State v. Childers ( 2011 )


Menu:
  • [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
    

Document Info

Docket Number: 10-CA-61

Judges: Hoffman

Filed Date: 12/27/2011

Precedential Status: Precedential

Modified Date: 10/30/2014