[Cite as State v. Smith, 2020-Ohio-3994.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Earle E. Wise, Jr., J.
-vs-
                                                   Case No. 2019 CA 119
NATHANIEL SMITH, JR.

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 19 CR 0514


JUDGMENT:                                      Affirmed in Part; Reversed in Part and
                                               Remanded



DATE OF JUDGMENT ENTRY:                         August 6, 2020



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

WILLIAM C. HAYES                                JAMES A. ANZELMO
PROSECUTING ATTORNEY                            446 Howland Drive
PAULA M. SAWYERS                                Gahanna, Ohio 43230
ASSISTANT PROSECUTOR
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 2019 CA 119                                                       2


Wise, John, J.

      {¶1}      Appellant, Nathaniel Smith, Jr., appeals the judgment entered by the Licking

County Court of Common Pleas convicting him of violating R.C. 2919.25, domestic

violence committed against his wife and his daughter, and R.C. 2903.21 aggravated

menacing against Brett Showman. Appellant was sentenced to two years in prison for

each domestic violence charge to run consecutive, and six months in prison for the

aggravated menacing charge to run concurrent with the domestic violence charges.

Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

                            STATEMENT OF THE FACTS AND CASE

      {¶2}      On August 28, 2019, Appellant motioned for access to legal materials.

      {¶3}      On October 17, 2019, Appellant requested access to Lexis Nexis for legal

research, or cases pertaining to State law, the State Constitution, and police tactics.

      {¶4}      On October 24, 2019, a Motion Hearing was held where the trial court

indicated that they did not have access to Lexis Nexis, and therefore, could not provide

Appellant with access. They also indicated that Appellant had access to law books to do

his research.

      {¶5}      A jury trial occurred on November 13, 2019. Brittany Binder testified on June

26, 2019, that she saw Appellant charge out of his house after his wife B.C. and her

daughter S.C. During the altercation that followed, he went after B.C., but S.C. got in the

way. He picked S.C. up and threw her around and struck her in the face. He then went

after B.C., again with his hand cocked ready to strike her. Appellant was cursing and

screaming the entire time.
Licking County, Case No. 2019 CA 119                                                     3


      {¶6}    Brett Showman, a neighbor who witnessed the incident, then testified that

he also saw Appellant throw S.C. to the ground. After he witnessed the altercation he

drove his car up to Appellant’s house to ask Appellant to calm down. Appellant took his

attention off of B.C. and S.C. and asked Mr. Showman if he wanted to fight. Mr. Showman

said he did not want to fight, that he just wants Appellant to calm down. At that point

Appellant threatened to shoot Mr. Showman in the face.

      {¶7}    During Appellant’s cross-examination of Mr. Showman, Appellant

attempted to ask Mr. Showman about a prior misdemeanor charge for criminal

endangering. Appellee objected, and the trial court sustained the objection.

      {¶8}    Next, Patrolman Black of the Heath Police Department testified as the

responding officer to the domestic disturbance. Patrolman Black identified Appellant’s

certified copies of prior convictions for domestic violence from the 58th District Court of

the State of Michigan, and the Licking County Court of Common Pleas. Patrolman Black

identified Appellant as the individual involved in the domestic disturbance that day, and

that he was familiar with Appellant, B.C., and S.C. He testified they all lived at the same

address and he knew Appellant and B.C. were husband and wife.

      {¶9}    During closing arguments, Appellant stated he knew where B.C. and S.C.

are living.

      {¶10} The jury found Appellant guilty on all three charges. At sentencing,

information was presented regarding Appellant’s criminal history. This history included

four domestic violence convictions in ten years, and convictions for manslaughter,

obstruction of justice, and falsification. The court acknowledged that it considered the
Licking County, Case No. 2019 CA 119                                               4


purposes and principles of sentencing set out under Section 2929.11, and seriousness

and recidivism factors set out in Section 2929.12.

                                 ASSIGNMENTS OF ERROR

      {¶11} On December 9, 2019, Appellant filed a notice of appeal. He herein raises

the following three Assignments of Error:

      {¶12} “I.   THE    TRIAL    COURT     ERRED    BY   BARRING    SMITH    FROM

PRESENTING A COMPLETE DEFENSE, IN VIOLATION OF HIS RIGHTS TO DUE

PROCESS, UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION AND SECTIONS 1 & 16, ARTICLE I OF THE OHIO

CONSTITUTION, AND HIS RIGHT TO A FAIR TRIAL, AS GUARANTEED BY THE

SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16,

ARTICLE I OF THE OHIO CONSTITUTION.

      {¶13} “II. SMITH’S CONVICTIONS ARE BASED ON INSUFFICIENT EVIDENCE,

IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 1 & 16

OF THE OHIO CONSTITUTION.

      {¶14} “III. SMITH’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 1 & 16 OF THE OHIO CONSTITUTION.

      {¶15} “IV. THE TRIAL COURT UNLAWFULLY ORDERED SMITH TO SERVE

CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS

GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE
Licking County, Case No. 2019 CA 119                                                    5


FIFTH     AND     FOURTEENTH         AMENDMENTS        TO    THE     UNITED     STATES

CONSTITUTION.”

                                               I.

      {¶16} In his First Assignment of Error, Appellant argues the trial court erred by

barring him from presenting a complete defense by disallowing a recording of the victim,

S.C., talking to the police which should have been admitted under Evid.R. 803(2), that he

should have been allowed to cross examine Showman about his propensity toward

violence, and Appellant should have been allowed access to computerized legal

materials. We disagree.

      {¶17} A criminal defendant has a right to a fair opportunity to defend against the

State’s accusations. Chambers v. Mississippi (1973), 410 U.S. 284, 294. However, this

right is not absolute and applies only to evidence admissible under the rules of evidence.

State v. Swann (2008), 119 Ohio St.3d 552. “Ordinarily, a trial court is vested with broad

discretion in determining the admissibility of evidence in any particular case, so long as

such discretion is exercised in line with the rules of procedure and evidence. Rigby v.

Lake City (1991), 58 Ohio St.3d 269, 271. The appellate court must limit its review of the

trial court’s admission or exclusion of evidence to whether the trial court abused its

discretion. Id. The abuse of discretion standard is more than an error of judgment; it

implies the court ruled arbitrarily, unreasonably, or unconscionably. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217.

      {¶18} The Rule of Evidence 803(2) states:

               The following are not excluded by the hearsay rule, even though the

        declarant is available as a witness:
Licking County, Case No. 2019 CA 119                                                   6


             ***

             (2) Excited Utterance. 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.

      {¶19} A four part test has been established in State v. Taylor to determine the

admissibility under the Excited Utterance exception to the hearsay rule. State v. Taylor

(1993), 66 Ohio St.3d 295. A trial court judge must find:

             (a) 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 or beliefs, and

      thus render his statement or 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

      declaration the unreflective and sincere expression of his actual

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

      startling occurrence or circumstances of such startling occurrence, and (d)

      that the declarant had an opportunity to observe personally the matters

      asserted in his statement or declaration.

      {¶20} Id.
Licking County, Case No. 2019 CA 119                                                      7


      {¶21} At issue in this case is the second requirement set forth in Taylor that the

statement be made while the declarant is still under the stress of the startling occurrence.

      {¶22} In Taylor, the declarant was referred to as “really upset.” Taylor at 303. The

Supreme Court goes on to state, “merely being upset clearly does not meet the standard

of admissibility under Evid.R. 803(2).” Id.

      {¶23} In the case sub judice, Appellant did not proffer any evidence about S.C.’s

or B.C.’s demeanor, actions, or behavior to show that those statements were made under

any type of stress, excitement, or fear.

      {¶24} Based on evidence in the record we cannot say the decision of the trial court

was unreasonable. The evidence is insufficient to find that when S.C. made her

statements to Officer Black, she was under the stress of excitement caused by the

startling occurrence rather than a narrative based on reflective thought. Therefore, the

trial court did not abuse its discretion by disallowing the victim’s out of court statements

as hearsay.

      {¶25} Also under the First Assignment of Error, Appellant argues that because the

statements were made to a police officer they should be admitted. The Supreme Court

held, “not all out of court statements are hearsay. Hearsay is an out of court statement

offered in court as evidence to prove the truth of the matter asserted.” State v. Blevins

(1987), 10th Dist., 36 Ohio App.3d 147.

      {¶26} In Blevins, the State offered the out of court statement to provide information

on how the police investigated the case. Id. As it was not offered for the truth of the

mattered asserted, but to show the path of the investigation it is not considered hearsay.

Id.
Licking County, Case No. 2019 CA 119                                                         8


      {¶27} In the case before us, when asked what the purpose was for offering the

recordings, Appellant answered, to “expose some type of truth.” As these out of court

statements would be offered for the truth of the matter asserted, they are inadmissible

hearsay. Therefore, the trial court did not abuse its discretion by disallowing the S.C.’s

out of court statements as hearsay.

      {¶28} Appellant also argues under the First Assignment of Error, Appellant should

have been permitted to cross examine Mr. Showman on his propensity toward violence.

At trial Appellant attempted to question Mr. Showman about an incident which he

threatened his girlfriend with a gun and to kill everybody, to show he was defending

himself against the victim. This incident resulted in a misdemeanor criminal endangering

charge.

      {¶29} When a defendant is claiming self-defense, he cannot introduce evidence

of specific instances of a victim’s conduct to prove that the victim was the initial aggressor.

State v. Barnes (2002), 94 Ohio St.3d 21. Accordingly, the trial court did not abuse its

discretion in excluding the evidence of Mr. Showman’s prior conviction for criminal

endangering.

      {¶30} Appellant further argues the trial court interfered with his right to present a

complete defense by failing to provide him with access to computerized legal research.

In support of his assertion, Appellant cites State, ex rel. Greene, v. Enright (1992), 63

Ohio St.3d 729. However, this case only acknowledges that the State furnish trial

transcripts as part of a full and effective defense on appeal. Id. The Supreme Court, citing

a Sixth Circuit Court of Appeals decision, United States v. Smith, states the government

does not have to provide access to a law library to defendants in a criminal trial who wish
Licking County, Case No. 2019 CA 119                                                       9


to represent themselves. State, ex rel. Greene, v. Enright, 63 Ohio St.3d 729 (citing United

States v. Smith (6th Cir. 1990), 907 F.2d 42).

      {¶31} In the current case, the trial court made sure Appellant had access to law

books and indicated that the court did not have Lexis-Nexis access which they could

provide Appellant. Accordingly, the trial court did not abuse its discretion by not providing

access to computerized legal research.

      {¶32} The First Assignment of Error is overruled.

                                              II., III.

      {¶33} In his Second and Third Assignments of Error, Appellant argues the jury’s

guilty verdict is not supported by sufficient evidence and is against the manifest weight of

the evidence. We disagree.

      {¶34} Sufficiency of evidence and manifest weight of the evidence are separate

and distinct legal standards. State v. Thompkins (1997), 78 Ohio St.3d 380. Sufficiency

of the evidence is a test of adequacy. Id. A sufficiency of the evidence standard requires

the appellate court to examine the evidence in the light most favorable to the prosecution,

to determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259.

      {¶35} In contrast to the sufficiency of the evidence analysis, when reviewing a

weight of the evidence argument, the appellate court reviews the entire record, weighing

the evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts of evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered. State v. Thompkins (1997), 78 Ohio St.3d 380.
Licking County, Case No. 2019 CA 119                                                    10


      {¶36} Under a weight of the evidence argument, the appellate court will consider

the same evidence as when analyzing the Appellant’s sufficiency of evidence argument.

Appellant argues there was insufficient evidence to convict Appellant, and the jury clearly

lost its way as their conviction of Appellant based on the total weight of the evidence

caused a manifest miscarriage of justice.

      {¶37} The State filed a complaint alleging Appellant violated R.C. 2919.25,

domestic violence, against B.C. and S.C., and 2903.21, aggravated menacing, against

Brett Showman.

      {¶38} R.C. 2919.25 states:

              (A) No person shall knowingly cause or attempt to cause physical

       harm to a family or household member.

              (B) No person shall recklessly cause serious physical harm to a

       family or household member.

              (C) No person, by threat of force, shall knowingly cause a family or

       household member to believe that the offender will cause imminent physical

       harm to the family or household member.

      {¶39} R.C. 2903.21 states: “No person shall knowingly cause another to believe

that the offender will cause serious physical harm to the person or property of the other

person.”

      {¶40} At trial, the State produced evidence that, in violation of R.C. 2919.25,

Appellant attempted to cause physical harm to a family or household member, and R.C.

2903.21, Appellant knowingly caused Brett Showman to believe that Appellant would

cause him serious physical harm. Brittany Binder and Brett Showman both testified that
Licking County, Case No. 2019 CA 119                                                   11


Appellant threw S.C. to the ground, went after B.C. with his hand cocked as if the strike

her, and threatened to shoot Brett Showman. Ms. Binder further testified that she saw

Appellant strike S.C. in the face. Patrolman Black testified that he was familiar with

Appellant, B.C., and S.C. He knows B.C. and S.C. to be husband and wife, and that all

three reside at the same address. We find the State presented sufficient evidence, if

believed by the jury, that Appellant attempted to cause physical harm to family or

household members, B.C. and S.C. We find the State presented sufficient evidence, if

believed by the jury, that Appellant knowingly caused Brett Showman to believe Appellant

would cause him serious physical harm. Our review of the entire record fails to persuade

us that the jury lost its way and created a manifest miscarriage of justice. Appellant was

not convicted against the manifest weight of the evidence.

      {¶41} Appellant’s Second and Third Assignment of Errors are overruled.

                                              IV.

      {¶42} In his Fourth Assignment of Error, Appellant argues the trial court unlawfully

ordered Smith to serve consecutive sentences in contravention of R.C. 2929.14(C)(4).

We agree.

      {¶43} Appellant claims the trial court erred in sentencing him to consecutive

sentences. Specifically, Appellant claims the trial court failed to comply with the

requirements of R.C. 2929.14. The standard of review is whether clear and convincing

evidence exists that the trial court imposed consecutive sentences contrary to law. R.C.

2953.08.

      {¶44} R.C. 2929.14(C)(4) states the following:
Licking County, Case No. 2019 CA 119                                                    12


              (4) If multiple prison terms are imposed on an offender for convictions

      of multiple offenses, the court may require the offender to serve the prison

      terms consecutively if the court finds that the consecutive service is

      necessary to protect the public from future crime or to punish the offender

      and that consecutive sentences are not disproportionate to the seriousness

      of the offender’s conduct and to the danger the offender poses to the public,

      and if the court also finds any of the following:

              (a) The offender committed one or more of the multiple offenses

      while the offender was awaiting trial or sentencing, was under a sanction

      imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

      Code, or was under post-release control for a prior offense.

              (b) At least two of the multiple offenses were committed as part of

      one or more courses of conduct, and the harm caused by two or more of the

      multiple offenses so committed was so great or unusual that no single prison

      term for any of the offenses committed as part of any of the courses of

      conduct adequately reflects the seriousness of the offender’s conduct.

              (c) The offender’s history of criminal conduct demonstrates that

      consecutive sentences are necessary to protect the public from future crime

      by the offender.

      {¶45} “In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. Section 2929.14(C)(4) at the sentencing

hearing and incorporate its findings into its sentencing entry, but it has no obligation to
Licking County, Case No. 2019 CA 119                                                     13


state the reasons to support its findings.” State v. Payton, 5th Dist., 28-Ohio-3864 at ¶21,

quoting State v. Bonnell, 140 Ohio St.3d 209, (syllabus 2014).

      {¶46} A review of the November 13, 2019 sentencing hearing transcript indicates

the trial court did not meet the requirements of R.C. 292914(C)(4) and Payton, and the

state concedes the issue stating, “while those factors are not specifically stated by the

trial court at the sentencing hearing, the trial court certainly considered those factors.”

However, the trial court must state these findings during the sentencing hearing, as well

as incorporate them into the judgment entry. T at 247-254. Appellee’s brief at 18.

      {¶47} Appellant's Fourth Assignment of Error is granted.

      {¶48} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio, is affirmed in part and reversed in part. The sentence is vacated

and the matter is remanded to said court for rehearing on the issue of consecutive

sentencing.


By: Wise, John, J.

Hoffman, P. J., and

Wise, Earle, J., concur.




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