STATE OF OHIO, PLAINTIFF-APPELLEE, v. DEANDRE T. BASKIN, DEFENDANT-APPELLANT.
CASE NO. 1-18-23
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
May 28, 2019
[Cite as State v. Baskin, 2019-Ohio-2071.]
Appeal from Allen County Common Pleas Court
Trial Court No. CR2017 0397
Judgment Affirmed
APPEARANCES:
F. Stephen Chamberlain for Appellant
Jana E. Emerick for Appellee
{1} Dеfendant-appellant, Deandre T. Baskin (“Baskin“), appeals the April 19, 2018 judgment entry of sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm.
{2} This case stems from an incident on December 3, 2017 during which Baskin trespassed in the residence of the victim, T.H., caused her physical harm, and prevented her from leaving or contacting law enforcement. In particular, when T.H. returned to her residence the evening of the incident, Baskin jumped out of a bedroom closet and punched her in the face. To escape Baskin, T.H. told him that she
{3} On January 11, 2018, the Allen County Grand Jury indicted Baskin on four counts: Count One of aggravated burglary in violation of
{4} On February 28, 2018, the State filed a notice of its intent to use “other acts evidence” under
{5} On March 2, 2018, the State filed a motion requesting that the trial court issue an arrest warrant for T.H. as a material witness. (Doc. No. 60). The trial court issued a warrant on March 5, 2018 for T.H.‘s arrest as a material witness. (Doc. No. 62).
{6} After a jury trial on March 5-6, 2018, Baskin was found guilty of the counts in the indictment. (Doc. Nos. 64, 65, 66, 67); (Mar. 5-6, 2018 Tr., Vol. II, at 364-368). On April 18, 2018, the trial court sentenced Baskin to 10 years in prison on Count One, 24 months in prison on Count Two, 12 months in prison on Count Three, and 12 months in prison on Count Four. (Doc. No. 73). The trial court further ordered Baskin to serve the sentences consecutively for an aggregate term of 14 years in prison. (Id.).
{7} On April 30, 2018, Baskin filed a notice of appeal and he raises four assignments of error for our review. (Doc. No. 75).
Assignment of Error No. I
The Defendant Madе a Request for New Counsel and Discussed Self Representation. The Court‘s Denial of Both Requests is a Violation of the Defendant‘s Fundamental Constitutional Rights Under Section 10, Article I of the Ohio Constitution; Sixth and Fourteenth Amendments to the United States Constitution
{8} In his first assignment of error, Baskin argues that the trial court erred by denying his request for substitute trial counsel and his request to represent himself. In particular, Baskin contends that it was error for the trial court to consider the “time and effort[s]” of the jury over his right to counsel or to act as his own counsel.
Standard of Review
{9} “The decision whether to remove court-appointed counsel and allow substitution of new counsel is within the sound discretion of the trial court; its decision will not be reversed on appeal absent an abuse of discretion.” State v. Stein, 3d Dist. Mercer No. 10-17-13, 2018-Ohio-2345, ¶ 19, citing State v. Murphy, 91 Ohio St.3d 516, 523 (2001). Similarly, “[w]e review for an abuse of discretion a trial court‘s denial of a request to proceed pro se asserted after voir dire was complete.” State v. Kramer, 3d Dist. Defiance No. 4-15-14, 2016-Ohio-2984, ¶ 8, citing State v. Owens, 9th Dist. Summit No. 25389, 2011-Ohio-2503, ¶ 17, citing State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, ¶ 51-53. An abuse
Substitute-Counsel Analysis
{10} “An indigent defendant does not have a right to choose a particular attorney; rather, such a defendant ‘has the right to professionally competent, effective representation.‘” Stein at ¶ 20, quoting State v. Evans, 153 Ohio App.3d 226, 2003-Ohio-3475, ¶ 30 (7th Dist.), citing Murphy at 523 (noting that an indigent defendant must show “good cause” to warrant substitution of counsel). “‘Competent representation does not include the right to develop and share a “meaningful attorney-client relationship” with one‘s attorney.‘” Id., quoting State v. Gordon, 149 Ohio App.3d 237, 2002-Ohio-2761, ¶ 12 (1st Dist.). “In order for the court to discharge a court-appointed attorney, “‘the defendant must show a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant‘s right to effective assistance of counsel.“‘” Id., quoting State v. Henness, 79 Ohio St.3d 53, 65 (1997), quoting State v. Coleman, 37 Ohio St.3d 286 (1988), paragraph four of the syllabus. “That said, the right to counsel must be balanced against the trial court‘s authority to control its docket, as well as its awareness that a ‘demand for counsel may be utilized as a way to delay the proceedings or trifle with the court.‘” Id., quoting United States v. Krzyske, 836 F.2d 1013, 1017 (6th Cir.1988), and citing State v. Lawson, 8th Dist. Cuyahoga No. 97018, 2012-Ohio-1050, ¶ 24. See also State v. Jones, 91 Ohio St.3d 335, 342 (2001) (stating that, among the “[f]actors to consider in deciding whether a trial court erred in denying a defendant‘s motion to substitute counsel include ‘the timeliness of the motion‘“), quoting United States v. Jennings, 83 F.3d 145, 148 (6th Cir.1996).
{11} Here, Baskin‘s request for substitute counsel was neither supported by good cause nor made timely. Specifically, during the second day of trial, Baskin made the following outburst in open court after his trial counsel finished cross-examining Detective Steven Stechschulte, Jr. (“Detective Stechschulte“) of the Lima Police Department:
[Baskin‘s Trial Counsel]: No further questions.
[The Trial Court]: Redirect, please.
[Baskin]: Tom Lucente, Jr. I fire you. You‘re fired.
*
*
*
[Baskin]: And it‘s at this time that I ask to be appointed another attorney.
(Mar. 5-6, 2018 Tr., Vol. II, at 214). Outside of the presence of the jury, Baskin further informed the trial court, “I have the right to another attorney, Sir. I don‘t want this [sic], because he‘s working with the State.” (Id. at 215). Baskin also stated that his trial counsel was “not working for” him because he gave “him questions to ask [Detective Stechschulte] and he just refuses them, questions that are pertinent” and because he did “not subpoena[ the witnesses] that [he] asked him to do.” (Id. at 217-218, 227).
{12} Baskin‘s stated reason for requesting substitute counsel midway through trial fails to demonstrate how his attorney-client relationship suffered a breakdown in communication or cooperation of such magnitude that warranted substitution of counsel. See Coleman, 37 Ohio St.3d 286, at paragraph four of the syllabus (stating that, in order to demonstrate good cause, “the defendаnt must show a breakdown in the
{13} Moreover, Baskin‘s substitute-counsel request—made on the second day of trial—was not timely. Compare Coleman, 2004-Ohio-1305, at ¶ 32 (concluding that Coleman‘s “request for new counsel, coming at the start of the second day of his trial, was ill-timed“). See State v. Spencer, 10th Dist. Franklin No. 16AP-444, 2017-Ohio-1140, ¶ 9 (concluding that Spencer‘s substitute-counsel request was not timely because “[i]t occurred the morning of trial“). In other words, it was not error for the trial court to consider the time and efforts of the jury when evaluating Baskin‘s substitute-counsel request. Thus, the trial court‘s refusal to substitute Baskin‘s trial counsel was not unreasonable, arbitrary, or unconscionable under the facts presented.
Self-Representation Analysis
{14} “‘The Sixth Amendment * * * guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily, and knowingly and intelligently elects to do so.‘” Kramer, 2016-Ohio-2984, at ¶ 5, quoting State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, ¶ 71, quoting State v. Gibson, 45 Ohio St.2d 366 (1976), paragraph one of the syllabus, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975). “‘If a trial court denies the right to self-representation, when properly invoked, the denial is per se reversible error.‘” Id., quoting State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶ 32, citing State v. Reed, 74 Ohio St.3d 534 (1996), citing McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S.Ct. 944 (1984).
{15} “‘The assertion of the right to self-representation must be clear and unequivocal.‘” Id. at ¶ 6, quoting Neyland at ¶ 72, citing State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, ¶ 68 and Cassano at ¶ 38. A request for self-representation is not unequivocal if the request is a “‘momentary caprice or the result of thinking out loud,‘” or the result of frustration. Neyland at ¶ 73, quoting Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir.1990), quoting Adams v. Carroll, 875 F.2d 1441, 1445 (9th Cir.1989) and
{16} “‘The defendant must also assert the right in a timely fashion.‘” Id. at ¶ 7, quoting Steele ¶ 14. “A trial court may deny a defendant‘s request for self-representation if it is untimely made.” Id., quoting Neyland at ¶ 76, citing Cassano at ¶ 40, United States v. Young, 287 F.3d 1352, 1354 (11th Cir.2002), Wood v. Quarterman, 491 F.3d 196, 202 (5th Cir.2007), and United States v. Smith, 413 F.3d 1253, 1281 (10th Cir.2005). “In addition, ‘[a] request for self-representation may be denied when circumstances indicate that the request is made for purposes of delay or manipulation of the trial process.‘” Id., quoting Neyland at ¶ 72, citing United States v. Frazier-El, 204 F.3d 553, 560 (4th Cir.2000).
{17} In this case, Baskin‘s assertion of the right to self-representation was not clear and unequivocal or timely raised. In reviewing the record, it is clear that Baskin‘s request for self-representation was a momentary caprice, the result of thinking out loud, and the result of frustration. As we addressed above, at the conclusion of Baskin‘s trial counsel‘s cross-examinatiоn of Detective Stechschulte, Baskin interjected in front of the jury, that he wished to fire his trial counsel. (See Mar. 5-6, 2018 Tr., Vol. II, at 214). Because of the extent of Baskin‘s outburst, the trial court permitted a break for Baskin to collect his thoughts and calm down. When the trial resumed, Baskin, outside of the presence of the jury, informed the trial court that he wished to represent himself. At that point, the trial court began to engage Baskin in a colloquy regarding his self-representation request. However, when responding to the trial court‘s direct inquiry (as to self-representation), Baskin repeatedly made inappropriate responses to the trial court‘s questions. (See id. at 235-236).
{18} Moreover, the transcript supports that Baskin was venting his frustration that his trial counsel was not asking the questions that Baskin wanted him to ask and that he failed to subpoena the witnesses that Baskin wanted to call. Compare id. at ¶ 10 (“We can discern from the transcript that Kramer was venting his frustration when he verbalized his complaint that his counsel was not asking the questions that Kramer wanted to ask.“), citing State v. Jones, 4th Dist. Athens No. 14CA7, 2014-Ohio-5177, ¶ 18. Indeed, Baskin‘s “outburst ‘was the product of an emоtional response to the situation’ in which [he] found himself, not a clear and unequivocal self-representation request.” Id., quoting Jones, 2014-Ohio-5177, at ¶ 18-19 and citing Steele, 155 Ohio App.3d 659, 2003-Ohio-7103, at ¶ 20 (“The record shows that [the defendant‘s two pretrial requests to represent himself] were more in the name of impulsive acts expressing frustration with his first counsel than unequivocal requests to represent himself.“). Similar to the situation that we addressed in Kramer, Baskin‘s frustration is obvious by virtue of his continuous-courtroom outburst—which began in the presence of the jury and lasted until he was removed from the courtroom (outside of the presence of the jury), despite
{19} Finally, Baskin‘s self-representation request—made on the second day of trial—was untimely. See id. at ¶ 13 (“Finally, we note that Kramer‘s self-representation request—which was made on the second day of trial—was untimely.“), citing Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, at ¶ 53 (holding “that the trial court did not abuse its discretion and properly refused appellant‘s request to represent himself after voir dire had been completed and on the first day that evidence was to be presented“), Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, at ¶ 32 (“find[ing] that Cassano‘s request was untimely because it was made only three days before the trial was to start“), Steele at ¶ 20 (concluding that “Steele‘s last-minute request on the day of trial was not timely made“), Montgomery at ¶ 59 (“[B]ecause the request was made after the presentation of three witnesses, the self-representation request was untimely.“), and State v. Lozada, 8th Dist. Cuyahoga No. 94902, 2011-Ohio-823 ¶ 37 (concluding that “the inquiry * * * made on the day of trial” was untimely). Put another way, similar to our conclusion regarding Baskin‘s substitute-counsel request, it was not error for the trial court to consider the time and efforts of the jury when considering Baskin‘s self-representation request. Therefore, the trial court did not abuse its discretion by denying Baskin‘s request to represent himself. See id. at ¶ 14.
{20} Baskin‘s first assignment of error is overruled.
Assignment of Error No. II
The Action of the Court in Removing the Defendant from the Courtroom for Part of the Testimony of a State Witness, Admission of the State‘s Exhibits and the Motion for Acquittal Pursuant to Rule 29 of the Rules of Criminal Procedure Violated Defendant‘s Fundamental Constitutional Right to a Fair Trial and Confrоntation of Witnesses Under Section 10, Article I of the Ohio Constitution; Sixth and Fourteenth Amendments to the United States Constitution
{21} In his second assignment of error, Baskin argues that his right to a fair trial was violated when the trial court removed him from the courtroom for a portion of the State‘s evidence as a result of his outburst. In particular, he contends that the trial court “acted too quickly to remove [him] from his own trial” and “should have used more of a cooling off period or extended recess * * *” (Appellant‘s Brief at 13).
Standard of Review
{22} “A trial judge is empowered to maintain decorum and enforce reasonable rules to insure the orderly and judicious disposition of the court‘s business.” State v. Dumas, 7th Dist. Mahoning No. 12 MA 31, 2015-Ohio-2683, ¶ 20, citing State v. Clifford, 162 Ohio St. 370, 372 (1954).
The United States Supreme Court has stated that “[w]e believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to
meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations.”
Id., quoting Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057 (1970). Accordingly, we review a trial court‘s decision to remove a defendant from the courtroom for an abuse of discretion. Id. at ¶ 19, citing Allen at 343 and State v. Chambers, 10th Dist. Franklin No. 99AP-1308, 2000 WL 963890, *4 (July 13, 2000). A trial court abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable. Adams, 62 Ohio St.2d 151 at 157-158.
Analysis
{23} “The Confrontation Clause of the Sixth Amendment of the United States Constitution guarantees a defendant‘s right to be present in the courtroom at every stage of the trial.” State v. Boynton, 8th Dist. Cuyahoga No. 106301, 2018-Ohio-4429, ¶ 34, citing Allen at 338. See also State v. Williams, 6 Ohio St.3d 281, 286 (1983); Ohio Constitution, Article I, Section 10;
{24} As an initial matter, because Baskin‘s trial counsel did not object to Baskin‘s removal from the courtroom, he waived all but plain error on appeal. Accord State v. Dixon, 10th Dist. Franklin No. 17AP-884, 2018-Ohio-3759 ¶ 15 (“We agree with the state that Dixon has waived all but plain error as his counsel did not object when Dixon was removed from the courtroom.“); State v. Porter, 9th Dist. Summit No. 15511, 1992 WL 308528, *3 (Oct. 21, 1992) (applying plain-error analysis to Porter‘s courtroom-removal argument because his trial counsel did not object to Porter‘s removal). ”
{25} Baskin‘s argument that the trial court acted “too quickly” by removing him from the courtroom is without merit. Accord Boynton at ¶ 36 (concluding that “Boynton‘s argument that he was removed without warning and an opportunity to return [was] specious“). The record reflects
{26} When trial resumed, the trial court again warned Baskin (outside of the presence of the jury) to cease his disruptive conduct. Notwithstanding the trial court‘s admonishment, Baskin continued to conduct himself in a disorderly, disruptive, and disrespectful mаnner. Compare Chambers, 2000 WL 963890, at *4 (“The trial judge used his power to maintain order and decorum in the courtroom. He attempted to warn appellant after the first outburst, outside the presence of the jury. However, appellant chose not to heed such warnings * * *.“). Accordingly, the trial court properly exercised its power to maintain order and decorum in the courtroom by removing Baskin to a room in which he could observe the proceedings by remote contemporaneous video. See id. (noting that “the trial judge placed appellant in a holding cell that adjoined the courtroom with the door open, thereby allowing appellant to hear the testimony and evidence“);
{27} Even if Baskin‘s removal from the courtroom was in error, the record reflects that Baskin rеceived a fair trial. See Dixon, 2018-Ohio-3759, at ¶ 19 (concluding that Dixon‘s absence from the courtroom did not amount to plain error because he was not deprived of a fair and just hearing). That is, the only portions of trial that Baskin witnessed by remote contemporaneous video were the redirect examination of Detective Stechschulte, the State‘s admission of its exhibits, and Baskin‘s
{28} Moreover, the trial court polled each juror as to whether he or she could remain fair and impartial despite Baskin‘s conduct and absence from the courtroom to which each juror indicated that they could. (See Mar. 5-6, 2018 Tr., Vol. II, at 244-247). Likewise, the trial court instructed the jury not to consider Baskin‘s absence from the courtroom for any purpose. (See id. at 248). Compare Chambers at *4 (noting “that the trial court gave the jurors
Assignment of Error No. III
The Court Errored [sic] When It Allowed Evidence of Other Crimes, Wrongs or Acts of the Defendant Under Rule 404(B) of the Ohio Rules of Evidence in the Case in Chief Against the Defendant in that the Same was Unfairly Prejudicial to the Defendant
{29} In his third assignment of error, Baskin argues that the trial court abused its discretion by admitting evidence under
Standard of Review
{30} “Generally, ‘[a] trial court is given broad discretion in admitting and excluding evidence, including “other bad acts” evidence.‘” State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶ 23, quoting State v. Williams, 7th Dist. Jefferson No. 11 JE 7, 2013-Ohio-2314, ¶ 7, citing State v. Maurer, 15 Ohio St.3d 239, 265 (1984). However, we apply a plain-error standard of review to this assignment of error because Baskin failed to object at trial to the admission of his prior domestic-violence conviction. See Bagley, 2014-Ohio-1787, at ¶ 55 (applying a plain-error standard of review because Bagley failed to object at the time the “other acts” evidence was admitted); State v. Hare, 2d Dist. Clark No. 2017-CA-4, 2018-Ohio-765, ¶ 41 (stating that Hare waived all but plain error on appeal because he “failed to object at the time that this ‘other acts’ evidence was admitted“). Accordingly, to be reversible, we must conclude that there was error—a deviation from a legal rule—and that the error was an obvious defect in the proceedings that affected the outcome of trial. See Hare at ¶ 41, citing State v. Barnes, 94 Ohio St.3d 21, 27 (2002) and
Analysis
{31} “’
2009-L-078, 2010-Ohio-1278, ¶ 78, and citing State v. Faye, 3d Dist. Wyandot Nos. 16-99-08 and 16-99-09, 2000 WL 566741, *4 (May 4, 2000).
{¶32} One such exception is when a prior conviction is an element of a charged offense. See, e.g., State v. Myers, 9th Dist. Summit No. 25737, 2012-Ohio-1820, ¶ 11. See also
{¶33} Here, evidence of Baskin‘s prior domestic-violence conviction was properly admitted because it was proof of an element of Count Three. See State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, ¶ 118 (concluding that evidence of Spaulding‘s prior domestic-violence conviction was properly admitted because it “was not just other-acts evidence, it was proof of an element of” the domestic-violence charge for which he stood trial). Indeed, to convict Baskin of domestic-violence as a fourth-degree felony, the State was required to prove that he had a prior domestic-violence conviction. See id. (“To convict Spaulding of third-degree-felony domestic violence, the state had to prove that he had two or more prior domestic-violence convictions.“);
{¶34} Moreover, Baskin does not direct us to any evidence, and we can find none, that any facts were revealed to the jury surrounding his prior conviction beyond what was necessary under
{¶35} Nevertheless, Baskin argues that the trial court erred by admitting the evidence of his prior domestic-violence conviction because it involved a different victim. Baskin does not point us to any authority—as he is required to do—that prior domestic-violence convictions involving different victims are inadmissible to enhance
{¶36} Baskin also argues that evidence of prior domestic-violence incidents that did not result in criminal charges was inadmissible. Importantly, Baskin failed to identify specifically where in the record the evidence that he contends was inadmissible was introduced. “[A] defendant has the burden of affirmatively demonstrating the error of the trial court on appeal.” State v. Stelzer, 9th Dist. Summit No. 23174, 2006-Ohio-6912, ¶ 7, citing State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio-2646, ¶ 27. “Moreover, ‘[i]f an argument exists that can support this assignment of error, it is not this court‘s duty to root it out.‘” Id., quoting Cook at ¶ 27. ”
{¶37} Baskin‘s third assignment of error is overruled.
Assignment of Error No. IV
The Trial Court Committed Error in Calling the Alleged Victim of the Crime as a Court‘s Witness Under Evidence Rule 614 for the Sole Purpose of Allowing the State of Ohio to Examine the Said Witness as if on Cross Examination Specifically Where the Only Inquiry Made by the Court for Evidence Purposes Was to Ask the Defendant‘s Name and then Immediately Turn Over the Witness to the State for Cross Examination
{¶38} In his fourth assignment of error, Baskin argues that the trial court erred by designating T.H. as a court‘s witness. Specifically, Baskin argues that he was prejudiced when T.H. was called as a court‘s witness because it allowed the State to present otherwise inadmissible evidence to the jury. That is, Baskin contends that the State impermissibly used impeachment as a “subterfuge” to present inadmissible hearsay evidence to the jury.
Standard of Review
{¶39} Under
{¶40} “The decision as to whether to call a witness on its own motion pursuant to
Analysis
{¶41} As an initial matter,
{¶42} In this case, after the parties presented their opening statements to the jury, the State, outside the presence of the jury, requested that the trial court call T.H. as its witness under
{¶43} Nevertheless, Baskin contends that it was error for the State to use “its ability to cross examine and impeach [T.H.] as a substitute for introducing otherwise inadmissible evidence * * * ” (Appellant‘s Brief at 21). Here, Baskin makes two arguments. First, he argues that the State‘s cross-examination of T.H. (which continued for nearly 30 pages of trial transcript) encompassed many details of the charges for which Baskin stood trial. That is, he argues that the State‘s cross-examination of T.H. implied that the content of T.H.‘s prior statements—that Baskin broke into her house; jumped out of her closet and punched her in the face; and prevented her from leaving or contacting law enforcement—were true. Compare State v. Johnson, 2d Dist. Montgomery No. 26055, 2015-Ohio-5491, ¶ 66. Second,
{¶44} We begin our analysis by addressing the State‘s cross-examination of T.H. “As a general rule, cross-examination is permitted ‘on all relevant matters and matters affecting credibility.‘” State v. West, 5th Dist. No. 16 CA 11, 2017-Ohio-4055, ¶ 91, quoting
{¶45} In this case, the State‘s cross-examination of T.H. did not amount to plain error. Typically, the rules of evidence prohibit a party from attacking the
{¶46} Baskin does not dispute that T.H.‘s prior inconsistent statements were admissible for the purpose of impeaching her. Instead, he objects to the manner and the extent of the State‘s cross-examination of T.H., claiming that such examination amounted to the presentation of substantive evidence. Specifically, Baskin argues that the State‘s cross-examination of T.H. about her prior statements did more than attempt to impeach her credibility; it presented the complete version of events that T.H. previously recounted. Compare Johnson, 2015-Ohio-5491, at ¶ 69 (“However, the extent and detail with which the State questioned [the witness] about his prior statements did more than attempt to refresh [the witness‘s] recollection and impeach his credibility; it presented, through the State‘s questioning, the complete version of events previously testified to or recounted by [the witness].“).
{¶47} “Where impeachment is used as a ‘subterfuge’ to get evidence before the jury which is not otherwise admissible, it is improper.” Id. at ¶ 69, citing Arnold at ¶ 45, quoting Annotation, Calling and Interrogation of Witnesses by Court under Rule 614 of the Federal Rules of Evidence, 53 A.L.R.Fed. 498, 500-501 (1981) and
{¶48} As with the scope of the examination of witnesses, the admission or exclusion of evidence lies within the trial court‘s discretion, and a reviewing court should not reverse absent an abuse of discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). See also State v. Shook, 3d Dist. Logan No. 8-14-01, 2014-Ohio-3987, ¶ 49 (applying the abuse-of-discretion standard of review a trial court‘s admission of extrinsic evidence under
{¶49} As an initial matter, we must address whether Baskin properly preserved this issue on appeal. In this case, Baskin did not object to the admission
same. See Wendel, 2016-Ohio-7915, at ¶ 10 (“We will assume without deciding that an abuse-of-discretion standard of review applies as to Rebecca‘s testimony, even though Wendel objected to only one of the statements.“); Stark at *3 (“Although appellant did not specifically state hearsay as the reason for the objection, the court did not abuse its discretion in admitting the evidence.“).
{¶50} Moreover, because Baskin did not object on any basis to the admission of testimonial or extrinsic evidence of what T.H.: (1) told Officer Van Vorce; (2) said during an interview with Detective Stechschulte; or (3) said during a trial-preparation interview with Detective Stechschulte and the State, Baskin waived all but plain error on appeal as to the admission of that evidence as impeachment evidence.
{¶51} Under
- If the statement is offered solely for the purpose of impeaching the witness, the witness is afforded a prior opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness on the statement or the interests of justice otherwise require;
- The subject matter of the statement is one of the following:
- A fact that is of consequence to the determination of the action other than the credibility of a witness;
- A fact that may be shown by extrinsic evidence under
Evid.R. 608(A) ,609 ,616(A) , or616(B) ;
- A fact that may be shown by extrinsic evidence under the common law of impeachment if not in conflict with the Rules of Evidence.
““When extrinsic evidence of a prior inconsistent statement * * * is offered into evidence pursuant to
Evid.R. 613(B) , a foundation must be established through direct or cross-examination in which: (1) the witness is presented with the former statement; (2) the witness is asked whether he made the statement; (3) the witness is given an opportunity to admit, deny or explain the statement; and (4) the opposing party is given an opportunity tо interrogate the witness on the inconsistent statement.“”
Johnson, 2015-Ohio-5491, at ¶ 68, quoting State v. Robinson, 2d Dist. Montgomery No. 26441, 2015-Ohio-1167, ¶ 27, citing State v. Mack, 73 Ohio St.3d 502, 514-515 (1995). See also Shook, 2014-Ohio-3987, at ¶ 51. “If a witness denies making the statement, extrinsic evidence of the statement is generally admissible; provided, the evidence does not relate to a collateral matter.” Shook at ¶ 52, citing State v. Soke, 105 Ohio App.3d 226, 239 (8th Dist.1995), citing State v. Riggins, 35 Ohio App.3d 1, 3 (8th Dist.1986).
{¶52} T.H. was an uncooperative and difficult witness. Initially, T.H. testified that she recalled reporting to Officer Van Vorce and Detective Stechschulte that Baskin hit her. However, shortly thereafter, T.H. became argumentative and unresponsive to the State‘s questions, which resulted in the need for the trial court to excuse the jury and to instruct T.H. to properly answer the State‘s questions. When the jury returned and the State resumed its cross-examination of T.H., she
{¶53} Accordingly, because the State sought to impeach T.H.‘s denials that Baskin committed aggravated burglary, abduction, and domestic violence, the State had to confront T.H. with the content of her prior statements in order to lay the proper foundation for the admission of extrinsic evidence of her prior inconsistent statements. See State v. Sullens, 10th Dist. Franklin No. 15AP-1159, 2017-Ohio-4081, ¶ 18. Stated differently, the State was not attempting to impeach T.H. for asserting that she did not contact law enforcement or that she did not make a statement to law enforcement or the State—it was attempting to impeach the content (facts that were of consequence to the determination of the action) of her prior statements to law enforcement and the State.3 Compare id. (stating that, because “the State was not attempting to impeach Z.S. for asserting that she had not made a statement to police,” “that denial was irrelevant, because impeachment evidence
must contradict a statement regarding a ‘fact that [was] of consequence to the determination of the action.‘“), quoting
{¶54} Moreover, in addition to T.H. having the opportunity to explain or deny her prior statements, Baskin was afforded the opportunity to interrogate T.H. about her statements. For these reasons, we conclude that the State laid the proper foundation for the admission of extrinsic evidence of T.H.‘s prior inconsistent statements—namely, evidence of what she reported: (1) in her phone call to the Lima Police Department; (2) to Officer Van Vorce; (3) during an interview with Detective Stechschulte; and (4) during a trial-preparation interview with Detective Stechschulte and the State—as impeachment evidence. See State v. Reed, 155 Ohio App.3d 435, 2003-Ohio-6536, ¶ 31 (2d Dist.) (concluding that a proper foundation was laid for the introduction of extrinsic evidence of prior inconsistent statements under
{¶55} Nevertheless, Baskin contends that the unbridled admission of T.H.‘s prior inconsistent statements amounted to error and that the trial court erred by failing to instruct the jury that it could consider T.H.‘s pre-trial statements for only impeachment purposes and not as substantive evidence to establish the truth of those facts. Statements admitted under
{¶56} “Ordinarily, the trial court has discretion to decide to give or refuse a particular instruction, and an appellate court will not disturb that decision absent an
{¶57} To determine whether the trial court‘s failure to instruct the jury that it could only consider T.H.‘s prior statements as impeachment evidence constituted plain error, we must determine whether the jury could consider that evidence as substantive evidence.
“[T]he use of prior inconsistent statements is limited. ‘[W]hen a prior inconsistent statement is offered for the purpose of impeachment, the trier of fact may only consider the prior statement as substantive evidеnce if the prior statement is not inadmissible as hearsay.‘”
Johnson, 2015-Ohio-5491, at ¶ 77, quoting State v. Heard, 1st Dist. Hamilton No. C-130789, 2014-Ohio-4643, ¶ 11, quoting State v. Hancock, 1st Dist. Hamilton No. C-030459, 2004-Ohio-1492, ¶ 40, citing
{¶58} Hearsay is defined 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.”
{¶59} Before addressing whether T.H.‘s pre-trial statements could be considered as substantive evidence, we must first address whether Baskin appropriately objected to the admission of her pre-trial statements. In this case, in addition to failing to object to the admission of any of the evidence of T.H.‘s prior inconsistent statements on the basis that it was impermissible impeachment evidence, Baskin did not object to the admission of that evidence on the basis that
{¶60} In addition to being admissible as impeachment evidence, T.H.‘s call to the Lima Police Department was admissible as substantive evidence under
{¶61} The Supreme Court of Ohio has set forth the following test for determining whether a statement qualifies as an excited utterance under
- that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and
- beliefs, and thus render his statement of declaration spontaneous and unreflective,
- that the statement or declaration, even if not strictly contemporaneous
with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, - that the statement or declaration related to such startling occurrence or the circumstances of such startling occurrence, and
- that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration.
State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, ¶ 166. “When evaluating statements under this test, ‘[t]here is no per se amount of time after which a statement can no longer be considered to be an excited utterance.‘” State v. Little, 3d Dist. Allen No. 1-16-29, 2016-Ohio-8398, ¶ 11, quoting State v. Taylor, 66 Ohio St.3d 295, 303 (1993). “Rather, ‘each case must be decided on its own circumstances.‘” Id., quoting State v. Duncan, 53 Ohio St.2d 215, 219 (1978). ““The central requirements are that the statement must be made while the declarant is still under the stress of the event and the statement may not be a result of reflective thought.“” Id., quoting Taylor at 303.
{¶62} T.H.‘s call to the Lima Police Department satisfies the four elements of an excited utterance. See Thompson-Shabazz at ¶ 112 (concluding that the victim‘s call to 333-COPS constituted an excited utterance). Indeed, T.H. endured
{¶63} Turning to the other evidence that Baskin contends was inadmissible hearsay, because Baskin failed to object to the admission of any of that evidence on any basis, he waived all but plain error on appeal. (See Mar. 5-6, 2018 Tr., Vol. I,
{¶64} However, having found error in the admission of Officer Van Vorce‘s testimony, Detective Stechschulte‘s testimony, and State‘s Exhibits 25 and 26, we must determine whether the admission of that evidence constituted harmless error. See Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, at ¶ 176. See also Johnson, 2015-Ohio-5491, ¶ 86. Ohio‘s criminal-harmless-error rule,
{¶65} We conclude that the admission of Officer Van Vorce‘s testimony, Detective Stechschulte‘s testimony, and State‘s Exhibits 25 and 26 constitute harmless error. There is no dispute that the declarant, T.H., was cross-examined at length about her pre-trial statements. See Wendel at ¶ 13. Likewise, that evidence is cumulative of other evidence presented at trial. Specifically, Officer Van Vorce‘s testimony, Detective Stechschulte‘s testimony, and State‘s Exhibits 25 and 26 are merely cumulative to the content of T.H.‘s phone call to the Lima Police Department, which we determined was admissible as substantive evidence. In other words, Baskin was not prejudiced by the admission of that evidence. Accordingly, because the admission of Officer Van Vorce‘s testimony, Detective Stechschulte‘s testimony, and State‘s Exhibits 25 and 26 constitute harmless error, the admission of that evidence did not amount to plain error. See id. (concluding that the erroneous admission of hearsay evidence was not plain error because the admission of that evidence was harmless since the declarant was cross-examined on the statements and the statements were cumulative in nature).
{¶66} Finally, for similar reasons, the trial court‘s failure to instruct the jury that it could only consider T.H.‘s pre-trial statements as impeachment evidence does not constitute plain error. First, because we determined that T.H.‘s phone call to the Lima Police Department was admissible as substantive evidence, it was unnecessary for the trial court to limit the jury‘s consideration of that evidence. Further, even if the jury improperly considered Officer Van Vorce‘s testimony, Detective Stechschulte‘s testimony, and State‘s Exhibits 25 and 26 as substantive evidence, that error was not outcome determinative since the evidence contained in T.H.‘s phone call to the Lima Police Department cоntains enough evidence to support the jury‘s determination of guilt in this case. See McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, at ¶ 130; Dyer, 2017-Ohio-426, at ¶ 58. That is, Baskin was not prejudiced by the trial court‘s failure to give a limiting instruction with respect to Officer Van Vorce‘s testimony, Detective Stechschulte‘s testimony,
{¶67} For these reasons, Baskin‘s fourth assignment of error is overruled.
{¶68} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.