[Cite as State v. Miller, 2016-Ohio-4993.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                   )

STATE OF OHIO                                         C.A. No.     14CA010556

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
BOHANNON R. MILLER                                    COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   13CR086882

                                  DECISION AND JOURNAL ENTRY

Dated: July 18, 2016



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Bohannon Miller, appeals the judgment of the Lorain

County Court of Common Pleas convicting him of several offenses including aggravated murder

and attempted murder, and sentencing him to a total prison term of 51 years to life. For the

reasons that follow, we affirm the trial court’s judgment.

                                                 I.

        {¶2}     The Lorain County Grand Jury indicted Miller on a variety of offenses including

aggravated murder in violation of R.C. 2903.01(A), an unspecified felony, and attempted murder

in violation of R.C. 2903.02(A), 2923.02(A), a felony of the first degree, as well as several

firearm specifications in violation of R.C. 2941.145, 2941.146. The charges arose from a June

2009 incident that occurred at the corner of Long Avenue and 13th Street in Lorain, Ohio. At

approximately 10:00 p.m., a vehicle drove through the area and its occupants opened fire,

shooting two individuals, C.R. and M.M. C.R. sustained two non-fatal injuries after being shot
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once in the leg and once in the side. However, M.M. sustained fatal gunshots to his chest and

later died from his injuries. Police were already present in the area to investigate a separate

murder and they quickly responded to the scene. They learned from witnesses that the suspect’s

vehicle was a gold or silver Taurus and that the shooter stood through the sunroof while shooting

at C.R. and M.M.

       {¶3}    After learning this, police received a dispatch that someone had called to report

suspicious activity at the intersection of 30th Street and Caroline Avenue, where four males were

seen exiting a vehicle and wiping it down. Police responded to this location and found a gold

Taurus that matched the witnesses’ description of the shooter’s vehicle. The Taurus’s sunroof

was open and police discovered a spent cartridge in the vehicle. BCI matched this cartridge to

cartridges discovered at the scene of the shooting. Police also linked the gold Taurus to Miller

and conducted a follow-up investigation.

       {¶4}    During the course of this subsequent investigation, Lorain Police Detective Ernest

Sivert interviewed R.F. In his first interview, R.F. said that he was not present during the

shooting and had no knowledge of the shooter’s identity.        However, in his second police

interview, R.F. said that he was seated in the backseat of the Taurus at the time of the shooting.

And, R.F. stated that Miller was one of the vehicle’s other occupants and that Miller was the

person who shot toward C.R. and M.M. R.F. was not entirely clear in his description of Miller’s

actions except that he stood and shot toward the victims out of the vehicle’s passenger side. R.F.

also confirmed that after the incident, all four of the vehicle’s occupants wiped the vehicle down

and left it at the intersection of 30th Street and Caroline Avenue. The State entered into an

agreement with R.F. whereby he agreed to testify regarding Miller’s actions during the June

2009 incident in exchange for immunity in the incident.
                                                  3


       {¶5}    The matter proceeded to a jury trial. During the pendency of the trial, R.F.

indicated that he would not testify as required under the agreement. Subsequently the State filed

a notice under Evid.R. 804(B)(6) that it intended to introduce evidence regarding R.F.’s out-of-

court statements. The trial court conducted an evidentiary hearing outside the presence of the

jury to address the issue. At the hearing, Detective Sivert testified that after the trial started, he

met with R.F., who was in county jail along with Miller pending the resolution of their respective

court cases. R.F. indicated that during one interaction over a glass partition at the jail, Miller

held a document up to the glass and told him that he was the only person who could “sink”

Miller. Miller also said the names of R.F.’s nieces, which R.F. interpreted as a threat. Detective

Sivert authenticated two jail surveillance videos and testified that they confirmed that R.F. and

Miller interacted over the glass partition.      However, the video contained no audio of the

interaction.

       {¶6}    According to Jail Administrator Andy Laubenthal, R.F. requested administrative

segregation. The basis for R.F.’s request was that he was fearful for his life after receiving

threats and experiencing several incidents of misbehavior directed toward him, including an

incident in which another inmate threw urine into his jail cell. Administrator Laubenthal granted

the request and R.F. was put into protective custody away from other inmates in the county jail.

       {¶7}    Chief Assistant Prosecutor Tony Cillo testified that he learned of R.F.’s decision

to no longer cooperate and consequently discussed with him the ramifications of that decision for

his plea agreement. During the course of that discussion, R.F. told Mr. Cillo that a prison gang

attacked him several times in the jail because he would be “snitching” against Miller, one of the

gang’s associates. R.F. also repeated the threat that Miller made against his nieces over the glass

partition and the fear that he had both for his own life and the lives of his family members.
                                                   4


       {¶8}      The trial court called R.F. to testify at the hearing. He relevantly testified as

follows:

       The Court:       * * * [H]ave you been threatened regarding coming to court and
       testifying in this case?

       The Witness: Yes.

       The Court:        Are you in fear because of these threats.

       The Witness: Yes.

       The Court:        You take the threats seriously?

       The Witness: Right. That’s why I don’t want to testify.

       ***

       The Court:     * * * Have you been threatened by either Bohannon Miller or
       people who you believe have reason to believe are doing the work of Bohannon
       Miller, or doing, or making the threat on behalf of Bohannon Miller [?]

       The Witness: Yes.

After hearing the testimony, the trial court found that the State met its burden to show that Miller

engaged in wrongdoing by threatening R.F. for the purpose of making him unavailable to testify.

       {¶9}      Detective Sivert subsequently testified during the trial to R.F.’s out-of-court

statements regarding the shooting. Additionally, the trial court admitted the recording of R.F.’s

second police interview into evidence.1 The jury then found Miller guilty of all counts alleged in

the indictment and the trial court sentenced him to a total prison term of 51 years to life. Miller

filed this timely appeal, which presents one assignment of error for our review.




       1
           The trial court also admitted the video of the first police interview into evidence.
                                               5


                                               II.

                                     Assignment of Error

       The trial court abused its discretion in admitting, over the objection of
       defense counsel, hearsay testimony in violation of the Sixth and Fourteenth
       Amendments to the United States Constitution.

       {¶10} In his sole assignment of error, Miller argues that the trial court erred by

admitting evidence regarding R.F.’s out-of-court statements.       Specifically, he argues that

allowing the statements into evidence violated both Evid.R. 804(B)(6) and the Confrontation

Clause. We disagree.

       {¶11} Initially, we note that “[b]ecause testimony may be admissible under the

Confrontation Clause yet inadmissible under the rules of evidence, and vice versa, the

declarant’s statements must fall within the constitutional requirements and the rules of evidence

to be admissible.” (Emphasis sic.) State v. Nevins, 171 Ohio App.3d 97, 2007-Ohio-1511, ¶ 36

(2d Dist.). As a result, we consider Miller’s evidentiary and Confrontation Clause challenges to

the admission of R.F.’s statements separately. See State v. Hand, 107 Ohio St.3d 378, 2006-

Ohio-18, ¶ 84, 103 (considering first whether challenged out-of-court statements were admissible

under Evid.R. 804(B)(6) and second whether their introduction was consistent with the

Confrontation Clause).

                               A. Standard of Review for Hearsay

       {¶12} “The decision to admit or exclude evidence at trial lies within the sound discretion

of the trial judge, and the court’s decision will not be reserved absent a showing of an abuse of

discretion.” State v. Stover, 9th Dist. Wayne No. 13CA0035, 2014-Ohio-2572, ¶ 7. An abuse of

discretion is more than an error of judgment; it implies that the trial court’s decision was

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
                                                 6


(1983). When applying the abuse of discretion standard, we may not simply substitute our own

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶13} Hearsay is defined as “a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Evid.R. 801(C). Hearsay statements are inadmissible except as otherwise provided in the Ohio

Rules of Evidence or other relevant constitutional or statutory provision. Evid.R. 802. One such

hearsay exception is found in Evid.R. 804(B)(6), the “forfeiture by wrongdoing” provision,

which excepts the following from the hearsay rule: “A statement offered against a party if the

unavailability of the witness is due to the wrongdoing of the party for the purpose of preventing

the witness from attending or testifying.” To satisfy the rule’s requirements, “the offering party

must show (1) that the party engaged in wrongdoing that resulted in the witness’s unavailability,

and (2) that one purpose was to cause the witness to be unavailable at trial.” Hand at ¶ 84; see

also State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, ¶ 158. The proponent of the

evidence must prove both of these prongs by a preponderance of the evidence. Hand at ¶ 87.

            B. The Admission of R.F. Statements Did Not Violate Evid.R. 804(B)(6)

       {¶14} Miller focuses his hearsay-based arguments on two points: (1) the trial court could

not find that he engaged in wrongdoing unless the State offered evidence that he killed or

seriously injured R.F.; and (2) the trial court should have rejected the State’s request to admit the

out-of-court statements because the evidence of his threats was “general” and “without any

verification.” We reject Miller’s argument on both points.

       {¶15} As to Miller’s first point, a review of the staff notes to Evid.R. 804(B)(6) as well

as Ohio case law reveals that the rule is intended to cover more situations than simply those that

implicate the murder or serious assault of the declarant. The 2001 Staff Note to Evid.R.
                                               7


804(B)(6) states that “the wrongdoing need not consist of a criminal act.” It also provides that

“[e]ncouraging a witness to leave the state is wrongdoing in this context because no person has

the legal right to refuse to provide testimony in the absence of a privilege or other rule of

evidence.” Id. This commentary plainly contemplates that Evid.R. 804(B) covers a variety of

wrongdoing beyond the murder or physical assault of the declarant.

       {¶16} Miller correctly points out that, despite this commentary, the majority of Ohio

cases applying Evid.R. 804(B)(6) relate to the defendant’s wrongdoing in the form of murdering

the declarant. But, there are instances in which Ohio courts have affirmed the admission of a

declarant’s statements after the defendant merely threatened the declarant and took no physical

action. See State v. Davis, 6th Dist. Lucas No. L-14-1274, 2015-Ohio-5159, ¶ 18-20 (holding

that testimony regarding unavailable declarant’s statement was admissible where the defendant

told declarant that “[e]verybody play their part, everybody going to be happy,” which made the

declarant fear for her life and her family’s safety); State v. Blackford, 5th Dist. Stark No.

2014CA00050, 2014-Ohio-4808, ¶ 23 (holding that testimony regarding unavailable declarant’s

statements were admissible because jailhouse phone call recording showed the defendant’s

“numerous antics to get [the declarant] not to appear for trial but also to persuade [another

witness] not to appear for trial”). This Ohio authority is consistent with the federal courts’

application of the similar forfeiture-by-wrongdoing provision contained in Fed.R.Evid.

804(B)(6). See United States v. Scott, 284 F.3d 758, 764 (7th Cir.2002) (“We think that applying

pressure on a potential witness not to testify, including by threats of harm or suggestions of

future retribution, is wrongdoing.”); United States v. Dhinsa, 243 F.3d 635, 651-652 (2d

Cir.2001) (“[T]his Court, as well as a majority of our sister circuits, have also applied the

waiver-by-misconduct rule in cases where the defendant has wrongfully procured the witnesses’
                                                 8


silence through threats, actual violence or murder.”). In light of this authority, we must reject

Miller’s argument that evidence of mere threats is insufficient to support a trial court’s finding

that the defendant engaged in wrongdoing for the purpose of making a witness unavailable for

trial.

         {¶17} We likewise reject Miller’s argument that the State offered unverified evidence to

support its contention that Miller threatened R.F. The record reflects that the State did offer

evidence that corroborated R.F.’s allegation that Miller threatened him over the trial. For

instance, the State offered a surveillance recording that showed R.F. and Miller interacting at a

glass partition in the county jail, which corroborates R.F.’s statements that Miller threatened him

at the partition. And, R.F.’s fear for his own safety appears to have been genuine since he

requested and received administrative segregation in the county jail after the glass partition

incident. Most importantly, R.F. himself testified that he was threatened by either Miller or

individuals acting on Miller’s behalf.

         {¶18} The trial judge heard R.F.’s testimony as well as all of the other evidence

regarding the veracity of Miller’s threats and their resulting effect on R.F. After hearing this

evidence, the trial judge concluded that the State proved both prongs of the Evid.R. 804(B)(6)

test. We must defer to the trial judge’s credibility determinations and consideration of the weight

of the evidence. See State v. Mills, 62 Ohio St.3d 357, 366 (1992) (“[T]he evaluation of

evidence and the credibility of witnesses are issues for the trier of fact.”). We can discern no

basis in the record to conclude that the trial judge abused his discretion in deciding that R.F.’s

version of events was credible and demonstrated wrongdoing on Miller’s part for the purpose of

preventing R.F. from testifying at trial. As a result, we conclude that the trial court did not abuse
                                                9


its discretion in deciding that R.F.’s out-of-court statements were admissible under Evid.R.

804(B)(6).

             C. The Statements’ Admission Did Not Violate the Confrontation Clause

       {¶19} We review a trial court’s admission of evidence over a Confrontation Clause

objection de novo. State v. Person, 9th Dist. Summit No. 27600, 2016-Ohio-681, ¶ 20. The

Confrontation Clause guarantees a criminal defendant the right “to be confronted with the

witnesses against him.” Sixth Amendment to the United States Constitution. This right under

the federal Constitution is applicable to the States via the Fourteenth Amendment. See Pointer v.

Texas, 380 U.S. 400, 403 (1965). The import of this protection is that it “requires, wherever

possible, testimony and cross-examination to occur at trial.” State v. Myers, 9th Dist. Summit

No. 25737, 2012-Ohio-1820, ¶ 21. Although a criminal defendant’s confrontation right is rooted

deeply in history, see Crawford v. Washington, 541 U.S. 36, 43 (2004) (“The right to confront

one’s accusers is a concept that dates back to Roman times.”), the right “is not absolute and

‘does not necessarily prohibit the admission of hearsay statements against a criminal

defendant,’” State v. Madrigal, 87 Ohio St.3d 378, 385 (2000), quoting Idaho v. Wright, 497

U.S. 805, 813 (1990).

       {¶20} The United States Supreme Court has held that the Confrontation Clause only

bars the admission of “testimonial” hearsay statements. Crawford at 68. It has further declared

that an out-of-court statement is testimonial when “in light of all the circumstances, viewed

objectively, the ‘primary purpose’ of the conversation [giving rise to the out-of-court statement]

was to ‘create an out-of-court substitute for trial testimony.’” Ohio v. Clark, 135 S.Ct. 2173,

2180 (2015), quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011). Regardless, the Court has

“explicitly preserved the principle that an accused has forfeited his confrontation right where the
                                                 10


accused’s own misconduct is responsible for a witness’s unavailability.” Hand, 107 Ohio St.3d

378, 2006-Ohio-18, at ¶ 105, citing Crawford at 62 (“The rule of forfeiture by wrongdoing

(which we accept) extinguishes confrontation claims on essentially equitable grounds; it does not

purport to be alternative means of determining reliability.”) and Reynolds v. United States, 98

U.S. 145, 158 (1879) (stating that if the witness is unavailable due to the defendant’s misconduct

then the defendant “is in no condition to assert that his constitutional rights have been violated”).

       {¶21} Here, the trial court based its preliminary determination that the out-of-court

statements of R.F. were admissible on its finding that Miller threatened R.F. for the purpose of

making him unavailable to testify at trial. As discussed above, we have determined that the trial

court did not err in making that finding. As a result, we conclude that Miller forfeited his

confrontation right by engaging in this wrongdoing and that the trial court did not err by

admitting R.F.’s out-of-court statements into evidence. See id. at ¶ 106 (determining that there

was no Confrontation Clause violation where the trial court found that the defendant killed the

declarant “to eliminate him as a potential witness”).

       {¶22} In sum, the admission of R.F.’s out-of-court statements at trial violated neither

Evid.R. 804(B)(6) nor Miller’s confrontation right. Accordingly, we overrule Miller’s sole

assignment of error.

                                                 III.

       {¶23} Having overruled Miller’s assignment of error, we affirm the judgment of the

Lorain County Court of Common Pleas.

                                                                                 Judgment affirmed.



       There were reasonable grounds for this appeal.
                                                11


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



MOORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

BRIAN J. DARLING, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
