made
contemporaneously with the startling event. State v. Shutes, 8th Dist. Cuyahoga No.
105694, 2018-Ohio-2188, ¶ 37, citing State v. Duncan, 53 Ohio St.2d 215, 219, 373
N.E.2d 1234 (1978). Indeed, “[t]here is no per se length of time after which a
statement may no longer be considered to be an excited utterance.” Id., citing State
v. Taylor, 66 Ohio St.3d 295, 303, 612 N.E.2d 316 (1993). The essential components
of an excited utterance is that “the statement must be made while the declarant is
under the stress of the event, and the statement may not be a result of reflective
thought.” Id., citing Taylor at 303.
In the 911 call, W.V. states that appellant had left the residence and
that the alleged assault had occurred an hour before she called 911. In the 911 call,
W.V.’s tone appears calm and collected. Further, there is nothing within the record to suggest that W.V. is under the stress of excitement cause by the alleged assault.
Based on these facts, we find that W.V.’s statements within the 911 call are the result
of reflective thought and do not qualify as excited utterances.
Likewise, in the body camera video, it is also clear that W.V. is not
under the stress of excitement caused by the alleged assault. As best we can
determine from the record, responding officers arrived at appellant’s home a few
hours after W.V. made the 911 call. There is nothing to suggest that W.V. was at all
under the stress of excitement of the alleged assault when she was speaking to the
responding officers. The city did not present any other witnesses, namely the
responding police officers, to suggest that W.V. appeared to be under the stress of
excitement of the alleged assault. As such, we also find that W.V.’s statements on
the body camera video are the result of further reflective thought and do not qualify
as excited utterances.
To the extent that appellant also argues that the prosecutor did not
properly impeach W.V., we agree. Pursuant to Evid.R. 607, “[t]he 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.”
We note that the city did not call W.V. as a hostile witness pursuant to
Evid.R. 611. “Evid.R. 611 allows a party to call a hostile witness, an adverse party, or
a witness identified with an adverse party and examine the witness with the use of
leading questions on direct examination.” In re K.S., 8th Dist. Cuyahoga No. 97343, 2012-Ohio-2388, ¶ 16. We further note that the trial court, either at the city’s or
appellant’s counsel’s suggestion, did not call W.V. as a court witness as permitted by
Evid.R. 614.
Although a party may attack the credibility of a witness by means of a
prior inconsistent statement pursuant to Evid.R. 607, there must be a statement
made at trial in which to attack. In this regard, a witness must first testify to a
matter, and then if a witness did not testify accordingly or as anticipated, counsel
may then attempt to impeach a witness with a prior inconsistent statement.
Applying this standard to the testimony in the instant case, at the point in time in
which the prosecutor played the 911 tape and the body camera video, W.V. had not
testified as to the events surrounding the alleged assault. Therefore, there existed
no testimony from W.V. regarding the incident with which the prosecutor could
have attempted to impeach W.V. As such, the 911 call and the body camera video
were not proper impeachment evidence pursuant to Evid.R. 607.
Furthermore, because W.V. was the city’s witness, the city was
required to show surprise and affirmative damage in order to impeach W.V. with a
prior inconsistent statement under Evid.R. 607. Had the prosecutor asked W.V.
about the incident, and had W.V. in some way denied any wrongdoing by appellant,
then the prosecutor could have attempted to impeach W.V. with a prior inconsistent
statement if the prosecutor was able to show surprise and affirmative damage.
Based upon our analysis in this regard, the trial court abused its
discretion in admitting W.V.’s statements in the 911 tape and the body camera video because these statements do not fall under the present sense impression or excited
utterance exceptions, and were not properly admitted as prior inconsistent
statements.
We appreciate that this matter was tried to the bench, and therefore
we presume, unless affirmatively shown otherwise, that the court only considered
all the testimony for proper purposes. State v. Wingfield, 8th Dist. Cuyahoga No.
107196, 2019-Ohio-1644, ¶ 38, citing State v. Colegrove, 8th Dist. Cuyahoga No.
102173, 2015-Ohio-3476, ¶ 22. However, the procedure in which the evidence was
presented compels us to find that W.V.’s statements were not admissible under a
hearsay exception. As such, we are also compelled based on the record before us to
find that the trial court abused its discretion in admitting the 911 call and the body
camera video as evidence.
Accordingly, appellant’s third assignment of error is sustained.
Because appellant’s third assignment of error is sustained and is
dispositive of the instant appeal, we decline to address appellant’s first and second
assignments of error.
Judgment vacated. Matter remanded for further proceedings
consistent with this opinion.
It is ordered that appellant recover of appellee 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
Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
RAYMOND C. HEADEN, J., CONCURS; SEAN C. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY