State v. WardState v. Ward
Rendered on September 28, 2010
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Blaise G. Baker, for appellant.
APPEAL from the Franklin County Court of Common Pleas
TYACK, P.J.
{¶1} On August 21, 2009, officers from the Columbus Division of Police responded to a domestic violence call involving Jerry Ward and Reba Taylor (a/k/a Rebecca Adams or Rebecca Ward). Taylor is Ward‘s purported wife, and the mother of two of his children. Officers arrested Ward, and charged him with domestic violence; at the time, he already had five prior domestic violence convictions. Before trial, Ward stipulated tо two of the prior convictions, which meant that the present charge was
{¶2} On April 23, 2010, appellate counsel for Ward filed a motion for leave to file a delayed appeal, pursuant to
[I.] The trial court erred in that Appellant‘s conviction was against the manifest weight of the evidence and was not supported by the sufficiency of the evidence in violation of the due process clause of the Fourteenth Amendment to the [U.S. Constitution,] and Article 1, Sections 1, 10, and 16 of the Ohio Constitution.
{¶3} In criminal cases, the weight and sufficiency of the еvidence supporting the trial court‘s verdict are two separate inquiries. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. Sufficiency of the evidence is a term of art that refers to the legal standard that is applied to determine whether a case may go to the jury, or whether the State introduced evidence supporting each element of the crime charged. Id. (citing Black‘s Law Dictionary (6th ed.1990) 1433). Whether the evidence is legally sufficient to
{¶4} To determine whether the evidence is sufficient to sustain the jury‘s verdict, an appellate court examines the evidence in a light mоst favorable to the prosecution, and then determines whether any rational trier of fact could have found that the prosecution proved the essential elements of the crime(s) beyond a reasonable doubt. Cassell (citing State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus; and State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶78). In evaluating the sufficiency of the evidence, we do not determine whether the evidence is believable, but rather, if believed, whether the evidence supports the conviction. See Cassell (citing Jenks); Thompkins at 390 (Cook, J., concurring); Yarbrough at ¶79 (noting that appellate courts do not evaluate witness credibility when reviewing the sufficiency of the evidence). Finally, a court of appeals will not disturb a jury‘s verdict unless it determines that reasonable minds could not arrive at the conclusion reached by the jury. State v. Treesh, 90 Ohio St.3d 460, 484; Jenks at 273.
{¶5} By contrast, when determining whether a verdict is against the manifest weight of the evidence, the court of appeals sits as a “thirteenth juror,” reviewing the entire record, wеighing all the evidence and reasonable inferences drawn therefrom, and considering the credibility of the witnesses to resolve any conflicts therein. Thompkins at 387 (quoting Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211; State v. Martin (1983), 20 Ohio App.3d 172, 175). When resolving apparent conflicts or inconsistencies in the evidence, the reviewing court may not disturb the jury‘s verdict unless the reсord shows that the jury “clearly lost its way,” creating “such a manifest miscarriage of justice
{¶6} Turning to the evidence in this case, we will first examine the sufficiency of the evidence supporting appellant‘s conviction of domestic violence. To do so, we must compare the facts found by the jury with the elements of the crime charged in the indictment.
{¶7} Under Ohio law, the elements of domestic violence are to: (1) knowingly; (2) cause or attempt to cause physical harm; (3) to a family or household member.
{¶8} In this case, two witnesses, next-door neighbors Willard and Misty Ruble, testified that appellant knowingly caused or attempted to cause physical harm to the
{¶9} Appellant argues that the purported eyewitness testimony of Mr. and Mrs. Ruble cannot be reconciled with the testimony of Officer Matthew Gasaway, who stated that he saw no visible injuries on the victim. (Tr. 74.) However, Officer Gasaway also testified that appellant admitted to him that he and the victim had been fighting or wrestling. (Tr. 58.) Moreover,
{¶10} Next, appellant argues that the State failed to present any direct evidence that the victim was a family or household member. We disagree. The testimony of both Mr. and Mrs. Ruble was direct evidence that Ward and Taylor were married, or appeared to be married. (Tr. 29–33, 115–16, 133.) Ann Taylor, the victim‘s sister, testified that she believed that appellant and the victim were legally married at one time, that they hаd two
{¶11} Accordingly, it appears from the evidence before us that there was sufficient evidence supporting apрellant‘s conviction, and the verdict was not against the manifest weight of the evidence. The first assignment of error is overruled. The second assignment of error reads:
[II.] The trial court erred when it improperly exposed the jury to inadmissible hearsay in violation of the Ohio Rules of Evidencе.
{¶12} Appellate courts review a trial court‘s decision to permit or exclude evidence using an abuse of discretion standard. See, e.g., State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus; see also State v. Swann, 119 Ohio St.3d 552, 2008-Ohio-4837, ¶33 (citing State v. Sumlin, 69 Ohio St.3d 105, 108, 1994-Ohio-508), on remand, State v. Swann, 10th Dist. No. 06AP-870, 2008-Ohio-6957 (“[W]e hold that the trial court abused its discretion in concluding that the evidence proffered * * * was insufficient to confirm the trustworthiness of the third-party‘s confession.“). This is because the trial court is in a much better position than we are to evaluate the authenticity of evidence, and assess the credibility and veracity of witnesses. See, e.g., State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶129; State v. Chandler, 10th Dist. No. 09AP-394, 2009-Ohio-5858, ¶22 (noting that the trial court is in a better position to weigh the credibility оf witnesses). The trial court is, thus, vested with broad discretion in evidentiary matters, and the court of appeals will not disturb the trial court‘s ruling absent an abuse of discretion. See, e.g., Sage; State v. Hairston, 10th Dist. No. 08AP-735, 2009-Ohio-2346, ¶27. An abuse of discretion is more than an error of law or in judgment; rather, it implies that the trial court‘s аttitude was arbitrary, unreasonable, or unconscionable. See, e.g., State v. Finnerty (1989), 45 Ohio St.3d 104, 107.
{¶13} Generally speaking, “hearsay” is an out-of-court statement that is offered to prove the truth of the matter asserted. See, e.g.,
{¶14} In this case, counsel alleges that the trial court improperly allowed hearsay testimony by Ann Taylor, the victim‘s sister, regarding her current living situation—that the victim was, at that time, living in a “battered shelter, hidden for safety.”
[THE PROSECUTOR]: Do you know where Ms. Taylor is right now --
A. Yes.
Q. -- Reba Taylor? Generally where is she?
A. In a battered shelter, hidden for safety.
(Tr. 31.)
{¶15} While the witness‘s stаtement may have been irrelevant, it was not hearsay. The alleged fact that the victim was located in any particular place is not a statement offered for the truth of the statement; rather, it is an independent, verifiable statistic based upon personal observatiоn. Furthermore, the prosecutor did not pose a question that was reasonably calculated to elicit a hearsay statement—he simply asked about the victim‘s whereabouts. If trial counsel was concerned about the witness‘s answer to the question, the proper thing to do wоuld have been to object and make a motion to strike the
{¶16} Plain error is that which is so serious that it affects the outcome of the trial. “Notice of plain error under
{¶17} Given the testimony of the various witnesses who saw appellant punching the victim, and placing her in a chokehold, the evidence of his guilt was overwhelming. Thus, even if the trial court did err in allowing testimony regarding the victim‘s presence in a battered women‘s shelter, such error would have been harmless, and certainly would not rise to the level of plain error. Counsel for appellant also argues that testimony from two police officers was inadmissible hearsay. Officer Chad Caudill testified that witnesses to the interaction between Ward and his wife/girlfriend stated that a male and female were outside fighting. Defense counsel, at trial, did not object, making this the testimony subject to a plain error review on appeal. Given the other testimony presented at triаl, the
{¶18} Officer Gasaway testified that Reba Taylor gave him a detailed statement about how the assault occurred. At thе time of Ms. Taylor‘s statements, she was visibly fearful and upset. The statements were excited utterances and therefore admissible under
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
{¶19} The second assignment of error is overruled.
{¶20} Having overruled both assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and FRENCH, JJ., concur.
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