[Cite as State v. Finklea, 2019-Ohio-2199.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

OLIVER FINKLEA 

 Appellant 

C.A. No. 29069 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR-2017-12-4295 

DECISION AND JOURNAL ENTRY 

Dated: June 5, 2019 

 

CALLAHAN, Judge. 

{¶1} Appellant, Oliver Finklea, appeals his conviction for domestic violence. This 

Court affirms. 

I. 

{¶2} On the morning of December 5, 2017, a woman in the Kenmore neighborhood of 

Akron witnessed an incident that she believed to be domestic violence involving a neighbor, T.P. 

An Akron police officer responded to the neighbor’s 911 call and learned from T.P. that the 

suspect had grabbed her, torn her shirt, and slapped her. The suspect fled on foot, and T.P. 

identified Mr. Finklea, her fiancé, as the assailant. While searching the neighborhood, the officer 

located Mr. Finklea in the men’s restroom in the public library, placed him under arrest, and 

transported him back to the scene of the incident. Another Akron police officer took a written 

statement from T.P. in which she identified Mr. Finklea as the assailant and described his 

conduct. 
2 

 

{¶3} Mr. Finklea was charged with domestic violence in violation of R.C. 2919.25(A), 

a third-degree felony when the offender has two or more previous convictions of domestic 

violence under R.C. 2919.25(D)(4).1 Before trial, the State filed notice of its intention to 

introduce the victim’s written statement in lieu of her testimony under Evid.R. 804(B)(6) 

because it anticipated that she would not appear in response to a subpoena as a result of Mr. 

Finklea’s influence. The victim did not appear, and the trial court admitted her written statement 

along with a recorded phone call that Mr. Finklea made to her from jail after his arrest. Mr. 

Finklea represented himself at trial, and the jury found him guilty of domestic violence. The trial 

court sentenced him to three years in prison. Mr. Finklea appealed, and his three assignments of 

error are rearranged for purposes of discussion. 

II. 

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT ALLOWED 

THE READING INTO THE RECORD OF A RECORDED STATEMENT OF 

THE VICTIM IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 

6TH AND 14TH AMENDMENTS TO THE U.S. CONSTITUTION AND 

ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION. 

{¶4} In his first assignment of error, Mr. Finklea argues that the trial court erred by 

permitting the State to read the victim’s written statement into the record at trial. Specifically, 

Mr. Finklea argues that the State did not prove that the victim was “unavailable” for purposes of 

Evid.R. 804(A), that her failure to appear was not a result of his wrongdoing under Evid.R. 

804(B)(6), and that admission of the statement violated his rights under the Confrontation Clause 

of the United States Constitution. This Court disagrees. 

 1

 R.C. 2919.25 was amended effective March 22, 2019, by the Reagan Tokes Law, 

Am.Sub.S.B. No. 201, 2018 Ohio Laws 157. Those changes are not at issue in this appeal. 
3 

 

{¶5} Although hearsay evidence is not generally admissible, it may be admitted when 

provided for by the rules of evidence. See Evid.R. 802. Under Evid.R. 804(B)(6), an out-ofcourt statement is admissible when a witness is unavailable as a result of wrongdoing by the 

party against whom the statement is offered. This Court reviews the decision to admit statements 

under Evid.R. 804(B)(6) for an abuse of discretion. See State v. Hand, 107 Ohio St.3d 378, 

2006-Ohio-18, ¶ 92, citing State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the 

syllabus, and State v. Landrum, 53 Ohio St.3d 107, 114 (1990).2 An abuse of discretion is 

present when a trial court’s decision “‘“is contrary to law, unreasonable, not supported by 

evidence, or grossly unsound.”’” State v. A.V., 9th Dist. Lorain No. 18CA011315, 2019-Ohio1037, ¶ 6, quoting Menke v. Menke, 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting 

Tretola v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 25. 

{¶6} One circumstance that renders a declarant “unavailable” for purposes of Evid.R. 

804 exists when the declarant “is absent from the hearing and the proponent of the declarant’s 

statement has been unable to procure the declarant’s attendance * * * by process or other 

reasonable means.” Evid.R. 804(A)(5). The proponent of the evidence has the burden of 

demonstrating unavailability. State v. Keairns, 9 Ohio St.3d 228, 231-232 (1984). “[A]s a 

predicate to the introduction of hearsay against a defendant in a criminal prosecution, the 

Confrontation Clause normally requires a showing that the hearsay declarant is unavailable 

despite reasonable efforts made in good faith to secure his presence at trial.” Id. at 230. Unless 

 2

 In State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 97, the Ohio Supreme 

Court applied a de novo standard of review. The case upon which the Supreme Court relied in 

doing so, however, clarifies that rulings based on evidentiary rules are reviewed for an abuse of 

discretion, but decisions involving application of the Confrontation Clause are reviewed de novo. 

See U.S. v. Henderson, 626 F.3d 326, 333 (6th Cir.2010). See also State v. Miller, 9th Dist. 

Lorain No. 14CA010556, 2016-Ohio-4993, ¶ 12, 19. 
4 

 

the party against whom an out-of-court statement is offered concedes that the witness is 

“unavailable,” the proponent of the statement must demonstrate unavailability based on 

testimony that describes the efforts made to secure the witness’s attendance. Id. at 231-232 and 

paragraph three of the syllabus. When a defendant does not affirmatively concede the 

unavailability of a witness but also fails to object on the grounds that the State has not 

demonstrated unavailability as provided by Keairns, that argument is forfeited for purposes of 

appeal. State v. Wright, 1st Dist. Hamilton No. C-150715, 2017-Ohio-1568, ¶ 25-27. 

{¶7} On March 26, 2018, the State filed notice of its intention to introduce an out-ofcourt statement made by T.P. under Evid.R. 804(B)(6). During a pretrial conference on March 

30, 2018, the State reiterated this intention, representing that the assistant prosecuting attorney 

had been “personally * * * informed” that T.P. was not going to appear at trial. Mr. Finklea 

objected that the State had not timely served the notice and maintained that his wrongdoing was 

not the cause of T.P.’s absence. While Mr. Finklea did not affirmatively concede that T.P. was 

unavailable for trial, the assumption that she would refuse to testify despite being subpoenaed 

was implicit in his comments. Mr. Finklea did not voice any objections before the State 

proceeded to introduce evidence of his wrongdoing under Evid.R. 804(B)(6) at trial. Mr. Finklea 

did not object on either occasion that the State failed to demonstrate that T.P. was unavailable, 

and he has forfeited all but plain error for purposes of appeal. See Wright at ¶ 25-27. Mr. 

Finklea has not argued plain error, and this Court declines to construct a plain error argument on 

his behalf. See State v. Rivera, 9th Dist. Lorain No. 18CA011263, 2019-Ohio-62, ¶ 24. 

{¶8} Mr. Finklea’s second argument is that the trial court erred by determining that 

T.P. failed to appear as a result of his wrongdoing under Evid.R. 804(B)(6). In order to admit 

statements under the forfeiture-by-wrongdoing exception, the State must demonstrate by a 
5 

 

preponderance of the evidence that wrongdoing by the defendant caused the witness’s 

unavailability and that obtaining the unavailability of the witness was one purpose for the 

wrongdoing. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, at ¶ 96, citing State v. Fry, 125 

Ohio St.3d 163, 2010-Ohio-1017, ¶ 106, and Hand, 107 Ohio St.3d 378, 2006-Ohio-18, at ¶ 84. 

See also Giles v. California, 554 U.S. 353, 361 (2008). The wrongdoing at issue need not be a 

criminal act. State v. Austin, 7th Dist. Mahoning No. 16 MA 0068, 2019-Ohio-1185, ¶ 35, citing 

2001 Staff Note, Evid.R. 804(B)(6) and Giles at 374. Consequently, the act of pressuring a 

witness not to testify may constitute wrongdoing for purposes of Evid.R. 804(B)(6). See State v. 

Miller, 2016-Ohio-4993 ¶ 16. See also State v. Harper, 6th Dist. Lucas No. L-15-1310, 2017-

Ohio-1395, ¶ 30. 

{¶9} In support of the position that T.P.’s out-of-court statement was admissible, the 

State introduced the recording of a call placed by Mr. Finklea from the Summit County Jail after 

his arrest, on December 9, 2017. In that call, Mr. Finklea repeatedly encouraged T.P. to tell the 

police that they had not been in a relationship and that he did not live with her. When T.P. 

recalled that Mr. Finklea had smacked her, he consistently recharacterized his behavior, 

emphasizing that anything that could be considered domestic violence would be his third offense. 

Throughout the phone call, he pleaded with T.P. to prepare an affidavit that would contradict her 

written statement and insisted that she refuse to come to any court appearances. 

{¶10} Mr. Finklea maintains that this was insufficient to demonstrate forfeiture by 

wrongdoing because T.P. testified during grand jury proceedings after the conversation occurred. 

It appears from the record that T.P. did, in fact, do so—and that in doing so, she changed her 

allegations against Mr. Finklea. The fact that she testified before the grand jury in that manner, 

however, is not inconsistent with the State’s position that T.P. followed Mr. Finklea’s instruction 
6 

 

not to testify once he had been indicted. Mr. Finklea also suggests that T.P.’s failure to respond 

to the trial subpoena can be attributed not to his conduct, but to the fact that the State threatened 

to charge her with perjury. Mr. Finklea voiced this theory before trial, but there is no evidence in 

the record that would substantiate his suspicions. 

{¶11} The State was required to prove by a preponderance of the evidence that Mr. 

Finklea’s wrongdoing caused T.P. to be unavailable for trial and that one purpose of his action 

was to obtain that result. See McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, at ¶ 96, citing 

Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, at ¶ 106 and Hand, 107 Ohio St.3d 378, 2006-Ohio18, at ¶ 84. “A preponderance of the evidence is defined as the measure of proof that convinces 

the judge that ‘the existence of the fact sought to be proved is more likely than its 

nonexistence.’” State v. Henderson, 7th Dist. Mahoning No. 16 MA 0057, 2018-Ohio-5124, ¶ 

25, citing State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 54. In this case, 

the State demonstrated that it was more likely than not that Mr. Finklea pressured T.P. with the 

purpose to persuade her to avoid testifying in future hearings and that his actions accomplished 

that purpose when she refused to appear for trial. See Henderson at ¶ 32. The trial court did not 

abuse its discretion by determining that T.P.’s out-of-court statement to police was admissible 

under Evid.R. 804(B)(6) on that basis. 

{¶12} Mr. Finklea’s final argument in support of his first assignment of error is that the 

admission of T.P.’s statement violated his rights under the Confrontation Clause. The doctrine 

of forfeiture by wrongdoing, however, “‘extinguishes confrontation claims on essentially 

equitable grounds.’” Davis v. Washington, 547 U.S. 813, 833 (2006), quoting Crawford v. 

Washington, 541 U.S. 36, 62 (2004). “That is, one who obtains the absence of a witness by 

wrongdoing forfeits the constitutional right to confrontation.” Davis at 833. See also Hand at ¶ 
7 

 

107. Mr. Finklea, therefore, forfeited his confrontation rights by engaging in wrongdoing with 

the purpose of obtaining T.P.’s unavailability at trial. See Miller, 2016-Ohio-4993, at ¶ 21. 

{¶13} Mr. Finklea’s first assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 3 

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT REFUSED 

TO ALLOW MR. FINKLEA TO READ INTO THE RECORD THE PRIOR 

TESTIMONY OF THE VICTIM IN VIOLATION OF THE DUE PROCESS 

CLAUSE OF THE 6TH AND 14TH AMENDMENTS TO THE U.S. 

CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO 

CONSTITUTION. 

{¶14} Mr. Finklea’s third assignment of error argues that the trial court erred by refusing 

to allow him to read T.P.’s grand jury testimony into the record. Specifically, Mr. Finklea 

maintains that because T.P. was unavailable for purposes of Evid.R. 804(A)(5) due to the State’s 

conduct, her grand jury testimony is admissible as an exception to the hearsay rule under Evid.R. 

804(B)(1). This Court disagrees. 

{¶15} In connection with the State’s request to introduce T.P.’s prior statement to 

police, the trial court concluded that she was unavailable for purposes of Evid.R. 804(A)(5) and 

that her unavailability was caused by Mr. Finklea’s wrongdoing, as provided by Evid.R. 

804(B)(6). As set forth above, the trial court did not abuse its discretion in making this 

determination. Consequently, Mr. Finklea’s argument regarding T.P.’s grand jury testimony is 

resolved by application of the plain language of Evid.R. 804(A): “[a] declarant is not unavailable 

as a witness if the declarant’s * * * absence is due to the procurement or wrongdoing of the 

proponent of the declarant’s statement for the purpose of preventing the witness from attending 

or testifying.” With respect to Mr. Finklea as the proponent of introducing T.P.’s grand jury 

testimony, T.P. was not “unavailable” for purposes of Evid.R. 804(A), and none of the hearsay 
8 

 

exceptions set forth in Evid.R. 804(B) are applicable. The trial court did not err by excluding the 

grand jury testimony. 

{¶16} Mr. Finklea’s third assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT ERRED TO THE PREJUDICE OF [MR. FINKLEA] BY 

IMPOSING THE MAXIMUM SENTENCE BASED UPON FACTS NOT 

CONTAINED IN THE RECORD AND THE TRIAL COURT’S FAILURE TO 

CONSIDER R.C. 2929.12, IN VIOLATION OF MR. FINKLEA’S RIGHTS 

UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE 

UNITED STATES CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 

16 OF THE OHIO CONSTITUTION. 

{¶17} In his second assignment of error, Mr. Finklea argues that the trial court erred by 

sentencing him to the maximum prison sentence of three years. 

{¶18} This Court may modify or vacate a felony sentence “only if it determines by clear 

and convincing evidence that the record does not support the trial court’s findings under relevant 

statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 

2016-Ohio-1002, ¶ 1. With respect to maximum sentences, a trial court has “full discretion to 

impose a prison sentence within the statutory range” and is “no longer required to make findings 

or give * * * reasons for imposing maximum, consecutive, or more than the minimum 

sentences.” State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, paragraph three of the syllabus.3 

{¶19} “The overriding purposes of felony sentencing are to protect the public from 

future crime by the offender and others and to punish the offender using the minimum sanctions 

that the court determines accomplish those purposes without imposing an unnecessary burden on 

 3

 The Reagan Tokes Law, Am.Sub.S.B. No. 201, 2018 Ohio Laws 157, effective March 

22, 2019, made substantive amendments to Ohio’s felony sentencing statutes with respect to 

felonies of the first and second degree committed after the effective date of the amendments. 

Those changes are not at issue in this appeal. 
9 

 

state or local government resources.” R.C. 2929.11(A). Trial courts have discretion in 

fashioning felony sentences with consideration for the factors provided in R.C. 2929.12(B)-(F). 

R.C. 2929.12(A). “R.C. 2929.12(B) includes factors that suggest that the offense is more 

serious. R.C. 2929.12(C) includes factors suggesting the offense is less serious. The recidivism 

factors—factors indicating an offender is more or less likely to commit future crimes—are set 

forth in R.C. 2929.12(D) and (E).” State v. Thrasher, 9th Dist. Summit No. 27547, 2015-Ohio2504, ¶ 5. 

{¶20} Mr. Finklea does not dispute that his sentence is within the permissible range for 

domestic violence when it is a third-degree felony, as in this case. See R.C. 2919.25(D)(4); R.C. 

2929.14(A)(3)(b). Instead, he has argued that the trial court did not explicitly mention that it had 

considered the seriousness and recidivism factors and that the record does not support the 

sentence that the trial court imposed. 

{¶21} Trial courts need not make findings or explain their rationale for imposing 

maximum sentences, however. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, at paragraph 

three of the syllabus. A trial court is presumed to have considered the factors set forth in R.C. 

2929.12 even when the record does not contain an explicit statement to that effect. State v. 

Sapper, 9th Dist. Summit No. 28696, 2018-Ohio-570, ¶ 7, quoting State v. Steidl, 9th Dist. 

Medina No. 10CA0025-M, 2011-Ohio-2320, ¶ 13, quoting State v. Kalish, 120 Ohio St.3d 23, 

2008-Ohio-4912, ¶ 18 fn. 4. 

{¶22} With respect to Mr. Finklea’s argument that the record does not support the 

sentence that the trial court imposed, this Court notes that our review is constrained by the fact 

that the presentence investigation report is not part of the record on appeal. When an appellant 

does not provide a complete record to facilitate our review, we must presume regularity in the 
10 

 

trial court’s proceedings and affirm. State v. Jalwan, 9th Dist. Medina No. 09CA0065-M, 2010-

Ohio-3001, ¶ 12, citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199 (1980). 

Consequently, when the contents of a presentence investigation report are necessary to review 

the appropriateness of a sentence, an appellant must move to supplement the record on appeal 

with the report to enable our review. See State v. Banks, 9th Dist. Summit No. 24259, 2008-

Ohio-6432, ¶ 14. 

{¶23} Mr. Finklea’s attorney obtained leave from this Court to supplement the record 

with the presentence investigation, and this Court’s order provided that “[Mr. Finklea] may 

supplement the record by instructing the Probation Department to transmit the report to the 

appellate clerk’s office under seal.” The record does not reflect that Mr. Finklea ever did so, and 

the transcript of his brief sentencing hearing does not permit a review of the evidence that the 

trial court considered apart from the certified records of his prior convictions that were admitted 

at trial. Because his second assignment of error requires this Court to consider the evidence 

related to the trial court’s sentencing decision, we must therefore presume regularity and affirm. 

{¶24} Mr. Finklea’s second assignment of error is overruled. 

III. 

{¶25} Mr. Finklea’s assignments of error are overruled. The judgment of the Summit 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 
11 

 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

TEODOSIO, P. J. 

HENSAL, J. 

CONCUR. 

APPEARANCES: 

PAUL M. GRANT, Attorney at Law, for Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant 

Prosecuting Attorney, for Appellee.