State v. Artis
| Decision Date | 28 May 2019 |
| Docket Number | NO. 8-18-40,8-18-40 |
| Citation | 2019 Ohio 2070,137 N.E.3d 587 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Tyrell E. ARTIS, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
David E. Stenson, Dayton, for Appellant
Alice Robinson-Bond, for Appellee
{¶1} Defendant-appellant, Tyrell E. Artis ("Artis"), appeals the August 21, 2018 judgment entry of sentencing issued by the Logan County Court of Common Pleas, General Division, journalizing his conviction by a jury on one count of Domestic Violence and one count of Abduction, and sentencing him to serve an aggregate prison term of sixty months.
{¶2} On May 8, 2018, the Logan County Grand Jury returned a two count indictment against Artis alleging that he committed one count of Domestic Violence, in violation of R.C. 2919.25(A), (D)(4), a felony of the third degree, and one count of Abduction, in violation of R.C. 2905.02(A)(2), (C), a felony of the third degree. The charges stemmed from a physical altercation that Artis had with his live-in girlfriend, during which he was alleged to have prevented her from leaving their home by grabbing her by the throat and strangling her, headbutting her, and then throwing her down to the ground. Artis entered a plea of not guilty to the charges.
{¶3} On June 14, 2018, the State requested a subpoena for the victim, Megan Kaeck, to appear at trial. On June 29, 2018, the State filed a "Motion in Limine as to Forfeiture by Wrongdoing," requesting that the trial court declare Megan an unavailable witness and permit "the State to introduce any and all of the victim's written statements or verbal statements made to law enforcement or others, and the photos of her injuries that she provided contemporaneous to such statements, if she should fail to appear for trial." (Doc. No. 30).
{¶4} In support of its motion, the State claimed that it had obtained audio recordings from calls Artis made to Megan while in jail as well as audio recordings from visitations at the jail between the two. The State claimed the content of the calls indicated Artis had repeatedly suggested to Megan that if she refused to comply with the subpoena and failed to testify at trial the State would be forced to dismiss the charges against him for a lack of evidence. The recordings further indicated that Artis and Megan had devised "a plan" to that effect. The State argued that "[s]hould the victim fail to appear at court, that failure to appear would be due to the wrongdoing of the Defendant for the purpose of preventing her from attending or testifying." (Doc. No. 30). The State requested that Megan's out-of-court statements be found admissible under Evid.R. 804(B)(6), if she failed to appear at trial pursuant to the State's subpoena.
{¶5} On July 19, 2018, the case proceeded to a jury trial. The State brought to the trial court's attention that Megan had failed to appear at trial and that it had also received confirmation from Megan's mother that Megan was indeed refusing to appear. The State renewed its motion to have Megan's statements to her mother and law enforcement be introduced at trial under the Evid.R. 804(B)(6) exception to the hearsay and confrontation clause rules.
{¶6} Outside the presence of the jury and prior to opening statements, the trial court conducted a pre-trial hearing on the State's motion to declare Megan unavailable and to introduce her statements under the "forfeiture by wrongdoing rule." The State introduced the audio recordings from the jail between Artis and Megan, which took place in May and June of 2018, through the testimony of Officer Andrew Purk of the Bellefontaine Police Department who verified that the calls were made to a phone number associated with Megan, and who also recognized Megan's and Artis' voices on the recordings. The trial court concluded the State proved "by a preponderance of the evidence that [Artis] colluded with [Megan] to not appear and respond to a properly-served subpoena." (Tr. 143-44). Accordingly, the trial court found Megan to be an unavailable witness and concluded that her statements to her mother and law enforcement were admissible at trial under Evid.R. 804(B)(6).
{¶7} At trial, the State presented the testimony of Megan's mother, April Kaeck. Ms. Kaeck's testimony established that Megan and Artis were in a romantic relationship and lived together in the same home on April 21, 2018. Ms. Kaeck stated that she saw Megan the next day and observed the injuries to Megan's face and neck. Megan also sent her mother pictures of her injuries prior to meeting with her that day so her mother would not "freak out" when she saw her. Ms. Kaeck also took her own photos of Megan's injuries. (Tr. at 172). Each of these photos, which were admitted as exhibits at trial, depicted abrasions on Megan's neck and face as well as "a big goose egg" above Megan's eye with significant bruising also forming around the eye. (Tr. at 180). Megan told Ms. Kaeck that Artis had choked and headbutted her, before throwing her on the couch. Ms. Kaeck recalled contacting Artis about the incident and that Artis apologized. She further stated that later that week Megan decided to move out and file a report with the police.
{¶8} The State also presented the testimony of law enforcement who authenticated the jail recordings and who initially took Megan's complaint against Artis relating to the domestic violence incident at the home they shared. One officer testified to the statements Megan made at the time she filed the report. Specifically, Megan had stated that Artis grabbed her by the arm, preventing her from leaving the room and choked her. Megan further told the officer that once Artis stopped choking her, he then headbutted her causing injury to her face above her eye.
{¶9} In his defense, Artis presented the testimony of his sister, Ashia Artis, in an attempt to cast doubt on the credibility of Megan's statements. The jury returned guilty verdicts on both the Domestic Violence and Abduction counts.
{¶10} On August 21, 2018, Artis appeared for sentencing. The State presented evidence of Artis' lengthy criminal history, including two prior convictions for Domestic Violence, and evidence of the fact that Artis was on postrelease control when he committed the underlying offenses. The trial court also addressed the issue of merger and concluded that Artis committed the offenses with a separate animus and thus the convictions were not allied offenses of similar import subject to the doctrine of merger. The trial court imposed a prison term of thirty-six months upon Artis for the Domestic Violence conviction and a twenty-four month prison term for the Abduction conviction, and ordered the prison terms to run consecutively for a total state prison term of sixty months.
{¶11} Artis filed this appeal from the trial court's August 21, 2018 judgment entry of conviction and sentence, asserting the following assignments of error.
{¶12} In his first assignment of error, Artis claims that the trial court erred in declaring Megan an unavailable witness and permitting the State to introduce hearsay statements Megan made to her mother and to law enforcement under the "forfeiture by wrongdoing" rule. Specifically, Artis claims that the State failed to introduce sworn testimony demonstrating that Megan was indeed unavailable and that the trial court improperly refused to enforce the subpoena to compel Megan's attendance despite its knowledge of her location on the date of trial.
{¶13} The Sixth Amendment to the U.S. Constitution provides in relevant part that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him." The United States Supreme Court has held that the Confrontation Clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington , 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
{¶14} Thus, according to Crawford , the initial analysis to be made in determining whether a defendant's right to confrontation has been violated by the admission of out-of-court statements that are not subject to cross-examination "is not whether [the statements] are reliable but whether they are testimonial in nature." Toledo v. Sailes , 180 Ohio App.3d 56, 2008-Ohio-6400, 904 N.E.2d 543, ¶ 13 (6th Dist.), citing Crawford at 61, 124 S.Ct. 1354. To determine whether a statement is testimonial or nontestimonial, we inquire whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the case. State v. Stahl , 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraph two of the syllabus. While testimonial statements under Crawford are not subject to the exceptions to the hearsay rules, they may nevertheless be admissible under one of the two historical exceptions to the Confrontation Clause recognized by the U.S. Supreme Court...
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