Cleveland v. Boone , 2018 Ohio 849 ( 2018 )

[Cite as Cleveland v. Boone, 2018-Ohio-849.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105762
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
FRANK D. BOONE
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND VACATED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2015 CRB 026110
BEFORE: Laster Mays, J., Kilbane, P.J., and Keough, J.
RELEASED AND JOURNALIZED: March 8, 2018
-i-
ATTORNEY FOR APPELLANT
Paul A. Mancino, Jr.
Mancino, Mancino & Mancino
75 Public Square Building, Suite 1016
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Barbara Langhenry
City of Cleveland Law Director
By: Karyn J. Lynn
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant, Frank Boone (“Boone”), appeals his conviction for violation of
a temporary protection order (“TPO”). We reverse and vacate the conviction.
{¶2} On December 3, 2015, a complaint was filed in the Cleveland Municipal Court
alleging a violation of a TPO pursuant to R.C. 2919.27, a first- degree misdemeanor. An arrest
warrant for Boone was issued the same date. According to the complaint, the case is based on
“15-381614 domestic violence temporary protection order — Cleveland Heights.” The affidavit
establishing probable cause for the arrest, references “police report #: 15-381614.” The TPO
order allegedly covered T.W., her teen-aged daughter (“daughter”), and T.W.’s father (“father”).
T.W. attested that Boone sent her a text on December 1, 2015, and called her “in violation of a
criminal protection [order] that I have against him. Defendant is the father of my child.” Also
on December 3, 2015, a warrant was issued for Boone’s arrest.
{¶3} On January 11, 2017, the warrant was verified and Boone was arrested on January
13, 2017 at the Cuyahoga County Juvenile Court when attending a custody proceeding involving
daughter. Boone was arraigned on January 17, 2017, in the Cleveland Municipal Court.
Boone appeared with counsel on February 1, 2017, and requested a trial date. The prosecutor
commented that she did not “know what’s going on with the Cleveland Heights case.” (Tr. 2.)
{¶4} T.W. appeared at the February 17, 2017 hearing. The hearing was continued
due to confusion by the parties and the trial court about documents indicating the protection order
was related to a Cuyahoga County Common Pleas Court case, while the TPO at issue was
ordered by Cleveland Heights. The case was continued to March 8, 2017. Boone advised that
the order was not in effect at the time of the contact.
{¶5} Trial commenced on March 8, 2017. The trial court asked about the age of the
original protection order. The city responded:
PROSECUTOR: Your Honor, it’s my understanding there were two
Protection Orders. And I think that was the confusion last
time. That’s what the conversation we had with [defense
counsel]. He — he was under the impression from what
his client had indicated that the Protection Order had
terminated. I did send him an e-mail indicating that I have
evidence that the Protection Order was terminated after the
date of this offense.
And additionally, there was the second Temporary
Protection Order that picked up on the same day that the
first one was terminated, which did not get terminated until
April of 2016. And if you look at this, the offense date, and
this was December 1st, 2015. So he was under a
Protection Order throughout the two cases that were active.
(Tr. 4.)
{¶6} T.W. and Boone shared legal custody of daughter who was residing with Boone at
the time of the November 2015 altercation between Boone and daughter. At the pretrial in
Cleveland Heights Municipal Court, the trial court issued a TPO. The city requested that the
trial court take judicial notice of a photocopy of the November 25, 2015 TPO that was allegedly
signed by Boone. Defense counsel objected stating that “[t]he law requires a certified copy.”
(Tr. 31.) The city countered that judicial notice was appropriate because the TPO contained a
file-stamp and was identified by a party to the action.
{¶7} The city also asked the trial court, over defense objection, to take judicial notice of
a print-out of the text messages, and docket entries from the Cleveland Heights Municipal Court
allegedly reflecting that the TPO for the misdemeanor case was terminated on December 3, 2015,
but a felony TPO was issued the same date that did not terminate until April 2016. The trial
court reserved ruling on the city’s exhibits until the conclusion of the case.
{¶8} T.W. did not know when the Cleveland Heights case was finalized but opined that
it was April 2016. The text messages and calls occurred on December 1, 2015, when T.W. was
visiting her father who resided in Cleveland. They reported the contact to the Cleveland Police
Department’s Fourth District.
{¶9} Cleveland Police Officer Robert Alford, Jr. (“Det. Alford”) testified that T.W.
reported the TPO violation. Det. Alford stated that T.W. showed him the text messages and
presented him with a copy of the TPO. Det. Alford testified that he verified the order through
the computer system. According to Det. Alford, protection orders are considered active until
removed.
{¶10} Boone testified in his defense. He testified that he was arrested at his home on
November 23, 2015, and charged with disorderly conduct and making false alarms. Boone posted
a bond and was released on November 25, 2015, and recalled signing a TPO during that time.
{¶11} Boone testified that he appeared in Cleveland Heights Municipal Court on
December 1, 2015, though subsequent testimony is somewhat unclear: “I went to court for my
felony charges, assault, and domestic violence and they was dismissed along with the — the
Restraining Order.” (Tr. 38.)
BOONE: Actually, I was about to make bond on my misdemeanors. And
when I was going (inaudible) to get charged later on that day they
charged me with felonies, domestic violence and aggravated
assault, and that’s when the Restraining Order came in too.
(Tr. 38-39.) Boone then stated that he appeared in Cleveland Heights for a preliminary hearing
for the “assault and domestic violence charge for the felony.” (Tr. 39.) After viewing a
document identified as Defendant’s Exhibit A, Boone elaborated on his December 1, 2015 felony
appearance. “That’s my preliminary hearing and it got dismissed.” (Tr. 40.) “That’s a notice
that I came to court” on December 1, 2015 at 3:00 p.m. and “[t]hey dismissed the charges. My
attorney told me I was good to go to get my daughter, to go get my daughter now.” (Tr. 40.)
{¶12} “I texted” T.W. after court and “told her where she could drop my daughter off
at.” (Tr. 41.) “She texted back,” “I told her that the charge had got dismissed. She never
came to court.” (Tr. 41.) Boone testified he did not go to court for the Cleveland Heights
misdemeanor cases until December 15, 2015. Boone confirmed that the only TPO was issued for
the felony charge and that was dismissed on December 1, 2015.
{¶13} During cross-examination, the city cited two case numbers allegedly contained in
the exhibits: CRA 1502015 and CRB 1502016. One of the documents, dated December 3,
2015, contained the statement “Temporary Protection Order issued and valid until case is
adjudicated.” (Tr. 47.) Boone said he had no knowledge of that. The city also asked Boone
whether he had knowledge of an April 13, 2016 entry indicating that the TPO was recalled by the
court on April 13, 2016. He did not. Boone also seemed confused by a number of the
questions regarding the outcome of misdemeanor charges, though he remained adamant about the
felony dismissal.
{¶14} The trial court denied Boone’s Crim.R. 29 motion for acquittal proffered at the
close of the prosecution’s case and renewed after the defense rested. The trial court found
Boone guilty and sentenced him on April 26, 2017, to 18 months of community control with
conditions and 180 days in jail. One hundred and fifty days of the jail time was suspended, and
Boone was ordered to serve 15 consecutive weekends at the Cleveland House of Corrections.
The trial court granted a stay of the sentence pending appeal, though Boone is still required to
report to probation during the appeal period.
{¶15} On August 15, 2017, the city filed a motion to correct the record on appeal
pursuant to App.R. 9(E) to include four exhibits submitted by the city: (1) a copy of the
temporary protection order; (2) a printed copy of the text message exhibits; (3) a copy of the
Cleveland Heights Municipal Court docket for CRA 1502015; and (4) a copy of the Cleveland
Heights Municipal Court docket for CRB 1502016. The city was unable to obtain the exhibits
from the court reporters who advised the city that the exhibits were on the trial judge’s bench at
the conclusion of the case.
{¶16} On October 6, 2017, the trial court issued a supplemental journal entry stated to
be “in compliance with State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, 958 N.E.2d 142.”
The entry contains a brief chronology of the events occurring before the trial court. See
Cleveland Municipal Court journal entry (Oct. 6, 2017).
{¶17} On November 1, 2017, the trial court issued a second supplemental journal entry
in response to the October 19, 2017 order of this court, addressing the absence of the four
exhibits requested by the city. The trial court responded that it withheld the exhibits for a
determination of admission until the end of the trial. The trial court explained that there was no
formal ruling on the admission upon finding Boone guilty; and, the court did not rely on any of
the exhibits in reaching a decision. “The finding of guilt was made on the testimony given,
including the admissions of the Defendant. Sua sponte” the trial court ruled that the city’s
motion to supplement the record was “denied as moot.” Cleveland Municipal Court second
supplemental journal entry (Nov. 1, 2017). There are no exhibits in the record for this court’s
review.
II. Assignments of Error
{¶18} Boone presents three assigned errors:
I. Boone was denied due process of law when he was convicted on a
complaint which failed to conform to the requirements of the Fourth
Amendment.
II. Boone was denied due process of law when his motions for judgment of
acquittal were overruled.
III. Boone was denied due process of law when he was not constitutionally
informed of the nature and cause of the accusation in a complaint which
was not understandable.
{¶19} We address Boone’s second assigned error because we find it to be
determinative in this case.
{¶20} A Crim.R. 29 motion for judgment of acquittal tests the sufficiency of the
evidence. State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13. We consider
whether the state has met its burden of production at trial. State v. Hunter, 8th Dist. Cuyahoga
No. 86048, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St. 3d 380, 390, 678 N.E.2d
541 (1997).
{¶21} As an appellate court, we are required to determine “‘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. Leonard, 104
Ohio St. 3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St. 3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In a sufficiency inquiry, an
appellate court does not assess whether the state’s evidence is to be believed but whether, if
believed, the evidence admitted at trial supported the conviction. State v. Starks, 8th Dist.
Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387.
{¶22} We disagree with the trial court’s determination that the exhibits were not
necessary to the adjudication of the case because they were not relied on by the trial court and the
guilty finding was based on the testimony and Boone’s admissions. A review of the record
reflects Boone’s testimony was consistent in some of the areas addressed and confused in others.
In fact, there is confusion surrounding the actual chronology of events in this case, beginning in
2015.
{¶23} At the February 17, 2017 hearing, the city mentioned that it could not go forward
because it somehow was in possession of documents regarding a court of common pleas case
while the matter originated in Cleveland Heights. In the appellate brief before this court, Boone
also cites a transfer of the Cleveland Heights felony case on November 30, 2015, which would
have included the accompanying misdemeanor, State v. Boone, Cuyahoga C.P. No.
CR-15-601455-A. Boone states the case was terminated and dismissed on November 30, 2015.
Boone attaches an internet print-out of the entry in that case. We cannot consider evidence
outside of the record and even if considered, it would not alter our decision. State ex rel. Cty. of
Cuyahoga v. Jones Lang Lasalle Great Lakes Co., 8th Dist. Cuyahoga No. 104157,
2017-Ohio-7727, ¶ 5.
{¶24} Notwithstanding the total lack of exhibits in the records, pivotal to adjudication
of this case is authenticated evidence that the TPO upon which the complaint was based was a
valid TPO. There is a reference in the complaint to a police report. The complaint also
charges a TPO violation. We reiterate here that none of the exhibits referenced in the transcript
were supplied for this court’s consideration.
{¶25} Our recent analysis in Strongsville v. N.D., 2016-Ohio-7484, 73 N.E.3d 896 (8th
Dist.), is directly on point, including the nebulous history and record of the case. In that case,
N.D. was charged with two counts of domestic violence in the Berea Municipal Court on
February 1, 2015. On February 10, 2015, the court issued a TPO prohibiting contact with the
alleged victim.
{¶26} On March 19, 2015, Strongsville charged appellant with two counts of violating
the TPO that was issued on February 2015. Id. at ¶ 2-3. One count was dismissed prior to
the bench trial. Appellant was found guilty of violating the TPO by submitting a job application
to the victim’s employer. The victim was the supervisor of the department receiving the
application. Appellant was fined $100 plus costs. Id. at ¶ 5.
{¶27} We reversed and vacated the conviction, holding that the trial court erred in
denying appellant’s Crim.R. 29 motion challenging the sufficiency of the evidence. The TPO
was not part of the record, but “the trial court seemed to take judicial notice of the content of the
TPO. This was improper.” Id. at ¶ 22. “For the trial court to consider the content of the
TPO, it had to be introduced and admitted as an exhibit or [be] stipulated to by” the appellant.
Id.
{¶28} In the instant case, as in N.D.,1 the trial court did not admit any of the exhibits
into evidence, but relied on the testimony that a TPO existed on December 1, 2015, when Boone
admitted making contact with T.W. after an asserted dismissal of the case. The TPO entry,
identified as Exhibit D in the trial transcript, was read into the record by the city at the trial
court’s request. The entry provided, “‘Temporary Protection Order issued and valid until case
is adjudicated,’” and is dated November 24, 2015. (Tr. 47.) While Boone admitted to signing
a TPO at the time of his release on bond, he also testified that he was informed by counsel that
the TPO was terminated and he was legally free to send the text message on December 1, 2015.
The parties did not stipulate that a TPO was in existence on December 1, 2015, and, as we stated
in N.D., the trial court may not take judicial notice of the TPO. Id. at ¶ 22.
{¶29} We agree with Boone that the TPO was required to be certified for proper
authentication and entered into evidence. Cahill v. Cahill, 8th Dist. Cuyahoga No. 65352, 1994
Ohio App. LEXIS 2687, at *4-5 (June 23, 1994) (a TPO “may be proved by copy, certified as
correct in accordance with Rule 902,2 Civ.R. 44, Crim.R. 27 or testified to be correct by a
witness who has compared it with the original”). “Certified municipal court documents that are
self-authenticating under Evidence Rule 902(4) are admissible under the public records exception
to the hearsay rule.” State v. Davis, 9th Dist. Summit No. 25680, 2012-Ohio-788, ¶ 17, citing
State v. Gwen, 9th Dist. Lorain No. 25218, 2011-Ohio-512, at ¶ 42 (citing Evid.R. 803(8)(a)).
1
“A review of the trial court’s docket reveals that the TPO was never journalized or docketed as a filing in the case
before this court; thus, it will not be considered to be part of the trial court record.” N.D. at ¶ 16, fn. 2, citing
Dragway 42, L.L.C. v. Kokosing Constr. Co., 9th Dist. Wayne No. 09CA0008, 2009-Ohio-5630, ¶ 3, fn. 1 (only
journalized documents are to be considered).
2
“Certified copies of public records. A copy of an official record or report or entry therein, or of a document
authorized by law to be recorded or filed and actually recorded or filed in a public office, including data
compilations in any form, certified as correct by the custodian or other person authorized to make the certification,
by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any law of a jurisdiction, state
or federal, or rule prescribed by the Supreme Court of Ohio.” Evid.R. 902(4)
{¶30} Viewing the evidence in a light most favorable to the city, we find that the
evidence in this case was legally inadequate to sustain the prosecution’s case. The city did not
present a certified copy of the TPO into evidence, thus failing to support a prima facie element of
the offense. N.D. at ¶ 20, citing State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). “Without the TPO itself, a stipulation, or any substantive testimony explaining
what the terms and conditions of the TPO included [or that the TPO was even in effect at the
time in question], the city presented insufficient evidence * * *.” N.D. at ¶ 28.
{¶31} The second assigned error is sustained. The remaining errors are moot.
App.R. 12(A).
III. Conclusion
{¶32} The judgment is reversed and the case is remanded for the trial court to enter
an order vacating Boone’s conviction.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland
Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
__________________________________________
ANITA LASTER MAYS, JUDGE
MARY EILEEN KILBANE, P.J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY