STATE OF OHIO, Plаintiff-Appellee -vs- AARON A. HAMPTON, Defendant-Appellant
Case No. 2018 CA 00123
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 25, 2019
[Cite as State v. Hampton, 2019-Ohio-2555.]
Hon. W. Scott Gwin, P. J.; Hon. John W. Wise, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2018 CR 00758. JUDGMENT: Affirmed.
For Plaintiff-Appellee
JOHN D. FERRERO PROSECUTING ATTORNEY KRISTINE W. BEARD ASSISTANT PROSECUTOR 110 Central Plaza South, Suite 510 Canton, Ohio 44702
For Defendant-Appellant
BERNARD L. HUNT 2395 McGinty Road, NW North Canton, Ohio 44720
O P I N I O N
{¶1} Defendant-Appellant Aaron A. Hampton appeals from his felony conviction, in the Court of Common Pleas, Stark County, on one count of domestic violence. Appellee is the State of Ohiо. The relevant facts leading to this appeal are as follows.
{¶2} On April 14, 2018, Officer Jennifer Henderson of the Canton Police Department was dispatched to a Gas City gas station located at 216 Roland Avenue NE. She thereupon took a report that appellant‘s girlfriend, R.P., had been physically assaulted. Shortly thereafter, the officer interviewed R.P. at Mercy Hospital.
{¶3} On April 17, 2018, appellant was arrested, аnd on the next day appeared in the Canton Municipal Court with appointed counsel for arraignment. At that time, he entered a plea of not guilty. He was also advised that the municipal court had issued a no contact order regarding R.P.
{¶4} Following a preliminary hearing in the municipal court on April 26, 2018, appellant was bound over to the Stark County Court of Common Pleas (hereinafter “trial court“).
{¶5} On or about May 31, 2018, the mаtter was presented to the Stark County Grand Jury. The victim, R.P., appeared and testified at that time. Appellant was thereupon indicted on one count of domestic violence,
{¶6} The trial court subsequently set the case for a final pretrial on June 20, 2018, with a trial date of July 3, 2018.
{¶8} On June 29, 2018, the State filed a notice of intent to use evidence (citing
{¶9} On July 3, 2018, the court held a hearing on the State‘s aforesaid motions. The State maintained that a continuance was necessary based on newly discovered evidence, including appellant‘s jail phone call to R.P. on June 22, 2018, which likely made the victim unavailable for trial, and certain records from Mercy Medical Center which included photos and the name of a potential witness. Reference was also made to a police bodycam video of the statements mаde by R.P. to law enforcement at Mercy Medical Center, although a copy thereof had been apparently received by defense counsel previously. See Discovery Receipt, June 13, 2018 (Docket Number 13). Over defense counsel‘s objection, the State‘s request for a continuance was granted, and the jury trial was re-set for July 17, 2018.
{¶10} On July 16, 2018, appellant filed a motion to dismiss on speedy trial grounds, which was denied. See Tr. at 27.
{¶11} The State called two witnesses on July 17, 2018: Officer Henderson of the Canton Police Department and Deputy Mark Hood of the Stark County Sheriff‘s Department. The victim, R.P., did not show up for the trial.
{¶13} The remaining witness called by the State, Deputy Hood, who is assigned to the inmate services unit, testified that appellant had called R.P. from a jail telephone on the afternoon of June 22, 2018. The audio of the call was then played for the jury over appellant‘s objection. Tr. at 210.
{¶14} During the jail call, R.P. can be heard telling appellant that she wanted to come to the trial just to have an opportunity to see him at the courthouse. Appellant then told R.P. that if she does not show up for the trial, he won‘t have to “fight” the charge and she would be able to see him. R.P. then stated her intention not to show up for trial. State‘s Exhibit 4 (played for the jury at Tr. 211).
{¶15} After the presentation of the Stаte‘s evidence, appellant made a Crim.R. 29 motion for acquittal, essentially arguing that the State had not proven that appellant was
{¶16} The jury thereafter deliberated and found appellant guilty as charged in the indictment.
{¶17} The trial court, following a hearing on July 23, 2018, sentenced aрpellant inter alia to 36 months in prison.
{¶18} On August 20, 2018, appellant filed a notice of appeal. He herein raises the following three Assignments of Error:
{¶19} “I. THE TRIAL COURT VIOLATED THE DEFENDANT‘S RIGHT UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION IN SECTION 10, ARTICLE I.
{¶20} “II. THE TRIAL COURT‘S FINDING OF GUILT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶21} “III. THE TRIAL COURT ERRED WHEN IT OVERRULED THE DEFENDANT‘S RULE 29(A) MOTION TO DISMISS.”
I.
{¶22} In his First Assignment of Error, appellant contends the trial court violated appellant‘s rights under the
{¶23} The admission or exclusion of relevant evidence rests in the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343. As a general rule, all relevant evidence is admissible.
{¶24} The text of the present assigned error indicates appellant is claiming a violation of his constitutional right to confront witnesses. However, his argument is chiefly focused on hearsay issues, particularly
Confrontation Issues
{¶25} The Confrontation Clause of the
{¶26} In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held testimonial statements of a witness who
{¶27} Officer Henderson‘s testimony: Appellant first challenges the following recollection provided at trial by Officer Henderson, concerning what R.P. (who did not appear at appellant‘s trial) reported to her at the hospital:
*** [R.P.] was in an altercation with her boyfriend [Appellant Hamрton], they were at a barbeque, they were leaving to go to another address, and she states she didn‘t want to go. And during this they‘re in a car with an unknown person. Unknown person tells them to get out. She states that Mr. Hampton grabbed her by the neck, punched her with a closed fist multiple times causing her to fall down on the railroad tracks, *** [and she] went to Gas City to make the phone call to get help.
{¶28} Tr. at 173-174.
{¶29} Even when confrontation rights apрly, testimonial hearsay can be admitted under the common law “forfeiture by wrongdoing” exception. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 108, citing Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008). The doctrine applies when the defendant engaged in conduct designed (with intent) to prevent the witness from testifying. Id. In essence, defendants forfeit the right to confrontation if they “seek to undermine the judicial process by procuring or coercing silence from witnesses * * *.” Davis v. Washington, 547
{¶30} In the case sub judice, although the victim, R.P., was initially cooperative and testified before the grand jury, she eventually refused to talk with prosecutors, did not respond to letters, and did not honor her subpoena. As further detailed infra, about one week before the original trial date, despite an existing no-contact order, appellant initiated a jail phone call to R.P., during which he told her that if she did not come to the trial, he would not have to fight the charge and he would be able to see her.
{¶31} Upon review, we hold the trial court acted within its discretion in permitting R.P.‘s statements to be admitted under the doctrine of forfeiture by wrongdoing, as the record supports a conclusion that appellant was intentionally seeking to disrupt R.P.‘s availability as a witness.
{¶32} Footage from Officer Henderson‘s police bodycam: During appellant‘s trial, the State chose not to play Officer Henderson‘s bodycam, and instead called the officer to testify. However, in this instance, appellant‘s defense counsel chose to have approximately four minutes of the bodycam video shown to the jury as a part of the defense cross-examination of Officer Henderson. See Tr. at 202. Where a defense attorney agrees to play a video, it is treated as if there was no objection, and the defendant waives all but plain error on appeal. See State v. Mathes, 12th Dist. Clermont No. CA2012-03-028, 2013-Ohio-1732, ¶ 21, сiting Crim.R. 52(B). Furthermore, we find the “forfeiture by wrongdoing” exception to the right to confront witnesses would again apply.
{¶33} Accordingly, we find no reversible error concerning the use of the bodycam video in this regard.
{¶35} When statements are made for the primary purpose of communicating with friends or family, they are not made to aid in the prosecution or as the result of an interrogation. See State v. Ray, 189 Ohio App.3d 292, 2010-Ohio-2348, 938 N.E.2d 378 (8th Dist.), ¶¶ 42-43. Specifically, recorded jail calls are not “testimonial” for confrontation purposes if the primary purpose of the calls is to further a conspiracy, rather than create a record for a criminal prosecution. United States v. Mayfield, 909 F.3d 956, 962 (8th Cir.2018), citing United States v. LeBeau, 867 F.3d 960, 981 (8th Cir. 2017). In the instant case, although appellant was not charged with conspiracy, the trial court could have reasonably determined that appellant was attempting to regain a relationship with R.P. and reach a pact to subvert her testimony. Under these circumstances, we find no confrontation violation and no abuse of discretion by the trial court in allowing the call to be played for the jury.
Hearsay Issues
{¶36} Officer Henderson‘s testimony / Footage from Officer Henderson‘s police bodycam: In the context of a hearsay analysis, we note that under
{¶37} Furthermore, given that R.P. spoke to the officer while she was being treated at the hospital and was visibly shaken and upset, we find the “excited utterance” exception to hearsay would have justified the trial court‘s allowance of R.P‘s out-of-court statements. See
{¶38} Audio recording of the jail phone call: Appellant does not indicate in his argument that R.P. made any statements during the jail call tending to incriminate appellant; we therefore presume appellant is referring to his own statements on the recording. However, a defendant‘s suggestion to a witness during a jail call that she should not come to court can constitute an admission of a party opponent, which is not hearsay under
{¶39} We therefore find no abuse of discretion by the trial court on hearsay grounds in allowing the call to be played for the jury.
{¶40} Appellant‘s First Assignment of Error is overruled.
{¶41} In his Second Assignment of Error, appеllant contends his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. We disagree.
Sufficiency Claim
{¶42} In reviewing a claim of insufficient evidence, “[t]he 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. Jenks (1991), 61 Ohiо St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. It is well-established that the State bears the burden of establishing each and every element of a charged crime and must do so with proof beyond a reasonable doubt. See In re L.R., 8th Dist. Cuyahoga No. 93356, 2010-Ohio-15, 2010 WL 27862, ¶ 11.
{¶43}
{¶44} Pursuant to
{¶46} Officer Henderson testified at trial that she learned appellant and R.P. had resided together at R.P‘s address, although the State was unable to procure a more specific follow-up answer as to a time frame, due to defense counsel‘s successful objection. See Tr. at 170-171. However, on the jail call recording, appellant can be heard telling R.P. that if she does not testify against him, she will be able to see him “for good.” State‘s Exhibit 4.1 Also, on Officer Henderson‘s bodycam video, R.P. appears to say that appellant had “stayed” with her, but had recently been banned from her building. State‘s Exhibit 1 (N/O).
{¶47} Upon review of the record and transcript in a light most favorable to the prosecution, we find that rational factfinders could havе determined the existence of a household member relationship and thus found appellant guilty beyond a reasonable doubt of the offense of domestic violence against R.P. as charged.
Manifest Weight
{¶48} Our standard of review on a manifest weight challenge to a criminal conviction is stated as follows: “The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
{¶49} Appellant‘s argument focuses on his claim that police investigative functions were not adequately performed in this instance. He maintains that Officer Henderson did not investigate if appellant or R.P. had been drinking (Tr. at 176), and that no interview was conducted of the persons who were allegedly giving appellant and R.P. a ride on the night of the assault (Tr. at 177). Appellant also faults investigators for not checking the railroad tracks for DNA evidence (Tr. at 179)2 or doing a “follow-up” at thе 1717 E. Tuscarawas address (Tr. at 195), the purported destination of appellant and R.P. on the date of the assault. Appellant also claims the police bodycam video showing R.P. does not show significant physical injury, and, without significant elaboration, claims Officer Henderson‘s testimony was confusing and/or inconsistent with the video.
{¶50} Even though a manifest weight analysis may involve an appellate court‘s consideration of сredibility (see State v. Sanders, 76 N.E.3d 468, 2016-Ohio-7204 (5th Dist.), ¶ 38), the weight to be given to the evidence and the credibility of the witnesses are primarily issues for the trier of fact (see, e.g., State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180). Furthermore, even if demonstrated, a substandard police investigation generally “has no bearing on the question of the manifest weight of the evidence,” so long as the evidence that is presented is sufficient to sustain the verdict. See State v. Keyser, 11th Dist. Portage No. 95-P-0136, 1996 WL 635842.
{¶52} Appellant‘s Second Assignment of Error is overruled.
III.
{¶53} In his Third Assignment of Error, although referencing Crim.R. 29, appellant challenges the trial court‘s denial of his statutory speedy trial motion to dismiss.
{¶54} The right to a speedy trial is encompassed within the
{¶55} Our review of a trial court‘s decision regarding a motion to dismiss based upon a violation of the speedy trial provisions involves a mixed question of law and fact. State v. McDonald, 7th Dist. Mahoning Nos. 97CA146 and 97CA148, 1999 WL 476253. Due deference must be given to the trial court‘s findings of fact if supported by competent, credible evidence. Id. However, we must independently review whether the trial court properly applied the law to the facts of the case. Id. Furthermore, when reviewing the legal issues presented in a speedy trial claim, an appellate court must strictly construe the relevant statutes against the state. Id., citing Brecksville v. Cook (1996), 75 Ohio St.3d 53, 57, 661 N.E.2d 706.
{¶56}
{¶57} Furthermore,
The time within which an accused must be brought to trial, or, in the case of [a] felony, to preliminary hearing and trial, may be extended only by the following: *** (D) Any period of delay occasioned by the neglect or improper act of the accused; *** (H) The period of any continuance granted on the accused‘s own motion, and the period of any reasonable continuance granted other than upon the accused‘s own motion; ***.
{¶58} (Emphases added).
{¶59} In the case sub judice, appellant was arrested on April 17, 2018, and he remained incarcerated until his trial commenced. Thus, absent any extensions, the ninety-day deadline established under
{¶60} The trial was initially scheduled for July 3, 2018, well within the limit. But on June 29, 2018, the State filed a motion for a continuance and a notice of intent to use evidence, based on the doctrine of forfeiture by wrongdoing. In both motions, and at a рretrial hearing on July 3, 2018, the State advised the trial court that on June 22, 2018, during the aforementioned jail call initiated by appellant, he told R.P. not to appear for trial, and that she had agreed to this. The State thus moved the court for a continuance in part to try to compel R.P.‘s appearance and/or for the court to determine whether R.P.‘s out-of-court statements could be presented in her absence. The State also advised that they had received recent notice of newly discovered evidence of medical photos. Finally,
{¶61} On July 2, 2018, in a hearing entry, the court indicated that it would grant the motion to continue with an entry to follow. Via a judgment entry issued on July 16, 2018, the court granted the State‘s motion to continuе. The trial then commenced on July 17, 2018.
{¶62} Under the circumstances presented, we hold the trial court‘s continuance of the trial date for one more day past the 90-day triple-count speedy trial deadline was reasonable and valid, and the additional tolling period did not constitute error or deprive appellant of his constitutional rights.
{¶63} Accordingly, the trial court did not err in denying appellant‘s statutory speеdy trial motion to dismiss.
{¶64} Appellant‘s Third Assignment of Error is overruled.
{¶65} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
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