[Cite as Toledo v. Green, 2015-Ohio-386.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
City of Toledo Court of Appeals Nos. L-14-1086 L-14-1087 Appellant Trial Court Nos. CRB-13-18817 v. CRB-13-19524
Darrick Lamont Green, Jr. DECISION AND JUDGMENT
Appellee Decided: January 30, 2015
*****
David Toska, City of Toledo Chief Prosecutor, and Henry Schaefer, Assistant Prosecutor, for appellant.
Steven T. Casiere, for appellee.
JENSEN, J.
{¶ 1} Plaintiff-appellant, the city of Toledo, appeals the April 22, 2014 decision of
the Toledo Municipal Court dismissing the city’s case against defendant-appellee,
Darrick Lamont Green, Jr. For the reasons that follow, we reverse. I. Background
{¶ 2} Green was charged in the Toledo Municipal Court with two counts of
domestic violence, in violation of Toledo Municipal Code 537.19A, and, alternatively,
two counts of assault, in violation of Toledo Municipal Code 537.03A. The events
leading to these charges occurred on October 29, 2013, when Green allegedly slapped
and choked Lena Garth, the mother of one of his children (Toledo Municipal Court case
No. CRB-13-18817), and on November 11, 2013, when Green allegedly slapped Brandy
Blackwood several times during an argument (Toledo Municipal Court case No. CRB-
13-19524). Blackwood and Green also have children together.
{¶ 3} The case was set for a November 27, 2013 hearing on a temporary
protection order (“TPO”), but the victims failed to appear and no TPO was issued. Green
entered a plea of not guilty and the case was scheduled for a January 7, 2014 trial. Due to
a Level 3 snow emergency, the courthouse was closed that day and the matter was reset
for trial on March 18, 2014. Both victims failed to appear, but officers were present. The
city advised the court that it was unable to proceed without the victim in case No. CRB-
13-19524, the case involving Blackwood, but it was able to proceed in case No. CRB-13-
18817, involving Garth. It asked the court to reset case No. CRB-13-19524. Green
moved to dismiss for want of prosecution. The trial court reset both cases for April 22,
2014, at 8:30 a.m., and ordered the victims to appear and the prosecutor to subpoena
them.
2. {¶ 4} On April 22, 2014, defendant moved for dismissal when the victims again
failed to appear. The city told the court that it was prepared to proceed without them, but
asked that the trial be reset for that afternoon. The court observed that the officers were
also not in court. The city responded that it had all the information it needed, including
9-1-1 calls and reports from the officers, but asked again that the case be postponed until
afternoon. The trial court, apparently wishing to go forward immediately, expressed that
it did not believe it possible for the city to overcome Crawford v. Washington, 541 U.S.
36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), where the U.S. Supreme Court held that
admission of out-of-court testimonial evidence violates the Sixth Amendment unless the
witness is unavailable and the defendant had a prior opportunity to cross-examine.
Despite the city’s insistence that it had sufficient evidence to proceed, the court dismissed
the cases without prejudice. The city vociferously objected and asked the court to state
its reason for dismissing:
The court: I’m dismissing the case, the victim failed to appear and I
don’t see that it meets Crawford, so.
Ms. West-Estell [for the city]: Thank you.
The court: Sixth Amendment issues. There you go.
Ms. West-Estell: Okay.
The court: Be happy to get appealed on this one. So we can finally
get some decisions.
3. Ms. West-Estell: He beat up these women within 12 days of one
another, Judge.
***
The court: Didn’t—I will not have—don’t put me to say whether he
beat them or not, I don’t know that. They are not here interested enough to
tell and they just wanted to set this. I don’t know what happened. Innocent
until proven guilty.
Ms. West-Estell: Except there’s no trial so we can’t—you know,
there’s not even that.
The court: They can’t—this is a trial date and nobody’s here.
Ms. West-Estell: And the City’s already indicated we have
sufficient evidence to proceed.
The court: Then we should have had them liasoned in for today.
The officer was here last time and said he would be here.
Ms. West-Estell: But, Judge, the City could still proceed without the
officer. We have sufficient evidence.
The court: Without the officer?
Ms. West-Estell: Yes, I’ve already said we have sufficient evidence
to proceed.
The court: Then this is a trial date, they should be here. Second trial
date. I am not the office of the prosecutor.
4. {¶ 5} The city appealed the trial court’s decisions and the appeals were
consolidated. The city assigns the following error for our review:
THE TRIAL COURT ERRED WHEN IT DISMISSED THE
CITY’S CASE WHEN THE CITY WAS PREPARED TO PROCEED TO
TRIAL.
II. Law and Analysis
{¶ 6} As the Ohio Supreme Court has recognized, “[t]rial judges are at the front
lines of the administration of justice in our judicial system, dealing with the realities and
practicalities of managing a caseload and responding to the rights and interests of the
prosecution, the accused, and victims.” State v. Busch, 76 Ohio St.3d 613, 616, 669
N.E.2d 1125 (1996). As such, they have the power to regulate the practice before it and
protect the integrity of its proceedings. Id. Consistent with this power, Civ.R. 48(B)
implicitly authorizes the court to dismiss a criminal action over the prosecution’s
objection if dismissal serves the interests of justice. The rule provides that “[i]f the court
over objection of the state dismisses an indictment, information, or complaint, it shall
state on the record its findings of fact and reasons for the dismissal.” The rule does not
permit dismissal, however, “solely for the reason that the evidence is insufficient to
support conviction.” State v. Sanders, 7th Dist. Columbiana No. 12-CO-35, 2013-Ohio-
5220, ¶ 13, citing State v. Nihiser, 4th Dist. No. 03CA21, 2004-Ohio-4067, ¶ 17.
{¶ 7} We review a trial court’s decision to dismiss a case under Crim.R. 48(B) for
an abuse of discretion. Busch at 616. An abuse of discretion is “more than an error of
5. law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
{¶ 8} The trial court stated its findings of fact supporting its decision to dismiss
the city’s case. Specifically, the court believed that Green’s Sixth Amendment rights
would be violated were the city to proceed without the victims or officers present and
available for examination. In reaching this decision, the court relied on Crawford, 541
U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d 177. In Crawford, the U.S. Supreme Court held
that admission at trial of out-of-court “testimonial” statements of witnesses violates the
Confrontation Clause unless the witness is unavailable and the defendant had a prior
opportunity to cross-examine. Id. at paragraph (a) of the syllabus. The right to
confrontation is not violated, however, where the statements at issue are non-testimonial.
Id.
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[Cite as Toledo v. Green, 2015-Ohio-386.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
City of Toledo Court of Appeals Nos. L-14-1086 L-14-1087 Appellant Trial Court Nos. CRB-13-18817 v. CRB-13-19524
Darrick Lamont Green, Jr. DECISION AND JUDGMENT
Appellee Decided: January 30, 2015
*****
David Toska, City of Toledo Chief Prosecutor, and Henry Schaefer, Assistant Prosecutor, for appellant.
Steven T. Casiere, for appellee.
JENSEN, J.
{¶ 1} Plaintiff-appellant, the city of Toledo, appeals the April 22, 2014 decision of
the Toledo Municipal Court dismissing the city’s case against defendant-appellee,
Darrick Lamont Green, Jr. For the reasons that follow, we reverse. I. Background
{¶ 2} Green was charged in the Toledo Municipal Court with two counts of
domestic violence, in violation of Toledo Municipal Code 537.19A, and, alternatively,
two counts of assault, in violation of Toledo Municipal Code 537.03A. The events
leading to these charges occurred on October 29, 2013, when Green allegedly slapped
and choked Lena Garth, the mother of one of his children (Toledo Municipal Court case
No. CRB-13-18817), and on November 11, 2013, when Green allegedly slapped Brandy
Blackwood several times during an argument (Toledo Municipal Court case No. CRB-
13-19524). Blackwood and Green also have children together.
{¶ 3} The case was set for a November 27, 2013 hearing on a temporary
protection order (“TPO”), but the victims failed to appear and no TPO was issued. Green
entered a plea of not guilty and the case was scheduled for a January 7, 2014 trial. Due to
a Level 3 snow emergency, the courthouse was closed that day and the matter was reset
for trial on March 18, 2014. Both victims failed to appear, but officers were present. The
city advised the court that it was unable to proceed without the victim in case No. CRB-
13-19524, the case involving Blackwood, but it was able to proceed in case No. CRB-13-
18817, involving Garth. It asked the court to reset case No. CRB-13-19524. Green
moved to dismiss for want of prosecution. The trial court reset both cases for April 22,
2014, at 8:30 a.m., and ordered the victims to appear and the prosecutor to subpoena
them.
2. {¶ 4} On April 22, 2014, defendant moved for dismissal when the victims again
failed to appear. The city told the court that it was prepared to proceed without them, but
asked that the trial be reset for that afternoon. The court observed that the officers were
also not in court. The city responded that it had all the information it needed, including
9-1-1 calls and reports from the officers, but asked again that the case be postponed until
afternoon. The trial court, apparently wishing to go forward immediately, expressed that
it did not believe it possible for the city to overcome Crawford v. Washington, 541 U.S.
36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), where the U.S. Supreme Court held that
admission of out-of-court testimonial evidence violates the Sixth Amendment unless the
witness is unavailable and the defendant had a prior opportunity to cross-examine.
Despite the city’s insistence that it had sufficient evidence to proceed, the court dismissed
the cases without prejudice. The city vociferously objected and asked the court to state
its reason for dismissing:
The court: I’m dismissing the case, the victim failed to appear and I
don’t see that it meets Crawford, so.
Ms. West-Estell [for the city]: Thank you.
The court: Sixth Amendment issues. There you go.
Ms. West-Estell: Okay.
The court: Be happy to get appealed on this one. So we can finally
get some decisions.
3. Ms. West-Estell: He beat up these women within 12 days of one
another, Judge.
***
The court: Didn’t—I will not have—don’t put me to say whether he
beat them or not, I don’t know that. They are not here interested enough to
tell and they just wanted to set this. I don’t know what happened. Innocent
until proven guilty.
Ms. West-Estell: Except there’s no trial so we can’t—you know,
there’s not even that.
The court: They can’t—this is a trial date and nobody’s here.
Ms. West-Estell: And the City’s already indicated we have
sufficient evidence to proceed.
The court: Then we should have had them liasoned in for today.
The officer was here last time and said he would be here.
Ms. West-Estell: But, Judge, the City could still proceed without the
officer. We have sufficient evidence.
The court: Without the officer?
Ms. West-Estell: Yes, I’ve already said we have sufficient evidence
to proceed.
The court: Then this is a trial date, they should be here. Second trial
date. I am not the office of the prosecutor.
4. {¶ 5} The city appealed the trial court’s decisions and the appeals were
consolidated. The city assigns the following error for our review:
THE TRIAL COURT ERRED WHEN IT DISMISSED THE
CITY’S CASE WHEN THE CITY WAS PREPARED TO PROCEED TO
TRIAL.
II. Law and Analysis
{¶ 6} As the Ohio Supreme Court has recognized, “[t]rial judges are at the front
lines of the administration of justice in our judicial system, dealing with the realities and
practicalities of managing a caseload and responding to the rights and interests of the
prosecution, the accused, and victims.” State v. Busch, 76 Ohio St.3d 613, 616, 669
N.E.2d 1125 (1996). As such, they have the power to regulate the practice before it and
protect the integrity of its proceedings. Id. Consistent with this power, Civ.R. 48(B)
implicitly authorizes the court to dismiss a criminal action over the prosecution’s
objection if dismissal serves the interests of justice. The rule provides that “[i]f the court
over objection of the state dismisses an indictment, information, or complaint, it shall
state on the record its findings of fact and reasons for the dismissal.” The rule does not
permit dismissal, however, “solely for the reason that the evidence is insufficient to
support conviction.” State v. Sanders, 7th Dist. Columbiana No. 12-CO-35, 2013-Ohio-
5220, ¶ 13, citing State v. Nihiser, 4th Dist. No. 03CA21, 2004-Ohio-4067, ¶ 17.
{¶ 7} We review a trial court’s decision to dismiss a case under Crim.R. 48(B) for
an abuse of discretion. Busch at 616. An abuse of discretion is “more than an error of
5. law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
{¶ 8} The trial court stated its findings of fact supporting its decision to dismiss
the city’s case. Specifically, the court believed that Green’s Sixth Amendment rights
would be violated were the city to proceed without the victims or officers present and
available for examination. In reaching this decision, the court relied on Crawford, 541
U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d 177. In Crawford, the U.S. Supreme Court held
that admission at trial of out-of-court “testimonial” statements of witnesses violates the
Confrontation Clause unless the witness is unavailable and the defendant had a prior
opportunity to cross-examine. Id. at paragraph (a) of the syllabus. The right to
confrontation is not violated, however, where the statements at issue are non-testimonial.
Id. at 68.
{¶ 9} “[T]he state, like the defendant, has a substantial right to have a criminal
trial conducted according to the proper procedure as established by the Criminal Rules,
by the Constitutions of the United States and of Ohio, and by applicable provisions in the
Revised Code.” State v. Richter, 92 Ohio App.3d 395, 399, 635 N.E.2d 1295 (6th
Dist.1993). The Ohio Rules of Criminal Procedure do not provide for summary
judgment before trial. Nihiser, 4th Dist. Hocking No. 03CA21, 2004-Ohio-4067, at ¶ 7.
{¶ 10} The city repeatedly stated that it was prepared to go forward, despite the
absence of the victims and the officers. It did not elaborate on all the evidence it intended
6. to present, but it insisted that it had all the information it needed, including 9-1-1
recordings and police reports. To be sure, a victim need not always consent or be present
for the city to prosecute a domestic violence charge. As for any 9-1-1 recordings or
police reports, the extent to which that evidence may be barred under Crawford could not
be ruled on before trial. The admissibility of the evidence, as it concerns Crawford, turns
on whether statements contained within those recordings or reports are “testimonial” or
“non-testimonial.” As explained by the U.S. Supreme Court:
[S]tatements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of 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. Davis v. Washington, 547 U.S. 813,
813-14, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
While in many cases statements contained in police reports have been held to be
testimonial, numerous Ohio courts have found statements made during 9-1-1 calls to be
non-testimonial. See, e.g., State v. Douglas, 3d Dist. Marion No. 9-05-24, 2005-Ohio-
6304, ¶ 45; State v. Newell, 5th Dist. Stark No. 2004CA00264, 2005-Ohio-2848, ¶ 23;
State v. Sharpley, 8th Dist. Cuyahoga No. 87393, 2006-Ohio-5246, ¶ 27.
7. {¶ 11} In determining that Crawford could not be overcome before allowing the
city to present its case, the trial court improperly prejudged the evidence. While we do
not discount the possibility that Crawford—or some other evidentiary concern— may
ultimately bar the evidence put forth by the city, any such concerns could have and
should have been addressed during trial as the evidence was presented. The court abused
its discretion in evaluating the quantity and quality of the city’s evidence before it was
presented.
{¶ 12} We, therefore, find the city’s sole assignment of error well-taken.
III. Conclusion
{¶ 13} We reverse the April 22, 2014 judgment of the Toledo Municipal Court
dismissing without prejudice the city’s case against Green and remand for proceedings
consistent with this decision. Green is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
8. Toledo v. Green C.A. Nos. L-14-1086 L-14-1087
Arlene Singer, J. _______________________________ JUDGE Stephen A. Yarbrough, P.J. _______________________________ James D. Jensen, 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.sconet.state.oh.us/rod/newpdf/?source=6.
9.