[Cite as State v. Henderson, 2019-Ohio-130.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                         STATE OF OHIO,

                                          Plaintiff-Appellee,

                                                  v.

                                    HAKEEM HENDERSON,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                        Case No. 16 MA 0057


          Application for Reconsideration; Application for En Banc Consideration

                                        BEFORE:
                  Carol Ann Robb, Gene Donofrio, Kathleen Bartlett, Judges.


                                               JUDGMENT:
                                                 Denied.


Atty. Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant
Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
for Plaintiff-Appellee and
Atty. Rhys B. Cartwright-Jones, 42 N. Phelps St, Youngstown, OH 44503 for Defendant-
Appellant.

                                      Dated: January 11, 2019
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PER CURIAM.

       {¶1}   For the following reasons, this court hereby denies Defendant-Appellant
Hakeem Henderson’s application for reconsideration and his request for en banc
consideration.
       {¶2}   Appellant was convicted in the Mahoning County Common Pleas Court of
engaging in a pattern of corrupt activity and two counts of aggravated murder. On
appeal, one of Appellant’s assignments of error contended the trial court erred in
admitting the hearsay statement of a witness under the forfeiture by wrongdoing
exception to the confrontation clause, arguing nothing implicated Appellant in
wrongdoing with regards to the witness.         We overruled Appellant’s argument and
affirmed his conviction on November 30, 2018. State v. Henderson, 7th Dist. No. 16 MA
0057, 2018-Ohio-5124. The clerk noted service of our judgment on the docket on
December 6, 2018.
       {¶3}   Appellant filed this timely application for reconsideration on Monday,
December 17, 2018. See App.R. 26(A)(1)(a) (no later than ten days after the clerk has
both mailed to the parties the judgment or order in question and made a note on the
docket of the mailing). The same requirements apply to an application for en banc
consideration.   App.R. 26(A)(2)(c).    “The test generally applied upon the filing of a
motion for reconsideration in the court of appeals is whether the motion calls to the
attention of the court an obvious error in its decision, or raises an issue for consideration
that was either not considered at all or was not fully considered by the court when it
should have been.” Hills & Hollers, LLC v. Ohio Gathering Co., LLC, 7th Dist. No. 17
BE 0040, 2018-Ohio-3425, ¶ 4, quoting Columbus v. Hodge, 37 Ohio App.3d 68, 523
N.E.2d 515 (10th Dist.1987), paragraph one of the syllabus. Reconsideration is not a
second appeal or a mechanism to raise a new argument. Hills & Hollers, 7th Dist No.
17 BE 0040 at ¶ 4. We need not re-explain our decision where the defendant is merely
using the application as a means to express dissatisfaction with the logic used and
conclusions reached in the appellate decision. See id.




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       {¶4}   When a party makes an application for en banc consideration, the party
“must explain how the panel's decision conflicts with a prior panel's decision on a
dispositive issue and why consideration by the court en banc is necessary to secure
and maintain uniformity of the court's decisions.” App.R. 26(A)(2)(b). If it is determined
that two of the court’s decisions conflict, a majority of the en banc court may order the
proceeding be considered en banc. App.R. 26(A)(2)(a). However, “Consideration en
banc is not favored and will not be ordered unless necessary to secure or maintain
uniformity of decisions within the district on an issue that is dispositive in the case in
which the application is filed.” App.R. 26(A)(2)(a).
       {¶5}   Appellant’s application for reconsideration argues the forfeiture by
wrongdoing exception to the confrontation clause requires some evidence of a
defendant’s knowing participation in an alleged conspiracy to prevent a witness from
testifying and there was no proof of his collusion in procuring the witness’s absence. He
states en banc reconsideration is appropriate based on a perceived conflict with ¶ 18 of
this court’s Irwin case. However, there is no conflict.
       {¶6}   In Irwin, the victim was dying of a disease when the defendant assaulted
him; the court allowed the victim’s testimony to be preserved via deposition where the
defendant’s attorney was present for cross-examination; the victim died before the
defendant’s felonious assault trial; and the deposition transcript was read to the jury at
trial. State v. Irwin, 7th Dist. No. 06 MA 20, 2007-Ohio-4996. On appeal, the defendant
raised a confrontation issue with regards to the leading questions asked at deposition
by the state and the inability to cross-examine the court reporter who took the
deposition. Id. at ¶ 9, 11, 19. We overruled these arguments. Id. at ¶ 23. We also
noted the defendant’s trial attorney objected to the deposition on the grounds that he
was not able to meaningfully question the victim at deposition due to the victim’s
condition. Although this argument was not raised on appeal, this court pointed out a
defendant forfeits his confrontation right where his “own misconduct is responsible for
the witness’s unavailability.” Id. at ¶ 18 (pointing out the defendant’s conduct was said
to have contributed to the victim’s deterioration).
       {¶7}   Initially, we note the topic was dicta in that case. (We also note that case
did not analyze the element requiring intent to procure the witness’s unavailability at



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trial.) In any event, Irwin and the case at bar have wholly distinguishable facts. There is
no conflict between them. Irwin did not involve a threat conveyed to a witness and
attributed to a jailed defendant. The cited statement in Irwin set forth the general gist of
the forfeiture by wrongdoing exception and mentioned it was preserved by the United
States Supreme Court’s Crawford case. It was not a statement requiring the defendant
to personally approach the witness. The same rule was applied to the specific and
distinct facts in Appellant’s case, and more specific law relevant to the specific facts was
set forth.
       {¶8}   As pointed out while affirming Appellant’s conviction, the wrongful
procurement of the witness’s absence need not consist of a criminal act. Henderson at
¶ 21. Since threats, intimidation, bribery, and encouragement to flee the jurisdiction can
satisfy the exception, the wrongdoing need not consist of a physical act (as happened to
be the factual situation in Irwin). See id. at ¶ 21. The defendant need not have direct
contact with the witness. Id. at ¶ 24. The elements of the test, to “seek to undermine
the judicial process by procuring or coercing silence from witnesses” as set forth by the
United States Supreme Court, do not require the defendant himself to be the one who
personally contacts the witness. Id., quoting Davis v. Washington, 547 U.S. 813, 833,
126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and Giles v. California, 554 U.S. 353, 361, 128
S.Ct. 2678, 171 L.Ed.2d 488 (2008) (discussing the situation where the defendant uses
an intermediary for the purpose of making the witness absent).
       {¶9}   We specifically concluded that a defendant’s intentional procuring of a
witness’s availability from trial may be performed by others acting on his behalf.
Henderson at ¶ 24, citing Rice v. Marshall, 709 F.2d 110, 1104 (6th Cir.1983). There
was no obvious error in our recitation of the law, which we then applied. Contrary to
Appellant’s suggestion we than analyzed his case to determine whether there was
adequate evidence showing Appellant intentionally procured the witness’s unavailability.
       {¶10} Appellant next contends there was insufficient evidence that the witness
was threatened and by whom or that Appellant participated in procuring the witness’s
absence. Appellant initially alleges there was no attempt to bring the witness to an in
chambers hearing to specify why he was afraid to testify. Yet, there was a plethora of




Case No. 16 MA 0057
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evidence presented as to how various individuals attempted to locate and communicate
with the witness, and the issue was not raised on appeal.
        {¶11} Appellant also criticizes the use of hearsay in proving the wrongdoing and
the witness’s fear to the trial court. However, the rules of evidence do not apply at
hearings to determine the admissibility of evidence. See Evid.R. 104(A) (preliminary
questions concerning the admissibility of evidence shall be determined by the court who
is not bound by the rules of evidence, except those on privilege); Evid.R. 101(C)(1).
See also United States v. Matlock, 415 U.S. 164, 172–73, 94 S.Ct. 988, 994, 39 L.Ed.2d
242 (1974) (as to hearsay at a suppression hearing, the Court held “the rules of
evidence normally applicable in criminal trials do not operate with full force at hearings
before the judge to determine the admissibility of evidence”); State v. Ash, 7th Dist. No.
16 MO 0002, 2018-Ohio-1139, 108 N.E.3d 1115, ¶ 88 (in determining the defendant’s
motivation to evaluate admissibility under the forfeiture by wrongdoing exception, the
court considers all of the evidence presented at the pretrial, including hearsay and other
acts evidence, without regard to its ultimate admissibility); In the Matter of B.W., 7th
Dist. No. 17 MA 0071, 2017-Ohio-9220, 103 N.E.3d 266, ¶ 37 (confrontation clause is a
trial right).
        {¶12} Appellant complains the declarant provided a “misty” reference to “they
say” when disclosing the defendants threatened to kill him.         As pointed out, this
reference was made in the context of discussing the trial of Appellant and his co-
defendant who was his brother.         We emphasized how circumstantial evidence
inherently possesses the same probative value as direct evidence and rational
inferences are permissible. Henderson at ¶ 32, citing State v. Treesh, 90 Ohio St.3d
460, 485, 739 N.E.2d 749 (2000), and State v. Filiaggi, 86 Ohio St.3d 230, 247, 714
N.E.2d 867 (1999).      Such rules apply even when evaluating whether the state
presented sufficient evidence to find a defendant guilty beyond a reasonable doubt.
See Treesh, 90 Ohio St.3d at 485; Filiaggi, 86 Ohio St.3d at 247. Appellant must
remember the standard at the evidentiary hearing was only preponderance of the
evidence, which means “more likely than not” and does not require a firm conviction or
belief, let alone proof beyond a reasonable doubt. Henderson at ¶ 25, 32, citing State v.




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Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 87, and State ex rel.
Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 54.
      {¶13} We thoroughly reviewed the evidence presented and concluded the
preponderance of the evidence supported a conclusion that Appellant participated in
intentionally procuring the witness’s absence from trial. There is no reason for this court
to further explain our decision as there is no obvious error or unaddressed argument.
The request to reconsider our application of the forfeiture by wrongdoing exception to
Appellant’s case is denied, and as there is no conflict with this court’s Irwin case,
Appellant application for en banc consideration is also denied


JUDGE CAROL ANN ROBB

JUDGE GENE DONOFRIO

JUDGE KATHLEEN BARTLETT

                                 NOTICE TO COUNSEL

This document constitutes a final judgment entry.




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