[Cite as State v. Hartman, 2013-Ohio-4407.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 12CA0057-M
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE MATTHEW HARTMAN COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 09CR0229
DECISION AND JOURNAL ENTRY
Dated: October 7, 2013
BELFANCE, Judge.
{¶1} Defendant-Appellant Matthew Hartman appeals from his conviction in the
Medina County Court of Common Pleas. For the reasons set forth below, we affirm in part,
reverse in part, and remand the matter.
I.
{¶2} On May 27, 2009, Mr. Hartman was having dinner with his wife, Melissa
Hartman, and their children. During the course of the meal, Mr. and Mrs. Hartman began to
argue about whether Mr. Hartman should have another beer. The argument continued as Mr.
Hartman drove the family to his parents’ home. During the drive, the argument became more
heated and physical. When they reached Mr. Hartman’s parents’ home, Mr. Hartman exited the
vehicle and threw the keys. Mrs. Hartman retrieved the keys and drove to the nearby home of
Kimberly and Al Leighton who were long-time friends of Mr. and Mrs. Hartman. In the past,
Mr. Hartman often hunted with Mr. Leighton on Mr. Leighton’s and other nearby properties. 2
Upon arrival at the Leighton’s, Mrs. Hartman and the children were upset, and Mrs. Hartman
maintained that Mr. Hartman was after her. Shortly thereafter, Mr. Hartman arrived at the
Leighton’s home on an ATV. Mr. Hartman had a gun in a holster strapped across his chest.
Upon seeing Mr. Hartman, and seeing Mrs. Hartman’s reaction to seeing Mr. Hartman, Mr.
Leighton ushered his wife and Mrs. Hartman and the children into the Leighton’s bedroom. Mr.
Leighton told his wife to call 911, which she did.
{¶3} Mr. Hartman entered the Leighton home. Mr. Leighton encountered Mr. Hartman
as Mr. Leighton was exiting the bedroom. Mr. Leighton pointed a gun at Mr. Hartman and told
him that, “this isn’t going to happen in my house.” The two went outside, Mr. Leighton took the
gun from Mr. Hartman and unloaded it, and then they began to talk. At one point, Mr. Leighton
allowed Mr. Hartman to go inside and attempt to talk to his wife and get a beer. Before Mr.
Hartman went to leave, Mr. Leighton returned the unloaded weapon to Mr. Hartman. As Mr.
Hartman got on his ATV, police, who had been observing the two talking from a nearby
property, arrested Mr. Hartman.
{¶4} Based upon that incident, Mr. Hartman was indicted on one count of aggravated
burglary in violation of R.C. 2911.11(A)(2), a first-degree felony. Mr. Hartman filed a motion to
suppress which was orally denied following a hearing. The matter proceeded to a jury trial, after
which, a jury found Mr. Hartman guilty of aggravated burglary. The trial court sentenced Mr.
Hartman to five years in prison. Mr. Hartman appealed, and this Court reversed his conviction
based upon the prejudicial admission of the entire 911 call. See State v. Hartman, 9th Dist.
Medina Nos. 10CA0026-M, 10CA0031-M, 2012-Ohio-745, ¶ 29. Subsequently, Mr. Hartman
was retried, and a jury again found him guilty of aggravated burglary. Mr. Hartman was again 3
sentenced to five years in prison. Mr. Hartman has appealed, raising 18 assignments of error for
our review, which will be addressed out of sequence to facilitate our review.
II.
ASSIGNMENT OF ERROR X
THE COURT COMMITTED REVERSIBLE ERROR BY ADMITTING AND FAILING TO SUPPRESS EVIDENCE OBTAINED IN VIOLATION OF HARTMAN’S CONSTITUTIONAL RIGHTS UNDER THE FOURTH, FIFTH, AND SIXTH AMENDMENTS, IN THAT THE EVIDENCE WAS THE PRODUCT OF AN UNLAWFUL ARREST AND DETENTION BECAUSE THE DEPUTIES NEVER SUBMITTED OR SWORE TO A PROBABLE CAUSE AFFIDAVIT.
{¶5} Mr. Hartman asserts in his tenth assignment of error that the trial court erred in
failing to grant his motion to suppress. Because Mr. Hartman is precluded from raising this issue
at this point in time, we overrule his assignment of error.
{¶6} “The doctrine of law of the case ‘provides that the decision of a reviewing court
in a case remains the law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels.’” State v. Chapman, 190 Ohio
App.3d 528, 2010-Ohio-5924, ¶ 7 (9th Dist.), quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984).
“The doctrine is considered a rule of practice rather than a binding rule of substantive law and
will not be applied so as to achieve unjust results.” Hubbard ex rel. Creed v. Sauline, 74 Ohio
St.3d 402, 404 (1996). See also State v. Fischer, 128 OhioSt.3d 92, 2010-Ohio-6238, ¶ 35
(noting that the law-of-the-case doctrine is “rooted in principles of res judicata and issue
preclusion”). Thus, the doctrine has been applied to preclude a litigant “‘from attempting to rely
on arguments at a retrial [that] were fully pursued, or available to be pursued, in a first appeal.’”
Chapman at ¶ 7, quoting Hubbard, at 404–405. 4
{¶7} Mr. Hartman filed a motion to suppress prior to his first trial. A hearing was
conducted, and the trial court overruled his suppression motion. Mr. Hartman could have raised
the issue he now raises as a challenge to the trial court’s ruling on his motion to suppress in his
first appeal, but he did not do so. Because he did not raise the issue in his first appeal, this
argument is subject to issue preclusion pursuant to the law of the case doctrine. See Chapman at
¶ 8. Mr. Hartman’s tenth assignment of error is overruled.
ASSIGNMENT OF ERROR VII
THE TRIAL COURT COMMITTED REVERSIBLE DOUBLE JEOPARDY ERROR BY SUBJECTING HARTMAN TO A SECOND TRIAL, WHEN THE STATE, DURING THE FIRST TRIAL, FAILED TO PROVE THAT A FIREARM WAS OPERABLE AND SHOULD NOT HAVE BEEN GIVEN A SECOND CHANCE TO PROVE THE ESSENTIAL ELEMENT.
{¶8} Mr. Hartman asserts in his seventh assignment of error that the trial court violated
his right against double jeopardy by retrying him when his initial conviction was based upon
insufficient evidence. We do not agree. Mr. Hartman’s double jeopardy argument is properly
before us in this appeal. However, the premise underlying his argument (i.e. that his first trial
was based upon insufficient evidence) is subject to issue preclusion pursuant to the law of the
case doctrine, and accordingly, we overrule Mr. Hartman’s seventh assignment of error.
{¶9} “The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and Section 10, Article I of the Ohio Constitution protect criminal defendants
against multiple prosecutions for the same offense.” State v. Brewer, 121 Ohio St.3d 202, 2009-
Ohio-593, ¶ 14. Each clause “prohibits (1) a second prosecution for the same offense after
acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple
punishments for the same offense.” State v. Gustafson, 76 Ohio St.3d 425, 432 (1996). “While
the Double Jeopardy Clause protects a defendant from successive prosecutions for a single 5
offense, society also has an interest in affording the prosecutor one full and fair opportunity to
present his evidence to an impartial jury.” (Internal quotations and citation omitted.) Brewer at
¶ 16. Thus, “the United States Supreme Court has long recognized that double jeopardy will not
bar retrial of a defendant who successfully overturns his conviction on the basis of trial error,
through either direct appeal or collateral attack.” Id. However, the Double Jeopardy Clause does
bar “retrial when an appellate court reverses a conviction based solely upon the sufficiency of the
evidence * * * [because] such a reversal is the equivalent of a judgment of acquittal, which
affords the defendant absolute immunity from further prosecution for the same offense.” Id. at ¶
18.
{¶10} Notably, Mr. Hartman’s first conviction was not reversed based upon a finding of
insufficient evidence. Instead, Mr. Hartman’s conviction was reversed because of the admission
of inadmissible and prejudicial hearsay testimony. See Hartman, 2012-Ohio-745, at ¶ 29. Thus,
on its face, our decision does not appear to bar Mr. Hartman’s retrial. See Brewer at ¶ 16, 18.
Nonetheless, and despite the fact that Mr. Hartman did not assert in his first appeal that the
evidence was insufficient to sustain a guilty verdict, Mr. Hartman argued in the trial court, and in
the current appeal, that his right against double jeopardy was violated because insufficient
evidence was presented in his first trial. However, because Mr. Hartman could have challenged
the sufficiency of the evidence presented in the first trial in his first appeal, he is now barred
from making that argument. See Chapman, 190 Ohio App.3d 528, 2010-Ohio-5924, at ¶ 7.
Thus, because Mr. Hartman’s conviction was reversed for the admission of improper evidence,
double jeopardy does not bar his retrial. See Brewer at ¶ 16. Accordingly, we overrule Mr.
Hartman’s seventh assignment of error. 6
ASSIGNMENT OF ERROR VI
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED HARTMAN’S CONSTITUTIONAL RIGHTS AGAINST DOUBLE JEOPARDY BY SUBJECTING HARTMAN TO A SECOND TRIAL ON CHARGES FOR WHICH THE JURY AT THE FIRST TRIAL HAD ACQUITTED HIM.
{¶11} Mr. Hartman asserts in his sixth assignment of error that his second trial violated
his right against double jeopardy because he was subjected to trial for charges for which he was
previously acquitted. Specifically, Mr. Hartman maintains that, in the process of finding Mr.
Hartman guilty of aggravated burglary in the first trial, because the jury concluded (via a special
verdict form) that Mr. Hartman intended to commit disorderly conduct inside the Leighton
residence, and made no other findings, that it implicitly acquitted him of the other crimes the
State asserted that Mr. Hartman intended to commit in the residence. We do not agree.
{¶12} The only charge Mr. Hartman faced upon retrial was for aggravated burglary. Mr.
Hartman was never acquitted of that charge. Instead, a jury found Mr. Hartman guilty of
aggravated burglary following his first and second trials. Thus, there have been no charges that
Mr. Hartman was once acquitted of and then subsequently retried. Further, we explained above
why Mr. Hartman’s second trial for aggravated burglary did not violate the general principles
involving double jeopardy.
{¶13} Mr. Hartman attempts to analogize his situation to situations involving lesser
included offenses. In cases involving lesser included offenses, a conviction on a lesser-included
offense will normally operate as an acquittal of the greater offense, thereby barring a retrial of
the greater offense. See State v. Edmonson, 92 Ohio St.3d 393, 395 (2001), citing Brown v.
Ohio, 432 U.S. 161 (1977). Thus, in those situations, the defendant is implicitly acquitted of the
greater offense. We cannot say that Mr. Hartman’s situation is analogous. Mr. Hartman’s 7
situation does not involve lesser included offenses; instead, it involves alternate theories
concerning one element of the charged offense. We reiterate that the trier or fact did not
implicitly or explicitly acquit Mr. Hartman of the only offense for which he was indicted.
{¶14} Mr. Hartman points to the special verdict form from the first trial that listed five
offenses and asked the jury to “circle the offense(s), if any, you unanimously find the defendant
had the purpose to commit beyond a reasonable doubt[.]” The jury only circled disorderly
conduct. Thus, Mr. Hartman asserts that the jury “acquitted” him of the other listed offenses,
and the State could only retry Mr. Hartman for aggravated burglary under the theory that he
intended to commit disorderly conduct. At best, Mr. Hartman’s assertion is actually a claim that
he was implicitly “acquitted” of four means or theories underlying how one element of
aggravated burglary was satisfied. Aside from arguments in Mr. Hartman’s seventh assignment
of error, he does not generally assert that the State was barred from retrying Mr. Hartman for
aggravated burglary. Mr. Hartman has not provided this Court with any case law supporting the
idea that double jeopardy impacts how a State may retry a defendant for a crime that the State is
permitted to re-prosecute. The Double Jeopardy Clause bars “(1) a second prosecution for the
same offense after acquittal, (2) a second prosecution for the same offense after conviction, and
(3) multiple punishments for the same offense.” Gustafson, 76 Ohio St.3d at 432. Mr. Hartman
was only ever prosecuted for aggravated burglary, and we explained above why Mr. Hartman’s
second prosecution for aggravated burglary following a conviction for that same offense did not
violate double jeopardy. The jury was charged with the task of reaching a verdict concerning the
charge of aggravated burglary—its determination of the means by which it concluded the offense
was committed is not tantamount to reaching a separate “verdict” to which double jeopardy 8
attaches. Based upon Mr. Hartman’s argument and the law he has submitted in support of that
argument, we see no merit in it. Mr. Hartman’s sixth assignment of error is overruled.
ASSIGNMENT OF ERROR XIII
DESPITE PREVIOUS WARNINGS FROM THIS APPELLATE COURT IN HARTMAN I, THE STATE COMMITTED REVERSIBLE ERROR BY REPEATED ACTS OF PROSECUTORIAL MISCONDUCT THAT PERVADED THE ENTIRE TRIAL AND AGAIN DENIED HARTMAN A FAIR TRIAL, BY ASSERTING FACTS THE EVIDENCE CONTRADICTED, DENIGRATING HARTMAN AND HIS DEFENSE COUNSEL, AND ASSERTING PERSONAL OPINIONS.
{¶15} Mr. Hartman asserts in his thirteenth assignment of error that he was denied his
constitutionally protected right to a fair trial because of misconduct by the prosecutor. Viewing
the entirety of the prosecutors’ closing argument in the context of the entire trial, we agree.
{¶16} We note that in the prior appeal, Mr. Hartman alleged prosecutorial misconduct
during his first trial. See Hartman, 2012-Ohio-745, at ¶ 28. We stated that we had “addressed
similar issues in other recent opinions and are confident that the issues will not be repeated
should Mr. Hartman be retried.” Id.
{¶17} “When a defendant alleges that remarks by the prosecutor during closing
argument denied him a fair trial, we consider ‘whether the remarks were improper and, if so,
whether they prejudicially affected substantial rights of the defendant.’” State v. Cleland, 9th
Dist. Medina No. 09CA0070-M, 2011-Ohio-6786, ¶ 32, quoting State v. Smith, 14 Ohio St.3d
13, 14 (1984), citing United States v. Dorr, 636 F.2d 117 (5th Cir.1981).
Although the State is generally accorded a certain degree of latitude during closing argument, “[t]he prosecutor is a servant of the law whose interest in a prosecution is not merely to emerge victorious but to see that justice shall be done. It is a prosecutor's duty in closing arguments to avoid efforts to obtain a conviction by going beyond the evidence which is before the jury.” 9
State v. Labriola, 9th Dist. Medina No. 12CA0030-M, 2013-Ohio-2604, ¶ 26, quoting Smith at
13-14. “The prosecutor may draw reasonable inferences from the evidence presented at trial, and
may comment on those inferences during closing argument.” State v. Treesh, 90 Ohio St.3d 460,
466 (2001). However, “the prosecution must avoid insinuations and assertions which are
calculated to mislead the jury.” Smith at 14. Additionally, “[i]t is improper for an attorney to
express his personal belief or opinion as to the credibility of a witness or as to the guilt of the
accused.” Id. Moreover, “[i]t is improper [for the prosecution] to denigrate defense counsel in
the jury’s presence.” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 304. “[A] conviction
based solely on the inflammation of fears and passions, rather than proof of guilt, requires
reversal * * *.” State v. Williams, 23 Ohio St.3d 16, 20 (1986).
{¶18} The Ohio Supreme Court in Smith concluded that reversible error occurred in a
situation in which, during closing argument, “the assistant prosecutor referred to defense
evidence as ‘lies,’ ‘garbage,’ ‘garbage lies,’ ‘[a] smoke screen,’ and ‘a well conceived and well
rehearsed lie[,]’” and additionally “intimated that defense counsel had suborned perjury by
manufacturing, conceiving and fashioning lies to be presented in court.” Smith, 14 Ohio St.3d at
14. The Supreme Court noted that there was no evidence in the record to support the
accusations. Id.
{¶19} Unfortunately, we face a similar situation in the instant matter. While there are
several improper (and unobjected to) comments from the State during its initial closing argument
(asserting that the testimony of a defense witness was disingenuous and not credible and that
defense theories were preposterous and essentially garbage), the improper comments and
inferences continued to mount during the State’s rebuttal. The record reflects that the State’s
rebuttal is rife with argument that is disrespectful and disparaging of defense counsel, defense 10
witnesses, and defense theories of the case. The tone is clearly inflammatory. The State
repeatedly impugns the integrity of defense counsel, accusing her of (1) mischaracterizing the
evidence, (2) telling the jury “everything about the evidence that it was not[,]” and (3) seeking to
intentionally mislead the jury. Additionally, the State accuses defense witnesses and defense
counsel of lying. For example, when responding to the testimony that defense witnesses offered
about the condition of the Leightons’ door when they would visit, the State stated that “[p]eople
don’t leave their doors open, as much they want to put on ridiculous testimony and lies * * * to
say that door was wide open every time I entered their premises, absolutely, definitely.” The
State went on to assert that, if that were true, the defense witness who photographed much of the
scene would have taken a picture of the door being open, and because there was no picture,
“that’s how you know that’s a lie.” Further, when discussing Deputy Clinage’s recollection of
the unrecorded statement that Mr. Hartman made to police, the State asserted that because a
certain fact was not in the statement, that the fact was “something they made up later * * *.” The
State went on to comment, “And the difference in the State’s – what the State presented you and
what the defense presented you is our evidence actually makes sense and it fits, every single
thing, including his statement, even though, even though he lied in his statement and tried to say
he was going groundhog hunting.” Ultimately, it was the State’s repeated comments about lies
and mischaracterization of the evidence that led defense counsel to finally object during a
sidebar. Defense counsel correctly pointed out that “it is improper to say a witness lied and to
say an attorney is lying or misleading.” Nonetheless, the trial court, while expressing concern
that the prosecutor was possibly making references to matters that were not in evidence,
overruled the objection and the assistant prosecutor’s inappropriate comments continued.1 The
1 Defense counsel made no subsequent objections during closing argument. Given the 11
State went on to accuse Mrs. Hartman of attempting to mislead the jury and stated that “she is
not being honest about what happened that day[,]” and that she “tried to make you believe this
time frame that wasn’t true[.]” The State again asserted that Mr. Hartman’s statement to Deputy
Clinage that he was going over the Leighton’s to go groundhog hunting was “not true[]”
essentially because Mr. Leighton, the State’s witness, did not testify to that.
{¶20} Thus, the State repeatedly argued that witnesses were lying, that defense theories
were ridiculous, and that defense counsel was mischaracterizing the evidence. It is true that the
parties presented competing views of the evidence: the Leightons were clear that Mr. Hartman
did not have permission to be in their home and that they had a falling out with him; however,
the defense presented testimony that it was common practice for friends of the Leightons to
come over to their house unannounced and enter the home in the manner Mr. Hartman did. This
conflict in the evidence is to be resolved by the jury, not the prosecutor’s assessment that the
defense witnesses must be lying because their version of events is ridiculous in the eyes of the
State. We note that even the State’s concluding remarks are problematic: the State summarized
stating that “[n]othing, nothing they have presented to you makes any sense whatsoever with
regard to innocence. Nothing. We have presented you * * * nothing but evidence of guilt in this
case.” It is well established that “prosecutors may not invade the realm of the jury by, for
example, stating their personal beliefs regarding guilt and credibility, or alluding to matters
outside the record.” (Internal quotations and citations omitted.) Akron v. McGuire, 9th Dist.
Summit No. 24638, 2009–Ohio–4661, ¶ 13.
trial court’s response to her initial objections, it is possible she viewed the act of further objection as futile. To the extent that this Court should view any remaining comments under the plain error standard, we conclude that the totality of the improper comments constitutes plain error. 12
{¶21} Notwithstanding the numerous improper comments, we still must evaluate
whether the comments prejudicially affected Mr. Hartman’s substantial rights before we can
conclude there is reversible error. See Smith, 14 Ohio St.3d at 15. The State’s closing argument
is particularly troubling to this Court because the objection by defense counsel was overruled
and, thus, the jury received no admonishment concerning the numerous improper statements
made by the prosecution. Further, the closing arguments were the last thing the jury heard prior
to retiring to deliberate, as prior to closing argument the jury received its instructions.
{¶22} Additionally, we cannot say that the case against Mr. Hartman was
overwhelming. The State was charged with proving each element of aggravated burglary beyond
a reasonable doubt. The statute prohibiting aggravated burglary provides that
[n]o person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if * * * [t]he offender has a deadly weapon or dangerous ordnance on or about the offender’s person or under the offender’s control.
R.C. 2911.11(A)(2). Mr. Hartman vigorously challenged some of these elements and presented
six witnesses in his defense. With respect to the element of trespass, several of the defense
witnesses testified concerning the Leightons’ policy on visitors. Mr. Hartman’s brother testified
that Mr. Hartman was allowed over to the Leightons without calling ahead and could enter the
residence without calling ahead. Mr. Hartman’s brother-in-law testified that Mr. Leighton had
an “open-door policy[]” with respect to Mr. Hartman and himself visiting. Mr. Hartman’s
brother-in-law stated that if Mr. Leighton was home, the door “would always be open[,]” they
would not need to call ahead and that they “just walked into the mudroom, * * * open up that
door and say, hello we’re here.” Mr. Hartman’s sister testified that Mr. Hartman would go over 13
to the Leighton house without calling first and, in the past, Mr. Leighton had come over to her
parents’ house without calling and would just walk in. Mr. Hartman’s father corroborated that
portion of Mr. Hartman’s sister’s testimony and also testified that, on several occasions when
visiting the Leighton property, he found the door open. It was undisputed that Mr. Hartman and
the Leightons were friends for over 15 years. Thus, the State’s evidence on this element was far
from overwhelming.
{¶23} There was also conflicting evidence concerning whether Mr. Hartman employed
any force, stealth or deception upon entering the residence. There was testimony from Deputy
Clinage that Mr. Hartman had told him that the Leighton’s door was partially open and
additional testimony from Mrs. Leighton that her husband came in the house after she did and
she did not know whether he closed the door. Accordingly, based upon the evidence, a trier of
fact could have concluded that the door was open, and, thus, at the very least, questioned whether
any force would have been used in initially entering the residence. Additionally, there was
testimony that suggests that Mr. Hartman announced himself upon entering the residence and
that the Leightons saw Mr. Hartman pull up into their driveway on an ATV, which would seem
to go against a theory involving stealth.
{¶24} Moreover, there was conflicting evidence concerning whether Mr. Hartman
intended to commit a criminal offense inside the Leighton home. The State’s theory was that
after the Hartmans’ argument, Mr. Hartman was still angry and followed his wife to the
Leightons’ house with a gun. The defense presented several witnesses who testified it was
extremely common for Mr. Hartman to go over to the Leightons with a gun and that it was
common in general for people in the community to come over to each other’s homes with
weapons, due in large part to the amount of hunting that takes place in the area. In fact, Mr. 14
Hartman told Deputy Clinage that he had gone over to the Leightons’ house to go groundhog
hunting. Much of the evidence focused upon demonstrating that Mrs. Hartman and the children
were afraid of Mr. Hartman and that that fear impacted the decision-making of Mr. and Mrs.
Leighton. However, just because Mrs. Hartman and the children were concerned about Mr.
Hartman’s presence does not necessarily require the conclusion that Mr. Hartman intended to
commit any crime inside the Leighton home. The trier of fact could reasonably conclude that
testimony regarding Mr. Hartman’s behavior while at the residence does not present a typical
picture of a person intending to commit a crime inside someone’s house. Upon request, Mr.
Hartman gave his weapon to Mr. Leighton and went outside with him. Mr. Hartman and Mr.
Leighton talked for some period of time, and Mr. Hartman was allowed to go back inside and get
a beer. Moreover, there is no evidence that the police observed Mr. Hartman doing anything
criminal while they were watching Mr. Hartman and Mr. Leighton talk outside the residence.
Finally, we note that many of the State’s improper comments go directly to aspects of the
defense case and elements that were contested at trial. Given the conflicting evidence and
theories of the case, we cannot say that the State’s improper comments with respect to defense
counsel and the credibility of witnesses did not impact the outcome of this trial.
{¶25} In light of the foregoing, we conclude that the prosecutor’s improper remarks
prejudicially affected the substantial rights of Mr. Hartman. Accordingly, we sustain Mr.
Hartman’s thirteenth assignment of error.
ASSIGNMENT OF ERROR XVII
THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE; THE TRIAL COURT ERRED BY FAILING TO GRANT HARTMAN’S MOTIONS FOR JUDGMENT OF ACQUITTAL AND BY FAILING TO GRANT HARTMAN’S MOTION FOR A NEW TRIAL. 15
{¶26} Mr. Hartman asserts in his seventeenth assignment of error that the trial court
erred in failing to grant his motion for judgment of acquittal and for a new trial and that the
verdict is against the manifest weight of the evidence. At this time, we decline to address Mr.
Hartman’s argument asserting that the verdict is against the manifest weight of the evidence and
his argument pertaining to his motion for a new trial because our resolution of Mr. Hartman’s
thirteenth assignment of error has rendered those arguments moot. See App.R. 12(A)(1)(c).
However, because Mr. Hartman’s argument concerning the denial of his motion for judgment of
acquittal challenges the sufficiency of the evidence, it is not moot. See Brewer, 121 Ohio St.3d
202, 2009-Ohio-593, ¶ 18.
{¶27} “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by
assessing the sufficiency of the State’s evidence.” State v. Slevin, 9th Dist. Summit No. 25956,
2012–Ohio–2043, ¶ 15. “Whether a conviction is supported by sufficient evidence is a question
of law that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009–
Ohio–6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. 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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶28} Mr. Hartman was convicted of committing aggravated burglary in violation of
R.C. 2911.11(A)(2). R.C. 2911.11(A)(2) states that
[n]o person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately 16
occupied portion of the structure any criminal offense, if * * * [t]he offender has a deadly weapon or dangerous ordnance on or about the offender’s person or under the offender’s control.
A criminal trespass occurs when one, “without privilege to do so, * * * [k]nowingly enter[s] or
remain[s] on the land or premises of another[.]” R.C. 2911.21(A)(1). “‘Privilege’ means an
immunity, license, or right conferred by law, bestowed by express or implied grant, arising out of
status, position, office, or relationship, or growing out of necessity.” R.C. 2901.01(A)(12). The
privilege to enter or remain on the land or premises may be revoked. State v. Brown, 9th Dist.
Wayne No. 11CA0054, 2013-Ohio-2945, ¶ 6. R.C. 2901.01(A)(1) defines force as “any
violence, compulsion, or constraint physically exerted by any means upon or against a person or
thing.” “‘Force’ is satisfied by ‘any effort physically exerted.’” Brown at ¶ 6, quoting State v.
Snyder, 192 Ohio App.3d 55, 2011-Ohio-175, ¶ 18-19 (9th Dist.). On appeal, Mr. Hartman only
asserts that the State failed to (1) rebut evidence presented by the defense that Mr. Hartman’s
entry was privileged and (2) present evidence that the privilege was revoked.
{¶29} There is no dispute that the State had to establish that Mr. Hartman trespassed in
the Leighton home, which meant that it had to establish that Mr. Hartman entered or remained in
the residence without privilege to do so. See R.C. 2911.11(A)(2) and 2911.21(A)(1). While the
State’s evidence is not overwhelming as explained above, we conclude that sufficient evidence
was presented in the State’s case, if believed, whereby a jury could conclude beyond a
reasonable doubt that Mr. Hartman trespassed in the Leighton residence. Both Mr. and Mrs.
Leighton testified that Mr. Hartman did not have permission to enter their home that day. Mrs.
Leighton indicated that Mr. Hartman was not invited over that day and that they were not
expecting him either. Mr. Leighton testified that neither he nor his wife was getting along with
Mr. Hartman in May 2009. When asked whether Mrs. Hartman and her husband were still 17
friends with Mr. Hartman at that time, she stated, “Not really.” Moreover, she agreed that the
friendship had become estranged. Both Mr. and Mrs. Leighton testified that they had not seen
Mr. Hartman in at least a few months. Further, Deputy Doug Clinage, who responded to the
scene on May 27, 2009, and later interviewed Mr. Hartman, testified that Mr. Hartman told him
that, when Mr. Hartman arrived at the Leighton residence, he “observed the main door on the
house, saw that the house was partially opened[,] * * * knocked on it, nobody answered. So * *
* he entered the residence.”
{¶30} Taken together, and viewing it in the light most favorable to the prosecution, a
reasonable trier of fact could conclude beyond a reasonable doubt that Mr. Hartman trespassed in
the Leighton residence in that he entered the residence without privilege to do so. We recognize
that Mr. Hartman’s act of knocking on the door and then entering could be consistent with
conduct of a close friend who has privilege to enter a home. However, in viewing Mr.
Hartman’s action of knocking on the door most favorably to the State, it could reasonably be
inferred that Mr. Hartman was aware that he did not have permission to just walk into the
Leighton residence. Additionally, there was some evidence, when viewed in the light most
favorable to the State, from which the jury might have concluded that Mr. Hartman remained in
the residence without privilege to do so. Mr. Leighton testified that, “[e]very time [Mr.
Hartman] went into my home, he wanted to talk to his wife. I followed him, stayed with him.
She would not come out of the closet. I told him it’s time for him to leave; and, finally, after
about two or three times, he finally got on his bike and left.” Accordingly, we conclude that the
State presented sufficient evidence to demonstrate the element of trespass.
{¶31} To the extent Mr. Hartman asserts that the defense presented evidence that Mr.
Hartman’s entry was privileged and that the privilege was not revoked, given that there was 18
evidence presented by the State that there was a trespass, that defense evidence would go to a
challenge to the weight of the evidence, and not the sufficiency of the evidence. Further, as this
Court is reviewing Mr. Hartman’s Crim.R. 29 motion, the only evidence properly before us for
consideration is the evidence presented in the State’s case. See Slevin, 2012–Ohio–2043, at ¶ 15.
{¶32} Based upon Mr. Hartman’s limited argument, we overrule his seventeenth
assignment of error.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ORDERING MELISSA HARTMAN TO TESTIFY IN VIOLATION OF THE SPOUSAL COMPETENCY PRIVILEGE, IN FAILING TO QUASH HER SUBPOENA, AND IN FAILING TO ENFORCE THE PROTECTIVE ORDER.
ASSIGNMENT OF ERROR II
THE COURT COMMITTED REVERSIBLE ERROR BY FINDING THAT MELISSA HARTMAN WAS A “VICTIM” OF AN ALLEGED AGGRAVATED BURGLARY OF ANOTHER’S RESIDENCE, WHICH IS A CRIME AGAINST PROPERTY, NOT A CRIME AGAINST A PERSON.
ASSIGNMENT OF ERROR III
THE COURT COMMITTED REVERSIBLE ERROR IN HOLDING THAT THE “LAW OF THE CASE” DICTATED THAT THE COURT FIND MELISSA HARTMAN HAD WAIVED THE SPOUSAL COMPETENCY PRIVILEGE, WHEN THE TRANSCRIPTS FROM THE FIRST TRIAL WERE UNDER INVESTIGATION, WHEN THE INITIAL TRIAL COURT HAD NOT PROPERLY ADVISED MELISSA HARTMAN REGARDING THE SPOUSAL COMPETENCY PRIVILEGE, AND WHEN THE RECORDS OF BOTH TRIALS CONFIRM HER ASSERTIONS, NOT WAIVER OF HER PRIVILEGE.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING HIGHLY PREJUDICIAL HEARSAY REGARDING A PURPORTED REMARK OF A SIX-YEAR OLD, WHO WAS NOT COMPETENT TO TESTIFY AND WAS NOT A TRIAL WITNESS. 19
ASSIGNMENT OF ERROR V
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING HARTMAN’S MOTION TO CONTINUE THE TRIAL, FORCING HIM TO TRIAL WITHOUT RECEIVING REQUESTED AND NECESSARY DISCOVERY AND BEFORE RESOLVING ISSUES CONCERNING THE TAMPERING WITH THE TRANSCRIPTS OF HARTMAN’S FIRST TRIAL AND THEIR IMPACT ON HIS SECOND TRIAL.
ASSIGNMENT OF ERROR VIII
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF CRIMINAL TRESPASS, WHICH THE EVIDENCE SUPPORTED[.]
ASSIGNMENT OF ERROR IX
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO REQUIRE A UNANIMOUS VERDICT ON THE UNDERLYING INTENDED OFFENSE SUPPORTING THE AGGRAVATED BURGLARY CHARGE, THEREBY ALLOWING CONVICTION ON PREVIOUSLY ACQUITTED ELEMENTS.
ASSIGNMENT OF ERROR XI
THE COURT COMMITTED REVERSIBLE ERROR IN PERMITTING THE STATE TO MAKE REPEATED REFERENCES TO HIGHLY PREJUDICIAL AND FALSE UNCHARGED ACTS, IN VIOLATION OF EVIDENCE RULE 404(B).
ASSIGNMENT OF ERROR XII
THE COURT COMMITTED REVERSIBLE ERROR IN PERMITTING THE STATE TO CROSS-EXAMINE A FACT WITNESS REGARDING UNPROVEN AND UNCHARGED ACTS, IN VIOLATION OF EVIDENCE RULES 404(A) AND 403, AND BY DENYING HARTMAN’S REQUESTED JURY INSTRUCTIONS.
ASSIGNMENT OF ERROR XIV
THE TRIAL COURT ERRED BY PERMITTING KIM LEIGHTON TO TESTIFY TO MATTERS FOR WHICH SHE HAD NO PERSONAL KNOWLEDGE, INCLUDING BY PERMITTING THE JURY TO HEAR THE RECORDING OF KIM LEIGHTON’S 911 CALL, CONTAINING ADMITTEDLY FALSE “INFORMATION” WITHOUT PROPER LIMITING INSTRUCTIONS, AND WITHOUT CONDUCTING A BALANCING TEST, 20
ALL IN VIOLATION OF THE HEARSAY RULE AND OVER HARTMAN’S OBJECTIONS.
ASSIGNMENT OF ERROR XV
THE TRIAL COURT ERRED BY REFUSING TO INSTRUCT THE JURY THAT HARTMAN WAS ON TRIAL ONLY FOR ONE COUNT OF AGGRAVATED BURGLARY AND NOT ON TRIAL FOR ANY OTHER PURPORTED OFFENSE.
ASSIGNMENT OF ERROR XVI
THE TRIAL COURT ERRED BY FORCING HARTMAN TO TRIAL BEFORE THE PREVIOUS TRIAL’S TRANSCRIPTS HAD BEEN CORRECTED, THEREBY DEPRIVING HARTMAN OF HIS SIXTH AMENDMENT RIGHT TO CROSS-EXAMINE WITNESSES AGAINST HIM AND HIS RIGHT APPLICATION OF ACCURATE “LAW OF THE CASE.”
ASSIGNMENT OF ERROR XVIII
THE TRIAL COURT ERRED BY IMPOSING A SENTENCE OF FIVE YEARS ON A FIRST FELONY CONVICTION, CONTRARY TO THE OHIO REVISED CODE, WITHOUT ANY FINDINGS WHY THE THREE YEARS HARTMAN HAD ALREADY SERVED WAS NOT SUFFICIENT, AND WHERE THE EVIDENCE SHOWED CONDUCT FAR LESS SERIOUS, NOT MORE SERIOUS, THAN THE AVERAGE CONDUCT FOR THE CHARGED OFFENSE.
{¶33} In light of our resolution of Mr. Hartman’s other assignments of error, we
conclude his remaining assignments of error have been rendered moot, and we decline to address
them at this time. See App.R. 12(A)(1)(c). Should the State attempt to retry Mr. Hartman, this
decision should not be read as barring Mr. Hartman from raising any arguments related to issues
that this Court has declined to address in this appeal due to mootness. Mr. Hartman’s first,
second, third, fourth, fifth, eighth, ninth, eleventh, twelfth, fourteenth, fifteenth, sixteenth, and
eighteenth assignments of error are overruled as moot at this time.
III.
{¶34} In light of the foregoing, we sustain Mr. Hartman’s thirteenth assignment of error
and remand the matter to the Medina County Court of Common Pleas. Mr. Hartman’s remaining 21
assignments of error have either been overruled on the merits or have been rendered moot by the
resolution of other assignments of error and will not be addressed at this time.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
EVE V. BELFANCE FOR THE COURT
HENSAL, J. CONCURS. 22
MOORE, P. J. CONCURRING.
{¶35} I join the majority in its disposition of all of the assignments of error except for
the thirteenth. I concur in the judgment that the prosecutor engaged in misconduct, but I feel
compelled to write separately to address the over-arching conduct of the trial. The thirteenth
assignment of error refers to “repeated acts of prosecutorial misconduct that pervaded the entire
trial[.]” (Emphasis added.) A reading of the entire transcript reveals that prosecutorial
misconduct did not pervade the entire trial. There is no question that the trial was contentious
from beginning to end. However, the trial judge stressed the need for counsel to remain focused
on the evidence and not to devolve into petty disagreements that would distract the jury. For the
most part, during the trial, counsel successfully struggled to do so.
{¶36} A total of thirteen witnesses were examined and cross-examined over a period of
several days, producing in excess of one thousand pages of transcript. It was not until closing
argument in general, and the State’s rebuttal in particular, that the wheels came off for the
prosecution. The rebuttal prosecutor impugned the motives of defense counsel, stated personal
opinions about facts in the case, and repeatedly called defense witnesses liars. Although the
prosecutor’s improper comments encompassed only approximately twenty pages of the total
transcript, they went unchallenged by the court, and no curative instructions were given. So,
while the misconduct did not pervade the entire trial, the statements went so far beyond the
bounds of professional conduct in a courtroom, that I find it impossible to say that in a close case
such as this one, a jury would have found the defendant guilty even without the improper
comments. See State v. Smith, 14 Ohio St.3d 13, 14 (1984), State v. Williams, 79 Ohio St.3d 1,
12 (1997), State v. DePew, 38 Ohio St.3d 275, 287 (1988), and State v. Keenan, 66 Ohio St.3d
402, 405 (1993). See also State v. Treesh, 90 Ohio St.3d 460, 464 (2001) (“An improper 23
comment does not affect a substantial right of the accused if it is clear beyond a reasonable doubt
that the jury would have found the defendant guilty even without the improper comments.”)
{¶37} The unfortunate result is that this case will be remanded once again to the trial
court where it is likely that yet more resources will be expended for yet another retrial. Whether
that in fact happens is beyond our purview. However, where this Court attempted in its last
opinion to gently suggest that the State not repeat its indiscretions, I will say it bluntly: the
prosecuting attorney(s) are much too personally invested in this case to be objective. Hopefully,
reassignments for any retrial will be considered.
APPEARANCES:
MARILYN A. CRAMER, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting Attorney, for Appellee.