[Cite as State v. Isham, 2014-Ohio-1689.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, : 

 CASE NO. CA2013-07-123 

 Plaintiff-Appellee, : 

 O P I N I O N 

 : 4/21/2014 

 - vs - 

 : 

MARIO ISHAM, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM MIDDLETOWN MUNICIPAL COURT 

Case No. 13CRB02457 

Ashley Bretland, Middletown City Prosecutor, Susan H. Cohen, One Donham Plaza, 

Middletown, Ohio 45042, for plaintiff-appellee 

Matthew Dixon, 16 North Main Street, P.O. Box 44933, Middletown, Ohio 45044, for 

defendant-appellant 

 

 M. POWELL, J.

{¶ 1} Defendant-appellant, Mario Isham, appeals his convictions in the Middletown 

Municipal Court for two counts of aggravated menacing. For the reasons stated below, we 

affirm the decision of the trial court. 

{¶ 2} On May 9, 2013, Isham was arrested for his alleged involvement in a 

disturbance between himself, Mariah Bush, and Scott Ballard. Isham was charged with two 
Butler CA2013-07-123

 - 2 - 

counts of aggravated menacing in violation of R.C. 2903.21. 

{¶ 3} A bench trial was held on October 14, 2013 where several witnesses testified 

regarding the incident. Bush and Ballard testified that on May 9, 2013, Isham came to their 

home on Vance Street twice and threatened to harm their family on each occasion. During 

the second incident, Isham threatened them with a gun. Middletown Police Officer Ken 

Mynhier also testified and explained that he was an investigating officer at the scene. 

Mynhier stated that during his investigation he spoke to Jamal Grant, who had allegedly 

witnessed the second incident. Grant provided Mynhier with a statement and Mynhier 

testified to the contents of this statement. Isham's attorney objected to the admission of the 

testimony on the basis that it was inadmissible hearsay. The court overruled the objections 

and allowed the testimony. 

{¶ 4} At the conclusion of trial, the court found Isham guilty of both counts of 

aggravated menacing. In regards to finding Isham guilty, the court reasoned, 

Well I think the issue's clear. Either Ms. Bush and Mr. Ballard 

are liars or Mr. Isham's a liar so it's one or the other. I can't really 

consider some of the officer's testimony because it was hearsay 

so I believe the complainants are telling the truth. I think that Mr. 

Isham did threaten 'em. * * * But I think he did so I'll make a 

finding of guilty in both cases. * * * 

Isham was sentenced to ten days in jail on each charge, to be served consecutively. 

{¶ 5} Isham now appeals, asserting a sole assignment of error: 

{¶ 6} THE TRIAL COURT ERRED BY OVERRULING DEFENDANT'S TRIAL 

COUNSEL'S OBJECTION TO THE ADMISSION OF THE HEARSAY STATEMENT OF 

JAMAL GRANT REFERENCED IN THE TESTIMONY OF OFFICER MYNHIER. 

{¶ 7} As a preliminary matter, the state argues this appeal should be dismissed 

because it was not timely filed. The state contends Isham's notice of appeal was untimely 

because it was filed on July 15, 2013, 31 days after the judgment entry of conviction. App.R. 
Butler CA2013-07-123

 - 3 - 

3(A) provides that "an appeal as of right shall be taken by filing a notice of appeal with the 

clerk of the trial court within the time allowed by Rule 4." Pursuant to App.R. 4(A), a notice of 

appeal must be filed within 30 days of the entry of the judgment or order sought to be 

appealed.

{¶ 8} Isham's judgment entry of conviction is dated June 14, 2013. The notice of 

appeal filed by Isham contains two time stamps. The first time stamp indicates the notice 

was filed on June 19, 2013 in the Middletown Municipal Court. The second time stamp 

states that the notice was filed on July 15, 2013 in the Butler County Clerk of Courts and 

Butler County Court of Appeals. Pursuant to App.R. 3, Isham was only required to file his 

notice of appeal with the clerk of the trial court within 30 days of the judgment entry. 

Therefore, Isham's appeal is timely as he filed his notice of appeal with the clerk of the trial 

court, the Middletown Municipal Court, within the time specified by App.R. 3(A) and 4(A). 

See App.R. 3(E) (failure of trial court clerk to serve notice of appeal to appellate clerk does 

not affect the validity of the appeal). 

{¶ 9} We now turn to the merits of the appeal. Isham challenges the admission of 

Officer Mynhier's testimony regarding Grant's statement. Isham maintains that this statement 

was inadmissible hearsay and prejudicial. Specifically, Isham contends that the admission of 

Grant's statement was prejudicial because the case turned solely on the credibility of the 

witnesses at trial and the statement bolstered the other witnesses' credibility. Isham also 

argues that the trial court's discussion of the statement shows that it considered it in 

evaluating the credibility of the witnesses. 

{¶ 10} "It is well-established that the admission or exclusion of evidence rests within 

the sound discretion of the trial court." State v. Jones, 12th Dist. Butler No. CA2012-04-077, 

2013-Ohio-654, ¶ 54; Beard v. Meridia Huron Hosp., 105 Ohio St.3d 237, 2005-Ohio-4787, ¶ 

20. Absent an abuse of discretion, an appellate court will not disturb a trial court's ruling as 
Butler CA2013-07-123

 - 4 - 

to the admissibility of evidence. State v. Issa, 93 Ohio St.3d 49, 64 (2001). 

{¶ 11} According to Evid.R. 801(C), 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." Hearsay is not admissible unless it falls within one of the permissible 

hearsay exceptions. Evid.R. 802. 

{¶ 12} At trial, Officer Mynhier testified that after the disturbance, Isham was located 

and arrested at Grant's home. Mynhier interviewed Grant about the incident. Mynhier 

testified, 

Umm [Grant] had stated to me that Mr. Isham had told him that 

there was some stuff going on over on Vance Street and that he 

needed a ride back over there. He said that [Isham] got out of 

the vehicle with the pellet gun that we recovered, but he did not 

see or hear what happened after Mr. Isham had got out of his 

vehicle, but he did drive him to Vance Street. 

Mynhier also testified that Grant stated that Isham got out of the vehicle at Vance Street with 

a gun, which Grant later identified as the gun recovered by police. 

{¶ 13} The state concedes and we agree that the statement made by Grant to Officer 

Mynhier was hearsay. Grant's statement was made out-of-court and Officer Mynhier testified 

to the contents of that statement. The statement was offered for its truth as it was to provide 

further evidence that Isham went to the home of Bush and Ballard with a gun to threaten 

them. Therefore, the statement constituted inadmissible hearsay and the court abused its 

discretion in its admission. 

{¶ 14} As we have determined that the testimony in question was admitted in error, we 

must next decide whether the trial court's error was harmless or prejudicial. State v.Sims, 

12th Dist. Butler No. CA2007-11-300, 2009-Ohio-550, ¶ 16. The Confrontation Clause of the 

United States Constitution prohibits the admission of a testimonial, out-of-court statement 

made by a witness unless the witness is unavailable and the defendant had a prior 
Butler CA2013-07-123

 - 5 - 

opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68, 124 

S.Ct. 1354 (2004). 

{¶ 15} However, the admission of a statement in violation of the Confrontation Clause 

is harmless if the reviewing court finds beyond a reasonable doubt that the error did not 

contribute to the verdict. Sims at ¶ 16, citing State v. Johnson, 71 Ohio St.3d 332, 339 

(1994). Error is harmless if there is no reasonable possibility that the evidence may have 

contributed to the accused's conviction. State v. Burden, 5th Dist. Stark No. 2012-CA-00074, 

2013-Ohio-1628, ¶ 66, citing State v. Lytle, 48 Ohio St.2d 391 (1976), paragraph three of the 

syllabus, vacated on other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978). There must be 

other overwhelming evidence of guilt or some other indicia that the error did not contribute to 

the conviction. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728 (1969); 

State v. Ferguson, 5 Ohio St.3d 160, 166 (1983), fn. 5. 

{¶ 16} While the admission of Grant's statement was error, the error was harmless as 

the record established beyond a reasonable doubt that the statement did not contribute to 

the convictions. Although, the trial court initially allowed Officer Mynhier's testimony 

regarding Grant's statement, the record indicates that the court ultimately determined that 

some of Mynhier's testimony was hearsay and properly excluded it when making its guilty 

determination. At the conclusion of the trial, the court specifically stated that it disregarded 

"some of the officer's testimony because it was hearsay." This statement clearly referred to 

Officer Mynhier's testimony regarding Grant's statement as this was the only objection 

defense counsel made on the basis of hearsay. 

{¶ 17} Additionally, the remaining evidence constitutes overwhelming proof of Isham's 

guilt. The testimony of Bush and Ballard regarding Isham's actions on May 9, 2013 were 

consistent. Their testimony that Isham used a gun to threaten their family during the second 

incident was corroborated by the gun found at the home where Isham was arrested. While 
Butler CA2013-07-123

 - 6 - 

Bush and Ballard both identified the gun as a "shot gun" and the weapon recovered from the 

scene was a "bb gun," Officer Mynhier explained that the "bb gun" recovered could resemble 

a shot gun. Accordingly, we do not find that the hearsay testimony contributed to Isham's 

convictions as it appears the trial court disregarded such testimony and there was 

overwhelming evidence to support his convictions. 

{¶ 18} Isham's sole assignment of error is overruled. 

{¶ 19} Judgment affirmed. 

 S. POWELL, P.J., and PIPER, J., concur.