[Cite as State v. Smith, 2020-Ohio-3994.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsNATHANIEL SMITH, JR. 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. John W. Wise, J. 

Hon. Earle E. Wise, Jr., J. 

Case No. 2019 CA 119 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 19 CR 0514 

JUDGMENT: Affirmed in Part; Reversed in Part and 

 Remanded 

DATE OF JUDGMENT ENTRY: August 6, 2020 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

WILLIAM C. HAYES JAMES A. ANZELMO 

PROSECUTING ATTORNEY 446 Howland Drive 

PAULA M. SAWYERS Gahanna, Ohio 43230 

ASSISTANT PROSECUTOR 

20 South Second Street, Fourth Floor 

Newark, Ohio 43055 
Licking County, Case No. 2019 CA 119 2

Wise, John, J. 

{¶1} Appellant, Nathaniel Smith, Jr., appeals the judgment entered by the Licking 

County Court of Common Pleas convicting him of violating R.C. 2919.25, domestic 

violence committed against his wife and his daughter, and R.C. 2903.21 aggravated 

menacing against Brett Showman. Appellant was sentenced to two years in prison for 

each domestic violence charge to run consecutive, and six months in prison for the 

aggravated menacing charge to run concurrent with the domestic violence charges. 

Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On August 28, 2019, Appellant motioned for access to legal materials. 

{¶3} On October 17, 2019, Appellant requested access to Lexis Nexis for legal 

research, or cases pertaining to State law, the State Constitution, and police tactics. 

{¶4} On October 24, 2019, a Motion Hearing was held where the trial court 

indicated that they did not have access to Lexis Nexis, and therefore, could not provide 

Appellant with access. They also indicated that Appellant had access to law books to do 

his research. 

{¶5} A jury trial occurred on November 13, 2019. Brittany Binder testified on June 

26, 2019, that she saw Appellant charge out of his house after his wife B.C. and her 

daughter S.C. During the altercation that followed, he went after B.C., but S.C. got in the 

way. He picked S.C. up and threw her around and struck her in the face. He then went 

after B.C., again with his hand cocked ready to strike her. Appellant was cursing and 

screaming the entire time. 
Licking County, Case No. 2019 CA 119 3

{¶6} Brett Showman, a neighbor who witnessed the incident, then testified that 

he also saw Appellant throw S.C. to the ground. After he witnessed the altercation he 

drove his car up to Appellant’s house to ask Appellant to calm down. Appellant took his 

attention off of B.C. and S.C. and asked Mr. Showman if he wanted to fight. Mr. Showman 

said he did not want to fight, that he just wants Appellant to calm down. At that point 

Appellant threatened to shoot Mr. Showman in the face. 

{¶7} During Appellant’s cross-examination of Mr. Showman, Appellant 

attempted to ask Mr. Showman about a prior misdemeanor charge for criminal 

endangering. Appellee objected, and the trial court sustained the objection. 

{¶8} Next, Patrolman Black of the Heath Police Department testified as the 

responding officer to the domestic disturbance. Patrolman Black identified Appellant’s 

certified copies of prior convictions for domestic violence from the 58th District Court of 

the State of Michigan, and the Licking County Court of Common Pleas. Patrolman Black 

identified Appellant as the individual involved in the domestic disturbance that day, and 

that he was familiar with Appellant, B.C., and S.C. He testified they all lived at the same 

address and he knew Appellant and B.C. were husband and wife. 

{¶9} During closing arguments, Appellant stated he knew where B.C. and S.C. 

are living. 

{¶10} The jury found Appellant guilty on all three charges. At sentencing, 

information was presented regarding Appellant’s criminal history. This history included 

four domestic violence convictions in ten years, and convictions for manslaughter, 

obstruction of justice, and falsification. The court acknowledged that it considered the 
Licking County, Case No. 2019 CA 119 4

purposes and principles of sentencing set out under Section 2929.11, and seriousness 

and recidivism factors set out in Section 2929.12. 

ASSIGNMENTS OF ERROR 

{¶11} On December 9, 2019, Appellant filed a notice of appeal. He herein raises 

the following three Assignments of Error: 

{¶12} “I. THE TRIAL COURT ERRED BY BARRING SMITH FROM 

PRESENTING A COMPLETE DEFENSE, IN VIOLATION OF HIS RIGHTS TO DUE 

PROCESS, UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED 

STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO 

CONSTITUTION, AND HIS RIGHT TO A FAIR TRIAL, AS GUARANTEED BY THE 

SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, 

ARTICLE I OF THE OHIO CONSTITUTION. 

{¶13} “II. SMITH’S CONVICTIONS ARE BASED ON INSUFFICIENT EVIDENCE, 

IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH 

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16 

OF THE OHIO CONSTITUTION. 

{¶14} “III. SMITH’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF 

THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF FIFTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND 

SECTIONS 1 & 16 OF THE OHIO CONSTITUTION. 

{¶15} “IV. THE TRIAL COURT UNLAWFULLY ORDERED SMITH TO SERVE 

CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS 

GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE 
Licking County, Case No. 2019 CA 119 5

FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION.” 

I. 

{¶16} In his First Assignment of Error, Appellant argues the trial court erred by 

barring him from presenting a complete defense by disallowing a recording of the victim, 

S.C., talking to the police which should have been admitted under Evid.R. 803(2), that he 

should have been allowed to cross examine Showman about his propensity toward 

violence, and Appellant should have been allowed access to computerized legal 

materials. We disagree. 

{¶17} A criminal defendant has a right to a fair opportunity to defend against the 

State’s accusations. Chambers v. Mississippi (1973), 410 U.S. 284, 294. However, this 

right is not absolute and applies only to evidence admissible under the rules of evidence. 

State v. Swann (2008), 119 Ohio St.3d 552. “Ordinarily, a trial court is vested with broad 

discretion in determining the admissibility of evidence in any particular case, so long as 

such discretion is exercised in line with the rules of procedure and evidence. Rigby v. 

Lake City (1991), 58 Ohio St.3d 269, 271. The appellate court must limit its review of the 

trial court’s admission or exclusion of evidence to whether the trial court abused its 

discretion. Id. The abuse of discretion standard is more than an error of judgment; it 

implies the court ruled arbitrarily, unreasonably, or unconscionably. Blakemore v. 

Blakemore (1983), 5 Ohio St.3d 217. 

{¶18} The Rule of Evidence 803(2) states: 

The following are not excluded by the hearsay rule, even though the 

declarant is available as a witness: 
Licking County, Case No. 2019 CA 119 6

*** 

(2) Excited Utterance. A statement relating to a startling event or 

condition made while the declarant was under the stress of excitement 

caused by the event or condition. 

{¶19} A four part test has been established in State v. Taylor to determine the 

admissibility under the Excited Utterance exception to the hearsay rule. State v. Taylor 

(1993), 66 Ohio St.3d 295. A trial court judge must find: 

(a) There was some occurrence startling enough to produce a 

nervous excitement in the declarant, which was sufficient to still his 

reflective faculties and thereby make his statements and declarations the 

unreflective and sincere expression of his actual impressions or beliefs, and 

thus render his statement or declaration spontaneous and unreflective, (b) 

that the statement or declaration, even if not strictly contemporaneous with 

its exciting cause, was made before there had been time for such nervous 

excitement to lose a domination over his reflective faculties, so that such 

domination continued to remain sufficient to make his statements and 

declaration the unreflective and sincere expression of his actual 

impressions and beliefs, (c) that the statement or declaration related to such 

startling occurrence or circumstances of such startling occurrence, and (d) 

that the declarant had an opportunity to observe personally the matters 

asserted in his statement or declaration. 

{¶20} Id.
Licking County, Case No. 2019 CA 119 7

{¶21} At issue in this case is the second requirement set forth in Taylor that the 

statement be made while the declarant is still under the stress of the startling occurrence. 

{¶22} In Taylor, the declarant was referred to as “really upset.” Taylor at 303. The 

Supreme Court goes on to state, “merely being upset clearly does not meet the standard 

of admissibility under Evid.R. 803(2).” Id.

{¶23} In the case sub judice, Appellant did not proffer any evidence about S.C.’s 

or B.C.’s demeanor, actions, or behavior to show that those statements were made under 

any type of stress, excitement, or fear. 

{¶24} Based on evidence in the record we cannot say the decision of the trial court 

was unreasonable. The evidence is insufficient to find that when S.C. made her 

statements to Officer Black, she was under the stress of excitement caused by the 

startling occurrence rather than a narrative based on reflective thought. Therefore, the 

trial court did not abuse its discretion by disallowing the victim’s out of court statements 

as hearsay. 

{¶25} Also under the First Assignment of Error, Appellant argues that because the 

statements were made to a police officer they should be admitted. The Supreme Court 

held, “not all out of court statements are hearsay. Hearsay is an out of court statement 

offered in court as evidence to prove the truth of the matter asserted.” State v. Blevins 

(1987), 10th Dist., 36 Ohio App.3d 147. 

{¶26} In Blevins, the State offered the out of court statement to provide information 

on how the police investigated the case. Id. As it was not offered for the truth of the 

mattered asserted, but to show the path of the investigation it is not considered hearsay. 

Id. 
Licking County, Case No. 2019 CA 119 8

{¶27} In the case before us, when asked what the purpose was for offering the 

recordings, Appellant answered, to “expose some type of truth.” As these out of court 

statements would be offered for the truth of the matter asserted, they are inadmissible 

hearsay. Therefore, the trial court did not abuse its discretion by disallowing the S.C.’s 

out of court statements as hearsay. 

{¶28} Appellant also argues under the First Assignment of Error, Appellant should 

have been permitted to cross examine Mr. Showman on his propensity toward violence. 

At trial Appellant attempted to question Mr. Showman about an incident which he 

threatened his girlfriend with a gun and to kill everybody, to show he was defending 

himself against the victim. This incident resulted in a misdemeanor criminal endangering 

charge. 

{¶29} When a defendant is claiming self-defense, he cannot introduce evidence 

of specific instances of a victim’s conduct to prove that the victim was the initial aggressor. 

State v. Barnes (2002), 94 Ohio St.3d 21. Accordingly, the trial court did not abuse its 

discretion in excluding the evidence of Mr. Showman’s prior conviction for criminal 

endangering. 

{¶30} Appellant further argues the trial court interfered with his right to present a 

complete defense by failing to provide him with access to computerized legal research. 

In support of his assertion, Appellant cites State, ex rel. Greene, v. Enright (1992), 63 

Ohio St.3d 729. However, this case only acknowledges that the State furnish trial 

transcripts as part of a full and effective defense on appeal. Id. The Supreme Court, citing 

a Sixth Circuit Court of Appeals decision, United States v. Smith, states the government 

does not have to provide access to a law library to defendants in a criminal trial who wish 
Licking County, Case No. 2019 CA 119 9

to represent themselves. State, ex rel. Greene, v. Enright, 63 Ohio St.3d 729 (citing United 

States v. Smith (6th Cir. 1990), 907 F.2d 42). 

{¶31} In the current case, the trial court made sure Appellant had access to law 

books and indicated that the court did not have Lexis-Nexis access which they could 

provide Appellant. Accordingly, the trial court did not abuse its discretion by not providing 

access to computerized legal research. 

{¶32} The First Assignment of Error is overruled. 

II., III. 

{¶33} In his Second and Third Assignments of Error, Appellant argues the jury’s 

guilty verdict is not supported by sufficient evidence and is against the manifest weight of 

the evidence. We disagree. 

{¶34} Sufficiency of evidence and manifest weight of the evidence are separate 

and distinct legal standards. State v. Thompkins (1997), 78 Ohio St.3d 380. Sufficiency 

of the evidence is a test of adequacy. Id. A sufficiency of the evidence standard requires 

the appellate court to examine the evidence in the light most favorable to the prosecution, 

to determine whether such evidence, if believed, would convince the average mind of the 

defendant’s guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259. 

{¶35} In contrast to the sufficiency of the evidence analysis, when reviewing a 

weight of the evidence argument, the appellate court reviews the entire record, weighing 

the evidence and all reasonable inferences, considers the credibility of witnesses and 

determines whether in resolving conflicts of 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 (1997), 78 Ohio St.3d 380. 
Licking County, Case No. 2019 CA 119 10

{¶36} Under a weight of the evidence argument, the appellate court will consider 

the same evidence as when analyzing the Appellant’s sufficiency of evidence argument. 

Appellant argues there was insufficient evidence to convict Appellant, and the jury clearly 

lost its way as their conviction of Appellant based on the total weight of the evidence 

caused a manifest miscarriage of justice. 

{¶37} The State filed a complaint alleging Appellant violated R.C. 2919.25, 

domestic violence, against B.C. and S.C., and 2903.21, aggravated menacing, against 

Brett Showman. 

{¶38} R.C. 2919.25 states: 

(A) No person shall knowingly cause or attempt to cause physical 

harm to a family or household member. 

(B) No person shall recklessly cause serious physical harm to a

family or household member. 

(C) No person, by threat of force, shall knowingly cause a family or 

household member to believe that the offender will cause imminent physical 

harm to the family or household member. 

{¶39} R.C. 2903.21 states: “No person shall knowingly cause another to believe 

that the offender will cause serious physical harm to the person or property of the other 

person.” 

{¶40} At trial, the State produced evidence that, in violation of R.C. 2919.25, 

Appellant attempted to cause physical harm to a family or household member, and R.C. 

2903.21, Appellant knowingly caused Brett Showman to believe that Appellant would 

cause him serious physical harm. Brittany Binder and Brett Showman both testified that 
Licking County, Case No. 2019 CA 119 11

Appellant threw S.C. to the ground, went after B.C. with his hand cocked as if the strike 

her, and threatened to shoot Brett Showman. Ms. Binder further testified that she saw 

Appellant strike S.C. in the face. Patrolman Black testified that he was familiar with 

Appellant, B.C., and S.C. He knows B.C. and S.C. to be husband and wife, and that all 

three reside at the same address. We find the State presented sufficient evidence, if 

believed by the jury, that Appellant attempted to cause physical harm to family or 

household members, B.C. and S.C. We find the State presented sufficient evidence, if 

believed by the jury, that Appellant knowingly caused Brett Showman to believe Appellant 

would cause him serious physical harm. Our review of the entire record fails to persuade 

us that the jury lost its way and created a manifest miscarriage of justice. Appellant was 

not convicted against the manifest weight of the evidence. 

{¶41} Appellant’s Second and Third Assignment of Errors are overruled. 

IV. 

{¶42} In his Fourth Assignment of Error, Appellant argues the trial court unlawfully 

ordered Smith to serve consecutive sentences in contravention of R.C. 2929.14(C)(4). 

We agree. 

{¶43} Appellant claims the trial court erred in sentencing him to consecutive 

sentences. Specifically, Appellant claims the trial court failed to comply with the 

requirements of R.C. 2929.14. The standard of review is whether clear and convincing 

evidence exists that the trial court imposed consecutive sentences contrary to law. R.C. 

2953.08. 

{¶44} R.C. 2929.14(C)(4) states the following: 
Licking County, Case No. 2019 CA 119 12

 (4) If multiple prison terms are imposed on an offender for convictions 

of multiple offenses, the court may require the offender to serve the prison 

terms consecutively if the court finds that the consecutive service is 

necessary to protect the public from future crime or to punish the offender 

and that consecutive sentences are not disproportionate to the seriousness 

of the offender’s conduct and to the danger the offender poses to the public, 

and if the court also finds any of the following: 

 (a) The offender committed one or more of the multiple offenses 

while the offender was awaiting trial or sentencing, was under a sanction 

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised 

Code, or was under post-release control for a prior offense. 

 (b) At least two of the multiple offenses were committed as part of 

one or more courses of conduct, and the harm caused by two or more of the 

multiple offenses so committed was so great or unusual that no single prison 

term for any of the offenses committed as part of any of the courses of 

conduct adequately reflects the seriousness of the offender’s conduct. 

 (c) The offender’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime 

by the offender. 

{¶45} “In order to impose consecutive terms of imprisonment, a trial court is 

required to make the findings mandated by R.C. Section 2929.14(C)(4) at the sentencing 

hearing and incorporate its findings into its sentencing entry, but it has no obligation to 
Licking County, Case No. 2019 CA 119 13

state the reasons to support its findings.” State v. Payton, 5th Dist., 28-Ohio-3864 at ¶21, 

quoting State v. Bonnell, 140 Ohio St.3d 209, (syllabus 2014). 

{¶46} A review of the November 13, 2019 sentencing hearing transcript indicates 

the trial court did not meet the requirements of R.C. 292914(C)(4) and Payton, and the 

state concedes the issue stating, “while those factors are not specifically stated by the 

trial court at the sentencing hearing, the trial court certainly considered those factors.” 

However, the trial court must state these findings during the sentencing hearing, as well 

as incorporate them into the judgment entry. T at 247-254. Appellee’s brief at 18. 

{¶47} Appellant's Fourth Assignment of Error is granted. 

{¶48} For the foregoing reasons, the judgment of the Court of Common Pleas of 

Licking County, Ohio, is affirmed in part and reversed in part. The sentence is vacated 

and the matter is remanded to said court for rehearing on the issue of consecutive 

sentencing. 

By: Wise, John, J. 

Hoffman, P. J., and 

Wise, Earle, J., concur. 

 

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