State v. Brown ( 2020 )

[Cite as State v. Brown, 2020-Ohio-3614.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-19-61
v.
TAYVON BROWN, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2018 0227
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: July 6, 2020
APPEARANCES:
Andrea M. Brown for Appellant
Jana E. Emerick for Appellee
Case No. 1-19-61
PRESTON, J.
{¶1} Defendant-appellant, Tayvon J. Brown (“Brown”), appeals the
September 18, 2019 judgment of conviction and sentence of the Allen County Court
of Common Pleas. For the reasons that follow, we affirm in part and reverse in part.
{¶2} On December 16, 2017, an officer from the Lima Police Department
responded to a call about a traffic accident on the north side of the city of Lima. On
arrival, the officer observed Keaireus Fuqua (“Fuqua”) and a small child walking
toward a disabled vehicle. When the officer approached Fuqua, he noticed that her
lips and the area around her mouth were smeared with blood. The officer asked
Fuqua what caused the bleeding, and she responded by telling the officer that she
was pregnant and exclaiming, “[H]e never should have put his hands on [her].”
After additional questioning, Fuqua stated that Brown, her romantic partner, caused
the injuries to her face. Fuqua was then taken to the hospital where she made further
statements implicating Brown in an assault against her.
{¶3} On June 13, 2018, the Allen County Grand Jury indicted Brown on one
count of domestic violence in violation of R.C. 2919.25(A), (D)(5), a fifth-degree
felony. (Doc. No. 4). The indictment specifically alleged that Brown knew that
Fuqua was pregnant at the time of the violation. (Id.). On June 25, 2018, Brown
appeared for arraignment and pleaded not guilty to the count of the indictment.
(Doc. No. 22).
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{¶4} On December 13, 2018, the State filed a motion for the trial court to call
Fuqua as the court’s witness pursuant to Evid.R. 614(A). (Doc. No. 80). As grounds
for its motion, the State argued that it had reason to believe that Fuqua’s trial
testimony would “contradict a prior statement made to police.” (Id.).
{¶5} A jury trial commenced on December 17, 2018. At the beginning of
the trial, the State renewed its motion for the trial court to call Fuqua as the court’s
witness. (Dec. 17-18, 2018 Tr. at 21). The trial court granted the State’s motion
without objection. (Id. at 22). In addition, Brown twice moved for a judgment of
acquittal under Crim.R. 29. (Id. at 157, 185-186). The trial court denied both of
Brown’s Crim.R. 29 motions. (Id. at 162, 186). On December 18, 2018, the jury
found Brown guilty of domestic violence. (Doc. Nos. 94, 95). However, the jury
found that the State did not prove beyond a reasonable doubt that Brown knew that
Fuqua was pregnant at the time of the offense. (Doc. No. 94). Consequently, Brown
was found guilty of first-degree misdemeanor domestic violence rather than fifth-
degree felony domestic violence as charged in the indictment. (Doc. No. 95).
{¶6} The trial court proceeded immediately to sentencing. The trial court
sentenced Brown to 180 days in the Allen County Jail—80 days of which the trial
court suspended. (Doc. No. 95). The trial court did not award Brown any jail-time
credit. (See Dec. 17-18, 2018 Tr. at 247). In addition, Brown was placed on
“community control/probation” for a period of two years and ordered to pay a $1000
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fine. (Doc. No. 95). The trial court’s judgment entry of conviction and sentence
was filed on December 19, 2018. (Id.).
{¶7} On January 2, 2019, Brown filed a notice of appeal from the trial court’s
December 19, 2018 judgment. (Doc. No. 98). On September 3, 2019, this court
dismissed Brown’s appeal for lack of a final, appealable order. (Doc. No. 119).
Specifically, we concluded that because Brown was sentenced to a term of local
incarceration in jail for a misdemeanor offense, the trial court was required to
calculate Brown’s jail-time credit under R.C. 2949.08, and we noted that the trial
court failed to include a calculation of Brown’s jail-time credit in its judgment entry
of conviction and sentence. (Id.). Accordingly, we dismissed Brown’s appeal “for
the trial court to file a proper and complete sentencing entry.” (Id.).
{¶8} On September 18, 2019, the trial court filed an amended judgment entry
of conviction and sentence in which it stated that it was giving Brown “no credit for
time previously served prior to the sentencing date as the jail time imposed was a
condition of community control.” (Doc. No. 120).
{¶9} On October 7, 2019, Brown filed a notice of appeal from the trial court’s
September 18, 2019 judgment. (Doc. No. 122). He raises five assignments of error
for our review. We address Brown’s assignments of error in the order presented,
but, for the sake of clarity, we consider Brown’s second and third assignments of
error together.
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Assignment of Error No. I
The trial court’s improper admission of hearsay statements
constituted plain error and deprived defendant-appellant of his
right to a fair trial.
{¶10} In his first assignment of error, Brown argues that the trial court
committed plain error by allowing the admission of several hearsay statements at
his trial. He maintains that the record “is replete with several out-of-court
statements made by the victim, Ms. Fuqua, and admitted at trial in which [he] was
identified as the alleged assailant” and that “[b]ut for the trial court’s error in
allowing the hearsay statements into evidence, the outcome of [his] jury trial would
have been much different.” (Appellant’s Brief at 9). Specifically, Brown takes
issue with hearsay contained in the testimony of the officer who initially responded
to Fuqua’s traffic accident, Patrolman Nathan Fried (“Patrolman Fried”), in the
testimony of an emergency room nurse at St. Rita’s Medical Center (“St. Rita’s”)
who met with Fuqua on December 16, 2017, Ronda Norris (“Norris”), and in State’s
Exhibit 15, which are medical records from Fuqua’s visit to the emergency room at
St. Rita’s on December 16, 2017. (Id.).
{¶11} “Ordinarily, we review a trial court’s hearsay rulings for an abuse of
discretion.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 97, citing
State v. Hymore, 9 Ohio St.2d 122, 128 (1967). See HSBC Bank U.S.A., Natl. Assn.
v. Gill, 1st Dist. Hamilton No. C-180404, 2019-Ohio-2814, ¶ 6-10 (documenting a
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split between courts of appeals concerning the proper standard of review to apply
when reviewing the admission of hearsay but concluding that McKelton and other
Supreme Court decisions dictate abuse-of-discretion review). However, as Brown
recognizes, because he failed to object to the admission of the hearsay contained in
Patrolman Fried’s and Norris’s testimonies and in State’s Exhibit 15, we review for
plain error. State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, ¶ 72, citing
State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, ¶ 66.
{¶12} We recognize plain error “‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’” State v.
Landrum, 53 Ohio St.3d 107, 111 (1990), quoting State v. Long, 53 Ohio St.2d 91(1978), paragraph three of the syllabus. For plain error to apply, the trial court must
have deviated from a legal rule, the error must have been an obvious defect in the
proceeding, and the error must have affected a substantial right. State v. Barnes, 94
Ohio St.3d 21, 27 (2002). Under the plain error standard, the appellant must
demonstrate that the outcome of his trial would clearly have been different but for
the trial court’s errors. State v. Waddell, 75 Ohio St.3d 163, 166 (1996), citing State
v. Moreland, 50 Ohio St.3d 58 (1990).
{¶13} 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). Generally, hearsay is not admissible
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unless an exception applies. Evid.R. 802. “‘Evid.R. 803 is one such rule which
permits the admission of certain hearsay statements even though the declarant is
available as a witness.’” State v. Bender, 3d Dist. Union No. 14-19-22, 2020-Ohio-
722, ¶ 12, quoting Dayton v. Combs, 94 Ohio App.3d 291, 300 (2d Dist.1993).
Three of these exceptions—Evid.R. 803(2), Evid.R. 803(4), and Evid.R. 803(6)—
potentially apply to the hearsay admitted in the present case.
{¶14} We begin with Patrolman Fried’s testimony and the first of the
arguably applicable exceptions to the hearsay rule—Evid.R. 803(2), which allows
for the admission of excited utterances. At trial, Patrolman Fried testified that on
the morning of December 16, 2017, he was dispatched to the six-hundred block of
West Northern Avenue in Lima to respond to a report of a traffic accident with no
injuries. (Dec. 17-18, 2018 Tr. at 30-31). He stated that he arrived in the area
approximately 10-12 minutes after the Lima Police Department was first contacted
about the accident. (Id. at 31). Patrolman Fried testified that when he arrived at the
scene, he observed a woman and a young boy walking toward a vehicle that was
“facing the wrong way into traffic” and resting alongside the curb. (Id. at 32-33).
He stated that the woman identified herself as Fuqua and that he was able to
establish that she had been driving the vehicle. (Id. at 33-34).
{¶15} Patrolman Fried testified that when he approached Fuqua, “[s]he had
blood on her mouth * * * [and] seemed very emotional, very distraught.” (Id. at
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34). Patrolman Fried stated that he “asked her what happened and she stated that
[she was] pregnant and ‘he never should have put his hands on me.’” (Id.). He
testified that he then asked Fuqua who had put their hands on her, and she responded
that it was Brown. (Id. at 34-35). Finally, Patrolman Fried said that he “asked
[Fuqua] how she had received the injury and she said it was from [Brown].” (Id. at
35).
{¶16} The State argues that Fuqua’s statements to Patrolman Fried regarding
the blood on her mouth and the identity of her assailant were admissible as excited
utterances pursuant to Evid.R. 803(2). Under Evid.R. 803(2), “statement[s] relating
to a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition” are excepted from the hearsay rule. In
determining whether a statement is admissible under Evid.R. 803(2), the Supreme
Court of Ohio has applied the following four-part test:
(a) that there was some occurrence startling enough to produce a
nervous excitement in the declarant, which was sufficient to still his
reflective faculties and thereby make his statements and declarations
the unreflective and sincere expression of his actual impressions and
beliefs, and thus render his statement or declaration spontaneous and
unreflective,
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(b) that the statement or declaration, even if not strictly
contemporaneous with its exciting cause, was made before there had
been time for such nervous excitement to lose a domination over his
reflective faculties so that such domination continued to remain
sufficient to make his statements and declarations the unreflective and
sincere expression of his actual impressions and beliefs,
(c) that the statement or declaration related to such startling
occurrence or the circumstances of such startling occurrence, and
(d) that the declarant had an opportunity to observe personally the
matters asserted in his statement or declaration.
(Emphasis sic.) State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, ¶ 166, quoting
Potter v. Baker, 162 Ohio St. 488 (1955), paragraph two of the syllabus.
{¶17} “‘When evaluating statements under this test, “[t]here is no per se
amount of time after which a statement can no longer be considered to be an excited
utterance.”’” State v. Baskin, 3d Dist. Allen No. 1-18-23, 2019-Ohio-2071, ¶ 61,
quoting State v. Little, 3d Dist. Allen No. 1-16-29, 2016-Ohio-8398, ¶ 11, quoting
State v. Taylor, 66 Ohio St.3d 295, 303 (1993). “‘Rather, “each case must be
decided on its own circumstances.”’” Id., quoting Little at ¶ 11, quoting State v.
Duncan, 53 Ohio St.2d 215, 219 (1978). “‘“The central requirements are that the
statement must be made while the declarant is still under the stress of the event and
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the statement may not be a result of reflective thought.”’” Id., quoting Little at ¶ 11,
quoting Taylor at 303. “Further, ‘the admission of a declaration as an excited
utterance is not precluded by questioning which: (1) is neither coercive nor leading,
(2) facilitates the declarant’s expression of what is already the natural focus of the
declarant’s thoughts, and (3) does not destroy the domination of the nervous
excitement over the declarant’s reflective faculties.’” State v. Whitfield, 1st Dist.
Hamilton No. C-020241, 2002-Ohio-5984, ¶ 6, quoting State v. Wallace, 37 Ohio
St.3d 87, 93 (1988).
{¶18} We conclude that Fuqua’s statements to Patrolman Fried were
admissible as excited utterances under Evid.R. 803(2). First, there is no question
that the event to which Fuqua’s statements referred—an assault perpetrated by the
man she was dating—was startling enough to produce a nervous excitement in
Fuqua and impair her reflective faculties. See State v. Boss, 5th Dist. Ashland No.
16-COA-026, 2017-Ohio-697, ¶ 24; Cleveland v. Williams, 8th Dist. Cuyahoga No.
101588, 2015-Ohio-1739, ¶ 5-6, 18-20. Furthermore, Fuqua’s statements related to
the assault, and as the victim, Fuqua observed personally the matters asserted in her
statements. In addition, although Fuqua’s statements were made in response to
Patrolman Fried’s questions and were thus not unprompted, Patrolman Fried’s
questioning was not coercive or leading; instead, it was open-ended and allowed
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Fuqua to express what was already on her mind without overcoming the excitement
produced by the assault. See Whitfield at ¶ 8-9. (See State’s Ex. 2).
{¶19} Brown does not dispute that Fuqua’s statements to Patrolman Fried
meet most of the criteria for admissibility as excited utterances. However, he
contends that Fuqua did not make the statements to Patrolman Fried while under the
stress of the excitement of the attack because “she had just been in a motor vehicle
accident where she ran her car up over a curb after leaving her residence to follow
Brown in her car.” (Appellant’s Reply Brief at 1-2). Brown acknowledges that
Fuqua was “very upset,” “very emotional,” and “very distraught” when she spoke
to Patrolman Fried, but he notes that there was no testimony “pinpointing that Ms.
Fuqua was still under the stress/excitement of the startling event * * * as opposed
to the fact that she had just ran her car up over a curb with her son in the vehicle.”
(Id. at 2). He maintains that the accident was an “intervening circumstance * * *
[that] could have influenced her statements to Patrolman Fried” and suggests that
her statements were made in response to the stress of the accident rather than the
stress of the assault. (Id. at 1-2).
{¶20} We disagree. In this case, there was little evidence concerning when
the accident occurred in relation to the assault. In her testimony, Fuqua could not
recall when she and Brown got into the altercation, other than that it happened after
they woke up on the morning of December 16, 2017. (Dec. 17-18, 2018 Tr. at 67-
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68). She stated that, shortly after the incident, Brown left her apartment in a vehicle
and that she then left her apartment and chased after him in her vehicle before
running into the curb. (Id. at 71). Although there is nothing in the record regarding
how much time elapsed between when Fuqua hit the curb and when the Lima Police
Department was first contacted about the accident, Patrolman Fried testified that he
arrived at the scene of the accident approximately 10-12 minutes after the call came
in, and the video recording from the dashboard camera of Patrolman Fried’s patrol
vehicle reflects that Patrolman Fried initiated contact with Fuqua at approximately
10:50 a.m. (Id. at 31); (State’s Ex. 2). Thus, although the time between the assault
and Fuqua’s statements cannot be determined with absolute certainty, the evidence
strongly suggests that the statements were made close enough in time to the assault
that Fuqua was still suffering from the original stress of the attack.
{¶21} Moreover, while the accident was “intervening” in the sense that it
occurred between the attack and Fuqua’s statements, it was not an isolated incident
that severed the connection between the assault and Fuqua’s statements. When
Fuqua crashed her vehicle, she was in pursuit of the man who had recently attacked
her. If anything, the traffic accident served to maintain, or even amplify, the state
of nervous excitement caused by the assault rather than diminish it. See State v.
Boyd, 3d Dist. Hancock No. 5-89-23, 1990 WL 121491, *4 (Aug. 21, 1990) (“There
was only one intervening circumstance noted in the evidence. [The assault victim]
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was informed by the bartender that the house was on fire. This would tend to
increase the stress already existing and would not eliminate it.”) (Emphasis sic.).
Therefore, the record leaves little doubt that Fuqua was under the influence of the
stress caused by the assault when she made the statements to Patrolman Fried.
Accordingly, we conclude that Fuqua’s statements to Patrolman Fried are
admissible as excited utterances under Evid.R. 803(2) and that the trial court did not
plainly err by allowing Patrolman Fried to testify about those statements.
{¶22} Next, we turn to the hearsay embedded in Norris’s testimony and in
State’s Exhibit 15. Most of Norris’s testimony was directed toward explaining St.
Rita’s emergency department’s regular procedures and the procedures that were
followed during Fuqua’s visit. Norris testified that in order to properly care for a
person who comes into the emergency room, it is important to get as much
information as possible from the person, specifically about what happened to the
person and why they were admitted. (Dec. 17-18, 2018 Tr. at 116). She stated that
patients will be asked “what brought them [to the emergency room] in order to better
treat them appropriately.” (Id.).
{¶23} Norris also testified that whenever medical personnel interact with a
patient at the emergency room, a record is made of the interaction. (Id. at 118). She
stated that information gathered from a patient is documented in the record at or
around the time the patient gives the information, that the information is logged by
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a person that talks to the patient or has knowledge of what the patient said, and that
these records are kept and relied on in the ordinary course of business at St. Rita’s.
(Id. at 118-119). Norris testified that when Fuqua came to the emergency room at
St. Rita’s on December 16, 2017, a record of Fuqua’s visit was created in accordance
with these procedures. (Id. at 117, 119). Norris identified State’s Exhibit 15 as a
fair and accurate copy of Fuqua’s medical records from St. Rita’s. (Id. at 119);
(State’s Ex. 15).
{¶24} State’s Exhibit 15 contains a number of statements made by Fuqua to
the medical staff at St. Rita’s on December 16, 2017. (State’s Ex. 15). First, the
medical record indicates that Fuqua told Dr. Sampath Medepalli that “she was in an
altercation with her boyfriend,” that “[h]e threw her on the ground and punched her
in the face and then she turned on her abdomen and he punched her in the back,”
and that “[s]he had a nosebleed initially.” (Id.). In addition, Nurse Ashley Scott
recorded that Fuqua stated that “she got in a fight [with her] child’s father” and that
Fuqua “report[ed] [that] he was hitting her and slamming her.” (Id.). Nurse Scott
also reported that Fuqua stated that her “stomach [was] starting to hurt * * *.” (Id.).
{¶25} Finally, at one point, Norris read from the notes of Dr. Medepalli and
Nurse Scott contained in State’s Exhibit 15. (Dec. 17-18, 2018 Tr. at 121, 123). In
addition, Norris stated that when she spoke to Fuqua, Fuqua “agreed that she was
not going back home to him.” (Id. at 127). According to Norris, Fuqua “also agreed
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that she was going to be going to the Prosecutor’s Office on Monday to discuss
getting a protection order.” (Id.). Apart from this testimony, Norris did not testify
to anything Fuqua said during her visit to St. Rita’s on December 16, 2017.
{¶26} The State argues that Evid.R. 803(4) and 803(6) support the admission
of Fuqua’s out-of-court statements contained in Norris’s testimony and in State’s
Exhibit 15. Evid.R. 803(4) excepts from the hearsay rule “[s]tatements made for
purposes of medical diagnosis or treatment and describing medical history, or past
or present symptoms, pain, or sensations, or the inception or general character of
the cause or external source thereof insofar as reasonably pertinent to diagnosis or
treatment.” “‘The hearsay rules except statements made for the purpose of medical
diagnosis or treatment due to the inherent reliability underlying the nature of those
statements.’” Bender, 2020-Ohio-722, at ¶ 13, quoting State v. Lykins, 4th Dist.
Adams No. 18CA1079, 2019-Ohio-3316, ¶ 94 and citing State v. Muttart, 116 Ohio
St.3d 5, 2007-Ohio-5267, ¶ 39. “‘[S]tatements made for the purpose of medical
diagnosis and treatment are considered reliable because “‘facts reliable enough to
be relied on in reaching a diagnosis have sufficient trustworthiness to satisfy hearsay
concerns.’”’” Id., quoting Lykins at ¶ 95, quoting State v. Dever, 64 Ohio St.3d 401,
411 (1992), quoting McCormick, Evidence, Section 250 (4th Ed.1992), and citing
Muttart at ¶ 41.
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{¶27} On the other hand, Evid.R. 803(6), commonly referred to as the
business-records exception, exempts from the rule against hearsay:
A memorandum, report, record, or data compilation, in any form, of
acts, events, or conditions, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum,
report, record, or data compilation, all as shown by the testimony of
the custodian or other qualified witness or as provided by Rule
901(B)(10), unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness. The
term “business” as used in this paragraph includes business,
institution, association, profession, occupation, and calling of every
kind, whether or not conducted for profit.
“Generally, authenticated medical records are admissible at trial.” State v. Schultz,
8th Dist. Cuyahoga Nos. 102306 and 102307, 2015-Ohio-3909, ¶ 28, citing Hunt v.
Mayfield, 65 Ohio App.3d 349, 352 (2d Dist.1989). “Although potentially replete
with hearsay problems, medical records are admissible under the exception to the
hearsay rule for records of regularly conducted activity set forth in Evid.R. 803(6).”
Id., citing State v. Humphries, 79 Ohio App.3d 589, 595 (12th Dist.1992).
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{¶28} Because it presents more potential hearsay issues, we begin with the
out-of-court statements contained in State’s Exhibit 15. Brown does not argue that
State’s Exhibit 15 fails to satisfy the requirements of Evid.R. 803(6). (See
Appellant’s Brief at 9); (See Appellant’s Reply Brief at 3). After reviewing Norris’s
testimony concerning St. Rita’s regular procedures and the manner in which State’s
Exhibit 15 was prepared and kept, we are satisfied that even if some of the
statements contained in State’s Exhibit 15 are not admissible under Evid.R. 803(4),
State’s Exhibit 15 itself is admissible under Evid.R. 803(6). Moreover, Brown does
not appear to dispute that Fuqua’s statements to the staff at St. Rita’s about her
physical symptoms, i.e., a nosebleed and stomach pain, and the cause of those
symptoms, i.e., being thrown on the ground, hit, punched, and slammed, were made
for purposes of medical diagnosis or treatment and were reasonably pertinent to
medical diagnosis or treatment. Therefore, Brown seems to concede that these
statements are admissible under Evid.R. 803(4)—a concession with which we agree.
{¶29} However, Brown argues that the portions of Fuqua’s statements in
which she identified her attacker as her “boyfriend” or “child’s father” are not
admissible under Evid.R. 803(4) because “absent some evidence that the identity of
a perpetrator is necessary for medical purposes, any statements identifying [him] as
the assailant were not properly admitted pursuant to Evid.R. 803(4) * * *.”
(Appellant’s Reply Brief at 3). Indeed, many courts have expressed their approval
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of “the general rule ‘that a statement as to the identity of the perpetrator of a criminal
act, which is not reasonably related or necessary to medical diagnosis, is not
admissible under Evid.R. 803(4).’” State v. Dyer, 11th Dist. Lake No. 2015-L-121,
2017-Ohio-426, ¶ 50, quoting State v. Ashford, 11th Dist. Trumbull No. 99-T-0015,
2001 WL 137595, *8 (Feb. 16, 2001). See State v. McCluskey, 4th Dist. Ross No.
17CA3604, 2018-Ohio-4859, ¶ 34; State v. Kingery, 12th Dist. Fayette No.
CA2009-08-014, 2010-Ohio-1813, ¶ 34. Yet, in this case, we need not determine
how or whether this general rule applies because the identifications in State’s
Exhibit 15 are cumulative to Fuqua’s statements to Patrolman Fried in which she
identified Brown as her assailant, and we have already determined that such
statements are admissible under Evid.R. 803(2). See Dyer at ¶ 53. “Generally,
where other admissible substantive evidence mirrors improper hearsay, the error in
allowing the hearsay is deemed harmless, since it would not have changed the
outcome of the trial.” State v. Williams, 1st Dist. Hamilton No. C-160336, 2017-
Ohio-8898, ¶ 17, citing State v. Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686,
¶ 43 (6th Dist.), citing State v. Byrd, 8th Dist. Cuyahoga No. 82145, 2003-Ohio-
3958, ¶ 39. Therefore, even assuming error in the admission of the identifications
in State’s Exhibit 15, the error was harmless. See id.; Dyer at ¶ 53.
{¶30} Finally, with respect to Norris’s testimony, we conclude that the trial
court’s error, if any, in allowing the admission of the hearsay in Norris’s testimony
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was harmless. In light of the admissible substantive evidence discussed above,
including Fuqua’s statements to Patrolman Fried that Brown caused her injuries and
Fuqua’s account of the attack that she related to Patrolman Fried and to the medical
staff at St. Rita’s, we cannot conclude that the outcome of the trial would have been
different had Norris not been permitted to testify concerning Fuqua’s statements
about not going home with Brown or about seeking a civil protection order.
Furthermore, Norris’s reading of sections of State’s Exhibit 15 was merely
duplicative of the exhibit itself—much of which we have already concluded to be
admissible.
{¶31} In sum, much of the hearsay to which Brown now objects is admissible
under various exceptions to the rule against hearsay. To the extent that some of this
hearsay might be inadmissible, the exclusion of this evidence would not have
changed the outcome of Brown’s trial. As a result, we conclude that the trial court
did not commit plain error.
{¶32} Accordingly, Brown’s first assignment of error is overruled.
Assignment of Error No. II
The trial court erred in not granting defendant-appellant’s
motion for acquittal, pursuant to Crim.R. 29(A), due to
insufficient evidence presented to support a conviction.
Assignment of Error No. III
The jury’s verdict of guilty on the charge of domestic violence,
a misdemeanor of the first degree, was not supported by
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sufficient evidence and was against the manifest weight of the
evidence.
{¶33} In his second and third assignments of error, Brown argues that his
domestic-violence conviction is not supported by sufficient evidence and that it is
against the manifest weight of the evidence.
{¶34} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997). Accordingly, we address each legal concept individually.
{¶35} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997).
Consequently, “[t]he relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt.” Id. “In
deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of
fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-
4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25
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(1st Dist.). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380,
¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or
weight of the evidence.”), citing Thompkins at 386. Because the purpose of a
Crim.R. 29 motion for acquittal “is to test the sufficiency of the evidence presented
at trial,” we “review[] a denial of a Crim.R. 29 motion for judgment of acquittal
using the same standard that is used to review a sufficiency of the evidence claim.”
State v. Willis, 12th Dist. Butler No. CA2009-10-270, 2010-Ohio-4404, ¶ 9, citing
State v. Terry, 12th Dist. Fayette No. CA2001-07-012, 2002-Ohio-4378, ¶ 9, citing
State v. Williams, 74 Ohio St.3d 569, 576 (1996); State v. Lightner, 3d Dist. Hardin
No. 6-08-11, 2009-Ohio-544, ¶ 11, citing State v. Carter, 72 Ohio St.3d 545, 553
(1995).
{¶36} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses 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.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
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10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶37} In this case, Brown was convicted of domestic violence in violation of
R.C. 2919.25(A). R.C. 2919.25(A) provides that “[n]o person shall knowingly
cause or attempt to cause physical harm to a family or household member.” “A
person acts knowingly, regardless of purpose, when the person is aware that the
person’s conduct will probably cause a certain result or will probably be of a certain
nature.” R.C. 2901.22(B). “Physical harm to persons” means “any injury, illness,
or other physiological impairment, regardless of its gravity or duration.” R.C.
2901.01(A)(3).
{¶38} As used in R.C. 2919.25(A), “family or household member” includes
“a person living as a spouse * * * of the offender” who “is residing or has resided
with the offender.” R.C. 2919.25(F)(1)(a)(i). A “person living as a spouse”
includes a person who is “cohabiting with the offender” or who “otherwise has
cohabited with the offender within five years prior to the date of the alleged
commission of the act in question.” R.C. 2919.25(F)(2). “The offense of domestic
violence, as expressed in [R.C. 2919.25(F)(1)(a)] * * *, arises out of the relationship
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of the parties rather than their exact living circumstances.” State v. Williams, 79
Ohio St.3d 459 (1997), paragraph one of the syllabus.
{¶39} “The Supreme Court of Ohio has defined ‘“cohabitation” to include
two essential elements: (1) the sharing of familial or financial responsibilities and
(2) consortium.’” State v. Douglas, 3d Dist. Marion Nos. 9-18-19 and 9-18-20,
2019-Ohio-2067, ¶ 18, quoting State v. Eberly, 3d Dist. Wyandot No. 16-04-03,
2004-Ohio-3026, ¶ 21, citing Williams at 465.
Possible factors establishing shared familial or financial
responsibilities might include provisions for shelter, food, clothing,
utilities, [or] commingled assets. Factors that might establish
consortium include mutual respect, fidelity, affection, society,
cooperation, solace, comfort, aid of each other, friendship, and
conjugal relations. These factors are unique to each case and how
much weight, if any, to give to each of these factors must be decided
on a case-by-case basis by the trier of fact.
Williams at 465. “‘The burden of establishing cohabitation is not substantial.’”
State v. White, 2d Dist. Montgomery No. 25792, 2014-Ohio-1446, ¶ 14, quoting
State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, ¶ 73 (2d Dist.2004).
{¶40} In addition to the evidence referenced in our analysis of Brown’s first
assignment of error, the following evidence was presented at Brown’s trial.
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Patrolman Fried was the State’s first witness. In addition to testifying about Fuqua’s
statements, Patrolman Fried testified that after calling an ambulance to tend to
Fuqua’s injuries, the focus of the investigation shifted to trying to locate Brown.
(Dec. 17-18, 2018 Tr. at 36). He stated that he learned from Fuqua that the alleged
incident had taken place in an apartment on Brower Road in Lima, Ohio and that
two patrol officers were directed to go to the apartment “to check and see if [Brown]
* * * returned and then also to * * * look at potential evidence because [Fuqua]
stated there was blood all over the apartment.” (Id. at 39). Patrolman Fried testified
that he eventually drove to the apartment to assist in the investigation, at which time
he took a picture of a dent in a wall of the apartment allegedly caused when Brown
threw Fuqua’s cell phone against the wall. (Id. at 42); (State’s Ex. 6).
{¶41} Patrolman Fried also identified State’s Exhibit 4 as a photograph he
took of Fuqua on the day on the incident. (Dec. 17-18, 2018 Tr. at 41-42); (State’s
Ex. 4). Patrolman Fried testified that State’s Exhibit 4 accurately depicted the way
that Fuqua looked on December 16, 2017. (Dec. 17-18, 2018 Tr. at 42). In State’s
Exhibit 4, dried and drying blood is visible around Fuqua’s mouth and on her lips
and chin. (State’s Ex. 4).
{¶42} On cross-examination, Patrolman Fried testified that he did not
personally witness any violence between Fuqua and Brown and that Fuqua never
indicated that Brown lived with her in the apartment on Brower Road. (Dec. 17-18,
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2018 Tr. at 44-45). Patrolman Fried further testified that Fuqua spoke to him a few
months after the alleged incident and that she gave him a letter “stating that the
report [she made] was false.” (Id. at 46). Patrolman Fried identified Defendant’s
Exhibit A as a copy of the letter Fuqua gave him. (Id.); (Defendant’s Ex. A). In the
letter, Fuqua writes, “A report was made by Officer Nathan Fried and this report
was false. It states that ‘I said I was thrown to the ground on my stomach then
punched in the back and in the face.’ That’s not true. I was never punched. I made
it clear that I was never hit with a closed fist.” (Defendant’s Ex. A). Patrolman
Fried characterized Fuqua’s letter as an attempt to recant her previous statements.
(Dec. 17-18, 2018 Tr. at 47).
{¶43} Next, Fuqua was called as the court’s witness pursuant to Evid.R.
614(A). She was first examined by the State. She testified that on December 16,
2017, she was living in the apartment on Brower Road and that Brown was at her
apartment that morning. (Id. at 49-50). She stated that Brown spent the night at her
apartment, that she woke up to Brown telling her that she received a call on her cell
phone from a restricted number, and that “he was talking to the person that called
[her using a] blocked [number].” (Id. at 67-68). Fuqua testified that Brown “got
mad and threw [her cell phone] against the wall.” (Id. at 68). She stated that the
phone broke when it hit the wall and that it made “a little slit” in the wall. (Id.).
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{¶44} Fuqua testified that after Brown threw her phone, she “started going
crazy on him,” hit him with her fists, and pushed him. (Id. at 70). She stated that
Brown “tried to get [her] off of him and then [her] nose * * * started bleeding,” so
she searched the apartment for some tissues or a rag to stem the bleeding. (Id.).
Fuqua testified that she then found her phone and that once she found her phone,
Brown tried to leave the apartment. (Id. at 71). She stated that she followed him in
her car before running her car onto the curb. (Id.).
{¶45} Fuqua testified that when she first started seeing Brown in 2016, he
was living in a house on Scott Street and she was living with her mother on Second
Street. (Dec. 17-18, 2018 Tr. at 54-55). She stated that she initially spent some
time with Brown but that due to her job at McDonald’s, she did “[n]ot really” visit
him often. (Id. at 54). Fuqua testified that Brown did not spend any time at her
mother’s house with her and that she would go to his residence to see him. (Id. at
55). Fuqua could not recall telling police officers in 2016 that she lived at Brown’s
house on Scott Street, and she insisted that she was living with her mother. (Id. at
56).
{¶46} Fuqua stated that Brown is the father of her daughter, who was born
in June 2018. (Id. at 57). She testified that until December 16, 2017, she was still
seeing Brown. (Id. at 58). During their relationship, Brown would help out with
Fuqua’s son, and Fuqua testified that Brown was good with her son and “bought
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him shoes like it was his child.” (Id. at 58). Fuqua testified that Brown was “kind
of” a father figure to her son. (Id. at 85). She also testified that Brown would “help
out,” buy some food and clothing, and help out with her expenses “[if] [she] asked
him.” (Id. at 58-59). She denied ever buying anything for Brown and stated that if
“[she] asked him, like [she] needed help, he would help. [It was] the same way [her]
family would.” (Id. at 85). However, Fuqua declined to characterize Brown’s
relationship with her and her child as a “little mini family.” (Id. at 58).
{¶47} Fuqua stated that during their relationship, she and Brown liked each
other “[f]or the most part” and respected each other. (Id. at 59). She testified that
they would help each other out with their problems, and she referred to Brown as
her “friend.” (Id.). She also acknowledged that her relationship with Brown was a
sexual relationship and that she became pregnant with Brown’s child around
September 2017. (Id. at 59-60).
{¶48} Fuqua stated that she remembered talking to Detective Steven
Stechschulte (“Detective Stechschulte”) on December 16, 2017 but that she could
not remember the entire conversation with him. (Dec. 17-18, 2018 Tr. at 53). Fuqua
admitted that she told Detective Stechschulte that Brown hit her when she tried to
take her phone back from him, but she testified that Brown did not do that and she
only said that because she was mad at Brown. (Id. at 71). She also stated that she
did not remember telling Patrolman Fried that Brown started hitting her after she
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tried to get her phone or that she said in her written statement that Brown got mad
about her phone and started hitting her. (Id. at 72). She eventually admitted that
she said and wrote those things but insisted that “none of that is true * * * [and]
[t]hat was [her] speaking out of anger.” (Id. at 73). She also acknowledged that she
said in her statement that Brown slammed her and hit her, but again denied that
Brown actually committed those acts. (Id. at 73-74). She testified that she could
not remember telling medical personnel at St. Rita’s that Brown hit her or slammed
her. (Id. at 74).
{¶49} Fuqua stated that everything she told Patrolman Fried and Detective
Stechschulte about being struck or slammed to the ground by Brown was false and
that she said those things out of anger at Brown. (Id. at 74-75). She testified that
she “came up there multiple times trying to change it like a month after and nobody
would change nothing that I said. I said everything out of anger. Nobody would
change nothing that I said.” (Id. at 75). She explained that she was angry and trying
to make Brown look bad. (Id. at 78). When talking about Defendant’s Exhibit A,
she testified that the letter was meant to explain that Brown never threw her to the
ground, punched her in the face, or punched her in the back. (Id. at 76). When
asked to explain how her nose was bloodied, she stated that it happened when Brown
“pushed” her face to get her off of him while she was “going crazy on him.” (Id. at
76-77). Fuqua stated that the cause of the nosebleed was not a strike with an open
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hand. (Id. at 76). Finally, she stated that “[m]ost of the stuff [she] said was lies,”
including statements she made to medical personnel, and that Brown never hit her.
(Id. at 82).
{¶50} When examined by Brown’s trial counsel, Fuqua stated that she was
“furious” with Brown for breaking her phone and angry that her car had been
damaged during her pursuit of Brown. (Id. at 85). She reiterated that she was just
making things up when she spoke to police officers and medical personnel. (Id. at
86). She also testified that she received the bloody nose when Brown pushed against
her face with an open palm to get her off of him. (Id.). She reiterated that Brown
never beat her or threw her to the ground, and she pointed to the fact that she did
not have any bruises. (Id. at 96-97). Fuqua stated that the only thing that happened
was the bloody nose, and she said she often experiences bloody noses. (Id. at 97).
{¶51} She testified that she was not living with Brown on December 16,
2017. (Dec. 17-18, 2018 Tr. at 88-89). Fuqua stated that although she and Brown
would occasionally spend the night at each other’s houses during their relationship,
they never lived together. (Id. at 89-90). She testified that she and Brown did “[n]ot
really” share financial responsibilities. (Id. at 95). She agreed with Brown’s trial
counsel’s assessment that she would occasionally ask Brown to lend her some
money when she “found [herself] in a bind.” (Id.). She stated that Brown would
usually give her money if she asked but that they were not splitting their bills. (Id.).
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According to Fuqua, there was no regular payment from Brown to her to cover
expenses. (Id.).
{¶52} Fuqua testified that she went “almost every day” to the police station
to try to change her report of what happened to her on December 16, 2017 but that
she was largely unsuccessful. (Id. at 92-93). She also referenced Defendant’s
Exhibit B, a letter addressed to a judge of the Allen County Court of Common Pleas,
in which she wrote that “some of the things [she] said to the police was false and
exaggerated and [she] tried to notify the police numerous times before the case got
any further.” (Id. at 94). Further, Fuqua writes in Defendant’s Exhibit B that she
“said those things out of anger” and that Brown “is paying for something he didn’t
do.” (Defendant’s Ex. B).
{¶53} Following Fuqua’s testimony, Patrolman Chad Kunkleman
(“Patrolman Kunkleman”) of the Lima Police Department testified that on the
morning of December 16, 2017 he responded to Patrolman Fried’s call for assistance
with the investigation into Fuqua’s traffic accident. (Dec. 17-18, 2018 Tr. at 106-
107). He stated that when he arrived at the scene, Patrolman Fried asked him to
drive to the Brower Road apartments to take pictures. (Id. at 107). Patrolman
Kunkleman testified that when he arrived at Fuqua’s apartment, he opened the door
and observed blood on the floor. (Id. at 108). According to Patrolman Kunkleman,
there was blood right inside the entry door, “blood all through the kitchen,” “blood
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* * * going all the way down the hallway and into the bathroom,” and “[b]lood on
the floor inside the bathroom.” (Id. at 109-111). He identified State’s Exhibits 7
through 14 as photographs that accurately depicted the apartment as he found it on
December 16, 2017. (Id. at 111); (State’s Exs. 7, 8, 9, 10, 11, 12, 13, 14).
{¶54} On cross-examination, Patrolman Kunkleman testified that the blood
he observed inside the apartment “could be” consistent with a bloody nose and that
he did not observe any violence between Fuqua and Brown. (Dec. 17-18, 2018 Tr.
at 112). He also stated that he never spoke to Fuqua or Brown. (Id.).
{¶55} Norris testified next. On cross-examination, Norris was questioned
about State’s Exhibit 15. Norris acknowledged that one statement in Fuqua’s
medical record, in which she stated that her stomach was starting to hurt,
contradicted her later denial of any abdominal or pelvic pain. (Id. at 129). However,
Norris stated that such contradictions are “not uncommon at all with patients” and
that patients will “tell a nurse one thing and tell a physician another.” (Id.). On
redirect examination, Norris stated that it was possible that Fuqua’s abdominal pain
had subsided by the time she spoke to the physician. (Id. at 130).
{¶56} The State’s final witness was Detective Stechschulte. Detective
Stechschulte testified that he spoke with Fuqua at St. Rita’s, where he recorded their
conversation. (Id. at 134). He testified that he observed Fuqua’s trial testimony and
that Fuqua’s trial testimony was in contradiction “on multiple points” to the
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statements she made to him at St. Rita’s. (Id.). At that point, a video recording of
Fuqua’s interview with Detective Stechschulte was played for the jury, without
objection, for the purposes of impeaching Fuqua’s trial testimony. (Id. at 135). The
video contradicts much of Fuqua’s in-court testimony. After the video was played,
the trial court instructed the jury to consider the video for impeachment purposes
only. (Id. at 137).
{¶57} Detective Stechschulte testified that during the course of his
investigation, he “receive[d] information that indicated that she stayed there from
somewhere around July of 2016 all the way up until October of 2017 that she had
been living down there. [He] also went through [their] in-house system to try to
locate reports that would corroborate that claim that she had been staying down there
at that time.” (Dec. 17-18, 2018 Tr. at 138). From context, it appears that Detective
Stechschulte was testifying that records indicated that Fuqua had been residing at
Brown’s residence. (See id.). He stated that he was able to locate a couple of
complaints that listed Fuqua’s address as 633 South Scott Street. (Id.). He testified
that these reports were made at various times of the day. (Id. at 138-139).
{¶58} On cross-examination, Detective Stechschulte explained that his
examination of police records indicated that Fuqua had lived at the Scott Street
address for a year and a couple months. (Id. at 149-150). He stated that Fuqua had
given her address as 633 South Scott Street on at least two occasions and that
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although the police did not thoroughly verify whether she was actually living there,
some evidence was consistent with her living at that address. (Id. at 150). Finally,
he indicated that one of the calls came into the police station at approximately 1:30
a.m. and that he believed that indicated that she was living there. (Id.).
{¶59} After the State rested its case, Brown offered the testimony of two
witnesses. Brown’s first witness, Dianiqua Polojac (“Polojac”), who is Fuqua’s first
cousin, testified that she has a close relationship with Fuqua and that they see each
other on a regular basis. (Id. at 164). She testified that she was aware of where
Fuqua had been living in the previous years, and she stated that Fuqua had lived in
the Brower Road apartments, on Wayne Street, and with her mother on Second
Street. (Id.). She stated that Fuqua lived with her mother before moving to the
Brower Road apartments and that she lived with her mother for approximately ten
years before moving to the Brower Road apartments. (Id. at 165). Polojac testified
that Fuqua never lived on Scott Street. (Id. at 165). She stated that Fuqua would
occasionally stay nights at her house or at Brown’s house but “she never lived
anywhere else but her mom’s and her own place.” (Id. at 166). Polojac stated that,
as far as she knew, Fuqua never lived with Brown. (Id.). She testified that she had
been to Brown’s house and that it did not look like Fuqua was living there because
“[s]he didn’t have any clothes or anything there. When she left she went home to
her mom’s to change clothes and get the things she needed.” (Id.).
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{¶60} Brown’s final witness was Danetta Robinson (“Robinson”), Fuqua’s
cousin and Polojac’s sister. (Dec. 17-18, 2018 Tr. at 174). She testified that over
the previous years, Fuqua lived in the Brower Road apartments and with her mother
on Second Street. (Id. at 174-175). She stated that, to her knowledge, Fuqua never
lived with Brown. (Id. at 175). She stated that based on her visits to the Brower
Road apartments and to Fuqua’s mother’s house, Fuqua definitely lived in both of
those residences. (Id. at 175-176). Robinson testified that she had been to Brown’s
house, and she said that although Fuqua would be at Brown’s house, “she wasn’t
living there.” (Id. at 176). She did not see any signs that Fuqua was living at
Brown’s house. (Id.).
{¶61} On cross-examination, Robinson testified that Brown lived on Scott
Street for many years, including the years immediately preceding December 16,
2017. (Id. at 178). She stated that she was often at Brown’s house on Scott Street
and that Fuqua was also at Brown’s house “[m]ost of the time” that she would be
visiting. (Id. at 179). She remarked that it was “[p]robably not” uncommon for
Fuqua to stay the night at Brown’s house. Robinson testified that although she had
been to Fuqua’s Brower Road apartment on many occasions, she never saw Brown
at Fuqua’s apartment. (Id.). She could not say whether Brown ever stayed the night
at Fuqua’s apartment. (Id.).
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{¶62} Brown advances three separate arguments to support his claim that the
foregoing evidence is insufficient to sustain his conviction and that this evidence
weighs against his conviction. First, he argues that his conviction is not supported
by sufficient evidence because the only evidence supporting that he assaulted Fuqua
is hearsay found in Patrolman Fried’s testimony, Norris’s testimony, and State’s
Exhibit 15, all of which he insists is inadmissible hearsay. (Appellant’s Brief at 12-
14, 16). Brown claims that, in light of Fuqua’s testimony that he did not assault her
on December 16, 2017 and the alleged inadmissibility of Patrolman Fried’s and
Norris’s testimonies and State’s Exhibit 15, the State did not present evidence
sufficient to prove every element of the offense of domestic violence. (Id. at 13).
However, we have already concluded that most of Fuqua’s statements contained in
Patrolman Fried’s and Norris’s testimonies and in State’s Exhibit 15, specifically
those regarding the details of the assault and Fuqua’s identification of Brown as her
assailant, constitute admissible hearsay. Therefore, to the extent that Brown argues
that his conviction is not supported by sufficient evidence because it is based on
inadmissible hearsay, we reject that argument.
{¶63} Next, Brown argues that the jury clearly lost its way when it
determined that Fuqua was a “family or household member” as defined by R.C.
2919.25(F)(1). (Appellant’s Brief at 15). He notes that both of his witnesses
“testified that Ms. Fuqua did not reside with [him], only that [Fuqua] would stay
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there on occasion.” (Id.). Brown also observes that Fuqua “herself testified that she
did not reside with [him], [that] they did not share household expenses or otherwise,
but he would occasionally help her out if she asked him.” (Id.). Stated differently,
Brown argues that Fuqua was not a “person living as a spouse,” and therefore not a
“family or household member,” because the evidence does not demonstrate that he
and Fuqua were cohabiting or had cohabited.
{¶64} Although somewhat of a close question, we conclude that the State
presented evidence sufficient to prove beyond a reasonable doubt that Fuqua and
Brown were or had been cohabiting and that the evidence weighs in favor of this
conclusion. First, the evidence clearly establishes consortium. Fuqua testified that
her relationship with Brown was sexual in nature and that they shared a child
together. Furthermore, Fuqua testified that during their relationship, she and Brown
liked each other, respected each other, and would help each other with their
problems. She also referred to Brown as her friend. This evidence demonstrates
that Brown and Fuqua had conjugal relations and that their relationship involved
mutual respect, friendship, and aid of each other. See Williams, 79 Ohio St.3d at
465. Thus, there is ample evidence of consortium. See id.
{¶65} With respect to whether Brown and Fuqua shared familial or financial
responsibilities, most, if not all, of the evidence relating to shared responsibilities
came from Fuqua’s testimony. Fuqua testified that Brown would usually provide
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her with money and help her out with expenses if she asked him, that he bought
food and clothing for her and her son, and that he would help her out “the same way
[her] family would.” (Dec. 17-18, 2018 Tr. at 85). However, Fuqua denied that she
ever bought anything for Brown, and she testified that she and Brown did “[n]ot
really” share financial responsibilities, that they did not split their bills, and that
Brown did not provide her with regular payments to cover expenses. (Id. at 95).
{¶66} Admittedly, the financial arrangement between Brown and Fuqua was
not typical of cohabiting partners. In many cases where a couple was found to have
been cohabiting, the couple either commingled their assets or both partners
contributed to paying for things such as housing, food, and utilities. Yet, this court
and others have found shared familial or financial responsibilities in circumstances
where one partner was entirely responsible for supporting the other or where
financial assistance flowed solely from one partner to the other without
reciprocation. State v. Edwards, 9th Dist. Summit No. 25137, 2010-Ohio-6496, ¶
14-15, 19, 26 (concluding that the trial court’s determination that the defendant and
victim cohabited was not against the weight of the evidence where the victim gave
the defendant money and bought things for the defendant’s children but the
defendant did not assist with paying bills or otherwise provide financial support to
the victim); State v. Pash, 3d Dist. Mercer No. 10-09-13, 2010-Ohio-1267, ¶ 11
(concluding that a couple shared familial or financial responsibilities where the
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victim fully supported the defendant during the three-month period that they lived
together and paid for all household expenses in addition to the defendant’s personal
expenses); State v. Boldin, 11th Dist. Geauga No. 2007-G-2808, 2008-Ohio-6408,
¶ 52 (where the defendant testified that the victim paid for groceries and utilities,
did all of the household chores, and handled the finances, there was sufficient
evidence that the couple shared familial or financial responsibilities). But see State
v. Cobb, 153 Ohio App.3d 541, 2003-Ohio-3821, ¶ 5-6 (1st Dist.) (where the
defendant provided the victim with one month’s rent and, on occasion, gave her
money for her telephone bill, groceries, and license plates, there was “[a]t most, * *
* a sporadic provision of money” insufficient to show a sharing of familial or
financial responsibilities). Furthermore, nothing in Williams mandates that the
provisions for food, shelter, utilities, clothing, or other expenses be made frequently
or at regular intervals. While a one-time payment or a few random, isolated
payments from one partner to the other might not suffice to show that the couple
shared familial or financial responsibilities, in situations where one partner
consistently provides the other partner with money for necessaries at the other
partner’s request, we see no reason why such an arrangement cannot qualify as the
sharing of familial or financial responsibilities.
{¶67} With this in mind, we conclude both that there was sufficient evidence
presented that Brown and Fuqua shared familial or financial responsibilities and that
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the evidence weighs in favor of this conclusion. Although Fuqua’s testimony
establishes that she and Brown did not commingle assets or share expenses, that she
did not buy anything for Brown, and that Brown did not give her money in periodic
installments, Fuqua’s testimony does demonstrate that whenever she asked Brown
for assistance, Brown would typically oblige. According to Fuqua, the money she
received from Brown would then be directed toward paying for her basic needs and
her son’s basic needs. Apart from the financial assistance Brown provided to Fuqua,
the record also reflects that Brown would “help out” with Fuqua’s son and that
Brown was something of a father figure to the boy. Therefore, while this case
approaches the limit of the evidence that will suffice to show that a couple shared
familial or financial responsibilities, we conclude that the evidence presented was
nonetheless adequate to prove beyond a reasonable doubt that Brown and Fuqua
shared familial or financial responsibilities. Moreover, as Fuqua’s account of
Brown’s contributions was not contradicted by other evidence, we also conclude
that the evidence weighs in favor of a finding that Brown and Fuqua shared familial
or financial responsibilities.
{¶68} To summarize, sufficient evidence was presented to prove beyond a
reasonable doubt that Brown and Fuqua shared familial or financial responsibilities
and had consortium. Furthermore, the evidence weighs in favor of finding that
Brown and Fuqua shared familial or financial responsibilities and had consortium.
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Accordingly, the evidence establishes that Brown and Fuqua were cohabiting or had
been cohabiting within the relevant statutory time period. Although the bulk of the
evidence supports that Brown and Fuqua maintained separate residences, the
Supreme Court of Ohio has interpreted R.C. 2919.25 “broadly to include those who
did not live with the offender but who also deserved protection under the statute
based on their relationship with the offender.” State v. McGlothan, 138 Ohio St.3d
146, 2014-Ohio-85, ¶ 14, citing Williams, 79 Ohio St.3d at 464. Given the evidence
of Brown and Fuqua’s cohabitation, Fuqua is a person deserving of R.C. 2919.25’s
protections. Therefore, we conclude that there is sufficient evidence to support a
finding that Fuqua is Brown’s “family or household member” and that the jury did
not clearly lose its way by reaching such a finding.
{¶69} Finally, we consider Brown’s third argument for overturning his
conviction, in which he argues that the jury clearly lost its way when it disregarded
Fuqua’s trial testimony in favor of Fuqua’s out-of-court statements. Brown argues
that Fuqua’s in-court repudiation of her earlier statements in which she claimed that
he attacked her and her recantation letters outweigh any other evidence suggesting
that he assaulted her. (See Appellant’s Reply Brief at 4-5). Moreover, Brown
claims that the State improperly impeached Fuqua’s testimony with the video
recording of her interview with Detective Stechschulte. (Id. at 6). Brown maintains
that “[i]t is apparent that the State believed that an appropriate way to have otherwise
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inadmissible evidence admitted * * * was to have the Court call [Fuqua] because
the truth was inconsistent with the State’s position.” (Id.). He argues that the State’s
approach to Fuqua’s testimony was “essentially just an attempt at circumventing
Evid.R. 607[,] * * * not proper pursuant to Evid.R. 613,” and resulted in the
erroneous admission of the recorded interview as substantive evidence of his guilt.
(Id. at 6, 8-9).
{¶70} Brown’s arguments are without merit. First, with regard to the State’s
use of the recorded interview, we question whether it was appropriate for the trial
court to admit the video recording for purposes of impeaching Fuqua’s testimony.
In her testimony, Fuqua admitted that she had previously made inconsistent
statements to Detective Stechschulte, and she attempted to explain why she made
the prior inconsistent statements. Fuqua’s acknowledgement of her prior
inconsistent statements casts some doubt on the admissibility of the recorded
interview for impeachment purposes, and at the very least, her recognition of the
prior statements likely made the admission of the recorded interview unnecessary.
See State v. Spaulding, 6th Dist. Sandusky No. S-16-028, 2017-Ohio-7993, ¶ 16 (“If
a witness admits making a conflicting statement, there is no need for extrinsic
evidence.”), citing State v. Adams, 9th Dist. Lorain No. 15CA010868, 2017-Ohio-
1178, ¶ 18; State v. Ferguson, 10th Dist. Franklin No. 12AP-1003, 2013-Ohio-4798,
¶ 15 (“If a witness admits having made the contradictory statements, however, then
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extrinsic evidence of the prior inconsistent statement is not admissible.”), citing In
re M.E.G., 10th Dist. Franklin No. 06AP-1256, 2007-Ohio-4308 and State v. Hill,
2d Dist. Montgomery No. 20028, 2004-Ohio-2048, ¶ 40.
{¶71} Nevertheless, we do not believe that the admission of the recorded
interview for purposes of impeachment altered the balance of the evidence against
Brown. The record reflects that it was the State, rather than Brown’s trial counsel,
that asked the trial court to issue an instruction to the jury concerning the recorded
interview. (Dec. 17-18, 2018 Tr. at 136). In response, the trial court instructed the
jury that the recorded interview was not to be considered “for the truth of what was
said during that interview” and that it was offered only for purposes of determining
whether Fuqua’s trial testimony was credible. (Id. at 137). Because “[t]he jury is
presumed to follow the trial court’s instructions” and there is no indication in the
record that the jury disregarded this instruction, we have little concern that the jury
considered the recorded interview as substantive evidence against Brown. State v.
Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 103, citing State v. Loza, 71 Ohio
St.3d 61, 75 (1994). Furthermore, to the extent that the jury might have improperly
considered the recorded interview as substantive evidence, we note that much of
what Fuqua said in the interview had already been presented to the jury through
other admissible evidence.
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{¶72} Lastly, we consider whether the jury clearly lost its way by relying on
Fuqua’s out-of-court statements to find that Brown committed the offense of
domestic violence instead of acquitting Brown on the basis of Fuqua’s trial
testimony that Brown did not assault her. After reviewing the record, we cannot
conclude that the jury clearly lost its way by discounting Fuqua’s trial testimony
about the events of the morning of December 16, 2017. At trial, Fuqua
acknowledged that she told investigators and medical professionals that Brown
assaulted her but she claimed that she had lied to all of these individuals because
she was angry with Brown for damaging her cell phone. Furthermore, Fuqua
testified concerning all of the efforts she undertook to recant her allegations against
Brown. Thus, the jury was well aware of Fuqua’s explanations for her prior
statements accusing Brown of domestic violence and her many efforts to retract her
accusations. The jury was also aware that Fuqua was insisting on a different version
of the events of December 16, 2017—a version in which Brown never hit her or
threw her to the ground and in which her nose started bleeding only after she went
after Brown for throwing her cell phone and Brown pressed against her face in an
effort to get her off of him. Yet, in finding that Brown knowingly caused or
attempted to cause Fuqua physical harm, the jury evidently found that Fuqua’s in-
court account of the events of December 16, 2017 was not believable. “This court
will not substitute its judgment for that of the trier of facts on the issue of witness
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credibility unless it is patently apparent that the trier of fact lost its way in arriving
at its verdict.” State v. Griffith, 2d Dist. Montgomery No. 26451, 2015-Ohio-4112,
¶ 28, citing State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510(Oct. 24, 1997). On this record, specifically in light of Fuqua’s multiple prior
statements that Brown assaulted her and the fact that these statements were
consistent with each other, it is not “patently apparent” that the jury lost its way by
disregarding Fuqua’s in-court account.
{¶73} When Fuqua’s trial testimony is discounted, the evidence weighs
decisively in favor of a finding that Brown committed the offense of domestic
violence. Fuqua’s out-of-court statements to Patrolman Fried and to medical
personnel at St. Rita’s establish that Fuqua was physically assaulted, that Brown
was her assailant, and that Brown knowingly caused her physical harm. In addition,
numerous photographs depict blood on Fuqua’s face and spread throughout her
apartment; these photographs provide further support for a finding that Fuqua
sustained physical harm. Moreover, as discussed above, the evidence weighs in
favor of a finding that Fuqua is Brown’s “family or household member.”
{¶74} Therefore, we conclude that the State presented sufficient evidence to
support Brown’s domestic-violence conviction and that the trial court did not err by
denying Brown’s Crim.R. 29 motion. Furthermore, having weighed the evidence
and all reasonable inferences, and considering the credibility of the witnesses, we
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cannot conclude that the jury clearly lost its way and created such a manifest
miscarriage of justice that Brown’s domestic-violence conviction must be reversed.
{¶75} Brown’s second and third assignments of error are overruled.
Assignment of Error No. IV
Defendant-appellant was denied the right to effective assistance
of counsel in violation of the Sixth Amendment to the United
States Constitution and Article I, Section 10 of the Ohio
Constitution.
{¶76} In his fourth assignment of error, Brown argues that he was denied his
right to effective assistance of counsel as provided for by the United States
Constitution and by the Ohio Constitution. Specifically, Brown argues that his trial
counsel was ineffective for failing to object to the admission of “several
inadmissible hearsay statements in the testimony of every witness presented during
the State’s case-in-chief, including Patrolman Fried, Ronda Norris, and Detective
Stechschulte.” (Appellant’s Brief at 18).
{¶77} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” State
v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A
defendant asserting a claim of ineffective assistance of counsel must establish: (1)
the counsel’s performance was deficient or unreasonable under the circumstances;
and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio
St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
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2052 (1984). In order to show counsel’s conduct was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
prompted by reasonable professional judgment. Strickland at 689. Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute
ineffective assistance. State v. Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the
errors complained of must amount to a substantial violation of counsel’s essential
duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989), citing
State v. Lytle, 48 Ohio St.2d 391, 396 (1976).
{¶78} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id., quoting
Strickland at 694.
{¶79} After reviewing the record, we conclude that Brown has failed to
establish that he received ineffective assistance of counsel. First, with respect to the
hearsay statements contained in Patrolman Fried’s testimony, we previously
concluded that such statements are admissible as excited utterances under Evid.R.
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803(2). “‘A defense counsel’s failure to object is not ineffective assistance of
counsel if the evidence is admissible.’ As the Supreme Court of Ohio stated,
‘“Counsel is certainly not deficient for failing to raise a meritless issue.”’” State v.
Carter, 8th Dist. Cuyahoga No. 104874, 2018-Ohio-2238, ¶ 47, quoting State v.
Jackson, 8th Dist. Cuyahoga No. 86105, 2006-Ohio-174, ¶ 87, quoting State v.
Taylor, 78 Ohio St.3d 15, 31 (1997). Consequently, Brown’s trial counsel’s
handling of Patrolman Fried’s testimony about Fuqua’s statements was neither
deficient nor unreasonable.
{¶80} Moreover, even assuming that Brown’s trial counsel performed
deficiently by failing to object to the hearsay in Norris’s testimony, Brown has not
demonstrated that he was prejudiced by his trial counsel’s performance. As
discussed under Brown’s first assignment of error, the most incriminating aspect of
Norris’s testimony was likely when she read from Fuqua’s medical records. Given
that Fuqua’s medical records are admissible and that Fuqua’s statements within
those records are either admissible under Evid.R. 803(4) or also covered by other
admissible evidence, there is not a reasonable probability that the outcome of
Brown’s trial would have been different had his trial counsel objected to this part of
Norris’s testimony. In addition, Brown has offered no argument regarding how his
trial counsel’s failure to object to the other hearsay in Norris’s testimony, which
were Fuqua’s statements about not going back home to Brown and about going to
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the prosecutor’s office to discuss getting a protection order, prejudiced him. In light
of the admissible evidence identifying Brown as the perpetrator of an assault against
Fuqua, we do not believe that an objection to, and the exclusion of, these out-of-
court statements would have materially affected the outcome of Brown’s trial.
{¶81} Finally, although Detective Stechschulte’s testimony was generally
not concerned with Fuqua’s out-of-court statements, it did contain some statements
that might be described as hearsay. Detective Stechschulte testified that he was on
call on December 16, 2017 when he was “alerted * * * that day shift was out on call
with [Fuqua] where she alleged that her soon-to-be child’s father had assaulted her.”
(Dec. 17-18, 2018 Tr. at 133). Additionally, Detective Stechschulte stated that he
was in contact with Fuqua while Brown was at large and that she would tell him that
Brown “was either in Akron, headed to Akron, he was at his sister’s, what kind of
car he was in.” (Id. at 141). He also testified that during his interview with Fuqua,
he asked her whether she was struck with a closed fist and she responded that “she
didn’t know; all she [knew was] that he hit her several times and made her nose
bleed.” (Id.).
{¶82} Brown’s trial counsel’s failure to object to these statements does not
constitute ineffective assistance of counsel. Concerning Detective Stechschulte’s
testimony about being alerted that Fuqua had alleged that Brown assaulted her, it is
apparent from context that the statement was not offered for the truth of the matter
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asserted. The statement was elicited during a line of questioning in which the State
sought to establish when Detective Stechschulte first became involved in the case
and what investigatory steps he took after receiving the report of alleged domestic
violence. (See id. at 133-134). “It is well-established that, where statements are
offered into evidence to explain an officer’s conduct during the course of
investigating a crime, such statements are generally not hearsay.” State v.
Humphrey, 10th Dist. Franklin No. 07AP-837, 2008-Ohio-6302, ¶ 11, citing State
v. Thomas, 61 Ohio St.2d 223, 232 (1980). Regardless, even if this statement was
improperly admitted, the subject matter of this testimony was covered by other
admissible evidence, and thus, there is not a reasonable probability that the outcome
of Brown’s trial would have been different if his trial counsel had objected.
Likewise, Brown has failed to show that he was prejudiced by his trial counsel’s
failure to object to the other potential hearsay contained in Detective Stechschulte’s
testimony. Some of the information contained in these other out-of-court statements
was introduced at Brown’s trial through other admissible evidence. Furthermore,
to the extent that these out-of-court statements concerned matters not addressed by
other admissible evidence, the admission of this evidence did not likely change the
outcome of Brown’s trial given the admissible hearsay supporting that Brown
assaulted Fuqua and the questionable reliability of Fuqua’s trial testimony in which
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she denied that Brown attacked her. As a result, Brown has failed to demonstrate
that he received ineffective assistance of counsel.
{¶83} Brown’s fourth assignment of error is overruled.
Assignment of Error No. V
The trial court erred in sentencing by not granting defendant-
appellant credit for time served pursuant to R.C. § 2949.08.
{¶84} In his fifth assignment of error, Brown argues that the trial court erred
by not granting him jail-time credit. Brown argues that because his jail sentence
was imposed as a separate sanction to his community control, rather than as a
condition of his community control, the trial court should have awarded him jail-
time credit. (Appellant’s Brief at 20-21). In its brief, the State indicates that it
agrees with Brown that his jail sentence was not imposed as a condition of his
community control and suggests that this case “be remanded to the trial court in
order for [Brown] to be resentenced in conformity with R.C. 2949.08(C)(1) and
awarded proper jail-time credit.” (Appellee’s Brief at 27, 29-30). Given that our
review of the record coincides with the agreement between the parties as to the issue
of jail-time credit, this case is remanded to the trial court so that it may calculate the
number of days of jail-time credit, if any, to which Brown is entitled and award any
such days to Brown.
{¶85} Brown’s fifth assignment of error is sustained.
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{¶86} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued with respect to his first, second, third, and fourth
assignments of error, we affirm the judgment of the trial court as to those matters.
However, having found error prejudicial to the appellant herein in the particulars
assigned and argued with respect to his fifth assignment of error, we reverse the
judgment of the trial court as to that matter and remand to the trial court for further
proceedings consistent with this opinion.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
SHAW, P.J. and ZIMMERMAN, J., concur.
/jlr
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