[Cite as State v. Hampton, 2019-Ohio-2555.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Patricia A. Delaney, J. -vs- Case No. 2018 CA 00123 AARON A. HAMPTON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2018 CR 00758
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 25, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO BERNARD L. HUNT PROSECUTING ATTORNEY 2395 McGinty Road, NW KRISTINE W. BEARD North Canton, Ohio 44720 ASSISTANT PROSECUTOR 110 Central Plaza South, Suite 510 Canton, Ohio 44702 Stark County, Case No. 2018 CA 00123 2
Wise, J.
{¶1} Defendant-Appellant Aaron A. Hampton appeals from his felony conviction,
in the Court of Common Pleas, Stark County, on one count of domestic violence. Appellee
is the State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On April 14, 2018, Officer Jennifer Henderson of the Canton Police
Department was dispatched to a Gas City gas station located at 216 Roland Avenue NE.
She thereupon took a report that appellant’s girlfriend, R.P., had been physically
assaulted. Shortly thereafter, the officer interviewed R.P. at Mercy Hospital.
{¶3} On April 17, 2018, appellant was arrested, and on the next day appeared in
the Canton Municipal Court with appointed counsel for arraignment. At that time, he
entered a plea of not guilty. He was also advised that the municipal court had issued a no
contact order regarding R.P.
{¶4} Following a preliminary hearing in the municipal court on April 26, 2018,
appellant was bound over to the Stark County Court of Common Pleas (hereinafter “trial
court”).
{¶5} On or about May 31, 2018, the matter was presented to the Stark County
Grand Jury. The victim, R.P., appeared and testified at that time. Appellant was thereupon
indicted on one count of domestic violence, R.C. 2919.25(A), with two or more prior
convictions, a third-degree felony.
{¶6} The trial court subsequently set the case for a final pretrial on June 20, 2018,
with a trial date of July 3, 2018. Stark County, Case No. 2018 CA 00123 3
{¶7} On June 22, 2018, in violation of the aforementioned no contact order,
appellant called R.P. via telephone from the Stark County Jail. The phone call was
recorded and saved by the Sheriff’s Office.
{¶8} On June 29, 2018, the State filed a notice of intent to use evidence (citing
Evid.R. 804(B)(6)) and a motion to continue the scheduled July 3rd trial. On July 2, 2018,
the trial court filed a hearing disposition sheet indicating that the trial would be continued,
with an entry to that effect to follow.
{¶9} On July 3, 2018, the court held a hearing on the State's aforesaid motions.
The State maintained that a continuance was necessary based on newly discovered
evidence, including appellant’s jail phone call to R.P. on June 22, 2018, which likely made
the victim unavailable for trial, and certain records from Mercy Medical Center which
included photos and the name of a potential witness. Reference was also made to a
police bodycam video of the statements made by R.P. to law enforcement at Mercy
Medical Center, although a copy thereof had been apparently received by defense
counsel previously. See Discovery Receipt, June 13, 2018 (Docket Number 13). Over
defense counsel's objection, the State’s request for a continuance was granted, and the
jury trial was re-set for July 17, 2018.
{¶10} On July 16, 2018, appellant filed a motion to dismiss on speedy trial
grounds, which was denied. See Tr. at 27.
{¶11} The State called two witnesses on July 17, 2018: Officer Henderson of the
Canton Police Department and Deputy Mark Hood of the Stark County Sheriff’s
Department. The victim, R.P., did not show up for the trial. Stark County, Case No. 2018 CA 00123 4
{¶12} Officer Henderson recalled that when she arrived at Gas City on the
afternoon of April 14, 2018, she learned that R.P. had already been taken to Mercy
Medical Center. Tr. at 164. The officer conducted some of her investigation at the scene,
and then proceeded to Mercy, about ten minutes away. Id. Speaking with R.P. at the
hospital, Henderson observed that R.P. was “extremely shaken” and crying. Id. She was
also, at least initially, “hard to understand because of being upset.” Id. R.P. displayed
signs of physical injury in the form of dried blood on her lip, visible red marks on her neck,
and scraping to one of her knees. Tr. at 167-168. After more investigation, Henderson
“learned that [appellant] and the victim had resided together at the victim’s address.” Tr.
at 169. The conversation between Henderson and R.P. was captured on the officer’s
bodycam.
{¶13} The remaining witness called by the State, Deputy Hood, who is assigned
to the inmate services unit, testified that appellant had called R.P. from a jail telephone
on the afternoon of June 22, 2018. The audio of the call was then played for the jury over
appellant’s objection. Tr. at 210.
{¶14} During the jail call, R.P. can be heard telling appellant that she wanted to
come to the trial just to have an opportunity to see him at the courthouse. Appellant then
told R.P. that if she does not show up for the trial, he won’t have to “fight” the charge and
she would be able to see him. R.P. then stated her intention not to show up for trial.
State’s Exhibit 4 (played for the jury at Tr. 211).
{¶15} After the presentation of the State's evidence, appellant made a Crim.R. 29
motion for acquittal, essentially arguing that the State had not proven that appellant was Stark County, Case No. 2018 CA 00123 5
a “family or household member” for purposes of the domestic violence statute. Said
motion was overruled by the trial court. Tr. at 215-216.
{¶16} The jury thereafter deliberated and found appellant guilty as charged in the
indictment.
{¶17} The trial court, following a hearing on July 23, 2018, sentenced appellant
inter alia to 36 months in prison.
{¶18} On August 20, 2018, appellant filed a notice of appeal. He herein raises the
following three Assignments of Error:
{¶19} “I. THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT UNDER
THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE OHIO
CONSTITUTION IN SECTION 10, ARTICLE I.
{¶20} “II. THE TRIAL COURT'S FINDING OF GUILT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE.
{¶21} “III. THE TRIAL COURT ERRED WHEN IT OVERRULED THE
DEFENDANT'S RULE 29(A) MOTION TO DISMISS.”
I.
{¶22} In his First Assignment of Error, appellant contends the trial court violated
appellant’s rights under the Sixth Amendment and the Ohio Constitution, Section 10,
Article I. We disagree.
{¶23} The admission or exclusion of relevant evidence rests in the sound
discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d
343. As a general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802. Stark County, Case No. 2018 CA 00123 6
Our standard task is to look at the totality of the circumstances and determine whether
the trial court acted unreasonably, arbitrarily or unconscionably in allowing or excluding
the disputed evidence. State v. Oman, 5th Dist. Stark No. 1999CA00027, 2000 WL
222190.
{¶24} The text of the present assigned error indicates appellant is claiming a
violation of his constitutional right to confront witnesses. However, his argument is chiefly
focused on hearsay issues, particularly Evid.R. 804(B)(6), infra. We initially note that
issues concerning the Confrontation Clause and the application of hearsay exceptions
are separate and distinct considerations. See State v. Love, 4th Dist. Gallia No. 10CA7,
2011–Ohio–4147, ¶ 23. However, in the interest of justice, we will address both of these
facets of appellant’s present assigned error. See State v. Evans, 5th Dist. Stark No. 2014
CA 00167, 2015-Ohio-1788, ¶ 33.
Confrontation Issues
{¶25} The Confrontation Clause of the Sixth Amendment to the United States
Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right
* * * to be confronted with the witnesses against him.” State v. Anderson, 154 Ohio App.3d
789, 2003–Ohio–5439, 798 N.E.2d 1155, ¶ 22 (7th Dist.). Furthermore, the Ohio
Constitution, Article I, Section 10, states in pertinent part: “*** In any trial, in any court, the
party accused shall be allowed to appear and defend in person and with counsel; to
demand the nature and cause of the accusation against him, and to have a copy thereof;
to meet the witnesses face to face ***.”
{¶26} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004), the United States Supreme Court held testimonial statements of a witness who Stark County, Case No. 2018 CA 00123 7
does not appear at trial may not be admitted or used against a criminal defendant unless
the declarant is unavailable to testify, and the defendant had a prior opportunity for cross-
examination. State v. Garrison, 5th Dist. Muskingum No. CT2017-0034, 2018-Ohio-1048,
¶ 13.
{¶27} Officer Henderson’s testimony: Appellant first challenges the following
recollection provided at trial by Officer Henderson, concerning what R.P. (who did not
appear at appellant’s trial) reported to her at the hospital:
*** [R.P.] was in an altercation with her boyfriend [Appellant
Hampton], they were at a barbeque, they were leaving to go to another
address, and she states she didn't want to go. And during this they're in a
car with an unknown person. Unknown person tells them to get out. She
states that Mr. Hampton grabbed her by the neck, punched her with a
closed fist multiple times causing her to fall down on the railroad tracks, ***
[and she] went to Gas City to make the phone call to get help.
{¶28} Tr. at 173-174.
{¶29} Even when confrontation rights apply, testimonial hearsay can be admitted
under the common law “forfeiture by wrongdoing” exception. State v. Fry, 125 Ohio St.3d
163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 108, citing Giles v. California, 554 U.S. 353,
128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). The doctrine applies when the defendant
engaged in conduct designed (with intent) to prevent the witness from testifying. Id. In
essence, defendants forfeit the right to confrontation if they “seek to undermine the judicial
process by procuring or coercing silence from witnesses * * *.” Davis v. Washington, 547 Stark County, Case No. 2018 CA 00123 8
U.S. 813, 833, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). See State v. Austin, 7th Dist.
Mahoning No. 16 MA 0068, 2019-Ohio-1185, ¶ 34.
{¶30} In the case sub judice, although the victim, R.P., was initially cooperative
and testified before the grand jury, she eventually refused to talk with prosecutors, did not
respond to letters, and did not honor her subpoena. As further detailed infra, about one
week before the original trial date, despite an existing no-contact order, appellant initiated
a jail phone call to R.P., during which he told her that if she did not come to the trial, he
would not have to fight the charge and he would be able to see her.
{¶31} Upon review, we hold the trial court acted within its discretion in permitting
R.P.’s statements to be admitted under the doctrine of forfeiture by wrongdoing, as the
record supports a conclusion that appellant was intentionally seeking to disrupt R.P.’s
availability as a witness.
{¶32} Footage from Officer Henderson’s police bodycam: During appellant’s trial,
the State chose not to play Officer Henderson’s bodycam, and instead called the officer
to testify. However, in this instance, appellant’s defense counsel chose to have
approximately four minutes of the bodycam video shown to the jury as a part of the
defense cross-examination of Officer Henderson. See Tr. at 202. Where a defense
attorney agrees to play a video, it is treated as if there was no objection, and the defendant
waives all but plain error on appeal. See State v. Mathes, 12th Dist. Clermont No.
CA2012-03-028, 2013-Ohio-1732, ¶ 21, citing Crim.R. 52(B). Furthermore, we find the
“forfeiture by wrongdoing” exception to the right to confront witnesses would again apply.
{¶33} Accordingly, we find no reversible error concerning the use of the bodycam
video in this regard. Stark County, Case No. 2018 CA 00123 9
{¶34} Audio recording of the jail phone call: Stark County Deputy Mark Hood
testified for the prosecution that he handles inmate services at the Stark County Jail. He
noted that phone calls made from the jail are stored in Sheriff Department records. Tr. at
207-208. After the deputy identified a jail call made by appellant on June 22, 2018 at 4:21
PM, a recording of the call was played for the jury, over defense objection. Tr. at 211. In
the call, appellant urges R.P. not to appear for the trial. Id.
{¶35} When statements are made for the primary purpose of communicating with
friends or family, they are not made to aid in the prosecution or as the result of an
interrogation. See State v. Ray, 189 Ohio App.3d 292, 2010–Ohio–2348, 938 N.E.2d 378
(8th Dist.), ¶¶ 42–43. Specifically, recorded jail calls are not “testimonial” for confrontation
purposes if the primary purpose of the calls is to further a conspiracy, rather than create
a record for a criminal prosecution. United States v. Mayfield, 909 F.3d 956, 962 (8th
Cir.2018), citing United States v. LeBeau, 867 F.3d 960, 981 (8th Cir. 2017). In the instant
case, although appellant was not charged with conspiracy, the trial court could have
reasonably determined that appellant was attempting to regain a relationship with R.P.
and reach a pact to subvert her testimony. Under these circumstances, we find no
confrontation violation and no abuse of discretion by the trial court in allowing the call to
be played for the jury.
Hearsay Issues
{¶36} Officer Henderson’s testimony / Footage from Officer Henderson’s police
bodycam: In the context of a hearsay analysis, we note that under Evid.R. 804(B)(6), the
forfeiture by wrongdoing hearsay exception permits the admission of “[a] statement
offered against a party if the unavailability of the witness is due to the wrongdoing of the Stark County, Case No. 2018 CA 00123 10
party for the purpose of preventing the witness from attending or testifying.” In this
situation, the State need only show the defendant's wrongdoing which caused the
witness's unavailability was motivated in part by a desire to silence the witness. State v.
Austin, supra, at ¶ 36. Similar to our conclusions supra, we hold the trial court acted within
its discretion in allowing R.P.’s statements to be admitted as a hearsay exception under
the doctrine of forfeiture by wrongdoing.
{¶37} Furthermore, given that R.P. spoke to the officer while she was being
treated at the hospital and was visibly shaken and upset, we find the “excited utterance”
exception to hearsay would have justified the trial court’s allowance of R.P’s out-of-court
statements. See Evid.R. 803(2).
{¶38} Audio recording of the jail phone call: Appellant does not indicate in his
argument that R.P. made any statements during the jail call tending to incriminate
appellant; we therefore presume appellant is referring to his own statements on the
recording. However, a defendant’s suggestion to a witness during a jail call that she
should not come to court can constitute an admission of a party opponent, which is not
hearsay under Evid.R. 801(D)(2) and is admissible as substantive evidence of guilt. See
State v. Moody, 2nd Dist. Montgomery No. 26926, 2016-Ohio-8366, ¶ 68.
{¶39} We therefore find no abuse of discretion by the trial court on hearsay
grounds in allowing the call to be played for the jury.
{¶40} Appellant’s First Assignment of Error is overruled. Stark County, Case No. 2018 CA 00123 11
II.
{¶41} In his Second Assignment of Error, appellant contends his conviction was
not supported by sufficient evidence and was against the manifest weight of the evidence.
We disagree.
Sufficiency Claim
{¶42} In reviewing a claim of insufficient evidence, “[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.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus. It is well-established that the State bears the burden of
establishing each and every element of a charged crime and must do so with proof
beyond a reasonable doubt. See In re L.R., 8th Dist. Cuyahoga No. 93356, 2010–Ohio–
15, 2010 WL 27862, ¶ 11.
{¶43} R.C. 2919.25(A) states as follows: “No person shall knowingly cause or
attempt to cause physical harm to a family or household member.”
{¶44} Pursuant to R.C. 2919.25(F)(1)(a)(i), the definition of “family or household
member” includes “[a]ny of the following who is residing or has resided with the offender:
(i) A spouse, a person living as a spouse, or a former spouse of the offender.” R.C.
2919.25(F)(2) in turn defines a person living as a spouse as “a person who is living or has
lived with the offender in a common law marital relationship, who otherwise is cohabiting
with the offender, or who otherwise has cohabited with the offender within five years prior
to the date of the alleged commission of the act in question.” Stark County, Case No. 2018 CA 00123 12
{¶45} The gist of appellant’s sufficiency claim in the case sub judice is that the
State failed to prove he was a family or household member in regard to the victim, R.P.
{¶46} Officer Henderson testified at trial that she learned appellant and R.P. had
resided together at R.P’s address, although the State was unable to procure a more
specific follow-up answer as to a time frame, due to defense counsel’s successful
objection. See Tr. at 170-171. However, on the jail call recording, appellant can be heard
telling R.P. that if she does not testify against him, she will be able to see him “for good.”
State’s Exhibit 4.1 Also, on Officer Henderson’s bodycam video, R.P. appears to say that
appellant had “stayed” with her, but had recently been banned from her building. State’s
Exhibit 1 (N/O).
{¶47} Upon review of the record and transcript in a light most favorable to the
prosecution, we find that rational factfinders could have determined the existence of a
household member relationship and thus found appellant guilty beyond a reasonable
doubt of the offense of domestic violence against R.P. as charged.
Manifest Weight
{¶48} Our standard of review on a manifest weight challenge to a criminal
conviction is stated as follows: “The 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. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
1 The State presently asserts that appellant says during the call that he “can come home” if R.P. refuses to testify. Appellee’s Brief at 11, 22. However, we cannot ascertain that phrase upon listening to the jail call recording exhibit. Stark County, Case No. 2018 CA 00123 13
See, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The granting
of a new trial “should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.
{¶49} Appellant’s argument focuses on his claim that police investigative functions
were not adequately performed in this instance. He maintains that Officer Henderson did
not investigate if appellant or R.P. had been drinking (Tr. at 176), and that no interview
was conducted of the persons who were allegedly giving appellant and R.P. a ride on the
night of the assault (Tr. at 177). Appellant also faults investigators for not checking the
railroad tracks for DNA evidence (Tr. at 179) 2 or doing a “follow-up” at the 1717 E.
Tuscarawas address (Tr. at 195), the purported destination of appellant and R.P. on the
date of the assault. Appellant also claims the police bodycam video showing R.P. does
not show significant physical injury, and, without significant elaboration, claims Officer
Henderson’s testimony was confusing and/or inconsistent with the video.
{¶50} Even though a manifest weight analysis may involve an appellate court’s
consideration of credibility (see State v. Sanders, 76 N.E.3d 468, 2016-Ohio-7204 (5th
Dist.), ¶ 38), the weight to be given to the evidence and the credibility of the witnesses
are primarily issues for the trier of fact (see, e.g., State v. Jamison (1990), 49 Ohio St.3d
182, 552 N.E.2d 180). Furthermore, even if demonstrated, a substandard police
investigation generally “has no bearing on the question of the manifest weight of the
evidence,” so long as the evidence that is presented is sufficient to sustain the verdict.
See State v. Keyser, 11th Dist. Portage No. 95-P-0136, 1996 WL 635842.
2 R.P. at one point told police that she had struck her head on some nearby railroad tracks during or as a result of the assault. Stark County, Case No. 2018 CA 00123 14
{¶51} Therefore, having reviewed the record under the standard of Martin, we find
no demonstration that appellant's conviction must be reversed and a new trial ordered.
{¶52} Appellant’s Second Assignment of Error is overruled.
III.
{¶53} In his Third Assignment of Error, although referencing Crim.R. 29, appellant
challenges the trial court's denial of his statutory speedy trial motion to dismiss.
{¶54} The right to a speedy trial is encompassed within the Sixth Amendment to
the United States Constitution. The availability of a speedy trial to a person accused of a
crime is a fundamental right made obligatory on the states through the Fourteenth
Amendment. State v. Ladd (1978), 56 Ohio St.2d 197, 383 N.E.2d 579; State v. Pachay
(1980), 64 Ohio St.2d 218, 416 N.E.2d 589. Ohio's Speedy Trial statute codifies the
constitutional guarantee of a speedy trial. Pachay, supra.
{¶55} Our review of a trial court's decision regarding a motion to dismiss based
upon a violation of the speedy trial provisions involves a mixed question of law and fact.
State v. McDonald, 7th Dist. Mahoning Nos. 97CA146 and 97CA148, 1999 WL 476253.
Due deference must be given to the trial court's findings of fact if supported by competent,
credible evidence. Id. However, we must independently review whether the trial court
properly applied the law to the facts of the case. Id. Furthermore, when reviewing the
legal issues presented in a speedy trial claim, an appellate court must strictly construe
the relevant statutes against the state. Id., citing Brecksville v. Cook (1996), 75 Ohio St.3d
53, 57, 661 N.E.2d 706.
{¶56} R.C. 2945.71(C)(2) mandates that a person against whom a felony charge
is pending shall be brought to trial within two-hundred and seventy days after the person's Stark County, Case No. 2018 CA 00123 15
arrest. However, “* * * each day during which the accused is held in jail in lieu of bail on
the pending charge shall be counted as three days.” R.C. 2945.71(E).
{¶57} Furthermore, R.C. 2945.72 states in pertinent part as follows:
The time within which an accused must be brought to trial, or, in the
case of [a] felony, to preliminary hearing and trial, may be extended only by
the following: *** (D) Any period of delay occasioned by the neglect or
improper act of the accused; *** (H) The period of any continuance granted
on the accused's own motion, and the period of any reasonable continuance
granted other than upon the accused's own motion; ***.
{¶58} (Emphases added).
{¶59} In the case sub judice, appellant was arrested on April 17, 2018, and he
remained incarcerated until his trial commenced. Thus, absent any extensions, the ninety-
day deadline established under R.C. 2945.71(C)(2) and (E), supra, would have occurred
on July 16, 2018.
{¶60} The trial was initially scheduled for July 3, 2018, well within the limit. But on
June 29, 2018, the State filed a motion for a continuance and a notice of intent to use
evidence, based on the doctrine of forfeiture by wrongdoing. In both motions, and at a
pretrial hearing on July 3, 2018, the State advised the trial court that on June 22, 2018,
during the aforementioned jail call initiated by appellant, he told R.P. not to appear for
trial, and that she had agreed to this. The State thus moved the court for a continuance
in part to try to compel R.P.’s appearance and/or for the court to determine whether R.P.’s
out-of-court statements could be presented in her absence. The State also advised that
they had received recent notice of newly discovered evidence of medical photos. Finally, Stark County, Case No. 2018 CA 00123 16
the State indicated that preparation time would be needed regarding the jail call’s
introduction at trial.
{¶61} On July 2, 2018, in a hearing entry, the court indicated that it would grant
the motion to continue with an entry to follow. Via a judgment entry issued on July 16,
2018, the court granted the State's motion to continue. The trial then commenced on July
17, 2018.
{¶62} Under the circumstances presented, we hold the trial court's continuance of
the trial date for one more day past the 90-day triple-count speedy trial deadline was
reasonable and valid, and the additional tolling period did not constitute error or deprive
appellant of his constitutional rights.
{¶63} Accordingly, the trial court did not err in denying appellant's statutory
speedy trial motion to dismiss.
{¶64} Appellant’s Third Assignment of Error is overruled.
{¶65} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
JWW/d 0530