[Cite as State v. Washington, 2018-Ohio-3177.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO,                                   :   JUDGES:
                                                 :   Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                     :   Hon. Craig R. Baldwin, J.
                                                 :   Hon. Earle E. Wise, J.
-vs-                                             :
                                                 :
JONATHAN WASHINGTON                              :   Case No. 17CA72
                                                 :
        Defendant - Appellant                    :   OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Richland County
                                                     Court of Common Pleas, Case No.
                                                     2016-CR-0754



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    August 8, 2018



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

GARY BISHOP                                          JEFFREY P. UHRICH
Prosecuting Attorney                                 Law Office of Jeffrey P. Uhrich
Richland County, Ohio                                P.O. Box 1977
                                                     Westerville, Ohio 43086
JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 17CA72                                                  2

Baldwin, J.

      {¶1}    On August 7, 2017, appellant was convicted by a jury in the Richland

County Court of Common Pleas of two counts of kidnapping (R.C. 2941.02(A)(2)),

aggravated robbery (2911.01 (A)(1)), robbery (2911.02 (A)(2)), and theft of a motor

vehicle (2913.02 (A)(2)).

      {¶2}    Appellant appeals the decision of the Richland County Court of Common

Pleas denying his Crim.R. 29 motion and the Court’s ruling on his objection to the

testimony of Sarah Beran regarding comments made by Dominique Granger during a

telephone conversation.     Appellant also contends the jury’s verdict was against the

manifest weight of the evidence and was not supported by sufficient evidence.

      {¶3}    Appellee is the State of Ohio.

                       STATEMENT OF FACTS AND THE CASE

      {¶4}    This case began on October 21, 2016 when appellant accosted Dominique

Granger and forced him into a red Grand Am. Mr. Granger reported that appellant robbed

and kidnapped him from his residence on October 21, 2016. He testified that he was

exiting his home when appellant struck him in the head with a gun and forced him into

the driver's seat of a red Pontiac Grand Am, a vehicle owned by Mr. Granger’s current

girlfriend, Shelby May. Appellant asked Mr. Granger about a person he called “Bunk” and

ordered him to drive to Sara Beran’s house. Ms. Beran was Mr. Granger’s ex-girlfriend

and "Bunk" was her new boyfriend. Appellant focused on finding "Bunk" and provided no

other reason for the abduction.

      {¶5}    During cross examination, Tiffany Stamper contradicted Mr. Granger’s

description of the initial meeting between appellant and Mr. Granger on October 21, 2016.
Richland County, Case No. 17CA72                                                   3


She recalls texting Mr. Granger to come to her residence so she and appellant, who was

with her at the time, could buy cocaine from Mr. Granger. Ms. Stamper agreed that she

had told the police officer that Mr. Granger and appellant left in the red Grand Am. She

also told the officer that appellant returned without Mr. Granger and then told her that he

hit Mr. Granger’s head with a pistol and kept him in the trunk for three or four hours. She

also testified appellant was in possession of a gun, later determined to be a BB gun, that

was used to assault Mr. Granger. She had seen the gun earlier that night and it was not

broken. She noted that it was broken when appellant showed it to her upon returning

from his meeting with Mr. Granger. She also reported to the investigating officer that

appellant admitted that he had wrecked the Pontiac Grand Am and destroyed Mr.

Granger’s phone.

      {¶6}    When appellant and Mr. Granger arrived at Sara Beran’s home, appellant

put Mr. Granger in the trunk of the vehicle and knocked on the door. Appellant discovered

that Ms. Beran was not home, so he forced Mr. Granger to call her and tell her to come

home. Mr. Granger testified that he called Ms. Beran and plead with her to return home

with Bunk as soon as possible.

       {¶7}   Ms. Beran answered Mr. Granger’s call, and she described his voice as

scared and upset. Mr. Granger told her that appellant had him in the trunk of a car and

needed Ms. Beran and "Bunk" to come to the house. Appellant then took the phone and

told Ms. Beran that she had five minutes to get "Bunk" to her house or he was going to

shoot Mr. Granger. Ms. Beran said she was on her way and then called the police.

       {¶8}   At the conclusion of the call, appellant closed the trunk with Mr. Granger

inside and drove the car down the street. Appellant stopped the car, opened the trunk, hit
Richland County, Case No. 17CA72                                                   4


Mr. Granger with the gun and told him that he broke Mr. Granger’s phone and was going

to kill him. Appellant also took a necklace and $180.00 from Mr. Granger. Mr. Granger

was trapped in the trunk for about three to four hours.

       {¶9}   On at least one occasion appellant opened the trunk halfway, then closed

it. The record does not clearly show how many times this happened or appellant’s intent,

but Mr. Granger believed appellant was looking for a piece of the gun that had broken off

when he struck Mr. Granger. Mr. Granger had found and hidden that piece in the trunk

so that appellant could not reattach it to the gun.

       {¶10} Without warning, appellant released Mr. Granger, telling him that appellant's

friend had saved him. Appellant told Mr. Granger that he was taking the car but would

leave it at a bar called Mr. P’s.

       {¶11} Though Mr. Granger was struck with the gun at least seven times and had

suffered lacerations and bruising to his head and face, he hurried away from appellant

and went to his sister's house to get help. Once there, he contacted girlfriend, Shelby

May, and told her appellant planned to leave the vehicle at a bar. When Ms. May and the

police arrived at the bar, the car was not there. The Mansfield Police Department issued

a notice to law enforcement agencies to be on the lookout for the vehicle.

       {¶12} Shortly after the issuance of the notice to be on the lookout for Ms. May’s

red Grand Am, Trooper Duane Hunsicker of the Ohio State Highway Patrol saw a vehicle

matching the description of the vehicle. He confirmed the license plate number with

dispatch, followed the vehicle and waited for a second trooper to arrive. Before a second

trooper could arrive, the driver of the red Grand Am suddenly accelerated, hit a retaining
Richland County, Case No. 17CA72                                                   5


wall and abandoned the car. The Mansfield Police Department recovered the vehicle and

placed it in evidence.

       {¶13} Once the Grand Am arrived at the Mansfield Police Department, the officers

and staff took an inventory of the contents of the vehicle, checked for fingerprints and

swabbed for DNA. The investigators did not find any usable fingerprints, but the inventory

and DNA testing did produce relevant evidence.

       {¶14} A cell phone was located inside the vehicle. Also, Mr. Granger's ID and part

of a gun were found in the trunk of the car. Mr. Granger's Social Security card was also

found in the center console of the vehicle.

       {¶15} The State obtained a warrant, examined the data in the phone recovered

from the vehicle and discovered text conversations between appellant and Miss Stamper

supporting the conclusion that the cell phone was appellant’s and that he had used the

vehicle to kidnap Mr. Granger.

       {¶16} The State conducted DNA tests of the BB gun, the cell phone and the

steering wheel of the Grand Am. The DNA tests of the piece of the BB gun retrieved from

the trunk of the Grand Am tested positive for Mr. Granger's DNA. The results of the DNA

tests for the cell phone retrieved from the Grand Am and the steering wheel inside the

vehicle were not conclusive, but the appellant could not be eliminated as a contributor.

       {¶17} Appellant's friend, Tiffany Stamper, spoke with appellant on October 21,

2016 after the Grand Am was abandoned. Appellant told her that he was driving a car

and had crashed it while fleeing the police. He said he was able to get away from the

police because he left the car and ran. He was attempting to explain why he did not

respond to her text messages when he said he may have left his phone in the woods
Richland County, Case No. 17CA72                                                 6


when he ran from the police. During that conversation, appellant admitted to Ms. Stamper

that he put Mr. Granger in the trunk of a car and hit him. Appellant showed Ms. Stamper

the broken gun he used which turned out to be a BB gun. Appellant also admitted to Ms.

Stamper that he took money and a chain from Mr. Granger and that he destroyed Mr.

Granger's phone.

       {¶18} Mansfield Police interviewed Mr. Granger at the police station on October

24, 2106 and during the interview, he identified appellant as the man who robbed and

kidnapped him. He repeated that identification during the trial.

       {¶19} On the night of November 7, 2016, Officer Justin Cikity was dispatched to

apprehend the appellant. When approached by Office Cikity, appellant advised the officer

that he had a BB gun in his pocket. The officer recovered the BB gun and placed it with

the remaining evidence that had been gathered. Later, appellee discovered that the piece

that was recovered from the trunk of the Grand Am was the missing part of the BB gun

taken from appellant.

       {¶20} After the appellant was taken into custody, Detective Bill Bushong spoke

with him. Appellant said that the gun belonged to Ms. Stamper's child and that when he

got out of custody he was “going to whup that boy’s ass” referring to Dominique Granger

(Tr, p. 703, lines 9-14). Immediately after speaking with appellant, Detective Bushong

visited Ms. Stamper. She provided a statement and commented that she had a piece of

jewelry that may be relevant, but she was unable to find it. She contacted Detective

Bushong the next day and told him that she located the pendant. The pendant was

recovered and Mr. Granger identified it as one taken from him by appellant.
Richland County, Case No. 17CA72                                                     7


       {¶21} The BB gun used to assault Mr. Granger was described by Detective

Bushong and evidence technician Cindy Reed as similar to a real firearm. They confirmed

that it had enough weight and mass that, even though the top piece may be plastic, it was

sufficient to cause injury.

       {¶22} On December 9, 2016, the Richland County Grand Jury indicted appellant

with six counts:

       Count One: Aggravated Robbery, a felony of the first-degree in violation of

       R.C. 2911.01(A)(1).

       Count Two: Robbery, a felony of the first-degree in violation of R.C.

       2911.02(A)(2).

       Count Three: Kidnapping, a felony of the first-degree, in violation of R.C.

       2905.01(A)(2).

       Count Four: Kidnapping, a felony of the first-degree, in violation of R.C.

       2905.01(B)(1).

       Count Five: Theft of a Motor Vehicle, a felony of the fourth-degree in

       violation of R.C. 2913.02(A)(1), (5).

       Count Six: Having Weapons While Under Disability, a felony of the third-

       degree in violation of R.C. 2923.13(A)(2).

       {¶23} Appellant entered pleas of not guilty at his arraignment on December 20,

2016 and was appointed counsel. Appellant's case proceeded to trial on July 31, 2017

and ended on August 7, 2017. After the State's case in chief, the State moved to dismiss

Count Six which was granted by the Trial Court. Appellant moved for dismissal pursuant

to Crim.R. 29 and that motion was denied.
Richland County, Case No. 17CA72                                                      8


         {¶24} After the appellant completed his case, the jury was charged and returned

a verdict. Appellant was found guilty of Counts One, Two, Four and Five and not guilty

on Count Three. Sentencing was then held on August 7, 2017. As to the Aggravated

Robbery charge, the Trial Court imposed a sentence of eleven years which was merged

with Count Two. Appellant was sentenced on Count Four to five years and to eighteen

months on Count Five. All sentences as well as six hundred and six days due to his

violation of post-release control were ordered to be served consecutively.

         {¶25} Appellant filed a notice of appeal on August 25, 2017 and has submitted

three assignments of error:

         {¶26} I. THE TRIAL COURT ERRED IN OVERRUING (SIC) THE APPELLANT'S

MOTION FOR AQUITTAL (SIC) PURSUANT TO OHIO RULE CRIMINAL PROCEDURE

29(A).

         {¶27} II. THE CONVICTIONS OF AGGRAVATED ROBBERY, ROBBERY,

KIDNAPPING AND THEFT OF A MOTOR VEHICLE WERE NOT SUSTAINED BY THE

EVIDENCE AND ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶28} III. THE TRIAL COURT ERRED WHEN IT PERMITTED HEARSAY

TESTIMONY OF A LAY WITNESS REGARDING STATEMENTS MADE (SIC)

ANOTHER WITNESS DURING A TELEPHONE CONVERSATION.

                                         ANALYSIS

         {¶29} In appellant’s first and second assignments of error he argues the trial court

erred by overruling his Crim.R. 29 motion for dismissal, that the decision was against the

manifest weight of the evidence and that there was insufficient evidence to support the
Richland County, Case No. 17CA72                                                      9


verdict. The standard of review for these assertions are such that our review of the first

and second assignments will be consolidated.

       {¶30} Rule 29(A) of the Ohio Rules of Criminal Procedure states:

              The court on motion of a defendant or on its own motion, after the

       evidence on either side is closed, shall order the entry of a judgment of

       acquittal of one or more offenses charged in the indictment, information, or

       complaint, if the evidence is insufficient to sustain a conviction of such

       offense or offenses. The court may not reserve ruling on a motion for

       judgment of acquittal made at the close of the state's case.

       The standard of review under Crim.R. 29(A) is sufficiency of the evidence.

       {¶31} In reviewing a record for sufficiency, “the relevant inquiry is whether, after

reviewing the evidence in a light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime proven beyond a reasonable

doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1981) at paragraph two of the

syllabus. As the Ohio Supreme Court stated in State v. Thompkins, 78 Ohio St.3d 380,

386-387, 678 N.E.2d 541 (1997): “With respect to sufficiency of the evidence, ‘sufficiency’

is a term of art meaning that legal standard which is applied to determine whether the

case may go to the jury or whether the evidence is legally sufficient to support the jury

verdict as a matter of law.” Black's Law Dictionary (6 Ed.1990) 1433. See also, Crim.R.

29(A) (motion for judgment of acquittal can be granted by the trial court if the evidence is

insufficient to sustain a conviction). In essence, sufficiency is a test of adequacy. Whether

the evidence is legally sufficient to sustain a verdict is a question of law. State v.

Robinson, 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148 (1955). In addition, a conviction
Richland County, Case No. 17CA72                                                      10

based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida,

457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663 (1982), citing Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶32} In the case sub judice, appellant was convicted of one count of kidnapping

(R.C. 2905.01(B)(1)), one count of aggravated robbery (R.C. 2911.01(A)(1)), one count

of robbery (2911.02(A)(2)), and one count of theft of a motor vehicle (R.C. 2913.02(A)(1)).

The testimony and evidence provided by appellee provides a sufficient basis for this court

to hold that the trial court did not err in denying the motion for acquittal, that the verdict

was supported by sufficient evidence and that the verdict was not against the manifest

weight of the evidence.

       {¶33} The charge of Theft of a Motor Vehicle requires proof that appellant “with

purpose to deprive the owner of property or services, shall knowingly obtain or exert

control over either the property *** [w]ithout the consent of the owner or person authorized

to give consent.” (R.C. 2913.02(A)(1)). The appellant admitted to Ms. Stamper that he

had taken a car and wrecked it. Mr. Granger confirmed that appellant took the red Grand

Am without his permission and used it in the commission of further crimes. The owner of

the vehicle, Roberta May, and the custodian, Shelby May, both confirmed that appellant

did not have their authorization to use the vehicle. Appellant’s admission, the testimony

of the witnesses with the additional evidence and testimony presented to the jury was

sufficient to support the charge and the verdict, and the trial court did not err by denying

the motion for acquittal.

       {¶34} The record likewise contains sufficient evidence to support the kidnapping

charges. The State was obligated to show that appellant “by force, threat, or deception,
Richland County, Case No. 17CA72                                                         11


*** knowingly [did] any of the following, under circumstances that create a substantial risk

of serious physical harm to the victim *** [r]emove another from the place where the other

person is found.” (R.C. 2905.01(B)(1))”.

       {¶35} Mr. Granger testified that he was forced to drive and then put into the trunk

of the Grand Am and kept there while appellant drove the stolen vehicle and attempted

to locate and contact Ms. Beran’s current boyfriend, “Bunk.” After being placed in the

trunk, appellant struck Mr. Granger several times and threatened to shoot him with a BB

gun that could be mistaken for a real firearm. Appellant took Mr. Granger’s necklace,

$180.00 in cash and his cell phone while Mr. Granger was held captive in the trunk of the

Grand Am.     These facts provide sufficient evidence, when considered with all the

evidence, to support the trial court’s rejection of the motion for acquittal and the jury’s

verdict.

       {¶36} The Revised Code lists the elements of Aggravated Robbery as:

              (A)     No person, in attempting or committing a theft offense, as

              defined in section 2913.01 of the Revised Code, or in fleeing

              immediately after the attempt or offense, shall do any of the following:

                      (1)    Have a deadly weapon on or about the offender's

                      person or under the offender's control and either display the

                      weapon, brandish it, indicate that the offender possesses it,

                      or use it;

R.C. 2911.01(A)(1).

       {¶37} Appellant contends this charge should be dismissed or the conviction for

the same is faulty because appellant used a BB gun, which he claims does not satisfy the
Richland County, Case No. 17CA72                                                      12


definition of a deadly weapon. The testimony of the witnesses who were asked confirmed

that it closely resembled a real fire arm. The appellant brandished the weapon and

threatened Mr. Granger with death as if it was a fully functioning weapon. We have

previously concluded that a BB gun used as a weapon combined with the potential use

of it as a bludgeon, especially when it was used to injure Mr. Granger’s head and face,

provide sufficient evidence for the jury to conclude that the gun was a deadly weapon as

defined by R.C. 2923.11 (A). State v. Tessanne, 5th Dist. Stark No. 1997 CA 00416, 1998

WL 667328, (Sept. 14,1998)*3; State v. Lloyd, 5th Dist. Morgan No. 14AP0010, 2015-

Ohio-2052, ¶ 17; State v. McKnight, 5th Dist. Stark No. 1995CA00241, 1996 WL 74083,

(Feb. 5, 1996) *1.

       {¶38} Because we find the jury could reasonably conclude that the BB gun was a

deadly weapon and because it was used by appellant during the theft offense, we hold

there was sufficient evidence for the trial court to deny the motion for acquittal on the

aggravated robbery charge and the record contain sufficient evidence to support the jury’s

verdict convicting appellant of the same.

       {¶39} The State contends that appellant “in attempting or committing a theft

offense or in fleeing immediately after the attempt or offense *** [did] inflict, attempt to

inflict, or threaten to inflict physical harm on another. (Count II, Robbery, R.C. 2911.02

(A)(2)). The use of the BB gun to inflict physical harm on Mr. Granger while committing

the theft offense supported the jury’s conviction on that count as well as the judge’s refusal

to acquit on that count. Mr. Granger testified that he was struck at least seven times by

appellant with the BB gun and the cuts bruises and abrasions were evident on his face.

As physical harm is defined as “any injury, illness, or other physiological impairment,
Richland County, Case No. 17CA72                                                    13


regardless of its gravity or duration” (R.C. 2901.01), the wounds on Mr. Granger’s face

and head satisfied this requirement. The theft of the car, cash, jewelry and phone by

appellant is unrebutted by any evidence provided by appellant.

       {¶40} We hold that the trial court did not err by denying appellant’s motion for

acquittal and that there was sufficient evidence to support the jury’s guilty verdict for

robbery.

       {¶41} We likewise find that the verdict was not against the manifest weight of the

evidence. In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387 1997-

Ohio-52, 678 N.E.2d 541 (1997). Reversing a conviction as being against the manifest

weight of the evidence and ordering a new trial should be reserved for only the

“exceptional case in which the evidence weighs heavily against the conviction.” Id. We

note the weight to be given to the evidence and the credibility of the witnesses are issues

for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 237 N.E.2d 212 (1967). The trier

of fact “has the best opportunity to view the demeanor, attitude, and credibility of each

witness, something that does not translate well on the written page.” Davis v. Flickinger,

77 Ohio St.3d 415, 418, 1997–Ohio–260, 674 N.E.2d 1159.


       {¶42} The record contains nothing that would support a conclusion that “the jury

clearly lost its way and created such a manifest miscarriage of justice that the conviction
Richland County, Case No. 17CA72                                                    14


must be overturned and a new trial ordered.” Therefore, appellant’s first two assignments

of error are overruled.


       {¶43} In appellant’s third assignment of error he contends that the trial court erred

by allowing Sara Beran to testify regarding her telephone conversation with Mr. Granger

when Mr. Granger claimed that appellant “robbed him, kidnapped him, and stole the red

Pontiac Grand Am.” Ms. Beran’s statements were actually much more limited:

       Q.     When you receive the phone call from Dominique on the phone, can

       you describe his demeanor to the jury.

       A.     Yeah. He was really scared. He sounded scared and upset. I

       repeatedly asked him what was going on. And he was telling me that Gotti

       had him in the trunk of the car and that he needed me to get there and bring

       Bunk to the house.

       ***

       A:     I asked him if he was okay, because at that point it became apparent

       that something was wrong because of the sound of his voice. He said no,

       that Gotti has got me in the trunk of the car; he wants you to bring Bunk to

       your house.


Trial Transcript, p. 340.


       {¶44} Appellant objected to this testimony and the court overruled the objection

considering the testimony an “excited utterance.”

       {¶45} The admission or exclusion of evidence rests within the sound discretion of

the trial court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). A reviewing court
Richland County, Case No. 17CA72                                                      15


must not disturb a trial court's evidentiary ruling unless the ruling is found to be an abuse

of discretion. Id., citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

An abuse of discretion connotes more than an error of law or judgment; it implies that the

court's attitude is unreasonable, arbitrary or unconscionable. Adams supra, at 157. The

trial court did not abuse its discretion by admitting this evidence.

       {¶46} Under Evid.R. 803 a statement is not hearsay if it is an excited utterance.

              An excited utterance is “[a] statement relating to a startling event or

       condition made while the declarant was under the stress of excitement

       caused by the event or condition.” Evid.R. 803(2). A four-part test is applied

       to determine the admissibility of statements as an excited utterance:(a) that

       there was some occurrence startling enough to produce a nervous

       excitement in the declarant, which was sufficient to still his reflective

       faculties and thereby make his statements and declarations the unreflective

       and sincere expression of his actual impressions and beliefs, and thus

       render his statement **978 of declaration spontaneous and unreflective, (b)

       that the statement or declaration, even if not strictly contemporaneous with

       its exciting cause, was made before there had been time for such nervous

       excitement to lose a domination over his reflective faculties so that such

       domination continued to remain sufficient to make his statements and

       declarations the unreflective and sincere expression of his actual

       impressions and beliefs, (c) that the statement or declaration related to such

       startling occurrence or the circumstances of such starling occurrence, and

       (d) that the declarant had an opportunity to observe personally the matters
Richland County, Case No. 17CA72                                                   16

      asserted in his statement or declaration.*42 (Emphasis sic.) Potter v. Baker,

      162 Ohio St. 488, 124 N.E.2d 140 (1955), paragraph two of the syllabus,

      followed and approved in State v. Taylor, 66 Ohio St.3d 295, 612 N.E.2d

      316 (1993), fn. 2.


State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 166.


      {¶47} Mr. Granger’s statement that “**** Gotti had him in the trunk of the car and

that he needed me to get there and to bring Bunk to the house” was made in the midst of

the kidnapping while Mr. Granger was being held at gunpoint. Appellee provided sufficient

foundation to satisfy all of the elements set forth above by the Ohio Supreme Court in

Taylor. Further, the declarant, Mr. Granger, testified in court regarding the statement and

was subject to cross-examination. Consequently, even if, arguendo, the statement was

impermissible hearsay we find that it was cumulative and therefore, harmless. State v.

Burge, 5th Dist. Stark No. 2016CA00217, 2017-Ohio-7862, ¶ 30.

      {¶48} Appellant’s third assignment of error is overruled.

      {¶49} The judgment of the Common Pleas Court of Richmond County is affirmed.


By: Baldwin, J.

Earle Wise, J. concurs.

Hoffman, P.J. concurs separately.
Richland County, Case No. 17CA72                                                     17

Hoffman, P.J., concurring

       {¶50} I concur in the majority’s general analysis and disposition of Appellant’s

three assignments of error. I write separately only with respect to the standard of review

utilized in reviewing Appellant’s third assignment of error.

       {¶51} State. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343(1987) established the

abuse of discretion standard in determining the admission or exclusion of “relevant”

evidence. Ordinarily review of a trial court’s ruling on hearsay is under the abuse of

discretion standard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E. 2d 126 (1967).

However, while a trial court is vested with broad discretion in determining the admissibility

of evidence, such discretion must be exercised in line with the rules of procedure and

evidence. Rigby v. Lake Cty, 58 Ohio St.3d 269, 271, 569 N.E. 2d. 1056 (1991).




                                          ____________________________________
                                          HON. WILLIAM B. HOFFMAN
