[Cite as State v. Prichard, 2012-Ohio-1035.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                  :     JUDGES:
                                               :     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                     :     Hon. Sheila G. Farmer, J.
                                               :     Hon. John W. Wise, J.
-vs-                                           :
                                               :
TYLER PRICHARD                                 :     Case No. 11CA2
                                               :
        Defendant-Appellant                    :     OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2010CR523D



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    March 14, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

DANIEL J. BENOIT                                     RANDALL E. FRY
38 South Park Street                                 10 West Newlon Place
Mansfield, OH 44902                                  Mansfield, OH 44902
Richland County, Case No. 11CA2                                                         2

Farmer, J.

       {¶1}   On August 6, 2010, the Richland County Grand Jury indicted appellant,

Tyler Prichard, on one count of aiding and abetting attempted murder in violation of R.C.

2923.02, six counts of aiding and abetting felonious assault in violation of R.C. 2903.11,

one count of discharging a firearm into a habitation in violation of R.C. 2923.16, one

count of intimidation in violation of R.C. 2921.03, one count of having weapons while

under disability in violation of R.C. 2923.13, one count of aggravated menacing in

violation of R.C. 2903.21, and one count of resisting arrest in violation of R.C. 2921.33.

Several of the counts carried firearm specifications in violation of R.C. 2941.145. Said

charges arose from shots fired at several individuals in front of a home and the shooting

of one of those individuals.

       {¶2}   A jury trial commenced on December 2, 2010. The jury found appellant

guilty of all counts except for three of the aiding and abetting felonious assault counts

and the discharging a firearm into a habitation count.        By sentencing entry filed

December 14, 2010, the trial court sentenced appellant to an aggregate term of sixteen

years in prison.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

       {¶4}   "THE TRIAL COURT ERRED BY PREVENTING THE DEFENDANT-

APPELLANT FROM INTRODUCING TESTIMONY THAT WOULD EXCULPATED HIM

OF ALL THE CHARGES THAT HE WAS FOUND GUILTY OF."
Richland County, Case No. 11CA2                                                             3


                                              I

       {¶5}   Appellant claims the trial court erred in excluding hearsay testimony which

would have exculpated him of all charges. We disagree.

       {¶6}   Specifically, appellant argues the trial court should have permitted a

witness, his mother, Patricia Martins, to testify to statements made to her by one Eddie

Davis, as the declarant was unavailable pursuant to Evid.R. 804(A)(5) and his

statements were against interest under Evid.R. 804(B)(3).

       {¶7}   The admission or exclusion of evidence lies in the trial court's sound

discretion. State v. Sage (1987), 31 Ohio St.3d 173. In order to find an abuse of that

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217.

       {¶8}   Evid.R. 801(C) defines "hearsay" 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."

       {¶9}   Appellant proffered the excluded testimony as follows:

       {¶10} "Ms. Martins will testify that she saw this Eddie Davis somewhere and was

talking to him. Eddie told her that he and another fellow he wouldn't name were out in

the area that night. They had a gun that they were just going to shoot up in the air. At

that point Steve or Eric and Marquis confronted him, they got into arguments, eventually

shots were fired, and Tyler Prichard was not there. That's the gist of what that hearsay,

if it is hearsay, testimony would be." T. at 588.
Richland County, Case No. 11CA2                                                              4


       {¶11} This testimony qualifies as hearsay because it was offered as evidence to

prove the truth of the matter asserted, appellant's alibi defense. However, appellant

argues the testimony should have been permitted under Evid.R. 804(A)(5) and (B)(3).

Evid.R. 804 governs hearsay exceptions if the declarant is unavailable. Pertinent to this

case is subsection (A)(5) which states the following:

       {¶12} " 'Unavailability as a witness' includes any of the following situations in

which the declarant:

       {¶13} "(5) is absent from the hearing and the proponent of the declarant's

statement has been unable to procure the declarant's attendance (or in the case of a

hearsay exception under division (B)(2), (3), or (4) of this rule, the declarant's

attendance or testimony) by process or other reasonable means."

       {¶14} Subsection (B)(3) provides the following:

       {¶15} "The following are not excluded by the hearsay rule if the declarant is

unavailable as a witness:

       {¶16} "(3) Statement against interest. A statement that was at the time of its

making so far contrary to the declarant's pecuniary or proprietary interest, or so far

tended to subject the declarant to civil or criminal liability, or to render invalid a claim by

the declarant against another, that a reasonable person in the declarant's position would

not have made the statement unless the declarant believed it to be true. A statement

tending to expose the declarant to criminal liability, whether offered to exculpate or

inculpate the accused, is not admissible unless corroborating circumstances clearly

indicate the truthworthiness***of the statement." (Footnote omitted.)
Richland County, Case No. 11CA2                                                        5


       {¶17} Mr. Davis was subpoenaed as a witness and was duly served by the

Sheriff by residential service on November 24, 2010. The subpoena filed November 19,

2010 ordered him to appear before the Court of Common Pleas in Richland County,

Ohio on the "2nd day of December, 2010, at 9:00 o'clock a.m. to testify as a witness on

the behalf of the defendant in a certain cause pending in said Court." The subpoena

instructed Mr. Davis to "not depart the Court without leave" and warned him that he may

be held in contempt of court for failure to appear.

       {¶18} Appellant's counsel acknowledged that Mr. Davis was present on

December 2, 2010, but was not present on December 7, 2010 when he was to be called

as a witness. T. at 588. Appellant argues this fact established that Mr. Davis was

unavailable. We disagree with this argument. First, the subpoena was issued for one

day, December 2, 2010, and was not for the continuation of the trial. Second, appellant

appeared per the subpoena on December 2, 2010. Third, there was no showing in the

record that appellant's counsel had made any additional efforts to secure his attendance

on December 7, 2010 via a new subpoena or personal contact with Mr. Davis. And

fourth, a request for a continuance to re-subpoena Mr. Davis was not made. Therefore,

a showing of unavailability was not made. State v. Keairns (1984), 9 Ohio St.3d 228.

       {¶19} Appellant also argues Mr. Davis's statements were statements against

interest. Although, the statements were against Mr. Davis's pecuniary interests, no

evidence was offered to establish "corroborating circumstances clearly indicate the

trustworthiness of the statement."

       {¶20} Admittedly, Ms. Martins testified that several individuals including

appellant were at her home during the shooting (T. at 583), but there was no direct
Richland County, Case No. 11CA2                                                    6


testimony from anyone else that appellant was physically at her home at the time.

There was no corroborating evidence about Mr. Davis's activities on the evening in

question. The focus of the proffered testimony was not that appellant was not present

at the shooting, but that Mr. Davis was present.

      {¶21} Upon review, we conclude the trial court did not abuse its discretion in

denying the proffered testimony under Evid. R. 804(A)(5) and (B)(3).

      {¶22} The sole assignment of error is denied.

      {¶23} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




                                            _s/ Sheila G. Farmer____________



                                            s/ W. Scott Gwin______________



                                            s/ John W. Wise_______________

                                                           JUDGES


SGF/sg 302
               IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
TYLER PRICHARD                           :
                                         :
       Defendant-Appellant               :         CASE NO. 11CA2




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to

appellant.




                                         _s/ Sheila G. Farmer__________



                                         s/ W. Scott Gwin______________



                                         s/ John W. Wise_______________

                                                        JUDGES
