State v. Ollison
| Citation | 78 N.E.3d 254,2016 Ohio 8269 |
| Decision Date | 20 December 2016 |
| Docket Number | No. 16AP–95.,16AP–95. |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Yesenia OLLISON, Defendant–Appellant. |
| Court | Ohio Court of Appeals |
On brief: Richard C. Pfeiffer, Jr., City Attorney, and Orly Ahroni, Columbus, for appellee. Argued: Orly Ahroni.
On brief: Yeura R. Venters, Public Defender, and Timothy E. Pierce, Columbus, for appellant. Argued: Timothy E. Pierce.
{¶ 1} Defendant-appellant, Yesenia Ollison, appeals from the February 8, 2016 judgment entry of the Franklin County Municipal Court sentencing her to two years of probation after the jury's finding of guilt on charges of assault and disorderly conduct. For the following reasons, we affirm the trial court judgment.
{¶ 2} On February 9, 2015, criminal complaints were filed alleging appellant committed one count of assault, a violation of R.C. 2903.13(A), and one count of disorderly conduct, a violation of Columbus City Code 2317.11(A)(1), arising out of a December 26, 2014 parking lot incident in which appellant purportedly struck another woman, Jermaria Clardy, with her fist. Appellant pled not guilty to the charges.
{¶ 3} On February 1, 2016, appellant filed a motion in limine to preclude appellee from introducing a cell phone recording of a security video of the incident. Appellant's motion asserted that the video violated Evid.R. 901, 403, and "the Completeness Doctrine." (Mot. in Lim. to Exclude Video at 1.) Appellant attached to the motion in limine a copy of a magistrate's decision denying Clardy's civil stalking protection order from May 2015. Prior to commencing the trial, the trial court heard arguments from the parties regarding the motion in limine and the admissibility of the cell phone recording of the security video and overruled the motion while noting additional arguments would be entertained by the court at the time of a proffer of the recording. The case proceeded to a jury trial.
{¶ 4} The following facts are not in dispute. On December 26, 2014, at around 9:20 p.m., Clardy drove her car to a market with her daughter, niece, and nephew in the backseat and her teenage brother, Markadom Banks, in the passenger seat. Clardy parked her car, entered the market, and shopped for groceries while her brother and the children remained in the car. As she returned from the market and attempted to reenter her car, several females dragged her from her car and attacked her in the parking lot of the market, resulting in injuries to Clardy's face and arms. Whether appellant was one of those females who participated in the attack was the central issue in dispute at trial.
{¶ 5} According to Clardy, appellant attacked her as part of a group retaliating for a fight that occurred the previous day between Clardy and a woman named Cynthia Aponte. Clardy testified that she personally knows Aponte through Charles McGinnis, the father of Clardy's daughter. She assumed Aponte and McGinnis were in a romantic relationship and testified that Aponte would call her and that the calls evolved from asking about Clardy's relationship with McGinnis to threatening Clardy and her child. In the beginning of December 2014, Clardy pursued a protection order against Aponte but testified that the protection order was not served on Aponte because of an inaccurate address.
{¶ 6} On Christmas day 2014, Clardy and her daughter were at Clardy's father's house. McGinnis stopped by alone to give gifts to their daughter, at which time Clardy stepped outside to avoid trouble and have a cigarette. According to Clardy, Aponte arrived in another car, the two women exchanged words, and Aponte exited her vehicle and initiated a physical fight with Clardy. A police officer saw the altercation and took a report but did not make any arrests.
{¶ 7} Clardy testified that the next day, December 26, 2014, she went to her mother's house after work to pick up her daughter, niece, and nephew. She noticed a vehicle circling her mother's block but did not recognize the vehicle and thought the driver was lost. Clardy then took her brother, Banks, and the three children to McGuffey Market, which was located about 10 or 15 minutes away from her mother's house. Clardy and her brother noticed a vehicle following her car from a distance. Once at the market, Clardy went inside the store while her brother and the children stayed in the car. Clardy made her purchases and then noticed a crowd by the door to the market, in the parking lot, and by the vehicles. Clardy walked to her vehicle but before she could open her door, appellant ran up and attacked Clardy, striking her, and the two began fighting. Clardy was then dragged to the middle of the parking lot, where several more people assaulted her. Clardy testified that she was beaten, kicked, and hit in the head with an object and that she could hear her daughter's screams during the attack. Clardy's brother was eventually able to grab her and escort her to her vehicle. Clardy called the police and returned to her father's house, "hysterical" and bleeding. (Tr. Vol. I at 172.)
{¶ 8} Police arrived and Clardy told police that Aponte and some of Aponte's relatives, including "Jessie," assaulted her. (Tr. Vol. I at 173.) At that time, Clardy did not know the actual names of the attackers; rather, she recognized several faces, including appellant, whom she knew at that time by the name of Jessie Aponte, and another one of their relatives, whom she later found out was named Michella Akram. After the attack, she received phone calls from Aponte whereby Aponte laughed and told her she got what she deserved and that "it's not over." (Tr. Vol. I at 173.) When Clardy started naming Aponte and Jessie's names, they hung up the phone.
{¶ 9} The following day, December 27, 2014, Clardy and her father returned to the market and asked to see video footage of the attack. The store would not provide a copy of the surveillance footage to Clardy but allowed her to record the footage with her cell phone as the footage played on a television in the market. Clardy then went to FedEx and had the recording from her cell phone put on a disk. She presented the disk containing the recording of the market surveillance footage to the prosecutor's office the following Monday morning. Clardy testified that she reviewed the contents of the disk, that it fairly and accurately depicts her being assaulted at the market on December 26, 2014, and confirmed that she was present on the scene at the time of the incident depicted in the video. Appellant objected to use and admission of the video into evidence in the trial, arguing that the video violated Evid.R. 901(B)(1), the Completeness Doctrine, and Evid.R. 403. The trial court overruled appellant's objection, finding the video admissible. Appellee played the video for the jury, and Clardy testified that she had no control over skips that occurred in the video footage. Clardy identified her vehicle, herself, her brother, appellant, Aponte, Akram, and McGinnis in the video. Clardy testified that appellant was the person in the video wearing jeans and a grey "hoodie" sweatshirt with short or shoulder length hair. (Tr. Vol. I at 202.) Clardy testified that at the 37–second mark of the video, Clardy was on the ground with appellant at the top of her torso and Aponte near her lower body, and at the 1 minute, 3–second mark, Clardy is "getting dragged." (Tr. Vol. I at 204.) Clardy additionally identified appellant at the 2–minute, 2–second mark walking toward Clardy as Clardy returned to her car.
{¶ 10} Clardy took the video to the prosecutor's office the following Monday morning, December 29, 2014, and made a report. At that time, Clardy knew Aponte's name and thought appellant was named Jessie Aponte. According to Clardy, she was familiar with appellant's face before the attack because Clardy had viewed pictures of appellant with Aponte on Aponte's Facebook page with appellant's nickname tagged to the picture. The prosecutor's office could not find the name Jessie Aponte in a database or through a special unit and gave Clardy 30 days to locate the accurate name in order to process the charges against her. Clardy found out appellant's real name through mutual friends and social media. She saw a picture online with appellant's real name, and she was sure the person in the picture was the same person who attacked her. In the courtroom, Clardy identified appellant as the person who attacked her, testified that "[t]here is no doubt in my mind" that appellant is the first person who attacked her, and specified appellant as the main individual who attacked her. (Tr. Vol. I at 169.)
{¶ 11} On cross-examination, Clardy testified that she has not had other problems with people following her, threatening her, or attempting to fight her. Appellee objected to the relevance of the questioning, and appellant indicated her intent to introduce evidence that there might be other people Clardy has grudges with and written statements where Clardy accused other people of following her and threatening her in the past. Appellee responded by noting that appellant had not provided the document, a 2011 protection order, during discovery by arguing that the document constituted extrinsic evidence to attack character, and with no other ties between the previous event years earlier and the current attack, the information was prejudicial and confusing to the issue. The trial court sustained appellee's objection and disallowed further questioning.
{¶ 12} Banks testified that he witnessed appellant attack his sister, Clardy, on December 26, 2014 outside the market. He was in Clardy's car with his nieces and nephew when a crowd of people started gathering around the store. According to Banks, as Clardy was about to enter her car, appellant ran up to her swinging and hit her. Clardy then was dragged to the middle of the parking lot. Banks got out of the passenger side door of the car, but two adult men approached and...
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