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City of Berea v. Timm

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 27, 2019

CITY OF BEREA, Plaintiff-Appellee,
ALEXANDER R. TIMM Defendant-Appellant.

          Criminal Appeal from Berea Municipal Court Case No. 18 CRB 00500-1

          Barbara Jones, City Law Director, and Danielle Fekete Swisher, Assistant Prosecutor, and Megan M. Matthews, Assistant Director of Law, for appellee.

          Wargo and Wargo, and Thomas M. Wilson, for appellant


          LARRY A. JONES, SR, JUDGE.

         {¶1} Defendant-appellant, Alexander Timm ("Timm"), appeals his conviction for domestic violence, which was rendered after a bench trial. For the reasons that follow, we affirm.

         {¶ 2} In 2018, Timm was charged with one count of domestic violence, in violation of R.C. 2919.25(A), a first-degree misdemeanor. The matter proceeded through the pretrial process. On the day of trial, Timm filed a motion in limine to exclude the statements he made to police prior to receiving Miranda warnings. The trial court heard argument on the motion prior to trial and subsequently overruled the motion, finding that Timm was required to file a motion to suppress his statements, not a motion in limine; therefore, he waived any objection to his statements.

         {¶ 3} The following evidence was adduced at trial.

         {¶ 4} Timm and the victim attended a birthday party where they both consumed alcohol and became intoxicated. Upon returning home from the party, Timm and the victim got into an argument. The victim's daughter and daughter's friend were in the house at the time. The police received a 911 call but were disconnected; the dispatcher heard a woman screaming but did not get her name before the call was disconnected. The victim's daughter and her friend called 911 a second time and reported that Timm slammed the victim to the ground and the victim sustained a head injury with blood. Dispatch noted that the caller stated that the victim needed medical attention and the caller was starting to hyperventilate or was having difficulty breathing.

         {¶5} The police arrived on scene. Patrolman Adam Laeng ("Patrolman Laeng") testified that Timm let him into the house. Patrolman Laeng testified that he had domestic violence training and had responded to many domestic violence situations in the past. As part of his standard procedure, Patrolman Laeng separates the involved parties and tries to ascertain what happened. On this evening, Patrolman Laeng spoke with Timm. Timm told the officer that he and the victim were at a birthday party, returned home, and the victim started going through Timm's text messages on his phone. Timm was trying to go to bed and admitted he hit the victim with a pillow to knock the phone out of her hand. According to Patrolman Laeng, Timm stated that at that point the victim "came at him * * * trying to hit him in the face two times, and his [Timm's] words, he picked her up and threw her off of him, and she must have hit her head on something."

         {¶ 6} Patrolman Laeng testified that he detained Timm and put him in handcuffs, for his and Timm's safety, because Patrolman Laeng was the only officer on scene. Important to this appeal, Patrolman Laeng testified that Timm told him what happened before the officer placed him in handcuffs:

Prosecutor: So, Officer Laeng, you're testifying that you placed the defendant in handcuffs and told him he was being detained after he made statements to you explaining what had happened?
Patrolman Laeng: Yes.
Prosecutor: So you placed him in handcuffs after he made the statement to you * * * that she had gone over, attempted to hit him, and then he threw her down, and that's when she cut her head open?
Patrolman Laeng: Affirm, yes, correct.
Prosecutor: He made that statement to you before he was placed in handcuffs?
Patrolman Laeng: I believe so. Because I know I didn't walk in immediately placing him in handcuffs, it was after we had some dialogue as to what happened.

         {¶ 7} Patrolman Laeng noted that the victim was "bleeding profusely" from the head. The victim was subsequently transported to the hospital where she received six staples to close the wound on her head.

         {¶ 8} Patrolman Daniel Kelly ("Patrolman Kelly") was the next officer to arrive on scene. Timm objected to his testimony because the city had not provided Patrolman Kelly's name in discovery. The court overruled the objection.

         {¶ 9} Patrolman Kelly testified that Timm was in handcuffs when he arrived. He dealt primarily with the victim, assessing her injuries. Patrolman Kelly's body-cam video was played for the court. There was discussion amongst the parties and the court as to statements Timm made that the body cam's sound picked up. Patrolman Kelly, upon questioning by the court, stated that it sounded like Timm said, "I slammed her on the ground and her head cracked."

         {¶ 10} The victim testified that Timm is her boyfriend with whom she and her daughter live. On the evening in question, the victim and Timm attended her brother's birthday party and they "drank too much," so someone drove them home. They began to argue, "he hit me with the pillow, and so I got up and I punched him, and then he pushed me and I went to fall and then he fell with me * * * like he pushed me off of him." She further testified that "I pulled him kind of. Like so when I hit him and he went to go push me, I grabbed him, so we fell together, I guess."

         {¶ 11} On cross-examination, the prosecutor queried:

Prosecutor: But you fell because he pushed you? And then you grabbed him and that's ...

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