State v. Brown
| Decision Date | 06 July 2020 |
| Docket Number | NO. 1-19-61,1-19-61 |
| Citation | 154 N.E.3d 1129,2020 Ohio 3614 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Tayvon BROWN, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Andrea M. Brown, Cincinnati, for Appellant.
Jana E. Emerick, Lima, for Appellee.
{¶1} Defendant-appellant, Tayvon J. Brown ("Brown"), appeals the September 18, 2019 judgment of conviction and sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm in part and reverse in part.
{¶2} On December 16, 2017, an officer from the Lima Police Department responded to a call about a traffic accident on the north side of the city of Lima. On arrival, the officer observed Keaireus Fuqua ("Fuqua") and a small child walking toward a disabled vehicle. When the officer approached Fuqua, he noticed that her lips and the area around her mouth were smeared with blood. The officer asked Fuqua what caused the bleeding, and she responded by telling the officer that she was pregnant and exclaiming, "[H]e never should have put his hands on [her]." After additional questioning, Fuqua stated that Brown, her romantic partner, caused the injuries to her face. Fuqua was then taken to the hospital where she made further statements implicating Brown in an assault against her.
{¶3} On June 13, 2018, the Allen County Grand Jury indicted Brown on one count of domestic violence in violation of R.C. 2919.25(A), (D)(5), a fifth-degree felony. (Doc. No. 4). The indictment specifically alleged that Brown knew that Fuqua was pregnant at the time of the violation. (Id. ). On June 25, 2018, Brown appeared for arraignment and pleaded not guilty to the count of the indictment. (Doc. No. 22).
{¶4} On December 13, 2018, the State filed a motion for the trial court to call Fuqua as the court's witness pursuant to Evid.R. 614(A). (Doc. No. 80). As grounds for its motion, the State argued that it had reason to believe that Fuqua's trial testimony would "contradict a prior statement made to police." (Id. ).
{¶5} A jury trial commenced on December 17, 2018. At the beginning of the trial, the State renewed its motion for the trial court to call Fuqua as the court's witness. (Dec. 17-18, 2018 Tr. at 21). The trial court granted the State's motion without objection. (Id. at 22). In addition, Brown twice moved for a judgment of acquittal under Crim.R. 29. (Id. at 157, 185-186). The trial court denied both of Brown's Crim.R. 29 motions. (Id. at 162, 186). On December 18, 2018, the jury found Brown guilty of domestic violence. (Doc. Nos. 94, 95). However, the jury found that the State did not prove beyond a reasonable doubt that Brown knew that Fuqua was pregnant at the time of the offense. (Doc. No. 94). Consequently, Brown was found guilty of first-degree misdemeanor domestic violence rather than fifth-degree felony domestic violence as charged in the indictment. (Doc. No. 95).
{¶6} The trial court proceeded immediately to sentencing. The trial court sentenced Brown to 180 days in the Allen County Jail—80 days of which the trial court suspended. (Doc. No. 95). The trial court did not award Brown any jail-time credit. (See Dec. 17-18, 2018 Tr. at 247). In addition, Brown was placed on "community control/probation" for a period of two years and ordered to pay a $1000 fine. (Doc. No. 95). The trial court's judgment entry of conviction and sentence was filed on December 19, 2018. (Id. ).
{¶7} On January 2, 2019, Brown filed a notice of appeal from the trial court's December 19, 2018 judgment. (Doc. No. 98). On September 3, 2019, this court dismissed Brown's appeal for lack of a final, appealable order. (Doc. No. 119). Specifically, we concluded that because Brown was sentenced to a term of local incarceration in jail for a misdemeanor offense, the trial court was required to calculate Brown's jail-time credit under R.C. 2949.08, and we noted that the trial court failed to include a calculation of Brown's jail-time credit in its judgment entry of conviction and sentence. (Id. ). Accordingly, we dismissed Brown's appeal "for the trial court to file a proper and complete sentencing entry." (Id. ).
{¶8} On September 18, 2019, the trial court filed an amended judgment entry of conviction and sentence in which it stated that it was giving Brown "no credit for time previously served prior to the sentencing date as the jail time imposed was a condition of community control." (Doc. No. 120).
{¶9} On October 7, 2019, Brown filed a notice of appeal from the trial court's September 18, 2019 judgment. (Doc. No. 122). He raises five assignments of error for our review. We address Brown's assignments of error in the order presented, but, for the sake of clarity, we consider Brown's second and third assignments of error together.
The trial court's improper admission of hearsay statements constituted plain error and deprived defendant-appellant of his right to a fair trial.
{¶10} In his first assignment of error, Brown argues that the trial court committed plain error by allowing the admission of several hearsay statements at his trial. He maintains that the record "is replete with several out-of-court statements made by the victim, Ms. Fuqua, and admitted at trial in which [he] was identified as the alleged assailant" and that "[b]ut for the trial court's error in allowing the hearsay statements into evidence, the outcome of [his] jury trial would have been much different." (Appellant's Brief at 9). Specifically, Brown takes issue with hearsay contained in the testimony of the officer who initially responded to Fuqua's traffic accident, Patrolman Nathan Fried ("Patrolman Fried"), in the testimony of an emergency room nurse at St. Rita's Medical Center ("St. Rita's") who met with Fuqua on December 16, 2017, Ronda Norris ("Norris"), and in State's Exhibit 15, which are medical records from Fuqua's visit to the emergency room at St. Rita's on December 16, 2017. (Id. ).
{¶11} "Ordinarily, we review a trial court's hearsay rulings for an abuse of discretion." State v. McKelton , 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97, citing State v. Hymore , 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). See HSBC Bank U.S.A., Natl. Assn. v. Gill , 1st Dist. Hamilton, 2019-Ohio-2814, 139 N.E.3d 1277, ¶ 6-10 (). However, as Brown recognizes, because he failed to object to the admission of the hearsay contained in Patrolman Fried's and Norris's testimonies and in State's Exhibit 15, we review for plain error. State v. Obermiller , 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 72, citing State v. Fitzpatrick , 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 66.
{¶12} We recognize plain error " ‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’ " State v. Landrum , 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), quoting State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. For plain error to apply, the trial court must have deviated from a legal rule, the error must have been an obvious defect in the proceeding, and the error must have affected a substantial right. State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Under the plain error standard, the appellant must demonstrate that the outcome of his trial would clearly have been different but for the trial court's errors. State v. Waddell , 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996), citing State v. Moreland , 50 Ohio St.3d 58, 552 N.E.2d 894 (1990).
{¶13} Hearsay is defined as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). Generally, hearsay is not admissible unless an exception applies. Evid.R. 802. " ‘ Evid.R. 803 is one such rule which permits the admission of certain hearsay statements even though the declarant is available as a witness.’ " State v. Bender , 3d Dist. Union No. 14-19-22, 2020-Ohio-722, 2020 WL 995223, ¶ 12, quoting Dayton v. Combs , 94 Ohio App.3d 291, 300, 640 N.E.2d 863 (2d Dist.1993). Three of these exceptions— Evid.R. 803(2), Evid.R. 803(4), and Evid.R. 803(6) —potentially apply to the hearsay admitted in the present case.
{¶14} We begin with Patrolman Fried's testimony and the first of the arguably applicable exceptions to the hearsay rule—Evid.R. 803(2), which allows for the admission of excited utterances. At trial, Patrolman Fried testified that on the morning of December 16, 2017, he was dispatched to the six-hundred block of West Northern Avenue in Lima to respond to a report of a traffic accident with no injuries. (Dec. 17-18, 2018 Tr. at 30-31). He stated that he arrived in the area approximately 10-12 minutes after the Lima Police Department was first contacted about the accident. (Id. at 31). Patrolman Fried testified that when he arrived at the scene, he observed a woman and a young boy walking toward a vehicle that was "facing the wrong way into traffic" and resting alongside the curb. (Id. at 32-33). He stated that the woman identified herself as Fuqua and that he was able to establish that she had been driving the vehicle. (Id. at 33-34).
{¶15} Patrolman Fried testified that when he approached Fuqua, "[s]he had blood on her mouth * * * [and] seemed very emotional, very distraught." (Id. at 34). Patrolman Fried stated that he "asked her what happened and she stated that [she was] pregnant and ‘he never should have put his hands on me.’ " (Id. ). He testified that he then asked Fuqua who had put their hands on her, and she responded that it was Brown. (Id. at 34-35). Finally, Patrolman Fried said that he "asked [Fuqua] how she had received the injury and she said it was...
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