State v. Wendel
| Decision Date | 28 November 2016 |
| Docket Number | No. 14–16–08.,14–16–08. |
| Citation | 74 N.E.3d 806,2016 Ohio 7915 |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Matthew T. WENDEL, Sr., Defendant–Appellant. |
| Court | Ohio Court of Appeals |
Elisabeth M. Mosser, for appellant.
David W. Phillips, for appellee.
{¶ 1} Defendant-appellant, Matthew T. Wendel, Sr. ("Wendel"), appeals the March 23, 2016 judgment entry of sentence of the Union County Court of Common Pleas following his convictions for three counts of rape and one count each of gross sexual imposition, endangering children, and intimidation of an attorney, victim, or witness in a criminal case. For the reasons that follow, we affirm.
{¶ 2} This case stems from allegations that Wendel sexually and physically abused a boy, A.C., in 2009, when A.C. was three years old. A.C. did not reveal the alleged abuse until August 2014. On October 3, 2014, the Union County Grand Jury indicted Wendel on: Counts One, Two, and Three of rape in violation of R.C. 2907.02(A)(1)(b) and 2907.02(B), first-degree felonies; Count Four of gross sexual imposition in violation of R.C. 2907.05(A)(4) and 2907.05(C)(2), a third-degree felony; Count Five of endangering children in violation of R.C. 2919.22(B)(2), a third-degree felony; and Count Six of intimidation of an attorney, victim, or witness in a criminal case in violation of R.C. 2921.04(B) and 2921.04(D), a third-degree felony. (Doc. No. 1). On December 9, 2014, Wendel entered pleas of not guilty to the counts of the indictment. (Doc. No. 8).
{¶ 3} The case proceeded to a jury trial on March 21, 22, and 23, 2016. (Mar. 21, 2016 Tr. at 5); (Mar. 22, 2016 Tr. at 5); (Mar. 23, 2016 Tr. at 3). (See Doc. No. 89). The jury returned its verdicts on March 23, 2016, finding Wendel guilty of all of the counts of the indictment. (Mar. 23, 2016 Tr. at 3–7). (See also Doc. Nos. 83, 84, 85, 86, 87, 88). The trial court sentenced Wendel on March 23, 2016 and filed its judgment entry of sentence that day. (Sentencing Tr. at 13–22); (Doc. No. 66).
{¶ 4} On April 12, 2016, Wendel filed a notice of appeal. (Doc. No. 99). He raises four assignments of error for our review.
The trial court abused its discretion by admitting hearsay statements as "outcry" contrary to any hearsay exception; any probative value of statements was substantially outweighed by unfair prejudice, and statements were a needless presentation of cumulative evidence.
{¶ 5} In his first assignment of error, Wendel argues that the trial court abused its discretion by admitting testimony of A.C.'s mother, Rebecca, and brother, Austin, as to statements made to them by A.C. Wendel argues that the trial court abused its discretion by admitting this evidence for four reasons: (1) the hearsay testimony was not subject to the excited-utterance exception under Evid.R. 803(2); (2) the hearsay testimony was not subject to the exception for child statements in abuse cases under Evid.R. 807 ; (3) the hearsay testimony was of little probative value and unfairly prejudicial to Wendel under Evid.R. 403(A) ; and (4) the hearsay testimony was needlessly cumulative contrary to Evid.R. 403(B).
{¶ 6} Wendel does not specify precisely what testimony he believes the trial court abused its discretion in admitting. However, he appears to be referring to portions of Rebecca's testimony during the following exchange, when she was describing A.C.'s statements to her after she requested that the television channel be changed from a program depicting homosexual activity:
(Mar. 21, 2016 Tr. at 141–145).
{¶ 7} As to Austin, Wendel appears to dispute the portions of the following exchange in which Austin describes things A.C. said to him after Rebecca requested that the television channel be changed:
{¶ 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, 848 N.E.2d 810, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001). An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). However, "if 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, 2014 WL 1692720, ¶ 53–54, citing State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 59–60, State v. Barrett, 4th Dist. Scioto No. 03CA2889, 2004-Ohio-2064, 2004 WL 878002, ¶ 20, and State v. Lenoir, 2d Dist. Montgomery No. 22239, 2008-Ohio-1984, 2008 WL 1838352, ¶ 19.
{¶ 9} " Crim.R. 52(B) governs plain-error review in criminal cases." Bagley at ¶ 55, citing State v. Risner, 73 Ohio App.3d 19, 24, 595 N.E.2d 1040 (3d Dist.1991). "A court recognizes plain error with the utmost caution, under exceptional circumstances, and only to prevent a miscarriage of justice." State v. Smith, 3d Dist. Hardin No. 6–14–14, 2015-Ohio-2977, 2015 WL 4510982, ¶ 63, citing State v. Saleh, 10th Dist. Franklin No. 07AP–431, 2009-Ohio-1542, 2009 WL 840755, ¶ 68. Under plain-error review, "[w]e may reverse 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, 679 N.E.2d 646 (1997).
{¶ 10} We begin our analysis by addressing the supposed hearsay statements to which...
To continue reading
Request your trial
-
State v. Baskin
... ... (that did not result in a conviction) was prejudicial and not admissible. Standard of Review {30} "Generally, [a] trial court is given broad discretion in admitting and excluding evidence, including "other bad acts" evidence. " State v. Wendel , 3d Dist. Union, 2016-Ohio-7915, 74 N.E.3d 806, 23, quoting State v. Williams , 7th Dist. Jefferson No. 11 JE 7, 2013-Ohio-2314, 2013 WL 2446470, 7, citing State v. Maurer , 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984). However, we apply a plain-error standard of review to this assignment ... ...
-
State v. Bentz
... ... 103(A)(1) requiring a timely objection stating the specific ground of the objection, even if we assume without deciding that an abuse-of-discretion standard applies to the evidence Bentz is challenging on appeal, the result is still the same. See State v. Wendel , 2016-Ohio-7915, 74 N.E.3d 806, 10 ("We will assume without deciding that an abuse-of-discretion standard 93 N.E.3d 391 of review applies as to Rebecca's testimony, even though Wendel objected to only one of the statements."); Stark at *3 ("Although appellant did not specifically state ... ...
-
State v. Brentlinger
... ... Testimony is nonhearsay "when introduced to show its effect on the listener." Osie at 122. "It is well established that extrajudicial statements made by an out-of-court declarant are properly admissible to explain the actions of a witness to whom the statement was directed." State v. Wendel , 2016-Ohio-7915, 74 N.E.3d 806, 10, quoting State v. Thomas , 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980). See State v. LaMar , 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, 59. Generally, "[t]estimony offered to explain the investigative activities of witnesses * * * is ... ...
-
State v. Bruce
... ... In other words, "evidence which tends to show ... that the accused has committed other crimes or acts ... independent of the crime for which he stands trial is not ... admissible to prove a defendant's character or that the ... defendant acted in conformity therewith." ... State v. Wendel, 2016-Ohio-7915, 74 N.E.3d 806 (3d ... Dist), quoting State v. Hawthorne, 7th Dist ... Columbiana No. 04 CO 56, 2005-Ohio-6779, ¶ 24 ... See Evid.R. 404(A) ... {¶19} ... However, Evid.R. 404(B)(2) contains a list of permitted uses ... for evidence of other ... ...