[Cite as State v. Smith,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95541

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

STANLEY SMITH DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-532637

BEFORE: Rocco, J., Sweeney, P.J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: July 21, 2011

-i- ATTORNEY FOR APPELLANT

Paul Mancino, Jr. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

BY: Denise J. Salerno Andrew J. Santoli Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113

KENNETH A. ROCCO, J.:

{¶ 1} Defendant-appellant Stanley Smith appeals from his convictions

for aggravated burglary, aggravated robbery, and kidnapping, all with

firearm specifications, for theft, and for having a weapon while under

disability (“HWD”), and from the sentence imposed for those convictions.

{¶ 2} Appellant presents six assignments of error. He argues the

lower court erred in failing to either declare a mistrial or order a continuance

when, during trial, the prosecution revealed it possessed information not

previously disclosed to the defense. He further argues the trial court violated his constitutional right to confront witnesses when it permitted

certain testimony into evidence. He argues the trial court erred when it

denied his motions for acquittal and in imposing sentences on all counts.

Finally, he claims his trial counsel rendered ineffective assistance.

{¶ 3} Upon a review of the record, this court cannot find any reversible

error occurred. Consequently, appellant’s convictions and sentences are

affirmed.

{¶ 4} Appellant’s convictions result from an incident that occurred

during a poker game. The host, Matthew Shultz, called some of his regular

players for a game to be held at his Lake Road apartment on the evening of

October 26, 2009.

{¶ 5} Six people eventually arrived, viz., Christopher Foertch, Thomas

Gross, Charlie Ha, Khai Nguyen, Simon Moujsa, and, lastly, Jonathan

Powell. As the evening progressed, Shultz noticed that Powell’s behavior

seemed unusual. Powell was using his cell phone, “texting” extensively on it

rather than playing poker, drinking beers at a fast rate, and “wandering

around” the apartment.

{¶ 6} Powell also left the apartment twice. The first time, Shultz

thought Powell went to smoke; however, the second time, Powell left his

“black and mild cigar” at the table when he left. About thirty minutes later,

Shultz heard a knock at his door. Foertch walked over to open it. {¶ 7} When he pulled, Powell “came flying through” and fell to the

floor. Two men holding guns stood at the threshold. The first man, later

identified as appellant’s cousin, Duane Smith, ordered everyone to get on the

floor and to stay quiet. All the players obeyed.

{¶ 8} Duane demanded that everyone remove their pants and empty

their pockets as he and his accomplice, later identified as appellant, each

opened a plastic trash bag. Duane then proceeded directly to Shultz, who

had fallen backward from his chair.

{¶ 9} As the host of the game, Shultz acted as the “bank”; he held all

the money the players traded for betting chips. Duane put the gun to

Shultz’s head and asked him where the money was. Shultz handed it over.

{¶ 10} Duane and appellant both collected items from the other players,

placing “pants, cell phones and belongings” into the bags. They then herded

all the players into the kitchen. When the victims were thus “packed”

together, one of the assailants began to spray a burning substance at them.

With the victims agitated and confounded by this assault, the assailants

made their escape.

{¶ 11} The victims waited until they were certain they were alone to act.

They found a cell phone misplaced beneath the furniture and called the

police. Shultz watched Powell, whose behavior seemed suspicious; Shultz believed Powell’s demeanor during the incident “looked fake.” Shultz

reported his suspicions to the police.

{¶ 12} The case was assigned to Cleveland police detective Tom Lynch.

After speaking with Shultz and some of the other victims, Lynch learned

Powell had left the area. Lynch nevertheless investigated Powell’s cell phone

records; Lynch discovered many of Powell’s messages that night were to and

from his then-girlfriend, Reba Smith. When Lynch questioned Reba, she

provided an oral statement.

{¶ 13} Reba admitted Powell asked her to help him on the night of the

incident. She claimed Powell asked her only to drive his truck for him.

Reba identified her two cousins, Duane Smith and appellant, as the men who

followed Powell into the apartment building and returned ten minutes later

with full trash bags. Reba’s information led Lynch to show photo arrays to

Shultz. Shultz positively identified Duane as one of the assailants.

{¶ 14} After arresting Duane Smith, Lynch interviewed him. Duane

also provided an oral statement. Duane indicated Powell planned the

robbery, and claimed Reba understood what was occurring. Duane admitted

taking part in the incident, but he refused to identify the other man involved

with Powell’s plan; Duane referred to him only as “the other dude.”

{¶ 15} As a result of Lynch’s investigation, appellant was charged in this

case along with Powell, Duane, and Reba in a twenty-one count indictment. Appellant was charged on twenty of the counts, as follows: Count 1,

aggravated burglary; Counts 2 through 6, aggravated robbery; Counts 7

through 12, kidnapping; Counts 13 through 19, theft; and Count 21, HWD.

Counts 1 through 12 each contained both one- and three-year firearm

specifications.

{¶ 16} Appellant’s case proceeded to a jury trial. The state presented

the testimony of three of the victims, Reba, Powell, and Lynch. After the

trial court denied his motions for acquittal, appellant presented two witnesses

in his defense. Appellant’s witnesses asserted he was in their company at

the time of the incident.

{¶ 17} The jury ultimately convicted appellant on all of the charges

against him. In sentencing appellant, the trial court imposed a prison term

that totaled ten years.

{¶ 18} Appellant challenges his convictions and sentence with the

following six assignments of error.

“I. Defendant was denied due process of law when the Court failed to grant a mistrial when the prosecutor had failed to provide timely discovery.

“II. Defendant was denied due process [of] law and a fair trial [w]here the Court denied a continuance to defendant where there was a failure to timely disclose potential exculpatory material prior to trial.

“III. Defendant was denied his Sixth Amendment right to confrontation and cross-examination when the Court allowed the investigating detective to relate a statement by a non-testifying co-defendant.

“IV. Defendant was denied due process of law when the Court overruled his motion for judgment of acquittal.

“V. Defendant was denied effective assistance of counsel.

“VI. Defendant was denied due process of law and subjected to unconstitutional multiple punishments when he was separately sentenced for merged offenses.”

{¶ 19} Appellant’s first and second assignments of error are related and

will be addressed together. In them, appellant argues that he was entitled to

either a mistrial or a continuance because the prosecution committed a

discovery violation by withholding potentially exculpatory information until

his trial was well underway. This argument lacks merit.

{¶ 20} A lower court has discretion in deciding whether to grant either a

mistrial or a continuance of trial proceedings. State v. Sage (1987),

,

; State v. Unger (1981),

,

, syllabus. A reviewing court will not reverse the decision

unless the trial court abused its discretion.

“Abuse of discretion

connotes more than an error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary or unconscionable.” Blakemore v.

Blakemore (1983),

,

.

{¶ 21} A mistrial should not be ordered in a criminal case merely

because some error or irregularity has occurred, unless the substantial rights of the accused adversely are affected; this determination primarily is left to

the trial court. State v. Reynolds (1988),

,

. A mistrial is necessary only when a fair trial no longer is possible.

State v. Franklin (1991),

,

, citing Illinois

v. Somerville (1973),

,

,

.

Thus, the essential inquiry on a motion for mistrial is whether the

substantial rights of the accused were adversely or materially affected. State

v. Goerndt, Cuyahoga App. No. 88892,

.

{¶ 22} In considering whether the trial court abused its discretion in

denying a continuance, this court considers the options available to the trial

court under Crim.R. 16(E)(3). The rule provides:

{¶ 23} “If at any time during the course of the proceedings it is brought

to the attention of the court that a party has failed to comply with this

[discovery] rule * * * , the court may order such party to permit the discovery

or inspection, grant a continuance, or prohibit the party from introducing in

evidence the material not disclosed, or it may make such other order as it

deems just under the circumstances.”

{¶ 24} This court has held that, when the prosecution fails to disclose

potentially exculpatory evidence, the trial court must consider the following

factors in deciding the appropriate way to ensure the fairness of the

proceeding: 1) whether the prosecution’s failure to disclose was a willful violation of Crim.R. 16; 2) whether foreknowledge of the evidence would have

benefitted the accused in the preparation of his defense; and, 3) whether the

accused is prejudiced by admission of the evidence. State v. Saucedo,

Cuyahoga App. No. 90327,

, citing State v. Parson

(1983),

,

.

{¶ 25} The record reflects that when Lynch investigated Powell’s cell

phone records, those records revealed Powell communicated with several

other numbers on the night of the incident. Most of Powell’s outgoing text

messages went to Reba. However, according to the provider, one number

Powell used belonged to a woman named “M.G.”1 whom Lynch could neither

locate nor link to the incident. This number had a “956” prefix.

{¶ 26} Powell sent to the “956” number the following text message at

9:17 p.m.:

{¶ 27} “Its only 8 people here now....So we gonna wait lil bit......”

{¶ 28} Seven minutes later, Powell sent a text message to Reba’s cell

phone number that read as follows:

{¶ 29} “Ask stew2 did he get my text[.]”

1Since this woman was not involved in the incident, this court will refer to her by initials. 2Reba and Powell both testified that appellant’s nickname was “Stu.” {¶ 30} Just before returning to the front of the building to let the two

men into the building, Powell sent a text message to Reba that stated, “Tell

them to cum [sic] on .... Remember the [guy] in the red shirt .... He got the

money[.]”

{¶ 31} During Powell’s direct examination, he testified that the “956”

number was appellant’s. On cross-examination, armed with the information

the prosecutor provided in discovery, i.e., that the “956” number belonged to

M.G., the defense used Powell’s cell phone records to challenge his credibility.

However, at that time, Powell suddenly testified that a different number on

his cell phone records belonged to M.G., who was a friend of his.

{¶ 32} The record reflects this testimony surprised the prosecutor and

Lynch. After Lynch requested additional information from the cell phone

provider, the provider admitted it had made a mistake. The “956” number

belonged to a “minute phone” that lacked any “subscriber information”;

therefore, no one could determine who had used it. The prosecutor informed

defense counsel and the trial court of this development.

{¶ 33} Upon obtaining this new information, and realizing Powell’s

credibility could not be challenged on the basis of his failure to recognize the

“956” number as M.G.’s number, defense counsel requested the trial court to

either declare a mistrial or grant a continuance so that he could reconsider

his strategic options. The trial court conducted a lengthy hearing out of the presence of the jury to ascertain both the circumstances surrounding the

misunderstanding and its effect on appellant’s defense of alibi.

{¶ 34} At the conclusion of this interlude, the trial court denied

appellant’s request. The court found that the prosecution had neither

wilfully committed a discovery violation nor withheld potentially exculpatory

information. However, the trial court decided to provide a jury instruction

explaining the defense had been asking Powell questions based upon a

misunderstanding, and “the fact that [defense counsel] engaged in that line of

cross-examination [wa]s not to be held against the defendant or [defense

counsel] in any way.” The record reflects defense counsel acquiesced in the

trial court’s resolution of the difficulty. State v. Greene, Cuyahoga App. No.

91104,

.

{¶ 35} The record contains no indication that the prosecution’s failure to

disclose the information was willful. Moreover, this court cannot conclude

that appellant was prejudiced. The information, although not exculpatory,

did not actually inculpate appellant, did not affect his defense of alibi, and, at

any event, the record otherwise contains overwhelming evidence against him.

{¶ 36} For the foregoing reasons, appellant’s first and second

assignments of error are overruled. {¶ 37} Appellant argues in his third assignment of error that the trial

court violated his constitutional right of confrontation when it permitted

Lynch during his direct examination to relate Duane’s oral statement. This

argument is rejected for three reasons.

{¶ 38} First, the record reflects Duane was available to testify. Indeed,

he professed a desire to aid in appellant’s defense, but appellant did not want

him to. Thus, appellant simply refused to exercise his right of confrontation.

See, e.g., State v. Lynch, Cuyahoga App. No. 84637,

. He

cannot now claim on appeal that the trial court denied him his right.

{¶ 39} Second, Duane’s statement neither named nor, in itself,

reasonably implicated appellant as one of the participants in the robbery. In

re Watson (1989),

,

.

{¶ 40} In addition, the trial court properly determined Duane’s

extrajudicial statement was admissible pursuant to Evid.R. 804(B)(3).

Lynch, ¶24. Duane’s statement was contrary to his interest, and

corroborating circumstances clearly indicated the statement’s

trustworthiness, since the details of the incident Duane described in his

statement already had been outlined by the other witnesses to the incident.

{¶ 41} Appellant’s third assignment of error, accordingly, is overruled. {¶ 42} Appellant argues in his fourth assignment of error that his

convictions are not supported by sufficient evidence and are against the

manifest weight of the evidence. This assignment of error also is overruled.

{¶ 43} Whether the evidence is legally sufficient to sustain a verdict is a

question of law. State v. Robinson (1955),

,

.

A conviction based on legally insufficient evidence constitutes a denial of due

process. Tibbs v. Florida (1982),

,

,

, citing Jackson v. Virginia (1979),

,

,

.

{¶ 44} On review, the appellate court must determine, after viewing the

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

trier of fact could have found the essential elements of the crime proven

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

,

; Jackson v. Virginia.

{¶ 45} A review of the manifest weight of the evidence is subjected to a

different standard. Article IV, Section 3(B)(3) of the Ohio Constitution

authorizes appellate courts to assess the weight of the evidence

independently of the fact-finder. Thus, when a claim is assigned concerning

the manifest weight of the evidence, an appellate court “has the authority and

duty to weigh the evidence and to determine whether the findings of * * * the

trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial.” State v. Greene, Cuyahoga App. No.

91104,

, citing State ex rel. Squire v. Cleveland (1948),

,

.

{¶ 46} The court in State v. Martin (1983),

,

, set forth the proper test to be utilized when addressing the

issue of manifest weight of the evidence as follows:

{¶ 47} “The court, reviewing the entire record, weighs the evidence and

all reasonable inferences, considers the credibility of the witnesses and

determines whether in resolving conflicts in the evidence, the trier of fact

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

conviction must be reversed and a new trial ordered.”

{¶ 48} However, this court must remain mindful that the weight to be

given the evidence and the credibility of the witnesses are matters left

primarily to the jury. State v. DeHass (1967),

,

.

{¶ 49} In this case, appellant’s convictions are supported by both

sufficient evidence and the manifest weight of the evidence. Both Reba and

Powell identified appellant as the other gunman, and testified appellant

aided Duane in committing the home invasion and the robbery of the men

present in Shultz’s apartment. Reba admitted that she received numerous

text messages from Powell that day regarding his idea to “make some money,” and that she drove Powell to the west side in his truck. Reba testified that

Duane and appellant were already at the apartment building in another car

and were waiting for them when they arrived.

{¶ 50} Reba testified that she, Duane, and appellant remained outside

the building in Powell’s truck, and she acknowledged Powell kept them

informed by way of his text messages. In one of Powell’s messages, he

instructed them to focus on the man in the red shirt when they entered the

apartment, because he held the money. Shultz testified he wore a red shirt

that night.

{¶ 51} Powell testified that Duane and appellant both took part in the

crimes committed; they both followed Powell into the building, and both

entered Shultz’s apartment behind him with guns drawn. Powell testified

that both Duane and appellant gathered everyone’s valuables before herding

them into the kitchen area.

{¶ 52} Since Reba’s and Powell’s similar descriptions of the

circumstances surrounding the incident were corroborated, not only by the

testimony of Shultz and of the other two victims who appeared for trial, but

also by Duane’s statement, a reasonable juror could have found all the

essential elements of the offenses were proved by the state. Thus,

appellant’s convictions were supported by sufficient evidence. {¶ 53} Appellant’s convictions also were supported by the manifest

weight of the evidence. Although appellant’s sister testified appellant was

with her playing cards on the east side of town at the time the robbery was in

progress, her credibility was undermined at critical points.

{¶ 54} On direct examination, appellant’s sister gave the impression of

possessing a good memory for telephone numbers, and she acknowledged she

sent appellant text messages often. However, during cross-examination,

she could not remember appellant’s phone number. Moreover, when the

records of the “956” number were shown to her, appellant’s sister also could

not explain why, in the days around the time of the robbery, she sent text

messages to that number, because she asserted she did not know to whom it

belonged.

{¶ 55} In light of the record, this court cannot find the jury lost its way

in determining that appellant was the “other dude” with whom Duane

committed the offenses that night. Consequently, appellant’s fourth

assignment of error also is overruled.

{¶ 56} Appellant argues in his fifth assignment of error that his trial

counsel provided ineffective assistance in several respects. This court

disagrees.

{¶ 57} In order to successfully assert ineffective assistance of counsel

under the Sixth Amendment, a defendant must show not only that the attorney made errors so serious that he was not functioning as “counsel,” as

guaranteed by the Sixth Amendment, but also that the deficient performance

was so serious as to deprive defendant of a fair and reliable trial. Strickland

v. Washington (1984),

,

,

; State v.

Bradley (1989),

,

.

{¶ 58} There are many ways to provide effective assistance in any given

case, therefore, scrutiny of counsel’s performance must be highly deferential,

and there will be a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance. Id.; see, also, Vaughn v.

Maxwell (1965),

,

. Counsel will not be

deemed ineffective for failing to make futile motions. State v. Leonard,

Cuyahoga App. No. 93496,

, ¶27.

{¶ 59} Appellant initially complains that trial counsel failed to object

when Lynch described what each of the victims reported had been taken

during the robbery. Appellant contends the testimony was inadmissible

hearsay.

{¶ 60} In State v. Blevins (1987),

,

,

the court held that, under certain circumstances, out-of-court statements

offered to explain a police officer’s conduct during an investigation are

admissible as non-hearsay evidence. Since the potential for abuse is great,

however, the circumstances are limited.

{¶ 61} Appellant is correct in asserting that Lynch’s testimony in this

regard was improper. Nevertheless, the error was harmless in light of the

other, overwhelming evidence concerning the specifics of the robbery. State

v. Cochran, Geauga App. No. 2006-G-2697,

.

{¶ 62} Shultz’s testimony indicated each participant in the poker game

brought approximately a thousand dollars, and that the robbers took all the

money he held for the players. Gross and Foertch both testified the robbers

took approximately two thousand dollars from them. Under these

circumstances, defense counsel’s omission cannot, by itself, be deemed

ineffective assistance.

{¶ 63} Appellant also complains that defense counsel failed to object to

Lynch’s testimony that Duane’s and Powell’s versions of the incident were

consistent. Appellant contends Lynch thus was improperly permitted to

vouch for their credibility. However, in context, Lynch actually was

explaining the reason he pursued charges against appellant as another

perpetrator of the incident. State v. Steward, Cuyahoga App. No. 80993,

, ¶28. Counsel would have no reason to object to this

testimony.

{¶ 64} A review of the record demonstrates appellant’s trial counsel

defended the case with vigor and thoroughness. Counsel simply was

unsuccessful; he cannot be faulted for failing either to surmount the overwhelming evidence of his client’s guilt, or to challenge admissible

evidence.

{¶ 65} Appellant’s fifth assignment of error, accordingly, also is

overruled.

{¶ 66} In his sixth assignment of error, appellant argues that the trial

court wrongly imposed sentence on each of his convictions, because the court

merged many of them pursuant to R.C. 2945.21(A). Appellant’s contention is

rejected.

{¶ 67} In State v. Logan (1979),

,

, the supreme court made the following observation:

{¶ 68} “It is apparent that * * * [R.C. 2941.25] has attempted to codify

the judicial doctrine sometimes referred to as the doctrine of merger * * *

which holds that ‘a major crime often includes as inherent therein the

component elements of other crimes and that these component elements, in

legal effect, are merged in the major crime.’ [Footnotes and citation

omitted.]”

{¶ 69} The supreme court later noted:

{¶ 70} “Because R.C. 2941.25(A) protects a defendant only from being

punished for allied offenses, the determination of the defendant’s guilt for

committing allied offenses remains intact, both before and after the merger of

allied offenses for sentencing.” State v. Whitfield,

,

,

, paragraph three of the syllabus (emphasis

added).

{¶ 71} The foregoing applies because Crim.R. 32(C) states in part that

“[a] judgment of conviction shall set forth the plea, the verdict or findings,

and the sentence.” Moreover, in State v. Baker,

,

,

, the supreme court held that the

requirements of Crim.R. 32(C) are jurisdictional and that absent compliance

with Crim.R. 32(C), there can be no final, appealable order under R.C.

2505.02.

at syllabus. Baker adhered to long-standing precedent that a

criminal action is not final for purposes of appeal until the trial court has

separately disposed of each count in the indictment. State v. Waters,

Cuyahoga App. No. 85691,

; State v. Cooper, Cuyahoga App.

No. 84716,

.

{¶ 72} With the foregoing in mind, this court stated in pertinent as

follows in State v. White, Cuyahoga App. No. 92972,

, ¶61-62:

{¶ 73} “ * * * Merger thus does not mean that no sentence is announced

for the allied offense — that would violate Crim.R. 32(C). Instead, merger of

sentences implies that a sentence is announced for the allied offense but

literally merged into another offense so that the defendant serves a single term.

This conclusion is consistent with the supreme court’s finding that the

imposition of a concurrent sentence for an allied offense causes prejudice because it constitutes a second conviction in violation of R.C. 2941.25. See

State v. Underwood,

, [

,

] (citations omitted).

{¶ 74} “When there has been a guilty finding on an allied offense, the

sentencing judge must comply with Crim.R. 32(C) by announcing a sentence

on all counts for which the defendant has been found guilty, including the

allied offense. It must then allow the state to elect on which of the two allied

offenses it wishes to proceed. The court must clearly note the election both

in court at the time of sentencing and in its judgment of conviction. It must

further state that the sentence on the non-elected count has been ‘merged’

into the elected count pursuant to R.C. 2941.25. By announcing a sentence

for the allied offense, the court will comply with Crim.R. 32(C). By merging

the sentence for the non-elected allied offense into the elected offense, the

court will comply with R.C. 2941.25.” (Emphasis added.)

{¶ 75} A review of the record in this case demonstrates the trial court

fully complied with its duties as described in White. Since the trial court

committed no error, appellant’s sixth assignment of error also is overruled.

{¶ 76} Appellant’s convictions and sentence are affirmed.

{¶ 77} It is ordered that appellee recover from appellant costs herein

taxed.

{¶ 78} The court finds there were reasonable grounds for this appeal. {¶ 79} 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 convictions having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

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

Rule 27 of the Rules of Appellate Procedure.

________________________________ KENNETH A. ROCCO, JUDGE

JAMES J. SWEENEY, P.J., CONCURS EILEEN A. GALLAGHER, J., DISSENTS (SEE ATTACHED DISSENTING OPINION) EILEEN A. GALLAGHER, J., DISSENTING:

{¶ 80} For the following reasons, I respectfully dissent from the majority

opinion. Because I find that the trial court violated Smith’s Sixth

Amendment right of confrontation, and further, improperly sentenced Smith

to a first-degree felony on all six counts of kidnapping when the verdict forms

did not delineate the degree of felony, I would vacate Smith’s convictions and

sentence.

{¶ 81} In his third assigned error, Smith argues the trial court violated

his Sixth Amendment right of confrontation when it allowed Detective Lynch

to relate Duane Smith’s out-of-court statement. I disagree with the majority

opinion’s conclusion that this assigned error lacks merit. {¶ 82} Evid.R. 804 sets forth exceptions to the hearsay rule that apply

when the declarant is unavailable:

(A) Definition of unavailability

‘Unavailability as a witness’ includes any of the following situations in which the declarant:

***

“(2) persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; * * *

***

“(5) is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under division (B)(2), (3), or (4) of this rule, the declarant’s attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if the declarant’s exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant’s statement for the purpose of preventing the witness from attending or testifying.

(B) Hearsay exceptions

{¶ 83} 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 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. (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.”

{¶ 84} In the present case, the state filed a motion in limine to call

Duane Smith as an adverse or court witness. Smith opposed this motion and

the trial court conducted an extensive hearing on the issue outside of the

presence of the jury. Tr. 363-379, 485-501. After determining that the

state’s ability to call the witness hinged on whether Duane Smith would

refuse to testify based on his Fifth Amendment right against

self-incrimination, the court brought Duane Smith into the courtroom. The

court advised Duane of his Fifth Amendment right not to testify and that his

appellate counsel advised him to refuse to testify. Tr. 488. Nonetheless,

Duane informed the court that he wanted to testify, that he wanted to help

his cousin. Tr. 491. At the end of the hearing, the court denied the state’s

request to call Duane Smith.

{¶ 85} Later, during the direct examination of Detective Lynch, the state

sought to admit Duane’s out-of-court statement to Lynch, based on the

unavailability of Duane Smith. Tr. 610. Specifically, the state sought to admit the statement pursuant to Evid.R. 804(B)(3), a statement against party

interest. Smith opposed the state’s action. The trial court ultimately

allowed Duane’s out-of-court statement through the testimony of Detective

Lynch.

{¶ 86} The Ohio Supreme Court has held that a two-part test

determines whether admitting hearsay testimony of an unavailable witness

violates the criminal defendant’s right of confrontation. State v. Blakely,

Lucas App. No. L-03-1275,

, citing State v. Smith (1990),

,

. First, the witness whose testimony is

offered must be unavailable.

The second prong of the test requires the

proffered statement to “bear sufficient indicia of reliability.”

citing Ohio

v. Roberts (1980),

,

,

.

{¶ 87} The first prong of the test is a rule of necessity. State v. Keairns

(1984),

,

. Generally, this requires a

showing that the declarant is unavailable to testify.

citing Roberts. A

witness is not considered unavailable unless the prosecution has made

reasonable efforts in good faith to secure his presence at trial.

citing

Barber v. Page (1968),

,

,

; Roberts.

This reflects the preference for face-to-face confrontation, which allows

demeanor to be observed and the import of the testimony to be more readily

comprehended.

The proponent of the evidence has the burden of establishing that such efforts have been made. See Keairns, citing Roberts;

State v. Madison (1980),

,

.

Furthermore, the evidence of unavailability “must be based on the personal

knowledge of witnesses rather than upon hearsay not under oath, at least

when unavailability has not been clearly conceded by defendant.” Keairns,

quoting Smith. See, also, State v. Workman,

,

,

.

{¶ 88} Regarding the first prong of the test, the record reveals that

Duane Smith was available and willing to testify at all times. Accordingly,

although the trial court attempted to deem him “unavailable” based on a prior

defense objection, Duane Smith was actually present and available to take

the witness stand. The law requires us to go no further in our analysis.

Duane Smith was present and willing to waive his Fifth Amendment right

against self incrimination and therefore, he cannot be deemed unavailable for

purposes of Evid.R. 804(B)(3).

{¶ 89} Thus, I would conclude that the record in the present case is

insufficient to establish the showing of unavailability required by Evid.R. 804

or the Confrontation Clause. See Keairns; Workman. Furthermore, I do not

find the trial court’s attempt to deem Duane Smith unavailable overcomes the

fact that Duane Smith was in fact present and willing to testify. Because the

state did not meet the first prong of the two-part test set forth in Smith, it is not necessary for us to address the second prong of the test requiring the

proffered statement to “bear sufficient indicia of reliability.” I would

therefore sustain Smith’s third assignment of error.

{¶ 90} Moreover, although I do not find the error sufficient enough to

warrant reversal, I do find problematic the court’s refusal to grant a

continuance or a mistrial after the state revealed the inaccurate phone

records to the defense and the court. The crux of the state’s case was the

phone records between the various defendants, which they had in their

possession from December 2009. Although the error addressed in

assignments of error one and two was not discovered until the middle of trial,

Smith’s counsel was not even given an opportunity to research the phone

records before trial commenced. The state handed over the records during

trial and the defense did the best it could under the limited time constraints.

Knowing all these facts, I believe that the trial court erred in not granting, at

a minimum, a continuance to allow Smith’s counsel more time to review the

records.

{¶ 91} Lastly, Smith’s sentence on Counts 8 through 13 for kidnapping,

a felony of the first degree, do not comport with the Ohio Supreme Court’s

rule announced in State v. Pelfrey,

,

,

. In Pelfrey, the Supreme Court held that “a verdict form signed

by a jury must include either the degree of the offense of which the defendant is convicted or a statement that an aggravating element has been found to

justify convicting a defendant of a greater degree of a criminal offense.”

at syllabus.

{¶ 92} In the present case, the verdict forms on the charges of

kidnapping do not include either the degree of the felony or a statement that

an aggravating element has been found. Accordingly, the remedy according

to Pelfrey is that Smith can only be convicted of the least degree of the offense

charged.

{¶ 93} Pursuant to R.C. 2905.01(C), kidnapping is an aggravated felony

of the first degree; however, if the offender releases the victim in a safe place

unharmed, kidnapping is an aggravated felony of the second degree.

Accordingly, based on the holding of Pelfrey, the maximum charge Smith

could be convicted and sentenced on is a second-degree felony kidnapping

charge. Smith must be resentenced on counts eight through thirteen.

{¶ 94} Based on the foregoing, I would reverse Smith’s conviction and

vacate the judgment entry of sentence of the court of common pleas. I would

then remand the matter for proceedings consistent with this dissent.