State v. Carnegie

2024 Ohio 1892, 244 N.E.3d 178

• Court: Ohio Court of Appeals
• Decided: May 16, 2024
• Docket: 112342
• Status: Published

Opinion

[Cite as State v. Carnegie, 2024-Ohio-1892.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112342 v. :

TERRANCE CARNEGIE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: May 16, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-655958-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Christopher Woodworth, Assistant Prosecuting Attorney, for appellee.

Jonathan N. Garver, for appellant.

EMANUELLA D. GROVES, J.:

Now comes defendant-appellant Terrance Carnegie (“Carnegie”) who

appeals his conviction for domestic violence. For the reasons that follow, we reverse

the conviction and remand for further proceedings. Factual and Procedural History

On April 6, 2021, a grand jury returned an indictment against Carnegie

alleging five counts: attempted murder (Count 1); kidnapping (Count 2); felonious

assault (Count 3); domestic violence with a furthermore clause that Carnegie knew

the victim was pregnant at the time of the violation (pursuant to R.C. 2919.25(D)(5)

(Count 4); and having weapons while under disability (Count 5). All counts included

a one-year firearm specification. Counts 1-3 each included a three-year firearm

specification, a notice of prior conviction, and a repeat violent offender (“RVO”)

specification. Count 4 included the three-year firearm specification as well as a

pregnant victim specification (pursuant to R.C. 2941.1423).

Prior to trial, Carnegie signed a jury waiver for Count 5, having weapons

while under disability and the RVO and prior conviction specifications. The jury

trial commenced on March 28, 2022.

The testimony established that on October 22, 2020, around 7:30 a.m.,

Jasmine Payton had just dropped her two kids off at school. She was stopped at a

light on East 152d Street; however, when the light turned green, the cars in front of

her did not move. At that point, she looked over to a nearby field and saw that a man

was chasing a woman and tackled her to the ground. She then observed the woman

get up and start running again. When the woman reached the street, she pulled on

car doors, trying to get in, while simultaneously yelling that he was going to kill her

and that she was pregnant. The woman also yelled that he had a gun, but Payton

did not see one. As Payton picked up her phone to call 911, she pulled into a driveway to turn around, at which point the woman opened the back door, climbed in the car,

and yelled at Payton to start driving. Payton told the 911 dispatcher what had

happened, and the dispatcher advised her to take the woman to the police station on

East 152d Street.

When they arrived at the station, they met Officer Tyeisha Sain who was

working the front desk. The woman, T.B., came into the station looking frantic. T.B.

told Officer Sain that she was pregnant and had been assaulted. Body-cam video of

the encounter showed T.B. in a seated position while the officer was standing. T.B.

was wearing an open shirt with a bra underneath, so that her stomach was visible.

Her pregnancy was not visible or obvious from the video.

T.B. testified at trial. Before her testimony, the state filed a motion to

designate T.B. as a court’s witness. Once called, T.B. was evasive during her

testimony. She alleged that she hit Carnegie first and he slapped her a couple of

times. T.B. testified that she was running and fell and that Carnegie helped her up.

She acknowledged that a lady she did not know took her to the police station and

that she was wearing pajamas when shown images from the body-cam video. She

also testified that she went to the hospital because of her fall.

The court adjourned for the night with the intent to resume T.B.’s

testimony in the morning. After listening to the arguments of counsel, considering

T.B.’s testimony thus far, and independently reviewing case law, the trial court

granted the state’s motion to call T.B. as a court’s witness. Prior to continuing

testimony, the court instructed the jury that T.B. was now a court’s witness and instructed them on the permitted use of prior inconsistent statements. (Tr. 672-

674.)

The state resumed questioning T.B., focusing on a written statement

she created shortly after the incident. T.B. acknowledged that in her statement, she

wrote that Carnegie tackled her to the ground and tried to take her back home. She

also wrote that Carnegie was “bending” her up. T.B. testified she did not know what

the term meant but acknowledged that she previously defined the term to mean

“choking.” T.B. acknowledged that she wrote that she snuck out of the house and

locked the door because Carnegie was keeping her there. T.B. further acknowledged

that when Carnegie tried to take her back to the house, she grabbed onto the door

handle of a truck to prevent him from taking her.

Denise Robinson, a nurse and the Adult Forensic Coordinator for

University Hospitals Medical Center, treated T.B. Robinson coordinated a team of

nurses who provide care for patients who are victims of sexual assaults, domestic

violence, and other crimes. The state sought to admit T.B.’s medical records, which

included Robinson’s summary of her interview with T.B. In response to an objection

from the defense, the trial court found that statements that were made for diagnosis

and treatment were admissible but other statements would be redacted from the

record. The defense maintained its objection and specifically objected to Robinson’s

report. Subsequently, Robinson testified and was asked to read into the record the

redacted summary she wrote of the interview. In addition to T.B.’s description of the assault, Robinson read into the record that T.B. told her that Carnegie said “[h]e

didn’t want the baby. He was not sure if it was his.” (Tr. 930.)1

The jury ultimately found Carnegie guilty of Count 4, domestic

violence, and guilty of the associated furthermore clause.2 The jury found him not

guilty of Counts 1 through 3, and the trial court found him not guilty of Count 5,

having weapons while under disability. The trial court subsequently imposed a

mandatory sentence of six months in prison.3

Carnegie now appeals assigning the following errors for our review:

Assignment of Error No. 1

The trial court abused its discretion by allowing a nurse to testify to, and admitting into evidence, portions of her narrative report, contained in the alleged victim’s medical records, describing matters that were unrelated to medical care and treatment of the alleged victim, including alleged prior bad acts. Evid.R. 803(4), Evid.R. 404(B), and Evid.R. 403(A).

Assignment of Error No. 2

The trial court abused its discretion by declaring the alleged victim a court’s witness during her direct testimony under Evid.R. 614, thereby circumventing Evid.R. 607(A), which prohibits a party from cross- examining its own witness with a prior inconsistent statement unless he can demonstrate surprise and affirmative damage.

1 Although, the trial court did not list this statement as one that needed to be

redacted on the record, the statement is redacted from the medical records in state’s exhibit No. 13.

2 Prior to deliberations, the trial court, after discussion with the parties, determined that the furthermore clause would be stated in the verdict form but not the specification.

3 Carnegie was also sentenced in two other cases for which, including this case, he

received an aggregate sentence of four years and six months. Assignment of Error No. 3

Appellant was denied due process of law as a result of an improper attempt by the state to introduce evidence of past bad acts including allegations of choking the victim in the past.

Assignment of Error No. 4

The trial court committed plain error by allowing the state to introduce evidence that the alleged victim’s mother had relocated a few days after the alleged occurrence out of concern for the alleged victim’s safety. Evid.R. 402, Evid.R. 403.

Assignment of Error No. 5

There was insufficient evidence to support a guilty verdict on the charge of domestic violence with a pregnant victim specification.

Assignment of Error No. 6

The guilty verdict for domestic violence with a pregnant victim specification is against the manifest weight of the evidence.

Law and Analysis

In the first assignment of error, Carnegie challenges the admission of

medical records and the testimony of Denise Robinson. Carnegie argues that certain

statements that remained in the medical records after redaction were unrelated to

treatment and were inadmissible under Evid.R. 803(4). Therefore, he alleges that

Robinson should not have been permitted to introduce statements from her report

into the record during her testimony. He further challenges the evidence as being

improperly introduced because the primary purpose was investigative. Finally,

Carnegie argues that the statements constituted inadmissible other acts evidence

under Evid.R. 404(B) and that the statements were more prejudicial than probative under Evid.R. 403. We find that one of the statements contained inadmissible

hearsay and its admission prejudiced the appellant.

A court’s ruling on hearsay is ordinarily reviewed for an abuse of

discretion. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508,

¶ 97. A trial court abuses its discretion when its decision is unreasonable, arbitrary,

or unconscionable. State v. Hill, 171 Ohio St.3d 524, 2022-Ohio-4544, 218 N.E.3d

891, ¶ 9 citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). The exclusion or admission of relevant evidence is within the sound

discretion of the trial court, and the trial court’s decision will not be overturned

unless we find that the court abused its discretion. State v. Abdussatar, 8th Dist.

Cuyahoga No. 86406, 2006-Ohio-803, ¶ 12.

Carnegie challenges the introduction of the following three

statements: (1) “Mother states that he came to her home and shot a gun off when

the daughter did not come out of the house”; (2) T.B.’s statement to Robinson that

Carnegie had a gun and threatened to kill her; and (3) T.B.’s statement that Carnegie

told her he did not want the baby and that he did not think it was his. The defense

argued below that all the victim’s statements in the medical records constitute

“double hearsay,” i.e., hearsay within hearsay, and must be evaluated to determine

whether all levels of the statement are admissible. (Tr. 631, 896.)

The admission of the third statement is of particular concern because

of the multiple evidentiary issues it raises. In this case, Robinson testified about her

interview with T.B. and what T.B. told her. In turn, T.B. told Robinson a statement Carnegie made to her during the incident. Finally, all of these statements are

memorialized in medical records. While the trial court considered whether T.B.’s

statement was admissible under the medical records exception, it did not consider

whether Carnegie’s statement was admissible as an admission of a party opponent.

“‘Hearsay’ is a statement, other than one made by the declarant while

testifying at trial or hearing, offered in evidence to prove the truth of the matter

asserted in the statement.” Evid.R. 801(C). This case primarily focused on the

contents of the medical records, which is where we will begin. The parties essentially

agreed that the medical records were records kept in the ordinary course of business

pursuant to Evid.R. 803(6). It does not necessarily follow that everything contained

within those records are admissible.

Hearsay within hearsay occurs when an out-of-court statement

contains another out-of-court statement. Evid.R. 805. In other words, records kept

in the ordinary course of business are hearsay and statements within those medical

records may constitute hearsay. Nevertheless, hearsay within hearsay is not a bar

to admissibility. Such testimony “is not excluded under the hearsay rule if each part

of the combined statements conforms with an exception to the hearsay rule provided

in these rules.” Id. The hearsay-within-hearsay rule authorizes the admission of

multiple layers of hearsay offered for the truth of the assertion if each layer falls

within an exception to the hearsay rule or an exception to the definition of hearsay.

See 1 Weissenberger’s, Ohio Evidence Treatise, Section 805.1 (2023). Here, for the purposes of our hearsay analysis, both types of hearsay,

i.e., business records and statements for medical diagnoses and treatment, are

admissible for different reasons. Records kept in the ordinary course of business

are admissible

based on the assumption that the records, made in the regular course of business by those who have a competent knowledge of the facts recorded and a self-interest to be served through the accuracy of the entries made and kept with knowledge that they will be relied upon in a systematic conduct of such business, are accurate and trustworthy. In other words, such records are accepted as accurate and trustworthy, until inaccuracy is shown, upon faith in the routine by which and in the purpose for which they are made.

Weis v. Weis, 147 Ohio St. 416, 425-426, 72 N.E.2d 245 (1947), citing Globe

Indemnity Co. v. Reinhart, 152 Md. 439, 137 A. 43 (1927).

Under Evid.R. 803(4), a hearsay statement is admissible if it was 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 diagnoses

or treatment.” The admissibility of these statements is premised on two

assumptions: (1) that a patient’s statements to their physician are likely to be

particularly reliable to ensure accurate diagnosis and treatment; and (2) that “‘facts

reliable enough to be relied on [by a medical professional] in reaching a diagnosis

have sufficient trustworthiness to satisfy hearsay concerns.’” State v. Muttart, 116

Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 39-41, quoting State v. Dever, 64

Ohio St.3d 401, 596 N.E.2d 436 (1992). “This court has repeatedly held that statements elicited during

questioning by medical personnel for the purposes of diagnoses and treatment are

not testimonial and therefore are not barred by the Confrontation Clause.” State v

Diaz, 2016-Ohio-5523, 69 N.E.3d 1182, ¶ 32 (8th Dist.), citing State v. Echols, 8th

Dist. Cuyahoga No. 102504, 2015-Ohio-5138; State v. Thomas, 8th Dist. Cuyahoga

No. 101202, 2015-Ohio-415, ¶ 21; State v. Bowleg, 8th Dist. Cuyahoga Nos. 100263

and 100264, 2014-Ohio-1433.

However, “[t]he exception is limited to those statements made by the

patient, which are reasonably pertinent to an accurate diagnosis and should not be

a conduit through which matters of no medical significance would be

admitted.” Echols at ¶ 28, quoting Staff Note to Evid.R. 803(4). The trial court did

extensive research on this issue and gave both parties an opportunity to make their

case for the admissibility of evidence in the medical records. Ultimately, the trial

court ruled that statements used for medical diagnosis and treatment were

admissible. Further, the trial court noted, citing Diaz, that the Confrontation Clause

was not implicated even if these statements were ultimately used as evidence at trial

since their purpose was to guide diagnosis and treatment. (Tr. 913-914.)

The trial court did not err in finding the statement could be used for

medical diagnosis and treatment. Undoubtedly, Carnegie’s feelings about the

pregnancy and the baby could create medical and safety concerns for T.B. However,

Carnegie’s statement was a separate statement that needed to be independently evaluated for admissibility. Evid.R. 805; see In re K.G., 1st Dist. Hamilton No. C-

120772, 2013-Ohio-3160, ¶ 13.

Notably, Carnegie was not the patient and Robinson did not speak to

him. Nonetheless, the trial court correctly determined that the statement was

relevant to medical diagnosis or treatment. However, the court did not take the

necessary step of determining whether Carnegie’s hearsay statement was separately

admissible given he is the defendant. Robinson could consider the statement in her

diagnostic and treatment decisions because it demonstrated T.B. might benefit from

a safety plan and/or therapy. However, in this case, there is a distinction between

the medical relevance of the statement and its admissibility at trial because of who

the declarant is. Accordingly, the trial court erred when it admitted the statement

without independently considering its admissibility as a party admission.

We must examine whether the statement was otherwise admissible.

Based on our review of the record and the law, we find that the statement was

inadmissible as a party admission. Evid.R. 801(C); 801(D)(2); McQueen v. Goldey,

20 Ohio App.3d 41, 43, 484 N.E.2d 712 (12th Dist.1984).

A statement is not hearsay if it is offered against a party and it is

a) the party’s own statement, in either an individual or a representative capacity, or (b) a statement of which the party has manifested an adoption or belief in its truth, or (c) a statement by a person authorized by the party to make a statement concerning the subject, or (d) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (e) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy upon independent proof of the conspiracy. Evid.R. 801(D)(2).

In McQueen, the court found that an unattributed admission

contained in medical records was inadmissible under Evid.R. 801(D)(2). The

defendant-appellee introduced McQueen’s medical records, over objection, which

contained a statement that the patient had stepped in front of the defendant’s car

causing the accident. The court of appeals found that the statement was

inadmissible because there was no proof that McQueen made the statement and no

evidence that McQueen adopted the truth of the statement as required under

Evid.R. 801(D)(2)(a) and (b). Id. at 43. Additionally, the court found that the

statement was not admissible under Evid.R. 803(4) because it described how the

accident occurred and was not relevant for medical treatment or diagnosis. Id. at

44.

Although here the statement was relevant for medical treatment or

diagnosis, its inadmissibility otherwise cannot be disregarded. Importantly, T.B.

did not testify regarding this statement, nor was she asked any questions regarding

Carnegie’s statement. Accordingly, Robinson’s testimony alone is insufficient to

establish that Carnegie’s statement was an admission under Evid.R. 801(D)(2).

Robinson never met nor spoke to Carnegie; therefore she did not verify that he made

the statement, nor could she provide proof that he made the statement or adopted

it as his own, a prerequisite for admissibility under the rule. It was therefore

inadmissible, and the trial court was required to exclude it. Evid.R. 802; Johnson,

166 Ohio St.3d 427, at ¶ 38. Nevertheless, the improper admission of evidence should not result

in the reversal of a conviction ‘““unless it affirmatively appears on the record that

the accused was or may have been prejudiced thereby.’”” State v. Morris, 141 Ohio

St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 27; quoting State v. Crawford, 32

Ohio St.2d 254, 255, 291 N.E.2d 450 (1972), quoting R.C. 2945.83(C).

We now turn to the question of whether Carnegie was prejudiced by

the admission of this evidence. We find that he was. Carnegie’s knowledge of the

pregnancy was an essential element of the offense as charged. Domestic violence is

a misdemeanor of the first degree that becomes a felony of the fifth degree when it

is alleged that the accused knew the victim was pregnant. R.C. 2919.25(D)(5).

Where a furthermore clause elevates the level of the offense, the furthermore clause

becomes an essential element of the crime that must be proven by the state beyond

a reasonable doubt. State v. Miller, 8th Dist. Cuyahoga No. 111785, 2023-Ohio-1141,

¶ 43, citing State v. Allen, 29 Ohio St.3d 53, 54, 506 N.E.2d 199 (1987).

The only evidence introduced at trial that Carnegie knew T.B. was

pregnant was Robinson’s testimony, which she read from her summary in the

medical records. The state argues that in addition to this evidence, Payton’s

testimony that T.B. yelled she was pregnant when she tried to get into her truck was

sufficient to establish Carnegie’s knowledge. We disagree.

“When knowledge of the existence of a particular fact is an element of

an offense, such knowledge is established if a person subjectively believes that there

is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.” R.C. 2901.22(B). The testimony establishes, at

most, that Carnegie learned of the pregnancy during the incident. It certainly is not

a statement that establishes he had a subjective belief that there was a high

probability that T.B. was pregnant and that he failed to ask or acted with a purpose

to avoid kn0wing that fact. Additionally, there was no circumstantial evidence of

T.B.’s pregnancy, such as pictures or video depicting her pregnant belly.

Without Robinson’s testimony, there was no evidence or testimony

introduced that Carnegie knew about T.B.’s pregnancy at the time of the incident.

Accordingly, the admission of the evidence was not harmless beyond a reasonable

doubt. Without this evidence, the state failed to establish an essential element of the

crime; therefore, Carnegie was prejudiced by its admission. Accordingly, the first

assignment of error is sustained and the conviction must be reversed.

This leads us to the fifth assignment of error in which Carnegie argues

that his conviction was not supported by sufficient evidence.

“A challenge to the sufficiency of the evidence supporting a conviction

requires a determination of whether the state met its burden of production.” State

v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v.

Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). When reviewing the

sufficiency of the evidence, the court of appeals is required to examine all evidence

admitted at trial, “including the improperly admitted evidence that was the source

of the reversal for trial error.” State v. Gideon, 165 Ohio St.3d 142, 2020-Ohio-5635,

176 N.E.3d 706, ¶ 29. Sufficiency of the evidence involves a review of the evidence admitted

at trial and a determination of “‘whether such evidence, if believed, would convince

the average mind of the defendant’s guilt beyond a reasonable doubt.’” State v.

Goins, 8th Dist. Cuyahoga No. 109497, 2021-Ohio-1299, ¶ 13, quoting State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “‘The

relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt.’” State v. Powell, 2023-Ohio-2770,

222 N.E.3d 1139, ¶ 60 (8th Dist.), quoting Jenks at paragraph two of the syllabus.

Based on the foregoing, we find that the state did present sufficient

evidence at trial to support the conviction. In this circumstance, where sufficient

evidence of guilt was presented, the Double Jeopardy Clause does not bar retrial of

the charges. State v. Brooks, 8th Dist. Cuyahoga No. 91730, 2010-Ohio-2446, ¶ 20.

Therefore, the fifth assignment of error is overruled.

Based on the foregoing, the remaining assignments of error are moot.

Judgment reversed and remanded for a new trial.

It is ordered that appellant recover from 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

common pleas 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.

EMANUELLA D. GROVES, JUDGE

MARY EILEEN KILBANE, J., CONCURS; MICHELLE J. SHEEHAN, P.J., DISSENTS (WITH SEPARATE OPINION)

MICHELLE J. SHEEHAN, P.J., DISSENTING:

Respectfully, I dissent from the majority opinion and would affirm

Carnegie’s conviction. Although I agree with the resolution of Carnegie’s first

assignment of error that T.B.’s medical records should have been further redacted

to exclude the hearsay-within-hearsay statements, I disagree Carnegie was

prejudiced by the introduction of that evidence.

Carnegie argues the state did not produce admissible evidence that he

was aware T.B. was pregnant at the time of the assault, which he defines as occurring

when T.B. testified he smacked her in the mouth a couple of times. However, that

was not the only evidence before the jury that Carnegie caused or attempted to cause

T.B. harm. The evidence indicated a continuing assault from the time T.B. testified

she was smacked until the time she escaped from Carnegie in Payton’s car. As to

Carnegie’s knowledge that T.B. was pregnant, T.B. testified that she was pregnant at

the time of the incident. Payton testified that Carnegie tackled T.B. in the field. She

also testified that when T.B. was trying to get help, T.B. was yelling, “He’s trying to

kill me. Please help me. I’m pregnant. Help me.” and that Carnegie reacted to those statements. Payton testified Carnegie “was pulling T.B. away from the cars, telling

everyone to just keep driving, that it was okay, just keep going, everything was fine.”

Further, T.B. suffered multiple injuries across her body, including to her arm, which

she testified was caused by Carnegie. Accordingly, I would not find that Carnegie

was prejudiced by the introduction of the hearsay statements within the medical

records because there was other admissible evidence that he was aware T.B. was

pregnant at the time he assaulted her. Having found no prejudice, I would also

overrule Carnegie’s remaining assignments of error and affirm his conviction.