[Cite as State v. Gaston, 2020-Ohio-6919.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2020-L-011 - vs - :
TIMOTHY M. GASTON, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas. Case No. 2019 CR 000737.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Justin J. Mackin, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant- Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Timothy M. Gaston (“Gaston”), appeals a judgment in the Lake
County Court of Common Pleas, following a jury trial, sentencing him to 30 months in
prison for domestic violence. We affirm the trial court’s judgment.
{¶2} On August 9, 2019, Gaston was indicted on two counts—Domestic
Violence, in violation of R.C. 2919.25(A) (F-3); and Felonious Assault, in violation of R.C. 2903.11(A)(1) (F-2). The following facts were adduced at trial through the
evidence and testimony presented:
{¶3} On June 29, 2019, multiple calls were made to 911 regarding a domestic
assault at an apartment in Painesville, Ohio. Dispatcher Keith Chaffee received the
calls, and he dispatched police and EMS units to the residence. Officer Kevin Love
assisted the primary officer, Matthew Collins (“Collins”), in responding to the call, as well
as EMT Thomas Konitsky with the Painesville Fire Department. All three men, as well
as Dispatcher Chaffee, testified at trial. The victim did not testify and was not present
during the trial.
{¶4} Upon arriving at the residence, the two officers began investigating the
scene while EMT Konitsky attended to the victim. The report submitted by the EMT
reflected the injuries of the victim, and photographs admitted by the trial court reflect a
large bump on the victim’s forehead, scratches on her hands, and light bruising on her
throat. In the apartment, photographs of the kitchenette showed there was a broken
lamp and a wooden chair with one broken leg. There was also a wig on the floor.
There was ground beef on the floor next to the wig.
{¶5} During Collins’ testimony, he recounted several statements made by the
victim, over the objection of defense counsel, regarding what happened before she
called 911. Collins stated that the victim told him Gaston punched her in the head
several times, hit her with a chair and lamp, and threw ground beef at her after a dispute
over whether to thaw the ground beef. She also told Collins that she experienced a loss
of consciousness and woke up to Gaston choking her. The victim initially refused
2 several times to be transported to the hospital for evaluation but eventually changed her
mind.
{¶6} In addition to the testimony, the state offered as evidence a partially
redacted transcript of a jail call between Gaston and the victim. Various inadmissible
statements related to the victim’s alleged injuries and previous instances of violence
between the couple were redacted, and other statements remaining in the transcript
served only to provide context for the jury. The transcript was offered following the filing
of a “Motion of Intent to Use Statements” filed by the state, in which it argued that
Gaston was responsible for the victim’s nonappearance at trial. The state argued
Gaston and the victim plotted to ensure her whereabouts were unknown in an attempt
to help Gaston’s defense; therefore, the state maintained the statements were
admissible hearsay pursuant to Evid.R. 804(B)(6) as forfeiture by wrongdoing. The
state indicated that it had reviewed dozens of jail calls between the parties to reach this
conclusion; however, these calls were not presented to the court or the jury at trial, and
they were not admitted as evidence.
{¶7} Further, the state argued that the transcript of the jail call containing the
victim’s statements were not being offered for the truth of the matter asserted but rather
for context to present Gaston’s own statements against interest, in which he admitted
guilt for the domestic assault. Defense counsel filed a motion in limine to prohibit
statements made by the victim from being presented at trial, but the motion was denied
by the trial court and the transcript was admitted. The following pertinent statements
were made by Gaston during the call:
BABY I’M SO SORRY[.]
3 WHATEVER HAPPENED I’M SO SORRY[.]
I SWEAR TO GOD ON MY DADDY ALL I REMEMBER IS YOU KEPT TRYING TO HIT ME WITH THAT DAMN LAMP AND I—
ALL I KEPT TELLING YOU TO LEAVE THE FUCK ALONE BUT IT’S COOL IT’S OVER NOW GLAD YOU ACCEPTED MY CALL GOT A CHANCE TO TALK TO YOU[.]
THERE’S NO POSSIBLE WAY I DID ALL THAT DON’T KNOW THAT HAPPENED BUT IT HAPPENED[.]
I REMEMBER A TUSSLING AND ALL THIS AND THAT[.]
NO I DON’T REMEMBER HITTING YOU WITH NO DAMN CHAIR[.]
I AIN’T NEVER TRY TO PUT MY HANDS ON YOU[.] THAT DAMN ALCOHOL THAT HAD ME DELUSIONAL[.] ALL I REMEMBER IS A DAMN GROUND BEEF AND A DAMN LAMP[.] I DO REMEMBER A CHAIR[.] I THINK I REMEMBER THROWING A CHAIR[.] THROWING A CHAIR ON THE GROUND TRYING TO BREAK IT LIKE BECAUSE I WAS SO FUCKING MAD[.] BUT NOT TRYING TO HURT YOU[.] I WOULD NEVER TRY TO HURT YOU[.]
I KNOW I HAD TO BE THE ONE WHO DID IT[.] I KNOW YOU DIDN’T DO IT TO YOURSELF[.] l’M SORRY BABY[.]
I LOVE YOU AND l’M SORRY[.]
YOU KNOW DAMN WELL I DIDN’T MEAN TO DO NOTHING TO HURT YOU LIKE THAT[.]
{¶8} At the end of the state’s case-in-chief, the defense made an oral motion
for acquittal under Criminal Rule 29, which was denied. The defense then rested
without presenting any witnesses. After deliberations, the jury found Gaston guilty of
one count of domestic violence and acquitted him on the felonious assault count. A
sentencing hearing was held on December 23, 2019. At the hearing, the trial court
sentenced Gaston to 30 months in prison.
4 {¶9} Gaston filed a timely notice of appeal and raises three assignments of
error for our review. We consider the assignments out of order.
{¶10} Gaston’s first assignment of error states:
THE TRIAL COURT VIOLATED THE DEFENDANT-APPELLANT’S CONSTITUTIONAL RIGHT TO FAIR TRIAL AND DUE PROCESS AS GUARANTEED [sic] SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 5 AND 10, ARTICLE I OF THE OHIO CONSTITUTION WHEN IT ADMITTED INADMISSIBLE HEARSAY TESTIMONY.
{¶11} Under his first assignment, Gaston presents three issues for review:
[1.] The trial court erred to the prejudice of the defendant-appellant by overruling his objections to the admission of hearsay testimony of witness [victim’s name redacted], citing the Forfeiture by Wrongdoing Exception in Evid.R. 804(B)(6).
[2.] The trial court erred to the prejudice of the defendant-appellant by overruling his objections to the admission of hearsay testimony of witness [victim’s name redacted] as it was not offered as an excited utterance exception under Evid.R. 803(2).
[3.] The trial court erred to the prejudice of the defendant-appellant by overruling his objections to the admission of hearsay testimony of witness [victim’s name redacted], finding that it was not offered for the truth of the matter asserted.
{¶12} Gaston’s first assignment of error challenges the admissibility of testimony
of the victim presented to the jury at trial through witness testimony of Collins, as well as
a redacted jail call between Gaston and the victim. If the testimony meets the definition
of hearsay, it need only be admissible under one of the exceptions to the prohibition on
hearsay to be admissible. Also, to be admissible, hearsay testimony must not violate
the Confrontation Clause of the Sixth Amendment. Accordingly, we address the three
issues presented in combination for each category of testimony and discuss the
Confrontation Clause thereafter.
5 {¶13} Hearsay “is 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). Hearsay is generally inadmissible unless it falls into one of
the applicable exceptions. Evid.R. 802.
{¶14} Although we apply an abuse of discretion standard to some evidentiary
rulings, the trial court does not have discretion to admit hearsay “except as otherwise
provided by the Constitution of the United States, by the Constitution of the State of
Ohio, by statute enacted by the General Assembly not in conflict with a rule of the
Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme
Court of Ohio.” Evid.R. 802; see also Jack F. Neff Sand & Gravel, Inc. v. Great Lakes
Crushing, Ltd., 11th Dist. Lake No. 2012-L-145, 2014-Ohio-2875, ¶23, citing State v.
DeMarco, 31 Ohio St.3d 191, 195 (1987). Therefore, we apply a de novo review to
determine whether the testimony here constitutes hearsay. Id., citing John Soliday Fin.
Group, LLC v. Pittenger, 190 Ohio App.3d 145, 150, 2010-Ohio-4861 (5th Dist.).
Testimony of Officer Collins
{¶15} Collins testified as to statements made by the victim implicating Gaston as
the person who caused the physical injuries he observed on her head, neck, and hands
during his investigation. These are out of court statements made by the victim and
offered to prove that Gaston had committed domestic violence; therefore, the
statements constitute hearsay and would be inadmissible at trial unless excepted under
the rules of evidence.
{¶16} One exception to the prohibition on hearsay is a “present sense
impression.” A present sense impression is defined as “[a] statement describing or
6 explaining an event or condition made while the declarant was perceiving the event or
condition, or immediately thereafter unless circumstances indicate lack of
trustworthiness.” Evid.R. 803(1); State v. Urso, 195 Ohio App.3d 665, 2011-Ohio-4702,
¶68 (11th Dist.); State v. Foster, 11th Dist. Trumbull No. 97-T-0094, 1998 WL 684834,
*5 (Sept. 25, 1998).
{¶17} Here, the victim’s testimony was describing and explaining the attack that
led to her calling 911, as well as a neighbor’s call after hearing the altercation. She
made the statements while still appearing “frightened” and “frustrated,” according to
testimony. Also, officers testified they arrived at the apartment within a few minutes
after the 911 call, which gave the victim little time to fabricate the account of events she
gave Collins. There were no circumstances indicating a lack of trustworthiness. Her
recounting of the domestic assault also matches all of the evidence and observations
made by the officers documenting the apartment through photographs and written
reports and reflects the injuries Collins observed while interviewing her.
{¶18} Therefore, the testimony given by Collins containing the statements made
by the victim was a present sense impression of her experience immediately following
an assault. Because this testimony falls under the present sense impression exception
to the prohibition on hearsay, the additional issues raised by Gaston on appeal
regarding Collins’ testimony as hearsay need not be addressed.
Jail Call
{¶19} Pursuant to Evid.R. 804, certain hearsay exceptions exist only when the
declarant is unavailable as a witness. For instance, hearsay may be admissible under
the “forfeiture by wrongdoing” exception: “[a] statement offered against a party if the
7 unavailability of the witness is due to the wrongdoing of the party for the purpose of
preventing the witness from attending or testifying. * * * ” Evid.R. 804(B)(6). Also, a
statement is not hearsay by definition if it is an admission by a party-opponent, e.g.,
when it is “offered against a party and is the party’s own statement, in either an
individual or a representative capacity.” Evid.R. 801(D)(2)(a). Finally, statements made
for a purpose other than proving the truth of the matter asserted, such as to provide
context, are nonhearsay and may be admissible at trial. Evid.R. 801(C); see, e.g., State
v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶213-217 (concluding testimony was
admissible because it was offered for the nonhearsay purpose of providing context for
the defendant’s reactions and responses).
{¶20} In the present matter, we initially note that the statements made by Gaston
on the jail call are not hearsay, pursuant to Evid.R. 801(D)(2)(a), as they are his own
statements offered against him.
{¶21} The state offered no evidence supporting a finding that Gaston secured
the unavailability of the victim at trial. Thus, the “forfeiture by wrongdoing” exception
does not apply to the statements made by the victim on the jail call. However, we
conclude that the victim’s statements are also nonhearsay because they were offered to
provide context for Gaston’s responses, which would not have made sense to the jury in
isolation. Whether or not her statements were true was not the state’s purpose for
introducing them as evidence. Evid.R. 801(C); McKelton, supra, at ¶213-217; see also,
e.g., United States v. Henderson, 626 F.3d 326, 337 (6th Cir.2010). Therefore, the
statements made during the jail call are not hearsay, and the additional issues raised by
Gaston on appeal regarding the jail call need not be addressed.
8 Confrontation Clause
{¶22} Regardless of whether statements are admissible under the exceptions to
the hearsay prohibition, they may be rendered inadmissible if in violation of the Sixth
Amendment to the United States Constitution, which provides: “In all criminal
prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses
against him.” The United States Supreme Court determined the Confrontation Clause
“applies to ‘witnesses’ against the accused—in other words, those who ‘bear
testimony,’” even when the “testimonial” statements were made out of court. Crawford
v. Washington, 541 U.S. 36, 51 (2004). To determine whether a statement is
testimonial in nature, the proper inquiry is “‘whether a reasonable person in the
declarant’s position would anticipate his statement being used against the accused in
investigating and prosecuting the crime.’” State v. Metter, 11th Dist. Lake No. 2012-L-
029, 2013-Ohio-2039, ¶35, quoting United States v. Cromer, 389 F.3d 662, 675 (6th
Cir.2004).
{¶23} In Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court again
emphasized that the admission of a hearsay statement is a violation of the
Confrontation Clause only if the statement is “testimonial.” The Court determined that
the Confrontation Clause is not applicable to statements made “to enable police
assistance to meet an ongoing emergency.” Id. at 822. The Supreme Court, in
affirming the trial court’s decision to admit 911 statements, explained:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to
9 establish or prove past events potentially relevant to later criminal prosecution.
Id. (footnote omitted).
{¶24} The victim’s primary purpose for the statements made to Collins was to
report the domestic assault and her injuries resulting therefrom. The statements were
taken by Collins, a police officer on the scene of an assault that occurred immediately
prior to his arrival and within five minutes of the 911 call. There is no indication from the
record or Collins’ testimony that the victim intended to use her recitation of the facts
regarding the assault to the officer as a means to testify regarding the events she
experienced in real time. Therefore, the statements made by the victim to Collins were
nontestimonial in nature and their admission did not violate the Confrontation Clause.
{¶25} With regard to the jail call, we have concluded the statements made by the
victim during that call were not presented for the truth of the matter asserted. Because
of this, the statements are not hearsay. As the Ohio Supreme Court has held, when
statements are nonhearsay, they do not implicate the Confrontation Clause. See State
v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, ¶171 & 175, citing McKelton, supra, at
¶186; see also State v. Brown, 11th Dist. Lake No. 2012-L-007, 2013-Ohio-1099, ¶50,
citing Crawford, supra, and Bruton v. United States, 391 U.S. 123 (1968) (“The United
States Supreme Court has held that a defendant’s right to confrontation is violated
where the state offers, for their truth, any portions of statements of a co-defendant made
to police that directly or indirectly inculpate the defendant. The statements, however,
must be hearsay to trigger the Bruton rule.”) (emphasis added).
{¶26} For all of the foregoing reasons, the trial court did not violate Gaston’s
rights under the Confrontation Clause when it admitted statements made by the victim
10 and allowed them to be presented to the jury. The statements made by the victim
during the investigation conducted by Collins were excepted under the rules prohibiting
the introduction of hearsay and were nontestimonial in nature. The jail call was
nonhearsay and thus not subject to scrutiny under the Confrontation Clause.
{¶27} Gaston’s first assignment of error is without merit.
{¶28} Gaston’s third assignment of error states:
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT WHEN IT RETURNED A VERDICT OF GUILTY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶29} In determining whether the verdict was against the manifest weight of the
evidence, “‘[t]he court reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin,
20 Ohio App.3d 172, 175 (1st Dist.1983). A judgment of a trial court should be reversed
as being against the manifest weight of the evidence “‘only in the exceptional case in
which the evidence weighs heavily against the conviction.’” Id., quoting Martin, supra,
at 175.
{¶30} There is a presumption that the findings of the trier of fact are correct,
because the trier of fact has had the opportunity “to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing
the credibility of the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
St.3d 77, 80 (1984), citing 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at
11 191-192 (1978) (“* * * [I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every reasonable
presumption must be made in favor of the judgment and the finding of facts. * * * If the
evidence is susceptible of more than one construction, the reviewing court is bound to
give it that interpretation which is consistent with the verdict and judgment, most
favorable to sustaining the verdict and judgment.”).
{¶31} The jurors in the present matter did not lose their way in weighing the
evidence and finding that Gaston committed the crime of Domestic Violence in violation
of R.C. 2919.25(A). Testimony was presented from the time of the 911 call reporting
the altercation through the investigation and arrest of Gaston early the next morning.
The jury was given photographs of the injuries suffered by the victim and a transcript of
a jail call between Gaston and the victim. During that call, Gaston makes several
contradicting statements, but he ultimately admits to attacking the victim multiple times
with items found at the scene and photographed by officers. Further, the jury chose to
acquit Gaston on the Felonious Assault charge, which further supports our conclusion
that the jury fully considered the evidence and testimony presented, was in the best
position to determine whether Gaston was guilty of the offenses charged, and did not
clearly lose its way in evaluating the case presented by the state.
{¶32} Gaston’s third assignment of error is without merit.
{¶33} Gaston’s second assignment of error states:
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT WHEN IT DENIED HIS MOTION FOR ACQUITTAL MADE PURSUANT TO CRIM.R. 29(A).
12 {¶34} Pursuant to Crim.R. 29(A), “The court on motion of a defendant or on its
own motion, after the evidence on either side is closed, shall order the entry of a
judgment of acquittal of one or more offenses charged in the indictment, information, or
complaint, if the evidence is insufficient to sustain a conviction of such offense or
offenses.” Crim.R. 29(A) requires the trial court to grant a motion for judgment of
acquittal if the evidence is insufficient to sustain a conviction on the charged offense(s).
“Thus, when an appellant makes a Crim.R. 29 motion, he or she is challenging the
sufficiency of the evidence introduced by the state.” State v. Patrick, 11th Dist. Trumbull
Nos. 2003-T-0166 & 2003-T-0167, 2004-Ohio-6688, ¶18.
{¶35} “A challenge to the sufficiency of the evidence raises a question of law as
to whether the prosecution met its burden of production at trial.” State v. Bernard, 11th
Dist. Ashtabula No. 2016-A-0063, 2018-Ohio-351, ¶56, citing Thompkins, supra, at 390
and State v. Windle, 11th Dist. Lake No. 2010-L-033, 2011-Ohio-4171, ¶25. “‘In
reviewing the record for sufficiency, “[t]he 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.”’” Id.,
quoting State v. Smith, 80 Ohio St.3d 89, 113 (1997), quoting State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus. Where there is insufficient evidence, a
conviction will be vacated. Id. at ¶55, citing State v. Rose, 11th Dist. Lake No. 2014-L-
086, 2015-Ohio-2607, ¶32.
{¶36} A finding that a judgment is not against the manifest weight of the
evidence necessarily means the judgment is supported by sufficient evidence. State v.
Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶32. Having
13 determined that Gaston’s conviction is not against the manifest weight of the evidence,
it follows that it is supported by sufficient evidence.
{¶37} Gaston’s second assignment of error is without merit.
{¶38} The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
concur.