Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cleveland Municipal Court Case No.
Barbara A. Langhenry, Cleveland Director of Law, and Karrie
D. Howard, Sharon Ross, Marco A. Tanudra and Christopher
Enoch, Assistant Prosecuting Attorneys, for appellee.
Norman Law, Inc., L.L.C., and William Norman, for appellant.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
1} Defendant-appellant, Kenneth Greear
("appellant"), brings the instant appeal
challenging his conviction for domestic violence.
Specifically, appellant argues that his conviction for
domestic violence was based on insufficient evidence and was
against the manifest weight of the evidence, and that the
trial court erred in admitting hearsay statements. After a
thorough review of the record and law, this court vacates
appellant's conviction and sentence, and remands for
further proceedings consistent with this opinion.
Factual and Procedural History
2} On July 14, 2018, appellant was charged in a two-count
complaint in Cleveland Municipal Court with one count of
domestic violence in violation of R.C. 2919.25(A), a
first-degree misdemeanor, and one count of unlawful restraint
in violation of R.C. 2905.03(A), a third-degree misdemeanor.
These offenses were alleged to have occurred on July 12,
2018, and were the result of an alleged physical altercation
between appellant and his girlfriend, W.V. As of July 12,
appellant and W.V. were dating and lived together in
Cleveland in appellant's home. On, July 14, 2018,
appellant pled not guilty to the complaint and a temporary
protection order was issued against appellant.
3} On July 12, 2018, appellant and W.V. were at a grocery
store when they engaged in a verbal argument as to the
whereabouts of appellant's lighter. As a result of the
argument, W.V. left the grocery store and returned home.
Appellant then returned home sometime after W.V. left the
grocery store. Back at the home, appellant again confronted
W.V. as to the whereabouts of the lighter. Appellant then
became upset and allegedly physically assaulted W.V.
Appellant pushed W.V. to the ground and kicked her in the
face. Appellant then pressed his whole body weight down on
W.V.'s face as she lay on the ground. As a result, W.V.
suffered a bruised and bloodied lip.
4} Approximately one hour after the alleged assault, W.V.
called 911 and requested police assistance. W.V. stated to
the 911 operator "my boyfriend accused me of taking a
lighter and he choked me and kicked me in my face." W.V.
further stated that "I can't talk right because my
lip is popped up." Sometime after W.V. placed the 911
call, Cleveland police officers responded to the home and
spoke with W.V. Appellant had left the home prior to officers
responding. Police officer body camera captured W.V.'s
encounter with responding officers. In the body camera
footage, W.V. stated to the responding officers that
appellant was "kicking on my head" and appellant
"put all his weight on my head, stomping on my head, my
lip was pouring blood."
5}On July 19, 2018, at the first scheduled pretrial, W.V.
appeared and requested that the trial court terminate the
temporary protection order. The trial court granted
W.V.'s request, and the temporary protection order was
terminated. The matter then proceeded to a bench trial on
November 14, 2018.
6} Plaintiff-appellee, the city of Cleveland
("city"), presented one witness, W.V, in its
case-in-chief. Appellant presented no witnesses. The trial
court found appellant guilty of domestic violence, but not
guilty of unlawful restraint. The trial court ordered a
presentence investigation report and continued the matter for
sentencing to December 5, 2018.
7} On November 29, 2018, appellant filed a "motion for
acquittal or alternatively a motion for a new trial" and
a "motion for leave to file a brief in support of out of
time motion." On December 4, 2018, appellant filed a
brief in support of his motion for acquittal or motion for a
new trial. On December 5, 2018, the trial court continued the
matter to January 3, 2019, to allow the city time to respond
to appellant's motions.
8} On December 5, 2018, appellant was apprehended on an
arrest warrant. The arrest warrant was issued regarding an
unrelated matter in the state of Michigan. The trial court
held a hearing on December 21, 2018, related to the
extradition to Michigan, and at that time, appellant's
counsel orally withdrew his motion for acquittal or motion
for a new trial.
9} On January 3, 2019, the trial court held a sentencing
hearing and sentenced appellant to 180 days jail with 160
days being suspended. The trial court placed appellant on
community control sanctions for a period of one year and
ordered him to complete a Domestic Intervention Education
10} Appellant filed the instant appeal on February 6, 2019.
He assigns three errors for our review:
I. The [city] failed to offer sufficient proof to allow a
reasonable factfinder to find [appellant] guilty beyond a
II. The manifest weight of the evidence did not support a
conviction for domestic violence.
III. The trial court erred in admitting out-of-court
statements to 911 operator and police.
address appellant's third assignment of error first
because we find it dispositive of the instant appeal.
Law and Analysis
11} In appellant's third assignment of error, he argues
that the trial court erred in admitting the victim's
statements in the 911 call and in the body camera video.
Appellant argues that the victim's statements were
12} In the instant case, the city presented W.V. as the only
witness at trial. At the beginning of W.V.'s direct
testimony, the prosecutor asked W.V. various preliminary
questions to which W.V. testified that she was engaged to
appellant and had been living with him for over a year. The
prosecutor then asked W.V. "[d]o you remember calling
911 [on July 12, 2018]?" W.V. responded
"[y]eah." (Tr. 47.) The prosecutor then sought to
play the 911 tape and the following exchange occurred:
[PROSECUTOR]: Okay. For the record, [city's] [e]xhibit
THE COURT: Okay.
[APPELLANT'S COUNSEL]: Your [h]onor, I would object to
the playing of this 911 tape. Your [h]onor, first of all and
I'd imagine that they would try to get it in under some
sort of excited utterance. [W.V.] specifically stated on the
tape that the - that [appellant] had left the scene; there
was no continuing emergency.
Additionally your [h]onor, we believe that once [W.V.]
testifies, this would act to kind of impeach her testimony
based on her prior inconsistent statement which my colleague
can't do because he called [W.V.] to the stand. So your
[h]onor we would ask that the tape not be played.
THE COURT: All right.
[PROSECUTOR]: Well, your [h]onor, the victim's testifying
I think it's making an argument about confrontation.
It's a 911 call made by the ...