State v. Swann , 171 Ohio App. 3d 304 ( 2007 )

{¶ 35} Because I agree with the ultimate conclusion in assignment of error one, but disagree with portions of the majority's decision, I respectfully concur separately. With regard to the first assignment of error, the sole issue is whether the testimony of four witnesses that a third party, Carlisle, confessed to shooting the victim should have been admitted as an exception to the hearsay rule under Evid.R. 804(B)(3). Specifically at issue is whether corroborating circumstances clearly indicate the trustworthiness of Carlisle's statement. Although I agree that there are useful similarities with Holmes v. South Carolina (2006),547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503, I disagree with the majority's analysis of Holmes. However, I do agree with the majority's ultimate conclusion that the trial court erred when it denied appellant the opportunity to present the testimony of the four witnesses. After a review of the evidence, I would find that corroborating circumstances indicate the trustworthiness of the statement Carlisle made to the four witnesses. Therefore, I would sustain appellant's first assignment of error, albeit for different reasons than those relied upon by the majority.

{¶ 36} Further, because we must remand the matter for a new trial based upon our disposition of appellant's first assignment of error, I would decline to address the remaining assignments of error. Therefore, I would find appellant's second, third, and fourth assignments of error moot.