[Cite as State v. Bell,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110693 v. :

RUEBEN T. BELL, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 17, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-653154-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Alicia Harrison, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Michael V. Wilhelm, Assistant Public Defender, for appellant.

CORNELIUS J. O’SULLIVAN, JR., J.:

Defendant-appellant Rueben Bell (“Bell”) appeals from his conviction

and sentence for felonious assault. Bell waived his constitutional right to a jury trial

and submitted the matter directly to a bench trial on one count of felonious assault. After a thorough review of the record, we find that his conviction is supported by

competent and credible evidence, is not against the manifest weight of the evidence,

and the trial court did not err in considering witness testimony; therefore, his

conviction is affirmed. Additionally, we find that Bell’s sentence, imposed pursuant

to the Reagan Tokes Law (S.B. 201), is appropriate and constitutional.

Procedural History and Facts

In 2020, Bell was indicted on one count of felonious assault, a second-

degree felony, in violation of R.C. 2903.11(A)(2). The matter proceeded to a bench

trial, at which the following pertinent evidence was presented.

On August 15, 2020, John Mitchell and Latoya Johnson were staying at

the Extended Stay Hotel and Suites in North Olmsted. The couple had been staying

in various hotels in different municipalities throughout the Cleveland area trying to

hide from Johnson’s estranged husband, Bell. On this day, Mitchell was loading

items into the trunk of Johnson’s car in a parking lot adjacent to the hotel when he

was struck from behind by a car. The force of the impact caused him to drop the

groceries he was holding and dented the bumper of Johnson’s car. He looked over

his shoulder and saw that Bell was driving the car that had just hit him. Bell backed

up to drive away and Mitchell chased after him on foot. Mitchell threw a rock

towards the departing car. He sustained minor injuries.

Mitchell testified he was certain it was Bell who hit him. Mitchell had

known Bell for 15 years, both in and out of prison, and testified he knew Bell because Bell used to sell him drugs. Mitchell admitted to having a criminal record and

dealing and using drugs.

North Olmsted Police Officer James Kaminski1 responded to the scene.

He testified that Johnson, who was acting nervous and scared, told Officer Kaminski

that “Rueben Bell, her husband, had struck John [Mitchell] with a car that appeared

to be a rental car.” Later, Kaminski learned that “another officer [received] a

voicemail from him [Bell]” and that Bell “called the North Olmsted Police about

being upset with the rock being thrown at his vehicle.” Upon learning this

information, Officer Kaminski called Bell and left him a message to come in and file

a police report about the rock incident, but Bell never returned his calls or came to

the station.

Bystander Tyrone West (“West”), who did not know any of the involved

parties, was in the parking lot on the day in question when he heard a “loud smack,”

looked up, and saw a car backing up; he did not see the actual impact. West

estimated he was five feet from the vehicles in question, and that he, and the male

and female nearby, could see the face of the driver. West described the scene as

“chaos.” West testified he only had to walk a few steps to see the license plate, which

he memorized and relayed to police. Johnson, who did not testify at trial, told West

it was her “ex-husband or her husband” who hit Mitchell. West testified that

1 Officer Kaminski testified he is a seven and one-half year veteran of the North Olmsted Police Department. He is certified by the Ohio Peace Officers Training Academy and testified that he continually undergoes updated training through the academy and the Ohio Attorney General’s Office. Mitchell and Johnson were upset, and Mitchell was yelling “this ain’t the first time

he’s done this, you know, I’m sick of this. We need to call the police.” West testified

that Johnson was “kind of just shocked I guess, in awe of it or shocked * * *.”

Following all testimony, the trial court convicted Bell of the sole count

in the indictment and sentenced him to two to three years in prison pursuant to the

Reagan Tokes Law.

Assignments of Error

Bell filed a notice of appeal and raises the following three assignments

of error for our review:

I. The bench trial verdict was against the manifest weight of the evidence.

II. The trial court erred in considering improper hearsay testimony made by a biased declarant outside of the required temporal period as well as admitting hearsay introduced through Officer Kaminski.

III. The trial court violated Rueben Bell’s constitutional rights by imposing a Reagan Tokes sentence under S.B. 201.

Discussion

A. Manifest Weight of the Evidence

In the first assignment of error, Bell contends that his conviction was

against the manifest weight of the evidence.

“[A] manifest weight challenge questions whether the state met its

burden of persuasion.” State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-

Ohio-3598, ¶ 13. ‘The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [fact- finder] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.”

State v. Thompkins,

,

(1997), quoting State

v. Martin,

,

(1st Dist. 1983).

Bell claims that he was either the victim of mistaken identity or

Mitchell and Johnson are trying to accuse Bell of doing something he did not do. He

claims that Mitchell was an “untrustworthy” witness; therefore, his identification of

Bell “is equally untrustworthy.”

We note that in a manifest-weight review, the weight to be given the

evidence and the credibility of the witnesses are primarily for the finder of fact.

State v. DeHass,

,

(1967), paragraph one of the

syllabus. The trier of fact has the authority to “believe or disbelieve any witness or

accept part of what a witness says and reject the rest.” State v. Antill,

, 67,

(1964). Thus, in reviewing criminal manifest-weight-of-the-

evidence challenges, appellate courts must be mindful of the presumption in favor

of the finder of fact and defer to the factfinder’s resolution of conflicting testimony

if the greater amount of credible evidence supports the verdict. State v. Wilson,

,

,

, ¶ 25. Upon review, Bell’s conviction for felonious assault was not against the

manifest weight of the evidence. Mitchell testified that he was staying with Johnson

at a hotel and the couple had been changing their location to hide from Bell,

Johnson’s estranged husband. On the day in question, Mitchell was loading

groceries in the trunk of Johnson’s car when, according to Mitchell, he was hit from

behind by a car driven by Bell. Mitchell knew Bell well; he had known him for 15

years and had previously bought drugs from him. Johnson also identified Bell as

the perpetrator.

The neutral witness in this case, West, was staying at the hotel next

door, where Johnson’s car was parked. He was outside near his own car when he

heard a “loud smack,” turned around and saw a car backing up:

West: “I remember getting out the car, and I just remember hearing a loud smack. And it caused me to literally just turn around. I didn’t know what it was, I just turned around, and I saw a white sedan backing up, it was a four door, and it was an African American man, dark skinned man just back up. He kind of paused, and then he just — I remember when he paused, I was like I better get the license plate.”

West testified he memorized the car’s license plate and relayed it to

police. West saw some broken bottles and groceries on the ground; items that

Mitchell dropped when he was hit. West further testified that Mitchell and Johnson

identified Bell as the driver of the car that hit Mitchell.

Officer Kaminski testified that he responded to the scene, took

statements from Mitchell, West, and Johnson, and that Mitchell and Johnson

identified Bell as the man that hit Mitchell. Officer Kaminski noted that Mitchell had minor injuries and Johnson’s car bumper was dented. He further testified that

during his investigation he learned that Bell called the North Olmsted police upset

that a rock had been thrown at his vehicle. Mitchell admitted he threw a rock at

Bell’s car as Bell drove off.

Although Bell contends that Mitchell was an “untrustworthy” witness,

the trial court heard Mitchell’s testimony, his admissions regarding his criminal

history and current drug use and dealing, and Bell’s counsel thoroughly cross-

examined Mitchell regarding the event. The trial court, as trier of fact, was in the

best position to weigh the evidence, including the credibility of the witnesses. The

unaffiliated witness, West, clearly indicated that this incident happened and all

three people could see Bell’s face as he was backing his car away from the scene.

Based on this record, we conclude the trial court did not clearly lose

its way or create a manifest miscarriage of justice in returning a verdict finding Bell

guilty of felonious assault. Thus, his conviction is not against the manifest weight of

the evidence.

The first assignment of error is overruled.

B. Hearsay Evidence

In the second assignment of error, Bell argues that the trial court erred

in considering improper hearsay testimony from West and Officer Kaminski.

The admission or exclusion of evidence rests within the sound

discretion of the trial court. State v. Guyton, 8th Dist. Cuyahoga No. 88423, 2007-

Ohio-2513, ¶ 11, citing State v. Laboy, 8th Dist. Cuyahoga No. 87616, 2006-Ohio- 5927. A court abuses its discretion when a legal rule entrusts a decision to a judge’s

discretion and the judge’s exercise of that discretion is outside of the legally

permissible range of choices. State v. Hackett,

,

,

.

“Evid.R. 801(C) defines ‘hearsay’ as ‘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.”’ State v. Thomas, 8th Dist. Cuyahoga No. 106194,

, quoting Evid.R. 801(C). “Evid.R. 802 generally deems

hearsay inadmissible unless the evidence falls under a specific exception to the

hearsay prohibition.” Thomas at

citing State v. Montgomery,

,

,

.

Here, the trial court stated that the statements West relayed in court

that were made by Johnson and Mitchell were made immediately after the incident

while they were still under the excitement of the event. The state posits that the

statements were admissible as exceptions to hearsay under Evid.R. 803(2), excited

utterances. We find that they are admissible as either excited utterances under

Evid.R. 803(2) or Evid.R. 803(1) as present sense impressions.

Evid.R. 803(1) allows the admission of statements “describing or

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

or condition, or immediately thereafter unless circumstances indicate lack of

trustworthiness.” Pursuant to Evid.R. 803(2), “[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” is not excluded by the rule against hearsay. With

respect to present sense impressions, “the declarant need not be under ‘stress of

excitement caused by the event or condition,’ as required for an excited utterance;

rather, the primary focus is whether the statement was contemporaneous with the

perceived event or condition.” State v. Crowley, 2d Dist. Clark No. 2009 CA 65,

, ¶ 14.

This court has held that the hearsay exceptions for present sense

impressions and excited utterances reflect “an assumption that statements or

perceptions that describe events uttered during or within a short time from the

occurrence of the event are more trustworthy than statements not uttered at or near

the time of the event” and that “the key to the statement’s trustworthiness is the

spontaneity of the statement, either contemporaneous with the event or

immediately thereafter.” State v. Ellington, 8th Dist. Cuyahoga No. 84014, 2004-

Ohio-5036, ¶ 10, citing Cox v. Oliver Mach. Co.,

,

(12th Dist. 1987). Thus, “[b]y making the statement at the time of the event or

shortly thereafter, the minimal lapse of time between the event and statement

reflects an insufficient period to reflect on the event perceived * * * .” Ellington at

id, citing Cox at

Mitchell testified he was shocked when he was hit from behind by a

car while loading groceries in the trunk of his girlfriend’s car.2 West testified that

2Mitchell was available and testified, but, in accordance with Evid.R. 803, “present sense impressions and excited utterances are not excluded by the hearsay rule, even though the scene was “chaos” with broken bottles and groceries on the ground. West

described Mitchell as “upset,” when Mitchell yelled “this ain’t the first time he’s done

this, you know, I’m sick of this. We need to call the police.” West testified Johnson

was “kind of just shocked I guess, in awe of it or shocked” when she identified the

driver of the car as “her husband or ex-husband.” Officer Kaminski also described

Johnson as “nervous and scared” when she identified Bell as the driver of the car,

but she became “more calm” as time went on.

Based on this record, we find that the state’s argument has merit, and

the cited exceptions apply in this case. Moreover, although not raised by the parties,

we further find that the statements that Johnson and Mitchell made to West where

they identified Bell as the driver of the car and to which West testified about in court

were not stated by West to establish the truth of the matter asserted, i.e., they were

not stated to prove West was identifying Bell as the perpetrator. West testified he

did not know Bell.

Bell further claims that the trial court improperly relied on hearsay

evidence in admitting Officer Kaminski’s testimony regarding the voicemail Bell left

for a North Olmsted police officer. During direct examination, the state questioned

Officer Kaminski about his investigation and what steps he took after Bell was

identified as the driver of the car that hit Mitchell. The officer testified that he found

Bell’s information, called him, and left a voicemail. He subsequently learned that

the declarant is available as a witness.” State v. Given, 7th Dist. Mahoning No. 15 MA 0108,

. Bell “called North Olmsted police about being upset with the rock being thrown at

his vehicle” and left a message on another officer’s voicemail. After Officer Kaminski

learned of the voicemail message, he called Bell a second time requesting he

“respond to our station so we can make a report regarding his — the rock being

thrown at his vehicle.” According to Officer Kaminski, he never heard from Bell.

The officer’s testimony was offered to explain his course of

investigation, i.e., why he called Bell a second time and asked Bell to come to the

station to file a report. “Where statements are offered to explain an officer’s conduct

while investigating a crime, such statements are not hearsay.” State v. Blevins,

,

(10th Dist. 1987), citing State v. Thomas,

,

(1980). This testimony was part of a line of

questioning in which the state elicited from the witness about the course of the

investigation. We therefore find that Officer Kaminski’s testimony was admissible

and properly considered by the trial court at this bench trial.

Accordingly, the second assignment of error is overruled.

C. Reagan Tokes

Bell was sentenced to an indeterminate sentence of two to three years

in prison pursuant to the Reagan Tokes Law. At sentencing, the trial court noted

defense counsel’s objection to the imposition of this law, properly preserving the

issue for appeal. In the third assignment of error, Bell argues that the trial court

erred in sentencing him under the Reagan Tokes Law because it is unconstitutional. He raises the same arguments raised by many appellants: ripeness, due process,

separation of powers, and right to trial by jury.

Bell’s arguments are overruled pursuant to this court’s en banc

decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315,

, which

overruled the challenges presented in this appeal to the Reagan Tokes Law (enacted

through S.B. 201). The arguments presented in this case do not present novel issues

or any new theory challenging the constitutional validity of any aspect of the Reagan

Tokes Law left unaddressed by Delvallie.

Therefore, the third assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant 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

conviction having been affirmed, any bail pending 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.

CORNELIUS J. O’SULLIVAN, JR., JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and EILEEN T. GALLAGHER, J., CONCUR

N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes Law are unconstitutional.