State of Ohio v. Ansell Davis
Court of Appeals No. L-14-1274
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: December 11, 2015
2015-Ohio-5159
Trial Court No. CR0201402430
Neil S. McElroy, for appellant.
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Ansell Davis, appeals the November 26, 2014 judgment of the Lucas County Court of Common Pleas which, following a jury trial convicting him of two counts of felonious assault, sentenced appellant to 12 years of imprisonment. Because we find that the appeal lacks merit, we affirm.
{¶ 3} On November 5, 2014, a subpoena was issued to the victim ordering her to appear and testify at appellant’s November 24 trial. After the victim could not be located, a body attachment order was issued; the victim was finally arrested on November 26; however, the trial had concluded.
{¶ 4} On the morning of the November 24, 2014 trial and with the victim still missing, the court conducted a hearing to determine the admissibility of hеr statements to police under
{¶ 5} The state then presented the testimony of the detective assigned to the case. Early on, the victim was cooperative in the investigation and expressed a desire to have
{¶ 6} Just a few weeks before trial, the detective located the victim at municiрal court and convinced her to speak with him and the prosecutor. The victim indicated that she was “scared to death” of appellant and feared that he or his family would harm her or her family. Thе victim was served with a subpoena on November 3, 2014. The Friday prior to the Monday, November 24 trial, the detective stated that after obtaining a material witness warrant he went to the address given by the victim in early November. The detective spoke with a woman who indicated that the victim had her vehicle and was going to pick up her daughter and leave town. The detective called the victim using the friend’s cell phone because the victim would not answer his phone calls. The detective testified that he explained to the victim that there was a warrant for her arrest and she promised to appear in 45 minutes. The victim did not appear.
{¶ 7} The detective testified that he went back to the friend’s house, determined where the victim’s daughter attended school, and drove to that location and began survеillance. The vehicle the victim had been driving was spotted but was operated by a male friend who had been asked to pick up the daughter. The detective then used the friend’s cell phone to sрeak with the victim. Again, the victim indicated that she would meet the officer. One half-hour to 45 minutes later, he called her again and she said she was still on the way. The victim did not arrive. The victim further informed the prosеcutor that she would be present on the morning of trial; she never appeared.
{¶ 9} The court then found that appellant violated its order that he not contact the victim and that based on the content of the highlightеd telephone conversations, appellant’s purpose was to keep the victim from testifying. The court concluded that the victim’s hearsay statements would be admissible.
{¶ 10} Following the jury trial, apрellant was found guilty of two counts of felonious assault and this appeal followed. Appellant now raises two assignments of error:
Assignment of Error No 1: The trial court abused its discretion when it admitted, over оbjection, hearsay testimony of the alleged victim under
Evid.R. 804(B) despite the state’s failure to provide written notice of its intention to introduce the statements.Assignment of Error No. 2: The trial court abused its discretiоn when it found that the alleged victim was unavailable.
{¶ 12} Hearsay is generally not admissible unless it falls under an exception to the exclusionary rule. Appellant challenges the trial court’s determination that his wrongdoing resulted in the victim’s failure to appear and testify at trial and, thus, was admissible under
{¶ 13}
The following are not excluded by the hearsay rule if the declarant is unavailable as a witnеss:
* * *
(6) Forfeiture by wrongdoing. A statement offered against a party if the unavailability of the witness is due to the wrongdoing of the party for the purpose of preventing the witness from attending or testifying.
{¶ 14} Appellant’s first assignment of error challenges the fact that prior written notice of the intent to use the hearsay evidence was not provided. Appellant did not object to the method in which he was informed that the victim was not going to appear and that her statement would be substituted. Thus, our review is limited to plain error. To prevail on a claim оf plain error under
{¶ 15} Based on our review of the record, we cannot say thаt, absent the failure to provide written notice of the intent to use the victim’s statement, the outcome of the trial would have been different. First, the state left defense counsel a detailed messagе as soon as it was apparent that the victim could not be located. Next, even without the victim’s statement we cannot say that appellant would not have been found guilty. There was eyewitness testimony presented by neighbors identifying appellant as the perpetrator of the April offense. Further, the hotel clerk testified regarding the victim’s scared demeanor and that there was blood cоming from her nose (blood was later found on the dashboard of appellant’s vehicle).
{¶ 17} In his second assignment of error, appellant contends that the state failed to prove that the victim’s absence at trial resulted from his wrongdoing. In order for statements to be admissible under
{¶ 18} Appellant argues that the testimony presented at the hearing was not sufficient to establish that she was unavailable for trial; it merely showed that she was unwilling to testify. The testimony presented at thе hearing showed that the weekend prior to trial, appellant spoke with the victim, in violation of a court order, and told her to take a vacation and not be in town during the trial. Appellant stated that “[e]verybody play their part, everybody going to be happy.”
{¶ 19} As set forth above, when the detective located the victim in early November and convinced her to meet at the prosecutor’s office she specifically stated that she had been avoiding him out of fear for her and her family’s safety. Further, the
{¶ 20} Based on the foregoing, we find that the trial court did not err when it found that appellant’s wrongdoing caused the victim’s unavailability. Appellant’s second assignment of error is not well-taken.
{¶ 21} On consideration whereof, we find that appellant was not prejudiced or prevented from having a fair trial and the judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to
Judgment affirmed.
A сertified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, P.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.