Berea v. Timm

[Cite as Berea v. Timm, 2019-Ohio-2573.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

CITY OF BEREA, :

Plaintiff-Appellee, :
No. 107740
v. :

ALEXANDER R. TIMM :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 27, 2019

Criminal Appeal from Berea Municipal Court
Case No. 18 CRB 00500-1

Appearances:

Barbara Jones, City Law Director, and Danielle Fekete
Swisher, Assistant Prosecutor, and Megan M. Matthews,
Assistant Director of Law, for appellee.

Wargo and Wargo, and Thomas M. Wilson, for appellant.

LARRY A. JONES, SR., J.:

Defendant-appellant, Alexander Timm (“Timm”), appeals his

conviction for domestic violence, which was rendered after a bench trial. For the

reasons that follow, we affirm.
 In 2018, Timm was charged with one count of domestic violence, in

violation of R.C. 2919.25(A), a first-degree misdemeanor. The matter proceeded

through the pretrial process. On the day of trial, Timm filed a motion in limine to

exclude the statements he made to police prior to receiving Miranda warnings. The

trial court heard argument on the motion prior to trial and subsequently overruled

the motion, finding that Timm was required to file a motion to suppress his

statements, not a motion in limine; therefore, he waived any objection to his

statements.

The following evidence was adduced at trial.

Timm and the victim attended a birthday party where they both

consumed alcohol and became intoxicated. Upon returning home from the party,

Timm and the victim got into an argument. The victim’s daughter and daughter’s

friend were in the house at the time. The police received a 911 call but were

disconnected; the dispatcher heard a woman screaming but did not get her name

before the call was disconnected. The victim’s daughter and her friend called 911 a

second time and reported that Timm slammed the victim to the ground and the

victim sustained a head injury with blood. Dispatch noted that the caller stated that

the victim needed medical attention and the caller was starting to hyperventilate or

was having difficulty breathing.

The police arrived on scene. Patrolman Adam Laeng (“Patrolman

Laeng”) testified that Timm let him into the house. Patrolman Laeng testified that

he had domestic violence training and had responded to many domestic violence
situations in the past. As part of his standard procedure, Patrolman Laeng separates

the involved parties and tries to ascertain what happened. On this evening,

Patrolman Laeng spoke with Timm. Timm told the officer that he and the victim

were at a birthday party, returned home, and the victim started going through

Timm’s text messages on his phone. Timm was trying to go to bed and admitted he

hit the victim with a pillow to knock the phone out of her hand. According to

Patrolman Laeng, Timm stated that at that point the victim “came at him * * * trying

to hit him in the face two times, and his [Timm’s] words, he picked her up and threw

her off of him, and she must have hit her head on something.”

Patrolman Laeng testified that he detained Timm and put him in

handcuffs, for his and Timm’s safety, because Patrolman Laeng was the only officer

on scene. Important to this appeal, Patrolman Laeng testified that Timm told him

what happened before the officer placed him in handcuffs:

Prosecutor: So, Officer Laeng, you’re testifying that you placed the
defendant in handcuffs and told him he was being detained after he
made statements to you explaining what had happened?

Patrolman Laeng: Yes.

Prosecutor: So you placed him in handcuffs after he made the
statement to you * * * that she had gone over, attempted to hit him,
and then he threw her down, and that’s when she cut her head open?

Patrolman Laeng: Affirm, yes, correct.

Prosecutor: He made that statement to you before he was placed in
handcuffs?
 Patrolman Laeng: I believe so. Because I know I didn’t walk in
immediately placing him in handcuffs, it was after we had some
dialogue as to what happened.

Patrolman Laeng noted that the victim was “bleeding profusely” from

the head. The victim was subsequently transported to the hospital where she

received six staples to close the wound on her head.

Patrolman Daniel Kelly (“Patrolman Kelly”) was the next officer to

arrive on scene. Timm objected to his testimony because the city had not provided

Patrolman Kelly’s name in discovery. The court overruled the objection.

Patrolman Kelly testified that Timm was in handcuffs when he

arrived. He dealt primarily with the victim, assessing her injuries. Patrolman Kelly’s

body-cam video was played for the court. There was discussion amongst the parties

and the court as to statements Timm made that the body cam’s sound picked up.

Patrolman Kelly, upon questioning by the court, stated that it sounded like Timm

said, “I slammed her on the ground and her head cracked.”

The victim testified that Timm is her boyfriend with whom she and

her daughter live. On the evening in question, the victim and Timm attended her

brother’s birthday party and they “drank too much,” so someone drove them home.

They began to argue, “he hit me with the pillow, and so I got up and I punched him,

and then he pushed me and I went to fall and then he fell with me * * * like he pushed

me off of him.” She further testified that “I pulled him kind of. Like so when I hit

him and he went to go push me, I grabbed him, so we fell together, I guess.”

On cross-examination, the prosecutor queried:
 Prosecutor: But you fell because he pushed you? And then you
grabbed him and that’s why he fell as well?

Victim: Yeah, uh-huh.

Prosecutor: So you fell, hit your head, got the injuries because he
pushed you?

Victim: Yeah.

The victim testified that she called police but hung up the phone and

it was her daughter’s friend who made the second phone call to police.

The court found Timm guilty as charged and sentenced him to ten

days in jail, with credit for time served.

Timm filed a notice of appeal and raises the following assignments of

error for our review:

I. The trial court erred, as a matter of law, when it permitted the City
of Berea to introduce into evidence, at a bench trial, a statement of the
Defendant, made after the Defendant was handcuffed, detained, and
in custody, even though the Defendant had not been provided his
Constitutional rights as required under Miranda v. Arizona, (1966),
384 U.S. 436, and its Ohio progeny, based solely upon the improper
application of the holding in State v. French, 72 Ohio St.3d 446
(1995).

II. The trial court’s determination that Defendant Alexander R. Timm
was guilty beyond a reasonable doubt, after a bench trial, constituted
prejudicial error as it was based upon insufficient evidence.

III. The trial court erred when it permitted the City of Berea to present
the testimony of Berea Police Officer Daniel Kelly who was not listed
as a witness on the Witness List provided to Defendant by the City of
Berea in violation of Rule 16 of the Ohio Rules of Criminal Procedure.

IV. The cumulative error doctrine precludes Mr. Timm’s conviction
for domestic violence.
 In the first assignment of error, Timm argues that the trial court erred

when it allowed into evidence statements he made to the police. Timm objected to

the admission of the statements on the day of trial via a motion in limine. 1 The trial

court took the motion in limine under advisement and denied the motion after trial,

finding that Timm should have filed a motion to suppress his statements:

Having taken Motion in Limine under advisement, now upon further
review and based upon holding in State of Ohio v. French,2 the Court
finds that in order to raise a Constitutional issue of statement made
during a detention being admissible, Defendant must have filed a
Motion to Suppress not a Motion in Limine, therefore and Defendant
is deemed to have waived that Constitutional protection and the
statement of Defendant made while he was handcuffed will be
considered.

Crim.R. 12(C)(3) requires a party who wishes to challenge evidence

on the grounds that it was illegally obtained to move to suppress the

evidence. Crim.R. 12(C)(3) provides that all “[m]otions to suppress evidence,

including but not limited to statements and identification testimony, on the ground

that it was illegally obtained” must be raised prior to trial. Crim.R. 12(D) provides

1We note that the motion in limine is not part of the trial-court record and its filing
with the court does not appear on the trial court docket. From what we can glean from
the transcript and the parties’ arguments on appeal, Timm presented the trial judge a
written motion in limine, which the court and the parties discussed in chambers and off
the record. Before trial commenced, and on the record, the court noted that it had
received the motion in limine and was taking it under advisement. We further note that,
although it is curious that the motion in limine is not part of the trial-court record, it is
the duty of an appellant to ensure the record, or whatever portions thereof are necessary
for the determination of the appeal, are filed with the court in which he or she seeks
review. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 19, 520 N.E.2d 564 (1988).

2 State v. French, 72 Ohio St.3d 446, 449, 650 N.E.2d 887 (1995).
that such motions should be made “within thirty-five days after arraignment or

seven days before trial, whichever is earlier.”

In order to preserve a suppression issue for appeal, it must first be

raised in the trial court. State v. Wade, 53 Ohio St.2d 182, 189-190, 373 N.E.2d 1244

(1978), vacated in part on other grounds, Wade v. Ohio, 438 U.S. 911, 98 S.Ct. 3138,

57 L.Ed.2d 1157 (1978).

In French, 72 Ohio St.3d at 449, 650 N.E.2d 887, the Ohio Supreme

Court noted that the purpose and effect of a motion to suppress and a motion in

limine are distinct. A “motion to suppress” is a “[d]evice used to eliminate from the

trial of a criminal case evidence which has been secured illegally, generally in

violation” of a constitutional right. Id., citing Black’s Law Dictionary, 1014 (6

Ed.1990). “[T]he ruling of the court at the suppression hearing prevails at trial and

is, therefore, automatically appealable by the state.” Id., citing R.C.

2945.67(A); Crim.R. 12(K).

In contrast, a “motion in limine” is a motion “which is usually made

before or after the beginning of a jury trial for a protective order against prejudicial

questions and statements * * * to avoid injection into trial of matters which are

irrelevant, inadmissible and prejudicial.” (Citation omitted.) State v. Grubb, 28

Ohio St.3d 199, 200, 503 N.E.2d 142 (1986). In ruling on a motion in limine, “the

trial court is at liberty to change its ruling on the disputed evidence in its actual

context at trial. Finality does not attach when the motion is granted.” (Citation

omitted.) Defiance v. Kretz, 60 Ohio St.3d 1, 4, 573 N.E.2d 32 (1991).
 In French, the Ohio Supreme Court stated that a motion in limine

may be used in two ways: (1) as a preliminary means of raising objections

to evidentiary issues to prevent prejudicial questions and statements until the

admissibility of the questionable evidence can be determined outside the presence

of the jury, and (2) as the functional equivalent of a motion to suppress evidence that

is either not competent or improper due to some unusual circumstance not rising to

the level of a constitutional violation. (Emphasis added.) Id. at 450.

Here, Timm’s motion challenged custodial statements he made to the

police; Timm was alleging a constitutional violation. The proper vehicle to do so was

via a motion to suppress filed in accordance with Crim.R. 12. The court in this case

took the motion in limine under advisement, and eventually ruled that the motion

was improper. We find no error. Counsel could have asked for leave to file an

untimely motion to suppress, but chose to proceed on the motion in limine.

Timm made two sets of statements to the police. The first, in which

he admitted he threw the victim down, were made prior to his being handcuffed and

detained. The second, in which he stated he slammed the victim down, were made

after he was in handcuffs.

In State v. Robinson, 8th Dist. Cuyahoga No. 105667, 2018-Ohio-

285, this court noted that:

Generally speaking, “[p]olice are not required to administer Miranda
warnings to everyone whom they question.” “Only custodial
interrogation triggers the need for Miranda warnings.” (“a coercive
environment does not automatically convert a noncustodial situation
into one requiring Miranda warnings”).
 ***

A police officer’s “[g]eneral on-the-scene questioning as to facts
surrounding a crime or other general questioning of citizens in the
fact-finding process is not affected” by the Supreme Court’s decision
in Miranda.

(Citations omitted.) Robinson at ¶ 16 - ¶ 17.

There is no question that Timm’s initial statements to the police were

noncustodial. Patrolman Laeng testified that Timm told him he threw the victim

down before Patrolman Laeng placed handcuffs on Timm. While Timm’s second

statement to the police was made after he was handcuffed, we need not determine

whether that statement was made in violation of his constitutional rights. Even if

Timm had filed a proper motion to suppress, and the court had suppressed the

second statement he made to police, there was still sufficient evidence of his guilt,

as will be discussed under the next assignment of error. Thus, Timm has failed to

show that he was prejudiced by the trial court’s ruling on his motion in limine.

In light of the above, the first assignment of error is overruled.

In the second assignment of error, Timm contends that there was

insufficient evidence to convict him of domestic violence because he did not

knowingly harm the victim.

When reviewing the sufficiency of the evidence underlying a criminal

conviction, an appellate court examines the evidence in order to determine whether

such evidence, if believed, would convince the average mind of the defendant’s guilt

beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No. CA2011-10-026,
2012-Ohio-3205, ¶ 9. Therefore, “[t]he relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable

doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of

the syllabus.

Pursuant to R.C. 2919.25(A), “No person shall knowingly cause or

attempt to cause physical harm to a family or household member.” Physical harm

means “any injury, illness, or other physiological impairment regardless of its

gravity or duration.” R.C. 2901.01(A)(3).

The evidence shows that Timm and the victim got into an argument

while both of them were intoxicated. According to the victim’s testimony and the

statements Timm made before he was handcuffed, the two were arguing over his

phone. The victim testified that Timm hit her with a pillow and then she tried to

punch him. At this point, according to the victim, he pushed her and she fell,

injuring her head. According to Timm, he “threw” the victim down and she injured

her head. The victim called 911, but hung up the phone. The victim’s daughter’s

friend called 911 again, and told the dispatcher that Timm had “slammed” the victim

“to the ground,” causing her injury.

The city presented evidence that, if believed, established Timm

caused or attempted to cause the victim physical harm by hitting her with the pillow

and throwing or pushing her, which caused her to fall and hit her head. The victim

suffered a head wound that needed six staples to close. Even without Timm’s
statement made after he was in handcuffs, that he slammed the victim to the ground,

there was sufficient evidence to convict him of domestic violence. Moreover, this

was a bench trial and we presume the trial judge considered only properly admitted

evidence. See State v. Neal, 8th Dist. Cuyahoga No. 89574, 2008-Ohio-1077, ¶ 18.

In light of the above, there was sufficient evidence to convict Timm of

domestic violence. The second assignment of error is overruled.

In the third assignment of error, Timm argues that the trial court

erred when it allowed in the testimony of Patrolman Kelly when the officer was not

on the witness list, in violation of Crim.R. 16. The city concedes that Patrolman Kelly

was not on the witness list but argues that Timm was aware that Patrolman Kelly

would likely testify at trial.

Crim.R. 16(I) provides that “[e]ach party shall provide to opposing

counsel a written witness list, including names and addresses of any witness it

intends to call in its case-in-chief, or reasonably anticipates calling in rebuttal or

surrebuttal.”

The Ohio Supreme Court has set out a test for determining whether

the city’s failure to comply with Crim.R. 16 constitutes reversible error:

Prosecutorial violations of Crim.R. 16 are reversible only when there
is a showing that (1) the prosecution’s failure to disclose was a willful
violation of the rule, (2) foreknowledge of the information would have
benefited the accused in the preparation of his [or her] defense, and
(3) the accused suffered some prejudicial effect.

State v. Joseph, 73 Ohio St.3d 450, 458, 653 N.E.2d 285 (1995), citing State v.

Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983).
 We find no evidence that the city willfully failed to disclose

Patrolman Kelly as a witness, that foreknowledge that Patrolman Kelly was going to

testify would have benefitted Timm’s defense, or that Timm suffered any prejudice.

In Mayfield Hts. v. Molk, 8th Dist. Cuyahoga No. 84703, 2005-Ohio-

1176, this court agreed with the trial court’s ruling that the defendant was not

unfairly prejudiced when the prosecutor failed to provide him with a witness list in

discovery. This court reasoned that the defendant had an opportunity to view the

police report at previous pretrials and was in possession of a copy of his ticket, which

indicated the arresting officer’s name and badge number. Id. at ¶ 12.

In State v. Standen, 9th Dist. Lorain No. 05CA008813, 2006-Ohio-

3344, the defendant sought exclusion of a police officer’s testimony when the state

failed to disclose a police officer as a witness in a timely manner. The Ninth

Appellate District found that the trial court did not err in allowing the police officer

to testify because the defendant received a copy of the police report in response to

his discovery request and the report identified the officer and noted his presence on

the scene. Id. at ¶ 16. The court concluded that the defendant failed to demonstrate

any willful failure by the state to disclose the witness’s identity or that the defendant

suffered any prejudicial effect. Id.

In this case, the trial court determined that the city had substantially

complied with Crim.R. 16 because Patrolman Kelly’s name was on documents

provided to the defense in discovery. We note that the city provided the call for

service report and police report during discovery, both of which contained
Patrolman Kelly’s name and badge number. The criminal complaint was signed by

Patrolman Kelly and included his name and badge number. The city also turned

over, prior to trial, footage from Patrolman Kelly’s body camera.

In light of the above, we find that the trial court did not abuse its

discretion when it allowed Patrolman Kelly to testify.

The third assignment of error is overruled.

In the fourth assignment of error, Timm claims that the cumulative

error doctrine prevented him from receiving a fair trial. We disagree.

Under the doctrine of cumulative error, a conviction will be reversed

when the cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of the errors does not individually

constitute cause for reversal. State v. Obermiller, 8th Dist. Cuyahoga No. 101456,

2019-Ohio-1234, ¶ 52, citing State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524,

960 N.E.2d 955, ¶ 132. However, the doctrine of cumulative error is inapplicable

when the alleged errors are found to be harmless or nonexistent. Id., citing id.

Because we have determined that none of the individual claims of

error are well taken, the claim of cumulative error likewise fails.

The fourth assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.
 It is ordered that a special mandate issue of this court directing the Berea

Municipal Court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending is terminated. Case remanded to the trial

court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

LARRY A. JONES, SR., JUDGE

PATRICIA ANN BLACKMON, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR