[Cite as State v. Parker, 2023-Ohio-2722.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 17-23-02
v.
ROBERT J. PARKER, OPINION
DEFENDANT-APPELLANT.
Appeal from Sidney Municipal Court Trial Court No. 22CRB00519
Judgment Affirmed
Date of Decision: August 7, 2023
APPEARANCES:
Jim R. Gudgel for Appellant
David M. Busick for Appellee Case No. 17-23-02
WALDICK, J.
{¶1} Defendant-appellant, Robert J. Parker (“Parker”), brings this appeal
from the March 16, 2023, judgment of the Sidney Municipal Court sentencing him
to 180 days in jail after a jury found him guilty of Assault in violation of R.C.
2903.13, a first degree misdemeanor. For the reasons that follow, we affirm the
judgment of the trial court.
Background
{¶2} The evidence in this case is generally straightforward and
uncontradicted. On the evening of November 4, 2022, at approximately 8:20 p.m.,
three witnesses observed Parker physically kicking a woman who was on the ground
and pressed against a fence in Sidney, Ohio. Further, the witnesses indicated that
the victim was screaming for help. One of the witnesses recognized Parker as the
assailant, and all three witnesses identified Parker at trial as the person kicking the
woman against a fence.
{¶3} One of the witnesses called the police, but when Parker realized he was
being observed, he got on his bicycle and left the scene. An officer arrived shortly
thereafter and spoke with those present, including the victim, who complained that
she was having trouble breathing. The victim’s blood was located on the ground
nearby. The interaction between the officer and the people present was recorded on
the officer’s body camera and played at trial.
-2- Case No. 17-23-02
{¶4} Due to her injuries, the victim was taken to the hospital. The officer
investigating the matter went and spoke with the victim again at the hospital, and
that interaction was also recorded on the officer’s body camera and played at trial.
At the hospital, the victim named Parker as her assailant. She also described the
argument she had with Parker earlier that day, and indicated that she may have had
a protection order against Parker at one point. However, the victim did not testify at
trial and did not appear at trial at all despite being subpoenaed.
{¶5} As a result of his actions, Parker was charged with Assault in violation
of R.C. 2903.13(A), a first degree misdemeanor. He proceeded to a jury trial
wherein he was found guilty, then he was sentenced to serve 180 days in jail. A
judgment entry memorializing Parker’s sentence was filed March 16, 2023. It is
from this judgment that he appeals, asserting the following assignment of error for
our review.
Assignment of Error
The Defendant’s right to confront the witnesses at trial was violated in violation of the Confrontation Clause.
{¶6} In his assignment of error, Parker contends that the trial court erred by
permitting the State to play body camera footage of the investigating officer
interviewing the victim at the hospital because the victim did not testify in this
matter. Parker argues that this evidence was presented in violation of the
Confrontation Clause.
-3- Case No. 17-23-02
Standard of Review
{¶7} Generally, the admission or exclusion of evidence lies within the trial
court’s discretion, and a reviewing court should not reverse absent an abuse of
discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-
2815, ¶ 62. An abuse of discretion implies that the trial court acted unreasonably,
arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
“However, we review de novo evidentiary rulings that implicate the Confrontation
Clause.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 97. “De novo
review is independent, without deference to the lower court’s decision.” State v.
Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27.
Relevant Authority
{¶8} The Confrontation Clause to the Sixth Amendment of the United States
Constitution, made applicable to the states by the Fourteenth Amendment, provides
that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be
confronted with the witnesses against him * * *.”
The United States Supreme Court has interpreted [the Sixth Amendment right to confrontation] to mean that admission of an out- of-court statement of a witness who does not appear at trial is prohibited by the Confrontation Clause if the statement is testimonial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness.
State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 34, citing Crawford v.
Washington, 541 U.S. 36, 53-54 (2004). The United States Supreme Court “did not
-4- Case No. 17-23-02
define the word ‘testimonial’ but stated that the core class of statements implicated
by the Confrontation Clause includes statements ‘made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.’” Id. at ¶ 35, quoting Crawford at 52.
Analysis
{¶9} At trial, Parker’s attorney objected to body camera footage of the
investigating officer’s interaction with the victim at the hospital. Parker’s attorney
argued that this interaction was after-the-fact and not part of an ongoing emergency,
that the victim’s statement was testimonial, and that the statement was in violation
of the Confrontation Clause because the victim did not testify at trial. The trial court
overruled the objection and permitted the body camera footage to be played. The
footage showed the victim specifically identifying Parker as her assailant. Parker
asserts that it was reversible error for the footage to be played at trial.
{¶10} Generally, when out-of-court statements made to law enforcement are
at issue under the Confrontation Clause, the “primary purpose” test applies. State v.
Little, 3d Allen No. 1-16-29, 2016-Ohio-8398, ¶ 18. Under this test,
[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
-5- Case No. 17-23-02
State v. Perkins, 3d Dist. Seneca No. 13–10–36, 2011-Ohio-2705, 2011 WL
2345291, ¶ 4, quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266
(2006).
{¶11} When applying the primary purpose test to this case, there is no
indication that there was still an ongoing emergency at the time the officer spoke
with the victim at the hospital, and it was at that time that the victim made an out-
of-court identification of Parker as her assailant. See State v. Smith, 1st Dist.
Hamilton No. C-180499, 2019-Ohio-3257. Contrary to the State’s suggestion, the
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[Cite as State v. Parker, 2023-Ohio-2722.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SHELBY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 17-23-02
v.
ROBERT J. PARKER, OPINION
DEFENDANT-APPELLANT.
Appeal from Sidney Municipal Court Trial Court No. 22CRB00519
Judgment Affirmed
Date of Decision: August 7, 2023
APPEARANCES:
Jim R. Gudgel for Appellant
David M. Busick for Appellee Case No. 17-23-02
WALDICK, J.
{¶1} Defendant-appellant, Robert J. Parker (“Parker”), brings this appeal
from the March 16, 2023, judgment of the Sidney Municipal Court sentencing him
to 180 days in jail after a jury found him guilty of Assault in violation of R.C.
2903.13, a first degree misdemeanor. For the reasons that follow, we affirm the
judgment of the trial court.
Background
{¶2} The evidence in this case is generally straightforward and
uncontradicted. On the evening of November 4, 2022, at approximately 8:20 p.m.,
three witnesses observed Parker physically kicking a woman who was on the ground
and pressed against a fence in Sidney, Ohio. Further, the witnesses indicated that
the victim was screaming for help. One of the witnesses recognized Parker as the
assailant, and all three witnesses identified Parker at trial as the person kicking the
woman against a fence.
{¶3} One of the witnesses called the police, but when Parker realized he was
being observed, he got on his bicycle and left the scene. An officer arrived shortly
thereafter and spoke with those present, including the victim, who complained that
she was having trouble breathing. The victim’s blood was located on the ground
nearby. The interaction between the officer and the people present was recorded on
the officer’s body camera and played at trial.
-2- Case No. 17-23-02
{¶4} Due to her injuries, the victim was taken to the hospital. The officer
investigating the matter went and spoke with the victim again at the hospital, and
that interaction was also recorded on the officer’s body camera and played at trial.
At the hospital, the victim named Parker as her assailant. She also described the
argument she had with Parker earlier that day, and indicated that she may have had
a protection order against Parker at one point. However, the victim did not testify at
trial and did not appear at trial at all despite being subpoenaed.
{¶5} As a result of his actions, Parker was charged with Assault in violation
of R.C. 2903.13(A), a first degree misdemeanor. He proceeded to a jury trial
wherein he was found guilty, then he was sentenced to serve 180 days in jail. A
judgment entry memorializing Parker’s sentence was filed March 16, 2023. It is
from this judgment that he appeals, asserting the following assignment of error for
our review.
Assignment of Error
The Defendant’s right to confront the witnesses at trial was violated in violation of the Confrontation Clause.
{¶6} In his assignment of error, Parker contends that the trial court erred by
permitting the State to play body camera footage of the investigating officer
interviewing the victim at the hospital because the victim did not testify in this
matter. Parker argues that this evidence was presented in violation of the
Confrontation Clause.
-3- Case No. 17-23-02
Standard of Review
{¶7} Generally, the admission or exclusion of evidence lies within the trial
court’s discretion, and a reviewing court should not reverse absent an abuse of
discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-
2815, ¶ 62. An abuse of discretion implies that the trial court acted unreasonably,
arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157 (1980).
“However, we review de novo evidentiary rulings that implicate the Confrontation
Clause.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 97. “De novo
review is independent, without deference to the lower court’s decision.” State v.
Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27.
Relevant Authority
{¶8} The Confrontation Clause to the Sixth Amendment of the United States
Constitution, made applicable to the states by the Fourteenth Amendment, provides
that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be
confronted with the witnesses against him * * *.”
The United States Supreme Court has interpreted [the Sixth Amendment right to confrontation] to mean that admission of an out- of-court statement of a witness who does not appear at trial is prohibited by the Confrontation Clause if the statement is testimonial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness.
State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 34, citing Crawford v.
Washington, 541 U.S. 36, 53-54 (2004). The United States Supreme Court “did not
-4- Case No. 17-23-02
define the word ‘testimonial’ but stated that the core class of statements implicated
by the Confrontation Clause includes statements ‘made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.’” Id. at ¶ 35, quoting Crawford at 52.
Analysis
{¶9} At trial, Parker’s attorney objected to body camera footage of the
investigating officer’s interaction with the victim at the hospital. Parker’s attorney
argued that this interaction was after-the-fact and not part of an ongoing emergency,
that the victim’s statement was testimonial, and that the statement was in violation
of the Confrontation Clause because the victim did not testify at trial. The trial court
overruled the objection and permitted the body camera footage to be played. The
footage showed the victim specifically identifying Parker as her assailant. Parker
asserts that it was reversible error for the footage to be played at trial.
{¶10} Generally, when out-of-court statements made to law enforcement are
at issue under the Confrontation Clause, the “primary purpose” test applies. State v.
Little, 3d Allen No. 1-16-29, 2016-Ohio-8398, ¶ 18. Under this test,
[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
-5- Case No. 17-23-02
State v. Perkins, 3d Dist. Seneca No. 13–10–36, 2011-Ohio-2705, 2011 WL
2345291, ¶ 4, quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266
(2006).
{¶11} When applying the primary purpose test to this case, there is no
indication that there was still an ongoing emergency at the time the officer spoke
with the victim at the hospital, and it was at that time that the victim made an out-
of-court identification of Parker as her assailant. See State v. Smith, 1st Dist.
Hamilton No. C-180499, 2019-Ohio-3257. Contrary to the State’s suggestion, the
victim’s identification at the hospital to the officer was neither an excited utterance,
nor a statement for purposes of medical diagnosis.1 Further, the identification goes
directly to the truth of the matter asserted.
{¶12} While a recording of an interaction on a police body camera may seem
reliable, the Confrontation Clause is designed to prohibit out-of-court statements
that are untested by cross-examination. Michigan v. Bryant, 562 U.S. 344, 358, 131
S.Ct. 1143 (2011) (“Even where * * * an interrogation is conducted with all good
faith, introduction of the resulting statements at trial can be unfair to the accused if
they are untested by cross-examination. Whether formal or informal, out-of-court
statements can evade the basic objective of the Confrontation Clause, which is to
1 Moreover, we note that while the State argues that the body camera footage met certain hearsay exceptions, the State largely ignores the fact that the Confrontation Clause may bar admission of evidence that could otherwise be admissible under an exception to the hearsay rule. State v. Issa, 93 Ohio St.3d 49, 60 (2001).
-6- Case No. 17-23-02
prevent the accused from being deprived of the opportunity to cross-examine the
declarant about statements taken for use at trial.”).
{¶13} Furthermore, we emphasize that
The purpose of body cameras is to record events in which law enforcement officers are involved to improve officer safety, increase evidence quality, reduce civilian complaints and reduce agency liability * * * not to supplant the in-court testimony of witnesses. Out- of-court statements that would otherwise be inadmissible do not become admissible simply because they were captured on a police body camera.
State v. Smith, 8th Dist. Cuyahoga No. 111274, 2023-Ohio-603, ¶ 94.
{¶14} After conducting our de novo review of the record, we do not agree
with the trial court that the body camera footage from the hospital was admissible
in this case because it is both hearsay with no exception established by the State and
because it is in violation of the Confrontation Clause. See State v. Smith, 1st Dist.
Hamilton No. C-180499, 2019-Ohio-3257 (holding that body camera footage was
inadmissible under the Confrontation Clause where witness did not testify at trial
and there was no ongoing emergency). However, this does not end our analysis
because Confrontation Clause issues (and hearsay issues) are subject to harmless
error review. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735; State v.
Thomas, 3d Dist. Marion No. 9-19-73, 2020-Ohio-5379, ¶ 27. Harmless error
review requires: 1) that the defendant was prejudiced by the admission of the
improper evidence at trial, 2) that the appellate court believes that the error was “not
-7- Case No. 17-23-02
harmless beyond a reasonable doubt,” and 3) that after excising the improper
evidence, the remaining evidence overwhelmingly supports finding the defendant
guilty. State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, ¶ 27-29.
{¶15} Here, there is no question that introducing the body camera footage
was harmless beyond a reasonable doubt. Three eyewitnesses all testified at trial
and specifically identified Parker as the assailant. Any statement made by the victim
through body camera footage hours after the incident identifying Parker as her
assailant was merely cumulative to other evidence in the record. Thomas, supra, at
¶ 26. Because the evidence from the body camera was merely cumulative, and the
evidence overwhelmingly supports a finding of guilt even without the body camera
footage, we find that any error here was harmless beyond a reasonable doubt. For
this reason, Parker’s assignment of error is overruled.
Conclusion
{¶16} Having found no error prejudicial to Parker in the particulars assigned
and argued, his assignment of error is overruled and the judgment of the Sidney
Municipal Court is affirmed.
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
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