State v. Hugley

111 N.E.3d 61, 2018 Ohio 1521
CourtCourt of Appeals of Ohio, Eighth District, Cuyahoga County
DecidedApril 19, 2018
DocketNo. 105692
StatusPublished

This text of 111 N.E.3d 61 (State v. Hugley) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Eighth District, Cuyahoga County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hugley, 111 N.E.3d 61, 2018 Ohio 1521 (Ohio Super. Ct. 2018).

Opinion

ANITA LASTER MAYS, J.:

{¶ 1} Defendant-appellant Devontae Hugley appeals his convictions for kidnapping, domestic violence, aggravated menacing, endangering children, and criminal damaging with various specifications. We affirm in part, reverse in part, and remand.

I. Background and Facts

{¶ 2} Appellant was indicted on December 20, 2016, for: kidnapping, a first-degree felony ( R.C. 2905.01(A)(3) ), with a one-year and three-year firearm specification;

*64domestic violence, a first-degree misdemeanor ( R.C. 2919.25(A) ); aggravated menacing, a first-degree misdemeanor ( R.C. 2903.21(A) ); endangering children, a first-degree misdemeanor ( R.C. 2919.22(A) ); having weapons while under disability, a third-degree felony ( R.C. 2923.13(A)(2) ; and criminal damaging or endangering, a second-degree misdemeanor ( R.C. 2909.06(A)(1) ).

{¶ 3} The charges arose from a December 8, 2016 altercation between appellant and VW. Appellant had been living with VW for several months, along with VW's son, who was not present the day of the incident, and her five-year-old daughter. There were suspicions of infidelity by both parties.

{¶ 4} On December 7, 2016, VW left the house with the daughter after viewing inappropriate activity on appellant's cell phone, and returned the next morning. VW refused to tell appellant her whereabouts the prior night, the disagreement escalated and appellant was ultimately indicted. Appellant pleaded not guilty to the charges.

{¶ 5} Prior to the trial, the state filed a motion to call VW as an adverse witness, explaining that VW had begun to "recant [her testimony] as to significant details without clear explanation." Motion (Mar. 9, 2017), p. 3. The state opined that VW was not cooperating due to her continued intimate relationship with appellant.

{¶ 6} The motion summarizes the content of a telephone call, which was initiated by appellant to a third-party who was instructed to add VW to the call. During the call, VW told appellant that she advised the state that she wanted to drop the charges and contacted the parole officer in an attempt to clear things up. Appellant instructed VW to say that he did not have a gun, and that she only said he had one at the time because she was angry and wanted him to go to jail.

{¶ 7} The trial court construed the motion as a request "for the [c]ourt on its own motion to call [VW] as a [c]ourt's witness." (Tr. 130.) The trial court granted the motion over defense objections.

A. Trial

{¶ 8} Trial commenced on March 8, 2017. The testimony established that Cleveland Police Department officers DiFranco and Tessin responded to a 911 call on December 8, 2016, reporting the assault of a female by a male wielding a firearm and wearing a red bubble jacket and gray hat. Officer DiFranco wore a body-cam. The officers observed appellant, who fit the suspect's description, standing in the open doorway of an apartment as they entered the building.

{¶ 9} Appellant walked through the doorway and the officers followed. Appellant continued to walk directly into the dining room that was adjacent to the living room door entry way, then immediately returned to the living room where VW and the child were sitting at a table. Appellant was handcuffed, frisked and taken to the police car by the officers.

{¶ 10} Officer DiFranco returned to the apartment to interview VW, who explained that appellant was angry and insisted on knowing where she spent the night. VW pushed appellant into the wall, damaging the plaster, started her car with the remote ignition and left the apartment with her daughter. Appellant walked with them to the car.

{¶ 11} VW placed the daughter in the back seat, sat in the driver's seat and appellant sat in the passenger's seat, continuing to question her. After VW refused to reveal her whereabouts, appellant removed the key from the ignition, exited *65the car, punctured the front tire with a knife, and told VW that she was not going anywhere.

{¶ 12} VW kicked appellant in the groin for puncturing the tire and she, her daughter, and appellant returned to the apartment. Appellant responded by grabbing the hood of her sweatshirt that was pulled up onto her head. In the apartment, appellant threatened to break a small glass end table belonging to VW and looked surprised when he tapped it with a hammer and it shattered.

{¶ 13} VW told appellant that he could retrieve a lighter from her car and locked the apartment door when appellant exited. VW took her daughter across the hall to her neighbor's apartment where officers found them. The 911 call was placed by VW's cousin in response to VW's call to her.

{¶ 14} VW told the officers that appellant had a gun, and then picked up a .380 Bersa from the dining room window seat and handed it to officer DiFranco. Appellant was then Mirandized and charged. The body-cam recording was played for the jury and admitted into evidence.

{¶ 15} Det. Sudbury was assigned to investigate the incident on behalf of the domestic violence unit. He reviewed the police report and a handwritten misdemeanor complaint statement written by VW that said she did not want to prosecute. A knife, revolver, and hammer were obtained as part of the investigation. The firearm was operable but no forensic tests were done on the evidence to determine whether it had been fired.

{¶ 16} VW "was uncooperative" when contacted by Det. Sudbury. Though stating that he was not certain that his recollection was correct, Det. Sudbury "believe[d]" that VW told him that appellant "shot at me, he cut my car tire, and I don't want to prosecute." (Tr. 313.)

{¶ 17} Sgt. Christopher testified that appellant was recorded advising VW how to respond to the state's questions about the incident during a March 7, 2017 telephone conversation that occurred while appellant was in jail awaiting trial. After the conversation, VW's recollection of the incident no longer corroborated that of the officers and the body-cam evidence.

{¶ 18} VW testified as an adverse witness and said that she intentionally lied to officers about the gun so that appellant would be arrested. In spite of the impeachment evidence of prior inconsistent statements, body-cam evidence and the testimony of the officers, VW maintained that many of her initial statements were fabricated to ensure appellant's removal from the premises.

{¶ 19} Confronted with photographs of VW's apartment, the car, and other evidence, VW explained that, at a point during the argument, she felt that appellant was standing too close to her. She pushed him into the wall, using both arms, which caused damage to the plaster. Appellant was taller than VW, but appellant weighed less than VW "by a significant amount." (Tr. 396.)

{¶ 20} VW also testified that appellant got into her car and said, "talk to me, tell me where you was at or whatever" when VW attempted to leave. (Tr. 378.) VW refused, appellant removed the key and flattened the tire. Appellant returned the key "because we was going to go back in the house, talk, whatever." (Tr. 380.) VW kicked appellant in the groin as they were walking into the building and he "yanked at" her hood that was on her head at the time as though questioning why she kicked him. (Tr. 418.)

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Smith v. Phillips
455 U.S. 209 (Supreme Court, 1982)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
State v. Bennett
2013 Ohio 5524 (Ohio Court of Appeals, 2013)
State v. Ball
2014 Ohio 1060 (Ohio Court of Appeals, 2014)
State v. Williams
2011 Ohio 5483 (Ohio Court of Appeals, 2011)
State v. Hicks
2011 Ohio 3578 (Ohio Court of Appeals, 2011)
State v. Dues
2014 Ohio 5276 (Ohio Court of Appeals, 2014)
State v. Rudd
2016 Ohio 106 (Ohio Court of Appeals, 2016)
State v. Davis
2016 Ohio 694 (Ohio Court of Appeals, 2016)
State v. Gest
670 N.E.2d 536 (Ohio Court of Appeals, 1995)
State v. York, Unpublished Decision (12-28-2006)
2006 Ohio 6934 (Ohio Court of Appeals, 2006)
State v. Curry, Unpublished Decision (10-25-2007)
2007 Ohio 5721 (Ohio Court of Appeals, 2007)
State of Ohio v. Dacons
449 N.E.2d 507 (Ohio Court of Appeals, 1982)
State v. Davis
607 N.E.2d 543 (Ohio Court of Appeals, 1992)
State v. Masterson, Unpublished Decision (3-15-2007)
2007 Ohio 1145 (Ohio Court of Appeals, 2007)
State v. Stewart, Unpublished Decision (2-23-2006)
2006 Ohio 813 (Ohio Court of Appeals, 2006)
State v. Landrum
2016 Ohio 5666 (Ohio Court of Appeals, 2016)
Parma Hts. v. Owca
2017 Ohio 179 (Ohio Court of Appeals, 2017)
State v. Williams
528 N.E.2d 910 (Ohio Supreme Court, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
111 N.E.3d 61, 2018 Ohio 1521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hugley-ohctapp8cuyahog-2018.