State v. Houston , 2022 Ohio 3869 ( 2022 )

[Cite as State v. Houston, 2022-Ohio-3869.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-21-52
v.
ANTHONY J. HOUSTON, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2020 0418
Judgment Affirmed
Date of Decision: October 31, 2022
APPEARANCES:
Allison F. Hibbard for Appellant
Jana E. Emerick for Appellee
Case No. 1-21-52
SHAW, J.
{¶1} Defendant-Appellant, Anthony J. Houston (“Houston”), appeals the
October 20, 2021 judgment and sentence entered in the Common Pleas Court of
Allen County following his no contest plea to a charge of aggravated burglary with
firearm and repeat violent offender specifications. Plaintiff-Appellee is the State of
Ohio.
{¶2} This case arises from a November 4, 2020 incident regarding a potential
burglary where there was a gun involved. On December 17, 2020, an indictment
was filed charging Houston with aggravated burglary, a felony of the first degree,
with specifications. Houston filed a written plea of not guilty, and his trial date was
continued twice by the defense to July 19, 2021.
{¶3} On July 16, 2021, the State filed a notice of intent to introduce at trial,
pursuant to Evid.R. 804(B)(6), certain prior out of court statements made by two
witnesses in the case. Houston also filed a motion in limine requesting that the trial
court issue an order prohibiting the State from introducing at trial the statements
upon which the State’s notice of intent focused. At issue in those filings was the
potential admissibility at trial of prior statements by Jordan Crowder (the alleged
victim in the case) to police and Crowder’s prior preliminary hearing testimony, and
also prior statements made by Charles Oberlin (a witness in the case).
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{¶4} On the day of trial and after noting that the jury was seated but not
present in the courtroom, the trial court held a hearing on the State’s notice of intent
to present hearsay evidence and Houston’s motion in limine opposing the same. At
the conclusion of the hearing, the trial court found that Jordan Crowder was
unavailable and the court ruled that Evid.R. 804(B)(1) would allow the transcript of
Crowder’s preliminary hearing testimony to be admitted at trial. The trial court
further found, pursuant to Evid.R. 804(B)(6), that Crowder’s prior statements to
Detective Jennings would be admissible at trial due to forfeiture by wrongdoing on
Houston’s part. Finally, the trial court ruled that while Charles Oberlin was also
unavailable, Oberlin’s statements did not qualify for admissibility at trial pursuant
to Evid.R. 804(B)(6) on the basis of the evidence presented at the hearing.
Houston’s counsel then requested a brief recess to speak with Houston which the
trial court granted. Shortly after that, the trial court came back on the record to
address dismissing an ill juror and the court again took a recess.
{¶5} When the trial court reconvened on the record, Houston’s counsel
indicated to the trial court that it was Houston’s intention to plead no contest to the
indictment. Following an inquiry by the trial court and after Houston signed a
written negotiated plea of no contest, the trial court then accepted Houston’s plea
and entered a finding of guilty. The matter of sentencing was continued until
September 9, 2021, pending the completion of a pre-sentence investigation report.
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{¶6} On August 5, 2021, Houston’s counsel filed a motion to withdraw the
plea and a motion to withdraw as counsel, because of counsel’s new employment.
The motion to withdraw as counsel was granted, and an Allen County Assistant
Public Defender appointed. An amended motion to withdraw the plea was filed.
The trial court held a hearing on the motion on September 9, 2021, instead of the
previously scheduled sentencing hearing. The trial court overruled the motion to
withdraw the plea.
{¶7} Thereafter, at sentencing, the trial court imposed an aggregate sentence
of a minimum of nineteen years and a maximum of twenty-four and one-half years
in prison. Houston filed this appeal raising two assignments of error, which we
address jointly.
ASSIGNMENT OF ERROR NO. 1
The trial court abused its discretion in finding Jordan Crowder
to be unavailable and permitting his testimony from the
preliminary hearing to come into evidence.
ASSIGNMENT OF ERROR NO. 2
The trial court abused its discretion in finding Jordan Crowder’s
out of court statements to be admissible due to forfeiture by
wrongdoing.
{¶8} In this case, Houston argues that the trial court abused its discretion in
finding Jordan Crowder to be an unavailable witness and, further, in ruling that
Crowder’s prior preliminary hearing testimony and Crowder’s prior statements to
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police would qualify for admission at trial pursuant to Evid.R. 804(B)(1) and
Evid.R. 804(B)(6), respectively. The State responds that by pleading no contest,
Houston waived and did not preserve for appellate review his evidentiary argument.
{¶9} The issues which may be raised on appeal from a no contest plea are set
forth in Crim.R. 12(I), which states:
(I) Effect of Plea of No Contest. The plea of no contest does not
preclude a defendant from asserting upon appeal that the trial
court prejudicially erred in ruling on a pretrial motion, including
a pretrial motion to suppress evidence.
{¶10} Crim.R. 12(C) defines a pretrial motion as “any defense, objection,
evidentiary issue, or request that is capable of determination without the trial of the
general issue.” “The established rule in Ohio is that the grant or denial of a motion
in limine is not a ruling on the evidence.” State v. Thompson, 3d Dist. Union Nos.
14-04-34 and 14-04-35, 2005-Ohio-2053, ¶ 26, citing State v. Grubb, 28 Ohio St.3d
199, 200-201 (1986). As explained by this Court in State v. Miller, 3d Dist. Allen
No. 1-18-17, 2018-Ohio-4648: “ ‘A ruling on a motion in limine reflects the court’s
anticipated treatment of an evidentiary issue at trial and, as such, is a tentative,
interlocutory, precautionary ruling.’ ˮ Miller at ¶ 8, quoting State v. French, 72
Ohio St.3d 446, 450 (1995). More specifically, a no contest plea after an adverse
ruling in limine does not preserve error for review. Id. at ¶ 10; State v. Felts, 4th
Dist. Ross No. 13CA3407, 2014-Ohio-2378, ¶ 16 (“a no contest plea precludes an
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appeal from a trial court’s pretrial rulings on a motion in limine regarding the
admissibility of evidence”).
{¶11} In this case, rather than proceeding to trial and thereby opposing the
introduction of the disputed evidence in order to preserve for appeal any error in the
trial court’s ruling on the admissibility of that evidence, Houston pleaded no contest
to the indictment. As a result of his no contest plea, Houston waived his right to
challenge on appeal the trial court’s in limine ruling. See Miller at ¶ 10.
{¶12} Accordingly, Houston’s two assignments of error are overruled, and
the judgment of the trial court is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and MILLER, J. concur
/jlr
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