State v. Bailey

[Cite as State v. Bailey, 2017-Ohio-2679.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27177
:
v. : T.C. NO. 15-CR-3828
:
LAVETTA BAILEY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the ___5th __ day of _____May_____, 2017.
...........
MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MICHAEL H. HOLZ, Atty. Reg. No. 0031902, 507 Wilmington Avenue, Suite 1, Dayton,
Ohio 45420
Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Lavetta Bailey was found guilty by a jury in the Montgomery County Court
of Common Pleas of assault, and her penalty was enhanced to a felony of the fourth
degree by the jury’s finding that the victim was a person performing emergency medical
service while in the performance of his official duties. She was sentenced to community
control for up to five years, and was ordered to pay court costs and other fees. She
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appeals from her conviction.
{¶ 2} For the following reasons, the judgment of the trial court will be reversed,
and Bailey’s conviction will be vacated.
{¶ 3} The State’s evidence at trial established that an emergency medical
technician, Joey Ostendorf, and a paramedic, Jacob Lesher, were working together in the
early morning hours of December 13, 2015. They were dispatched in an ambulance to
the Blue Note Bar in Dayton at approximately 3:40 a.m., on a report that someone was
injured there. When they arrived, they found a “chaotic” scene in which the injured
woman was on the ground and many other people were standing around outside. Both
the injured woman and the crowd were loud; the woman was also described as
“belligerent.” Ostendorf and Lesher had some concerns about their safety. The woman
had an “obvious injury” and “deformity” to her lower leg, and Ostendorf and Lesher sought
to load her into the ambulance and depart from the scene as quickly as possible. The
woman was “verbally hostile,” “swearing,” and making “vague threats” as they did so, and
did not want the men to touch her.
{¶ 4} After the injured woman was placed on a cot and into the ambulance, the
ambulance left for Miami Valley Hospital, which was five or six minutes away. Lesher
drove, and Osterdorf rode in the back with the injured woman. The woman tried more
than once to get off the cot, despite being secured by two belt straps, and one of the times
she succeeded in getting up from the cot. Lesher had to stop the ambulance once while
in transit, because the woman had unstrapped herself and was attempting to stand inside
the ambulance. When she was resecured, they continued to the hospital.
{¶ 5} When the ambulance arrived at Miami Valley Hospital, Lesher opened the
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rear door and attempted to slide the cot out of the ambulance. As he did so, the injured
woman struck him on the left side of his head with a closed fist. Lesher and Ostendorf
each testified that the move appeared to be deliberate and was not incidental to any other
movement. Lesher radioed the police to request assistance. The injured woman
continued to be “combative” and “hostile” to Lesher, Ostendorf, and the hospital staff.
{¶ 6} On February 3, 2016, Bailey was charged with one count of assault on a
person performing emergency medical service, in violation of R.C. 2903.13(A) and (C)(5).
She was tried by a jury on June 6 and 7, 2016.
{¶ 7} R.C. 2903.13(A) states that no one shall knowingly cause or attempt to
cause physical harm to another; it elevates the degree of the offense if the victim is “a
peace officer or an investigator of the bureau of criminal identification and investigation,
a firefighter, or a person performing emergency medical service, while in the performance
of their official duties.” R.C. 2903.13(C)(5). “Emergency medical service personnel”
means “first responders, emergency medical technicians-basic, emergency medical
technicians-intermediate, emergency medical technicians-paramedic, and persons who
provide medical direction to such persons.” R.C. 4765.01(L).
{¶ 8} At trial, Ostendorf testified that he would not recognize the injured woman
again, and that he had not obtained any identification or identifying information from her
at the scene, because she would not provide any. He stated that he “obtain[ed]
identifying information from the police after transferring her care over to Miami Valley
Hospital staff,” including her name, date of birth, and Social Security number; he learned
at that point that the woman was named Lavetta Bailey. Ostendorf did not identify Bailey
in the courtroom. Similarly, Lesher testified that he had asked the injured woman for
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identification, but was not given any, and that he later learned her identity from the police.
However, he testified that he had waited at the hospital until the woman was in a bed “in
the EMS room” (an assigned room), and that he directed the police officer to the assigned
room, indicating “that was the person who did it.”
{¶ 9} Dayton Police Officer Gary Roesser, who responded to Miami Valley
Hospital in response to Lesher’s call, testified that the injured woman had been
unconscious when he entered her room at the hospital, and he had not had any
conversation with her. He also testified that he would not recognize the woman if he saw
her again. He testified that he got identifying information from “Jacob” (Lesher), along
with “additional information” from Ostendorf and a doctor, and he ran “the patient’s
identifiers” through the computer in his cruiser. Roesser did not identify Bailey in court
as the female patient.
{¶ 10} After Ostendorf, Lester, and Roesser testified, the prosecutor informed the
court that she “was going to have to call additional witnesses since the witnesses are
failing to identify the defendant.” She called Thomas Cope, a Dayton Police Department
detective assigned to the case. The prosecutor asked Cope what “suspect information”
he had obtained in the case. This question was followed by an objection and an
extensive conversation at sidebar.
{¶ 11} The State asserted that Cope’s identification was not being offered for its
truth, but to explain his investigation. The court noted that Ostendorf stated he got
information identifying the patient from the police (Roesser), and Roesser testified that he
got identifying information from Ostendorf. Since none of the witnesses, including Cope,
claimed to have first-hand knowledge of the woman’s identity, the court was “not
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convinced” that Cope’s testimony about the woman’s identity was “being offered for a
non-hearsay purpose.” The State also argued that Cope would be able to testify about
what he found when he ran Bailey’s information, but the trial court pointed out that
information obtained from Cope’s search about Lavetta Bailey, after being informed that
she was the suspect, did not identify her as the person involved in this incident: “* * * [I]t
all comes back to the fact that somebody said she’s the suspect. We don’t know who
that person is.” The court concluded that the State’s attempt to have Cope testify as to
the suspect’s identity was hearsay, and it sustained Bailey’s objection to this testimony.
{¶ 12} The State then rested, and Bailey moved for a Crim.R. 29(A) judgment of
acquittal, because no one had identified her as the person who assaulted Lesher. The
State responded that, although the emergency medical technicians were not able to recall
Bailey’s face, they had identified her to the police officer, Roesser, at the hospital, who
had then pursued the investigation and written a report, and that this evidence was
sufficient to overcome a Crim.R. 29 motion.
{¶ 13} The trial court observed that the sufficiency of the evidence with respect to
Bailey’s identification as the perpetrator of the assault was “a very close question.” The
court noted, however, that circumstantial evidence is sufficient to sustain a conviction and
is afforded equal weight to direct evidence, and that the identity of a perpetrator may be
proven by indirect evidence. In overruling the motion, the court stated:
I concede this is a very, very close call by the Court. Very close. And if it
were simply the identity, the name Lavetta Bailey, the motion for directed
verdict would be sustained. But it’s more than simply the name. It is the
name. That is a factor, and it’s the name Lavetta Bailey. But it’s the cross
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examination of these various witnesses in which the questions by defense
counsel assume as a given that it was the defendant who was the individual
with whom these officers encountered. And so that – or that reason that
motion for directed verdict is overruled.
{¶ 14} After the trial court overruled the motion for acquittal, Lavetta Bailey
testified at trial in her defense. She stated that she had fallen outside the Blue Note on
December 13, 2015, that she had been in “excruciating” pain, and that her leg had
obviously been broken, so her cousin called for an ambulance. Bailey testified that, after
the ambulance arrived, she hit Lesher with her left hand as he was touching her leg; she
reached for her leg because of the pain, and she accidentally hit him with an open hand.
According to Bailey, this contact occurred inside the ambulance but while it was still
parked at the Blue Note, and her cousin was in the ambulance with her at the time.
Bailey also stated that Lesher “screamed” at her on the way to the hospital that she was
going to go to jail, and that he repeated this assertion to hospital staff when they arrived
at the hospital. Bailey did not remember if the ambulance had stopped on the way to the
hospital, and she did not recall who pulled the cot out of the ambulance at the hospital.
Bailey denied knowingly striking Lesher at the hospital.
{¶ 15} As discussed above, the jury found Bailey guilty of assault on a person
performing emergency medical service.
{¶ 16} On appeal, Bailey argues that the trial court erred in overruling her Crim.R.
29(A) motion, because the State failed to prove she was the person who committed the
assault.
{¶ 17} When reviewing the denial of a Crim.R. 29(A) motion, an appellate court
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applies the same standard as is used to review a claim based on the sufficiency of the
evidence. State v. Page, 2d Dist. Montgomery No. 26670, 2017-Ohio-568, ¶ 7, citing
State v. Sheppeard, 2d Dist. Clark No. 2012 CA 27, 2013-Ohio-812, ¶ 51. “A sufficiency
of the evidence argument disputes whether the State has presented adequate evidence
on each element of the offense to allow the case to go to the jury or sustain the verdict
as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶
10, citing State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997). The
relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light
most favorable to the State, could have found the essential elements of the crime proven
beyond a reasonable doubt. State v. Dennis, 79 Ohio St. 3d 421, 430, 683 N.E.2d 1096
(1997). A guilty verdict will not be disturbed on appeal unless “reasonable minds could
not reach the conclusion reached by the trier-of-fact.” Id. In reviewing the trial court
denial of a Crim.R. 29(A) motion at the end of the State’s case, we consider only the
evidence then available to the trial court. Sheppeard at ¶ 51.
{¶ 18} The State has the burden to prove every element of the crime charged
beyond a reasonable doubt, including the identity of the person who committed the crime.
State v. Tate, 140 Ohio St. 3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 15; State v. Missler,
3d Dist. Hardin No. 6-14-06, 2015-Ohio-1076, ¶ 13, quoting State v. Johnson, 7th Dist.
Jefferson No. 13 JE 5, 2014-Ohio-1226, ¶ 27; State v. Gray, 7th Dist. Mahoning No. 09
MA 33, 2010-Ohio-2530, ¶ 7. There is no requirement that a witness must make an in-
court identification of a defendant in criminal cases; direct or circumstantial evidence is
sufficient to establish the identity of the accused as the person who committed the crime.
Cleveland v. Williams, 8th Dist. Cuyahoga No. 101588, 2015-Ohio-1739, ¶ 25; State v.
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Eckard, 3rd Dist. Marion No. 9-15-45, 2016-Ohio-5174, ¶ 30. However, merely
establishing that the defendant’s name is the same as that of the alleged offender is
insufficient to prove identity. Gray at ¶ 7, citing State v. Marcum, 7th Dist. Columbiana
No. 03 CO 36, 2004-Ohio-3036, ¶ 23; State v. O’Neil, 107 Ohio App. 3d 557, 669 N.E.2d
95 (6th Dist.1995). There must be a “significant correspondence of identifying
characteristics” between the defendant and the person with the same name who is
implicated in an offense. State v. Wilson, 2d Dist. Champaign No. 96 CA 22, 1997 WL
666159 (Oct. 24, 1997) (addressing proof of a prior conviction to support a specification);
see also R.C. 2945.75 (B)(1) (when it is necessary to prove a prior conviction, a certified
copy of the entry of judgment in such prior conviction must be submitted along with
evidence sufficient to identify the defendant named in the entry as the offender in the case
at bar).
{¶ 19} Connecting the defendant’s name with the perpetrator can be accomplished
in various ways, including, but not limited to, an in-court identification of the defendant as
the person who committed the crime. Gray at ¶ 7. And it is not necessary that the
witness(s) be one hundred percent certain of the in-court or other identification of the
defendant as the perpetrator of the crime. Id., citing State v. Scott, 3 Ohio App. 3d 239,
244, 210 N.E.2d 289 (7th Dist. 1965).
{¶ 20} Here, there was sufficient testimony that a female named Lavetta Bailey
was the person who was transported by emergency personnel to Miami Valley Hospital
and who assaulted Lesher. The question raised by the Crim.R. 29(A) motion was
whether there was sufficient evidence that the defendant, Lavetta Bailey, who was
indicted and standing trial, was the same Lavetta Bailey as the one transported to the
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hospital.
{¶ 21} We disagree with the trial court’s conclusion that there was sufficient
evidence from which the jury could have reasonably inferred that the woman who
appeared in court was the same person who had committed the alleged assault.
{¶ 22} At trial, no one identified Lavetta Bailey, the defendant, as the perpetrator
of the offense. In other words, the State presented circumstantial evidence that the
person who hit Lesher was named Lavetta Bailey, but there was no direct or
circumstantial evidence that the person who was on trial was that person, apart from
having the same name. Evidence was presented that “identifiers” such as a Social
Security number and date of birth were obtained either by the ambulance personnel,
Officer Roesser, or hospital personnel, but the testimony conflicted about who had
obtained such information, and no specific evidence was admitted as to what Social
Security number or date of birth was collected and entered into Roesser’s computer at
the hospital.
{¶ 23} The trial court correctly stated that the identity of a defendant may be
proven by direct, indirect, and/or circumstantial evidence; it further correctly noted that
“[m]erely establishing that the defendant’s name is the same as that of the alleged
offender is insufficient to prove identity,” citing Gray, 7th Dist. Mahoning No. 09 MA 33,
2010-Ohio-2530, ¶ 7. The trial court also explicitly relied on State v. Brown, 12th Dist.
Warren No. 2006-10-120, 2007-Ohio-5787, ¶ 30, and State v. Baxla, 4th Dist. Highland
No. 656, 1988 WL 65644, *3 (June 13, 1988), which held that witness testimony referring
to “the defendant” coupled with a demonstration that the person committing the offense
was arrested and charged, and the defendant’s appearance at trial in response to the
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charge, had been found to constitute sufficient evidence of identification to withstand a
Crim.R. 29(A) motion. In Brown, the trooper testified that he had the “opportunity to
speak to the defendant.” Similarly, in State v. Lucas, 5th Dist. Morgan No. CAO4007,
2005-Ohio-3468, ¶ 20, an officer responded to defense counsel by testifying as to what
he “saw when [he was] leading my client and this other young lady out in handcuffs. ”
Here, there was no such indirect recognition of the defendant in court as the person who
committed the assault or even that such person was charged and arrested.
{¶ 24} The State’s response to the motion and the trial court’s ruling each
suggested that defense counsel’s manner of asking questions “assumed Bailey and the
patient who assaulted Lesher were one and the same” (Bailey’s brief) or “sort of
subsumed in the question” of whether Bailey was the perpetrator (the trial court). The
trial court also stated that defense counsel’s cross-examination “assumed as a given that
it was the defendant who was the individual with whom these officers encountered.”
{¶ 25} Counsel referred to “Ms. Bailey” only two times during his questions on
cross-examination; at all other times, he used the word “she” in questions, and we cannot
speculate whether the witnesses assumed he was talking about the woman in the
courtroom or about the woman in the ambulance.
{¶ 26} It is well established that neither opening statements, closing arguments,
nor the questions of counsel are “evidence” in a case. See State v. Siller, 8th Dist.
Cuyahoga No. 90865, 2009-Ohio-2874, ¶ 58; State v. Walters, 10th Dist. Franklin No.
06AP-693, 2007-Ohio-5554, ¶ 81. And the jury was so instructed at trial. To conclude
otherwise would relieve the State of its burden of proof and would compromise a
defendant’s right to the effective assistance of counsel by causing defense counsel to
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consider foregoing an opening statement or closing argument for fear of prejudicing the
client, or to conduct cross-examination in such a manner that the State would be alerted
to the failure of its evidence. We cannot adopt the view that defense counsel’s questions
constitute “evidence” against the accused by which the State could overcome a Crim.R.
29(A) motion.
{¶ 27} Based on the evidence presented in this case, reasonable minds could not
have concluded that the Lavetta Bailey who sat in the courtroom was the perpetrator of
the assault on Lesher. The trial court erred in overruling her motion for acquittal at the
close of the State’s case. The fact that Bailey subsequently testified to being the patient
in Lesher’s ambulance is irrelevant, as such testimony would never have been offered if
the Crim.R. 29(A) motion had been granted at the close of the State’s case.
{¶ 28} The assignment of error is sustained.
{¶ 29} The judgment of the trial court will be reversed, and Bailey’s conviction will
be vacated.
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DONOVAN, J. and TUCKER, J., concur.
Copies mailed to:
Michael J. Scarpelli
Michael H. Holz
Hon. Dennis J. Langer