State v. Hoffmeyer, 23712 (5-14-2008)State v. Hoffmeyer, 23712 (5-14-2008)
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
INTRODUCTION
{¶ 1} Samuel Hoffmeyer was convicted of felonious assault for allegedly hitting John O‘Brien with an aluminum baseball bat, breaking his left elbow and left eye socket. This Court affirms his conviction because it is supported by sufficient evidence and is not against the manifest weight of the evidence; becаuse the trial court did not err by admitting into evidence a bat like the one he allegedly used to hit Mr. O‘Brien or by denying his motion for a mistrial based on alleged prosecutorial misconduct; and because the trial court‘s supposed refusal to allow
FACTS
{¶ 2} Beginning in April 2005, John O‘Brien, Samаntha Kyer, and their infant daughter, Page, were living in a house in Akron. During July of that year, however, Mr. O‘Brien and Ms. Kyer broke up, and he moved out, although he apparently left some of his belongings there.
{¶ 3} At some point, Ms. Kyer started dating Samuel Hoffmeyer. During the last week of August, Mr. O‘Brien returned to the house and, at least according to him, moved back into the master bedroom with Ms. Kyer. On Friday, September 2, 2005, again according to Mr. O‘Brien, he and Ms. Kyer had an argument, and he moved out of the master bedroom into the guest room. He testified that he told Ms. Kyer he would move out of the house the following Sunday, but Ms. Kyer denied he had said that. Ms. Kyer called police to the house on Friday evening in an effort to get Mr. O‘Brien to immediately move out, but they would not make him leave, apparently because his name was on the lease.
{¶ 4} At approximately 10:00 p.m. the next evening, Saturdаy, Mr. Hoffmeyer showed up at the house to take Ms. Kyer to a bar. Before leaving, she asked Jesse Ferrell, who had been renting a room in the attic of the house, and his girlfriend, Leslie Bever, to watch Page while she was gone. Mr. Ferrell and Ms.
{¶ 5} Mr. Hoffmeyer and Ms. Kyer returned to the house around 2:30 a.m. Sunday and fоund Mr. O‘Brien on the loveseat. Ms. Kyer, who acknowledged she was a little drunk, told Mr. O‘Brien she wanted him out of the house immediately. According to Ms. Kyer, she shoved Mr. O‘Brien, Mr. O‘Brien shoved her back, and then Mr. Hoffmeyer got involved. Mr. Hoffmeyer and Mr. O‘Brien started fighting, and Ms. Kyer retrieved two metal stakes, each of which is about 18 inches long, and used one of them to hit Mr. O‘Brien in the back of the head.
{¶ 6} Mr. Ferrell and Ms. Bever were awakened by the noise of the fight. Thеy arrived downstairs just after Ms. Kyer had hit Mr. O‘Brien in the head and as she was raising a stake to hit him again. Mr. Ferrell grabbed Ms. Kyer in a bear hug and restrained her, preventing her from continuing to beat Mr. O‘Brien with the metal stakes. According to Ms. Bever, Mr. Hoffmeyer was punching Mr. O‘Brien repeatedly in his side. She testified that she ran up to Mr. Hoffmeyer and “shouldered” him in the chest. Because he was off-balance, he fell backwards. She testified that she continuеd shoving him and told him to leave. He went outside though a side door.
{¶ 7} Once freed, Mr. O‘Brien, who was bleeding from a wound on the back of his head, also went outside, using the front door. He testified that he went outside in an attempt to get cell phone reception so he could call the police. He
{¶ 8} Mr. Ferrell testified that he saw Mr. Hoffmeyer go tо his truck, which was parked on the other side of the street, retrieve a black, aluminum baseball bat that was approximately 30 inches long, and return to where Mr. O‘Brien was on the tree lawn. As he approached Mr. O‘Brien, Mr. O‘Brien stood, and Mr. Hoffmeyer swung the bat at him. Mr. O‘Brien attempted to protect himself with his left arm. The bat glanced off his arm, breaking his elbow, and struck him in the face, breaking his left eye socket. Mr. Hoffmeyer returned to his truck, got in, and drove away.
{¶ 9} Mr. O‘Brien used his cell phone to call 911, but, almost immediately, a police officer responding to another call spotted him and stopped. Mr. O‘Brien was treated at the scene and taken to a hospital.
{¶ 10} Ms. Kyer pleaded guilty to domestic violence for her part in the attack and was called as a hostile witness by the State at Mr. Hoffmeyer‘s trial. The State also called Mr. O‘Brien, Mr. Fеrrell, and Ms. Bever as witnesses. Mr. Hoffmeyer neither testified nor called any other witness in his defense.
SUFFICIENCY
{¶ 11} Mr. Hoffmeyer moved for acquittal at the close of the State‘s case and, after resting without calling any witnesses, renewed that motion. His first
{¶ 12} Under
{¶ 13} Mr. Hoffmeyer was convicted of violating
{¶ 14} Both Mr. O‘Brien and Mr. Ferrell testified that Mr. Hoffmeyer hit Mr. O‘Brien with an aluminum baseball bat. Mr. Ferrell testified that Mr. Hoffmeyer had retrieved the bat from his truck, which had been parked across the street. Mr. O‘Brien testified that he suffered a broken elbow and broken eye socket as a result of the attack. Viewing the evidence in a light most favorable to
{¶ 15} Mr. Hoffmeyer‘s only argument in support of his first assignment of error is that Mr. O‘Brien and Ms. Kyer were biased witnesses and that Mr. Ferrell‘s and Ms. Bever‘s testimony was confused and wavering. Inasmuch as this Court must view the evidence in a light most favorable to the prosecution when considering its suffiсiency, this argument fails. Mr. Hoffmeyer‘s first assignment of error is overruled.
MANIFEST WEIGHT
{¶ 16} Mr. Hoffmeyer‘s second assignment of error is that his conviction is against the manifest weight of the evidence. When a defendant argues that his conviction is contrary to the weight of the evidence, this court must review and weigh all the evidence that was before the trial court to determine whether the jury lost its way and created a manifest miscarriage of justicе. State v. Otten, 33 Ohio App. 3d 339, 340 (1986).
{¶ 17} Mr. Hoffmeyer‘s sole argument in support of this assignment of error is that the jury “lost its way in resolving the conflicts in the evidence.” He has not, however, suggested what those conflicts are and, indeed, there do not appear to be any. Mr. Hoffmeyer did not put on any evidence and, as noted in considering his first assignment of error, both Mr. O‘Brien and Mr. Ferrell
{¶ 18} As mentioned previously, Mr. Hoffmeyer‘s argument in support of his first assignment of error was that Mr. O‘Brien and Ms. Kyer were biased witnesses and Mr. Ferrell‘s and Ms. Bever‘s testimony was confused and wavering. Those arguments would go to the weight of their testimony and, therefore, are more properly considered in regard to this assignment of error. He could have also pointed out that Mr. Ferrell never clаimed to have seen Mr. Hoffmeyer hit Mr. O‘Brien with the bat until two months after the alleged crime, which would go to his credibility. Further, Ms. Kyer acknowledged that the State had agreed that it would not oppose probation for her if she testified truthfully at Mr. Hoffmeyer‘s trial, which would have gone to her credibility.
{¶ 19} Neither Ms. Kyer nor Ms. Bever, however, claimed to have seen what happened outside the house. Even if Ms. Kyer was a biased witness or Ms. Bever‘s testimony was confused and wavering, therefore, that would not tend to show that the jury‘s verdict was against the manifest weight of the evidence. Mr.
{¶ 20} Having reviewed and weighed the evidence that was bеfore the trial court, this Court cannot say that the jury lost its way and created a manifest miscarriage of justice by believing the uncontradicted testimony of Mr. O‘Brien and Mr. Ferrell that Mr. Hoffmeyer hit Mr. O‘Brien with a baseball bat. Mr. Hoffmeyer‘s second assignment of error is overruled.
ADMISSION OF THE BAT INTO EVIDENCE
{¶ 21} Mr. Hoffmeyer‘s third assignment of error is that the trial court incorrectly admitted a 25-inch-long, black, aluminum baseball bat into evidence. According to Mr. Ferrell, Mr. Hoffmeyer returned the bat he used to hit Mr. O‘Brien to his truck before he drove away. The bat offered in evidence by the State did not come into the prosecutor‘s hands until two monts after the alleged attack.
{¶ 22} Ms. Bever testified that, in addition to dating Ms. Kyer, Mr. Hoffmeyer also dated a woman named Brenda Phillips. Coincidentally, Ms. Phillips is Ms. Bever‘s brother‘s ex-girlfriend and the mother of his son. At some time after Mr. Hoffmeyer was arrested, Ms. Phillips came over to Ms. Bever‘s mother‘s house, where Ms. Bever and her children were living. Ms. Phillips was driving a pickup truck that belonged to Mr. Hoffmeyer, although it was not the
{¶ 23} Mr. Hoffmeyer has argued that the State failed to “establish a complete chain of custody to authenticate [the bat] for its admission by the triаl court.” He has also argued that the probative value of the bat was substantially outweighed by the danger of unfair prejudice.
{¶ 24} When an object is proffered as evidence, a trial court must determine whether the proponent of its admission has made a prima facie showing that it is what the proponent claims it is: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
{¶ 25} One way in which the proponent can satisfy Rule 901(A) is by presenting evidence that, if believed, establishes a chain of custody. That, however, is not the only way.
{¶ 26} Authentication or identification through evidence of a chain of custody is often necessary for fungible objects. For example, testimony that a clear plastic bag of white powder looks like the same clear plastic bag of white powder that was taken from a defendant when he was arrested will not be sufficient to authenticate or identify it, at least if its relevance is premised on it being the same bag of powder. “[I]f the offerеd evidence is of such a nature as not to be readily identifiable,” authentication or identification requires “testimony that
{¶ 27} Part of the determination of whether the proponent of an object has presented a sufficient foundation for its admission is consideration of how the object is claimed to be relevant to the issues to be determined. An object may be relevant because it is “substantive” evidence or it may be relevant because it is “illustrative” of facts or opinions testified to by a witness. 2 Dix, § 212, at 3. The determination of which category a particular object falls into depends on the purpose for which its proponent is offering it. Robert D. Brain and Daniel J. Broderick, The Derivative Relevance of Demonstrative Evidence: Charting Its Proper Evidentiary Status, 25 U.C. Davis L. Rev. 957, 971-972 (1992).
{¶ 28} Mr. O‘Brien testified аt trial that he believed the bat proffered in evidence was the bat used to hit him. He said it was the same size and color. Similarly, Mr. Ferrell testified that the proffered bat appeared to be the bat he saw Mr. Hoffmeyer use to hit Mr. O‘Brien. He said it was the same size and color and that both were aluminum. In addition, as mentioned previously, Ms. Bever testified that the proffered bat had come from a truck owned by Mr. Hoffmeyer and that he had telephoned her in an apparent attempt to purchase the bat from her. This evidence, particularly the inference from the claimed telephone call, was sufficient, if believed, to show that the proffered bat was the same bat used by Mr. Hoffmeyer to attack Mr. O‘Brien. As such, it was substantive evidence that Mr. Hoffmeyer attacked Mr. O‘Brien with a deadly weapon.
{¶ 29} Even in the absence of Ms. Bever‘s testimony about how she came to have the bat and about Mr. Hoffmeyer‘s alleged telephone call to her, the proffered bat would have been admissible because it was illustrative of Mr. O‘Brien‘s and Mr. Ferrell‘s testimony describing the bat Mr. Hoffmeyer allegedly used to attack Mr. O‘Brien. As such, Mr. O‘Brien‘s and Mr. Ferrell‘s testimony that it was the same color and size and made of the same material as the bat Mr. Hoffmeyer used would have been sufficient to satisfy Rule 901(A). See Robert D. Brain and Daniel J. Broderick, The Derivative Relevance of Demonstrative
{¶ 30} Rule 403(A) of the Ohio Rules of Evidence provides that relevant evidence is not admissible if its probative value is substantially outweighed by the danger of, among other things, unfair prejudice. Application of
ALLEGED PROSECUTORIAL MISCONDUCT
{¶ 31} During Mr. Ferrell‘s direct testimony, he stated that, while he had not wanted to get involved on the night of the alleged attack, he had informed the prosecutor approximately two months later that he had seen Mr. Hoffmeyer hit
{¶ 32} The only authority Mr. Hoffmeyer has cited as support for this assignment of error is Rule 21.06 of the Summit County Local Rules, whiсh provides that the prosecutor assigned to a case is to “have available early and open discovery of pertinent evidence.” The rule does not define “pertinent evidence.”
{¶ 33}
MR. O‘BRIEN‘S PRIOR CONVICTIONS
{¶ 34} During his direct examination, Mr. O‘Brien acknowledged that he had been convicted of felony aggravated assault during 2000 and of felony domestic violence during both 2001 and 2002. Mr. Hoffmeyer‘s fifth assignmеnt of error is that the trial court incorrectly prevented him from questioning Mr. O‘Brien regarding the details of his domestic violence convictions.
{¶ 35} Mr. Hoffmeyer has failed to provide a citation to the trial court record in support of this assigned error. See
CONCLUSION
{¶ 36} Mr. Hoffmeyer‘s assignments of error are overruled. The judgment of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
The Court finds that 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 Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
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.
Costs taxed to appellant.
SLABY, J. MOORE, P. J., CONCUR.