State v. Smith

[Cite as State v. Smith, 2019-Ohio-3257.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-180499
TRIAL NO. 18CRB-60
Plaintiff-Appellee, :
O P I N I O N.
vs. :

TYRONE SMITH, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: August 14, 2019

Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Jennifer
Bishop, Assistant City Prosecutor, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant
Public Defender, for Defendant-Appellant.
 OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} In this aggravated menancing case, a critical witness failed to show up for

trial, so the state opted to present her “testimony” via the expediency of a police body-

camera interview. This interview occurred well after the incident at hand and can only be

characterized as “testimonial” in our Confrontation Clause lexicon. The court accordingly

erred, both on constitutional and hearsay grounds, in admitting this evidence, and the error

cannot be brushed aside as harmless because the court specifically relied on this interview

to convict the defendant. We accordingly reverse the decision below and remand for a new

trial.

I.

{¶2} On New Year’s Day 2018, William Jeffreys and his girlfriend, Nadia Faulk,

spent the day together running errands and planned to attend a concert later that night. At

the same time, defendant-appellant Tyrone Smith (Ms. Faulk’s former beau), arrived at Ms.

Faulk’s home with his own notion that the two would be spending time together that

evening. When Mr. Smith arrived at Ms. Faulk’s home, however, she was not there. While

waiting, Mr. Smith’s friend, Bryant Wilson, arrived at the house to join him, and shortly

thereafter Mr. Jeffreys showed up to drop off Ms. Faulk.

{¶3} According to Mr. Jeffreys, upon arriving at her house, he pulled into the

driveway next door and another car pulled up behind him, blocking his car. With the car

blocked, Mr. Smith approached Mr. Jeffreys’s car window and began threatening to kill Mr.

Jeffreys with a gun. At some point, Ms. Faulk exited from the vehicle, imploring Mr. Smith

to stop. Eventually, the vehicle blocking Mr. Jeffreys’s car moved, and he left the scene.

{¶4} Upon returning home, Mr. Jeffreys testified that he called the police, and

officers responded at 1:34 a.m., arriving to his house a few minutes later. After speaking

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with Mr. Jeffreys and gathering details about the incident, the officers and Mr. Jeffreys

proceeded to Ms. Faulk’s residence, approximately a mile away. Upon arriving at Ms.

Faulk’s house, the two officers approached the house and, once inside, began talking to Mr.

Smith (who, notwithstanding the earlier altercation, succeeded with his plan to hang out

with Ms. Faulk). Realizing that Mr. Smith was the alleged perpetrator, the police

handcuffed him, and Mr. Jeffreys confirmed his identity as the pepetrator. The police then

attempted to speak more with Mr. Smith, but he proved unwilling to cooperate, and thus the

officers turned their attention to Ms. Faulk. Though she initially hestitated in responding,

upon prodding and a directive to “tell the truth,” Ms. Faulk stated that “I can’t really even

explain what really happened,” but then conceded that “it happened.” One of the officers

then clarified: “[Mr. Smith] pulled a gun on you?” and Ms. Faulk confimed. The police then

asked her about the location of the gun, and she responded that Mr. Smith’s friend, Mr.

Wilson, took the gun away from the premises. Ms. Faulk also asked rhetorically: “I swear

why would I be lying?” and stated that she had tried to go to a neighbor’s house to call the

police. Ms. Faulk also reminded Mr. Smith that she had told him that she would call the

police on him because it “was not cool.” The police then formally placed Mr. Smith under

arrest.

{¶5} At a bench trial, Ms. Faulk never appeared to testify, despite being

subpoenaed. Because she was not present at trial to testify, and over the objections of

defense counsel, the judge admitted into evidence the police body-camera footage of the

officers’ interview with her. The court deemed the video statements admissible in light of

the “ongoing emotional situation that occurred and that qualifie[d] as an exception to the

hearsay rule.”

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{¶6} The admission of Ms. Faulk’s corroborating testimony would prove decisive at

trial, as credibility issues plagued Mr. Jeffreys’s testimony. At trial, Mr. Jeffreys maintained

that the incident took place sometime between 5:00 p.m. and 7:00 p.m., when there was

still daylight. Describing the interaction between himself and Mr. Smith, Mr. Jeffreys

maintained: “I believe it was around 6:00, 6:30 or so, 5:30 - - between 5:00 and 7:00 in the

evening, I know that,” and “day was starting to get dark. But it wasn’t all the way dark * * * .

[i]t was still enough daylight to see.” On cross-examination, he explained: “It was still light

out, yes. * * * Just starting to get dark. I don’t know what time it was to be sure, but I know

it happened.” But Mr. Jeffreys also testified that he drove directly home and called the

police immediately, and the police received the dispatch at approximately 1:30 a.m. on

January 2 and arrived at his home a few minutes later. Furthermore, Mr. Wilson and Mr.

Smith both maintained that the incident occurred much later in the evening. Mr. Wilson

testified that he arrived at the house to meet Mr. Smith at 11:00 p.m. and that Mr. Jeffreys

and Ms. Faulk arrived approximately 20 minutes later. Similarly, Mr. Smith described Mr.

Jeffreys and Ms. Faulk’s arrival to have occurred around 11:30 or 11:40 p.m. The conflict on

the timeline matters because if it had still been daylight, Mr. Jeffreys’s testimony about

seeing a gun would have been more credible.

{¶7} During closing arguments, defense counsel drew the court’s attention to the

discrepencies in Mr. Jeffreys’s testimony regarding the timeline of events. Defense counsel

implied that he could not keep his facts straight because he was lying to incriminate Mr.

Smith:

[Mr. Jeffreys] knows how the system works; he’s a convicted felon, violent

felon. * * * And so he’s got this story he is going to tell the police. You have

two people that are interested in the same person; same woman, two men. So

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he’s going to make sure * * * Mr. Smith gets locked up. So he says hey, he

pulled a gun on me.

***

But he can’t keep his facts straight because he said it happened between five

and six o’clock. It’s still light. How can there be such a discrepancy?

{¶8} The court took notice of this “new wrinkle” and ordered transcripts for

review. When the court reconvened to render its verdict, the court informed defense

counsel that, as to the discrepencies in Mr. Jeffreys’s testimony: “Well I have to couple that

with the video that we saw. * * * And in that video was one Nadia Faulk correct? * * * And

she had some things to say in that video, and that causes me to find your client guilty.” The

court then found Mr. Smith guilty of the aggravated menacing charge.

{¶9} Mr. Smith now appeals and asserts two challenges to his conviction. Initially,

he posits that the admission of Ms. Faulk’s statements in the body-camera footage violated

both the rule against hearsay and the Confrontation Clause of the Sixth Amendment to the

United States Constitution. He also challenges the weight and sufficiency of the evidence

supporting his conviction. We begin our analysis with the first assignment of error

challenging the admission of Ms. Faulk’s statements, considering the Confrontation Clause

before turning to hearsay and harmless error.

II.

A.

{¶10} Ms. Faulk’s statements do not withstand scrutiny under the Confrontation

Clause. Although the rule against hearsay and the Confrontation Clause are “generally

designed to protect similar ideals, * * * the Confrontation Clause may bar the admission of

evidence that would otherwise be admissible under an exception to the hearsay rule.”

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(Citations omitted.) State v. Issa, 93 Ohio St.3d 49, 60, 752 N.E.2d 904 (2001). Indeed, the

Confrontation Clause’s “ ‘central concern * * * is to ensure the reliability of the evidence

against a criminal defendant by subjecting it to rigorous testing in the context of an

adversary proceeding before the trier of fact.’ ” State v. Madrigal, 87 Ohio St.3d 378, 384,

721 N.E.2d 52 (2000), quoting Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111

L.Ed.2d 666 (1990). Therefore, the Confrontation Clause prohibits “testimonial statements

of a witness who did not appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.” Crawford v. Washington,

541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), paragraph (a) of the syllabus.

As a result, we review objections to evidence based on the Confrontation Clause de novo.

State v. Thomas, 2015-Ohio-5247, 54 N.E.3d 732, ¶ 14 (9th Dist.); State v. Burton, 2017-

Ohio-322, 77 N.E.3d 449, ¶ 16 (4th Dist.).

{¶11} The parties do not dispute that Ms. Faulk’s statements were uttered during

the course of a police interrogation, which the United States Supreme Court teaches falls

under the umbrella of “testimonial statements.” Crawford at 68 (testimonial statements at

a minimum include “prior testimony at a preliminary hearing, before a grand jury, or at a

former trial; and * * * police interrogations”). Not all statements made in response to police

questioning, however, are testimonial. Instead, statements made during a police

interrogation become testimonial when “the circumstances objectively indicate that there is

no * * * ongoing emergency, and that the primary purpose of the interrogation is to establish

or prove past events potentially relevant to later prosecution.” Davis v. Washington, 547

U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). In Michigan v. Bryant, 562 U.S.

344, 374-376, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), the Supreme Court elaborated on this

point, and explained that the evaluation should consider both the questions by police and

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the answers by the declarant, as well as any threat or risk of harm to others. In Bryant, the

fact that the perpetrator mortally wounded someone with a gun, had unknown motives, and

remained at large, sufficed to constitute an “ongoing emergency,” thus shifting the primary

purpose of the police’s questions to meeting this emergency and securing public safety, and

away from simply gathering evidence about past events. Id. at 374. Ultimately, the analysis

for determining the primary purpose of the police interrogation must be viewed objectively

and under the totality of the circumstances. State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-

5677, 984 N.E.2d 948, ¶ 156.

{¶12} Despite the state’s contention that Ms. Faulk’s statements did not trigger

Confrontation Clause protections, the circumstances surrounding her statements

demonstrate to the contrary. Initially, we note that the police had ascertained the course of

events before arriving at Ms. Faulk’s house by speaking with Mr. Jeffreys at his house and

were therefore aware that the incident had ended some time before (two to several hours

beforehand, depending upon who one believes). When they reached Ms. Faulk’s house, they

quickly realized who Mr. Smith was and handcuffed him, thereby neutralizing any

conceivable threat. Likewise, Mr. Smith’s apprehension diminished the seriousness of the

missing gun (i.e., this is not a case like Bryant where the perpetrator shot someone and

remained at large with the weapon). Additionally, Ms. Faulk knew the gun was no longer at

the residence and told police as much.

{¶13} Nor did the police focus on any exigent threat or safety concern in their

questioning. To the contrary, the police asked about what had happened, rather than what

was happening, procuring information about the past course of events, which then led to the

charges against Mr. Smith. Similarly, Ms. Faulk offered these statements in the presence of

the police and presumably under their protection. These factors all closely mimic the facts

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present in Hammon v. Indiana (consolidated with Davis v. Washington), which the

Supreme Court found persuasive in determining that the witness’s statements to police were

in fact “testimonial.” There, the court noted that the police arrived after a domestic violence

incident drew to a close (no crashing of objects or yelling was heard as the police

approached the house), the police questioned the victim about what happened, and there

was no immediate threat to the victim’s person. Davis at 829-830. The court contrasted

the victim in Davis, who was alone and in immediate danger when she made the 911 call,

with the victim in Hammon, who made the statements in the presence of police and was

thus protected (like Ms. Faulk). Id. at 831. The court determined that “[o]bjectively viewed,

the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible

crime—which is, of course, precisely what the officer should have done.” (Emphasis

omitted.) Id. at 830. Likewise here, objectively viewing the circumstances surrounding Ms.

Faulk’s interrogation, the primary purpose of the questioning was to gather facts regarding a

reported past crime for later prosecution and which, in fact, led to the formal arrest of Mr.

Smith.

{¶14} Having determined that the statements were testimonial in nature, they could

only be admissible if Ms. Faulk were present and available for cross-examination or if Mr.

Smith had a prior opportunity to cross-examine her. Crawford, 541 U.S. at 68, 124 S.Ct.

1354, 158 L.Ed.2d 177 (“Where testimonial evidence is at issue, however, the Sixth

Amendment demands * * * unavailibility and a prior opportunity for cross-examination.”).

As neither of these circumstances applied, the admission of her interview by police violated

the mandate of the Confrontation Clause, and the court erred in ruling to the contrary.

Much like hearsay errors, Confrontation Clause violations are reviewed for harmless error,

and since the harmless error analysis for both is indistinguishable, we collectively address

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those in Part C below. State v. Bell, 1st Dist. Hamilton No. C-160608, 2017-Ohio-8959, ¶ 14;

State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 22-24 (harmless

error analysis for constitutional and nonconstitutional rights is the same); Crim.R. 52(A)

(“Any error, defect, irregularity, or variance which does not affect substantial rights shall be

disregarded.”).

B.

{¶15} Even if Ms. Faulk’s statements did not run afoul of the Confrontation Clause,

we would find that they violated basic hearsay norms. Hearsay is defined as an out-of-court

statement “other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.” Evid.R. 801(C). Though

normally inadmissible, under certain enurmerated exceptions, such statements can be

entered into evidence as proof of the matter asserted. See, e.g., Evid.R. 803 and 804. As we

recently clarified, we review challenges to the admissibility of hearsay statements under an

abuse of discretion standard. HSBC Bank USA, Natl. Assn. v. Gill, 1st Dist. Hamilton No. C-

180404, 2019-Ohio-2814, ¶ 10.

{¶16} At trial, neither side disputed the hearsay nature of Ms. Faulk’s statements,

but instead quibbled about whether they fit within any of the recognized exceptions. The

state insisted that the statements constituted either “excited utterances” or “present sense

impressions,” either of which provides a pathway to admissibility, with defense counsel

maintaining that the statements fell outside the bounds of any exceptions. After evaluation

of these issues, the court ultimately admitted the statements as “an ongoing emotional

situation” exception to the rule against hearsay. While it is not exactly clear which exception

the court had in mind, on appeal the parties focused our attention on the “excited utterance”

or “present sense impression” exceptions to the rule against hearsay.

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{¶17} The excited utterance exception encompasses statements made while a

declarant is under the stress of a startling event. State v. Taylor, 66 Ohio St.3d 295, 303,

612 N.E.2d 316 (1993). Therefore, hearsay statements may be admissible as an excited

utterance when: 1) there is an event startling enough to cause “nervous excitement” in the

declarant, 2) the statement, though not strictly contemporaneous, was made before the

declarant had time for the nervous excitement to subside, 3) the statement related to the

startling event, and 4) the declarant personally observed the startling event. Evid.R.

803(2); Taylor at 320-321.

{¶18} As a policy matter, we deem excited utterances “reliable because they do not

entail an opportunity for the declarant to reflect, thus reducing the chance to fabricate or

distort the truth.” State v. Lukacs, 188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506,

¶ 20 (1st Dist.). Therefore, when statements come with the opportunity for reflective

thought, they cannot squeeze through the excited utterance exception to the rule against

hearsay. See State v. Harris, 163 Ohio App.3d 286, 2005-Ohio-4696, 837 N.E.2d 830, ¶ 7

(1st Dist.) (hearsay statement erroneously admitted as an excited utterance because

declarant, while still emotional at time of questioning, made statements clearly based on

reflective thought).

{¶19} Ultimately, Ms. Faulk’s responses to the police do not qualify as excited

utterances because they “lacked the spontaneous quality necessary for an excited utterance.”

See State v. Butcher, 170 Ohio App.3d 52, 2007-Ohio-118, 866 N.E.2d 13, ¶ 34 (11th Dist.).

Viewing the body-camera footage, the police officer asked Ms. Faulk what happened, she

hesitated, the officer then admonished her to “tell the truth,” and she finally, somewhat

reluctantly, responded that “it happened.” Ms. Faulk’s behavior gives no indication that the

spark of an exciting event was still alight at the time she spoke with the police. See, e.g.,

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State v. Henry, 11th Dist. Lake No. 2007-L-142, 2009-Ohio-1138, ¶ 148 (declarant’s

statements qualified as excited utterances when “his house was ablaze, he pulled out his

three grandchildren and unconscious wife from the residence, his son * * * was still in the

burning house, and he was nervous, crying, and rattled”); State v. Beasley, 153 Ohio St.3d

497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 180 (gunshot victim’s statements constituted

excited utterances after he was shot, still bleeding and scared when he made the

statements).

{¶20} For similar reasons, Ms. Faulk’s statements fail to qualify under the “present

sense impression” exception. Evid.R. 803(1) describes a present sense impression as “[a]

statement describing or explaining an event or condition made while the declarant was

perceiving the event or condition, or immediately thereafter unless circumstances indicate

lack of trustworthiness.” Though a statement made after an event can still pass muster as a

present sense impression, it must stand very close in time to the event. State v. Stafford,

158 Ohio App.3d 509, 2004-Ohio-3893, 817 N.E.2d 411, ¶ 66 (1st Dist.) (present sense

impression when statement was made “a matter of seconds after the accident”). As with an

excited utterance, the justification for the present sense impression exception is the

spontenaity of the statement and lack of time for the declarant’s reflection. State v.

Alexander, 1st Dist. Hamilton No. C-110035, 2012-Ohio-460, ¶ 18 (exception applied when

“[declarant] had no time to reflect or to fabricate the substance of the conversation”).

{¶21} Even considering the conflicting timeline of events at issue in this appeal, at a

minimum over two hours elapsed since the incident transpired and when Ms. Faulk spoke

with police. Mr. Wilson and Mr. Smith both testified that Mr. Jeffreys and Ms. Faulk

arrived at the house at some time around 11:30 p.m. and Mr. Jeffreys’s version of events

takes place several hours prior to this. The passage of time since the incident, coupled with

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Ms. Faulk’s behavior in the video, undermines the policy justifications for allowing such

statements into evidence, i.e., that statements made in close temporal proximity to the event

they describe bear a high degree of trustworthiness. See, e.g., State v. Essa, 194 Ohio

App.3d 208, 2011-Ohio-2513, 955 N.E.2d 429, ¶ 126 (8th Dist.) (“The key to the statement’s

trustworthiness is the spontaneity of the statement; it must be either contemporaneous with

the event or be made immediately thereafter.”). In sum, because the circumstances here do

not indicate that Ms. Faulk was under the strain or the stress of the event, nor did she speak

contemporaneously with the event, neither exception can apply. Finding that Ms. Faulk’s

statements satisfied neither the excited utterance nor present sense impresion exceptions,

we hold that the court therefore abused its discretion in admitting the statements.

C.

{¶22} In many cases, we must wrestle with the harmless error analysis by

comparing the impact of the improper evidence with the strength of the remaining evidence.

In this case, our task is rendered easier because the trial judge directly relied on Ms. Faulk’s

statements to find Mr. Smith guilty.

{¶23} Harmless error review requires: 1) that the defendant was prejudiced by the

admission of the improper evidence at trial, 2) that the appellate court believes that the

error was “not harmless beyond a reasonable doubt,” and 3) that after excising the improper

evidence, the remaining evidence overwhelmingly supports finding the defendant guilty.

Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, at ¶ 27-29.

{¶24} We find that the error here satisfies this standard. First, Mr. Smith was

prejudiced by the admittance of the evidence, particularly given the credibility issues with

Mr. Jeffreys. See State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 39

(erroneous admission of testimony prejudicial and impacted verdict when “there [was] a

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reasonable possibility that [the] testimony contributed to [the defendant’s] convictions.”).

And we need not speculate on the impact of the erroneously admitted evidence in light of

the court’s outright acknowledgement of its reliance on the evidence in reaching its verdict.

The court told defense counsel that Ms. Faulk’s statements in the video caused it to find Mr.

Smith guilty. Accordingly, we find that the error was prejudicial and not harmless beyond a

reasonable doubt.

{¶25} Finally, as to the third prong of the harmless error anlysis, issues with the

strength of the remaining evidence become apparent in the absence of Ms. Faulk’s

testimony. As no gun was ever recovered and the only other person present, Mr. Wilson,

testified that he never saw Mr. Smith with a gun, the state’s case was reduced to the dueling

stories of Mr. Jeffreys and Mr. Smith. Ms. Faulk’s statements essentially broke that tie in

the court’s mind, as it appears that it was not enamored with Mr. Jeffreys’s testimony.

Regardless, this is not a case in which, despite the improperly admitted evidence, there is

other overwhelming evidence of guilt. See Morris at ¶ 30 (affirming lower court’s decision

to grant a new trial, where the weakness of the remaining evidence prevented the court of

appeals from holding the error was harmless); State v. Arnold, 147 Ohio St.3d 138, 2016-

Ohio-1595, 62 N.E.3d 153, ¶ 53-54 (ample evidence existed for conviction outside of alleged

improper testimony). Thus, having determined that this error goes beyond “harmless,” we

find that the only remedy for the prejudice here is reversal and a new trial.

III.

{¶26} In addressing Mr. Smith’s second assignment of error, we note that our

determination that he is entitled to a new trial necessarily moots his weight of the evidence

challenge, but his sufficieny of the evidence challenge remains relevant. State v. Flannery,

1st Dist. Hamilton No. C-140426, 2015-Ohio-1360, ¶ 15 (weight of the evidence argument

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mooted when defendant was granted new trial, but not sufficiency argument because of the

Double Jeopardy Clause). We therefore evaluate whether there was sufficient evidence to

support a conviction for aggravated menacing.

{¶27} The aggravated menacing statute states that “[n]o person shall knowingly

cause another to believe that the offender will cause serious physical harm to the person or

property of the other person, the other person's unborn, or a member of the other person's

immediate family.” R.C. 2903.21(A). “Serious physical harm to persons” includes “any

physical harm that carries a substantial risk of death.” R.C. 2901.01(A)(5)(b). A challenge

to the sufficiency of the evidence asks whether, viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found all the elements of

the crime proven beyond a reasonable doubt. State v. Millikin, 1st Dist. Hamilton Nos. C-

030825 and C-030826, 2004-Ohio-4507, ¶ 15.

{¶28} At trial, Mr. Jeffreys indicated that Mr. Smith had come and knocked on his

car window with a gun and held it there. He also emphasized that Mr. Smith had directly

threatened to shoot him in a profanity-laced tirade. Mr. Jeffreys explained that he believed,

because of these actions, Mr. Smith was going to shoot him.

{¶29} This testimony sufficed, if believed, to sustain a finding of guilt for aggravated

menacing. “For the offense of aggravated menacing, ‘[i]t is sufficient to prove that the

victim, in the moment, believed the defendant to be in earnest and capable of acting.’ ” City

of Cleveland v. Reynolds, 8th Dist. Cuyahoga No. 105546, 2018-Ohio-97, ¶ 6, quoting State

v. Marcum, 7th Dist. Columbiana No. 10 CO 17, 2011-Ohio-6140, ¶ 37; see Flannery, 1st

Dist. Hamilton No. C-140426, 2015-Ohio-1360, at ¶ 17 (victim’s testimony that he believed

defendant would kill him coupled with circumstantial evidence supporting the statement

was sufficient to prove a charge of aggravated menacing). Thus, Mr. Jeffreys’s testimony

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that Mr. Smith threatened to kill him and he believed him, along with circumstancial

evidence, such as the fact that he reported the incident to police, sufficed, if believed, to

prove the elements of the crime of aggravated menacing. Therefore, Mr. Smith’s second

assignment of error, insofar as it addresses the sufficiency of the evidence, is overruled.

{¶30} Based on the foregoing, we sustain Mr. Smith’s first assignment of error and

overrule his second assignment of error, in regards to the sufficiency of the evidence

challenge. As his weight of the evidence challenge is moot, we do not address it. See App.R.

12(A)(1)(c). We accordingly remand this matter for a new trial consistent with the law and

this opinion.

Judgment reversed and cause remanded.

Mock, P.J., and Crouse, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.

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