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City of Cleveland v. Greear

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 9, 2020

CITY OF CLEVELAND, Plaintiff-Appellee,
KENNETH GREEAR, Defendant-Appellant.

          Criminal Appeal from the Cleveland Municipal Court Case No. 18CRB011420

          Barbara A. Langhenry, Cleveland Director of Law, and Karrie D. Howard, Sharon Ross, Marco A. Tanudra and Christopher Enoch, Assistant Prosecuting Attorneys, for appellee.

          Web Norman Law, Inc., L.L.C., and William Norman, for appellant.


          FRANK 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.

         I. 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 Training program.

         {¶ 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 reasonable doubt.
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.

         We address appellant's third assignment of error first because we find it dispositive of the instant appeal.

         II. 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 inadmissible hearsay.

         {¶ 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 [t]wo.
[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 ...

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