[Cite as State v. Kelley, 2014-Ohio-5565.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-140112
TRIAL NO. B-1302344
Plaintiff-Appellee, :
O P I N I O N.
vs. :
JOHN KELLEY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: December 19, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Schuh & Goldberg, LLP, and Brian T. Goldberg, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} John Kelley was convicted of two counts of attempted murder following
a shooting at a Sharonville motel. The victims were Mr. Kelley’s old girlfriend and her
new boyfriend.
{¶2} In this appeal, Mr. Kelley contends the trial court erred by admitting
evidence of prior acts of domestic violence he committed against his ex-girlfriend, by
permitting the jury to consider audiotapes of the boyfriend’s interviews with police
officers as well as the boyfriend’s prior written statement, and by speaking to the jury
outside the presence of the parties. He also argues that his convictions were against the
weight and sufficiency of the evidence.
{¶3} We agree that the trial court erred in admitting evidence of Mr. Kelley’s
prior bad acts and portions of the out-of-court statements. But after considering the
impact of the erroneously admitted evidence and the strength of the other evidence
against Mr. Kelley, we conclude that these errors were harmless. The trial court’s ex
parte discussion with the jury was also harmless. Finally, Mr. Kelley’s convictions were
not against the weight and sufficiency of the evidence. We therefore affirm the
judgment.
I. Background
{¶4} On the morning of April 12, 2013, Shaudrell Foshee and her boyfriend,
Eric Davis, were returning to the Travelodge Motel in Sharonville following a night at
work. Ms. Foshee had been living at the hotel for about a month. Ms. Foshee arrived at
the door of the hotel first and encountered an armed man whom she later identified as
Mr. Kelley.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Almost immediately, the man fired at Mr. Davis. A shot struck Mr. Davis
in the elbow as he raised his arm to protect himself. Mr. Davis escaped the shooter by
running through nearby bushes to a U.P.S. store. Next, the shooter came after Ms.
Foshee, who was not as fortunate. She was shot in her back as she tried to run away and
then in her shoulder. A third shot, aimed at Ms. Foshee’s head, was deflected by her
wrist.
{¶6} A hotel employee, Shelia Myrick, came to Ms. Foshee’s aid and called
911. Ms. Myrick testified that when she asked Ms. Foshee if she was okay, Ms. Foshee
responded, “John Kelley shot me.” Ms. Myrick stayed with Ms. Foshee until medical
help arrived. In the days following the shooting, Ms. Myrick saw television reports about
the shooting during which photographs of Mr. Kelley were shown. Ms. Myrick
recognized Mr. Kelley as a man who had been in the hotel lobby perhaps a week prior to
the shooting. She also identified a photograph of a red truck that she had seen in the
hotel parking lot at least two times.
{¶7} Officers Raymond Hugentobler and Aaron Hayes responded to the hotel.
As Officer Hayes tended to Ms. Foshee, she again stated that John Kelley had shot her.
She also told Officer Hayes that Mr. Kelley drove a red truck.
{¶8} While the police officers were responding to the report of the shooting at
the Travelodge, a second report was broadcast over the police radio about a shooting
victim at a nearby U.P.S. store. Officer Deanna Smith responded to that report and
found Mr. Davis. Mr. Davis told Officer Smith that he had been shot at the Travelodge
by a man named Drew, who was the father of his girlfriend’s child. Mr. Davis also stated
that Drew drove a red truck.
{¶9} Hours after the shooting, a passerby called police to report an
abandoned truck that matched the description of Mr. Kelley’s truck. Police officers
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OHIO FIRST DISTRICT COURT OF APPEALS
found a toy license plate that said “Drew” on the truck’s dashboard and an empty DVD
case with five bullets. The truck was registered to Mary Kelley, Mr. Kelley’s mother. A
month after the shooting, Mr. Kelley was found in Georgia and extradited to Ohio.
{¶10} Mr. Kelley was Ms. Foshee’s ex-boyfriend and the father of her son. At
trial, over the objections of defense counsel, Ms. Foshee told the jury about her
relationship with Mr. Kelley, including at least six episodes in which he had harmed her.
According to Ms. Foshee, Mr. Kelley was often called by his middle name, “Drew.”
{¶11} The jury found Mr. Kelley guilty of two counts of attempted murder with
firearm specifications and four counts of felonious assault with firearm specifications.
The trial court merged the felonious-assault counts with the attempted-murder counts
and sentenced Mr. Kelley accordingly.
II. Evidentiary Issues
{¶1} Mr. Kelley’s first two assignments of error challenge some of the court’s
evidentiary decisions. In his first assignment of error, Mr. Kelley contends that the trial
court erred in admitting improper other-acts evidence. Specifically, he challenges the
introduction of testimony relating to his prior acts of violence against Ms. Foshee.
{¶2} In the second, he asserts that the court erred when it allowed the jury to
consider Mr. Davis’s prior statements made to police officers. He contends that when
the court required his counsel to play two interviews that Mr. Davis had with the police
and allowed Mr. Davis to read his entire written statement aloud to the jury,
inadmissible other-acts evidence and hearsay evidence were improperly admitted. We
conclude that the court erred in its handling of the evidence but that the errors were
harmless.
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OHIO FIRST DISTRICT COURT OF APPEALS
A. The Court Erred When It Allowed Other-Acts Evidence
{¶3} “A hallmark of the American criminal justice system is the principle that
proof that the accused committed a crime other than the one for which he is on trial is
not admissible when its sole purpose is to show the accused’s propensity or inclination
to commit crime.” State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975). Thus,
Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” See R.C. 2945.59. Evid.R. 404(B) and R.C. 2945.59 are strictly construed
against admissibility. State v. Lowe, 69 Ohio St.3d 527, 530, 634 N.E.2d 616 (1994).
We review the trial court’s decision to admit other-acts evidence for an abuse of
discretion. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528,
syllabus. We conclude that the court abused its discretion.
{¶4} The state maintains that Ms. Foshee’s testimony about Mr. Kelley’s prior
violent acts was admissible as proof of his identity as the shooter and as proof of his
motive for the crime.
{¶5} Other-acts evidence may be admissible when the identity of the
perpetrator of a crime is at issue. “[E]vidence of a scheme, plan, or system” may
permissibly be introduced as evidence of identity “either because the other act is part
and parcel of the plan to commit the charged crime or because the other act is so similar
to the crime charged and sufficiently idiosyncratic that it tends to prove the same person
committed both acts.” State v. Morris, 9th Dist. Medina No. 09CA0022-M, 2012-Ohio-
6151, ¶ 18, aff’d, Slip Opinion No. 2014-Ohio-5052. See State v. Lowe, supra. For
example, testimony about a defendant’s illegal purchase of a gun may be admissible
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OHIO FIRST DISTRICT COURT OF APPEALS
identity evidence in a case alleging a shooting. The gun purchase is part of the plan to
carry out the shooting. Likewise, a defendant’s past use of a hammer to break windows
in “smash and grab” burglaries might be admissible identity evidence in a case about a
similar burglary on the theory that it establishes a distinct modus operandi.
{¶6} Here, the defense did try to make identity an issue. Counsel emphasized
the absence of physical evidence connecting Mr. Kelley to the crime and questioned
whether Ms. Foshee had indeed been able to name him as the shooter, in light of her
serious wounds. But the previous acts of violence about which Ms. Foshee testified—
ending with an incident in March 2013—were not “part and parcel” of the shooting at
the hotel. Nor were the previous acts “sufficiently idiosyncratic” to tend to prove Mr.
Kelley was the shooter. Most of the incidents involved Mr. Kelley allegedly hitting Ms.
Foshee. Only one apparently involved a gun, and that gun was not fired but used as a
threat to keep Ms. Foshee from leaving. None of the prior incidents indicate a modus
operandi that would identify Mr. Kelley as the shooter.
{¶7} To establish motive, other-acts evidence “should demonstrate that the
accused possesses a specific reason to commit the crime alleged.” See State v. Johnson,
2d Dist. Montgomery No. 23508, 2011-Ohio-1133, ¶ 55. Ms. Foshee testified about a
litany of violent acts beginning in 2007 and ending in March 2013, when she obtained a
protection order against Mr. Kelley. She described in detail four different episodes in
which Mr. Kelley injured her. She was unable to provide specifics about two other
incidents in which she had called police officers to report domestic violence by Mr.
Kelley. A history of escalating violence by Mr. Kelley did not provide a motive for his
actions at the Travelodge. Arguably, the most recent incident in March 2013, where Mr.
Kelley allegedly choked Ms. Foshee because he thought she was pregnant with Mr.
Davis’s child, suggesting a possible motive for the shootings—to stop Ms. Foshee’s
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OHIO FIRST DISTRICT COURT OF APPEALS
relationship with Mr. Davis. But there was no indication that the other prior acts of
violence that Mr. Kelley allegedly perpetrated created a reason for him to shoot Ms.
Foshee and Mr. Davis at the Travelodge on April 13.
{¶8} A court abuses its discretion when it acts unreasonably, arbitrarily or
unconscionably. See State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). “If
the court's exercise of its discretion, however, exhibited a sound reasoning process
that supported its decision, this court will not disturb that determination.” State v.
Clark, 1st Dist. Hamilton No. C-100693, 2011-Ohio-6030, ¶ 10. Here, the court’s
decision to allow all of Ms. Foshee’s testimony about the past incidents lacked a sound
reasoning process. When overruling defense counsel’s motion in limine, the court
stated, “With regard to the testimony, any testimony relating to domestic violence, it is
very much a part of this case, because the domestic violence was against this particular
victim. And when that is a case, it does show a pattern.” But this demonstration of a
pattern and the inference that Mr. Kelley acted in conformity with the pattern is
precisely why other-acts evidence is generally inadmissible. The court therefore abused
its discretion in admitting the evidence.
B. The Trial Court Erred in Admitting Prior Statements of Mr. Davis
{¶9} Mr. Kelley argues that the court improperly allowed inadmissible other-
acts evidence and hearsay evidence when it forced his counsel to play the entirety of Mr.
Davis’s interviews with police officers and when it allowed Mr. Davis to read his written
statement aloud. We agree that the court erred.
{¶10} Mr. Davis testified that he recognized the shooter as Mr. Kelley because
he had seen a picture of Mr. Kelley on Ms. Foshee’s Facebook page and because he had
witnessed an argument between Mr. Kelley and Ms. Foshee in January 2013. Defense
counsel challenged Mr. Davis’s testimony, suggesting that Mr. Davis lied during his
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OHIO FIRST DISTRICT COURT OF APPEALS
testimony about having seen Mr. Kelley’s face in January. Counsel then questioned Mr.
Davis about two interviews he had with Officer Mark Dudleson. When Mr. Davis stated
that he couldn’t remember the statements, counsel sought to play the portions of the
interviews in which Mr. Davis claimed that he hadn’t seen Mr. Kelley’s face during the
January 2013 incident because it had been too dark. Over defense counsel’s objection,
the trial court required that counsel play both interviews in their entirety.
{¶11} Under Evid.R. 613(B)(2)(a), extrinsic evidence of a witness’s prior
inconsistent statement is admissible if the subject matter is “[a] fact that is of
consequence to the determination of the action other than the credibility of the
witness[.]” When part of a statement is introduced, the opposing party “may require the
introduction at that time of any other part or any other writing or recorded statement
which is otherwise admissible and which ought in fairness to be considered
contemporaneously with it.” Evid.R. 106.
{¶12} Here, once defense counsel sought to play part of the statement that
addressed whether Mr. Davis had been able to see Mr. Kelley’s face in the January
incident, the state was permitted to play other parts of the statement necessary to put
Mr. Davis’s statement in context, as long as those parts were “otherwise admissible.”
While it is conceivable that, in some situations, an entire recorded statement would be
needed to put excerpted statements in context, this was not the case here. Combined,
the interviews with Officer Dudleson lasted 25 to 30 minutes. The first interview did not
mention the January incident at all. In the second interview, Mr. Davis mentioned the
January incident and stated that he was unable to see Mr. Kelley’s face that night. This
was the impeachment evidence that defense counsel sought to elicit. But the rest of the
interview went into other subjects, including allegations of Mr. Kelley’s prior acts of
violence against Ms. Foshee.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} Fairness did not require admission of the bulk of the statements, which
did not add context to the question of whether Mr. Davis could identify Mr. Kelley.
More significantly, the statements were not “otherwise admissible.” Rather, they
contained inadmissible other-acts evidence, and the court erred when it allowed them to
be played to the jury.
{¶14} Mr. Kelley also objects to the trial court’s decision to allow Mr. Davis to
read aloud the written statement he gave to police. Defense counsel questioned Mr.
Davis about whether, when he first saw Mr. Kelley at the hotel, he thought he was going
to fight him. To refresh his memory, counsel allowed him to read a signed statement
that Mr. Davis had provided to police officers. During redirect examination, the state
asked Mr. Davis to read the entire signed statement aloud. Over the objection of defense
counsel, the trial court allowed the statement to be read.
{¶15} Under Evid.R. 612, if a witness uses a writing to refresh his memory, the
opposing party “is * * * entitled * * * to introduce in evidence those portions which relate
to the testimony of the witness.” The court’s decision to allow Mr. Davis to read his
entire statement to the jury went beyond what is permitted by Evid.R. 612. In the
statement, Mr. Davis not only addressed his impression that Mr. Kelley was at the
Travelodge to fight him but also Mr. Davis’s actions after he was shot, threatening text
messages to Ms. Foshee from Mr. Kelley, and rumors “off the streets” that Mr. Kelley
had been following Mr. Davis and Ms. Foshee for three weeks. Because these portions of
the statement did not “relate to the testimony of the witness,” the court erred in allowing
the entire statement to be read to the jury.
C. The Evidentiary Errors Were Harmless
{¶16} Having concluded that the other-acts and hearsay evidence was
improperly admitted, we must determine whether the errors were harmless or require
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OHIO FIRST DISTRICT COURT OF APPEALS
that we grant a new trial. The Ohio Supreme Court recently addressed the impact of
improperly admitting other-acts evidence. State v. Morris, Slip Opinion No. 2014-Ohio-
5052. “[T]he real issue when Evid.R. 404(B) evidence is improperly admitted at trial is
whether a defendant has suffered any prejudice as a result.” Id. at ¶ 25. The court
provided guidance on how to ascertain whether a defendant has been prejudiced so that
a new trial must be ordered:
In determining whether to grant a new trial as a result of the erroneous
admission of evidence under Evid.R. 404(B), an appellate court must
consider both the impact of the offending evidence on the verdict and the
strength of the remaining evidence after the tainted evidence is removed
from the record.
Id. at syllabus.
{¶17} Although the court’s decision in Morris addressed only improper other-
acts evidence, we think its logic is equally pertinent to the hearsay evidence that was also
improperly admitted here.
{¶18} Applying Morris, if we conclude that the improperly admitted evidence
did not impact the verdict, our inquiry stops, and we must conclude the court’s errors
were harmless. Otherwise, we excise the improper evidence and consider whether the
verdicts should stand in light of the remaining properly admitted evidence.
{¶19} We cannot conclude that the extensive testimony about Mr. Kelley’s
violent acts against Ms. Foshee and testimony that he had been following her and Mr.
Davis did not impact the jury’s verdict. The jury heard about the other-acts evidence not
only during Ms. Foshee’s testimony but also during playback of Mr. Davis’s interviews
and the reading of his statement. It is unlikely that the jury could ignore Mr. Kelley’s
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OHIO FIRST DISTRICT COURT OF APPEALS
long history of violence against Ms. Foshee and the suggestion that he had been
following the couple for weeks.
{¶20} Because we conclude that improperly admitted other-acts evidence and
hearsay evidence impacted the verdicts, we must take the next step delineated in Morris
and consider the strength of the remaining evidence absent the offending evidence.
Upon the record before us, we conclude that even without the evidence of Mr. Kelley’s
prior bad acts and the hearsay evidence, the evidence of his guilt was overwhelming.
Ms. Foshee identified him twice as the shooter immediately after being shot. Mr. Davis
likewise identified him. Ms. Myrick had seen Mr. Kelley at the hotel just days before the
shooting. Additionally, Ms. Foshee and Mr. Davis described the red truck that Mr.
Kelley had been driving. Phone records indicated that Mr. Kelley had fled the state
shortly after the shootings and remained at large until he was located in Georgia. We
conclude that the court’s evidentiary errors were harmless beyond a reasonable doubt.
The first and second assignments of error are overruled.
III. Ex Parte Communication with Jurors
{¶21} In his third assignment of error, Mr. Kelley asserts that the court erred
by holding an ex parte discussion with the jury. He contends that he was denied a fair
trial because on the last day of the trial, the court spoke with jurors outside his presence.
We conclude that ex parte communication was error, but that the error was harmless.
{¶22} A criminal defendant has a right to be present at every stage of his trial.
See, e.g., State v. Williams, 6 Ohio St.3d 281, 286, 452 N.E.2d 1323 (1983). As a result,
“any communication between judge and jury that takes place outside the presence of the
defendant * * * is error which may warrant” a new trial. Bostic v. Connor, 37 Ohio St.3d
144, 149, 524 N.E.2d 881 (1988). Such communication is harmless unless it is
prejudicial to the defendant. State v. Abrams, 39 Ohio St.2d 53, 313 N.E.2d 823 (1974),
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OHIO FIRST DISTRICT COURT OF APPEALS
paragraph two of the syllabus. “To prevail on a claim of prejudice due to an ex parte
communication between judge and jury, the complaining party must first produce some
evidence that private contact, without full knowledge of the parties, occurred between
the judge and jury which involved substantive matters.” State v. Jenkins, 15 Ohio St.3d
164, 473 N.E.2d 264 (1985), paragraph 13 of the syllabus. A communication is
substantive when it “address[es] any legal issues, any fact in controversy, any law
applicable to the case, or some similar matter.” See State v. DiPietro, 10th Dist. Franklin
No. 09AP-202, 2009-Ohio-5854, ¶ 17.
{¶23} Before testimony began on the last day of the trial, the trial court met
with jurors in the jury room. The discussion was on the record, but the attorneys and
Mr. Kelley were not present. The court addressed the jurors’ safety:
I just wanted to sort of, as a matter of protocol, I know this is a court of a
higher level kind of—I don’t know what the word for it is, more a spirited
trial than some of the ones that I normally have. And I wanted to make
sure that everybody is comfortable, and no one feels intimidated in any
way. I do want to assure you a couple of things. The first thing is that we
have plenty of security. You may not be able to see the security, but we
have got everything covered, if you ever have any doubt. Trust me, it’s
not for your safety, it’s for mine.
{¶24} The court went on to emphasize that the courtroom was safe, and then
confirmed that the jurors could be fair and impartial. It is unclear what prompted the
discussion, but after meeting with the jury, the trial court addressed the spectators in the
courtroom and warned them:
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OHIO FIRST DISTRICT COURT OF APPEALS
I am going to tell you right now, to everybody, every single person in this
courtroom, if you so much as blink today I am going to hold you in
contempt of court.
{¶25} Mr. Kelley maintains that the ex parte discussion tainted the jury’s
decision, but he does not demonstrate how he was prejudiced. No substantive matters
were addressed with the jury during the ex parte discussion, and there is nothing in the
court’s statements that plausibly could have impacted the verdict. Thus, we conclude
the error was harmless. The third assignment of error is overruled.
IV. Sufficiency and Weight of the Evidence
{¶26} We consider the fourth and fifth assignments of error together. In the
fourth, Mr. Kelley asserts that his convictions were against the weight of the evidence,
and in the fifth, he asserts that his convictions were based on insufficient evident.
{¶27} As to the sufficiency argument, our review of the record reveals that
the state adduced substantial, credible evidence from which the jury could have
reasonably concluded that the state had proved beyond a reasonable doubt the
elements of attempted murder. See State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991), paragraph two of the syllabus. And in regard to the manifest-weight
argument, our review of the entire record fails to persuade us that the trial court
clearly lost its way and created such a manifest miscarriage of justice that we must
reverse Mr. Kelley’s convictions and order a new trial. See State v. Thompkins, 78
Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). Mr. Kelley contends that the
testimony of Ms. Foshee and Mr. Davis was not credible. But the jury was in the best
position to determine the credibility of the witnesses. The fourth and fifth
assignments of error are overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
V. Clerical Errors and Postrelease Control
{¶28} The state points out two errors in the court’s judgment entry. First, the
sentencing-hearing transcript demonstrates that the court merged Mr. Kelley’s four
felonious-assault convictions into the two attempted-murder convictions, and merged
the firearm specifications into a single specification. However, the judgment entry does
not reflect these mergers. Second, the entry states: “[t]he total aggregate sentence is
twenty four (25) years.” Our review of the proceedings and judgment entry convinces us
that the correct aggregate sentence is 25 years. The trial court may correct these clerical
errors by a nunc pro tunc entry. See Crim.R. 36.
{¶29} Additionally, we note that although the sentencing entry states that Mr.
Kelley was subject to five years of postrelease control, the trial court neglected to so
advise him at the sentencing hearing. See R.C. 2929.19(B)(2)(c) and 2967.28(B). We
remand the cause therefore so that the court may properly inform Mr. Kelley about his
postrelease control.
VI. Conclusion
{¶30} Having considered and overruled each assignment of error, we affirm
the trial court’s judgment. We remand the cause so that the court may properly inform
Mr. Kelley about postrelease control and correct its sentencing entry to reflect the
merger of the felonious-assault offenses and the imposition of a 25-year aggregate
sentence.
Judgment affirmed and cause remanded.
H ILDEBRANDT , P.J., and D INKELACKER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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