State v. Morris
| Decision Date | 11 October 2022 |
| Docket Number | 7-21-05 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Brandon MORRIS, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Joseph C. Patituce, Cleveland, for Appellant.
Gwen Howe-Gebers, for Appellee.
{¶1} Defendant-appellant, Brandon Morris ("Morris"), appeals the August 17, 2021 judgment entry of the Henry County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} The genesis of this case is the trespass of a person into the mudroom of N.R.’s home in the early morning hours of January 4, 2021. N.R. is the minor daughter of Michelle O.R. A digital image of an unknown person was captured by a motion-activated security camera and a "push" notification was sent to Michelle's cellphone.1 The "push" notification contained a pop-up alert reporting that motion had been detected at the home's backdoor along with a digital image depicting that area.
{¶3} On January 27, 2021, the Henry County Grand Jury indicted Morris on one count of burglary in violation of R.C. 2911.12(A)(2), (D), a second-degree felony and one count of menacing by stalking in violation of R.C. 2903.211(A)(1), (B)(2)(a), a fourth-degree felony. On February 11, 2021, Morris appeared for arraignment and entered not guilty pleas. On June 9, 2021, Morris filed a notice of alibi, and on July 1, 2021, the State filed its notice of intent to use evidence of other crimes, wrongs or acts, which Morris opposed.
{¶4} Morris's case proceeded to trial on July 7, 2021 wherein Morris was found guilty (by a jury) of both criminal counts in the indictment.
{¶5} Thereafter, the trial court sentenced Morris on Count One (burglary) to an indefinite minimum prison term of seven years to an indefinite maximum prison term of 10.5 years and on Count Two (menacing by stalking) to 12 months in prison to be run concurrently to Count One. The judgment entry was filed on August 17, 2021.
{¶6} Morris filed a timely notice of appeal and raises five assignments of error for our review. We will review Morris's assignments of error in the order of presentment.
The Trial Court Erred By Improperly Allowing The Admission Of Other Acts Evidence Over The Objection Of Appellant That Did Not Establish A Behavioral Fingerprint, Or Modus Operandi.
{¶7} In his first assignment of error, Morris asserts that the trial court erred when it permitted the admission of "other acts" into evidence. Specifically, Morris argues that the State did not establish a modus operandi , and thus allowed the admission of "other acts" into evidence that was inflammatory and prejudicial under Evid.R. 403(A).
{¶8} We review "other acts" evidence under Evid.R. 404(B) through the lense of the three-step analysis set forth in State v. Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20. State v. Williams , 3d Dist. Allen No. 1-19-70, 2021-Ohio-256, 2021 WL 321829, ¶ 16. These steps involve a mixed standard of review. See id. at ¶ 9-10, citing State v. Hartman 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 22, citing Leonard, The New Wigmore: Evidence of Other Misconduct and Similar Events, Section 4.10 (2d Ed.2019). The first two steps (i.e., relevancy under Evid.R. 401 and 402 and the particular purpose the evidence is offered under Evid.R. 404(B) ) are intertwined and pose legal questions, and thus, are reviewed under a de novo standard of review. See State v. Bortree , 3d Dist. Logan No. 8-20-67, 2021-Ohio-2873, 2021 WL 3716803, ¶ 46, citing State v. McDaniel , 1st Dist. Hamilton, 2021-Ohio-724, 168 N.E.3d 910, ¶ 17 and Hartman at ¶ 22, citing Leonard, Section 4.10. However, the third step (i.e., the Evid.R. 403 balancing tests) "constitutes a judgment call", which we review under an abuse-of-discretion standard. Id. , at ¶ 48 citing McDaniel at ¶ 17 ; see also Hartman at ¶ 30.
{¶9} "De novo review is independent, without deference to the lower court's decision." Williams , 2021-Ohio-256, ¶ 11 (3d Dist.), quoting State v. Hudson , 3d Dist. Marion, 2013-Ohio-647, 986 N.E.2d 1128, ¶ 27, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio , 64 Ohio St.3d 145, 147, 593 N.E.2d 286 (1992). "An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or unconscionably." Id. , citing State v. Adams , 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶10} " Evid.R. 404(B) categorically prohibits evidence of a defendant's other acts when its only value is to show that the defendant has the character or propensity to commit a crime." State v. Smith , 162 Ohio St.3d 353, 2020-Ohio-4441, 165 N.E.3d 1123, ¶ 36, citing Evid.R. 404(B). " ‘[Nevertheless], there are exceptions to the general rule: "[i]t may[ ] be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ’ " State v. Bagley , 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, 2014 WL 1692720, ¶ 56, quoting State v. May , 3d Dist. Logan No. 8-11-19, 2012-Ohio-5128, 2012 WL 5397126, ¶ 69, quoting Evid.R. 404(B). See also R.C. 2945.59. " ‘The list of acceptable reasons for admitting testimony of prior bad acts into evidence is non-exhaustive.’ " Bagley at ¶ 56, quoting State v. Persohn , 7th Dist. Columbiana No. 11 CO 37, 2012-Ohio-6091, 2012 WL 6679921, ¶ 23. Notably, Evid.R. 404(B) only applies to "[e]vidence of other crimes, wrongs, or acts" extrinsic to the charged offense and not those acts that are intrinsic to the offense. (Emphasis added.) State v. Lester , 3d Dist. Union Nos. 14-18-21 and 14-18-22, 2020-Ohio-2988, 2020 WL 2519898, ¶ 43, citing 404(B).
{¶11} Here, Morris challenges the admission of State's Exhibit 2c, a written excerpt from a notebook, which was located in Morris's car by law enforcement.2 Morris contends that by admitting the exhibit, the trial court allowed "other acts" into evidence that occurred outside indicted-time frames.
{¶12} Even though Morris's arguments relate to "other acts" evidence, we conclude that the notebook excerpt was not inadmissible under Evid.R. 404(B) since the statements Morris made in his notebook do not refer to any "other crimes, wrongs, or acts". Put more plainly, the excerpts are Morris's journalized ideas or thoughts, not his past crimes. Moreover, not all evidence concerning a criminal defendant's behavior constitutes "other acts" evidence. See State v. Lotzer , 3d. Dist. Allen No. 1-20-30, 2021-Ohio-3701, 2021 WL 4824579, ¶ 23.
{¶13} We conclude the notebook was not admitted to prove the "type" of person Morris is in order to show that he "act[ed] in conformity therewith" in the instant case. Rather, Morris's written assertions (in the notebook) were admissible under Evid.R. 801(D)(2)(a) as statements of a party opponent because it was Morris's "own statement, in either an individual or a representative capacity."3 Morris's excerpts merely provided context for his burglary and menacing-by-stalking charges and were offered "to prove the truth of the matter asserted in the statement". That is–State's Exhibit 2c explained why Morris was a suspect in the investigation, because N.R. was identified in his writings as a person that he planned to stalk, abduct, and ultimately rape. Thus, the admission of this exhibit by the trial court was not erroneous. Accordingly, Morris's first assignment of error is overruled.
The Trial Court Erred By Improperly Allowing An Officer To Testify As An Expert In Forensic Video Identification When That Officer Had No Training In The Area And He [sic] Was Only "40% Sure" Of The Identification.
{¶14} In his second assignment of error, Morris argues that the trial court erred by permitting a witness (who happens to be a law enforcement officer) to testify as an expert witness. Specifically, Morris asserts that the State did not comply with the requirements of Crim.R. 16(K) and that the witness's out-of-court identification of Morris was tainted by her prior dealings with Morris.
{¶15} The admissibility of an expert's testimony is a matter committed to the sound discretion of the trial court, and the trial court's ruling will not be reversed absent an abuse of that discretion. State v. Hawkey , 3d Dist. Defiance, 2016-Ohio-1292, 62 N.E.3d 721, ¶ 76, citing Valentine v. Conrad , 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 9. A trial court has abused its discretion when its decision is contrary to law, unreasonable, not supported by the evidence, or grossly unsound. State v. Boles , 2d Dist. Montgomery, 187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d 345, ¶ 16-18. State v. Waldock , 3d Dist. Seneca, 2015-Ohio-1079, 33 N.E.3d 505, ¶ 62, citing Boles at ¶ 16-18. An appellate court may not substitute its judgment for that of the trial court when applying the abuse-of-discretion standard. Waldock at ¶ 62, citing State v. Slappey , 3d Dist. Marion No. 9-12-58, 2013-Ohio-1939, 2013 WL 1944257, ¶ 12.
{¶16} The Rules of Evidence delineate two forms of witness testimony: lay and expert. "Different rules govern the admissibility of opinion testimony from expert witnesses and lay witnesses." State v. Duncan , 3d Dist. Allen No. 1-19-75, 2020-Ohio-3916, 2020 WL 4434618, ¶ 8.
The distinction between lay and expert witness opinion testimony is that lay testimony ‘results from a process of reasoning familiar in everyday life,’ while expert testimony ‘results from a process of reasoning which can be mastered only by specialists in the field.’
State v. McKee , 91 Ohio St.3d 292, 2001-Ohio-41, fn. 2, 744 N.E.2d 737, quoting State v. Brown , 836 S.W.2d 530, 549 (Tenn. 1992), superseded on other grounds by statute.
{¶17} Evid.R. 104(A) requires trial courts to determine whether an individual qualifies as an expert witness. State v. Hartman , 93 Ohio St.3d 274, 285, 754 N.E.2d 1150 (2001). The rule states: "[p]reliminary questions concerning the qualification of a person to be a...
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