State v. Arnold

[Cite as State v. Arnold, 2014-Ohio-1134.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-13-27
v.
JEFFREY C. ARNOLD, OPINION
DEFENDANT-APPELLANT.
Appeal from Fostoria Municipal Court
Trial Court No. CRB1300116
Judgment Affirmed
Date of Decision: March 24, 2014
APPEARANCES:
Gene P. Murray for Appellant
Timothy J. Hoover for Appellee
Case No. 13-13-27
SHAW, J.
{¶1} Defendant-appellant Jeffery C. Arnold (“Arnold”) appeals the June
18, 2013, judgment of the Fostoria Municipal Court sentencing Arnold to 150 days
in jail following Arnold’s bench trial conviction for Domestic Violence in
violation of R.C. 2919.25(A), a first degree misdemeanor.
{¶2} The facts relevant to this appeal are as follows. On March 28, 2013, a
complaint was filed against Arnold alleging that Arnold committed Domestic
Violence in violation of R.C. 2919.25(A), a first degree misdemeanor. (Doc. 1).
The complaint alleged that Arnold did cause, or attempt to cause, physical harm to
his father, Lester Arnold. (Id.) The complaint further alleged that Arnold, who
lived with his father and mother, became agitated and grabbed his father by the
hair “and then strangled him.” (Id.)
{¶3} On April 1, 2013, Arnold entered a plea of not guilty to the charge
against him. (Doc. 7).
{¶4} On June 18, 2013, the case proceeded to a bench trial. At the trial, the
State called four witnesses: Lester Arnold, the victim, Connie Arnold, the
victim’s wife and mother to Arnold, and two officers that responded to the scene.
The State then rested its case. Arnold’s counsel cross-examined all of the
witnesses, but Arnold did not present any further evidence. Following closing
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arguments, the court found Arnold guilty of Domestic Violence in violation of
R.C. 2919.25(A), a first degree misdemeanor.
{¶5} The trial court then proceeded directly to sentencing, and sentenced
Arnold to 150 days in jail. (Doc. 28). A judgment entry reflecting this was filed
that same day, June 18, 2013. (Id.)
{¶6} It is from this judgment that Arnold appeals, asserting the following
assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT ABUSED ITS DISCRETION AND THE
PROSECUTING ATTORNEY WRONGLY AND
IMPROPERLY ADVISED THE STATE’S OWN KEY
WITNESS THAT HE (LESTER ARNOLD, THE ALLEGED
VICTIM) HAD NO RIGHT TO INVOKE HIS PRIVILEGE
UNDER THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION, TO NOT TESTIFY, REGARDING
LESTER ARNOLD’S EXPRESSED UNDER OATH
STATEMENT THAT “I HAVE A RIGHT FROM SELF-
INCRIMINATION UNDER THE FIFTH AMENDMENT AND
I DO HAVE A RIGHT TO REFUSE TO TESTIFY,” WITH
THE TRIAL COURT EFFECTUALLY AND REPEATEDLY
DENYING SAME, AND OTHERWISE ADVISING THE
WITNESS OF CONTEMPT OF COURT, THEREBY
RESULTING IN REVERSIBLE ERROR.
ASSIGNMENT OF ERROR 2
DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL
UNDER THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION, BY THE
TRIAL COURT’S REPEATED PATTERN OF
DEMONSTRATING THAT IT HAD PREJUDICIALLY
PRESUMED THE DEFENDANT-APPELLANT’S GUILT
THROUGHOUT THE COURSE OF THE TRIAL, THEREBY
RESULTING IN REVERSIBLE ERROR.
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ASSIGNMENT OF ERROR 3
THE VERDICT OF THE TRIAL COURT WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE, THEREBY
RESULTING IN REVERSIBLE ERROR.
ASSIGNMENT OF ERROR 4
THE TRIAL COURT REVERSIBLY ERRED BY ALLOWING
STATE’S WITNESS LESTER ARNOLD TO READ FROM
HIS WRITTEN STATEMENT TO THE POLICE, OVER
DEFENSE OBJECTION, INTO EVIDENCE AT TRIAL,
THEREBY DENYING DEFENDANT-APPELLANT’S
FUNDAMENTAL RIGHT TO CONFRONT WITNESSES
UNDER THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE CONSTITUTION OF THE UNITED STATES, AS
STATE’S WITNESS LESTER ARNOLD HAD ALREADY
INVOKED HIS FIFTH AMENDMENT PRIVILEGE AND
HAD TESTIFIED THAT HE DIDN’T REMEMBER WHAT
HAD HAPPENED, AND THEREFORE COULDN’T BE
CROSS-EXAMINED OR OTHERWISE CONFRONTED
ABOUT HIS WRITTEN STATEMENT, STATE’S EXHIBIT A.
{¶7} For the sake of clarity, we elect to address the assignments of error out
of the order in which they were raised.
Third Assignment of Error
{¶8} In Arnold’s third assignment of error, he contends that the trial court’s
finding of guilt was against the manifest weight of the evidence. Specifically,
Arnold argues that there were no signs of any physical harm to Lester and that
Lester testified that he did not remember what happened.
{¶9} In reviewing whether the trial court’s judgment was against the weight
of the evidence, the appellate court sits as a “thirteenth juror” and examines the
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conflicting testimony. Id. In doing so, this Court must review the entire record,
weigh the evidence and all of the reasonable inferences, consider the credibility of
witnesses, and determine whether in resolving conflicts in the evidence, the
factfinder “‘clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered.’” State v. Andrews,
3d Dist. No. 1–05–70, 2006-Ohio-3764, ¶ 30, quoting State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist.1983); State v. Thompkins, 78 Ohio St.3d at 380, 387
(1997).
{¶10} In this case, Arnold was charged with Domestic Violence in violation
of R.C. 2919.25(A), which reads, “No person shall knowingly cause or attempt to
cause physical harm to a family or household member.”
{¶11} At trial, both Lester and Connie testified that their son, Arnold, lived
with them. Thus Arnold was a “household member” for purposes of R.C.
2919.25(A). (Tr. at 6, 22). This testimony was not contested. It was contested,
however, whether Arnold caused or attempted to cause physical harm to his father,
Lester.
{¶12} Testimony at trial revealed that on the evening of March 25, 2013,
Arnold was having dinner with his parents, Lester and Connie. Arnold “wasn’t
especially happy” with what Connie made for dinner and he became agitated. (Tr.
at 23-24). Arnold “became threatening” so Lester got up and walked into “the
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computer room.” (Tr. at 9). Arnold then followed Lester into the computer room,
grabbed Lester by the hair and choked him. (Id.)
{¶13} Connie, who was not in the room at the time of the incident, heard a
“commotion,” consisting of “a crashing sound” and “a struggling sound.” (Tr. at
24). At that point, Connie exited the residence along with her grandson. (Id. at
24-25). A neighbor happened to be outside, “so in the interest of safety [Connie]
asked [the neighbor] to call the police.” (Tr. at 25).
{¶14} Subsequently, the police arrived at the residence. The officers
approached the residence and spoke briefly with Arnold from outside. The
officers asked Arnold if they could see Lester to make sure he was “okay.” (Tr. at
36). Arnold told the police that Arnold did not have to speak with them and then
Arnold “slammed the door in [the officer’s] face.” (Id.)
{¶15} The officers repeatedly tried to make contact with Arnold inside the
residence. As the officers considered whether they were going to have to make a
forced entry into the residence, Lester came out of the garage. Officers later
learned from a neighbor that around this time Arnold also walked out of another
exit from the residence.
{¶16} Officer Brett Bethel of the Fostoria Police Department testified that
Lester seemed to be “very scared, [and] agitated about the situation.” (Tr. at 16).
Officer Bethel testified that he did not see any injuries on Lester but he did notice
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that Lester’s hair was disheveled. (Tr. at 17). At that time Lester gave a statement
to the police officers that Arnold had grabbed him by the hair and choked him.
(Id.) At trial, Lester testified that he did not remember his son trying to hurt him.
{¶17} On appeal, Arnold argues that his conviction was against the
manifest weight of the evidence as there was no evidence of physical harm to
Lester. In addition, Arnold contends that since the victim in this case, Lester,
testified that he did not remember whether Arnold caused or attempted to cause
him physical harm, the State could not prove its case beyond a reasonable doubt.
{¶18} While it is true that there was no testimony indicative of physical
harm to Lester beyond Lester’s hair being “disheveled” and the choking, the
statute at issue does not require physical harm. It merely requires that Arnold
cause or attempt to cause physical harm to a family or household member.
Evidence was introduced that Arnold became agitated, and that he followed Lester
out of the kitchen when Lester tried to remove himself from the situation.
Evidence was introduced that Arnold grabbed Lester by the hair and “choked”
him. Evidence was also introduced that Lester had a “ruptured disc in [his] neck,”
which could have made him particularly vulnerable to injury. (Tr. at 9).
{¶19} At trial Arnold’s counsel elicited testimony on cross-examination of
Arnold’s mother that Lester was easily agitated and “goes up like a rocket” in an
attempt to establish that perhaps Lester was the aggressor. (Tr. at 31). However,
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Connie testified that in this instance, when Lester left the room once Arnold
became agitated, Lester was trying “to cut it off or to get away from what they
were doing.” (Tr. at 33). Thus while Lester may, in fact, have a temper, there is
no indication that in this instance he started or escalated the argument.
{¶20} Based on the testimony that was presented at trial, we cannot find
that under these circumstances the trial court “lost its way” or that there was a
“manifest miscarriage of justice.” Accordingly, Arnold’s third assignment of error
is overruled.
First Assignment of Error
{¶21} In Arnold’s first assignment of error Arnold contends that the
prosecutor improperly advised State’s witness Lester Arnold that Lester could not
invoke his Fifth Amendment right against self-incrimination to refuse to testify.
In addition, Arnold argues that it was improper for the trial court to admonish
Lester Arnold with the statement that Lester may face contempt of court if Lester
did not answer the questions of the prosecutor.
{¶22} “There is no absolute right to invoke the Fifth Amendment.” In re
High Fructose Corn Syrup Antitrust Litigation, 293 F.Supp.2d 854, 859
(C.D.Ill.2003) “‘To be privileged by the Fifth Amendment to refuse to answer a
question, the answer one would give if one did answer it (and answer it truthfully)
must have some tendency to subject the person being asked the question to
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criminal liability.’” Id. quoting In re HFCS, 295 F.3d at 663–64. The Fifth
Amendment privilege is only properly invoked if the witness establishes an
objectively reasonable belief that a responsive answer could expose that individual
to criminal prosecution. Id.
{¶23} In this case, Arnold contends that the State and the trial court made
improper comments to State’s witness Lester Arnold while he was on the stand
during the following portion of Lester’s testimony.
Q: Mr. Arnold, were the police dispatched to your residence on
March 25th of 2013?
A: I don’t remember the date.
Q: Were they dispatched there in the spring of this year?
A: Yes.
Q: Do you recall why?
A: Uhm, at this time, I’d like to plead the Fifth and I’m refusing
to testify.
Q: Okay. Do you understand that you don’t have the right to
refuse to testify?
A: I have a right from self-incrimination under the Fifth
Amendment and I do have a right to refuse to testify.
THE COURT: You also understand you also may be held in
contempt for failing to answer?
THE WITNESS: Well, if that’s the way that the rules work, yes.
***
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Q: Did you speak with an officer on that spring day when they
came to your house?
A: I refuse to answer on the grounds that it may tend to
incriminate me.
Q: Did you make a written statement?
A: I refuse to answer based on my Fifth Amendment
constitutional rights.
Q: So if an officer provides your written sworn statement that
would be a statement you made to the court, correct, or to the
officer, correct?
A: I don’t remember. My blood sugar level was extremely high.
My vision was distorted. The tinnitus in my ears were ringing so
loud I couldn’t hear anything, so. I – I couldn’t see.
Q: I’m gonna show you State’s Exhibit A. Do you recognize
this?
A: I know my Fifth Amendment rights.
Q: Is that your signature at the bottom of that –
A: I stand on my Fifth Amendment rights.
Q: -- statement?
THE COURT: You’re refusing to answer, Mr. Arnold?
THE WITNESS: Yes, sir I am.
[PROSECUTOR]: I’m gonna have you read the statement for
the record.
THE COURT: Mr. Arnold?
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THE WITNESS: Sir.
THE COURT: Will you read the statement?
MR. MURRAY [Defense Counsel]: Your Honor, I would object.
THE COURT: Basis?
MR. MURRAY: That the witness has invoked his Fifth
Amendment privilege.
THE COURT: [Prosecutor]?
[PROSECUTOR]: He hasn’t given a basis for invoking that
privilege.
***
MR. MURRAY: In that he would be reading a statement in
which he indicated that he was, couldn’t remember being –
THE COURT: He’s refused to answer. I don’t see what the
harm would be in having him read the statement. Objection
overruled. Answer the – please read the statement, Mr. Arnold.
THE WITNESS: “Jeff [Arnold] became threatening at dinner.
* * * I left the table and went into the computer room. Jeff came
into the computer room. He grabbed me by the hair, then he
choked me. I have a ruptured disc in my neck[.] * * * He
continued to yell and would not let me out. * * *
[Prosecutor]: And who is that signed by?
A: The name on it is – I can’t read the witness, but Lester C.
Arnold is the name at the bottom.
Q: And you are Lester C. Arnold?
A: I am one of Lester C. Arnold’s, yes.
***
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Q: And is that – Is that the statement you made to the officer on
March 25th?
A: I’ve told you I’m seeking the protection of the Fifth
Amendment. I don’t remember. And –
***
Q: Do you remember speaking with Officer Bethel?
A: Vaguely.
Q: And do you remember making a written statement for
Officer Bethel?
A: I just – I just remember telling him that he asked me what I
wanted done. I told him I did not want my son arrested. I did
not want him charged. All we needed was some space between
us.
(Tr. at 6-10).
{¶24} Contrary to all of the arguments raised by the dissent, the preceding
portion of testimony makes clear that Lester never presented any basis for
invoking his Fifth Amendment “privilege against self-incrimination.” To the
contrary, it would appear his only reason for invoking the “privilege” was in order
to not testify against his son, Arnold, as Lester did not want Arnold charged in the
first place. Nothing in the record establishes how Lester was remotely in danger
of giving testimony that would incriminate himself. Therefore, there was nothing
improper, either in the State's questioning or the court’s admonishment that Lester
could be held in contempt for refusing to answer.
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{¶25} Simply put, Arnold has no standing to raise any supposed violation
of the Fifth Amendment rights of another State’s witness and, in any event, Arnold
is unable to establish that any comment by the State or the trial court, especially in
a bench trial, created reversible error.
{¶26} Accordingly, for all of these reasons Arnold’s first assignment of
error is overruled.
Second Assignment of Error
{¶27} In Arnold’s second assignment of error, Arnold contends that he did
not receive a fair trial. Specifically, Arnold argues that the trial court
“prejudicially presumed the Defendant-Appellant’s guilt by its comments and
conduct.” (Appt’s Br. at 12).
{¶28} In this case, Arnold cites two instances where he contends that the
trial court’s actions were improper and erroneous. The first was during the
following portion of testimony, when Officer Brett Bethel was on the stand as a
State’s witness.
Q [PROSECUTOR]: And what was the nature of that dispatch?
A [OFFICER BETHEL]: Possible domestic in progress.
Q: And what did you find upon your arrival?
A: Upon my arrival, uhm, a female was beginning – a female
caller was speaking to her neighbors and she stated that her
husband and her son –
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MR. MURRAY: Objection, hearsay, Your Honor.
THE COURT: Ms. Dibble?
MS. DIBBLE: Present sense impression.
THE COURT: Mr. Murray?
MR. MURRAY: I would indicate that, uhm, it’s still, it’s not an
excited utterance and it’s still –
THE COURT: I’m sure we’ll be getting to some excited
utterances soon.
MR. MURRAY: Well –
THE COURT: Anything else, Ms. Dibble?
MS. DIBBLE: No.
THE COURT: Objection sustained.
(Tr. at 14-15).
{¶29} Here, Arnold contends that the trial court’s statement that there
would probably be “some excited utterances soon” illustrated that the court was
already prejudiced toward Arnold’s guilt. However, the court sustained Arnold’s
counsel’s objection, precluding the testimony that the State intended to offer. It is
difficult for us to see how the court sustaining Arnold’s counsel’s objection
establishes that the court had already presumed his guilt.
{¶30} Moreover, at this point in the trial, the court had already heard
opening statements and the testimony of Lester Arnold. The court was aware of
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the altercation and thus was aware of the possibility of “excited utterances” being
made. Therefore, the court’s extrapolation was not unfounded. For these reasons
this argument is not well-taken.
{¶31} Arnold next contends that the trial court “improperly assumed an
adversarial, prosecutorial role during the defense’s closing argument[.]” (Appt’s
Br. at 12-13). During defense counsel’s closing argument, the following exchange
occurred between defense counsel and the court.
DEFENSE COUNSEL: And he also indicated that with regard
to, there was no sign of physical harm upon [Lester]. And no
sign – and his wife testified that, uh, that she didn’t see any sign
of physical harm upon [Lester].
And, therefore, we respectfully submit that the State – in fact,
uhm, his father testified that he didn’t, that Mr., that Jeffrey
Arnold did not cause or attempt to cause physical harm.
THE COURT: Did he say that? I think he said he didn’t
remember.
DEFENSE COUNSEL: But he – with regard to not
remembering, we respectfully submit, Your Honor, that is not
the proof beyond a reasonable doubt. There’s absolutely no
forensic evidence, no photographs, no – no testimony of any one
who claims to have seen any physical harm, any marks or cuts
or abrasions of any physical harm –
THE COURT: Is that a requirement under the statute, Mr.
Murray?
DEFENSE COUNSEL: I would respectfully submit that’s
indicative –
THE COURT: Is it a requirement under the statute?
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DEFENSE COUNSEL: It’s not a requirement under the statute,
but I respectfully submit that it’s evidence indicative that the
State has not shown beyond a reasonable doubt that there was
any physical harm to –
THE COURT: Which they’re not required to do, right?
DEFENSE COUNSEL: They are required to prove proof
beyond a reasonable doubt, Your Honor.
THE COURT: But they’re not required to show harm.
DEFENSE COUNSEL: I respectfully –
THE COURT: Mr. Murray –
DEFENSE COUNSEL: The elements –
THE COURT: -- are we gonna talk in riddles here or are you
gonna be – I mean, I understand what you’re arguing for, but
there is no requirement of a showing of physical harm, correct?
DEFENSE COUNSEL: Cause or attempt to cause physical harm
–
THE COURT: Correct.
DEFENSE COUNSEL: -- is the requirement. And I’m
respectfully submitted –
THE COURT: No gushing blood. No broken bones. No
bruises. No gunshot wounds, right?
DEFENSE COUNSEL: Your Honor, I respectfully submit that
the State has not shown beyond a reasonable doubt that there
was any attempt to cause harm or physical harm to Mr. Les
Arnold. * * *
(Tr. at 46-48).
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{¶32} Arnold contends that this portion of testimony establishes that the
court assumed an adversarial role in the proceedings and thus was biased against
Arnold.1 However, it is clear that the court was attempting to clarify the legal
language of the statute at issue. Arnold’s counsel repeatedly argued that there was
no physical harm, and the court repeatedly attempted to clarify that the statute did
not require physical harm to establish guilt. While the court perhaps did not need
to inquire of Arnold’s counsel regarding this matter during closing arguments, we
cannot find in a bench trial that such inquiries by the court were improper, or
prejudicial, as there was ample proof that Arnold attempted to cause physical harm
to his father, Lester Arnold. Accordingly, Lester’s second assignment of error is
overruled.
Fourth Assignment of Error
{¶33} In Arnold’s fourth assignment of error, Arnold contends that the trial
court erred by allowing Lester Arnold to read from his written statement to the
police over defense counsel’s objection. Specifically, Arnold contends that
allowing Lester to read his prior statement violated the Confrontation Clause of
the Sixth Amendment to the United States Constitution.
{¶34} “The Confrontation Clause to the United States Constitution provides
that a defendant in a criminal prosecution has a right to confront the witnesses
1
He does not cite any legal authority for his contention.
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against him.” State v. Hudson, 8th Dist. No. 89588, 2008-Ohio-1265, ¶ 40. The
United States Supreme Court has held that the Confrontation Clause bars
“testimonial statements of a witness who did not appear at trial unless [the
witness] was unavailable to testify and the defendant had a prior opportunity for
cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354(2004). “‘The key inquiry for Confrontation Clause purposes is whether a
particular statement is testimonial or nontestimonial.’” Hudson, supra, quoting
State v. Crager, 116 Ohio St.3d 369, 2007-Ohio-6840. “For Confrontation Clause
purposes, a testimonial statement includes one made ‘under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.’” State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-
5482, quoting Crawford, at 52.
{¶35} Confrontation Clause violations are subject to harmless error
analysis. See State v. Kraft, 1st Dist. No. C–060238, 2007–Ohio–2247, ¶ 67,
citing United States v. Summers, 414 F.3d 1287, 1303 (10th Cir.2005). “A
constitutional error can be held harmless if we determine that it was harmless
beyond a reasonable doubt.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-
791, ¶ 78 citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824 (1967).
{¶36} In this case, when Lester repeatedly attempted to invoke his “right
against self-incrimination,” refused to answer the State’s questions, and denied
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any memory of giving a statement to the police, the prosecutor had Lester read the
statement that Lester gave to the police on the date of the incident. That statement
was subsequently entered into evidence as an exhibit. On appeal, Arnold argues
that the reading and introduction of the police report violated the Confrontation
Clause.
{¶37} At the outset, we would note that it is unclear, how the inclusion of
this evidence violates Arnold’s Confrontation Clause rights when the witness,
Lester Arnold, was present in open court to be confronted regarding his
testimonial statement. “The Court in Crawford was explicit: ‘when the declarant
appears for cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.’” State v. Knauff,
4th Dist. Adams No. 10CA900, 2011-Ohio-2725, ¶ 43, quoting Crawford, supra,
at 59, fn. 9, citing California v. Green, 399 U.S. 149, 158; (1970).
{¶38} Notwithstanding this fact, the information contained in the police
report could properly have been used to impeach Lester, even though Lester was
the State’s own witness, as Lester repeatedly attempted to assert the privilege
against self-incrimination and repeatedly stated he did not recall what happened.
According to the dissent, this is apparently all any witness needs to say in order to
avoid testifying—or to avoid even being cross-examined or impeached further by
any prior inconsistent statement. However, such a rule would be, and always has
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been, contrary to established case law. A statement that the witness “does not
remember” is the equivalent of a denial to establish a foundation for cross
examination and impeachment of a witness by the use of the prior statement in
whatever form counsel chooses to use it. State v. Pierce, 2d Dist. Montgomery
No. 24323, 2011-Ohio-4873, ¶ 82 quoting State v. Harris (Dec. 21, 1994),
Montgomery App. No. 14343, 1994 WL 718227 (“If the witness says he cannot
remember the prior statement, ‘a lack of recollection is treated the same as a
denial, and use of extrinsic impeachment evidence is then permitted.’”); State v.
Allen, 5th Dist. No. 2012CA00196, 2013-Ohio-3715, ¶11. Whether or not it takes
place in front of a jury is up to the trial court not the court of appeals.
{¶39} At the very least the State is initially entitled to pursue the prior
statement with the witness - both to give the witness the fullest opportunity to
respond to the alleged prior statement and to more clearly determine whether the
witness intends to specifically deny the statement. See State v. Hubbard, 7th Dist.
Jefferson No. 01JE4, 2002-Ohio-6904, ¶¶ 13-14. At this stage, the issue is one of
laying the proper foundation for possible impeachment about what the witness has
already stated to another person and not a Fifth Amendment privilege involving
something the witness is being asked to reveal for the first time at trial.
{¶40} Even assuming a more elaborate protocol was required by the
prosecution in handling the prior statement or establishing any “affirmative
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damage” to the State’s case any such error in this case was never specifically
objected to by the defense and, in any event, “affirmative damage” was manifestly
obvious where the witness was the sole complaining witness, the sole victim, and
thereby the sole basis for the charge.2
{¶41} Therefore, this argument is not well-taken.
{¶42} Arnold makes additional arguments to assert that his rights were
violated, stating that the trial court erred in allowing the police report to be
admitted into evidence, and that his trial counsel was ineffective for failing to
object to the admission of the police report. However, the trial court, which was
the trier-of-fact, had already heard the evidence and thus the admission of the
exhibit was merely cumulative and therefore harmless. Accordingly, Arnold’s
fourth assignment of error is overruled.
{¶43} For the foregoing reasons, Arnold’s assignments of error are
overruled and the judgment of the Fostoria Municipal Court is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J., concurs in Judgment Only.
/jlr
2
Furthermore, we reject the contention of the dissent that Dayton v. Combs, 94 Ohio App.3d 291, 299 (2d
Dist. 1993) stands for a universally accepted proposition that a witness’ failure to recall can “never
constitute affirmative damage.” See State v. Cupe, 10th Dist. Franklin No. 98AP-64, 1999WL77219 (Feb.
18, 1999) (wherein the Tenth District Court of Appeals implied that such a holding was not universally
accepted).
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ROGERS, J. Dissents.
{¶44} I respectfully dissent from the opinion of the majority.
{¶45} As to Arnold’s first assignment of error, I disagree with the majority
that Lester did not have an adequate basis to assert his Fifth Amendment Privilege
against self-incrimination. I would observe that requiring a witness to explain, in
open court and on the record, why he wishes to invoke his Fifth Amendment
Rights is equivalent to requiring that witness to testify against himself, which is
the very thing the Fifth Amendment prohibits. “A valid assertion exists where a
witness has reasonable cause to apprehend real danger of incrimination.” State v.
Landrum, 53 Ohio St.3d 107, 120 (1990). The claim of the witness is not enough.
Id. The trial judge must determine from “ ‘the implications of the question in the
setting in which it was asked’ ” whether the answer may criminally implicate the
witness or provide a link in a chain of evidence that would do the same. Id. at
120-21, quoting Hoffman v. United States, 341 U.S. 479, 486 (1951). Once the
privilege has been properly asserted, the continued questioning of the witness for
the purpose of getting before the trier of fact inferences and innuendos that could
not otherwise be elicited through direct testimony is prejudicial to the defendant.
State v. Dinsio, 176 Ohio St. 460, 467 (1964).
{¶46} Here, when Lester refused to testify, the prosecutor told Lester he
had no right to invoke the Fifth Amendment, but that was not the State’s
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prerogative. The trial court is tasked with the duty to determine whether the
privilege has been properly invoked. The trial court then endorsed the State’s
conclusion without any discussion of the issue with the witness. Therefore, the
trial court’s threat of contempt under these circumstances was entirely improper.
{¶47} Moreover, under the circumstances, it cannot be said that the refusal
to testify was improper. The majority speculates that the only reason Lester
wanted to invoke the Fifth Amendment was to avoid testifying against his son.
The reason could just as well have been that Lester was in fact the aggressor and
wanted to avoid implicating himself. No one other than Lester and Jeffrey
observed what happened, and Connie testified that Lester was easily agitated and
“goes up like a rocket.” Trial Tr., p. 31. Lester not only invoked his Fifth
Amendment privilege on direct examination by the prosecutor, but continued to
exert it upon cross examination by the defense, weakening the majority’s
assumption that he was attempting to avoid testifying against his son. As a result,
Lester properly invoked his Fifth Amendment privilege, allowing him to refuse to
testify.
{¶48} Once the privilege was properly invoked, it was improper for the trial
court to allow the state to continue to ask Lester repeated questions about the
events that transpired in the face of his repeated assertions of his Fifth Amendment
privilege and refusals to testify. The State concedes that Lester invoked his Fifth
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Amendment privilege, but argues that no prejudice to Appellant arose as a result
of Lester’s silence. Appellee’s Br., p. 9. Instead, the State argues that, because
the trial court disregarded Lester’s testimony, it does not rise to the level of
reversible error articulated in Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151(1963). Appellee’s Br., p. 8. In essence, the State argues that Lester’s silence was
not used against Appellant by the trial court. Id. at 9.
{¶49} However, in the face of repeated questions, and after repeated Fifth
Amendment assertions, Lester stated that he did remember telling a police officer
that he did not want his son arrested. This, coupled with Lester’s silence, provides
the innuendo that he was silent so that his son will not be found guilty, an
inference made by the majority. Further, it was through this silence that the State
entered Exhibit A, his prior written statement, into evidence. As the State
specifically used Lester’s silence in conjunction with his statements that he did not
want his son in jail to imply he was refusing to testify for an illegitimate purpose,
and as a tactic to admit prior written statements into evidence instead of eliciting
testimony, it prejudiced the defendant.
{¶50} As to Arnold’s fourth assignment of error, the majority asserts that
the confrontation clause was not implicated by admitting Lester’s written
statement, as Lester was on the stand for the purpose of cross examination.
However, a witness who refuses to testify by invoking the Fifth Amendment
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privilege against self-incrimination is considered unavailable. State v. Sumlin, 69
Ohio St.3d 105, 108 (1994). As Lester properly invoked his Fifth Amendment
privilege against self-incrimination, he was not available for cross examination.
As a result, Arnold’s right of confrontation was implicated.
{¶51} As to requiring the witness to read his written statement, there is no
support for that action in any rule or statute. While the majority3 claims that the
admission of the written statement was proper for impeachment purposes, the
statement is inadmissible, even under a variety of evidentiary rules, such as,
recollection refreshed, past recollection recorded, or excited utterance.
Impeachment
{¶52} The majority asserts that the statement could be offered to impeach
the witness. However, for a party to be able to use a prior inconsistent statement
to impeach its own witness, the party must prove surprise and affirmative damage.
Evid.R. 607. Surprise is proved when a witness testifies in a manner inconsistent
with prior written statements. Dayton v. Combs, 94 Ohio App.3d 291, 299 (2d
Dist. 1993). “ ‘Affirmative damage’ can be established only if the witness testifies
to facts which contradict, deny, or harm the calling party’s trial position. * * *
‘Affirmative damage’ is not shown where the witness denies knowledge of the
3
The State also argues that the trial court disregarded Lester’s written statement when making its decision,
and therefore, Arnold was not prejudiced. However, the statement was admitted as an exhibit and, contrary
to the State’s assertion, the trial court only disregarded the statements Lester made in court. Trial Tr., p. 49.
Nowhere in the record does the trial court state that it did not rely on the written statement of Lester when it
found Arnold guilty.
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facts contained in his prior statement or where he states that he does not remember
the facts stated therein.” (Citations omitted.) Id. Here, Lester did not contradict
his statement. Instead, he invoked his privilege and stated he could not remember
what occurred that night. As a result, even if the State could prove surprise, it
could not prove affirmative damage. Thus, the written statement was not
admissible to impeach the witness.
Recollection Refreshed
{¶53} Under Evidence Rule 612, a witness who does not remember the
answer to a direct question may read his or her prior statement, before or during
his or her testimony, to refresh his or her recollection. State v. Powell, 132 Ohio
St.3d 233, 2012-Ohio-2577, ¶ 57. While the witness is allowed to look at the prior
statement, the testimony that is elicited after the recollection is refreshed is the
evidence, not the prior statement itself. Id. “ ‘[A] party may not read the
statement aloud, have the witness read the statement aloud, or otherwise place it
before the jury.’ ” (Emphasis added.) Id., quoting State v. Ballew, 76 Ohio St.3d
244, 254 (1996). As the state had Lester read his statement aloud, it was
inadmissible as a recollection refreshed.
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Past Recollection Recorded
{¶54} However, if after reading the prior statement the witness still has no
current memory of the facts, the statement may be admissible as a past recollection
recorded. Evid.R. 803(5). A past recollection recorded is:
[a] memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to
enable him to testify fully and accurately, shown by the testimony of
the witness to have been made or adopted when the matter was fresh
in his memory and to reflect that knowledge correctly. If admitted,
the memorandum or record may be read into evidence but may not
itself be received as an exhibit unless offered by an adverse party.
Id.4 To properly lay the foundation for a past recollection recorded, the Ohio
Supreme Court has noted:
A memorandum made by a witness may be admitted in evidence in a
criminal case as ‘past recollection recorded’ if the witness had first-
hand knowledge of the subject matter of the memorandum, the
memorandum was made at or near the time of the event and while
the witness had a clear and accurate memory of it, the witness lacks
a complete present recollection of the event, and the witness testifies
on the stand that the written memorandum is accurate.
State v. Scott, 31 Ohio St.2d 1 (1972), paragraph 1 of the syllabus. When the
witness does not attest that the memorandum accurately reflects the knowledge of
the witness at the time the memorandum was made, it is inadmissible. State v.
Perry, 147 Ohio App.3d 164, 2002-Ohio-1171, ¶ 79 (6th Dist.). The
4
Although such a statement may qualify for admission through a reading, there is no requirement that the
witness be the one to read it, as the court required here. Indeed, witnesses can refuse to read their prior
recorded statements, which is why the statement can otherwise be submitted into evidence by an adverse
party. See State v. Clay, 187 Ohio App.3d 633, 2010-Ohio-2720, ¶ 38 (5th Dist.). However, there is no
foul if the witness is willing. State v. Henson, 1st Dist. Hamilton No. C-060320, 2007-Ohio-725, ¶ 15.
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memorandum will also be inadmissible when the witness cannot remember
making the statement or when the statement does not accurately reflect the events
as the witness remembered them. Combs, 94 Ohio App.3d at 301.
{¶55} Here, Lester repeatedly refused to answer any questions about his
statement, asserting his Fifth Amendment privilege. When asked by the
prosecution whether he remembered making a statement to the officers, he
responded: “I just remember telling him that he asked me what I wanted done. I
told him I did not want my son arrested. I did not want him charged. All we
needed was some space between us.” Trial Tr., p. 10. Lester never attested to the
accuracy of the statement at the time it was recorded. In fact, on cross
examination, when asked whether it was a true and accurate representation of the
events of that night, Lester stated that he did not know and did not remember. Id.
at p. 11-12. Thus, Lester’s statement, under the circumstances of this case, is
inadmissible as a past recollection recorded, as the state did not lay the necessary
foundation for its admission.
{¶56} Further, in order to offer a memorandum as a past recollection
recorded, it is necessary that the witness be available for full and complete cross-
examination. “The admission of a memorandum as ‘past recollection recorded’ in
a criminal case does not deprive the defendant of his right of confrontation and
cross-examination, where the witness is present on the stand and is available for
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full cross-examination by the defendant.” Scott, 31 Ohio St.2d at paragraph 2 of
the syllabus. Here, Lester invoked his Fifth Amendment privilege, and as a result
was unavailable.
Excited Utterance
{¶57} The State also appears to argue that the statement was an excited
utterance. Not true! Evidence Rule 803(2) defines an excited utterance 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.” Where no
evidence is presented as to the demeanor of the declarant when written testimony
is prepared, it cannot be admissible as an excited utterance. State v. Nixon, 12th
Dist. Warren No. CA2011-11-116, 2012-Ohio-1292, ¶ 15. Even where the victim
is still visibly upset, the ability to gather coherent thoughts into a written statement
that includes additional information, such as the events leading up to a crime,
defeats the excited utterance exception. State v. Scari, 11th Dist. Portage No.
2002-P-0091, 2003-Ohio-3493, ¶ 63. Therefore, while Lester’s first statements to
police upon exciting his garage might be classified as excited utterances his
written statement is certainly not.
{¶58} As there are no evidentiary rules that would otherwise allow the prior
written statement to be admitted, the defendant’s right to confront his witnesses
under the Sixth Amendment was violated, as Lester’s statements were clearly
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testimonial in nature. See Crawford v. Washington, 541 U.S. 36, 51-52 (2004). It
is obvious that the police officer asked for Lester’s written statement to assist in a
future prosecution, not to assist in securing the scene.
{¶59} The State argues that the error is harmless. Appellee’s Br., p. 13-14.
The Ohio Supreme Court has found that the impermissible admission of evidence
over the constitutional rights of the defendant is harmless if the “remaining
evidence, standing alone, constitutes overwhelming proof of defendant’s guilt.”
State v. Williams, 6 Ohio St.3d 281 (1983), paragraph six of the syllabus.
However, a review of the record, without any of Lester’s testimony and without
his written statement, does not provide “overwhelming” evidence of guilt. It is
undisputed that some sort of encounter happened between Arnold and Lester, but
we have no indication as to who was the actual aggressor. We have an excited
utterance by Lester that Arnold punched Lester in the head and attempted to choke
him. Trial Tr., p. 17. However, the officer testified that Lester had no visible
injuries at the time of incident. No witness actually witnessed the event in
question, and no evidence was offered that Arnold was the aggressor. This is
hardly “overwhelming” evidence of guilt.
{¶60} The overall tenor of this trial demands that the conviction be reversed
and the matter remanded for a new trial.
/jlr
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