State v. Jones

[Cite as State v. Jones, 2022-Ohio-1936.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 110742
v. :

KELLY JONES, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: June 9, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-641989-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristen L. Hatcher, Assistant Prosecuting
Attorney, for appellee.

Thomas A. Rein,* for appellant.

* Jonathan N. Garver is appointed for the limited purpose
of post-decision representation.

EILEEN A. GALLAGHER, P.J.:

Defendant-appellant Kelly Jones (“Appellant”) appeals his

convictions rendered after a jury trial. Appellant contends that the trial court erred
by admitting testimonial evidence in violation of the Confrontation Clause. We

sustain appellant’s first assignment of error, reverse the judgment of the trial court

and remand this case to the trial court.

I. Factual and Procedural Background

On July 24, 2019, a Cuyahoga County Grand Jury returned a true bill

of indictment against Appellant charging him with aggravated arson with a notice of

prior conviction and a repeat violent offender specification; attempted murder with

a notice of prior conviction and a repeat violent offender specification; felonious

assault with a notice of prior conviction and a repeat violent offender specification;

aggravated arson with a notice of prior conviction and a repeat violent offender

specification; arson and domestic violence.

On September 11, 2019, the trial court referred Appellant to

Northcoast Behavioral Healthcare for restoration to competency subsequent to a

determination by the court psychiatric clinic, and a stipulation by the parties, that

he was incompetent to stand trial. Prior to the commencement of trial on June 16,

2021, the court noted that the parties had stipulated to a report from Northcoast

Behavioral Healthcare determining Appellant was competent to stand trial.

The Appellant executed a waiver of his jury trial rights with respect to

the repeat violent offender specifications and notices of prior conviction.

The day before trial, Appellant filed a motion in limine seeking the

exclusion of the victim’s statements identifying Appellant as the perpetrator arguing

those statements were inadmissible hearsay and that the admission of those
statements would violate Appellant’s right to confront witnesses insofar as the state

did not intend to call the victim to testify at trial. The defense argued that, although

medical records of Ernestine Dumas (“Dumas”) had been provided by the state in

discovery, there is no suggestion in these records that Dumas suffers from

Alzheimer’s or dementia, and was, therefore, unavailable. There is nothing in the

record before us that explains Dumas’ failure to testify at the trial. The trial court

denied the motion.

Dumas suffered serious burns over roughly 16.5 percent of her body.

She would later state that she suffered those burns as a result of an assault by

Appellant in connection with Appellant’s efforts to burn down her house. After

suffering these burns, Dumas left her house and went across the street to her

neighbor’s house asking for a ride to the hospital. The neighbor, Jeraldine

Campbell, called 911 on her phone and then gave the phone to Dumas. Campbell

testified that she believed that the Appellant had been living with Dumas based on

how often she had seen him enter, and leave, Dumas’ house.

On July 12, 2019, Leticia Rice (“Rice”) was working as a Cleveland

police dispatcher. Rice authenticated state’s exhibit No. 3, an audio recording of a

911 phone call she took on July 12, 2019:

Dumas: I need police and ambulance this guy that I let stay in my house
went crazy and throwed gasoline or something on me. Trying to burn
my mother’s house down * * *.

Rice: He threw gasoline on you?

Dumas: Yes, set me on fire.
 Rice: He’s . . . OK . . . He set you on fire already ma’am?

Dumas: Yes, ma’am and I’m out now. But it’s my face, arms and chest.

Rice: Ok. Ok. What’s your address? Tell me?

Dumas: . . .2526 E. 80th Street

Rice: 2526 E. 80th?

Dumas: Yes

Rice: OK so you calling from someone . . . listen you’re calling from
someone else’s phone?

Dumas: Right.

Rice: Is he still inside of the house?

Dumas: He was when I left.

Rice: OK. What’s your name?

Dumas: Ernestine Dumas. . . I gotta get to the hospital.

Rice: Stay on the line with me. OK you said you were not on fire
anymore.

Dumas: I say I gotta get to a hospital.

Rice: OK. What’s the guy’s name that did it?

Dumas: Kelly Jones

The trial court admitted this audio tape as an excited utterance, over

Appellant’s objection.

James Donnellon (“Donnellon”) testified that on July 12, 2019, he

was working as a Cleveland police officer. Donnellon testified that he and his

partner were the first officers to arrive on the scene at Dumas’ house. From the

outside of the house, he could see that a front window was broken and there was
glass scattered on the front porch. Donnellon waited for additional units to arrive to

clear the house. While backup units were en route, Donnellon went across the street

to the home of Jeraldine Campbell and spoke with Dumas. His body camera did not

record the conversation clearly and the statements made by Dumas, at that time,

were provided to the jury through the testimony of Donnellon.

Police officers entered Dumas’ house and determined that no one was

present. In the room with a broken exterior window, officers found empty bottles of

isopropyl alcohol and a lamp with a burned shade.

Mark DePhillips (“DePhillips”) testified that he investigated the fire

as a lieutenant of the Cleveland Fire Department’s Arson Investigation Unit. He

testified that the burns in the house were consistent with the use of an accelerant.

He told police at the scene that the fire did not constitute aggravated arson because

he did not see any physical harm to the occupied structure itself. DePhillips also

testified that he was unaware that Dumas had been burned when he told police

officers that there was no aggravated arson.

Charles Jones1 testified that he is Dumas’ nephew. He stated that

Dumas may have had memory loss moments, but she was fairly independent. He

also testified that Dumas was not diagnosed with dementia or Alzheimer’s at the

time of the incident. According to Mr. Jones, Dumas was “living alone

independently.”

1 No relation to Appellant.
 Terencita Jones-Green2 testified that Dumas is her aunt. She testified

about the burn injuries that Dumas suffered and the medical treatment that was

being administered to her. She also testified that Dumas was occasionally forgetful,

but that Dumas had no diagnosis of dementia or Alzheimer’s and that she was

unaware of Appellant’s living situation.

Christopher Brandt, a burn surgeon at MetroHealth, testified that he

first treated Dumas several days after her admission to the hospital. According to

Dr. Brandt, Dumas suffered burns on 16.5 percent of her body and that he and his

partners performed multiple surgical procedures on her during her approximate six-

week hospitalization.

Cleveland Police Officer Kenneth Potchatek testified that Dumas had

been the subject of a Crisis Intervention Team referral due to psychological issues.

Specifically, she was referred for wrongfully believing people were living in her attic.

On the bodycam footage, Officer Potchatek is heard discussing Dumas as having

serious dementia and stating that the fire was likely accidental. At trial, he testified

that he was later convinced that her account of the assault was true because it was

lucid and every detail she gave “played out.” He became the primary officer on the

case because he had previous experience with Dumas.

We recognize the value of body cameras but the video, alone, should

be generally sufficient and admissible in trials. The exhibits offered at trial in this

2 No relation to Appellant.
case included oral narratives by the later-testifying police officers while on scene.

This is inadmissible testimonial hearsay.

Cleveland Police Detective David Sims testified that he was the

detective assigned to investigate Dumas’ allegations and visited her at the

MetroHealth Hospital Emergency Department. Sims testified that Dumas

remembered him from a burglary investigation which he had handled

approximately two years earlier. Sims further testified that she identified “Kelly” as

a subject. According to Sims, Dumas was in pain but was “well aware of what

happened, was able to speak clearly.” This is inadmissible testimonial hearsay.

Cleveland Police Officer Jacob Strehle responded with his partner,

Officer Potchatek, to Dumas’ home and, later, to MetroHealth where he interviewed

Dumas. Strehle testified that Dumas related that she had been burned by her live-

in tenant, “Kelly Jones.” Strehle did not record that statement. This is inadmissible

testimonial hearsay.

The jury returned a guilty verdict on the aggravated arson, felonious

assault, arson and domestic violence charges. The jury found Appellant not guilty

of attempted murder and aggravated arson.

The trial court then found Appellant guilty of the notices of prior

conviction and repeat violent offender specifications on both Count 1, aggravated

arson and Count 3, felonious assault. Appellant was sentenced to 11 years on Count

1 and ten years for the repeat violent offender specification to Count 1; eight years
for Count 3; 18 months for Count 5 and time served for Count 6. The court also

sentenced Appellant to five years’ mandatory postrelease control.

The trial court advised Appellant of the application of the Reagan

Tokes Law. Under that law, the sentence for Count 1 (11 years) was the minimum

sentence and the maximum sentence would be 16 years and six months. In total,

the trial court sentenced Appellant to 30 years and six months. The sentence could

be lengthened under Reagan Tokes up to 36 years.

Appellant appeals and assigns the following errors for our review:

Assignment of Error I: The trial court erred in the admission of hearsay
evidence and testimonial statements, in violation of Appellant’s right
to confront his accusers, as protected by the Sixth Amendment of the
United States Constitution.

Assignment of Error II: The trial court erred by failing to grant a
judgment of acquittal, pursuant to Crim.R. 29(a), on the charges, and
thereafter entering a judgment of conviction of those offenses as those
charges were not supported by sufficient evidence, in violation of
defendant’s right to due process, as guaranteed by the Fourteenth
Amendment to the United States Constitution.

Assignment of Error III: Appellant’s convictions are against the
manifest weight of the evidence.

Assignment of Error IV: The trial court erred by ordering convictions
and a separate sentence for separate counts because the trial court
failed to make a proper determination as to whether those offenses are
allied offenses pursuant to R.C. 2941.25 and they are part of the same
transaction under R.C. 2929.1.

Assignment of Error V: The trial court erred by ordering Appellant to
serve a consecutive sentence without making the appropriate findings
required by R.C. 2929.14 and HB 86.

Assignment of Error VI: The trial court erred by imposing an indefinite
prison sentence upon Appellant which is unconstitutional.
 Assignment of Error VII: The trial court erred by allowing the State to
re-open its case to present additional evidence after all verdicts had
already been rendered.

II. Argument and Authorities

We need only address Appellant’s first assignment of error since that

is dispositive of this appeal. The trial court admitted the victim’s statements that

were made about an hour after the assault, and it was determined that everyone was

safe. Accordingly, we find that these statements are testimonial, and their

admission violated the Confrontation Clause of the U.S. Constitution.

Assignment of Error I: The trial court erred in the admission of hearsay
evidence and testimonial statements, in violation of Appellant’s right
to confront his accusers, as protected by the Sixth Amendment of the
United States Constitution.

Appellant contends that the trial court erred in admitting the

statements of Dumas because their admission violated Appellant’s right to be

confronted with the witnesses against him under the Sixth and Fourteenth

Amendments to the United States Constitution. The Sixth Amendment to the

United States Constitution provides in relevant part that “[i]n all criminal

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

witnesses against him [or her].” The United States Supreme Court held that the

Confrontation Clause bars “admission of testimonial statements of a witness who

did not appear at trial unless he [or she] 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).
 1. For Confrontation Clause purposes, a testimonial statement includes
one made “under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a
later trial.” (Crawford v. Washington, 541 U.S. 36, 52, 124 S.Ct. 1354,
158 L.Ed.2d 177 (2004), followed.)

2. In determining whether a statement is testimonial for Confrontation
Clause purposes, courts should focus on the expectation of the
declarant at the time of making the statement; the intent of a
questioner is relevant only if it could affect a reasonable declarant’s
expectations.

State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, paragraphs

one and two of the syllabus. “We apply a de novo standard of review to evidentiary

questions raised under the Confrontation Clause.” State v. Bowleg, 8th Dist.

Cuyahoga Nos. 100263 and 100264, 2014-Ohio-1433, ¶ 10. At trial, the linchpins of

the prosecution’s case were the poor audio recordings and videorecorded statements

of the victim identifying Appellant as the attacker, which were only provided

through the testifying officers.

The state introduced an audio recording of the victim’s phone call to

911. During this conversation, Dumas relates that she had been burned by an

assailant at her house and that she was now present at a neighbor’s house. During

this call, Dumas also stated the assault happened about an hour ago and agreed that

everybody was safe and out of danger. The trial court expressed doubt as to Dumas’

estimate of the timeframe, but the only evidence in the record to that fact is Dumas’

statement of the time lapse. Dumas also stated that the assailant was in her house

when she left and when asked by the operator: “What’s the name of the guy that did

it?” Dumas replied that his name is “Kelly Jones.” The state also elicited testimony
from the neighbor, Jeraldine Campbell, who testified that Dumas said that

Appellant “had thrown fire on her[.]”

The state also introduced bodycam footage of Officer Donnellon. In

that footage and audio, Donnellon asks Dumas who burned her, and Dumas

identified Appellant as the man who burned her. The footage shows that Dumas

was receiving care from paramedics when the police questioned her.

The United States Supreme Court in Davis v. Washington, 547 U.S.

813, 830, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), identified four factors that could

be used to identify testimonial statements: “(1) that the interrogation sought to

determine what had happened, not what was happening, (2) that there was no

ongoing emergency, (3) that the interrogation was not needed to resolve an

emergency, and (4) that the interrogation was ‘formal[.]’” State v. Arnold, 126 Ohio

St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 15, citing Davis.

Dumas made the statements after she left her house and agreed that

everyone was safe and out of danger. Any “ongoing emergency had ended.” State

v. Cooper, 8th Dist. Cuyahoga No. 96635, 2012-Ohio-355, ¶ 7; State v. Smith, 2019-

Ohio-3257, 141 N.E.3d 590, ¶ 12 (1st Dist.). Dumas’ statements were elicited by two

law enforcement representatives: the 911 operator and Officer Donnellon, after the

emergency had ended. These police personnel were “not seeking to determine (as

in Davis) ‘what is happening,’ but rather ‘what happened.’” Davis at 830. These

recordings functioned as “a weaker substitute for live testimony.” Id. at 828. As in
Smith, the police “were aware that the incident had ended some time before.” Smith

at ¶ 12.

The first three Davis factors all weigh in favor of finding these

statements testimonial. The only factor in favor of finding these statements as

nontestimonial is their informality. This single factor is not sufficient to render

otherwise testimonial statements nontestimonial.

This case is distinguishable from earlier cases from this district

concerning bodycam footage. In Cleveland v. Johnson, 8th Dist. Cuyahoga No.

107930, 2019-Ohio-3286, ¶ 19-20, the declarant made her statements “shortly” after

the altercation and she stated that the perpetrator could be destroying her house

when she talked with the police. The Johnson Court determined that the admission

of the subsequent conversation with the police was harmless error. Id. at ¶ 21.

In State v. Tomlinson, 8th Dist. Cuyahoga No. 109614, 2021-Ohio-

1301, ¶ 43, the declarant made statements from the scene of the crime with the

reasonable apprehension that the assailant may return.

In the case at bar, Dumas made her first statement “an hour” after the

assault, from a different location, with no reason to conclude that the assailant

would follow her. In any event, Dumas was in the custody of, and receiving care

from, paramedics in the bodycam footage.

These recordings are testimonial. As a result, the admission of these

recordings violated Appellant’s rights under the Confrontation Clause.
 The statements of Dumas made on the night of the assault are not the

only statements admitted by the trial court. Officers Strehle and Potchatek as well

as Detective Sims all testified about subsequent statements made by Dumas

concerning the assault. Dumas made these statements while she was receiving

medical treatment at both MetroHealth and at a rehabilitation center.

Detective Sims testified that he talked with Dumas several times in

the months following the assault and that she gave the same or similar account of

events. Detective Sims was the lead detective on the case questioning the victim well

after the underlying assault. Dumas, according to Detective Sims was “well aware

and able to speak clearly” when he repeatedly questioned her. She then should have

understood that these statements accusing Appellant of assault happened in the

context of investigation and prosecution. Davis, 547 U.S. at 826, 126 S.Ct. 2266, 165

L.Ed.2d 224 (“Interrogations by law enforcement officers fall squarely within the

class of testimonial hearsay”); Crawford, 541 U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d

177 (Testimonial statements include “at a minimum * * * police interrogations”).

Accordingly, the admission of the statements of Dumas recounted by Officers

Strehle and Potchatek and Detective Sims all violated Appellant’s Confrontation

Clause rights.

There is no support in the record nor any suggestion that these

subsequent statements could have been excited utterances nor that they could be

determined to be nontestimonial given they were made to officers and detectives

that were expressly eliciting statements in connection with an investigation.
 In the context of this case, we cannot find the admission of Dumas’

testimonial statements harmless beyond a reasonable doubt. See State v. Cutlip, 9th

Dist. Medina No. 03CA0118-M, 2004-Ohio-2120, ¶ 17-18 (finding that error is not

harmless as there was no evidence other than the evidence that should have been

excluded).

The purpose of police body cameras is to record events in which law

enforcement officers are involved. The Bureau of Justice Statistics in 2018

published a report which reflects the main reasons for law enforcement agencies to

acquire body cameras were to improve officer safety, increase evidence quality,

reduce civilian complaints and reduce agency liability.

Body cameras and their attendant audio recordings, should not, and

cannot, supplant or bolster the in-court testimony of witnesses. They cannot be used

to supplement the testimony of any witness and certainly cannot be used as a

substitute for the testimony of any witness.

We sustain Appellant’s first assignment of error. We reverse the

judgment of the trial court and remand this case for a new trial. Based on our

resolution of the first assignment of error, we need not address the remaining

assignments of error.

It is ordered that the appellant recover of appellee costs herein taxed.

The court finds that there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Common Pleas Court to carry this judgment into execution.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, PRESIDING JUDGE

LISA B. FORBES, J., and
EMANUELLA D. GROVES, J., CONCUR