State v. Arnold

Citation147 Ohio St.3d 138,62 N.E.3d 153
Decision Date20 April 2016
Docket NumberNo. 2014–0718.,2014–0718.
Parties The STATE of Ohio, Appellee, v. ARNOLD, Appellant.
CourtUnited States State Supreme Court of Ohio

147 Ohio St.3d 138
62 N.E.3d 153

The STATE of Ohio, Appellee,
v.
ARNOLD, Appellant.

No. 2014–0718.

Supreme Court of Ohio.

Submitted May 27, 2015.
Decided April 20, 2016.


62 N.E.3d 157

Timothy J. Hoover, Fostoria Law Director, for appellee.

Gene P. Murray, Fostoria, for appellant.

Russell S. Bensing, Cleveland, urging reversal for amicus curiae, Ohio Association of Criminal Defense Lawyers.

O'CONNOR, C.J.

147 Ohio St.3d 139

{¶ 1} In this appeal, we address the manner in which trial courts should analyze a witness's assertion of the constitutional right against self-incrimination. We further consider the manner in which appellate courts should evaluate a defendant's assertion, for the first time on appeal, that the trial court violated his right to confront witnesses. Because we hold that any error in the trial court's handling of the claim of privilege during the trial in this cause was harmless beyond a reasonable doubt and that there was no Confrontation Clause violation, we affirm the judgment of the court of appeals and the conviction of appellant, Jeffrey Arnold.

RELEVANT BACKGROUND

{¶ 2} This appeal arises from Arnold's conviction for domestic violence in violation

62 N.E.3d 158

of R.C. 2919.25(A), a misdemeanor in the first degree. R.C. 2919.25(D)(2). After a bench trial in the Fostoria Municipal Court, the trial judge found Arnold guilty of domestic violence against his father, Lester Arnold. Arnold, a 28–year–old man, lived with his parents, Connie and Lester Arnold.

{¶ 3} On the date of the incident, Connie and Lester's 11–year–old grandchild was visiting them. The family gathered in the kitchen as Connie cooked dinner. Arnold, who “wasn't especially happy” with what his mother was making, became “upset” and “threatening.”

{¶ 4} The grandchild became anxious, left the kitchen, retreated to “the other end of the house,” and asked to leave the Arnold home. Lester, too, left the agitated Arnold in the kitchen. In fact, Lester got up from the family table, went down the hall, and entered the computer room in an apparent attempt to deescalate the situation. But Arnold followed him into the room, where he grabbed his father by the hair, punched him in the head, and choked him. Arnold continued to yell at Lester and prevented him from leaving the room.

{¶ 5} Connie could not see the assault because the door was closed, but she heard a “[c]ommotion” and “crashing” and “struggling” sounds. Frightened, she fled the house with her grandchild, despite the cold temperature and snow outdoors. Upon seeing a neighbor, Connie asked him to call the police.

{¶ 6} Upon arrival at the residence, police repeatedly attempted to communicate with Arnold. He would not speak with police and refused to let police speak with Lester. Arnold's refusal to communicate with police or to permit Lester to

147 Ohio St.3d 140

do so, along with the presence of firearms in the home and a history of threats involving assault weapons at the residence, alarmed police. They called for the SWAT team and began to prepare for a forced entry.

{¶ 7} After holding Lester captive for approximately 20 to 30 minutes, Arnold released him through the garage. Police found Lester “very scared,” “agitated,” and “very nervous” and Connie “definitely scared, very agitated, very nervous, very shaky.” Lester expressed fear about what might happen in the future.

{¶ 8} Arnold, meanwhile, had fled the home.

{¶ 9} Police, concerned for Connie and Lester's safety in the home, cautioned that they spend the night elsewhere. They agreed and returned home the following day with a police escort.

Pretrial events

{¶ 10} On March 27, 2013, the Fostoria Police Department filed a criminal complaint in the Fostoria Municipal Court alleging that Arnold had unlawfully and knowingly caused or attempted to cause physical harm to Lester. The trial court arraigned Arnold on March 28, 2013. Arnold's bail conditions, including an order that he have no contact with Lester and Connie and pay a $40,000 appearance bond, reflect the trial court's careful consideration of the nature of the crime and its adherence to the bail statute governing domestic-violence cases. See R.C. 2919.251.

{¶ 11} Despite the fact that Arnold was held pending trial, Connie and Lester remained in fear of Arnold even six weeks after the assault. In a letter signed by both, they asked the trial court to modify the contact order so that they could communicate with Arnold, but only “through writing, telephone conversations, and visiting in secure surroundings, such as at the jail.” In making the request, they made it clear that they needed to communicate with Arnold over Arnold's “outstanding

62 N.E.3d 159

bills” and expressly requested that the order remain “in effect until [Arnold] has received help and can control his emotions with us.”

Trial

{¶ 12} At trial, the state called Lester as its first witness, which, as will be explained, proved nearly futile. Rather, the state's case was entirely established through the testimony of Connie and the officers at the scene. Indeed, the trial court, in pronouncing its judgment, expressly stated that even without Lester's testimony, the state had met its burden. We summarize the most relevant portions of the evidence presented at trial.

Lester's testimony and statement

{¶ 13} Lester's testimony offered no incriminating evidence. After initially identifying himself at the judge's request, Lester asserted an inability to recall the precipitating events and refused repeatedly to answer the state's questions by

147 Ohio St.3d 141

asserting his right against self-incrimination. In fact, after providing only basic facts,1 Lester asserted the privilege against self-incrimination at least eight times in responses to questions posed to him by the state about Arnold's assault. For all practical purposes, that assertion ended the query on that point. The trial court never ordered him to answer a question to which Lester had objected on Fifth Amendment grounds.

{¶ 14} More significantly for our purposes here, Lester never offered a single word of explanation about how his answers might incriminate him, despite repeated invocation of his right against self-incrimination. And Arnold's counsel similarly failed to do so.

{¶ 15} The court's only order compelling Lester to testify related to his reading of his prior written statement to the police. After Lester refused to identify his prior statement, and without asking Lester to endorse, adopt, or accept it, the state asked Lester to read that statement. Arnold's attorney objected on the basis that Lester had “invoked his Fifth Amendment privilege.” The state countered that Lester had not given a basis for invoking the right against self-incrimination, and defense counsel's only response was that Lester “would be reading a statement in which he indicated that he was, couldn't remember being—,” at which point the trial judge interjected, stating, “I don't see what the harm would be in having him read the statement,” and overruled defense counsel's objection. The court directed Lester to read the statement—its only order compelling testimony by Lester in the face of an asserted privilege.

{¶ 16} Lester read the statement and reiterated that he did not remember making it upon being released from the house.2 He did not adopt or endorse its contents.

62 N.E.3d 160
147 Ohio St.3d 142

{¶ 17} Lester's direct testimony ended with his statement that all he remembered was telling a responding police officer that he did not want his son charged or arrested and that “[a]ll we needed was some space between us.”

{¶ 18} On cross-examination by Arnold's attorney, Lester again reiterated that he could not remember the written statement and that he could not remember if Arnold had caused or attempted to cause him harm on March 25. He said, “I don't remember. I don't think so but I don't remember.” Lester never definitively stated that his son did not cause him harm, as his position was that he did not remember. He was then excused.

Officer Bethel's testimony

{¶ 19} The state's next witness, Fostoria Police Department Officer Brett Bethel, testified on direct examination that he spoke to Lester immediately after he was released from the residence. Officer Bethel described both Connie and Lester as being scared, agitated, and nervous. He further testified that Lester stated that Arnold became “agitated” about what his mother was cooking and then “[p]unched [Lester] in the head [and] grabbed him in a chokehold.” Although Officer Bethel could not recall whether he observed injuries to Lester, he did remember that Lester's hair was...

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