State v. Jones
| Court | United States Court of Appeals (Ohio) |
| Citation | 2023 Ohio 380 |
| Docket Number | 110742 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. KELLY JONES, Defendant-Appellant. |
| Decision Date | 09 February 2023 |
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-19-641989-A.
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Kristen Hatcher and Daniel Cleary, Assistant Prosecuting Attorneys, for appellee.
Thomas A. Rein,[*] for appellant.
JOURNAL ENTRY AND OPINION
ON RECONSIDERATION[1]
{¶ 1} Defendant-appellant Kelly Jones ("Jones") appeals his convictions for aggravated arson, felonious assault, arson and domestic violence following a jury trial. Jones contends that the trial court erred by admitting evidence of out-of-court statements by the alleged victim who did not testify at trial, in violation of his rights under the Sixth Amendment's Confrontation Clause and the rules of evidence. He also contends that (1) his guilty verdicts are not supported by sufficient evidence and are against the manifest weight of the evidence, (2) the trial court erred in failing to merge the aggravated arson and felonious assault offenses for sentencing, (3) the trial court failed to make the requisite findings to support the imposition of consecutive sentences under R.C. 2929.14(C)(4) (4) the trial court erred in sentencing him to an indefinite sentence because the indefinite sentencing provisions of the Reagan Tokes Law are unconstitutional and (5) the trial court erred in allowing the state to present additional evidence related to notice of prior conviction and repeat violent offender specifications after the court had returned its verdicts on those specifications.
{¶ 2} For the reasons that follow, we affirm Jones' guilty verdicts on all offenses. However, because we find that, under the facts and circumstances here, the aggravated arson and felonious assault offenses of which Jones was convicted are allied offenses of similar import, we vacate Jones' sentences on those counts and remand for a new sentencing hearing on those offenses.
{¶ 3} On July 19, 2019, a Cuyahoga County Grand Jury indicted Jones on six counts: one count of aggravated arson in violation of R.C. 2909.02(A)(1), a first-degree felony (Count 1); one count of attempted murder in violation of R.C. 2903.02(A) and 2923.02, a first-degree felony (Count 2); one count of felonious assault in violation of R.C. 2903.11(A)(1), a second-degree felony (Count 3); one count of aggravated arson in violation of R.C. 2909.02(A)(2), a second-degree felony (Count 4); one count of arson in violation of RC. 2909.03(A)(1), a fourth-degree felony (Count 5) and one count of domestic violence in violation of R.C. 2919.25(A), a first-degree misdemeanor (Count 6). Counts 1-4 also included notice of prior conviction and repeat violent offender specifications. The charges related to Jones' alleged assault and burning of then 78-year-old Ernestine Dumas at her home in Cleveland, Ohio on July 12, 2019. Jones had been living in Dumas' home at the time of the incident. Jones pled not guilty to all charges. After several continuances, the case was set for trial on June 14, 2021.[2] {¶ 4} On June 14, 2021, the state filed a motion for continuance on the grounds that one of the state's witnesses, Jeraldine Campbell ("Campbell") - "the first person the victim had contact with following the incident" - had undergone hip replacement surgery two weeks earlier and "would not have medical clearance to attend trial in her current condition." In its motion, the state further asserted that "the alleged victim is permanently unavailable to testify due to her medical condition," but did not provide any details regarding Dumas' medical condition or otherwise explain in the motion why she would be "permanently unavailable to testify."[3]
{¶ 5} The following day, Jones filed a motion in limine "to exclude and/or limit the testimony" of the state's witnesses "regarding statements that may have been made to them by Ernestine Dumas," arguing that admission of such evidence would violate his rights under the Sixth Amendment's Confrontation Clause and the rules of evidence.
{¶ 6} Before trial commenced, the trial court allowed the parties to argue Jones' motion in limine. Jones reiterated the arguments made in his motion, i.e., that his "only accuser" was Dumas, that "the admission of testimonial hearsay through other State's witnesses * * * would violate [his] Sixth Amendment rights" and that the "facts show that [Dumas'] hearsay statements do not meet the requirements to be considered an exception to the hearsay rule." With respect to Dumas' unavailability to testify, Jones noted that they had "been briefed in chambers as to the reason that [Dumas] would be unavailable for attendance at trial" but that defense counsel had not received "any documentation that would substantiate dementia, Alzheimer's or the inability of [Dumas] to not be able to testify relative to the events of July 12th, 2019." Jones requested that the trial court "limit the testimony of any witness relative to any statements made to them by Ms. Dumas since we know that she will not be present to testify in court."
{¶ 7} The state responded that it would be seeking to admit evidence of (1) Dumas' statements to her neighbor, Campbell, (2) Dumas' statements on the 911 call and (3) her "initial statements to the police officers on scene."[4] The state asserted that it was not required to establish Dumas' unavailability in order to introduce evidence of her prior statements[5] and argued that these statements "don't actually fall under the [Confrontation [C]lause" because (1) the Confrontation Clause applies to "responses to police interrogations," not to statements made to someone like Campbell, and (2) Dumas' statements to the 911 operator and her "initial statements to the police officers on scene" were non-testimonial because they were made "under circumstances objectively indicating that the primary purpose of the interrogation [was] to enable police assistance to meet an ongoing emergency." The state further argued that Dumas' statements, made while under the effect of a startling event she personally experienced, qualified as "excited utterances" under Evid.R. 803(2) and were, therefore, admissible under the rules of evidence.
{¶ 8} The trial court denied Jones' motion in limine, and trial commenced on June 16, 2021. Jones waived his right to a jury trial on the notice of prior conviction and repeat violent offender specifications; the remaining issues were tried to a jury.
{¶ 9} At trial, the state presented testimony from eleven witnesses: Campbell (Dumas' neighbor); Leticia Rice (the 911 operator who received Dumas' 911 call); paramedic Kim Florczyk (one of the EMS personnel who examined and treated Dumas at the scene); Dr. Christopher Brandt (one of the physicians who treated Dumas' burn injuries); Mark DePhillips (a former Cleveland firefighter and arson investigator, who was at the scene); Charles Jones and Terencita Jones-Green (Dumas' nephew and niece)[6] and various police officers. In addition to the witnesses testimony, the state introduced photographs taken by the arson investigator at the scene (state exhibit Nos. 4-39), the audio recording of Dumas' 911 call (state exhibit No. 3), excerpts of footage from the body cameras of Cleveland police officers James Donnellan and Kenneth Potchatek (state exhibit Nos. 1, 1.2 and 43) and the EMS run report (state exhibit No. 47)[7] The parties stipulated to the "relevancy and admissibility" of over 1800 pages of medical records, including photographs, detailing Dumas' injuries, diagnoses and medical care and treatment related to the incident (state exhibit No. 46). A summary of the relevant evidence follows.
{¶ 10} Campbell lived "[a]cross the street down a little bit" from Dumas and was an "acquaintance" of Dumas. The two women had known each other since they were children and had "grown up together." Campbell testified that on July 12, 2019, Dumas came to her house, told Campbell she needed to go to the hospital and asked Campbell if she would take her to the hospital. Campbell stated that Dumas appeared "calm," looked "well put together" and that she was initially unaware that Dumas had been burned. Campbell testified that Dumas told her "Kelly had thrown fire on her" but "didn't go into any detail." Campbell indicated that she knew who "Kelly" was, i.e., a man who had been living in Dumas' home, and identified "Kelly" in court as Jones. Campbell stated that she told Dumas she did not drive at night, "so she would do better if we called 911," and she then called 911. Campbell indicated that Dumas stayed at her home until an ambulance arrived and that Campbell went with Dumas to the hospital. Campbell testified that she knew Dumas had "some cognitive something" and was in "some stage" of dementia and stated that she advised police and fire department personnel on the scene of that fact so they knew "what they were dealing with."
{¶ 11} Leticia Rice ("Rice") was working as a 911 operator on the evening of July 12, 2019, when she received a call from Dumas. The state played an audio recording of the 911 call for the jury (state exhibit No. 3), which Rice confirmed was "a fair and accurate depiction" of the call she received from Dumas:
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