[Cite as State v. Hatter, 2014-Ohio-1910.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-130326 C-130331 Plaintiff-Appellant, : C-130332 C-130353 vs. : TRIAL NO. B-1204280
JASON HATTER, : O P I N I O N.
Defendant-Appellee. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: May 7, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
The Farrish Law Firm, and Michaela M. Stagnaro, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Judge.
{¶1} Plaintiff-appellant, the state of Ohio, appeals from the judgment of
the trial court granting the motion to suppress evidence filed by defendant-appellee
Jason Hatter. We find merit in the state’s sole assignment of error, and we reverse
the trial court’s judgment.
{¶2} Hatter was charged with the murder of his girlfriend, Annette
Wallace, under R.C. 2903.02(B). Subsequently, he filed a motion in limine in which
he asked the trial court to prohibit the state from presenting testimony from three
witnesses about statements allegedly made by Wallace concerning prior abuse by
Hatter and text messages from Wallace’s phone. He attached to the motion bulleted
summaries of what the witnesses’ testimony would allegedly be. After a hearing on
the motion, Hatter filed an amended motion in limine in which he argued that the
various statements were hearsay not subject to any exception and that they also
constituted inadmissible “other acts” testimony under Evid.R. 404.
{¶3} The trial court journalized an entry granting Hatter’s motion in part
and denying it in part. It found that images and messages recovered from both
Wallace’s and Hatter’s cell phones were admissible, and denied the motion as it
related to that evidence.
{¶4} But the court also stated that “statements allegedly made by the
decedent to her friends, as attached hereto, are not admissible. Those statements are
hearsay and are not admissible under the exceptions listed in Evid.R. 803 and 804.”
The court further stated: “Neither are those statements admissible as other acts
evidence under exceptions listed in Evid.R. 404(B) and 2945.59.” Finally, it
precluded the state from introducing any evidence or testimony “relating to the
2 OHIO FIRST DISTRICT COURT OF APPEALS
attached statements in any way in the trial of the above captioned case." The court
attached to the entry the same bulleted summary of the witnesses’ testimony that
Hatter had attached to his motion.
{¶5} The following day, the trial court recast Hatter’s motion in limine as a
motion to suppress evidence and journalized an entry entitled “Entry Granting
Defendant’s Motion in Limine Suppressing Certain Statements” that essentially
stated the same thing as the court’s entry the previous day. This appeal followed.
{¶6} Before we can reach the merits of the state’s assignment of error, we
must determine if the state could properly appeal the trial court’s judgment. As a
general rule, rulings on motions in limine are interlocutory and are not final,
appealable orders. State v. Grubb, 28 Ohio St.3d 199, 201-202, 503 N.E.2d 142
(1986); State v. Jackson, 92 Ohio App.3d 467, 469, 636 N.E.2d 332 (1st Dist.1993).
Although Hatter had filed a document entitled “motion in limine,” the trial court had
recast it as a motion to suppress.
{¶7} R.C. 2945.67 states that a prosecuting attorney may appeal as a
matter of right “any decision of a trial court in a criminal case * * * which decision
grants * * * a motion to suppress evidence[.]” Crim.R. 12(K) (formerly Crim.R. 12(J))
“supplements and formalizes the statutory procedure.” State v. Davidson, 17 Ohio
St.3d 132, 134, 477 N.E.2d 1141 (1985). It provides that when the state takes an
appeal from an order suppressing or excluding evidence, the prosecuting attorney
must certify that (1) the appeal is not taken for the purpose of delay, and (2) the
ruling on the motion or motions has rendered the state’s proof with respect to the
pending charge so weak in its entirety that any reasonable possibility of effective
prosecution has been destroyed.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} In discussing the state’s appeal of a motion to suppress, the Ohio
Supreme Court has stated:
Any motion, however labeled, which, if granted, restricts the state in
the presentation of certain evidence and, thereby, renders the state’s
proof with respect to the pending charge so weak in its entirety that
any reasonable probability of effective prosecution has been destroyed,
is, in effect, a motion to suppress. The granting of such a motion is a
final order and may be appealed pursuant to R.C. 2945.67 and Crim.R.
12(J).
Davidson at syllabus.
{¶9} The granting of Hatter’s pretrial motion excluding the witnesses’
testimony in its entirety severely weakened the state’s case so that any reasonable
possibility of effective prosecution was destroyed. Therefore, the trial court was
correct in recasting the motion as one requesting the suppression of evidence. The
granting of the motion was a final order from which the state was permitted to
appeal under R.C. 2945.67, as long as it followed the provisions of Crim.R. 12(K).
See State v. Bassham, 94 Ohio St.3d 269, 271-272, 762 N.E.2d 963 (2002); State v.
Malinovsky, 60 Ohio St.3d 20, 22-23, 573 N.E.2d 22 (1991); Jackson, 92 Ohio
App.3d at 469, 636 N.E.2d 332. The state filed the proper certification within seven
days as required by Crim.R. 12(K). Therefore, this court has jurisdiction to entertain
the appeal.
{¶10} The trial court’s ruling in this case is premature and far too broad.
The trial court was presented with a bulleted summary of each witness’s testimony
taken from police interviews. The trial court did not actually listen to the interviews.
Nevertheless, the court excluded all of the three witnesses’ testimony. While the
4 OHIO FIRST DISTRICT COURT OF APPEALS
court’s order was somewhat ambiguous, it stated that the state was precluded from
“introducing any evidence or testimony related to the attached statements in any way
in the trial of the above captioned case.”
{¶11} While some of the witnesses’ testimony may constitute inadmissible
hearsay, it is difficult to tell if that is the case without hearing the statements in
context. Depending on the foundation laid for their testimony, their statements may
well fall within exceptions for excited utterances under Evid.R. 803(2), statements of
the declarant’s then existing state of mind under Evid.R. 803(3), or another hearsay
exception. See State v. Goshade, 1st Dist. Hamilton No. C-120586, 2013-Ohio-4457,
¶ 8-9; State v. Simpson, 1st Dist. Hamilton No.
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[Cite as State v. Hatter, 2014-Ohio-1910.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-130326 C-130331 Plaintiff-Appellant, : C-130332 C-130353 vs. : TRIAL NO. B-1204280
JASON HATTER, : O P I N I O N.
Defendant-Appellee. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: May 7, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
The Farrish Law Firm, and Michaela M. Stagnaro, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Judge.
{¶1} Plaintiff-appellant, the state of Ohio, appeals from the judgment of
the trial court granting the motion to suppress evidence filed by defendant-appellee
Jason Hatter. We find merit in the state’s sole assignment of error, and we reverse
the trial court’s judgment.
{¶2} Hatter was charged with the murder of his girlfriend, Annette
Wallace, under R.C. 2903.02(B). Subsequently, he filed a motion in limine in which
he asked the trial court to prohibit the state from presenting testimony from three
witnesses about statements allegedly made by Wallace concerning prior abuse by
Hatter and text messages from Wallace’s phone. He attached to the motion bulleted
summaries of what the witnesses’ testimony would allegedly be. After a hearing on
the motion, Hatter filed an amended motion in limine in which he argued that the
various statements were hearsay not subject to any exception and that they also
constituted inadmissible “other acts” testimony under Evid.R. 404.
{¶3} The trial court journalized an entry granting Hatter’s motion in part
and denying it in part. It found that images and messages recovered from both
Wallace’s and Hatter’s cell phones were admissible, and denied the motion as it
related to that evidence.
{¶4} But the court also stated that “statements allegedly made by the
decedent to her friends, as attached hereto, are not admissible. Those statements are
hearsay and are not admissible under the exceptions listed in Evid.R. 803 and 804.”
The court further stated: “Neither are those statements admissible as other acts
evidence under exceptions listed in Evid.R. 404(B) and 2945.59.” Finally, it
precluded the state from introducing any evidence or testimony “relating to the
2 OHIO FIRST DISTRICT COURT OF APPEALS
attached statements in any way in the trial of the above captioned case." The court
attached to the entry the same bulleted summary of the witnesses’ testimony that
Hatter had attached to his motion.
{¶5} The following day, the trial court recast Hatter’s motion in limine as a
motion to suppress evidence and journalized an entry entitled “Entry Granting
Defendant’s Motion in Limine Suppressing Certain Statements” that essentially
stated the same thing as the court’s entry the previous day. This appeal followed.
{¶6} Before we can reach the merits of the state’s assignment of error, we
must determine if the state could properly appeal the trial court’s judgment. As a
general rule, rulings on motions in limine are interlocutory and are not final,
appealable orders. State v. Grubb, 28 Ohio St.3d 199, 201-202, 503 N.E.2d 142
(1986); State v. Jackson, 92 Ohio App.3d 467, 469, 636 N.E.2d 332 (1st Dist.1993).
Although Hatter had filed a document entitled “motion in limine,” the trial court had
recast it as a motion to suppress.
{¶7} R.C. 2945.67 states that a prosecuting attorney may appeal as a
matter of right “any decision of a trial court in a criminal case * * * which decision
grants * * * a motion to suppress evidence[.]” Crim.R. 12(K) (formerly Crim.R. 12(J))
“supplements and formalizes the statutory procedure.” State v. Davidson, 17 Ohio
St.3d 132, 134, 477 N.E.2d 1141 (1985). It provides that when the state takes an
appeal from an order suppressing or excluding evidence, the prosecuting attorney
must certify that (1) the appeal is not taken for the purpose of delay, and (2) the
ruling on the motion or motions has rendered the state’s proof with respect to the
pending charge so weak in its entirety that any reasonable possibility of effective
prosecution has been destroyed.
3 OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} In discussing the state’s appeal of a motion to suppress, the Ohio
Supreme Court has stated:
Any motion, however labeled, which, if granted, restricts the state in
the presentation of certain evidence and, thereby, renders the state’s
proof with respect to the pending charge so weak in its entirety that
any reasonable probability of effective prosecution has been destroyed,
is, in effect, a motion to suppress. The granting of such a motion is a
final order and may be appealed pursuant to R.C. 2945.67 and Crim.R.
12(J).
Davidson at syllabus.
{¶9} The granting of Hatter’s pretrial motion excluding the witnesses’
testimony in its entirety severely weakened the state’s case so that any reasonable
possibility of effective prosecution was destroyed. Therefore, the trial court was
correct in recasting the motion as one requesting the suppression of evidence. The
granting of the motion was a final order from which the state was permitted to
appeal under R.C. 2945.67, as long as it followed the provisions of Crim.R. 12(K).
See State v. Bassham, 94 Ohio St.3d 269, 271-272, 762 N.E.2d 963 (2002); State v.
Malinovsky, 60 Ohio St.3d 20, 22-23, 573 N.E.2d 22 (1991); Jackson, 92 Ohio
App.3d at 469, 636 N.E.2d 332. The state filed the proper certification within seven
days as required by Crim.R. 12(K). Therefore, this court has jurisdiction to entertain
the appeal.
{¶10} The trial court’s ruling in this case is premature and far too broad.
The trial court was presented with a bulleted summary of each witness’s testimony
taken from police interviews. The trial court did not actually listen to the interviews.
Nevertheless, the court excluded all of the three witnesses’ testimony. While the
4 OHIO FIRST DISTRICT COURT OF APPEALS
court’s order was somewhat ambiguous, it stated that the state was precluded from
“introducing any evidence or testimony related to the attached statements in any way
in the trial of the above captioned case.”
{¶11} While some of the witnesses’ testimony may constitute inadmissible
hearsay, it is difficult to tell if that is the case without hearing the statements in
context. Depending on the foundation laid for their testimony, their statements may
well fall within exceptions for excited utterances under Evid.R. 803(2), statements of
the declarant’s then existing state of mind under Evid.R. 803(3), or another hearsay
exception. See State v. Goshade, 1st Dist. Hamilton No. C-120586, 2013-Ohio-4457,
¶ 8-9; State v. Simpson, 1st Dist. Hamilton No. C-100789, 2011-Ohio-4578, ¶ 24-25;
State v. Sutorius, 122 Ohio App.3d 1, 7-8, 701 N.E.2d 1 (1st Dist.1997).
{¶12} Further, some of the witnesses’ testimony may involve inadmissible
evidence of other bad acts presented to show that the defendant acted in conformity
with his bad character. See Evid.R. 404(B); State v. Thomas, 1st Dist. Hamilton No.
C-120561, 2013-Ohio-5386, ¶ 20. But Evid.R. 404(B) provides that other bad acts
are admissible to show “motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or absence.” State v. Shedrick, 61 Ohio St.3d 331,
337, 574 N.E.2d 1065 (1991); Thomas at ¶ 20. The other acts need not be similar to
the crime at issue. If the other acts tend to show by substantial proof any of the
items enumerated in Evid.R. 404(B), evidence of the other acts is admissible. State
v. Coleman, 45 Ohio St.3d 298, 299-300, 544 N.E.2d 622 (1989); Thomas at ¶ 21.
Some of the testimony may fall within one of these exceptions, which cannot be
determined while looking at a summary of the witnesses’ testimony outside of its
context.
5 OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} Consequently, we hold that the trial court erred in granting the
motion to suppress and in excluding the testimony of the three witnesses based on
the summaries. We, therefore, sustain the state’s assignment of error. We reverse
the trial court’s judgment and remand the matter for the trial court to properly
determine the admissibility of the witnesses’ testimony.
Judgment reversed and cause remanded.
C UNNINGHAM , P.J., and H ILDEBRANDT , J., concur.
Please note: The court has recorded its own entry this date.