State v. Heard , 2014 Ohio 4643 ( 2014 )

[Cite as State v. Heard, 2014-Ohio-4643.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130789
TRIAL NO. B-1303226
Plaintiff-Appellee, :
O P I N I O N.
vs. :
KARL HEARD, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: October 22, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond L. Katz, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal from a conviction following a bench trial for failure to
provide notice of a change of address under Ohio’s sex-offender-verification law.
We are compelled to reverse the conviction because the only evidence at trial tending
to prove the charge was hearsay. While the trial court properly allowed the
admission of this hearsay evidence for impeachment purposes, it should not have
considered the hearsay as substantive evidence of the defendant’s guilt. As a
consequence, we reverse the conviction and discharge the defendant from further
prosecution.
I. The Trial
{¶2} Karl Heard was convicted of attempted rape in 1992. As a result of the
conviction, he was required to register as a sexually oriented offender, and to provide
notification to the sheriff’s office when he changed his residence. In March 2013, Mr.
Heard notified the sheriff’s office that he was residing at 2586 Seegar Avenue, a
property owned by Stanley Thompson. On May 24, 2013, Police Officer Adam Breeze
went to the residence to verify that Mr. Heard lived there. Mr. Thompson told the
officer that Mr. Heard no longer lived there, and Mr. Heard was subsequently
charged with failure to provide notice of a change of address. See R.C. 2950.05.
{¶3} The case was tried to a judge sitting without a jury. During opening
statements, Mr. Heard’s counsel told the court that Mr. Thompson would testify that
Mr. Heard did live on his property—not in the house itself, but rather in a truck or a
shed on the property. Counsel also suggested that Officer Breeze would testify about
what Mr. Thompson told him when he visited the house, but that these prior
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inconsistent statements could be considered only for impeachment of Mr.
Thompson’s credibility, not as substantive evidence of Mr. Heard’s guilt.
{¶4} The case unfolded like Mr. Heard’s counsel said it would. Mr.
Thompson testified that when he told Officer Breeze that Mr. Heard did not live
there, he meant that he didn’t live there “as far as the house is concerned.” Rather
than living in the house, Mr. Heard “stayed in his truck next door, or in the shed,
because there was a bed in the shed.” Mr. Thompson had asked him to leave the
house “[b]ecause of certain things that he violated, you know, rules and things like
that.” Mr. Thompson stated that “next door” shared the same address as 2586
Seegar Avenue. Mr. Thompson added that Mr. Heard sometimes stayed downtown
or with his sister, but he did not indicate how often this occurred. Mr. Thompson
never checked to see if Mr. Heard was sleeping in his truck or in the shed on his
property, but maintained that “for the most part” he assumed Mr. Heard stayed there
because when Mr. Thompson went outside late in the morning, Mr. Heard’s truck
was there. Mr. Thompson acknowledged having signed a “Sex Offender Residence
Verification Form” upon which was marked the box stating “Subject is not living
here.”
{¶5} Officer Breeze testified about verifying Mr. Heard’s residence. He
stated that when he asked Mr. Thompson if Mr. Heard was living at his address, Mr.
Thompson replied “No, he’s not. He’s staying with his sister down in Price Hill.”
When asked how long Mr. Heard had been gone, Mr. Thompson stated, “He’s been
gone for months.” Based on these statements, Officer Breeze noted on the
verification form: “stays @ Livingston. Been gone for months. Half sister in Price
Hill.” Officer Breeze testified that he had seen a shed and a van on Mr. Thompson’s
property, but did not check to see if any of Mr. Heard’s personal belongings were
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OHIO FIRST DISTRICT COURT OF APPEALS
there. Following Officer Breeze’s testimony, the court admitted the verification form
into evidence with no objection from Mr. Heard.
{¶6} Mr. Heard’s counsel made a Crim.R. 29 motion for an acquittal,
asserting that because the statements made by Mr. Thompson as reported by Officer
Breeze could be used for impeachment purposes only, the state had not offered
sufficient evidence that Mr. Heard had moved from Mr. Thompson’s property,
triggering his duty to notify the sheriff under R.C. 2950.05. The court overruled the
motion.
{¶7} During closing argument, counsel reiterated, “[The state has] no other
evidence than Mr. Thompson. It’s impeachment evidence only.” The court
disagreed, concluding that the verification form was properly admitted as a business
record and that the statement—“stays @ Livingston. Been gone for months. Half
sister in Price Hill”—was not inadmissible hearsay.
{¶8} The trial court found Mr. Heard guilty. In announcing its decision,
the court explained that the evidentiary basis of its verdict was (1) the statements
made by Mr. Thompson during Officer Breeze’s visit to the property as recounted at
trial by Officer Breeze, and (2) Officer Breeze’s note on the sex-offender-verification
form recounting what Mr. Thompson had told him during his visit to the property.
II. The Trial Court Erred in Considering Hearsay Statements as
Substantive Evidence
{¶9} In Mr. Heard’s first assignment of error, he contends that the trial
court erred when it overruled his Crim.R. 29 motion for an acquittal.
{¶10} The essence of Mr. Heard’s argument is that the court improperly
considered prior inconsistent statements of Mr. Thompson as substantive evidence
of his guilt. He contends that the trial court should not have admitted the “Sex
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Offender Residence Verification Form” and that the court should not have
considered Mr. Thompson’s statement recorded on the form—that Mr. Heard “stays
@ Livingston. Been gone for months. Half sister in Price Hill”—as substantive
evidence of guilt. He likewise maintains that the court should not have considered
Mr. Thompson’s statements as testified to by Officer Breeze as substantive evidence.
Mr. Heard argues that without the statements, there was not sufficient evidence
upon which to conclude that he had changed residences without notifying the
sheriff’s office.
A. Officer Breeze’s Statements
{¶11} We consider Officer Breeze’s testimony first. Mr. Heard did not object
to Officer Breeze’s testimony about Mr. Thompson’s statements, but did make clear
throughout the trial his position that the statements could only be considered for
impeachment purposes. Mr. Heard is correct in this regard. Although the
statements were properly admissible as prior inconsistent statements, see Evid.R.
613, the use of prior inconsistent statements is limited. “[W]hen a prior inconsistent
statement is offered for the purpose of impeachment, the trier of fact may only
consider the prior statement as substantive evidence if the prior statement is not
inadmissible as hearsay.” State v. Hancock, 1st Dist. Hamilton No. C-030459, 2004-
Ohio-1492, ¶ 40, citing Evid.R. 801, 802, 803 and 804, and Dayton v. Combs, 94
Ohio App.3d 291, 640 N.E.2d 863 (2d Dist.1993). Here, Mr. Thompson’s statements
to Officer Breeze were hearsay and could be considered only for purposes of
impeachment. See Evid.R. 801 and 803.
{¶12} But the court’s statements while announcing its verdict indicate that
its consideration of Mr. Thompson’s statements to Officer Breeze was not limited to
the impeachment of Mr. Thompson’s credibility. To the extent that it considered
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OHIO FIRST DISTRICT COURT OF APPEALS
the statements made by Mr. Thompson to Officer Breeze as substantive evidence of
Mr. Heard’s guilt, the court erred.
B. The Verification Form
{¶13} The court also erred when it considered Mr. Thompson’s statement
contained within the sex-offender-verification form filled out by Officer Breeze. The
trial court found the form admissible under an exception to the hearsay rule, and
then went on to consider Mr. Thompson’s statement recorded on the form as
substantive evidence of guilt. This was a mistake on two levels.
{¶14} Although the trial court referred to the “business records” exception,
admission of the report is more properly considered under Evid.R. 803(8), which
provides a hearsay exception for public records and reports. That section, however,
expressly excludes “in criminal cases [records of] matters observed by police officers
and other law enforcement personnel, unless offered by defendant[.]” See State v.
Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 111. The rule
prohibits introduction of reports that “recite an officer’s observations of criminal
activities or observations made as a part of an investigation of criminal activities.”
State v. Ward, 15 Ohio St.3d 355, 358, 474 N.E.2d 300 (1984). The purpose of the
verification form was “confirming the offender’s residence.” Thus, the court was
incorrect in its conclusion that the verification form could be admitted as an
exception to the hearsay rule.
{¶15} But the larger problem was the consideration of the hearsay statement
by Mr. Thompson within the report as substantive evidence of guilt. Even if the
verification form had been properly admitted—which it was not—Mr. Thompson’s
statement within the report constituted what has been called “double hearsay” or
“hearsay within hearsay.” The statement could only be admissible if it independently
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OHIO FIRST DISTRICT COURT OF APPEALS
conformed with an exception to the hearsay rule. See Evid.R. 805. No such
exception was present, and thus the evidence could only be considered for
impeachment purposes. The court erred by acting otherwise.
III. The Evidence Was Insufficient to Convict Mr. Heard
{¶16} Once Mr. Thompson’s statements to Officer Breeze and the notation
within the verification form are removed from consideration, the state offered no
evidence that Mr. Heard no longer resided at 2586 Seegar Avenue. The state put on
two witnesses—Officer Breeze and Mr. Thompson. Officer Breeze did not offer any
evidence of Mr. Heard’s guilt apart from the hearsay statements. His investigation at
the address was cursory. He testified that he had not looked in the shed or the truck
on Mr. Thompson’s property to see if there was any sign that Mr. Heard lived there.
According to Officer Breeze, the registry of an address meant that a sex offender lived
in the house on the property. But the plain language of the statute does not include
such a requirement. R.C. 2950.05.
{¶17} Mr. Thompson testified that Mr. Heard lived at the address where he
said he did. The trier of fact was entitled to disregard his testimony in light of the
impeachment evidence. But to convict Mr. Heard there had to be some admissible,
substantive evidence of the crime. There was none.
{¶18} Thus, we conclude that the state failed to present sufficient evidence
that Mr. Heard had changed his address from 2586 Seegar Avenue. See State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The first assignment of
error is sustained. Because our resolution of the first assignment is dispositive, we
do not consider the second assignment of error. The judgment of the trial court is
reversed, and Mr. Heard is discharged from further prosecution.
Judgment reversed and appellant discharged.
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C UNNINGHAM , P.J., and F ISCHER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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