State v. Humbert ( 2012 )

[Cite as State v. Humbert, 2012-Ohio-5870.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26420
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CRAIG L. HUMBERT COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 12 3282
DECISION AND JOURNAL ENTRY
Dated: December 12, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} A jury convicted Craig Humbert of attacking his mother and of later violating a
protection order by walking past her apartment. He has appealed. This Court affirms his
convictions because they are supported by sufficient evidence and are not against the manifest
weight of the evidence and his mother’s testimony did not include inadmissible hearsay.
BACKGROUND
{¶2} Mr. Humbert and his mother, Victoria, had been living together for years and
were in the process of moving from an apartment on Fern Street to a nearby apartment on East
Avenue on Thanksgiving Day 2011. Ms. Humbert-Williams was cooking a Thanksgiving meal
for her extended family at the new apartment on East Avenue when Mr. Humbert returned from
watching a football game. When he arrived at the apartment, only Ms. Humbert-Williams and
her six-year-old grandson were there. According to Ms. Humbert-Williams, Mr. Humbert
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walked in and started yelling at her, telling her that he did not want her to move with him to the
new apartment. She said that he punched her in the face with a closed fist. She got angry and
started throwing the food she was cooking onto the floor. She testified that Mr. Humbert
“pushed [her] on out the door and grabbed [her] by [the] neck and started choking [her] and had
[her] over the banister [on the front porch].” She testified that he stopped trying to push her over
the banister when her grandson yelled, “Uncle Craig. Stop, Uncle Craig.” Ms. Humbert-
Williams testified that Mr. Humbert let go of her, but kicked her pelvis hard before locking her
and her grandson out of the apartment and leaving the scene. She used her cell phone to call
police and waited with her grandson for them to arrive. The police took her to the station where
she signed a witness statement and applied for a protection order against Mr. Humbert. Police
later drove Ms. Humbert-Williams back to the Fern Street apartment where police arrested Mr.
Humbert. Within a week, Ms. Humbert-Williams called the police again to report that she saw
Mr. Humbert standing across the street from her Fern Street apartment talking to a neighbor.
{¶3} The State charged Mr. Humbert with violating a protection order and a third-
degree-felony count of domestic violence enhanced by two prior convictions. One of the
enhancing convictions was for domestic violence against Ms. Humbert-Williams. The second
was a child endangering conviction involving his nephew, the same child who was present
during the alleged Thanksgiving attack. The State also charged him with possession of a
marijuana joint found with him when he was arrested, but it later dropped that charge. A jury
convicted Mr. Humbert of domestic violence and violating a protection order, but found that his
previous child endangering conviction did not involve a family or household member. Thus, Mr.
Humbert’s domestic violence conviction is a felony of the fourth degree, enhanced only by the
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previous conviction for domestic violence against Ms. Humbert-Williams. The trial court
sentenced him to serve fifteen months in prison. Mr. Humbert has appealed.
SUFFICIENCY AND MANIFEST WEIGHT
{¶4} Mr. Humbert’s first assignment of error is that the trial court incorrectly denied
his motion for acquittal. Under Criminal Rule 29(A) of the Ohio Rules of Criminal Procedure, a
defendant is entitled to a judgment of acquittal on a charge against him “if the evidence is
insufficient to sustain a conviction . . . .” Whether a conviction is supported by sufficient
evidence is a question of law that this Court reviews de novo. State v. Thompkins, 78 Ohio St.
3d 380, 386 (1997); State v. West, 9th Dist. No. 04CA008554, 2005–Ohio–990, ¶ 33. We must
determine whether, viewing the evidence in a light most favorable to the prosecution, it could
have convinced the average finder of fact of Mr. Humbert’s guilt beyond a reasonable doubt.
State v. Jenks, 61 Ohio St. 3d 259, paragraph two of the syllabus (1991). Mr. Humbert has also
argued that his convictions are against the manifest weight of the evidence. If a defendant argues
that his convictions are against the manifest weight of the evidence, we “must review 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 trier of fact clearly lost its way
and created such a manifest miscarriage of justice that the conviction[s] must be reversed and a
new trial ordered.” State v. Otten, 33 Ohio App. 3d 339, 340 (9th Dist. 1986).
Domestic Violence
{¶5} Under Section 2919.25(A) of the Ohio Revised Code, “[n]o person shall
knowingly cause or attempt to cause physical harm to a family or household member.” “A
person acts knowingly, regardless of his purpose, when he is aware that his conduct will
probably cause a certain result or will probably be of a certain nature. A person has knowledge
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of circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B).
Ms. Humbert-Williams testified that her son, Craig Humbert, punched her in the jaw with a
closed fist, choked her, and kicked her in the pelvis. She said that her lip was cut, her jaw was
bruised, and she had trouble walking for several weeks after the incident due to pain in her hip
and pelvis. The State offered photographs taken by police officers on the night of the incident
showing an injury to her face. Officers testified that, when they arrived, Ms. Humbert-Williams
was sitting with her grandson in front of the apartment. She looked as though she had been
crying, and officers noticed blood around her mouth and a swollen lip. Officers testified that the
child was helping her move around because she was having great difficulty walking. The
officers testified that they took her to the police station to fill out a statement, sign a complaint,
and request a civil protection order.
{¶6} The evidence indicated that Ms. Humbert-Williams was a “[f]amily or household
member” of Mr. Humbert because she is his parent with whom he resided at the time of the
incident. R.C. 2919.25(F)(1)(a)(ii). Ms. Humbert-Williams testified that Mr. Humbert punched,
choked, and kicked her. Viewing the evidence in a light most favorable to the prosecution, it
could have convinced the average finder of fact of Mr. Humbert’s guilt beyond a reasonable
doubt. State v. Jenks, 61 Ohio St. 3d 259, paragraph two of the syllabus (1991).
{¶7} Mr. Humbert has argued that his mother’s testimony about the incident was
“inconsistent and incapable of being believed by the jury.” He has argued that Ms. Humbert-
Williams admitted on cross-examination that she did not write in her statement to police that Mr.
Humbert had choked her and kicked her in the pelvis. Officer Meech testified, however, that
when he first arrived on the scene, Ms. Humbert-Williams told him that she could not stand up
by herself because her son had kicked her. Another officer testified that Ms. Humbert-Williams
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demonstrated how Mr. Humbert had bent her over the balcony with his hands at her shoulders
and chest. Ms. Humbert-Williams explained that she could not breathe while her son was
forcing her body backward over the railing by pushing on her neck and chest. Mr. Humbert has
also argued that there was a discrepancy in Ms. Humbert-Williams’ testimony about who had
thrown the food to the floor during the incident. Despite the efforts of Mr. Humbert’s lawyer,
the trial court did not admit any evidence indicating that there was a discrepancy in what Ms.
Humbert-Williams told police on the night of the incident versus her testimony at trial regarding
who had thrown the food. Further, Ms. Humbert-Williams never wavered in her testimony about
her son punching her in the jaw, choking her over the banister, and kicking her in the pelvis. We
cannot say that the jury clearly lost its way in resolving the conflicts in the evidence and created
such a manifest miscarriage of justice that the domestic violence conviction must be reversed and
a new trial ordered. State v. Otten, 33 Ohio App. 3d 339, 340 (9th Dist. 1986). The evidence is
sufficient to support the conviction, and that conviction is not against the manifest weight of the
evidence.
Violation of a Protection Order
{¶8} Mr. Humbert was also convicted of violating a protection order. Under Section
2919.27(A)(1) of the Ohio Revised Code, “[n]o person shall recklessly violate the terms of any .
. . protection order issued . . . pursuant to section 2919.26 . . . of the Revised Code[.]” “A person
acts recklessly when, with heedless indifference to the consequences, he perversely disregards a
known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature.
A person is reckless with respect to circumstances when, with heedless indifference to the
consequences, he perversely disregards a known risk that such circumstances are likely to exist.”
R.C. 2901.22(C).
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{¶9} Ms. Humbert-Williams testified that she saw her son, Craig Humbert, directly
across the street from her Fern Street apartment talking to a neighbor on November 30, 2011.
She said that she was looking out the front window, waiting for the mailman when she saw Mr.
Humbert across the street. The evidence indicated that Mr. Humbert had signed the temporary
protection order that forbade him from coming within 100 yards of his mother. Officer James
Alexander testified that Ms. Humbert-Williams was upset when he arrived at her Fern Street
apartment on November 30. He said that he walked across the street to the home of Robert
Perkins to investigate. The officer testified that he believed the distance between the two houses
was 75 to 100 feet, but that it was certainly less than the 100-yard radius prohibited by the
protection order. Another officer testified that, when he arrested Mr. Humbert on the charge of
violating the protection order, Mr. Humbert told him that he passed his mother’s apartment while
walking to the corner store.
{¶10} Viewing the evidence in a light most favorable to the prosecution, it could have
convinced the average finder of fact of Mr. Humbert’s guilt beyond a reasonable doubt. State v.
Jenks, 61 Ohio St. 3d 259, paragraph two of the syllabus (1991). Further, having reviewed the
record, we cannot conclude that the jury clearly lost its way in resolving conflicts in the evidence
and created such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered. State v. Otten, 33 Ohio App. 3d 339, 340 (9th Dist. 1986). The evidence
established that Mr. Humbert acknowledged the protection order by signing it just days before he
told police that he walked down Fern Street past his mother’s apartment on his way to the store.
Regardless of whether he knew that his mother was at home at that time, the evidence supported
the conclusion that he was at least reckless in that regard. See R.C. 2901.22(C). Mr. Humbert’s
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conviction for violating a protection order is not against the manifest weight of the evidence. His
first assignment of error is overruled.
HEARSAY
{¶11} Mr. Humbert’s second assignment of error is that the trial court admitted hearsay
testimony from one of the State’s witnesses. He has argued that his mother should not have been
permitted to testify, over his objection, that, during the altercation, her grandson had said, “Uncle
Craig. Stop, Uncle Craig.” Mr. Humbert has argued that the statement was inadmissible hearsay
“offered by the State to show that [Mr. Humbert] did, in fact, cause harm to the victim.”
{¶12} Hearsay is “a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Evid. R.
801(C). “A ‘statement’ is . . . an oral . . . assertion[.]” Evid. R. 801(A)(1). The Ohio Supreme
Court has held that “[a]n ‘assertion’ for hearsay purposes ‘simply means to say that something is
so, e.g., that an event happened or that a condition existed.’” State v. Carter, 72 Ohio St. 3d 545,
549 (1995) (quoting 2 McCormick, Evidence, Section 246, at 98 (4th Ed. 1992)). It has also held
that “a true question or inquiry” is non-hearsay by definition because it “is by its nature
incapable of being proved either true or false and cannot be offered ‘to prove the truth of the
matter asserted[.]’” Id. Similarly, a command is generally also non-hearsay by definition. See
Kellough v. Ohio State Bd. of Educ., 10th Dist. No. 10AP-419, 2011-Ohio-431, ¶ 52; State v.
Rebuelta, 5th Dist. No. 2006 CA 00134, 2007-Ohio-6468, ¶ 102 (Hoffman, J., concurring).
{¶13} “Ohio has implicitly endorsed” the “predominate position in interpreting Federal
Rule 801(c),” that is, the modern “‘assertion-oriented’ approach to the admissibility of indirect or
implied assertions of beliefs[.]” Glen Weissenberger, Ohio Evidence Treatise, Section 801.6, at
22, 24 (2011); see also, 5 Wigmore, Evidence, Section 1362 n.1 (Chadbourn Rev. 1974)
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(discussing history of the treatment of non-assertive conduct and emergence of the modern
approach). Just as non-verbal conduct is a “statement” as defined by Evidence Rule 801(A) only
if it was “intended by the [declarant] as an assertion,” an utterance including an unintended
“implied assertion” is not a “statement” under the rule and, therefore, is not hearsay by
definition. Evid. R. 801(A); Weissenberger at 22, Section 801.6 (citing United States v. Zenni,
492 F. Supp. 464 (E.D. Ky. 1980) (holding that “utterances of . . . [bettors] telephoning in their
bets were nonassertive verbal conduct, offered as relevant for an implied assertion to be inferred
from them, namely that bets could be placed at the premises being telephoned.”) (Zenni, 492 F.
Supp. at 469).
{¶14} The hearsay rule is generally aimed at excluding out-of-court “assertions offered
testimonially” because they are deemed “not sufficiently trustworthy to be fit to be considered by
the tribunal unless and until they have been put to the fire of cross-examination, so that error
arising ‘from a corrupt desire and intention to pervert the truth,’ as well as from deficiencies in
observation, recollection and expression, may be exposed.” 5 Wigmore, Evidence, Section 1362
n.1, at 4-5 (Chadbourn Rev. 1974) (quoting Falknor, Silence as Hearsay, 89 U. Pa. L. Rev. 192,
194-196 (1940)). Thus, the exceptions to the hearsay rule are largely based on “circumstantial
guarant[ies] of trustworthiness surrounding the hearsay declaration that tend[ ] to assure
truthfulness of the hearsay testimony despite the absence of the oath and cross-examination.”
1980 Staff Note, Evid. R. 803. In the absence of a declarant’s intent to assert that something is
so, the “minimal” “dangers” associated with the untested nature of “the perception, memory, and
narration (or their equivalents) of the [declarant]” “do not justify the loss of the evidence on
hearsay grounds.” 1972 Advisory Committee Note, Fed. R. Evid. 801(a) (discussing nonverbal
conduct and noting that “[s]imilar considerations govern nonassertive verbal conduct”).
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{¶15} In this case, the contested utterance as described by the witness is similar to the
non-verbal act of physically intervening in an attempt to stop a fight. Although in the context of
Ms. Humbert-Williams’s testimony, the child’s statement to Mr. Humbert to “[s]top” includes an
implied assertion that Mr. Humbert was attacking Ms. Humbert-Williams, the child did not
intend it to be an assertion. That is, the child did not intend to “say that something is so, e.g.,
that an event happened or that a condition existed.” State v. Carter, 72 Ohio St. 3d 545, 549
(1995) (quoting 2 McCormick, Evidence, Section 246, at 98 (4 Ed. 1992)). Thus, the child’s
utterance is not a “statement” as defined by Evidence Rule 801(A) because it was not intended as
an assertion. Therefore, the utterance is excluded from the definition of hearsay. The trial court
correctly admitted Ms. Humbert-Williams’s testimony as it did not include hearsay. Mr.
Humbert’s second assignment of error is overruled.
CONCLUSION
{¶16} Mr. Humbert’s first assignment of error is overruled because his convictions are
supported by sufficient evidence and are not against the manifest weight of the evidence. His
second assignment of error is overruled because his nephew’s statement, offered through Ms.
Humbert-Williams’s testimony, is not hearsay. The judgment of the Summit County Common
Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
BELFANCE, J.
CONCURS IN JUDGMENT ONLY.
CARR, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶17} I concur in judgment only in regard to the six-year-old child’s alleged hearsay
statements. Assuming without deciding that this testimony was hearsay, I would find it to be
harmless error. See State v. Daniels, 9th Dist. No. 03CA008261, 2004-Ohio-828, ¶ 34.
APPEARANCES:
NOAH C. MUNYER, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.