[Cite as Toledo v. Green, 2015-Ohio-386.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


City of Toledo                                    Court of Appeals Nos. L-14-1086
                                                                        L-14-1087
        Appellant
                                                  Trial Court Nos. CRB-13-18817
v.                                                                 CRB-13-19524

Darrick Lamont Green, Jr.                         DECISION AND JUDGMENT

        Appellee                                  Decided: January 30, 2015

                                            *****

        David Toska, City of Toledo Chief Prosecutor, and Henry Schaefer,
        Assistant Prosecutor, for appellant.

        Steven T. Casiere, for appellee.

                                            *****

        JENSEN, J.

        {¶ 1} Plaintiff-appellant, the city of Toledo, appeals the April 22, 2014 decision of

the Toledo Municipal Court dismissing the city’s case against defendant-appellee,

Darrick Lamont Green, Jr. For the reasons that follow, we reverse.
                                     I. Background

        {¶ 2} Green was charged in the Toledo Municipal Court with two counts of

domestic violence, in violation of Toledo Municipal Code 537.19A, and, alternatively,

two counts of assault, in violation of Toledo Municipal Code 537.03A. The events

leading to these charges occurred on October 29, 2013, when Green allegedly slapped

and choked Lena Garth, the mother of one of his children (Toledo Municipal Court case

No. CRB-13-18817), and on November 11, 2013, when Green allegedly slapped Brandy

Blackwood several times during an argument (Toledo Municipal Court case No. CRB-

13-19524). Blackwood and Green also have children together.

        {¶ 3} The case was set for a November 27, 2013 hearing on a temporary

protection order (“TPO”), but the victims failed to appear and no TPO was issued. Green

entered a plea of not guilty and the case was scheduled for a January 7, 2014 trial. Due to

a Level 3 snow emergency, the courthouse was closed that day and the matter was reset

for trial on March 18, 2014. Both victims failed to appear, but officers were present. The

city advised the court that it was unable to proceed without the victim in case No. CRB-

13-19524, the case involving Blackwood, but it was able to proceed in case No. CRB-13-

18817, involving Garth. It asked the court to reset case No. CRB-13-19524. Green

moved to dismiss for want of prosecution. The trial court reset both cases for April 22,

2014, at 8:30 a.m., and ordered the victims to appear and the prosecutor to subpoena

them.




2.
       {¶ 4} On April 22, 2014, defendant moved for dismissal when the victims again

failed to appear. The city told the court that it was prepared to proceed without them, but

asked that the trial be reset for that afternoon. The court observed that the officers were

also not in court. The city responded that it had all the information it needed, including

9-1-1 calls and reports from the officers, but asked again that the case be postponed until

afternoon. The trial court, apparently wishing to go forward immediately, expressed that

it did not believe it possible for the city to overcome Crawford v. Washington, 541 U.S.

36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), where the U.S. Supreme Court held that

admission of out-of-court testimonial evidence violates the Sixth Amendment unless the

witness is unavailable and the defendant had a prior opportunity to cross-examine.

Despite the city’s insistence that it had sufficient evidence to proceed, the court dismissed

the cases without prejudice. The city vociferously objected and asked the court to state

its reason for dismissing:

              The court: I’m dismissing the case, the victim failed to appear and I

       don’t see that it meets Crawford, so.

              Ms. West-Estell [for the city]: Thank you.

              The court: Sixth Amendment issues. There you go.

              Ms. West-Estell: Okay.

              The court: Be happy to get appealed on this one. So we can finally

       get some decisions.




3.
            Ms. West-Estell: He beat up these women within 12 days of one

     another, Judge.

            ***

            The court: Didn’t—I will not have—don’t put me to say whether he

     beat them or not, I don’t know that. They are not here interested enough to

     tell and they just wanted to set this. I don’t know what happened. Innocent

     until proven guilty.

            Ms. West-Estell: Except there’s no trial so we can’t—you know,

     there’s not even that.

            The court: They can’t—this is a trial date and nobody’s here.

            Ms. West-Estell: And the City’s already indicated we have

     sufficient evidence to proceed.

            The court: Then we should have had them liasoned in for today.

     The officer was here last time and said he would be here.

            Ms. West-Estell: But, Judge, the City could still proceed without the

     officer. We have sufficient evidence.

            The court: Without the officer?

            Ms. West-Estell: Yes, I’ve already said we have sufficient evidence

     to proceed.

            The court: Then this is a trial date, they should be here. Second trial

     date. I am not the office of the prosecutor.




4.
       {¶ 5} The city appealed the trial court’s decisions and the appeals were

consolidated. The city assigns the following error for our review:

              THE TRIAL COURT ERRED WHEN IT DISMISSED THE

       CITY’S CASE WHEN THE CITY WAS PREPARED TO PROCEED TO

       TRIAL.

                                   II. Law and Analysis

       {¶ 6} As the Ohio Supreme Court has recognized, “[t]rial judges are at the front

lines of the administration of justice in our judicial system, dealing with the realities and

practicalities of managing a caseload and responding to the rights and interests of the

prosecution, the accused, and victims.” State v. Busch, 76 Ohio St.3d 613, 616, 669

N.E.2d 1125 (1996). As such, they have the power to regulate the practice before it and

protect the integrity of its proceedings. Id. Consistent with this power, Civ.R. 48(B)

implicitly authorizes the court to dismiss a criminal action over the prosecution’s

objection if dismissal serves the interests of justice. The rule provides that “[i]f the court

over objection of the state dismisses an indictment, information, or complaint, it shall

state on the record its findings of fact and reasons for the dismissal.” The rule does not

permit dismissal, however, “solely for the reason that the evidence is insufficient to

support conviction.” State v. Sanders, 7th Dist. Columbiana No. 12-CO-35, 2013-Ohio-

5220, ¶ 13, citing State v. Nihiser, 4th Dist. No. 03CA21, 2004-Ohio-4067, ¶ 17.

       {¶ 7} We review a trial court’s decision to dismiss a case under Crim.R. 48(B) for

an abuse of discretion. Busch at 616. An abuse of discretion is “more than an error of




5.
law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶ 8} The trial court stated its findings of fact supporting its decision to dismiss

the city’s case. Specifically, the court believed that Green’s Sixth Amendment rights

would be violated were the city to proceed without the victims or officers present and

available for examination. In reaching this decision, the court relied on Crawford, 541

U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d 177. In Crawford, the U.S. Supreme Court held

that admission at trial of out-of-court “testimonial” statements of witnesses violates the

Confrontation Clause unless the witness is unavailable and the defendant had a prior

opportunity to cross-examine. Id. at paragraph (a) of the syllabus. The right to

confrontation is not violated, however, where the statements at issue are non-testimonial.

Id. at 68.

       {¶ 9} “[T]he state, like the defendant, has a substantial right to have a criminal

trial conducted according to the proper procedure as established by the Criminal Rules,

by the Constitutions of the United States and of Ohio, and by applicable provisions in the

Revised Code.” State v. Richter, 92 Ohio App.3d 395, 399, 635 N.E.2d 1295 (6th

Dist.1993). The Ohio Rules of Criminal Procedure do not provide for summary

judgment before trial. Nihiser, 4th Dist. Hocking No. 03CA21, 2004-Ohio-4067, at ¶ 7.

       {¶ 10} The city repeatedly stated that it was prepared to go forward, despite the

absence of the victims and the officers. It did not elaborate on all the evidence it intended




6.
to present, but it insisted that it had all the information it needed, including 9-1-1

recordings and police reports. To be sure, a victim need not always consent or be present

for the city to prosecute a domestic violence charge. As for any 9-1-1 recordings or

police reports, the extent to which that evidence may be barred under Crawford could not

be ruled on before trial. The admissibility of the evidence, as it concerns Crawford, turns

on whether statements contained within those recordings or reports are “testimonial” or

“non-testimonial.” As explained by the U.S. Supreme Court:

              [S]tatements are nontestimonial when made in the course of police

       interrogation under circumstances objectively indicating that the primary

       purpose of interrogation is to enable police assistance to meet an ongoing

       emergency. They are testimonial when the circumstances objectively

       indicate that there is no such ongoing emergency, and that the primary

       purpose of the interrogation is to establish or prove past events potentially

       relevant to later criminal prosecution. Davis v. Washington, 547 U.S. 813,

       813-14, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

While in many cases statements contained in police reports have been held to be

testimonial, numerous Ohio courts have found statements made during 9-1-1 calls to be

non-testimonial. See, e.g., State v. Douglas, 3d Dist. Marion No. 9-05-24, 2005-Ohio-

6304, ¶ 45; State v. Newell, 5th Dist. Stark No. 2004CA00264, 2005-Ohio-2848, ¶ 23;

State v. Sharpley, 8th Dist. Cuyahoga No. 87393, 2006-Ohio-5246, ¶ 27.




7.
       {¶ 11} In determining that Crawford could not be overcome before allowing the

city to present its case, the trial court improperly prejudged the evidence. While we do

not discount the possibility that Crawford—or some other evidentiary concern— may

ultimately bar the evidence put forth by the city, any such concerns could have and

should have been addressed during trial as the evidence was presented. The court abused

its discretion in evaluating the quantity and quality of the city’s evidence before it was

presented.

       {¶ 12} We, therefore, find the city’s sole assignment of error well-taken.

                                      III. Conclusion

       {¶ 13} We reverse the April 22, 2014 judgment of the Toledo Municipal Court

dismissing without prejudice the city’s case against Green and remand for proceedings

consistent with this decision. Green is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                         Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




8.
                                                              Toledo v. Green
                                                              C.A. Nos. L-14-1086
                                                                        L-14-1087




Arlene Singer, J.                             _______________________________
                                                          JUDGE
Stephen A. Yarbrough, P.J.
                                              _______________________________
James D. Jensen, J.                                       JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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