[Cite as State v. Hastings, 2014-Ohio-1418.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                       PICKAWAY COUNTY


STATE OF OHIO,                                        :

        Plaintiff-Appellee,                           :   Case No. 13CA16

        vs.                                           :

SHAWN HASTINGS,                                       :   DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                          :

_________________________________________________________________

                                               APPEARANCES:

COUNSEL FOR APPELLANT:                     W. Joseph Edwards, 341 South Third Street, Suite 200,
                                           Columbus, Ohio 43215

COUNSEL FOR APPELLEE:                      Gary D. Kenworthy, Circleville City Law Director, and
                                           Jeffrey Catri, Assistant Circleville City Law Director, 443
                                           North Court Street, P.O. Box 574, Circleville, Ohio 43113

CRIMINAL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 3-20-14
ABELE, P.J.

        {¶ 1} This is an appeal from a Circleville Municipal Court judgment of conviction and

sentence. A jury found Shawn Hastings, defendant below and appellant herein, guilty of littering

in violation of R.C. 3767.32.

        {¶ 2} Appellant assigns the following errors for review:

                 FIRST ASSIGNMENT OF ERROR:

                 “THE TRIAL COURT COMMITS REVERSIBLE ERROR BY
                 PERMITTING THE STATE TO PRESENT INADMISSIBLE
                 HEARSAY EVIDENCE [TO] THE JURY IN VIOLATION OF MR.
PICKAWAY, 13CA16                                                                                    2

               HASTINGS[‘] RIGHT TO A FAIR TRIAL UNDER THE UNITED
               STATES CONSTITUTIONS AND THE OHIO CONSTITUTION
               NAMELY THE 5TH AND 14TH AMENDMENTS AS WELL AS
               THE CONFRONTATION CLAUSE.”

               SECOND ASSIGNMENT OF ERROR:

               “THE VERDICT IN THIS CASE IS AGAINST THE MANIFEST
               WEIGHT OF EVIDENCE AND WAS BASED ON INSUFFICIENT
               EVIDENCE TO SUSTAIN SAID VERDICT.”

       {¶ 3} On August 24, 2012, Craig Garrison observed a pick-up truck on Carson Road

“backed up into the ditch with a white male on the outside of it, and a pile of wood on the other

side of the truck.” Garrison obtained the license plate number and a description of the truck and

called the sheriff’s office to report what Garrison believed to be illegal dumping. Garrison,

however, did not observe anyone actually dumping the wood.

       {¶ 4} Law enforcement officers learned that the truck belonged to appellant’s grandfather,

Noah Hanna, but that Hanna was gravely ill and had not been driving. On September 11, 2012,

the officers visited Hanna’s house and spoke with Hanna’s great-grandson, Austin Hastings.

       {¶ 5} Austin informed the officers that he had helped appellant, his uncle, load the

pick-up truck with the debris subsequently discovered on Carson Road. The officers showed

Austin photographs of the debris and he identified it as the material that he had help load onto the

truck with appellant. Austin told the officers that he had asked appellant if appellant would like

Austin to help dispose of the debris, but appellant stated that he did not want Austin to help

because he did not want Austin to get in trouble.
[Cite as State v. Hastings, 2014-Ohio-1418.]
        {¶ 6} On October 3, 2012, Pickaway County Sheriff’s Detective Rex Emrick filed a

complaint and alleged that appellant committed the offense of littering, in violation of R.C.

3767.32(C).

        {¶ 7} On May 22, 2013, the court held a jury trial. Austin reluctantly testified for the

prosecution that he recalled telling Detective Emrick that (1) he helped appellant load debris into

the truck; (2) he offered to help appellant dispose of the debris; and (3) appellant told Austin that

appellant did not want Austin to go with him. Austin stated, however, that he did not recall telling

Detective Emrick that appellant told Austin that he intended to illegally dump the materials.

Rather, Austin explained that he believed appellant intended to take the debris to a recycling

location. Austin also stated that when the officers visited him at his dying great-grandfather’s

house, he felt pressured to cooperate. Austin stated that he told the detectives “something * * * to

keep [himself] out of trouble.”

        {¶ 8} When the state asked Detective Emrick questions regarding Austin’s interview,

appellant objected on the basis of hearsay. The court held a discussion out of the jury’s presence

and appellant’s counsel explained the basis for his objection:

               “Well I think it’s hearsay. This is a statement by somebody who’s not on
        the witness stand obviously. If it’s going to be offered by Mr. Catri through
        Detective Emrick to show that what Austin said is true, that is, he made
        incriminating statements about his uncle.”

The prosecutor argued that the statements should be admissible because Emrick “is the

investigating detective” and is providing the testimony “based on his actual presence, his actual

recollection.” The court overruled appellant’s objection and explained: “I’m inclined to let it in

on the basis of Rule 804 as a matter of lack of memory of a subject matter of the declarant * * *.”

        {¶ 9} Detective Emrick then continued to testify and stated that when he interviewed
PICKAWAY, 13CA16                                                                                                                   4

Austin, Austin admitted that he helped load the debris into appellant’s pick-up truck. Austin

further stated that he asked appellant if he wanted help, and that appellant told Austin that

appellant did not want Austin to help “because he didn’t want him to get in trouble if he got caught

dumping.” Detective Emrick also testified that Austin identified the photographs of the material

dumped on Carson Road as the material that he had helped appellant load in the truck. Detective

Emrick further testified that approximately two weeks after Garrison saw what he believed to be

illegal dumping, the officers located the pick-up truck that Garrison observed parked on appellant’s

property.

          {¶ 10} On May 22, 2013, the jury found appellant guilty of littering. The trial court

sentenced appellant to serve sixty days in jail, with forty-five days suspended, placed appellant on

probation for twelve months, imposed a $250 fine and ordered $600 in restitution. This appeal

followed.

                                                                   I

          {¶ 11} In his first assignment of error, appellant asserts that the trial court erred by

allowing the state to introduce inadmissible hearsay evidence. Appellant contends that Detective

Emrick’s testimony regarding Austin’s interview constituted inadmissible hearsay1 because the

trial court incorrectly determined that Detective Emrick’s statements were admissible under

Evid.R. 804. Appellant argues that even if the trial court correctly found that Austin was



1
   We note that in his statement of the facts, appellant asserts that “the impeachment of witness Hastings with prior
inconsistent statements, is not substantive evidence that can be used to prove a fact, but rather solely for the jury to access [sic]
the witnesses’ [sic] credibility.” Appellant does not, however, raise this issue as an assignment of error or otherwise argue it
in his brief. Therefore, we will not consider this issue.
PICKAWAY, 13CA16                                                                                       5

“unavailable,” the trial court failed to consider whether any of the hearsay exceptions outlined in

Evid.R. 804(B) applied.

       {¶ 12} Generally, evidentiary rulings are reviewed on appeal under an abuse-of-discretion

standard. State v. Joseph, 73 Ohio St.3d 450, 460, 653 N.E.2d 285 (1995). When, however, an

appellant alleges that the evidentiary ruling was “’based on an erroneous standard or a

misconstruction of the law,’” then an appellate court reviews the trial court’s evidentiary ruling

using a de novo standard of review. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972

N.E.2d 528, ¶16, quoting Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership, 78 Ohio App.3d

340, 346, 604 N.E.2d 808 (2nd Dist. 1992); Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181,

909 N.E.2d 1237, 2009-Ohio-2496, ¶13 (stating that “[w]hen a court’s judgment is based on an

erroneous interpretation of the law, an abuse-of-discretion standard is not appropriate”).

       {¶ 13} In the case at bar, appellant asserts that the trial court incorrectly applied Evid.R.

804. Thus, our standard of review is de novo.

       {¶ 14} Evid.R. 804 governs the admissibility of an out-of-court statement when the

declarant is unavailable as a witness. Under Evid.R. 804(A)(3) a declarant is unavailable as a

witness if the declarant “testifies to a lack of memory of the subject matter of the declarant’s

statement[.]”

       {¶ 15} Evid.R. 804(B) sets forth the types of statements that are admissible when a

declarant is unavailable as a witness:

              The following are not excluded by the hearsay rule if the declarant is
       unavailable as a witness:

              (1) Former testimony. Testimony given as a witness at another hearing of
       the same or a different proceeding, or in a deposition taken in compliance with law
PICKAWAY, 13CA16                                                                                6

       in the course of the same or another proceeding, if the party against whom the
       testimony is now offered, or, in a civil action or proceeding, a predecessor in
       interest, had an opportunity and similar motive to develop the testimony by direct,
       cross, or redirect examination. Testimony given at a preliminary hearing must
       satisfy the right to confrontation and exhibit indicia of reliability.

               (2) Statement under belief of impending death. In a prosecution for
       homicide or in a civil action or proceeding, a statement made by a declarant, while
       believing that his or her death was imminent, concerning the cause or circumstances
       of what the declarant believed to be his or her impending death.

               (3) Statement against interest. A statement that was at the time of its
       making so far contrary to the declarant’s pecuniary or proprietary interest, or so far
       tended to subject the declarant to civil or criminal liability, or to render invalid a
       claim by the declarant against another, that a reasonable person in the declarant’s
       position would not have made the statement unless the declarant believed it to be
       true. A statement tending to expose the declarant to criminal liability, whether
       offered to exculpate or inculpate the accused, is not admissible unless corroborating
       circumstances clearly indicate the truthworthiness of the statement.

               (4) Statement of personal or family history. (a) A statement concerning the
       declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by
       blood, adoption, or marriage, ancestry, or other similar fact of personal or family
       history, even though the declarant had no means of acquiring personal knowledge of
       the matter stated; or (b) a statement concerning the foregoing matters, and death
       also, of another person, if the declarant was related to the other by blood, adoption,
       or marriage or was so intimately associated with the other’s family as to be likely to
       have accurate information concerning the matter declared.

              (5) Statement by a deceased or incompetent person. The statement was
       made by a decedent or a mentally incompetent person, where all of the following
       apply:

              (a) the estate or personal representative of the decedent’s estate or the
       guardian or trustee of the incompetent person is a party;

             (b) the statement was made before the death or the development of the
       incompetency;

              (c) the statement is offered to rebut testimony by an adverse party on a
       matter within the knowledge of the decedent or incompetent person.
              ****
[Cite as State v. Hastings, 2014-Ohio-1418.]
        {¶ 16} Thus, for an out-of-court statement to be admissible (1) the declarant must be

unavailable as a witness as described in Evid.R. 804(A), and (2) the statement must fit one of the

situations outlined in Evid.R. 804(B). State v. Williams, 38 Ohio St.3d 346, 349, 528 N.E.2d 910,

fn. 6 (1988) (“In Ohio, a statement that would otherwise be excluded as hearsay may be admitted if

the declarant is ‘unavailable’ as defined in Evid.R. 804(A) and the statement falls within one of the

five exceptions in Evid.R. 804(B).”). (Emphasis sic); State v. Markovanovich, 9th Dist. Summit

No.23572, 2007-Ohio-5676, ¶86; accord State v. Sumlin, 69 Ohio St.3d 105, 108, 630 N.E.2d

681 (1994). Simply because a declarant is unavailable as a witness does not result in a declarant’s

out-of-court statement being admissible. Instead, the statement must fit one of the situations

outlined in Evid.R. 804(B) and the declarant must be unavailable. Both parts of the rule must be

satisfied before a trial court may admit an unavailable witness’s out-of-court statement under

Evid.R. 804.

        {¶ 17} In the case at bar, the trial court determined that Detective Emrick’s testimony

regarding Austin’s interview was admissible because Austin was “unavailable.” The court,

however, ended its analysis there and did not examine whether Emrick’s testimony fell within one

of the Evid.R. 804(B) exceptions. Appellant, however, did not object to the court’s failure to

consider the second part of the rule and did not argue that the court must also consider Evid.R.

804(B) when deciding whether Detective Emrick’s testimony regarding Austin’s prior out-of-court

statements were admissible.

        {¶ 18} Generally, an appellant forfeits the right to challenge an alleged error on appeal if

the appellant failed to object to the alleged error at a time when it could have been corrected.

State v. Payne, 114 Ohio St.3d 502, 873 N.E.2d 306, 2007–Ohio–4642, ¶23; State v. Awan, 22
PICKAWAY, 13CA16                                                                                       8

Ohio St.3d 120, 489 N.E.2d 277, syllabus (1986); State v. Nguyen, 4th Dist. Athens No. 12CA14,

2013-Ohio-3170, ¶27. As the court explained in Awan:

        “The general rule is that ‘an appellate court will not consider any error which
        counsel for a party complaining of the trial court’s judgment could have called but
        did not call to the trial court’s attention at a time when such error could have been
        avoided or corrected by the trial court.’”

Id. at 122, quoting State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545, paragraph three of the

syllabus (1968). An appellate court may nevertheless recognize the alleged error if it constitutes

plain error. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶108. Plain

error exists when (1) there is an error, i.e., a deviation from the legal rule, (2) the error is an

obvious defect in the proceedings, and (3) the error affects the defendant’s substantial rights.

State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). An error affects substantial rights

if the error affected the outcome of the trial. Id. Courts ordinarily should take notice of plain

error “with utmost caution, under exceptional circumstances, and only to prevent a manifest

miscarriage of justice.” State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995,

¶78; State v. Patterson, 4th Dist. Washington No. 05CA16, 2006-Ohio-1902, ¶13. A reviewing

court should consider noticing plain error only if the error “‘“seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.”’” Barnes, 94 Ohio St.3d at 27, quoting

United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), quoting

United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936).

        {¶ 19} In the case at bar, we believe that the trial court’s decision to admit the out-of-court

statements without considering Evid.R. 804(B) satisfies all three prongs of the plain error doctrine:

 (1) an error occurred; (2) the error is obvious; and (3) the error affected appellant’s substantial
PICKAWAY, 13CA16                                                                                    9

rights. The trial court’s ruling to admit Austin’s out-of-court statements resulted from an

erroneous interpretation of Evid.R. 804. Evid.R. 804 requires that the witness be unavailable and

that one of the exceptions outlined in Evid.R. 804(B) applies. The court, however, determined

whether the witness was unavailable.



       {¶ 20} As we stated supra, Evid.R. 804(B) specifies the situations when the hearsay rule

does not prohibit an unavailable witness’s out-of-court statements. None of those exceptions

appear to apply to Austin’s statements. Austin’s statements were not former testimony given

under oath, were not made under the belief of impending death, were not against his penal or

pecuniary interest, were not personal or family history statements, and were not given by a

deceased or incompetent person. Thus, because the trial court failed to consider the Evid.R.

804(B) requirements, the court wrongly determined that Austin’s statements were admissible under

Evid.R. 804. Consequently, the first prong of the plain error doctrine applies. State v. Robb, 88

Ohio St.3d 59, 70-71, 723 N.E.2d 1019 (2000) (determining that witness’s statement to law

enforcement officer inadmissible under Evid.R. 804(B)); Markovanovich at ¶87 (concluding that

witness’s taped police interview inadmissible under Evid.R. 804(B)). We also observe that the

state does not attempt to justify the court’s decision to admit the evidence under one of the Evid.R.

804(B) exceptions. Instead, the state’s premise appears to be solely that Detective Emrick’s

testimony is admissible simply because Austin was “unavailable.” This, however, is contrary to

Evid.R. 804. Once again, the rule requires both that the declarant be “unavailable” and that the

testimony meets one of the Evid.R. 804(B) exceptions.        Moreover, we believe that this error

affected appellant’s substantial rights. Without Detective Emrick’s testimony regarding Austin’s
PICKAWAY, 13CA16                                                                                     10

statements, the state’s evidence consisted of the following: (1) a witness observed a truck backed

into a ditch next to a pile of debris; (2) the truck matched the description of a truck later observed

on appellant’s property; (3) Austin helped appellant load some debris into this same truck; (4)

Austin offered to help appellant dispose of the debris; (5) appellant did not want Austin’s help

disposing of the debris; (6) Austin was evasive during the prosecutor’s direct examination; (7)

Austin denied that appellant informed Austin that appellant was going to illegally dump the items;

and (8) Austin could not to recall any other details of the September 11, 2012 interview.2 After

our review of the evidence, we are not confident that the jury would have found appellant guilty

had it been limited to this evidence and had not heard Detective Emrick’s testimony regarding

Austin’s interview. While the jury possibly could have convicted appellant, we cannot state that it

most likely would have or, in other words, that the error did not affect the outcome of the trial.

Although we are hesitant to recognize such a clear error that easily could have been corrected had a

proper objection been made, we believe that failing to recognize the error under the plain error

doctrine would result in a manifest miscarriage of justice.

       {¶ 21} Accordingly, based upon the foregoing reasons, we hereby sustain appellant’s first

assignment of error.

                                                   II

       {¶ 22} Our disposition of appellant’s first assignment of error renders appellant’s second


2
  Appellant did not object at trial to the prosecutor’s questioning
of Austin and does not raise an argument on appeal regarding the
prosecutor’s direct examination of Austin. Thus, we do not consider
whether any error occurred during the prosecutor’s questioning of
Austin, and we may consider the prosecutor’s direct examination of
Austin when evaluating the evidence.
PICKAWAY, 13CA16                                                                             11

assignment of error moot. Thus, we do not address it. App.R. 12(A)(1)(c).

       {¶ 23} Accordingly, based upon the foregoing reasons, we hereby reverse the trial court's

judgment and remand the matter for further proceedings consistent with this opinion.

                                                           JUDGMENT REVERSED AND
                                                           CAUSE REMANDED FOR
                                                           FURTHER PROCEEDINGS
                                                           CONSISTENT WITH THIS
                                                           OPINION.
[Cite as State v. Hastings, 2014-Ohio-1418.]
                                               JUDGMENT ENTRY

       It is ordered that the judgment be reversed and cause remanded for further proceedings
consistent with this opinion. Appellant shall recover of appellee the costs herein taxed.

        The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Circleville
Municipal Court to carry this judgment into execution.

        If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to
allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency
of the proceedings in that court. The stay as herein continued will terminate at the expiration of
the sixty day period.

       The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.

      A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules
of Appellate Procedure.

        McFarland, J. & Hoover, J.: Concur in Judgment & Opinion

                                                                   For the Court




                                                                   BY:
                                                 Peter B. Abele
                                                 Presiding Judge


                                   NOTICE TO COUNSEL
       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
