STATE OF OHIO, PLAINTIFF-APPELLEE, v. CARMEL J. CASTILLO, DEFENDANT-APPELLANT.
CASE NO. 7-14-14
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
July 6, 2015
[Cite as State v. Castillo, 2015-Ohio-2738.]
Appeal from Henry County Common Pleas Court Trial Court No. 14-CR-0038 Judgment Reversed and Cause Remanded
Billy D. Harmon for Appellant
J. Hawken Flanagan for Appellee
{¶1} Defendant-Appellant, Carmel Castillo, appeals the judgment of the Court of Common Pleas of Henry County, finding him guilty of violating a protection order and sentencing him to 180 days in jail. On appeal, Castillo argues that the trial court erred by admitting impermissible hearsay statements into evidence and by entering a verdict that was not supported by sufficient evidence. For the reasons that follow, we reverse the trial court‘s judgment.
{¶2} On May 20, 2014, the Henry County Grand Jury indicted Castillo on two counts of violating a protection order in violation of
{¶3} This matter proceeded to trial on October 4, 2014, where the following relevant evidence was adduced.
{¶4} Patrolman Timothy Monhollen was the first witness to testify for the State. He testified that he was employed by the Defiance Police Department in August of 2013. Patrolman Monhollen testified that he arrested Castillo for violating a protection order in August of 2013. He then made an in-court identification of Castillo. He also stated that the arrest resulted in case number 13CR3769.
{¶5} Sheriff Michael Bodenbender was the next witness to testify. Sheriff Bodenbender testified that he is employed by the Henry County Sheriff‘s Office and was working on October 29, 2013. He stated that while on patrol, he noticed a
{¶6} Sheriff Bodenbender testified that there were three people in the car with the woman. There were two children in the backseat and a male in the passenger seat. Sheriff Bodenbender was able to identify the male passenger as Carmel Castillo. He also made an in-court identification of Castillo. When Sheriff Bodenbender ran Castillo‘s name, it came back that there was a protection order issued against Castillo, and the protected person was Sarah Wright. Pursuant to the protection order, Castillo was not to be within 500 feet of Wright. Sheriff Bodenbender also ran the name the driver gave him, and “everything checked out. The driver was valid and there was no reason to investigate her any farther.” Id. at p. 115.
{¶7} The following relevant exchange then occurred:
Sheriff Bodenbender: After the first offense when that happened, I got back to the office, I ran who the protected person was and the picture of the person that came up on the screen was another ...
Defense Counsel: Objection hearsay.
Prosecutor: It‘s part of the normal course of investigation Your Honor.
Trial Court: I‘m going to overrule the objection, you can answer that question.
Sheriff Bodenbender: The person that was protected was Sarah Wright.
Defense Counsel: Objection Your Honor, that [sic] a statement for identification, that‘s not a core statement to get to the proof of the matter asserted, which is the identity. You can testify to his physical observations but he can‘t testify to what he saw on a report.
Trial Court: Overruled, you can answer the question.
Prosecutor: In the court [sic] of your occupation as both Deputy Sheriff and Sheriff, is there a site upon which you can verify people who are victims of or are the protected person in a protection order?
Sheriff Bodenbender: Yes.
Prosecutor: And does that site have their photograph?
Sheriff Bodenbender: Yes.
Prosecutor: And did you access that site?
Sheriff Bodenbender: I did.
Prosecutor: And did you find out who the person was that was in the car with Mr. Castillo on the first event?
Sheriff Bodenbender: Yes I did.
Prosecutor: And who was that person?
Defense Counsel: Objection Your Honor, hearsay, foundation.
Trial Court: Overruled.
* * *
Prosecutor: And who was the protected person?
Sheriff Bodenbender: Sarah Wright.
Id. at p. 116-118.
{¶8} On November 1, 2013, Sheriff Bodenbender came into contact with Castillo again. He testified that he was traveling on State Route 110 and passed the same car with the same two individuals. He testified that Sarah Wright and Castillo were in the car together. Sheriff Bodenbender had the following relevant exchange:
Q: And on that occasion how did you verify her identity?
A: From the first time. I knew it was the same person I had the second, at that point I knew she was Sarah Wright.
Q: And they were both in the car together I think I [sic] what you said?
A: They were both in the same car.
Id. at 123.
{¶9} On cross-examination, Sheriff Bodenbender admitted that although he testified on direct examination that he pulled over a Ford Taurus, his report said that he pulled over a Mercury Sable. Sheriff Bodenbender stated that he has a camera in his police cruiser but it was not operable. Therefore, there is no video or audio recording of either stop. Further, Sheriff Bodenbender testified that he did not write a police report for the second traffic stop.
{¶11} The State then rested. Castillo moved for acquittal under
{¶12} Castillo‘s first and only witness was Gary Mohre, who testified that he works as a police officer in Blakesly, Ohio, and is also a private investigator. Mohre stated that he was contacted to do investigative work in regard to Castillo‘s case. Specifically, Mohre testified that he looked up the license plate number FDC8031. In October and November of 2013, the car was registered to Theresa Walker. Mohre stated that his search revealed that the car was a 2002 tan Mercury, but did not know the model of the car.
{¶13} On cross-examination, Mohre admitted that he has never met or talked to Theresa Walker and did not know if Walker was Wright‘s mother.
{¶14} After Mohre‘s testimony, the defense rested. Castillo renewed his
{¶16} Castillo filed this timely appeal, presenting the following assignments of error for our review.
Assignment of Error No. I
WHETHER THE TRIAL COURT ERRED IN ADMITTING IMPERMISSIBLE HEARSAY TESITMONY IN VIOLATION OF THE OHIO RULES OF EVIDENCE, THEREBY DENYING APPELLANT A FAIR TRIAL IN VIOLATION HIS [SIC] DUE PROCESS RIGHTS.
Assignment of Error No. II
WHETHER THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT ENTERED JUDGMENT CONVICTING HIM OF A FIFTH DEGREE FELONY VIOLATION OF PROTECTION ORDER BECEAUSE THERE WAS INSUFFICIENT EVIDENCE TO SHOW THAT HE HAD A PRIOR CONVICTION FOR VIOLATION OF PROTECTION ORDER.
Assignment of Error No. I
{¶17} In his first assignment of error, Castillo argues that the trial court erred by admitting impermissible hearsay. We agree.
{¶18}
{¶19} We review a trial court‘s admission of testimony for an abuse of discretion. State v. Bump, 3d Dist. Logan No. 8-12-04, 2013-Ohio-1006, ¶ 61. “A trial court will be found to have abused its discretion when its decision is contrary to law, unreasonable, not supported by the evidence, or grossly unsound.” State v. Swihart, 3d Dist. Union No. 14-12-25, 2013-Ohio-4645, ¶ 44, citing State v. Boles, 2d Dist. Montgomery No. 23037, 2010-Ohio-278, ¶ 16-18. Under
{¶20} On appeal, the State argues that Sheriff‘s Bodenbender‘s testimony was not hearsay because it was a prior identification, which is defined as non hearsay by
Evid.R. 801(D)(1)(c)
{¶21} Under
{¶22} Most commonly,
Hearsay Rule
{¶23} Since
{¶24} In this case, Castillo was charged with two counts of violating a protection order, in violation of
{¶25} In an attempt to present evidence which showed that Castillo was within 500 feet of Wright on October 29 and November 1, 2013, it presented the testimony of Sheriff Bodenbender who allegedly saw Castillo and Wright in the car together on both dates. While Sheriff Bodenbender was able to identify the passenger of the car as Castillo after checking his driver‘s license and later made an in-court identification of Castillo, he admittedly did not know who the driver of the car was. It was not until Sheriff Bodenbender got back to the police station and looked up Castillo‘s protection order on a database he discovered the identity of Sarah Wright. He used the information displayed on the computer screen to
{¶26} Although we could not find a case from an Ohio court that dealt with a similar situation, we were able to find a case out of the Court of Appeals of Florida with nearly identical facts. See generally Holborough v. State, 103 So.3d 221 (Fla.App.2010). In Holborough, the defendant was charged with felony battery and the information charged that he “actually and intentionally touch[ed] or str[uck] Andrea Berube against her will or intentionally caused bodily harm to Andrea Berube * * *.” Id. at 222. At the defendant‘s trial, Andrea Berube did not testify. Id. The police officer who responded to the scene testified that he saw the defendant straddling a woman and was repeatedly hitting the woman. Id. The prosecutor then asked the officer whether he was able ” ‘to find out the identity of that female that [he] saw beaten.’ ” Id. While the defense raised a hearsay objection, it was overruled and the officer testified that he was able to identify the victim as “Andrea Berube.” Id. The officer explained that he based this identification on a Florida ID that the woman displayed to him. Id.
{¶27} The court found that the identification of the victim was based on inadmissible hearsay. Id. at 223. The court first noted that the State did not show that the officer had “personal knowledge” of the victim‘s identity besides from the Florida ID. Id. The court held that the victim‘s Florida ID was an out-of-court
{¶28} In Folwer v. State, 929 N.E.2d 875 (Ind.App.2010), the State used a certified booking information printout to prove the identity of the victim in a battery case. Id. at 877. The printout contained the victim‘s photograph, name, date of birth, and a description of the individual. Id. The defense objected to the printout as inadmissible hearsay, but the trial court admitted the evidence over the objection. Id. On appeal, the court held that the printout was admissible since it fell under the public records exception to the hearsay rule. Id. at 879.
{¶29} In this case, Sheriff Bodenbender did not have personal knowledge of the driver‘s identity apart from the undocumented computer generated information.1 The computer generated information was an out-of-court statement, and it was offered to prove the truth of the matter asserted—that the photograph of the driver that was depicted on the computer was Sarah Wright. Furthermore, the State did not try to offer the hearsay statement—the computer printout—into evidence under a hearsay exception like the prosecution did in Folwer.
{¶30} In State v. Fink, 12th Dist. Warren Nos. CA2008-10-118, CA2008-10-119, 2009-Ohio-3538, the court reversed a defendant‘s conviction for underage
{¶31} Here, Sheriff Bodenbender‘s testimony was based on his recollection of undocumented computer generated information obtained from an ambiguous database. Sheriff Bodenbender did not even testify as to what database he
{¶32} Moreover, the State failed to present any other evidence which would provide the identity of the driver of the car. For example, they did not call Wright as a witness; did not provide a copy of her driver‘s license; or a printout of the information Sheriff Bodenbender viewed on his computer. Since the only evidence referencing the identity of the driver was inadmissible, Castillo is clearly prejudiced by its admission at trial.
{¶33} Accordingly, we sustain Castillo‘s first assignment of error.
Assignment of Error No. II
{¶34} In his second assignment of error, Castillo argues the trial court erred by entering a verdict without sufficient evidence. However, Castillo only argues that there was insufficient evidence presented that he had a prior conviction for violating a protection order. We disagree.
Standard of Review
{¶35} When an appellate court reviews the record for sufficiency, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 47. Sufficiency is a test of adequacy.
R.C. 2919.27(A)(1), (B)(3)
{¶36}
{¶37} “When [the] existence of a prior conviction does not simply enhance the penalty but transforms the crime itself by increasing its degree, the prior conviction is an essential element of the crime and must be proved by the state.” State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, ¶ 8, citing State v. Allen, 29 Ohio St.3d 53, 54 (1987). Further, under
{¶38} Here, the State offered Exhibit 2 into evidence, which was a certified judgment entry that found Carmel Castillo guilty of violating a protection order in case number CR13-769. This judgment entry was filed with the Defiance Municipal Court on August 13, 2013. Further, the State offered Patrolman Monhollen‘s testimony, who testified that he worked for the Defiance Police Department and he arrested Castillo in August of 2013 for violating a protection order. He stated that this arrest resulted in case number 13CR769.
{¶39} Thus, we find that there was sufficient evidence to show that Castillo had a prior conviction for violating a protection order.
{¶40} Accordingly, we overrule Castillo‘s second assignment of error.
{¶41} Having found no error prejudicial to Castillo in the second assignment of error, but having found error prejudicial to Castillo in the first assignment of error, we reverse the trial court‘s judgment and remand this matter for further proceedings consistent with this opinion.
Judgment Reversed and Cause Remanded
SHAW and WILLAMOWSKI, J.J., concur in Judgment Only.
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