State v. Carver , 2022 Ohio 3223 ( 2022 )

[Cite as State v. Carver, 2022-Ohio-3223.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
: Case No. 21CA3943
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
MARY BETH ANN CARVER, :
:
Defendant-Appellant. :
APPEARANCES:
Valerie M. Webb, The Law Office of Valerie M. Webb, LLC, Portsmouth, Ohio,
for Appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Assistant
Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
Smith, P.J.
{¶1} Mary Beth Ann Carver appeals the March 12, 2021 Judgment Entry of
the Scioto County Court of Common Pleas. Carver was convicted by a jury of
several counts of endangering children, one count of felonious assault, and one
count of obstructing official business. The trial court imposed a minimum prison
term of 14 years to an indefinite maximum prison term of up to 18 years. On
appeal, Carver’s sole assignment of error asserts that her trial counsel rendered
ineffective assistance during the evidentiary portion of her trial. Based on our
Scioto App. No. 21CA3943 2
review of the record, we find Carver’s claim of ineffective assistance to be without
merit as we do not find her counsel rendered deficient performance. Accordingly,
we overrule the sole assignment of error and hereby affirm the judgment of the
trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} Carver is the natural mother of three minor children subject of these
proceedings, A.C.G., (born in 2019); M.C.G., (born in 2018); and I.C.G., (born in
2016). On August 28, 2020, Carver was indicted by the Scioto County Grand Jury
on six counts which included endangering children, felonious assault, and
obstructing official business. The indictment stemmed from an incident occurring
on August 15, 2020 on Greenbriar Road. On that date, Carver, who was covered in
blood and behaving erratically, was observed walking down the road with three
nearly naked children, also covered in blood. Counts One through Four alleged
Carver endangered children resulting in serious physical harm. Count Five alleged
felonious assault. Count Six alleged obstructing official business, creating a risk of
physical harm to her three minor children, emergency medical squad (EMS)
personnel, and law enforcement officers.1 The circumstances surrounding these
allegations are set forth below.
1
The State of Ohio later moved to amend the indictment in order to correct errors in properly identifying the names
and dates of birth of the three children named as victims. The trial court granted the motion.
Scioto App. No. 21CA3943 3
{¶3} On August 31, 2020, Carver pled not guilty at her arraignment. Carver’s
attorney subsequently filed a motion for a competency evaluation. On October 28,
2020, the parties stipulated to the qualifications of Dr. Gail M. Hellman to conduct
a competency evaluation and to the findings of her competency report in which she
opined that Appellant was competent to stand trial and did not meet the criteria
necessary to enter a plea of not guilty by reason of insanity. Based on the parties’
stipulation, the trial court found Carver competent to stand trial. After additional
pretrial discovery and proceedings, Carver proceeded to jury trial on March 8,
2021.
{¶4} The State of Ohio called 17 witnesses which included a 911 dispatcher;
three eyewitnesses at the Greenbriar Road scene; Scioto County Sheriff’s deputies;
Scioto County Detective Jodi Conkel; EMS personnel; and medical personnel from
Southern Ohio Medical Center (SOMC). Many of these witnesses provided
substantially similar testimony in that upon arrival at the scene they encountered an
uncooperative woman who was bleeding profusely, children terrified and covered
in blood, and a lifeless infant. Several witnesses described the scene they
encountered as “traumatic”; “a scene from a horror film”; “a scene from Carrie”;
“a massacre scene”; and “a scene from The Walking Dead.”
{¶5} Don Scott, a resident of Greenbrier Road, testified that in July 2020,
Carver, his niece, began living in the camper about 50 feet from his house. The
Scioto App. No. 21CA3943 4
camper did not have electricity or running water. Carver ran an extension cord
from the camper to Scott’s house to provide electricity. Scott testified “they had a
cheap breaker plugged into my breaker box. When they got too much power it
would shoot [sic] off * * * and they’d have to come back over and click it back
on.” Scioto County Sheriff’s Deputies Ethan Carmichael, Logan Shuff, and Craig
Ashley later testified that the inside of Carver’s camper was unsanitary: filled with
dirty dishes, trash, food on the floor, and possibly feces.
{¶6} Scott testified that on August 15, 2020, Carver had been at his house
twice trying to use his phone. At one point Carver seemed angry and threw his
phone so he told her to leave. Scott testified he has a prosthetic leg and uses a
walker. He was afraid Carver would hurt him because she “gets so loud and
frightening.” Scott testified that he refused to let her in and thereafter she broke
his window. Scott testified, “Just wasn’t in her right mind, I reckon.” On cross-
examination, Scott admitted that he locked the door and ordered Carver to leave.
He also admitted that after the window was broken, he told her to “get the F off my
porch.”
{¶7} Jessica Lauder testified her parents live on Greenbriar Road. On
August 15, 2020, she stopped by their home on her way to school. Lauder was
sitting in her car in her parents’ driveway when she heard a commotion coming
Scioto App. No. 21CA3943 5
from up the road. She testified she glanced in her passenger mirror and saw a
woman walking up the road. Specifically, Lauder testified:
She has this infant in like a chokehold and the baby is dangling
down and its head’s up here. It looks almost lifeless to me. And
an older child walking beside her, and they’re all covered in
blood. The babies are naked. And then come to find out, there’s
another in between child in the ditch on the other side of the road.
And it’s screaming and crying. And [Carver] comes up and
she’s—blood—pouring down the side of my vehicle because she
leans against my vehicle.
{¶8} Lauder testified she was alarmed because she thought the baby
was dead. Its eyes were rolling in its head.
{¶9} Lauder continued, “[Carver] proceeded to ramble on and tell me
that she needs help for her kids, and then she tells me that somebody robbed
her.” Lauder described Carver’s demeanor as “flinging the baby around
back and forth, rocking around, and she’s pacing along, and then flinging
herself against the side of my vehicle.” Lauder testified she took a picture of
the situation because, “I figured, you know, in the situation that it might be-
- somebody else needed to see what was truly going on, because it-- -it was
like a horror film. Like, it was terrible. * * * Very traumatic.”
{¶10} Lauder identified and authenticated State’s Exhibits 3 and 4, a
picture of her cell phone and a paused image she took of the scene. Lauder
testified she called 911 as soon as Carver came over to her vehicle.
Scioto App. No. 21CA3943 6
{¶11} Lauder described the older two children as traumatized. The
middle child was crying. The oldest wouldn’t talk. Lauder gave Carver a
blue blanket for the baby, which Carver did not use. Lauder identified
State’s Exhibit 7, a photograph of the baby lying on a blanket in the sun and
drenched in blood. Lauder testified when EMS and law enforcement
arrived, multiple people were trying to calm Carver. Carver was “flopping
around” and kicking at the officers while they tried to apply a tourniquet to
stop her bleeding.
{¶12} On cross-examination, Lauder testified Carver asked for help.
When Lauder was asked why she called 911 rather than immediately get out
of her car to help, Lauder testified that she had no protection and she did not
want to make contact with the blood. She was actually studying phlebotomy
at the time.
{¶13} April Pierson, a 911 Dispatcher employed by the Scioto County
Sheriff’s Office, testified regarding the 911 calls. Specifically, a female neighbor
called advising that “a lady was walking down the road with kids, that there was
blood all over them.” The caller advised that “the lady told her she had been
robbed.” Don Scott’s and Jessica Lauder’s 911 calls were played for the jury.
{¶14} Jack Hayes, Jessica Lauder’s father, testified he was mowing
grass in his back yard when one of his dogs alerted him. In response, Hayes
Scioto App. No. 21CA3943 7
went towards the front of the house and saw a “young woman with a baby in
a chokehold in her arm, laid back on the ground, just flopping around like a
fish out of water * * *.” The baby was described as “bluish-grey looking,
very pale, lifeless” looking as if it was dead. Carver was not supporting the
baby’s head with her other arm. Carver was making unintelligible sounds
and blood was gushing everywhere.
{¶15} Hayes saw two other little girls, one across the road in the
ditch, half-naked, screaming and crying. Hayes retrieved the little girl from
the ditch. Hayes testified when the paramedics arrived, “they got out and
they worked with her and finally got the baby away from her.” Hayes also
testified he did not interact closely with Carver because she was covered in
blood, he has health issues, and did not have protection.
{¶16} Trent Adams testified he is a certified paramedic for the
Minford squad with about 32 years’ experience in EMS. As an advanced
paramedic he can start intravenous support and give drugs. Adams received
a page for an unknown, “someone covered in blood.” He testified it took
about seven minutes to arrive at the scene on Greenbriar Road. Once there,
he encountered a woman and three naked kids covered head to toe in blood,
“a scene from Carrie.” Adams testified:
She was holding the baby. There was the two kids upset. I’m
not sure where the blood was coming from. She was holding the
Scioto App. No. 21CA3943 8
baby kind of like a ragdoll. We was trying to get the baby away
from her to see where all the blood was coming from, and she
was not cooperating, just kind of talking out of her head, acting
erratic. So we was trying to get control of her and figure out, you
know, how to stop any bleeding or even find out where all she
was hurt. * * * [The baby was] kind of listless. Like a ragdoll.
You could tell it—it was breathing, but it was not fighting
screaming, it was just more or less limp.
{¶17} Adams and his EMS partner asked for backup because multiple
people appeared injured. When deputies arrived, they tried to restrain Carver
because she was combative, uncooperative, resisting treatment. Ultimately, Adams
learned that Carver had an injury to her left elbow area.
{¶18} EMS personnel and several deputies from the Scioto County Sheriff’s
Office also arrived on the scene to provide assistance to Carver and the children.
Deputy Ethan Carmichael testified when he first arrived at the scene a squad
member was attending a woman bleeding profusely. Three small children under
the age of four were covered in blood, without clothing. An infant lying on the
ground appeared lifeless. The woman’s demeanor was agitated and she would not
stand still.
{¶19} As part of his investigation, Deputy Carmichael later went to SOMC
to check on the other children. They seemed terrified, wouldn’t talk to him, and
tried to hide their faces. He also spoke to Don Scott the next day and identified
State’s Exhibit 11, the broken window. He also identified State’s Exhibit 12 and
13, photographs of the interior of the camper.
Scioto App. No. 21CA3943 9
{¶20} James Owens, a part-time minister and certified emergency
medical responder, and Donna Hurt, a basic EMT, testified that they
volunteered with Clay Squad 11. Mr. Owens drove to Greenbrier Road and
once there, they observed “blood everywhere.” Someone handed the baby to
Donna Hurt. He assessed the older children. They realized the baby needed
transport so he wrapped it in a blanket and carried it to the squad. The older
children went too.
{¶21} Donna Hurt requested a medic for assistance and Darrell Mershon, a
paramedic on Clay Squad 12, responded. Owens and Hurt met Mershon at the
Clay Township station. Mershon jumped in and immediately determined the baby
should be transported by helicopter to Cabell Huntington (West Virginia) Hospital.
{¶22} Darrel Mershon testified as to his efforts to stimulate the lifeless baby.
It appeared she was not breathing at all. The baby was “bagged” in order to get it
to breathe. He explained that a facemask is put over a person’s face. A bag is
attached to the mask and the bag is continually squeezed in order to try to force
oxygen into the person’s lungs. Mershon estimated the baby was unresponsive for
approximately ten minutes.
{¶23} Mr. Owens also testified as he drove the ambulance to meet the
helicopter at Lute’s Supply Company on U.S. Route 23 in Rosemount, Donna Hurt
yelled to Mr. Owens: “Hey Rev, we need some prayer back here!” Darrel
Scioto App. No. 21CA3943 10
Mershon testified when they reached the helicopter landing zone, he continued to
bag the baby.
{¶24} Julia Gearhart, a fireman and squad member with Squad 11
testified that when she was dispatched she went to the fire department and
got a fire truck to set up the helicopter landing zone. As soon as she began
setting up the zone the squad pulled in. She opened the back doors and
observed Donna Hurt bagging the baby and Darrel Mershon trying to start
an IV. Mershon asked her to take the other children to SOMC. As Donna
Hurt was removing the children to the other squad, she heard the baby
crying. She testified that everybody expressed great relief.
{¶25} Gearhart was shocked to see the nonresponsive children
covered in blood. While the children were transported to SOMC, Gearhart
brushed glass off their skin. Jessica Lauder also rode in the ambulance with
the two older children.
{¶26} Michael Kinskey, a flight paramedic, testified when he climbed
into the back of the ambulance at the landing zone the infant was crying. He
testified he attempted several times to place an IV in the baby. Finally, the
baby was given Lidocaine so he could drill through its tibia in order to
administer drugs or fluid in case the baby went unresponsive again during
the flight to the hospital. Fortunately, the baby did well on the flight.
Scioto App. No. 21CA3943 11
{¶27} Michael Mader, a registered nurse at SOMC, noted that Carver
was covered in blood, disoriented, and uncooperative. Karissa Couch, a
nurse practitioner designated an expert in emergency medicine, testified the
older girls were bloody, naked, and unengaged, not even speaking to each
other. Ms. Couch opined that the girls suffered mental shock.
{¶28} Dr. Tucker, an ER physician at SOMC, testified that Carver
suffered “acute delirium from drugs,” possibly methamphetamine. On
cross-examination, he also acknowledged that her behavior could be mental
illness. Importantly, Nurse Mader, Dr. Tucker, and several other witnesses
also admitted that there were no drug screens or lab work in Carver’s
medical records which indicated positive finding for drug use. However, Dr.
Tucker explained that to order urine testing would have been invasive and
prolonging.2 Carver was transported to Grant Hospital in Columbus, Ohio
because SOMC does not have a trauma unit.
{¶29} Finally, on behalf of the State of Ohio, Detective Jodi Conkel of the
Scioto County Sheriff’s Office testified that during her investigation of the incident
other individuals informed her that Carver used Xanax and methamphetamine.
Conkel testified that she interviewed Carver. Conkel’s interview with Carver was
2
The inference appears to be that to drug test Carver would take time and given her medical condition for extensive
bleeding and the uncertainty as to the extent of her injuries, the doctor felt that she should be transported
immediately.
Scioto App. No. 21CA3943 12
played for the jury. During the interview, Carver gave incorrect birth dates for two
of the children. Carver told Conkel she did not want to release the baby and lay
her on the ground because there were two big dogs nearby. She stated that she
only knocked on Scott’s window and accidently broke it. Carver did admit using
one Xanax.
{¶30} Conkel also testified she reviewed Carver’s jail phone calls. In one
phone call, Carver admitted that she got angry, lost her temper, and broke the
window glass, contrasting with her interview statement. On cross-examination,
Conkel admitted that as part of investigative strategy, she lied to Carver during the
interview.
{¶31} All the State’s exhibits were admitted into evidence. Defense counsel
made a Crim. R. 29 motion for acquittal, arguing the State had failed to prove the
element of serious physical harm. The trial court denied the motion. The defense
presented three witnesses, including Carver.
{¶32} During her testimony, Carver explained that when she broke the
window it was an accident, as she was knocking on the window to get her uncle’s
attention. The electric had gone out several times on August 14th and again on
August 15th. The camper did not have air conditioning and she was using fans to
cool herself and the children. Also, the children were not wearing clothing in an
Scioto App. No. 21CA3943 13
effort to stay cool. She testified they were all in extreme distress and desperate
need of having the electric restored.
{¶33} Carver also testified that after she accidentally broke the window, she
was holding the baby and the two younger ones were standing near her. As such,
blood ended up on all of them. Carver walked down the road and sought help from
Jessica Lauder who not only refused to help but also began taking video on her cell
phone. Lauder’s father also provided no help. Eventually Lauder called 911 and
gave Carver a blanket for the baby. Carver testified, however, that two large dogs
were circling her and for that reason, she was afraid to lay the blood-covered infant
on the ground. The defense also offered several exhibits which were admitted into
evidence.
{¶34} After deliberation, Carver was found guilty by a jury on all of the
following counts:
Count 1: Endangering Children in violation of R.C. 2919.22(B)(1)
and 2919.22(E)(2)(d), a felony of the second degree, the violation
resulting in serious physical harm to A.C.G.
Count 2: Endangering Children in violation of R.C. 2929.22(A) and
2919.22(E)(2)(c), a felony of the third degree, the violation resulting
in serious physical harm to A.C.G.
Count 3: Endangering Children in violation of R.C. 2919.22(A) and
2919.22(E)(2)(c), a felony of the third degree, the violation resulting
in serious physical harm to M.C.G.
Scioto App. No. 21CA3943 14
Count 4: Endangering Children in violation of R.C. 2919.22(A) and
2919. (E)(2)(c), the violation resulting in serious physical harm to
I.C.G.
Count 5: Felonious Assault, in violation of R.C. 2903.11(A)(1) and
2903.11(D)(1)(a).
Count 6: Obstructing Official Business, in violation of R.C.
2921.31(A) and 2921.31(B), creating a risk of physical harm to three
minor children, EMS personnel, and law enforcement officers at the
scene.3
{¶35} Carver was sentenced on March 10, 2021, immediately following the
verdict. The trial court found that Counts One and Five merged for the purpose of
sentencing. The court further found that Count Two did not merge with Count
One, and that Counts Three and Four did not merge with each other. Finally, the
court found that Count Six was a completely separate offense not subject to
merger.
{¶36} Appellant was sentenced as follows: On Counts One and Five as
merged, a minimum prison term of eight years to an indefinite maximum prison
term of up to 12 years; on Count Two, a prison term of 12 months; on Count
Three, a prison term of 24 months; on Count Four, a prison term of 24 months; and
on Count Six, a prison term of 12 months. The trial court further ordered that all
sentences be served consecutively with each other, for a total net sentence of a
3
While the State of Ohio moved to amend the indictment to correct the children’s names and birthdates, the court’s
entry granting the motion indicated the children’s surname was the same as Carver’s. In the appealed-from
judgment entry, the children’s names are listed with a “G” as the final initial, indicating the father’s surname.
Scioto App. No. 21CA3943 15
minimum prison term of 14 years, to an indefinite maximum prison term of up to
18 years.
{¶37} This appeal followed.
ASSIGNMENT OF ERROR
I. APPELLANT’S TRIAL COUNSEL WAS
INEFFECTIVE IN HIS REPRESENTATION OF
APPELLANT BY COMMITTING SEVERAL
ERRORS DURING THE TRIAL OF
APPELLANT’S CASE.
A. STANDARD OF REVIEW
{¶38} Carver contends that her conviction should be reversed based on
ineffective assistance of counsel. Carver argues that her trial counsel made a series
of errors that prejudiced her. Specifically Carver argues that her trial counsel
failed to make objections during the State’s case to: (1) leading questions during
the testimony of Jessica Lauder; (2) improper and speculative opinion testimony of
State’s witness Jack Hayes; (3) improper “expert” testimony of Trent Adams; and
(4) improper “expert” testimony of Deputy Ethan Carmichael. To establish
constitutionally ineffective assistance of counsel, a criminal defendant must show
(1) that his or her counsel's performance was deficient and (2) that the deficient
performance prejudiced the defense and deprived him or her of a fair trial.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). Accord State
v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d
Scioto App. No. 21CA3943 16
123, 139, 694 N.E.2d 916 (1998). “In order to show deficient performance, the
defendant must prove that counsel's performance fell below an objective level of
reasonable representation. To show prejudice, the defendant must show a
reasonable probability that, but for counsel's errors, the result of the proceeding
would have been different.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-
2815, 848 N.E.2d 810, ¶ 95. “Failure to establish either element is fatal to the
claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14.
{¶39} When considering whether trial counsel's representation amounts to
deficient performance, “a court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance[.]”
Strickland at 689, 104 S.Ct. 2052. Thus, “the defendant must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” (Quotation omitted). Id. “ ‘A properly licensed
attorney is presumed to execute his [or her] duties in an ethical and competent
manner.’ ” State v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482,
¶ 10, quoting State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
Therefore, a defendant bears the burden to show ineffectiveness by demonstrating
that counsel's errors were so serious that he or she failed to function as the counsel
guaranteed by the Sixth Amendment. State v. Gondor, 112 Ohio St.3d 377, 2006-
Ohio-6679, 860 N.E.2d 77, ¶ 61.
Scioto App. No. 21CA3943 17
{¶40} “Furthermore, courts may not simply assume the existence of
prejudice, but must require that prejudice be affirmatively demonstrated.” State v.
Walters, 4th Dist. Washington Nos. 13CA33, 13CA36, 2014-Ohio-4966, ¶ 24;
State v. Jones, 2018-Ohio-239, 104 N.E.3d 34, ¶ 21-24 (4th Dist.). We have
repeatedly recognized that speculation is insufficient to establish the prejudice
component of an ineffective assistance of counsel claim. E.g. State v. Dailey, 4th
Dist. Adams No. 18CA1059, 2018-Ohio-4315, ¶ 33 and cases cited therein. State
v. Thacker, 4th Dist. Lawrence No. 19CA18, 2021-Ohio-2726, ¶ 54-57.
LEGAL ANALYSIS
{¶41} Generally, a defendant has no constitutional right to determine trial
tactics and strategy of counsel. See State v. Groves, 4th Dist. Scioto No.
20CA3904, 2022-Ohio-443, at ¶ 58; State v. Cowans, 87 Ohio St.3d 68, 72, 717
N.E.2d 298 (1999); State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842
N.E.2d 996, ¶ 150. “ ‘When there is no demonstration counsel failed to research
the facts or the law or counsel was ignorant of a crucial defense, a reviewing court
defers to counsel's judgment in the matter.’ ” Crank at ¶ 18, quoting State v.
Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980).
{¶42} At trial, witness presentation, questioning and cross-examination
usually falls within the ambit of trial strategy. Debatable trial tactics do not
generally establish ineffective assistance of counsel. See Groves, supra; State v.
Scioto App. No. 21CA3943 18
Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 45. “ ‘[T]he
failure to object to error, alone, is not enough to sustain a claim of ineffective
assistance of counsel. To prevail on such a claim, a defendant must first show that
there was a substantial violation of any of defense counsel's essential duties to [the
defendant] and, second, that [the defendant] was materially prejudiced by counsel's
ineffectiveness.’ ” State v. Moore, 4th Dist. Pickaway No. 20CA10, 2021-Ohio-
4414, at ¶ 15, quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831(1988). Additionally,
Experienced attorneys “learn that objections to each potentially
objectionable event could actually act to their party's detriment.
* * * In light of this, any single failure to object usually cannot
be said to have been error unless the evidence sought is so
prejudicial * * * that failure to object essentially defaults the case
to the state. Otherwise, defense counsel must so consistently fail
to use objections, despite numerous and clear reasons for doing
so, that counsel's failure cannot reasonably have been said to
have been part of a trial strategy or tactical choice.” (Omissions
sic).
State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 140,
quoting Lundgren v. Mitchell, 440 F.3d 754, 774 (6th Cir. 2006).
1. Jessica Lauder’s Testimony.
{¶43} On direct examination, Ms. Lauder testified as to her observations
when Carver came into the Hayes’ driveway. On cross-examination, Carver’s
attorney suggested Carver’s fear for herself and her children due to the presence of
two large unrestrained dogs on the Hayes’ property as a reason for Carver’s
Scioto App. No. 21CA3943 19
excitement and failure to lay the baby on the blanket. The testimony elicited from
Lauder on cross-examination demonstrated that there were two large dogs behind a
wireless fence and Carver would not have known they were prevented from
harming her or the baby due to the Hayes’ wireless fence.
{¶44} Carver asserts that on redirect examination, the prosecutor used
leading questions concerning the location of the dogs, the invisible fence, and the
absence of any threat to Carver from the dogs. Carver argues that her attorney
rendered deficient performance due to her attorney’s failure to object to the leading
nature of these questions. “ ‘A leading question is “one that suggests to the
witness the answer desired by the examiner.” ’ ” State v. Huff, 4th Dist. Scioto No.
14CA3596, 2015-Ohio-5589, at ¶ 41, quoting State v. Diar, 120 Ohio St.3d 460,
900 N.E.2d 565, 2008-Ohio-6266, ¶ 149, quoting 1 McCormick, Evidence (5th
Ed.1999) 19, Section 6. Evid.R. 611(C) states in part that, “Leading questions
should not be used on the direct examination of a witness except as may be
necessary to develop the witness’ testimony.” See State v. Thacker, 4th Dist.
Lawrence No. 19CA18, 2021-Ohio- 2726, at ¶ 63.
{¶45} To begin our analysis, we go to the exchange set forth in the trial
transcript. Specifically, Carver’s attorney questioned Lauder as follows: “And did
it ever cross your mind that the reason she didn’t put the kid down was because of
the dogs in the yard?” Lauder responded that “[T]here was too much going on
Scioto App. No. 21CA3943 20
than worry about dogs.” Carver’s attorney continued: “But the dogs might attack,
or the dogs might come after the kids considering that they’re covered in blood?”
{¶46} On redirect, Lauder testified as follows:
Q: You were asked about your parents (inaudible) and dogs?
A: Yes.
Q; And are those dogs vicious at all?
A: No.
Q: Okay. You said they were - - had shock collars on and had a wireless
fence perimeter?
A: Yes.
Q: Okay. And the dogs were inside the fence perimeter.
A: Yes.
Q: The Defendant, the bloody woman is outside the fence perimeter?
A: Correct.
Q: So the dogs weren’t circling around her (inaudible) - -
A: No.
Q: --were they?
A: No. They weren’t there growling at her and everything.
Q: Posing no threat whatsoever?
A: No.
Scioto App. No. 21CA3943 21
{¶47} Upon our review of the trial transcript, we reject appellant's claim that
trial counsel performed ineffectively by failing to object to leading questions.
Evid.R. 611(C) does not preclude the use of leading questions on direct
examination; instead, the rule provides that “it is within the trial court's discretion
to allow leading questions on direct examination.” State v. Jackson, 92 Ohio St.3d
436, 449, 751 N.E.2d 946 (2001). Accordingly, “ ‘the failure to object to leading
questions does not constitute ineffective assistance of counsel.’ ” State v. Carroll,
4th Dist. Ross No. 15CA3506, 2016-Ohio-7218, at ¶32, quoting Jackson, 92 Ohio
St.3d at 449.
{¶48} More importantly, whether or not Carver feared the dogs seems
irrelevant or a sub-issue at best, not a material issue pertinent to the outcome of her
convictions for endangering children. Scott testified that Carver broke his window
and was “creating a scene” at his home even before she walked to the Hayes’
driveway and encountered dogs. Jessica Lauder and her father testified that upon
their initial encounters with Carver, she was holding the baby in a chokehold and it
appeared lifeless. She and the children were covered in blood. One of the older
girls was crying. Jack Hayes testified that even after the squad arrived the
paramedics had difficulty getting the baby away from her.
{49} Carver testified that the dogs were circling her and because of the
blood she feared placing the baby on the blanket on the ground. Even if Carver’s
Scioto App. No. 21CA3943 22
testimony was to be believed, the overwhelming evidence supporting conviction
for child endangering is that Carver was holding her baby in a chokehold as she
approached he driveway. She did not immediately allow others to take the child
and care for it. Even if Carver feared the dogs, holding the baby in a chokehold
and not allowing others to immediately treat it was what endangered the baby.
{¶50} The overwhelming testimony from several witnesses also
demonstrates that the older children appeared traumatized and, as Karissa Couch
opined, suffered from mental shock. If Carver had properly controlled her actions
by not breaking the window and getting blood on the children, behaving
erratically, and carrying the baby as she did, perhaps the older girls would not have
suffered mental shock. These are her actions supporting the allegation that she
endangered her older children. Whether or not she feared the dogs does not seem
pertinent to the outcome of the trial.
{¶51} The trial court had discretion to allow leading questions. In this case,
the questions were not material to the outcome of the case. To allow the
prosecutor to ask these questions was expeditious in a case where approximately
20 witnesses were to be called to testify. “It is well-established that ‘[c]ompetent
counsel may reasonably hesitate to object [to errors] in the jury's presence because
objections may be considered bothersome by the jury and may tend to interrupt the
flow of a trial.’ ” State v. Miku, 2018-Ohio-1584, 111N.E.3d 558, at ¶ 65 (5th
Scioto App. No. 21CA3943 23
Dist.), quoting State v. Rogers, 9th Dist. Summit No. 19176, 1999 WL 239100,
citing State v. Campbell, 69 Ohio St.3d 38, 53, 630 N.E.2d 339 (1994) (internal
quotations omitted).
{¶52} Based on the foregoing, we do not find counsel’s performance to be
deficient for a failure to object to leading questions. The failure to object did not
prejudice Carver. Even if counsel had objected it would not have changed the
outcome. Carver’s argument is not well-taken.
2. Trent Adams’ Testimony.
{¶53} For ease of analysis, we next consider Carver’s assertion that Adams’
testimony was objectionable. During his testimony Adams testified he gave
Carver multiple doses of Haloperidol and Versed, both intermuscular and through
an IV, an unusual amount. After they got to ten of each drug, it was “pushing the
limits” of how much can be administered. Adams testified that, based on his 32
years’ experience and his designation as an advanced paramedic, the basis of her
erratic and uncooperative behavior, was “usually drug-induced.” He also testified
that her behavior was like that he had seen recently, due to “stuff we’ve never
really seen before, but you can tell it’s a combination – one of the new drugs.”
Adams estimated Carver’s weight at 100-112 pounds and testified it took four
deputies and two EMS personnel to restrain her.
Scioto App. No. 21CA3943 24
{¶54} Carver asserts that although Trent Adams was not qualified as an
expert witness, he was permitted to state his opinion that her behavior was due to
illicit drug use as to the basis for Carver’s behavior while being treated. Carver’s
attorney failed to object to this testimony. Carver argues his trial attorney should
have objected to this testimony and ask that it be stricken from the record.
{¶55} The trial court has broad discretion in the admission or exclusion of
evidence. See State v. Fannon, 2018-Ohio-5242, 117 N.E. 3d 10, supra, at ¶ 65
(4th Dist.); (internal citations omitted). “ ‘[A]buse of discretion’ [is] an
‘unreasonable, arbitrary, or unconscionable use of discretion, or * * * a view or
action that no conscientious judge could honestly have taken.’ ” State v. Kirkland,
140 Ohio St. 3d 73, 2014-Ohio-1966, 15 N.E. 3d 818, at ¶ 67, quoting State v.
Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. Since the
adoption of the Rules of Evidence, both on the state and federal levels, many
courts have used an Evid.R. 701 analysis and have allowed lay witnesses to testify
about, for example, the identity of a drug. See State v. Meddock, 2017-Ohio-4414,
93 N.E.3d 43, at ¶ 8 (4th Dist.); State v. Johnson, 4th Dist. Gallia No. 2014-Ohio-
4032, at ¶ 38; State v. McKee, 91 Ohio St.3d 292, 744 N.E.2d. 737 (2001). Evid.R.
701 provides:
If the witness is not testifying as an expert, his testimony in the
form of opinions or inferences is limited to those opinions or
inferences which are (1) rationally based on the perception of the
Scioto App. No. 21CA3943 25
witness and (2) helpful to a clear understanding of his testimony
or the determination of a fact in issue.
[C]ourts have permitted lay witnesses to express their opinions
in areas in which it would ordinarily be expected that an expert
must be qualified under Evid.R. 702 * * *. Although these cases
are of a technical nature in that they allow lay opinion testimony
on a subject outside the realm of common knowledge, they will
fall within the ambit of the rule’s requirement that a lay witness's
opinion be rationally based on firsthand observations and helpful
in determining a fact in issue. These cases are not based on
specialized knowledge within the scope of Evid.R. 702, but
rather are based upon a layperson's personal knowledge and
experience.
Johnson, supra, at ¶ 38.
{¶56} Furthermore, “lay witness opinion testimony is not prohibited
‘merely because it embraces the ultimate issue to be decided by the trier of
fact.’ ” State v. Infante, 11th Dist. Trumbull No. 2019-T-0043, 2020-Ohio-
992, at ¶ 42, quoting State v. Heilman, 11th Dist. Trumbull Nos. 2004-T-
0133, 2004-T-0135, 2006-Ohio-1680, ¶ 96, citing Evid.R. 704. “[T]he
critical point is whether the opinion of the lay witness will truly be helpful to
the jury * * *.” State v. O'Brien, 11th Dist. Lake No. 2011-L-011, 2013-
Ohio-13, ¶ 45.
{¶57} In the case at bar, we do not think counsel’s failure to object and
request that Trent Adams’ opinion testimony be stricken constitutes deficient
performance. Mr. Adams was testifying as to his observations of Carver’s
demeanor and conduct when he arrived at the scene. He administered large doses
Scioto App. No. 21CA3943 26
of the sedatives Haloperidol and Versed. Six people were trying to restrain her in
order to determine the nature and extent of her injuries. We find Adams’ lay
opinion, based upon his personal knowledge and 32 years’ experience as a
paramedic, was appropriate under Evid.R. 701.
{¶58} Furthermore, “ ‘[a] competent trial attorney might well eschew
objecting * * * in order to minimize jury attention to the damaging material.’ ”
State v. Canterbury, 4th Dist. Athens No. 13CA34, 2015-Ohio-1926, ¶ 70,
(internal citations omitted), quoting United States v. Payne, 741 F.2d 887, 891 (7th
Cir. 1984). Carver’s trial counsel likely wished to downplay and minimize
Adams’ testimony, anticipating the introduction of the SOMC emergency room
records containing Dr. Tucker’s medical opinion diagnosing Carver with “drug-
induced delirium” based on her presentation. Dr. Tucker also later testified that
Carver was agitated and uncooperative and that patients like this can be suffering
“acute delirium from drugs.” Given the fact that the jurors would be hearing
similar testimony later at trial from a trained and experienced medical doctor, we
do not see how allowing Adams’ testimony earlier changed the outcome of the
trial. Consequently, we do not find merit to this argument.
3. Jack Hayes’ Testimony.
{¶59} Jack Hayes also described his observations regarding the actions
Scioto App. No. 21CA3943 27
of the EMS personnel who treated Carver at the scene. Hayes testified when the
paramedics arrived they got the baby away from Carver and tried to apply a
tourniquet on Carver’s arm. Specifically, he testified:
Before they could even get a tourniquet on her arm I guess they
gave her some kind of sedative or something. * * * They tried
to calm her down and she was just going nuts on them. They
tried to set her up there on my mower and they got it covered in
blood. I know it was at least three or four of them, maybe five,
before they even got a tourniquet on her * * *. And they gave
her, like I said, some kind of sedative or something there to try
to calm her down and she was just irate * * *.
{¶60} Carver asserts that Hayes was not qualified to know exactly what the
EMS were doing to treat Carver, therefore, his statement indicating she received a
“sedative or something” was mere speculation. Because Carver’s attorney failed to
object to this statement, Carver argues that his performance was deficient.
{¶61} Here, we also find Jack Hayes’ testimony to be permissible under
Evid. R. 701. The jury was aware that Mr. Hayes was not testifying as an expert.
He testified as to his firsthand observations and he did not testify that Carver in
fact received a sedative.
{¶62} Furthermore, defense counsel likely anticipated that Trent Adams’
later testimony would be that he gave Carver five doses of Haloperidol
intramuscularly, “basically a sedative,” and then five additional doses of another
sedative, Versed, through an IV. Because Carver did not calm down, he gave her
another five doses of Versed. The jury properly heard this testimony, based on
Scioto App. No. 21CA3943 28
Adams’ firsthand observations. Even if trial counsel had objected to Mr. Hayes’
testimony, it would not have changed Trent Adams’ testimony later in the trial that
he did administer sedatives, nor would it have changed the outcome of the trial.
Based on the foregoing, we find no merit to Carver’s argument herein.
4. Deputy Ethan Carmichael’s Testimony.
{¶63} Deputy Carmichael testified that Carver was in an “excited delirium
state of mind” caused by use of methamphetamine. Carver’s attorney failed to
object to this line of questioning even though Carmichael was also not determined
to be an expert witness. Thus, Carver argues that this omission constitutes
deficient performance. We disagree.
{¶64} Specifically, Deputy Carmichael testified that he has come in contact
with people acting like Carver in the past. He testified: “Usually they are “under
the influence of some kind of narcotic. I believe this one would be the - - under the
influence of methamphetamine, based on her delirium, agitation, and sweating. * *
* She was sweating pretty bad.” Deputy Carmichael opined that she posed a risk
to her own children.
{¶65} In State v. Meddock, 2017-Ohio-4414, 93 N.E.3d 43, at ¶ 27-28 (4th
Dist.), we found that an officer’s testimony regarding the one-pot method of
methamphetamine production was properly admitted under Evid.R. 701. The
officer, Corporal Cottrell, testified regarding the process used to manufacture
Scioto App. No. 21CA3943 29
methamphetamine and the materials commonly used for that process. His
testimony was based on his training, certification, and experience of identification
of clandestine methamphetamine labs. His testimony was also based upon his
observations at the scene of Appellant's arrest in April 2015. We concluded that
Corporal Cottrell's testimony was proper lay opinion well within the providence of
the rule.
{¶66} Likewise, we observe that a proper foundation was laid concerning
Deputy Carmichael’s training on identification of persons under the influence of
illegal substances and his almost daily experience with individuals under the
influence of drugs and/or alcohol. Deputy Carmichael specifically testified as to
his three-year law enforcement experience and training at the Southern Ohio Police
Academy, where he had extensive training on how to identify people under the
influence of drugs. He testified he encounters people under the influence almost
daily. When he arrived at the scene he saw two squad members assisting a female
who was bleeding profusely. The female’s demeanor was aggressive and agitated,
she was screaming, and would not stay still for treatment. She eventually fell to
the ground and had to be restrained. We find Deputy Carmichael’s opinion was
rationally based upon his perceptions upon arrival at scene. We find his lay
opinion was proper under Evid. R. 701.
Scioto App. No. 21CA3943 30
{¶67} Even if trial counsel had objected, it would have only called attention
to this unfavorable testimony. As previously indicated, defense counsel likely
anticipated Dr. Tucker’s testimony that Carver’s “acute delirium” could be from
drugs, and “the one that comes to mind is methamphetamine.” We fail to see how
counsel’s objecting to Deputy Carmichael’s opinion testimony would have
changed the outcome of Carver’s trial. Consequently, we find this argument is also
without merit.
CONCLUSION
{¶68} Based on the foregoing, we find no merit to the arguments raised
under Carver’s sole assignment of error. Carver was indicted for endangering
children, not use or possession of drugs. While there was no record of positive
drug testing in Carver’s medical records on the date of the incident, Dr. Tucker’s
opinion testimony and the SOMC record suggested that drug use was responsible
for her agitated and uncooperative behavior which caused her endangerment of her
three young children. Had trial counsel objected to leading questions or alleged
improper opinion evidence, we do not find the outcome of the trial on allegations
of endangering children would have changed.
{¶69} The overwhelming admissible evidence demonstrated that Carver
intentionally broke a window and created a scene at her uncle’s house with her
children watching; caused her own profuse bleeding that covered the children in
Scioto App. No. 21CA3943 31
blood; carried her infant in a chokehold to the point that it appeared lifeless and
required medical treatment to breathe; and failed to seek immediate attention for
the physically injured baby and emotionally traumatized older girls. The jury
found this evidence credible in finding her guilty of endangering children.4
{¶70} And while we need not consider both prongs of an ineffective
assistance of counsel analysis, we find counsel’s performance was not deficient
and further find that Carver was not prejudiced by counsel’s performance.
Accordingly, the sole assignment of error is hereby overruled.
JUDGMENT AFFIRMED.
4
The jury also apparently found Carver’s testimony about the incident lacking in credibility. The jury heard
evidence of Carver’s jail phone calls in which she admitted to intentionally breaking Scott’s window. The jury also
heard Jessica Lauder’s testimony that when Carver first approached, she claimed she had been robbed, along with a
911 call in which Jessica Lauder advises April Pierson, the dispatcher, that “She told me she was robbed.” Despite
Carver’s erratic and uncooperative behavior, she apparently had the presence of mind to concoct a story that she was
robbed.
Scioto App. No. 21CA3943 32
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and Appellant pay all
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court, to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS
COURT, it is temporarily continued for a period not to exceed 60 days upon the bail
previously posted. The purpose of a continued stay is to allow Appellant to file with
the Supreme Court of Ohio an application for a stay during the pendency of
proceedings in that court. If a stay is continued by this entry, it will terminate at the
earlier of the expiration of the 60-day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the 45-day appeal period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration
of 60 days, the stay will terminate as of the date of such dismissal.
Any stay previously granted by this Court is hereby terminated as of the date
of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
_______________________________
Jason P. Smith
Presiding Judge
Scioto App. No. 21CA3943 33
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.