         [Cite as State v. Kelley, 2014-Ohio-5565.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-140112
                                                          TRIAL NO. B-1302344
        Plaintiff-Appellee,                           :
                                                             O P I N I O N.
  vs.                                                 :

JOHN KELLEY,                                          :

        Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: December 19, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Schuh & Goldberg, LLP, and Brian T. Goldberg, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

       {¶1}      John Kelley was convicted of two counts of attempted murder following

a shooting at a Sharonville motel. The victims were Mr. Kelley’s old girlfriend and her

new boyfriend.

       {¶2}      In this appeal, Mr. Kelley contends the trial court erred by admitting

evidence of prior acts of domestic violence he committed against his ex-girlfriend, by

permitting the jury to consider audiotapes of the boyfriend’s interviews with police

officers as well as the boyfriend’s prior written statement, and by speaking to the jury

outside the presence of the parties. He also argues that his convictions were against the

weight and sufficiency of the evidence.

       {¶3}      We agree that the trial court erred in admitting evidence of Mr. Kelley’s

prior bad acts and portions of the out-of-court statements. But after considering the

impact of the erroneously admitted evidence and the strength of the other evidence

against Mr. Kelley, we conclude that these errors were harmless. The trial court’s ex

parte discussion with the jury was also harmless. Finally, Mr. Kelley’s convictions were

not against the weight and sufficiency of the evidence.         We therefore affirm the

judgment.

                                     I. Background

       {¶4}      On the morning of April 12, 2013, Shaudrell Foshee and her boyfriend,

Eric Davis, were returning to the Travelodge Motel in Sharonville following a night at

work. Ms. Foshee had been living at the hotel for about a month. Ms. Foshee arrived at

the door of the hotel first and encountered an armed man whom she later identified as

Mr. Kelley.




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         {¶5}   Almost immediately, the man fired at Mr. Davis. A shot struck Mr. Davis

in the elbow as he raised his arm to protect himself. Mr. Davis escaped the shooter by

running through nearby bushes to a U.P.S. store. Next, the shooter came after Ms.

Foshee, who was not as fortunate. She was shot in her back as she tried to run away and

then in her shoulder. A third shot, aimed at Ms. Foshee’s head, was deflected by her

wrist.

         {¶6}   A hotel employee, Shelia Myrick, came to Ms. Foshee’s aid and called

911. Ms. Myrick testified that when she asked Ms. Foshee if she was okay, Ms. Foshee

responded, “John Kelley shot me.” Ms. Myrick stayed with Ms. Foshee until medical

help arrived. In the days following the shooting, Ms. Myrick saw television reports about

the shooting during which photographs of Mr. Kelley were shown.              Ms. Myrick

recognized Mr. Kelley as a man who had been in the hotel lobby perhaps a week prior to

the shooting. She also identified a photograph of a red truck that she had seen in the

hotel parking lot at least two times.

         {¶7}   Officers Raymond Hugentobler and Aaron Hayes responded to the hotel.

As Officer Hayes tended to Ms. Foshee, she again stated that John Kelley had shot her.

She also told Officer Hayes that Mr. Kelley drove a red truck.

         {¶8}   While the police officers were responding to the report of the shooting at

the Travelodge, a second report was broadcast over the police radio about a shooting

victim at a nearby U.P.S. store. Officer Deanna Smith responded to that report and

found Mr. Davis. Mr. Davis told Officer Smith that he had been shot at the Travelodge

by a man named Drew, who was the father of his girlfriend’s child. Mr. Davis also stated

that Drew drove a red truck.

         {¶9}   Hours after the shooting, a passerby called police to report an

abandoned truck that matched the description of Mr. Kelley’s truck. Police officers



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found a toy license plate that said “Drew” on the truck’s dashboard and an empty DVD

case with five bullets. The truck was registered to Mary Kelley, Mr. Kelley’s mother. A

month after the shooting, Mr. Kelley was found in Georgia and extradited to Ohio.

       {¶10}    Mr. Kelley was Ms. Foshee’s ex-boyfriend and the father of her son. At

trial, over the objections of defense counsel, Ms. Foshee told the jury about her

relationship with Mr. Kelley, including at least six episodes in which he had harmed her.

According to Ms. Foshee, Mr. Kelley was often called by his middle name, “Drew.”

       {¶11}    The jury found Mr. Kelley guilty of two counts of attempted murder with

firearm specifications and four counts of felonious assault with firearm specifications.

The trial court merged the felonious-assault counts with the attempted-murder counts

and sentenced Mr. Kelley accordingly.

                                II. Evidentiary Issues

       {¶1}     Mr. Kelley’s first two assignments of error challenge some of the court’s

evidentiary decisions. In his first assignment of error, Mr. Kelley contends that the trial

court erred in admitting improper other-acts evidence. Specifically, he challenges the

introduction of testimony relating to his prior acts of violence against Ms. Foshee.

       {¶2}     In the second, he asserts that the court erred when it allowed the jury to

consider Mr. Davis’s prior statements made to police officers. He contends that when

the court required his counsel to play two interviews that Mr. Davis had with the police

and allowed Mr. Davis to read his entire written statement aloud to the jury,

inadmissible other-acts evidence and hearsay evidence were improperly admitted. We

conclude that the court erred in its handling of the evidence but that the errors were

harmless.




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          A. The Court Erred When It Allowed Other-Acts Evidence

       {¶3}    “A hallmark of the American criminal justice system is the principle that

proof that the accused committed a crime other than the one for which he is on trial is

not admissible when its sole purpose is to show the accused’s propensity or inclination

to commit crime.” State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975). Thus,

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.” See R.C. 2945.59. Evid.R. 404(B) and R.C. 2945.59 are strictly construed

against admissibility. State v. Lowe, 69 Ohio St.3d 527, 530, 634 N.E.2d 616 (1994).

We review the trial court’s decision to admit other-acts evidence for an abuse of

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

syllabus. We conclude that the court abused its discretion.

       {¶4}    The state maintains that Ms. Foshee’s testimony about Mr. Kelley’s prior

violent acts was admissible as proof of his identity as the shooter and as proof of his

motive for the crime.

       {¶5}    Other-acts evidence may be admissible when the identity of the

perpetrator of a crime is at issue. “[E]vidence of a scheme, plan, or system” may

permissibly be introduced as evidence of identity “either because the other act is part

and parcel of the plan to commit the charged crime or because the other act is so similar

to the crime charged and sufficiently idiosyncratic that it tends to prove the same person

committed both acts.” State v. Morris, 9th Dist. Medina No. 09CA0022-M, 2012-Ohio-

6151, ¶ 18, aff’d, Slip Opinion No. 2014-Ohio-5052. See State v. Lowe, supra. For

example, testimony about a defendant’s illegal purchase of a gun may be admissible



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identity evidence in a case alleging a shooting. The gun purchase is part of the plan to

carry out the shooting. Likewise, a defendant’s past use of a hammer to break windows

in “smash and grab” burglaries might be admissible identity evidence in a case about a

similar burglary on the theory that it establishes a distinct modus operandi.

       {¶6}     Here, the defense did try to make identity an issue. Counsel emphasized

the absence of physical evidence connecting Mr. Kelley to the crime and questioned

whether Ms. Foshee had indeed been able to name him as the shooter, in light of her

serious wounds. But the previous acts of violence about which Ms. Foshee testified—

ending with an incident in March 2013—were not “part and parcel” of the shooting at

the hotel. Nor were the previous acts “sufficiently idiosyncratic” to tend to prove Mr.

Kelley was the shooter. Most of the incidents involved Mr. Kelley allegedly hitting Ms.

Foshee. Only one apparently involved a gun, and that gun was not fired but used as a

threat to keep Ms. Foshee from leaving. None of the prior incidents indicate a modus

operandi that would identify Mr. Kelley as the shooter.

       {¶7}     To establish motive, other-acts evidence “should demonstrate that the

accused possesses a specific reason to commit the crime alleged.” See State v. Johnson,

2d Dist. Montgomery No. 23508, 2011-Ohio-1133, ¶ 55. Ms. Foshee testified about a

litany of violent acts beginning in 2007 and ending in March 2013, when she obtained a

protection order against Mr. Kelley. She described in detail four different episodes in

which Mr. Kelley injured her. She was unable to provide specifics about two other

incidents in which she had called police officers to report domestic violence by Mr.

Kelley. A history of escalating violence by Mr. Kelley did not provide a motive for his

actions at the Travelodge. Arguably, the most recent incident in March 2013, where Mr.

Kelley allegedly choked Ms. Foshee because he thought she was pregnant with Mr.

Davis’s child, suggesting a possible motive for the shootings—to stop Ms. Foshee’s



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                      OHIO FIRST DISTRICT COURT OF APPEALS



relationship with Mr. Davis. But there was no indication that the other prior acts of

violence that Mr. Kelley allegedly perpetrated created a reason for him to shoot Ms.

Foshee and Mr. Davis at the Travelodge on April 13.

       {¶8}     A court abuses its discretion when it acts unreasonably, arbitrarily or

unconscionably. See State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). “If

the court's exercise of its discretion, however, exhibited a sound reasoning process

that supported its decision, this court will not disturb that determination.” State v.

Clark, 1st Dist. Hamilton No. C-100693, 2011-Ohio-6030, ¶ 10.          Here, the court’s

decision to allow all of Ms. Foshee’s testimony about the past incidents lacked a sound

reasoning process. When overruling defense counsel’s motion in limine, the court

stated, “With regard to the testimony, any testimony relating to domestic violence, it is

very much a part of this case, because the domestic violence was against this particular

victim. And when that is a case, it does show a pattern.” But this demonstration of a

pattern and the inference that Mr. Kelley acted in conformity with the pattern is

precisely why other-acts evidence is generally inadmissible. The court therefore abused

its discretion in admitting the evidence.

    B. The Trial Court Erred in Admitting Prior Statements of Mr. Davis

       {¶9}     Mr. Kelley argues that the court improperly allowed inadmissible other-

acts evidence and hearsay evidence when it forced his counsel to play the entirety of Mr.

Davis’s interviews with police officers and when it allowed Mr. Davis to read his written

statement aloud. We agree that the court erred.

       {¶10}    Mr. Davis testified that he recognized the shooter as Mr. Kelley because

he had seen a picture of Mr. Kelley on Ms. Foshee’s Facebook page and because he had

witnessed an argument between Mr. Kelley and Ms. Foshee in January 2013. Defense

counsel challenged Mr. Davis’s testimony, suggesting that Mr. Davis lied during his



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                      OHIO FIRST DISTRICT COURT OF APPEALS



testimony about having seen Mr. Kelley’s face in January. Counsel then questioned Mr.

Davis about two interviews he had with Officer Mark Dudleson. When Mr. Davis stated

that he couldn’t remember the statements, counsel sought to play the portions of the

interviews in which Mr. Davis claimed that he hadn’t seen Mr. Kelley’s face during the

January 2013 incident because it had been too dark. Over defense counsel’s objection,

the trial court required that counsel play both interviews in their entirety.

       {¶11}    Under Evid.R. 613(B)(2)(a), extrinsic evidence of a witness’s prior

inconsistent statement is admissible if the subject matter is “[a] fact that is of

consequence to the determination of the action other than the credibility of the

witness[.]” When part of a statement is introduced, the opposing party “may require the

introduction at that time of any other part or any other writing or recorded statement

which is otherwise admissible and which ought in fairness to be considered

contemporaneously with it.” Evid.R. 106.

       {¶12}    Here, once defense counsel sought to play part of the statement that

addressed whether Mr. Davis had been able to see Mr. Kelley’s face in the January

incident, the state was permitted to play other parts of the statement necessary to put

Mr. Davis’s statement in context, as long as those parts were “otherwise admissible.”

While it is conceivable that, in some situations, an entire recorded statement would be

needed to put excerpted statements in context, this was not the case here. Combined,

the interviews with Officer Dudleson lasted 25 to 30 minutes. The first interview did not

mention the January incident at all. In the second interview, Mr. Davis mentioned the

January incident and stated that he was unable to see Mr. Kelley’s face that night. This

was the impeachment evidence that defense counsel sought to elicit. But the rest of the

interview went into other subjects, including allegations of Mr. Kelley’s prior acts of

violence against Ms. Foshee.



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       {¶13}    Fairness did not require admission of the bulk of the statements, which

did not add context to the question of whether Mr. Davis could identify Mr. Kelley.

More significantly, the statements were not “otherwise admissible.”           Rather, they

contained inadmissible other-acts evidence, and the court erred when it allowed them to

be played to the jury.

       {¶14}    Mr. Kelley also objects to the trial court’s decision to allow Mr. Davis to

read aloud the written statement he gave to police. Defense counsel questioned Mr.

Davis about whether, when he first saw Mr. Kelley at the hotel, he thought he was going

to fight him. To refresh his memory, counsel allowed him to read a signed statement

that Mr. Davis had provided to police officers. During redirect examination, the state

asked Mr. Davis to read the entire signed statement aloud. Over the objection of defense

counsel, the trial court allowed the statement to be read.

       {¶15}    Under Evid.R. 612, if a witness uses a writing to refresh his memory, the

opposing party “is * * * entitled * * * to introduce in evidence those portions which relate

to the testimony of the witness.” The court’s decision to allow Mr. Davis to read his

entire statement to the jury went beyond what is permitted by Evid.R. 612. In the

statement, Mr. Davis not only addressed his impression that Mr. Kelley was at the

Travelodge to fight him but also Mr. Davis’s actions after he was shot, threatening text

messages to Ms. Foshee from Mr. Kelley, and rumors “off the streets” that Mr. Kelley

had been following Mr. Davis and Ms. Foshee for three weeks. Because these portions of

the statement did not “relate to the testimony of the witness,” the court erred in allowing

the entire statement to be read to the jury.

                    C. The Evidentiary Errors Were Harmless

       {¶16}    Having concluded that the other-acts and hearsay evidence was

improperly admitted, we must determine whether the errors were harmless or require



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that we grant a new trial. The Ohio Supreme Court recently addressed the impact of

improperly admitting other-acts evidence. State v. Morris, Slip Opinion No. 2014-Ohio-

5052. “[T]he real issue when Evid.R. 404(B) evidence is improperly admitted at trial is

whether a defendant has suffered any prejudice as a result.” Id. at ¶ 25. The court

provided guidance on how to ascertain whether a defendant has been prejudiced so that

a new trial must be ordered:

        In determining whether to grant a new trial as a result of the erroneous

        admission of evidence under Evid.R. 404(B), an appellate court must

        consider both the impact of the offending evidence on the verdict and the

        strength of the remaining evidence after the tainted evidence is removed

        from the record.

Id. at syllabus.

        {¶17}      Although the court’s decision in Morris addressed only improper other-

acts evidence, we think its logic is equally pertinent to the hearsay evidence that was also

improperly admitted here.

        {¶18}      Applying Morris, if we conclude that the improperly admitted evidence

did not impact the verdict, our inquiry stops, and we must conclude the court’s errors

were harmless. Otherwise, we excise the improper evidence and consider whether the

verdicts should stand in light of the remaining properly admitted evidence.

        {¶19}      We cannot conclude that the extensive testimony about Mr. Kelley’s

violent acts against Ms. Foshee and testimony that he had been following her and Mr.

Davis did not impact the jury’s verdict. The jury heard about the other-acts evidence not

only during Ms. Foshee’s testimony but also during playback of Mr. Davis’s interviews

and the reading of his statement. It is unlikely that the jury could ignore Mr. Kelley’s




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long history of violence against Ms. Foshee and the suggestion that he had been

following the couple for weeks.

       {¶20}    Because we conclude that improperly admitted other-acts evidence and

hearsay evidence impacted the verdicts, we must take the next step delineated in Morris

and consider the strength of the remaining evidence absent the offending evidence.

Upon the record before us, we conclude that even without the evidence of Mr. Kelley’s

prior bad acts and the hearsay evidence, the evidence of his guilt was overwhelming.

Ms. Foshee identified him twice as the shooter immediately after being shot. Mr. Davis

likewise identified him. Ms. Myrick had seen Mr. Kelley at the hotel just days before the

shooting. Additionally, Ms. Foshee and Mr. Davis described the red truck that Mr.

Kelley had been driving. Phone records indicated that Mr. Kelley had fled the state

shortly after the shootings and remained at large until he was located in Georgia. We

conclude that the court’s evidentiary errors were harmless beyond a reasonable doubt.

The first and second assignments of error are overruled.

                    III. Ex Parte Communication with Jurors

       {¶21}    In his third assignment of error, Mr. Kelley asserts that the court erred

by holding an ex parte discussion with the jury. He contends that he was denied a fair

trial because on the last day of the trial, the court spoke with jurors outside his presence.

We conclude that ex parte communication was error, but that the error was harmless.

       {¶22}    A criminal defendant has a right to be present at every stage of his trial.

See, e.g., State v. Williams, 6 Ohio St.3d 281, 286, 452 N.E.2d 1323 (1983). As a result,

“any communication between judge and jury that takes place outside the presence of the

defendant * * * is error which may warrant” a new trial. Bostic v. Connor, 37 Ohio St.3d

144, 149, 524 N.E.2d 881 (1988).         Such communication is harmless unless it is

prejudicial to the defendant. State v. Abrams, 39 Ohio St.2d 53, 313 N.E.2d 823 (1974),



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paragraph two of the syllabus. “To prevail on a claim of prejudice due to an ex parte

communication between judge and jury, the complaining party must first produce some

evidence that private contact, without full knowledge of the parties, occurred between

the judge and jury which involved substantive matters.” State v. Jenkins, 15 Ohio St.3d

164, 473 N.E.2d 264 (1985), paragraph 13 of the syllabus.            A communication is

substantive when it “address[es] any legal issues, any fact in controversy, any law

applicable to the case, or some similar matter.” See State v. DiPietro, 10th Dist. Franklin

No. 09AP-202, 2009-Ohio-5854, ¶ 17.

       {¶23}    Before testimony began on the last day of the trial, the trial court met

with jurors in the jury room. The discussion was on the record, but the attorneys and

Mr. Kelley were not present. The court addressed the jurors’ safety:

       I just wanted to sort of, as a matter of protocol, I know this is a court of a

       higher level kind of—I don’t know what the word for it is, more a spirited

       trial than some of the ones that I normally have. And I wanted to make

       sure that everybody is comfortable, and no one feels intimidated in any

       way. I do want to assure you a couple of things. The first thing is that we

       have plenty of security. You may not be able to see the security, but we

       have got everything covered, if you ever have any doubt. Trust me, it’s

       not for your safety, it’s for mine.

       {¶24}    The court went on to emphasize that the courtroom was safe, and then

confirmed that the jurors could be fair and impartial. It is unclear what prompted the

discussion, but after meeting with the jury, the trial court addressed the spectators in the

courtroom and warned them:




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       I am going to tell you right now, to everybody, every single person in this

       courtroom, if you so much as blink today I am going to hold you in

       contempt of court.

       {¶25}    Mr. Kelley maintains that the ex parte discussion tainted the jury’s

decision, but he does not demonstrate how he was prejudiced. No substantive matters

were addressed with the jury during the ex parte discussion, and there is nothing in the

court’s statements that plausibly could have impacted the verdict. Thus, we conclude

the error was harmless. The third assignment of error is overruled.

                    IV. Sufficiency and Weight of the Evidence

       {¶26}    We consider the fourth and fifth assignments of error together. In the

fourth, Mr. Kelley asserts that his convictions were against the weight of the evidence,

and in the fifth, he asserts that his convictions were based on insufficient evident.

       {¶27}    As to the sufficiency argument, our review of the record reveals that

the state adduced substantial, credible evidence from which the jury could have

reasonably concluded that the state had proved beyond a reasonable doubt the

elements of attempted murder. See State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus. And in regard to the manifest-weight

argument, our review of the entire record fails to persuade us that the trial court

clearly lost its way and created such a manifest miscarriage of justice that we must

reverse Mr. Kelley’s convictions and order a new trial. See State v. Thompkins, 78

Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). Mr. Kelley contends that the

testimony of Ms. Foshee and Mr. Davis was not credible. But the jury was in the best

position to determine the credibility of the witnesses.             The fourth and fifth

assignments of error are overruled.




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                   V. Clerical Errors and Postrelease Control

       {¶28}    The state points out two errors in the court’s judgment entry. First, the

sentencing-hearing transcript demonstrates that the court merged Mr. Kelley’s four

felonious-assault convictions into the two attempted-murder convictions, and merged

the firearm specifications into a single specification. However, the judgment entry does

not reflect these mergers. Second, the entry states: “[t]he total aggregate sentence is

twenty four (25) years.” Our review of the proceedings and judgment entry convinces us

that the correct aggregate sentence is 25 years. The trial court may correct these clerical

errors by a nunc pro tunc entry. See Crim.R. 36.

       {¶29}    Additionally, we note that although the sentencing entry states that Mr.

Kelley was subject to five years of postrelease control, the trial court neglected to so

advise him at the sentencing hearing. See R.C. 2929.19(B)(2)(c) and 2967.28(B). We

remand the cause therefore so that the court may properly inform Mr. Kelley about his

postrelease control.

                                    VI. Conclusion

       {¶30}    Having considered and overruled each assignment of error, we affirm

the trial court’s judgment. We remand the cause so that the court may properly inform

Mr. Kelley about postrelease control and correct its sentencing entry to reflect the

merger of the felonious-assault offenses and the imposition of a 25-year aggregate

sentence.

                                                 Judgment affirmed and cause remanded.

H ILDEBRANDT , P.J., and D INKELACKER , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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