State v. Quarles , 2015 Ohio 3050 ( 2015 )

[Cite as State v. Quarles, 2015-Ohio-3050.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2014 CA 72
:
v. : T.C. NO. 13CR455
:
ANTHONY QUARLES : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___31st___ day of ____July____, 2015.
...........
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
HILARY LERMAN, Atty. Reg. No. 0029975, 249 Wyoming Street, Dayton, Ohio 45409
Attorney for Defendant-Appellant
.............
FROELICH, P.J.
{¶ 1} After a jury trial in the Clark County Court of Common Pleas, Anthony
Quarles was convicted of failure to comply with the order or signal of a police officer, in
violation of R.C. 2921.331, a third-degree felony. The trial court sentenced Quarles to
three years in prison, ordered him to pay restitution, and suspended his driver’s license
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for 10 years.
{¶ 2} Quarles appeals from his conviction, claiming that his conviction was
against the manifest weight of the evidence, that the trial court abused its discretion
concerning the admissibility of several pieces of evidence, and that the trial court erred in
allowing the prosecutor to state his reasons for an objection in front of the jury. For the
following reasons, the trial court’s judgment will be reversed and the matter will be
remanded for further proceedings.
I. Manifest Weight of the Evidence
{¶ 3} Quarles’s first assignment of error claims that his conviction was against the
manifest weight of the evidence.
{¶ 4} A weight-of-the-evidence argument “challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581,
2009-Ohio-525, ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 19 (“‘manifest weight of the evidence’ refers to a greater amount of credible
evidence and relates to persuasion”). When evaluating whether a conviction is against
the manifest weight of the evidence, the appellate court must review the entire record,
weigh the evidence and all reasonable inferences, consider witness credibility, and
determine 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.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678
N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
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{¶ 5} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations
does not render the conviction against the manifest weight of the evidence. Wilson at ¶
14. A judgment of conviction should be reversed as being against the manifest weight of
the evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175.
{¶ 6} At trial, the State presented the testimony of Paul Herald and Jennifer Scott,
both police officers for the City of Springfield. Their testimony established the following
facts.
{¶ 7} At approximately 3:52 a.m. on May 2, 2013, Officer Herald was in a marked
cruiser in the area of Lexington Avenue and South Belmont, a residential area with a
speed limit of 35 mph. The officer heard a vehicle accelerating rapidly toward the
intersection (the vehicle “sounded like a loud muffler”), and he observed a vehicle run the
stop sign at the intersection. Herald described the vehicle as a teal, four-door,
four-wheel-drive, 1995 Chevy Tahoe. Officer Herald got behind the Tahoe, accelerated,
activated his overhead lights, and attempted to make a traffic stop. The Tahoe was
travelling “well over 45 or 50 miles per hour” and did not stop. Herald pursued the
vehicle. Officer Herald was able to relay the license plate number for the vehicle, and the
dispatcher determined that the registered owner was Laura Cline.
{¶ 8} Near the beginning of the chase, the Tahoe’s driver turned on the interior
dome light and reached into the center console. Herald saw that the driver was a male
wearing a black t-shirt. Herald broadcasted the Tahoe’s speed and direction to other
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officers, who came to assist him. Officer Herald and the Tahoe made “several circles in
this area,” and Herald continued to relay traffic conditions and other information over his
radio. Officer Scott notified Herald that she would attempt to deploy stop sticks at the
intersection of Harrison and East. As Officer Herald approached that intersection, he
observed that Officer Scott failed to deploy the stop sticks, and he and the Tahoe
continued through the intersection.
{¶ 9} Eventually, the Tahoe, followed by Officer Herald’s cruiser, turned into a
dead-end street. Officer Scott and Sgt. Hopper pulled in behind Herald. The Tahoe
turned around in a grassy area and drove toward the officers; the headlights of Herald’s
cruiser and the cruiser’s spotlight shone on the Tahoe. When the driver was 20 to 30
feet away, Herald could see the driver’s face and that the driver’s left arm, which was
hanging out the window, had “a large amount of tattoos.” The Tahoe drove between
Scott’s and Hopper’s vehicles, nearly striking them.
{¶ 10} The chase continued, and the Tahoe accelerated to over 60 mph.
Another officer deployed stop sticks. The stop sticks were unsuccessful at stopping the
Tahoe, but the cruisers of two other officers who were backing up Herald were disabled.
Soon after, Officer Herald was told to terminate the pursuit, and he pulled over. An Ohio
State Trooper who was assisting in the pursuit indicated that he would attempt to get
permission to continue.
{¶ 11} The Tahoe was later located, abandoned, within several blocks of where
the pursuit terminated. Inside the vehicle were photo booth-type photos, which Officer
Herald recognized as being of the driver. The vehicle also contained Clark County court
documents, which Officer Herald described as “like yellow copies of an affidavit, like the
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defendant’s copy that they get served during arrest, and some other court papers.” The
document had the name Anthony Wayne Jackson Quarles and a Social Security number.
{¶ 12} Officer Herald looked up Quarles’s name and social security number in the
law enforcement computer system and saw book-in photos of Quarles; the book-in
photos included photos of Quarles’s face, profile, and tattoos on his arms and back.
Herald testified that, after looking at the book-in photos, he recognized Quarles as the
driver and that the tattoos on Quarles’s left arm were consistent with those that Herald
had observed on the driver.
{¶ 13} At trial, Officer Herald identified Quarles as the driver of the Tahoe.
Quarles was asked to display his left arm during Officer Herald’s testimony, and Herald
was asked if he could confirm that those were the same tattoos. Herald responded, “It
looks like there is some new work, but yes, very consistent with what I saw.”
{¶ 14} Officer Scott testified at trial that she saw the driver for “a split second.”
She stated that Quarles’s face was “consistent in appearance” to the driver’s, but she
could not positively identify Quarles as the driver.
{¶ 15} Officer Herald did not ask for the car to be tested for fingerprints. He
explained that it is often difficult to distinguish fingerprints when multiple people might use
the vehicle. Herald also indicated that he did not collect the court documents and
photographs from the car; they remained in the Tahoe when the vehicle was towed by the
police. (Quarles did not make a Crim.R. 29 motion at the conclusion of the State’s case.)
{¶ 16} Quarles testified on his own behalf. He stated that he was in Berthoud,
Colorado on May 2, 2013, working for his aunt, Stephany Simpson. Quarles stated that
he did landscaping, landscape architecture work, and tree removal. As for May 2
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specifically, Quarles stated that he worked on removing an enormous oak tree at the back
of a house; the tree was cracked down the middle, and its trunk had a rotted cavity.
Quarles stated that he remembered it, because he found the tree “spooky.” Quarles
testified that the tree removal took two days, and he worked six hours each day. Quarles
stated that he drove to Colorado on April 3, 2013, stayed with Simpson while he was
there, and returned to Springfield on June 6, 2013.
{¶ 17} Quarles testified that he signed two documents as part of his work for
Simpson. The first document was “a contract for a 1099,” saying that Quarles was
paying his own taxes. The second was a timesheet showing how much he had worked.
{¶ 18} With respect to his relationship to the owner of the car, Quarles testified
that Laura Cline was the mother of a former girlfriend. He stated that the photograph of
him that was found in the car was taken in Pennsylvania around Christmastime 2012, and
the court paperwork concerned a ticket he had received in October 2012. Quarles
testified that he had last driven the Tahoe (together with Cline’s daughter and her
children) on October 27, 2012, when he had received a traffic citation for driving on a
suspended license, and that he had been driving his own Chevy Silverado in May 2013.
Quarles stated that he stopped seeing Cline’s daughter in June or July 2013.
{¶ 19} Quarles denied that he was involved in a high-speed chase in Springfield,
Ohio, on May 2, 2013, and he reiterated that he was in Berthoud, Colorado on that date.
Quarles further testified that he knows several people with tattoo “sleeves”, saying
“nowadays tattoos are so common, everybody has them. Very common.”
{¶ 20} On cross-examination, Quarles acknowledged that he does not have a
valid driver’s license and did not when he was driving his Silverado. He also stated,
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without objection, that he did not file taxes last year and works “under the table now.”
{¶ 21} Officer Herald testified again, as a rebuttal witness, that Quarles could not
have been in Colorado on May 2 at 3:52 a.m., because he (Herald) was “positive that that
is the gentleman that was driving that car.” The prosecutor showed Herald copies of
court papers for the October 27, 2012 traffic citation, over Quarles’s objection. Herald
testified that the documents in the Tahoe included court papers, not just the traffic
citation, and that the court papers for the October 27, 2012 citation would have been
given to Quarles after that date. The prosecutor also showed Herald, over Quarles’s
objection, court documents related to a February 2, 2013 traffic offense; Herald again
testified that, if Quarles had not been in the Tahoe after October 27, 2012, those court
papers could not have been in the Tahoe. On cross-examination, Herald acknowledged
that he had only looked at the name on the court papers in the Tahoe, and that the
documents presented in court were not the actual documents located in the vehicle.
{¶ 22} On appeal, Quarles claims that his conviction was against the manifest
weight of the evidence, because Officer Herald’s eyewitness identification was unreliable,
there was no fingerprint evidence to support the identification, and there was evidence
that Quarles was in Colorado at the time of the offense.
{¶ 23} “Every criminal prosecution requires proof that the person accused of the
crime is the person who committed the crime. * * * Like any fact, the state can prove the
identity of the accused by ‘circumstantial or direct’ evidence.” State v. Tate, 140 Ohio
St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 15. Here, the State provided the
eyewitness testimony of Officer Herald, who testified that the Tahoe’s driver was
illuminated by Herald’s cruiser’s headlights and spotlight after the Tahoe turned around
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on the dead-end street. Herald stated that he saw the driver’s face, as well as the
driver’s left arm, which was hanging out the Tahoe’s window throughout the chase and
had a large number of tattoos. The Tahoe was located shortly after the chase, and at
that time, Herald was able to identify Quarles as the driver by searching the computer
system for his name and Social Security number, as provided by the court documents
found in the vehicle.
{¶ 24} Moreover, the State provided evidence that Quarles was associated with
the Tahoe; it belonged to his then-girlfriend’s mother, was primarily used by the girlfriend,
and Quarles had driven that vehicle in the past. Court documents and photographs of
Quarles were found within the vehicle. This evidence, in conjunction with Officer’s
Herald’s identification, provided substantial evidence that Quarles was the driver during
the pursuit.
{¶ 25} Quarles presented evidence that he was in Colorado working as an
arborist for his aunt on May 2, 2013. Quarles described documents that substantiated
his claim (the documents themselves were not admitted into evidence), but there was
evidence that Quarles had no government documents, such as tax records, to
substantiate that employment. The credibility of the witnesses and the weight to be
given to their testimony were matters for the jury, as the trier of fact, to determine.
Considering all of the evidence admitted at trial, the jury did not lose its way when it
determined, from the totality of the evidence, that Quarles was the driver of the Tahoe.
{¶ 26} The first assignment of error is overruled.
II. Admissibility of Defendant’s Documentary Exhibits
{¶ 27} In his second assignment of error, Quarles claims, in part, that the trial
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court abused its discretion when it excluded documents proffered by him at trial.
{¶ 28} Quarles testified that he had received two documents relating to his work
for Simpson. Immediately before defense counsel showed the exhibits to Quarles during
his testimony, the prosecutor objected, in the jury’s presence (as opposed to a sidebar
discussion), stating:
[PROSECUTOR]: Your Honor, I object to both of these documents. This is
hearsay within hearsay. Under Evidentiary Rule 802, it cannot be admitted
under business records, exceptionally [sic] because the custodian of it is
not here to testify.
And moreover, that exception does not apply to the facts that
indicate there is a lack of trustworthiness. In the present case the alleged
party is actually the defendant’s aunt. She has no business address, owns
her apartment. She told authorities she had no records before.
We can – continued this trial twice to give her an opportunity to
appear. She has not done so. The documents had been altered by
adding dates of employment; and again, our initial two trial dates,
September 14th and October 8th, this document was never produced until
after those trial dates. Therefore, the lack of trustworthiness, these
documents cannot be introduced.
[DEFENSE COUNSEL]: Your Honor, these – they were given him in the
normal course of business, in her business. It’s got her gardening,
independent contractor agreement. It’s got his signature. So surely, he
can authenticate something that he actually signed on the spreadsheet.
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It was given to him so that he would know the amounts that were
paid. She happened to put the dates on it. It’s got the date on there. It’s
got his name at the top.
And as far as her attendance, shortly after a discussion, we believe
that she was scared in – based on how she does her business with tax
purposes. She was afraid to attend because she didn’t want to incriminate
herself on how she conducts her own business. But that has no bearing on
whether he was there or not.
THE COURT: Can I see the document?
[PROSECUTOR]: Your Honor, may I approach?
THE COURT: I just want to see the documents.
(Judge reading.)
THE COURT: You’re okay to the admissibility [sic] of the document?
[THE PROSECUTOR]: In the absence of this person to come in and testify, yes,
there is no way for this to come in.
THE COURT: Are you offering these exhibits in at this time?
[DEFENSE COUNSEL]: Yes. I was going to show him.
THE COURT: You can show him the documents. As far as admissibility, I’ll
reserve ruling on that unless or until somebody can authenticate the document.
{¶ 29} After the documents were marked, defense counsel asked Quarles about
the documents. Quarles identified Exhibit 1 as “the contract stating that I pay for my own
taxes and * * * of the equipment that I borrowed from her.” Quarles stated that the
document had both his and his aunt’s signatures and his Social Security number, and that
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he was present when the document was signed. Quarles stated that the first set of
signatures were made while they were in Simpson’s office in her home in the downstairs
of her house. The second set of signatures at the bottom were made later, after Quarles
turned in Simpson’s equipment.
{¶ 30} Quarles testified that Exhibit 3 was the same contract that was signed.
He stated that the “only thing that was added to it was the dates that was written on here
from the work order, and that’s the only difference.” A time-stamp appears at the top.
{¶ 31} Finally, Quarles identified Exhibit 2 as “the days marked for the work order
of a workbook, the days that I worked. It’s on the books for 1099 purposes.”
{¶ 32} At the conclusion of the defense case, defense counsel offered into
evidence Exhibits 1, 2, and 3, as well as State’s Exhibit E, a letter from Simpson (the aunt)
that the prosecutor had used for impeachment. The State objected on hearsay grounds.
The trial court agreed and asked defense counsel if there was a particular exception that
applied. Counsel responded that Quarles authenticated the documents, that he was a
party to the contract with his aunt, and that the information was coming “just as much from
him as it is from her. It was their mutual agreement.” The prosecutor responded that
Simpson had created and provided the documents to Quarles. The court sustained the
State’s objection, finding that the business record exception to the hearsay rule did not
apply.
{¶ 33} “ ‘Proving the contents of a writing presents problems with hearsay,
authentication, and the best evidence rule.’ ” SFJV v. Ream, 187 Ohio App.3d 715,
2010-Ohio-1615, 933 N.E.2d 819, ¶ 46 (2d Dist.), quoting State v. Carter, 4th Dist. Ross
No. 99 CA 2479, 2000 WL 1466189 (Sept. 26, 2000).
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{¶ 34} Authentication is governed by Evid.R. 901. “Evid.R. 901(A) requires, as a
condition precedent to the admissibility of evidence, a showing that the matter in question
is what it purports to be.” State v. Simmons, 2d Dist. Montgomery No. 24009,
2011-Ohio-2068, ¶ 12. The threshold standard for authenticating evidence is low, State
v. Wiley, 2d Dist. Darke No. 2011 CA 8, 2012-Ohio-512, ¶ 11, and Evid.R. 901(B)
provides examples of numerous ways that the authentication requirement may be
satisfied. The most commonly used method is testimony that a matter is what it is
claimed to be under Evid.R. 901(B)(1). State v. Renner, 2d Dist. Montgomery No.
25514, 2013-Ohio-5463, ¶ 30.
{¶ 35} For purposes of Evid.R. 901, Quarles authenticated Exhibits 1, 2, and 3
during his direct examination, when he identified the documents as documents prepared
by Simpson for purposes of his employment as an independent contractor for her.
Quarles authenticated the signatures at the top of the contract (Exhibits 1 and 3), stating
that he and his aunt had signed the contract at her house at the same time. Quarles
indicated that the signature on the bottom was his, and the signature was made when he
returned Simpson’s equipment.
{¶ 36} An authenticated document may be inadmissible if its contents violate the
hearsay rules. “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.” Evid.R. 801(C). In general, hearsay is not admissible. Evid.R.
802. However, there are several exceptions to the hearsay rule.
{¶ 37} In Ohio, a business record is admissible as competent evidence “if the
custodian or the person who made such record * * * testifies to its identity and the mode of
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its preparation, and if it was made in the regular course of business, at or near the time of
the act, condition, or event, and if, in the opinion of the court, the sources of information,
method, and time of preparation were such as to justify its admission.” R.C. 2317.40;
see also Evid.R. 803(6) (providing exception to hearsay rule for records of regularly
conducted activity).
{¶ 38} The business records exception has its own authentication requirement
that must be met before the rule applies. Ohio Receivables, L.L.C. v. Williams, 2d Dist.
Montgomery No. 25427, 2013-Ohio-960, ¶ 14. “A witness authenticating a business
record must be sufficiently familiar with the operation of the business and with the
circumstances of the record’s preparation, maintenance and retrieval that he or she can
reasonably testify on the basis of this knowledge that the record is what it purports to be,
and that it was made in the ordinary course of business consistent with the elements of
Evid.R. 803(6).” State v. Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, ¶
74. “Generally, the business record exception requires that some person testify as to the
regularity and reliability of the business activity involved in the creation of the record.”
Ohio Receivables at ¶ 14.
{¶ 39} In addition, we note that, to prove the content of a writing, the best
evidence rule requires introduction of the original writing. Evid.R. 1002. A duplicate is
admissible to the same extent as the original, unless a genuine question exists as to the
authenticity of the original or, under the circumstances, it would be unfair to admit the
duplicate. Evid.R. 1003. Other evidence of the document’s contents may be
introduced upon proof that “[a]ll originals are lost or have been destroyed, unless the
proponent lost or destroyed them in bad faith.” Evid.R. 1004(1).
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{¶ 40} Quarles was not required to comply with the business record exception,
Evid.R. 803(6), to introduce Exhibit 1, the contract between Simpson and him. The
document itself was not hearsay; it was the best evidence of the existence of a contract
between Simpson and Quarles. See JLJ Inc. v. Rankin & Sourser, Inc., 2d Dist.
Montgomery No. 23685, 2010-Ohio-3912, ¶ 41. Having been properly authenticated by
Quarles under Evid.R. 901, the trial court erred in failing to admit Exhibit 1.
{¶ 41} However, Quarles could not authenticate Exhibit 2, the monthly time cards
for April, May and June 2013, for purposes of Evid.R. 803(6). Exhibit 2 reflected the
days that Quarles worked and the pay that he earned, and are clearly business records.
However, Quarles did not maintain the exhibit as part of his business records; he obtained
the document from his aunt. And, although Quarles appeared to have knowledge of how
his aunt maintained these particular records, there was no evidence that he had a
working knowledge of her general record-keeping system for her business, particularly
regarding the creation and retention of business documents. Accordingly, the trial court
did not err in ruling that Exhibit 2 was inadmissible as hearsay.
{¶ 42} The trial court also did not err in excluding Exhibit 3. Exhibit 3 was the
same as Exhibit 1, but included handwritten dates added by Simpson. Absent
Simpson’s testifying about them, the dates were hearsay and did not fall under the
business record exception.
{¶ 43} Although the trial court should have admitted Exhibit 1, we cannot find that
Quarles was prejudiced by the trial court’s ruling. Quarles testified about the substance
of his exhibits, and his testimony was not stricken. The State cross-examined him
extensively about all of the exhibits, and both parties discussed the documents in their
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closing arguments. Accordingly, even if the trial court had erred in excluding the
documents themselves, the record does not reflect that their exclusion was prejudicial.
{¶ 44} This portion of Quarles’s second assignment of error is overruled.
III. Admissibility of Purported Copies of Court Documents Found in Vehicle
{¶ 45} As part of Quarles’s second assignment of error, he also argues that the
trial court erred in allowing the State to introduce copies of court documents that were
purportedly found in the Tahoe by Officer Herald.
{¶ 46} During Officer’s Herald’s rebuttal testimony, the prosecutor showed Officer
Herald copies of two packets of documents concerning Quarles from the Clark County
Municipal Court. Exhibit F consisted of certified copies of documents from the record for
Case No. 12TRD12796. The exhibit included the citation for driving under suspension
and for expired tags issued to Quarles on October 27, 2012. Also included were pages
showing court hearing dates, information about Quarles’s arraignment, and the court’s
sentence.
{¶ 47} Exhibit G appears to be the record of Case No. 13TRD1519, a traffic case
in which Quarles was charged with driving under suspension and speeding. The first
page of Exhibit G was a judgment entry issued by the municipal court on March 13, 2013,
ordering Quarles to appear on April 3, 2013 to show cause why he should not be
punished for failure to complete community service; the judgment entry page of Exhibit G
related to both Case Nos. 13TRD1519 and 12TRD12796. Unlike Exhibit F, Exhibit G did
not contain certified copies of the municipal court records.
{¶ 48} Defense counsel objected to the prosecutor’s use of the documents. He
argued that Exhibits F and G were not the actual documents located in the Tahoe, and
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that he (defense counsel) had never seen the documents found in the vehicle. The
prosecutor indicated that the exhibits would impeach Quarles’s testimony that he had not
driven the Tahoe since he received the ticket on October 27, 2012. The trial court
overruled the objection.1
{¶ 49} To be admissible, State’s Exhibits F and G needed to be relevant.
Relevant evidence is generally admissible whereas irrelevant evidence is not. Evid.R.
402. “Relevant evidence” is defined as “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Evid.R. 401.
However, 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. Evid.R. 402; Evid.R. 403(A). Decisions regarding the admissibility of evidence
at trial are within the broad discretion of the trial court. State v. Lang, 129 Ohio St.3d
512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 86; State v. Haines, 112 Ohio St.3d 393,
2006-Ohio-6711, 860 N.E.2d 91, ¶ 50.
{¶ 50} During Officer Herald’s direct examination, Herald described the
documents in the vehicle as follows: “They were Clark County, Ohio court documents,
such as like yellow copies of an affidavit, like the defendant’s copy that they get served
during arrest, and some other court papers.” Herald stated that the papers stated
Quarles’s name, but he did not provide further information about the documents.
1
The record does not indicate that the State moved to admit Exhibits F and G at the
conclusion of Herald’s rebuttal testimony, but the record reflects they were treated as
admitted. The transcript lists them as admitted. Moreover, Defense Exhibits 1-3 and
State’s Exhibit C, which the court ordered not to be admitted, have a post-it note stapled
to them stating that they were not admitted; Exhibits F and G do not have a similar post-it
note.
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{¶ 51} During Quarles’s testimony, Quarles was asked if he recalled the
paperwork that may have been left in the Tahoe. Quarles responded, “I believe it was a
ticket that I got over in German Township by the mall in October the year before, ’12.”
Quarles further testified that he stopped driving the Tahoe “[w]hen I got the ticket. I got
tired of driving with suspensions.”
{¶ 52} During cross-examination, the prosecutor asked Quarles if he was
supposed to go back to court for the October 2012 traffic ticket. He specifically asked if
the case went on until June 2013, whether the court had issued a show cause order on
April 3 because he did not appear, and whether Quarles had disregarded the court cases
and gone to Colorado. Quarles testified that “[i]t wasn’t brought to my attention, probably
even slipped my mind about going to court on that day.” (Tr. 97) The prosecutor also
asked Quarles about getting the October 2012 ticket, and Quarles agreed he was driving
the Tahoe when he got the ticket.
{¶ 53} When Officer Herald was called as a rebuttal witness, he repeated that he
had observed court papers in the Tahoe on May 2, 2013. After showing Herald Exhibit F,
the prosecutor asked the following questions:
Q. Okay. And you heard the defendant’s testimony that he had not been
back in this car since he got this traffic ticket on October 27, 2012, I believe;
is that correct?
A. Correct.
Q. Is it possible that the officer pulled him over, gave him a ticket, and
actually gave him the court documents?
A. No, sir.
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Q. What does an officer actually give someone when they pull them over for
a moving violation?
A. We give them the golden – goldenrod copy of the inside of this that states
the charge and the court date and his information.
Q. So when you found this abandoned car at 510 South Huber, it had actual
court documents in there; is that correct?
A. Yes, sir.
Q. Okay. So it’s not possible that it was just his ticket from October 27th.
It had to be documents that he got after that date.
A. Correct.
Q. Thank you. Officer Herald, I’m going to give this to you one more time.
I have one more question. Do these court documents indicate dates on
which the defendant was supposed to be in court?
A. Yes. They did, but I can’t recall the date.
Q. Okay. If you examine that document. Does that indicate in that
particular case the defendant was supposed to be in court on April 3rd,
2013?
A. Yes.
{¶ 54} The prosecutor then showed Exhibit G to Officer Herald and elicited
testimony that Exhibit G concerned another traffic offense that occurred on February 2,
2013. The prosecutor then asked, “Therefore, if the defendant had not been in that
vehicle after October 27, 2012, there is no way those court papers could have been in
there either.” Officer Herald responded, “No.”
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{¶ 55} On cross-examination, defense counsel asked Herald if he knew when
Quarles had been given copies of the court papers found in the Tahoe. Herald said that
he did not. Defense counsel asked the officer to look at Exhibit F, and Herald testified
that the document mentioned events that occurred as late as June 26, 2013, which was
after May 2, 2013. Defense counsel then asked:
Q. Are you telling the jury that the paperwork that you went over that was
found in the vehicle had each of those event dates on it, from 3/13 – I think
there was a couple days in March, a couple dates in June. Did you look at
that part of the paperwork that was found in the vehicle?
A. No, I didn’t.
Q. What part of the paperwork did you actually look at?
A. The part that said Anthony Wayne Jackson Quarles, the affidavit.
Q. So as far as you know, that paperwork that you looked at had none of
those dates on it.
A. As far as I know.
Q. That’s because we don’t have that actual paperwork here today.
A. Yes.
{¶ 56} Although Officer Herald testified that court documents related to Quarles’s
October 27, 2012 traffic offense would have been created and provided to Quarles
sometime after October 27, there is nothing in Officer Herald’s testimony or in Quarles’s
testimony to indicate that the court documents in the Tahoe were related to the October
27 (or the subsequent February 2) ticket. Herald repeatedly testified that he looked only
at the portion of the ticket affidavit that had Quarles’s name and identifying information.
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The officer did not indicate the court documents related to the October 27 ticket, and
Quarles had indicated that he had had prior driving under suspension traffic cases. In
short, there is nothing in the record to support a conclusion that Exhibits F and G were the
documents in the Tahoe.
{¶ 57} The actual documents in the Tahoe were not collected, and they were not
presented as evidence at the trial. The record does not support a conclusion that
Exhibits F and G were the documents in the Tahoe and, thus, we fail to see how they were
relevant to the trial. Moreover, because Exhibit G did not contain certified copies, that
exhibit was inadmissible as unauthenticated hearsay.
{¶ 58} Finally, we cannot conclude that the admission of Exhibits F and G was
harmless. The admission of the exhibits may have led the jury to believe that, although
these were not the actual papers found in the Tahoe, they were copies of the documents
and, therefore, Quarles must have been lying when he (Quarles) testified that he had not
driven the Tahoe since October 2012. The prosecutor argued as much when he said,
“[T]he guy left his court papers in there, court papers which couldn’t have been in there if
he hadn’t been in that car since October 27th, so clearly, he’s lying to you about that.”
{¶ 59} Moreover, the documents contain information about Quarles’s conduct
during those cases, which had no bearing on the case before the jury and were prejudicial
to Quarles. Exhibit F indicated that Quarles had pled guilty to both charges on the traffic
ticket, and the record showed his sentence. The exhibit further indicated that there were
three orders for bench warrants and a hearing set on a show cause order. The final date
for the show cause order was June 26, 2013, which was after the May 2, 2013 offense at
issue; thus, this page of Exhibit F could not have been in the Tahoe when it was located
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by Officer Herald.
{¶ 60} Exhibit G concerned a February 2013 traffic ticket, which Quarles received
while driving a different vehicle, not the Tahoe. The traffic offenses referenced in Exhibit
G included a speeding offense, which could have led the jury to believe that Quarles was
more likely to speed through residential areas on May 2. Exhibit G included information
that Quarles had failed to appear in court when ordered in April 2013 and was required to
address a contempt charge. Exhibit G indicated Quarles’s sentence for the February
2013 ticket. Another page of the exhibit showed that Quarles was arrested on June 13,
2013. The last two pages of Exhibit G appear to be printouts of the municipal court’s
online case summaries, one of which purportedly indicated that on May 5, 2013, Quarles
was involved in another offense while driving the Tahoe (the vehicle information was
highlighted).
{¶ 61} Both the May 5, 2013 incident and the June 13, 2013 arrest occurred after
the May 2, 2013 offense at issue, and it was impossible for the pages regarding these
events to be in the Tahoe on May 2, 2013. Quarles was unfairly prejudiced by the
implication that these unauthenticated documents were in the Tahoe on May 2. In
addition, the reference in an unauthenticated document to Quarles’s being involved in
another traffic offense with the Tahoe on May 5, 2013 directly contradicted Quarles’s
testimony that he had not driven the Tahoe since October 27, 2012 and was prejudicial.
In summary, based on the information contained in Exhibits F and G, we cannot conclude
that the erroneous admission of these exhibits, one of which was unauthenticated, was
harmless, i.e., that there was no reasonable probability that the outcome of Quarles’s trial
would have been different but for the error.
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{¶ 62} This portion of Quarles’s second assignment of error is sustained.
IV. Stating Reasons for Objection in Open Court
{¶ 63} Finally, Quarles raises in his second assignment of error that the trial court
erred in allowing the prosecutor to object to Quarles’s documentary evidence in front of
the jury. Quarles cites to the prosecutor’s argument, quoted above, that Exhibits 1-3
were untrustworthy, because they had been altered, they were provided to the State by
Quarles after the trial had been continued twice, and the source of the documents was
Quarles’s aunt, who had no business address and had previously told authorities that she
had no records. Quarles argues that the prosecutor did not present any witnesses to
support his argument, yet was allowed to make his argument in open court. We infer
Quarles’s argument to be that the prosecutor engaged in misconduct.
{¶ 64} In reviewing claims of prosecutorial misconduct, the test is whether the
prosecutor’s remarks were improper and, if so, whether those comments prejudicially
affected the substantial rights of the defendant. State v. Jones, 90 Ohio St.3d 403, 420,
739 N.E.2d 300 (2000). The touchstone of analysis is the fairness of the trial, not the
culpability of the prosecutor. Id., quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct.
940, 71 L.Ed.2d 78 (1982). Where it is clear beyond a reasonable doubt that the jury
would have found the defendant guilty, even absent the alleged misconduct, the
defendant has not been prejudiced, and his conviction will not be reversed. See State v.
Underwood, 2d Dist. Montgomery No. 24186, 2011-Ohio-5418, ¶ 21. We review
allegations of prosecutorial misconduct in the context of the entire trial. State v.
Stevenson, 2d Dist. Greene No. 2007-CA-51, 2008-Ohio-2900, ¶ 42, citing Darden v.
Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).
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{¶ 65} We agree with Quarles that the prosecutor’s reasons for objecting to
Exhibits 1-3 should not have been expressed in front of the jury. Crim.R. 103(C),
regarding rulings on evidence in the hearing of a jury, provides, “In jury cases,
proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible
evidence from being suggested to the jury by any means, such as making statements or
offers of proof or asking questions in the hearing of the jury.” As expressed by the
Florida Court of Appeals,
[A]ll trial lawyers know that so-called speaking objections are improper, as
they constitute nothing less than unauthorized communications with the
jury. Such objections characteristically consist of impermissible editorials
or comments, strategically made by * * * lawyers to influence the jury.
They are distinguishable from legitimate objections which simply state legal
grounds that arguably preclude the introduction of the evidence at issue.
Where an objection requires more than a simple statement of such legal
grounds, experienced trial lawyers know they need to seek a side bar
conference or ask the court to excuse the jury so that more thorough
arguments can be made.
Michaels v. State, 773 So.2d 1230, 1231 (Fla.Ct.App.2000).
{¶ 66} By stating his reasons in front of the jury, the prosecutor informed the jury,
without any evidentiary support, that he believed the documents to be untrustworthy (for a
variety of reasons) and that Simpson was not a credible businessperson. The State
further commented on the absence of Simpson, a potential witness for Quarles. The trial
court did not provide a limiting instruction to the jury to disregard the arguments regarding
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Exhibits 1-3. (The court later provided a general instruction during jury instructions that
opening and closing arguments of counsel are not evidence, but it did not reference
arguments concerning speaking objections.)
{¶ 67} In its brief, the State asserts that Quarles was not prejudiced by the
prosecutor’s comments, because the prosecutor’s objections were followed by
arguments of defense counsel in open court, but defense counsel’s only choice was to try
to un-poison the well. And, because the trial court did not immediately rule on the
admissibility of Quarles’s exhibits, both parties proceeded to question Quarles about
them as if they were admissible. Both parties discussed the documents and Simpson in
their closing arguments.
{¶ 68} Although the prosecutor was wrong to make a speaking objection to
Quarles’s exhibits and the trial court erred in allowing such an objection to occur in front of
the jury, we need not decide whether such conduct affected Quarles’s substantial rights.
Having concluded that this matter must be reversed due to the admission of State’s
Exhibits F and G, this issue is moot.
{¶ 69} Quarles’s second assignment of error is sustained in part and overruled in
part.
V. Conclusion
{¶ 70} The trial court’s judgment will be reversed, and the matter will be
remanded for further proceedings.
.............
FAIN, J. and HALL, J., concur.
Copies mailed to:
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Ryan A. Saunders
Hilary Lerman
Hon. Douglas M. Rastatter