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State v. Hopkins

Court of Appeals of Ohio, Second District, Montgomery

May 11, 2018

STATE OF OHIO Plaintiff-Appellee
TANNER D. HOPKINS Defendant-Appellant

          Trial Court Case No. 2015-CR-121 (Criminal Appeal from Common Pleas Court)

          MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Attorney for Plaintiff-Appellee

          ALAN GABEL, Atty. Reg. No. 0025034, P.O. Box 1423, Dayton, Ohio 45401 Attorney for Defendant-Appellant


          TUCKER, J.

          {¶ 1} Defendant-appellant Tanner Hopkins appeals from his conviction for murder, involuntary manslaughter, reckless homicide, felonious assault and having weapons while under disability. For the reasons outlined below, we affirm.

         I. Facts and Procedural History

         {¶ 2} This case arises from the January 13, 2015 assault suffered by Chaenin Taylor. At the time of the assault, Taylor was seven-months pregnant. As a result of the assault, the fetus died.

         {¶ 3} Following an investigation, Hopkins was indicted on one count of murder (purposeful) in violation of R.C. 2903.02(A), one count of involuntary manslaughter in violation of R.C. 2903.04(A), one count of reckless homicide in violation of R.C. 2903.041(A), one count of felonious assault (serious harm) in violation of R.C. 2903.11(A)(1), and two counts of having weapons while under disability in violation of R.C. 2923.13(A)(2). The charges of murder, involuntary manslaughter and felonious assault each carried attendant repeat violent offender specifications in violation of R.C. 2941.14 and 2941.149. Hopkins entered a plea of not guilty by reason of insanity. Following an evaluation, the trial court found Hopkins competent to stand trial, and the plea was withdrawn.

         {¶ 4} Hopkins filed a notice of alibi in which he asserted that Roderick Daniels would appear as a witness and testify that he and Hopkins had been out driving around the city at the time of the assault. Thereafter, the State filed a request seeking leave to introduce evidence of a prior bad act under Evid.R. 404(B). Specifically, the State sought to introduce evidence that Hopkins had previously assaulted Taylor. Hopkins filed a response in opposition. By entry dated March 22, 2016, the trial court granted the State's motion. Hopkins also filed a motion to try the two counts of having weapons while under disability to the court. The motion was granted.

         {¶ 5} A jury trial began on April 4, 2016. During trial, Taylor testified that she and Hopkins had been dating when she became pregnant in June 2014. She testified that Hopkins initially had no problems with the pregnancy, but that he later began to claim that he was not the father of the baby. She testified that Hopkins expressed that he did not want the baby, and that he wanted her to undergo an abortion. She testified that he was angry with her because she would not undergo an abortion. Taylor testified that on December 4, 2014, she was on her way to a bus stop to go to work at approximately 5:00 a.m., when Hopkins approached and assaulted her in an empty field nearby. She testified that he kicked her on her side and hit her in the face. She testified that she then went to the hospital.

         {¶ 6} Records from Good Samaritan Hospital were introduced by the State. The records indicate that Taylor presented to the emergency department where she informed medical personnel that she had been assaulted by her boyfriend. She related that he had been arguing with her because he wanted paperwork regarding the pregnancy. She informed the treating physician that she had been kicked once in the upper abdomen, and that her face had been hit multiple times. The records indicate that Taylor had swelling and bruising on her face, bruising on her back, a cut lip, and red marks on her neck. Testing did not reveal any problems with the pregnancy.

         {¶ 7} Immediately after the identification of the records, the trial court gave the jury an appropriate limiting instruction regarding the use of the prior act evidence. The instruction was repeated at the end of the trial.

         {¶ 8} Following the December 2014 incident, Taylor stopped contact with Hopkins, and she and her aunt created a safety action plan. Taylor testified that in the event she felt she was in danger, she would text her aunt that she was on her way to the hospital. The plan also provided that she would keep her aunt updated on her location.

         {¶ 9} Taylor testified that on January 13, 2015, Hopkins called her and stated that he wanted her to come to his home to talk about the baby. She testified that he sounded calm during the phone conversation. Hopkins resided with his mother, Deborah Crawford, on Edison Street in Dayton. Taylor testified that when she arrived at the house, she was met by Hopkins' mother. Taylor testified that she went to Hopkins' bedroom where she and Hopkins talked about the baby. She testified that Hopkins was playing a video game and that he appeared calm. Taylor testified that Hopkins' mother informed them that she was leaving the residence. Taylor and Hopkins then had sex.

         {¶ 10} Taylor testified that she texted her aunt at approximately 5:36 p.m. that she was going to the hospital. She testified that she did so because Hopkins began acting "funny." Tr. p. 306. She testified that she went to the bathroom, and that Hopkins went to the bathroom after her. She testified that at some point afterward, she was leaning down to put on her shoes when Hopkins grabbed her by the hair and pulled her to the floor. According to Taylor, Hopkins kicked her repeatedly and also hit her. At one point, he pinned her to the wall and continued to kick and punch. She tried to protect her abdomen, but Hopkins kicked and hit her in the abdomen. Taylor testified that while he was attacking her, Hopkins stated, "fuck you bitch. I hope you and that baby both die." Tr. p. 295. He also stated that she and the baby "would never make it out [of the house]." Tr. p. 296. Following the attack, Hopkins left the bedroom. Taylor testified that she remembers leaving the house and leaning on the gate outside the home. She testified that the next thing she remembers is a lady asking her name. According to Taylor, she does not remember anything else until she woke up in the hospital and learned that her baby had died. She testified that she has a scar from the Caesarean section performed to remove the fetus, as well as scars from where tubes were inserted into her body during the hospitalization. She further testified that she had to undergo an emergency hysterectomy as well as another surgery to remove her gallbladder.

         {¶ 11} The State presented the testimony of Waltina Ellington who testified that she was driving home from work on January 13, 2015 when she observed people standing in the road on Decker Avenue. She then observed a woman lying in the middle of the street. Ellington testified that she got out of her car and approached the woman. According to Ellington, the woman was distressed, crying and "spitting up." Tr. p. 367. Ellington asked the woman what was wrong, and the woman replied that she was pregnant and her "boyfriend, Devon, kicked her in the stomach."[1] Id. She testified that another woman attempted to lift the injured woman to put her into a car due to the cold, but that the woman began to scream. Ellington testified that they left her on the ground and waited for help to arrive.

         {¶ 12} The State also presented the testimony of Jama Perry who stated that she was on her way home from work around 7:00 p.m. on January 13, 2015 when she observed a person lying in the middle of the intersection of Decker Avenue and Edison Street. She testified that the woman was distraught, crying and asking for help. According to Perry, the woman stated that her "baby daddy kicked her in her stomach." Tr. p. 353. Perry testified that the woman was coughing and vomiting, and that she said she thought she was dying. Perry called 911 and remained with the woman.

         {¶ 13} Dayton Fire Department EMT Amy Dunkin also testified. She testified that she responded to the intersection of Edison Street and Decker Avenue at approximately 7:00 p.m. where she found a woman in the middle of the intersection. She testified that it was cold and dark, and that the patient had on a coat and one shoe. Dunkin stated that the woman was very upset and crying, and that she kept repeating that she was dying and to save her baby. Dunkin testified that she asked the woman what had happened, and that the woman responded that she had been kicked and punched by her "baby's daddy, Devon." Tr. p. 437. She testified that it was necessary to learn how the injuries occurred because it played a part in determining whether an entire trauma team should be assembled and waiting at the hospital. Dunkin noted there was an "8 to 9-inch flat spot on the belly that it just looked like it had been kind of collapsed and her belly had pushed in." Tr. p. 434.

         {¶ 14} Dayton Fire Department Paramedic Richard Caudill testified that when they got Taylor into the ambulance he began to cut off her clothing. He asked her what happened and she stated that she had been "stomped; she'd been punched on; she'd been slammed to the ground." Tr. p. 417. He testified that he observed "a lot of severe bruising in her abdomen to the point, where, * * * the one imprint almost looked like a shoe imprint." Tr. p. 418. Caudill testified that Taylor had minor bruising to her chest, and major bruising on her arms. He testified that one arm was swollen to three times the normal size. He testified that Taylor was at the point that he thought she might die. Caudill testified that he observed emergency room staff intubate Taylor. He testified that he observed that there was no fetal heartbeat. He last observed Taylor as she was being taken to surgery. He testified that she was in the emergency department for approximately fifteen minutes before she was removed to the surgical department.

         {¶ 15} Lee Lehman, Chief Deputy Coroner for Montgomery County, testified that he performed an autopsy upon the fetus. He testified that he found signs of trauma, blood clots, hemorrhaging and tears to the placenta. He further found two separate skull fractures. Lehman testified that the fetus died from significant blunt force trauma. He further noted that an examination of the fetal heart revealed a minor defect that could have caused a heart murmur, but that the defect could have healed on its own.

         {¶ 16} Dayton Police Department Detectives Chad Jones and Melissa Schloss both testified that they conducted a search of the Crawford residence. Schloss testified that she recovered a handgun found in a dresser in Hopkins' bedroom. Jones testified that he was lying on the floor, using a flashlight, to search under Hopkins' bed. He testified that he was able to observe something under there but could not determine what it was. He testified that he had to stretch his arm to reach the object which was later identified as Taylor's cellular telephone.

         {¶ 17} The jury rendered a guilty verdict on the charges of murder, involuntary manslaughter, reckless homicide and felonious assault. The trial court found Hopkins guilty of both charges of having a weapon while under disability. The trial court found that the State had proven the repeat violent offender specifications, as the evidence showed that Hopkins had prior convictions for felonious assault and aggravated assault.

          {¶ 18} On April 12, 2016, Hopkins filed a pro se motion to withdraw the jury verdict. In the motion, he alleged that he recognized a juror as someone with whom he had an "intimate past." The motion further alleged that he informed both of his defense attorneys before closing argument and that they informed him it was too late to raise the issue. The motion finally argued that because of his prior sexual contact with the juror, he was denied the right to an impartial jury.

         {¶ 19} The trial court appointed new counsel to represent Hopkins in relation to the motion, and a hearing was conducted on April 19, 2016.[2] Hopkins testified that he recognized a female juror as someone he had sex with one time in 2012. He testified that she had come to his home with a friend of Hopkins' to do some business. He testified that after his friend left, he and the woman had sex.

         {¶ 20} Hopkins testified that he was discussing the jurors in a room with both his counsel when he informed them about the matter. He stated that his attorneys "brushed [him] off." Tr. p. 731. Hopkins testified that when they returned to the courtroom and he saw the juror was still there, he told counsel that "she's gotta go, " but that they again "brushed [him] off." Tr. p. 733. He testified that while meeting with appointed counsel to prepare for this hearing, he had used a blank jury seating chart to indicate where the juror was seated. He described the juror as a blond woman in her 30's.[3] He testified that he did not know the juror's name, only that her nickname was "TT."

         {¶ 21} On cross-examination, the State asked the name of the friend who brought the woman to Hopkins' home. Hopkins testified that he only knew the man as "Mike, " and that they "did business." When asked what type of business, Hopkins was evasive until the trial court ordered him to answer the question. At that point, Hopkins stated that he sold "stuff" to Mike. He initially would not answer questions regarding what the "stuff" consisted of, only to say that it was not drugs. He eventually stated that it was "extra TVs and stuff, game systems and stuff I was selling."

         {¶ 22} Both of the trial attorneys testified with Hopkins waiving the attorney/client privilege with regard to this sole issue. Both lawyers testified that Hopkins did not inform them of any sexual relationship with a juror. Following the hearing, the trial court entered a decision and entry denying the motion upon a finding that Hopkins' testimony differed from the allegations in his motion and that the clear and credible evidence supported a finding that he did not raise the issue with counsel.

         {¶ 23} A sentencing hearing was held on April 28, 2016, during which the trial court merged the counts for involuntary manslaughter and reckless homicide with the count of murder. The State elected to proceed with sentencing on the murder count for which the trial court imposed a sentence of 15 years to life. The trial court imposed an 8-year sentence for the felonious assault and ordered it to run consecutively to the sentence for murder. The court merged the two counts of having weapons under disability, imposed a sentence of 36 months thereon, and ordered the sentence to run concurrently with the murder and felonious assault counts. The trial court imposed ten-year sentences for each of the two repeat violent offender specifications and ordered them to run consecutively to each other and consecutively to the murder and felonious assault counts. Hopkins was sentenced to an aggregate prison term of 43 years to life.

          {¶ 24} Finally, the record shows that, following the sentencing hearing, the trial court stated that it found, based upon the conviction for which he had just been sentenced, that Hopkins had committed the instant offense while on community control in Case No. 2013-CR-2931. The trial court imposed a sentence therefore.

         {¶ 25} Hopkins filed an appeal.[4]

         II. Prior Bad Act Evidence

         {¶ 26} The first assignment of error asserted by Hopkins states:


         {¶ 27} Hopkins argues that the trial court abused its discretion in admitting evidence of "other bad acts" because it violated Evid.R. 404(B). The trial court, over Hopkins' objection, permitted the State to present evidence at trial of the prior instance of violence perpetrated by Hopkins against Taylor in December 2014.

         {¶ 28} Evid.R. 404(B) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In determining whether such evidence is admissible, the Supreme Court of the United States has set forth several factors for courts to examine: "(1) the other crimes evidence must have a proper purpose, (2) the proffered evidence must be relevant, (3) its probative value must outweigh its potential for unfair prejudice, and (4) the court must charge the jury to consider the other crimes evidence only for the limited purpose for which it is admitted." State v. Gus, 8th Dist. Cuyahoga No. 85591, 2005-Ohio-6717, ¶ 18, citing Huddleston v. United States, 485 U.S. 681, 691, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). The admission of prior-bad-acts evidence under Evid.R. 404(B) "lies within the broad discretion of the trial court, and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that has created material prejudice." State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 66.

         {¶ 29} The State argues that the evidence of the prior assault was relevant to prove identity because it rebutted Hopkins' notice of alibi. The State further argues that it was relevant to the issue of motive and intent.

         {¶ 30} We note that Hopkins withdrew his notice of alibi prior to trial. Further, there was no issue regarding identity as Taylor clearly identified Hopkins as her assailant. Thus, we disagree with the State's claim that the prior assault was relevant to the issue of identity.

         {¶ 31} However, we conclude that the evidence was nonetheless admissible. Hopkins was convicted of murder in violation of R.C. 2903.02(A) which states that "[n]o person shall purposely cause the death of another or the unlawful termination of another's pregnancy." The evidence that Hopkins stated that he did not want the child, along with the fact that he had previously kicked Taylor in the abdomen when she was six-months pregnant, is relevant to motive and purpose to end the pregnancy. We cannot say that the trial court abused its discretion by concluding that the probative value of the evidence outweighed its potential for unfair prejudice, especially in light of the fact that the jury was properly instructed on the use of the evidence.

         {¶ 32} We conclude that the trial court did not abuse its discretion in admitting evidence of the prior assault. Accordingly, the first assignment of error is overruled.

         III. Admission of Hearsay Evidence

         {¶ 33} Hopkins' second assignment of error is as follows:


         {¶ 34} Hopkins contends that the trial court erred by permitting Ellington, Perry and Dunkin to testify regarding Taylor's statements made when they encountered her in the street because the statements constitute hearsay evidence. He further argues that the statements cannot be considered as excited utterances because there was no testimony establishing that the assault and the statements were made contemporaneously.

         {¶ 35} Evid.R. 801(C) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay is not admissible. Evid.R. 802. However, Evid.R. 803 sets forth exceptions to the rule. Evid.R. 803(2) provides that an excited utterance is not excluded by the hearsay rule.

         {¶ 36} An "excited utterance" is defined as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Evid.R. 803(2). In order for an alleged excited utterance to be admissible, four prerequisites must be satisfied: (1) a startling event produced a nervous excitement in the declarant, (2) the statement was made while still under the stress of excitement caused by the event, (3) the statement relates to the startling event, and (4) the declarant personally observed the startling event. State v. Brown, 112 Ohio App.3d 583, 601, 679 N.E.2d 361 (12th Dist. 1996). "The excited utterance exception to the hearsay rule exists because excited utterances are the product of reactive rather than reflective thinking and, thus, are believed inherently reliable." State v. Ducey, 10th Dist. Franklin No. 03AP-944, 2004-Ohio-3833, ¶ 17.

         {¶ 37} While the passage of time between the event and the declaration is relevant, it is not dispositive of the issue. State v. Taylor, 66 Ohio St.3d 295, 303, 612 N.E.2d 316 (1993). An excited utterance need not be strictly contemporaneous with the startling event. State v. Duncan, 53 Ohio St.2d 215, 220, 373 N.E.2d 1234 (1978). But the statement must be made while the declarant is still under stress from the event. Ducey, at ¶ 22. "Relevant factors in ascertaining whether the declarant was in a sufficient state of excitement or stress include outward indicia of [the declarant's] emotional state such as tone of voice, accompanying actions, and general demeanor." Id., quoting Osborne v. Kroger Co., 10th Dist. Franklin No. 02AP-1422, 2003-Ohio-4368, ¶ 46.

         {¶ 38} The record indicates that Taylor texted her aunt at 5:36 p.m. before the attack occurred. She was discovered in the street at 7:00 pm. At some point in between these two times, Hopkins attacked her and left the room. Taylor remembers sitting against the wall when he left. She has no recollection of what she did other than give Hopkins' dog some food she found in the bedroom in order to keep it quiet while she left, and then leaving the house. There is no evidence regarding the length of the attack, or how long she remained in the room before leaving the house. It is clear from the record that she was having trouble walking and remembering the details of what occurred after the attack.

         {¶ 39} We cannot conclude that there was such a lengthy period of time as to automatically mandate exclusion of the statements. Given Taylor's physical and emotional condition at the time aid was rendered, it is reasonable to conclude that she was still in a state of stress at the time she made the statements.[5] There was evidence that Taylor was crying, distraught, vomiting, and in pain. She was lying in the middle of the street in the cold with only one shoe. Her statements were made in response to questions about what happened, and evinced a reasonable fear that she was going to die. According to the EMTs, they questioned Taylor about what happened in order to assess her condition and decide on a treatment plan.

         {¶ 40} Based upon this record, we conclude that the circumstances allowed the trial court to find that Taylor's statements constituted an excited utterance and that they were, thus, admissible as a hearsay exception. Therefore, Hopkins' second assignment of error is overruled.

         IV. Merger

         {¶ 41} Hopkins' third assignment of error states:


         {¶ 42} The murder count charged that Hopkins purposely caused the unlawful termination of another's pregnancy. The felonious assault count charged that he knowingly caused serious physical harm to Taylor. Hopkins contends that it is possible to commit both offenses with the same conduct because it necessarily follows that a person who causes the termination of a pregnancy will cause serious physical harm to the mother of the child.

         {¶ 43} R.C. 2941.25, Ohio's allied offense ...

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