State v. Barnes

2020 Ohio 3184

Opinion

[Cite as State v. Barnes, 2020-Ohio-3184.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : Nos. 108857, 108858, and 109321 v. :

DAVID BARNES, JR., :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 4, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-18-635113-A, CR-19-637121-A, and CR-19-637984-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Megan Helton, Assistant Prosecuting Attorney, for appellee.

Michael P. Maloney, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, David Barnes, Jr., appeals from the trial court’s

judgment finding him guilty of felonious assault and domestic violence and

sentencing him to an aggregate term of eleven years in prison. Finding no merit to

the appeal, we affirm. I. Background

Barnes was indicted in three cases regarding events that occurred on

June 16, 2018, December 3, 2018, and March 8, 2019. All events involved the same

victim: K.B., Barnes’s wife of nearly 30 years.

In Cuyahoga C.P. No. CR-18-635113, Barnes was indicted on one

count of felonious assault in violation of R.C. 2903.11(A) and one count of domestic

violence in violation of R.C. 2919.25(A).

In Cuyahoga C.P. No. CR-19-637121, Barnes was indicted on one

count of attempted rape in violation of R.C. 2923.02/2907.02(A)(2); one count of

kidnapping in violation of R.C. 2905.01(A)(4); and one count of domestic violence

in violation of R.C. 2919.25(A). The attempted rape and kidnapping counts were

dismissed without prejudice prior to trial.

In Cuyahoga C.P. No. CR-19-637984, Barnes was indicted on one

count of domestic violence in violation of R.C. 2919.25(A).

Barnes pleaded not guilty, and the cases proceeded to trial, at which

K.B. did not testify. Prior to trial, the trial court held a hearing on the state’s Evid.R.

804(B)(6) motion. At the hearing, the state played several jailhouse phone calls

between Barnes and his mother and Barnes and K.B. that demonstrated Barnes had

attempted to keep K.B. from appearing at trial and hide her location from the state.

After reviewing the phone calls, the trial court granted the state’s motion.

With respect to CR-637121, Cleveland police officer Colbert Stadden

testified that on June 16, 2018, he responded to 3716 East 151st Street regarding a report of a female who had been assaulted. Stadden testified that when he arrived,

K.B. told him that she and Barnes had been having a drink together when Barnes

said he wanted oral sex. K.B. said she told Barnes to take a shower but he refused.

K.B. said that when she then refused oral sex, Barnes became angry, pulled her hair,

pulled her down to the ground, pushed his knee into her chest, grabbed her jaw, and

then punched her once or twice. K.B. told Stadden that a neighbor who heard her

screaming came to the door and told Barnes to get off her, at which point he fled.

Stadden testified that he observed redness and swelling on K.B.’s cheek and around

her mouth. The state then played for the jury body camera footage of K.B.’s

interaction with Officer Stadden.

With respect to CR-635113, Cleveland police officer Vicki Przybylski

testified that late in the evening of December 3, 2018, she responded to 3716 East

151st Street regarding a report of a female with a head injury. Officer Przybylski

testified that she spoke with K.B. when she arrived, and that K.B. was scared and

shaking and had blood on the back of her head. Officer Przybylski said that K.B. told

her that Barnes had pushed her to the ground. The state then played for the jury

footage from Officer Przybylski’s body camera reflecting her interaction with K.B.

Dr. Jon Schrock, an emergency room physician at MetroHealth

Medical Center, testified that he treated K.B. at the emergency room at 12:30 a.m.

on December 4, 2018. He identified state’s exhibit No. 7 as a medical report of her

treatment. The report reflected that K.B. told emergency room personnel that her

husband had pushed her out of the house, and she hit her head on the concrete. Dr. Schrock testified that K.B. said she did not feel safe at home and was afraid of

someone hurting her. Dr. Schrock said he closed K.B.’s wound to the back of her

head with five stitches.

Regarding CR-637984, Cleveland police officer Christopher

Randolph testified that on March 8, 2019, he responded to the area of East 81st

Street and Hough Avenue regarding a domestic violence complaint. He said that

when he arrived, he met with K.B., who told him that she had been in a car with

Barnes when they began arguing. K.B. told Officer Randolph that Barnes became

angry, pulled her wig off — taking pieces of her own hair with it — then punched her

in the face several times, and finally threw her out of the moving vehicle. Officer

Randolph testified that K.B.’s lip was bleeding and swollen, she had blood on her

clothes, and there were noticeable pieces of hair missing from her head. The state

then played footage from Officer Randolph’s body camera reflecting K.B. telling

Officer Randolph and his partner what had happened. The video also reflected K.B.

identifying Barnes as the perpetrator from a picture the police showed to her.

Officer Randolph testified that when the police apprehended Barnes a short time

later, he noticed what appeared to be a piece of K.B.’s hair on his pant leg.

The jury subsequently found Barnes guilty of all charges (one count

of felonious assault and three counts of domestic violence), and the trial court

sentenced him to an aggregate term of eleven years’ incarceration. This appeal

followed. II. Law and Analysis

A. Confrontation Clause and Hearsay Issues

In his first assignment of error, Barnes contends that the trial court

erred in admitting the testimony of the police officers regarding what K.B. told them

about the incidents of abuse by Barnes, and in allowing footage from the body

cameras of the police officers to be shown to the jury. He contends that these were

testimonial out-of-court statements by K.B., and because she never appeared at trial,

he was deprived of his constitutional right to confront her.

In his third assignment of error, Barnes contends that the trial court

erred in admitting the police officers’ testimony and the body camera footage into

evidence because both were inadmissible hearsay. We consider these errors

together because they are related.

The Sixth Amendment to the U.S. Constitution provides that “in all

criminal prosecutions, the accused shall enjoy the right * * * to be confronted with

the witnesses against him.” In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354,

158 L.Ed.2d 177 (2004), the United States Supreme Court held that the admission

of a testimonial out-of-court statement of a witness who does not appear at trial

violates the Confrontation Clause unless the witness is unavailable to testify and the

defendant had a prior opportunity to cross-examine the witness.

Evid.R. 801 protects the confrontation right by prohibiting the use of

hearsay statements, i.e., statements other than those made by the declarant while

testifying at trial offered in evidence to prove the truth of the matter asserted. Hearsay statements are not admissible at trial unless subject to an exception.

Evid.R. 801 and 802.

Evid.R. 804(B)(6) is one such exception. Under Evid.R. 804(B)(6),

regarding forfeiture by wrongdoing, a statement offered against a party is not

excluded by the hearsay rule “if the unavailability of the witness is due to the

wrongdoing of the party for the purpose of preventing the witness from attending or

testifying.” To qualify for this exception, the state must show by a preponderance of

the evidence that (1) the defendant’s wrongdoing resulted in the witness’s

unavailability; and (2) “one purpose was to cause the witness to be unavailable at

trial.” State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 84.

Before admitting the testimony and evidence to which Barnes objects,

the trial court conducted an evidentiary hearing outside the presence of the jury. It

heard recorded jailhouse phone conversations between Barnes and his mother,

Annie Barnes, in which Barnes and his mother devised a plan to get K.B. away from

her current residence in order to conceal her location from the state. In one of the

conversations, Barnes asked his mother to deliver a letter to K.B. about the plan and

to pay money to a landlord for an apartment where K.B. could stay because, as

Barnes told his mother, “I just need her to be away from where she at, so I gotta take

a chance.” In another conversation, Barnes told his mother, “I need her to stay

away.” The court also heard a jailhouse call between Barnes and K.B. in which

Barnes told K.B. “just don’t come down here, okay?” — to which she responded

“okay.” The state argued that the jailhouse phone conversations indicated

that Barnes was actively trying to conceal K.B.’s whereabouts so the state would not

know where she was, and to convince her not to appear for trial. The state asserted

that Barnes’s efforts had in fact been successful because although the state had left

subpoenas for K.B. at the two addresses it had for her, she had not responded to

either subpoena. After considering the jailhouse phone conversations, the trial court

granted the state’s Evid.R. 804(B)(6) motion.

The decision to admit or exclude evidence at trial lies within the

sound discretion of the trial judge, and the court’s decision will not be reversed

absent an abuse of discretion. State v. Gale, 8th Dist. Cuyahoga No. 94872, 2011-

Ohio-1236, ¶ 12. Barnes makes no argument that the trial court abused its discretion

in admitting the evidence under Evid.R. 804(B)(6); rather, he argues that the

admission of the police officers’ testimony and body camera footage violated his

right under the Confrontation Clause to confront K.B. However, “Crawford

explicitly preserved the principle that an accused has forfeited his confrontation

right where the accused’s misconduct is responsible for a witness’s unavailability.”

Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, at ¶ 105, citing Crawford,

541 U.S. at 62, 124 S.Ct. 1354, 158 L.Ed.2d 177, and Reynolds v. United States, 98

U.S. 145, 158, 25 L.Ed. 244 (1879) (if a witness is unavailable because of the

defendant’s own conduct, “he is in no condition to assert that his constitutional

rights have been violated.”) See also State v. Brown, 8th Dist. Cuyahoga No. 50505,

1986 Ohio App. LEXIS 6567, 11-12 (Apr. 4, 1986) (“An accused cannot rely on the Confrontation Clause to preclude extrajudicial evidence from a source he

obstructs.”)

After listening to the jailhouse phone calls between Barnes and his

mother, the trial court determined that Barnes and his mother had actively engaged

in wrongdoing with the purpose of making K.B. unavailable for trial. As a result,

Barnes forfeited his constitutional right of confrontation.

Likewise, Barnes’s wrongdoing forfeited any claim that the police

officers’ testimony regarding what K.B. told them and the body camera footage of

their interactions with her was inadmissible hearsay. Under Evid.R. 804(B)(6), a

statement offered against a party is not hearsay if the unavailability of the witness is

due to the party’s wrongdoing. The trial court found that K.B.’s unavailability for

trial was the result of Barnes’s wrongdoing. Accordingly, the statements against

Barnes offered by the police officers and contained in the body camera footage were

properly admitted under Evid.R. 804(B)(6) as an exception to the hearsay rule. The

first and third assignments of error are overruled.

B. Authentication of Jailhouse Phone Calls

In his second assignment of error, Barnes contends that the trial court

committed reversible error in admitting into evidence recorded phone calls made by

him while he was in the Cuyahoga County Jail awaiting trial. He contends that the

state failed to establish that he made the calls and, therefore, the calls were

inadmissible because they were not properly authenticated. Barnes raised no objection to the admission of the jailhouse calls at

trial and, accordingly, we review this assignment of error under the plain error

standard. State v. Watkins, 8th Dist. Cuyahoga No. 77051, 2000 Ohio App. LEXIS

4087, 17 (Sept. 7, 2000). Plain error is an obvious error or defect in the trial court

proceeding that affected the outcome of the case. In re J.G., 2013-Ohio-583, 986

N.E.2d 1122, ¶ 10 (8th Dist.), citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-

Ohio-68, 759 N.E.2d 1240. Courts are to take notice of plain error with the “utmost

caution, under exceptional circumstances, and only to prevent a manifest

miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus. The burden of demonstrating plain error is on the

party asserting the error. State v. McFeeture, 2015-Ohio-1814, 36 N.E.3d 689, ¶ 84

(8th Dist.). Barnes fails to demonstrate any error, plain or otherwise.

The requirement of authentication or identification of demonstrative

evidence as a condition precedent to admissibility is satisfied by introducing

“evidence sufficient to support a finding that the matter in question is what its

proponent claims.” Evid.R. 901(A). The “evidence to support a finding” standard is

not rigorous, however, and the threshold of admissibility articulated in the rule is

“quite low.” State v. Thompson, 8th Dist. Cuyahoga No. 96929, 2012-Ohio-921, ¶

27; State v. Bell, 12th Dist. Clermont No. CA2008-05-044, 2009-Ohio-2335, ¶ 17.

“Because ‘conclusive evidence as to authenticity and identification need not be

presented to justify allowing evidence to reach the jury,’ the evidence required to

establish authenticity need only be sufficient to afford a rational basis for a jury to decide that the evidence is what its proponent claims it to be.” Thompson at ¶ 28,

quoting Bell at id.

Thus, in this case, to establish that the audio recordings were

jailhouse conversations between Barnes, his mother, and K.B., the state was not

required to “prove beyond any doubt that the evidence [was] what it purport[ed] to

be.” Thompson at ¶ 29, citing State v. Moshos, 12th Dist. Clinton No. CA2009-06-

008, 2010-Ohio-735, ¶ 12. Instead, the state needed only to demonstrate a

“reasonable likelihood” that the recordings were authentic. Thompson at id., citing

Bell at ¶ 30. Such evidence may be supplied by, but is not limited to, the testimony

of a witness with knowledge, voice identification, evidence that a call was made to

the number assigned at the time by the telephone company to a particular person,

or evidence that a process or system was used that produced an accurate result.

Evid.R. 901(B)(1), (5), (6), and (9).

Corrections Officer Andrick Hudson testified at trial that each inmate

is assigned a unique personal identification number (“PIN”) to input when making

phone calls from the jail. He testified further that the calls are recorded through the

jail’s Securus system, and that call logs showing calls made by each inmate’s PIN

number are created by the system. He testified that state’s exhibit No. 31 was a

report of calls made by Barnes’s PIN, and that many of the calls reflected on the

report were made to K.B.’s phone number.

Barnes contends that this authentication was insufficient under

Evid.R. 901(B)(9) to demonstrate that he actually made the calls, however, because Corrections Officer Hudson acknowledged that inmates sometimes use each other’s

PIN numbers if they do not have money to make a call, or if they are trying to keep

the corrections officers from knowing they made a phone call. Barnes’s argument is

without merit.

Evid.R. 901(B)(5) provides for authentication of recorded phone

conversations by voice identification “whether heard firsthand or through

mechanical or electronic transmission or recording.” In her testimony, Barnes’s

mother, Annie, admitted to receiving calls from Barnes while he was in jail, and

identified her voice, Barnes’s voice, and K.B.’s voice on the recordings. Annie also

identified K.B.’s telephone number, which was the same number Corrections Officer

Hudson testified was reflected numerous times on state’s exhibit No. 31. Annie’s

identification of both her voice and Barnes’s voice and her identification of K.B.’s

telephone number, coupled with the testimony of Corrections Officer Hudson, were

sufficient to constitute a “reasonable showing” of authenticity. Whether the voice

heard on the calls was indeed Barnes was a question of fact for the jury to determine.

Accordingly, the trial court did not abuse its discretion in admitting the recordings

into evidence.

The second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant 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

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

EILEEN T. GALLAGHER, A.J., and MARY EILEEN KILBANE, J., CONCUR