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State v. Finklea

Court of Appeals of Ohio, Ninth District, Summit

June 5, 2019

STATE OF OHIO Appellee
v.
OLIVER FINKLEA Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-2017-12-4295

          PAUL M. GRANT, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN, JUDGE

         {¶1} Appellant, Oliver Finklea, appeals his conviction for domestic violence. This Court affirms.

         I.

         {¶2} 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.

         {¶3} 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).[1] 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 discussion.

         II.

         ASSIGNMENT OF ERROR NO. 1

         THE 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.

         {¶4} 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 disagrees.

         {¶5} 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).[2] 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, ¶ 25.

         {¶6} 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 ...


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