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State v. Tolbert

Court of Appeals of Ohio, First District, Hamilton

June 26, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
LUTHER TOLBERT, Defendant-Appellant.

          Criminal Appeal From: Hamilton County Court of Common Pleas Trial No. B-1703355

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Michaela Stagnaro, for Defendant-Appellant.

          OPINION

          Mock, Presiding Judge.

         {¶1} While defendant-appellant Luther Tolbert was properly convicted of aggravated burglary, we conclude that the trial court improperly ordered him to stay away from the victims' family and that it failed to properly document the merger of the second count of the indictment with the first. For that reason, we affirm the judgment of the trial court in part, vacate it in part, and remand the cause for further proceedings.

         An Argument Escalates

         {¶2} Tolbert arrived at the home of Beverly and Wesley Ward on June 5, 2017. Tolbert had a child with one of the Wards' granddaughters, Myshel Ward, and he had driven to their residence to pick up his child. Because of previous incidents involving Tolbert and the Wards, Tolbert had been told repeatedly that he was not welcome in the home. When Tolbert arrived, Myshel's aunt, Nicole Ward ("Nicole"), was bringing in groceries. According to Nicole's testimony, she spoke with Tolbert briefly and told him that she would go get Myshel. When Nicole told Tolbert that he had to come back later because Myshel was sleeping, Tolbert became angry and stormed back to his car complaining that "she gon [sic] make me start."

         {¶3} Nicole continued to bring in groceries, and Tolbert entered the home while Nicole was in the kitchen. Nicole testified that he was searching the house asking where Myshel was. Nicole confronted Tolbert and told him he had to leave, but Tolbert was acting "sporadically" and would not listen. Tolbert eventually made his way to the back bedroom where Myshel was sleeping and began to hit her, according to Nicole. Nicole testified that she heard one of the children yelling for Beverly and Wesley Ward, telling them that Tolbert was hitting Myshel and that he had a gun. An objection to that testimony was sustained. Nicole testified that she did not see Tolbert with a gun.

         {¶4} Beverly Ward testified that she awoke when her great-granddaughter pounded on the wall and yelled that Tolbert was in the home, hitting Myshel, and that he had a gun. Mrs. Ward testified that she confronted Tolbert and told him to leave. She then said that he "started to walk out the door, he turned around and came back in the door and he pulled the gun on me." According to Mrs. Ward, it was a small, silver handgun and he pointed it in her face. The confrontation occurred on the front porch of the home, which the Wards had converted into a computer room and living area in the 1990s. The room had been decorated with bookcases, seating, and computer equipment, and the Wards considered it part of their home, even though the door to the computer room from the outside did not lock. Mr. Ward, who had been standing behind her, then pulled Mrs. Ward into the living room, and Tolbert left.

         {¶5} Wesley Ward testified that after the couple had been awakened by their great-grandchildren, he confronted Tolbert and asked him to leave. But because Tolbert would not listen to him, he left Mrs. Ward to address him and Mr. Ward went onto the front porch. He testified that Mrs. Ward was yelling at Tolbert that he needed to have someone else come pick up the child and that he was not allowed in the home. Mr. Ward testified that Tolbert left through the porch area as Mrs. Ward continued to yell at him. Tolbert then came back on the porch, yelling "say it one more time. Say it one more time." Mr. Ward said that, at that point, Tolbert produced a small, silver handgun and pointed it in his wife's face. Mr. Ward then pulled Mrs. Ward into the living room, and Tolbert left.

         {¶6} While Tolbert was still at the residence, one of the residents called 911. The recording of the 911 call was played during the trial.

         {¶7} Tolbert's version of events differed significantly from the testimony of the Ward family. Tolbert testified that he was at the home to pick up his son. He said that when he arrived he spoke with Nicole about picking up the child. He then followed her to the house. When he reached the door, he picked up one of the children and discovered that the child had a dirty diaper. He said that he offered to change the child, and entered the home with Nicole. He then said that he went back to find Myshel. When he could not get her to wake up, he started to move toward that door. It was at that time, according to his testimony, that he was confronted by Mr. and Mrs. Ward. He left the home and approached his vehicle. When he reached the vehicle, he said that he was threatened by a member of the Ward family. He said that he then retrieved a firearm from the vehicle, but said that he never brandished it or pointed it at anyone. He testified that he then got into his vehicle and left.

         {¶8} Sergeant Eric Catron from the Springfield Township Police Department also testified at trial. He said that he arrived at the scene after Tolbert had left but spoke to him on the phone when Tolbert called Myshel. During the course of his investigation, Sergeant Catron also accessed the recordings of phone calls that Tolbert made while he was being held at the Hamilton County Justice Center. Sergeant Catron testified that only the first few calls were pertinent to his investigation. The calls were between Tolbert and Myshel. Sergeant Catron had the calls copied to a disk and transcribed. Both the recordings and transcriptions were admitted into evidence and reviewed by the trial court during the course of the trial. During his testimony, Sergeant Catron summarized the content of the calls by stating that "he admits in various different ways to committing the offense several times. He also denies it, and then he gives several different reasons why he did it."

         {¶9} Tolbert was indicted on two counts of aggravated burglary. The first count alleged a violation of R.C. 2911.11(A)(2) and carried one- and three-year gun specifications. The second count alleged a violation of R.C. 2911.11(A)(1). Tolbert waived his right to a jury trial and the matter was tried to the court. At the conclusion of the trial, the trial court found him guilty of both counts and both specifications. The trial court sentenced him to three years in prison on count one, and three years on the second gun specification. During the sentencing hearing, the trial court told Tolbert that the second count would be merged with the first count, but that decision was not memorialized in the judgment entry. The trial court also ordered Tolbert to have no contact with the Ward family. In four assignments of error, Tolbert now appeals.

         The Admission of Evidence

         {¶10} In his first assignment of error, Tolbert claims that the trial court erred when it admitted a number of statements into evidence. He first claims that the trial court improperly admitted the evidence of his jail calls as the calls had not been authenticated, contained hearsay, and violated his right of confrontation as announced in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). He also argues that the statements made by the Wards' great-granddaughter that he was hitting Myshel and that he had a gun were improperly admitted.

         {¶11} Tolbert concedes that he did not object to the evidence that he now claims was improperly admitted and considered. The failure to object to the admission of evidence at trial waives all but plain error on appeal. See Crim.R. 30(A); State v. Harris, 2017-Ohio-5594, 92 N.E.3d 1283, ¶ 15 (1st Dist.). "Notice of plain error * * * is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. To prevail on a claim that the trial court committed plain error, an appellant must demonstrate that an error constitutes an obvious defect in the trial proceedings and demonstrate that the error affected the outcome of the trial. State v. Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 23.

         {¶12} Beginning first with the admission of the jail calls, the record reflects that defense counsel stipulated to the admission of the calls in their entirety. During the trial, the following exchange took place:

[Defense Counsel]: And did we want to address on the record while we're up here, I know that there's some audio ...

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