State v. May , 2012 Ohio 5128 ( 2012 )

[Cite as State v. May, 2012-Ohio-5128.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-11-19
v.
DANIEL R. MAY, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. 10-02-0022
Judgment Affirmed
Date of Decision: November 5, 2012
APPEARANCES:
Marc S. Triplett for Appellant
William T. Goslee and Eric C. Stewart for Appellee
Case No. 8-11-19
ROGERS, J.
{¶1} Defendant-Appellant, Daniel May, appeals from the judgment of the
Court of Common Pleas of Logan County convicting him of domestic violence
and sentencing him to a total prison term of three years and six months. On
appeal, May claims that the trial court committed the following reversible errors:
(1) admitting testimony regarding May’s pre-arrest silence; (2) allowing testimony
regarding the out-of-court statements of Diane Gerber, the alleged domestic
violence victim; (3) the court calling Gerber as its own witness; (4) admitting
evidence of previous physical altercations between May and Gerber; (5)
permitting introduction of May’s statements to the arresting officers while
purportedly in custody; and (6) allowing the State to use its preemptory challenges
in a discriminatory manner. May also contends that he was denied effective
assistance of counsel and that all of the above errors amounted to a denial of due
process. For the reasons that follow, we affirm the trial court’s judgment.
{¶2} On March 10, 2010, the Logan County Grand Jury handed down an
indictment charging May with two counts of domestic violence in violation of
R.C. 2919.25(A). Because each count included a specification that May had been
previously convicted of two or more domestic violence offenses, the violations
were classified as felonies of the third degree. On April 27, 2010, the State moved
to dismiss the original indictment without prejudice on the grounds that the
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“victim is uncooperative.” (Docket No. 19). The trial court granted the motion
that same day.
{¶3} On May 10, 2011, the Logan County Grand Jury handed down a
second indictment charging May with four counts of domestic violence in
violation of R.C. 2919.25(A). Again, each count included a specification that May
had been previously convicted of two or more domestic violence offenses, and the
violations were classified as felonies of the third degree.
{¶4} The indictment arose from four incidents in which May allegedly
harmed Gerber, his mother.1 At the time of the incidents, May lived with Gerber
and during the course of all these incidents, both May and Gerber were highly
intoxicated. The first incident occurred on October 24, 2008. Gerber called the
emergency dispatch and reported that May had beaten her. When the deputies
arrived at the house, they discovered Gerber with a bloody nose. The second
incident took place on January 23, 2010. Gerber again called emergency dispatch
to report that May was drunk and naked and had locked her out of the house. She
informed deputies that May punched her in the face, which was consistent with the
officers’ observation of redness and swelling in the area where Gerber said her son
punched her.
1
The original indictment arose from the first and second incidents.
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{¶5} The third incident occurred on October 17, 2010. Gerber called
emergency dispatchers and said she was having trouble with May. When the
responding officers arrived, they saw that Gerber’s jaw was swollen and that there
were red marks on her face. Although Gerber was initially apprehensive about
revealing the source of the marks, she eventually relented and said that May had
punched her again. The fourth and final incident took place on April 26, 2011.
Gerber called emergency dispatchers saying, “Please stop him.” Trial Tr., p. 94.
The deputies responded and Gerber told them that May had struck her in the face.
Further, the officers observed a red mark on Geber’s upper left check. On each
occasion, the deputies arrested May.
{¶6} On June 24, 2011, the trial court set this matter for trial in early
September 2011. On August 24, 2011, the State filed a motion for the trial court
to call Gerber as a witness. The motion states that “Gerber gave both written and
recorded statements to law enforcement that [May] had beaten her. However,
[Gerber] now claims she doesn’t remember what happened.” (Docket No. 47, p.
1). May did not file a written opposition to the State’s motion.
{¶7} The trial commenced on September 1, 2011 and concluded the next
day. Voir dire of the jury occurred on September 1, 2011. The State used three of
its four preemptory challenges to remove male jurors and a preemptory challenge
to remove a male alternate juror. The resulting jury was composed of seven males
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and five females. After voir dire, May did not request that the trial court engage in
a hearing to probe the State’s bases for excluding the male jurors and alternate
juror.
{¶8} The State first called the two emergency dispatchers who answered
Gerber’s calls during each of the incidents described in the indictment. The first
witness, Dawn Heppard, answered Gerber’s call on October 24, 2008. During her
testimony, the State played the recording of Gerber’s call on that date, which
included the following dialogue:
DISPATCHER: 911, what’s your emergency?
DIANE GERBER: My son is beating me. (Indiscernible).
DISPATCHER: I’m sorry?
DIANE GERBER: (Indiscernible).
DISPATCHER: I can’t – I can’t understand you.
DIANE GERBER: Come to 2385.
DISPATCHER: 2385 what?
DIANE GERBER: 2285.
DISPATCHER: 2385 what road, ma’am?
DIANE GERBER: 2285.
DISPATCHER: 2285?
DIANE GERBER: Yes, ma’am.
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DISPATCHER: What road?
DIANE GERBER: Just outside of town.
DISPATCHER: Okay. You said your son was beating you?
DIANE GERBER: Yeah.
DISPATCHER: You need a squad for your injuries?
DIANE GERBER: No, I’ll be fine. Just need somebody
(indiscernible).
DISPATCHER: Ma’am, I can’t understand you. What?
DIANE GERBER: I’m sorry. I need somebody to control him.
DISPATCHER: You need somebody to control him?
DIANE GERBER: Yes. Trial Tr., p. 82-83.
May’s trial counsel did not object to the playing of this recording or its admission
into evidence.
{¶9} The State then called Shannon Reese, the emergency dispatcher who
answered Gerber’s calls on January 23, 2010, October 17, 2010, and April 26,
2011. Again, the State played the recordings of the emergency calls from those
dates. The January 23, 2010 call included the following dialogue:
DISPATCHER: 911, what is your emergency?
DIANE GERBER: My son is drunk.
DISPATCHER: Your what?
DIANE GERBER: My son is drunk.
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DISPATCHER: Your son is drunk?
DIANE GERBER: Yeah.
DISPATCHER: What’s going on?
DIANE GERBER: He’s running around naked.
DISPATCHER: He’s what?
DIANE GERBER: He’s running around naked.
DISPATCHER: He’s running around naked?
DIANE GERBER: Yes, ma’am.
DISPATCHER: Where at?
DIANE GERBER: He’s locked me out of the house.
DISPATCHER: He’s locked you out of the house?
DIANE GERBER: Yes, ma’am.
DISPATCHER: Okay. Where are you at?
DIANE GERBER: I’m sorry, it’s cold out here. It’s two
(indiscernible).
DISPATCHER: It’s what?
DIANE GERBER: I’m thinking. It’s 2885 State Route 47.
DISPATCHER: State Route 47?
DIANE GERBER: Yes, ma’am.
DISPATCHER: Are you outside of the house now?
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DIANE GERBER: Yes, ma’am.
DISPATCHER: Have you been drinking?
DIANE GERBER: Yes, ma’am.
DISPATCHER: What’s your name?
DIANE GERBER: Diane Gerber.
DISPATCHER: It’s what?
DIANE GERBER: Diane Gerber.
DISPATCHER: Diane Gerber?
DIANE GERBER: Yes, ma’am.
DISPATCHER: What’s your son’s name?
DIANE GERBER: Daniel May.
DISPATCHER: It’s what?
DIANE GERBER: Daniel May.
DISPATCHER: Daniel May?
DIANE GERBER: Yes, ma’am. It’s cold out here.
DISPATCHER: What’s he doing now? What’s he doing inside?
DIANE GERBER: I don’t know. I have no idea.
DISPATCHER: Is he running around naked?
DIANE GERBER: He was, yes, just a minute ago. (Indiscernible).
Id. at 89-91.
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{¶10} The October 17, 2010 emergency call included the following
dialogue:
DISPATCHER: 911, what’s your emergency?
DIANE GERBER: I – can you ask – please ask somebody to come
out here? I don’t know what the problem is.
DISPATCHER: What’s going on?
DIANE GERBER: I’m not sure.
DISPATCHER: Okay. What aren’t you sure about? What’s
going on, Diane?
DIANE GERBER: I don’t know (indiscernible).
DISPATCHER: Know what? Diane? What’s going on?
DIANE GERBER: I don’t what his problem is.
DISPATCHER: You don’t know what whose problem is?
DIANE GERBER: No.
DISPATCHER: Diane, you’re going to need to talk to me, tell
me what’s going on.
DIANE GERBER: I can’t (indiscernible).
DISPATCHER: He what?
DIANE GERBER: He’s coming back in the house.
DISPATCHER: He’s coming back in the house?
DIANE GERBER: I got to go.
DISPATCHER: Diane.
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DIANE GERBER: I got to go.
DISPATCHER: You can stay on the phone.
DIANE GERBER: I have to go. Id. at 91-93.
{¶11} And, finally, the April 26, 2011 phone call included the following
dialogue:
DISPATCHER: 911, what is your emergency? 911. Hello?
DIANE GERBER: Hi.
DISPATCHER: Do you have an emergency?
DIANE GERBER: Yes.
DISPATCHER: What’s going on?
DIANE GERBER: Diane Gerber. Please –
DISPATCHER: You need what?
DIANE GERBER: Diane Gerber. Please, stop him.
DISPATCHER: An ambulance? Are you there? I can barely –
Id. at 93-94.2
May’s trial counsel again did not object to either the playing of these recordings or
their admission into evidence.
{¶12} After the recordings were played, Deputy Joe Kopus of the Logan
County Sheriff’s Office took the stand. Deputy Kopus was one of the responding
2
In addition to these transcripts of the phone calls, we have also reviewed State’s Exhibit 1, which is a
compact disc that contains all four recordings.
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officers during each of the incidents charged in the indictment. In addition to
these four incidents, he testified that he had been to Gerber’s and May’s residence
multiple other times:
Q: And in this case, were you dispatched to [Gerber’s and
May’s] home on any of these occasions?
A: Yes, sir, I was.
Q: How many of them were you dispatched to?
A: I was – as far as this case goes, four times. I’ve been out
there other times. I can’t give you an exact number how many I’ve
been to the residence.
Q: Okay. But the – so the four incidents that he’s charged with,
those four dates, you were – you responded on all four of those
dates?
A: Yes, sir.
Q: And you’ve also been out there on other occasions as well[?]
A: Correct, yeah. Id. at 99.
{¶13} Deputy Kopus went on to discuss his interactions with both May and
Gerber during his investigations at their residence. For the October 24, 2008
incident, Deputy Kopus recounted that when he arrived at the scene, Gerber and
May were sitting together in the living room of their residence and Gerber had a
bloody nose. Gerber then told Deputy Kopus that May hit her in the nose. Deputy
Kopus took several pictures of Gerber, which were admitted into evidence. He
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testified that the pictures show a red mark on Gerber’s nose and blood both on her
finger and on her bed.
{¶14} Deputy Kopus’ investigation of the October 24, 2008 incident also
revealed that Gerber and May were possibly involved in an argument before the
alleged violence. The testimony reveals the following about this argument:
Q: Now, in this incident, did you try to find out where this
occurred or what the argument was about?
A: [The other officer] mainly handled the report. I was just a
backup officer. Yeah, [Gerber] stated that [May] struck her in the
nose. And, you know, she was holding a cloth to her nose. And that
was about it.
Q: And you didn’t get into why or what the argument was about?
A: When [the other officer] asked [May] his side of the story, he
stated that he wasn’t going to answer any questions. Id. at 104.
Meanwhile, Deputy Kopus took a statement from Gerber in which she stated that
she was not arguing with May before the alleged violence. This statement also
included the following assertions from Gerber regarding the events of the evening:
Q3: Did [May] hit you[?]
A3: No
Q4: Did [May] slap you[?]
A4: Yes in the nose [and] it started bleeding. State’s Exhibit 16.
{¶15} Deputy Kopus then testified regarding the January 23, 2010 incident.
He again recounted that Gerber told him that May had hit her, this time in the
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upper left eye area. Deputy Kopus observed red marks on Gerber’s face where
she said she had been hit. He took pictures of Gerber, but he testified that the red
marks did not appear in the pictures. Deputy Kopus also testified that May
answered questions regarding the incident and denied hitting his mother, but that
the deputies still arrested him for domestic violence.
{¶16} As to the October 17, 2010 incident, Deputy Kopus indicated that
upon his arrival at the residence, Gerber was outside and was “physically upset.”
Trial Tr., p. 113. He also testified that after discussing how important it was for
Gerber to talk to him about the evening’s events, Gerber stated “‘well, I will just
let him kill me next time.’” Id. She then told Deputy Kopus that May hit her in
the left jaw area, which is where he saw various red marks and some swelling.
{¶17} Deputy Kopus recorded his conversation with Gerber and May
during this incident and the State played the recording, which was received into
evidence.3 The recording reveals that at first, Gerber denied that May hit her.
However, later in her conversation with Deputy Kopus, Gerber stated that May
had threatened her several times and started to cry. She then said that she wanted
to get away from May and then stated that May had hit her in the jaw. Gerber then
said that during her emergency call earlier that she hung up because she did not
want May to see her talking on the phone.
3
We have reviewed both the transcript of the recording and State’s Exhibit 2, which is a compact disc
containing the recording.
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{¶18} The remaining portion of the recording featured Deputy Kopus’s
conversation with May. May’s trial counsel objected to the playing of the
remaining portion because it was highly prejudicial to May. The trial court,
however, overruled the motion. During the course of the conversation, May
denied hitting his mother and admitted to an aggravated menacing arrest and
domestic violence convictions. Despite May’s denial, the deputies said that they
were going to arrest him for domestic violence, which May said would cause him
to serve 30 days in prison. After the deputies informed May that he was under
arrest, he became uncooperative and started to resist. Once the deputies subdued
May, he was placed under arrest and transported to the county jail.
{¶19} Deputy Kopus then testified regarding the April 26, 2011 incident.
He said that he found Gerber with a red mark and swelling in her upper cheek area
that day. Deputy Kopus also indicated that Gerber said that that was the area
where May hit her.
{¶20} Again, Deputy Kopus recorded his conversations during the course
of his on-scene investigation.4 The recording reflects that Gerber said May
threatened to kill her. After first saying that her argument with May was verbal,
Gerber then said May had actually hit her. The following exchange occurred
regarding Gerber’s cooperation with May’s prosecution:
4
We have reviewed both the transcript of the recording and State’s Exhibit 3, which is a compact disc
containing the recording.
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DEPUTY: What do you want done, Diane?
DIANE GERBER: I want him to get some help.
DEPUTY: Yeah. But when you do this and we charge him you
change your story every single time.
DIANE GERBER: I know.
DEPUTY: I don’t have a problem doing my job, but every time
you go in front of the judge you say you don’t remember or you say
it never happened or you say that the officers lied about it.
DIANE GERBER: Well, I know I said all three. Id. at 150.
{¶21} She also indicated that May had broken her teeth “six or eight times.”
Id. at 153. Deputy Kopus then arrested May after he had denied hitting his
mother. Deputy Kopus also indicated that Gerber gave a written statement on
April 26, 2011 to his partner, Logan County Deputy Sheriff Joe Layman. This
statement included the following:
Q: How did you get the injury (bump) over your left eye? Cheek
bone.
A: [May] slapped me.
***
Q: Do you want to file charges against [May] for assaulting you?
A: It was a slap, more of a verbal [sic]. I dont [sic] want him to
get a felony. I need to get some help. State’s Exhibit 17.
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Moreover, Deputy Kopus testified that Gerber’s injuries were consistent with
“getting struck or slapped by someone who is right handed.” Trial Tr., p. 167. He
also indicated that May was right handed.
{¶22} On cross-examination, Deputy Kopus admitted that Gerber and May
were not fighting when he responded to these four incidents. Indeed, he
acknowledged that he did not hear “a lot of yelling, screaming, [and] chaos” when
he was on the scene. Id. at 169. Deputy Kopus also admitted that he had never
seen May hit his mother. He also recounted a separate incident in which he
responded to the house and arrested Gerber for persistent disorderly conduct after
she threatened violence against May. He stated that during this incident, May was
not abusive or mean towards Gerber.
{¶23} After Deputy Kopus stepped down, the trial court granted the State’s
motion and called Gerber as its own witness, without objection by May’s trial
counsel. She testified that she could not recall anything about any of the four
incidents. But, Gerber said that she would not deny the deputies’ testimony that
she did call 911 and made a complaint of domestic violence.
{¶24} On cross-examination by the State, the following exchange occurred:
Q: Would your argument – would your arguments turn into
fighting at all?
A: No, sir.
Q: Has Daniel ever hit you?
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A: No. Id. at 205.
Gerber also reiterated that she could not recall any of the incidents or making any
of her statements to the deputies. But, she acknowledged that if the deputies had
said she made them, then she must have. Then, on cross-examination by May’s
counsel, Gerber indicated that she was not afraid of May. She also recounted the
incident in which she called emergency dispatchers simply because she could not
find her son after she woke up from a nap.
{¶25} After Gerber’s testimony concluded, the State called Logan County
Deputy Sheriff Tony Robinson. In addition to generally corroborating Deputy
Kopus’s testimony regarding the October 24, 2008 incident, Deputy Robinson
reiterated that May did not answer questions during the deputies’ investigation.
Deputy Robinson also referred to other incidents in which he was called to the
residence when May was verbally abusive towards his mother.
{¶26} The State then called Logan County Deputy Sheriff Thomas Meek,
who essentially provided the same testimony regarding the January 23, 2010
incident as Deputy Kopus. Deputy Meek’s testimony indicated that when he
arrived at the house, he observed that Gerber was still locked outside the house
and that May was still naked. Further, upon the deputies’ arrival, Gerber
immediately started to give her statement to the deputies, including that May had
hit her.
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{¶27} Finally, the State called Deputy Layman for the purpose of
discussing the April 26, 2011 incident. When Deputy Layman arrived at Gerber’s
and May’s house, he observed that Gerber was “uneasy with whatever was going
on in the house.” Trial Tr., p. 259. He also reiterated Gerber’s statements that
May was verbally abusive and had threatened her life.
{¶28} Once Deputy Layman stepped down and the State’s exhibits were
admitted, the State rested. May’s trial counsel moved, pursuant to Crim.R. 29, for
acquittal on the grounds that the State failed to provide sufficient evidence for a
reasonable jury to find beyond a reasonable doubt that May was guilty of any of
the charges. The trial court denied the motion.
{¶29} In his defense, May recalled Gerber to the stand. A portion of
Gerber’s testimony refers to May’s purportedly peaceful character:
Q: Have you ever seen [May] be violent or hurt or be aggressive
toward anyone? . . . Have you ever seen anything like? Does he go
out to bars?
A: No.
Q: He’s never gone out to a bar and then come home drunk or
anything?
A: No.
Q: You never had any knowledge, personal, that you know he
was ever in a bar fight, let’s just say?
A: (Shakes head). Id. at 294.
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After Gerber completed her testimony, May rested.
{¶30} It is important to note that during the course of the trial proceedings,
May’s trial counsel entered no other objection to any of the testimony that the
State adduced or the exhibits that it offered into evidence, except for the objection
to a portion of the October 17, 2010 recording on unfair prejudice grounds. Also,
the parties stipulated to May’s previous convictions for domestic violence.
{¶31} On September 2, 2011, the jury returned a verdict of guilty on all of
the charges alleged in the indictment. May renewed his motion for acquittal under
Crim.R. 29, but the trial court again denied it. On September 7, 2011, the trial
court issued a judgment entry reflecting the verdict. The trial court then proceeded
to the sentencing phase. On October 14, 2011, the trial court held a sentencing
hearing. The trial court entered an sentence of three years and six months in
prison. This sentence was journalized in a judgment entry filed on October 18,
2011.
{¶32} May filed this timely appeal, presenting the following assignments of
error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED WHEN IT ADMITTED
TESTIMONY THAT APPELLANT REFUSED TO PROVIDE
THE DEPUTIES WITH A STATEMENT.
Assignment of Error No. II
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THE TRIAL COURT ERRED WHEN IT ADMITTED THE
TESTIMONY OF OFFICER KOPUS AND THE
DISPATCHERS OF THE LOGAN COUNTY SHERIFF’S
DEPARTMENT ABOUT THE CONTENTS OF THE
STATEMENTS MADE BY DIANE GERBER.
Assignment of Error No. III
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
GRANTED APPELLEE’S MOTION AND CALLED DIANE
GERBER AS ITS OWN WITNESS.
Assignment of Error No. IV
THE TRIAL COURT ERRED WHEN IT ADMITTED
EVIDENCE THAT APPELLANT AND HIS MOTHER HAD
PURPORTEDLY PREVIOUSLY HAD PHYSICAL
ALTERCATIONS.
Assignment of Error No. V
THE TRIAL COURT ERRED WHEN IT ADMITTED
APPELLANT’S STATEMENTS TO THE ARRESTING
OFFICERS.
Assignment of Error No. VI
THE TRIAL COURT ERRED WHEN IT PERMITTED THE
PROSECUTION TO EMPLOY ITS PREEMPTORY
CHALLENGES IN A GENDER-DISCRIMINATORY
MANNER.
Assignment of Error No. VII
THE ACTS AND OMISSIONS OF TRIAL COUNSEL
DEPRIVED APPELLANT OF HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.
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Assignment of Error No. VIII
THE COMBINED EFFECT OF ALL THE ERRORS
IDENTIFIED IN THIS BRIEF DEPRIVED APPELLANT OF
DUE PROCESS AND A FAIR TRIAL.
Assignment of Error No. I
{¶33} In his first assignment of error, May contends that it was erroneous
for the trial court to admit testimony that he refused to answer the deputies’
questions during the investigation of the October 24, 2008 incident. We disagree.
{¶34} We preliminarily note that May did not raise an objection to the
admission of this evidence in the trial court. Consequently, our review is limited
to the existence of plain error in the trial court proceedings. See State v. Balo, 3d
Dist. No. 1-10-48, 2011-Ohio-3341, ¶ 48. To have plain error under Crim.R.
52(B), there must be an error that both constitutes an “obvious” defect in the trial
proceedings and affects “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27
(2002). Plain error is to be used “with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” Id. Plain
error exists only in the event that it can be said that “but for the error, the outcome
of the trial would clearly have been otherwise.” State v. Biros, 78 Ohio St.3d 426,
436 (1997); see State v. Johnson, 3d Dist. No. 2-98-39 (June 30, 1999).
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{¶35} The United States Constitution provides that no person “shall be
compelled in any criminal case to be a witness against himself.”5 Fifth
Amendment to the United States Constitution. The Ohio Supreme Court has
interpreted this clause as precluding the State from offering evidence of pre-arrest
silence as substantive evidence of the criminal defendant’s guilt. See State v.
Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, ¶ 30 (“[T]he use of [a defendant’s]
pre-arrest silence in the [S]tate’s case-in-chief as substantive evidence of guilt
subverts the policies behind the Fifth Amendment.”). In Leach, the State referred
to the defendant’s pre-arrest silence in its opening statement and purposefully
elicited testimony to that effect from the investigating officers. Meanwhile, the
other evidence of the defendant’s guilt was “not overwhelming.” Id. at ¶ 38.
Consequently, the Court found that the State offered the defendant’s pre-arrest
silence as substantive evidence of guilt and reversed his conviction. Id.
{¶36} This court has been presented with Leach-based challenges in two
relevant cases. In State v. Castle, 3d Dist. No. 8-06-27, 2007-Ohio-3599, the
testifying officer made a “vague, isolated remark” regarding the defendant’s
failure to answer police questions. Id. at ¶ 35. Further, “[n]othing in the record
indicate[d] that the prosecution intentionally elicited the remark; that the remark
5
The Ohio Constitution uses the same language to establish the right of criminal defendants against self-
incrimination. Ohio Constitution, Article I, Section 10. Accordingly, the Ohio Constitution’s self-
incrimination privilege provides the same degree of protection to criminal defendants in this regard as the
United States Constitution does. See State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 47 (“[W]hen
provisions of the Ohio Constitution and United States Constitution are essentially identical, we should
harmonize our interpretations of the provisions.”).
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equated silence with guilt; or that the remark harmed [the defendant] in any way.”
Id. As a result, we found no reversible error. Similarly, in State v. Rick, 3d Dist.
No. 9-08-27, 2009-Ohio-785, we found that the testifying officer’s comment on
pre-arrest silence was permissible because it “was only cited to show the
chronology of events on the night [that the defendant] was apprehended.” Id. at ¶
48.
{¶37} Here, both Deputy Kopus and Deputy Robinson indicated that May
did not answer questions regarding the October 24, 2009 incident. A review of
their testimony and the State’s arguments shows that this matter is factually
distinguishable from Leach and instead falls into the Castle/Rick ambit of cases.
Unlike Leach, the State did not refer to May’s pre-arrest silence in its opening
statement. Further, as in Castle, there is no indication that the State intended to
elicit testimony that May failed to respond to questions regarding the charged
incidents. Rather, like Rick, the record reflects that Deputy Kopus’ and Deputy
Robinson’s testimony regarding May’s pre-arrest silence occurred in the course of
them describing the investigation of the October 24, 2008 incident. In light of this
evidence, we find no plain error in the trial court’s admission of the testimony
regarding May’s pre-arrest silence. Compare Sate v. Riffle, 9th Dist. No.
07CA0114-M, 2008-Ohio-4155, ¶ 16 (finding that three references to the
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defendant’s pre-arrest silence during case-in-chief and closing statement
constituted substantive evidence of guilt and produced reversible error).
{¶38} Accordingly, we overrule May’s first assignment of error.
Assignment of Error No. II
{¶39} In his second assignment of error, May argues that the trial court
improperly allowed the testimony of Deputy Kopus and the Logan County
Sheriff’s Department emergency dispatchers regarding Gerber’s out-of-court
statements. Specifically, May claims that the statements amount to inadmissible
hearsay that falls under no exception. The State counters that the statements were
admissible as excited utterances or present sense impressions.6 We disagree with
May and find that the challenged statements all fall under a hearsay exception.
{¶40} As a threshold matter, we again note that May did not object to the
admission of these out-of-court statements at trial. Consequently, we employ
plain error review. See Balo, 2011-Ohio-3341, at ¶ 48.
Evidentiary Rules for Hearsay
{¶41} Hearsay is “a statement, other than one made by the declarant while
testifying at trial or hearing, offered in evidence to prove the truth of the matter
6
The State also suggests that the statements potentially fall under the statement of then existing mental,
emotional, or physical condition hearsay exception. See Evid.R. 803(3). Statements admitted under this
exception “cannot include an explanation as to why the declarant was of that particular [condition].” State
v. Stewart, 75 Ohio App.3d 141, 152 (11th Dist. 1991), citing State v. Apanovitch, 33 Ohio St.3d 19, 21
(1987). Except for Gerber’s statements regarding the mere existence of her injuries, none of the statements
implicated in this Assignment of Error are covered by the then existing mental, emotional, or physical
condition because they all involve explanations by Gerber as to the source of her injuries.
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asserted.” Evid.R. 801(C). Evid.R. 802 generally prohibits the admission of
hearsay unless the offered hearsay statement is covered by a specific exception.
Two such exceptions are possibly applicable in this matter.
{¶42} First, the present sense impression exception allows the admission of
a hearsay statement if it “describe[s] or explain[s] an event or condition while the
declarant was perceiving the event or condition, or immediately thereafter unless
circumstances indicate lack of trustworthiness.” Evid.R. 803(1). “The principle
underlying this exception is the assumption that statements or perceptions,
describing the event and uttered in close temporal proximity to the event, bear a
high degree of trustworthiness.” Cox v. Machinery Co., 41 Ohio App.3d 28, 35
(12th Dist. 1987). Accordingly, “central to the admission of statements of present
sense impression is the temporal proximity of the statements to the event at issue.”
State v. Graves, 9th Dist. No. 08CA009397, 2009-Ohio-1133, ¶ 4, vacated on
other grounds, 2011-Ohio-5997; see also Cox at 35-36 (“The key to the
statement’s trustworthiness is the spontaneity of the statement, either
contemporaneous with the event or immediately thereafter.”). While temporal
proximity is critical to a present sense impression analysis, there is no bright line
rule as to what amount of elapsed time precludes a finding that the exception
applies. Indeed, some courts have found that the exception applies even where the
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statement was made up to an hour after the event perceived. See, e.g., State v.
Travis, 165 Ohio App.3d 626, 2006-Ohio-787, ¶ 37 (2d Dist.).
{¶43} Second, the excited utterance exception permits the introduction of
“[a] statement relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition.” Evid.R.
803(2). For a statement to satisfy Evid.R. 803(2)’s excited utterance exception, the
following four elements must be present:
(1) the event must be startling enough to produce a nervous
excitement in the declarant,
(2) the statement must have been made while the declarant was still
under the stress of excitement caused by the event,
(3) the statement must relate to the startling event, and
(4) the declarant must have personally observed the startling event.
State v. Tebelman, 3d Dist. No. 12-09-01, 2010-Ohio-481, ¶ 27,
citing State v. Taylor, 66 Ohio St.3d 295, 300-01 (1993).
Further, “[t]he controlling factor is whether the declaration was made under such
circumstances as would reasonably show that it resulted from impulse rather than
reason and reflection.” State v. Humphries, 79 Ohio App.3d 589, 598 (12th Dist.
1992).
Gerber’s October 24, 2008 Telephone Call
{¶44} The courts have consistently noted that “911 calls are generally
admissible as excited utterances or present sense impressions.” State v. Johnson,
10th Dist. No. 08AP-652, 2009-Ohio-3383, ¶ 22. Based on our review of Gerber’s
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telephone call to the Logan County Sheriff’s emergency dispatch on October 24,
2008, we find that it fits into this general trend.
{¶45} Two of Gerber’s statements in the 911 call are central to our review.
First, she stated that “[m]y son is beating me” and second, she said, “I need
somebody to control him.” Trial Tr., p. 82-83. While there is no concrete
evidence in the record establishing the exact time of the alleged abuse, these
statements suggest that May hit his mother shortly before the call. It is unlikely
that Gerber would request help “control[ling]” May unless she was perceiving a
present threat to her safety. Further, her use of the present participle “beating”
also indicates that May’s alleged abuse was ongoing at the time of the call. Under
these facts, we find that Gerber’s statements in the October 24, 2008 emergency
dispatch call were present sense impressions.
{¶46} Moreover, even if the statements were not present sense impressions,
they were excited utterances. Gerber indicated that she needed somebody to
control May, which suggests that she was under the stress of possible physical
harm at the time that she made the call. May seizes upon Gerber’s statement in
the 911 call that “I’ll be fine” to argue that she was not under the stress of
excitement. Id. at 83. However, Gerber did not say “I am fine.” She said, “I’ll be
fine,” suggesting that at the time of the call she was not “fine.” As a result, May’s
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reliance on this statement is misplaced since it actually signals that Gerber was
under the stress of May’s alleged abuse at the time of the call.
{¶47} Consequently, we find that it was not plain error for the trial court to
admit Gerber’s statements in this 911 call into evidence.
Gerber’s Statements to Deputy Kopus on October 24, 2008
{¶48} Deputy Kopus testified that Gerber informed him during his
investigation of the October 24, 2008 incident that May had hit her. The State also
offered a written statement from Gerber regarding May’s alleged abuse that
evening.7 A review of the record discloses that the trial court properly admitted
Gerber’s statements.
{¶49} Again, there is no concrete indication in the record exactly when the
alleged abuse occurred. However, when Deputy Kopus arrived on the scene,
Gerber’s nose was still bleeding from the alleged abuse and she was holding a
towel to it. This evidence, combined with Gerber’s statements in her 911 call,
indicates that the alleged abuse occurred shortly before Gerber made her oral
statement to Deputy Kopus. Further, it also reflects that Gerber was still under the
stress of the abuse when she made her statement. As such, her oral statements to
Deputy Kopus were admissible as an excited utterance. While it may have been
error to admit the written statement, we find it to be cumulative and harmless in
7
We note that in his appellate brief, May challenges the reading of the written statement into the record,
but that he does not explicitly challenge the admission of the written statement into the record as State’s
Exhibit 16.
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this case. Consequently, we find that it was not plain error for the trial court to
admit Deputy Kopus’ testimony regarding Gerber’s statements to him.
Gerber’s January 23, 2010 Telephone Call
{¶50} Gerber’s telephone call to the Logan County emergency dispatchers
on January 23, 2010 included two relevant statements: (1) May was running
around naked; and (2) Gerber was locked out of the house in the cold weather.
There is no indication in the record that these events were not occurring at the time
that Gerber made her statements to the dispatcher. Further, when Deputy Kopus
and Deputy Meek arrived at the house, May was still naked and Gerber was still
locked outside. Based on this, Gerber’s statements are plainly within the present
sense impression exception.8 Moreover, even if the statements were not within a
hearsay exception, their admission would be harmless because Gerber did not
suggest that she suffered any physical abuse during the telephone call.
Consequently, we find that it was not plain error for the trial court to admit
Gerber’s statements in her 911 call on January 23, 2011.
Gerber’s Statements to Deputies on January 23, 2010
{¶51} During the deputies’ investigation of the January 23, 2010 incident,
Gerber once again told the responding deputies that May had hit her. Both Deputy
8
Since Gerber made the statements while she was still locked out, there is also a sufficient basis to
conclude that she was under stress so as to bring statements under the excited utterance exception.
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Kopus and Deputy Meek testified as to these statements. A review of the record
discloses that the statements are admissible as present sense impressions.
{¶52} Deputy Meek testified that when he and Deputy Kopus arrived at the
house, they discovered Gerber locked outside with May still inside naked. Deputy
Meek further stated that upon their arrival, Gerber immediately said that May had
struck her. This close temporal proximity between Gerber’s statement and the
described event satisfies the present sense impression exception. Compare Travis,
165 Ohio App.3d 626, 2006-Ohio-787, at ¶ 37 (finding that declarant’s statement
to police was admissible where statement related to events that occurred an hour
beforehand and were immediately given after police arrived) with State v. May,
7th Dist. No. 10 CO 23, 2011-Ohio-6637, ¶ 41 (finding that declarant’s statement
regarding described events was not covered by present sense impression because
declarant did not make statement until long after the deputies had arrived on scene
to investigate).9 Consequently, we find that it was not plain error for the trial court
to admit Gerber’s statements to the deputies on January 23, 2010.
Gerber’s October 17, 2010 Telephone Call
{¶53} Gerber’s telephone call to the Logan County emergency dispatchers
on October 17, 2010 included two relevant statements: (1) May was coming back
into the house; and (2) Gerber said she had to get off the phone. These statements
9
Moreover, Gerber’s statement was made while she was under the shock of having seen her son nude in
her bedroom and having been locked outside of the house on a cold evening. This evidence is sufficient to
establish the applicability of the excited utterance exception.
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suggest that Gerber was contemporaneously observing May at the time of the
phone call and that she was fearful that May would find her on the telephone.
Indeed, she later told the deputies that she hung up the phone because she was
afraid that May would discover her. Based on this, Gerber’s statements in the
telephone call are properly considered either present sense impressions or excited
utterances and they were accordingly admissible. Further, even if the statements
were inadmissible, their admission would be harmless error because the statements
do not indicate that May had abused Gerber.
{¶54} May points to Gerber’s failure to identify the nature of the
emergency in her 911 call to indicate that she was not under stress at the time of
the call. This failure does little more than reinforce Gerber’s reluctant nature in
reporting May’s alleged abuse. Further, it could be seen as implying that Gerber
was unwilling to identify the emergency out of fear that May would take adverse
action against her. As a result, we decline to adopt May’s reasoning.
Consequently, we find that it was not plain error for the trial court to admit
Gerber’s October 17, 2010 telephone call.
Gerber’s Statements to Deputies on October 17, 2010
{¶55} Deputy Kopus testified that Gerber was “physically upset” when she
made her statements to the deputies on October 17, 2010. Trial Tr., p. 113. The
recording of her statements disclosed that Gerber repeatedly said she could not
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handle the situation anymore and that she needed to get away from May. Further,
Gerber cried at several points in the conversation. This evidence suggests that
Gerber was distressed throughout her statements. As such, the statements were
admissible as excited utterances. Consequently, we find that it was not plain error
for the trial court to admit Gerber’s statements to the deputies on October 17,
2010.
Gerber’s April 26, 2011 Telephone Call
{¶56} Gerber’s 911 telephone call on April 26, 2011 merely included her
statement that there was an emergency and that she wanted somebody to stop
“him.” Id. at 93-94. Her request that someone come to control May indicates that
there was ongoing conduct and that Gerber was fearful for her personal safety. As
a result, the statements are either excited utterances or present sense impressions
and are properly admissible. Consequently, we find that it was not plain error for
the trial court to admit Gerber’s statements during her telephone call on April 26,
2011.
Gerber’s Statements to Deputies on April 26, 2011
{¶57} Deputy Layman testified that when Deputy Kopus and he arrived at
Gerber’s and May’s house on April 26, 2011, Gerber appeared “uneasy with
whatever situation was going on inside the house.” Id. at 259. Further, Deputy
Kopus’ testimony indicated that May had threatened to kill Gerber and was
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verbally abusive to her. These facts suggest that Gerber was under stress of the
alleged abuse when she made her statements. As such, her statements to the
deputies on April 26, 2011 fall under the excited utterance exception.
{¶58} May claims that there was no basis for an excited utterance finding
because Gerber did not explicitly state that she was afraid of May. While Gerber
did not explicitly admit her fear, her statements reflect that she was afraid of May.
She wanted deputies to come to her house to control him. And, she was on the
receiving end of death threats from him. Based on this evidence, we find May’s
argument to be unpersuasive. Consequently, we find that the trial court did not
commit plain error in admitting Gerber’s statements to the deputies on April 26,
2011.
May’s Arguments for Inadmissibility
{¶59} May’s counterargument regarding the applicability of the excited
utterance exception narrowly focuses on the deputies’ description of Gerber as
highly intoxicated. This description is immaterial to the admissibility of the above
evidence, and goes only to the weight of the evidence. Rather, our analysis
focuses on the statements, actions, and demeanor of Gerber. She called
emergency dispatchers requesting assistance in controlling or stopping May.
When the deputies responded, they found her once with a bloody nose, once she
was “physically upset,” and once she was “uneasy.” These items of evidence
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provide a sufficient basis for a finding that Gerber’s statements were admissible as
excited utterances and her intoxication does not render this conclusion invalid.
{¶60} May also suggests that for the excited utterance exception to apply in
this matter, Gerber had to be uncontrollably shaking or in an extreme state of fear.
Despite May’s suggestion, he has not cited any case requiring such a showing. In
light of this and our application of plain error review, the evidence of Gerber’s
distress discussed above is sufficient to satisfy the excited utterance exception.
{¶61} May’s contention that the present sense impression exception does
not apply is also unavailing. The exception applies both where the declarant’s
statement relates to his contemporaneous observation of the described event and
where the declarant made his statement soon after observing the described event.
State v. Urso, 195 Ohio App.3d 665, 2011-Ohio-4702, ¶ 69 (11th Dist.) (finding
that statement was admissible because declarant described events as he was
perceiving them); Travis, 165 Ohio App.3d 626, 2006-Ohio-787, at ¶ 37 (finding
that declarant’s statement to police was admissible where statement related to
events that occurred an hour beforehand). Thus, the present sense impression
exception still applies here and we decline to read the exception as narrowly as
May suggests we do.
{¶62} Accordingly, we overrule May’s second assignment of error.
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Assignment of Error No. III
{¶63} In his third assignment of error, May claims that the trial court
abused its discretion by granting the State’s motion for the trial court to call Diane
Gerber as its own witness. We disagree.
{¶64} Evid.R. 614(A) provides: “The court may, on its own motion or at
the suggestion of a party, call witnesses, and all parties are entitled to cross-
examine witnesses thus called.” Further, Evid.R. 614(C) requires that objections
to the trial court’s calling of a witness be made either at the time of the calling or
shortly thereafter. May did not present any objection to the trial court’s calling of
Gerber as its own witness. He filed no written opposition to the State’s motion,
nor did his trial counsel orally contest the calling of Gerber. As such, May has
waived appellate review of this issue. State v. Davis, 79 Ohio App.3d 450, 455
(4th Dist. 1992) (“The failure of a party to object in accordance with Evid.R.
614(C) waives consideration of the claimed error on appeal * * *.”); see also State
v. Brown, 11th Dist. No. 2001-T-0146, 2003-Ohio-2364, ¶ 38-39 (finding waiver
of Evid.R. 614 issues when not raised in court below); Metaullics Sys. Co. L.P. v.
Molten Metal Equip. Innovations, Inc., 110 Ohio App.3d 367, 373 (8th Dist. 1996)
(same).
{¶65} Even if the issue was not waived, the record reflects that the calling
of Gerber as the trial court’s witness did not prejudice May. Gerber testified that
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May had not hit her and that she could not remember the incidents included in the
indictment. Further, Gerber was subject to cross-examination by May’s trial
counsel. And, May’s trial counsel even recalled Gerber as a defense witness.
Based on this record, we find no error in the trial court’s calling of Gerber as its
own witness.
{¶66} Accordingly, we overrule May’s third assignment of error.
Assignment of Error No. IV
{¶67} In his fourth assignment of error, May contends that the trial court
erroneously allowed evidence regarding previous physical altercations between
May and Gerber. We disagree.
{¶68} Again, we preliminarily note that May did not object to the
admission of this evidence in the trial court. Consequently, May has “waived any
challenge to the admission of evidence on appeal, save plain error.” Shanklin v.
Lowman, 3d Dist. No. 8-10-07, 2011-Ohio-255, ¶ 46; see also Balo, 2011-Ohio-
3341, ¶ 8.
{¶69} Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
conformity therewith.” However, there are exceptions to the general rule: “It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
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intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Id.{¶70} In his appellate brief, May identifies several portions of the trial
transcript in which the State purportedly offered evidence that is inadmissible
under Evid.R. 404(B) because it demonstrates May’s previous bad acts. These
portions of the transcript reveal the following evidence: (1) the deputies have been
to Gerber’s and May’s house several times in addition to the incidents described in
the indictment; (2) Gerber refused to assist in previous prosecutions of May; (3)
May has previous domestic violence convictions and an arrest for aggravated
menacing; and (4) May broke his mother’s teeth on previous occasions. We
address each of these items in turn.
Previous Police Visits
{¶71} The evidence that the deputies have visited Gerber’s and May’s
house on previous occasions other than the ones charged in the indictment does
not amount to “other acts” evidence that is inadmissible under Evid.R. 404(B).
There was no testimony indicating that the deputies observed May engage in any
bad acts or arrested him during these other visits. Indeed, except for one occasion,
the record is devoid of any evidence as to why the deputies visited the house or
what they observed during these visits. As to this one exception, the evidence
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adduced established that the deputies visited because Gerber was unable to find
May and that she was arrested for disorderly conduct as a result of her actions.10
{¶72} Even if the visits were inadmissible, the error would have been
harmless. See State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, ¶ 25 (stating
that harmless error “is any error that does not affect the outcome of the case and,
thus, does not warrant a judgment overturned or set aside.”). The evidence of the
previous visits does not reduce the import of Gerber’s statements to the deputies
and the testimony regarding her injuries. Further, May’s stipulation to previous
domestic violence offenses already had the effect of informing the jury that there
were previous interactions between May and the deputies. Thus, any potential
erroneous admission of this evidence would not have affected the jury’s findings.
Consequently, we find no plain error in the trial court’s admission of this evidence
of other police visits to Gerber’s and May’s house.
Gerber’s Lack of Cooperation with Previous Prosecutions of May
{¶73} Like the police visits, the evidence of Gerber’s lack of cooperation
with previous prosecutions of May does not amount to “other acts” evidence that
is inadmissible under Evid.R. 404(B). The evidence adduced at trial included
Gerber’s statements in the recordings that she was uncooperative with prosecuting
May after the first indictment was issued. The first indictment’s charges were
10
We also note that May’s trial counsel referred to the fact that the authorities had been to the house
multiple times. See Trial Tr., p. 187 (“I know that you have been out there various different times * * *.”).
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based on the October 24, 2008 and January 23, 2010 incidents, both of which were
also covered in the second indictment. As such, the evidence relates to the counts
charged in the second indictment and the circumstances surrounding this
prosecution, which leaves this evidence outside the purview of Evid.R. 404(B).
See State v. Hobson, 5th Dist. No. CA-732 (Aug. 2, 1991) (finding that Evid.R.
404(B) did not cover the witness’s “narrative of the events that occurred,” which
described “the surrounding circumstances for the crime [charged]”). Further, the
evidence does not reflect upon May’s character, but only upon Gerber’s character
for credibility. Consequently, we find no plain error in the admission of the
evidence regarding Gerber’s lack of cooperation with previous prosecutions of
May.
Evidence of May’s Criminal History
{¶74} Two items of evidence presented at trial relate to May’s criminal
history: (1) his previous convictions for domestic violence; and (2) his previous
charge for aggravated menacing. The admission of these items does not constitute
reversible error.
{¶75} May was charged with four counts of domestic violence, each with a
specification that he had previous domestic violence convictions. The State must
prove an indictment specification beyond a reasonable doubt. See State v. Louis,
9th Dist. No. 20073 (Mar. 7, 2001) (“[T]he existence of a prior crime of domestic
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Case No. 8-11-19
violence [is] an element of the crime charged and it [is], therefore, incumbent
upon the State to establish the prior crime by evidence beyond a reasonable
doubt.”). Based on this requirement, courts have allowed the State to present
additional evidence of the defendant’s domestic violence convictions, even when
the parties have stipulated to such convictions. State v. Arnold, 8th Dist. No.
79280 (Jan. 24, 2002); see also State v. Rivera, 99 Ohio App.3d 325, 329-30 (11th
Dist. 1994) (allowing State to present evidence of prior drug convictions even
though the defendant stipulated to such convictions because the State had to prove
previous convictions to obtain punishment enhancement).
{¶76} In this matter, the parties did stipulate to May’s previous
convictions.11 The State also called Deputy Kopus and played the recordings of
his conversations with May. In those conversations, May said that he had prior
convictions and that his next conviction would produce a prison term. This
evidence is plainly admissible because it is relevant to the specifications included
in the indictment.
{¶77} The recordings also include May’s statement that he was previously
charged with aggravated menacing. Unlike evidence of his previous domestic
violence convictions, this is not relevant to the crimes charged in the indictment.
However, we find no prejudicial error in the evidence’s admission. The State did
11
Although the State contends that it did not present additional evidence of May’s convictions, the record
reflects that the State played the audio tape with May making his own admissions as to his prior
convictions.
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Case No. 8-11-19
not present any evidence besides May’s short admission regarding the aggravated
menacing charge. And, the State did not cite to it in either the opening or closing
statement. Thus, there is no indication that this evidence overpowered the jury
and caused the outcome of the trial to change. Consequently, we find that the
admission of evidence regarding May’s criminal history does not amount to plain
error.
May’s Alleged Breaking of Gerber’s Teeth
{¶78} Evidence that May allegedly broke Gerber’s teeth presents a closer
call. However, after considering the record in its entirety, we do not find any
reversible error.
{¶79} In the recording of Deputy Kopus’ conversation with Gerber on
April 26, 2011, Gerber indicates that May had previously broken her teeth.
However, there was no indication in the conversation whether the breaking of
Gerber’s teeth resulted from May’s violence or from another type of conduct.
Further, on direct examination by May’s trial counsel, Gerber said that May did
not purposefully break her teeth and that he repaired them whenever they broke.
As a result of this, the jury was unable to draw any inferences from the evidence
except that Gerber’s teeth were previously broken.
{¶80} Even if the evidence was improper, its admission would be harmless.
May’s alleged breaking of Gerber’s teeth did not change the outcome in the trial
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court. Gerber’s statements, the testimony from the responding deputies, and the
evidence of Gerber’s injuries support May’s conviction. See State v. Barker, 6th
Dist. No. L-01-1290, 2002-Ohio-2801, ¶ 26 (finding that the admission of prior
bad acts was not plain error because other evidence was sufficient to support the
defendant’s conviction). In light of this, we cannot say that the jury relied upon
the evidence of May’s alleged breaking of Gerber’s teeth in reaching its verdict.
Consequently, we find no plain error in the admission of evidence regarding the
alleged breaking of Gerber’s teeth.
{¶81} Additionally, we note that May introduced evidence of his peaceful
character. When May recalled Gerber as a defense witness, she testified that May
was not aggressive or violent toward anyone. Even if the evidence of May’s other
acts had a prejudicial effect on the jury, Gerber’s testimony would have reduced it.
{¶82} Accordingly, we overrule May’s fourth assignment of error.
Assignment of Error No. V
{¶83} In his fifth assignment of error, May argues that his statements to the
responding officers are inadmissible. Specifically, May suggests that the
statements were made while he was under arrest and before he was advised of his
constitutional rights. We disagree.
{¶84} In the trial court proceedings, May did not object to the admission of
his statements on the grounds that they violated his Miranda rights. As such May
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has waived this issue, except for plain error. State v. Truax, 7th Dist. No. 06 BE
66, 2007-Ohio-4993, ¶ 16, citing State v. Foust, 105 Ohio St.3d 107, 2004-Ohio-
7006, ¶ 58 (“[T]he failure to properly provide Miranda warning are issues that
must be resolved in the trial court during suppression proceedings, and these
issues cannot be raised for the first time on appeal.”). As discussed above, May’s
statements to the deputies referred to his previous domestic violence convictions,
which are admissible, and his previous aggravated menacing arrest, which is not
prejudicial to May. See State v. Morris, 7th Dist. No. 08 CO 7, 2009-Ohio-3326, ¶
47 (finding that due to other evidence in the case, the defendant’s statements to
deputies in violation of Miranda were harmless). Consequently, we do not find
plain error in the admission of May’s statements.
{¶85} Accordingly, we overrule May’s fifth assignment of error.
Assignment of Error No. VI
{¶86} In his sixth assignment of error, May maintains that the trial court
erroneously allowed the State to employ preemptory challenges in a gender
discriminatory fashion. We disagree.
{¶87} In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419(1994), the United States Supreme Court found that “the Equal Protection Clause
prohibits discrimination in jury selection on the basis of gender.” Id. at 146; see
also Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712 (1986) (prohibiting use
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Case No. 8-11-19
of racial discrimination in preemptory challenges). A criminal defendant’s failure
to assert a J.E.B. issue, however, results in a waiver of that issue, except for the
existence of plain error. State v. Ballew, 76 Ohio St.3d 244, 253 (1996). In
Ballew, the defense’s failure to object prevented the State from offering a non-
discriminatory explanation for its preemptory challenge. As a result, the Court
decided against addressing the issue’s merits. Id. The same facts exist here and
we follow Ballew’s guidance in finding a waiver of any J.E.B. issue.
{¶88} Accordingly, May’s sixth assignment of error is overruled.
Assignment of Error No. VII
{¶89} In his seventh assignment of error, May contends that he was
deprived of the effective assistance of counsel in violation of the Sixth and
Fourteenth Amendments to the United States Constitution. Specifically, May
suggests that his trial counsel’s failure to object to the evidence described in
Assignment of Error Nos. I through V and the State’s preemptory challenges
establish ineffective assistance of counsel. We disagree.
{¶90} An ineffective assistance of counsel claim requires proof that trial
counsel’s performance fell below objective standards of reasonable representation
and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d
136 (1989), paragraph two of the syllabus. To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there
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exists a reasonable probability that, but for counsel’s errors, the outcome at trial
would have been different. Id. at paragraph three of the syllabus. “Reasonable
probability” is a probability sufficient to undermine confidence in the outcome of
the trial. State v. Waddy, 63 Ohio St.3d 424, 433 (1992), citing United States v.
Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375 (1985), superseded by constitutional
amendment on other grounds as recognized by State v. Smith, 80 Ohio St.3d 89,
103 (1997).
{¶91} Further, the court must look to the totality of the circumstances and
not isolated instances of an allegedly deficient performance. State v. Malone, 2d
Dist. No. 10564 (Dec. 13, 1989). “Ineffective assistance does not exist merely
because counsel failed ‘to recognize the factual or legal basis for a claim, or failed
to raise the claim despite recognizing it.’” Id., quoting Smith v. Murray, 77 U.S.
527, 535, 106 S.Ct. 2661 (1986).
{¶92} As explained above, evidence of May’s pre-arrest silence, other acts,
and statements to the deputies, as well as the evidence of Gerber’s statements to
emergency dispatchers and responding officers, were either properly admitted or
their admission was harmless error. Further, the trial court’s calling of Gerber as
its own witness was not error. As such, we cannot find that the failure of May’s
trial counsel to object to these evidentiary items or to the calling of Gerber as the
trial court’s witness rises to the level of ineffective assistance of counsel. See
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State v. Dubose, 7th Dist. No. 00-C.A.-60, 2002-Ohio-6613, ¶ 12-13 (finding no
ineffective assistance of counsel where the trial counsel did not object to
admissible evidence or to evidence that was harmlessly admitted).
{¶93} As to the failure of May’s trial counsel to request a hearing regarding
the State’s alleged use of gender discrimination during voir dire, we look to the
authority of State v. Burks, 10th Dist. No. 07AP-553, 2008-Ohio-2463. There, the
court confronted an ineffective assistance of counsel claim for failure of the trial
counsel to assert a Batson violation during the voir dire process. Without an
objection, there was no record regarding the State’s possible use of racial
discrimination during voir dire. As a result, the court stated:
We do not presume prejudice from a trial counsel’s failure to raise a
Batson challenge, and, as here, without an adequate record, we
cannot properly consider on direct appeal a claim of ineffective
assistance of counsel for a trial counsel’s failure to raise a Batson
objection. Id. at ¶ 57.
{¶94} We elect to follow Burks and apply it here to the State’s alleged use
of gender discrimination during voir dire. There was no objection in the trial court
and there is only evidence that the State excused male jurors and alternates. As a
result, there is an inadequate record and we are unable to assess the merits of
May’s argument. We also note that the makeup of the jury was almost equally
balanced as to gender. Consequently, we decline to assess whether the failure of
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May’s trial counsel to probe into the reasons for the State’s preemptory challenges
supports an ineffective assistance of counsel claim.
{¶95} Accordingly, we overrule May’s seventh assignment of error.
Assignment of Error No. VIII
{¶96} In his eighth assignment of error, May argues that cumulative errors
in the trial court proceedings deprived him of due process. We disagree.
{¶97} The doctrine of cumulative error provides that “a conviction will be
reversed where the cumulative effect of errors in a trial deprives a defendant of the
constitutional right to a fair trial even though each of numerous instances of trial
court error does not individually constitute cause for reversal.” State v. Baucom,
3d Dist. No. 17-03-14, 2003-Ohio-6986, ¶ 6, quoting State v. Leach, 150 Ohio
App.3d 567, 2002-Ohio-6654, ¶ 57 (1st Dist.). The appellant must show that there
is a reasonable probability that but for the errors, the trial outcome would have
been different. State v. Ray, 3d Dist. No. 14-05-39, 2006-Ohio-5640, ¶ 68. Here,
because we have found no errors in May’s previous assignments, May’s argument
that cumulative error has resulted in a denial of due process must also necessarily
fail. State v. Bradley, 3d Dist. No. 15-10-03, 2010-Ohio-5422, ¶ 82.
{¶98} Accordingly, we overrule May’s eighth assignment of error.
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{¶99} Having found no error prejudicial to May, in the particulars assigned
and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and WILLAMOWSKI, J., concur.
/jlr
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