State v. Mead , 2021 Ohio 1107 ( 2021 )

[Cite as State v. Mead, 2021-Ohio-1107.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-190604
C-190620
Plainitff-Appellee, : C-190621
C-190622
vs. C-190623
: C-190624
SCOTT MEAD, C-190625
: TRIAL NOS. 18CRB-5108
Defendant-Appellant. C-19CRB-11671B
: C-19CRB-23990
C-19CRB-23869
: C-19CRB-23677
C-19CRB-23374A
: C-19CRB-22922
: O P I N I O N.
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: April 2, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio, Hamilton
County.
Andrew W. Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Susan M. Zurface, Assistant Prosecuting Attorney, for Plaintiff-
Appellee State of Ohio, City of Cincinnati.
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Scott Mead appeals from seven municipal court
judgments in which he was convicted of domestic violence, telecommunications
harassment, violating a protection order, menacing by stalking, and aggravated
menacing. For the reasons set forth below, we affirm the judgments of the trial
court.
I. Facts and Procedure
{¶2} Mead and Tonya Luckett were in an on-again/off-again relationship
for over a year and a half. The relationship ended in a physical altercation and
relentless phone calls, which serve as the bases for the charges in this case.
{¶3} On March 4, 2018, Luckett left work and returned to the home that she
shared with Mead. Luckett testified that Mead was drunk and angry. According to
Luckett, Mead struck her in the face and knocked her onto the floor. Mead got on
top of her and continued to strike her. Mead then grabbed her hair and dragged her
through the kitchen. As a result, Luckett claims that she lost control of her bodily
functions and sustained several injuries. Photographs taken the following day
showed swelling and bruising to her face and arms. Luckett called the police
immediately following the altercation and Mead was charged with domestic violence.
{¶4} Five months later, on August 9, 2018, Luckett appeared before the
court and said that she did not want to move forward with the case or the pending
protection order. Luckett stated that she had reconciled with Mead and that she was
hoping to rekindle their relationship. However, the relationship only continued to
deteriorate.
{¶5} On August 30, 2018, Luckett received approximately 30 phone calls
from Mead. Luckett called the police and Officer Eric Connor responded to the
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OHIO FIRST DISTRICT COURT OF APPEALS
scene. Luckett’s phone rang 15 to 20 times in Connor’s presence. Connor answered
one of the calls, identified himself as a police officer, and explained that he had
received a call for harassment. The caller identified himself as “Scott Mead.” Connor
instructed Mead to stop calling, but the calls continued. Mead was subsequently
charged with telecommunications harassment.
{¶6} On September 1, 2018, Luckett again contacted the police regarding
incessant phone calls from Mead. Officer Ted Yaeger advised Luckett to file for a
civil protection order (“CPO”). Luckett heeded Yaeger’s advice and filed for a CPO
that same day. Luckett was subsequently granted a temporary protection order.
{¶7} On September 4, 2018, Luckett returned to Yaeger with further
complaints of nonstop phone calls from Mead. Mead was subsequently charged with
telecommunications harassment. Later that day, Yaeger served Mead with the
temporary protection order.
{¶8} On September 7, 2018, Luckett received approximately 40 to 80 phone
calls from Mead. Luckett called the police and provided recordings of the phone
calls. Mead was subsequently charged with violating a temporary protection order.
Two days later, on September 9, 2018, Luckett received an additional 30 phone calls
from Mead. Mead was again charged with violating a temporary protection order, as
well as menacing by stalking.
{¶9} On May 4, 2019, Luckett received a call from Mead on her employer’s
public phone line. Luckett’s coworker answered the phone and Mead asked to speak
to Luckett. Mead immediately started yelling at Luckett and threatened “to kill [her]
and put [her] in a black garbage bag.” Luckett’s employer called the police and Mead
was subsequently charged with aggravated menacing.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} On September 30, 2019, all of the charges were tried together before a
jury. The city of Cincinnati prosecuted Mead on the domestic-violence charge and
the Hamilton County Prosecuting Attorney’s Office prosecuted Mead on the
remaining charges. Following three days of testimony, the jury found Mead guilty of
one count of domestic violence, two counts of telecommunications harassment, two
counts of violating a protection order, one count of menacing by stalking, and one
count of aggravated menacing. On October 4, 2019, the trial court sentenced Mead
to an aggregate term of 18 months’ incarceration. Mead timely filed this appeal,
raising five assignments of error for our review.
II. Right to a Fair Trial
{¶11} In his first assignment of error, Mead argues that his constitutional
rights were violated because he was required to wear the same clothes for four
consecutive days of trial.
{¶12} The United States Supreme Court has held that the state cannot
compel an accused to stand trial before a jury while dressed in identifiable jail
clothes. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). The
rule entitling a defendant to be tried in ordinary clothing is designed to preserve the
presumption of innocence, a “presumption so basic to the adversary system.” Id. at
504. A defendant’s appearance in jail clothing is a constant reminder to the jury that
the defendant is in custody, and the constant reminder of the accused’s condition
may affect a juror’s judgment. Id. at 504-505.
{¶13} It is undisputed that Mead was not compelled to appear in jail clothes.
On the first day of trial, Mead wore dress clothes and black dress shoes provided by
defense counsel. On the next three days of trial, Mead wore the same dress clothes
and tennis shoes he had been wearing when he was arrested. The sheriff’s office
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OHIO FIRST DISTRICT COURT OF APPEALS
refused to accept any additional clothes or shoes from defense counsel. Mead
contends that the presumption of innocence was violated when he was compelled to
wear the same clothes throughout his four-day trial.
{¶14} Mead does not cite, and we cannot find, any cases to support his
contention. In fact, the only courts to address the issue have ruled against Mead.
See People v. Purscelley, Cal.App. No. D056288, 2010 WL 2952450 (Jul. 29, 2010)
(holding trial court did not violate defendant’s constitutional rights by limiting him
to one change of ordinary clothing per week); Johnson v. Sherman, C.D.Cal. No.
5:17-01860 ODW, 2020 WL 3655494 (May 14, 2020) (holding trial court did not
violate defendant’s constitutional rights by limiting him to two changes of ordinary
clothing per week).
{¶15} There is nothing in the record to suggest that Mead’s repeatedly-worn
dress clothes were the equivalent of identifiable jail clothes. The trial occurred over a
four-day period and Mead wore nondescript dress clothes. In addition, Mead wore
two different pairs of shoes during the course of the trial, which is consistent with a
person not being incarcerated. Under these circumstances, Mead has not established
a violation of his constitutional rights.
{¶16} Mead’s first assignment of error is overruled.
III. Right to a Speedy Trial
{¶17} In his second assignment of error, Mead argues that the 11-month
postaccusation delay on his September 10 and September 11 charges violated his
constitutional right to a speedy trial.
{¶18} Appellate review of a speedy-trial determination involves mixed
questions of fact and law. State v. Rice, 2015-Ohio-5481, 57 N.E.3d 84, ¶ 15 (1st
Dist.). We give deference to the trial court’s factual findings as long as they are
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OHIO FIRST DISTRICT COURT OF APPEALS
supported by competent, credible evidence, and we review de novo the court’s
conclusions of law. Id.{¶19} To determine whether a defendant has been deprived of his
constitutional right to a speedy trial, courts must balance four factors: (1) the length
of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right,
and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct.
2182, 33 L.Ed.2d 101 (1972); State v. Selvage, 80 Ohio St.3d 465, 467, 687 N.E.2d
433 (1997).
{¶20} The first factor acts as a triggering mechanism for inquiry into the
other factors. Barker at 530. The United States Supreme Court has explained:
Until there is some delay which is presumptively prejudicial, there is
no necessity for inquiry into the other factors that go into the balance.
Nevertheless, because of the imprecision of the right to speedy trial,
the length of delay that will provoke such an inquiry is necessarily
dependent upon the peculiar circumstances of the case. To take but
one example, the delay that can be tolerated for an ordinary street
crime is considerably less than for a serious, complex conspiracy
charge.
Id. at 530-531.
{¶21} Courts have generally found postaccusation delays presumptively
prejudicial as they approach one year. See, e.g., State v. Sears, 166 Ohio App.3d 166,
2005-Ohio-5963, 849 N.E.2d 1060, ¶ 11 (1st Dist.) (9-month delay for misdemeanor
assault was presumptively prejudicial); Selvage at 468 (ten-month delay for felony
drug trafficking was presumptively prejudicial).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} On September 10, 2018, the Harrison Police Department filed a
misdemeanor complaint and issued an arrest warrant against Mead for violating a
protection order. On September 11, 2018, the Harrison Police Department filed
another misdemeanor complaint and issued another arrest warrant against Mead for
menacing by stalking. Mead was not arrested until August 15, 2019, more than 11
months after the issuance of the warrants. This 11-month delay is presumptively
prejudicial and triggers inquiry into the remaining factors.
{¶23} The second factor operates on a sliding scale. State v. Rogers, 1st Dist.
Hamilton No. C-180120, 2019-Ohio-1251, ¶ 9. Deliberate dilatory acts are weighted
heavily against the state, while negligent acts are weighted less heavily against the
state. Barker, 407 U.S. at 531, 92 S.Ct. 2182, 33 L.Ed.2d 101.
{¶24} Officer Yaeger testified that he never attempted to serve Mead with the
September 10 and September 11 charges. The state believed that Mead resided
outside the jurisdiction. A review of the record shows that Mead partially resided in
California and the state did not have a California address for Mead. Instead, the
state had only one address for Mead—his mother’s address in Cincinnati. Mead had
been served at his mother’s address on prior occasions. The state did attempt to
serve Mead with other charges on September 7, 2018, but could not locate him at his
mother’s address. Nonetheless, the state did not attempt to serve Mead with the
September 10 and September 11 charges, and there is no evidence that Mead
attempted to avoid service. Therefore, the state was not reasonably diligent in
pursuing Mead and the second factor weighs slightly in Mead’s favor.
{¶25} With respect to the third factor, the parties agree that Mead filed a
motion to dismiss on August 22, 2019, one week after his arrest. This factor weighs
in favor of Mead.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} Courts should assess the fourth factor in light of the interests which
the right to a speedy trial was designed to protect, including (1) to prevent oppressive
pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to
limit the possibility that the defense will be impaired. Barker at 533.
{¶27} The first two interests are not implicated in this case. Mead was not
incarcerated in the period between the filing of the complaint and his arrest, and
there is no evidence that he suffered anxiety or concern during that period.
{¶28} With respect to the last interest, Mead does not allege any
particularized trial prejudice. Instead, he argues that the state’s negligence created a
presumption of prejudice.
{¶29} As a general rule, “prejudice may be presumed only in aggravated
cases involving excessive delay.” Rogers, 1st Dist. Hamilton No. C-180120, 2019-
Ohio-1251, at ¶ 17. Here, Mead was arrested approximately 11 months after issuance
of the arrest warrants and no attempt was made to serve him before then. However,
the state alleged it had a problem locating Mead. And a review of the record
supports that assertion—Mead partially resided in California, the state did not have a
California address for Mead, and Mead could not be located at his mother’s address
three days earlier. Under these circumstances, the 11-month delay does not rise to
the level of an aggravated case involving excessive delay.
{¶30} After weighing all of the Barker factors, the state’s negligence is not
enough to outweigh the absence of prejudice. Therefore, Mead was not deprived of
his constitutional right to a speedy trial and his second assignment of error is
overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
IV. Evid.R. 901 & 1003
{¶31} In his third assignment of error, Mead argues that the trial court erred
by allowing duplicate phone recordings into evidence. Mead contends that the
duplicate recordings were not properly authenticated under Evid.R. 901 and 1003.
{¶32} The trial court is vested with the sound discretion to admit duplicates,
and those rulings will not be overturned absent an abuse of discretion. State v.
Searles, 1st Dist. Hamilton No. C-180339, 2019-Ohio-3109, ¶ 7; State v. Tibbetts, 92
Ohio St.3d 146, 160, 749 N.E.2d 226 (2001).
{¶33} Evid.R. 901 governs the authentication of recorded phone
conversations. The threshold for authentication is low, and requires only a prima
facie showing that “the matter in question is what its proponent claims.” Evid.R.
901(A); State v. Rosemond, 2019-Ohio-5356, 150 N.E.3d 563, ¶ 59 (1st Dist.); State
v. Crossty, 2017-Ohio-8382, 99 N.E.3d 1048, ¶ 29 (1st Dist.). Evid.R. 901(B)(5)
provides that evidence may be authenticated by voice identification, “whether heard
firsthand or through mechanical or electronic transmission or recording, by opinion
based upon hearing the voice at any time under circumstances connecting it with the
alleged speaker.”
{¶34} Pursuant to Evid.R. 1003, “[a] duplicate is admissible to the same
extent as an original unless (1) a genuine question is raised as to the authenticity of
the original or (2) in the circumstances it would be unfair to admit the duplicate in
lieu of the original.” The party seeking to exclude the duplicate has the burden of
demonstrating that it should be excluded. State v. Tibbetts, 92 Ohio St.3d 146, 160,
749 N.E.2d 226 (2001).
{¶35} In this case, the evidence was sufficient to establish that the duplicate
recordings were what the state claimed them to be—i.e., accurate recordings of
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OHIO FIRST DISTRICT COURT OF APPEALS
phone calls between Mead and Luckett. Luckett testified that she recorded the
phone calls with her friend’s iPad and presented them personally to the police
department. The police then uploaded the iPad footage onto their system and
manually recorded it.
{¶36} Although Luckett had no personal knowledge of the duplicate
recordings, she testified that she remembered the calls and that she recognized the
voices on the calls. Luckett unequivocally identified her voice and Mead’s voice on
the recordings. She further testified that the duplicate recordings fairly and
accurately represented the phone calls she received on September 7, 2018. Luckett’s
voice identification was sufficient to constitute a prima facie showing of authenticity.
Thus, the trial court did not abuse its discretion in admitting duplicate copies of the
phone recordings.
{¶37} Mead’s third assignment of error is overruled.
V. Evid.R. 404(B)
{¶38} In his fourth assignment of error, Mead argues that the state’s
introduction of other-acts evidence violated Evid.R. 404(B) and warranted a mistrial.
{¶39} At trial, Mead’s theory of the case was that Luckett lodged false
allegations against him whenever their relationship was “off-again.” During cross-
examination, Mead’s counsel elicited information that Luckett originally did not want
to go forward with the domestic-violence charge and did not want a temporary
protection order. To rehabilitate Luckett’s credibility and to rebut the implication
that Luckett falsified the charge, the state elicited information that Luckett decided to
continue with the domestic-violence case due to “constant threats and more hands
on.” Mead claims that evidence of threats and subsequent instances of domestic
violence was inadmissible under Evid.R. 404(B).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶40} Pursuant to Evid.R. 404(B): “Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
conformity therewith.” Evidence of other acts is admissible only when it is probative
of a nonpropensity-based issue. State v. Hill, 1st Dist. Hamilton No. C-190638,
2021-Ohio-294, ¶ 31.
{¶41} In two recent cases, the Ohio Supreme Court clarified the process for
determining whether other-acts evidence is admissible at trial. See State v. Hartman,
161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d 651; State v. Smith, Slip Opinion No.
2020-Ohio-4441. As with all evidence, the threshold question for determining
admissibility is whether the evidence is relevant. Hartman at ¶ 24. “In the Evid.R.
404(B) context, the relevance examination asks whether the proffered evidence is
relevant to the particular purpose for which it is offered, as well as whether it is
relevant to an issue that is actually in dispute.” Smith at ¶ 37, citing Hartman at ¶ 26-
27. The relevancy of other-acts evidence is a question of law subject to a de novo
review. Hartman at ¶ 22.
{¶42} If the evidence is relevant to a noncharacter-based issue that is
material to the case, then the court must consider whether the evidence’s probative
value is substantially outweighed by the danger of unfair prejudice. Smith at ¶ 38;
Hartman at ¶ 29. “Balancing the risks and benefits of the evidence necessarily
involves an exercise of judgment; thus, the trial court’s determination should be
reviewed for an abuse of discretion.” Hartman at ¶ 30.
{¶43} In this case, the state introduced other-acts evidence to rehabilitate
Luckett’s credibility and to show her state of mind, not to show Mead’s propensity for
violence. A review of the record shows that the state did not elicit the other-acts
evidence during direct examination of Luckett. Rather, the state addressed the issue
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OHIO FIRST DISTRICT COURT OF APPEALS
only after Mead’s counsel cross-examined Luckett regarding her prior actions with
respect to the domestic-violence case.
{¶44} This case hinged on the jury’s determination of credibility. Thus,
Luckett’s credibility was a material issue in dispute. The state introduced the other-
acts evidence to rebut the testimony that Luckett originally did not want to pursue the
domestic-violence charge and to explain why Luckett delayed in obtaining a
protection order. Accordingly, the other-acts evidence was not premised on improper
character inferences and was probative of a material issue in the case. See State v.
Spivey, 3d Dist. Marion No. 9-12-27, 2013-Ohio-851, ¶ 37 (evidence of defendant’s
prior drug use did not violate Evid.R. 404(B) where it was admitted to rehabilitate the
witness’s credibility and to rebut the suggestion of impropriety made during cross-
examination).
{¶45} The other-acts evidence was also not unfairly prejudicial. On redirect,
the trial court allowed Luckett to testify that she changed her mind because of
“constant threats and more hands on.” The court allowed Luckett to provide some
details regarding the threats—e.g., Mead made threats against Luckett, her family
members, and her friends. But the court stopped Luckett from referencing other
instances of domestic violence. The court sustained defense counsel’s objections to
“any statement regarding hands being placed on [Luckett] subsequent to the [March 3
incident].” The court also instructed the jury not to consider “any statements that
were stricken by the court or that you were instructed to disregard.”
{¶46} Furthermore, Luckett’s testimony about other acts paled in
comparison to her testimony about the charges. Luckett testified that Mead
repeatedly struck her in the face, grabbed her hair, and dragged her through the
kitchen. Luckett also testified about the countless phone calls that occurred over a
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OHIO FIRST DISTRICT COURT OF APPEALS
ten-month period. Luckett’s testimony was corroborated by photographs of her
injuries and duplicate phone recordings.
{¶47} Therefore, the trial court did not err in admitting the other-acts
evidence. Mead’s fourth assignment of error is overruled.
VI. Cumulative Error
{¶48} In his fifth assignment of error, Mead argues that the cumulative
effect of the first, third, and fourth assignments of error deprived him of a fair trial.
{¶49} Because we have not found any instances of error, we cannot find
cumulative error. Accordingly, Mead’s fifth assignment of error is overruled.
V. Conclusion
{¶50} For the foregoing reasons, Mead’s assignments of error are overruled
and the judgments of the trial court are affirmed.
Judgments affirmed.
Z AYAS , P.J., and M YERS , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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