[Cite as State v. Hartman, 2012-Ohio-745.]


STATE OF OHIO                    )                      IN THE COURT OF APPEALS
                                 )ss:                   NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

STATE OF OHIO                                           C.A. Nos.       10CA0026-M
                                                                        10CA0031-M
        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
MATTHEW J. HARTMAN                                      COURT OF COMMON PLEAS
                                                        COUNTY OF MEDINA, OHIO
        Appellant                                       CASE No.   09-CR-0229

                                 DECISION AND JOURNAL ENTRY

Dated: February 27, 2012



        DICKINSON, Judge.

                                             INTRODUCTION

        {¶1}    Kimberly Leighton called 911, reporting that Matthew Hartman had entered her

house with a gun, looking to hurt his wife, Melissa Hartman, who was hiding with her in one of

the bedrooms. By the time deputies arrived, Mr. Hartman was outside the house, talking with

Roy Leighton on the driveway, having a beer. The Grand Jury indicted Mr. Hartman for

aggravated burglary, a jury found him guilty of that offense, and the trial court sentenced him to

five years in prison. Mr. Hartman has appealed, arguing that the trial court incorrectly admitted

other acts testimony, that it incorrectly allowed the prosecutor to select the underlying offense

for his conviction, that it failed to instruct the jury on the lesser-included offense of trespass, that

it denied him a fair trial by allowing the jury to hear the entire 911 tape, that it denied his right to

confrontation, and that it incorrectly denied his motion for new trial. He has also argued that the

prosecutor engaged in misconduct. We reverse because the trial court should not have allowed
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the jury to hear an unredacted recording of Mrs. Leighton’s 911 call and the admission of her

hearsay statements prejudiced Mr. Hartman.

                                             FACTS

         {¶2}   On May 27, 2009, the Hartmans visited Mr. Hartman’s mother in the hospital,

then went to a restaurant. During the meal, the Hartmans got into an argument, which continued

in their minivan after they left. At one point, Mr. Hartman threatened to drive the van into a

concrete barrier, causing Mrs. Hartman to grab the steering wheel. The argument became

physical, with Mr. Hartman placing Mrs. Hartman in a headlock and Mrs. Hartman biting and

hitting him until they were broken-up by their 6-year-old daughter.

         {¶3}   Either because he had to take care of his parents’ house while his mother was in

the hospital and his father was out of town or because Mrs. Hartman would not let him come

home after their fight, Mr. Hartman drove to his parents’ house and got out of the van. Mrs.

Hartman got the keys and left, but instead of going home, she drove to the Leightons’ house,

which was about a mile away. According to Mrs. Hartman, she was too upset to drive to their

house, which was in a different county, and the Leightons had been friends of theirs for many

years.

         {¶4}   The Leightons testified that, when Mrs. Hartman arrived at their house, the

children and she were frantic, claiming that Mr. Hartman was after them.          They brought

everyone into the house and were attempting to figure out what was going on when Mr. Hartman

pulled into their driveway on an all-terrain vehicle, wearing a gun in a holster. The Leightons

hurried everyone to a back bedroom and got out their own guns. Mrs. Leighton testified that, as

she was going into the bedroom, she looked back and saw Mr. Hartman enter the house through

a back door. Mr. Leighton did not see Mr. Hartman enter the house, but testified that, as he
                                                 3


stepped out of his bedroom, Mr. Hartman was standing in the hallway right by the door. Mr.

Leighton pointed his gun at Mr. Hartman and told him to go outside. Mr. Hartman told Mr.

Leighton that his gun was not for his family, but complied with the order. According to Mr.

Leighton, when they got out to the driveway, he unloaded Mr. Hartman’s gun. After Mr.

Hartman and he talked for awhile and had a beer, Mr. Hartman got back on the all-terrain vehicle

to leave. At that point, deputies, who had concealed themselves on the property, emerged and

arrested Mr. Hartman.

                                  OTHER ACTS TESTIMONY

       {¶5}    Mr. Hartman’s first assignment of error is that the trial court incorrectly admitted

other acts evidence in violation of the Ohio rules of evidence and his constitutional rights. He

has noted that the court allowed the prosecution to ask Mrs. Hartman about a previous incident

involving domestic violence and about a civil protection order that she had obtained against him.

Mr. Hartman has argued that the court should not have allowed the questions because Mrs.

Hartman was the prosecution’s witness, because a prosecutor said before trial that he would not

introduce the evidence, because the evidence was not admissible under Rule 404(B) of the Ohio

Rules of Evidence, and because, even if it was admissible, the prejudicial effect of the evidence

greatly outweighed its probative value.

       {¶6}    On direct examination, Mrs. Hartman testified that Mr. Hartman and she were not

separated and that he did not need permission from her to go to their house. The prosecutor

attempted to impeach her by asking her whether she had gotten a civil protection order against

Mr. Hartman, but Mrs. Hartman explained that it had been lifted. Later, Mrs. Hartman denied

that she had ever been afraid of Mr. Hartman. The prosecutor impeached her by asking about the

civil protection order, noting that, to obtain one, she would have had to allege that she was afraid
                                                4


of Mr. Hartman. He also asked her about the details of a 2004 incident in which she went to her

mother’s house after an argument and Mr. Hartman followed her and attempted to enter the

house. After being reminded of the incident, Mrs. Hartman conceded that she had been afraid of

her husband that time, but only “just for a moment.”

       {¶7}    Regarding Mr. Hartman’s argument that the prosecution should not have been

allowed to impeach Mrs. Hartman because she was the State’s own witness, Rule 607(A) of the

Ohio Rules of Evidence provides that “[t]he credibility of a witness may be attacked by any party

except that the credibility of a witness may be attacked by the party calling the witness by means

of a prior inconsistent statement only upon a showing of surprise and affirmative damage.” “The

. . . purpose of this rule is to prevent a party from calling a witness with the sole purpose of

impeaching that witness by her prior, out-of-court statements, which would otherwise be

inadmissible.” State v. Foster, 2d Dist. No. Civ. A. 2004-CA-19, 2005-Ohio-439, at ¶ 92; see

Evid. R. 607 staff note (1980) (“Rule 607 abolishes the general principle, preserving the

‘voucher rule’ in those limited cases in which impeachment by the party calling the witness is

predicated upon a prior inconsistent statement unless surprise and affirmative damage can be

shown. Otherwise, the party would be entitled to call a known adverse witness simply for the

purpose of getting a prior inconsistent statement into evidence by way of impeachment, thus

doing indirectly what he could not have done directly.”).

       {¶8}    Because the prosecutor’s questions about the 2004 incident at Mrs. Hartman’s

mother’s house did not involve the use of a prior inconsistent statement, he was allowed to ask

Mrs. Hartman about the incident under Evidence Rule 607(A). While his questions about the

civil protection order did involve a prior inconsistent statement, namely, what Mrs. Hartman told

a magistrate, Mr. Hartman did not object to those questions. Accordingly, he has forfeited all but
                                                 5


plain error. State v. Gaiter, 9th Dist. No. 24758, 2010-Ohio-2205, at ¶ 18. “Notice of plain error

. . . is to be taken with the utmost caution, under exceptional circumstances and only to prevent a

miscarriage of justice.” State v. Long, 53 Ohio St. 2d 91, paragraph two of the syllabus (1978).

In this case, Mr. Hartman’s failure to object to the prosecutor’s questions about the civil

protection order deprived the State of the opportunity to establish surprise and affirmative

damage. Evid. R. 607(A). Accordingly, we cannot say that it was plain error for the court to

allow the prosecutor to ask Mrs. Hartman about the civil protection order.

       {¶9}    Regarding Mr. Hartman’s argument that the prosecutor said he would not

introduce the evidence, Mr. Hartman has directed this Court to a conversation that the parties had

before trial in which the prosecutor said that he would not introduce one of Mr. Hartman’s prior

misdemeanor convictions in his case-in-chief. It is not clear from the exchange what conviction

the parties were discussing and whether it arose from the 2004 incident. Even if they were

talking about a conviction that followed that incident, the prosecutor merely asked Mrs. Hartman

about what had happened, not whether Mr. Hartman had been convicted of any crimes for his

actions.

       {¶10} Regarding whether the other acts evidence was admissible under Rule 404(B) of

the Ohio Rules of Evidence, this Court notes that the prosecutor did not submit a copy of the

civil protection order or a judgment of conviction arising out of the 2004 incident, he only asked

Mrs. Hartman about those things to impeach her testimony about whether Mr. Hartman and she

were separated and whether she had ever been in fear of Mr. Hartman. Under Evidence Rule

404(B), “[e]vidence of other . . . 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 impeachment.     State v. Young, 10th Dist. No. 04AP-797, 2005-Ohio-5489, at ¶ 24-25
                                                 6


(concluding that, after the girlfriend of the defendant testified that the defendant and she did not

get into fights, the State was allowed to impeach her with a police report she had completed

indicating that he had assaulted her).

       {¶11} To the extent that Mr. Hartman has argued that the trial court improperly gave an

other acts jury instruction in which it told the jury it could consider the evidence as proof of Mr.

Hartman’s motive, we note that the court asked Mr. Hartman’s lawyer what language she wanted

the court to use for the instruction and the lawyer told the court to “go with motive.”

Accordingly, Mr. Hartman invited any error regarding the instruction. Finally, regarding Mr.

Hartman’s argument that the evidence should not have been allowed under Evidence Rule 403

because it was more prejudicial than probative, we note that a trial court has broad discretion

under that rule. State v. Lang, 129 Ohio St. 3d 512, 2011-Ohio-4215, at ¶ 87. We have reviewed

the record and conclude that it exercised proper discretion when it allowed the prosecutor to

impeach Mrs. Hartman by asking her about the civil protection order and the 2004 incident. Mr.

Hartman’s first assignment of error is overruled.

                                    UNDERLYING OFFENSE

       {¶12} Mr. Hartman’s third assignment of error is that the trial court incorrectly allowed

the prosecutor to select the criminal offense needed to support his conviction for aggravated

burglary. Under Section 2911.11(A)(2) of the Ohio Revised Code, “[n]o person, by force,

stealth, or deception, shall trespass in an occupied structure . . . when another person other than

an accomplice of the offender is present, with purpose to commit in the structure . . . any

criminal offense, if . . . [t]he offender has a deadly weapon or dangerous ordnance on or about

the offender’s person or under the offender’s control.”        Mr. Hartman has argued that the

indictment was defective because it was the Grand Jury who had to decide which “criminal
                                                  7


offense” he had the purpose of committing inside the Leightons’ house. According to Mr.

Hartman, because he did not know the crime that he was accused of intending to commit, it put

him at a disadvantage in preparing his defense.

       {¶13} The Ohio Supreme Court has held that an indictment for aggravated burglary does

not need to allege the particular crime that the defendant intended to commit. State v. Foust, 105

Ohio St. 3d 137, 2004-Ohio-7006, at ¶ 31. In addition, Mr. Hartman received a list of the

possible offenses a month before trial. His third assignment of error is overruled.

                       LESSER-INCLUDED OFFENSE INSTRUCTION

       {¶14} Mr. Hartman’s fourth assignment of error is that the trial court incorrectly refused

to give the jury an instruction on the lesser-included offense of criminal trespass. The court,

however, did give a lesser-included offense instruction for burglary, which is a more serious

offense than criminal trespass, but a less serious offense than aggravated burglary.     The Ohio

Supreme Court has held that, if a jury convicts a defendant of the most serious offense despite

having received a lesser-included offense instruction, the trial court’s failure to give an

instruction for an even less serious offense is harmless error. State v. Conway, 108 Ohio St. 3d

214, 2006-Ohio-791, at ¶ 139 (determining that jury’s rejection of lesser-included offense option

shows that they would also have rejected a still lesser offense); see State v. Trimble, 122 Ohio St.

3d 297, 2009-Ohio-2961, at ¶ 197 (concluding that, even if trial court’s refusal to instruct on

reckless homicide was error, it was harmless because the jury could have found defendant guilty

of involuntary manslaughter instead of aggravated murder). Mr. Hartman’s fourth assignment of

error is overruled.
                                                   8


                                                911 TAPE

        {¶15} Mr. Hartman’s fifth assignment of error is that the trial court incorrectly allowed

the jury to hear an unredacted recording of Mrs. Leighton’s 911 call because it contained

inadmissible hearsay and other inflammatory character evidence. According to Mr. Hartman, the

court should not have allowed the jury to hear such irrelevant and highly prejudicial evidence.

        {¶16} “‘Hearsay’ is 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.

801(C). Under Evidence Rule 802, “[h]earsay is not admissible except as otherwise provided by

. . . these rules . . . .” “Whether evidence is admissible because it falls within an exception to the

hearsay rule is a question of law, thus, our review is de novo.” State v. Truitt, 9th Dist. No.

25527, 2011-Ohio-6599, at ¶ 24 (quoting Monroe v. Steen, 9th Dist. No. 24342, 2009–Ohio-

5163, at ¶ 11).

        {¶17} Mrs. Leighton testified that she saw Mr. Hartman pull up her driveway on an all-

terrain vehicle and later “saw him coming in the door, the back door, through our mudroom into

our home.” Although she only ever saw Mr. Hartman from a distance and did not speak with

him, she told the 911 dispatcher that Mr. Hartman was probably on heroin and cocaine, that he is

a very volatile man, that he has a lot of mental health issues, that he is bi-polar and does

methamphetamine, that he beat and head-locked Mrs. Hartman, that the Hartmans are separated

and that there is a restraining order out on him, that Mr. Hartman came at Mr. Leighton with a

gun, that Mr. Hartman has “something on his brain,” that Mr. Hartman is evil, and that he had

threatened to kill police officers earlier that day.

        {¶18} The State has argued that Mrs. Leighton’s statements to the dispatcher were

admissible under an exception to the hearsay rule because they were present-sense impressions
                                                9


or excited utterances. Under Evidence Rule 803(1), a present-sense impression is “[a] statement

describing or explaining an event or condition made while the declarant was perceiving the event

or condition, or immediately thereafter[.]” Such statements are not excluded under the hearsay

rule “unless circumstances indicate lack of trustworthiness.” Evid. R. 803(1). The staff notes to

the rule explain that the “circumstantial guaranty of trustworthiness [of the statement] is derived

from the fact that [it] is contemporaneous and there is little risk of faulty recollection[.]” Mrs.

Leighton’s comments were not admissible under that exception, however, because she was

confined in a room away from Mr. Hartman and was not relating what she had just perceived.

Rather, she was merely stating her opinion of Mr. Hartman based on her past interactions with

him and what Mrs. Hartman told her had happened earlier that day.

       {¶19} Mrs. Leighton’s statements were also not excited utterances. Under Evidence

Rule 803(2), an excited utterance is “[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.” “One

of the requisites necessary to invoke the excited utterance exception is the declarant’s

‘opportunity to observe personally the matters asserted in his statement or declaration.’” State v.

Smith, 97 Ohio St. 3d 367, 2002-Ohio-6659, at ¶ 44 (quoting Potter v. Baker, 162 Ohio St. 488,

paragraph two of the syllabus (1955)). Since Mrs. Leighton did not personally observe whether

Mr. Hartman was on drugs during the incident, whether he was experiencing mental health

problems, whether he had attacked Mrs. Hartman, or whether he had threatened to harm law

enforcement officers, those statements were not admissible under Evidence Rule 803(2). In

addition, Mrs. Leighton’s knowledge that Mrs. Hartman had obtained a protection order against

Mr. Hartman and her opinion that Mr. Hartman is “evil” were not observations that Mrs.
                                                10


Leighton could have made during the incident. Accordingly, they were also not admissible as

excited utterances.

       {¶20} Although the trial court incorrectly allowed the jury to hear an unredacted

recording of the 911 call, this Court may not reverse Mr. Hartman’s convictions if the mistake

was harmless error.     Crim. R. 52(A).      Furthermore, because the error affected only Mr.

Hartman’s non-constitutional rights, it is his burden to show that he may have been prejudiced by

the tape’s admission. State v. Leaver, 9th Dist. No. 25339, 2011-Ohio-4068, at ¶ 15.

       {¶21} To convict Mr. Hartman of aggravated burglary, the State had to prove that he

entered the Leightons’ house with the purpose of committing a crime inside of it. The jury was

presented with five possibilities, and they determined that Mr. Hartman had the purpose of

committing disorderly conduct, the least serious of those offenses. Under Section 2917.11(A) of

the Ohio Revised Code, a person commits disorderly conduct by “recklessly caus[ing]

inconvenience, annoyance, or alarm to another by doing any of the following: (1) Engaging in

fighting, in threatening harm to persons or property, or in violent or turbulent behavior; (2)

Making unreasonable noise or an offensively coarse utterance, gesture, or display or

communicating unwarranted and grossly abusive language to any person; (3) Insulting, taunting,

or challenging another, under circumstances in which that conduct is likely to provoke a violent

response; (4) Hindering or preventing the movement of persons on a public street, . . . so as to

interfere with the rights of others, and by any act that serves no lawful and reasonable purpose of

the offender; [or] (5) Creating a condition that is physically offensive to persons or that presents

a risk of physical harm to persons or property, by any act that serves no lawful and reasonable

purpose of the offender.”
                                              11


       {¶22} Mrs. Leighton’s statements to the 911 dispatcher that Mr. Hartman has drug abuse

and mental health problems were not corroborated by any other evidence. The statements,

however, were inflammatory and may have colored the jury’s view of Mr. Hartman. They also

may have affected whether the jury thought Mr. Hartman was the sort of man who would

purposely charge into another person’s house in an attempt to hurt his family. Accordingly, we

cannot say that the admission of the statements was harmless. See State v. Leaver, 9th Dist. No.

25339, 2011-Ohio-4068, at ¶ 16 (noting that defendant’s burden under Criminal Rule 52(A) “is

not monumental[.]”). Mr. Hartman’s fifth assignment of error is sustained.

                                  CROSS-EXAMINATION

       {¶23} Mr. Hartman’s sixth assignment of error is that the trial court incorrectly limited

his cross-examinations of Mr. and Mrs. Leighton and Deputy Frank Telatko, impairing his

constitutional right to confrontation. He has argued that he should have been allowed to explore

Mrs. Leighton’s family history of abuse, her mental health history, and any bias she might have

against him. He has also argued that he should have been allowed to ask Mr. Leighton about the

statements he made to sheriff’s deputies after Mr. Hartman was arrested. He has further argued

that he should have been allowed to ask Deputy Telatko about the exculpatory statements he

made immediately after his arrest and about the deputy’s knowledge of the law regarding making

a warrantless arrest.

       {¶24} This Court has reviewed the transcript of the testimony of Mr. Leighton and

Deputy Telatko and is unable to find any place at which the trial court prevented Mr. Hartman

from asking Mr. Leighton about what he told the arresting deputies, prevented him from asking

Deputy Telatko about what he said after his arrest, or prevented him from asking the deputy
                                                 12


about his knowledge of the law. Considering that Mr. Hartman has not provided any page

numbers in his brief, we must conclude that those alleged errors did not occur.

       {¶25} Regarding Mr. Hartman’s cross-examination of Mrs. Leighton, the United States

Supreme Court has explained that “[t]he Confrontation Clause of the Sixth Amendment

guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses

against him.’ The right of confrontation, which is secured for defendants in state as well as

federal criminal proceedings, . . . ‘means more than being allowed to confront the witness

physically.’ . . . Indeed, ‘[t]he main and essential purpose of confrontation is to secure for the

opponent the opportunity of cross-examination.’ . . . Of particular relevance here, ‘[w]e have

recognized that the exposure of a witness’ motivation in testifying is a proper and important

function of the constitutionally protected right of cross-examination.’ . . . It does not follow, of

course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from

imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness.

On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned

to impose reasonable limits on such cross-examination based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is

repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986)

(quoting Davis v. Alaska, 415 U.S. 308, 315 (1974)).

       {¶26} Following the trial, Mr. Hartman moved for a new trial and submitted an affidavit

from his lawyer, indicating that, but for the prosecutor’s sustained objections, she would have

asked Mrs. Leighton about her mental health issues and the medications that she takes for those

issues. She also would have asked about the abusive household she was raised in. According to
                                                13


Mr. Hartman’s lawyer, it was the environment in which Mrs. Leighton was raised that caused her

to overreact to the events of May 27, 2009.

       {¶27} We have already noted the prejudicial effect that testimony about a witness’s

mental health and drug use may have on a jury. Having reviewed the record, we conclude that

the trial court exercised proper discretion when it prevented Mr. Hartman from asking Mrs.

Leighton about those issues. Mr. Hartman’s sixth assignment of error is overruled.

                                        OTHER ISSUES

       {¶28} Mr. Hartman’s second assignment of error is that the prosecutor committed

repeated acts of misconduct, depriving him of a fair trial. His seventh assignment of error is that

the trial court incorrectly denied his motion for new trial. In light of our determination that the

trial court incorrectly allowed the jury to hear an unredacted recording of the 911 call, these

assignments of error are moot. We note that, to the extent any of the prosecutor’s actions were

improper, we have addressed similar issues in other recent opinions and are confident that the

issues will not be repeated should Mr. Hartman be retried. See State v. Johnson, 9th Dist. No.

09CA0054-M, 2011-Ohio-3623; State v. Gatt, 9th Dist. No. 10CA0108-M, 2011-Ohio-5221.

Mr. Hartman’s second and seventh assignments of error are overruled.

                                         CONCLUSION

       {¶29} The trial court incorrectly allowed the jury to hear an unredacted recording of

Mrs. Leighton’s 911 call, and Mr. Hartman has established that he was prejudiced by the

admission of her hearsay statements. The judgment of the Medina County Common Pleas Court

is reversed, and this matter is remanded for proceedings consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.
                                                14


                                             _______


       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT



BELFANCE, P.J.
CONCURS IN JUDGMENT ONLY

CARR, J.
DISSENTS, SAYING:

       {¶30} I respectfully dissent. I would not reach the issue of error in regard to the

admission of the 911 call. Because there was overwhelming evidence to establish Hartman’s

guilt, error in the call’s admission, if any, was harmless. Accordingly, I would affirm his

conviction.
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APPEARANCES:

ROBERT A. DIXON, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW KERN, Assistant Prosecuting
Attorney, for Appellee.
