[Cite as State v. Schnabel, 2019-Ohio-3024.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio Court of Appeals No. WD-18-010
Appellee Trial Court No. 2017CR0140
v.
Richard J. Schnabel DECISION AND JUDGMENT
Appellant Decided: July 26, 2019
*****
Paul A. Dobson, Wood County Prosecuting Attorney, David T. Harold, and Channa B. Beard, Assistant Prosecuting Attorneys, for appellee.
Brian A. Smith, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Richard Schnabel, appeals the February 1, 2018
judgment of the Wood County Court of Common Pleas which, following a jury trial
convicting him of domestic violence, a third-degree felony, sentenced him to 18 months
of imprisonment. For the reasons that follow, we affirm. {¶ 2} On April 20, 2017, appellant was indicted on one count of felony domestic
violence, R.C. 2919.25(A) and 2919.25(D)(4). The charge stemmed from an incident in
the early morning of March 12, 2017, when appellant caused or attempted to cause
physical harm to his wife while they were guests at a hotel located in Perrysburg
Township, Wood County, Ohio. The indictment further alleged that appellant had
pleaded guilty to or had been convicted of two prior domestic violence offenses. On
November 14, 2017, following the state’s motion, the indictment was amended to include
an additional prior domestic violence conviction.
{¶ 3} The case proceeded to a jury trial on December 13, 2017. An investigator
from the Jackson County, Michigan prosecutor’s office testified regarding his attempts to
serve the victim in the case with a subpoena to testify at the trial in the matter. The
investigator stated that he handed the victim the subpoena and she indicated that she
would not appear. The investigator also testified as to the dates of appellant’s prior
Jackson County domestic violence convictions.
{¶ 4} Two Perrysburg Township officers testified that they responded to a
domestic violence in progress in a hotel room at the Holiday Inn French Quarter.
Approaching the reported room number, they observed appellant right outside the door;
he appeared highly intoxicated.
{¶ 5} Officer Scott Mezinger entered the room to speak with the victim. At the
time, she was still on the telephone with the 911 operator. Mezinger stated that she was
very upset, shaking and crying. Officer Mezinger testified that there was a young male in
2. the room determined to be the parties’ child and that their daughter had locked herself in
the bathroom to get away from the altercation. He and the victim were able to get the
child out of the bathroom. Officer Mezinger stated that both children were crying and
very upset.
{¶ 6} Officer Mezinger testified that the victim was “highly agitated” and that she
informed him that she and appellant were arguing and that he threw her down on the
ground by her hair; he observed that some of her hair was pulled out. She complained
that her neck was injured.
{¶ 7} Officer Jeffrey Slusher testified that when he observed appellant in the
hallway he ordered him to stop; after several commends appellant finally acquiesced.
Appellant, visibly intoxicated, stated that he and the victim had been arguing all evening.
Officer Slusher’s testimony of the victim’s version of the events mirrored Officer
Mezinger’s.
{¶ 8} Over objection, the 911 operator testified and the 911 call made by the
victim was played for the jury and admitted into evidence. Two recorded jail calls,
initiated by appellant and involving the victim, were also played for the jury over
objection. The calls mainly consisted of appellant’s attempts to secure the funds to get
out of jail. Initially, the victim was supportive in his attempts but became increasingly
agitated when appellant, confronted with the victim’s allegations, refused to admit to the
incident. Appellant repeatedly indicated that he could not addresses the charges because
3. the telephone call was being recorded. After much discussion, the victim seemingly
understood.
{¶ 9} Following the close of the evidence and jury deliberations, the jury found
appellant guilty of felony domestic violence. The appeal followed the trial court’s
February 1, 2018 sentencing judgment entry with appellant raising three assignments of
error for our review:1
I. Appellant’s rights to due process and confrontation, under the
Sixth Amendment to the United States Constitution and Article I, Section
10 of the Ohio Constitution, were violated by the admission of the
accuser’s hearsay statements.
II. Appellant was denied effective assistance of counsel as
guaranteed by the United States and Ohio Constitution.
III. The trial court’s decision to allow the state to play the 911 call a
second time, during the state’s closing argument, was an abuse of
discretion.
{¶ 10} Appellant’s first assignment of error argues that his rights to due process
and confrontation of witnesses were violated by the admission of his non-testifying
accuser’s statements through the 911 call and the jail calls, and the testimony of the
responding officers.
1 Assignments of Error nos. I and II are identical to appellant’s counsel’s initial brief filed on May 9, 2018. Following her withdraw, a supplemental brief was filed by successor counsel which added appellant’s third assignment of error.
4. {¶ 11} The Sixth Amendment to the United States Constitution provides: “In all
criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the
witnesses against him[.]” In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004), the Supreme Court of the United States held that “[w]here
testimonial evidence is at issue, * * * the Sixth Amendment demands what the common
law required: unavailability [of the declarant] and a prior opportunity for cross-
examination.” Id. at 68.
{¶ 12} The Supreme Court of Ohio, following Crawford, has held that “[f]or
Confrontation Clause purposes, a testimonial statement includes one made ‘under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.’” State v. Stahl, 111 Ohio St.3d 186,
2006-Ohio-5482, 855 N.E.2d 834, paragraph one of the syllabus. The Stahl court further
held that “[i]n determining whether a statement is testimonial for Confrontation Clause
purposes, courts should focus on the expectation of the declarant at the time of making
the statement; the intent of a questioner is relevant only if it could affect a reasonable
declarant’s expectations.” Id. at paragraph two of the syllabus.
The 911 Call and Statements to Responding Officers
{¶ 13} Appellant argues that the victim’s statements to the 911 operator and to
police were testimonial. Appellant contends that the statements are inadmissible hearsay
based upon the Confrontation Clause requirements as set forth in Crawford and Davis v.
5. Washington and Hammon v. Indiana, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224
(2006).
{¶ 14} In Davis, the court held that a 911 telephone call made in response to an
ongoing emergency was not a testimonial statement for Sixth Amendment purposes. Id.
at 826-827. The statement was made as the events were actually happening and they
enabled police assistance.
{¶ 15} In Hammon v. Indiana, the court first noted that it was a much easier task
than Davis. In Hammon, the police reported to a “domestic disturbance.” When police
arrived, the victim was alone on the front porch and appeared somewhat frightened. Id.
at 819. The parties were separated and the alleged victim was questioned about the
events. At trial, the victim did not testify but the responding officer recounted the
statements made by the victim. Id. at 819-820. The court found the victim’s statements to
be testimonial because the facts “objectively indicate[d] that there [was] no such ongoing
emergency, and that the primary purpose of the interrogation [was] to establish or prove
past events potentially relevant to later criminal prosecution.” Id. at 822.
{¶ 16} During the 911 call at issue, the victim is very upset and appellant is still in
the room. The victim is yelling at appellant to get away from her and she confronts
appellant with what he allegedly had just done to her and the fact that that children
witnessed the events. At least one child can be heard crying and appellant can be heard
calling the victim profane names. After a few minutes appellant leaves the room. Soon
thereafter, police arrive and the 911 call ends.
6. {¶ 17} Upon review, we find that the 911 recording was admissible as it was made
in response to an ongoing emergency. At the time of the call, appellant was still in the
room and the victim and the children were clearly upset. The matter had not deescalated.
{¶ 18} Appellant also contends that the statements the victim made to the
responding officers was testimonial where the emergency had passed and the primary
purpose of the officers’ testimony was to gather information of a past crime. Appellant
argues that the facts in Hammon, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224, are
similar to the present facts.
{¶ 19} As set forth above, in Hammon, when the officers arrived on the scene
there was no emergency in progress and the victim indicated that things were fine. Id. at
829-830. The court noted that when the victim was again questioned she was objectively
asked “what happened”; the officer was investigating a possible crime. Id. at 830. Thus,
the court concluded that questioning regarding past events is inherently testimonial
because it does “precisely what a witness does on direct examination * * *.” (Emphasis
in original.) Id.
{¶ 20} This court addressed a similar issue in Toledo v. Loggins, 6th Dist. Lucas
No. L-06-1355, 2007-Ohio-5887. In Loggins, the police arrived approximately two hours
following a domestic violence call. Upon arrival, the alleged victim answered the door
and appeared nervous and frightened but not hysterical. Id. at ¶ 3. The officer noticed
some swelling around the victim’s eye. Based on these facts, we concluded that because
7. there was no emergency in progress at the time of the officers’ arrival, any statements
made were testimonial in nature and, thus, barred by the rules against hearsay. Id. at ¶
25.
{¶ 21} In the present case, the officers arrived while the victim was in the hotel
room and was still on the telephone with the 911 operator. The officers first encountered
appellant in the hallway within a few feet of the door to the room occupied by the victim
and their children. Appellant was visibly intoxicated.
{¶ 22} The officers described the victim as being “very upset,” “crying,”
“shaking,” “highly agitated,” and “yelling.” The parties’ two minor children were also
in the room and were crying and upset; their daughter had locked herself in the bathroom.
The victim complained that appellant grabbed a hold of her by her hair and threw her to
the ground. She complained of an injury to her neck.
{¶ 23} Upon review of these facts, we find that when the officers arrived on the
scene there was an ongoing emergency and that the information obtained by the victim
was to aid in the emergency and was not testimonial in nature. See State v. Williams, 6th
Dist. Lucas No. L-08-1371, 2009-Ohio-6967.
The Jail Calls
{¶ 24} Appellant also challenges the admission of the recording of the two
telephone calls he made to the victim from the Wood County Justice Center following his
arrest. Specifically, appellant argues that the adoptive admission hearsay exception, R.C.
8. 801(D)(2), did not apply as appellant was not “free to disavow” the statements made by
the victim.
(D) Statements which are not hearsay. A statement is not hearsay if:
***
(2) Admission by party-opponent.
The statement is offered against a party and is (a) the party’s own
statement, in either an individual or a representative capacity, or (b) a
statement of which the party has manifested an adoption or belief in its
truth, or (c) a statement by a person authorized by the party to make a
statement concerning the subject, or (d) a statement by the party’s agent or
servant concerning a matter within the scope of the agency or employment,
made during the existence of the relationship, or (e) a statement by a co-
conspirator of a party during the course and in furtherance of the conspiracy
upon independent proof of the conspiracy. (Emphasis added.)
“In order for an adoptive admission to be applicable, the declarant
must have made the statement in the presence of the party against whom
the statement is offered at trial. In addition, the party must have heard and
understood the statement, must have been free to disavow it, and must have
either expressly acknowledged the truth of the statement or remained silent
when a reasonable person would have denied its truthfulness.” State v.
Comstock, 11th Dist. Ashtabula No. 96-A-0058, 1997 Ohio App. LEXIS
9. 3670, *13-14 (Aug. 15, 1997). The requirement that an adoptive admission
take place in the presence of the party does not exclude phone
conversations between the declarant and the party. United States v. Woods,
301 F.3d 556, 562 (7th Cir. 2002).
State v. Long, 2014-Ohio-4416, 19 N.E.3d 981, ¶ 21 (11th Dist.)
{¶ 25} Appellant argues that his failure to deny the accusations of the victim
during the calls was not tantamount to an admission. During the calls, appellant
repeatedly stated that he could not comment on the victim’s statements because the
conversation was being recorded. Thus, appellant asserts that finding otherwise is akin to
allowing the jury to consider his silence as indicative of his guilt. We agree.
{¶ 26} The Second Appellate District recognized this argument in a case involving
a recorded jail call. The court noted:
We recognize the possibility that an incarcerated individual might
choose to remain silent in the face of incriminating accusations not because
he agrees with them but because he does not wish to waive his Fifth
Amendment right to remain silent by speaking while the government is
listening. Where the record suggests that an incarcerated defendant's
exercise of his right to remain silent is a motivating factor in his failure to
refute incriminating allegations made by a private party, an adoptive
admission may not be found. See, e.g. Franklin v. Duncan (N.D. Cal.1995),
884 F.Supp. 1435, 1445-1448, affirmed, (9th Cir.1995), 70 F.3d 75.
10. State v. Gibson, 2d Dist. Greene No. 09-CA-05, 2010-Ohio-1121, ¶ 19.
{¶ 27} As set forth above, during the calls at issue, the victim insisted that
appellant admit what he did or she would not aid him in getting out of jail. The victim
then proceeded to provide details of the incident and commented that she had feared for
her life. Appellant informed the victim that the call was being recorded and that he could
not talk about the case. After much discussion, the victim finally understood that
appellant did not wish to make any potentially incriminating statements while the call
was being recorded.
{¶ 28} Based on the foregoing, we find that appellant’s refusal to discuss the case
was clearly motivated by his desire to exercise his right to remain silent and, thus, there
was no adoptive admission. Although the court erred in allowing the admission of the
jail calls, we need not reverse appellant’s conviction if the error was harmless.
{¶ 29} Harmless error is defined under Crim.R. 52(A) as: “Any error, defect,
irregularity, or variance which does not affect substantial rights shall be disregarded.”
Under the harmless-error standard of review, “the government bears the burden of
demonstrating that the error did not affect the substantial rights of the defendant.” State v.
Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 36, quoting State v.
Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15. There is no distinction
between constitutional and nonconstitutional errors under Crim.R. 52(A). State v.
Morris, 141 Ohio St.3d 399, 2014-Ohio-5051, 24 N.E.3d 1153, ¶ 23. The court stressed
that the rule simply asks whether the rights affected are “substantial.” Id. at ¶ 24.
11. {¶ 30} In Morris, Ohio Supreme Court provided a guide for appellate courts to aid
in determining whether an error has affected the substantial rights of a defendant, thereby
requiring a new trial. First, it must be determined whether the defendant was prejudiced
by the error, i.e., whether the error had an impact on the verdict. Id. at ¶ 25, 27. Next, it
must be determined whether the error was not harmless beyond a reasonable doubt. Id. at
¶ 28. Finally, once the prejudicial evidence is excised, the remaining evidence is weighed
to determine whether it establishes the defendant’s guilt beyond a reasonable doubt. Id.
at ¶ 29, 33.
{¶ 31} Upon review of the remaining admissible evidence at trial, we find that the
erroneously admitted jail calls were not critical to the verdict in this case. The 911 call
made by the victim and the testimony of the responding officers presented ample
evidence of the crime alleged for the jury to find appellant guilty. Further, the evidence
of prior domestic violence convictions elevated the offense to a felony. Appellant’s first
assignment of error is not well-taken.
{¶ 32} In appellant’s second assignment of error, he argues that he received
ineffective assistance of appellate counsel based on counsel’s failure to object to the
admission of the 911 call on the basis of a Confrontation Clause violation and the jail
calls. The state counters that counsel’s failure to object should be considered trial
strategy and not ineffective assistance of counsel.
{¶ 33} Reviewing the trial transcript, we find that counsel objected to the playing
of the 911 call prior to the testimony of the 911 operator. The basis of the objection was
12. not specified. Counsel again objected just prior to the playing of the recording. In
addition, counsel objected to the jail calls and the fact that counsel would be unable to
cross-examine the other individual on the call. The court listened to the calls in camera;
the objection was denied. Counsel again objected to the calls on the record. At the
conclusion of the state’s case, counsel objected to the admission of the 911 call and the
jail calls into evidence. The objection was again denied.
{¶ 34} As to argument that counsel failed to specifically object to the 911 call on
Confrontation Clause grounds we find that any error was harmless as the call, as set forth
above, was clearly admissible. As to the testimony of the investigating officers, counsel
did not object; however, based on our conclusion that the officers encountered an
ongoing emergency, we find that any error was harmless. Accordingly, we find that
appellant’s second assignment of error is not well-taken.
{¶ 35} In appellant’s third and final assignment of error he argues that the trial
court erred by allowing the 911 call to be played during the state’s closing argument.
Prosecutors and defense attorneys are afforded wide latitude during closing arguments to
address what the evidence has shown and what reasonable inferences may be drawn from
that evidence. State v. Black, 181 Ohio App.3d 821, 2009-Ohio-1629, 911 N.E.2d 309, ¶
33 (2d Dist.), citing State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990).
{¶ 36} As set forth above, the admission of the 911 call into evidence was not
error. Thus, we find that the prosecutor was permitted to play it during closing argument.
State v. Morgan, 1st Dist. Hamilton No. C-160495, 2017-Ohio-7489, ¶ 31, citing State v.
13. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 197. Further, statements
made by counsel during opening and closing arguments are not to be considered as
evidence and the court instructed the jury as such. Appellant’s third assignment of error
is not well-taken.
{¶ 37} On consideration whereof, we find that appellant was not prejudiced or
prevented from having a fair trial and the judgment of the Wood County Court of
Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs
of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Christine E. Mayle, P.J. _______________________________ Genea A. Zmuda, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
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