[Cite as State v. Thomas, 2018-Ohio-2841.]


                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 106194



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                        MAISHA L. THOMAS

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED




                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-17-613189-A

        BEFORE: S. Gallagher, P.J., Laster Mays, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: July 19, 2018
[Cite as State v. Thomas, 2018-Ohio-2841.]
ATTORNEY FOR APPELLANT

J. Charles Ruiz-Bueno
36130 Ridge Road
Willoughby, Ohio 44094


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Hannah Smith
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
[Cite as State v. Thomas, 2018-Ohio-2841.]
SEAN C. GALLAGHER, P.J.:

          {¶1} Appellant Maisha L. Thomas appeals her conviction for assault. Upon review, we

affirm.

          {¶2} On January 24, 2017, appellant was charged with one count of assault in violation of

R.C. 2903.13(A) with a furthermore clause that alleged “the offense was committed by

defendant, a caretaker, against the victim, a functionally impaired person under the care of

Maisha L. Thomas.” Appellant entered a plea of not guilty, and the case proceeded to a jury

trial.

          {¶3} The following facts were adduced at trial.        The alleged assault occurred on

November 20, 2016. On that date, appellant was employed by Our Lady of the Wayside as a

caretaker at a group home for the developmentally disabled.            She and another caretaker,

Yasmeen Green, were working the same shift. The victim was under their care.

          {¶4} The victim is an adult male who suffers from physical and mental impairments.

Specifically, he has cerebral palsy, has difficulty moving the left side of his body, and uses a

wheelchair. He also suffers dementia and has mental impairments. He can become easily

agitated; he can get very belligerent and demanding; and he can become “mouthy,” curse and

yell, and use name-calling and slurs. He has been known to sometimes flail his arms or smack

himself on the side of his head and face.

          {¶5} Green testified that on the date of the incident, she and appellant were the only two

working during the shift. She testified they were getting the Hoyer lift in place to move the
victim out of bed and were prepping the victim for a shower. She stated that it is protocol to

have two caretakers when utilizing the Hoyer lift.1

         {¶6} Green testified that the victim was “going into behavior,” which she indicated means

cursing, yelling, and being agitated. Green testified that appellant was “very much annoyed and

agitated with [the victim]” and was telling the victim to “be quiet” and to “shut up.” Green

further testified that appellant “got pretty upset and she smacked [the victim]” on his face, near

his mouth, and she said “Shut the f*** up. I’m not dealing with your sh** today.” Green

stated she observed appellant smack the victim three times, once while he was in the bed and two

more times after they got him on the commode. She stated “the inside of his lip was busted” and

there was blood. Green testified the victim was not hitting himself or flailing around. She

stated she told appellant to go and Green took the victim to the shower. Green described the

victim’s demeanor as upset, sad, and crying. She testified that “he said he couldn’t understand

why she would hit him.” Following the incident, Green called Tahara English, a coworker, and

told her what happened.

         {¶7} Tahara English testified that on the date of the incident, she received a phone call

from appellant who stated “I just had to beat [the victim’s] ass” and that he had been “mouthing

off.” English also testified to receiving a call from Green about the incident. At a staff meeting

the next day, English notified Candice Abrams, who is a supervisor, of the incident. English

observed that the victim’s “lip was busted.” She did not notice any scratches.

         {¶8} Candice Abrams testified that after being notified of the incident, she called her

supervisor. She then went to see the victim and observed an abrasion on the victim’s inner lip.

         1
             “A Hoyer lift is a machine used to help disabled people get out of bed when they can’t get out themselves
or they’re too heavy to lift[.]” (Tr. 127.)
She did not observe any scratches or marks to the exterior of his face. Abrams testified that

appellant and Green did not always get along, but she believed they had worked it out. She

confirmed that two people are required to use the Hoyer lift, but that there have been times when

one person starts the process. She also testified that “[the victim] is a two-person lift.” She

further testified that the victim was not able to remember everything that happened at first, but

that he later was able to recall and that he remembered that he had been hit by appellant.

       {¶9} Michelle Gray conducted an internal investigation of the matter and determined the

claim was substantiated. An incident report was prepared, and the police were notified of the

incident. The trial court sustained an objection when Gray was asked if the victim remembered

what happened and responded, “Yes. He said he was hit. He did not remember by whom.”

       {¶10} Detective Dennis Bort investigated the incident. He took statements from the

individuals involved and spoke to the victim.        During direct examination, Detective Bort

testified that he met with the victim and “[the victim] said he was assaulted. He mention[ed]

nothing about kicking or pulling her hair.”

       {¶11} Detective Bort further testified that appellant’s account of the incident was not

consistent with Green’s account. He testified that appellant denied striking the victim; that she

stated the victim had been flailing his arms and she was trying to prevent him from hitting

himself and to prevent herself from being hit; and that she stated the victim had pulled her hair

and kicked her in the midsection. There was some question as to whether the victim would be

able to kick that high. The detective testified that appellant stated she called English, but

appellant maintained that she informed English she had been frustrated and had “wanted to
whoop [the victim’s] ass.” After conducting his investigation, taking statements, and preparing

a report, Detective Bort determined there was enough evidence to charge appellant.

       {¶12} Officer Richard Butler testified that he had received a report of an assault and had

responded to the location to begin an investigation. Officer Butler observed an injury to the

inside of the victim’s lower lip. He described the injury as consistent with being smacked across

the face. He did not observe any redness or scratch marks on the victim’s face.

       {¶13} During direct examination, the trial court sustained an objection and struck

testimony from Officer Butler stating that “[the victim] explained he was hit in the face.”

       {¶14} During cross-examination, Officer Butler testified that “it was apparent that * * * it

was tough to keep [the victim] on task, so I figured that his impairments were going to make it

challenging to get a clear, you know, description of what happened.”

       {¶15} On recross-examination, the following questions were asked by defense counsel,

and answers were provided by Officer Butler:

       Q. And isn’t it true that Candice Abrams indicated to you that [the victim] would
       agree that any of the staff hit him if he were asked?

       A. That was said to me, not [another officer].

       Q. I know. That’s why I’m recalling you.

       A. You’re correct on that, yes.

       Q. And that she didn’t believe that he was necessarily reliable?

       A. Correct.

       Q. Okay.

       {¶16} On redirect examination, the trial court overruled an objection to the following

question and answer:
       Q. [The victim] did say that Ma’Isha Thomas did hit him, correct?

       A. Correct.

       {¶17} Appellant testified that on the date of the incident, she and Green were the only two

working at the time of the incident. She stated she was uncomfortable working with Green and

that the two had several arguments on shift. Appellant testified she went into the victim’s room

alone and began strapping him for the Hoyer lift. She stated that the victim had been swinging

his arms and yelling and cursing. Appellant testified that when she bent down, the victim

grabbed her ponytail. She stated she was able to get him to release his fingers and push his arm

back down. She testified that he was yelling, which was not unusual, as she continued to strap

him on the Hoyer lift and that he kicked her. She denied striking the victim in any way. She

stated she did grab his wrist while he was smacking himself. She testified that she first saw

Green at the doorway when the victim had kicked her. She denied Green ever asking her to

leave the room. She said she called English and told her she “wanted to whoop [the victim’s]

ass” because she was venting and upset with him for kicking her.

       {¶18} Another employee, who had worked in the group home with appellant and is her

friend, testified that it was not unusual for a single staff member to operate and place the victim

into the Hoyer lift. She also testified that there were times when the victim would kick and

scream when being attended, and that sometimes he “may swing on you.”

       {¶19} Cynthia DeRose, a nurse who did not perform the assessment of the victim,

testified that she looked at the photographs and thought the injury may have been a canker sore.

Photographs were introduced depicting the injury to the victim’s inner lip.
       {¶20} The jury found appellant guilty of assault as charged in the indictment, a felony of

the fourth degree. The trial court sentenced appellant to 30 months of community control, with

a one-year suspended prison sentence, and sentenced her to 90 days house arrest subject to

electronic monitoring.

       {¶21} Appellant timely filed this appeal. Under her sole assignment of error, appellant

claims as follows: “The trial court committed prejudicial error by allowing hearsay testimony of

the non-testifying victim through the state’s witnesses.”

       {¶22} Appellant states that “[t]he crux of [her] appeal is centered upon the allowance of

the testimony of Detective Dennis Bort and Officer Richard Butler, who provided hearsay

testimony of the victim identifying [appellant] as the assaulter.” Specifically, she points to the

testimony of Detective Bort, who stated, without objection, that “[The victim] said that he was

assaulted. He mention[ed] nothing about kicking or pulling her hair.” She also points to the

testimony of Officer Butler, who responded “correct” to the question “[The victim] did say that

Ma’Isha Thomas did hit him, correct?” An objection was raised and overruled as to this

testimony from Officer Butler.

       {¶23} The record reflects that while the trial court sustained certain objections to

testimony relaying what the nontestifying victim had stated to others about the assault, the trial

court overruled the objection raised during Officer Butler’s testimony. Appellant claims this

testimony constituted inadmissible hearsay under Evid.R. 802, and was not subject to any

exceptions.

       {¶24} The record also reflects several instances where objections were not raised to

testimony that was elicited concerning the victim’s statements, including during the testimony of
Detective Bort. Appellant maintains that it was plain error to allow the testimony of Detective

Bort, made without objection, because it affected her substantial rights since the testimony

violated appellant’s right to confront the witnesses against her under the Confrontation Clause of

the Sixth Amendment to the United States Constitution. The Confrontation Clause “prohibits

the admission of ‘testimonial statements’ of a witness who did not appear at trial, unless the

witness was unavailable to testify and the defendant had a prior opportunity for

cross-examination.”    State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner’s Office, Slip

Opinion No. 2017-Ohio-8988, ¶ 46, citing Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct.

1354, 158 L.Ed.2d 177 (2004).

       {¶25} Appellant points to State v. Iverson, 8th Dist. Cuyahoga No. 85593,

2005-Ohio-6098, wherein a defendant’s conviction for carrying a concealed weapon was vacated.

 This court found the Sixth Amendment’s Confrontation Clause was violated when the state

elicited testimonial hearsay from a police officer, who lacked personal knowledge, about the

findings regarding the location and concealment of a weapon that were made by a second police

officer who was not present at trial. Id. at ¶ 15. Also, additional hearsay testimony was

introduced relevant to the operability of the weapon. Id. This court found that although trial

counsel did not always object to the hearsay testimony, it was plain error to admit the evidence

since but for the evidence, there was no independent evidence offered regarding the weapon’s

concealment or its operability.    Id. at ¶ 18.   Unlike Iverson, in this case there was other

testimony offered regarding the assault.

       {¶26} Nevertheless, appellant claims that the cumulative effect of the hearsay statements

of the victim who was not present at trial affected the outcome of the jury verdict. She argues
that the jury was allowed to believe that the victim, himself, had corroborated Green’s testimony,

without appellant’s right of confrontation. We are not persuaded by her argument.

       {¶27} Initially, we find that the challenged testimony of Officer Butler and Detective Bort

was hearsay. 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.” Evid.R. 802 generally deems hearsay inadmissible unless the evidence falls

under a specific exception to the hearsay prohibition. State v. Montgomery, 148 Ohio St.3d 347,

2016-Ohio-5487, 71 N.E.3d 180, ¶ 87.

       {¶28} The state contends that the subject testimony was admissible pursuant to Evid.R.

804.   Evid.R. 804(B) sets forth hearsay exceptions when the declarant is unavailable as a

witness. “Unavailability as a witness” is defined to include a situation in which the declarant “is

unable to be present to testify at the hearing because of * * * then-existing physical or mental

illness or infirmity.” Evid.R. 804(A)(4). Assuming arguendo that the victim can be considered

unavailable as a witness as argued by the state, it still must be shown that one of the hearsay

exceptions set forth under the Evid.R. 804(B) is applicable herein.        The state cites to no

exception.

       {¶29} Relevant hereto, Evid.R. 804(B)(5) pertains to statements by an incompetent

person and only applies when all of the specified conditions are met, which is not the case herein.

 The rule provides the following:

       (B) Hearsay exceptions. The following are not excluded by the hearsay rule if the
       declarant is unavailable as a witness:

       ***
          (5) Statement by a deceased or incompetent person. The statement was made by
          a decedent or a mentally incompetent person, where all of the following apply:

          (a) the estate or personal representative of the decedent’s estate or the guardian
          or trustee of the incompetent person is a party;

          (b) the statement was made before the death or the development of the
          incompetency;

          (c) the statement is offered to rebut testimony by an adverse party on a matter

          within the knowledge of the decedent or incompetent person.

Evid.R. 804(B)(5).

          {¶30} The state also argues that the testimony falls under Evid.R. 803(3), which provides

an exception to the hearsay rule for “[a] statement of the declarant’s then existing state of mind,

emotion, sensation, or physical condition.” However, the testimony of Detective Bort and

Officer Butler concerning the victim’s statements about the incident did not relate to the victim’s

then existing state of mind. The state of mind exception under Evid.R. 803(3) “does not include

statements of belief of past events by declarant. To include statements of belief about a past

event would negate the entire proscription against hearsay evidence.” 1980 Staff Notes, Evid.R.

803(3).

          {¶31} Not only was the challenged testimony of Detective Bort and Officer Butler

hearsay, but also, because it was testimonial hearsay, it implicates the Confrontation Clause.

Even so, “Confrontation Clause claims are subject to harmless-error analysis.” State v. Beasley,

Slip Opinion No. 2018-Ohio-493, ¶ 178, citing State v. McKelton, 148 Ohio St.3d 261,

2016-Ohio-5735, 70 N.E.3d 508, ¶ 192.

          {¶32} Constitutional error is harmless if it is determined to be harmless beyond a

reasonable doubt. State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 78,
citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). “Whether

a Sixth Amendment error was harmless beyond a reasonable doubt is not simply an inquiry into

the sufficiency of the remaining evidence. Instead, the question is whether there is a reasonable

possibility that the evidence complained of might have contributed to the conviction.” Id., citing

Chapman at 23. Upon a review of the record, we find any error in allowing this testimony was

harmless beyond a reasonable doubt.

       {¶33} Green testified that right after the assault, she gave the victim his shower. She

described the victim’s demeanor as being upset, sad, and crying. She testified that the victim

stated he could not understand why appellant would hit him. No objection was raised, and this

testimony arguably was admissible under the excited-utterance exception to the hearsay rule,

Evid.R. 803(2). Further, the jury heard testimony that the victim was mentally impaired; that

statements of the victim were not necessarily reliable; that he was not always able to remember;

and that if he were asked, the victim would agree that any of the staff hit him.

       {¶34} The record also reflects that the jurors heard other evidence of the assault. The

testimony at trial included testimony from an eyewitness, Green, who testified she witnessed

appellant assault the victim. Green provided a detailed description of the assault, indicating

appellant slapped the victim three times. Another witness, English, testified that Green called

her and informed her of the assault, and that appellant called her and admitted to the assault.

Photographs of the victim depicted an injury to his inner lip that was consistent with being

slapped across the face.

       {¶35} The jurors heard that the assault was deemed substantiated by an internal

investigation and that the police found there was enough evidence to charge appellant. Although
appellant denied striking the victim and provided a different version of the incident, the jurors

were able to assess the witnesses’ credibility and were free to accept the testimony offered by the

state’s witnesses. See State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶

197.

       {¶36} Because there is no reasonable possibility that the improperly admitted evidence

contributed to the conviction, the trial court’s allowance of the hearsay testimony and the alleged

Confrontation Clause violation was harmless beyond a reasonable doubt. We also are unable to

find the cumulative effect of any errors deprived appellant of a fair trial. Appellant’s sole

assignment of error is overruled.

       {¶37} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.      The       court

finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.      Case remanded to the trial court for execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



SEAN C. GALLAGHER, PRESIDING JUDGE

ANITA LASTER MAYS, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
[Cite as State v. Thomas, 2018-Ohio-2841.]
