State v. Hoskinson

2022 Ohio 1203

• Court: Ohio Court of Appeals
• Decided: April 11, 2022
• Docket: 15-21-10
• Status: Published

Opinion

[Cite as State v. Hoskinson, 2022-Ohio-1203.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY

STATE OF OHIO, CASE NO. 15-21-10 PLAINTIFF-APPELLEE,

v.

ANTHONY HOSKINSON, OPINION

DEFENDANT-APPELLANT.

Appeal from Van Wert County Common Pleas Court Trial Court No. CR-20-02-042

Judgment Affirmed

Date of Decision: April 11, 2022

APPEARANCES:

Gene P. Murray for Appellant

Kelly J. Rauch for Appellee Case No. 15-21-10

WILLAMOWSKI, J.

{¶1} Defendant-appellant Anthony J. Hoskinson (“Hoskinson”) appeals the

judgment of the Van Wert County Court of Common Pleas, alleging that the trial

court erred by admitting the testimony of one of the State’s experts and by admitting

the State’s expert report. For the reasons set forth below, the judgment of the trial

court is affirmed.

Facts and Procedural History

{¶2} On the evening of February 14, 2020, Michael Semer (“Semer”) was

working at Brookside Convenience Drive Thru (“Brookside”) when he was

approached by a man wearing a flannel jacket, white tennis shoes, a black face

covering, and a hat. Tr. 200-201, 202, 206. Semer testified that the face covering

“looked * * * made out of a stocking hat with the eyes just ripped out.” Tr. 206.

He testified that this man had a “blue razor blade knife” and said “to give him the

money” from the register. Tr. 202, 203, 207. Ex. 56. Semer then “gave him the

money and [the man] * * * walked out the door.” Tr. 209. After the man left, Semer

called the police. Tr. 209.

{¶3} When the police arrived, Semer gave them a description of the man’s

height, weight, voice, and apparel. Tr. 206. Ex. 56. He indicated to the police that

the man “exited out the south side of the building * * *.” Tr. 279. Semer also

showed the police the video footage from the Brookside’s security cameras. Tr.

204, 210. In the footage, the police noticed that the man had a tattoo on his neck

-2- Case No. 15-21-10

and that his hat had lettering on it. Tr. 226, 237. Ex. 48, 49, 53. Not all of the

lettering was decipherable in the footage, but the police were able to determine that

the first portion of the lettering on the hat said “Wells.” Tr. 226. Ex. 53. Further,

some other security camera footage also showed that a purple PT Cruiser appeared

near the entrance of the store “within a minute” of “the suspect enter[ing] the

building * * *.” Tr. 232-233.

{¶4} Deputy James Roehm (“Deputy Roehm”) of the Van Wert Sheriff’s

Office came to the store with a canine to help locate the suspect. Tr. 278. The

canine led Deputy Roehm to a piece of black fabric on the ground. Tr. 238, 284.

On closer inspection, this fabric “was determined to be a cut off or torn off T shirt

sleeve” that was “black in color.” Tr. 238. Ex. 14. The police believed that the

suspect may have used this fabric as a mask during the robbery. Tr. 238.

{¶5} The police then located a purple PT Cruiser in front of a trailer that was

in a mobile home lot behind Brookside. Ex. 45. Tr. 239, 287. This trailer was a

short distance from where the black fabric was discovered on the ground. Tr. 238-

239. Ex. 45. When a person began driving the PT Cruiser away from trailer, the

police made contact with the driver. Tr. 288. Shortly thereafter, Hoskinson came

to the door of the trailer. Tr. 243, 291. He fit the description that Semer had

provided to the police of the suspect in the robbery. Tr. 243. Ex. 56.

{¶6} Deputy Roehm was allowed to enter the trailer. Tr. 246, 294. As he

walked around the trailer, he discovered a “rolled up flannel shirt” and white shoes

-3- Case No. 15-21-10

that appeared to match the apparel worn by the suspect in the Brookside security

camera footage. Tr. 294-295. Ex. 25, 26, 46. At this point, Hoskinson was detained

by the police. Tr. 245-246, 295-296. After obtaining a search warrant, the police

located a knife that matched Semer’s description in the trailer. Tr. 250. Ex. 23-24,

56. They also found a hat with the words “Wells Brothers” on it. Tr. 252. Ex. 27-

28, 56. The police also found a “ripped up black cloth that was on the passenger

seat” of the PT Cruiser. Tr. 253, 297. Ex. 29-30.

{¶7} On March 5, 2020, Hoskinson was indicted on one count of aggravated

robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree; one count

of aggravated robbery in violation of R.C. 2911.01(B)(1), a felony of the first

degree; and one count of attempted escape in violation of R.C. 2921.34(A)(1), a

felony of the third degree. Doc. 5. The indictment also included repeat violent

offender specifications pursuant to R.C. 2941.149(A). Doc. 5.

{¶8} The black tee shirt sleeve that was found in the vicinity of Brookside

was sent to the Ohio Bureau of Criminal Investigation (“BCI”) for DNA testing.

Ex. 54. Lindsey Nelsen-Rausch (“Nelsen-Rausch”) performed testing on this black

fabric. Tr. 491-492. She determined that DNA was present on the fabric from at

least three contributors and concluded that Hoskinson was a “major contributor” of

the DNA found on the black fabric. Tr. 494. Ex. 54.

{¶9} However, Nelsen-Rausch was going to be unavailable to testify on the

original trial date. Tr. 501, 504. For this reason, another BCI analyst, Stacy Violi

-4- Case No. 15-21-10

(“Violi”), tested the black fabric and wrote a report on her findings so that she could

testify in the place of Nelsen-Rausch. Tr. 501. Violi’s report indicated that it was

written to replace Nelsen-Rausch’s prior report. Tr. 500-501. Subsequently, the

date of Hoskinson’s trial was changed, and Nelsen-Rausch was available to testify

at trial. Doc. 35, 48, 74, 85, 103, 104, 130. Tr. 509.

{¶10} On August 16, 2021, Hoskinson’s jury trial began. Tr. 110. The State

called Nelsen-Rausch as a witness to testify about her findings. Tr. 484. On cross-

examination, defense counsel questioned Nelsen-Rausch as to whether her report

could “be valid if the subsequent reviewer[’s report] replace[d] it in its entirety.”

Tr. 502. Nelsen-Rausch explained that her conclusions were not contradicted by

Violi’s findings and were still valid, even though a subsequent report had been

prepared. Tr. 502, 503. After Nelsen-Rausch’s testimony, the trial court admitted

her report into evidence over the Defense’s objections. Tr. 510. Ex. 54. On August

19, 2021, the jurors returned verdicts of guilty on the charges against Hoskinson.

Doc. 163, 165, 166. On September 29, 2021, the trial court issued its judgment

entry of sentencing. Doc. 173.

Assignment of Error

{¶11} Hoskinson filed his notice of appeal on October 19, 2021. Doc. 187.

On appeal, he raises the following assignment of error:

In a fundamental and substantial denial of due process of law and of the right to confrontation of witnesses and of the right to a fair and impartial jury trial, it was reversible error for the trial court

-5- Case No. 15-21-10

to allow a State DNA forensic scientist to testify about her highly prejudicial conclusions reached in her examination and analysis of material evidence in this case, and then for the court to allow the admission into evidence, as a State’s exhibit, said DNA forensic scientist’s written report of her highly prejudicial conclusions against the defendant-appellant, when in fact the said DNA forensic scientist witness admitted that her DNA analysis report had been replaced in its entirety by a subsequent analysis and report from a different State DNA forensic scientist, thereby resulting in reversible harmful error in a case in which the police officers and the detective did not investigate nor look for an unknown subject whose DNA was allegedly in the material evidence, and wherein at trial, a photo analysis comparison expert for the Defense, did determine discrepancies between tattoos on the neck of the defendant-appellant, and tattoos on the neck of the actual robber.

Hoskinson argues that the admission of the evidence provided by Nelsen-Rausch

violated his rights under the Confrontation Clause.

Legal Standard

{¶12} The Confrontation Clause of the Sixth Amendment to the United

States Constitution guarantees the right of an “accused * * * to be confronted with

the witnesses against him * * *.” Sixth Amendment to the U.S. Constitution. “[A]

witness is a person who ‘bear[s] testimony.’” State v. Little, 2016-Ohio-8398, 78

N.E.3d 323, ¶ 17 (3d Dist.), quoting Crawford v. Washington, 541 U.S. 36, 51, 124

S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004), quoting 2 N. Webster, An American

Dictionary of the English Language (1828). For this reason, “the Confrontation

Clause applies only to testimonial statements.” State v. Muttart, 116 Ohio St.3d 5,

2007-Ohio-5267, 875 N.E.2d 944, ¶ 59.

-6- Case No. 15-21-10

{¶13} Further, the Confrontation Clause applies to testimonial statements

that are made out-of-court.” Crawford at 50.

As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.

Bullcoming v. New Mexico, 564 U.S. 647, 651, 131 S.Ct. 2705, 2713, 180 L.Ed.2d

610 (2011). See Crawford at 59. This has been held to include testimonial

statements that were made in written reports. Melendez-Diaz v. Massachusetts, 557

U.S. 305, 324, 129 S.Ct. 2527, 2540, 174 L.Ed.2d 314 (2009); Bullcoming at 651.

See also Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012).

Legal Analysis

{¶14} At trial, Hoskinson asserted that Violi’s report replaced and

invalidated Nelsen-Rausch’s prior report. If Nelsen-Rausch’s report had been

invalidated in the manner suggested by Hoskinson, then the only remaining valid

report was Violi’s report. Following this assumption, Hoskinson argues that

Nelsen-Rausch should not have been called to testify about the DNA analysis

performed on the black fabric because the only remaining forensic report was

composed of statements produced by a different analyst. Thus, Hoskinson seems to

assert that Nelsen-Rausch’s testimony violated the Confrontation Clause because

she could not testify about the statements in a forensic report that was produced by

another analyst.

-7- Case No. 15-21-10

{¶15} However, the evidence in the record indicates that Hoskinson’s entire

argument rests on the errant assumption that Nelsen-Rausch’s report was

invalidated by Violi’s report. At trial, Nelsen-Rausch indicated that Violi also

produced a report in this case because she (Nelsen-Rausch) “was going to be out of

town” on the dates when the trial was originally scheduled. Tr. 501, 509. She stated

that her report was “still * * * technically reviewed and administratively reviewed

and [was] * * * still valid.” Tr. 502. On redirect, Nelsen-Rausch testified that Violi

simply “re-analyzed the results” and “reevaluated” the evidence. Tr. 504, 509. This

was the standard procedure when “a testing analyst * * * is not available for a

particular time to testify.” Tr. 509. Further, Nelsen-Rausch testified that “the DNA

conclusions were the same” in both reports. Tr. 504.

{¶16} While Violi’s report stated that it “replaced” Nelsen-Rausch’s prior

report, the evidence in the record clearly indicates that this means Violi’s report was

prepared for use in place of Nelsen-Rausch’s report in the event that Nelsen-Rausch

was unavailable to testify. There is no indication in the record that Violi’s report

retracted, abrogated, or invalidated the findings in Nelsen-Rausch’s report. Given

the facts of this case, we need not determine and, therefore, decline to determine

whether Nelsen-Rausch’s report contained statements that were testimonial in

nature. Regardless of whether the forensic report contained testimonial statements,

the analyst who prepared the forensic report that was admitted into evidence

-8- Case No. 15-21-10

testified at trial on direct and cross-examination. Thus, Hoskinson had an

opportunity to confront the expert witness who produced this forensic report.

{¶17} In conclusion, there is no indication that Nelsen-Rausch’s forensic

report was invalidated by the preparation of a second report. Thus, in this case, the

State called the analyst who wrote a valid forensic report that was admitted into

evidence to testify as a witness at trial. The Defense was able to question this analyst

on cross-examination and on recross-examination. For this reason, we conclude that

Hoskinson has failed to demonstrate that his right to confront the witnesses against

him was violated in any way by Nelsen-Rausch’s testimony or by the admission of

her forensic report into evidence. Accordingly, Hoskinson’s sole assignment of

error is overruled.

Conclusion

{¶18} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of Van Wert County Court of Common Pleas is

affirmed.

MILLER and SHAW, J.J., concur.

/hls

-9-