[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 Comm on 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 43055Licking County, Case No. 2019 CA 119 2
Wise, John, J. {¶1} Appellant, Nathaniel Smith, Jr., appeals the judgment entered b y the Licking County Court of Common Pleas convicting him of violating R.C. 2 919.25, 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 month s 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 th is appeal are as follows. STATEMENT OF THE FACTS AND CASE {¶2} On August 28, 2019, Appellant motioned for access to legal mate rials. {¶3} On October 17, 2019, Appellant requested access to Lexis Nexis for legal research, or cases pertaining to State law, the State Constitut ion, 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 the refore, 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 tes tified 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 af ter B.C., but S.C. got in the way. He picked S.C. up and threw her around and struck her in t he face. He then went after B.C., again with his hand cocked ready to strike her. App ellant 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 test ified that he also saw Appellant throw S.C. to the ground. After he witnes sed 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 want ed 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 f or criminal endangering. Appellee objected, and the trial court sustained t he 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 fro m the 58th District Court of the State of Michigan, and the Licking County Court of Common P leas. 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 testifie d 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. a nd S.C. are living. {¶10} The jury found Appellant guilty on all three charges. At senten cing, information was presented regarding Appellant’s criminal histor y. This history included four domestic violence convictions in ten years, and conviction s for manslaughter, obstruction of justice, and falsification. The court acknowledg ed that it considered theLicking County, Case No. 2019 CA 119 4 purposes and principles of sentencing set out under Section 292 9.11, 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 her ein 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 DU E PROCESS, UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITE D STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO CONSTITUTION, AND HIS RIGHT TO A FAIR TRIAL, AS GUARANTEED BY T HE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 1 6, ARTICLE I OF THE OHIO CONSTITUTION. {¶13} “II. SMITH’S CONVICTIONS ARE BAS ED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEE NTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 1 6 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 AN D 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 PROCES S GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AN D THELicking 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 co urt 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 und er Evid.R. 803(2), that he should have been allowed to cross examine Showman about his pro pensity toward violence, and Appellant should have been allowed access to comp uterized legal materials. We disagree. {¶17} A criminal defendant has a right to a fair opportunity to defen d 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 u nder the rules of evidence. State v. Swann (2008), 119 Ohio St.3d 552. “Ordinarily, a trial court is veste d 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 procedur e 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 judgm ent; it implies the court ruled arbitrarily, unreasonably, or unconscio nably. 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 exci tement 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 hear say 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 st ill his reflective faculties and thereby make his statements and declar ations the unreflective and sincere expression of his actual impressions o r beliefs, and thus render his statement or declaration spontaneous and unrefl ective, (b) that the statement or declaration, even if not strictly contemp oraneous with its exciting cause, was made before there had been time for suc h nervous excitement to lose a domination over his reflective faculties, so that such domination continued to remain sufficient to make his statement s and declaration the unreflective and sincere expression of his actu al impressions and beliefs, (c) that the statement or declaration related to such startling occurrence or circumstances of such startling occurre nce, 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 doe s 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 sta tements were made under any type of stress, excitement, or fear. {¶24} Based on evidence in the record we cannot say the decision of t he trial court was unreasonable. The evidence is insufficient to find that whe n S.C. made her statements to Officer Black, she was under the stress of excite ment caused by the startling occurrence rather than a narrative based on reflectiv e thought. Therefore, the trial court did not abuse its discretion by disallowing the vic tim’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 admitte d. 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 a sserted.” State v. Blevins (1987), 10 th Dist., 36 Ohio App.3d 147. {¶26} In Blevins , the State offered the out of court statement to provide infor mation 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 offe ring 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 asserte d, they are inadmissible hearsay. Therefore, the trial court did not abuse its discretio n by disallowing the S.C.’s out of court statements as hearsay. {¶28} Appellant also argues under the First Assignment of Error, Appe llant should have been permitted to cross examine Mr. Showman on his propens ity toward violence. At trial Appellant attempted to question Mr. Showman about an i ncident 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 misdeme anor 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 v ictim 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 con viction for criminal endangering. {¶30} Appellant further argues the trial court interfered with his ri ght to present a complete defense by failing to provide him with access to compu terized 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 S tate 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 wishLicking 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 (6 th Cir. 1990), 907 F.2d 42). {¶31} In the current case, the trial court made sure Appellant had ac cess to law books and indicated that the court did not have Lexis-Nexis acc ess which they could provide Appellant. Accordingly, the trial court did not abuse i ts 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 a gainst 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 f avorable 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 r eviewing a weight of the evidence argument, the appellate court reviews th e entire record, weighing the evidence and all reasonable inferences, considers the credi bility of witnesses and determines whether in resolving c onflicts of evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the convict ion 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 wi ll consider the same evidence as when analyzing the Appellant’s sufficiency of evidence argument. Appellant argues there was insufficient evidence to convict App ellant, and the jury clearly lost its way as their conviction of Appellant based on the tota l weight of the evidence caused a manifest miscarriage of justice. {¶37} The State filed a complaint alleging Appellant violated R.C. 29 19.25, domestic violence, against B.C. and S.C., and 2903.21, aggravat ed menacing, against Brett Showman. {¶38} R.C. 2919.25 states: (A) No person shall knowingly cause or attempt to cause physica l 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 fami ly or household member to believe that the offender will cause immine nt physical harm to the family or household member. {¶39} R.C. 2903.21 states: “No person shall knowingly cause another t o believe that the offender will cause serious physical harm to the perso n 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 house hold member, and R.C. 2903.21, Appellant knowingly caused Brett Showman to believe th at Appellant would cause him serious physical harm. Brittany Binder and Brett Show man both testified thatLicking County, Case No. 2019 CA 119 11 Appellant threw S.C. to the ground, went after B.C. with his ha nd 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 th at 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 s ufficient evidence, if believed by the jury, that Appellant attempted to cause physica l harm to family or household members, B.C. and S.C. We find the State presented su fficient evidence, if believed by the jury, that Appellant knowingly caused Brett Sho wman 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 miscarriag e 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 c ourt unlawfully ordered Smith to serve consecutive sentences in contravention o f R.C. 2929.14(C)(4). We agree. {¶43} Appellant claims the trial court erred in sentencing him to con secutive sentences. Specifically, Appellant claims the trial court faile d 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 senten ces 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 c onvictions of multiple offenses, the court may require the offender to ser ve the prison terms consecutively if the court finds that the consecutive ser vice 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 offens es 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 p art of one or more courses of conduct, and the harm caused by two or m ore 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 co urses of conduct adequately reflects the seriousness of the offender’s c onduct. (c) The offender’s history of criminal conduct demonstrates t hat 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 toLicking County, Case No. 2019 CA 119 13 state the reasons to support its findings.” State v. Payton, 5 th 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 certainl y considered those factors.” However, the trial court must state these findings during the s entencing hearing, as well as incorporate them into the judgment entry. T at 247-254. Appe llee’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 i ssue of consecutive sentencing.

By: Wise, John, J. Hoffman, P. J., and Wise, Earle, J., concur.

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