State v. Holloway

[Cite as State v. Holloway, 2011-Ohio-3586.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95703
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
REGINALD HOLLOWAY
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-531510
BEFORE: Keough, J., Jones, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: July 21, 2011
ATTORNEY FOR APPELLANT
Michael P. Maloney
24441 Detroit Road, Suite 300
Westlake, OH 44145
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Robert B. Botnick
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Reginald Holloway (“Holloway”), appeals
his convictions following a bench trial. For the reasons that follow, we
reverse his kidnapping conviction and remand for a new trial.
{¶ 2} In 2009, Holloway was charged with three counts of kidnapping,
and one count each of intimidation and domestic violence. The matter
proceeded to trial, where the following evidence was presented.
{¶ 3} In mid-November 2009, Holloway and the victim, Stephanie
Webb (“Webb”), were involved in multiple domestic disputes. During one
altercation Webb punched Holloway and gave him a black eye. The police
were called and Detective Alberto Sardon responded. He briefly talked to
Holloway and interviewed Webb, but made no arrests.
{¶ 4} The following day, November 16th, Webb went to Holloway’s
home and when she walked in the door, he grabbed her. Webb testified that
Holloway was mad at her because he had a black eye and the detective was
there the day before. After asking her why she called the police, he ordered
her to look at him, and then he slapped her in the face. He then tripped her
and she fell to the ground, where he continued to slap her and scratch her
face. After five to fifteen minutes, she got up without any restraint, and left
his house. According to Webb, she was able to leave freely and at no time did
Holloway prevent her from leaving. After leaving Holloway’s home, she
called the police.
{¶ 5} The trial court, over objection, allowed Webb to read her written
statement in open court as part of her direct testimony. Her statement
provided that Holloway slapped, punched, and dragged her across the room,
where he then sat on her, continued to slap her, and refused to let her up.
According to her statement, had Holloway’s cousin not intervened, she would
not have been able to leave. Further, when she was able to leave, Holloway
chased her and tried to drag her down the street.
{¶ 6} Detective Sardon testified that he was again the responding
officer when Webb called the police on November 16th and noticed that she
had bruises and scars on the right side of her face. He took Webb to the
police station where she provided a written statement and they took photos of
her face. Based on the interview with Webb, her written statement, and her
injuries, charges against Holloway were filed.
{¶ 7} At the close of evidence, the State dismissed two counts of
kidnapping, recognizing that the testimony and evidence did not establish the
elements of kidnapping pursuant to R.C. 2905.01(B)(1). The trial court
found Holloway guilty of the remaining count of kidnapping (R.C.
2905.01(B)(2)), intimidation of a crime victim or witness, and domestic
violence. He was sentenced to a total prison term of three years.
{¶ 8} Holloway appeals, raising four assignments of error, which will be
addressed out of order.
Sufficiency of the Evidence
{¶ 9} Holloway contends in his first assignment of error that his
kidnapping conviction was not supported by sufficient evidence.1
{¶ 10} The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Bowden, Cuyahoga
App. No. 92266, 2009-Ohio-3598, ¶12. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational
Holloway does not challenge his convictions for intimidation of a crime witness or victim and
1
domestic violence.
trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, 574
N.E.2d 942, paragraph two of the syllabus.
{¶ 11} In this case, Holloway was convicted of kidnapping pursuant to
R.C. 2905.01(B)(2), which provides that no person, by force, threat, or
deception, shall knowingly restrain another of the other person’s liberty
“under circumstances that create a substantial risk of serious physical harm
to that other person.”
{¶ 12} Under subsection (B) of R.C. 2905.01, “the offender’s purpose is
irrelevant since the key factor here is the special danger in which the victim
is placed. For example, holding another prisoner without adequate food,
shelter, or medical care could constitute an offense under * * * this section,
regardless of the offender’s purpose.” Legislative Service Commission
Commentary to R.C. 2905.01.
{¶ 13} In this case, Webb testified that when she walked into Holloway’s
house, he grabbed her and ordered her to look at his face, apparently to see
the black eye that she gave him the day before. As she was looking at his
face, Holloway slapped her in the face two or three times. Holloway then
tripped her and she fell to the ground, where he held her down with two
hands and continued to slap and scratch her in the face. According to Webb’s
trial testimony, this altercation lasted for five to fifteen minutes.
{¶ 14} According to Webb’s statement given to police hours after the
incident, Holloway dragged her across the floor, punching and slapping her.
Holloway then sat on her, preventing her from leaving, and only when his
cousin intervened was she able to leave the premises. When she left the
house, Holloway chased after her and tried to drag her down the street. As a
result of Holloway’s actions, Webb received bruising and scratches to her face.
{¶ 15} Viewing all the evidence in the light most favorable to the State,
whether properly admitted or not, we find that Holloway’s actions created a
substantial risk of serious physical harm to Webb. Accordingly, we overrule
Holloway’s first assignment of error.
Hearsay
{¶ 16} Over objection, the State was permitted to have Webb read her
written statement given to police as part of her direct testimony. Holloway
contends in his fourth assignment of error that the trial court erred in
allowing this testimony.
{¶ 17} Generally, evidentiary rulings made at trial rest within the sound
discretion of the trial court. State v. Lundy (1987), 41 Ohio App.3d 163, 535
N.E.2d 664; State v. Graham (1979), 58 Ohio St.2d 350, 390 N.E.2d 805.
“The term abuse of discretion connotes more than error of law or judgment.
It implies that the court’s attitude is unreasonable, arbitrary, or
unconscionable.” Nielson v. Meeker (1996), 112 Ohio App.3d 448, 679 N.E.2d
28. “An abuse of discretion * * * implies a decision [that] is without a
reasonable basis or one [that] is clearly wrong.” Angelkovski v. Buckeye
Potato Chips Co. (1983), 11 Ohio App.3d 159, 463 N.E.2d 1280.
{¶ 18} Holloway maintains that Webb’s statement was inadmissible
hearsay because it was inconsistent with her prior testimony and no
exception to the hearsay rule allowed for the admission of her statement.
The State argues that Webb’s statement was supplemental to her testimony.
From the record, it is unclear why and how Webb’s statement was admissible.
In overruling the defense objection, the trial court did not identify upon what
basis the statement was admissible and we find no rule of evidence, when
applied to the facts and circumstances of this case, that would render the
statement admissible.
{¶ 19} The statement was not admissible pursuant to Evid.R. 607,
because there was no showing of surprise and affirmative damage that
Webb’s testimony was inconsistent with her written statement. Moreover,
even if Webb’s testimony were considered inconsistent, the proper foundation
was not made prior to her reading her statement.2 See State v. Darkenwald,
Cuyahoga App. No. 83440, 2004-Ohio-2693, ¶33, citing State v. Baker (Nov.
25, 1998), Summit App. No. 19009.
After Webb read her statement, the State then attempted to impeach her
2
trial testimony with her written statement.
{¶ 20} A party may refresh the recollection of a witness under Evid.R.
612 by showing her the prior statement while testifying. But here, Webb did
not indicate that she did not recall or remember any events that the State
questioned her about. Furthermore, even if Webb needed her recollection
refreshed, a party may not read the statement aloud, have the witness read it
aloud, or otherwise place it before the jury. Dayton v. Combs (1993), 94 Ohio
App.3d 291, 298, 640 N.E.2d 863.
{¶ 21} Finally, no exception to the hearsay rule applies that would allow
Webb’s written statement to be properly admitted. Accordingly, the trial
court abused its discretion in admitting Webb’s written statement into
evidence and allowing her to read it aloud during in her direct trial
testimony.
{¶ 22} The State argues that even if the trial court erred in allowing
Webb to read her police statement, it was harmless error, at best, because
Webb’s testimony prior to her reading her statement established the elements
of kidnapping.
{¶ 23} Pursuant to Crim.R. 52(A), “any error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded.” To
find an error harmless, a reviewing court must be able to declare a belief that
the error was harmless beyond a reasonable doubt. State v. Lytle (1976), 48
Ohio St.2d 391, 403, 358 N.E.2d 623. A reviewing court may overlook an
error where the remaining admissible evidence, standing alone, constitutes
“overwhelming” proof of a defendant’s guilt. State v. Williams (1983), 6 Ohio
St.3d 281, 290, 452 N.E.2d 1323. “Where there is no reasonable possibility
that unlawful testimony contributed to a conviction, the error is harmless and
therefore will not be grounds for reversal.” State v. Brown, 65 Ohio St.3d
483, 485, 1992-Ohio-61, 605 N.E.2d 46.
{¶ 24} We find that the trial court’s error in allowing Webb to read her
statement as part of her trial testimony contributed to Holloway’s kidnapping
conviction. Because Holloway was charged with kidnapping pursuant to
subsection (B) of R.C. 2905.01, the State needed to present sufficient evidence
establishing that Holloway created a “special danger” to Webb. Reviewing
all the testimony given at trial, the content of Webb’s statement to police was
vital in establishing the State’s case. Therefore, the error was not harmless,
but prejudicial and deprived Holloway of a fair trial. Accordingly, the trial
court abused its discretion in allowing Webb to read her statement as part of
her testimony. Holloway’s fourth assignment of error is sustained.
Mitigation and Burden of Proof
{¶ 25} In his third assignment of error, Holloway contends that R.C.
2905.01 is unconstitutional because it places the burden of proof on the
accused to prove the mitigating element of the offense, i.e. leaving the victim
in a safe place unharmed.
{¶ 26} Generally, kidnapping is a felony of the first degree. R.C.
2905.01(C)(1). However, if the offender leaves the victim in a safe place
unharmed, kidnapping will be a second-degree felony. Id. Although the
provision mitigates an offender’s criminal culpability, Ohio courts have
consistently held that it is not an element of kidnapping and must be treated
the same as an affirmative defense. State v. McKnight, 107 Ohio St.3d 101,
2005-Ohio-6046, 837 N.E.2d 315, ¶233.
{¶ 27} In this case, Holloway exercised his constitutional right not to put
on a defense at trial; therefore, the trial court was in no position to consider
R.C. 2905.01(C). Because he did not present any evidence, at no time did the
burden shift to the defendant; the burden of proving the kidnapping charge
rested solely on the State. Moreover, Holloway did not argue at any time
before or during trial that Webb was released unharmed in a safe place.
Accordingly, Holloway has waived this issue on appeal. State v. Awan
(1986), 22 Ohio St.3d 120, 489 N.E.2d 277, syllabus.
{¶ 28} Judgments of conviction for intimidation of a crime witness or
victim and domestic violence are affirmed, judgment of conviction for
kidnapping is reversed, and this case is remanded for a new trial on the
kidnapping charge. 3 Reversing Holloway’s kidnapping conviction and
Reversing Holloway’s kidnapping conviction on a trial-based error does not
3
bar retrial pursuant to State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903
N.E.2d 284, 25, citing Lockhart v. Nelson (1988), 488 U.S. 33, 109 S.Ct. 285, 102
ordering a new trial renders his second assignment of error challenging the
manifest weight of the evidence moot. App.R. 12(A)(1)(c).
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
intimidation of a crime witness or victim and domestic violence convictions
having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence on those counts.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, P.J., and
KENNETH A. ROCCO, J., CONCUR
L.Ed.2d 265.