[Cite as State v. Wallace,
2024-Ohio-2201.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-23-046
Appellee Trial Court No. 2022 CR 0209
v.
Kyle Wallace DECISION AND JUDGMENT
Appellant Decided: June 7, 2024
…
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Misty Wood, for appellant.
…
MAYLE, J.
{¶ 1} Appellant, Kyle Wallace, appeals the July 20, 2023 judgment of the Erie
County Court of Common Pleas sentencing him to 10 months in prison. For the
following reasons, we reverse.
I. Background and Facts
{¶ 2} Wallace was charged with one count of domestic violence in violation of
R.C. 2919.25(A) and (D)(3), a fourth-degree felony.
{¶ 3} Wallace’s case was tried to a jury beginning on June 21, 2023. At trial, the
state presented the testimony of sergeant John Orzech and detective Brian Clayman of the
Huron Police Department. The parties also stipulated that Wallace has a prior domestic
violence conviction. Although J.T., the alleged victim, was properly subpoenaed, she did
not appear at trial.
{¶ 4} On May 23, 2022, Orzech, Clayman, and a third officer, officer Firment,
responded to an anonymous 911 call reporting a “physical domestic violence” incident at
the trailer where Wallace and J.T.—whom Orzech described as “long-term boyfriend-
girlfriend [who] had a couple kids together”—lived.1 Orzech and Clayman each testified
that they were familiar with Wallace’s and J.T.’s voices from prior conversations and
could recognize their voices. J.T. was not the 911 caller.
{¶ 5} Orzech and Firment were the first to arrive at the trailer. When they got
there, Orzech could hear two adults—Wallace and J.T.—yelling at each other. J.T. told
Wallace “to get the F out of the trailer.” Clayman arrived soon after the other officers
and stood outside the fence around the trailer’s yard. He could hear noises coming from
the trailer, but could not otherwise discern what was happening.
1
The state played a recording of the 911 call for the jurors, but the trial court ultimately
decided not to admit the call as an exhibit. The call was not proffered or otherwise made
part of the record, so we are unable to review it.
2.
{¶ 6} When Orzech knocked, J.T. answered the door. Orzech described her as
“[v]ery, very upset and shaken.” He immediately noticed that she had a red mark under
her right eye and some swelling, and later noticed that she also had a swollen lip. He did
not see any injuries on Wallace.
{¶ 7} Orzech, who was standing on the porch of the trailer, told J.T. that they were
there to investigate a domestic violence complaint. When he asked where Wallace was,
J.T. pointed to the other end of the trailer. Orzech called for Wallace to come talk to him.
Wallace eventually did. When he came to the door, he told the officers to get off of his
property and said they had no reason to be there. He tried to close the door, but J.T.
stopped him. At that point, Wallace said he was going to leave and go to his nephew’s or
cousin’s house. Orzech conceded on cross-examination that Wallace going to his
relative’s house would have complied with J.T.’s request for him to leave the trailer.
{¶ 8} After Orzech informed Wallace that he was there to investigate a complaint
and that he needed to speak with the couple, Wallace left the trailer. The officers
followed him. When they caught up to him, Orzech ordered him to stop walking so that
they could investigate the complaint. Wallace turned to them and told them not to touch
him. At that point, the officers handcuffed Wallace and walked him back to the porch of
the trailer.
{¶ 9} Once Wallace was seated on the porch, Clayman and Firment went into the
trailer to talk to J.T., while Orzech stayed on the porch with Wallace. Clayman described
J.T. as “visibly shaken . . . upset with what had just occurred.” Her face was red and she
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“[s]howed signs of being . . . just recently involved in some type of altercation.” He also
noticed that she had redness below her right eye and a swollen lip that was getting
“increasingly more swollen while we were there.” Based on his training, Clayman
believed that J.T.’s injuries were “fresh, recent injuries that would have just occurred.”
He categorized her injuries as physical harm, but not serious physical harm.
{¶ 10} Over Wallace’s objection on Confrontation Clause grounds, Clayman
testified to statements J.T. made to him and Firment while they were inside the trailer.
According to Clayman, J.T. “confronted Mr. Wallace about yelling at the children and . .
. Mr. Wallace . . . started throwing items at [J.T.] and a set of batteries struck [J.T.] in the
face. Also during the argument that was happening, there was a threat to kill . . .” J.T.
Clayman saw “items strewn about the house” that J.T. claimed Wallace had thrown at
her, but did not see any batteries. He also saw a hammer near the trailer’s door, which
J.T. claimed was in Wallace’s hands when officers knocked.
{¶ 11} While Orzech was on the front porch with Wallace, Wallace was “very
flustered and upset at [the officers’] presence and that he was in the handcuffs.” He
would “continually” stand up and yell into the trailer that J.T. should “tell [officers] that
nothing physical occurred and that they were just arguing.”
{¶ 12} The officers asked J.T. to provide a written statement, but she refused. She
also refused medical treatment and would not allow the officers to take photographs of
her injuries. The officers did not force her to be photographed, which is “how [they]
usually go about that situation.” On cross, each officer confirmed that there are no
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pictures, medical reports, or testimony from J.T. in this case, and Orzech confirmed that
J.T. refused to file a domestic violence complaint against Wallace.
{¶ 13} After the officers testified, the state rested. Wallace moved for acquittal
under Crim.R. 29 because there was evidence that the parties were “screaming and
carrying on” but no evidence that Wallace harmed anyone. The trial court denied his
motion because there was evidence of fresh injuries on J.T.’s face, and “the jury will
ultimately decide better than [the judge] whether this conduct amounts to what the charge
is.”
{¶ 14} Wallace did not present any evidence.
{¶ 15} The jury found Wallace guilty of fourth-degree-felony domestic violence.
The trial court sentenced him to 10 months in prison.
{¶ 16} Wallace now appeals, raising two assignments of error:
Testimony regarding the statements of the alleged victim who did
not appear at court should not have been allowed.
Defendant’s Rule 29 Motion for acquittal or for a reduction in
charges should have been granted due to lack of evidence of harm.
II. Law and Analysis
A. Admission of J.T.’s statements violated Wallace’s right to confront witnesses.
{¶ 17} In his first assignment of error, Wallace argues that the trial court violated
his right to confront the witnesses against him by allowing the officers to testify to J.T.’s
statements. He contends that J.T.’s statements were testimonial because there was no
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ongoing emergency when she made the statements to the officers. The state “agrees that
the victim’s statements to Detective Clayman were testimonial.” However, the state
argues that admission of the testimony was harmless because the properly-admitted
evidence overwhelmingly shows that Wallace is guilty of domestic violence.
{¶ 18} The Sixth Amendment to the United States Constitution provides, in
relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him.” In Crawford v. Washington, 541 U.S. 36,
53-54 (2004), the United States Supreme Court held that the Confrontation Clause bars
“admission of testimonial statements of a witness who did not appear at trial unless [she]
was unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” “[T]he proper analysis for determining whether out-of-court statements
violate the Confrontation Clause is . . . whether they are testimonial in nature.” Toledo v.
Sailes,
2008-Ohio-6400, ¶ 13 (6th Dist.), citing
Crawford at 61. We conduct a de novo
review of evidentiary rulings that implicate the Confrontation Clause. State v. McKelton,
2016-Ohio-5735, ¶ 97.
{¶ 19} Statements are nontestimonial when made “in the course of police
interrogation under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency.” Davis v.
Washington, 547 U.S. 813, 822 (2006). By contrast, statements are testimonial when
“the circumstances objectively indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or prove past events potentially
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relevant to later criminal prosecution.” Id.; State v. Montgomery,
2016-Ohio-5487, ¶ 87
(A statement is “testimonial” if it is “made for a primary purpose of creating an out-of-
court substitute for trial testimony.” (Internal quotation omitted.)).
{¶ 20} Whether an emergency exists and is ongoing “is a highly context-
dependent inquiry.” Michigan v. Bryant, 562 U.S. 344, 363 (2011). A court must
consider “‘the statements and actions of both the declarant and interrogators . . . .’” State
v. Jones,
2012-Ohio-5677, ¶ 155, quoting id. at 367. If an officer’s questions are aimed
at determining “what happened”—as opposed to “what is happening”—the victim’s
responses are likely testimonial. State v. Stevenson,
2023-Ohio-4853, ¶ 62 (6th Dist.),
citing
Davis at 830. That is not the only consideration, however. We must also consider
whether there is a continuing risk to the victim, officers, or public and the formality of the
encounter during which the victim made the statements. Id. at ¶ 63-64.
{¶ 21} Generally speaking, once a suspect is separated from the victim by the
police, any ongoing emergency ends and the victim’s statements become testimonial
because, at that point, the primary purpose of the statements is establishing past events
that might be relevant to a future prosecution of the suspect. See, e.g., Davis at 829-832
(victim’s statements were testimonial because she was physically separated from the
suspect by police officers, was under police protection, and described “how potentially
criminal past events began and progressed”); State v. Fry,
2010-Ohio-1017, ¶ 104
(victim’s statements were testimonial because the suspect was in a police cruiser outside
of the apartment and her statements related to past events, not something that was
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currently happening); State v. Smith,
2019-Ohio-3257, ¶ 12-13 (1st Dist.) (witness’s
statements were testimonial because, among other things, she made them after police
handcuffed the suspect, which “neutraliz[ed] any conceivable threat,” and police elicited
the statements by asking about what had happened in the past, not what was currently
happening). By way of comparison, this is generally not the case when the suspect leaves
the scene on their own, or police are unsure if the suspect left the scene. See, e.g., State v.
Ford,
2021-Ohio-3058, ¶ 24-25 (6th Dist.) (although suspect left the scene, victim’s
statements were nontestimonial because she made them minutes after the assault to help
police identify and locate suspect whose location was unknown); State v. Sproles, 2023-
Ohio-3403, ¶ 30 (6th Dist.) (although suspect left the scene, victim’s statements were
nontestimonial because she made them to help police identify and locate armed suspect
whose location was unknown); State v. Matthews,
2010-Ohio-4153, ¶ 30-33 (2d Dist.)
(victim’s statement that she was stabbed in the ear, made while she was receiving
emergency medical care, was nontestimonial because police thought they were
responding to a fall and did not know if the suspect was still in the house; statements
victim made after emergency medical treatment ended were testimonial because the
ongoing emergency was over and the statements were sought for future prosecution).
{¶ 22} Here, Orzech did not testify to any statements that J.T. made to him,
beyond saying that she pointed to the area of the trailer where Wallace was. Assuming
that this was a statement, it was nontestimonial. Orzech heard Wallace and J.T. yelling
when he got to the trailer, saw that J.T. had a red mark on her face, and did not know
8.
where Wallace was at the time. The primary purpose of Orzech asking for Wallace’s
location was ensuring J.T.’s safety, not obtaining information about Wallace’s actions
that could be used against him in a future prosecution. Thus, Orzech was properly
allowed to testify about J.T. pointing out Wallace’s location.
{¶ 23} However, the statements Clayman testified to are different story. Clayman
did not speak to J.T. until after the officers had apprehended Wallace outside the trailer,
handcuffed him, and sat him on the trailer’s porch, where he was away from J.T. and
guarded by Orzech. At that point, any threat Wallace may have posed to J.T., the
officers, or the public had been neutralized. The questions Clayman asked were not
designed to alleviate an emergency situation. Instead, they were intended to find out
what had happened in the past, before officers got there—not what was currently
happening—with the intent of making a case against Wallace. Because there was not an
ongoing emergency and Clayman’s questions were designed to elicit information
potentially relevant to a future prosecution, the statements J.T. made to him were
testimonial, and the trial court erred by allowing Clayman to testify to her statements.
{¶ 24} As the state points out, however, a Confrontation Clause violation can be
harmless error. State v. Beasley, 2018-Ohio-493, ¶ 178, citing McKelton, 2016-Ohio-
5735, at ¶ 192. Harmless error is “[a]ny error, defect, irregularity, or variance which does
not affect substantial rights . . . .” Crim.R. 52(B). The state bears the burden of proving
that an error did not affect a defendant’s substantial rights. State v. Moore, 2021-Ohio-
9.
765, ¶ 37 (6th Dist.), citing State v. Morris,
2014-Ohio-5052, ¶ 23; and State v. Perry,
2004-Ohio-297, ¶ 15.
{¶ 25} When determining whether a trial error affected the substantial rights of a
defendant, an appellate court must (1) determine whether the error prejudiced the
defendant (i.e., the error affected the verdict); (2) declare a belief that the error was not
harmless beyond a reasonable doubt; and (3) excise the improper evidence from the
record, look to the remaining evidence, and determine whether there is evidence beyond a
reasonable doubt of defendant’s guilt. State v. Harris, 2015-Ohio-166, ¶ 37, citing
Morris at ¶ 25, 27-29, 33. In other words, “an appellate court must consider both the
impact of the offending evidence on the verdict and the strength of the remaining
evidence after the tainted evidence is removed from the record.” Morris at ¶ 33.
{¶ 26} In this case, we find that Clayman’s testimony about J.T.’s statements was
prejudicial. This testimony was the only evidence of what happened in the trailer before
the police arrived, and the only evidence establishing that Wallace knowingly caused the
physical harm to J.T. that the officers identified—elements that are required for a
conviction under R.C. 2919.25(A). When evidence that violates the Confrontation
Clause is the only evidence establishing essential elements of a charged offense,
admission of the evidence is “clearly prejudicial.” State v. Johnson, 2023-Ohio-445, ¶ 85
(8th Dist.).
{¶ 27} Next, we must consider whether the trial court’s admission of Clayman’s
account of J.T.’s statements was harmless beyond a reasonable doubt. An error in
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admitting evidence is harmless beyond a reasonable doubt when there is no reasonable
possibility that the improper evidence contributed to the conviction. McKelton at ¶ 192,
citing Schneble v. Florida,
405 U.S. 427, 432 (1972). Considering that the improper
evidence in this case established at least two of the elements of the domestic violence
charge (i.e., that Wallace knowingly caused physical harm), there is a reasonable
possibility that the evidence contributed to the conviction. Thus, we cannot say that the
trial court’s error was harmless beyond a reasonable doubt.
{¶ 28} Finally, we must excise the improper evidence and look at the remaining
evidence in the case to determine whether there is evidence beyond a reasonable doubt of
Wallace’s guilt. For a finding of harmless error to be appropriate, the case must involve
either (1) overwhelming evidence of guilt or (2) some other indicia that the error did not
contribute to the conviction. State v. Rahman, 23 Ohio St.3d 146, 151 (1986), citing
State v. Ferguson,
5 Ohio St.3d 160, 166, fn. 5 (1983). Our role in this inquiry is “‘not to
sit as the supreme trier of fact, but rather to assess the impact of this erroneously admitted
testimony on the jury.’” Morris,
2014-Ohio-5052, at ¶ 29, quoting
Rahman at 151, fn. 4.
{¶ 29} In Wallace’s case, there is neither overwhelming evidence of guilt nor
some other indication that the admission of J.T.’s statements did not contribute to the
conviction. Without her statements, the evidence shows (1) an anonymous neighbor
called 911 to report, as the officers described it, a “physical domestic violence” at
Wallace and J.T.’s trailer; (2) Wallace and J.T. were “long-term boyfriend-girlfriend” and
had children together; (3) Orzech heard a man and a woman (Wallace and J.T.) yelling
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when he arrived at the trailer; (4) J.T. seemed “shaken” and “upset” to the officers; (5)
J.T. had a red mark on her face, some swelling, and a swollen lip; (6) Clayman thought
J.T.’s injuries were “fresh, recent injuries that would have just occurred[;]” (7) Wallace
was agitated by the officers’ presence at his house and yelled to J.T. while he was
handcuffed on the porch that she should tell the officers that “nothing physical
occurred[;]” and (8) Clayman saw various items strewn about the trailer and a hammer by
the door while he was inside the trailer.
{¶ 30} Although this evidence shows that something likely happened to J.T. in the
trailer that day, there is no evidence in the record to support a finding that Wallace was
the cause of the harm to J.T. or that he caused harm to her knowingly. Without evidence
of these two crucial elements of a domestic violence charge, we cannot say that the
remaining evidence shows, beyond a reasonable doubt, that Wallace is guilty of domestic
violence. Therefore, we cannot say that the trial court’s admission of J.T.’s statements
through Clayman’s testimony was harmless. Accordingly, Wallace’s first assignment of
error is well-taken.
B. Wallace’s conviction is supported by sufficient evidence.
{¶ 31} In his second assignment of error, Wallace argues that the trial court erred
by denying his Crim.R. 29 motion for acquittal. He contends that “[t]his is a case with no
actual witnesses[,]” and the officers’ testimony about the “alleged injuries they did not
observe . . .” is not enough to support his conviction. The state responds that the
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circumstantial evidence it presented, when viewed in its favor, is sufficient to show that
Wallace knowingly caused physical harm to J.T.
{¶ 32} A motion for acquittal under Crim.R. 29 challenges the sufficiency of the
evidence. State v. Brinkley, 2005-Ohio-1507, ¶ 39. The denial of a Crim.R. 29 motion
“is governed by the same standard as the one for determining whether a verdict is
supported by sufficient evidence.” State v. Tenace,
2006-Ohio-2417, ¶ 37.
{¶ 33} In reviewing a challenge to the sufficiency of the evidence, we view the
evidence in a light most favorable to the prosecution and determine whether “any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.” State v. Smith, 80 Ohio St.3d 89, 113 (1997). A sufficiency review
considers all of the evidence at trial—whether properly admitted or not. State v. Brewer,
2009-Ohio-593, ¶ 16-20, citing Lockhart v. Nelson,
488 U.S. 33, 35, 38, 40-42 (1988).
We do not weigh the evidence or assess the credibility of the witnesses. State v. Were,
2008-Ohio-2762, ¶ 132. “Rather, we decide whether, if believed, the evidence can
sustain the verdict as a matter of law.” State v. Richardson,
2016-Ohio-8448, ¶ 13.
Naturally, this requires “a review of the elements of the charged offense and a review of
the state’s evidence.”
Id. Whether there is sufficient evidence to support a conviction is
a question of law. State v. Thompkins,
78 Ohio St.3d 380, 386 (1997).
{¶ 34} Wallace was convicted of domestic violence under R.C. 2919.25(A), which
requires the state to prove that the defendant knowingly caused physical harm to a family
or household member. A defendant acts “knowingly” when, regardless of his purpose, he
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is aware that his conduct will probably cause a certain result or will probably be of a
certain nature. R.C. 2901.22(B). “Physical harm” includes “any injury, illness, or other
physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). A
person with whom the defendant shares a child is a “family or household member.” R.C.
2919.25(F)(1)(b).
{¶ 35} When all of the evidence presented at trial—including the improper
testimony about J.T.’s statements—is taken into account, there was sufficient evidence
for the jury to convict Wallace of domestic violence. Orzech knew that Wallace and J.T.
had children together; Orzech heard Wallace and J.T. fighting; J.T. had a red mark on her
face, some swelling, and a swollen lip that appeared to be recent injuries; J.T. told
Clayman that she had gotten her injuries because Wallace threw various household items
at her, hitting her with a pack of batteries; while Wallace was handcuffed on the porch, he
was agitated and yelled to J.T. that she should tell the police nothing physical had
happened between them; and Wallace stipulated to a prior domestic violence conviction.
Taken together, this shows that J.T. was Wallace’s family or household member, Wallace
caused her physical harm by throwing batteries at her, and he was properly convicted of a
fourth-degree felony because of his prior domestic violence conviction. Thus, Wallace’s
conviction is supported by sufficient evidence, and his second assignment of error is not
well-taken.
14.
III. Conclusion
{¶ 36} Because the trial court violated Wallace’s rights under the Confrontation
Clause by allowing Clayman to testify to statements that J.T. made, and the error was not
harmless beyond a reasonable doubt, the July 20, 2023 judgment of the Erie County
Court of Common Pleas is reversed and remanded for a new trial. The state is ordered to
pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Myron C. Duhart, J.
____________________________
Charles E. Sulek, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
15.
