[Cite as State v. Baker,
2024-Ohio-5990.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-278
v. : (C.P.C. No. 17CR-6174)
Bryant B. Baker, : (REGULAR CALENDAR)
Defendant-Appellant. :
:
D E C I S I O N
Rendered on December 23, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and
Paula M. Sawyers for appellee. Argued: Paula M. Sawyers.
On brief: Samuel H. Shamansky Co, L.P.A., Samuel H.
Shamansky, Donald L. Regensburger, and Ashton C.
Gaitanos for appellant. Argued: Samuel H. Shamansky.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, P.J.
{¶ 1} Defendant-appellant, Bryant B. Baker, appeals from the judgment of the
Franklin County Court of Common Pleas convicting him of one count of nonsupport of
dependents under R.C. 2919.21. Because the trial court plainly erred by admitting the
entirety of Mr. Baker’s divorce decree for the jury’s consideration, its judgment of
conviction will be reversed and this cause remanded for a new trial.
I. Factual and Procedural History
{¶ 2} On November 14, 2017, the state indicted Mr. Baker on one count of
nonsupport of dependents under R.C. 2919.21, based on the allegation that he had
recklessly abandoned or failed to provide support to his minor child, F.B. (Nov. 14, 2017
No. 23AP-278 2
Indictment.) Because Mr. Baker had allegedly failed to provide support for at least 26
weeks out of a 104-week period, he was charged with a fifth-degree felony. Id. See also
R.C. 2919.21(G)(1) (elevating offense level from first-degree misdemeanor to a fifth-degree
felony based on a prior conviction for nonsupport or a period of nonsupport totaling 26
weeks, whether consecutive or not, out of 104 consecutive weeks). Mr. Baker entered a plea
of not guilty and the matter proceeded to trial.
{¶ 3} The state first called Brie Baker, Mr. Baker’s ex-wife, to testify. She testified
that she and Mr. Baker had one child, F.B., during their marriage. (Feb. 14, 2023 Tr. at 11-
12.) The parties divorced in February of 2015, resulting in the Franklin County Court of
Common Pleas, Division of Domestic Relations and Juvenile Branch, ordering Mr. Baker
to pay approximately $1,100 a month in child support. Id. at 12. Ms. Baker identified the
parties’ divorce decree and the order when presented with a certified copy by the state. Id.
at 14-15.
{¶ 4} Ms. Baker testified that “early on” she received one payment of “about half a
month’s payment, somewhere around $500,” but “nothing since.” Id. at 16. Since the
divorce, she had full custody of F.B. Id. at 16-17. Ms. Baker testified about the amount of
grocery, clothing, daycare, healthcare, and activity expenses she spent caring for F.B. Id. at
17-19. According to her, Mr. Baker had contributed “[z]ero” towards those expenses. Id. at
20.
{¶ 5} Ms. Baker testified that Mr. Baker had an undergraduate degree from Ohio
State and obtained an MBA during their marriage. Id. At the time of their marriage, he
had “a six-figure job” at Abercrombie & Fitch, which he quit to pursue his MBA. Id. at 21.
Although Mr. Baker received “a couple of offers” of employment after obtaining the degree,
ranging from annual salaries of $95,000 to $125,000, “he felt that those weren’t up to his
value” and declined them. Id. at 24. Ms. Baker testified that Mr. Baker cleaned and cooked
around their condo while unemployed. Id. at 22-23. However, she did “not know of any
reason” why Mr. Baker could not work or pay child support. Id. at 23.
{¶ 6} The state also called Stephen Wygle, the quality assurance manager from the
Franklin County Child Support Agency, as a witness. Mr. Wygle described the agency’s
process of receiving a court order for child support, tracking a party’s support obligation,
and the database used by the agency for tracking. Id. at 30-34. He authenticated the
No. 23AP-278 3
agency’s payment record of Mr. Baker’s child support obligation, which demonstrated only
a single payment received during the time period of nonsupport in question. Id. at 36-38.
After Mr. Wygle’s testimony, the state rested.
{¶ 7} Mr. Baker testified in his own defense. He stated that during the marriage,
he and Ms. Baker “agreed” that Mr. Baker “would be the stay-at-home parent” because he
was unemployed while she was earning a “[s]ignificant amount of money” after receiving
several promotions. Id. at 43. He admitted that the domestic court had ordered him to pay
child support, but he had been “unable” to due to the psychological trauma resulting from
“going from being with [F.B.] every day to seeing her four times a month” after the divorce.
Id. at 46. “I just couldn’t get over it, the mental abuse and psychological abuse that -- I just
could not -- I can’t get past it. I can’t get past it.” Id.
{¶ 8} According to Mr. Baker, he had not worked for the last 13 years. Id. at 47. He
stated that he had “pretty much nothing,” lived “out of two duffel bags,” and had to “beg for
alms for food.” Id. at 47. “My every day is just trying to survive.” Id.
{¶ 9} When asked on cross-examination why he did not seek employment after the
divorce, Mr. Baker replied: “I couldn’t do anything. I just couldn’t get over the fact of what
happened to me and the fact that my whole life got turned upside down. It was like my soul
had been ripped out.” Id. at 50. Mr. Baker admitted that he had never sought psychological
help and that he was physically able to work. Id. at 50-52.
{¶ 10} After the defense rested, the trial court addressed the admissibility of the
state’s two exhibits. The state agreed to the defense’s request to redact the total amount
owed from Exhibit B, the child support agency’s pay record, which was substantially more
than the amount of criminal nonsupport. Id. at 55.
{¶ 11} More controversial was Exhibit A, the divorce decree. Mr. Baker’s attorney
argued that only the portion of the decree ordering child support was relevant: “There are
so many findings of fact that I would submit are irrelevant to the child support obligation.
So I would just ask the government to parse out the portion of the decree that allocates child
support, which is really the only relevant issue.” Id. at 54.
{¶ 12} The state’s response was that “the jury’s more than capable of deciphering
through this document and determining what really is relevant in terms of the child
support.” Id. at 56. In particular, the state argued against redacting “the child support
No. 23AP-278 4
portion and the other portion that discussed him being a stay-at-home father” because Mr.
Baker had “brought up” the issue in his testimony and it “was specifically addressed in the
decree.” Id.
{¶ 13} The trial court admitted the divorce decree with no redactions, stating: “I’m
going to allow Exhibit A to go in in its entirety because it is the order.” Id.
{¶ 14} After the jury began deliberating, it sent a request for copies of the divorce
decree. Id. at 96. The trial court provided the jury with six additional copies and it resumed
deliberating. Id. Less than two hours later, the jury sent the following question to the trial
court: “Are we allowed to consider the defendant’s refusal of a psych evaluation during the
course of his divorce?” Id. at 97.
{¶ 15} The trial court asked the parties’ attorneys for their input as to the “correct
answer.” Id. at 97. The state’s position was that the members of the jury could “give
whatever weight that they feel is appropriate to that particular issue,” so its answer was “a
hard yes.” Id. at 97-98.
{¶ 16} The defense first contested the accuracy of the jury’s characterization of Mr.
Baker as having refused an evaluation. He noted that Mr. Baker had initially spoken to the
psychologist, who refused Mr. Baker’s request to “communicate with him via email,” as Mr.
Baker “wanted everything to be documented.” Id. at 98. After this exchange, Mr. Baker
“did not make an appointment for the initial interview or testing process.” Id. The defense
reiterated its criticism of the relevancy of the divorce decree, and stated as well that it was
“not evidence” but “a judicial finding. It’s a summary. It’s a finding of what the [domestic
relations] court gleaned from the trial.” Id. at 99.
{¶ 17} The trial court challenged the defense’s position on relevancy, stating that the
defense had “made the status of [Mr. Baker’s] mental health relevant by using it as a
defense.” Id. at 100. Mr. Baker’s attorney responded:
Yes. I said that the reason he’s been unable to work is because
of his mental health issues; and those are certainly subject to
attack by the government, but not this type of collateral attack.
You have to have … evidence. This [decree] is [the domestic
relations court judge] testifying basically, and I can’t cross-examine.
Id. at 100.
No. 23AP-278 5
{¶ 18} Mr. Baker’s attorney also described the divorce decree as “really a form of
hearsay,” and again stated that it could not be relevant “unless there was some way to tie it
to his stated mental health during the time that he wasn’t working.” Id. at 100-01.
{¶ 19} The state responded that “the jury needs to decide what’s relevant and what
isn’t relevant in terms of weighing all the evidence.” Id. at 101. Mr. Baker’s attorney
challenged this assertion, stating that “juries don’t decide what’s relevant. That’s the court’s
decision, of course.” Id. The trial court then ruled that “because the defendant testified
that when the marriage fell apart, that is when his mental crisis arose and he has been in
the same mental crisis since that point in time; therefore, the information is relevant and it
is already in evidence for the jury to consider.” Id. at 102. Shortly after, the jury found Mr.
Baker guilty. Id. at 104.
{¶ 20} Mr. Baker appealed and has assigned the following as error:
[I.] The trial court erred by permitting the State, in its case-inchief, to introduce evidence from individuals who were never
called to testify at trial, nor identified as potential witnesses,
nor subject to cross-examination at any time, thereby violating
Appellant’s rights to confrontation, due process, and a fair trial
as guaranteed by the Ohio and United States Constitutions.
[II.] The trial court erred by admitting irrelevant, unfairly
prejudicial, and extrinsic hearsay evidence regarding
Appellant’s purported bad acts and character from individuals
who would have been incompetent to provide that testimony
and, in some cases, entirely prohibited from testifying at trial,
thereby violating Appellant’s rights to confrontation, due
process, and a fair trial as guaranteed by the Ohio and United
States Constitutions.
[III.] The trial court erred by providing the jury with an
incomplete and inaccurate statement of the law, thereby
violating Appellant’s rights to due process and a fair trial as
guaranteed by the Ohio and United States Constitutions.
II. Standard of Review
{¶ 21} Before turning to Mr. Baker’s arguments, a preliminary discussion of the
appropriate standard of review is necessary. Other than several assertions that the trial
court abused its discretion when admitting the entirety of the divorce decree as evidence,
No. 23AP-278 6
Mr. Baker’s briefing is silent as to what standard of review applies in this appeal. (Brief of
Appellant at 23, 24, 27.) The state argues that Mr. Baker’s attorney failed to object on any
basis other than relevance, and possibly hearsay, so all other grounds for error he asserts
on appeal are subject only to plain error review under Crim.R. 52(B). (Brief of Appellee at
9.)
{¶ 22} An appellate court generally reviews trial court evidentiary rulings for an
abuse of discretion. State v. Myers, 97 Ohio St.3d 335,
2002-Ohio-6658, ¶ 75. A trial court
abuses its discretion if its ruling is “unreasonable, arbitrary, or unconscionable.”
Blakemore v. Blakemore,
5 Ohio St.3d 217, 219 (1983). “An unreasonable decision is one
that is unsupported by a sound reasoning process; an arbitrary attitude is an attitude that
is without adequate determining principle not governed by any fixed rules or standard; and
unconscionable may be defined as affronting the sense of justice, decency, or
reasonableness.” State v. Hill, 10th Dist. No. 10AP-177,
2010-Ohio-6121, ¶ 34, citing State
v. Waugh, 10th Dist. No. 07AP-619,
2008-Ohio-2289,¶ 13.
{¶ 23} “If the defendant failed to raise an error affecting substantial rights at trial,
an appellate court reviews the error under the plain error standard in Crim.R. 52(B).” State
v. Perry, 101 Ohio St.3d 118,
2004-Ohio-297, ¶ 14. The rule states: “Plain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention
of the court.” Crim.R. 52(B). The defendant “bears the burden of proof to demonstrate
plain error on the record” before the appellate court. State v. Rogers,
143 Ohio St.3d 385,
2015-Ohio-2459, ¶ 22, citing State v. Quarterman,
140 Ohio St.3d 464,
2014-Ohio-4034,
¶ 16. To do so, the defendant must first show “a deviation from a legal rule” amounting to
an error. State v. Barnes,
94 Ohio St.3d 21, 27 (2002), quoting State v. Hill,
92 Ohio St.3d
191, 200 (2001). Second, the noticed error must be plain, meaning that it reveals “an
‘obvious’ defect in the trial proceedings.”
Id., quoting State v. Sanders,
92 Ohio St.3d 245,
257 (2001). Third, the trial court’s error must have affected not only the defendant’s
substantial rights, but “the outcome of the trial” as well.
Id. Ultimately, the defendant must
“demonstrate a reasonable probability that the error resulted in prejudice” in order to
satisfy the Crim.R. 52(B) standard of plain error. (Emphasis sic.) Rogers at ¶ 22.
{¶ 24} In this appeal, Mr. Baker asserts that the trial court erred on a number of
grounds by admitting the entirety of the divorce decree. He argues that the “statements
No. 23AP-278 7
and opinions from the parties, as well as lay and expert witnesses” made during the divorce
proceeding and stated within the decree, as well as the domestic court judge’s findings, all
amount to “testimonial hearsay within hearsay” violating not only the rule against hearsay,
but his rights under the Confrontation Clause of the Sixth Amendment of the United States
Constitution and its counterpart in Article I, Section 10 of the Ohio Constitution. (Brief of
Appellant at 14-16.) In addition to relevance, he argues that the domestic court judge’s
factual findings were not based on personal knowledge and therefore violated Evid.R. 602
concerning the competency of witnesses. Id. at 23. Mr. Baker also argues that the “slew of
unfairly prejudicial factual findings reached by the domestic court” violated the prohibition
on introducing character evidence under Evid.R. 404. Id. at 25. The “purported ‘expert
testimony’ ” contained in the decree was admitted without the notice and disclosure
requirements in Crim.R. 16(K), he argues, and, under Evid.R. 403, any probative value of
admitting the decree in its entirety was outweighed by the danger of unfair prejudice. Id.
at 27, 32.
{¶ 25} Only a “timely objection” preserves error asserted in an evidentiary ruling,
however. Evid.R. 103(A)(1). The only objection Mr. Baker’s counsel raised before the jury
began deliberations concerned relevancy. At that time, he argued that the decree’s findings
of fact were “irrelevant to the child support obligation” and asked “the government to parse
out the portion of the decree that allocates child support, which is the only relevant issue.”
(Tr. at 54.)
{¶ 26} Mr. Baker argues that because his trial counsel made a “reference” to the
divorce decree’s findings of fact, the “objections regarding competency and confrontation
are just as readily discerned from the record as those pertaining to relevance and hearsay.”
(Reply Brief at 6.) He further argues that “the presence of bad acts evidence and expert
opinions” in the decree was enough to preserve those grounds for appealing its admission
because they were “readily apparent from the face of that document” and “the trial court
was certainly aware” of them. Id. at 7.
{¶ 27} Under Evid.R. 103(A)(1), an objection must state “the specific ground of
objection, if the specific ground was not apparent from the context.” According to Mr.
Baker’s arguments, however, a trial court should be aware of any possible grounds for
objection to the admission of a document based on its contents, relieving parties from the
No. 23AP-278 8
specificity required by Evid.R. 103. Mr. Baker does not explain how the trial court could be
aware of any grounds for objection that his counsel did not express. The expectation that
the trial court intuit every basis for objection to the admission of a 40-page document from
its “face” without any guidance from trial counsel is unreasonable. (Reply Brief at 7.) The
only specific reason for inadmissibility raised by his counsel before the trial court’s ruling
was relevancy, and no other reason was apparent from the context of the discussion on the
record.
{¶ 28} Another factor Mr. Baker cannot overcome to avoid plain error review is
timing. “To be timely, the objection must be raised ‘at a time when such error could have
been avoided or corrected by the trial court.’ ” State ex rel. Holwadel v. Hamilton Cty. Bd.
of Elections, 144 Ohio St.3d 579,
2015-Ohio-5306, ¶ 50, quoting State v. Childs,
14 Ohio
St.2d 56 (1968), paragraph three of the syllabus (holding that an objection made during
closing argument was untimely). After the jury began its deliberations, it sent a question
about the divorce decree’s contents to the trial court. Only then did defense counsel argue
that the “information” in the decree was both “irrelevant” and “really a form of hearsay,”
and that he was unable to “cross-examine” the judge who made the findings in the divorce
decree. (Tr. at 100.) Although hearsay and Confrontation Clause objections were “apparent
from the context” of this discussion, defense counsel raised them only after the jury had
begun deliberating. Evid.R. 103(A)(1). This was untimely. See State v. Harris, 10th Dist.
No. 21AP-678,
2023-Ohio-3994 (applying plain error to the admission of a forensic report
containing hearsay statements after trial counsel only objected to witness reading an
unredacted portion of report). After deliberation began, avoiding the admission of the
entire divorce decree was impossible, and the corrective effect of any jury instruction
(which defense counsel did not ask for) is doubtful. For these reasons, plain error review
applies to all of Mr. Baker’s arguments asserting error in the admission of the divorce
decree, with the exception of the argument based on relevancy.
III. Analysis
{¶ 29} An examination of the admissibility of the divorce decree must begin with the
issue of its relevancy to prove the case against Mr. Baker, as well as the affirmative defense
he asserted. The definition of relevant evidence is “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
No. 23AP-278 9
probable or less probable than it would be without the evidence.” Evid.R. 401. The trial
court has the responsibility to determine the relevancy of evidence. Evid.R. 104; State v.
Getsy, 84 Ohio St.3d 180, 201 (1998) (holding that admission of irrelevant evidence in
penalty phase of aggravated murder case did not prejudice defendant, although trial court
incorrectly instructed jury to consider evidence “which you deem to be relevant” from trial
phase); State v. Ahmed,
103 Ohio St.3d 27,
2004-Ohio-4190, ¶ 110 (quoting Getsy, stating
that “it is ‘the trial court’s responsibility, not the jury’s, to determine what evidence [is]
relevant’ ”).
{¶ 30} Mr. Baker was indicted on one fifth-degree felony count of nonsupport of a
dependent under R.C. 2919.21. At trial, the state was required to prove that Mr. Baker
recklessly committed the offense as defined under R.C. 2919.21(B). See State v. Collins, 89
Ohio St.3d 524 (2000) (holding that the applicable degree of mental culpability to prove
nonsupport of a dependent under R.C. 2919.21 is recklessness). The statute states:
(1) No person shall abandon, or fail to provide support as
established by a court order to, another person whom, by court
order or decree, the person:
(a) Is legally obligated to support ….
R.C. 2919.21(B).
{¶ 31} In addition, to secure a conviction at the fifth-degree felony level charged in
the indictment, the state was required to prove that Mr. Baker “failed to provide support
… for a total accumulated period of twenty-six weeks out of one hundred four consecutive
weeks, whether or not the twenty-six weeks were consecutive.” R.C. 2919.21(G)(1).
{¶ 32} Mr. Baker invoked the affirmative defense that he “was unable to provide
adequate support or the established support but did provide the support that was within
the accused’s ability and means.” R.C. 2919.21(D). To prevail, he was required to prove the
affirmative defense by a preponderance of the evidence. R.C. 2901.05(A).
{¶ 33} Mr. Baker’s attorney conceded to the jury, both in his opening statement and
his closing argument, that the state’s evidence proved the offense. (Tr. at 8, 68.) On appeal,
Mr. Baker repeats that he “did not, and does not, claim that the evidence presented by the
State was in any way deficient.” (Brief of Appellant at 20.) Rather, “the only disputed issue”
was whether he could prove the affirmative defense as defined under R.C. 2919.21(D). Id.
No. 23AP-278 10
At trial, Mr. Baker’s testimony was the only evidence he introduced to prove the defense by
a preponderance of the evidence.
{¶ 34} Mr. Baker’s attorney agreed to the admissibility of “the portion of the
[divorce] decree that allocates child support,” a three-page section stating the amount of
child support and the actual order to pay, but argued that the rest was “wholly irrelevant.”
(Tr. at 54.) In response, the state first argued for admission of the divorce decree in its
entirety, claiming that “the jury’s more than capable of deciphering through this document
and determining what really is relevant in terms of the child support.” Id. at 56. In the
event the trial court decided to not admit the entire document, the state asked for admission
of the “discussion” in the divorce decree “regarding whether or not Mr. Baker was a stay-at-home parent by agreement” because it was “brought up by the defense” during his
testimony. Id.
{¶ 35} Here, no party disputes the relevancy of the domestic court’s child support
order, as stated on pages 35-37 of the divorce decree, to prove that Mr. Baker was “legally
obligated to support” F.B. “by a court order or decree.” R.C. 2919.21(B). State v. Nelms,
10th Dist. No. 81AP-339, 1981 Ohio App. LEXIS 10222, *3-5 (Oct. 6, 1981) (holding that
the state may use “a court order or decree arising out of a civil action to establish that
[defendant] is a person whom by court order defendant is legally obligated to support”
under former R.C. 2919.21(A)(4), now R.C. 2919.21(B)).1 Furthermore, as the state notes,
that portion of the divorce decree “was relevant to prove the date the child support order
went into effect” in order to prove that 26 weeks of nonpayment had elapsed, as required
by R.C. 2919.21(G)(1). (Brief of Appellee at 14.)
{¶ 36} Mr. Baker’s alleged tenure as a stay-at-home father during the marriage
would have occurred before the divorce and the period of nonsupport charged in the
indictment, and therefore had no bearing on the elements of nonsupport of a dependent
under R.C. 2919.21(B) or his affirmative defense. Because it was not a fact that was of
consequence to the action, his testimony on this point was irrelevant, and also inadmissible.
Evid.R. 104; Evid. R. 402. (“Evidence which is not relevant is not admissible.”).
{¶ 37} However, Mr. Baker opened the door to the admission of evidence on this
issue. “The evidentiary concept of ‘opening the door’ embodies the concepts of waiver and
1 1995 Ohio S.B. 269, enacted on June 27, 1996, renumbered R.C. 2919.21(A)(4) as R.C. 2919.21(B).
No. 23AP-278 11
fairness. If one party offers evidence that is otherwise inadmissible as being irrelevant
under the rules of evidence, the courts will consider that a waiver of the rules and in fairness
allow the opposing party to present testimony or evidence on the same point.” State v.
Dunbar, 8th Dist. No. 89896, 2008-Ohio-2033, ¶ 31. Furthermore, Mr. Baker asserted not
only that he had been the stay-at-home father, but also that he and his ex-wife had “agreed”
that he would be. (Tr. at 43.) The divorce decree stated that Ms. Baker “adamantly disputes
that [Mr. Baker] and she agreed that he would be the stay-at-home parent,” directly
contradicting Mr. Baker’s assertion of unanimity. (Emphasis sic.) (Ex. A at 28.) After a
party has opened the door, the opposing party “may introduce evidence on the same issue
in order to rebut any false impression that may have resulted from the earlier admission.”
State v. DeLeon, 2d Dist. No. 18114,
2001 Ohio App. LEXIS 2353, *23 (May 25, 2001), citing
United States v. Segines,
17 F.3d 847, 856 (6th Cir.1994). Once Mr. Baker testified that he
had been the stay-at-home parent and asserted that his ex-wife agreed to this, he forfeited
any argument that other evidence addressing those points were inadmissible based on
relevancy.2
{¶ 38} The trial court did not analyze any part of the divorce decree for relevancy
before admitting it in its entirety for the jury to review. After asking the parties’ positions,
it stated only: “I’m going to allow Exhibit A to go in in its entirety because it is the order.”
(Tr. at 56.) No sound reasoning supported this ruling. To characterize the divorce decree
in its entirety as “the order” is a factual error. Only three pages of Exhibit A was the child
support order. To admit the remaining 37 pages of the divorce decree with no examination
of any of its contents for relevancy, was an arbitrary ruling by the trial court. Consequently,
it was an abuse of discretion.
{¶ 39} The only other time relevancy arose was the discussion of Mr. Baker’s
communication with the psychologist that prompted the jury to send its question asking if
it could consider his “refusal of a psych evaluation” during the divorce. Id. at 97. Mr.
2 The state did not address Mr. Baker’s assertions about being the stay-at-home parent when cross-
examining Mr. Baker, nor did it call back his ex-wife to rebut this portion of his testimony. Thus, the state
did not perceive his testimony about being a stay-at-home father as consequential enough to merit openly
contesting the issue in front of the jury, in spite of its insistence that the divorce decree be admitted because
he had “opened the door” on this issue. Furthermore, the portion of the divorce decree addressing the point
actually bolstered Mr. Baker’s assertion: “Whether or not the parties actually agreed, this Court cannot and
has not ignored the fact that [Mr. Baker] was the parent to stay home with the parties’ child.” (Emphasis
sic.) (Ex. A at 28.)
No. 23AP-278 12
Baker’s affirmative defense almost entirely depended upon his assertion of a mental state
so incapacitating that he “was unable to provide adequate support or the established
support but did provide the support that was within the accused’s ability and means,” as
required by R.C. 2919.21(D). Because of his affirmative defense, evidence of his mental
state was “of consequence to the determination of the action” because of his affirmative
defense. Evid.R. 401. Thus, irrelevancy alone could not have served as the basis for the
inadmissibility of the part of the decree the jury inquired about.
{¶ 40} Mr. Baker’s other arguments stand on surer ground. Noting that in the
divorce decree, the domestic court judge “relies upon statements and opinions from parties,
as well as lay and expert witnesses,” Mr. Baker describes those statements as “testimonial
hearsay within hearsay.” (Brief of Appellant at 16.)
{¶ 41} Hearsay is defined 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 in the statement.” Evid.R. 801(C). A statement includes a “written assertion.”
Evid.R. 801(A). Unless a recognized exception applies, hearsay is inadmissible. Evid.R.
802. To admit hearsay within hearsay, an exception to the hearsay rule must apply to each
statement. See Evid.R. 805 (“Hearsay included within hearsay is not excluded under the
hearsay rule if each part of the combined statements conforms with an exception to the
hearsay rule.”).
{¶ 42} The examples of hearsay within hearsay in the 41-page divorce decree are too
numerous to catalog. A sample must suffice. In the decree, the domestic court judge
summarizes the testimony of every witness during Mr. and Ms. Baker’s divorce trial. Ms.
Baker’s previous supervisor testified, and “confirmed that [Ms. Baker] was a manager in
training here in Columbus and her position was terminated,” and that she “was an excellent
long term employee ….” (Ex. A at 15.) F.B.’s guardian ad litem “stated concerns about
the state of [Mr. Baker’s] mental health and possible harm” to F.B. Id. at 16. An expert
witness who testified about Mr. Baker’s earning ability stated that he “should be able to find
employment in the Columbus Ohio area in the next six months earning $71,000,” and he
“did not cooperate fully with the evaluation.” Id. at 20. The hearsay within hearsay rule
applies to each of these statements, and many others in the divorce decree.
No. 23AP-278 13
{¶ 43} The state argues that the divorce decree was admissible under Evid.R.
803(8), the public records exception to the hearsay rule. (Brief of Appellee at 12.) Evidence
Rule 803 states a number of exceptions that “are not excluded by the hearsay rule, even
though the declarant is available as a witness.” The rule includes the following exception
for public records and reports: “Records, reports, statements, or data compilations, in any
form, of public offices or agencies, setting forth (a) the activities of the office or agency, or
(b) matters observed pursuant to duty imposed by law as to which matters there was a duty
to report ….” Evid.R. 803(8). Ohio courts have applied the Evid.R. 803(8) public records
exception to the hearsay rule when considering the admissibility of court records.3 E.g., In
re M.H., 10th Dist. No. 17AP-466, 2018-Ohio-2413, ¶ 34 (holding that a “request for
[probation] revocation was a certified court record and therefore was a ‘public record’
within the meaning of Evid.R. 803(8)”).
{¶ 44} Even so, “[w]itness statements in a public record typically constitute hearsay
within hearsay” and “are not automatically admissible by virtue of their inclusion in an
official record.” State v. Mohn, 12th Dist. No. CA2008-06-073, 2009-Ohio-437, ¶ 26. The
Supreme Court of Ohio has stated that the public records exception “allows the admission
of official records, although these records may constitute hearsay, in so far as they consist
of facts recorded by public officials who are not present as witnesses. However, the
[exception] does not render admissible statements contained in official reports, where such
statements are themselves hearsay.” Westinghouse Elec. Corp. v. Dolly Madison Leasing
& Furniture Corp.,
42 Ohio St.2d 122, 130 (1975) (interpreting R.C. 2317.42, the statutory
predecessor to Evid.R. 803(8)). Thus, a document’s status as a public record does not
automatically allow the admission of every hearsay statement it contains. Such statements
are subject to the double hearsay requirement of Evid.R. 805 and must be admissible under
an exception other than the Evid.R. 803(8) exception that applies to the public record itself.
See State v. Lowry, 10th Dist. No. 89AP-108,
1989 Ohio App. LEXIS 3417, *5 (Aug. 31,
3 In contrast, when construing the federal rule, several United States Circuit Courts of Appeal have held that
“the public records exception of Rule 803(8) does not apply to judicial findings of fact in a prior, unrelated
case.” Herrick v. Garvey,
298 F.3d 1184, 1192 (10th Cir.2002). See also Nipper v. Snipes,
7 F.3d 415, 418
(4th Cir.1993) (holding that “judicial findings of fact are not public records within the meaning of”
Fed.R.Evid. 803(8); United States v. Jones,
29 F.3d 1549, 1554 (11th Cir.1994) (holding that “the findings
of fact and references to testimony in [previous civil case] order were not admissible evidence and should
not have been considered by the district court” under Fed.R.Evid. 803(8)).
No. 23AP-278 14
1989) (applying Westinghouse to police report and holding that witness statement
“represents hearsay within hearsay which is only admissible if the second level hearsay
itself falls within a specific exception” apart from public records exception under Evid.R.
803(8); State v. Houston, 10th Dist. No. 04AP-875,
2005-Ohio-4249, ¶ 31, reversed and
remanded on other grounds (sentencing), as explained in State v. Houston, 10th Dist. No.
06AP-662,
2007-Ohio-423, ¶ 2 (applying Westinghouse and Lowry to affirm exclusion of
police videotape because “statements are not admissible simply because they are contained
within an official report; to be admissible, [such] statements must also fall within a hearsay
exception”). The state has not explained how any testimonial statement within the divorce
decree is independently admissible. Nor has it argued that any hearsay exception other
than the public records exception applies. We cannot identify an exception that applies to
any of the numerous testimonial statements in the divorce decree and therefore conclude
that the trial court erred by admitting them.
{¶ 45} Mr. Baker argues that “a slew of prejudicial factual findings reached by the
domestic court” resulted from the trial court’s decision to admit the divorce decree in its
entirety, violating the prohibition on the admission of “any other crime, wrong or act” under
Evid.R. 404(B)(1). (Brief of Appellant at 25.) He cites to the following factual findings from
the divorce decree:
(1) its concern that Appellant would obstruct efforts to sell the
marital estate; (2) its reference to his failure to pay Guardian
ad Litem fees; (3) a discussion of his purported paranoia and
negativity; (4) its concerns about his emotional health (which
went “above and beyond most similarly situated litigants”); (5)
an accusation that he had hindered the domestic court’s fact-finding efforts; (6) a reference to his failure to complete a
parenting class; (7) a reference to his failure to obtain
employment despite a court order; (8) a finding that he had not
claimed an inability to work due to a mental or emotional
condition at that time; (9) a reference to his failure to cooperate
in the discovery process; and (10) a reference to his failure to
undergo a psychological evaluation during the domestic case.
Id.
{¶ 46} “Evidence of any other crime, wrong or act is not admissible to prove the
person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Evid.R. 404(B)(1). “This type of evidence is commonly
No. 23AP-278 15
referred to as ‘propensity evidence’ because its purpose is to demonstrate that the accused
has a propensity or proclivity to commit the crime in question.” State v. Hartman, 161 Ohio
St.3d 214,
2020-Ohio-4440, ¶ 21. Although an appellate court “typically review de
novo whether evidence is offered for a permissible, nonpropensity purpose under Evid.R.
404(B),” the failure to raise the objection in the trial court makes “a plain error standard of
review appropriate.” State v. Corrado, 1st Dist. No. C-230635,
2024-Ohio-2575, ¶ 9.
{¶ 47} In State v. Williams, 134 Ohio St.3d 521,
2012-Ohio-5695, ¶ 19, the Supreme
Court of Ohio instructed courts to “conduct a three-step analysis” to determine whether
other acts evidence is admissible under 404(B). “The first step is to consider whether the
other acts evidence is relevant to making any fact that is of consequence to the
determination of the action more or less probable than it would be without the evidence.”
Williams at ¶ 20, citing Evid.R. 401. We have already discussed the minimal relevancy of
the majority of the divorce decree to either the state’s case against Mr. Baker or his
affirmative defense. Other than the support order and the portions of the decree Mr. Baker
opened the door to concerning his mental state and his conflict with the psychologist over
an evaluation, the other acts evidence he lists fails the relevancy prong of the test.
{¶ 48} “The next step is to consider whether evidence of the other crimes, wrongs,
or acts is presented to prove the character of the accused in order to show activity in
conformity therewith or whether the other acts evidence is presented for a legitimate
purpose, such as those stated in Evid.R. 404(B).” Id. Those purposes include “proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Evid.R. 404(B)(2). We find that the other acts evidence serves none of
these purposes. Furthermore, the state not only presents no argument to justify the
admission of the other acts evidence in the divorce decree, but fails to address Mr. Baker’s
argument under Evid.R. 404 at all.
{¶ 49} “The third step is to consider whether the probative value of the other acts
evidence is substantially outweighed by the danger of unfair prejudice.” Williams at ¶ 20,
citing Evid.R 403. Under Evid.R. 403(A), even relevant “evidence is not admissible if its
probative value is substantially outweighed by the danger of unfair prejudice, of confusion
of the issues, or of misleading the jury.”
No. 23AP-278 16
{¶ 50} The divorce decree is replete with language that presented a danger of unfair
prejudice. Its statements illustrate the domestic court’s frustration with Mr. Baker as a
litigant due to difficult behavior he exhibited during the divorce proceeding. For example,
he “did not pay any of [the guardian ad litem fees] despite being Court ordered to do so.”
(Ex. A at 7.) In addition, the domestic court repeatedly criticized his credibility, often in
contrast to his ex-wife, while crediting her description of his mental state. Ms. Baker
“testified credibly” that Mr. Baker “began acting peculiar and paranoid when she asked him
for a divorce. Her concern has escalated during the course of this litigation and she now
expresses concerns about whether or not it is in [F.B.’s] best interest to be with her father
for extended periods of time.” Id. at 7-8. Ms. Baker sought “to provide [F.B.] a positive
balance to counterbalance [Mr. Baker’s] paranoia and negativity.” Id. at 8. Ms. Baker
“believes that [Mr. Baker] has demonstrated throughout this litigation that he is not
emotionally healthy.” Id. at 10.
{¶ 51} The domestic court judge also made its own assessments of Mr. Baker’s
mental state. “In fact, to this trier of fact, the Defendant has demonstrated behaviors during
the course of this litigation which give cause to question the state of his current mental
health.” Id. The guardian ad litem’s report stated that Mr. Baker had “maintained a
pervasive pattern of paranoia and suspicion throughout this case.” Id. Mr. Baker “refused
to cooperate and sabotaged information which the legislature requires the court to consider
when making a decision as [to] the best interest of this minor child.” Id. at 11. Because of
Mr. Baker’s “consistent pattern of behaviors that give rise to question his mental health,”
the domestic court found “that without a complete psychological examination to confirm
the state of [his] mental health the Court is hindered in its ability to determine if [F.B.] will
be emotionally and physically safe in [his] extended care.” Id. at 11.
{¶ 52} In addition, the domestic court expressed repeated frustration with Mr.
Baker, who appeared difficult and intransigent with everyone involved in the divorce case.
His “suspicion and distrust of the Court system as a whole quickly spilled over to his
interactions with the Guardian ad Litem,” whose billing he questioned. Id. at 16. Mr. Baker
did not complete a parenting class and had failed “to comply with other court orders” as
well. Id. at 18. The domestic court found that Mr. Baker was “voluntarily unemployed.”
Id. at 20. The domestic court stated “this Court cannot ignore the fact that [Mr. Baker] has
No. 23AP-278 17
made little to no efforts to become employed during the time period that he was awarded
spousal support and afforded housing.” (Emphasis sic.) Id. at 28. Mr. Baker “failed to
cooperate in the discovery process.” Id. at 30.
{¶ 53} The foregoing statements would have been unfairly prejudicial regardless of
their source, but they represent the fact-finding of a judge. This intensifies the prejudicial
effect of the divorce decree’s statements, and their cumulative effect is far in excess of what
Evid.R. 403 can tolerate. “Juries are likely to give disproportionate weight to such
findings of fact because of the imprimatur that has been stamped upon them by the judicial
system.” Herrick v. Garvey, 298 F.3d 1184, 1192 (10th Cir.2002). Thus, “judicial findings
of fact ‘present a rare case where, by virtue of their having been made by a judge, they would
likely be given undue weight by the jury, thus creating a serious danger of unfair
prejudice.’ ” Nipper v. Snipes,
7 F.3d 415, 418 (4th Cir.1993), quoting Zenith Radio Corp.
v. Matsushita Elec. Indus. Co.,
505 F.Supp. 1125, 1186 (E.D.Pa.1980). Mr. Baker had the
right to have the merits of his affirmative defense assessed by the jury based on his
testimony and the state’s evidence, without the intrusion of statements by a judge from
another case attacking his credibility, character, and mental state. In addition, the domestic
court judge’s unfavorably compared Mr. Baker’s credibility to that of his ex-wife, inviting
the jury to substitute its own credibility assessment with those made in the divorce decree.
Furthermore, the note that the jury sent out inquiring about a portion of the decree shows
that it did, in fact affect their deliberations. For these reasons, there was a substantial
probability that the admission of the divorce decree affected the outcome of the trial. The
admission of the divorce decree in its entirety interfered with his substantial right to have
the jury consider the evidence presented in his case without prejudicial influence. See State
v. Fuchs, 2d Dist. No. 27873,
2019-Ohio-4294, ¶ 17 (holding that defendant’s trial counsel
was ineffective for failing to object under Evid.R. 403 to the admission of a “magistrate’s
findings of fact [that] presented the jury with potentially inflammatory descriptions of
[defendant’s] past behavior” and “posed a significant risk of causing [him] unfair
prejudice”).
{¶ 54} The state argues that the findings in the divorce decree were “merely
duplicative” of the testimony presented at Mr. Baker’s criminal trial, where the evidence of
Mr. Baker’s guilt “was so overwhelming” that any error was harmless, as “he did not suffer
No. 23AP-278 18
any prejudice pursuant to Evid.R. 403(A).” (Brief of Appellee at 21, 24.) “The same
concerns about a jury’s ability to refrain from placing great weight on a judge’s findings
apply equally in determining whether the error was harmless.” Nipper at 418. The error
was not harmless. The admission of the divorce decree invited the jury to abdicate its fact-finding responsibility to a prior evaluator of the facts about Mr. Baker. The first two
assignments of error are sustained due to plain error in the admission of double hearsay
that unfairly prejudiced Mr. Baker under Evid.R. 403 with evidence of prior bad acts under
Evid.R. 404. Accordingly, he is entitled to a new trial after remand. State v. Thompson,
11th Dist. No. 2018-P-0099,
2020-Ohio-67 (remanding for a new trial after defendant
showed plain error in the admission of unfairly prejudicial testimony under Evid.R. 403).
{¶ 55} Because Mr. Baker’s “nonconstitutional arguments are dispositive,” we
decline to address his arguments alleging violations of his Confrontation Clause and Due
Process rights. State v. Talty, 103 Ohio St.3d 177,
2004-Ohio-4888, ¶ 9. “Under
the constitutional avoidance doctrine, a court ‘will not reach constitutional issues unless
absolutely necessary.’ ” Columbus v. Coleman, 10th Dist. No. 22AP-79,
2022-Ohio-4478,
¶ 10, quoting Talty at ¶ 9. The doctrine of constitutional avoidance counsels against
reaching those arguments after concluding that the admission of hearsay amounts to
prejudice requiring reversal. E.g., United States v. Gomez,
617 F.3d 88, 97 (2d Cir.2010)
(declining reach the “overlapping claim” that admission of hearsay violated appellant’s
Confrontation Clause rights “only because the doctrine
of constitutional avoidance counsels against it once the evidentiary error is established”);
United States v. Doswell,
670 F.3d 526, 529 (4th Cir.2012) (applying doctrine of
constitutional avoidance after concluding that district court erred by “failing adequately to
assess the hearsay evidence” at hearing on revocation of supervised release); State v.
McGill, Crim.App. No. M2022-00501-CCA-R3-CD,
2023 Tenn. Crim. App. LEXIS 64, *18
(Feb. 16, 2023) (vacating conviction and remanding for new trial after trial court
erroneously allowed hearsay testimony that proved element of offense, but declining to
address Confrontation Clause arguments because of constitutional avoidance).
No. 23AP-278 19
IV. Conclusion
{¶ 56} Having sustained the first two assignments of error, we overrule Mr. Baker’s
third assignment of error as moot. The judgment of the Franklin County Court of Common
Pleas is reversed and this cause is remanded for a new trial.
Judgment reversed; cause remanded.
BEATTY BLUNT and JAMISON, JJ., concur.
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