State v. Parsons

2019 Ohio 5021

Opinion

[Cite as State v. Parsons, 2019-Ohio-5021.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 18CA011328

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE ANTHONY PARSONS COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 17CR097137

DECISION AND JOURNAL ENTRY

Dated: December 9, 2019

CALLAHAN, Judge.

{¶1} Appellant, Anthony Parsons, appeals his conviction for aggravated burglary. This

Court affirms.

I.

{¶2} On the morning of September 20, 2017, D.H. noticed that a man he did not know

walked past the window of his apartment several times. The man’s behavior aroused D.H.’s

suspicion, and he retrieved a knife from his bedroom in order to protect himself. Shortly

thereafter, someone knocked on his apartment door. D.H. looked through the peephole and

decided not to open the door because he did not recognize the man on the other side. After a

second knock, D.H. looked through the peephole and recognized a man whom he had seen in the

area. Although D.H. did not know the second man, he opened the apartment door with the chain

in place. 2

{¶3} An unseen man forced the door open, breaking the chain, and three men entered

D.H.’s apartment demanding money owed to a third party. D.H. told the intruders that he was

not the person they were looking for and after approximately fifteen minutes, the intruders left.

A neighbor called the police after the incident, and they identified Mr. Parsons as one of the

intruders. He was charged with aggravated burglary in violation of R.C. 2911.11(A)(1) and

robbery in violation of R.C. 2911.02(A)(2). Both charges were accompanied by repeat violent

offender specifications. A jury found Mr. Parsons guilty of aggravated burglary, but not guilty

of robbery, and the trial court found that he was a repeat violent offender. The trial court

sentenced Mr. Parsons to a nine-year prison term, and Mr. Parsons filed this appeal.

II.

ASSIGNMENT OF ERROR NO. 1

THE ADMISSION OF HEARSAY EVIDENCE WAS A CONSTITUTIONAL ERROR WARRANTING REVERSAL [AND] REMAND.

{¶4} In his first assignment of error, Mr. Parsons argues that the trial court erred by

permitting a police officer to testify regarding out-of-court statements offered for their truth

rather than to explain the course of the investigation. He also appears to argue that, as a

consequence, this testimony violated his rights under the Confrontation Clause. This Court

disagrees.

{¶5} Hearsay, as defined by Evid.R. 801(C), is an out-of-court statement offered to

prove the truth of the matter asserted. Hearsay is generally inadmissible. Evid.R. 802. When a

law enforcement officer testifies about a declarant’s out-of-court statements in order to explain

the progress of an investigation, the statements are not offered for the truth of the matter asserted

and, therefore, are not hearsay. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 186,

citing State v. Thomas, 61 Ohio St.2d 223, 232 (1980). See also State v. Ricks, 136 Ohio St.3d 3

356, 2013-Ohio-3712, ¶ 23. “[I]n order for testimony offered to explain police conduct to be

admissible as nonhearsay, the conduct to be explained should be relevant, equivocal, and

contemporaneous with the statements; the probative value of statements must not be substantially

outweighed by the danger of unfair prejudice; and the statements cannot connect the accused

with the crime charged.” Ricks at ¶ 27. The Sixth Amendment to the United States Constitution

guarantees an accused the right to confront witnesses against him. Crawford v. Washington, 541

U.S. 36, 54 (2004). As a general rule, the Confrontation Clause is implicated by the admission

of out-of-court statements that are testimonial in nature when the declarant does not testify in the

proceeding. See Melendez–Diaz v. Massachusetts, 557 U.S. 305, 309–310 (2009). When no

such statements are admitted, the Confrontation Clause is not implicated. See McKelton at ¶ 186,

citing Crawford at 59 .

{¶6} Mr. Parsons directs this Court’s attention to three exchanges in support of his

allegation that the trial court permitted a police officer to convey hearsay testimony. The first

relates to E.N., an individual who was also alleged to have been involved in the incident, and the

full exchange between the State and the witness provides context for our discussion:

Q: Okay. Did you have the opportunity to interview anyone else while you were still in the square?

A: I spoke with * * * [N.W.] and [O.S.].

Q: And based upon your investigation, what did you do next? Based upon what you learned, without saying what was reported to you, what did you do?

A: [N.W.] was taken into custody. And [O.S.] was taken into custody. And [E.N.] was also taken into custody.

***

Q: Okay. [E.N.] is a new name that we haven’t already heard. Can you explain who that individual is[?] 4

A: He was the one that, through the course of my investigation - - I believe it may have been his idea to facilitate this essential home invasion in the first place. Apparently, José - - or whoever José is - - owed his mom 5- to $800 or something along those lines, which may have been what got the ball rolling that led to why we’re all here today.

Q: And why is that important to you, to know that information?

[DEFENSE COUNSEL]: Objection.

THE COURT: Overruled.

A: It’s important to know that based off the elements of burglary or robbery with the - -

A: - - purpose to commit- -

[DEFENSE COUNSEL]: Legal conclusion, Your Honor.

A: Purpose to commit a theft offense. That’s why it’s important.

Q: So you were able to learn their intent of breaking into [D.H.’s] door?

A: Yes.

Although Mr. Parsons objected to a portion of this testimony on the basis that it called for a legal

conclusion from the witness, he did not object to any of it on hearsay grounds. See Evid.R.

103(A)(1) (requiring “a timely objection * * * stating the specific ground of objection, if the

specific ground was not apparent from the context” in order to preserve error predicated on a

ruling admitting evidence). Consequently, he has forfeited all but plain error in connection with

this exchange. This exchange, however, does not contain any out-of-court statements made by a

third party, whether offered for the truth of the matter asserted or not. As such, neither Evid.R.

802 nor the Confrontation Clause is implicated by this exchange. Because “error * * * [is] the 5

starting point for a plain-error inquiry[,]” Mr. Parsons’ argument with respect to this exchange is

not well-taken. See State v. Hill, 92 Ohio St.3d 191, 200 (2001); Crim.R. 52(B).

{¶7} The second exchange to which Mr. Parsons directs this Court’s attention relates to

the identification of the fourth man who was ultimately implicated in the incident. Again, the

context is instructive:

Q: And was [D.H.] able to identify the three individuals that broke into his home [from the lineups]?

A: Yes, he was.

Q: Did you interview anyone else, then, at the Elyria Police Department?

A: Yeah. So goes to happen that [T.T.] ended up coming to the police department during that time because he, quote, “Wanted to clear his name.” And, obviously, since [D.H.] was there, [D.H.] said, “Hey, that’s the other guy sitting out in the lobby of the police department.”

[DEFENSE COUNSEL]: Objection as to what he said, Your Honor.

D.H.’s statement was not offered for the truth of the matter asserted—an identification of T.T. as

one of the perpetrators—but to explain how the officer came to interview another individual in

connection with the incident shortly after D.H. identified him. This statement did not connect

Mr. Parsons with the crime, and the risk of unfair prejudice to Mr. Parsons was low relative to

the probative value of the answer. This statement, therefore, was properly admitted for the

nonhearsay purpose of explaining the progress of the police investigation. See Ricks, 136 Ohio

St.3d 356, 2013-Ohio-3712, at ¶ 23.

{¶8} The final statement to which Mr. Parsons directs this Court’s attention follows the

last exchange between the State and the witness:

A: Yeah. So goes to happen that [T.T.] ended up coming to the police department during that time because he, quote, “Wanted to clear his name.” And, 6

obviously, since [D.H.] was there, [D.H.] said, “Hey, that’s the other guy sitting out in the lobby of the police department.”

Q: You can continue.

A: So, at that time, [T.T.] had ended up leaving. And then he ended up coming back a short while later. And then I got to speak with [T.T.], and he was extremely cooperative and fair and gave a great account of the whole ordeal. And it, basically, matched [D.H.]’s story pretty much to a T with, maybe, a nuance here or there. But it was a pretty consistent statement.

Q: Anything further that you did at the police department after speaking with [T.T.]?

A: Nothing that’s a glaring detail to me right now.

As with the first statement that Mr. Parsons identified, he did not object to this exchange at trial

and has forfeited all but plain error on appeal. Nonetheless, this exchange also does not contain

any out-of-court statements made by a third party, whether offered for the truth of the matter

asserted or not. As such, neither Evid.R. 802 nor the Confrontation Clause is implicated by this

exchange. Because “error * * * [is] the starting point for a plain-error inquiry[,]” Mr. Parsons’

argument with respect to this exchange is not well-taken. See Hill, 92 Ohio St.3d at 200;

Crim.R. 52(B).

{¶9} The trial court did not abuse its discretion by admitting the testimony at issue in

Mr. Parsons’ first assignment of error, and it is overruled.

ASSIGNMENT OF ERROR NO. 2

PARSON[S’] CONVICTION FOR AGGRAVATED BURGLARY IS SUPPORTED BY INSUFFICIENT EVIDENCE.

{¶10} Mr. Parsons’ second assignment of error argues that his conviction is supported

by insufficient evidence. This Court disagrees. 7

{¶11} “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). The relevant inquiry is

whether the prosecution has met its burden of production by presenting sufficient evidence to

sustain a conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency

analysis, this Court must view the evidence in the light most favorable to the State. Jackson v.

Virginia, 443 U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable

inferences in favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is

sufficient if it allows the trier of fact to reasonably conclude that the essential elements of the

crime were proven beyond a reasonable doubt. Id.

{¶12} Mr. Parsons was convicted of aggravated burglary in violation of R.C.

2911.11(A)(1), which provides:

No 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 inflicts, or attempts or threatens to inflict physical harm on another[.]

“Physical harm” to a person is defined as “any injury, illness, or other physiological impairment,

regardless of its gravity or duration.” R.C. 2901.01(A)(3). Mr. Parsons has not argued that the

evidence at trial was insufficient to establish that he trespassed in an occupied structure when

D.H. was present with the purpose to commit a criminal offense. Instead, he has argued that the

evidence was insufficient to demonstrate that he inflicted, or attempted or threatened to inflict,

physical harm on D.H.

{¶13} Complicity is established when a person acts with the level of culpability required

for an offense in soliciting or procuring another to commit the offense, aiding or abetting in the 8

commission of the offense, conspiring to commit the offense, or causing an innocent or

irresponsible individual to commit the offense. R.C. 2923.03(A). A conviction based on

complicity by aiding and abetting under R.C. 2923.03(A)(2) must be based on evidence showing

“that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the

principal in the commission of the crime, and that the defendant shared the criminal intent of the

principal.” State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. This intent may be inferred

from the surrounding circumstances. Id. “When an individual acts to aid or abet a principal in

the commission of an offense, the individual and principal are equally guilty and the individual is

prosecuted and punished as if he were a principal offender.” State v. Shabazz, 146 Ohio St.3d

404, 2016-Ohio-1055, ¶ 21, citing R.C. 2923.03(F).

{¶14} D.H. testified that although he did not open the door when the first individual,

whom he identified as Mr. Parsons, knocked, he did do so when he recognized a second

individual as N.W. D.H. also explained that he opened the door with the chain lock secured so

that the door was open for a span of approximately three inches. Through that narrow opening,

D.H. could see one person, but was not aware that two other individuals were out of his line of

sight. According to D.H.’s testimony, he had a brief conversation with N.W. through the

opening: D.H. testified that N.W. asked if he was “José,” and he denied that he was. D.H.

recalled that “right when [he] said that” T.T. reached past N.W.’s head and “hit the door open,

bust the door open[.]” D.H. recalled that he had to back away from the door to avoid its impact

because “[t]he door was gonna hit [him].” After T.T. forced the door open, requiring D.H. to

move away from the entrance, he entered the apartment with N.W. and Mr. Parsons.

{¶15} D.H.’s testimony indicated that he stood close enough to the narrow opening

between the door and the doorjamb to see and converse with N.W., who was standing at the 9

door. He also testified that when T.T. forced the door open, he reached around at the level of

N.W.’s head, that the force of the impact damaged the door, and that his proximity to the door

was such that he had to step backward to avoid the impact. Had D.H. not maneuvered away

from the door, the trier of fact could reasonably conclude that an “injury * * * regardless of its

gravity or duration” would have occurred. See R.C. 2901.01(A)(3). Under the facts of this case,

and viewing this testimony in the light most favorable to the State, a trier of fact could

reasonably conclude that T.T., with whom Mr. Parsons was complicit, attempted to inflict

physical harm upon D.H.

{¶16} Mr. Parsons’ second assignment of error is overruled.

ASSIGNMENT OF ERROR NO. 3

PARSON[S’] CONVICTION FOR AGGRAVATED BURGLARY IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶17} In his third assignment of error, Mr. Parsons has argued that his conviction is

against the manifest weight of the evidence. This Court does not agree.

{¶18} When considering whether a conviction is against the manifest weight of the

evidence, this Court must:

review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for

the exceptional case in which the evidence weighs heavily against the conviction. Id., citing

State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

{¶19} Mr. Parsons’ first argument in support of this assignment of error is premised

upon the assumption that this Court would sustain his first assignment of error. In other words, 10

he has argued that his conviction is against the manifest weight of the evidence “[g]iven the role

of ‘officer conduct’ testimony that was not [sic] presented for the ‘truth of the matter asserted.’”

Because this Court has overruled Mr. Parsons’ first assignment of error, this portion of his

manifest weight argument is moot.

{¶20} Mr. Parsons has also argued that his conviction is against the manifest weight of

the evidence because D.H. testified that he was not afraid during the incident. Based on this

testimony about D.H.’s subjective reaction to the events, Mr. Parsons suggests that the State

could not prove that he inflicted, or attempted or threatened to inflict, physical harm upon D.H.

On this point, however, the testimony was not as unequivocal as Mr. Parsons represents it to

have been. D.H. testified that after T.T. forced entry into the apartment with Mr. Parsons and

N.W., he was “nervous, of course * * * [and] scared.” He explained that he was ready to defend

himself with the knife that he had retrieved before the men knocked on his door. D.H. also

testified that when he denied that he was “José,” T.T. told him that he was “lucky” because

otherwise, he was going to be stabbed. The officer who responded to D.H.’s apartment testified

that D.H. was “still, obviously, shaken” and was initially reluctant to report the incident because

he was afraid of retaliation from the perpetrators.

{¶21} Mr. Parsons’ argument based on the testimony regarding D.H.’s state of mind

focuses on whether he experienced an implicit threat of physical harm. In that context, a

victim’s testimony regarding the subjective experience of fear can be relevant. Compare State v.

Tillison, 9th Dist. Wayne No. 18AP0047, 2019-Ohio-1395, ¶ 11. In this case, however, it was

not merely the implicit threat of physical harm that was at issue, but an attempt to inflict physical

harm. In that respect, D.H. testified that first Mr. Parsons, then N.W., knocked on his apartment

door, and T.T. forced the door open while he was in close enough proximity to it that he had to 11

back away to avoid the impact. D.H.’s subjective reaction to the incident does not undermine the

evidence demonstrating an attempt to inflict physical harm, and Mr. Parsons’ conviction is not

against the manifest weight of the evidence.

{¶22} Mr. Parsons’ third assignment of error is overruled.

III.

{¶23} Mr. Parsons’ assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

Judgment affirmed.

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 Lorain, 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 to Appellant.

LYNNE S. CALLAHAN FOR THE COURT 12

TEODOSIO, P. J. CARR, J. CONCUR.

APPEARANCES:

JOHN D. TOTH, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and DANIELLE BEARDEN, Assistant Prosecuting Attorney, for Appellee.