2023 Ohio 3972
Ohio Ct. App.2023Background
- Incident: On November 13, 2020 T.M. (Kelley’s girlfriend since 2017) alleged Kelley assaulted her at her Parma Heights apartment after bar-hopping; Kelley denied being at her apartment and claimed fabrication.
- Charges & result: Kelley was tried by bench trial on aggravated burglary, burglary, abduction, and domestic violence with a specification alleging two prior assault convictions; convicted of abduction and third-degree felony domestic violence (sentenced to concurrent 36-month terms).
- Alibi notice & separation order: Defense filed an alibi notice naming three potential witnesses (Smith, Waters, Wilson). Court ordered separation under Evid.R. 615; defense investigator was allowed to stay. Smith was not called; Waters and Wilson were excluded for violating the separation order.
- Basis for exclusions: Prosecutor produced a jail call from Kelley to Waters in which Kelley discussed the victim’s testimony and suggested Waters would testify about Kelley “coming home” on the 13th; Wilson was observed sitting in the courtroom during the state’s cellphone-location witness testimony.
- Trial evidence: State’s proof included victim testimony, bar manager, cellphone-location analysts, police, and photos of injuries; defense cellphone analyst reached similar location conclusions and defense argued victim was not credible.
- Appeal issues: (1) whether exclusion of the two alibi witnesses violated Kelley’s right to present a defense; (2) whether evidence was insufficient to elevate domestic violence to a third-degree felony based on prior convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of alibi witnesses for violating separation order | Exclusion proper: Waters’ jail call shows Kelley knowingly contacted/encouraged the violation; Wilson heard key testimony in court. | Exclusion prevented presentation of alibi defense; court erred by excluding without proffer or inquiry into testimony. | Waters: exclusion proper (Kelley involved). Wilson: exclusion concerning but no proffer of expected testimony and trial court found credibility tarnished; no reversible prejudice shown — exclusion upheld. |
| Sufficiency to elevate domestic violence to 3rd-degree based on prior convictions | State: T.M. testified she was victim in prior assaults and she cohabited with Kelley since 2017, satisfying "family or household member" element. | Kelley: journal entries for prior convictions do not identify the victim or show the victim was a family/household member; insufficient proof. | Held for State: testimony showed victim identity and cohabitation within statutory definition — sufficient evidence to support third-degree felony elevation. |
Key Cases Cited
- State v. Waddy, 63 Ohio St.3d 424 (Ohio 1992) (purpose of witness separation is to prevent tailoring testimony)
- State v. Smith, 49 Ohio St.3d 137 (Ohio 1990) (trial court discretion to exclude witnesses; requires proof party encouraged/ knew of violation or no prejudice on appeal)
- State v. Chapin, 67 Ohio St.2d 437 (Ohio 1981) (appellate courts will not reverse exclusion when record lacks a proffer of excluded testimony)
- State v. Maurer, 15 Ohio St.3d 239 (Ohio 1984) (reviewing courts should defer to evidentiary rulings absent abuse of discretion and material prejudice)
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for reviewing sufficiency of the evidence)
- State v. Tate, 138 Ohio St.3d 139 (Ohio 2014) (prior conviction used for enhancement is an essential element that the State must prove)
- State v. McGlothan, 138 Ohio St.3d 146 (Ohio 2014) ("cohabitation" includes living together in a relationship from which domestic violence arose)