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State v. Gerde

Court of Appeals of Ohio, Twelfth District, Clermont

September 5, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
MATTHEW ALLEN GERDE, Defendant-Appellant.

         CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2016-CR-00275

          D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, for plaintiff-appellee

          Joshua R. Crousey, One East Main Street, Amelia, for defendant-appellant

          OPINION

          S. POWELL, P.J.

         {¶ 1} Defendant-appellant, Matthew Allen Gerde, appeals from his conviction in the Clermont County Court of Common Pleas after a jury found him guilty of one count of burglary. For the reasons outlined below, we affirm.

         {¶ 2} On May 17, 2016, the Clermont County Grand Jury returned an indictment charging Gerde with two counts of burglary in violation of R.C. 2911.12(A)(2), both second-degree felonies. According to the bill of particulars, the first charge stemmed from allegations Gerde and a co-defendant, Thimothy Whittington, burglarized a residence located at 1851 State Route 133 on May 5, 2016, whereas the second charge stemmed from allegations Gerde and Whittington burglarized a residence located at 2954 Clermont Farm Road on May 8, 2016. It is undisputed that both residences are located in Clermont County, Ohio. As stated in the bill of particulars, the charges arose after Whittington provided a confession that implicated both Gerde and himself in the May 5 and May 8 burglaries.

         {¶ 3} The matter ultimately proceeded to a three-day jury trial that concluded on October 5, 2016. Following deliberations, the jury returned a verdict finding Gerde guilty of burglarizing the residence located on State Route 133, but not guilty of burglarizing the residence located on Clermont Farm Road. The trial court then held a sentencing hearing and sentenced Gerde to serve three years in prison. The trial court also notified Gerde that he was subject to three years of mandatory postrelease control.

         {¶ 4} Gerde now appeals from his conviction, raising three assignments of error for review.

         {¶ 5} Assignment of Error No. 1:

         {¶ 6} THE TRIAL COURT ERRED AS A MATTER OF LAW BY ALLOWING THE JAIL CALL BETWEEN APPELLANT AND HIS MOTHER.

         {¶ 7} In his first assignment of error, Gerde argues the trial court erred by admitting a recording of two jailhouse phone calls between himself and his mother. We disagree.

         {¶ 8} Although Gerde argues that a de novo standard of review applies, it is well-established that we review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 14. In such instances, "[a] reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice." Id., citing State v. Smith, 12th Dist. Fayette No. CA2007-10-035, 2008-Ohio-5931, ¶ 33. An abuse of discretion connotes more than an error of law or judgment; it implies that the trial court's decision was unreasonable, arbitrary, or unconscionable. State v. Grindstaff, 12th Dist. Clermont No. CA2013-09-074, 2014-Ohio-2581, ¶ 21. A decision is unreasonable when it is "unsupported by a sound reasoning process." State v. Abdullah, 10th Dist. Franklin No. 07AP-427, 2007-Ohio-7010, ¶ 16, citing AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990).

         {¶ 9} Gerde initially claims the recording of the jailhouse phone calls between himself and his mother should have been excluded as inadmissible hearsay. However, after a simple review of the record, and just as the trial court found, it is clear the jailhouse phone calls at issue were not hearsay, but instead, non-hearsay admissions by a party-opponent under Evid.R. 801(D)(2). Pursuant to that rule, a statement is not hearsay if "[t]he statement is offered against a party and is * * * the party's own statement, in either an individual or a representative capacity[.]"

         {¶ 10} Gerde claims Evid.R. 801(D)(2) is inapplicable to the recordings at issue since "[n]othing in his statements [to his mother] were an admission." But, as this court has stated previously, while the term "admission" appears to imply that the out-of-court statement must be a confession or statement against interest, "'in actuality, any prior statement of a party is admissible providing it is offered against the party at trial.'" State v. Baker, 137 Ohio App.3d 628, 652 (12th Dist.2000), quoting Weissenberger's Ohio Evidence (1998) 367, Section 801.33. Such is the case here for the record makes clear the recording at issue was offered ...


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