Trial Court No. CRB-12-08763-0101, CRB-11-09574-0101
David Toska, City of Toledo Prosecutor, and J. Scott Kunzler, Assistant Prosecuting Attorney, for appellee.
Laurel Kendall, for appellant.
DECISION AND JUDGMENT
(¶1} This is an appeal from a judgment of the Toledo Municipal Court, which found appellant guilty of one count of violating a temporary protection order, in violation of TMC 537.20(c), and one count of telephone harassment, in violation of TMC 537.10(b). Following separate trials, appellant was convicted and sentenced to active probation for a term of one-year, with a suspended jail sentence of sixth months. For the reasons set forth below, this court affirms the judgment of the trial court.
(¶2} Appellant, Marcel Huggins, sets forth the following four assignments of error:
1. The trial court committed plain error when it allowed hearsay evidence under the "excited utterance" exception in the first trial (TPO and TPO violation).
2. The trial court committed plain error when it over-ruled Appellant's motion for acquittal based on insufficient evidence in Trial No. 1.
3. The trial court committed plain error when it found Appellant guilty of a violation of a temporary protection order which had been dismissed previously.
4. The trial court committed plain error when it over-ruled Appellant's motion for acquittal based on insufficient evidence in Trial No. 2.
(¶3} The following undisputed facts are relevant to the issues raised on appeal. On June 29, 2011, appellant made a series of threatening and harassing phone calls to an ex-girlfriend. The victim is the mother of one of appellant's children. During the phone calls, which occurred in the early morning hours, appellant subjected the victim to a wealth of inappropriate and vulgar language. In addition, appellant threatened to come to the victim's residence and "come through the door." On July 15, 2011, appellant was arrested as a result of the events.
(¶4} On March 26, 2012, while appellant's harassment charges remained pending, appellant was also charged with domestic violence against a second ex-girlfriend. Notably, during the initial proceedings in that case, appellant was informed about and consented on the record in open court to a temporary protection order (TPO) being issued barring him from contact with the victim.
(¶5} On May 19, 2012, the domestic violence victim to whom the TPO applied called police officers at approximately 3 a.m. to report that appellant had been banging on the doors and windows of her residence. A Toledo police officer responded to the scene at approximately 3:15 a.m. When the officer arrived, he had to knock on the door several times in an attempt to bring the frightened victim to the door. The officer ultimately found the victim "hysterically crying." The victim reported that appellant had been outside her residence attempting to gain access in violation of the TPO. The victim informed the responding officer about the TPO she had against appellant. The officer next confirmed the existence and the validity of the TPO through a police database. The TPO was found actively in place. Appellant was arrested and charged with a violation of the TPO.
(¶6} On August 15, 2012, both cases proceeded to back to back bench trials. The first trial involved appellant's violation of the TPO. The domestic violence victim did not appear at trial. However, the police officer who had responded to the victim's 9-1-1 call presented detailed and convincing testimony regarding the victim's hysterical behavior resulting from appellant's actions. Given the circumstances, the trial court permitted the testimony into the record under the "excited utterance" exception to hearsay. Notably, appellant openly acknowledged at trial that he had voluntarily consented to ...