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City of Toledo v. Sailes

December 5, 2008

CITY OF TOLEDO APPELLEE
v.
AUGUSTA SAILES APPELLANT



Trial Court No. CRB 07-26739.

The opinion of the court was delivered by: Osowik, J.

DECISION AND JUDGMENT

{¶1} This is an appeal from a judgment of the Toledo Municipal Court that found appellant guilty of one count of assault. For the following reasons, the judgment of the trial court is reversed.

{¶2} Appellant sets forth three assignments of error:

{¶3} "I. The Trial Court erred by allowing hearsay testimony and pictures interrupted [sic] by a third party to be admitted as evidence.

{¶4} "II. The Trial Court erred by denying appellant his constitutional right to confront his accuser and challenge the witness against him.

{¶5} "III. The Trial Court erred by not granting a judgment of acquittal pursuant to Criminal Rule 29."

{¶6} At approximately 8:00 a.m. on November 18, 2007, Toledo police were called to appellant's residence by a woman who reported that she had been assaulted. Upon arriving at the house, one officer interviewed appellant while another spoke to his girlfriend, Sharita, who was in an upstairs bedroom. Appellant was arrested and charged with one count of assault and one count of domestic violence. When the matter came to trial on March 13, 2008, the prosecution called both officers as witnesses. Sharita, however, did not appear.

{¶7} Officer Ronald Hageman testified that appellant told him that he and Sharita had an argument but that there was no physical confrontation. Officer Joan Boose testified that a couple of minutes after the officers arrived she went upstairs to talk to Sharita. The officer stated that Sharita was trembling as she spoke and it appeared she had been crying. Officer Boose saw that Sharita had a red mark on the side of her face and swollen lips. Over objection by defense counsel, the officer testified that Sharita said that after she returned home at approximately 4:00 a.m. she and appellant argued. Appellant followed her upstairs, hit her several times in the stomach, face and chest, and then dragged her downstairs by her hair. Officer Boose further testified that Sharita said she went back upstairs and waited quietly for a while until calling the police. Also over defense counsel's objection, the court allowed photographs that Officer Boose took of Sharita's face to be admitted into evidence.

{¶8} The prosecution rested its case and the defense moved for acquittal. The motion was denied and appellant then testified. Appellant stated that Sharita was intoxicated when she came home at 4:00 a.m. He testified that Sharita had a red mark and that it looked like she had fallen down several times. The two argued for an hour and she then went upstairs. He stayed downstairs and was listening to music when the police arrived.

{¶9} At the close of evidence, the trial court found appellant guilty of assault and continued the matter for sentencing. On April 21, 2007, appellant was sentenced to 90 days in jail with 60 days suspended.

{¶10} Appellant appeals, setting forth three assignments of error. His first and second assignments of error are related and will be addressed together. The two arguments are dispositive of this case.

{¶11} In support of his first two assignments of error, appellant asserts that the officers' testimony as to what Sharita told them was inadmissible hearsay because Sharita did not appear at the trial to testify. The focus of appellant's hearsay argument is that Sharita's statements are not admissible as an excited utterance exception to the hearsay rule because at least three hours passed between the argument the couple had and the arrival of the police officers. Appellant also asserts that by allowing the officers' testimony and the photographs to be admitted, the trial court violated his right to confront his accuser.

{¶12} We will first address the issue of a defendant's right to confront his accuser. The Sixth Amendment to the United States Constitution guarantees that an accused has the right to confront and cross-examine witnesses testifying against him. Pointer v. Texas (1965), 380 U.S. 400, 406. ...


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