State v. Davis , 2015 Ohio 5159 ( 2015 )

[Cite as State v. Davis, 2015-Ohio-5159.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-14-1274
Appellee Trial Court No. CR0201402430
v.
Ansell Davis DECISION AND JUDGMENT
Appellant Decided: December 11, 2015
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Neil S. McElroy, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Ansell Davis, appeals the November 26, 2014
judgment of the Lucas County Court of Common Pleas which, following a jury trial
convicting him of two counts of felonious assault, sentenced appellant to 12 years of
imprisonment. Because we find that the appeal lacks merit, we affirm.
{¶ 2} Appellant was indicted on September 8, 2014, on two counts of felonious
assault, R.C. 2903.11(A)(1) and (D), second degree felonies, and one count of abduction,
R.C. 2905.02(A)(2) and (C), a third degree felony. The charges stemmed from
appellant’s alleged physical assault of the victim on April 29, 2014, and physical assault
and abduction of the same victim on August 25, 2014. The trial court’s September 15,
2014 judgment entry ordered appellant to have no contact with the victim.
{¶ 3} On November 5, 2014, a subpoena was issued to the victim ordering her to
appear and testify at appellant’s November 24 trial. After the victim could not be
located, a body attachment order was issued; the victim was finally arrested on
November 26; however, the trial had concluded.
{¶ 4} On the morning of the November 24, 2014 trial and with the victim still
missing, the court conducted a hearing to determine the admissibility of her statements to
police under Evid.R. 804(B)(6). At the hearing, the state first noted that although it did
not put the notice in writing, appellant’s counsel was notified by telephone message the
preceding Friday of the state’s plan to produce the victim’s statements through hearsay
testimony. The message included specific case law the state intended to rely upon in the
motion. The state noted: “I think I’ve done a substantial compliance with what
80[4](B)(6) requires and that’s just make sure he has notice of this beforehand so he’s not
blind-sided, and we talked about it last week.”
{¶ 5} The state then presented the testimony of the detective assigned to the case.
Early on, the victim was cooperative in the investigation and expressed a desire to have
2.
the case prosecuted. The detective stated that at some point it became difficult to contact
her because she was staying at different locations out of fear for her safety.
{¶ 6} Just a few weeks before trial, the detective located the victim at municipal
court and convinced her to speak with him and the prosecutor. The victim indicated that
she was “scared to death” of appellant and feared that he or his family would harm her or
her family. The victim was served with a subpoena on November 3, 2014. The Friday
prior to the Monday, November 24 trial, the detective stated that after obtaining a
material witness warrant he went to the address given by the victim in early November.
The detective spoke with a woman who indicated that the victim had her vehicle and was
going to pick up her daughter and leave town. The detective called the victim using the
friend’s cell phone because the victim would not answer his phone calls. The detective
testified that he explained to the victim that there was a warrant for her arrest and she
promised to appear in 45 minutes. The victim did not appear.
{¶ 7} The detective testified that he went back to the friend’s house, determined
where the victim’s daughter attended school, and drove to that location and began
surveillance. The vehicle the victim had been driving was spotted but was operated by a
male friend who had been asked to pick up the daughter. The detective then used the
friend’s cell phone to speak with the victim. Again, the victim indicated that she would
meet the officer. One half-hour to 45 minutes later, he called her again and she said she
was still on the way. The victim did not arrive. The victim further informed the
prosecutor that she would be present on the morning of trial; she never appeared.
3.
{¶ 8} As to the allegations of appellant’s wrongdoing, the detective testified that
from August 30, 2014, when appellant was incarcerated, to October 31, 2014, there were
269 calls placed by appellant to the victim’s cell phone. The weekend immediately
before trial there were 20 calls placed to her number. The detective testified that early on
in the conversations, the victim was telling appellant that she was trying to dodge the
police and prosecutor and that she had no real address. Appellant told the victim that she
did not want to be in the way when he went to court.
{¶ 9} The court then found that appellant violated its order that he not contact the
victim and that based on the content of the highlighted telephone conversations,
appellant’s purpose was to keep the victim from testifying. The court concluded that the
victim’s hearsay statements would be admissible.
{¶ 10} Following the jury trial, appellant was found guilty of two counts of
felonious assault and this appeal followed. Appellant now raises two assignments of
error:
Assignment of Error No 1: The trial court abused its discretion
when it admitted, over objection, hearsay testimony of the alleged victim
under Evid.R. 804(B) despite the state’s failure to provide written notice of
its intention to introduce the statements.
Assignment of Error No. 2: The trial court abused its discretion
when it found that the alleged victim was unavailable.
4.
{¶ 11} We note that “the admission of evidence lies within the broad discretion of
the trial court, and a reviewing court should not disturb evidentiary decisions in the
absence of an abuse of discretion that has created material prejudice.” State v. Conway,
109 Ohio St. 3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62, citing State v. Issa, 93 Ohio
St.3d 49, 64, 752 N.E.2d 904 (2001). An abuse of discretion is demonstrated where the
trial court’s attitude in reaching its decision was unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140
(1983).
{¶ 12} Hearsay is generally not admissible unless it falls under an exception to the
exclusionary rule. Appellant challenges the trial court’s determination that his
wrongdoing resulted in the victim’s failure to appear and testify at trial and, thus, was
admissible under Evid.R. 804. Appellant also argues that the testimony was inadmissible
because the state failed to provide prior written notice of its intent to use the victim’s
statements to police.
{¶ 13} Evid.R. 804 provides the following exception to the exclusion of hearsay:
The following are not excluded by the hearsay rule if the declarant is
unavailable as a witness:
***
(6) Forfeiture by wrongdoing. A statement offered against a party if
the unavailability of the witness is due to the wrongdoing of the party for
the purpose of preventing the witness from attending or testifying.
5.
However, a statement is not admissible under this rule unless the proponent
has given to each adverse party advance written notice of an intention to
introduce the statement sufficient to provide the adverse party a fair
opportunity to contest the admissibility of the statement.
{¶ 14} Appellant’s first assignment of error challenges the fact that prior written
notice of the intent to use the hearsay evidence was not provided. Appellant did not
object to the method in which he was informed that the victim was not going to appear
and that her statement would be substituted. Thus, our review is limited to plain error.
To prevail on a claim of plain error under Crim.R. 52(B), an appellant must demonstrate
that the outcome would have been clearly different but for the alleged errors. State v.
Waddell, 75 Ohio St. 3d 163, 166, 661 N.E.2d 1043 (1996).
{¶ 15} Based on our review of the record, we cannot say that, absent the failure to
provide written notice of the intent to use the victim’s statement, the outcome of the trial
would have been different. First, the state left defense counsel a detailed message as
soon as it was apparent that the victim could not be located. Next, even without the
victim’s statement we cannot say that appellant would not have been found guilty. There
was eyewitness testimony presented by neighbors identifying appellant as the perpetrator
of the April offense. Further, the hotel clerk testified regarding the victim’s scared
demeanor and that there was blood coming from her nose (blood was later found on the
dashboard of appellant’s vehicle).
6.
{¶ 16} Based on the foregoing, we find that the court did not abuse its discretion
when it admitted the victim’s hearsay testimony under Evid.R. 804(B). Appellant’s first
assignment of error is not well-taken.
{¶ 17} In his second assignment of error, appellant contends that the state failed to
prove that the victim’s absence at trial resulted from his wrongdoing. In order for
statements to be admissible under Evid.R. 806(B)(6), “the offering party must show by a
preponderance of the evidence ‘(1) that the party engaged in wrongdoing that resulted in
the witness’s unavailability, and (2) that one purpose was to cause the witness to be
unavailable at trial.’ 2001 Staff Notes, Evid.R. 804(B)(6) [State v. Hand, 107 Ohio St. 3d
378, 2006-Ohio-18, 840 N.E.2d 151], ¶ 84-87.” State v. Pickens, 141 Ohio St. 3d 462,
2014-Ohio-5445, 25 N.E.3d 1023, ¶ 158.
{¶ 18} Appellant argues that the testimony presented at the hearing was not
sufficient to establish that she was unavailable for trial; it merely showed that she was
unwilling to testify. The testimony presented at the hearing showed that the weekend
prior to trial, appellant spoke with the victim, in violation of a court order, and told her to
take a vacation and not be in town during the trial. Appellant stated that “[e]verybody
play their part, everybody going to be happy.”
{¶ 19} As set forth above, when the detective located the victim in early
November and convinced her to meet at the prosecutor’s office she specifically stated
that she had been avoiding him out of fear for her and her family’s safety. Further, the
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testimony showed that the Friday prior to trial, the victim borrowed her friend’s vehicle
with the intent of picking up her daughter and leaving town.
{¶ 20} Based on the foregoing, we find that the trial court did not err when it
found that appellant’s wrongdoing caused the victim’s unavailability. Appellant’s second
assignment of error is not well-taken.
{¶ 21} On consideration whereof, we find that appellant was not prejudiced or
prevented from having a fair trial and the judgment of the Lucas County Court of
Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs
of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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