         [Cite as State v. Warren, 2020-Ohio-541.]




                       IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :    APPEAL NO. C-180649
                                                         TRIAL NO. 18CRB-20579
        Plaintiff-Appellee,                          :

  vs.                                                :       O P I N I O N.

ZIDKIJAH WARREN,                                     :

    Defendant-Appellant.                             :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 19, 2020



Paula Boggs Muething, City Solicitor, William T. Horsley, Interim City Prosecutor,
and Jon Vogt, Assistant City Prosecutor, for Plaintiff-Appellee,

The Law Office of John D. Hill, LLC, and John D. Hill, Jr., for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Presiding Judge.

       {¶1}   Zidkijah Warren appeals his conviction, after a bench trial, for

criminal damaging. In one assignment of error, Warren contends that the trial court

erred by improperly considering hearsay statements of the prosecutor that

contributed to his conviction. Finding merit to his assignment of error, we reverse

the judgment of the trial court and remand the cause for further proceedings.

                              Factual Background

       {¶2}   On August 7, 2018, Zidkijah Warren, who was residing in the

Hamilton County Justice Center, was charged with criminal damaging, a

misdemeanor of the second degree, for banging his head on his cell-door window

and cracking the glass. He pled not guilty and proceeded to a bench trial.

       {¶3}   The state presented two witnesses, Deputy Timothy Eppens and

Deputy Rick Johnson, both corrections officers at the Hamilton County Justice

Center. Eppens testified that while he was working, Warren requested his inhaler to

help him breathe. Eppens escorted the medical staff person to Warren’s cell door

and opened the pass-through. The medical person handed the inhaler to Warren.

Instead of using the inhaler, Warren held it up in the air and held the button down.

Eppens could see the inhaler being sprayed into the air, so Eppens asked Warren

three times to return it to him. Warren refused, so Eppens told him that he had just

lost his hour to be outside of his cell for refusing to hand him the inhaler. In

response, Warren smashed the inhaler and flushed it down the toilet.

       {¶4}   Eppens notified his sergeant, and after his sergeant arrived, the two

conducted a search of Warren’s cell to ensure there were no inhaler pieces that could

be used as a weapon. As they were exiting from the pod, Eppens heard banging. He

turned around and saw Warren banging his forehead against the cell-door window


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and immediately saw the window crack. Eppens further testified that the window

had not been cracked when he was in the cell a few moments earlier. He saw the

glass crack when Warren banged it for the second time. Johnson testified that he did

not see the crack until Eppens pointed it out to him.

       {¶5}    On cross-examination, Eppens testified that he was on the lower level

of the pod and Warren’s cell was on the upper level approximately 20 feet from

where he was standing. When asked who opened the cell door to conduct the search,

he could not remember. When asked if the cell door could have hit the wall when it

was opened, Eppens testified that it could have, but even if it did, the window itself

would not have hit the wall. The state rested, and Warren testified on his own behalf.

       {¶6}    Warren testified he had asked for his inhaler the previous night, and

the cartridge was empty. So when they brought him an inhaler the following day, he

squeezed the inhaler to see if it was empty or contained a new cartridge. Eppens

thought Warren was abusing the inhaler, so he threw it into the toilet and flushed it.

Warren explained that he felt he had been unfairly punished because he was not

abusing his inhaler, so he gave Eppens a reason to write him up. After he flushed the

inhaler, Sergeant McKinney, who conducted a cell inspection, opened the cell door so

hard, it hit the wall. Warren was immediately placed in handcuffs and escorted out

of his cell to await the restraint chair. After the search was complete, the officers left

the cell. Eppens, who was leaving the pod, turned suddenly and asked if the window

was cracked. Warren then noticed the cracked window, and Eppens told him he

would be facing a criminal charge.

       {¶7}    Warren denied banging his head against the cell-door window or

against the door. He testified that he and Eppens did not see eye-to-eye, and that




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Eppens’s testimony that he was a difficult inmate to deal with was an accurate

statement about his relationship with Eppens. He testified that the window was

cracked from the outside after the sergeant forcefully opened the door into the wall.

       {¶8}   Warren was placed in a restraint chair and taken to the psychiatric

unit for evaluation. Nurse Sade and Latrisha Lang evaluated him and determined

that he did not need to be placed on a suicide watch. The trial court asked Warren if

he had any bruising, swelling, or inflammation on his forehead, and Warren stated

that he had no injuries.

       {¶9}   After Warren’s testimony, defense counsel moved to introduce a

certified copy of Warren’s medical records from that particular day as an exhibit.

The prosecutor objected to their admissibility because he had not seen the

certification, and he questioned the validity of the certification. The prosecutor also

stated that he had reason to believe there would be things in the medical records that

would require cross-examination.       Defense counsel proferred that the medical

records would show that Warren did not have any bruising, red marks, or scrapes

immediately after he allegedly banged his forehead on the window. He further

argued that the medical records were self-authenticating due to the certification, but

if necessary, he could try to get someone from the jail to verify the records.

       {¶10} The prosecutor stated that based on his conversations with “the

officers involved,” the nurse who made the statements in the records had been “let

go” from the Justice Center. He also stated that “it appeared she had a relationship

with one of the inmates there, and it would appear that that inmate is the

defendant.” The court adjourned to chambers for further discussion.

       {¶11} In chambers, the prosecutor stated it was his understanding that the




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nurse who generated the medical records was the same person who allegedly had an

intimate relationship with Warren. Defense counsel said he knew nothing about

that, and that a nurse looked at Warren on the day of the incident. He also noted

that none of the state’s witnesses testified that Warren had sustained any injuries

from the incident.

        {¶12} The trial court sustained the objection and told the defense counsel to

bring in a person to attest to the medical records. Defense counsel pointed out the

certification to the trial court from the custodian that the records were true and

accurate copies, but he would attempt to call an administrative person from the jail

to testify.

        {¶13} When they went back on the record, defense counsel informed the

judge that the person running the medical department at the jail would testify.

While waiting for the witness, the trial court heard other matters. Eventually, the

state withdrew its objection to the authenticity of the records, but objected that the

statements in the documents were hearsay. The court overruled the objection and

allowed the medical records to be admitted, and the defense rested.

        {¶14} On rebuttal, the state recalled Officer Eppens. He was asked whether

the sergeant threw the cell door open or had anything to do with the cracking of the

window. Eppens stated, “No.” Notably, Eppens was not questioned about the nurse

who allegedly was fired for having an improper relationship with the defendant.

Eppens confirmed that Warren’s cell was the last one on the top, and the door could

hit the wall when opened.

        {¶15} After closing arguments, the trial court stated, “based on the allegation

by the prosecutor that there was an intimate relationship with the medical personnel,




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it kind of taints the medical report. The finding is guilty.”

                                Standard of Review

       {¶16} In his sole assignment of error, Warren argues that the trial court

erred by relying on the statements of the prosecutor as evidence in reaching its

verdict. Because the statements were inadmissible hearsay, we review for harmless

error. See State v. Sorrels, 71 Ohio App.3d 162, 165, 593 N.E.2d 313 (1st Dist.1991).

An error is harmless when “there is no reasonable possibility that the evidence may

have contributed to the defendant’s conviction. If the trier of fact, whether it be a

jury or a trial judge, expressly relies upon hearsay statements in determining guilt,

the admission of the hearsay is prejudicial.” Id.

       {¶17} The state requests that we employ a plain-error review because

Warren did not object to the hearsay statements. However, the hearsay statements

of the prosecutor were not admitted as evidence, so there was no opportunity for

Warren to object. Rather, the statements occurred in argument by the state with

regard to its objection to the certification and admissibility of the medical records,

which was ultimately withdrawn. Until the trial court announced the verdict, the

court’s reliance on the hearsay statements was unknown to the parties.

         Reliance on the Prosecutor’s Statements as Evidence

       {¶18} In this case, the trial court treated the prosecutor’s arguments

regarding the authenticity and admissibility of the medical records as substantive

testimony.   Although the state also argues that the prosecutor merely proffered

impeachment testimony, “A proffer is by definition, an offer of evidence.” Hocker v.

Hocker, 188 Ohio App.3d 755, 2010-Ohio-2835, 936 N.E.2d 1003, ¶ 43 (2d Dist.). If

evidence is excluded, the substance of the evidence must be made known to the court




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by offer to preserve an error for appeal. Id., citing Evid.R. 103(A)(2). “The purpose

of requiring the proponent of the excluded evidence to make an ‘offer of proof’ or

‘proffer’ regarding the evidence is to allow a reviewing court to determine whether

the proponent of the evidence has been prejudiced by its exclusion.”          Baird v.

Gillispie, 2d Dist. Miami No. 99-CA-12, 2000 WL 43493, *3 (Jan. 21, 2000).

       {¶19} In this case, the trial court did not exclude any testimony proposed by

the state. The state did not seek to present any testimony regarding the allegation

that the nurse who created the medical records was fired due to an improper

romantic relationship with Warren. Rather, the state presented arguments as to why

the documents were inadmissible.       Thus the statements were not an offer of

evidence, and it was error for the court to consider and rely on the hearsay

arguments of the prosecutor as admissible evidence.

       {¶20} “Whether [the] 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 [admission of] the evidence

* * * might have contributed to the conviction.” State v. Conway, 108 Ohio St.3d

214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 78.

       {¶21} In reaching its verdict, the trial court expressly relied upon the

prosecutor’s admissibility argument to discount the medical records. The court’s

statement shows a reasonable possibility that the prosecutor’s argument may have

contributed to the conviction. See id. Because the trial court expressly relied on the

prosecutor’s statements, the conviction must be reversed. See Sorrells, 71 Ohio App.

3d at 165, 593 N.E.2d 313. Accordingly, we sustain the assignment of error.

                                    Conclusion

       {¶22} Finding merit to Warren’s assignment of error, we reverse the


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judgment of the trial court and remand the cause for a new trial.

                                              Judgment reversed and cause remanded.
BERGERON and CROUSE, JJ., concur.


Please note:
       The court has recorded its own entry this date.




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