State v. DennyState v. Denny
Dated: August 10, 2009
MOORE, Presiding Judge.
{¶1} Appellant, Raymond Denny, appeals from the decision of the Wayne County Court of Common Pleas. This Court reverses.
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{¶2} In 2008, Appellant, Raymond Denny, was indicted on one count of unlawful sexual conduct with a minor, in violation of
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ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO PROVE THE ELEMENT OF AGE SOLELY THROUGH THE USE OF INADMISSIBLE HEARSAY EVIDENCE.”
{¶3} In his first assignment of error, Denny asserts that the trial court erred when it allowed the State to prove the elements of age solely through inadmissible hearsay evidence. We agree.
{¶4} Generally, this Court reviews a trial court‘s ruling on the admissibility of evidence for an abuse of discretion. State v. Roberts, 156 Ohio App.3d 352, 2004-Ohio-962, at ¶14. However, the Ohio Supreme Court has held that “[w]hen a court‘s judgment is based on an [arguably] erroneous interpretation of the law, an abuse-of-discretion standard is not appropriate.” Med. Mut. of Ohio v. Schlotterer, ___ Ohio St. 3d ____, 2009-Ohio-2496, at ¶13. Here the argument on appeal raises a question of law, i.e. whether the trial court erred in admitting Deputy Lemmon‘s testimony that was based on inadmissible hearsay. Id. We review such questions of law de novo. Id.
{¶5} Denny was convicted of unlawful sexual conduct with a minor, in violation of
“(A) No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.”
Q: “And during your investigation did you --- were you able to determine Mr. Denny‘s date of birth?
A: “According to previous reports his date of birth was March 23[], 1986.
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Q: “Detective Lemmon, as part of your investigation did you have the opportunity to review any records involving Mr. Denny?
A: “Yes, criminal records.
Q: “And what records did you look at?
A: “Just local records that we have on him.
Q: “And where are those records kept, how are they stored?
A: “Computer database.
Q: “So you have a computer database at the police department. So what did you do when you were investigating this case to determine Mr. Denny‘s address, any other information about him. What did you do?
A: “Yes, we run him through the National Crime Information Center as well as local records and any driving record checks.
Q: “And did you have the opportunity to determine Mr. Denny‘s date of birth based on your investigation?
A: “Yes.
Q: “And what is his date of birth?
A: “March ---
Defense counsel: “Again, I‘d renew my objection. That‘s hearsay. Those records are hearsay.
The court: “Are the records kept in the ordinary course of business?
A: “Yes.
A: “BMV would be a custodian of one.
The court: “These aren‘t records kept exclusively by the Wooster Police Department?
A: “Local records would be kept by the Clerk of Courts.
The court: “Are those records you reviewed?
A: “Yes, we always do a local check.
The court: “I‘m going to allow the answer.
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A: “March 23[], 1986.”
{¶7} The record further reflects that on cross-examination Deputy Lemmon testified:
Q: “Couple question [sic], Deputy Lemmon. Did you ever examine Raymond Denny‘s birth certificate?
A: “No, I did not.
Q: “So what you‘re testifying in court today is something that you saw on a BMV record?
A: “Yes.
Q: “Was that record certified from the Bureau of Motor Vehicles?
A: “No.
Q: “How do you know it‘s accurate?
A: “Just based on what they say.
Q: “So you‘re relying totally upon what you saw in some computer print out from the Bureau of Motor Vehicles?
A: “That‘s correct.
Q: “So in answer to my question, you have no way of knowing it‘s accurate.
A: “Just based on what they tell me.”
“A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.”
{¶9} Here, no records were submitted to the court or offered into evidence to show Deputy Lemmon‘s personal knowledge of Denny‘s age. He merely testified regarding his review of the BMV records. Further, no record custodian testified as to the accuracy of the computer database and/or printout. Consequently, the trial court erred in admitting the officer‘s testimony regarding Denny‘s age. Denny‘s first assignment of error is sustained.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED IN FAILING TO GRANT [DENNY‘S] MOTION FOR JUDGMENT OF ACQUITTAL PRIOR TO THE CASE BEING SUBMITTED TO THE JURY BECAUSE [THE STATE] FAILED TO PROVE THE ESSENTIAL ELEMENTS OF THE OFFENSE OF UNLAWFUL SEXUAL CONDUCT WITH A MINOR.”
{¶10} In his second assignment of error, Denny argues that the trial court erred in failing to grant his motion for judgment of acquittal prior to the case being submitted to the jury because
{¶11} As an initial matter, we conclude that our resolution of the first assignment of error does not render moot Denny‘s challenges to the sufficiency of the evidence introduced at trial. The Ohio Supreme Court recently “distinguish[ed] between appellate court reversals based solely upon insufficiency of the evidence and those based on ordinary ‘trial errors.‘” State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, at ¶18. The Double Jeopardy Clauses of the
{¶12} The Brewer court recognized the corollary, however, that the State is not entitled to retry a criminal defendant after reversal for trial court error if the State failed in the first instance to present sufficient evidence. Id. at ¶18. Accordingly, a defendant‘s assigned error that the conviction is based on insufficient evidence is not moot under these circumstances. The Ohio Supreme Court emphasized, however, that the interest in the administration of justice dictates that the appellate court review the issue of sufficiency in consideration of all evidence
{¶13}
“(A) The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state‘s case.”
“An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Galloway (Jan. 31, 2001), 9th Dist. No. 19752.
{¶14} The test for sufficiency requires a determination of whether the State has met its burden of production at trial. State v. Walker (Dec. 12, 2001), 9th Dist. No. 20559; see, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 390.
{¶15} In his brief, Denny has only challenged the element of proof under
{¶16} Denny‘s first assignment of error is sustained. His second assignment of error is overruled. The judgment of the Wayne County Court of Common Pleas is reversed.
Judgment reversed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
CARLA MOORE
FOR THE COURT
WHITMORE, J.
DICKINSON, J.
CONCUR
JEFFREY D. HAUPT, Attorney at Law, for Appellant.
MARTIN FRANTZ, Prosecuting Attorney, and LATECIA E. WILES, Assistant Prosecuting Attorney, for Appellee.