Court of Appeals of Ohio, Twelfth District, Clermont
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No.
Vincent Faris, Clermont County Prosecuting Attorney, Nicholas
Horton, for plaintiff-appellee
R. Crousey, One East Main Street, Amelia, for
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
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
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