No. 2007CAA-01-0005. | Ohio Ct. App. | Jul 29, 2008
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *426
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *427 {¶ 1} Defendant-appellant, Huey Granderson Jr., appeals from his conviction for one count of theft, a fourth-degree felony, in the Delaware County Court of Common Pleas.
{¶ 2} The facts giving rise to this conviction are as follows. In October 2005, appellant contacted Bobcat Enterprises, a company in the business of renting and selling construction equipment, regarding the rental of a utility work machine known as a "Tool-Cat." On October 17, 2005, Ronald Eckleberry of Bobcat Enterprises called appellant and told him he could deliver a Tool-Cat the following day. Appellant wanted the equipment delivered to 6217 Africa Road in Delaware County, Ohio, a property owned by one John Leppert. Appellant's girlfriend, Meagan Kurczewski, went to Bobcat Enterprises the next morning and gave Eckleberry her driver's license and a $500 check for a deposit. Eckleberry did not have Kurczewski sign a rental contract.
{¶ 3} On the afternoon of October 18, 2005, Richard Lemaster of Bobcat Enterprises took the Tool-Cat to 6217 Africa Road, as previously arranged with appellant. Appellant was not present at the time of delivery, so Lemaster called *428 appellant on his cell phone and agreed to leave the equipment at the delivery location.
{¶ 4} At approximately 10:30 p.m. that day, a neighbor across the street saw taillights at 6217 Africa Road. She noted this because the property was vacant. At 12:30 a.m. on October 19, 2005, appellant called Eckleberry to ask whether the equipment had been delivered. Eckleberry told appellant that it had been delivered that afternoon. Eckleberry called appellant at 6:15 a.m. on October 19, 2005, to ask whether the equipment had been located. Appellant did not find it and reported the missing equipment to the Delaware County Sheriff's Office. The Sheriff's Office told appellant that an agent of Bobcat Enterprises needed to report the theft because appellant claimed that he had not seen the delivered equipment. Lemaster met Deputy Burke at the Africa Road location to make a report. Later, Kurczewski placed a stop-payment order on the $500 check she had written to Bobcat Enterprises.
{¶ 5} Detective Dan Otto of the Delaware County Sheriff's Office interviewed appellant over the telephone regarding the incident. Appellant stated that he had been hired to clear the property at 6217 Africa Road. Appellant gave Detective Otto the cell phone number of the company that was assisting him in clearing the property. Detective Otto also interviewed Leppert, the owner of the property, and discovered that appellant had not been hired to do a job there. Leppert also told the detective that he had allowed appellant to store items on the property in the past.
{¶ 6} Detective Otto left numerous messages on the voicemail of the cell phone number appellant gave him. There was a message indicating that the cell phone was for a business called "Two Men and a Bobcat." Detective Otto traced the cell phone number and discovered that one John M. Hodge owned the cell phone. Detective Otto, with the assistance of the Hocking County Sheriff's Office, made contact with Hodge. Detective Otto discovered that appellant and Hodge were friends who spoke daily. Detective Otto presented cell phone records that traced the cell phone for Two Men and a Bobcat to Hodge. Hodge stated that appellant had asked him to place this message on the cell phone voicemail and that he had provided appellant with the message code to check the voicemail. Detective Otto detailed these statements in a written summary.
{¶ 7} On February 24, 2006, the Delaware Grand Jury indicted appellant on one count of theft in violation of R.C.
{¶ 8} Kurczewski also was indicted on one count of theft in violation of R.C.
{¶ 9} On September 26, 2006, Hodge pleaded guilty to the lesser included offense of attempted theft, a fifth-degree felony, and the charge of breaking and entering was dismissed. During his plea allocution, Hodge stated that appellant had Kurczewski rent the equipment. Further, he stated that appellant had the equipment delivered to the Africa Road location. He testified that he helped appellant load the equipment onto a trailer and that appellant took it and reported it stolen. However, Hodge subsequently changed legal counsel and informed the trial court that he wished to withdraw his guilty plea. A hearing was held on October 20, 2006. Hodge appeared with new counsel but advised the trial court that he did not want to withdraw the plea and he wished to stand on his guilty plea. His sentencing was scheduled for November 20, 2006.
{¶ 10} The case against appellant and Kurczewski proceeded to trial on November 14, 2006. After several witnesses testified, the state asked the trial court to call Hodge as a witness pursuant to Evid. R. 614, which provides: "The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called."
{¶ 11} The prosecutor said, "During the course of interviewing [Hodge] in preparing him to testify in this matter, his story changed. * * * [T]he State feels that his testimony here today may be inconsistent with his, both allocution or prior statement given during the course of this case. Knowing that he may give an inconsistent statement, I'm obviously not surprised and nor can I claim affirmative damage which prohibits me from impeaching him with his own statement should that case arise."
{¶ 12} The defense objected on the grounds that the state's motion was untimely and because the state only informed defense counsel that Hodge might take the
{¶ 13} Prior to testifying, the trial court informed the jury that Hodge had been found guilty of the crime of attempted theft "arising out of the same factual situation here, with the Bobcat, was found guilty of that and there has been a plea of guilt on the 26th day of September, of this year. He is awaiting sentence."
{¶ 14} After preliminary questions, the trial court asked Hodge, without objection or an assertion of the
{¶ 15} "Q: Can you tell us what Two Men and a Bobcat is? *430
{¶ 16} "A: It was a message I put on my cell phone for Huey Granderson.
{¶ 17} "* * *
{¶ 18} "Q: Why did you put that on your cell phone for Huey Granderson?
{¶ 19} "A: He called me and asked me to put it on my cell phone because a detective would be calling.
{¶ 20} "Q: When did you put it on your cell phone for Mr. Granderson?
{¶ 21} "A: On October 19th of the last year.
{¶ 22} "Q: 2005?
{¶ 23} "A: 2005.
{¶ 24} "Q: What was your cell phone number, sir?
{¶ 25} "A: (614)329-5179.
{¶ 26} "Q: What was the discussion, as best you recall, when Mr. Granderson asked you to put this on your phone?
{¶ 27} "A: He called —"
{¶ 28} Hodge's testimony was then interrupted by his legal counsel, who advised Hodge not answer based upon his
{¶ 29} The trial court then questioned Hodge about the allocution he made on September 26, 2005.
{¶ 30} "Q: Mr. Hodge, during the allocution here in this open court, you told this court that you assisted Mr. Granderson in putting the Bobcat on a trailer and removing it from this property; yes or no?
{¶ 31} "A: "Yes.
{¶ 32} "Q: That Mr. Granderson, that you testified to on the 26th of September, is the gentleman sitting here, wearing the white shirt, as you identified earlier; correct?
{¶ 33} "A: Yes."
{¶ 34} Hodge then asserted the
{¶ 35} The trial court went back in session before the jury and the judge began to question Hodge, as follows:
{¶ 36} "Q: During the recess did you read the summary that was marked as Court's Exhibit 2?
{¶ 37} "A: Yes.
{¶ 38} "Q: Is there anything in that summary that you feel is not correct?
{¶ 39} "A: No, sir.
{¶ 40} "* * *
{¶ 41} "Q: And you already told us here today, correct that you did have knowledge of Two Men and a Bobcat?
{¶ 42} "A: Yes.
{¶ 43} "Q: You put something on a cell phone that would make anyone calling that number think they were talking to a machine at Two Men and a Bobcat?
{¶ 44} "A: Yes, sir.
{¶ 45} "* * *
{¶ 46} "Q: Going back to Court's Exhibit 1, the transcript statement made here in open court when you pled guilty. You read that now; correct?
{¶ 47} "A: Yes, sir.
{¶ 48} "Q: Is there anything in that statement that was not truthful?
{¶ 49} "A: I assert my
{¶ 50} Thereafter, Hodge was cross-examined by both the state and defense counsel. Hodge again confirmed that he had set up the voicemail message on his cell phone for Two Men and A Bobcat at the request of appellant on October 19, 2006, and that he had given appellant the code to check messages. He further denied ever being in business as Two Men and A Bobcat. Hodge conceded that he had initially denied any knowledge of Two Men and a Bobcat to the police, but when he was confronted with cell phone records, he changed his story.
{¶ 51} At the end of the state's case, the prosecutor moved for the admission of exhibits, including the allocution and Detective Otto's summary interview of Hodge. The prosecutor noted that there was no objection to either exhibit. A general objection to these exhibits was then made by defense counsel. The trial court overruled the objection.
{¶ 52} Upon a Crim. R. 29 motion, the trial court dismissed the charges against Kurczewski and dismissed the charges of obstruction of justice and breaking and entering against appellant. *432
{¶ 53} At the beginning of the defense case, counsel for appellant was permitted to make supplemental arguments as to his objection to the allocution and the police summary. The trial court admitted the exhibits as "prior consistent statements" or "the business records as an exception to the hearsay rule."
{¶ 54} Thereafter, the jury returned a guilty verdict on one count of theft against appellant.
{¶ 55} The trial court sentenced appellant to 17 months' imprisonment, imposed a fine of $10,000, and imposed restitution in the amount of $41,500.
{¶ 56} Appellant now appeals, raising five assignments of error:
{¶ 57} "I. The trial court committed an abuse of discretion when the judge interrogated a witness, an alleged accomplice, in a manner that conveyed to the jury the judge's personal appraisal of the witness' credibility and the merits of the state's case and thereby violated the appellant's rights to due process, fundamental fairness and to have a fair trial by an impartial jury, which are guaranteed under the
{¶ 58} "II. The trial court abused its discretion by admitting a transcript of the allocution of an accomplice witness and a written summary of the accomplice's interview with police investigators as trial exhibits and substantive evidence and in so doing violated the appellant's rights, which are guaranteed under the
{¶ 59} "III. Appellant's right under the United States and Ohio Constitutions to confront and cross examine witnesses was denied when John Hodge's prior testimony and statements were admitted without the benefit of effective cross-examination.
{¶ 60} "IV. The court erred to the prejudice of the defendant by imposing a fine of $10,000 when the maximum fine for the offense is 5,000.
{¶ 61} "V. The trial court committed reversible error by ordering restitution in an amount in excess of the amount of actual economic loss suffered by the victim as a result of defendant's alleged criminally injurious conduct."
{¶ 63} Prior to addressing the merits of appellant's argument, we note that defense counsel did not object to the manner in which the trial court examined Hodge. Therefore, we must review this assignment of error under a plain-error analysis pursuant to Crim. R. 52(B). This rule provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Notice of plain error is to be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v.Long (1978),
{¶ 64} Appellant concedes that a trial court has the right to call and interrogate witnesses as an exercise of its discretion and will be reversed only when the trial court abused its discretion. State v. Forehope (1991),
{¶ 65} Appellant argues that when the trial court questioned Hodge, the trial court failed to ask questions in an impartial manner and exhibited bias in the leading questions asked that prejudiced the jury against him. We disagree.
{¶ 66} "A trial court's interrogation of a witness is not deemed partial for purposes of Evid. R. 614(B) merely because the evidence elicited during the questioning is potentially damaging to the defendant." State v.Blankenship (1995),
{¶ 67} We find that appellant has failed to demonstrate that the trial court questioned Hodge in a biased or partial manner so as to have a prejudicial effect on the outcome of the proceedings. Further, the trial court instructed the jury to disregard anything indicating his views on the case. It must be presumed that *434
the jury followed the court's instruction. State v.Loza (1994),
{¶ 68} Based upon our review of the record, we find that the trial court did not commit plain error in the manner in which it questioned Hodge. Appellant's first assignment of error is overruled.
{¶ 70} The admission or exclusion of evidence rests in the sound discretion of the trial court. State v.Sage (1987),
{¶ 71} The trial court found the allocution and police summary to be admissible as prior consistent statements and under the business-records exception to the hearsay rule.
{¶ 72} We will first examine whether the allocution and police summary are prior consistent statements.1 Evid. R. 801(D)(1)(b) states that a "statement is not hearsay if [t]he declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with declarant's testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive." Such rule permits the "rehabilitation of a witness whose credibility has been attacked by means of a charge that he recently fabricated his story or falsified his testimony in response to improper motivation or influence * * *." Statev. Lopez (1993), *435
{¶ 73} For this rule to apply to the allocution and police summary, Hodge must have testified and then a charge made against him of "recent fabrication or improper influence or motive" during his testimony. State v. Totarella, 11th Dist. No. 2002-L-147,
{¶ 74} Upon our review of the record, we did not find any suggestion in the questioning of Hodge to indicate a charge of "recent fabrication or improper influence or motive" on the part of Hodge. Based on this absence of evidentiary support, the allocution and police summary should not have been admitted as a prior consistent statement under Evid. R. 801(D)(1)(b).
{¶ 75} The trial court also stated that the allocution and police summary were admitted as business records, which are exceptions to the hearsay rule. Generally, hearsay is "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." Evid. R. 801(C). Hearsay is generally inadmissible unless it falls within one of the exceptions to hearsay. Evid. R. 802. The business-records exception is contained in Evid. R. 803(6) and states:
{¶ 76} "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. The term `business' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit."
{¶ 77} It is well established that police reports are generally inadmissible hearsay and should not be submitted to the jury. State v. Leonard,
{¶ 78} Nevertheless, even if appellant were to demonstrate that the trial court erred in sending the allocution and police summary to the jury, any error was harmless because the allocution and police summary were cumulative to Hodge's in-court testimony. We note that harmless error is described as *436
"[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Crim. R. 52(A). Error is harmless beyond a reasonable doubt when the remaining evidence constitutes overwhelming proof of the defendant's guilt. State v. Williams (1988),
{¶ 79} In his allocution, Hodge stated that appellant had the equipment delivered to the Africa Road location. He admitted to assisting appellant in loading the equipment on a trailer. Finally, he stated that he put a message on his cell phone with a business name at appellant's request. The police summary included similar statements that Hodge made to Detective Otto regarding the cell phone message.
{¶ 80} At trial, Hodge testified independently to the same facts set forth in the allocution and summary. Hodge testified, without objection, that he set up the voicemail message on his cell phone for Two Men and A Bobcat at the request of appellant on October 19, 2006, and that he gave appellant the code to check messages. He further denied ever being in business as Two Men and A Bobcat. Hodge stated that he assisted appellant in loading the Tool-Cat on a trailer. Hodge's testimony was cumulative of the statements in the allocution and police summary. Further, Hodge was subject to cross-examination by appellant's trial counsel; therefore, there was no prejudice to appellant. Accordingly, we find that the admission of these exhibits was harmless.
{¶ 81} Appellant's second assignment of error is overruled.
{¶ 83} We first note that appellant did not make a Crawford objection at trial. An appellate court need not consider an error not called to the trial court's *437
attention at a time when the error could have been avoided or corrected by that court. State v. Williams (1977),
{¶ 84} Therefore, because it is clear from the record that appellant did not object at trial to the admittance of the allocution on constitutional grounds, we review his constitutional challenge for plain error only.
{¶ 85} Hodge testified at trial consistently with statements made in the allocution, as we have examined under the second assignment of error. Appellants counsel had an opportunity to cross-examine Hodge. The admission of the allocution was cumulative of Hodges testimony at trial. Because Hodge was available, testified consistently, and was cross-examined, the Confrontation Clause is not implicated. The admission of the allocution was not plain error.
{¶ 86} Accordingly, appellant's third assignment of error is overruled.
{¶ 88} Criminal fines are mandated by R.C.
{¶ 89} "(A) Except as otherwise provided in this division and in addition to imposing court costs pursuant to section
{¶ 90} "(3) a fine payable by the offender to the state, to a political subdivision when appropriate for a felony, or as described in division (B)(2) of this section to one or more law enforcement agencies, in the following amount: * * * (d) For a felony of the fourth degree, not more than five thousand dollars * * *."
{¶ 91} Appellee concedes that the maximum fine is $5,000. Because the trial court imposed a fine of $10,000, in excess of the statutory maximum, that portion of the trial court's sentencing order is reversed and remanded for further proceedings to impose a fine consistent with R.C.
{¶ 93} R.C.
{¶ 94} "Restitution by the offender to the victim of the offender's crime or any survivor of the victim, in an amount based on the victim's economic loss. If the court imposes restitution, the court shall order that the restitution be made to the victim in open court, to the adult probation department that serves the county on behalf of the victim, to the clerk of courts, or to another agency designated by the court. If the court imposes restitution, at sentencing, the court shall determine the amount of restitution to be made by the offender. If the court imposes restitution, the court may base the amount of restitution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense. If the court decides to impose restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor disputes the amount. All restitution payments shall be credited against any recovery of economic loss in a civil action brought by the victim or any survivor of the victim against the offender."
{¶ 95} In State v. Castaneda,
{¶ 96} At the outset, this court notes that appellant did not object to the restitution imposed at the January 17, 2007 sentencing hearing; therefore, all but plain error is waived. Williams,
{¶ 97} In the presentence investigation ("PSI"), Lemaster valued the Tool-Cat at $41,500. The trial court heard the state's valuation of the property, considered the PSI, and imposed restitution of $41,500. We cannot determine from the record whether the painted-over Tool-Cat, which was recovered at the Leppert property, was in fact the stolen equipment or whether it was in a condition to be placed in the rental fleet of Bobcat Enterprises. Hence, we find that the imposition of restitution is supported by competent and credible evidence and that there was not plain error. Accordingly, appellant's fifth assignment of error is overruled.
{¶ 98} The judgment of the Delaware County Court of Common Pleas is affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part, and cause remanded.
GWIN, P.J., and WISE, J., concur.