State v. Smith , 2023 Ohio 603 ( 2023 )

[Cite as State v. Smith, 2023-Ohio-603.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111274
GARRY F. SMITH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART; REVERSED IN
PART; VACATED IN PART; REMANDED
RELEASED AND JOURNALIZED: March 2, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-20-651674-A and CR-20-655568-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Lisa J. Turoso, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Noelle A. Powell, Assistant Public Defender, for appellant.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant Garry Smith (“Smith”) appeals his convictions for
domestic violence in Cuyahoga C.P. No. CR-20-651674-A (“651674”) and his
convictions for felonious assault and domestic violence in Cuyahoga C.P. CR-20-
655568-A (“655568”) following a bench trial. Smith contends that the trial court
erred by admitting evidence of out-of-court statements made by the alleged victim,
who did not testify at trial, in violation of his rights under the Sixth Amendment’s
Confrontation Clause and the rules of evidence. Smith also contends that (1) his
guilty verdicts are against the manifest weight of the evidence, (2) he was denied a
right to trial by jury because, due to COVID-related delays, he was forced to choose
between “continued confinement in the county jail” and “his right to a jury of his
peers” and (3) the trial court erred in sentencing him to an indefinite sentence in
655568 because the indefinite sentencing provisions of the Reagan Tokes Law are
unconstitutional.
For the reasons that follow, we (1) reverse the trial court’s decision and
vacate Smith’s convictions in 651674 and (2) affirm the trial court’s decision in
655568.
I. Factual Background and Procedural History
In 651674, a Cuyahoga County Grand Jury indicted Smith on two
counts of domestic violence in violation of R.C. 2919.25(A), a fourth-degree felony.
Count 1 included a pregnant victim specification; both counts included a
furthermore clause, alleging that Smith had previously pleaded guilty to or had been
convicted of domestic violence in November 2012. The charges related to Smith’s
alleged assault of Barbara Bradley on March 21, 2020.
Following the March 21, 2020 incident, Smith was arrested and
released on bond. One of the conditions of his bond was that he was to have no
contact with Bradley. Smith was arraigned on November 24, 2020, and his bond
was continued with the condition that he have no contact with Bradley. Smith pled
not guilty to all charges.
In 655568, a Cuyahoga County Grand Jury indicted Smith on three
counts: one count of felonious assault in violation of R.C. 2903.11(A)(1), a second-
degree felony (Count 1); one count of felonious assault in violation of R.C.
2903.11(A)(2), a second-degree felony (Count 2) and one count of domestic violence
in violation of R.C. 2919.25(A), a fourth-degree felony (Count 3). The felonious
assault counts included one- and three-year firearm specifications. The domestic
violence count included a one-year firearm specification and a furthermore clause,
alleging that Smith had previously pleaded guilty to or been convicted of domestic
violence in November 2012. The charges related to Smith’s alleged assault of
Bradley on December 26, 2020. Smith was arrested on December 26, 2020 for that
alleged assault and released on bond two days later. Smith pled not guilty to all
charges.
A. Motions in Limine and Other Pretrial Proceedings
Following Smith’s indictment in 655568, the state filed a motion to
revoke his bond in 651674. In its motion, the state asserted that Smith had admitted
to having been in contact with Bradley, although he denied injuring her. A hearing
was set on the motion. Smith failed to appear for the hearing. Smith’s bond was
revoked and a capias was issued. A few days later, Smith was again arrested, and a
holder was placed on him due to the new charges in 655568. On February 18, 2021,
Smith filed a motion to reinstate bond and remove holder in both cases. The trial
court denied the motion. On March 11, 2021, Smith filed a motion to set and/or
reinstate bond in both cases. The trial court denied the motion. On April 16, 2021,
Smith filed a motion to be released from detention and to be placed in an ankle
bracelet in both cases. The motion was denied. On August 17, 2021, Smith filed a
motion to dismiss for failure to provide a speedy trial in both cases.
On September 24, 2021, Smith filed a combined motion in limine in
both cases, seeking to preclude the state from introducing evidence of (among other
things) out-of-court statements by Bradley captured on police body camera
recordings “without having the victim actually testify in court” on the grounds that
it would violate the Confrontation Clause and the rules of evidence. Smith also
sought to preclude the introduction of “any and all ‘dispatcher calls”’ due to “the
unavailability to counsel[,] * * * the hearsay content of these calls and the inability
to cross[-]examine the speaker of the calls.” On September 27, 2021, Smith filed a
second motion in limine in both cases, seeking to preclude the introduction of “[a]ny
and all portions of the victim’s medical records that contain the HISTORY of the
alleged offense(s).” Smith argued that the admission of such medical records,
“without having the victim testifying in court,” would “constitute hearsay and would
totally prevent cross[-]examination of the victim” in violation of his rights and this
court’s decision in State v. Simmons, 8th Dist. Cuyahoga No. 98613, 2013-Ohio-
1789.1
In response, the state asserted that it had subpoenaed Bradley to testify
in these cases and indicated that “[i]f the victim appears, the [s]tate will question
her about these things.” However, the state further asserted that if Bradley did not
appear for trial, evidence of her statements would nevertheless be admissible
“pursuant to the primary purpose test” because “[t]he officers were at the house to
meet an ongoing emergency.” With respect the “history” reflected in Bradley’s
medical records, the state asserted that “[t]hese statements have long been deemed
admissible pursuant to Ohio Evid.R. 803(4).”
On November 30, 2021, the state filed a motion for joinder of the two
cases. Smith opposed the motion and filed a motion for separate trials.
1In Simmons, the trial court, over the defendant’s objection, allowed a sexual
assault nurse examiner who had treated the rape victim to read a “narrative” she had
asked the victim to provide that described the rape “in [the victim’s] own words” into
evidence at trial. Id. at ¶ 23-24. On appeal, this court stated that although the information
the victim provided “concerning [her] physical injuries and how she was raped” was
“necessary for proper medical treatment and diagnosis,” it could “find little evidence to
suggest that [the victim’s] narrative aided in any sort of diagnosis or medical treatment”
and found that “the details provided by [the victim] in the narrative, such as how she met
[the defendant], [the defendant’s] statements and demeanor during the rape, and [the
victim’s] actions following the rape, were not for the purpose of medical treatment, but
rather related primarily to the investigation of [the defendant].” Id. at ¶ 25. As such, the
court determined that the narrative did not fall within the hearsay exception set forth in
Evid.R. 803(4) and that the trial court had erred in admitting evidence of the narrative.
Id. at ¶ 26. In that case, however, the victim “took the stand” at trial, “provided substantial
testimony regarding the events of the night, including the information provided in the
narrative” and defense counsel “conducted a substantial cross-examination” of the victim.
Under those circumstances, the court held that the defendant’s rights under the
Confrontation Clause were not violated and that the trial court’s error in admitting
evidence of the narrative was harmless beyond a reasonable doubt. Id. at ¶ 26-29.
On December 1, 2021, Smith waived his right to a jury trial. The trial
court granted the state’s motion for joinder, denied Smith’s motion for separate
trials and the cases proceeded to a bench trial.
Before trial commenced, the trial court allowed the parties to present
oral argument on Smith’s motions in limine. Smith reiterated the arguments set
forth in his motions, i.e., that the statements at issue were elicited “for investigative
purposes” and that admission of body camera footage and other evidence of the
absent witness’ statements would violate his right of confrontation and the rules of
evidence. Defense counsel further explained his concerns as follows:
I’ve had cases where they hide the victim, they tell them, [w]e don’t
need you if you don’t come down, when in fact they’re available and
want to come down, Judge. I don’t know what’s going on here. I mean,
I have the right of cross-examination. * * * [S]ome other people that did
that to me and I’m sensitive to that.
The trial judge acknowledged defense counsel’s concerns and
indicated that she did not believe that was happening in this case:
Well, I think you have the assurance of the prosecutors representing
the State of Ohio that that is not the case. They have subpoenaed the
victim, they are anticipating her presence.
The state asserted that although it “intend[ed] to call the victim,”
Bradley had not appeared to testify.2 The state argued that regardless of the
2 During its argument on the motions in limine, the state suggested that Smith may
have had an active role in Bradley’s failure to appear to testify. The state claimed that
hundreds of calls had been made to various telephone numbers associated with Bradley
using Smith’s pin while he was in jail awaiting trial. No evidence was presented regarding
these alleged calls or the content of these alleged calls, and the state did not file a motion
for forfeiture for wrongdoing. Accordingly, we do not further consider the issue here.
appearance of Bradley, her statements were admissible under numerous hearsay
exceptions as statements “made for medical diagnosis and treatment,” statements
“describ[ing] her physical condition” and statements made “under the stress and
excitement of the event.” With respect to Smith’s Confrontation Clause concerns,
the state asserted that admission of evidence of Bradley’s statements related to the
March 21, 2020 incident would not violate the Confrontation Clause because “[t]hey
were taken in the back of an ambulance,” “the victim [was] describing her injuries”
and Smith had “shortly left” and officers were “concerned about his whereabouts.”
The state further asserted that evidence of Bradley’s statements related to the
December 26, 2020 incident “would be offer[ed] under the primary purpose test of
an ongoing emergency” and that those statements, made while Bradley was “all
bloodied,” after Smith had left with a weapon and officers were “concerned about
finding him,” “were clearly not testimonial statements.”
After listening to the parties’ arguments, the trial court stated:
I have to consider whether * * * [t]he primary purpose of a conversation
captured on body camera is made for the purpose of an out-of-court
substitution of trial testimony or if it’s made during an ongoing
investigation. I haven’t seen or heard the body camera. * * * The law
allows for evidence-based prosecution in domestic violence cases
where the victim is unavailable.
After further consideration, the trial court denied Smith’s motions in
limine. Citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d
177 (2004), and State v. Tomlinson, 8th Dist. Cuyahoga No. 109614, 2021-Ohio-
1301, the trial court stated that “[t]o determine whether a statement is testimonial
or nontestimonial, we have to consider whether a reasonable person in the
declarant’s position would anticipate that his or her statement is being used against
the accused in investigating and prosecuting the case.” The trial court indicated that
Tomlinson was “similar to the facts presented by counsel with regard to the evidence
at issue here” and that, therefore, “the body camera or 911 calls or the evidence the
State seeks to present is nontestimonial in nature.” The trial court further stated
that it would determine the admissibility of the evidence, i.e., whether the
statements “fall within a firmly rooted hearsay exception” such as the excited-
utterance exception, “at such time as the evidence is presented.”3 The trial court
also denied Smith’s motion to dismiss for failure to provide a speedy trial.
B. Trial
Bradley did not appear to testify at trial.4
The state presented testimony from six witnesses at trial: Cleveland
police officers Brandon Melbar (“Melbar”), Jared Germaine (“Germaine”), Colbert
Stadden (“Stadden”) and Brian Soucek (“Soucek”); 911 “call-taker”/dispatcher
3 It is not clear from the record whether the trial court reviewed the body camera
footage or other evidence of Bradley’s statements prior to determining that Bradley’s
statements were nontestimonial and denying Smith’s motions in limine. When the
parties argued the motions, the trial court stated that “it [hadn’t] seen or heard the body
camera,” but it is not clear if the trial court reviewed the body camera footage or any other
evidence during a recess, prior to ruling on the motions in limine.
4 The record reflects that Bradley was served with a subpoena for the December
2021 trial. However, there is nothing in the record to indicate that a bench warrant was
requested or issued to secure Bradley’s appearance as a material witness at trial when she
failed to appear in response to the subpoena. The state confirmed, during its appellate
oral argument, that a bench warrant had not been requested or issued for Bradley.
Jessica McDougler (“McDougler”); and Cleveland police detective William
Cunningham (“Cunningham”). In addition to the witness testimony, the state
introduced photographs of Bradley’s injuries (state exhibit Nos. 3-7 and 9), the
audio recording of Bradley’s 911 call relating to the December 26, 2020 incident
(state exhibit No. 8), excerpts of footage from the body cameras of Melbar and
Soucek (state exhibit Nos. 2 and 12) and a certified copy of a docket listing that
included a journal entry reflecting Smith’s prior conviction for domestic violence on
November 26, 2012 in Cleveland M.C. No. 2012-CRB-37229 (state exhibit No. 11).
The parties also stipulated to the admission of Bradley’s medical records from
MetroHealth Medical Center dated March 21, 2020 related to the incident (state
exhibit No. 10).
Smith testified in his defense and also presented testimony from his
nephew, Chance Smith (“Chance”). A summary of the relevant evidence follows.
1. Evidence Presented by the State Relating to the
March 21, 2020 Incident
Soucek and Cunningham testified for the state regarding the
March 21, 2020 incident.
Soucek testified that on the evening of March 21, 2020, he and his
partner, Officer Piper (“Piper”), responded to a call regarding “a female assaulted”
that had occurred on Connecticut Avenue in Cleveland. He stated that the incident
had occurred “on the street somewhere.” Soucek did not know exactly when the
incident occurred but stated that the victim, later identified as Bradley, was “already
being escorted into the EMS wagon” when they arrived. Soucek indicated that he
had been wearing, and had activated, his body camera that evening. Over Smith’s
objection, the state introduced footage from Soucek’s body camera (state exhibit No.
12), which recorded the officers’ interrogation of Bradley while she was in the back
of the ambulance. The state played excerpts5 of the body camera footage (video and
audio recordings), which Soucek acknowledged was a “fair and accurate depiction
of what [he] saw that night,” for the trial court. Rather than having Soucek testify
based on his own recollection of the events, the state asked Soucek to describe what
he observed on the body camera footage and, at times, to repeat what Bradley had
said as heard on the body camera footage while the trial court viewed the body
camera footage:
Q. I’m stopping at 2:03. What did we just hear on the body cam the
victim say?
[Defense Counsel]: Objection. Let it speak for itself.
THE COURT: Overruled.
A. She stated that her fiancé assaulted her and also ripped her hair.
Q. Specifically, what else? That’s all right, I’ll just hit Play. Now, I’m
stopping at 3 minutes 4 seconds, and just prior to this you could see
something with the victim. Can you describe what you see?
Soucek testified that, as seen in the body camera footage, the right side
of Bradley’s face was “very swollen,” her “eye was swollen shut,” “little spots of blood
5 Although state exhibit No. 2 contains approximately eight-and-one-half minutes
of body camera footage, the record reflects that state played only six minutes and 42
seconds of that footage during Soucek’s testimony.
and glue” were visible where her hair had been ripped out and she appeared “very
disheveled” with ger shirt “ripped, dirty” like she “was in a fight.”
The body camera footage captured the following colloquy as the
officers interviewed Bradley while she was in the back of the ambulance being
treated by EMS:
Q. So what happened?
A. My fiancé beat me up ‘cuz I had an argument with his niece. Me
and his niece had an argument. This is what he did. He pulled
my hair up on the roots.
Q. Do you live with him?
A. We do live together.
Q. Who’s this? Was this your niece here? She said you’re five
months pregnant? Does that sound about right? Did you take
any kicks or punches or anything to the stomach?
A. To my knee, to my chest, to my stomach. I no longer feel my
baby moving.
Q. Where did this happen at?
A. Outside.
Q. Outside where? In front of this house here?
A. * * * We were down the street.
Q. * * * Do you live over here?
A. No. We were on our way to her house but it didn’t happen in her
house.
Q. But it happened down the street here?
A. We had an argument and, you know, we were all, we were
drinking. I’m not even supposed to be drinking.
Q. So, it happened in the car?
A. Outside the car.
Q. So, is he still in the area, or did he drive away?
A. No. He drove away. He left.
In response to further police inquiries, Bradley provided officers with
her name and date of birth, Smith’s name and date of birth and their address in East
Cleveland. EMS personnel observed that Bradley’s heart was “beating real fast” and
placed a heart monitor on Bradley. When asked by EMS personnel whether she had
taken any drugs, Bradley stated: “I snorted cocaine when he beat me up. I snorted
a couple rounds of cocaine.” Bradley further indicated that she was pregnant with
her sixth child and that Smith was the baby’s father. As officers continued to
question Bradley, she provided additional details regarding the incident:
Q. Can you tell me exactly what he did at the car?
A. He punched me in my face and other people were trying to break
it up and he pushed everybody away. He threatened to shoot me
and said he would kill me. He was also intoxicated. Very
intoxicated.
Q. And he ripped out your hair?
A. He ripped out my hair. This is what he did to me. He kneed me
to the face, the chest, stomach. * * *
Soucek testified that when the officers arrived on scene, Bradley’s
“aunt” was present, i.e., that Bradley had gone to her aunt’s house to call for help
and that her “aunt called it in.”6 Soucek stated that his partner, Piper, interviewed
Bradley’s aunt but that the aunt did not witness the incident.
EMS transported Bradley to the hospital; the officers followed Bradley
to the hospital. At the hospital, officers further questioned Bradley and a supervisor
took photographs of her injuries for the police report. Soucek identified the
photographs of Bradley’s injuries (state exhibit No. 9) and confirmed that they fairly
and accurately depicted Bradley’s injuries as he had observed them the night of the
incident.
Soucek testified that although Bradley made no mention of a weapon
when the officers were questioning her while she was in the ambulance. However,
at the hospital, “[w]hile she was receiving treatment,” Bradley told him that Smith
had a gun on him that day and that he had assaulted her previous times but was
“unsure if they were reported.” The officers’ interrogation of Bradley at the hospital
was not captured on the body camera footage admitted into evidence at trial.
Cunningham was the detective assigned to investigate the March 21,
2020 incident. He testified that, in investigating the March 21, 2020 incident, he
reviewed the police report, researched Smith’s criminal history, reviewed
6 The body camera footage contradicts this testimony slightly. The body camera
footage reflects that police responded to the home of Bradley’s niece and that it was
Bradley’s niece who called 911. At the end of the body camera footage (state exhibit No.
12), an unidentified person, presumably Bradley’s niece, states: “She just got here about
20 minutes ago, and, when she got here, the first thing I did was call EMS because that’s
my aunt. I don’t know who she was with. She stay all the way in East Cleveland but
whoever she was with had to be on this side of town and dumped her off, and she knocked
on my door.”
photographs of Bradley’s injuries and obtained a search warrant to obtain Bradley’s
medical records relating to the incident. Cunningham identified the photographs,
medical records and a journal entry reflecting Smith’s prior conviction for domestic
violence on November 26, 2012.
Bradley’s medical records include an “emergency department – visit
note,” dated March 21, 2020, which states, in relevant part, as follows:
The history is provided by the Patient.
[Bradley] is a 38 year old female with a history of drug use per chart
review presenting to the ED as a Cat 2 trauma after an assault.[EM.1] Pt
states that her boyfriend was drunk and showing off, so hit and knocked
her in the face and stomach. Denied LOC or AC. Had been drinking
tonight herself. Says that she took some cocaine for the pain after. This
is her 6th pregnancy. Is not feeling the baby move anymore — did
before. No vaginal leakage or leakage for fluids. Thinks she is 5
months. Was lightheaded earlier, not currently. Has diffuse arm and
abdominal pain. Also c[JV.1]omplaining [sic] of facial pain in the trauma
bay.[EM.1] Denies tingling/numbness/weakness anywhere,
incontinence, IVDA[BG.1][.]
The medical records also include a “Consult Note,” which states, in
relevant part:
HPI: [KB.1] [Bradley] [KB.2] is a[KB.1] 38 year old[KB.2] G[KB.1]6[KB.3]P4105[KB.1]
at [KB.3] 22w3d[KB.4] gestation[KB.3] who presents[KB.1] to the ED s/p assault
by FOB/fiancé. Patient reports that they were both intoxicated (alcohol
+ cocaine). After a short verbal altercation, he punched her in the face
multiple times, pulled her hair out, then kneed/kicked her in her chest
and abdomen. Patient reports facial and abdominal pain. She denies
and contractions. * * * Active fetal movement prior to altercation.
Currently not feeling any in the ED.
Cunningham testified that he had attempted to speak with Bradley to
“find out her side” regarding the incident but was unable to do so. He indicated that,
at that time, the department had “a standard” of attempting to contact a victim three
times and “after that, then we have to take the facts to the prosecutor of what we
have.” He stated that, in his experience, it is “not uncommon” for victims of
domestic violence “to not want to speak with law enforcement.”7
2. Evidence Presented by the State Relating to the
December 26, 2020 Incident
Melbar, Germaine, Stadden, McDougler and Cunningham testified for
the state regarding the December 26, 2020 incident.
McDougler was working as a 911 “call-taker” on December 26, 2020,
when she received a call from Bradley The state played an audio recording of the
911 call for the trial court (state exhibit No. 8), which McDougler confirmed was a
fair and accurate recording of the 911 call she received from Bradley
At the outset of the 911 call, Bradley told McDougler that she needed
police at her home, gave her name and address and said, “He left. He’s leaving. * * *
He’s leaving in the truck.” McDougler asked, “What’s going on?” Bradley replied:
“He beat me. He beat me bad. He beat me with a gun.” In response to further
inquiries, Bradley identified her assailant as Smith and provided his date of birth
and a description of the vehicle in which he had left. Bradley stated that she did not
know in which direction Smith went when he left. Bradley denied that she needed
an ambulance and stated, “I think I’ll be ok, but I do need them * * * to help me get
my face together. Ok? I am beat real bad.” When asked where the gun was, Bradley
7 Although Bradley had told the officers that others had witnessed the March 21,
2020 incident and had tried to break up the fight, there is no evidence that Cunningham
or any of the other officers attempted to locate or interview any of those witnesses.
stated: “He might have got rid of it because he left. He left. He left. He left.”
McDougler indicated that they would “get someone out there” and ended the call.
Melbar testified that at approximately 5:15 a.m. on December 26,
2020, he and his partner, Germaine, responded to a domestic violence call for “a
female assaulted” at a residence on Parkhill Avenue in Cleveland. When the officers
arrived at the residence, they knocked on the door and a female, later identified as
Bradley, opened the door. Bradley was the only person in the residence at that time.
Melbar stated that Bradley was bleeding, had “a large laceration to her head” and
“severe swelling” that was “really bad.” Germaine stated that when Bradley came to
the door, “[s]he had a very serious-looking head trauma with a lot of blood.”
Melbar and Germaine entered the residence and began to speak with
Bradley Germaine described Bradley as “distraught and a little bit out of it.” Melbar
described Bradley as “afraid,” “really nervous,” “shaking” and “crying.” Melbar
stated that, initially, “[s]he didn’t really want to talk to us that much” but that, as she
calmed down, Bradley told the officers what had happened.
Melbar testified that Bradley told the officers she and her “husband,”
Smith, had gotten into an argument because one of his friends, “Shoulders,”8 had
disrespected her and Smith “didn’t stick up for her.” When the friend left, Smith
“became aggressive,” pulled out a firearm and cocked it. Melbar stated that Bradley
8 In the trial transcript, this friend is referred to both as “Shoulders” and
“Shoulder.” For consistency, we refer to this individual as “Shoulders” throughout.
told him she had asked Smith whether he was going to shoot her and that Smith
said, “No,” and he then pistol-whipped her multiple times.
Germaine testified that Bradley told the officers that she had been in
a physical altercation with Smith “over [an] incident that occurred prior with his
daughter and another male that was on the scene [who was] disrespectful” and that,
during the altercation, Smith had struck her twice in the head with a gun.
The officers were aware of the prior incident involving Bradley’s
daughter. Melbar testified that sometime earlier that day, he and Germaine had
responded to a call at the residence regarding a dispute between Bradley and her
sister. Germaine testified that when the officers arrived at the residence, Bradley’s
daughter was outside. Melbar stated that the officers spoke with Bradley’s daughter
and that she informed them that there had been an altercation among family
members in which she had been pushed by her stepfather. When the officers
approached the home, Smith and Bradley answered the door and identified
themselves but did not allow the officers inside the home.
Melbar testified that at the time of the first “call-out,” Smith, Bradley,
Bradley’s daughter and three or four other people were at the residence. Melbar
stated that Bradley later told the officers that Smith had “supposedly shoved”
Bradley’s daughter while attempting to break up the fight. Germaine testified that
it was his understanding that Bradley’s daughter had gotten “in between the
argument” between Bradley and her sister and that Smith had “pushed [Bradley’s
daughter] out of the way so that he could separate the parties.” Melbar testified that
he had gotten “a good look” at Bradley during the first call-out and that she did not
appear to be injured. Germaine likewise testified that he saw no visible injuries on
Bradley at the time of the first call-out. Germaine identified Smith in court as the
man who had answered the door on that first call-out.
Melbar testified that Bradley told the officers that, after the second
incident, Smith had left the house in a burgundy 2006 Ford Expedition with
temporary tags. Melbar stated that he broadcast the vehicle description to other
patrol officers so they could attempt to locate Smith. Germaine testified that the
officers also requested that EMS respond because they wanted to get Bradley “to a
safe location, to the hospital to get checked out, and make sure that she was all right.”
Melbar testified that it was “[p]robably the worst DV [he had] ever seen” and that “it
was clear that she definitely needed medical attention.” EMS later responded to the
scene.
Melbar and Germaine stated that they did not locate a firearm at the
residence and believed that Smith may have taken the firearm with him when he
left. Melbar indicated that he felt it was important to locate Smith because Bradley
“didn’t want to go with the ambulance” and he feared she would be “in danger” if
Smith returned.
During Melbar’s direct examination, after he provided a brief
overview of what had occurred, the state introduced footage from Melbar’s body
camera (state exhibit No. 2),9 which recorded the officers’ actions and observations
at the scene, including their interview of Bradley, during the second call-out. The
state then played excerpts10 of the body camera footage (video and audio recordings)
for the trial court.11
As captured in the body camera footage, Bradley told the officers, in
response to their inquiries, that she had been upset with Smith following the earlier
altercation in which Smith had pushed Bradley’s 14-year-old daughter. She said that
she told Smith: “Don’t put your hands on my daughter. You’re a whole grown man.
She’s a little girl. She’s 14 years old. Do not hit her like that.” Later in the interview,
Bradley told police that she did not believe Smith had intended to hurt her daughter
and that she “would have been at [her] daughter’s side if he did anything to [her]
daughter.”
Bradley stated that, prior to the second incident, she had also been
upset because Smith’s friend, Shoulders, had been “coming at [her] disrespectfully,”
“going up in my face, talking crazy, telling about what he’s going to do to me” and
9Although Melbar testified that he was wearing his body camera, no body camera
footage was introduced into evidence from the first call-out on December 26, 2020.
10State exhibit No. 2 contains approximately 50 minutes of body camera footage.
According to the state, it played “probably three or four minutes” of that footage during
Melbar’s testimony.
11Before the state played the body camera footage, the trial court noted Smith’s
“ongoing objection to the presentation of this evidence” as set forth in his motions in
limine. The trial court overruled Smith’s objection based on “the same explanation
already given,” i.e., that the evidence was “nontestimonial in nature and admissible under
the hearsay exception.”
Smith had done nothing in response. She indicated that after Shoulders left, an
argument ensued between her and Smith. Bradley told the officers that she asked
Smith why he let Shoulders “disrespect” her. She stated that Smith responded, “F***
you, b****. I don’t give a f*** about you,” and grabbed his gun, a black handgun.
Bradley stated that she asked Smith whether he was going to shoot her and that he
replied, “No, b****.” Bradley said that Smith cocked the gun, but did not shoot her.
She indicated that Smith then “slapped” her “twice” with the gun. She told police
that she believed Smith had pistol-whipped her because “I was talking about s***
that was going on * * * things that was going on earlier today and he didn’t like what
I was saying.”
Bradley told police that after Smith pistol-whipped Bradley, he left in
her vehicle.12 Bradley stated that she did not know whether Smith had taken the gun
with him when he left but that she knew it was not in the house. She indicated that
“he might have gotten rid of it.”
When officers asked Bradley whether Smith had “ever attacked her
like this in the past,” Bradley responded that they had a prior domestic violence case
but that it “wasn’t as serious.” Bradley acknowledged that, this time, it was “pretty
bad.”
Bradley told the officers that she did not want to go to the hospital
because Smith had the only set of keys to the house and she could not lock up the
12
Bradley indicated that she had paid for the vehicle but that Smith had registered
the vehicle in his name.
house and get back in. She indicated that she did not want to give a written
statement and did not want Smith to go to jail.
Melbar testified that Bradley’s face was “extremely bad” and that the
body camera footage, which was “a little bit dark,” did not fully capture her injuries.
He stated that Bradley was bleeding with “severe swelling.” During their testimony,
the officers identified several photographs of Bradley’s injuries that were taken by a
supervisor (state exhibit Nos. 3-7). Melbar also pointed out blood splatter on the
walls and the television, which he said could be seen in the body camera footage.
Melbar testified that the officers eventually convinced Bradley to go to
the hospital and drove her to the hospital, where she received stitches for the
laceration on her head.
Stadden testified that he and his partner had assisted in searching for
the suspect, the victim’s “live-in boyfriend,” in connection with a report of “a female
beaten with a gun, pistol-whipped,” on December 26, 2020. He stated that officers
had been given the suspect’s name, Smith, along with his date of birth, social security
number and a description of the vehicle in which Smith had fled the crime scene —
a 2006 burgundy Ford Explorer — and had been told that Smith was “possibly
armed.” Based on the information provided, additional information, including a
VIN and temporary tag number, were obtained for the vehicle. Stadden stated that
he and his partner observed the vehicle as it turned from Kinsman Road. onto
Martin Luther King Boulevard and conducted a traffic stop.
Stadden testified that, as he approached the driver’s side of the vehicle,
he told the driver to show his hands because “of the seriousness of the crime” and
because he “wasn’t sure if he had a weapon on him.” Stadden stated that the driver
complied, identified himself as Smith and, at Stadden’s request, stepped out of the
vehicle. After patting Smith down, officers placed Smith in the back seat of their
zone car, “Mirandized him” and took him to the Cuyahoga County Jail. Stadden
stated that Smith asked, “What’s going on? What’s this about?” when they stopped
him and told police that he was on his way back home. Stadden identified Smith in
court as the man they had arrested. Melbar and Germaine were still with Bradley at
her home when officers stopped and detained Smith.
Stadden testified that Smith did not resist arrest, that he did not find
any weapons on Smith and that he did not observe any blood on Smith’s hands or
clothes. After arresting Smith, officers inventoried the vehicle; no weapons or
ammunition was discovered in the inventory search.
Cunningham was the detective assigned to investigate the
December 26, 2020 incident. He testified that he spoke with Bradley on December
26 or 27, 2020 by telephone for approximately eight to eight-and-one-half minutes
and recorded the call on his body camera.13 He stated that, at that time, Bradley was
“a little relaxed,” “kind of still upset, but not frantic or anything,” and that she was
able to provide “a clear story of what had happened.” Cunningham indicated that
13 No body camera footage from this interview was introduced at trial.
he took the information Bradley had given him and “presented the facts” along with
the police report and photographs of Bradley’s injuries to the prosecutor.
On cross-examination, Cunningham testified that Bradley had told
him Smith had “assaulted her by punching her” once on December 26, 2020 and
made “[n]o mention of a gun.” On redirect examination, however, he stated that
due to the “severity of the laceration” as depicted in the photographs of Bradley’s
injuries, he believed her injuries were caused by “more than a punch.”
3. Testimony of Defense Witnesses
Chance, Smith’s nephew, testified that Bradley dated his uncle and
that the couple had been together for “many years.” He stated that on December 25-
26, 2020, he had been at Bradley and Smith’s home from sometime in the afternoon
until 1:00 or 2:00 a.m. He indicated that when he was at the house, Smith, Bradley,
Bradley’s sister and her boyfriend, Bradley’s niece, two of Bradley’s sons and
Bradley’s daughter were also there. He stated that everyone was having “a good
time,” “partying, listening to music” and that all the adults, including both Smith
and Bradley, were drinking alcohol.
Chance testified that, at some point that evening, Bradley and her
sister began arguing and “were trying to fist fight in the kitchen.” He stated that they
“got close enough to each other that nobody did too much damage” but that the
argument ended with “cooking grease all over the floor,” so that everyone was
“slipping and falling.” Chance indicated that when the fight started, Smith was
sleeping on the couch. Chance stated that Smith “woke up from the commotion”
and “did what everybody else did * * * try to stop the argument.” Eventually the two
women were separated, and Bradley’s sister left.
Chance testified that after her sister left, Bradley was still “yelling and
belligerent” and got into an argument with her son and daughter. Chance indicated
that by the time he left the home, only Smith, Bradley and Bradley’s daughter
remained. He stated that, at that time, Bradley was drunk and “mad” due to the
argument with her sister, but “looked fine” and did not have any marks on her.
Chance testified that he did not hear Smith and Bradley arguing that
evening, did not see Smith punch or strike Bradley that evening and had never seen
Smith with a gun. Chance testified that he had not seen Smith since that night and
that he did not know what happened after he left.
Smith testified that he and Bradley had been together since 2002 and
that “[w]e say were married because we been together so long.” He stated that the
couple had eight children in total and that their youngest child had just turned one.
He indicated that on the night of December 25, 2020, various family and friends
were at their home to celebrate Christmas.
Smith testified that, at some point that he evening, he woke up to “a
whole lot of noise” and “a whole lot of debris” as Bradley and her sister were in the
dining room fighting. He stated that, while fighting, the two women knocked over
food and cooking grease, broke the fish tank and “tore the house up.” Smith
indicated that he “got in the middle of it trying to break ‘em up.”
Smith stated that, after the fight, he told everyone to get out of the
home and that “when everybody started to get their stuff to leave,” he left too. He
indicated that, at that time, Bradley had no injuries to her face.
Smith testified that after he left, he and his friend Shoulders went
down to “the projects” and that he then got “pulled over” and arrested. He stated
that after he “bonded out” two days later, he came home and observed that Bradley
had “a little scratch on her head.” He indicated that he asked Bradley how she got
the scratch but that Bradley said that it was “nothing but a little scratch,” “a
superficial scratch.” Smith stated that he did not know how Bradley got the scratch
on her head.
Smith testified that Bradley calls the police on him “when she[’s] mad”
because she assumes he is cheating on her and that “she always get mad when me
and [Shoulders] go somewhere together, because she think I’m cheating on her
every time I go out the door: “That’s all she say every time she drink, ‘You’re going
out to cheat.’” Smith claimed that he knew nothing about Bradley’s December 26,
2020 injuries until trial when he saw the photographs of the injuries. Smith denied
that he struck Bradley at any time and denied that he had a gun.
Smith also denied that he had caused Bradley’s injuries on March 21,
2020. Smith testified that, on March 21, 2020, he and Bradley went to a friend’s
house on Warner Road. He stated that Bradley got into a fight with a girl with whom
Bradley had accused Smith of cheating, resulting in a swollen eye. He testified that
Bradley had told him, “I’m gonna do everything I can every time you cheat on me,
I’m gonna make you miserable.” Smith denied striking Bradley and stated that when
he left, Bradley was “fine” and “[e]verybody was down in the basement getting
drunk.” Smith testified that Bradley called him the following day and asked him to
bring her home from the hospital and that he did so.
Smith admitted that he had been talking to Bradley while he was in
jail and stated that all of their calls had been recorded. He indicated that he had
never admitted injuring Bradley and that Bradley had never said to him, “You did
this to me.” He claimed that he had asked Bradley to come to court and testify but
that Bradley told him she was not coming to court because “I already told you[,] you
ain’t did nothing.”
Following the presentation of the evidence, Smith moved for
acquittal, pursuant to Crim.R. 29. After hearing argument, the trial court denied the
motion.
D. Verdicts
On December 3, 2021, the trial court found Smith guilty on all counts,
in both cases, as charged. The trial court referred Smith for a presentence
investigation and report and scheduled a sentencing hearing for the following
month.
E. Sentencing
On January 19, 2022, the trial court conducted a sentencing hearing.
Although Bradley did not testify at trial, she sent a text message to be read at
sentencing, requesting leniency, which the victim advocate read into the record. The
trial court also heard from the state, defense counsel and Smith.
In 655568, the trial court found that the three counts were allied
offenses of similar import that merged for sentencing. The state elected to have
Smith sentenced on Count 2. The trial court ordered that the sentences on the one-
and three-year firearm specifications be served concurrently and that the three-year
sentence on the firearm specifications be served prior to and consecutive to an
indefinite sentence (under the Reagan Tokes Law) of six to nine years on the
underlying offense, resulting in an aggregate sentence of nine to 12 years. The trial
court also imposed mandatory postrelease control of 18 months to three years.
Smith objected to the constitutionality of the Reagan Tokes Law’s indefinite
sentencing provisions.
In 651674, the trial court sentenced Smith to 12 months on each
count, to be served concurrently to one another but consecutively to the sentence in
655568.
Smith appealed, raising the following five assignments of error for
review:
ASSIGNMENT OF ERROR I: Mr. Smith’s right to confront his accuser,
under the Sixth and Fourteenth Amendments of the United States
Constitution and Article I, Section 10 of the Ohio Constitution, was
violated when the trial court admitted testimonial statements made by
the accuser, who did not testify, via police body camera recordings.
ASSIGNMENT OF ERROR II: The statements in the March 2020 body
camera recording also violate the rules of evidence and [are]
inadmissible on that basis as well.
ASSIGNMENT OF ERROR III: Mr. Smith’s conviction is against the
manifest weight of evidence in violation of his rights to due process and
a fair trial under the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution, and Article I, Section 10 of the State of Ohio
Constitution.
ASSIGNMENT OF ERROR IV: As amended by S.B. 201, the revised
code’s sentences for first- and second-degree qualifying felonies
violated the constitutions of the United States and the State of Ohio;
accordingly, the trial court plainly erred in imposing a S.B. 201
indefinite sentence.
ASSIGNMENT OF ERROR V: Mr. Smith’s Sixth Amendment right to
a trial by jury was violated.
II. Law and Analysis
A. Admissibility of Bradley’s Statements to Police as Captured in
the March 21, 2020 Body Camera Footage
In his first assignment of error, Smith asserts that his right of
confrontation under the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Ohio Constitution was violated “when
the trial court admitted testimonial statements made by the accuser, who did not
testify, via police body camera recordings.”14
Smith contends that Bradley’s statements regarding the March 21,
2020 incident are testimonial based on various factors identified in Davis v.
Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and the
14Although body camera footage of statements by Bradley relating to both the
March 21, 2020 and December 26, 2020 incidents were admitted into evidence at trial,
on appeal, Smith challenges only the admission of the body camera footage of Bradley’s
statements related to the March 21, 2020 incident.
“objective witness test” adopted by the Ohio Supreme Court in State v. Stahl, 111
Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 36.15
The state responds that Bradley’s statements regarding the March 21,
2020 incident were nontestimonial because they were made “in the course of police
interrogation under circumstances objectively indicating that the primary purpose
of the interrogation [was] to enable police assistance to meet an ongoing
emergency.” (Appellee’s Br. at 4.)
1. The Confrontation Clause
Under both the United States and Ohio Constitutions, a criminal
defendant has a right to confront witnesses. The Sixth Amendment’s Confrontation
Clause, which is binding on the states through the Fourteenth Amendment,
provides: “In all criminal prosecutions, the accused shall enjoy the right * * * to be
confronted with the witnesses against him.” Article I, Section 10 of the Ohio
Constitution states that “[i]n any trial, in any court, the party accused shall be
allowed * * * to meet the witnesses face to face.”16 The ““‘central concern’”” of the
15 As discussed in greater detail below, because this case involves the admissibility
of statements made in the course of a police interrogation, we apply the “primary purpose
test,” not the “objective witness test,” in determining whether Bradley’s statements are
testimonial.
16 We note that it has been held that “[w]hile these constitutional provisions are
not identical, the Ohio Constitution provides no greater right of confrontation than the
Sixth Amendment.” In re H.P.P., 8th Dist. Cuyahoga Nos. 108860 and 108861, 2020-
Ohio-3974, ¶ 20, citing State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d
775, ¶ 12. Although Smith claims a violation of his confrontation rights under both Article
I, Section 10 of the Ohio Constitution the Sixth and Fourteenth Amendments to the
United States Constitution, he does not claim that he was entitled to greater or different
rights or protection under the Ohio Constitution than the United States Constitution.
Confrontation Clause is “‘“to ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context of an adversary
proceeding before the trier of fact.’”” State v. Smith, 2019-Ohio-3257, 141 N.E.3d
590, ¶ 10 (1st Dist.), quoting State v. Madrigal, 87 Ohio St.3d 378, 384, 721 N.E.2d
52 (2000), quoting Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111
L.Ed.2d 666 (1990); see also Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143,
179 L.Ed.2d 93 (2011) (“Even where * * * an interrogation is conducted with all good
faith, introduction of the resulting statements at trial can be unfair to the accused if
they are untested by cross-examination. Whether formal or informal, out-of-court
statements can evade the basic objective of the Confrontation Clause, which is to
prevent the accused from being deprived of the opportunity to cross-examine the
declarant about statements taken for use at trial.”).
The admission of a testimonial, out-of-court statement by a declarant
who does not testify at trial violates the Confrontation Clause unless the declarant is
unavailable and the defendant had a prior opportunity to cross-examine the
declarant. Crawford, 541 U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d 177; see also
Garfield Hts. v. Winbush, 187 Ohio App.3d 302, 2010-Ohio-1658, 931 N.E.2d 1148,
¶ 17 (8th Dist.) (“If a statement is testimonial, then the Confrontation Clause
requires a showing of both the declarant’s unavailability and the defendant’s
opportunity to have previously cross-examined the declarant. * * * If the statement
is nontestimonial, it is merely subject to the regular admissibility requirements of
the hearsay rules.”), citing State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876
N.E.2d 534, ¶ 21.
Regardless of whether Bradley was “available” to testify at trial, there
is no dispute that Smith did not have a prior opportunity to cross-examine her
regarding the statements at issue. Accordingly, if the statements Bradley made were
testimonial, Smith was denied his right of confrontation.
2. “Testimonial” Statements and the Primary Purpose Test
In Crawford, the Court held that statements made by the defendant’s
wife during a police interrogation while in police custody were testimonial and could
not be admitted under the Confrontation Clause when the wife did not testify at trial.
Crawford, 541 U.S. at 38-41, 65-66, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177.
Crawford did not offer an “exhaustive definition” of what constitutes a “testimonial”
statement. Ohio v. Clark, 576 U.S. 237, 243, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015);
Crawford at 68 (“We leave for another day any effort to spell out a comprehensive
definition of ‘testimonial.’”). However, the Court stated that “[w]hatever else the
term covers, it applies at a minimum to prior testimony at a preliminary hearing,
before a grand jury, or at a former trial; and to police interrogations.” Id. at 68.
Following Crawford, courts have “labored to flesh out what it means for a statement
to be ‘testimonial.’” Clark at 244.
The United States Supreme Court announced the “primary purpose
test” in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
Where a statement is made “in the course of police interrogation” whether a
statement is testimonial depends on the “primary purpose” of the statement. Davis
at 822; Bryant at 370. The Court explained that statements are nontestimonial
“when made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency.” Davis at 822. Statements are
testimonial “when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish
or prove past events potentially relevant to later criminal prosecution.” Id. 17
Davis identified four characteristics that distinguish nontestimonial
statements from testimonial statements: (1) the declarant describes
contemporaneous events as they are actually occurring rather than describing past
events, (2) an objective ongoing emergency exists, (3) the nature of what is asked
and answered, viewed objectively, is necessary to be able to resolve the emergency
and (4) the interview is of an informal nature. Davis at 826-828; see also Cleveland
v. Johnson, 8th Dist. Cuyahoga No. 107930, 2019-Ohio-3286, ¶ 18.
In Davis, the victim did not testify at Davis’ trial; instead, the state
introduced a recording of portions of her conversation with the 911 operator. The
issue in that case was whether the portion of the victim’s 911 call identifying Davis
as her assailant was testimonial. Id. at 829. At the beginning of the call, the victim
17 The fact that statements may be “volunteered” during an interaction with police
does not preclude them from being testimonial. Davis at 822-823, 827, fn. 1 (noting that
“volunteered testimony” is still testimony and remains subject to the requirements of the
Confrontation Clause).
told the 911 operator that “[h]e’s here jumpin’ on me again,” that “[h]e’s usin’ his
fists” and that her assailant had not been drinking. The 911 operator then asked the
victim the name of her assailant. After she identified her assailant as Davis, the
victim told the operator, “He’s runnin’ now.” The victim informed the 911 operator
that Davis had “just r[un] out the door” and that he was leaving in a car with
someone else. Id. at 817-818. The Court held that the portion of the 911 call that
included the identification of Davis as the assailant was non-testimonial because (1)
the victim was “speaking about events as they were actually happening” rather than
describing past events, (2) the victim’s call was “plainly a call for help against a bona
fide physical threat,” (3) the victim’s “frantic answers were provided over the phone,
in an environment that was not tranquil, or even * * * safe” and (4) the “nature of
what was asked and answered * * * viewed objectively, was such that the elicited
statements were necessary to be able to resolve the present emergency” rather than
simply learn what had happened in the past. (Emphasis deleted.) Id. at 827.
However, the Court cautioned that other portions of the 911 call — i.e.,
the victim’s statements to the 911 operator after Davis had left the premises — could
be testimonial:
In this case, for example, after the operator gained the information
needed to address the exigency of the moment, the emergency appears
to have ended (when Davis drove away from the premises). The
operator then told [the victim] to be quiet, and proceeded to pose a
battery of questions. It could readily be maintained that, from that
point on, [the victim’s] statements were testimonial, not unlike the
“structured police questioning” that occurred in Crawford, 541 U.S. at
53, fn. 4, 124 S.Ct. 1354, 158 L.Ed.2d 177.
Davis at 828-829. The Court noted that the Washington Supreme Court had
concluded that even if later parts of the call were testimonial, their admission was
harmless beyond a reasonable doubt. Because Davis did not challenge that holding,
the court simply “assume[d] it to be correct” and did not further address the issue.
Id. at 829; see also Bryant, 562 U.S. at 363, 131 S.Ct. 1143, 179 L.Ed.2d 93.
In Bryant, the United States Supreme Court clarified “what Davis
meant” by “an ongoing emergency” and its role in determining the “primary
purpose” of an interrogation. Bryant, 562 U.S. at 359, 131 S.Ct. 1143, 179 L.Ed.2d
93. In that case, the Court held that statements a mortally wounded shooting victim
made to police officers about his assailant (i.e., the identity and description of the
shooter and the location of the shooting) in a gas station parking lot (after he had
been shot by the assailant outside the assailant’s house and had driven himself to
the parking lot) were not testimonial because the circumstances objectively
indicated that the primary purpose of the interrogation was to enable police
assistance to address an ongoing emergency, rather than to establish evidence for
prosecution. The victim was unavailable to testify at trial because he died shortly
after the shooting, so police officers testified at trial about what the victim had told
them. Id. at 348-350.
In Bryant, the Court indicated that “Davis requires a combined
inquiry that accounts for both the declarant and the interrogator” and that “[i]n
many instances, the primary purpose of the interrogation will be most accurately
ascertained by looking to the contents of both the questions and the answers.”
Bryant at 367-368. The Court held that, in applying the primary purpose test, courts
must objectively evaluate “all of the relevant circumstances” and determine “the
purpose that reasonable participants would have had, as ascertained from the
individuals’ statements and actions and the circumstances in which the encounter
occurred”:
An objective analysis of the circumstances of an encounter and the
statements and actions of the parties to it provides the most accurate
assessment of the “primary purpose of the interrogation.” The
circumstances in which an encounter occurs — e.g., at or near the scene
of the crime versus at a police station, during an ongoing emergency or
afterwards — are clearly matters of objective fact. The statements and
actions of the parties must also be objectively evaluated. That is, the
relevant inquiry is not the subjective or actual purpose of the
individuals involved in a particular encounter, but rather the purpose
that reasonable participants would have had, as ascertained from the
individuals’ statements and actions and the circumstances in which the
encounter occurred. * * * When a court must determine whether the
Confrontation Clause bars the admission of a statement at trial, it
should determine the “primary purpose of the interrogation” by
objectively evaluating the statements and actions of the parties to the
encounter, in light of the circumstances in which the interrogation
occurs.
Id. at 359-360, 369, 370-371.
Addressing the significance of an “ongoing emergency” in
determining whether a declarant’s statements are testimonial, the Court stated that
although “the existence vel non of an ongoing emergency” is not “dispositive of the
testimonial inquiry,” it is “among the most important circumstances” that “informs
the ultimate inquiry regarding the ‘primary purpose’ of an interrogation.” Bryant,
562 U.S. at 361, 367, 374, 131 S.Ct. 1143, 179 L.Ed.2d 93.18 The Court explained:
The existence of an ongoing emergency is relevant to determining the
primary purpose of the interrogation because an emergency focuses the
participants on something other than “prov[ing] past events potentially
relevant to later criminal prosecution.” Davis, 547 U.S. at 822, 126
S.Ct. 2266, 165 L.Ed.2d 224. Rather, it focuses them on “end[ing] a
threatening situation.” Id. at 832. Implicit in Davis is the idea that
because the prospect of fabrication in statements given for the primary
purpose of resolving that emergency is presumably significantly
diminished, the Confrontation Clause does not require such statements
to be subject to the crucible of cross-examination.
Bryant at 361. In other words:
The existence of an emergency or the parties’ perception that an
emergency is ongoing is among the most important circumstances that
courts must take into account in determining whether an interrogation
is testimonial because statements made to assist police in addressing
an ongoing emergency presumably lack the testimonial purpose that
would subject them to the requirement of confrontation. * * * [T]he
existence and duration of an emergency depend on the type and scope
of danger posed to the victim, the police, and the public.
Id. at 370-371. “[W]hether an emergency exists and is ongoing is a highly context-
dependent inquiry.” Id. at 363.19
18 Although the United States Supreme Court has recognized that “there may be
other circumstances, aside from ongoing emergencies, when a statement is not procured
with a primary purpose of creating an out-of-court substitute for trial testimony,” see
Bryant at 358; Clark, 576 U.S. at 244-245, 135 S.Ct. 2173, 192 L.Ed.2d 306, no one has
claimed that any such “other circumstance” existed in this case. Accordingly, we do not
further address that issue here.
19 Factors the Court identified as relevant to determining whether an ongoing
emergency exists include: whether physical violence is presently occurring; whether the
dispute is a private or public dispute; whether there is an ongoing threat to police or the
public; whether the perpetrator’s location is known or unknown; whether the perpetrator
and victim are separated; the motive(s) of the perpetrator (if known); whether the
perpetrator is armed and, if so, the type of weapon(s) the perpetrator has; the victim’s
Once Smith objected to the admissibility of Bradley’s out-of-court
statements, the state, as the proponent of the evidence, bore the burden of
establishing the admissibility of the statements. See, e.g., State v. Hill, 12th Dist.
Butler No. CA80-05-0053, 1981 Ohio App. LEXIS 14266, 4 (Mar. 1, 1981) (“The
burden of proving facts which must be established to make evidence admissible is
upon the party seeking to introduce the evidence.”); cf. State v. Stover, 9th Dist.
Wayne No. 13CA0035, 2014-Ohio-2572, ¶ 12 (the state, as the party seeking to admit
statement under excited-utterance exception to the hearsay rules, had the burden to
prove that the statement was made while the declarant was still under the stress of
the event); see also United States v. Duron-Caldera, 737 F.3d 988, 993 (5th
Cir.2013) (‘“[T]he government bears the burden of defeating [a] properly raised
Confrontation Clause objection by establishing that its evidence is
nontestimonial.’”), quoting United States v. Jackson, 636 F.3d 687, 695, fn. 4 (5th
Cir.2011); United States v. Arnold, 486 F.3d 177, 192 (6th Cir.2007) (noting that
“the government ha[d] met its burden of proving that [declarant’s] statements to the
911 operator and at the scene were nontestimonial”). We review evidentiary rulings
that implicate the Confrontation Clause de novo. State v. McKelton, 148 Ohio St.3d
261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97.
The state contends that this case is akin to State v. Tomlinson, 8th
Dist. Cuyahoga No. 109614, 2021-Ohio-1301. In Tomlinson, this court held that
medical condition and whether medical assistance is required and whether the scene is
secured. See generally Bryant.
statements by two witness to a drive-by shooting, which were recorded by police
body cameras, were not testimonial where they were “made to law enforcement in
the course of responding to an emergency situation” and “[t]he victims had just been
shot at and called the police to seek protection and medical treatment.” Id. at ¶ 43.
Tomlinson contains limited information regarding the circumstances surrounding
the witness statements in that case and the specific inquiries made by police in
eliciting those statements. Nevertheless, we believe that Tomlinson is readily
distinguishable from the facts here.
In Tomlinson, the defendant had allegedly shot at three individuals
while they were in a vehicle then left the scene. Id. at ¶ 14. Prior to the shooting,
Cleveland police detectives had been monitoring the defendant’s social media
accounts due to concerns related to “feuds among different neighborhood groups.”
Id. at ¶ 10, 15. After the shooting, two of the victims called police “to seek protection
and medical treatment” and remained at the scene. Id. at ¶ 14. When police arrived
at the scene, approximately 40 minutes after the shooting, and began questioning
the victims, the victims were “very excited and emotional about what had just
happened to them.” Id. At the time the police were questioning the victims, their
assailant, armed with a gun, was still at large, location unknown, presenting an
immediate continuing threat to the victims who remained at the scene, the police
and the public, and the victims were apparently still in need of medical treatment.
Id. at ¶ 14, 43. In Tomlinson, the totality of the circumstances objectively indicated
that the emergency for which the victims sought police assistance was still ongoing
at the time of the interrogation and that the primary purpose of both the police in
questioning the victims and the victims in responding to those inquiries was to
resolve an ongoing emergency. This case is different.
We recognize that an ongoing emergency can exist after the original
threat to the victim has ceased to exist if there is a continuing threat to police or the
public or the victim is in need of emergency medical services. However, this does
not mean that an alleged victim’s responses to “initial inquiries” by police officers
are always testimonial. See Davis, 547 U.S. at 832, 126 S.Ct. 2266, 165 L.Ed.2d 224(rejecting the “implication that virtually any ‘initial inquiries’ at the crime scene” will
be non-testimonial). Bryant instructs that a court must consider “all of the relevant
circumstances,” including whether an ongoing emergency exists and the
perspectives of both the declarant and the interrogator in determining the primary
purpose of an interrogation and whether a declarant’s statements are testimonial.
Bryant, 562 U.S. at 369, 131 S.Ct. 1143, 179 L.Ed.2d 93. Furthermore, ‘“a
conversation which begins as an interrogation to determine the need for emergency
assistance’ can ‘evolve into testimonial statements once the initial purpose has been
achieved.”’ Bryant, 562 U.S. at 365, 131 S.Ct. 1143, 179 L.Ed.2d 93, quoting Davis,
547 U.S. at 828, 126 S.Ct. 2266, 165 L.Ed.2d 224 (internal quotation marks omitted).
Such an “evolution” may occur if “a declarant provides police with information that
makes clear that what appeared to be an emergency is not or is no longer an
emergency or that what appeared to be a public threat is actually a private dispute”
or “if a perpetrator is disarmed, surrenders, is apprehended, or * * * flees with little
prospect of posing a threat to the public.” Bryant at 365.
In this case, the incident allegedly occurred somewhere in the street
on the other side of town, away from Bradley’s home. Before police arrived, Bradley
had left the scene of the incident and had walked to the home of a family member.
It is unclear from the record how far the relative lived from the scene of the incident.
Smith had allegedly left the scene shortly after the incident and there is nothing in
the record to suggest Smith knew where Bradley was or that he otherwise posed an
immediate, continuing threat to Bradley once she arrived at the home of her family
member.
It is unknown exactly how much time elapsed between the incident
and the officers’ interrogation of Bradley, but it is clear that the interrogation was
not conducted immediately after the incident. According to Bradley, after the
incident, she snorted cocaine and then walked to the home of the family member,
who called 911. By the time police arrived and began questioning Bradley, she was
already in an ambulance, in the custody of EMS personnel, receiving medical care
and preparing to be transported to the hospital. Thus, by the time police questioned
Bradley, she was no longer “acting * * * to secure protection or medical care.” State
v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 183. Although
Bradley had not yet been transported to the hospital, from her perspective, the
“emergency” for which she needed police assistance had effectively ended before
police began questioning her. Cf. State v. Steele, 8th Dist. Cuyahoga No. 91571,
2009-Ohio-4704, ¶ 39 (statements victim made to police officer while in the
ambulance and at the emergency room were testimonial because emergency no
longer existed).
Here, the dispute that allegedly led to the assault was a private
dispute, the alleged assailant was known to Bradley and there is nothing in the
record to indicate that he presented an immediate physical threat to Bradley, police
or the public at the time of the officers’ interrogation of Bradley. Police did not ask
Bradley, during their initial interview, whether Smith had a weapon or otherwise
focus on any exigent threat or safety concern in their questioning. The questions
police posed to Bradley were directed to investigating and documenting what had
happened — i.e., determining the identity of Bradley’s alleged assailant and what
had occurred. These elicited statements were not “‘necessary to be able to resolve
[a] present emergency,”’ but rather “‘to learn * * * what had happened in the past.”’
(Emphasis deleted.) Bryant, 562 U.S. at 367, 131 S.Ct. 1143, 179 L.Ed.2d 93, quoting
Davis, 547 U.S. at 827, 126 S.Ct. 2266, 165 L.Ed.2d 224.
Viewed objectively, the totality of the circumstances surrounding the
March 21, 2020 police interview of Bradley demonstrates that the “primary
purpose” of Bradley’s statements to police, in which Bradley identified Smith as her
assailant and described what he had done, was to provide an account of the assault
that had allegedly occurred — i.e., to document past events for purposes of a later
criminal investigation or prosecution — and that the statements were, therefore,
testimonial. Bradley’s statements to police were simply ‘“a weaker substitute for live
testimony’ at trial.” Davis at 828, quoting United States v. Inadi, 475 U.S. 387, 394,
106 S.Ct. 1121, 89 L.Ed.2d 390 (1986); cf. Smith, 2019-Ohio-3257, 141 N.E.3d 590,
at ¶ 13 (declarant’s statements were testimonial where police did not “focus on any
exigent threat or safety concern in their questioning” but rather “asked about what
had happened, rather than what was happening, procuring information about the
past course of events, which then led to the charges against [defendant]”); Toledo v.
Green, 2015-Ohio-1864, 33 N.E.3d 581, ¶ 21-25 (6th Dist.) (where victim and alleged
perpetrator were in separate rooms, the victim “seemed a little upset” and “was a
little bit loud” when police arrived and there was no bona fide physical threat to the
victim at the time of her statements to police, no ongoing emergency existed and
victim’s statements to police were testimonial); Jones, 135 Ohio St.3d 10, 2012-
Ohio-5677, 984 N.E.2d 948, at ¶ 156-159 (witness’ statements to police were
testimonial where witness called police to report that her husband had confessed to
killing a woman, witness was not at an active crime scene, no gun was involved in
the murder and although police were still trying to identify and apprehend an at-
large perpetrator, who “initially * * * appeared to pose a continuing threat to
[witness] and maybe others,” police contact with witness was “did not occur in the
midst of an ongoing emergency”).
The fact that Bradley’s statements to police were presented through
the playing of Soucek’s body camera footage does not alter our analysis. The
purpose of body cameras is to record events in which law enforcement officers are
involved to improve officer safety, increase evidence quality, reduce civilian
complaints and reduce agency liability, see Hyland, Bureau of Justice Statistics,
Body-Worn Cameras in Law Enforcement Agencies, 2016 (Nov. 2018) — not to
supplant the in-court testimony of witnesses. Out-of-court statements that would
otherwise be inadmissible do not become admissible simply because they were
captured on a police body camera.
This is yet another case in which the state of Ohio proceeded to trial
without the alleged “victim”/witness. This case is part of a disturbing trend favoring
“victimless” prosecutions. See the state’s oral argument in State v. Johnson, 8th
Dist. Cuyahoga No. 110942 (“There are attempts frequently to do victimless
prosecutions * * *[.] There is a thought, at least among some prosecutors, that it
favors community and favors victims to be able to put on a case.”).20 Professors
Richard Friedman and Bridget McCormack described this practice in their law
review article, Dial-In Testimony:
Often * * * prosecutors do not bother with an unwilling or recanting
complainant. Rather, they simply go forward without her, and instead
of her live testimony, submit as evidence of the incident the statements
carefully taken from her by the 911 operator and the police. In some
cases, the prosecutor’s decision to pursue a “victimless” prosecution is
based on a well-founded belief that the defendant’s misconduct has
inhibited the complainant from testifying. But often the prosecutor
evidently concludes that it is easier to go forward with unsworn,
untested statements provided on the 911 tapes than to expose a witness
to the risks of testifying at trial.
20 Pursuant to App.R. 21(J), recordings of these oral arguments are available for
review upon request.
Richard D. Friedman and Bridget McCormack, Dial-In Testimony, 150 U.Pa.L. Rev.
1171, 1189-1190 (2002).
During oral argument, the state indicated that it had not requested a
bench warrant to compel Bradley’s appearance as a material witness at trial and
acknowledged that it can be “easier to go without the victim in these cases.” Here,
it may have very well been “easier” for the state to attempt to make a case against
Smith without Bradley testifying and being subject to cross-examination. Based on
the limited information in the record, Bradley may not been the strongest witness
had she testified at trial. Bradley, who was five months pregnant at the time of the
March 21, 2020 incident, admitted that she had been drinking prior to the incident
and that she had snorted cocaine — prior to her interactions with police and medical
providers — after the incident. It is unknown the extent to which Bradley’s
substance abuse may have affected her perception, recollection or ability to
accurately relate what had occurred.21 As such, presenting Bradley’s testimony live
21 It is well-recognized that a witness’ alcohol or drug use at the time of an incident
can affect the witness’ perception of, recollection of and ability to describe what occurred,
impacting his or her credibility. See, e.g., State v. Fast, 2021-Ohio-2548, 176 N.E.3d 361,
¶ 80-81 (11th Dist.) (“Evidence of a witness’s drug use may be probative of his or her
capacity or ability to observe, remember, or relate[.] * * * ‘[T]he credibility of testimony
can be attacked through evidence of a witness’s intoxication at the time of the matter
about which the witness seeks to testify. * * * Such evidence is relevant to the issue of
credibility, since it questions the ability of the witness to correctly perceive the events
which allegedly occurred.’”), quoting Kenney v. Fealko, 75 Ohio App.3d 47, 51, 598 N.E.2d
861 (11th Dist.1991). Where a witness testifies, the impact of a witness’ alcohol or drug
use on his or her observation, perception, recollection and accurate relation of what
occurred can be explored and tested through effective cross-examination. See, e.g., State
v. Smith, 6th Dist. Lucas Nos. L-16-1306, L-16-1307 and L-16-1308, 2018-Ohio-3983, ¶ 16
(“Where a witness has been examined about his or her drug use, the trier of fact can
properly weigh the credibility of the witness’ testimony.”). Here, however, because
Bradley did not testify, Smith had no such opportunity.
(rather than through body camera footage) and subjecting her to cross-examination
may very well have weakened the state’s case. However, the exceptions to live
witness testimony authorized in Davis, Bryant and their progeny were not intended
to enable prosecutors to make tactical decisions not to bring in a victim (or alleged
victim) to testify at trial to avoid subjecting his or her testimony to scrutiny under
cross-examination.
As the United States Supreme Court has cautioned:
Domestic violence is an intolerable offense that legislatures may choose
to combat through many means — from increasing criminal penalties
to adding resources for investigation and prosecution to funding
awareness and prevention campaigns. But for that serious crime, as for
others, abridging the constitutional rights of criminal defendants is not
in the [s]tate’s arsenal.
Giles v. California, 554 U.S. 353, 376, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008).
Smith testified that Barbara Bradley had stated to him in the past that
she would take revenge on him when she thought he was “cheating” on her and that,
during a telephonic conversation between them while he was incarcerated in the
Cuyahoga County Jail she informed him that she was not going to present herself at
the court to testify as “I already told you. You ain’t did nothing.”
Trial courts need to hold the prosecution and the “victims”
accountable in these matters. If the “victim” chooses not to appear to testify, there
are options available to the state. When service of a subpoena has been perfected, a
bench warrant can be issued. If the state cannot proceed to trial, a case can be
dismissed without prejudice and refiled at a time when the “victim” sees the folly of
their way.
We recognize that some prosecutions can go forward without a
“victim” but that should be the exception and not the rule.
Because Bradley’s statements relating to the March 21, 2020
incident were testimonial and Smith did not have an opportunity to cross-examine
Bradley regarding those statements, the trial court’s admission of those statements
violated the Confrontation Clause.
3. Harmless Error
Having determined that the trial court erred in admitting the body
camera footage of Bradley’s statements relating to the March 21, 2020 incident, we
must now consider whether that error was reversible error or harmless error.
Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, at ¶ 178
(“Confrontation Clause claims are * * * subject to harmless-error analysis.”), citing
McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, at ¶ 192.
Crim.R. 52(A) addresses harmless error in the context of criminal
cases. It provides: “Any error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.” See also R.C. 2945.83(C) (“No motion for
a new trial shall be granted or verdict set aside, nor shall any judgment of conviction
be reversed in any court because of * * * [t]he admission or rejection of any evidence
offered against or for the accused unless it affirmatively appears on the record that
the accused was or may have been prejudiced thereby.”). Under the harmless-error
standard of review, the state bears the burden of demonstrating that the error did
not affect the substantial rights of the defendant. State v. Graham, 164 Ohio St.3d
187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 55; State v. Perry, 101 Ohio St.3d 118,
2004-Ohio-297, 802 N.E.2d 643, ¶ 15. Smith asserts that “without the March body
camera recording, a conviction on the March incident would be impossible under
the circumstances.” The state did not address the issue. It addressed only the issue
of admissibility in its appellate brief.
In State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d
1153, the Ohio Supreme Court set forth a three-part analysis “to guide appellate
courts” in determining whether an error in the admission of evidence has affected
the substantial rights of a defendant, thereby requiring a new trial, or whether
admission of that evidence was harmless error:
First, it must be determined whether the defendant was prejudiced by
the error, i.e., whether the error had an impact on the verdict. [Morris]
at ¶ 25, 27. Second, it must be determined whether the error was not
harmless beyond a reasonable doubt. Id. at ¶ 28. Lastly, once the
prejudicial evidence is excised, the remaining evidence is weighed to
determine whether it establishes the defendant’s guilt beyond a
reasonable doubt. Id. at ¶ 29, 33.
State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 37; see also
State v. Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, ¶ 63.
Applying this analysis to the evidence in this case, we find that the
erroneous admission of Bradley’s statements to police regarding the March 21, 2020
incident was not harmless error and affected Smith’s substantial rights.
“[W]hile courts may determine prejudice in a number of ways and
use language that may differ, * * * both the nature of the error and the prejudice to
defendant (the measure of how the error affected the verdict) are important.”
Morris at ¶ 25, 33. As such, when determining whether a new trial is required or
error is harmless beyond a reasonable doubt, “an appellate court must consider both
the impact of the offending evidence on the verdict and the strength of the remaining
evidence.” Id. at ¶ 33. Error in the admission of evidence is harmless beyond a
reasonable doubt when ‘“there is [no] reasonable possibility that the improperly
admitted evidence contributed to the conviction.’” McKelton, 148 Ohio St.3d 261,
2016-Ohio-5735, 70 N.E.3d 508, at ¶ 192, quoting Schneble v. Florida, 405 U.S. 427,
432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). As a general matter, “‘“the cases where
imposition of harmless error is appropriate must involve either overwhelming
evidence of guilt or some other indicia that the error did not contribute to the
conviction.’”” Morris at ¶ 29, quoting State v. Rahman, 23 Ohio St.3d 146, 151, 492
N.E.2d 401 (1986), quoting State v. Ferguson, 5 Ohio St.3d 160, 166, 450 N.E.2d
265 (1983), fn. 5.
In this case, the improperly admitted evidence was clearly
prejudicial, linking Smith to the crimes for which he was ultimately convicted.
Further, this is not a case in which the state’s evidence was so overwhelming that it
is clear that the improperly admitted evidence did not affect the outcome. To the
contrary, the state’s case against Smith relating to the March 21, 2020 incident was
based almost exclusively on the statements Bradley made to police as captured on
the body camera footage. The evidence relating to the March 21, 2020 incident that
remains once the improperly admitted evidence of Bradley’s statements to police is
removed from consideration is video footage and photographs showing Bradley’s
injuries and Smith’s testimony about what allegedly occurred.22 That evidence was
insufficient to support Smith’s convictions relating to the March 21, 2020 incident.
Following a thorough review of the record before us, considering
both the potential impact of the improperly admitted evidence on the verdict and
the strength (or weakness) of the remaining evidence after the improperly admitted
evidence is removed from consideration, we cannot say that the trial court’s
erroneous admission of the body camera footage containing Bradley’s statements to
police regarding the March 21, 2020 incident was harmless beyond a reasonable
doubt. We find that the trial court’s admission of this improper evidence
contributed to Smith’s convictions in 651674, was not harmless error and affected
Smith’s substantial rights.
22 In considering whether the trial court’s admission of Bradley’s statements was
harmless error, we are mindful that Smith stipulated to the admissibility of Bradley’s
medical records, which includes an “emergency department – visit note” recording a
“history * * * provided by the Patient” that includes a description of the incident
purportedly provided by Bradley It is unclear from the record when or under what
circumstances the “history” information identified as having been “provided by the
Patient” was provided, i.e., whether it was provided in response to the officers’
questioning of Bradley in the presence of EMS personnel while she was receiving medical
care in the ambulance, whether it was provided in response to officers’ questions at the
hospital or whether it was provided in response to inquiries by medical providers at some
other time. Because it appears from the record that that stipulation was made only after
the trial court denied Smith’s motion in limine relating to those records and admitted,
over Smith’s objections, the body camera footage containing the statements Bradley had
made to police in the ambulance regarding the March 21, 2020 incident, we do not believe
Smith’s stipulation to the admissibility of the medical records compels a different result
on the issue of harmless error here.
We sustain Smith’s first assignment of error. Accordingly, in 651674
only, we reverse the judgment of the trial court, vacate Smith’s convictions and
remand for a new trial.
Smith contends that, based on the erroneous admission of Bradley’s
testimonial statements relating to the March 21, 2020 incident, we should not only
overturn Smith’s convictions in 651674 relating to the March 21, 2020 incident, but
also his convictions in 655568 relating to the December 26, 2020 incident, asserting
that because the accuser is the same in both cases and the “accusations * * * are
similar,” “there is no way to remove the impact that this evidence would have had
on the trial as a whole.” We disagree.
This was a bench trial. The trial court was fully capable of separating
the evidence relating to the March 21, 2020 incident from the evidence relating to
the December 26, 2020 incident in rendering its verdicts. Smith has not assigned
as error on appeal the joinder of the two cases for trial. There is nothing in the record
to suggest that the trial court considered improperly admitted evidence related to
the March 21, 2020 incident in 651674 when rendering its verdicts against Smith
related to the December 26, 2020 incident in 655568.
Based on our resolution of Smith’s first assignment of error, his
second assignment of error is moot. Likewise, his third, fourth and fifth assignments
of error are moot to the extent they relate to 651674.
Manifest Weight of the Evidence
In his third assignment of error, Smith contends that his convictions
in 655568 for felonious assault in violation of R.C. 2903.11(A)(1) (Count 1), felonious
assault in violation of R.C. 2903.11(A)(2) (Count 2) and domestic violence in
violation of R.C. 2919.25(A) are against the manifest weight of the evidence.
A manifest weight challenge questions whether the state met its
burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-
3598, ¶ 13. ‘“[W]eight of the evidence involves the inclination of the greater amount
of credible evidence.’” State v. Harris, 8th Dist. Cuyahoga No. 109060, 2021-Ohio-
856, ¶ 32, quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541(1997). On a manifest weight challenge, “a reviewing court asks whose evidence is
more persuasive — the state’s or the defendant’s?” State v. Wilson, 113 Ohio St.3d
382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.
When considering an appellant’s claim that a conviction is against
the manifest weight of the evidence, the appellate court examines the entire record,
weighs the evidence and all reasonable inferences that may be drawn therefrom,
considers the witnesses’ credibility and determines 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 must be reversed and a new trial ordered.’”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983). Reversal on manifest weight grounds is reserved for the
‘“exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins at 387, quoting Martin at 175.
Smith contends that his convictions in 655568 are against the
manifest weight of the evidence because (1) “[t]here are discrepancies in Bradley’s
description of events and the injuries she sustained,” (2) “[t]here are conflicts in
Bradley’s different versions as they were entered into evidence as recorded out-of-
court statements,” (3) “[t]here are serious conflicts in the evidence that should call
Bradley’s credibility into question when she says that [Smith] is the one who injured
her” and (4) “[w]e cannot know what Bradley would have said about these things in
her testimony because the [s]tate tried the case without her.” Smith further argues
that his convictions are against the against the manifest weight of the evidence
because (1) as Bradley spoke with law enforcement, “the firearm took on greater and
greater significance with every retelling,” (2) Bradley’s injuries, as depicted in the
police photographs, are not consistent with Bradley having been pistol-whipped and
(3) “there is no mention of [a] gun in the investigating detective’s report.”
The state responds that there was a “wealth of evidence” supporting
Smith’s convictions, including the 911 call, the body camera footage and
photographs of Bradley’s injuries, and disputes Smith’s claim that Bradley’s
statements were inconsistent.
To convict Smith of felonious assault as charged in Count 1, the state
needed to prove beyond a reasonable doubt that Smith “knowingly * * * [c]ause[d]
serious physical harm to another.” R.C. 2903.11(A)(1). To convict Smith of felonious
assault as charged in Count 2, the state needed to prove beyond a reasonable doubt
that Smith “knowingly * * * [c]ause[d] or attempt[ed] to cause physical harm to
another * * * by means of a deadly weapon or dangerous ordnance.” R.C.
2903.11(A)(2). To convict Smith of domestic violence as charged in Count 3, the
state needed to prove beyond a reasonable doubt that Smith “knowingly cause[d] or
attempt to cause physical harm to a family or household member” and that he had
been previously convicted of a domestic violence offense. R.C. 2919.25(A), (D)(3).
To support guilty verdicts on the one-year and three-year firearm specifications
included in these counts, the state needed to prove beyond a reasonable doubt that
Smith had a firearm on or about his person or under his control while committing
the offense and displayed the firearm, brandished the firearm, indicated that he
possessed the firearm or used it to facilitate the offense. R.C. 2941.141(A),
2941.145(A).
“A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or will probably
be of a certain nature.” R.C. 2901.22(B).
“Physical harm” means “any injury, illness, or other physiological
impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). “Serious
physical harm” includes “[a]ny physical harm that involves some permanent
disfigurement or that involves some temporary, serious disfigurement.” R.C.
2901.01(A)(5)(d). Facial swelling and lacerations that require stitches have
frequently been held to constitute “serious physical harm.” See, e.g., State v. Finley,
8th Dist. Cuyahoga No. 108062, 2019-Ohio-3891, ¶ 28 (‘“This court has consistently
held that the need for stitches constitutes serious physical harm for purposes of a
felonious assault conviction.’”), quoting State v. Studgions, 8th Dist. Cuyahoga No.
94153, 2010-Ohio-5480, ¶ 10; State v. Williams, 8th Dist. Cuyahoga No. 98210,
2013-Ohio-573, ¶ 19 (“This court has repeatedly held that the element of serious
physical harm is satisfied when the evidence shows that the victim sustained injuries
requiring medical treatment, including stitches.”). Serious physical harm has also
been found where a victim sustains a bloody cut and/or significant swelling to the
face, even where there is no evidence stitches were required. See, e.g., State v.
Payne, 8th Dist. Cuyahoga No. 76539, 2000 Ohio App. LEXIS 3274, 9-10 (July 20,
2000) (bloody, cut and swollen right eye was sufficient to establish serious physical
harm because the injury was a temporary, serious disfigurement); see also State v.
Scott, 1st Dist. Hamilton Nos. C-200385 and C-200403, 2021-Ohio-3427, ¶ 26,
citing State v. Crossty, 2017-Ohio-8382, 99 N.E.3d 1048, ¶ 22 (1st Dist.).
As detailed above, the state presented ample, credible evidence from
which the trial court could have reasonably found beyond a reasonable doubt that
Smith had pistol-whipped Bradley, a family or household member, had caused her
serious physical harm or physical harm by means of a deadly weapon or dangerous
ordnance and used a firearm to commit the offense.
A conviction may rest solely on the testimony of a single witness, if
believed, and there is no requirement that a witness’ testimony be corroborated to
be believed. See, e.g., State v. Nicholson, 8th Dist. Cuyahoga No. 110595, 2022-
Ohio-2037, ¶ 180; State v. Flores-Santiago, 8th Dist. Cuyahoga No. 108458, 2020-
Ohio-1274, ¶ 38; State v. Black, 2019-Ohio-4977, 149 N.E.3d 1132, ¶ 43 (8th Dist.);
State v. Schroeder, 2019-Ohio-4136, 147 N.E.3d 1, ¶ 84 (4th Dist.). Likewise, a
conviction is not against the manifest weight of the evidence “solely because the
[factfinder] heard inconsistent or contradictory testimony.” State v. Rudd, 8th Dist.
Cuyahoga No. 102754, 2016-Ohio-106, ¶ 72, citing State v. Wade, 8th Dist.
Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38; State v. Nitsche, 2016-Ohio-3170, 66
N.E.3d 135, ¶ 45 (8th Dist.) (“A defendant is not entitled to reversal on manifest
weight grounds merely because certain aspects of a witness’s testimony are not
credible or were inconsistent or contradictory.”); see also State v. Mann, 10th Dist.
Franklin No. 10AP-1131, 2011-Ohio-5286, ¶ 37 (‘“While the [factfinder] may take
note of the inconsistencies and resolve or discount them accordingly, * * * such
inconsistencies do not render defendant’s conviction against the manifest weight or
sufficiency of the evidence.’”), quoting State v. Nivens, 10th Dist. Franklin No.
95APA09-1236, 1996 Ohio App. LEXIS 2245, 7 (May 28, 1996).
Although Bradley made no mention of a gun to Cunningham when
he interviewed her by telephone after the incident, Bradley told McDougler in the
911 call that Smith had “beat [her] with a gun.” Bradley likewise told Melbar and
Germaine that Smith had struck her twice in the head with a gun, causing her
injuries. Smith has not shown that these statements by Bradley were so inherently
incredible or unreliable as to preclude a reasonable fact finder from believing them.
Bradley’s statements to McDougler were made as Smith was leaving the couple’s
home immediately following the incident. Her statements to Melbar and Germaine
were made while she was sitting in her home, still bleeding, in pain and in need of
medical care, shortly after the incident. In both instances, it appears that Bradley
was under the stress and excitement of the incident that had just occurred.
Cunningham interviewed Bradley later, when she was, as he
described it, “a little relaxed,” “kind of still upset, but not frantic or anything” and
had an opportunity for reflection. The trial court could have reasonably determined
that Bradley’s statements immediately following the incident were more credible
than those made after reflection, i.e., after Bradley realized Smith had been arrested
and could be sent to prison for what he had done. The injuries Bradley sustained,
as depicted on the body camera footage and in the police photographs, were
consistent with Bradley having been pistol-whipped on the head. Smith’s
convictions were not against the manifest weight of the evidence merely because the
trial court believed the testimony of the state’s witnesses and Bradley’s statements
that Smith had caused her injuries over the testimony of Smith, where, as here, the
trial court could reasonably make that choice. See, e.g., State v. Nash, 1st Dist.
Hamilton Nos. C-210435 and C-210436, 2022-Ohio-1516, ¶ 13 (“[A] conviction is
not against the weight of the evidence merely because the trial court did not believe
the defense testimony.”). “A trier of fact is free to believe all, some, or none of the
testimony of each witness appearing before it.” State v. Williams, 2019-Ohio-794,
132 N.E.3d 1233, ¶ 28 (8th Dist.).
The parties stipulated to evidence establishing that Smith had a prior
conviction for domestic violence in 2012. Smith admitted that at the time of the
December 26, 2020 incident, he was living with Bradley and that the couple was in
a long-term relationship. Smith testified that he and Bradley had children together
and that, due to the length of their relationship, he referred to Bradley as his wife.
The responding officers testified regarding the severity of Bradley’s injuries. Melbar
testified that, when he saw Bradley after the incident, she was bleeding and was
“really bad,” with “severe swelling” and “a large laceration to her head” that required
stitches. Germaine similarly testified that Bradley had “a very serious-looking head
trauma with a lot of blood.” Photographic evidence in the form of Melbar’s body
camera footage and photographs taken while Bradley received medical care at the
hospital confirm the severity of Bradley’s injuries. The trial court was entitled to
give greater weight to this evidence than to Smith’s testimony that Bradley had
sustained “nothing but a little scratch,” “a superficial scratch.”
Following a thorough review of the record, weighing the strength
and credibility of the evidence presented and the reasonable inferences to be drawn
therefrom, we cannot say that this is one of those “‘exceptional cases’” in which the
trier of fact clearly lost its way and created a manifest miscarriage of justice that the
defendant’s convictions must be reversed and a new trial ordered. Thompkins, 78
Ohio St.3d at 387, 678 N.E.2d 541, quoting Martin, 20 Ohio App.3d at 175, 485
N.E.2d 717. Accordingly, Smith’s third assignment of error is overruled.
Sentencing under the Reagan Tokes Law
In his fourth assignment of error, Smith contends that the trial court
erred in 655568 in sentencing him to an indefinite sentence on Count 2 (felonious
assault in violation of R.C. 2903.11(A)(2)) under the Reagan Tokes Law. Under the
Reagan Tokes Law, qualifying first- and second-degree felonies committed on or
after March 22, 2019 are subject to the imposition of indefinite sentences. Smith
argues that the Reagan Tokes Law is unconstitutional because it violates his
constitutional rights to trial by a jury, the separation-of-powers doctrine and his
right to due process.
The arguments presented in this case do not present novel issues or
any new theory challenging the constitutional validity of any aspect of the Reagan
Tokes Law left unaddressed by this court’s en banc decision in State v. Delvallie,
2022-Ohio-470, 185 N.E.3d 536 (8th Dist.).23 Accordingly, we overrule Smith’s
fourth assignment of error.
Waiver of Jury Trial
In his fifth and final assignment of error, Smith claims that he was
effectively denied his right to a jury trial in violation of the Sixth Amendment to the
United States Constitution because, due to difficulties in scheduling jury trials as a
result of COVID, he was faced with a “Hobson’s Choice,” i.e., “stay in jail waiting for
a jury or have a bench trial.”
23 In his appellate brief, Smith acknowledges that “[t]he arguments challenging the
constitutionality of S.B. 201’s indeterminate sentencing provisions [raised in this appeal]
were rejected by the en banc Court in Delvallie.” (Appellant’s Br. at 16.)
On December 1, 2021, Smith executed a written waiver of his right
to a jury trial in both cases. Before proceeding with the trial, the trial court read the
written waiver into the record and then questioned Smith regarding his waiver of
his right to a jury trial. The written waiver stated:
I, GARY SMITH, the Defendant in this cause, hereby voluntarily waive
and relinquish my right to a trial by jury, and elect to be tried by a judge
of this Court of Common Pleas. I understand that I have a right, under
the Constitutions and laws of both the United States and the State of
Ohio, to a trial by a jury of twelve, and that no verdict could be made by
a jury, except by agreement of all twelve members of that jury. I further
state that no threats or promises have been made to induce me to waive
this right, and that I am not under the influence of any drugs, alcohol,
or medication that would affect my decision.
On the record, the trial court confirmed with Smith and defense
counsel that they had signed the jury waiver in both cases. The trial court advised
Smith that the right to a jury trial is a constitutional right and confirmed that (1)
defense counsel had explained Smith’s right to a jury trial to him, (2) Smith
understood the difference between a jury trial and a bench trial and (3) Smith was
not under the influence of any drugs, alcohol or medication that could affect his
decision to waive a jury trial.
The trial court also specifically addressed the delays in scheduling
jury trials due to COVID-19 and the potential impact of those delays on Smith’s
decision to waive his right to a jury trial:
THE COURT: * * * I’m sure you also appreciate that it may be some
time before we get a jury trial, but I don’t want that to be the motivating
factor, because there is a difference between one person being the trier
of fact and 12 people having to reach a unanimous decision, so I just
want to make sure that you appreciate that difference. And are you
confident that you want to proceed by bench trial today?
THE DEFENDANT: Yes.
Following a colloquy with Smith and defense counsel, the trial court
found that defense counsel had explained to Smith his rights to a trial by jury, that
no threats or promises had been made to induce Smith to waive that right and that
his jury waivers had been knowingly, intelligently and voluntarily executed.
Accordingly, the trial court accepted Smith’s jury waivers, and they were filed with
the trial court.
After accepting Smith’s jury waivers, the trial court then proceeded
to rule on Smith’s motion to dismiss for lack of a speedy trial. In denying the motion
to dismiss for lack of a speedy trial — a ruling Smith has not appealed — the trial
court further noted:
[D]ue to the Court’s efforts to reduce the spread of the COVID-19 virus,
and I don’t have the specific dates, but for many months in the last year
and a half we have not had access to jury panels and we were not calling
in jury trials. When a determination was made between you and your
counsel that we would go forward on a bench trial, this is the soonest
that this Court could get your case called for trial. I’ve been in nonstop
trials, your attorney has been in nonstop trials, the prosecutors have
been in nonstop trials since we’ve resumed trials. * * * The delays have
not been at the State’s request. They’ve been in most part, and I haven’t
looked at the Court’s docket, at the Court’s request.
In response to Smith’s question regarding why his trial did not occur
on May 3, 2021, which he claimed was his “first original trial date” after trials were
allowed to resume, the trial court further stated:
I’ll explain to you what happened with that. I lost all discretion over
which of my cases could go to trial. My cases, I had to submit to our
administrative judge, and the administrative judge through an
administrative order decided which cases go. So does it pain me that
you’ve been sitting in jail for pretrial purposes? Yes. I don’t take any
pleasure in that. But my jurisdiction and my discretion, a lot of it were
removed due to the Court’s administrative order. And as of November
1st, just one month ago, they’ve changed that process. But it was all the
way through until November 1st I couldn’t set my own trial dates. I
couldn’t. So we’re trying to work through that, we’re muddling through
it. If it’s an issue on appeal, then I would encourage you to raise it with
the court of appeals.
The Sixth Amendment to the United States Constitution, made
applicable to the states through the Fourteenth Amendment, guarantees an accused
the right to trial by jury. State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, 872
N.E.2d 279, ¶ 6, citing Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d
491 (1968). A defendant may, however, waive that right. Crim.R. 23(A) states, in
relevant part:
In serious offense cases the defendant before commencement of the
trial may knowingly, intelligently and voluntarily waive in writing his
right to trial by jury. Such waiver may also be made during trial with
the approval of the court and the consent of the prosecuting attorney.
R.C. 2945.05 states:
In all criminal cases pending in courts of record in this state, the
defendant may waive a trial by jury and be tried by the court without a
jury. Such waiver by a defendant, shall be in writing, signed by the
defendant, and filed in said cause and made a part of the record thereof.
It shall be entitled in the court and cause, and in substance as follows:
“I, defendant in the above cause, hereby voluntarily waive and
relinquish my right to a trial by jury, and elect to be tried by a Judge of
the Court in which the said cause may be pending. I fully understand
that under the laws of this state, I have a constitutional right to a trial
by jury.”
Such waiver of trial by jury must be made in open court after the
defendant has been arraigned and has had opportunity to consult with
counsel. Such waiver may be withdrawn by the defendant at any time
before the commencement of the trial.
See also Lomax at ¶ 9 (“[T]o be valid, a [jury] waiver must meet five conditions. It
must be (1) in writing, (2) signed by the defendant, (3) filed, (4) made part of the
record, and (5) made in open court.”).
Smith does not dispute that his jury waivers complied with all
applicable statutory and common law requirements. He, nevertheless, argues that
the voluntariness of his jury waivers was undermined by administrative orders that
suspended and/or limited the scheduling of jury trials, requiring him to “choose
between continued confinement in the county jail and his right to a jury of his peers.”
Smith cites no authority in support of his claim that the temporary suspension of
jury trials or other limits on the scheduling of jury trials due to COVID-19 violated
the Sixth Amendment or invalidated his waiver of his right to a jury trial.
The First District considered — and rejected — a similar argument
in State v. Fisher, 2021-Ohio-3919, 180 N.E.3d 672 (1st Dist.), as follows:
This is an unusual case where Mr. Fisher concedes that he
waived his right to a jury trial and that this waiver satisfied all of the
statutory and caselaw requirements. Mr. Fisher nevertheless
maintains that an administrative order suspending jury trials in
Hamilton County because of the COVID-19 pandemic essentially
undermined the voluntariness of his waiver. In other words, he insists
that this administrative order posed an unconstitutional Hobson’s
choice—wait indefinitely for the resumption of jury trials or forego that
cherished right.
Mr. Fisher cites no authority for the proposition that a temporary
suspension of jury trials violated the Sixth Amendment, nor any cases
invalidating waivers of the right to a jury trial made during such a
suspension. While we realize that the suspension of jury trials placed
Mr. Fisher (along with countless others) in a predicament, we see no
reason to disturb an otherwise valid waiver on this record.
Id. at ¶ 17-18. We agree with the reasoning of Fisher.
Further, in this case, the record reflects that Smith’s decision to
waive a jury trial was not due solely to COVID-19-related difficulties in scheduling a
jury trial. Before trial commenced, defense counsel informed the trial court that it
was not only the delay in scheduling a jury trial but concerns regarding how a jury
might perceive some of the evidence against Smith relating to the December 26,
2020 incident — the admissibility of which Smith does not challenge on appeal —
that led Smith to choose a bench trial rather than wait for a jury trial. (Tr. 11) (“That’s
one of the reasons that we waived a jury, because the jury gets hold of that, they don’t
ignore it, and it hurts me and it hurts my defense.”).
In addition, it was only after Smith violated the terms of his bond in
651674, i.e., by admittedly having contact with Bradley, and then failed to appear for
a hearing on the state’s motion to revoke bond, that his bond was revoked, and Smith
was required to await trial in jail rather than remaining free on bond.
On the record before us, we see no reason to disturb Smith’s valid
jury waivers. Smith’s fifth assignment of error is overruled.
Judgment in 655568 affirmed; judgment in 651674 reversed;
convictions in 651674 only vacated; 651674 only remanded for a new trial.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., CONCURS;
MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT ONLY AND DISSENTS
IN PART (WITH SEPARATE OPINON)
N.B. Judge Mary Eileen Kilbane joined the dissenting opinion by Judge Lisa B.
Forbes and the concurring in part and dissenting in part opinion by Judge Anita
Laster Mays in Delvallie and would have found the Reagan Tokes Law
unconstitutional.
MICHELLE J. SHEEHAN, J., CONCURRING IN JUDGMENT ONLY IN PART
AND DISSENTING IN PART:
Respectfully, I concur in judgment only with the majority opinion
affirming Garry Smith’s convictions in Cuyahoga C.P No. 655568 and the resolution
of Smith’s fourth and fifth assignments of error. However, I dissent from the
majority opinion and would overrule Smith’s first, second, and third assignments of
error as they pertain to his convictions in Cuyahoga C.P. No. 651674.
In Cuyahoga C.P. No. 651674, Smith was convicted of felony
domestic violence. The trial court admitted the victim’s statements made on
March 21, 2020, to the responding police officer, her statements made to emergency
medical technicians as recorded on the police body camera, the victim’s medical
records, and evidence of Smith’s prior conviction for domestic violence.
The majority opinion found that all the victim’s statements made to
police while she was in the ambulance were testimonial and thus inadmissible.
Majority Opinion, ¶ 93. I disagree and would not find the victim’s answers to the
initial questioning by police to be testimonial under the primary purpose test
announced by the United States Supreme Court in Davis v. Washington, 547 U.S.
813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Police responded to an emergency call,
the victim was being treated by emergency medical technicians, and the initial
questions asked of the victim and her responses where for the police to assess the
nature and circumstances of the call. Id. at 822 (Statements are not testimonial
“when made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency.”). I would further find that as the police
learned the details as to what occurred, where it occurred, what occurred, and who
was involved, the purpose of the questioning changed. The police sought to
ascertain information as to specific details of the assault and information to later
locate both the victim and Smith. Such questioning marked a change to the purpose
of the interview because those questions were in made “to establish or prove past
events potentially relevant to later criminal prosecution.” Id.Having found the entirety of the victim’s statements made to the
police to be testimonial, the majority finds that the admission of those statements
was prejudicial and such error was not harmless. Majority Opinion, ¶ 105. I
disagree. The trial court had admissible evidence in the form of the victim’s initial
statements to police, visual evidence of the injuries sustained, details of the assault
in the victim’s statements to the emergency medical technicians, and the victim’s
statements contained within her medical records. As such, I would find that the
admission of the victim’s statements once the purpose of the police questioning
changed to be duplicative of, or cumulative to, the admissible evidence before the
trial court and that the errant admission of the victim’s statements constituted
harmless error.