State v. Gaston

[Cite as State v. Gaston, 2020-Ohio-6919.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2020-L-011
- vs - :

TIMOTHY M. GASTON, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 2019 CR 000737.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Vanessa R. Clapp, Lake County Public Defender, and Justin J. Mackin, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
Appellant).

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, Timothy M. Gaston (“Gaston”), appeals a judgment in the Lake

County Court of Common Pleas, following a jury trial, sentencing him to 30 months in

prison for domestic violence. We affirm the trial court’s judgment.

{¶2} On August 9, 2019, Gaston was indicted on two counts—Domestic

Violence, in violation of R.C. 2919.25(A) (F-3); and Felonious Assault, in violation of
R.C. 2903.11(A)(1) (F-2). The following facts were adduced at trial through the

evidence and testimony presented:

{¶3} On June 29, 2019, multiple calls were made to 911 regarding a domestic

assault at an apartment in Painesville, Ohio. Dispatcher Keith Chaffee received the

calls, and he dispatched police and EMS units to the residence. Officer Kevin Love

assisted the primary officer, Matthew Collins (“Collins”), in responding to the call, as well

as EMT Thomas Konitsky with the Painesville Fire Department. All three men, as well

as Dispatcher Chaffee, testified at trial. The victim did not testify and was not present

during the trial.

{¶4} Upon arriving at the residence, the two officers began investigating the

scene while EMT Konitsky attended to the victim. The report submitted by the EMT

reflected the injuries of the victim, and photographs admitted by the trial court reflect a

large bump on the victim’s forehead, scratches on her hands, and light bruising on her

throat. In the apartment, photographs of the kitchenette showed there was a broken

lamp and a wooden chair with one broken leg. There was also a wig on the floor.

There was ground beef on the floor next to the wig.

{¶5} During Collins’ testimony, he recounted several statements made by the

victim, over the objection of defense counsel, regarding what happened before she

called 911. Collins stated that the victim told him Gaston punched her in the head

several times, hit her with a chair and lamp, and threw ground beef at her after a dispute

over whether to thaw the ground beef. She also told Collins that she experienced a loss

of consciousness and woke up to Gaston choking her. The victim initially refused

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several times to be transported to the hospital for evaluation but eventually changed her

mind.

{¶6} In addition to the testimony, the state offered as evidence a partially

redacted transcript of a jail call between Gaston and the victim. Various inadmissible

statements related to the victim’s alleged injuries and previous instances of violence

between the couple were redacted, and other statements remaining in the transcript

served only to provide context for the jury. The transcript was offered following the filing

of a “Motion of Intent to Use Statements” filed by the state, in which it argued that

Gaston was responsible for the victim’s nonappearance at trial. The state argued

Gaston and the victim plotted to ensure her whereabouts were unknown in an attempt

to help Gaston’s defense; therefore, the state maintained the statements were

admissible hearsay pursuant to Evid.R. 804(B)(6) as forfeiture by wrongdoing. The

state indicated that it had reviewed dozens of jail calls between the parties to reach this

conclusion; however, these calls were not presented to the court or the jury at trial, and

they were not admitted as evidence.

{¶7} Further, the state argued that the transcript of the jail call containing the

victim’s statements were not being offered for the truth of the matter asserted but rather

for context to present Gaston’s own statements against interest, in which he admitted

guilt for the domestic assault. Defense counsel filed a motion in limine to prohibit

statements made by the victim from being presented at trial, but the motion was denied

by the trial court and the transcript was admitted. The following pertinent statements

were made by Gaston during the call:

BABY I’M SO SORRY[.]

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 WHATEVER HAPPENED I’M SO SORRY[.]

I SWEAR TO GOD ON MY DADDY ALL I REMEMBER IS YOU
KEPT TRYING TO HIT ME WITH THAT DAMN LAMP AND I—

ALL I KEPT TELLING YOU TO LEAVE THE FUCK ALONE BUT
IT’S COOL IT’S OVER NOW GLAD YOU ACCEPTED MY CALL
GOT A CHANCE TO TALK TO YOU[.]

THERE’S NO POSSIBLE WAY I DID ALL THAT DON’T KNOW
THAT HAPPENED BUT IT HAPPENED[.]

I REMEMBER A TUSSLING AND ALL THIS AND THAT[.]

NO I DON’T REMEMBER HITTING YOU WITH NO DAMN
CHAIR[.]

I AIN’T NEVER TRY TO PUT MY HANDS ON YOU[.] THAT DAMN
ALCOHOL THAT HAD ME DELUSIONAL[.] ALL I REMEMBER IS
A DAMN GROUND BEEF AND A DAMN LAMP[.] I DO
REMEMBER A CHAIR[.] I THINK I REMEMBER THROWING A
CHAIR[.] THROWING A CHAIR ON THE GROUND TRYING TO
BREAK IT LIKE BECAUSE I WAS SO FUCKING MAD[.] BUT NOT
TRYING TO HURT YOU[.] I WOULD NEVER TRY TO HURT
YOU[.]

I KNOW I HAD TO BE THE ONE WHO DID IT[.] I KNOW YOU
DIDN’T DO IT TO YOURSELF[.] l’M SORRY BABY[.]

I LOVE YOU AND l’M SORRY[.]

YOU KNOW DAMN WELL I DIDN’T MEAN TO DO NOTHING TO
HURT YOU LIKE THAT[.]

{¶8} At the end of the state’s case-in-chief, the defense made an oral motion

for acquittal under Criminal Rule 29, which was denied. The defense then rested

without presenting any witnesses. After deliberations, the jury found Gaston guilty of

one count of domestic violence and acquitted him on the felonious assault count. A

sentencing hearing was held on December 23, 2019. At the hearing, the trial court

sentenced Gaston to 30 months in prison.

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 {¶9} Gaston filed a timely notice of appeal and raises three assignments of

error for our review. We consider the assignments out of order.

{¶10} Gaston’s first assignment of error states:

THE TRIAL COURT VIOLATED THE DEFENDANT-APPELLANT’S
CONSTITUTIONAL RIGHT TO FAIR TRIAL AND DUE PROCESS
AS GUARANTEED [sic] SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTIONS 5 AND 10, ARTICLE I OF THE OHIO CONSTITUTION
WHEN IT ADMITTED INADMISSIBLE HEARSAY TESTIMONY.

{¶11} Under his first assignment, Gaston presents three issues for review:

[1.] The trial court erred to the prejudice of the defendant-appellant
by overruling his objections to the admission of hearsay testimony
of witness [victim’s name redacted], citing the Forfeiture by
Wrongdoing Exception in Evid.R. 804(B)(6).

[2.] The trial court erred to the prejudice of the defendant-appellant
by overruling his objections to the admission of hearsay testimony
of witness [victim’s name redacted] as it was not offered as an
excited utterance exception under Evid.R. 803(2).

[3.] The trial court erred to the prejudice of the defendant-appellant
by overruling his objections to the admission of hearsay testimony
of witness [victim’s name redacted], finding that it was not offered
for the truth of the matter asserted.

{¶12} Gaston’s first assignment of error challenges the admissibility of testimony

of the victim presented to the jury at trial through witness testimony of Collins, as well as

a redacted jail call between Gaston and the victim. If the testimony meets the definition

of hearsay, it need only be admissible under one of the exceptions to the prohibition on

hearsay to be admissible. Also, to be admissible, hearsay testimony must not violate

the Confrontation Clause of the Sixth Amendment. Accordingly, we address the three

issues presented in combination for each category of testimony and discuss the

Confrontation Clause thereafter.

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 {¶13} Hearsay “is a 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). Hearsay is generally inadmissible unless it falls into one of

the applicable exceptions. Evid.R. 802.

{¶14} Although we apply an abuse of discretion standard to some evidentiary

rulings, the trial court does not have discretion to admit hearsay “except as otherwise

provided by the Constitution of the United States, by the Constitution of the State of

Ohio, by statute enacted by the General Assembly not in conflict with a rule of the

Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme

Court of Ohio.” Evid.R. 802; see also Jack F. Neff Sand & Gravel, Inc. v. Great Lakes

Crushing, Ltd., 11th Dist. Lake No. 2012-L-145, 2014-Ohio-2875, ¶23, citing State v.

DeMarco, 31 Ohio St.3d 191, 195 (1987). Therefore, we apply a de novo review to

determine whether the testimony here constitutes hearsay. Id., citing John Soliday Fin.

Group, LLC v. Pittenger, 190 Ohio App.3d 145, 150, 2010-Ohio-4861 (5th Dist.).

Testimony of Officer Collins

{¶15} Collins testified as to statements made by the victim implicating Gaston as

the person who caused the physical injuries he observed on her head, neck, and hands

during his investigation. These are out of court statements made by the victim and

offered to prove that Gaston had committed domestic violence; therefore, the

statements constitute hearsay and would be inadmissible at trial unless excepted under

the rules of evidence.

{¶16} One exception to the prohibition on hearsay is a “present sense

impression.” A present sense impression is defined as “[a] statement describing or

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explaining an event or condition made while the declarant was perceiving the event or

condition, or immediately thereafter unless circumstances indicate lack of

trustworthiness.” Evid.R. 803(1); State v. Urso, 195 Ohio App.3d 665, 2011-Ohio-4702,

¶68 (11th Dist.); State v. Foster, 11th Dist. Trumbull No. 97-T-0094, 1998 WL 684834,

*5 (Sept. 25, 1998).

{¶17} Here, the victim’s testimony was describing and explaining the attack that

led to her calling 911, as well as a neighbor’s call after hearing the altercation. She

made the statements while still appearing “frightened” and “frustrated,” according to

testimony. Also, officers testified they arrived at the apartment within a few minutes

after the 911 call, which gave the victim little time to fabricate the account of events she

gave Collins. There were no circumstances indicating a lack of trustworthiness. Her

recounting of the domestic assault also matches all of the evidence and observations

made by the officers documenting the apartment through photographs and written

reports and reflects the injuries Collins observed while interviewing her.

{¶18} Therefore, the testimony given by Collins containing the statements made

by the victim was a present sense impression of her experience immediately following

an assault. Because this testimony falls under the present sense impression exception

to the prohibition on hearsay, the additional issues raised by Gaston on appeal

regarding Collins’ testimony as hearsay need not be addressed.

Jail Call

{¶19} Pursuant to Evid.R. 804, certain hearsay exceptions exist only when the

declarant is unavailable as a witness. For instance, hearsay may be admissible under

the “forfeiture by wrongdoing” exception: “[a] statement offered against a party if the

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unavailability of the witness is due to the wrongdoing of the party for the purpose of

preventing the witness from attending or testifying. * * * ” Evid.R. 804(B)(6). Also, a

statement is not hearsay by definition if it is an admission by a party-opponent, e.g.,

when it is “offered against a party and is the party’s own statement, in either an

individual or a representative capacity.” Evid.R. 801(D)(2)(a). Finally, statements made

for a purpose other than proving the truth of the matter asserted, such as to provide

context, are nonhearsay and may be admissible at trial. Evid.R. 801(C); see, e.g., State

v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶213-217 (concluding testimony was

admissible because it was offered for the nonhearsay purpose of providing context for

the defendant’s reactions and responses).

{¶20} In the present matter, we initially note that the statements made by Gaston

on the jail call are not hearsay, pursuant to Evid.R. 801(D)(2)(a), as they are his own

statements offered against him.

{¶21} The state offered no evidence supporting a finding that Gaston secured

the unavailability of the victim at trial. Thus, the “forfeiture by wrongdoing” exception

does not apply to the statements made by the victim on the jail call. However, we

conclude that the victim’s statements are also nonhearsay because they were offered to

provide context for Gaston’s responses, which would not have made sense to the jury in

isolation. Whether or not her statements were true was not the state’s purpose for

introducing them as evidence. Evid.R. 801(C); McKelton, supra, at ¶213-217; see also,

e.g., United States v. Henderson, 626 F.3d 326, 337 (6th Cir.2010). Therefore, the

statements made during the jail call are not hearsay, and the additional issues raised by

Gaston on appeal regarding the jail call need not be addressed.

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 Confrontation Clause

{¶22} Regardless of whether statements are admissible under the exceptions to

the hearsay prohibition, they may be rendered inadmissible if in violation of the Sixth

Amendment to the United States Constitution, which provides: “In all criminal

prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses

against him.” The United States Supreme Court determined the Confrontation Clause

“applies to ‘witnesses’ against the accused—in other words, those who ‘bear

testimony,’” even when the “testimonial” statements were made out of court. Crawford

v. Washington, 541 U.S. 36, 51 (2004). To determine whether a statement is

testimonial in nature, the proper inquiry is “‘whether a reasonable person in the

declarant’s position would anticipate his statement being used against the accused in

investigating and prosecuting the crime.’” State v. Metter, 11th Dist. Lake No. 2012-L-

029, 2013-Ohio-2039, ¶35, quoting United States v. Cromer, 389 F.3d 662, 675 (6th

Cir.2004).

{¶23} In Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court again

emphasized that the admission of a hearsay statement is a violation of the

Confrontation Clause only if the statement is “testimonial.” The Court determined that

the Confrontation Clause is not applicable to statements made “to enable police

assistance to meet an ongoing emergency.” Id. at 822. The Supreme Court, in

affirming the trial court’s decision to admit 911 statements, explained:

Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance
to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to

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 establish or prove past events potentially relevant to later criminal
prosecution.

Id. (footnote omitted).

{¶24} The victim’s primary purpose for the statements made to Collins was to

report the domestic assault and her injuries resulting therefrom. The statements were

taken by Collins, a police officer on the scene of an assault that occurred immediately

prior to his arrival and within five minutes of the 911 call. There is no indication from the

record or Collins’ testimony that the victim intended to use her recitation of the facts

regarding the assault to the officer as a means to testify regarding the events she

experienced in real time. Therefore, the statements made by the victim to Collins were

nontestimonial in nature and their admission did not violate the Confrontation Clause.

{¶25} With regard to the jail call, we have concluded the statements made by the

victim during that call were not presented for the truth of the matter asserted. Because

of this, the statements are not hearsay. As the Ohio Supreme Court has held, when

statements are nonhearsay, they do not implicate the Confrontation Clause. See State

v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, ¶171 & 175, citing McKelton, supra, at

¶186; see also State v. Brown, 11th Dist. Lake No. 2012-L-007, 2013-Ohio-1099, ¶50,

citing Crawford, supra, and Bruton v. United States, 391 U.S. 123 (1968) (“The United

States Supreme Court has held that a defendant’s right to confrontation is violated

where the state offers, for their truth, any portions of statements of a co-defendant made

to police that directly or indirectly inculpate the defendant. The statements, however,

must be hearsay to trigger the Bruton rule.”) (emphasis added).

{¶26} For all of the foregoing reasons, the trial court did not violate Gaston’s

rights under the Confrontation Clause when it admitted statements made by the victim

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and allowed them to be presented to the jury. The statements made by the victim

during the investigation conducted by Collins were excepted under the rules prohibiting

the introduction of hearsay and were nontestimonial in nature. The jail call was

nonhearsay and thus not subject to scrutiny under the Confrontation Clause.

{¶27} Gaston’s first assignment of error is without merit.

{¶28} Gaston’s third assignment of error states:

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT-APPELLANT WHEN IT RETURNED A VERDICT OF
GUILTY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶29} In determining whether the verdict was against the manifest weight of the

evidence, “‘[t]he court reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the jury clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin,

20 Ohio App.3d 172, 175 (1st Dist.1983). A judgment of a trial court should be reversed

as being against the manifest weight of the evidence “‘only in the exceptional case in

which the evidence weighs heavily against the conviction.’” Id., quoting Martin, supra,

at 175.

{¶30} There is a presumption that the findings of the trier of fact are correct,

because the trier of fact has had the opportunity “to view the witnesses and observe

their demeanor, gestures and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio

St.3d 77, 80 (1984), citing 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at

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191-192 (1978) (“* * * [I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every reasonable

presumption must be made in favor of the judgment and the finding of facts. * * * If the

evidence is susceptible of more than one construction, the reviewing court is bound to

give it that interpretation which is consistent with the verdict and judgment, most

favorable to sustaining the verdict and judgment.”).

{¶31} The jurors in the present matter did not lose their way in weighing the

evidence and finding that Gaston committed the crime of Domestic Violence in violation

of R.C. 2919.25(A). Testimony was presented from the time of the 911 call reporting

the altercation through the investigation and arrest of Gaston early the next morning.

The jury was given photographs of the injuries suffered by the victim and a transcript of

a jail call between Gaston and the victim. During that call, Gaston makes several

contradicting statements, but he ultimately admits to attacking the victim multiple times

with items found at the scene and photographed by officers. Further, the jury chose to

acquit Gaston on the Felonious Assault charge, which further supports our conclusion

that the jury fully considered the evidence and testimony presented, was in the best

position to determine whether Gaston was guilty of the offenses charged, and did not

clearly lose its way in evaluating the case presented by the state.

{¶32} Gaston’s third assignment of error is without merit.

{¶33} Gaston’s second assignment of error states:

THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT-APPELLANT WHEN IT DENIED HIS MOTION FOR
ACQUITTAL MADE PURSUANT TO CRIM.R. 29(A).

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 {¶34} Pursuant to Crim.R. 29(A), “The court on motion of a defendant or on its

own motion, after the evidence on either side is closed, shall order the entry of a

judgment of acquittal of one or more offenses charged in the indictment, information, or

complaint, if the evidence is insufficient to sustain a conviction of such offense or

offenses.” Crim.R. 29(A) requires the trial court to grant a motion for judgment of

acquittal if the evidence is insufficient to sustain a conviction on the charged offense(s).

“Thus, when an appellant makes a Crim.R. 29 motion, he or she is challenging the

sufficiency of the evidence introduced by the state.” State v. Patrick, 11th Dist. Trumbull

Nos. 2003-T-0166 & 2003-T-0167, 2004-Ohio-6688, ¶18.

{¶35} “A challenge to the sufficiency of the evidence raises a question of law as

to whether the prosecution met its burden of production at trial.” State v. Bernard, 11th

Dist. Ashtabula No. 2016-A-0063, 2018-Ohio-351, ¶56, citing Thompkins, supra, at 390

and State v. Windle, 11th Dist. Lake No. 2010-L-033, 2011-Ohio-4171, ¶25. “‘In

reviewing the record for sufficiency, “[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.”’” Id.,

quoting State v. Smith, 80 Ohio St.3d 89, 113 (1997), quoting State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus. Where there is insufficient evidence, a

conviction will be vacated. Id. at ¶55, citing State v. Rose, 11th Dist. Lake No. 2014-L-

086, 2015-Ohio-2607, ¶32.

{¶36} A finding that a judgment is not against the manifest weight of the

evidence necessarily means the judgment is supported by sufficient evidence. State v.

Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶32. Having

13
determined that Gaston’s conviction is not against the manifest weight of the evidence,

it follows that it is supported by sufficient evidence.

{¶37} Gaston’s second assignment of error is without merit.

{¶38} The judgment of the Lake County Court of Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.

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