State v. Hirschy
| Citation | 2023 Ohio 3204 |
| Docket Number | 1-22-44 |
| Decision Date | 11 September 2023 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE, v. CRAIG A. HIRSCHY, DEFENDANT-APPELLANT. |
| Court | United States Court of Appeals (Ohio) |
1
2023-Ohio-3204
STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
CRAIG A. HIRSCHY, DEFENDANT-APPELLANT.
No. 1-22-44
Court of Appeals of Ohio, Third District, Allen
September 11, 2023
Appeal from Allen County Common Pleas Court Trial Court No. CR2021 0439
Christopher R. Bucio for Appellant
John R. Willamowski, Jr. for Appellee
OPINION
ZIMMERMAN, J.
{¶1} Defendant-appellant, Craig A. Hirschy ("Hirschy"), appeals his conviction for aggravated burglary. For the reasons that follow, we affirm.
{¶2} This case stems from an assault by Hirschy on Thomas Blair ("Blair") over Blair's relationship with Ashley Baxter ("Baxter"), Hirschy's ex-girlfriend. In the evening hours of December 6, 2021, Hirschy entered Blair's residence in Allen County through an unlocked backdoor while Blair was asleep on his sofa. Blair was awoken by Hirschy (who was kneeling on his chest) punching him in his face causing him physical harm. Thereafter, Hirschy demanded Blair's cellphone and the pin number to open it. Hirschy gained access to the phone and deleted a voicemail message that he left Blair on October 21, 2021. After throwing the phone to the ground, Hirschy exited through Blair's backdoor.
{¶3} On January 13, 2022, the Allen County Grand Jury indicted Hirschy for aggravated burglary, in violation of R.C. 2911.11(A)(1), (B), a first-degree felony. On January 21, 2022, Hirschy appeared for arraignment and entered a not guilty plea.
{¶4} Hirschy proceeded to a jury trial on May 2 and 3, 2022, where he was found guilty of aggravated burglary.
{¶5} On June 30, 2022, the trial court sentenced Hirschy to an indefinite minimum prison term of four years to a maximum prison term of six years.
{¶6} Hirschy filed a timely notice of appeal and raises two assignments of error for our review, which we will address separately and out of order.
Second Assignment of Error
The trial court committed plain error in allowing the testimony of Deputy Douglas Wuebker, without the State providing the defense notice of their intent to use these "other acts" in his Allen County trial and the trial court failing [sic] to conduct an analysis as to the admissibility of these "other acts".
{¶7} In his second assignment of error, Hirschy raises two arguments. First, he argues that the trial court erred when it permitted the admission of other-acts evidence without requiring the State to provide notice of their intent to use other-acts evidence in advance of trial. Secondly, he argues that the trial court failed to conduct any analysis as to the admissibility of the other-acts evidence.
Standard of Review
{¶8} Generally, the admission or exclusion of evidence lies within the trial court's discretion, and a reviewing court should not reverse absent an abuse of discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 62. An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157.
{¶9} Significantly, Hirschy did not object to the trial court's admission of the purported other-acts evidence (at trial) on any basis. See Evid.R. 103(A)(1). "[I]f the party wishing to exclude evidence fails to contemporaneously object at trial
when the evidence is presented, that party waives for appeal all but plain error." State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 53-54, citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 59-60, State v. Barrett, 4th Dist. Scioto No. 03CA2889, 2004-Ohio-2064, ¶ 20, and State v. Lenoir, 2d Dist. Montgomery No. 22239, 2008-Ohio-1984, ¶ 19. See Evid.R. 103(D).
{¶10} "Crim.R. 52(B) governs plain-error review in criminal cases." Bagley at ¶ 55, citing State v. Risner, 73 Ohio App.3d 19, 24 (3d Dist.1991). "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Crim.R. 52(B). A finding of plain error is three-fold, requiring (1) an error or deviation from law, (2) that the error is plain, or an obvious defect in the proceedings, and (3) that the error affected "substantial rights," altering the outcome of the trial. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 16, citing State v. Barnes, 94 Ohio St.3d 21, 27 (2002). The burden is on the party asserting plain error to demonstrate such error. Id. at ¶ 17, citing State v. Jester, 32 Ohio St.3d 147, 150 (1987).
{¶11} We "recognize[] plain error with the utmost caution, under exceptional circumstances, and only to prevent a miscarriage of justice." State v. Smith, 3d Dist. Hardin No. 6-1414, 2015-Ohio-2977, ¶ 63, citing State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 139 and State v. Saleh, 10th Dist. Franklin No. 07AP-431, 2009-Ohio-1542, ¶ 68. "We may reverse [under plain-error review] only when the record
is clear that defendant would not have been convicted in the absence of the improper conduct." Id., citing State v. Williams, 79 Ohio St.3d 1, 12 (1997). Accordingly, we will review all of Hirschy's arguments under his second assignment of error for plain error.
Analysis
{¶12} We begin by addressing whether Dep. Wuebker testified regarding other-acts evidence, and if so, whether the admission of that evidence constitutes a deviation of the law. In this case, Dep. Wuebker testified that the Mercer County dispatch received two "anonymous" 9-1-1 calls reporting a drunk driver on Carthagena Road in Mercer County. Dep. Wuebker testified that he was able to identify the "anonymous" caller as Hirschy by cross-referencing Hirschy's phone number with the caller-identification from dispatch.[1] The record reveals that Hirschy was attempting to implicate Baxter as the drunk driver. According to Dep. Wuebker, Hirschy admitted he was able to track Baxter's cellphone to Speedway Lanes in New Bremen, Auglaize County by virtue of her sharing her location with his cellphone. Dep. Wuebker stated that Hirschy told him that he and Baxter were broken up, and that he (Hirschy) went to Speedway Lanes because he wanted to return Baxter's key to her.[2] Dep. Wuebker testified that Baxter came in contact with
Hirschy at Speedway Lanes nearly hitting her vehicle with his vehicle. According to Dep. Wuebker, Hirschy then began tailgating Baxter and trying to run her off the roadway as she proceeded to her home in Mercer County, Ohio. However, through his investigation, Dep. Wuebker learned that Hirschy's vehicle had collided with a fence post on Carthagena Road during his interactions with Baxter.
{¶13} Dep. Wuebker's testimony (regarding these events occurring in Auglaize and Mercer Counties) was necessary because it provided the trier of fact with a complete picture of what happened between Hirschy and Baxter on December 6, 2021 and because it formed the immediate background of...
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