Court of Appeals of Ohio, Eleventh District, Lake
Criminal Appeals from the Lake County Court of Common Pleas,
Case Nos. 2017 CR 000383 and 2018 CR 001227.
Modified in part and affirmed as modified; reversed and
Charles E. Coulson, Lake County Prosecutor, and Karen A.
Sheppert, Assistant Prosecutor, Lake County Administration
Building, (For Plaintiff-Appellee).
M. Heindel, (For Defendant-Appellant).
R. WRIGHT, P.J.
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.
This appeal arises via two trial court cases, which we
consolidated for opinion purposes.
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community control was revoked after he pleaded guilty to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.
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.
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
Appellant's first assignment of error arises solely from
his jury trial in his second case, 18-CR-001227, and
"The trial court erred when it did not permit testimony
of Torres' statements while being arrested. (T.p. at
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.
"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.
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
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.
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:
"Q. * * * And then Ronaldo made some statements to you
after this whole incident and ...