State v. Kline

• Decision Date: 15 April 1983
• Parties: , 11 O.B.R. 330 The STATE of Ohio, Appellee, v. KLINE, Appellant.
• Court: Ohio Court of Appeals

Page 208

11 Ohio App.3d 208

464 N.E.2d 159, 11 O.B.R. 330

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

Court of Appeals of Ohio, Sixth District, Huron County.

April 15, 1983.

Syllabus by the Court

1. An extrajudicial statement offered for impeachment purposes is not hearsay since it is not offered for the truth of what it states. (Evid.R. 801[C], construed.)

2. When a witness testifies in court to admissible hearsay statements of a third-party declarant, that declarant's inconsistent prior or subsequent statements, whether oral or written, may be admitted for the purpose of impeaching him. (Evid.R. 806, construed.)

3. In Ohio, the rule is a liberal one with respect to establishing inconsistency. The threshold inconsistency requirement is met if a statement offered for impeachment can be interpreted in either of two ways, though only one interpretation is actually inconsistent with the testimony of the witness sought to be impeached. Ohio evidence law recognizes contradiction by reference to a material fact omitted in a witness' prior statement or, in the case of a third-party hearsay declarant, an omission in a statement made subsequent in time to one admitted in evidence at trial. By omitting a material fact under circumstances in which it was natural and reasonable for him to assert it, the declarant's subsequent statement thereby contradicts his prior statement admitted in evidence.

4. Whether an inconsistent statement actually impeaches or otherwise discredits its maker is a question of weight for the jury. If the subsequent, extrajudicial statement is susceptible of different meanings, one of which would be inconsistent with the truth of in-court testimony, it is admissible in evidence for the jury to determine which is the true meaning, and to exclude such evidence is prejudicial error. (Dilcher v. State, 39 Ohio St. 130, paragraph four of the syllabus, applied and followed.)

Douglas D. MacGillivray, Bellefontaine, for appellee.

Russell F. Leffler, Norwalk, for appellant.

HANDWORK, Judge.

This case is before the court on appeal from a judgment of the Huron County Court of Common Pleas. The record sub judice reveals a disturbingly bizarre set of facts, which may be summarized as follows.

Sometime prior to December 1981, certain "targets" of a county-wide narcotics investigation threatened the life of the Huron County Assistant Prosecuting Attorney, Reese Wineman, and his family. The record indicates that one "target," and purported source of the threats, was an individual named Doug Emmons. As a result of the threats, at least two handguns were issued to Wineman by the Huron County Prosecutor's office. These guns were kept in the Wineman home.

Early in the evening of March 12, 1982, Wineman's wife, Sue Wineman, and appellant herein, Gloria Kline, decided to go out together for dinner. The two women were good friends and had been so for a long time. On occasions, appellant had been a babysitter for the Wineman children. Appellant was also a former client of Mr. Wineman, who had represented her during her divorce. Because a new babysitter would be staying with the children, appellant brought the guns to Mrs. Wineman and suggested that they take the guns with them to avoid exposing the children and the babysitter to any danger. The guns were apparently very accessible. Mrs. Wineman testified that she told appellant to return the guns to a bedroom dresser drawer and not to bring them along. Appellant and Mrs. Wineman left the Wineman residence at about 8:45 p.m. Mrs. Wineman testified that it was her idea to go to dinner at a particular bar in Norwalk known as Byron Austin's.

Upon arriving, the two women entered an already crowded bar where they were met by the "courthouse crowd." This particular group of patrons included: the adult probation officer, Thomas Ring, and his wife; the assistant public defender, Rich Woodruff; and Carol Myers, who was Mr. Wineman's secretary. The tenor of the evening was described variously as "festive" and "party-like." Added to this atmosphere, as the record quite clearly shows, was the consumption of a rather large quantity of alcohol by this group. Appellant and Mrs. Wineman were seated around a table in the rear of the bar with Ring and his wife, Woodruff, and several other individuals.

Sometime during the bacchanal reverly, Ring kicked something underneath the table, which he later described as "metallic." Ring testified that he reached down and retrieved a woman's purse. Ring further testified on direct examination that he suspected the purse contained a gun even before he saw it; however, he was contradicted on cross-examination by a prior recorded statement made to defense counsel on May 28, 1982, in which he stated that he held up the purse and asked "jokingly" whether it contained a gun. In any event, Ring opened the purse and pulled out a .38 Smith and Wesson snub-nosed revolver. Ring was uncertain from whose purse he had taken the gun. He inquired why the gun, which he suspected belonged to Mr. Wineman, was in the purse. Mrs. Wineman replied that a new babysitter was staying with her children and appellant's children at the Wineman home and that "she did not want the handgun left [there]." Ring testified that he was less than satisfied with this explanation. He then placed the gun beneath his sweater between his pants and his shirt. Several people saw him do this. By his own testimony, he carried the gun on his person for approximately two and one-half hours, waiting for Mr. Wineman to arrive at the bar. (There is some indication that Mr. Wineman was expected to do so.) During this time, Mrs. Wineman "pleaded" with Ring several times to return the weapon to her. Ring refused, saying that he would keep it until Mr. Wineman arrived. At approximately 11:30 p.m., Ring and his wife decided to leave. He approached Mrs. Wineman and asked her if she and appellant intended to stay. Mrs. Wineman replied that they were leaving shortly. Ring observed two purses on the table at which they were sitting. He testified that he picked up the one he thought belonged to Mrs. Wineman and placed the gun inside it. On cross-examination, this testimony was contradicted by a prior recorded statement made to defense counsel in which Ring stated that he did not know which purse belonged to which of the two women and, more importantly, that he did not know if the purse to which he returned the gun was the same purse in which he found it. Ring and his wife then left the bar.

Sometime between 1:00 and 1:30 a.m. on March 13, Doug Emmons and his girlfriend, Kelly Taylor, entered Byron Austin's. They had been at another bar in Norwalk earlier, and Emmons had been drinking quite heavily. At this point, the testimony of the witnesses becomes very sketchy. Apparently, both appellant and Mrs. Wineman recognized Emmons. Mrs. Wineman became frightened and went to call the police. She testified that she was apprehensive, that she feared Emmons might "do something" and that she wanted to leave. Yet, at critical points in her testimony, Mrs. Wineman stated only that she did not remember exactly what happened. She did testify, however, that at some point she went to the restroom to regain her composure. When she returned, she testified that she saw Emmons and appellant struggling or wrestling, that Emmons had his arm around appellant's neck and that the gun was in Emmons' hand. Several other witnesses corroborated this fact. There was additional testimony by several witnesses that the struggle was quickly broken up and the gun was taken from Emmons. After Emmons and appellant were separated and restrained, and after the gun was taken by a bartender, several witnesses stated that appellant said "I'll kill him." Emmons' girlfriend, Taylor, testified that she saw appellant pull the gun from her "lap area" and point it at Emmons. Emmons, according to Taylor, quickly seized the gun from appellant and said, "She tried to kill me--call the cops." No other prosecution witness testified to this statement.

Emmons and appellant were taken to the Norwalk police station. Appellant was described as "hysterical," "crying" and "upset." She was not questioned. Emmons gave a written statement of the incident to Captain DeWalt.

On April 21, 1982, the Huron County Grand Jury returned a three-count indictment charging appellant with theft of a firearm, carrying a concealed weapon, and felonious assault. The case came on for trial on July 27, 28 and 29, 1982. The jury subsequently returned a verdict finding appellant not guilty of theft of a firearm, but guilty of felonious assault and carrying a concealed weapon. The trial court thereafter sentenced appellant to a term of imprisonment, from which this appeal has been taken.

Appellant's first and second assignments of error are as follows:

"I. The trial court erred in refusing to allow defense Exhibit A into evidence or to allow counsel to ask other questions to attack the credibility of Mr. Emmons.

"II. The trial court erred in overruling defendant's motion for acquittal pursuant to Rule 29 as to the felonious assault count and the verdict as to that count was against the manifest weight of the evidence."

In support of her first assignment of error, appellant argues that the trial court prejudicially erred in excluding Doug Emmons' written statements and in sustaining objections to the cross-examination of Captain DeWalt concerning the contents of those statements. By contrast, the state argues, first, that Emmons' written statements were inadmissible hearsay and, second, that his hearsay declaration, to which Taylor testified, was not inconsistent with his subsequent written statements. For the following reasons, we find the state's position untenable.

Though under subpoena, Emmons was unavailable as a witness at the time of trial. ¹ However, Kelly Taylor testified that after Emmons wrested the gun from appellant's grasp, he said to a...