FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. CR-2017-12-4295
M. GRANT, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
S. CALLAHAN, JUDGE
Appellant, Oliver Finklea, appeals his conviction for
domestic violence. This Court affirms.
On the morning of December 5, 2017, a woman in the Kenmore
neighborhood of Akron witnessed an incident that she believed
to be domestic violence involving a neighbor, T.P. An Akron
police officer responded to the neighbor's 911 call and
learned from T.P. that the suspect had grabbed her, torn her
shirt, and slapped her. The suspect fled on foot, and T.P.
identified Mr. Finklea, her fiancé, as the assailant.
While searching the neighborhood, the officer located Mr.
Finklea in the men's restroom in the public library,
placed him under arrest, and transported him back to the
scene of the incident. Another Akron police officer took a
written statement from T.P. in which she identified Mr.
Finklea as the assailant and described his conduct.
Mr. Finklea was charged with domestic violence in violation
of R.C. 2919.25(A), a third-degree felony when the offender
has two or more previous convictions of domestic violence
under R.C. 2919.25(D)(4). Before trial, the State filed notice of
its intention to introduce the victim's written statement
in lieu of her testimony under Evid.R. 804(B)(6) because it
anticipated that she would not appear in response to a
subpoena as a result of Mr. Finklea's influence. The
victim did not appear, and the trial court admitted her
written statement along with a recorded phone call that Mr.
Finklea made to her from jail after his arrest. Mr. Finklea
represented himself at trial, and the jury found him guilty
of domestic violence. The trial court sentenced him to three
years in prison. Mr. Finklea appealed, and his three
assignments of error are rearranged for purposes of
OF ERROR NO. 1
TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT ALLOWED THE
READING INTO THE RECORD OF A RECORDED STATEMENT OF THE VICTIM
IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 6TH AND 14TH
AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS
1, 10 & 16 OF THE OHIO CONSTITUTION.
In his first assignment of error, Mr. Finklea argues that the
trial court erred by permitting the State to read the
victim's written statement into the record at trial.
Specifically, Mr. Finklea argues that the State did not prove
that the victim was "unavailable" for purposes of
Evid.R. 804(A), that her failure to appear was not a result
of his wrongdoing under Evid.R. 804(B)(6), and that admission
of the statement violated his rights under the Confrontation
Clause of the United States Constitution. This Court
Although hearsay evidence is not generally admissible, it may
be admitted when provided for by the rules of evidence.
See Evid.R. 802. Under Evid.R. 804(B)(6), an
out-of-court statement is admissible when a witness is
unavailable as a result of wrongdoing by the party against
whom the statement is offered. This Court reviews the
decision to admit statements under Evid.R. 804(B)(6) for an
abuse of discretion. See State v. Hand, 107 Ohio
St.3d 378, 2006-Ohio-18, ¶ 92, citing State v.
Sage, 31 Ohio St.3d 173 (1987), paragraph two of the
syllabus, and State v. Landrum, 53 Ohio St.3d 107,
114 (1990). An abuse of discretion is present when a
trial court's decision "'"is contrary to
law, unreasonable, not supported by evidence, or grossly
unsound."'" State v. A.V., 9th Dist.
Lorain No. 18CA011315, 2019-Ohio-1037, ¶ 6, quoting
Menke v. Menke, 9th Dist. Summit No. 27330,
2015-Ohio-2507, ¶ 8, quoting Tretola v.
Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999,
One circumstance that renders a declarant
"unavailable" for purposes of Evid.R. 804 exists
when the declarant "is absent from the hearing and the
proponent of the declarant's statement has been unable to
procure the declarant's attendance * * * by process or
other reasonable means." Evid.R. 804(A)(5). The
proponent of the evidence has the burden of demonstrating
unavailability. State v. Keairns,9 Ohio St.3d 228,
231-232 (1984). "[A]s a predicate to the introduction of
hearsay against a defendant in a criminal prosecution, the
Confrontation Clause normally requires a showing that the
hearsay declarant is unavailable despite reasonable efforts
made in good faith to secure his presence at trial."
Id. at 230. Unless the party against whom an
out-of-court statement is offered concedes that the witness
is "unavailable," the proponent of the statement
must demonstrate unavailability based on testimony that
describes the efforts made to secure the witness's
attendance. Id. at 231-232 and paragraph three of
the syllabus. When a defendant does not affirmatively concede
the unavailability of a ...