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State v. Hernandez-Torres

Court of Appeals of Ohio, Eleventh District, Lake

December 23, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
RONALDO RAMON HERNANDEZ-TORRES, Defendant-Appellant.

          Criminal Appeals from the Lake County Court of Common Pleas, Case Nos. 2017 CR 000383 and 2018 CR 001227.

         Judgment: Modified in part and affirmed as modified; reversed and remanded.

          Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, Lake County Administration Building, (For Plaintiff-Appellee).

          Edward M. Heindel, (For Defendant-Appellant).

          OPINION

          THOMAS R. WRIGHT, P.J.

         {¶1} Appellant, Ronaldo R. Hernandez-Torres, appeals his convictions contending that the trial court erred in excluding certain testimony at trial and by imposing an impermissible sentence. We modify in part and affirm as modified, and reverse and remand.

         {¶2} This appeal arises via two trial court cases, which we consolidated for opinion purposes.

         {¶3} In May of 2017, appellant was charged in case number 17-CR-00383 with trespass in a habitation when a person is present or likely to be present with a contraband forfeiture specification, a fourth-degree felony in violation of R. C 291112(B), and domestic violence, a first-degree misdemeanor in violation of RC 291925(A) He pleaded guilty to both and was sentenced to two years community control Appellant's community control was revoked after he pleaded guilty to community control violations in February of 2019 On March 7, 2019, the trial court sentenced him to 18 months in prison on count one, trespass in a habitation when a person is present or likely to be present, concurrent with 180 days in jail on count two, domestic violence.

         {¶4} In case number 18-CR-001227, appellant was charged with domestic violence, a fourth-degree felony in violation of R.C. 2919.25(A); resisting arrest, a second-degree misdemeanor in violation of R.C. 2921.33(A); and intimidation of a victim or witness in a criminal case, a first-degree misdemeanor in violation of R.C. 2921.04(A). (These charges were the basis for his community control violations in case number 17-CR-00383.) A jury convicted him of all charges. Appellant was sentenced to 18 months in prison on count one, 90 days in jail on count two, and 180 days in jail on count three, all to run concurrent to one another. The court ordered this sentence to run consecutive to the sentence imposed in case number 17-CR-000383.

         {¶5} Although the trial court cases were not consolidated, the court issued separate sentencing decisions after a consolidated sentencing hearing held in March of 2019. Appellant appeals both decisions and raises two assigned errors.

         {¶6} Appellant's first assignment of error arises solely from his jury trial in his second case, 18-CR-001227, and contends:

         {¶7} "The trial court erred when it did not permit testimony of Torres' statements while being arrested. (T.p. at 276-277)."

         {¶8} Trial courts have broad discretion when deciding to admit or exclude evidence. State v. Fowler, 10th Dist. Franklin No. 15AP-1111, 2017-Ohio-438, 84 N.E.3d 269, ¶ 15, citing State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 92. We review a trial court's ruling on evidentiary issues for an abuse of discretion and cannot reverse a decision absent "proof of material prejudice." State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 181, citing State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 116.

         {¶9} "Absent a clear abuse of discretion, a reviewing court will not reverse the judgment of the trial court. * * * '[T]he term "abuse of discretion" is one of art, connoting judgment exercised by a court, which does not comport with reason or the record.' * * * [A]n abuse of discretion is the trial court's 'failure to exercise sound, reasonable, and legal decision-making.' * * * When an appellate court is reviewing a pure issue of law, 'the mere fact that the reviewing court would decide the issue differently is enough to find error (of course, not all errors are reversible. Some are harmless; others are not preserved for appellate review). By contrast, where the issue on review has been confined to the discretion of the trial court, the mere fact that the reviewing court would have reached a different result is not enough, without more, to find error.'" (Citations omitted.) Ivancic v. Enos, 11th Dist. Lake No. 2011-L-050, 2012-Ohio-3639, 978 N.E.2d 927, ¶ 70.

         {¶10} Appellant asserts the court erred in prohibiting his trial counsel from eliciting testimony from Officer Cueni on cross-examination about statements that appellant made to the officer after being arrested. Appellant claims his counsel was trying to show that appellant was in pain and thought his arm was breaking while the officer was trying to secure his mobile phone. He raises three grounds on which the court should have permitted this testimony: first, he claims the testimony was not hearsay; second, assuming it was hearsay, he contends the excited utterance exception applies; and finally, he claims the excluded statements were admissible as statements describing appellant's then-existing state of mind.

         {¶11} Officer Cueni testified on direct that appellant was in the back seat of the patrol car when Cueni told him he was under arrest. He was not yet handcuffed. Appellant became upset and placed a call on his mobile phone. He began quickly speaking in Spanish in a loud and excited voice to the person on the phone. Not understanding what appellant was saying, Cueni became concerned for his safety and thought that appellant was possibly calling someone to help him. Thus, Cueni walked to the rear of the car to confiscate appellant's phone. Appellant told him no, so Cueni attempted to secure him in handcuffs. Cueni told appellant to put his hands behind his back and grabbed appellant's hand. Appellant did not comply, so Cueni tried to push him to the ground to secure him. Cueni described appellant as clearly trying to get away from him. And a struggle ensued during which appellant was violently jerking away from Cueni. The struggle continued until Cueni finally secured him on the ground in a nearby yard. Cueni then called for backup. Two other officers arrived, who were able to handcuff appellant.

         {¶12} The limited testimony presented before this line of questioning was objected to and excluded by the trial court shows that appellant's statements to the officer were made after appellant was in handcuffs. The following exchange occurred on cross-examination of Officer Cueni:

         {¶13} "Q. * * * And then Ronaldo made some statements to you after this whole incident and ...


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