State v. Childers ( 2011 )

[Cite as State v. Childers, 2011-Ohio-6742.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 10-CA-61
THOMAS CHILDERS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court of
Common Pleas, Case No. 10 CR 0449
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 27, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JULIA B. DILLON RICHARD A. CLINE
Assistant Prosecuting Attorney Richard Cline & Co., LLC
Fairfield County, Ohio 580 South High St., Suite 200
201 S. Broad St., 4th Floor Columbus, Ohio 43215-5644
Lancaster, Ohio 43130
Fairfield County, Case No. 10-CA-61 2
Hoffman, P.J.
(¶1) Defendant-appellant Thomas Childers appeals his conviction entered by
the Fairfield County Court of Common Pleas on one count of felonious assault, a
violation of R.C. 2903.11(A)(2). Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
(¶2) On July 12, 2010, Appellant met his adult son, Luke Childers, at Glass
City Barbeque. At the time, Luke Childers was on probation, and his mother, Tammy
Nash, drove him to the bar/restaurant and dropped him off. Catherine and Tom Stuck
own and operate Glass City Barbeque, and testified Luke Childers was a “regular” at the
bar/restaurant.
(¶3) Both Appellant and his son drank alcohol at the bar. At some point in the
evening, the men became involved in an argument and a physical altercation ensued.
(¶4) While outside of the bar waiting for his mother to pick him up, Luke
Childers observed a car approach him. Luke claims to have witnessed Appellant driving
the car while talking on a cell phone and looking at him. The car proceeded to strike
Luke causing injury.
(¶5) At approximately 8:18 p.m., Appellant telephoned Sandra Moyer, Luke’s
aunt and Tammy Nash’s sister. He told her to call Tammy Nash and tell her, “I’m going
to kill her fuck’n son.” Moyer testified she talked to Appellant for ten to twelve minutes
and could hear traffic at the end of the call.
(¶6) At trial in this matter, the State introduced an audio recording of a
voicemail received by Tammy Nash from Appellant at approximately 8:23 p.m.
threatening Luke. A second voicemail was received at 8:35 p.m.
Fairfield County, Case No. 10-CA-61 3
(¶7) Allison and Terry Porter, who lived across the street from Glass City
Barbecue, observed Luke Childers outside the restaurant. They testified at trial to
hearing tires squealing, a car accelerating and approaching Luke. They further testified
the car had other possible exits, but estimated the speed of the car to be approximately
20-25 miles per hour. They observed the car approach Luke Childers, accelerating at a
fast rate of speed, turning toward him. Luke attempted to dodge the car prior to impact.
Allison Porter told the police, the car was “trying to kill him.”
(¶8) The trial court allowed the State to introduce into evidence the tape
recordings of the recorded audio messages left by Appellant on Tammy Nash’s
answering machine. The calls occurred between ten to twenty minutes after the events
in the parking lot. The trial court allowed the evidence, but gave a limiting instruction to
the jury.
(¶9) The Fairfield County Grand Jury indicted Appellant on one count of
felonious assault and one count of domestic violence.
(¶10) On October 27, 2010, Appellant filed a motion in limine to exclude
evidence related to Appellant’s prior conviction for domestic violence. The trial court
overruled the motion in part.
(¶11) Following a jury trial, Appellant was found guilty of the charge of felonious
assault, but not guilty of domestic violence. The trial court sentenced Appellant to
seven years in prison, to be served consecutively with any other sentence he might be
serving in any other case.
(¶12) Appellant now appeals, assigning as error:
Fairfield County, Case No. 10-CA-61 4
(¶13) “I. THE TRIAL COURT BELOW ERRED BY ADMITTING IMPROPER
EVIDENCE AND THUS DENIED MR. CHILDERS A FAIR TRIAL AND DUE PROCESS
OF LAW, IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION AND ART. I, §§ 10 AND 16 OF THE OHIO
CONSTITUTION.
(¶14) “II. THE JURY’S VERDICT WAS BASED ON INSUFFICIENT EVIDENCE
AND/OR WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
I.
(¶15) In the first assignment of error, Appellant asserts the trial court erred in the
admission of evidence at trial. Specifically, Appellant cites the trial court’s decision to
admit the telephone messages left by Appellant for Tammy Nash the evening of the
altercation. Further, Appellant argues the trial court erred in admitting DNA evidence
due to chain of custody and hearsay concerns.
(¶16) A trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with
the rules of procedure and evidence. The admission of relevant evidence rests within
the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 31,
paragraph two of the syllabus. An appellate court that reviews the trial court's admission
or exclusion of evidence must limit its review to whether the lower court abused its
discretion. State v. Finnerty (1989), 45 Ohio St.3d 104, 107. As this court has noted
many times, the term ‘abuse of discretion’ connotes more than an error of law; it implies
that the court acted unreasonably, arbitrarily or unconscionably. E.g., Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142.”
Fairfield County, Case No. 10-CA-61 5
(¶17) A reviewing court should be slow to interfere unless the court has clearly
abused its discretion and a party has been materially prejudiced thereby. State v.
Maurer (1984), 15 Ohio St.3d 239, 264, 473 N.E.2d 768, 791. The trial court must
determine whether the probative value of the evidence and/or testimony is substantially
outweighed by the danger of unfair prejudice, or of confusing or misleading the jury. See
State v. Lyles (1989), 42 Ohio St.3d 98, 537 N.E.2d 221.
(¶18) At the trial herein, the State introduced two telephone voicemail messages
left for Tammy Nash by Appellant. The first was recorded at 8:23 p.m. on the night of
the incident, and stated:
(¶19) “Tam, you’d better call me as soon as possible or your fuck’n son is dead.
This is your son’s dad.”
(¶20) Tr. at 120-121.
(¶21) The second voicemail, left at 8:35 p.m. the same evening, stated:
(¶22) “You need to call me as soon as you get this because your son has got
mental problems. He just knocked my tooth out, back-handed me for no reason
because he thinks he’s my dad. So I’ve got a problem and I’m going to hurt him real
bad. I’m going to show him what all these years that I did in prison means. You can be
real proud of your son for hitting your dad. So you need to call me right now.”
(¶23) Tr. at 113; 120.
(¶24) The State asserts the second call was not played in its entirety for the jury;
rather, the State prepared a redacted version deleting the portion referring to
Appellant’s years in prison, and the redacted version was played to the jury.
(¶25) The trial court admitted the evidence, with the following limiting instruction:
Fairfield County, Case No. 10-CA-61 6
(¶26) “The Court: Ladies and gentlemen, you’re going to hear on this tape
recorded audio CD what is purported to be the statements of the Defendant, Thomas
Childers.
(¶27) “One or more of the statements that is purportedly made by Mr. Childers
can be construed as a threat.
(¶28) “And the Court is instructing you - - and the Court will provide this
additional jury instruction to you in writing at the close of the case. But at this point, the
Court is instructing you that this evidence that you are going to - - this testimony that is
recorded, or statement, rather, can only be construed by you for a limited purpose. It is
only to be considered by you for the limited purpose as to the Defendant’s state of mind
at the time of the commission of the alleged offenses of felonious assault and domestic
violence.
(¶29) “It is not to be construed by you as what’s known as propensity evidence;
that is, you are not permitted to consider these statements as evidence that because
the Defendant made these statements, that he was, therefore, more likely to have
committed the offenses of felonious assault and/or domestic violence.
(¶30) “So again, that limiting instruction will be provided to you in written form for
your consideration when you begin your deliberations.
(¶31) “You can proceed.”
(¶32) Tr. at 133-134.
(¶33) Evidence Rule 404(B) provides:
(¶34) “(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
Fairfield County, Case No. 10-CA-61 7
conformity therewith. It may, however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.”
(¶35) “Other act evidence can be permissible to prove identity of the defendant,
when the evidence proffered forms part of the factual background of the charged crime,
and forms part of the foundation thereof and is inextricably linked to the alleged criminal
act.” State v. Lowe (1994), 69 Ohio St.3d 527, 531, 634 N.E.2d 616. Thus, appellant's
acts surrounding the time of the appellant's charged offense are admissible when those
acts circumstantially tie the defendant to the charged offense, notwithstanding that the
“other acts” constitute uncharged crimes in themselves. Id.(¶36) Here, the recorded messages demonstrate Appellant’s motive, intent, and
absence of accident and form part of the factual background of the events occurring
outside of the bar on the evening of the incident. The messages tie Appellant to the
charged offense. We find the trial court did not err in allowing the introduction of the
recordings coupled with the limiting instruction.
(¶37) Appellant further maintains the trial court abused its discretion in the
admission of DNA evidence related to blood samples taken from the car involved in the
striking of Luke Childers, as the State failed to demonstrate a sufficient chain of custody
for the evidence.
(¶38) Generally, chain of custody issues go to the weight, rather than the
admissibility of evidence. See, State v. Rollins, 2008-Ohio-6116; State v. Lenoir, 2010-
Ohio-4910, and State v. Ross, 2010-Ohio-5096.
(¶39) Evidence Rule 901 states:
Fairfield County, Case No. 10-CA-61 8
(¶40) “(A) General provision
(¶41) “The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.”
(¶42) Appellant asserts the State failed to present witness testimony to
affirmatively establish the chain of custody of the DNA samples tested. Rather, the
State offered a computer printout exhibit as to the persons who handled the blood
samples and introduced the testimony of Adam Garver, a forensic scientist employed by
the Ohio Bureau of Criminal Identification and Investigation. Appellant asserts the
document contained hearsay statements and the admission of the document violated
his Confrontation Clause rights.
(¶43) At trial, the trial court stated on the record:
(¶44) “The Court: The Court agrees with the State as far as the arguments
submitted concerning the chain of evidence; that all those arguments go to weight and
not admissibility.
(¶45) “The Court also finds that pursuant to Evidence Rule 901(B)(1), there was
sufficient evidence by Mr. Garver and the other technician who testified that the
documents sought to be admitted - - or BCI documents sought to be admitted are what
they claim to be.
(¶46) “The Court also finds there is no hearsay problem; that these are business
records under Evidence Rule 803(6), and there was sufficient testimony by a person
with knowledge. And perhaps most importantly, the Court finds that the holding in
Crawford versus Washington relating to the right of a defendant to confront any
Fairfield County, Case No. 10-CA-61 9
witnesses who testify against him are not - - is not violated here. And the Court would
cite counsel to State versus Middlebrooks. This is a 2010 case decided May 28th 2010;
2010 Ohio 2377, Court of Appeals, Sixth District, Lucas County. And it acknowledges
that Crawford versus Washington, in general, held that the admission of lab reports
absent the testimony of the analyst who performed the test violated a defendant’s Sixth
Amendment right of confrontation. But is also further cites this Melendez-Dias case in
which it is quoted:
(¶47) “ ‘Noting in the US Supreme Court’s decision in Melendez-Dias speaks
specifically to the admissibility of a second analyst’s testimony or whether the Sixth
Amendment requires testimony from the analyst who performed the original test.
(¶48) “The Court did explain that its decision did not mean that anyone whose
testimony may be relevant in establishing the chain of custody, authenticity of the
sample, or accuracy of the testing device must appear in person as part of of the
Prosecution’s case.
(¶49) “And in general, this case goes on to justify the admissibility of evidence
when not every technician or not every analyst who is part of the chain of the analysis is
present to testify. There just must be some sufficient testimony and evidence before the
Court, which the Court finds was present here.”
(¶50) Tr. at 444-446.
(¶51) Upon review, we find the trial court properly admitted the evidence as an
authenticated business record, and the trial court did not violate Appellant’s right to
confrontation as Appellant had the opportunity to cross-examine the witness introducing
the evidence and who prepared the report.
Fairfield County, Case No. 10-CA-61 10
(¶52) The first assignment of error is overruled.
II.
(¶53) In the second assignment of error, Appellant maintains his conviction was
against the manifest weight and sufficiency of the evidence.
(¶54) On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks (1991), 61 Ohio St.3d 259. “The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.” Jenks at
paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On
review for manifest weight, a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine “whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.” State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State v.
Thompkins, 78 Ohio St.3d 380, 1997–Ohio–52. The granting of a new trial “should be
exercised only in the exceptional case in which the evidence weighs heavily against the
conviction.” Martin at 175.
(¶55) We note the weight to be given to the evidence and the credibility of the
witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182,
certiorari denied (1990), 498 U.S. 881. The trier of fact “has the best opportunity to view
the demeanor, attitude, and credibility of each witness, something that does not
Fairfield County, Case No. 10-CA-61 11
translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–
Ohio–260.
(¶56) Upon review of the record and testimony presented at trial, we find
Appellant’s conviction is supported by competent, credible evidence going to all the
essential elements of the charge, and the jury did not lose its way in convicting
Appellant of felonious assault.
(¶57) Appellant was convicted of felonious assault, in violation of R.C.
2903.11(A)(2), which reads:
(¶58) “(A) No person shall knowingly do either of the following:
(¶59) “Cause or attempt to cause physical harm to another or to another's
unborn by means of a deadly weapon or dangerous ordinance.”
(¶60) Luke Childers testified at trial the altercation began in the bar, and when
he went to leave his father purposefully attempted to run him over with a car, striking
him with the car and causing him physical injury. He further testified he saw his father
on the phone during the incident.
(¶61) Sandra Moyer testified Appellant called her at either 8:13 p.m. or 8:18
p.m. threatening to kill Luke. She further testified to hearing traffic in the background of
the telephone call. Appellant then left a subsequent voicemail, again threatening Luke.
(¶62) At 8:23 p.m. Appellant left a voice mail for Tammy Nash threatening Luke.
(¶63) Allison and Terry Porter who observed the events outside the bar testified
to witnessing the car accelerating and steering toward Luke. They believed the person
driving the car was trying to kill the victim.
Fairfield County, Case No. 10-CA-61 12
(¶64) We conclude, Appellant’s conviction for felonious assault in violation of
R.C. 2903.11(A)(2) is not against the manifest weight nor the sufficiency of the
evidence.
(¶65) The second assignment of error is overruled.
(¶66) Appellant’s conviction in the Fairfield County Court of Common Pleas is
affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Fairfield County, Case No. 10-CA-61 13
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
THOMAS CHILDERS :
:
Defendant-Appellant : Case No. 10-CA-61
For the reasons stated in our accompanying Opinion, the judgment of the
Fairfield County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY