State v. Lucas

240 N.E.3d 843

2024-Ohio-842

STATE of Ohio, Plaintiff-Appellee,

v.Justin LUCAS, Defendant-Appellant.

No. 112519

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Released and Journalized: March 7, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-22-674494-A.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Lisa J. Turoso and Kristen Hatcher, Assistant Prosecuting Attorneys, for appellee.

Joseph V. Pagano, Akron, for appellant.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, P.J.:

{¶ 1} Defendant-appellant, Justin Lucas ("Lucas"), appeals from his convictions following a bench trial. He raises the following assignments of error for review:

1. The court violated Lucas’s constitutional right to confrontation in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution when it admitted testimonial statements made by the non-testifying accuser through a 911 call and body camera footage over defense objection.

2. The trial court erred by admitting the body camera footage and the 911 call in violation of the Rules of Evidence which deprived Lucas of a fair trial and due process of law.

3. The trial court erred when it denied Lucas’s motion for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions.

4. The convictions are against the manifest weight of the evidence.

{¶ 2} After careful review of the record and relevant case law, we affirm the trial court's judgment.

I. Procedural and Factual History

{¶ 3} In October 2022, Lucas was named in a five-count indictment, charging him with aggravated burglary in violation of R.C. 2911.11(A)(2), with one- and three-year firearm specifications (Count 1); domestic violence in violation of R.C. 2919.25(A), with one- and three-year firearm specifications (Count 2); and three counts of endangering children in violation of R.C. 2919.22(A) (Counts 3, 4, and 5). The indictment stemmed from allegations that Lucas verbally and physically assaulted his ex-girlfriend, S.L., in the presence of her minor children.

{¶ 4} The matter proceeded to a bench trial in January 2023. At the onset of trial, the prosecutor informed the court that despite the issuance of a subpoena and "numerous attempts" to contact S.L., the state was unable to secure S.L.’s presence at trial. (Tr. 12.) Accordingly, S.L. did not testify or otherwise cooperate in the prosecution.

{¶ 5} On behalf of the state, Officer Robert Bjekic ("Officer Bjekic") of the Cleveland Police Department, testified that at approximately 10:30 p.m. on July 24, 2022, he responded to an apartment complex located in Cleveland, Ohio to investigate a report of domestic violence. Upon arriving at the scene, Officer Bjekic located S.L. and gathered pertinent information regarding the nature of the incident. Officer Bjekic’s body camera was activated during his encounter with S.L. The video, marked state’s exhibit No. 1, was played during Officer Bjekic’s direct examination, and he narrated the relevant events as they unfolded.

{¶ 6} In relevant part, S.L. indicated that her ex-boyfriend, Lucas, unexpectedly arrived at her apartment complex and demanded to see their shared child. S.L. stated that Lucas did not reside with her and had not been around for "months." During their initial encounter, which occurred outside the apartment complex, Lucas became very hostile and brandished a firearm. He began pacing back and forth and threatened to kill himself and one of S.L.’s male acquaintances. S.L. stated that she attempted to calm Lucas down and eventually allowed him to see their son.

{¶ 7} After S.L. brought her and Lucas’s child inside to get ready for bed, she realized that her other son was still outside the apartment complex. When S.L. went to look for the child, Lucas entered her apartment through an unlocked door without S.L.’s knowledge or consent. Once S.L. came back inside the apartment with her son, Lucas initiated a physical altercation in the presence of the young children. Specifically, S.L. stated that Lucas grabbed her by the neck and pinned her against the hallway wall. Lucas then put his gun to her head and discharged the weapon "right across [her] face" and into the apartment wall. Although Lucas ran out the back door after he fired the gun, he had repeatedly threatened to return to the apartment within 24 hours to "bust windows out" if she did not leave.

{¶ 8} Based on the information gathered from S.L., Officer Bjekic ran Lucas’s name through the Law Enforcement Automated Database System ("LEADS") and confirmed his identity and out-of-town address. When asked to describe S.L.’s demeanor at the scene, Officer Bjekic testified that she was scared and exhibiting significant signs of stress. She was crying, sweating profusely, and periodically needed breaks to catch her breath. Officer Bjekic further testified that he had ongoing concerns for S.L.’s safety given the nature of Lucas’s threats and his use of a firearm. Accordingly, the police instructed S.L. to leave the apartment complex while they attempted to locate Lucas. (Tr. 26.) Finally, Officer Bjekic confirmed that a bullet hole and shell casing were observed inside S.L.’s apartment.

{¶ 9} Felipe DaVila ("DaVila") is a chief dispatcher for the Cleveland Police Department. DaVila testified that the department utilizes the recording system, Equature, to systematically store recorded 911 calls. DaVila stated that he reviewed the 911 call placed by S.L. on July 24, 2022. The 911 call, marked state’s exhibit No. 2, was then played on the record in its entirety. During the call, S.L. requested police assistance and described the nature of her emergency. Specifically, S.L. reported that Lucas put a gun to her head and discharged it into a wall. S.L. further stated that Lucas "was going crazy" and threatened to "be back" in 24 hours to "tear her house up" and "shoot bullets through her windows." Lastly, S.L. provided Lucas’s name, his date of birth, and a brief description of his appearance. DaVila confirmed that the audio was "kept in the ordinary course of business" and constituted "a fair and accurate representation of the call that he reviewed for the purposes of [trial]." (Tr. 39-40.)

{¶ 10} On cross-examination, DaVila conceded that the 911 call was placed approximately 30 minutes after the incident and that there was no ongoing emergency. He explained, however, that the caller remained "fearful and upset" due, in part, to Lucas’s threat to return to her home in 24 hours to cause additional harm. (Tr. 41.)

{¶ 11} Detective William Cunningham ("Det. Cunningham") of the Cleveland Police Department, testified that he was assigned to investigate the reported incident of domestic violence. In the course of his investigation, Det. Cunningham familiarized himself with the police report, reviewed Lucas’s criminal history, and obtained a written statement from S.L. Det. Cunningham testified that during his interaction with S.L., she positively identified Lucas as the perpetrator by initialing a photograph retrieved from the Attorney General’s Ohio Law Enforcement Gateway ("OHLEG").

{¶ 12} At the close of the state’s case-in-chief, defense counsel raised objections to the admission of (1) Officer Bjekic’s bodycamera footage, and (2) the 911 call placed by S.L. on July 24, 2022. Following a brief discussion on the record, the trial court overruled the objections and admitted the exhibits into evidence. Defense counsel then made an oral motion for acquittal pursuant to Crim.R. 29, which the trial court denied.

{¶ 13} At the conclusion of trial, Lucas was found guilty of all charges.

{¶ 14} A sentencing hearing was held in February 2023. Upon hearing from the parties, the trial court found that Counts 1 and 2 were allied offenses of similar import and the state elected to proceed with sentencing on the aggravated burglary offense charged in Count 1. The trial court further determined that Counts 3-5 were allied offenses of similar import and the state elected to proceed with sentencing on the endangering children offense charged in Count 3. With respect to the offense of aggravated burglary, a felony of the first degree, the court sentenced Lucas to a three-year prison term on the firearm specification, to run prior and consecutive to an indefinite prison term of four to six years on the base offense. (Tr. 96-97.) The indefinite prison term was ordered to run concurrently with a sentence of time served on Count 3.

{¶ 15} Lucas now appeals from his convictions.

II. Law and Analysis

A. The Confrontation Clause

{¶ 16} In the first assignment of error, Lucas argues the trial court violated his constitutional right to confrontation by admitting testimonial statements through the 911 call and body-camera footage. Lucas contends that the primary purpose of the 911 call and the subsequent police interrogation was to document past events for the purposes of a later criminal investigation or prosecution. He therefore urges this court to vacate his convictions.

[1] {¶ 17} Once Lucas objected to the admissibility of S.L.’s out-of-court statements, the state, as the proponent of the evidence, bore the burden of establishing the admissibility of the statements. State v. Smith, 2023-Ohio-603, 209 N.E.3d 883, ¶ 86 (8th Dist.), citing State v. Hill, 12th Dist. Butler No. CA80-05-0053, 1981 WL 5097, 2 (Apr 1, 1981), and United States v. Duron-Caldera, 737 F.3d 988, 993 (5th Cir. 2013) (" ‘[T]he government bears the burden of defeating [a] properly raised Confrontation Clause objection by establishing that its evidence is nontestimonial.’ ").

[2, 3] {¶ 18} We review evidentiary rulings that implicate the Confrontation Clause de novo. State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97. " ‘De novo review requires an independent review of the...