State v. Easterling , 2019 Ohio 2470 ( 2019 )

[Cite as State v. Easterling, 2019-Ohio-2470.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-33
:
v. : Trial Court Case No. 2018-CR-189
:
BRIAN K. EASTERLING : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 20th day of June, 2019.
...........
DAVID M. MORRISON, Atty. Reg. No. 0084368, Greene County Prosecutor’s Office,
Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
DAVID R. MILES, Atty. Reg. No. 0013841, 1160 E. Dayton-Yellow Springs Road,
Fairborn, Ohio 45324
Attorney for Defendant-Appellant
.............
FROELICH, J.
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{¶ 1} Brian K. Easterling was convicted after a jury trial of domestic violence, a
third-degree felony, and obstructing official business, a second-degree misdemeanor.
The trial court sentenced him to concurrent sentences totaling 36 months in prison.
Easterling appeals from his convictions, raising seven assignments of error. For the
following reasons, the trial court’s judgment as to obstructing official business will be
affirmed; the judgment as to domestic violence will be modified to a first-degree
misdemeanor, the sentence for domestic violence will be modified to the maximum 180
days in jail, and the judgment will be affirmed as modified. Easterling will be ordered
released from custody on this matter, subject to any detainers, hold orders, or other orders
that would require his continued imprisonment or detention.
I. Factual and Procedural History
{¶ 2} The State’s evidence at trial established the following facts.
{¶ 3} On March 1, 2018, Easterling, then 43 years old, and his 78-year-old father,
Ernest Easterling,1 resided together in Xenia. Easterling’s 51-year-old brother, Michael
Shane Easterling (“Shane”), lived approximately one and a half blocks away. Shane
stated that it would take one to two minutes to drive from one residence to the other.
{¶ 4} Sometime between 11:00 p.m. and midnight on March 1, Ernest drove to
Shane’s home and “beat” on Shane’s door. Shane testified that Ernest appeared “very
stressed out” and “dazed.” Shane stated that Ernest was acting normally, but appeared
“very anxious” and “very agitated.” Shane noticed that Ernest (who shaved his head)
1
Because Easterling’s family members share the same surname, we will refer to his
family members by their first names for the sake of clarity.
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had a lump on the back of his head. Shane had seen his father earlier in the day, and
Ernest did not have a lump on his head at that time. Shane testified that his father had
“thin skin” on his arms, which bled easily, but he had never seen his father develop a knot
from someone just touching him.
{¶ 5} Shane testified, over objection,2 that Ernest asked him “to please come and
get Brian [Easterling] out of his house because Brian had just punched him and knocked
him to the floor.” Shane responded to his father that he “wasn’t messing with Brian.
That he’s not worth me going to jail over.” Shane calmed his father down and called the
police. Shane then drove his father home in his father’s truck. The two men sat in the
truck awaiting the police. Shane repeatedly offered to drive his father to the hospital, but
Ernest refused to go.
{¶ 6} Xenia Police Officers Atkins and Roelker arrived almost instantaneously.
Ernest remained in the truck, and Shane stood outside the vehicle. Officer Roelker
spoke with Ernest, while Officer Atkins spoke with Shane and another man. The officers
offered to call an ambulance, but Ernest refused medical treatment.
{¶ 7} While Shane was speaking with Officer Atkins, Easterling came onto the front
porch and walked to the edge of the steps, approximately 10 feet from the front door.
Officer Atkins testified that he started to approach Easterling, told Easterling that he
needed to talk with Easterling, and told Easterling not to go back into the house.
Easterling, however, turned around and started back toward the front door. Officer
Atkins continued to tell Easterling to stop and not go back into the house.
2 The trial court ruled that Ernest’s statement to Shane was admissible as an excited
utterance.
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{¶ 8} Shane told Officer Atkins that Easterling was going to lock the door and they
were not going to be able to enter. In response, Officer Atkins went to the front door and
grabbed the door. Atkins stated that Easterling slammed the door shut. Shane testified
that Easterling was forcibly holding the door closed and got into a “pushing match” with
the officer. Officer Roelker then went to the front door to assist Officer Atkins, and the
two officers pushed their way in. The officers struggled briefly with Easterling while
arresting him. Officer Atkins testified that Easterling’s actions hindered his ability to
perform his official duties.
{¶ 9} Officer Anthony Vitale came to Easterling’s residence to assist Officers Atkins
and Roelker. He was asked to take photographs of Ernest’s reported injuries. Ernest
was still seated in the passenger seat of his vehicle. Officer Vitale took photographs of
the outside of the residence, of Ernest taken from the outside of the truck, and of the back
right side of Ernest’s head. Vitale testified that he personally observed Ernest’s head,
and there appeared to be a “slight swelling to the area where I took photos.” Officer
Vitale stated that he saw small red marks in that area.
{¶ 10} The parties stipulated that Easterling had two or more prior convictions for
domestic violence.
{¶ 11} On March 12, 2018, Easterling was indicted for domestic violence and
obstructing official business. The domestic violence charge included an allegation that
Easterling had previously been convicted of domestic violence three times – twice in
Xenia Municipal Court (Case Nos. 05 CRB 1759 and 12 CRB 1150) and once in the
Greene County Court of Common Pleas (Case No. 02 CR 862). The existence of the
prior convictions elevated the domestic violence charge to a third-degree felony. See
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R.C. 2919.25(D)(4).
{¶ 12} Trial was scheduled for May 21, 2018. On May 3, Easterling requested a
continuance of the trial date on the ground that his counsel had a scheduling conflict.
The court granted the motion and reset the matter for noon on June 4, 2018.
{¶ 13} Ernest died of an unrelated illness on May 28, 2018. On the morning of
June 4, 2018, Easterling filed a motion in limine, seeking to preclude the admission of
statements made by Ernest to the Xenia police officers and Ernest’s written statement.
Easterling argued that the admission of these statements would violate the Confrontation
Clause. The trial court did not rule on the motion before the parties appeared for trial.
{¶ 14} On June 4, prior to beginning the trial and outside the presence of
prospective jurors, the trial court invited the parties to place on the record the status of
any plea negotiations. Defense counsel stated that his understanding of the procedure
under Lafler v. Cooper, 566 U.S. 156, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), was that
the trial court needed to be satisfied that plea negotiations were made, that Easterling
was aware of the plea negotiations, and that Easterling’s decision regarding the plea was
made with full understanding of what those plea negotiations were. The court then
questioned Easterling about the plea negotiations, and Easterling repeatedly stated that
he did not “understand any of this.” When Easterling stated that he had chosen to go to
trial, the trial court indicated that the trial would proceed.
{¶ 15} Defense counsel told the trial court that the State had offered a plea
whereby Easterling would pled to domestic violence as a fourth-degree felony and the
case would be “administratively terminated today.” The trial court responded that the
State had made that offer during the previous week and that the offer had been rejected
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by Easterling. Defense counsel agreed that the plea had been rejected, but noted that
the rejection occurred within 24 hours of Ernest’s death. The court then had the
prospective jurors brought into the courtroom to begin jury selection.
{¶ 16} Before the State called its first witness (Shane), the State brought to the
court’s attention that it had not addressed the motion in limine. The court invited
arguments from counsel. Defense counsel argued that the admission of statements by
Ernest to the police would violate the Confrontation Clause. Counsel further stated that
he had recently become aware that the State intended to offer statements made by Ernest
to Shane; defense counsel argued that these statements were inadmissible hearsay.
The prosecutor responded that Ernest’s statements to Shane fell within a hearsay
exception and were not testimonial. The trial court provisionally overruled the motion,
stating that it would “allow the testimony to develop” and that defense counsel could object
when he felt an objection was appropriate.
{¶ 17} The trial proceeded with three witnesses from the State; Easterling did not
call any witnesses. Through cross-examination of the State’s witnesses, Easterling
attempted to show that Ernest was alcoholic and prone to falling and that Shane’s
testimony was not credible due to animosity between the brothers. During closing
argument, defense counsel further argued that Easterling did not obstruct official
business, because his actions delayed his arrest by only 90 seconds, per Officer Atkins’s
testimony.
{¶ 18} The jury found Easterling guilty of both domestic violence and obstructing
official business; the verdict form for domestic violence did not require a finding regarding
Easterling’s prior convictions, and it did not reference the degree of the offense. After a
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presentence investigation, the trial court imposed 60 days for obstructing official business
and a maximum 36 months for domestic violence as a third-degree felony, to be served
concurrently.
{¶ 19} Easterling appeals, raising seven assignments of error. We will address
them in a manner that facilitates our analysis.
II. Plea Negotiations
{¶ 20} Easterling’s first and second assignments of error concern the plea
bargaining process. His first assignment claims that he received ineffective assistance
of counsel during plea negotiations. His second assignment claims that the trial court
erred in not allowing him to explain his reasons for turning down the proposed plea
agreement.
{¶ 21} The Sixth Amendment to the United States Constitution guarantees a
defendant the effective assistance of counsel at “critical stages of a criminal proceeding,”
including during the plea bargaining process. E.g., Lafler, 566 U.S. at 162, 165, 132
S. Ct. 1376, 182 L. Ed. 2d 398; Lee v. United States, __ U.S. __, 137 S. Ct. 1958, 1964,
198 L. Ed. 2d 476 (2017); State v. Romero, Ohio Slip Opinion No. 2019-Ohio-1839, ¶ 14.
When a defendant alleges ineffective assistance of counsel arising from the plea
bargaining process, the defendant must satisfy the two-prong test set out in Strickland v.
Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Romero at ¶
14.
{¶ 22} To establish ineffective assistance of counsel, a defendant must
demonstrate both that trial counsel’s conduct fell below an objective standard of
reasonableness and that the errors were serious enough to create a reasonable
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probability that, but for the errors, the outcome of the case would have been different.
See Strickland at 688; State v. Bradley, 42 Ohio St. 3d 136, 142, 538 N.E.2d 373 (1989).
The failure to make a showing of either deficient performance or prejudice defeats a claim
of ineffective assistance of counsel. Strickland at 697.
{¶ 23} Trial counsel is entitled to a strong presumption that his or her conduct falls
within the wide range of reasonable assistance. Id. at 688. A defendant is entitled to
“reasonable competence” from his or her attorney, not “perfect advocacy.” See
Maryland v. Kulbicki, 136 S. Ct. 2, 5 (2015), citing Yarborough v. Gentry, 540 U.S. 1, 8,
124 S. Ct. 1, 157 L. Ed. 2d 1 (2003). Hindsight is not permitted to distort the assessment
of what was reasonable in light of counsel’s perspective at the time, and a debatable
decision concerning trial strategy cannot form the basis of a finding of ineffective
assistance of counsel. State v. Cook, 65 Ohio St. 3d 516, 524-525, 605 N.E.2d 70
(1992); State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, ¶ 38 (2d Dist.).
{¶ 24} With respect to claims of ineffective assistance regarding plea negotiations,
we have held that a defendant must demonstrate that (1) he or she was offered a plea
agreement; (2) his or her defense counsel provided legally unsound advice by
recommending that he reject the offer; (3) he or she would have entered into the
agreement but for counsel’s unsound advice; (4) the offer would not have been
withdrawn; (5) the trial court would have approved the agreement; and (6) the sentence
pursuant to the agreement would have been more favorable than the sentence actually
imposed by the court. State v. Thompson, 2d Dist. Montgomery No. 27924, 2018-Ohio-
4689, ¶ 11, citing Lafler at 162-164 and State v. Royster, 2d Dist. Montgomery No. 26378,
2015-Ohio-625, ¶ 32-33.
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{¶ 25} The court conducted a Lafler hearing 3 shortly before trial. During that
hearing, Easterling repeatedly stated that he did not understand the plea negotiations,
and he seemed confused about what was occurring during the Lafler hearing. However,
Easterling told the court that he had decided to go to trial. The basis for that decision
was not discussed. Defense counsel described a plea agreement that had been offered
by the State, but the court noted, and defense counsel agreed, that the offer had been
rejected. Defense counsel indicated that the rejection occurred within a day of Ernest’s
death. There was no discussion about the reasoning behind the rejection, including
whether the rejection was based on legal advice from defense counsel. Neither
Easterling nor defense counsel asked to place the reasoning on the record.
{¶ 26} On appeal, Easterling contends that his defense counsel did not properly
3
We note the parties’ briefs refer to the pretrial on-the-record discussion of a plea offer
and its rejection as a “Lafler hearing,” but that is a misnomer. In Lafler, the United States
Supreme Court indicated the trial court could have conducted a hearing, at the point after
the jury’s guilty verdict and before sentencing, to flesh out defendant’s post-verdict and
pre-sentencing claim that he had received ineffective assistance in plea negotiations
before trial. In situations where the charges that would have been admitted as part of
the plea bargain are the same as the charges the defendant was convicted of after trial,
“the court may conduct an evidentiary hearing to determine whether the defendant has
shown a reasonable probability that but for counsel’s errors he would have accepted the
plea.” Lafler, 566 U.S. at 171, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012). In other
situations, such as when the offer was to plead to lesser charges, the prosecution may
be required to reoffer the plea proposal. Id.
The procedure utilized in the case before us, where the trial court assures that the
defendant is aware of a plea offer and accepts or rejects it on the record, is a prophylactic
measure to document a plea offer and its rejection. That is not a true “Lafler hearing”
where the defendant has the opportunity to raise ineffective assistance of counsel in
previous plea negotiations. In fact, case law supports the notion that a court, pre-trial,
should not inquire into the reasons for defendant’s rejection of a plea offer or counsel’s
specific advice because that could interfere with attorney-client privilege or unwittingly
reveal defense trial tactics. See, e.g., United States v. Quezada-Trujillo, D.N.M. No. 17-
CR-578 WJ, 2018 WL 1662548, *1-3 (Apr. 5, 2018). Nevertheless, we refer to the
pretrial record in this case as a “Lafler hearing,” because that is what the parties called it.
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advise him of the consequences of his father’s death as it related to the State’s ability to
prosecute him without his father’s appearance as a witness. Easterling indicates that he
learned on the morning of trial that his brother would be testifying about statements that
their father made concerning the domestic violence. Easterling thus claims that his
decision to go to trial was not an informed decision.
{¶ 27} “A claim of ineffective assistance of counsel cannot be asserted on direct
appeal if it relies on matters outside the record.” State v. Harris, 2d Dist. Montgomery
No. 27179, 2017-Ohio-9052, ¶ 19. Here, the basis for Easterling’s rejection of the State’s
plea is not part of the record. The record also does not detail the advice that Easterling
received from his attorney regarding the plea. Accordingly, Easterling’s ineffective
assistance claim is not properly raised in this appeal.
{¶ 28} In addition, we find no indication in the record that the trial court precluded
Easterling from stating, on the record, his reasons for turning down the proposed plea.
Easterling states that the trial court was “rude,” did not provide him an opportunity to
explain, and did not inquire of defense counsel the status of plea negotiations. However,
the court provided defense counsel an opportunity to raise any additional matters during
the Lafler hearing, and defense counsel did not request an opportunity to place on the
record Easterling’s reasons for rejecting the plea.
{¶ 29} Easterling’s first and second assignments of error are overruled.
III. Sufficiency of the Evidence
{¶ 30} In his fourth and fifth assignments of error, Easterling claims that his
convictions for obstructing official business and domestic violence were based on
insufficient evidence.
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{¶ 31} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St. 3d 380, 386, 678
N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, after
viewing the evidence in a light most favorable to the State, could have found the essential
elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio
St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal
unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”
Id.
{¶ 32} In reviewing challenges based on the sufficiency of the evidence, we are
required to consider all of the evidence admitted at trial, regardless of whether it was
admitted erroneously. State v. Brewer, 121 Ohio St. 3d 202, 2009-Ohio-593, 903 N.E.2d
284; State v. Rosales, 2d Dist. Montgomery No. 27117, 2018-Ohio-197, ¶ 16, citing State
v. Johnson, 2015-Ohio-5491, 55 N.E.3d 648, ¶ 95 (2d Dist.).
A. Obstructing Official Business
{¶ 33} Easterling was convicted of obstructing official business, in violation of R.C.
2921.31(A). That statute reads: “No person, without privilege to do so and with purpose
to prevent, obstruct, or delay the performance by a public official of any authorized act
within the public official’s official capacity, shall do any act that hampers or impedes a
public official in the performance of the public official’s lawful duties.”
{¶ 34} Easterling claims that his conviction for obstructing official business must
be reversed for several reasons. First, he asserts that he did not engage in any
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affirmative act or undertaking that hampered or obstructed the Xenia police officers in
their investigation of domestic violence. He argues that he merely refused to cooperate.
Second, Easterling argues that he did not make any false or incorrect statements to the
officers. Third, citing State v. Grice, 190 Ohio App. 3d 700, 2009-Ohio-372, 906 N.E.2d
1203 (1st Dist.), he argues that his conduct did not create a “substantial stoppage of the
officer’s progress,” because he was quickly apprehended. Id. at ¶ 12.
{¶ 35} To be guilty of the offense of obstructing official business, an individual must
commit an overt act done with an intent to obstruct a public official, such as a police
officer, and the act must succeed in actually hampering or impeding that officer. State
v. Davis, 2017-Ohio-5613, 94 N.E.3d 194, ¶ 37 (2d Dist.). “The proper focus in a
prosecution for obstructing official business is on the defendant’s conduct, verbal or
physical, and its effect on the public official’s ability to perform the official’s lawful duties.”
State v. Henry, 2018-Ohio-1128, 110 N.E.3d 103, ¶ 55 (10th Dist.), quoting State v.
Wellman, 173 Ohio App. 3d 494, 2007-Ohio-2953, 879 N.E.2d 215, ¶ 12 (1st Dist.); State
v. Gibson, 2019-Ohio-1022, __ N.E.3d. __, ¶ 18 (2d Dist.). The totality of the defendant’s
conduct should be considered, as opposed to viewing each act in isolation. State v.
Body, 2018-Ohio-3395, 117 N.E.3d 1024, ¶ 22 (2d Dist.).
{¶ 36} We have consistently held that, to violate the obstructing official business
statute, the defendant must engage in an affirmative act(s) that hampers or impedes a
public official in the performance of the official’s duties. E.g., State v. Gillam, 2d Dist.
Montgomery No. 27998, 2019-Ohio-808, ¶ 15; State v. Fader, 2d Dist. Montgomery No.
27828, 2018-Ohio-4139, ¶ 12; State v. Prestel, 2d Dist. Montgomery No. 20922, 2005-
Ohio-5236. “A mere failure or refusal to respond to an officer’s request does not
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constitute obstructing official business.” (Citations omitted.) State v. Crawford, 2d Dist.
Montgomery No. 25506, 2013-Ohio-4398, ¶ 17; see also Body at ¶ 21. “For example,
refusing to answer the door when police knock and identify themselves and refusing to
obey an officer’s request for information [do] not constitute obstructing official business.”
Prestel at ¶ 16.
{¶ 37} “Generally, an individual can be found guilty of obstructing official business
when he [or she] persists in performing a specific act [after] a police officer has told him
[or her] to stop.” Girard v. Oakman, 2018-Ohio-1212, 110 N.E.3d 530, ¶ 52 (11th Dist.);
see Gibson at ¶ 19. “[I]f an officer has the right to detain an individual, the individual
cannot continue walking away from the officer once he [or she] is aware that the officer is
trying to detain him [or her].” State v. Harris, 2015-Ohio-5378, 56 N.E.3d 286, ¶ 7 (9th
Dist.), citing State v. Davis, 140 Ohio App. 3d 751, 753, 749 N.E.2d 322 (1st Dist.2000);
see State v. Holloway, 2d Dist. Clark No. 2017-CA-91, 2018-Ohio-4636, ¶ 37. Fleeing
from a lawful Terry stop is an affirmative act that constitutes obstructing official business.
Holloway at ¶ 37.
{¶ 38} For example, in State v. McLaughlin, 2015-Ohio-4611, 48 N.E.3d 987 (2d
Dist.), a police officer was investigating a report of a stolen vehicle when he observed a
prior occupant of the vehicle (the defendant) walking toward the vehicle. Upon seeing
the officer by the vehicle, the defendant turned and began to walk away. The officer
immediately ordered the defendant to stop. The defendant turned and looked at the
officer, but continued to walk away. We concluded that “walking away despite being
ordered repeatedly to stop in the course of [the officer’s] investigation of the stolen vehicle
constitutes an affirmative act or undertaking that impeded [the officer’s] ability to perform
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his duty.” Id. at ¶ 17.
{¶ 39} Other appellate districts have concluded that a defendant’s act of retreating
into his or her home, contrary to an officer’s instructions, can constitute obstructing official
business. For example, the Ninth District Court of Appeals affirmed a conviction for
obstructing official business when the defendant retreated into his house after being
ordered to place his hands on his head. Harris at ¶ 8. Similarly, the Third District
concluded that a defendant’s acts of twice withdrawing into his home, failing to provide
identification, and using belligerent and profane language constituted obstructing official
business. State v. Shoe, 3d Dist. Shelby No. 17-17-22, 2018-Ohio-3006.
{¶ 40} In this case, Easterling came onto the porch of his home while two police
officers were talking to his father, brother, and another individual regarding a complaint
of domestic violence. Officer Atkins approached Easterling, told Easterling that he
(Atkins) needed to talk with Easterling, and instructed Easterling not to go back into the
house. Easterling ignored Officer Atkins’s instructions and started back toward the front
door, despite Officer Atkins’s continued commands that Easterling stop and not go back
into the house. When Officer Atkins reached the front door, Easterling slammed the door
in his face and pushed on the door to prevent the officer’s entry. Officer Roelker, who
had been speaking with Shane and another individual, came and assisted Officer Atkins’s
efforts to enter the home and arrest Easterling. Easterling did not merely refuse to
cooperate; he engaged in the affirmative conduct of disobeying the officer’s order to stop
and not return to the house, entering his home, and pushing against the door to prevent
the officers from apprehending him.
{¶ 41} Easterling asserts that he did not obstruct official business, because he did
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not provide incorrect or false statements. We have stated that verbal acts alone,
including the provision of false identification or statements, can constitute obstructing
official business. See, e.g., Gibson, 2019-Ohio-1022, __ N.E.3d __, at ¶ 18; Fader, 2d
Dist. Montgomery No. 27828, 2018-Ohio-4139, ¶ 18 (State presented sufficient evidence
of obstructing official business based on defendant’s provision of false identity).
However, obstructing official business is not limited to situations where false or incorrect
statements are made.
{¶ 42} Finally, the fact that the delay occasioned by Easterling’s conduct was
approximately 90 seconds does not require the reversal of his conviction. As stated by
the First District, “ ‘[w]e do not hold that any finite period of time constitutes a “substantial
stoppage,” be the delay occasioned by the interference thirty seconds or two minutes.’
If the record demonstrates that the defendant’s act hampered or impeded the officer in
the performance of his duties, the evidence supports the conviction.” Wellman, 173 Ohio
App.3d 494, 2007-Ohio-2953, 879 N.E.2d 215, ¶ 18, quoting State v. Dunn, 1st Dist.
Hamilton No. C-790319, 1980 WL 352885, * 2 (Mar. 26, 1980); see, e.g., Fader at ¶ 18
(quoting Wellman). While the delay occasioned by Easterling’s conduct was not long,
the State’s evidence established that Easterling’s conduct impeded and delayed the
officers’ investigation of the domestic violence complaint and Easterling’s arrest.
{¶ 43} Easterling’s fourth assignment of error is overruled.
B. Domestic Violence
{¶ 44} Easterling was also convicted of domestic violence, in violation of R.C.
2919.25(A). R.C. 2919.25(A) provides: “No person shall knowingly cause or attempt to
cause physical harm to a family or household member.” The phrase “family or household
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member” includes a parent of the offender who is residing with the offender. R.C.
2919.25(1)(a)(ii).
{¶ 45} Easterling’s argument that the State’s evidence was insufficient is based on
a contention that his father’s statements to his brother should have been excluded.
Easterling asserts that, if his father’s statements to his brother were excluded, the
remaining evidence would be insufficient to convict him of domestic violence.
{¶ 46} As stated above, in reviewing the sufficiency of the evidence, we consider
the evidence that was admitted at trial, regardless of whether it was improperly admitted.
As the Ohio Supreme Court stated in Brewer, 121 Ohio St. 3d 202, 2009-Ohio-593, 903
N.E.2d 284:
By permitting a reviewing court to consider all the evidence
presented at trial, Lockhart’s [Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct.
285, 102 L. Ed. 2d 265 (1988)] holding recognizes that the state may rely
upon the trial court’s evidentiary rulings in deciding how to present its case.
“If the evidence offered by the State is received after challenge and is legally
sufficient to establish the guilt of the accused, the State is not obligated to
go further and adduce additional evidence that would be, for example,
cumulative. Were it otherwise, the State, to be secure, would have to
assume every ruling by the trial court on the evidence to be erroneous and
marshall [sic] and offer every bit of relevant and competent evidence. The
practical consequences of this would adversely affect the administration of
justice, if for no other reason, by the time which would be required for
preparation and trial of every case.” State v. Wood (Mo. 1980), 596
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S.W.2d 394, 398-399; State v. Gray (1986), 200 Conn. 523, 538, 512 A.2d
217.
Brewer at ¶ 19. Easterling does not argue that the State’s evidence as a whole was
insufficient to support his conviction for domestic violence.
{¶ 47} Construing the evidence in the light most favorable to the State, we
conclude that the State’s evidence was sufficient to support Easterling’s conviction for
domestic violence. The State’s evidence at trial, if believed, established that Easterling
assaulted Ernest, his father, at their home and that Ernest drove to Shane’s residence to
seek help to remove Easterling from the residence. Shane and Officer Vitale observed
a lump on Ernest’s head; that injury was not present when Shane saw Ernest earlier in
the day. Accordingly, the State’s evidence was sufficient to show that Easterling
knowingly caused physical harm to a family member, in violation of R.C. 2919.25(A).
{¶ 48} The fifth assignment of error is overruled.
IV. Admissibility of the Father’s Statements to Brother
{¶ 49} In his third assignment of error, Easterling claims that the trial court erred in
admitting into evidence a statement made by Ernest to Shane, Easterling’s brother.
Easterling argues that the statement was inadmissible hearsay and its admission violated
the Confrontation Clause of the Sixth Amendment to the United States Constitution.
{¶ 50} “[T]he [United States] Supreme Court has recognized that a defendant’s
Sixth Amendment right to confront witnesses against him is violated when an out-of-court
statement that is testimonial in nature is admitted into evidence without the defendant
having had the opportunity to cross-examine the declarant.” State v. Eicholtz, 2d Dist.
Clark No. 2012-CA-7, 2013-Ohio-302, ¶ 26, citing Crawford v. Washington, 541 U.S. 36,
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68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Testimonial statements include statements “ ‘that were made under
circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial.’ ” State v.
Kelley, 2d Dist. Clark No. 2011 CA 37, 2012-Ohio-1095, ¶ 58, quoting
Crawford at 52. “ ‘[S]tatements are nontestimonial when made in the
course of police interrogation under circumstances objectively indicating
that the primary purpose of interrogation is to enable police assistance to
meet an ongoing emergency. They 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.’ ”
Eicholtz at ¶ 26, quoting Davis v. Washington, 547 U.S. 813, 126 S. Ct.
2266, 165 L. Ed. 2d 224 (2006), paragraph one of the syllabus.
State v. Kerr, 2d Dist. Montgomery No. 26686, 2016-Ohio-965, ¶ 22.
{¶ 51} The Sixth Amendment right to confrontation of witnesses does not extend
to nontestimonial hearsay. State v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-
624, ¶ 13, citing State v. Stahl, 111 Ohio St. 3d 186, 2006-Ohio-5482, 855 N.E.2d 834,
¶ 21. Evid.R. 803(1) permits the admission of a “present sense impression,” which is
defined as “[a] statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter unless
circumstances indicate lack of trustworthiness.” Similarly, Evid.R. 803(2) excludes an
excited utterance from the hearsay rule. An excited utterance is “[a] statement relating
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to a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition.” Evid.R. 803(2).
{¶ 52} The excited utterance and present sense impression exceptions to the
definition of hearsay reflect “an assumption that statements or perceptions that describe
events uttered during or within a short time from the occurrence of the event are more
trustworthy than statements not uttered at or near the time of the event. Moreover, ‘the
key to the statement’s trustworthiness is the spontaneity of the statement, either
contemporaneous with the event or immediately thereafter. By making the statement at
the time of the event or shortly thereafter, the minimal lapse of time between the event
and statement reflects an insufficient period to reflect on the event perceived — a fact
which obviously detracts from the statement’s trustworthiness.’ ” State v. Travis, 165
Ohio App. 3d 626, 2006-Ohio-787, 847 N.E.2d 1237, ¶ 35 (2d Dist.), quoting State v.
Ellington, 8th Dist. Cuyahoga No. 84014, 2004-Ohio-5036, ¶ 10.
{¶ 53} Finally, relevant evidence is generally admissible whereas irrelevant
evidence is not. Evid.R. 402. “Relevant evidence” is defined as “evidence having any
tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.”
Evid.R. 401. Relevant evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading
the jury. Evid.R. 402; Evid.R. 403(A).
{¶ 54} A trial court has broad discretion to admit or exclude evidence, and its
exercise of that discretion will not be disturbed on appeal absent an abuse of discretion.
Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, at ¶ 14. “A trial court abuses
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its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”
State v. Darmond, 135 Ohio St. 3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.
{¶ 55} We find no abuse of discretion in the trial court’s determination that Ernest’s
statements to Shane were admissible under the excited utterance exception to the
hearsay rule. Shane testified that he lived one and a half blocks from Ernest’s home,
and that it would take a minute to 90 seconds to get from one residence to the other.
Shane stated that Ernest came to his (Shane’s) home late at night, looking “very stressed
out,” “very anxious,” and “very agitated.” Shane indicated that Ernest had a “dazed look
in his eyes” and a lump on his head, which had not been there earlier in the day. Based
on the testimony, the trial court reasonably concluded that Ernest was “under the stress
of excitement caused by the event or condition” when he came to Shane’s home and
spoke to Shane.
{¶ 56} In addition, although Easterling did not expressly raise the Confrontation
Clause as part of his objection during Shane’s testimony, we conclude that Ernest’s
statements were not testimonial. In determining whether a statement is testimonial for
Confrontation Clause purposes, we focus on the expectation of the declarant at the time
of making the statement. State v. Beasley, 153 Ohio St. 3d 497, 2018-Ohio-493, 108
N.E.3d 1028, ¶ 182; Stahl, 111 Ohio St. 3d 186, 2006-Ohio-5482, 855 N.E.2d 834, at ¶ 36.
As noted in Beasley, “[a] truly excited utterance is unlikely ever to meet this standard;
certainly an objective observer would not believe that when Davis [a shooting victim],
scared, bleeding, and in shock, sought help from strangers, he expected his statements
to be available for use at trial.” Id. at ¶ 182.
{¶ 57} In this case, Ernest went to the nearby home of his son, Shane, to seek
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assistance; he had recently been assaulted and wanted help removing Easterling from
his home. An objective person would not reasonably believe that the primary purpose
of Ernest’s statements to Shane was to establish or prove past events potentially relevant
to later criminal prosecution. Rather, viewed objectively, Ernest’s statements were made
under the stress of the recent abuse with the purpose to seek help. Accordingly, Ernest’s
statements were nontestimonial, and the Confrontation Clause did not preclude the
admission of his statements to Shane at trial.
{¶ 58} Easterling’s third assignment of error is overruled.
V. Degree of the Domestic Violence Offense / Verdict Form
{¶ 59} In his seventh assignment of error, Easterling claims that the trial court erred
in sentencing him for domestic violence as a felony of the third degree when the verdict
form did not include the degree of the offense or a jury finding regarding an aggravating
element (two or more prior convictions).
{¶ 60} Easterling was indicted for domestic violence, in violation of R.C.
2919.25(A). In general, a violation of R.C. 2919.25(A) is a misdemeanor of the first
degree. R.C. 2919.25(D)(2). When an offender has previously pleaded guilty to or
been convicted of one domestic violence offense, the domestic violence charge is a felony
of the fourth degree. R.C. 2919.25(D)(3). The existence of two or more prior guilty
pleas or convictions elevates the domestic violence charge to a felony of the third degree.
R.C. 2919.25(D)(4). Easterling’s indictment alleged that he had previously been
convicted of domestic violence three times – twice in Xenia Municipal Court (Case Nos.
05 CRB 1759 and 12 CRB 1150) and once in the Greene County Court of Common Pleas
(Case No. 02 CR 862).
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{¶ 61} R.C. 2945.75(A)(2) provides: “When the presence of one or more additional
elements makes an offense one of more serious degree: * * * A guilty verdict shall state
either the degree of the offense of which the offender is found guilty, or that such
additional element or elements are present. Otherwise, a guilty verdict constitutes a
finding of guilty of the least degree of the offense charged.”
{¶ 62} The Ohio Supreme Court has held that, “pursuant to the clear language of
R.C. 2945.75, a verdict form signed by a jury must include either the degree of the offense
of which the defendant is convicted or a statement that an aggravating element has been
found to justify convicting a defendant of a greater degree of a criminal offense.” State
v. Pelfrey, 112 Ohio St. 3d 422, 2007-Ohio-256, 860 N.E.2d 735, ¶ 14. “Pelfrey makes
clear that in cases involving offenses for which the addition of an element or elements
can elevate the offense to a more serious degree, the verdict form itself is the only
relevant thing to consider in determining whether the dictates of R.C. 2945.75 have been
followed.” State v. McDonald, 137 Ohio St. 3d 517, 2013-Ohio-5042, 1 N.E.3d 374, ¶ 17.
{¶ 63} The Supreme Court commented that R.C. 2945.75 is “a clear and complete
statute” that “certainly imposes no unreasonable burden on lawyers or trial judges.”
McDonald at ¶ 14, citing Pelfrey at ¶ 12. The Court continued: “Its dictates are simple,
and the resolution of cases that do not meet its requirements is also straightforward: ‘The
statute provides explicitly what must be done by the courts [when R.C. 2945.75(A)(1) is
not followed]: the “guilty verdict constitutes a finding of guilty of the least degree of the
offense charged.” R.C. 2945.75(A)(2).’ ” Id., citing Pelfrey at ¶ 13.
{¶ 64} In this case, the verdict form for the charge of domestic violence was titled
“Verdict Form on Indictment For: Count 1 – Domestic Violence, O.R.C. 2919.25(A).” The
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form read: “We, the Jury, being duly impaneled and sworn, find the Defendant, Brian K.
Easterling, _________* of DOMESTIC VIOLENCE.” The jury was instructed to insert
“not guilty” or “guilty beyond a reasonable doubt” on the blank line; the jury wrote “guilty
beyond a reasonable doubt.” The record reflects, and the State agrees, that the verdict
form did not contain the degree of the domestic violence offense or the aggravating
circumstance. The jury was not asked to separately determine whether Easterling had
previously pled guilty or been convicted of two or more counts of domestic violence.
{¶ 65} The State asserts that the omission of the degree of the offense or the
aggravating circumstance in the verdict form should be deemed harmless error, because
the parties stipulated at trial that Easterling had two or more prior convictions for domestic
violence. We disagree.
{¶ 66} “A stipulation is a voluntary agreement between opposing counsel
concerning disposition of some relevant point so as to obviate the need for proof or to
narrow the range of litigable issues.” 89 Ohio Jurisprudence 3d, Trial § 60; State v. Carr,
2d Dist. Montgomery No. 23826, 2010-Ohio-6470, ¶ 12. “[A] stipulation, which is agreed
to by both parties, is evidence. * * * ‘It is, in truth, a substitute for evidence, in that it does
away with the need for evidence.’ ” (Emphasis added.) State v. Turner, 105 Ohio St. 3d
331, 2005-Ohio-1938, 826 N.E.2d 266, ¶ 40, quoting 9 Wigmore, Evidence (Chadbourn
Rev.1981) 821, Section 2588.
{¶ 67} Of relevance here, when a prior conviction elevates the level of an offense,
“ ‘the prior conviction is an essential element of the crime, and [it] must be proved by the
state.’ ” State v. Tate, 138 Ohio St. 3d 139, 2014-Ohio-44, 4 N.E.3d 1016, ¶ 17, quoting
State v. Allen, 29 Ohio St. 3d 53, 54, 506 N.E.2d 199 (1987). “An offender’s stipulation
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that he has the prior conviction satisfies the state’s obligation of proof.” State v. Harris,
2017-Ohio-5594, 92 N.E.3d 1283, ¶ 35 (1st Dist.). As stated by the Ohio Supreme Court,
“R.C. 2945.75(B)(1) sets forth one way to provide ‘sufficient’ proof of a prior conviction,
but does not provide the only method to prove it. For example, an offender may, and
often does, stipulate to a prior conviction to avoid the evidence being presented before a
jury.” (Emphasis sic.) State v. Gwen, 134 Ohio St. 3d 284, 2012-Ohio-5046, 982 N.E.2d
626, ¶ 14; see also, e.g., State v. Phillips, 4th Dist. Scioto No. 18CA3832, 2018-Ohio-
5432, ¶ 56 (without stipulations regarding defendant’s prior convictions, the state was
required to provide evidence of prior convictions to establish the felony domestic violence
charge); State v. Stover, 8th Dist. Cuyahoga No. 104388, 2017-Ohio-291, ¶ 21.
{¶ 68} In this case, the parties’ stipulation read: “1. The Defendant, Brian K.
Easterling, has previously been convicted, either after a plea of guilty, or after a jury
returned a verdict finding him guilty, of two or more offenses of domestic violence.” (Tr.
at 69; Doc. #39.) When the stipulation was read to the jury, the court instructed the jury
that “a stipulation is an agreement by both parties that certain facts are true.”
{¶ 69} During jury instructions, the trial court provided additional instructions
regarding the stipulation. Before addressing the elements of the two offenses, the trial
court repeated the definition of a stipulation and indicated that the following evidentiary
stipulation was made:
The Defendant, Brian Easterling, has previously been convicted, either after
a plea of guilty or after a jury returned a verdict finding him guilty, of two or
more offenses of Domestic Violence: specifically, Xenia Municipal Court
case number 12CRB01150; Xenia Municipal Court case number
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05CRB01759; and Greene County Common Pleas Court case number
02CR00862.
The trial court then addressed the elements of domestic violence, during which it provided
the following additional instructions regarding the stipulation:
Prior Conviction
The parties agree and stipulate the Defendant, Brian K. Easterling, has
been previously convicted of two or more offenses of Domestic Violence.
No other evidence needs to be submitted to make this determination.
Use of Prior Conviction: Enhancing the Degree of Offense
Evidence was received that the Defendant was previously convicted of
Domestic Violence. The offense of Domestic Violence is an offense of
violence against a family or household member. That evidence was
received because a prior conviction of Domestic Violence is an element of
the offense of Felony Domestic Violence. It was not received, and you may
not consider it, to prove the character of the Defendant in order to show that
he acted in conformity with that character.
(Emphasis added.)
{¶ 70} The presence of the parties’ stipulation did not obviate the requirement that
the verdict form include the degree of the offense or the aggravating circumstance. By
entering into the stipulation, the parties eliminated the requirement that the State present
evidence (outside of the stipulation) of Easterling’s prior convictions. The stipulation did
not eliminate the need for the jury, as the finder of fact, to make a factual finding regarding
the prior convictions or the degree of the domestic violence offense. See Carr, 2d Dist.
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Montgomery No. 23826, 2010-Ohio-6470 (stipulation regarding defendant’s prior drug
convictions was sufficient evidence of the prior convictions for the court to find the
defendant guilty of having weapons while under disability).
{¶ 71} The Third District held similarly in State v. Gregory, 3d Dist. Hardin No. 6-
12-02, 2013-Ohio-853. Gregory was indicted on a single count of domestic violence, a
felony of the third degree. At trial, Gregory stipulated that he had two prior convictions
of domestic violence, and copies of those convictions were admitted into evidence. The
trial court’s jury instruction included a statement that, before it could find Gregory guilty,
it “must find Defendant has pleaded guilty to or has been convicted of two or more
offenses of domestic violence involving a person who was a family or household member
at the time of the violations or offenses.” The verdict form, however, simply stated, “We,
the Jury in this case find the Defendant, Trace Elliot Gregory, guilty of the offense of
Domestic Violence.”
{¶ 72} On appeal, Gregory asserted that he could not be convicted of domestic
violence as a felony, pursuant to R.C. 2945.75(A)(2) and Pelfrey. Reviewing under a
plain error analysis, the Third District agreed. The appellate court stated: “Although
Gregory stipulated that he had two prior convictions for domestic violence and the jury
instructions specified the correct offense and degree, these facts, under Pelfrey, do not
excuse the failure to comply with R.C. 2945.75(A)(2).” Gregory at ¶ 21. The Third
District reversed Gregory’s conviction as a third-degree felony and remanded to the trial
court for the entry of a judgment convicting Gregory of domestic violence as a first-degree
misdemeanor.
{¶ 73} As stated above, the verdict form “is the only relevant thing to consider in
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determining whether the dictates of R.C. 2945.75 have been followed.” McDonald, 137
Ohio St. 3d 517, 2013-Ohio-5042, 1 N.E.3d 374, at ¶ 17. The jury’s verdict that Easterling
was guilty of domestic violence, in violation of R.C. 2919.25(A), without more, was
inadequate to convict Easterling of domestic violence as a felony. Easterling’s conviction
for domestic violence must be modified to reflect the lesser degree on which conviction
was appropriate, i.e., a misdemeanor of the first degree.
{¶ 74} Easterling began serving his prison sentence on July 26, 2018. In addition,
the trial court awarded him 141 days of jail time credit, plus credit for additional days while
awaiting transportation to the state institution. Consequently, Easterling has already
served his sentence for obstructing official business (60 days) and the maximum possible
sentence (180 days) for domestic violence as a first-degree misdemeanor. Accordingly,
rather than remand for resentencing, we elect to modify Easterling’s domestic violence
sentence to the maximum 180 days in jail, and he will be ordered released from custody
as to this matter.
{¶ 75} Easterling’s seventh assignment of error is sustained.
VI. Maximum Sentence
{¶ 76} In his sixth assignment of error, Easterling claims that the trial court erred
in imposing a maximum sentence of 36 months in prison. In light of our disposition of
Easterling’s seventh assignment of error, the sixth assignment of error is overruled as
moot.
VII. Conclusion
{¶ 77} The trial court’s judgment as to Easterling’s conviction for obstructing official
business will be affirmed. Easterling’s conviction for domestic violence will be modified
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to a first-degree misdemeanor, Easterling’s sentence for domestic violence will be
modified to the maximum 180 days in jail, and the judgment as to the domestic violence
charge will be affirmed as modified.
{¶ 78} The matter is remanded to the trial court with instructions to immediately
take the appropriate steps to advise the Ohio Department of Rehabilitation and Correction
of the modified domestic violence conviction and to cause Easterling’s immediate release
from prison, assuming that he is not subject to any detainers, hold orders, or other orders
that would require his continued imprisonment or detainment. The trial court is further
instructed to file a copy of this Opinion and Final Judgment Entry as part of the trial court
record in this case. Counsel for the parties to this appeal shall advise this Court, in
writing, within ten days of the date of this Court’s Final Judgment Entry as to the status of
this matter, including whether Easterling has, if appropriate, been released from prison.
.............
HALL, J. and TUCKER, J., concur.
Copies sent to:
David M. Morrison
David R. Miles
Hon. Michael A. Buckwalter
Ohio Department of Rehabilitation and Correction, regarding Brian K. Eastering (as
spelled on the ODRC website), #A746167