State v. AnsellState v. Ansell
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Chris J. Sestak, Student Legal Services, Inc., Kent State University, P.O. Box 5190, Kent, OH 44242 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Matthew T. Ansell, appeals from the judgment entry of the Portage County Municipal Court, Kent Division, convicting him of criminal damaging, a misdemeanor of the second degree. For the reasons discussed below, appellant‘s conviction is reversed.
{¶2} At the time of the incident, appellant was leasing a three-bedroom apartment with two other roommates, Carly Williams and Terren Wagner, the
{¶3} Ms. Williams was in the apartment watching television when appellant lost his temper. She testified she did not directly observe appellant strike anything in the apartment. Rather, after hearing the commotion, she located appellant, and merely encouraged him to relax. Appellant calmed and the evening concluded without further incident. Ms. Williams testified she observed no specific damage to the apartment or any of its furnishings at that time.
{¶4} Ms. Wagner returned to the apartment the following day and contacted police. Police arrived and Ms. Wagner signed a criminal complaint alleging appellant damaged the door to her bedroom. On September 3, 2008, a criminal complaint was filed alleging appellant “did knowingly cause, or create a substantial risk of physical harm to the property of another, Terren D. Wagner, without said owner‘s consent, to wit: Door frame to Wagner‘s bedroom,” in violation of
{¶5} At trial, Officer Nicholas Shearer, of the Kent Police Department, testified that he responded to the scene on August 30, 2008. Upon his arrival, he testified that Ms. Wagner explained the alleged circumstances surrounding her call. Over defense counsel‘s objection, the officer related Ms. Wagner‘s version of what occurred, viz., the door to her bedroom was not damaged before she left the apartment the night before; however, upon her return, it was damaged.
{¶6} Next, Ms. Williams was called as a witness for the state. She testified that although she heard appellant striking things, the damage Ms. Wagner alleged was not visible when the bedroom door was closed. Because she did not see appellant strike the door and because Ms. Wagner always kept the door closed, Ms. Williams stated she could not testify appellant caused the damage.
{¶7} At the close of evidence, defense counsel renewed his objection relating to Officer Shearer‘s hearsay testimony, and argued the state failed to produce sufficient evidence to prove appellant committed the crime of criminal damaging. With respect to the former, counsel asserted the officer‘s testimony was improper, and argued Ms. Wagner‘s personal testimony, as the complaining witness, was a procedural necessity. In overruling the objection, the court characterized counsel‘s position as “ludicrous.” The court also overruled counsel‘s sufficiency argument. Appellant was subsequently found guilty of the charge and sentenced to 90 days in jail and a fine of $750. Appellant‘s jail term and $700 of the fine were suspended based upon a series of conditions. This appeal followed.
{¶8} Appellant assigns three errors for this court‘s review. His first assignment of error provides:
{¶10} Evidentiary rulings rest with the sound discretion of the trial court. State v. Long (1978), 53 Ohio St.2d 91, 98. The court‘s ruling on such matters will not be disturbed absent an abuse of discretion which affects a material prejudice upon the defendant. Id. An abuse of discretion consists of more than an error of law or judgment; rather, it implies the court‘s attitude is unreasonable, arbitrary or unconscionable. Berk v. Matthews (1990), 53 Ohio St.3d 161, 169. Reversal under an abuse of discretion standard is not warranted merely because an appellate court disagrees with the trial court‘s resolution. Id. On the contrary, reversal is appropriate only if the abuse of discretion renders “‘the result *** palpably and grossly violative of fact and logic [so] that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.‘” State v. Jenkins (1984), 15 Ohio St.3d 164, 222, quoting Spalding v. Spalding (1959), 355 Mich. 382, 384-385.
{¶11} In the case at bar, the complaining witness, Ms. Wagner, failed to appear for trial. In lieu of Ms. Wagner‘s direct testimony relating to the factual basis of the crime, the state offered her out of court statements, via Officer Shearer, to prove appellant caused the damage at issue. The following exchange took place at trial:
{¶12} “Officer: I received a call that - - initially received a call for a burglary at 1668 Sassafras, Apartment 256.
{¶13} “Prosecutor: That‘s located in Kent, Portage County, State of Ohio?
{¶15} “Prosecutor: Okay. What occurs?
{¶16} “Officer: I arrived on the scene, and I met with the complaining witness, who unfortunately isn‘t here today.
{¶17} “Prosecutor: What‘s her name?
{¶18} “Officer: Her name is Terren Wagner. I met with her outside of the complex. She indicated to me that she had returned home. - -
{¶19} “Defense counsel: Judge, I‘m going to object to anything that Ms. Wagner allegedly said. She‘s not here and she‘s available - -
{¶20} “The Court: Well, it depends on whether it‘s an excitable utterance or not. I don‘t know. We‘ll have to hear the facts before I can determine that.
{¶21} “If it‘s something that happened and she makes a statement out of an emotional state, it‘s excited utterance, and it‘s an exception to the hearsay rule.
{¶22} “Go ahead, officer.
{¶23} “***
{¶24} “Officer: When I arrived on the scene, Ms. Wagner was outside waiting for me to arrive.
{¶25} “She indicated that she was not comfortable being in the apartment with the Defendant. She indicated that the two of them had conflict, recent conflict between the two of them.
{¶26} “***
{¶27} “Prosecutor: And when you spoke to the reporting party, can you indicate how she was acting[?]
{¶29} “***
{¶30} “Prosecutor: And based on what she tells you, what do you do?
{¶31} “Officer: Um, we go into the apartment to investigate. She said that she felt that someone had gained entry into her bedroom. We - -
{¶32} “Defense counsel: I don‘t mean to be rude, but I‘m just going to renew my Objection because he just testified she seemed normal and typical. He didn‘t say she was agitated or excessively - -
{¶33} “The Court: No, but I think he‘s just telling me why they‘re investigating because *** I think that‘s hearsay.
{¶34} “Okay, go ahead.”
{¶35} The officer later testified that Ms. Wagner told him the damage at issue was not pre-existing and thus must have occurred after she left the apartment on August 29, 2009. The trial court admitted the entirety of the officer‘s hearsay testimony.
{¶36} The Confrontation Clause of the
{¶37} It is necessary to point out that not all hearsay implicates the Sixth Amendment‘s core concerns. Crawford v. Washington (2004), 541 U.S. 36, 51. Rather, the primary evil at which the Confrontation Clause is directed was the civil-law mode of criminal procedure. Id. at 50. Such procedures permitted governmental officials to independently examine witnesses in private and utilize the fruits of such ex parte examinations as evidence against the accused. Id. Accordingly, the Confrontation Clause “applies to ‘witnesses’ against the accused - - in other words, those who ‘bear testimony.’ *** ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. *** An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement.” (Internal citations omitted.) Id.
{¶39} Pursuant to Crawford, supra, Officer Shearer‘s testimony was barred by operation of the Confrontation Clause. First, the evidence of Ms. Wagner‘s statements was clearly testimonial, i.e., her statements to which Officer Shearer testified were the basis of the complaint which led to appellant‘s criminal trial and eventual conviction. Further, Ms. Wagner had not been previously cross-examined regarding her statements
{¶40} Appellant‘s first assignment of error has merit.
{¶41} Appellant‘s second assignment of error alleges:
{¶42} “The evidence was not legally sufficient to support the trial court‘s judgment.”
{¶43} Evidential sufficiency invokes an inquiry into due process, and examines whether the state introduced adequate evidence to support the verdict as a matter of law. State v. Schlee (Dec. 23, 1994), 11th Dist. No. 93-L-082, 1994 Ohio App. LEXIS 5862, *13. “An appellate court reviewing whether the evidence was sufficient to support a criminal conviction examines the evidence admitted at trial and determines whether such evidence, if believed, would convince the mind of the average juror of the defendant‘s guilt beyond a reasonable doubt.” State v. Troisi, 179 Ohio App.3d 326, 329, 2008-Ohio-6062. A reviewing court may not reweigh or reinterpret the evidence; rather, the proper inquiry is, after viewing the evidence most favorably to the
{¶44} To convict appellant of criminal damaging, the state was required to prove, beyond a reasonable doubt, that he knowingly caused or created a substantial risk of physical harm to Ms. Wagner‘s property without her consent. See
{¶45} Specifically, there was no evidence that the property at issue, the door to an apartment under lease, was Ms. Wagner‘s property. Moreover, and, perhaps more problematic, is the lack of evidence that the door was damaged on the evening of August 29, 2008 by appellant‘s specific actions. The only evidence submitted to provide this crucial link was Ms. Wagner‘s out-of-court allegations that the door was not damaged when she left the apartment, but was damaged when she returned. This information was improperly submitted into evidence via Officer Shearer; without some competent evidence to show appellant caused the damage to the door on August 29, 2008, the state failed to meet its burden of production. We therefore hold appellant‘s conviction is premised on insufficient evidence.
{¶46} Appellant‘s second assignment of error is sustained.
{¶47} Appellant‘s third assignment of error provides:
{¶49} Because appellant‘s second assignment of error is dispositive of the instant appeal, his third assignment of error is moot.
{¶50} For the reasons discussed in this opinion, appellant‘s first and second assignments of error are well taken. It is therefore the judgment of this court that the judgment of the Portage County Municipal Court, Kent Division, is reversed.
MARY JANE TRAPP, P.J.,
TIMOTHY P. CANNON, J.,
concur.