[Cite as State v. Stone, 2013-Ohio-209.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       SCIOTO COUNTY

STATE OF OHIO,                        :    Case No. 11CA3462
                                      :
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
FRED L. STONE,                        :
                                      :    RELEASED 01/18/13
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Robert A. Cassity, Law Offices of Robert A. Cassity, Portsmouth, Ohio, for appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Matthew A. Wisecup, Scioto
County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     Fred Stone appeals his conviction for gross sexual imposition. He

contends that the trial court erred by allowing inadmissible hearsay in two instances.

First, he points out that the victim testified about what she told the police and second,

an officer testified about what the victim told him on the day in question. We agree the

testimony Stone complains of was inadmissible hearsay, but it was merely cumulative in

light of the other admissible testimony at trial. And considering the substantial other

evidence that supports the guilty verdict, any error by the trial court was harmless.

        {¶2}     Stone also argues that the trial court erred by admitting testimony about

his post-arrest behavior. Specifically, he argues that this other acts evidence was

admitted to show his character, was irrelevant and unfairly prejudicial. Although we

agree the court should have excluded this other acts evidence, because substantial

other evidence supports the jury’s verdict, the resulting error was harmless.
Scioto App. No. 11CA3462                                                                    2

       {¶3}   Finally, Stone claims that the trial erred by not waiving his court costs and

fines. He bases this argument on the fact the court previously found him indigent and

appointed counsel. However, Stone did not seek a waiver of court costs at sentencing

and thus we need not consider the issue here. However, the court was required to

consider his present and future ability to pay before imposing a financial sanction, such

as a fine. Because there is no information in the record regarding Stone’s financial

situation and the court did not explicitly consider his ability to pay, we reverse this

portion of his sentence.

                                          I. FACTS

       {¶4}   As the result of an encounter between Fred Stone and the victim in a

funeral home parking lot, the state charged Stone with one count of gross sexual

imposition. He pleaded not guilty and his case proceeded to trial.

       {¶5}   At trial the state contended that after the victim entered her car in the

parking lot, Stone groped her through an open window. Stone admitted that he gave

the victim a hug, but claimed that he did not grope her. The jury convicted Stone of

gross sexual imposition and the court sentenced him to 18 months imprisonment. The

court also ordered Stone to pay the costs of prosecution and imposed a fine of $1000.

This appeal followed.

                              II. ASSIGNMENTS OF ERROR

       {¶6}   Stone presents three assignments of error for our review:

       {¶7}   1. “THE TRIAL COURT ERRED IN ALLOWING THE STATE TO

INTRODUCE IMPERMISSIBLE OTHER ACTS EVIDENCE.”

       {¶8}   2. “THE TRIAL COURT ALLOWING HEARSAY TESTIMONY[sic].”
Scioto App. No. 11CA3462                                                                   3

       {¶9}   3. “THE TRIAL COURT ERRED IN NOT WAIVING THE APPELLANT’S

FINES AND COURT COSTS.”

                                       III. HEARSAY

       {¶10} For ease of analysis we address Stone’s assignments of error out of

order. In his second assignment of error, Stone argues that the trial court erred by twice

allowing inadmissible hearsay over his objection. First, he contends that the victim’s

testimony about what she told the police on the night in question was inadmissible

hearsay. He also claims that Officer Lewis’ testimony about his conversation with the

victim was hearsay and should have been excluded.

                                   A. Standard of Review

       {¶11} “A trial court has broad discretion in the admission or exclusion of

evidence, and so long as such discretion is exercised in line with the rules of procedure

and evidence, its judgment will not be reversed absent a clear showing of an abuse of

discretion with attendant material prejudice to defendant.” State v. Green, 184 Ohio

App.3d 406, 2009-Ohio-5199, 921 N.E.2d 276, ¶ 14 (4th Dist.). The term abuse of

discretion means more than an error of law or of judgment; it implies that the court's

attitude is “unreasonable, arbitrary, or unconscionable.” Stammco, L.L.C. v. United Tel.

Co. of Ohio, 125 Ohio St.3d 91, 2010-Ohio-1042, 926 N.E.2d 292, ¶ 32, quoting In re

Consol. Mtge. Satisfaction Cases, 97 Ohio St.3d 465, 2002-Ohio-6720, 780 N.E.2d 556,

¶ 5. “A review under the abuse-of-discretion standard is a deferential review. It is not

sufficient for an appellate court to determine that a trial court abused its discretion

simply because the appellate court might not have reached the same conclusion or is,

itself, less persuaded by the trial court's reasoning process than by the countervailing
Scioto App. No. 11CA3462                                                                      4

arguments.” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶

14.

       {¶12} Moreover, we apply nonconstitutional harmless-error analysis to

evidentiary errors. See State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837

N.E.2d 315, ¶ 88; State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d

810, ¶ 74. A nonconstitutional error is harmless when there is substantial other

evidence to support the guilty verdict. State v. Webb, 70 Ohio St.3d 325, 335, 638

N.E.2d 1023 (1994).

                                    B. Law and Analysis

       {¶13} “‘Hearsay’ is 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). Under Evid.R. 802, hearsay is generally inadmissible unless

it falls within a recognized exception.

       {¶14} In this case, the only testimony by the victim that Stone contends was

inadmissible hearsay was her statement: “I told [Officer Lewis] that the man - - - there

was a man that assaulted me in my car in the funeral home parking lot.” Even if we

deem this statement to be inadmissible hearsay, any resulting error was harmless. She

testified without objection that shortly after the incident with Stone, she told her mother

“that there was a man that had assaulted [her] in the parking lot.” The victim also

testified in court that Stone “sexually assaulted” her in the parking lot on the day in

question and then described the details of the assault, including that Stone “grabbed

[her] breast” and “kiss[ed] her neck.” Thus, the statement Stone complains of was

cumulative and in light of the victim’s in court testimony, was harmless error. See State
Scioto App. No. 11CA3462                                                                       5

v. Williams, 38 Ohio St.3d 346, 350, 528 N.E.2d 910 (1988) (admission of hearsay that

was cumulative testimony constitutes harmless error).

       {¶15} Stone also claims that Officer Lewis’ testimony about his conversation with

the victim was inadmissible hearsay. Lewis testified that the victim told him “that she

had been assaulted while she was sitting in her car by the Defendant. Said that he had

grabbed her breast and wrapped his arms around, and it shook her up pretty badly, and

that she had driven around the back of the funeral home.”

       {¶16} This testimony is somewhat more troublesome than the victim’s previous

statement because it identifies the defendant. It is clearly inadmissible hearsay

because the witness repeats the out of court statement of the actual declarant and it

was offered for its truth. However, it is also cumulative in light of the other testimony at

trial. The victim testified that Stone “sexually assaulted” her while she was sitting in her

car in the funeral home parking lot and she “drove around back” after this happened.

She also testified that he grabbed her breast and kissed her neck.

       {¶17} In addition, other testimony admitted without objection supports Stone’s

conviction. David Swick, the owner of the funeral home, also testified he heard a

“commotion” and found the victim in the funeral home lobby with her mother “crying and

shaking hysterically.” Moreover, he testified that Stone stated he was just trying to “get

a hug or get a kiss” from the victim. The victim’s mother also testified that the victim

returned to their apartment crying and screaming. Her mother stated that her shirt was

open and her neck was red. She also testified without objection that the victim told her

that Stone grabbed her breast.
Scioto App. No. 11CA3462                                                                     6

      {¶18} Because the state presented substantial evidence of Stone’s guilt through

other admissible testimony, the admission of the hearsay evidence was harmless. We

overrule Stone’s second assignment of error.

                             IV. OTHER ACTS EVIDENCE

      {¶19} Stone also argues that the trial court erred by allowing Officer Lewis to

testify about his post-arrest behavior. He contends that this testimony was

impermissible other acts evidence used to inflame the jury and to suggest that because

he was uncooperative, he was likely to commit the offense.

                                 A. Standard of Review

      {¶20}    “[T]rial court decisions regarding the admissibility of other-acts evidence

under Evid.R. 404(B) are evidentiary determinations that rest within the sound discretion

of the trial court.” Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, at ¶ 22.

Thus, we review the trial court’s decision regarding the admission of such evidence

under an abuse of discretion standard. Id.

                                  B. Law and Analysis

      {¶21} Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” R.C. 2945.59 also provides:

      In any criminal case in which the defendant’s motive or intent, the absence
      of mistake or accident on his part, or the defendant's scheme, plan, or
      system in doing an act is material, any acts of the defendant which tend to
      show his motive or intent, the absence of mistake or accident on his part,
      or the defendant's scheme, plan, or system in doing the act in question
      may be proved, whether they are contemporaneous with or prior or
Scioto App. No. 11CA3462                                                                       7

       subsequent thereto, notwithstanding that such proof may show or tend to
       show the commission of another crime by the defendant.

       {¶22} “Evid.R. 404 codifies the common law with respect to evidence of other

acts of wrongdoing. The rule contemplates acts that may or may not be similar to the

crime at issue. If the other act is offered for some relevant purpose other than to show

character and propensity to commit crime, such as one of the purposes in the listing, the

other act may be admissible. Another consideration permitting the admission of certain

other-acts evidence is whether the other acts ‘form part of the immediate background of

the alleged act which forms the foundation of the crime charged in the indictment’ and

are ‘inextricably related’ to the crime.” (Citations omitted.) Morris at ¶ 13, quoting State

v. Curry, 43 Ohio St.2d 66, 73, 330 N.E.2d 720 (1975). Likewise, to be admissible “the

trial court must determine that: (1) the other act is relevant to the crime in question, and

(2) evidence of the other act is relevant to an issue placed in question at trial.” State v.

Osman, 4th Dist. No. 09CA36, 2011-Ohio-4626, ¶ 95.

       {¶23} In this case, the trial court permitted Officer Lewis to testify about Stone’s

post-arrest behavior over Stone’s objection. Lewis testified that “[d]uring the booking

Mr. Stone became verbally aggressive and belligerent using pretty forceful language.”

He also stated that “when it come time to take his handcuffs off and actually put him in

the holding cell he became even more aggressive and abusive verbally with me and

Captain Goins. We talked to him for about five minutes in an effort to not have any

excessive force or any force like that to put him in the cell.”

       {¶24} Furthermore, Officer Lewis testified about Stone’s behavior once the

victim arrived at the police station. He testified that when she walked by his cell, Stone

“began kicking the cell door very hard. He was screaming very loudly.” Also while the
Scioto App. No. 11CA3462                                                                     8

victim was giving her statement, Stone stated “I can hear you,” and also made

comments “that he knew she was out there, and * * * other very derogatory comments.”

       {¶25} The state contends that Officer Lewis’ testimony was evidence of threats

or intimidation of a witness and therefore admissible to show consciousness of guilt.

We agree that Stone’s reaction to seeing and hearing the victim are arguably relevant to

his state of mind, i.e. consciousness of guilt. However, we question whether Officer

Lewis’ testimony about Stone’s other conduct was relevant to any exception under

Evid.R. 404(B) or R.C. 2945.59. Stone’s combative behavior with the police after his

arrest does not form part of the immediate background and is not inextricably related to

the charged crime of gross sexual imposition. Rather, the testimony concerned his

behavior during the arrest process and after the offense had already been committed.

Furthermore, his statements did not implicate him in the crime or show consciousness

of guilt, as he was not charged with any crimes relating to this interaction with Officer

Lewis. Nonetheless, even if the admission of the other acts evidence violates Evid.R.

404(B), we apply nonconstitutional harmless-error analysis to evidentiary errors. See

McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, at ¶ 88; Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶ 74. And as we have already

noted, because there is substantial other evidence supporting the jury’s guilty verdict,

any error in allowing Officer Lewis’ testimony concerning Stone’s post-arrest behavior

was harmless.

                             V. FINES AND COURT COSTS

       {¶26} Finally, Stone claims that the trial court erred by not waiving his fines and

court costs because it had previously found him indigent. He also argues that the trial
Scioto App. No. 11CA3462                                                                   9

court erred by ordering him to pay a $1000 fine without considering his present and

future ability to pay.

       {¶27} “Before imposing a financial sanction under section 2929.18 of the

Revised Code * * * the court shall consider the offender's present and future ability to

pay the amount of the sanction * * *.” R.C. 2929.19(B)(5). Financial sanctions include,

for example, restitution, fines, and reimbursement of the costs of community control

sanctions, confinement, or monitoring devices. R.C. 2929.18. See also State v.

Jennings, 2nd Dist. No. 24559, 2012-Ohio-1229, ¶ 6. However, court costs are

governed by R.C.2947.23 and are not considered financial sanctions. R.C. 2929.18(A).

See also Jennings at ¶ 6. Consequently, a trial court does not need to consider a

defendant's ability to pay under R.C. 2929.19 prior to imposing court costs. Jennings at

¶ 6.

       {¶28} R.C. 2947.23(A)(1) requires “[i]n all criminal cases * * * the judge or

magistrate shall include in the sentence the costs of prosecution * * * and render a

judgment against the defendant for such costs.” Despite the fact that R.C. 2947.23(A)

requires a judge to assess court costs against all criminal defendants, the Supreme

Court of Ohio has held that “‘waiver of costs is permitted – but not required – if the

defendant is indigent.’” State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d

278, ¶ 11, quoting State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d

393, ¶ 14. “That is, despite the mandatory language of former R.C. 2947.23 requiring

the imposition of court costs, a trial court may waive the payment of costs.” (Emphasis

sic.) Joseph at ¶ 11.
Scioto App. No. 11CA3462                                                                   10

       {¶29} “[A] motion by an indigent criminal defendant to waive payment of costs

must be made at the time of sentencing.” Id. at ¶ 12. “‘If the defendant makes such a

motion, then the issue is preserved for appeal and will be reviewed under an abuse-of-

discretion standard. Otherwise, the issue is waived and costs are res judicata.’” Id.

quoting State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 23.

See also State v. Rowe, 197 Ohio App.3d 10, 2011-Ohio-6614, 965 N.E.2d 1047 (4th

Dist.), ¶ 6. In this case, the record reveals that Stone failed to make a motion to waive

payment of his court costs at the time of sentencing; therefore, that issue is barred by

the doctrine of waiver.

       {¶30} As for his fine, Stone was convicted of gross sexual imposition, a felony of

the fourth degree. Under R.C. 2929.18(A)(3)(d), a trial court may impose a financial

sanction for a fourth-degree felony up to $5000. A trial court does not need to make a

specific finding, but there must be some evidence in the record that it considered the

defendant's ability to pay. State v. Williams, 4th Dist. No. 08CA3, 2009-Ohio-657, ¶ 20.

We look at the “totality of the record” to see if the trial court has satisfied this

requirement. Id. If the record shows that the court considered a pre-sentence

investigation report that provides pertinent information about the offender’s financial

situation and his ability to pay the financial sanction, it has met its obligation under R.C.

2929.19(B)(5). Id. After reviewing the record in this case, we cannot find any reference

to a pre-sentence investigation report or any other information regarding Stone’s

financial situation or ability to pay the imposed fine. And considering that the court did

not make a statement that it considered Stone’s ability to pay the financial sanction at

sentencing or in its judgment entry as required by R.C. 2929.19(B)(5), it erred by
Scioto App. No. 11CA3462                                                                  11

ordering Stone to pay the fine without first considering his ability to pay. Thus, we

sustain his third assignment of error in part.

       {¶31} In conclusion, we overrule Stone’s first and second assignments of error.

We sustain his third assignment of error in limited part and reverse the portion of the

trial court’s sentence imposing a fine. We remand the cause to the trial court for the

limited purpose of considering Stone’s present and future ability to pay any financial

sanction.

                                                       JUDGMENT AFFIRMED IN PART,
                                                               REVERSED IN PART,
                                                            AND CAUSE REMANDED.
Scioto App. No. 11CA3462                                                                    12

                                    JUDGMENT ENTRY

       It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the
costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

McFarland, P.J. & Kline, J.: Concur in Judgment and Opinion.



                                            For the Court



                                            BY: ________________________
                                                William H. Harsha, Judge



                                  NOTICE TO COUNSEL


       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
