State v. Mead

S
        [Cite as State v. Mead, 2021-Ohio-1107.]


                  IN THE COURT OF APPEALS
              FIRST APPELLATE DISTRICT OF OHIO
                   HAMILTON COUNTY, OHIO




STATE OF OHIO,                                     :   APPEAL NOS. C-190604
                                                                    C-190620
       Plainitff-Appellee,                         :                C-190621
                                                                    C-190622
 vs.                                                                C-190623
                                                   :                C-190624
SCOTT MEAD,                                                         C-190625
                                                   :   TRIAL NOS. 18CRB-5108
       Defendant-Appellant.                                       C-19CRB-11671B
                                                   :              C-19CRB-23990
                                                                  C-19CRB-23869
                                                   :              C-19CRB-23677
                                                                  C-19CRB-23374A
                                                   :              C-19CRB-22922

                                                   :           O P I N I O N.


Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: April 2, 2021



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio, Hamilton
County.

Andrew W. Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Susan M. Zurface, Assistant Prosecuting Attorney, for Plaintiff-
Appellee State of Ohio, City of Cincinnati.

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



CROUSE, Judge.

         {¶1}   Defendant-appellant Scott Mead appeals from seven municipal court

judgments in which he was convicted of domestic violence, telecommunications

harassment, violating a protection order, menacing by stalking, and aggravated

menacing. For the reasons set forth below, we affirm the judgments of the trial

court.

                              I. Facts and Procedure

         {¶2}   Mead and Tonya Luckett were in an on-again/off-again relationship

for over a year and a half. The relationship ended in a physical altercation and

relentless phone calls, which serve as the bases for the charges in this case.

         {¶3}   On March 4, 2018, Luckett left work and returned to the home that she

shared with Mead. Luckett testified that Mead was drunk and angry. According to

Luckett, Mead struck her in the face and knocked her onto the floor. Mead got on

top of her and continued to strike her. Mead then grabbed her hair and dragged her

through the kitchen. As a result, Luckett claims that she lost control of her bodily

functions and sustained several injuries.      Photographs taken the following day

showed swelling and bruising to her face and arms.           Luckett called the police

immediately following the altercation and Mead was charged with domestic violence.

         {¶4}   Five months later, on August 9, 2018, Luckett appeared before the

court and said that she did not want to move forward with the case or the pending

protection order. Luckett stated that she had reconciled with Mead and that she was

hoping to rekindle their relationship. However, the relationship only continued to

deteriorate.

         {¶5}   On August 30, 2018, Luckett received approximately 30 phone calls

from Mead. Luckett called the police and Officer Eric Connor responded to the



                                           2
                    OHIO FIRST DISTRICT COURT OF APPEALS



scene. Luckett’s phone rang 15 to 20 times in Connor’s presence. Connor answered

one of the calls, identified himself as a police officer, and explained that he had

received a call for harassment. The caller identified himself as “Scott Mead.” Connor

instructed Mead to stop calling, but the calls continued. Mead was subsequently

charged with telecommunications harassment.

       {¶6}   On September 1, 2018, Luckett again contacted the police regarding

incessant phone calls from Mead. Officer Ted Yaeger advised Luckett to file for a

civil protection order (“CPO”). Luckett heeded Yaeger’s advice and filed for a CPO

that same day. Luckett was subsequently granted a temporary protection order.

       {¶7}   On September 4, 2018, Luckett returned to Yaeger with further

complaints of nonstop phone calls from Mead. Mead was subsequently charged with

telecommunications harassment.      Later that day, Yaeger served Mead with the

temporary protection order.

       {¶8}   On September 7, 2018, Luckett received approximately 40 to 80 phone

calls from Mead. Luckett called the police and provided recordings of the phone

calls. Mead was subsequently charged with violating a temporary protection order.

Two days later, on September 9, 2018, Luckett received an additional 30 phone calls

from Mead. Mead was again charged with violating a temporary protection order, as

well as menacing by stalking.

       {¶9}   On May 4, 2019, Luckett received a call from Mead on her employer’s

public phone line. Luckett’s coworker answered the phone and Mead asked to speak

to Luckett. Mead immediately started yelling at Luckett and threatened “to kill [her]

and put [her] in a black garbage bag.” Luckett’s employer called the police and Mead

was subsequently charged with aggravated menacing.




                                         3
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} On September 30, 2019, all of the charges were tried together before a

jury. The city of Cincinnati prosecuted Mead on the domestic-violence charge and

the Hamilton County Prosecuting Attorney’s Office prosecuted Mead on the

remaining charges. Following three days of testimony, the jury found Mead guilty of

one count of domestic violence, two counts of telecommunications harassment, two

counts of violating a protection order, one count of menacing by stalking, and one

count of aggravated menacing. On October 4, 2019, the trial court sentenced Mead

to an aggregate term of 18 months’ incarceration. Mead timely filed this appeal,

raising five assignments of error for our review.

                                 II. Right to a Fair Trial

       {¶11} In his first assignment of error, Mead argues that his constitutional

rights were violated because he was required to wear the same clothes for four

consecutive days of trial.

       {¶12} The United States Supreme Court has held that the state cannot

compel an accused to stand trial before a jury while dressed in identifiable jail

clothes. Estelle v. Williams, 

425 U.S. 501

, 

96 S. Ct. 1691

, 

48 L. Ed. 2d 126

(1976). The

rule entitling a defendant to be tried in ordinary clothing is designed to preserve the

presumption of innocence, a “presumption so basic to the adversary system.”

Id. at

504.

A defendant’s appearance in jail clothing is a constant reminder to the jury that

the defendant is in custody, and the constant reminder of the accused’s condition

may affect a juror’s judgment.

Id. at 504-505.

{¶13}

It is undisputed that Mead was not compelled to appear in jail clothes.

On the first day of trial, Mead wore dress clothes and black dress shoes provided by

defense counsel. On the next three days of trial, Mead wore the same dress clothes

and tennis shoes he had been wearing when he was arrested. The sheriff’s office



                                           4
                      OHIO FIRST DISTRICT COURT OF APPEALS



refused to accept any additional clothes or shoes from defense counsel.            Mead

contends that the presumption of innocence was violated when he was compelled to

wear the same clothes throughout his four-day trial.

       {¶14} Mead does not cite, and we cannot find, any cases to support his

contention. In fact, the only courts to address the issue have ruled against Mead.

See People v. Purscelley, Cal.App. No. D056288, 

2010 WL 2952450

(Jul. 29, 2010)

(holding trial court did not violate defendant’s constitutional rights by limiting him

to one change of ordinary clothing per week); Johnson v. Sherman, C.D.Cal. No.

5:17-01860 ODW, 

2020 WL 3655494

(May 14, 2020) (holding trial court did not

violate defendant’s constitutional rights by limiting him to two changes of ordinary

clothing per week).

       {¶15} There is nothing in the record to suggest that Mead’s repeatedly-worn

dress clothes were the equivalent of identifiable jail clothes. The trial occurred over a

four-day period and Mead wore nondescript dress clothes. In addition, Mead wore

two different pairs of shoes during the course of the trial, which is consistent with a

person not being incarcerated. Under these circumstances, Mead has not established

a violation of his constitutional rights.

       {¶16} Mead’s first assignment of error is overruled.

                                III. Right to a Speedy Trial

       {¶17} In his second assignment of error, Mead argues that the 11-month

postaccusation delay on his September 10 and September 11 charges violated his

constitutional right to a speedy trial.

       {¶18} Appellate review of a speedy-trial determination involves mixed

questions of fact and law. State v. Rice, 2015-Ohio-5481, 

57 N.E.3d 84

, ¶ 15 (1st

Dist.). We give deference to the trial court’s factual findings as long as they are



                                            5
                     OHIO FIRST DISTRICT COURT OF APPEALS



supported by competent, credible evidence, and we review de novo the court’s

conclusions of law.

Id.

{¶19}

To determine whether a defendant has been deprived of his

constitutional right to a speedy trial, courts must balance four factors: (1) the length

of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right,

and (4) prejudice to the defendant. Barker v. Wingo, 

407 U.S. 514

, 530, 

92 S. Ct.

2182

, 

33 L. Ed. 2d 101

(1972); State v. Selvage, 

80 Ohio St. 3d 465

, 467, 

687 N.E.2d

433

(1997).

       {¶20} The first factor acts as a triggering mechanism for inquiry into the

other factors. Barker at 530. The United States Supreme Court has explained:

       Until there is some delay which is presumptively prejudicial, there is

       no necessity for inquiry into the other factors that go into the balance.

       Nevertheless, because of the imprecision of the right to speedy trial,

       the length of delay that will provoke such an inquiry is necessarily

       dependent upon the peculiar circumstances of the case. To take but

       one example, the delay that can be tolerated for an ordinary street

       crime is considerably less than for a serious, complex conspiracy

       charge.

Id. at 530-531.

{¶21}

Courts have generally found postaccusation delays presumptively

prejudicial as they approach one year. See, e.g., State v. Sears, 

166 Ohio App. 3d 166

,

2005-Ohio-5963, 

849 N.E.2d 1060

, ¶ 11 (1st Dist.) (9-month delay for misdemeanor

assault was presumptively prejudicial); Selvage at 468 (ten-month delay for felony

drug trafficking was presumptively prejudicial).




                                           6
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22} On September 10, 2018, the Harrison Police Department filed a

misdemeanor complaint and issued an arrest warrant against Mead for violating a

protection order. On September 11, 2018, the Harrison Police Department filed

another misdemeanor complaint and issued another arrest warrant against Mead for

menacing by stalking. Mead was not arrested until August 15, 2019, more than 11

months after the issuance of the warrants. This 11-month delay is presumptively

prejudicial and triggers inquiry into the remaining factors.

       {¶23} The second factor operates on a sliding scale. State v. Rogers, 1st Dist.

Hamilton No. C-180120, 2019-Ohio-1251, ¶ 9. Deliberate dilatory acts are weighted

heavily against the state, while negligent acts are weighted less heavily against the

state. 

Barker, 407 U.S. at 531

, 

92 S. Ct. 2182

, 

33 L. Ed. 2d 101

.

       {¶24} Officer Yaeger testified that he never attempted to serve Mead with the

September 10 and September 11 charges. The state believed that Mead resided

outside the jurisdiction. A review of the record shows that Mead partially resided in

California and the state did not have a California address for Mead. Instead, the

state had only one address for Mead—his mother’s address in Cincinnati. Mead had

been served at his mother’s address on prior occasions. The state did attempt to

serve Mead with other charges on September 7, 2018, but could not locate him at his

mother’s address. Nonetheless, the state did not attempt to serve Mead with the

September 10 and September 11 charges, and there is no evidence that Mead

attempted to avoid service.    Therefore, the state was not reasonably diligent in

pursuing Mead and the second factor weighs slightly in Mead’s favor.

       {¶25} With respect to the third factor, the parties agree that Mead filed a

motion to dismiss on August 22, 2019, one week after his arrest. This factor weighs

in favor of Mead.



                                           7
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶26} Courts should assess the fourth factor in light of the interests which

the right to a speedy trial was designed to protect, including (1) to prevent oppressive

pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to

limit the possibility that the defense will be impaired. Barker at 533.

       {¶27} The first two interests are not implicated in this case. Mead was not

incarcerated in the period between the filing of the complaint and his arrest, and

there is no evidence that he suffered anxiety or concern during that period.

       {¶28} With respect to the last interest, Mead does not allege any

particularized trial prejudice. Instead, he argues that the state’s negligence created a

presumption of prejudice.

       {¶29} As a general rule, “prejudice may be presumed only in aggravated

cases involving excessive delay.” Rogers, 1st Dist. Hamilton No. C-180120, 2019-

Ohio-1251, at ¶ 17. Here, Mead was arrested approximately 11 months after issuance

of the arrest warrants and no attempt was made to serve him before then. However,

the state alleged it had a problem locating Mead.        And a review of the record

supports that assertion—Mead partially resided in California, the state did not have a

California address for Mead, and Mead could not be located at his mother’s address

three days earlier. Under these circumstances, the 11-month delay does not rise to

the level of an aggravated case involving excessive delay.

       {¶30} After weighing all of the Barker factors, the state’s negligence is not

enough to outweigh the absence of prejudice. Therefore, Mead was not deprived of

his constitutional right to a speedy trial and his second assignment of error is

overruled.




                                           8
                     OHIO FIRST DISTRICT COURT OF APPEALS



                                 IV. Evid.R. 901 & 1003

       {¶31} In his third assignment of error, Mead argues that the trial court erred

by allowing duplicate phone recordings into evidence.        Mead contends that the

duplicate recordings were not properly authenticated under Evid.R. 901 and 1003.

       {¶32} The trial court is vested with the sound discretion to admit duplicates,

and those rulings will not be overturned absent an abuse of discretion. State v.

Searles, 1st Dist. Hamilton No. C-180339, 2019-Ohio-3109, ¶ 7; State v. Tibbetts, 

92

Ohio St. 3d 146

, 160, 

749 N.E.2d 226

(2001).

       {¶33} Evid.R.     901   governs   the   authentication   of   recorded   phone

conversations. The threshold for authentication is low, and requires only a prima

facie showing that “the matter in question is what its proponent claims.” Evid.R.

901(A); State v. Rosemond, 2019-Ohio-5356, 

150 N.E.3d 563

, ¶ 59 (1st Dist.); State

v. Crossty, 2017-Ohio-8382, 

99 N.E.3d 1048

, ¶ 29 (1st Dist.). Evid.R. 901(B)(5)

provides that evidence may be authenticated by voice identification, “whether heard

firsthand or through mechanical or electronic transmission or recording, by opinion

based upon hearing the voice at any time under circumstances connecting it with the

alleged speaker.”

       {¶34} Pursuant to Evid.R. 1003, “[a] duplicate is admissible to the same

extent as an original unless (1) a genuine question is raised as to the authenticity of

the original or (2) in the circumstances it would be unfair to admit the duplicate in

lieu of the original.” The party seeking to exclude the duplicate has the burden of

demonstrating that it should be excluded. State v. Tibbetts, 

92 Ohio St. 3d 146

, 160,

749 N.E.2d 226

(2001).

       {¶35} In this case, the evidence was sufficient to establish that the duplicate

recordings were what the state claimed them to be—i.e., accurate recordings of



                                          9
                      OHIO FIRST DISTRICT COURT OF APPEALS



phone calls between Mead and Luckett. Luckett testified that she recorded the

phone calls with her friend’s iPad and presented them personally to the police

department.     The police then uploaded the iPad footage onto their system and

manually recorded it.

        {¶36} Although Luckett had no personal knowledge of the duplicate

recordings, she testified that she remembered the calls and that she recognized the

voices on the calls. Luckett unequivocally identified her voice and Mead’s voice on

the recordings.     She further testified that the duplicate recordings fairly and

accurately represented the phone calls she received on September 7, 2018. Luckett’s

voice identification was sufficient to constitute a prima facie showing of authenticity.

Thus, the trial court did not abuse its discretion in admitting duplicate copies of the

phone recordings.

        {¶37} Mead’s third assignment of error is overruled.

                                   V.      Evid.R. 404(B)

        {¶38} In his fourth assignment of error, Mead argues that the state’s

introduction of other-acts evidence violated Evid.R. 404(B) and warranted a mistrial.

        {¶39} At trial, Mead’s theory of the case was that Luckett lodged false

allegations against him whenever their relationship was “off-again.” During cross-

examination, Mead’s counsel elicited information that Luckett originally did not want

to go forward with the domestic-violence charge and did not want a temporary

protection order. To rehabilitate Luckett’s credibility and to rebut the implication

that Luckett falsified the charge, the state elicited information that Luckett decided to

continue with the domestic-violence case due to “constant threats and more hands

on.” Mead claims that evidence of threats and subsequent instances of domestic

violence was inadmissible under Evid.R. 404(B).



                                           10
                      OHIO FIRST DISTRICT COURT OF APPEALS



        {¶40} Pursuant to Evid.R. 404(B): “Evidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in

conformity therewith.” Evidence of other acts is admissible only when it is probative

of a nonpropensity-based issue. State v. Hill, 1st Dist. Hamilton No. C-190638,

2021-Ohio-294, ¶ 31.

        {¶41} In two recent cases, the Ohio Supreme Court clarified the process for

determining whether other-acts evidence is admissible at trial. See State v. Hartman,

161 Ohio St. 3d 214

, 2020-Ohio-4440, 

161 N.E.3d 651

; State v. Smith, Slip Opinion No.

2020-Ohio-4441.     As with all evidence, the threshold question for determining

admissibility is whether the evidence is relevant. Hartman at ¶ 24.      “In the Evid.R.

404(B) context, the relevance examination asks whether the proffered evidence is

relevant to the particular purpose for which it is offered, as well as whether it is

relevant to an issue that is actually in dispute.” Smith at ¶ 37, citing Hartman at ¶ 26-

27. The relevancy of other-acts evidence is a question of law subject to a de novo

review. Hartman at ¶ 22.

        {¶42} If the evidence is relevant to a noncharacter-based issue that is

material to the case, then the court must consider whether the evidence’s probative

value is substantially outweighed by the danger of unfair prejudice. Smith at ¶ 38;

Hartman at ¶ 29. “Balancing the risks and benefits of the evidence necessarily

involves an exercise of judgment; thus, the trial court’s determination should be

reviewed for an abuse of discretion.” Hartman at ¶ 30.

        {¶43} In this case, the state introduced other-acts evidence to rehabilitate

Luckett’s credibility and to show her state of mind, not to show Mead’s propensity for

violence. A review of the record shows that the state did not elicit the other-acts

evidence during direct examination of Luckett. Rather, the state addressed the issue



                                           11
                     OHIO FIRST DISTRICT COURT OF APPEALS



only after Mead’s counsel cross-examined Luckett regarding her prior actions with

respect to the domestic-violence case.

        {¶44} This case hinged on the jury’s determination of credibility. Thus,

Luckett’s credibility was a material issue in dispute. The state introduced the other-

acts evidence to rebut the testimony that Luckett originally did not want to pursue the

domestic-violence charge and to explain why Luckett delayed in obtaining a

protection order. Accordingly, the other-acts evidence was not premised on improper

character inferences and was probative of a material issue in the case.   See State v.

Spivey, 3d Dist. Marion No. 9-12-27, 2013-Ohio-851, ¶ 37 (evidence of defendant’s

prior drug use did not violate Evid.R. 404(B) where it was admitted to rehabilitate the

witness’s credibility and to rebut the suggestion of impropriety made during cross-

examination).

        {¶45} The other-acts evidence was also not unfairly prejudicial. On redirect,

the trial court allowed Luckett to testify that she changed her mind because of

“constant threats and more hands on.” The court allowed Luckett to provide some

details regarding the threats—e.g., Mead made threats against Luckett, her family

members, and her friends. But the court stopped Luckett from referencing other

instances of domestic violence. The court sustained defense counsel’s objections to

“any statement regarding hands being placed on [Luckett] subsequent to the [March 3

incident].” The court also instructed the jury not to consider “any statements that

were stricken by the court or that you were instructed to disregard.”

        {¶46} Furthermore, Luckett’s testimony about other acts paled in

comparison to her testimony about the charges.           Luckett testified that Mead

repeatedly struck her in the face, grabbed her hair, and dragged her through the

kitchen. Luckett also testified about the countless phone calls that occurred over a



                                           12
                      OHIO FIRST DISTRICT COURT OF APPEALS



ten-month period.     Luckett’s testimony was corroborated by photographs of her

injuries and duplicate phone recordings.

       {¶47} Therefore, the trial court did not err in admitting the other-acts

evidence. Mead’s fourth assignment of error is overruled.

                                  VI.     Cumulative Error

       {¶48}    In his fifth assignment of error, Mead argues that the cumulative

effect of the first, third, and fourth assignments of error deprived him of a fair trial.

       {¶49} Because we have not found any instances of error, we cannot find

cumulative error. Accordingly, Mead’s fifth assignment of error is overruled.

                                        V. Conclusion

       {¶50} For the foregoing reasons, Mead’s assignments of error are overruled

and the judgments of the trial court are affirmed.

                                                                     Judgments affirmed.

Z AYAS , P.J., and M YERS , J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




                                            13

Add comment

By

Recent Posts

Recent Comments