State v. Baird , 2023 Ohio 303 ( 2023 )

[Cite as State v. Baird, 2023-Ohio-303.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111428
v. :
ANDERSON BAIRD, SR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 2, 2023
Criminal Appeal from the Cuyahoga County Common Pleas Court
Case No. CR-20-649656-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Fallon Kilbane McNally, Assistant
Prosecuting Attorney, for appellee.
Flowers & Grube, Melissa A. Ghrist, and Louis E. Grube,
for appellant.
ANITA LASTER MAYS, J.:
Defendant-appellant Anderson Baird, Sr. (“Baird”) appeals his
convictions and sentence and asks this court to reverse his convictions and remand
to the trial court for further proceedings. We affirm Baird’s convictions and
sentence.
Baird elected to bifurcate the trial. After trial, the trial court found
Baird guilty of domestic violence, a third-degree felony in violation of
R.C. 2919.25(A).1 A jury found Baird not guilty of endangering children, a first-
degree misdemeanor in violation of R.C. 2919.22(A), but guilty of abduction, a third-
degree felony in violation of R.C. 2905.02(A)(2); disrupting public services, a
fourth-degree felony in violation of R.C. 2909.04(A)(1); and criminal damaging or
endangering, a first-degree misdemeanor in violation of R.C. 2909.06(A)(1). Baird
was sentenced to a total of 30 months imprisonment.
I. Facts and Procedural History
On March 17, 2020, at around 3:00 a.m., Baird awakened his
girlfriend, Da’Jera Page (“Page”), and slapped her. Later that day, as a result of the
slap, Page phoned a friend and asked the friend to come and pick up Page and her
two-week old infant. Upon hearing this, Baird punched Page in the chest and spat
on her, after pulling the infant from Page’s arms. Page attempted to dial 911, and
Baird took her phone and broke it. Page was able to flee the home with her baby,
and the police arrived at the home to speak with Baird. Baird’s five-year-old son,
1 Baird is not appealing his conviction for domestic violence.
A.J., told police that Baird and Page were arguing and Baird hit Page in the chest.
The police then arrested Baird.
Baird was charged with five counts, including domestic violence,
endangering children, abduction, disrupting public services, and criminal damaging
or endangering. Baird elected to have a bench trial on the domestic violence count
and a jury trial on the remaining four counts. Baird’s trial counsel requested that
the jury not hear any evidence pertaining to Baird’s guilt of domestic violence or any
facts relating to domestic violence.
The state responded and stated:
I would also like to object to bifurcation. That’s another trial strategy
that the State did not have notice of prior. Also, all of these charges
come from the same incident where allegedly the defendant assaulted
the victim, destroyed her phone, and these are all coming from the
same incident.
So to try to limit her testimony to only disrupting public services when
the reason the defendant was disrupting public services was the victim
was calling 911 to — attempting to call 911 to report domestic violence,
if she’s not allowed to speak about the domestic violence in the jury
trial, that’s unfairly and unnaturally restricting her testimony. I don’t
think that would be proper.
(Tr. 41-42.)
The trial court responded, stating:
I didn’t say that I was going to prevent her from giving context to her
testimony. The fact that they’re trying Count 1 to me, I’m making a
decision as to whether the State has proved its case or not. But you do
have to put the actions in context so I’m not — I’ll wait and see how
the evidence goes, but I’m not saying that the State can’t mention
anything that happened up to a certain point.
The decision on whether there was a crime committed as to domestic
violence will be mine, but for information and questioning relating to
how we ended up here on a five count indictment, at this point, I’m
not preventing the State from presenting evidence. It’s just you’re not
going to be arguing to the jury that the certain acts constitute domestic
violence. You’d be arguing that to the Court if it survives Rule 29.
(Tr. 42-43.)
At trial, during Page’s testimony, she testified that she had trouble
getting to court because her car had four flat tires and sugar was put in her gas tank.
Baird’s trial counsel objected, and the trial court overruled the objection. Page also
testified that her car did not have flat tires the previous day. Next Page testified
about an incident that happened earlier in the week at the courthouse. Page stated:
Monday morning when I arrived, I seen Anderson sitting outside and
he was telling me, like, so you going to come to court? And I was saying
yes and he was telling me that — he was just telling me like to leave
and if I didn’t leave that I was going to be f**ked and that he just
wanted me to leave.
(Tr. 282-283.)
Baird’s trial counsel asked the trial court if he could approach, and the
trial court stated that he could not but could make a record later. Page’s testimony
continued, and she testified as to the events on March 17, 2020. Page testified:
I was laying in the bed and Anderson had came in, he was drunk. I
could smell the liquor on him. And he woke me up and he was like
going off and I didn’t understand for what. And then I just got slapped
in my face three times. And he was just still yelling about the — I was
half asleep so I really was, like, so confused. Then he walked out the
door and he left.
(Tr. 287-288.)
Baird’s counsel objected, and the trial court overruled his objection.
Page’s testimony continued, with her stating:
March 17th when I woke up, I was really confused as to why he had
slapped me prior to that night. So when I woke up, I had questioned —
I had asked him like, what was your point of slapping me, like, what
did I do? And he had claimed that he didn’t remember anything. He
didn’t know —
***
He didn’t know what — like he was trying to act like he didn’t know
what I was talking about. So we began to keep talking about the
situation and we somehow got into an argument and I noticed that
when we went get into an argument, I try to leave before it could get
to that point where he puts his hands on me. So we was arguing, we
was going at it, so I —
(Tr. 292.)
The state interrupted Page’s testimony to ask her where in the
apartment did the altercation take place. Page responded that they started in the
bedroom but migrated to the living room where A.J. was sitting on the couch. Page
continued her testimony, stating:
In the midst of us arguing, I called my friend and I asked her to come
pick me and my child up and take us to my mom’s house. And when
she got there to pick me up where you see that window, that’s my
parking — that’s my driveway. So when she got here, I was right there
by the window because she was blowing, so.
(Tr. 293.)
After clarifying to the court that Page’s friend was honking the horn
so Page and her infant could leave the apartment, Page testified that
I was at that window, I was trying to tell her, here I come. Anderson
was blocking me. He was grabbing me. He was tussling. He was
trying to take the baby out my arms, out of my hand. I had her in a
car seat. He was trying to take the baby. He began to tell me that I
wasn’t taking his child anywhere. We wasn’t going nowhere. My
friend was still out there honking. So I’m trying — I told him, like, at
this point, I’m about the call the police.
***
I had my daughter in my right hand and she was in a car seat so I had
her like this, he's tussling with me like this and he’s pushing me
(indicating). He’s trying to grab the baby so we’re tussling for her. So
the process of us tussling for her, he’s way bigger and stronger than
me so he overpowered me and when he overpowered me, I fall to that
window and he snatches the baby.
***
She was in the car seat and she was like — she was a newborn, so I did
have her strapped in so she was fine. She was — my daughter was very
little when she was born, so the car seat was kind of like too big for
her. So she was, like, in the car seat, but she didn’t fall out or anything.
I guess you could say that she was being tossed around in the car seat.
***
I had tried to — I tried to call the police. He snatched my phone. He
threw my phone to the ground and he begin to stomp the phone. And
after that, I didn’t hear no honking no more so at this point I’m crying.
I’m in his face trying to get my daughter back. He then spit. He spit
on me and then he punched me.
And then after that, I’m crying, I’m going — I’m still crying, I’m still
trying to get my daughter because I’m not leaving without her and
that’s what I kept him, like, I’m not leaving without my child, dah, dah,
dah. He’s like, b**ch, just leave. Telling me like just leave. I’m like
I’m not leaving without my child. Give me my baby and I’ll leave.
He then gave me the baby and — he gave me the baby and that’s when
I left.
(Tr. 294-297.)
Page left the apartment and walked three blocks to her mother’s
house, where her mother called the police. Page left her mother’s home and walked
back to the apartment, where she met the police officers. When they arrived at the
apartment, Baird let them in the apartment. (Tr. 314.) Page testified that she did
not enter the apartment with the police and remained outside. Page stated that a
short time later, the police escorted Baird out of the apartment in handcuffs and
took him into custody.
Baird’s trial counsel objected to Page’s testimony, stating:
I just would like to place, so I don’t have to continually be objecting,
I’d like to place an ongoing objection to the deluge of inappropriate
404(B) evidence that’s been like an avalanche into the record thus far.
And we’re supposed to partition this off so that the jury is hearing
evidence as to Counts 2, 3 and 4 and 5. And Ms. Page has been saying
things as to my client being a drunk, being violent, slapping her
around, many other things. I objected. I stopped objecting because I
didn’t want the jury to infer that what I was doing was inappropriate
and the Court said I’d be able to make a record at this point.
And so I’d like the Court to just acknowledge that I’m objecting to all
of that evidence, all of that testimony rather, in front of the jury and
note my ongoing objection to it so I don’t have to continue to object as
we go forward in the trial.
(Tr. 302-303.)
The state responded to Baird’s counsel’s objections, stating:
Thank you, your Honor. These crimes occurred in this specific context
of an intimate domestic relationship and the specific charges and
incident that took place on March 17th didn’t occur in a vacuum. And
the victim’s description of her relationship, her living situation, and
the defendant’s violence towards her are all a part of that situation.
Specifically, Count 1 and the other four counts which are being tried
to the jury, are inextricably linked because specifically the disrupting
public service count, she was calling 911 to report a domestic violence.
So all of that testimony is inextricably linked to the context of the
situation and the incident that led her to call 911. And separating that
out would not be fair to the State because we need to give the jury an
accurate picture of what happened here.
(Tr. 303-304.)
After listening to both attorneys, the trial court stated:
Thank you. So the defense objections, I understand them but they
aren’t overruled because how the defendant acted and his demeanor
and how all these events with respect to endangering the children
occurred during the struggle and that he tried to prevent her from
leaving and that he had come in intoxicated and she didn’t understand
that. And the morning that they then argued about that situation and
he said he didn’t remember. Breaking her phone and all that type of
thing. That’s all relevant to Counts 2 through 5. And incidentally,
relevant to aspects of Count 1, but not all aspects of Count 1 because
Count 1 also involves information the jury doesn’t have, the
stipulation as to his prior convictions.
But it was not unduly dwelled upon or presented. There were — this
was a very brief recitation of an event that transpired over hours and
the Court finds it was not meant to sensationalize or unduly prejudice
Mr. Baird but it was the most essentials that could be presented in
order for this alleged victim to describe what happened and in her
understanding why.
***
She’s just trying to describe their relationship and you have the
opportunity to cross-examine her and indicate to the jury she’s
untruthful, inaccurate, whatever it might be. But I felt that her
testimony was limited in scope to the bare minimums to establish why
we’re here.
We didn’t go back into particular days before March 16th. We didn’t
go back into the whole entirety. I mean, there were some brief
references but it was not unduly prejudicial. It did give background
as to what led her to be confused on that morning when he allegedly
came in and slapped her three times and then their argument that
ensued that then led to this breaking of her phone, holding her, trying
to use the child kind of as a hostage, all that kind of thing.
Now, you did object about her stating that her friend — about her
beeping the horn, why was she beeping the horn and all that, that’s
her opinion as to why the friend was beeping the horn and it had very
limited prejudicial effect, if any. She is allowed to give her opinion
upon why a person is acting a certain way but that’s not the main part
of the case is that her friend was beeping her horn to try and get her
out there. The main part of the case is what was presented and then
you have a chance to probe that further and discredit her.
(Tr. 304, 305-306.)
Later during the trial, Officer Allison Long (“Officer Long”) testified
she responded to the 911 call and arrived at Page’s apartment, where Page and her
mother were standing outside. Officer Long spoke with Page regarding the incident
that took place in the apartment. Then Officer Long testified that Baird allowed the
officers access to the apartment. She stated: “He allowed us in the apartment. We
wanted to speak with him outside, because his son was in the apartment and I try to
prevent interactions in front of children if I can, but he wanted to be in the
apartment so he let us in with him.” (Tr. 342-343.)
Officer Long testified that after Baird allowed the officers in the
apartment, he explained the altercation that took place between him and Page.
Officer Long stated:
He said that he had gotten into a verbal altercation with the victim and
that she wanted to leave with their infant child and he did not want
his infant child to leave. He said that no physical altercation had taken
place and that she eventually left.
(Tr. 343.)
After Baird gave his statement, he was detained, and taken outside.
A.J. was left in the apartment with Officer Long. Long testified that A.J. “was able
to give me his name and spell it as well as give me his birthday.” (Tr. 348.) Officer
Long asked A.J. if he witnessed the altercation between Baird and Page. She stated:
First and foremost, I asked if he was okay. He said he was okay. I
asked him what his name was, and what his birthday was. I did that
to try and assess his mental capability. He was able to spell out his
name and give me his birthday. I asked him what happened. He
seemed to get a little bit more nervous when he was telling me and he
told me that his dad and his girlfriend were arguing. And that his dad
had hit her in the chest several times.
(Tr. 350-351.)
Baird’s counsel objected to Officer Long’s testimony regarding A.J.’s
statement. He stated:
What I would say is this is, by the alleged victim’s own statement on
the 911 call, it was over an hour later and this child was interviewed
without a parent or without — and they were interviewed for
prosecution and investigation of this case.
Beyond that, I mean, if the — my client’s right to confrontation would
be violated if this statement comes in. And by the Court’s own
statement during when you were instructing the jury, you said people
— you gave the instruction that people can — two people can witness
something and have different statements about what happened. And
here, you know, without being able to cross-examine that child — and
I have this written out — and let that in.
So I said you stated to the jury, two people can view something and
they might have a different description of it. And if you’re having an
excited utterance and saying that the truthfulness is there because the
child or the person was under duress and to compound that you say
that a child is trustworthy because of their age.
(Tr. 346-347.)
The trial court allowed Officer Long’s testimony stating that
“Declarations of children under ten years may be particularly trustworthy. I haven’t
heard the foundation. I don’t know whether it comes in or not. I don’t have the
evidence that you all have through discovery. I’m waiting to hear it.” (Tr. 347.)
At the end of the trial, Baird’s counsel moved the court for a mistrial,
stating:
Your Honor, I want to move the Court for a mistrial at this time.
During the State’s close, [the state] ignored the admonishments of the
Court that have gone on over the past few days with regard to
allegations of my client intimidating this alleged victim. My client
allegedly slashing the tires of the car. He pulled on the jury’s
heartstrings.
I think the curative instruction that you’ve given is insufficient. I’m
not going to ask you to do it again because it’s just going to call more
attention to this. I think this jury has been irreparably poisoned by
those remarks of other-acts evidence. I understand this isn’t evidence,
but you can’t do it.
We’ve put up a wall the entire trial to make sure this stuff didn’t come
in and at the eleventh hour, to make a statement to the jury like that,
it puts me in an untenable position. Right before I’m supposed to get
up and make an argument about credibility, he says that about my
client. He’s put me in a position where I — compounded by the fact
that he’s not sitting there.
I don’t think there’s any other recourse but to have a mistrial at this
point. I can’t believe it. I’m so angry right now. I can’t even tell you
how angry I am right now.
(Tr. 440-441.)
After the state responded that they did not understand Baird’s
counsel’s argument, the trial court responded that the state was instructed not to
bring in testimony regarding Page’s slashed tires or the sugar in her gas tank. The
state argued that neither they nor Page stated that Baird committed those crimes,
but rather had Page testify to those facts because he was “discussing her credibility
and what her interests would be in fabrication and I was saying her interests are
running counter to her coming in and testifying and that should weigh in favor of
her credibility, which is clear in the context of my argument.” (Tr. 445.)
The trial court responded to the state first and then to Baird’s counsel,
stating:
You have a right if the Court allows it, finds that it’s relevant,
probative, and not more prejudicial than probative. All right? You
don’t have a right to say anything unless the Court allows you under
the Rules of Evidence. You’re missing that point. Remember, I
admonished you yesterday that the proper place for the jail calls and
the contact and all that is in his next case, which involves violations of
a TRO. Not this case. You just still don’t get it. So you’re done talking.
[Counsel], although I understand your anguish, all right, I’m not
granting a mistrial. Because there’s Count 1, which is being tried to
the Court and I’m not influenced by this attempt to bring in things.
I’m not even sure it’s an attempt. It’s an absence of skill by bringing
them in, in my view. Okay. Complete absence of skill when there’s
evidence — you have a witness that’s testified about how these things
transpired and that evidence is uncontroverted. There’s no opposing
evidence to it. There’s some cross-examination, but there’s no
opposing evidence. And a lot of this, in my view, may have been
unnecessary. But I let you prosecute your case.
I’m not granting a mistrial, but I will instruct the jury, as I did, I told
them to disregard some of those statements. They might be in
another — they might belong in another trial. They don’t belong in
this trial. So I’m going to walk back here and at 11:40 we’re going to
go forward.
[Counsel] you will have your closing. The State has their rebuttal. I’m
charging this jury.
(Tr. 447-448.)
After the jury returned to the court room, the trial court spoke to the
jury, stating:
Anyway, welcome back. You heard the opening close by the State. I
do want to say that some remarks were made in there that I’m going
to ask you to disregard totally. There was an improper argument
about tires being slashed and phone calls and other things.
You are here, ladies and gentlemen, to decide whether the child was
in danger, whether there was an abduction, whether there was a
disrupting public service, that being telephone, whether a cell phone
was damaged.
That’s what you’re here for. Anything else that has gone beyond that,
there were objections, the Court sustained them and I’m telling you
that you must disregard that extraneous information. It’s not part of
this case. Okay?
But there are parts of the case that you will have relevant evidence to
decide and that was your job from the beginning and it remains your
job.
(Tr. 451-452.)
The trial court found Baird guilty of domestic violence. The jury
found Baird guilty of all counts, except the endangering children count, and he was
sentenced to 30 months in prison. Baird filed this timely appeal and assigned three
errors for our review:
1. The trial court erred by permitting the state to introduce
evidence of other crimes, wrongs, or acts;
2. The trial court erred in denying the defendant’s motion for
mistrial; and
3. The trial court erred by permitting jurors to hear inadmissible
hearsay evidence in violation of the constitutional right to
confrontation.
II. Evid.R. 404(B)
A. Standard of Review
“‘[T]rial court decisions regarding the admissibility of other-acts
evidence under Evid.R. 404(B) are evidentiary determinations that rest within the
sound discretion of the trial court.’” State v. Mills, 8th Dist. Cuyahoga No. 110893,
2022-Ohio-4010, ¶ 53, quoting State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-
2407, 972 N.E.2d 528, ¶ 22. ‘“Appeals of such decisions are considered by an
appellate court under an abuse-of-discretion standard of review.’” Id. quoting id.“Likewise, when reviewing a trial court’s decision to admit evidence pursuant to
Evid.R. 403(A), ‘[t]he appropriate standard of review is the abuse of discretion
standard.’” Id., quoting State v. Wright, 8th Dist. Cuyahoga No. 108026, 2019-
Ohio-4460, ¶ 49. “‘The trial court has broad discretion in the admission * * * of
evidence and unless it has clearly abused its discretion and the defendant has been
materially prejudiced thereby, this court should be slow to interfere.’” State v.
Maurer, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984), quoting State v. Hymore, 9
Ohio St. 2d 122, 224 N.E.2d 126 (1967). “‘In order for the evidence to be deemed
inadmissible, its probative value must be minimal and its prejudicial effect great
[when] viewed in a light most favorable to the proponent of the evidence[.]’”
(Citations omitted.) Mills at ¶ 53, quoting Wright at ¶ 50.
“An abuse of discretion occurs when a court exercises its judgment in
an unwarranted way regarding a matter over which it has discretionary authority.”
Id. at ¶ 54, citing Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187
N.E.3d 463, ¶ 35. See also State v. Acosta, 8th Dist. Cuyahoga No. 111110, 2022-
Ohio-3327, ¶ 43; State v. Parker, 8th Dist. Cuyahoga No. 110563, 2022-Ohio-377,
¶ 11.
B. Law and Analysis
In Baird’s first assignment of error, he argues that the trial court erred
by allowing Page’s testimony regarding her troubles getting to court because her
tires were flattened and sugar was put in her gas tank. Page then testified about
Baird threatening her at the courthouse earlier in the week before the trial. Finally,
Baird contends that the trial court erred by allowing Page to testify that Baird
awakened and slapped her. Baird’s trial counsel did object to this testimony at trial,
arguing that it was inappropriate Evid.R. 404(B) evidence, and the state argued that
this testimony was within the context of the situation.
Evid.R. 404(B) states:
(1) Prohibited uses. Evidence of any other crime, wrong or act is not
admissible to prove the person’s character in order to show that on a
particular occasion the person acted in accordance with the character.
(2) Permitted uses; notice. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident. The proponent of evidence to be offered under this rule
shall:
(a) provide reasonable notice of any such evidence the
proponent intends to introduce at trial so that an opposing
party may have a fair opportunity to meet it;
(b) articulate in the notice the permitted purpose for which the
proponent intends to offer the evidence, and the reasoning that
supports the purpose; and
(c) do so in writing in advance of trial, or in any form during
trial if the court, for good cause, excuses lack of pretrial notice.
“In deciding whether to admit other acts evidence, trial courts should
conduct a three-step analysis:
The first step is to consider whether the other acts evidence is relevant
to making any fact that is of consequence to the determination of the
action more or less probable than it would be without the evidence.
Evid.R. 401. The next step is to consider whether evidence of the other
crimes, wrongs, or acts is presented to prove the character of the
accused in order to show activity in conformity therewith or whether
the other acts evidence is presented for a legitimate purpose, such as
those stated in Evid.R. 404(B). The third step is to consider whether
the probative value of the other acts evidence is substantially
outweighed by the danger of unfair prejudice.”
State v. Brown, 8th Dist. Cuyahoga No. 106582, 2019-Ohio-1235, 134 N.E.3d 783,
¶ 96, quoting State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d
1278, ¶ 20.
Baird argues that Page’s testimony regarding the vandalism of her car
was prejudicial. The trial court admonished the state for this testimony, stating that
it instructed the state not to bring in the testimony. The state responded that it was
to demonstrate Page’s credibility to the jury and that the state did not accuse Baird
of vandalizing Page’s car. In response to Baird’s objection, the trial court gave a
curative instruction to the jury, stating, in part:
I do want to say that some remarks were made in there that I’m going
to ask you to disregard totally. There was an improper argument
about tires being slashed and phone calls and other things.
You are here, ladies and gentlemen, to decide whether the child was
in danger, whether there was an abduction, whether there was a
disrupting public service, that being telephone, whether a cell phone
was damaged.
That’s what you’re here for.
(Tr. 451.)
“‘A jury is presumed to follow the instructions, including curative
instruction, given it by a judge.’” State v. Willis, 8th Dist. Cuyahoga No. 99735,
2014-Ohio-114, ¶ 36, quoting State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623(1995). Baird has not demonstrated that the jury did not following the trial court’s
instructions. Thus, Page’s testimony constitutes harmless error. Crim.R. 52(A)
defines harmless error in the context of criminal cases and provides: “Any error,
defect, irregularity, or variance which does not affect substantial rights shall be
disregarded.”
“Under the harmless-error standard of review, ‘the government bears
the burden of demonstrating that the error did not affect the substantial rights of
the defendant.’” (Emphasis omitted.) State v. McCully, 8th Dist. Cuyahoga
No. 107888, 2020-Ohio-659, ¶ 17, quoting State v. Perry, 101 Ohio St.3d 118, 2004-
Ohio-297, 802 N.E.2d 643, ¶ 15, citing United States v. Olano, 507 U.S. 725, 741, 113
S.Ct. 1770, 123 L.Ed.2d 508 (1993). “In most cases, in order to be viewed as
‘affecting substantial rights,’ “‘the error must have been prejudicial: It must have
affected the outcome of the [trial] court proceedings.’”” Id., quoting State v. Fisher,
99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting United States v.
Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
Accordingly, Crim.R. 52(A) asks whether the rights affected are
“substantial” and, if so, whether a defendant has suffered any prejudice as a result.
Id., citing State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153,
¶ 24-25. “If the government does not satisfy its burden, the appellate court has no
discretion to disregard the error; rather, the court must reverse the conviction.” Id.,citing Perry at ¶ 15. The state elicited testimony from Page that her car was
vandalized before coming to testify in this trial. Although Page did not state that
Baird was responsible, the testimony was inappropriate. Page also testified as to
Baird threatening her for coming to court. However, we find that Baird has not
demonstrated that Page’s testimony prejudiced him or that the jury relied on that
testimony in their finding of guilt.
Baird also contends that Page’s testimony regarding Baird’s past
behavior of drinking and domestic violence was prejudicial. He argues that Page
testifying to the events regarding Baird slapping her in the middle of night, his past
aggressive and violent behavior, and Baird damaging her phone were inappropriate
404(B) evidence. The state argued that all of this testimony was essential and linked
to the context of the situation that led Page to call 911. Page’s testimony regarding
Baird damaging her phone was to provide evidence for the criminal damaging
charge of the instant case, not the domestic violence case.
We determine that Baird’s argument is misplaced. “Generally, prior
bad acts by a defendant against the same victim are admissible in domestic violence
cases to prove the defendant’s intent.” State v. Clay, 181 Ohio App.3d 563, 2009-
Ohio-1235, 910 N.E.2d 14 (8th Dist.), ¶ 35, citing State v. Blonski, 125 Ohio App.3d
103, 113, 707 N.E.2d 1168 (1997); State v. Johnson, 73 Ohio Misc.2d 1, 3, 657 N.E.2d
383 (1994). “When using a defendant’s prior acts to show his intent, ‘the offense for
which the defendant is being tried and the other act must have occurred reasonably
near to each other and a similar scheme, plan or system must have been utilized to
commit the offense at issue and the other offenses.’” Id., quoting Blonski at 113.
Baird argues that the state did not have to demonstrate why Page
wanted to leave the home, just that she was restrained. However, his argument is
misplaced because Page’s testimony was provided for context as to why Page wanted
to leave the home. Baird’s prior acts were used to show his intent and these acts
were linked in the same occurrence. Moreover, even without these comments
regarding past abuse of which Baird now complains, the state provided substantial
evidence of Baird’s guilt on the offenses charged. See State v. Hilton, 8th Dist.
Cuyahoga No. 89220, 2008-Ohio-3010. Thus, we find these comments do not
constitute plain error because the outcome of the trial would not have been different
without them. See State v. Wilcox, 8th Dist. Cuyahoga No. 96079, 2011-Ohio-5388,
¶ 12.
Therefore, Baird’s first assignment of error is overruled.
III. Motion for Mistrial
A. Standard of Review
“‘The standard of review for evaluating the trial court’s decision on a
motion for a mistrial is an abuse of discretion.’” State v. Sheline, 8th Dist. Cuyahoga
No. 106649, 2019-Ohio-528, ¶ 160, quoting State v. Taylor, 8th Dist. Cuyahoga
No. 95041, 2011-Ohio-839, ¶ 25.
“A mistrial should not be ordered in a criminal case merely because
some error or irregularity has occurred, unless the substantial rights
of the accused or the prosecution are adversely affected, and this
determination is made at the discretion of the trial court. The
granting of a mistrial is only necessary when a fair trial is no longer
possible. Thus, the essential inquiry on a motion for mistrial is
whether the substantial rights of the accused are adversely or
materially affected.”
(Citations omitted.) Id., quoting Taylor at ¶ 26.
B. Law and Analysis
In Baird’s second assignment of error, he argues that the trial court
erred by denying the defendant’s motion for mistrial. At trial, Baird’s counsel moved
the court for a mistrial, stating:
Your Honor, I want to move the Court for a mistrial at this time.
During the State’s close, [the state] ignored the admonishments of the
Court that have gone on over the past few days with regard to
allegations of my client intimidating this alleged victim. My client
allegedly slashing the tires of the car. He pulled on the jury’s
heartstrings.
I think the curative instruction that you’ve given is insufficient. I’m
not going to ask you to do it again because it’s just going to call more
attention to this. I think this jury has been irreparably poisoned by
those remarks of other-acts evidence. I understand this isn’t evidence,
but you can’t do it.
We’ve put up a wall the entire trial to make sure this stuff didn’t come
in and at the eleventh hour, to make a statement to the jury like that,
it puts me in an untenable position. Right before I’m supposed to get
up and make an argument about credibility, he says that about my
client. He’s put me in a position where I — compounded by the fact
that he’s not sitting there.
I don’t think there’s any other recourse but to have a mistrial at this
point. I can’t believe it. I’m so angry right now. I can’t even tell you
how angry I am right now.
(Tr. 440-441.)
Additionally, Baird contends that the curative instruction given by the
trial court failed to remedy the prejudice to Baird. In the previous assignment of
error, we stated that “‘[a] jury is presumed to follow the instructions, including
curative instruction, given it by a judge.’” Willis, 8th Dist. Cuyahoga No. 99735,
2014-Ohio-114, at ¶ 36, quoting Garner, 74 Ohio St.3d at 59, 656 N.E.2d 623. As we
previously determined, Baird has not demonstrated that he was prejudiced by the
testimony or that the jury did not follow the trial court’s instructions. Additionally,
Baird was found not guilty of child endangering, which demonstrates that the jury
considered all offenses and disregarded others.
“In determining whether a mistrial is necessary, the exercise of ‘sound
discretion’ generally requires that a trial court (1) allow both parties to state their
positions on the issue, (2) consider their competing interests, and (3) explore
reasonable alternatives, if any, before declaring a mistrial.” State v. Bogan, 8th Dist.
Cuyahoga No. 106183, 2018-Ohio-4211, ¶ 25, citing N. Olmsted v. Himes, 8th Dist.
Cuyahoga Nos. 84076 and 84078, 2004-Ohio-4241, ¶ 44. “A trial court must act
‘rationally, responsibly, and deliberately’ in determining whether to declare a
mistrial.” Id., quoting State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, ¶ 33.
“However, a trial court’s failure to make an explicit finding of ‘manifest necessity’
does not render a mistrial declaration invalid, as long as the record provides
sufficient justification for the ruling.” Id., citing Arizona v. Washington, 434 U.S.
497, 516-517, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).
The record reflects that the trial court heard competing positions
from the state and defense. After consideration, the trial court decided that a
curative instruction was a reasonable alternative to declaring a mistrial. “This court
has explained that ‘[c]urative instructions have been recognized as an effective
means of remedying errors or irregularities that occur during trial.’” State v.
Solomon, 8th Dist. Cuyahoga No. 109535, 2021-Ohio-940, ¶ 94, quoting State v.
Williams, 8th Dist. Cuyahoga No. 94242, 2010-Ohio-5484, ¶ 21.
For the foregoing reasons, we find that Baird has failed to provide
clear and affirmative evidence demonstrating that Page’s testimony improperly
influenced the jury, materially affected the merits of the case, or deprived Baird of a
fair trial. See State v. Williams, 8th Dist. Cuyahoga No. 106266, 2018-Ohio-3368,
¶ 41. Therefore, we find no basis upon which to conclude that the trial court’s
judgment denying defense counsel’s motion for a mistrial and determination that a
curative instruction to the jury was more appropriate was arbitrary, unreasonable,
or unconscionable.
Baird’s second assignment of error is overruled.
IV. Hearsay Testimony
A. Standard of Review
“A trial court has broad discretion regarding the admission of
evidence, including whether evidence constitutes hearsay and whether it is
admissible hearsay.” State v. Wingfield, 8th Dist. Cuyahoga No. 107196, 2019-Ohio-
1644, ¶ 29, citing Solon v. Woods, 8th Dist. Cuyahoga No. 100916, 2014-Ohio-5425,
¶ 10. “We therefore will not disturb a trial court’s decision regarding the
admissibility of hearsay evidence absent an abuse of discretion and the defendant
suffers material prejudice.” Id., citing Maurer, 15 Ohio St.3d at 265, 473 N.E.2d
768.
B. Law and Analysis
In Baird’s final assignment of error, he argues that the trial court
erred by permitting jurors to hear A.J.’s statements to Officer Long. Baird contends
that by permitting this hearsay testimony, it created a defect on the trial because A.J.
was never cross-examined. Essentially, Baird argues that Officer Long’s testimony
violated his constitutional right to confrontation. The Confrontation Clause of the
Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right * * * to be confronted with the witnesses against him.”
With respect to hearsay, the United State Supreme Court has held that
the Confrontation Clause prohibits the admission of a testimonial,
out-of-court statement made by a witness unless the witness is
unavailable and the defendant had a prior opportunity to cross-
examine the witness.
State v. Craft, 12th Dist. Butler No. CA2006-06-145, 2007-Ohio-4116, ¶ 50, citing
Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
The state argues that Officer Long’s testimony regarding what A.J.
statements were is not admissible hearsay, but rather a child’s declaration as an
excited utterance. Officer Long testified that “I asked him what happened. He
seemed to get a little bit more nervous when he was telling me and he told me that
his dad and his girlfriend were arguing. And that his dad had hit her in the chest
several times.” (Tr. 350-351.) Before Officer Long’s testimony concerning what A.J.
revealed to her, Baird’s trial counsel objected and stated:
What I would say is this is, by the alleged victim’s own statement on
the 911 call, it was over an hour later and this child was interviewed
without a parent or without — and they were interviewed for
prosecution and investigation of this case. Beyond that, I mean, if
the — my client’s right to confrontation would be violated if this
statement comes in. And by the Court’s own statement during when
you were instructing the jury, you said people — you gave the
instruction that people can – two people can witness something and
have different statements about what happened. And here, you know,
without being able to cross-examine that child — and I have this
written out — and let that in. So I said you stated to the jury, two
people can view something and they might have a different
description of it. And if you’re having an excited utterance and saying
that the truthfulness is there because the child or the person was
under duress and to compound that you say that a child is trustworthy
because of their age.
(Tr. 346-347.)
“An excited utterance is defined as a ‘statement relating to a startling
event or condition made while the declarant was under the stress of excitement
caused by the event or condition.’” State v. Carstaphen, 8th Dist. Cuyahoga
No. 110906, 2022-Ohio-3129, ¶ 32, quoting Evid.R. 803(2). Baird argues that
because A.J.’s statements were made about an hour after the initial confrontation,
they do not qualify as excited utterances.
“‘There is no per se amount of time after which a statement can no
longer be considered to be an excited utterance. The central requirements are that
the statement must be made while the declarant is still under the stress of the event
and the statement may not be a result of reflective thought.’” (Emphasis sic.)
State v. Sims, 12th Dist. Butler No. CA2007-11-300, 2009-Ohio-550, ¶ 14, quoting
State v. Taylor, 66 Ohio St.3d 295, 303, 612 N.E.2d 316 (1993). “‘[T]he passage of
time between the statement and the event is relevant but not dispositive of the
question.’” Id. at id. A.J. witnessed Baird striking Page, the police coming into his
home, and then the police arresting his father. From these facts, it demonstrates
that A.J. was under the stress caused by the event when he told Officer Long the
details of the altercation.
“The Supreme Court of Ohio has made clear that, to be an excited
utterance, the statement need not be strictly contemporaneous with the startling
event.” Carstaphen at ¶ 35, citing State v. Duncan, 53 Ohio St.2d 215, 373 N.E.2d
1234 (1978), paragraph one of the syllabus. ““‘[E]ach case must be decided on its
own circumstances, since it is patently futile to attempt to formulate an inelastic rule
delimiting the time limits within which an oral utterance must be made in order that
it be termed a spontaneous exclamation.’”” Id., quoting Taylor at 303, quoting
Duncan at 219. See also In re C.C., 8th Dist. Cuyahoga Nos. 88320 and 88321,
2007-Ohio-2226 (finding an excited utterance even though 27 days passed between
the event and the statement); State v. Duke, 8th Dist. Cuyahoga No. 52604, 1988
Ohio App. LEXIS 3466 (Aug. 25, 1988) (finding an excited utterance when the
statement was made ten days following an incident).
The facts in this instant case are analogous to the facts in Cleveland v.
Taylor, 8th Dist. Cuyahoga No. 109371, 2021-Ohio-584. In Taylor, after a domestic
violence incident between mother and father, mother testified at trial and repeated
statements her minor child made to her regarding the incident. Mother testified,
I grabbed my son which I had a talk to in the room because he was
under his covers in tears crying saying that his daddy didn’t love him.
And he proceeded to tell me that [appellant] grabbed him by his arm,
threw him on the ground and told him that he is not a part of his
family, he does not have f[***] in his family.
Id. at ¶ 19.
On appeal, father, the appellant, argued that the trial court erred by
allowing mother to testify, over defense counsel’s objection, about the son’s out-of-
court statements. Appellant contended that the trial court’s ruling violated his
constitutional right to confrontation. The city, however, argued that the statements
were admissible as an excited utterance. The court stated that “[t]he record reflects
that the son was still under the stress of excitement caused by appellant’s discovery
on his cell phone.” Id. at ¶ 58. This court held that there is “no basis upon which to
conclude that the trial court abused its discretion in permitting [mother] to testify
about the son’s statements. Id. at ¶ 54.
As in our instant case, the appellant in Taylor argued that the child’s
statements were not admissible under the excited utterance exception to the hearsay
rule because they were made after appellant left the scene.
“Evid.R. 803 sets forth certain exceptions to the rule against hearsay,
including the “excited utterance” exception. Evid.R. 803(2). In order
for a statement to be admissible as an excited utterance, four
prerequisites must be satisfied: (a) the occurrence of an event startling
enough to produce a nervous excitement in the declarant that stills his
reflexive faculties so that his declarations are spontaneous and the
unreflective and sincere expressions of his impressions and beliefs;
(b) a statement made while still under the stress of excitement caused
by the event; (c) a statement related to the startling event; and (d) the
declarant had an opportunity to personally observe the matters in his
declaration. State v. Taylor, 66 Ohio St.3d 295, 300-301, 612 N.E.2d
316 (1993); State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984
N.E.2d 948, ¶ 166.”
Id. at ¶ 53, quoting State v. Renode, 8th Dist. Cuyahoga No. 109171, 2020-Ohio-
5430, ¶ 27.
As in Taylor, 66 Ohio St.3d 295, 303, 612 N.E.2d 316, in our instant
case, A.J.’s statements to Officer Long were not testimonial.
In Crawford, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177, the
United States Supreme Court held that the Confrontation Clause of
the Sixth Amendment to the United States Constitution permits
testimonial statements of witnesses absent from trial where the
declarant is unavailable, only where the defendant has had a prior
opportunity to cross-examine. 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.” Id. at 52. See also Davis v.
Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224(2006). “Statements 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.” Davis at 823. See also State v. Eicholtz,
2d Dist. Clark No. 2012-CA-7, 2013-Ohio-302, ¶ 26.
Id. at ¶ 50, quoting Renode at ¶ 24.
A.J.’s statements were made during Officer Long’s interrogation to
enable the police to meet an ongoing emergency. A.J.’s statements would not lead
an objective witness to reasonably believe that his statements would be available for
use at a later trial. Therefore, A.J. statements were not testimonial.
As the court in Taylor previously found, we cannot conclude that
A.J.’s statements were inadmissible hearsay. The record reflects that A.J. was still
under that stress and excitement of watching his father and Page engage in conflict
and witnessing police officers enter his home and detain his father. Thus, the trial
court did not err or abuse its discretion in allowing Officer Long to testify as to the
statements A.J. made to her.
Therefore, Baird’s third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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
common pleas 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, ADMINISTRATIVE JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
SEAN A. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY (with separate
opinion)
SEAN C. GALLAGHER, P.J., CONCURRING IN JUDGMENT ONLY:
I respectfully concur in judgment only. I am unable to fully agree with
the analysis provided by the majority.
This is a case in which the charge of domestic violence was tried to the
bench and the remaining charges were tried to a jury. The charges presented to the
jury included endangering children, abduction, disrupting public service, and
criminal damaging or endangering. Although appellant sought to prevent the jury
from hearing evidence pertaining to the domestic-violence charge, as the Supreme
Court of Ohio has held, “‘evidence of other crimes may be presented when “they are
so blended or connected with the one on trial as that proof of one incidentally
involves the other; or explains the circumstances thereof; or tends logically to prove
any element of the crime charged.”’” State v. Wilkinson, 64 Ohio St.2d 308, 317, 415
N.E.2d 261 (1980), quoting United States v. Turner, 423 F.2d 481, 483-484 (7th
Cir.1970); accord State v. Roe, 41 Ohio St.3d 18, 23, 535 N.E.2d 1351 (1989); see also
State v. Evans, 8th Dist. Cuyahoga No. 108648, 2020-Ohio-3968, ¶ 108. Likewise,
“‘[t]he jury is entitled to know the “setting” of a case. It cannot be expected to make
its decision in a void — without knowledge of the time, place and circumstances of
the acts which form the basis of the charge.’” Id., quoting United States v. Roberts,
548 F.2d 665, 667 (6th Cir.1977), cert. denied 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d
246; see also State v. David, 1st Dist. Hamilton No. C-210227, 2021-Ohio-4004,
¶ 14-15.
Otherwise put, evidence is admissible outside the parameters of
Evid.R. 404(B) where the evidence is intrinsic, as opposed to extrinsic, to the crime
being charged, i.e., the acts form part of the immediate background of the crime
charged, or explain the circumstances thereof, or tend to logically prove an element
of the crime charged. See State v. Evans, 8th Dist. Cuyahoga No. 108648, 2020-
Ohio-3968, ¶ 108-109; State v. Jones, 2018-Ohio-498, 105 N.E.3d 702, ¶ 140 (8th
Dist.); Cleveland v. Lowery, 8th Dist. Cuyahoga No. 103722, 2016-Ohio-5626, ¶ 22;
State v. Johnson, 8th Dist. Cuyahoga No. 83317, 2004-Ohio-2698, ¶ 27. Such
evidence is “necessary to give a complete picture of what occurred.” Wilkinson at
¶ 318.
In this matter, the crimes were inextricably intertwined and the facts
of the domestic violence explained the circumstances that formed the basis and
foundation for the other crimes. For instance, the offense of abduction required that
appellant without privilege to do so, knowingly by force or threat, restrained the
liberty of Page under circumstances that created a risk of physical harm to Page or
placed her in fear. See R.C. 2905.02(A)(2). Evidence regarding the domestic
violence provided essential background and explained the circumstances of the
abduction charge and the other offenses. Although appellant argues that the state
separately elicited testimony tending to show restraint as Baird and Page fought over
who would take their child, the domestic violence was nonetheless part and parcel
of the abduction offense.
To the extent that improper testimony was admitted regarding the
vandalism to Page’s vehicle and Baird’s statements to her at the courthouse, and the
assistant prosecuting attorney commented on the same during his closing argument,
the trial court provided a curative instruction and the record shows no prejudice
occurred. It is presumed that the jury followed the curative instruction. State v.
Robinson, 8th Dist. Cuyahoga No. 110883, 2022-Ohio-1940, ¶ 35, citing State v.
Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). Nothing in the record
herein rebuts that presumption. In fact, appellant was acquitted on the charge of
endangering children. It cannot be said that the error was not harmless beyond a
reasonable doubt, and the remaining evidence established appellant’s guilt beyond
a reasonable doubt of the other offenses. The state demonstrated appellant’s
substantial rights were not abridged. The error was harmless.
Finally, I agree with the majority that there was no violation of the
Confrontation Clause and find no abuse of discretion by the trial court’s admission
of the five-year-old’s statement as an excited utterance. To the extent any other
evidence was improperly introduced, I likewise would find the error to be harmless.
Although I am troubled by the state’s rather carefree approach to the
introduction of some of the evidence offered in this case, I am unable to find that
reversible error occurred. Appellant “‘is entitled to a fair trial but not a perfect one.’”
State v. Walker, 55 Ohio St.2d 208, 216, 378 N.E.2d 1049 (1978), quoting Lutwak v.
United States, 344 U.S. 604, 619, 73 S.Ct. 481, 97 L.Ed. 593 (1953). The claimed
errors in this case are susceptible to harmless-error review and did not prejudice the
substantial rights of the defendant. Additionally, I find the trial court did not abuse
its discretion in denying appellant’s request for a mistrial.
For these reasons, I would affirm the judgment of the trial court.