In re A.K. , 2021 Ohio 4199 ( 2021 )

[Cite as In re A.K., 2021-Ohio-4199.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: A.K. : APPEAL NO. C-210178
TRIAL NO. 19-4023-X
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 1, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee.
Raymond T. Faller, Hamilton County Public Defender, and Jessica R. Moss, Assistant
Public Defender, for Defendant-Appellant,
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} An anonymous tip led to A.K.’s arrest for possession of drugs. After a juvenile
court adjudicated A.K. delinquent, she now appeals challenging the admission of this
anonymous tip into evidence, the admission of a photograph of the contents of her purse at
the time of her arrest, and the weight and sufficiency of the evidence in support of her
adjudication. Although we agree that the juvenile court committed an evidentiary error by
admitting the anonymous tip, we ultimately find this error harmless. Seeing no reversible
error below, we overrule A.K.’s assignments of error and affirm the judgment of the juvenile
court.
I.
{¶2} This case arose after a security employee working at a local high school, Tonya
Terrell, received an anonymous tip that A.K., a 15 year-old student at the time, was selling
Xanax in the school. After pulling A.K. out of class, Ms. Terrell searched her purse and
discovered a bottle containing Oxycodone pills, with the name of the prescription owner
scratched off the label. Based on this evidence, the state eventually initiated delinquency
proceedings against A.K. for possession of drugs.
{¶3} At trial, A.K. testified that the pills belonged to her grandfather. She
explained that she often took care of her grandfather, and that she accompanied him to his
doctor’s appointment the day before and surmised that he must have placed the pills in her
purse at that time. According to A.K., her grandfather had a habit of storing his personal
items in her purse, such as his wallet, glasses, keys, and cellphone, which she claims were
also in her purse at the time of her arrest.
{¶4} Unfortunately, A.K.’s grandfather passed away before he could provide
testimony in this matter. However, Officer Dye, the school resource officer, recounted that
A.K.’s grandfather called him the day after her arrest and admitted that the pills belonged to
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him. Nevertheless, Officer Dye also testified that A.K. admitted to him during an interview
that “she got [the pills] from someone on the street.”
{¶5} That admission proved decisive, as the magistrate adjudicated A.K delinquent
for drug possession based upon it. The juvenile court subsequently adopted the magistrate’s
decision. On appeal, A.K. challenges (1) the admission of the anonymous tip alleging that
someone was selling drugs in the school, (2) the admission of a picture of the contents of her
purse, and (3) the weight and sufficiency of the evidence in support of her adjudication.
II.
{¶6} A.K.’s first assignment of error targets the anonymous tip identifying her as
someone selling drugs in the school as inadmissible hearsay along with a violation of her
Confrontation Clause rights under the federal and Ohio Constitutions. The anonymous tip
first emerged on direct examination of Ms. Terrell:
PROSCEUTOR: I want to draw your attention to April 2nd of 2019. Were you
notified of a situation for [sic] an anonymous tip?
MS. TERRELL: Yes.
PROSECUTOR: Okay. And without saying what that person said, what was
the nature of that allegation?
MS. TERRELL: The nature of that allegation was one of the administrators
had came to me and said that a young lady came to her saying that a young
lady was talking about—
DEFENSE COUNSEL: Objection, Your Honor. That’s hearsay.
MS. TERRELL: Okay.
PROSECUTOR: Without saying what they said, what was your impression of
what was going on?
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OHIO FIRST DISTRICT COURT OF APPEALS
MS. TERRELL: Someone was serving—selling drugs in the school.
{¶7} But the state went further with Ms. Terrell, and had her connect the tip to
A.K., as the “young lady that they told us it was.” Therefore, the state did not simply use the
tip as background to explain why an investigation occurred, but as probative of A.K.’s guilt.
Reinforcing this point, when A.K. took the stand to testify in her own defense, the
prosecutor badgered her repeatedly about the anonymous tip, wielding it as substantive
evidence and straying well beyond Ms. Terrell’s limited testimony:
PROSECUTOR: Okay. And do you know why [Ms. Terrell] came and got you?
A.K.: No, I do not.
PROSECUTOR: Okay. Because there were allegations that you were selling
Xanax in the bathroom.
DEFENSE COUNSEL: Objection, Your Honor. That is completely irrelevant,
and that is hearsay.
THE COURT: Overruled.
***
PROSECUTOR: There were allegations that you were selling Xanax in the
bathroom, correct? Were you made aware of that?
A.K.: Yes.
PROSECUTOR: So your indication is that didn’t happen?
A.K.: Correct.
PROSECUTOR: Okay. So someone makes an allegation that you are in the
bathroom selling pills, correct, which, according to you, are [sic] not true?
A.K.: Which is not true, correct.
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PROSECUTOR: Were you walking around showing people the pills in your
purse?
A.K.: No, sir.
PROSECUTOR: Okay. So somehow someone makes an allegation against
you, that you were selling pills, or trying to sell pills—
DEFENSE COUNSEL: Your Honor, I’m going to object. That’s a
mischaracterization.
PROSECUTOR: This goes to her knowledge of the pills in her purse, Your
Honor.
DEFENSE COUNSEL: Yeah, but the allegation was that—
PROSECUTOR: Clearly relevant.
DEFENSE COUNSEL: —were that she was selling Xanax, not pills in general.
I would say that that statement is misleading.
THE COURT: Overruled.
PROSECUTOR: So you’re in your room when Ms. Terrell comes and gets you.
You are telling the Court you were not walking around that day shaking the
bottle around and showing everyone that you had pills, correct?
A.K.: I didn’t even know that I had pills in my purse.
PROSECUTOR: Okay. And yet somehow there’s an allegation against you
that you have pills, and it turns out to be completely accurate that you do have
pills in your purse; is that correct?
A.K.: I guess, yes.
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PROSECUTOR: So can you explain how someone knew there were pills in
your purse, if you were not walking around showing them to people? How
would they know?
***
PROSECUTOR: How would someone know that there were pills in your
purse, if you were not showing them or telling them about it? How would
they know? Would they have any idea how they were in there? They wouldn’t
would they?
***
PROSECUTOR: Would someone have any knowledge that there were pills in
your purse that you did not tell about it?
A.K.: No.
{¶8} After exhaustive probing on this point in cross-examination, the prosecutor
featured the anonymous tip in his closing argument, emphasizing it numerous times:
How would there be a complaint against her, a tip, that there were pills in her
purse if she had not shown anybody, that she had not told anybody about
them. And it just happened to turn out to be completely true, that there were
pills in her purse. It doesn’t make sense. If her story is true, that her
grandfather the very day before, put these items in her purse for her to hold
and forget them there, what are the odds that the very next day at school
someone just happens to find out and tips them off and they’re found in her
purse. Very, very little chance. * * * The much more likely situation is she
found those pills in her purse and were [sic] trying to sell them to people at
school, and that’s when the tip came in and they searched her purse and she
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OHIO FIRST DISTRICT COURT OF APPEALS
got busted for it. * * * The only way this tip came out is by someone else
finding out first and her telling or showing that person what was going on.
{¶9} We begin with A.K.’s hearsay objection and the standard of review. “[W]hen
it comes to hearsay and its exceptions, Ohio courts have proven less-than-precise at times in
terms of the standard of review, generating conflicting precedent.” HSBC Bank USA, Natl.
Assn. v. Gill, 2019-Ohio-2814, 139 N.E.3d 1277, ¶ 6 (1st Dist.). We have recognized that, in
light of Supreme Court precedent, “hearsay determinations are reviewed for an abuse of
discretion.” Id. at ¶ 10. That said, the Supreme Court has recently clarified that “a court
does not have discretion to misapply the law. A court has discretion to settle factual
disputes or to manage its docket, for example, but it does not have discretion to apply the
law incorrectly.” Johnson v. Abdullah, Slip Opinion No. 2021-Ohio-3304, ¶ 38.
{¶10} “ ‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). Statements offered to explain why an investigation was
conducted are generally not hearsay because they are not offered for the truth of the matter
asserted. State v. Hackney, 1st Dist. Hamilton No. C-150375, 2016-Ohio-4609, ¶ 20
(“Generally, statements offered to explain an officer’s conduct during an investigation of a
crime are not hearsay because they are not offered for their truth.”). Nevertheless, a
statement that goes beyond describing the steps taken in an investigation and connects the
defendant with the crime charged is inadmissible hearsay. Id. at ¶ 23, citing State v. Ricks,
136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, ¶ 41, 45 (holding that statements
were hearsay when they “went well beyond” describing witness conduct and instead
connected the defendant with the crime).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} We elaborated on these points recently in State v. Hill, where we explained
that “when testimony is offered to explain the subsequent investigative activities of police
officers and not to prove the truth of the matter asserted, it may be admissible as
nonhearsay in certain circumstances.” State v. Hill, 1st Dist. Hamilton Nos. C-190638, C-
190639, C-190640 and C-190641, 2021-Ohio-294, ¶ 24. But to satisfy that standard, “ ‘the
conduct to be explained should be relevant, equivocal, and contemporaneous with the
statements; the probative value of [the] statements must not be substantially outweighed by
the danger of unfair prejudice; and the statements cannot connect the accused with the
crime charged.’ ” Id., quoting Ricks at ¶ 27.
{¶12} This is an easy case because the prosecutor conceded that the purpose of
introducing the anonymous tip was not simply to describe investigatory conduct, but “for
her knowledge of the pills in her purse.” The prosecutor also highlighted the anonymous tip
as the centerpiece of his closing argument, inviting the court to rely on it as substantive
proof that A.K. knew she had the pills. Perhaps more troubling, the state utilized the tip to
“connect the accused with the crime charged,” exactly as prior authority from this court and
the Supreme Court have admonished against.
{¶13} The anonymous tip was thus inadmissible hearsay because the state sought to
introduce the statement for proof of the matter asserted and as a vehicle to connect A.K.
with the crime charged, and the juvenile court abused its discretion by admitting it. See Hill
at ¶ 25 (trial court abused its discretion when “the statements were not admissible as
nonhearsay because they connected Hill with the offenses”). This conclusion that the
evidence regarding the tip ran afoul of hearsay requirements obviates our need to consider
whether it also violated the Confrontation Clause.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} We must now determine whether this evidentiary error was harmless. State
v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 24 (“Not every error
requires that a conviction be vacated or a new trial granted.”). “During a harmless-error
inquiry, the state has the burden of proving that the error did not affect the substantial
rights of the defendant.” Id. at ¶ 23; Hill at ¶ 26; Ricks, 136 Ohio St.3d 356, 2013-Ohio-
3712, 995 N.E.2d 1181, at ¶ 45 (reviewing Confrontation Clause violation for harmless
error). An evidentiary error was harmless if (1) there was no prejudice to the defendant
because of the admission of the evidence, (2) the error was harmless beyond a reasonable
doubt, and (3) after excising the evidence, the remaining evidence overwhelmingly supports
the judgment. State v. Smith, 2019-Ohio-3257, 141 N.E.3d 590, ¶ 23 (1st Dist.).
{¶15} Here, the juvenile court made clear that it based its judgment on Officer Dye’s
testimony that A.K. said she obtained the pills from someone on the street. The court found
this admission persuasive and inconsistent with A.K.’s story at trial—in other words, the
court relied on this evidence as part of its credibility appraisal of A.K. Since the juvenile
court did not appear to rely on the anonymous tip in reaching its judgment (the court did
not mention it at all), we have a difficult time seeing how A.K. suffered prejudice on this
record. Moreover, the fact that the label on the pill bottle was scratched off seriously
undermines A.K.’s claim that her grandfather placed the pills in her purse and instead
corroborates her admission that they were illicitly obtained. Based on the strength of
admissible evidence against her, we harbor no reasonable doubt that this hearsay error was
harmless and, thus, conclude that the admission of the anonymous tip constituted harmless
error.
III.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} The second issue presented in A.K.’s first assignment of error implicates the
admissibility of the state’s exhibit 1, page 1, a photograph of items found in A.K.’s purse.
The photograph depicts the pill bottle, a vape pen, tobacco rolling papers, and several
lighters. A.K. maintains that the photograph constitutes irrelevant, unduly prejudicial, and
inadmissible character evidence.
{¶17} “The admission of evidence is within the sound discretion of the trial court.
* * * We will not disturb a trial court’s ruling on evidentiary issues on appeal absent an
abuse of discretion.” State v. Buck, 2017-Ohio-8242, 100 N.E.3d 118, ¶ 109 (1st Dist.).
“ ‘Relevant evidence’ means 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. However, 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. 403.
{¶18} We do not believe that the juvenile court abused its discretion by admitting
the photograph under Evid.R. 401 or 403. The photograph is certainly relevant because it
depicts the pill bottle and other items belonging to A.K. The photograph is, therefore,
probative of whether A.K. actually had possession of the pills, and the location of where she
had them (i.e., her purse). The real question here is whether the photograph falls on the
unduly prejudicial side of the scale. A.K. insists that it does because it failed to capture all of
the items that were in her purse, such as her grandfather’s glasses, keys, wallet, and cell
phone. We can certainly envision scenarios in which a photograph might be rendered
inadmissible if it did not accurately capture what it purports to represent. But no question
exists here that the photograph accurately conveys certain contents from A.K.’s purse—her
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OHIO FIRST DISTRICT COURT OF APPEALS
criticism that certain items were excluded does not, on this record, raise questions
concerning the admissibility of the photograph at hand under Evid.R. 401 or 403.
{¶19} Taking a slightly different approach, A.K. also challenges the photograph as
inadmissible character evidence. “Evidence of a person’s character or a trait of character is
not admissible for the purpose of proving action in conformity therewith on a particular
occasion.” Evid.R. 404; State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 N.E.3d
651, ¶ 21 (“ ‘Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.’ This type of evidence
is commonly referred to as ‘propensity evidence’ because its purpose is to demonstrate that
the accused has a propensity or proclivity to commit the crime in question. Evid.R. 404(B)
categorically bars the use of other-acts evidence to show propensity.”), quoting Evid.R.
404(B). In this vein, A.K. argues that the state introduced the photograph to show that she
had drug paraphernalia (i.e., a vape pen) to establish propensity to possess contraband.
Even if she were right about that, when counsel lodged the objection, the court expressed its
sensitivity to evaluating only the evidence relevant to the charge at hand, suggesting that it
would disregard anything not directly related. We see nothing in the record to indicate that
the court could not do that, and the extraneous matters in the purse were not so prejudicial
as to taint the proceedings. On the record at hand, we do not believe that the juvenile court
committed an abuse of discretion by deeming the photograph admissible evidence.
{¶20} Accordingly, we overrule A.K.’s first assignment of error in full.
IV.
{¶21} In her second and third assignments of error, A.K. challenges the weight and
sufficiency of the evidence in support of her adjudication. We discuss them together for
convenience’s sake.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} The standards for evaluating the weight and sufficiency of the evidence in
juvenile adjudications are the same as the standards used in adult criminal cases. In re A.P.,
2020-Ohio-5423, 163 N.E.3d 116, ¶ 9, 18 (1st Dist.). In reviewing whether the conviction
runs counter to the manifest weight of the evidence, we sit as a “thirteenth juror.” State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We will reverse the trial court’s
decision to convict and grant a new trial only in “ ‘exceptional cases in which the evidence
weighs heavily against the [adjudication].’ ” State v. Sipple, 2021-Ohio-1319, 170 N.E.3d
1273, ¶ 7 (1st Dist.), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
{¶23} On the other hand, “[t]o determine whether [an adjudication] is supported by
sufficient evidence, ‘the relevant inquiry is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.’ ” State v. Walker, 150 Ohio St.3d
409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.
{¶24} The juvenile court adjudicated A.K. delinquent under R.C. 2925.11, which
provides “[n]o person shall knowingly obtain, possess, or use a controlled substance or a
controlled substance analog.” A.K.’s weight and sufficiency challenges contend that A.K. did
not “knowingly” possess the pill bottle because she did not know that her grandfather
slipped it into her purse.
{¶25} A.K. claims that the weight of the evidence cannot support a determination
that she knew the pills were in her purse. She criticizes the juvenile court’s failure to give
proper weight to her testimony, reinforced by her grandfather’s admission, that the pills
belonged to him. She further seizes upon inconsistent testimony from Officer Dye and Ms.
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Terrell. Officer Dye initially testified that A.K. did not say whether she knew that the pills
were in her purse, but after the state refreshed his memory, he recalled that A.K. admitted
that she procured the pills from someone on the street. Ms. Terrell remembered that A.K.
said the pills belonged to someone at her house.
{¶26} We ultimately conclude that the juvenile court’s resolution of this conflicting
evidence amounts to credibility determinations that fall within its sound discretion. State v.
Robinson, 12th Dist. Butler No. CA2018-08-163, 2019-Ohio-3144, ¶ 29 (“ ‘When conflicting
evidence is presented at trial, [an adjudication] is not against the manifest weight of the
evidence simply because the trier of fact believed the prosecution testimony.’ ”), quoting
State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17. A.K. fails to
demonstrate that this is an exceptional case where the evidence weighs heavily against the
adjudication.
{¶27} For A.K.’s challenge to the sufficiency of the evidence, she claims that the
state presented no evidence to establish that she knew the pills were buried in her purse.
But as we have already explained above, between Officer Dye’s testimony and the actual
bottle of pills, construed in a light most favorable to the state, we believe that a rational trier
of fact could conclude that A.K. knew she had possession of the pills. We accordingly
overrule A.K.’s challenge to the sufficiency and weight of the evidence.
* * *
{¶28} For the foregoing reasons, we overrule all three of A.K.’s assignments of error
and affirm the judgment of the juvenile court.
Judgment affirmed.
MYERS, P. J., and CROUSE, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion
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