State v. Platfoot

916 N.E.2d 1147, 183 Ohio App. 3d 349
CourtOhio Court of Appeals
DecidedJuly 31, 2009
DocketNo. 22865
StatusPublished
Cited by4 cases

This text of 916 N.E.2d 1147 (State v. Platfoot) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Platfoot, 916 N.E.2d 1147, 183 Ohio App. 3d 349 (Ohio Ct. App. 2009).

Opinion

Froelich, Judge.

{¶ 1} Kenneth L. Platfoot appeals from a judgment of the Dayton Municipal Court, which found him guilty of improper operation of a motor vehicle and of failure to stop after an accident and sentenced him accordingly.

{¶ 2} Because the trial court improperly admitted hearsay testimony about who was at fault in the accident, the conviction for improper operation of a motor vehicle will be reversed. The conviction for failure to stop was supported by the evidence and will be affirmed.

I

{¶ 3} On the morning of March 20, 2008, Platfoot was driving south on Interstate 75 near the Route 4 interchange in Dayton in a red pickup truck. At the same time and place, Connie McKamey was also driving south on Interstate 75 in a white Oldsmobile, on her way to work in downtown Dayton. The driver’s side of McKamey’s Oldsmobile and the passenger side of Platfoot’s truck collided as the vehicles traveled alongside one another. There was a narrow shoulder and [351]*351road construction in the vicinity of the accident, and neither driver stopped on the interstate.

{¶ 4} According to the state’s evidence, McKamey called the police, pulled off the interstate at the second exit, First Street, and met a police officer near Sinclair Community College to report the accident. Dayton Police Officer Derric McDonald took her statement and examined the Oldsmobile. Platfoot proceeded to work in Waynesville, and he called the Highway Patrol that evening after he had returned home from work. Several days later, he met with Dayton Detective Gregory Jackson, who inspected the damage to the truck and took a written statement from him. Jackson also talked with McKamey by phone and reviewed Officer McDonald’s report. Based on his investigation, Jackson cited Platfoot for improper operation in violation of the Revised Code of General Ordinances of the City of Dayton Section 71.18 and for failure to stop after an accident in violation of R.C. 4549.02.

{¶ 5} The trial court conducted a bench trial on May 28, 2008, and found Platfoot guilty as charged. He was fined $25 for improper operation, plus court costs, and his driver’s license was suspended for six months retroactive to the date of the accident. Although he was found guilty of failure to stop after an accident, no fines or court costs were imposed on that charge.

{¶ 6} Platfoot raises two assignments of error on appeal.

II

{¶ 7} Platfoot’s first assignment of error states:

{¶ 8} “The court’s admission of hearsay evidence denied appellant a fair trial.”

{¶ 9} Platfoot claims that the trial court allowed “clearly inadmissible” hearsay evidence, over objection, when Officer McDonald testified that a witness to the accident had corroborated McKamey’s version of events.

{¶ 10} Evid.R. 801(C) defines hearsay as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” A “statement,” as included in the definition of hearsay, is an oral or written assertion or nonverbal conduct of a person if that conduct is intended by him as an assertion. Evid.R. 801(A).

{¶ 11} At trial, Officer McDonald, Detective Jackson, McKamey, Platfoot, and one of Platfoot’s passengers testified. McKamey testified that she had been driving in the center lane of Interstate 75 and that Platfoot had veered into her lane from her left as that lane exited to Route 4. Platfoot and his passenger testified that they had been in the middle lane and that McKamey had veered into their lane of traffic from the right lane of the interstate.

[352]*352{¶ 12} Officer McDonald and Detective Jackson testified about their examinations of the parties’ vehicles, the parties’ accounts of the accident, and, in Officer McDonald’s case, his examination of the scene of the accident. Officer McDonald also testified that he had talked by telephone with a witness to the accident, whom he identified as “Mr. Webb.” No evidence was offered at trial as to Webb’s vantage point at the time of the accident or how the police became aware that Webb had witnessed the accident. The prosecutor asked Officer McDonald whether his interview with Webb corroborated McKamey’s explanation of what had happened. When defense counsel objected to this question, the prosecutor stated, “I’m not asking for what he said Judge. I just wanted to know whether it cooberated [sic] or not.” The court overruled the objection, and Officer McDonald responded that Webb’s statement had corroborated McKamey’s account of the accident.

{¶ 18} Platfoot contends that the trial court erred in allowing Officer McDonald to testify that Webb had corroborated McKamey’s account of the accident. He claims that McDonald’s statement about Webb “was plainly testimonial in nature” and there was no evidence that Webb was unavailable to testify. In response, the state asserts that Officer McDonald’s statements about the information provided by Webb were not hearsay because “Officer McDonald was never asked, nor did he attempt to repeat any statement made to him by Mr. Webb.” The state relies on State v. Grimes (July 2, 1986), Cuyahoga App. No. 50762, 1986 WL 7523, in support of its argument.

{¶ 14} Other appellate districts have held that a police officer’s statement that a witness corroborated information during an investigation is not hearsay because no specific out-of-court statement is presented. Grimes; State v. Wellman, Franklin App. No. 05AP-386, 2006-Ohio-3808, 2006 WL 2057895, ¶ 16. See also State v. Stedman (Nov. 1, 2001), Cuyahoga App. No. 77334, 2001 WL 1398469. We disagree with these holdings.

{¶ 15} The fact that a “Mr. Webb,” whose vantage point, vision acuity, memory, connection to the parties, etc., were unknown, let alone untested, verified, supported, or strengthened McKamey’s “explanation of events” was obviously offered by the state for some reason.

{¶ 16} The historic purpose of the hearsay rule is “to exclude statements of dubious reliability that cannot be tested by cross-examination.” State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 70. If such “corroboration” can be admitted over objection, then in a case with numerous eyewitnesses, only one would need to be called and the officer could be asked whether all the others “corroborated” the one witness’s testimony. Moreover, the admission of the officer’s statement about what Webb said raises constitution[353]*353al questions that we need not address. Crawford, v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177.

{¶ 17} In our opinion, there is no substantive difference between allowing a police officer to state which of two opposing views an out-of-court witness corroborated and allowing him to recount the actual substance of an out-of-court witness’s statement. In other words, Officer McDonald testified to Webb’s oral assertion about how the accident had occurred, even if he did not recount it verbatim. Such testimony violated Evid.R. 802, and no evidence was offered that the testimony fell within one of the exceptions set forth in Evid.R. 803. The trial court erred in allowing Officer McDonald to testify about the substance (and the “unexamined truth”) of Webb’s account of the accident, even if his actual statements were not repeated.

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Bluebook (online)
916 N.E.2d 1147, 183 Ohio App. 3d 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-platfoot-ohioctapp-2009.