[Cite as State v. Patton, 2022-Ohio-3350.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29384 : v. : Trial Court Case No. 2021-CRB-3858 : ANEMINEE PATTON : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :
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OPINION
Rendered on the 23rd day of September, 2022.
STEPHANIE L. COOK, Atty. Reg. No. 0067101 & AMY B. MUSTO, Atty. Reg. No. 0071514, Assistant Prosecuting Attorneys, City of Dayton Prosecutor’s Office, Appellate Division, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee
CHRISTOPHER BAZELEY, Atty. Reg. No. 0077473, 9200 Montgomery Road, Suite 8A, Cincinnati, Ohio 45242 Attorney for Defendant-Appellant
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LEWIS, J. -2-
{¶ 1} Defendant-Appellant Aneminee Patton appeals from her conviction on two
counts of assault in the Dayton Municipal Court following a bench trial. Patton
challenges the trial court’s ruling excluding a statement made during Patton’s testimony.
For the following reasons, we affirm the judgment of the trial court.
I. Facts and Procedural History
{¶ 2} On November 1, 2021, Patton was charged with two counts of assault, in
violation of R.C. 2903.13(A), misdemeanors of the first degree, for conduct alleged to
have occurred on or about October 31, 2021. A bench trial was held on January 24,
2022.
{¶ 3} According to the testimony of the State’s witnesses at trial, on October 31,
2021, Leslie Becker, Danyse Marvin, Devin, and Nick, were celebrating Halloween
together in the Oregon district.1 During the night, they also met up with Nick’s girlfriend,
Patton. Toward the end of the night, Nick and Patton were having relationship issues
and Nick wanted a ride home to get his things, because he was planning to break up with
Patton and move out of their shared residence that night. Devin, Becker, and Marvin
gave Nick a ride home and then went to Taco Bell. While at Taco Bell, Nick repeatedly
called them asking to be picked up. Based upon Nick’s request, Becker, Marvin, and
Devin drove back to Nick’s house to get him.
{¶ 4} When they arrived at the residence, the front door was wide open, and they
could hear screaming between Nick and Patton. They also saw items being thrown
outside the residence onto the ground. While Becker and Marvin stayed in Devin’s car,
1Neither Devin nor Nick testified at trial and no testimony was provided as to their last names, such that we will refer to them only by their first names. -3-
Devin went inside to try to calm the situation. When Becker saw a phone thrown out of
the house, she got out of the car to see whose phone it was; she recognized it as Devin’s
phone, which she picked up. Becker approached the house up to the porch to check on
Nick and Devin and saw Patton sitting on the steps. Both Becker and Marvin testified
that Becker asked Patton what was going on and if everything was ok.
{¶ 5} According to Becker, Patton was immediately aggressive and cursing at her
when she got up to the porch area. Patton told Becker to leave, so Becker started
walking back to the car. By then, Marvin had gotten out of the car to meet up with Becker,
because she was concerned about Becker. Marvin and Patton exchanged words, and
Patton hit Marvin in the face with a closed fist, causing Marvin to fall to the ground; Patton
then struck Marvin again. Becker and Marvin managed to run away and get back into
Devin’s car.
{¶ 6} Once inside the vehicle, Becker called the police. After Becker hung up
the phone with the police, Patton approached Devin’s vehicle, opened the front passenger
door, smacked Becker multiple times, and poked her in the eye. Becker did not have
visible injuries but, according to Becker, it hurt and she was a little sore. Patton then
tried to get into the back seat of the car where Marvin was sitting, but Marvin had locked
the door to prevent Patton from entering.
{¶ 7} Shortly thereafter, the police arrived. According to the officers, Patton was
overly aggressive, intoxicated, and generally belligerent. After Patton threatened to get
a gun and shoot Becker and Marvin, Patton was arrested. The following day, Marvin had
a visible injury on her forehead and a black eye that got worse over the following few -4-
days.
{¶ 8} Patton testified on her own behalf at trial. She stated that on October 31,
2021, she and her friends were in the Oregon district, and she planned to meet up with
Nick and his friends. She and Nick had been together for about four years, but things
were not going well, and she texted Nick telling him to get his stuff out of the house and
that their relationship was over. Patton got a ride home from friends but she did not have
a key to get inside, so she contacted Nick to let her in. When Nick arrived, Patton told
him that he could not stay the night, but he could get his things and get out.
{¶ 9} By the time Devin, Marvin, and Becker returned, Patton had thrown several
of Nick’s things out of the house, and Devin went inside to calm Nick down. According
to Patton, while she was on her porch, both Marvin and Becker started yelling at her from
the car, and Patton told them that what was going on had nothing to do with them. While
they were yelling back and forth, Marvin and Becker got out of the car. Patton told them
to stay in the car and not to come on her property several times. Patton claimed she
was emotionally upset and felt threatened and scared by the other two women. Patton
testified that when Marvin and Becker got out of the car, they approached her in an
unfriendly manner. Patton claimed that Marvin, whom she did not know, was arguing
with her, was the aggressor, and was using profanity. Although Patton repeatedly told
the two women to leave her property, they refused, so Patton told Marvin that she had
one more warning to get off her property, but because “she wasn’t going to leave,” Patton
hit Marvin one time above the eye and Marvin fell to the ground. Patton stated that the
two women then went back to the car while she went inside her house. -5-
{¶ 10} According to Patton, while Patton continued to try to get Nick’s things out of
the house, Marvin and Becker started screaming at her again from their car, so Patton
walked up to the car and opened Becker’s door. The car was not on Patton’s property
but on the street in front of the house. Patton denied ever touching Becker but admitted
she did put her hand up and was yelling back and forth with Marvin, who was sitting in
the back seat.
{¶ 11} According to Patton, Marvin and Becker were never allowed to be at her
house. While she acknowledged that they were Nick’s friends whom he had invited over,
it was only to pick him up and get his stuff. Patton confirmed that Marvin did not
physically touch her in any way before Patton hit her, but she claimed that Marvin had
verbally assaulted her. Even though Patton admitted to hitting Marvin in the face, she
did not believe she had caused Marvin’s black eye.
{¶ 12} At the conclusion of the bench trial, Patton was found guilty as charged.
She was sentenced to 180 days in jail, with credit for one day served and the remaining
time suspended, one year of basic supervised probation, an alcohol and drug assessment
with any follow-up treatment, and anger management classes, and she was ordered to
pay court costs. Per Patton’s request, the trial court suspended her sentence pending
appeal. Patton appeal.
II. Analysis
{¶ 13} Patton’s sole assignment of error states:
THE TRIAL COURT ERRED WHEN IT SUSTAINED THE STATE’S
HEARSAY OBJECTION TO PATTON’S [TESTIMONY] WHICH -6-
PREVENTED HER FROM ASSERTING HER DEFENSE.
{¶ 14} According to Patton, the trial court erred when it excluded a statement made
during Patton’s testimony based on a hearsay objection that precluded Patton from fully
asserting her defense of self-defense. We find no merit to her argument.
III. Standard of Review
{¶ 15} There has been a split of authority within the appellate districts on the
appropriate standard of review regarding the admission of hearsay evidence, with some
courts applying an abuse of discretion standard while others apply de novo review. See
HSBC Bank USA, Natl. Assn. v. Gill, 2019-Ohio-2814, 139 N.E.3d 1277, ¶ 6-10 (1st Dist.)
(documenting a split between courts of appeals concerning the proper standard of review
to apply when reviewing the admission of hearsay but concluding that an abuse of
discretion standard is consistent with Supreme Court precedent). Our district has been
consistent in applying an abuse of discretion standard of review to the determination of
the admissibility of hearsay evidence in both civil and criminal contexts. E.g., Abrams v.
Abrams, 2017-Ohio-4319, 92 N.E.3d 368, ¶ 31 (2d Dist.) (“We review rulings regarding
hearsay under an abuse-of-discretion standard.”); State v. Hawkins, 2d Dist. Montgomery
No. 29013, 2021-Ohio-3373, ¶ 57 (applying abuse of discretion standard for review of
admissibility of hearsay statements).
{¶ 16} The Supreme Court of Ohio has explicitly stated that “[o]rdinarily, we review
a trial court's hearsay rulings for an abuse of discretion.” State v. McKelton, 148 Ohio
St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97, citing State v. Hymore, 9 Ohio St.2d
122, 128, 224 N.E.2d 126 (1967). McKelton clarified that evidentiary rulings that -7-
implicate the confrontation clause, however, are reviewed de novo. Id., citing United
States v. Henderson, 626 F.3d 326, 333 (6th Cir.2010). Hymore, as relied upon in
McKelton, applied the oft-cited rule that “[t]he trial court has broad discretion in the
admission and exclusion of evidence and unless it has clearly abused its discretion and
the defendant has been materially prejudiced thereby, this court should be slow to
interfere.” Hymore at 128. The Supreme Court has applied an abuse of discretion
standard in other cases as well. See, e.g., State v. Muttart, 116 Ohio St.3d 5, 2007-
Ohio-5267, 875 N.E.2d 944 (applying abuse of discretion standard in finding that child’s
hearsay statements were admissible under a hearsay exception); State v. Dever, 64 Ohio
St.3d 401, 414, 596 N.E.2d 436 (1992) (holding that in cases in which there is hearsay
that could be admitted under Evid.R. 803, 804, or 807, the trial court judge retains
discretion to determine which hearsay exception, if any, is most appropriate to admit the
evidence).
{¶ 17} The determination of whether a statement is deemed hearsay or whether
an exception applies is necessarily determined based on the particular facts and
circumstances of the case, which the trial court is in the best position to resolve. For
example, the determination of whether a statement constitutes an excited utterance,
which is an exception to the hearsay rule, requires the trial court to discern if the minimum
criteria has been submitted by the proponent to show that the statement was “relating to
a startling event or condition made while the declarant was under the stress of excitement
caused by the event or condition.” Evid.R. 803(2). As the Supreme Court of Ohio
explained: -8-
“It is elementary that the trial judge is to decide those questions of fact which
must be decided in order to determine whether certain evidence is
admissible. * * * In the instant case, the trial judge, in determining whether
this declaration was admissible, necessarily had to decide certain questions
of fact. If his decision on those questions of fact, as reflected in his ruling
on the admissibility of this declaration, was a reasonable decision, an
appellate court should not disturb it. In other words, we believe that the
decision of the trial judge, in determining whether or not a declaration should
be admissible under the spontaneous exclamations exception to the
hearsay rule, should be sustained where such decision appears to be a
reasonable one, even though the reviewing court, if sitting as a trial court,
would have made a different decision.” Thus, this court has established
precedent holding that an appellate court should allow a wide discretion in
the trial court to determine whether in fact a declarant was at the time of an
offered statement still under the influence of an exciting event.
State v. Duncan, 53 Ohio St.2d 215, 219-220, 373 N.E.2d 1234 (1978), quoting Potter v.
Baker, 162 Ohio St. 488, 500, 124 N.E.2d 140 (1955).
{¶ 18} In this case, the confrontation clause is not at issue. Following the
precedent of the Ohio Supreme Court and our precedent, we apply an abuse of discretion
standard in reviewing a trial court’s hearsay ruling. McKelton at ¶ 97. “Abuse of
discretion” has been defined as an “unreasonable, arbitrary, or unconscionable use of
discretion, or as a view or action that no conscientious judge could honestly have taken.” -9-
State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. When
applying the abuse of discretion standard, an appellate court must not substitute its
judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621,
614 N.E.2d 748 (1993). “The mere fact that a reviewing court would have reached a
different result is not enough, without more, to find error.” State v. Beechler, 2d Dist.
Clark No. 1999-CA-54, 2010-Ohio-1900, ¶ 67.
IV. Hearsay
{¶ 19} Defendants have a constitutional right in criminal trials to “a meaningful
opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485,
104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). However, “this constitutional right is not absolute
and does not require the admission of all evidence favorable to the defendant.”
(Emphasis sic.) State v. Swann, 119 Ohio St.3d 552, 2008-Ohio-4837, 895 N.E.2d 821,
¶ 13. “The accused does not have an unfettered right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under standard rules of evidence.”
Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988).
{¶ 20} Evid.R. 801(C) defines hearsay as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered into evidence to prove the truth
of the matter asserted in the statement.” Hearsay is generally inadmissible unless
specifically provided for by the Ohio or United States Constitutions, Ohio statutes, Ohio
evidence rules, or rules prescribed by the Ohio Supreme Court. Evid.R. 802. The
Supreme Court of Ohio has found that “testimony which explains the actions of a witness
to whom a statement was directed, such as to explain the witness’ activities, is not -10-
hearsay. Likewise, it is non-hearsay if an out-of-court statement is offered to prove a
statement was made and not for its truth, * * *, to show a state of mind, * * * or to explain
an act in question.” (Citations omitted.) State v. Maurer, 15 Ohio St.3d 239, 262, 473
N.E.2d 768 (1984). Evid.R. 803 and Evid.R. 804 list several hearsay exceptions, such
as present sense impression and statement against interest, while Evid.R. 807
specifically applies to hearsay objections in child abuse cases. See generally Evid.R.
803, 804, and 807.
V. Patton’s Statement
{¶ 21} During Patton’s testimony, she discussed Devin, Marvin, and Becker’s
arrival at her house in Devin’s car. The following exchange occurred that is the subject
of Patton’s argument on appeal:
THE DEFENSE: And so, were they saying things out of the car?
WITNESS PATTON: Yeah so, I was a crazy b * * *, and you know I
didn’t need to be doing all that. I told them to stay out of it. It[’]s none
of [their] business. Devin had then told them to stop yelling at me it [sic]
not our [sic] business.
THE STATE: Objection You[r] Honor hearsay, ask that it be stricken.
THE COURT: Sustained[.]
THE DEFENSE: So, you can’t talk about other things that people had said.
So, then at some point Devin gets out of the car, is that right?
WITNESS PATTON: Right.
(Emphasis added.) Trial Tr., p. 75. -11-
{¶ 22} Specifically, Patton challenges the exclusion of her testimony regarding
what Marvin and Becker allegedly said to her while they were inside the car, i.e. the
highlighted portion above. She does not claim on appeal that any of the other out-of-
court statements made during that portion of her testimony were excluded in error.
When the State objected to Patton’s statement at trial, Patton provided no explanation to
counter the hearsay allegation. Patton now claims on appeal that it was not hearsay
because she “was merely attempting to show what Marvin and Becker said to her to show
that her actions were taken in self-defense.” Brief of Appellant, p. 5. Patton further
contends that the exclusion of this testimony prejudiced her ability to present a complete
defense.
{¶ 23} On its face, the statement appears to be hearsay, and there was no obvious
hearsay exception that applied. Patton did not testify that she reacted to those
statements in any way or explain how they affected her. She also did not establish a
foundation for admitting them as excited utterances. Based on the testimony
immediately following the excluded statement, Patton testified she just went about her
business removing items from the home as she had prior to the statements being made.
Had Patton established a better foundation for the admission of the statement, it is
possible that it could have been admitted. However, under these facts, we do not find
that the trial court erred in excluding the statements.
{¶ 24} The foremost problem with Patton’s argument is that even if the statements
were improperly excluded, Patton cannot establish any prejudice. Immediately following
the above cited testimony in question, the following exchange occurred: -12-
THE DEFENSE: So, when [Devin] gets out the car and what happens.
WITNESS PATTON: He talked to me for a second and then he goes in
and kind of letting me know what he was going to do. He went in to go
[calm] Nick down and hopefully get him out of the house. At this point I’m
still putting stuff out of the house and [he’s] in the house talking to Nick trying
to calm him down. I’m just still up and down the stairs bringing stuff out,
bringing stuff out. So, the next time I end up on the porch the girls start
yelling that again, and I was like this has nothing to do with you guys.
THE DEFENSE: What were they, if you remember, what were they
yelling?
WITNESS PATTON: Just that I was a crazy b * * * and there was no
reason for me to be doing that. Just whatever just a whole bunch of
crazy stuff. I didn’t even know em [sic] I didn’t even know why they had
an opinion on the matter of what was going on between me and my
boyfriend.
THE DEFENSE: At some point they get out of the car, is that right?
WITNESS PATTON: So yeah, at this point we are yelling back and forth
they are in the car, and they start getting out of the car and I told them to
stay in the car do not come on my property and I said it multiple, multiple,
multiple times. * * *
(Emphasis added.) Trial Tr., p. 75-76.
{¶ 25} No objection to the above quoted testimony was made by the State. Thus, -13-
assuming arguendo that the trial court erred in sustaining the State’s hearsay objection
as to Patton’s prior statements in question, the error was harmless, because the same
testimony was later admitted into evidence. Therefore, the original exclusion of the
testimony did not affect Patton’s substantial rights. Evid.R. 103 establishes that an
evidentiary ruling by a trial court that excludes certain evidence may not be the basis of
a claim of error unless the person claiming that error can establish: (1) that a substantial
right has been affected by the exclusion, and (2) an offer of proof as to the substance of
the evidence has been timely made or is apparent from the record. State v. Gilmore, 28
Ohio St.3d 190, 191, 503 N.E.2d 147 (1986). “If a party claiming error is unable to
establish the first requirement, the error is deemed harmless. If the party is unable to
establish the second requirement, the error is deemed waived.” Campbell v. Johnson,
87 Ohio App.3d 543, 551, 622 N.E.2d 717 (2d Dist.1993). For an error to affect
substantial rights of a defendant, the error must have been prejudicial, meaning that it
must have affected the outcome of the trial court proceedings. State v. Fisher, 99 Ohio
St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, citing United States v. Oleano, 507 U.S.
725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
{¶ 26} Because Patton’s testimony was made prior to the objection, it is apparent
from the record the substance of the evidence that was excluded. However, we cannot
find that Patton’s substantial rights were affected. Considering that the same testimony
regarding the statements Marvin and Becker allegedly made while still in the car was
presented by Patton immediately after the objection at issue, the trial court heard the
evidence and considered it in determining Patton’s guilt. See State v. Conway, 108 Ohio -14-
St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 123 (finding that exclusion of the
defendant’s expert witness’s testimony and exhibits did not restrict the defendant’s ability
to present a defense or affect his substantial rights where the information the defendant
sought to enter was admitted by testimony of other witnesses). In light of Patton’s
permitted testimony and all other evidence adduced at trial, Patton was not prevented
from producing evidence in support of her defense, and the outcome of the trial would not
have changed if the trial court had overruled the State’s objection. Accordingly, her
assignment of error is overruled.
VI. Conclusion
{¶ 27} Having overruled the sole assignment of error, the trial court’s judgment will
be affirmed.
.. . . . . . . . . . . . .
TUCKER, P.J. and DONOVAN, J., concur.
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Stephanie L. Cook Amy B. Musto Andrew D. Sexton Ashley Thomas Christopher Bazeley Hon. Mia Wortham Spells