[Cite as State v. Holloway,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95703

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

REGINALD HOLLOWAY DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-531510

BEFORE: Keough, J., Jones, P.J., and Rocco, J.

RELEASED AND JOURNALIZED: July 21, 2011 ATTORNEY FOR APPELLANT

Michael P. Maloney 24441 Detroit Road, Suite 300 Westlake, OH 44145

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Robert B. Botnick Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, OH 44113

KATHLEEN ANN KEOUGH, J.:

{¶ 1} Defendant-appellant, Reginald Holloway (“Holloway”), appeals

his convictions following a bench trial. For the reasons that follow, we

reverse his kidnapping conviction and remand for a new trial.

{¶ 2} In 2009, Holloway was charged with three counts of kidnapping,

and one count each of intimidation and domestic violence. The matter

proceeded to trial, where the following evidence was presented.

{¶ 3} In mid-November 2009, Holloway and the victim, Stephanie

Webb (“Webb”), were involved in multiple domestic disputes. During one

altercation Webb punched Holloway and gave him a black eye. The police were called and Detective Alberto Sardon responded. He briefly talked to

Holloway and interviewed Webb, but made no arrests.

{¶ 4} The following day, November 16th, Webb went to Holloway’s

home and when she walked in the door, he grabbed her. Webb testified that

Holloway was mad at her because he had a black eye and the detective was

there the day before. After asking her why she called the police, he ordered

her to look at him, and then he slapped her in the face. He then tripped her

and she fell to the ground, where he continued to slap her and scratch her

face. After five to fifteen minutes, she got up without any restraint, and left

his house. According to Webb, she was able to leave freely and at no time did

Holloway prevent her from leaving. After leaving Holloway’s home, she

called the police.

{¶ 5} The trial court, over objection, allowed Webb to read her written

statement in open court as part of her direct testimony. Her statement

provided that Holloway slapped, punched, and dragged her across the room,

where he then sat on her, continued to slap her, and refused to let her up.

According to her statement, had Holloway’s cousin not intervened, she would

not have been able to leave. Further, when she was able to leave, Holloway

chased her and tried to drag her down the street.

{¶ 6} Detective Sardon testified that he was again the responding

officer when Webb called the police on November 16th and noticed that she had bruises and scars on the right side of her face. He took Webb to the

police station where she provided a written statement and they took photos of

her face. Based on the interview with Webb, her written statement, and her

injuries, charges against Holloway were filed.

{¶ 7} At the close of evidence, the State dismissed two counts of

kidnapping, recognizing that the testimony and evidence did not establish the

elements of kidnapping pursuant to R.C. 2905.01(B)(1). The trial court

found Holloway guilty of the remaining count of kidnapping (R.C.

2905.01(B)(2)), intimidation of a crime victim or witness, and domestic

violence. He was sentenced to a total prison term of three years.

{¶ 8} Holloway appeals, raising four assignments of error, which will be

addressed out of order.

Sufficiency of the Evidence

{¶ 9} Holloway contends in his first assignment of error that his

kidnapping conviction was not supported by sufficient evidence.1

{¶ 10} The test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial. State v. Bowden, Cuyahoga

App. No. 92266,

, ¶12. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational

Holloway does not challenge his convictions for intimidation of a crime witness or victim and 1

domestic violence. trier of fact could have found the essential elements of the crime proven

beyond a reasonable doubt. State v. Jenks (1991),

,

, paragraph two of the syllabus.

{¶ 11} In this case, Holloway was convicted of kidnapping pursuant to

R.C. 2905.01(B)(2), which provides that no person, by force, threat, or

deception, shall knowingly restrain another of the other person’s liberty

“under circumstances that create a substantial risk of serious physical harm

to that other person.”

{¶ 12} Under subsection (B) of R.C. 2905.01, “the offender’s purpose is

irrelevant since the key factor here is the special danger in which the victim

is placed. For example, holding another prisoner without adequate food,

shelter, or medical care could constitute an offense under * * * this section,

regardless of the offender’s purpose.” Legislative Service Commission

Commentary to R.C. 2905.01.

{¶ 13} In this case, Webb testified that when she walked into Holloway’s

house, he grabbed her and ordered her to look at his face, apparently to see

the black eye that she gave him the day before. As she was looking at his

face, Holloway slapped her in the face two or three times. Holloway then

tripped her and she fell to the ground, where he held her down with two

hands and continued to slap and scratch her in the face. According to Webb’s

trial testimony, this altercation lasted for five to fifteen minutes. {¶ 14} According to Webb’s statement given to police hours after the

incident, Holloway dragged her across the floor, punching and slapping her.

Holloway then sat on her, preventing her from leaving, and only when his

cousin intervened was she able to leave the premises. When she left the

house, Holloway chased after her and tried to drag her down the street. As a

result of Holloway’s actions, Webb received bruising and scratches to her face.

{¶ 15} Viewing all the evidence in the light most favorable to the State,

whether properly admitted or not, we find that Holloway’s actions created a

substantial risk of serious physical harm to Webb. Accordingly, we overrule

Holloway’s first assignment of error.

Hearsay

{¶ 16} Over objection, the State was permitted to have Webb read her

written statement given to police as part of her direct testimony. Holloway

contends in his fourth assignment of error that the trial court erred in

allowing this testimony.

{¶ 17} Generally, evidentiary rulings made at trial rest within the sound

discretion of the trial court. State v. Lundy (1987),

,

; State v. Graham (1979),

,

.

“The term abuse of discretion connotes more than error of law or judgment.

It implies that the court’s attitude is unreasonable, arbitrary, or

unconscionable.” Nielson v. Meeker (1996),

,

. “An abuse of discretion * * * implies a decision [that] is without a

reasonable basis or one [that] is clearly wrong.” Angelkovski v. Buckeye

Potato Chips Co. (1983),

,

.

{¶ 18} Holloway maintains that Webb’s statement was inadmissible

hearsay because it was inconsistent with her prior testimony and no

exception to the hearsay rule allowed for the admission of her statement.

The State argues that Webb’s statement was supplemental to her testimony.

From the record, it is unclear why and how Webb’s statement was admissible.

In overruling the defense objection, the trial court did not identify upon what

basis the statement was admissible and we find no rule of evidence, when

applied to the facts and circumstances of this case, that would render the

statement admissible.

{¶ 19} The statement was not admissible pursuant to Evid.R. 607,

because there was no showing of surprise and affirmative damage that

Webb’s testimony was inconsistent with her written statement. Moreover,

even if Webb’s testimony were considered inconsistent, the proper foundation

was not made prior to her reading her statement.2 See State v. Darkenwald,

Cuyahoga App. No. 83440,

, citing State v. Baker (Nov.

25, 1998), Summit App. No. 19009.

After Webb read her statement, the State then attempted to impeach her 2

trial testimony with her written statement. {¶ 20} A party may refresh the recollection of a witness under Evid.R.

612 by showing her the prior statement while testifying. But here, Webb did

not indicate that she did not recall or remember any events that the State

questioned her about. Furthermore, even if Webb needed her recollection

refreshed, a party may not read the statement aloud, have the witness read it

aloud, or otherwise place it before the jury. Dayton v. Combs (1993),

,

.

{¶ 21} Finally, no exception to the hearsay rule applies that would allow

Webb’s written statement to be properly admitted. Accordingly, the trial

court abused its discretion in admitting Webb’s written statement into

evidence and allowing her to read it aloud during in her direct trial

testimony.

{¶ 22} The State argues that even if the trial court erred in allowing

Webb to read her police statement, it was harmless error, at best, because

Webb’s testimony prior to her reading her statement established the elements

of kidnapping.

{¶ 23} Pursuant to Crim.R. 52(A), “any error, defect, irregularity, or

variance which does not affect substantial rights shall be disregarded.” To

find an error harmless, a reviewing court must be able to declare a belief that

the error was harmless beyond a reasonable doubt. State v. Lytle (1976),

,

. A reviewing court may overlook an error where the remaining admissible evidence, standing alone, constitutes

“overwhelming” proof of a defendant’s guilt. State v. Williams (1983),

,

. “Where there is no reasonable possibility

that unlawful testimony contributed to a conviction, the error is harmless and

therefore will not be grounds for reversal.” State v. Brown,

,

,

.

{¶ 24} We find that the trial court’s error in allowing Webb to read her

statement as part of her trial testimony contributed to Holloway’s kidnapping

conviction. Because Holloway was charged with kidnapping pursuant to

subsection (B) of R.C. 2905.01, the State needed to present sufficient evidence

establishing that Holloway created a “special danger” to Webb. Reviewing

all the testimony given at trial, the content of Webb’s statement to police was

vital in establishing the State’s case. Therefore, the error was not harmless,

but prejudicial and deprived Holloway of a fair trial. Accordingly, the trial

court abused its discretion in allowing Webb to read her statement as part of

her testimony. Holloway’s fourth assignment of error is sustained.

Mitigation and Burden of Proof

{¶ 25} In his third assignment of error, Holloway contends that R.C.

2905.01 is unconstitutional because it places the burden of proof on the

accused to prove the mitigating element of the offense, i.e. leaving the victim

in a safe place unharmed. {¶ 26} Generally, kidnapping is a felony of the first degree. R.C.

2905.01(C)(1). However, if the offender leaves the victim in a safe place

unharmed, kidnapping will be a second-degree felony.

Although the

provision mitigates an offender’s criminal culpability, Ohio courts have

consistently held that it is not an element of kidnapping and must be treated

the same as an affirmative defense. State v. McKnight,

,

,

.

{¶ 27} In this case, Holloway exercised his constitutional right not to put

on a defense at trial; therefore, the trial court was in no position to consider

R.C. 2905.01(C). Because he did not present any evidence, at no time did the

burden shift to the defendant; the burden of proving the kidnapping charge

rested solely on the State. Moreover, Holloway did not argue at any time

before or during trial that Webb was released unharmed in a safe place.

Accordingly, Holloway has waived this issue on appeal. State v. Awan

(1986),

,

, syllabus.

{¶ 28} Judgments of conviction for intimidation of a crime witness or

victim and domestic violence are affirmed, judgment of conviction for

kidnapping is reversed, and this case is remanded for a new trial on the

kidnapping charge. 3 Reversing Holloway’s kidnapping conviction and

Reversing Holloway’s kidnapping conviction on a trial-based error does not 3

bar retrial pursuant to State v. Brewer,

,

,

, 25, citing Lockhart v. Nelson (1988),

,

, 102 ordering a new trial renders his second assignment of error challenging the

manifest weight of the evidence moot. App.R. 12(A)(1)(c).

It is ordered that appellant recover from appellee 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

common pleas court to carry this judgment into execution. The defendant’s

intimidation of a crime witness or victim and domestic violence convictions

having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence on those counts.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, P.J., and KENNETH A. ROCCO, J., CONCUR

L.Ed.2d 265.