State v. Turks , 2010 Ohio 5944 ( 2010 )


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  • [Cite as State v. Turks, 
    2010-Ohio-5944
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    ALLEN COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                                CASE NO. 1-10-02
    v.
    LLOYD D. TURKS,                                            OPINION
    DEFENDANT-APPELLANT.
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                                CASE NO. 1-10-26
    v.
    LLOYD D. TURKS,                                            OPINION
    DEFENDANT-APPELLANT.
    Appeals from Allen County Common Pleas Court
    Trial Court No. CR2007 0320
    Judgments Affirmed
    Date of Decision: December 6, 2010
    Case No. 1-10-02, 1-10-26
    APPEARANCES:
    Andrew J. King for Appellant
    Jana E. Emerick for Appellee
    PRESTON, J.
    {¶1} Defendant-appellant, Lloyd D. Turks (hereinafter “Turks”), appeals
    the Allen County Court of Common Pleas’ judgment of conviction and sentence
    and the trial court’s denial of his motion for a new trial. We affirm.
    {¶2} On or about June 14-15, 2007, Tamiko Turks (hereinafter
    “Tamiko”), Turks’ estranged wife, was taken to St. Rita’s Hospital in Lima, Ohio
    after sustaining a severe neck injury. (Apr. 29-30, 2008 Tr. at 26-27, 35-36, 73).
    Tamiko’s injury left her a quadriplegic. (Id. at 37). Following an investigation, the
    Lima Police Department suspected that Turks caused Tamiko’s injury, and that the
    injury was not accidental. (Id. at 95-100).
    {¶3} On September 13, 2007, the Allen County Grand Jury indicted Turks
    on one (1) count of felonious assault in violation of R.C. 2903.11(A)(1), a second
    degree felony. (Doc. No. 1). Turks entered a plea of not guilty on September 21,
    2007.
    {¶4} On April 29-30, 2008, a jury trial was held, and Turks was found
    guilty. (Apr. 29-30, 2008 Tr. at 151). Turks, however, failed to return to court for
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    the rendering of the verdict, so the trial court entered the conviction in Turks’
    absence and issued a warrant for his arrest. (Id. at 147-54).
    {¶5} On June 18, 2008, Turks was arrested, and, on June 25, 2008, Turks
    was sentenced to eight (8) years imprisonment. (Doc. Nos. 79, 81).
    {¶6} On July 23, 2008, Turks filed an appeal, and this Court affirmed
    Turks’ conviction and sentence. (Doc. Nos. 92, 109); State v. Turks, 3d Dist. No.
    1-08-44, 
    2009-Ohio-1837
    .
    {¶7} On October 30, 2009, the trial court granted Turks leave to file a
    delayed motion for a new trial, which Turks subsequently filed on November 20,
    2009. (Doc. Nos. 116, 119). On December 10, 2009, the trial court held a hearing
    on the motion, but ultimately denied the motion on December 16, 2009. (Doc.
    Nos. 120, 127). Turks filed a notice of appeal on January 12, 2010, and the case
    was assigned appellate case no. 1-10-02. (Doc. No. 129). On February 26, 2010,
    Turks filed a motion to stay briefing, which this Court denied on March 10, 2010;
    however, we extended the deadline for Turks’ merit brief to April 1, 2010.
    {¶8} On March 2, 2010, Turks filed a “motion to vacate a void sentence
    and to issue a final appealable order,” alleging the trial court failed to properly
    advise him of post-release control. (Doc. No. 140). On March 9, 2010, the trial
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    court held a re-sentencing hearing1 and issued its new judgment entry of sentence.
    (Doc. No. 144). On March 26, 2010, Turks filed a notice of appeal, and the case
    was assigned appellate case no. 1-10-26. (Doc. No. 146). That same day, Turks
    filed a motion to consolidate appellate case nos. 1-10-02 and 1-10-26 for the
    record, briefing, and oral argument, which we granted on April 1, 2010.
    {¶9} Turks now appeals raising five assignments of error for our review.
    ASSIGNMENT OF ERROR NO. I
    THE TRIAL COURT ERRED BY ALLOWING SEVERAL
    WITNESSES TO INTRODUCE HEARSAY STATEMENTS
    MADE BY MRS. TURKS, WHICH VIOLATED MR. TURKS’
    RIGHT TO CONFRONT A WITNESS UNDER THE SIXTH
    AND FOURTEENTH AMENDMENTS TO THE U.S.
    CONSTITUTION AND SECTION 10, ARTICLE I OF THE
    OHIO CONSTITUTION. CRAWFORD V. WASHINGTON
    (2004), 
    541 U.S. 36
    ; OHIO V. ROBERTS (1980), 
    448 U.S. 56
    [SIC].
    {¶10} In his first assignment of error, Turks argues that his Sixth
    Amendment right to confront witnesses against him was violated because the trial
    court allowed Detectives Marik and Stechschulte, as well as Tamiko’s mother,
    Bertha Reeder, to testify that Tamiko told them that Turks caused her injuries by
    picking her up and throwing her down to the ground. Turks argues that this
    1
    Since Turks was originally sentenced on June 25, 2008, the trial court was only required to hold an R.C.
    2929.191 resentencing hearing. State v. Singleton, 
    124 Ohio St.3d 173
    , 
    2009-Ohio-6434
    , 
    920 N.E.2d 958
    ,
    paragraph two of the syllabus. It appears from the record that the trial court vacated Turks’ original
    sentence and conducted a de novo sentencing hearing. (Mar. 9, 2010 Tr. at 3-4). However, the trial court’s
    failure to follow R.C. 2929.191 was harmless since the trial court afforded Turks with a completely new
    (de novo) sentencing hearing.
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    Case No. 1-10-02, 1-10-26
    testimony was admitted in violation of the Sixth Amendment’s Confrontation
    Clause, as explained in Crawford v. Washington, because Tamiko was an
    unavailable witness under Evid.R. 804(A)(3), and the statements were not
    previously subject to cross-examination. We disagree.
    {¶11} The question of whether a criminal defendant’s rights under the
    Confrontation Clause have been violated is reviewed de novo. State v. Keith, 3d
    Dist. Nos. 1-06-46, 1-06-53, 
    2007-Ohio-4632
    , ¶49, citing United States v.
    Robinson (C.A.6, 2004), 
    389 F.3d 582
    , 592. Since Turks failed to object to the
    testimony at trial on Confrontation Clause grounds, we review for plain error. U.S.
    v. Kappell (C.A.6, 2005), 
    418 F.3d 550
    , 554, citing United States v. Cromer
    (C.A.6, 2004), 
    389 F.3d 662
    , 672. See, also, State v. Abner, 2nd Dist. No. 20661,
    
    2006-Ohio-4510
    , ¶51; State v. Urbana, 3d Dist. No. 4-06-21, 
    2008-Ohio-1013
    ,
    ¶¶19, 35; State v. Richardson, 4th Dist. No. 08CA3022, 
    2009-Ohio-923
    , ¶17; State
    v. Granderson (5th Dist.), 
    177 Ohio App.3d 424
    , 
    2008-Ohio-3757
    , 
    894 N.E.2d 1290
    , ¶83; State v. Burnham, 7th Dist. No. 09 MA 82, 
    2010-Ohio-3275
    , ¶¶21, 23;
    State v. Velez, 9th Dist. No. 06CA008997, 
    2007-Ohio-5122
    , ¶24; State v. J.G.,
    10th Dist. Nos. 08AP-921, 08AP-972, 
    2009-Ohio-2857
    , ¶13; State v. Reuschling,
    11th Dist. No. 2007-A-0006, 
    2007-Ohio-6726
    , ¶14; State v. Cappadonia, 12th
    Dist. No. CA2008-11-138, 
    2010-Ohio-494
    , ¶29.
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    {¶12} We recognize plain error “‘with the utmost caution, under
    exceptional circumstances and only to prevent a manifest miscarriage of justice.’”
    State v. Landrum (1990), 
    53 Ohio St.3d 107
    , 110, 
    559 N.E.2d 710
    , quoting State v.
    Long (1978) 
    53 Ohio St.2d 91
    , 
    372 N.E.2d 804
    , paragraph three of the syllabus.
    For plain error to apply, the trial court must have deviated from a legal rule, the
    error must have been an obvious defect in the proceeding, and the error must have
    affected a substantial right. State v. Barnes (2002), 
    94 Ohio St.3d 21
    , 27, 
    759 N.E.2d 1240
    . Under the plain error standard, the appellant must demonstrate that
    the outcome of his trial would clearly have been different but for the trial court’s
    errors. State v. Waddell (1996), 
    75 Ohio St.3d 163
    , 166, 
    661 N.E.2d 1043
    , citing
    State v. Moreland (1990), 
    50 Ohio St.3d 58
    , 
    552 N.E.2d 894
    .
    {¶13} The Confrontation Clause of the Sixth Amendment to the United
    States Constitution provides that: “* * * [i]n all criminal prosecutions, the accused
    shall enjoy the right * * * to be confronted with the witnesses against him.”
    Crawford v. Washington (2004), 
    541 U.S. 36
    , 38, 
    124 S.Ct. 1354
    , 
    158 L.Ed.2d 177
    . In Crawford, the U.S. Supreme Court determined that testimonial statements
    by witnesses are inadmissible unless the declarant is unavailable to testify and the
    defendant had a prior opportunity for cross-examination. 
    541 U.S. at 59
    .
    Significantly, however, the Court in Crawford also noted that, “* * * when the
    declarant appears for cross-examination at trial, the Confrontation Clause places
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    Case No. 1-10-02, 1-10-26
    no constraints at all on the use of his prior testimonial statements. * * * The
    Clause does not bar admission of a statement so long as the declarant is present at
    trial to defend or explain it.” 
    Id. at 59, fn.9
     (internal citations omitted). See, also,
    State v. Bryant, 12th Dist. No. 2007-02-024, 
    2008-Ohio-3078
    , ¶49.
    {¶14} The trial court did not commit plain error by allowing the witnesses
    to testify that Tamiko told them that Turks grabbed her and threw her to the
    ground causing her injuries. Tamiko testified at trial concerning these statements,
    and therefore, the Confrontation Clause placed no constraint at all on the use of
    her prior statements at trial. (Apr. 29-30, 2008 Tr. at 65-69); Crawford, 
    541 U.S. at 59, fn. 9
    ; Kappell, 418 F.3d at 554-55; U.S. v. Mayberry (C.A.6, 2008), 
    540 F.3d 506
    , 516; State v. Fown, 5th Dist. No. 2008 CA 00157, 
    2009-Ohio-5141
    ,
    ¶¶27-28; State v. Sopko, 8th Dist. No. 90743, 
    2009-Ohio-140
    , ¶19; State v.
    Reinhardt, 9th Dist. No. 08CA0012-M, 
    2009-Ohio-1297
    , ¶¶12-13; Bryant, 2008-
    Ohio-3078, at ¶49. Turks’ argument that Tamiko was “unavailable” because of
    her lack of memory for Confrontation Clause purposes also lacks merit. As the
    Court of Appeals for the Fifth District noted:
    “Previous decisions of the [United States Supreme] court, which
    Crawford neither overruled nor called into question, have
    explained that ‘the Confrontation Clause guarantees only ‘an
    opportunity for effective cross-examination, not cross-
    examination that is effective in whatever way, and to whatever
    extent, the defense might wish.’ United States v. Owens (1988),
    
    484 U.S. 554
    , 558-559, 
    108 S.Ct. 838
    . See, also, In re Kitzmiller,
    Licking App. No.2006-CA-00147, 
    2007-Ohio-4565
    , ¶ 40-44.
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    Case No. 1-10-02, 1-10-26
    Therefore, ‘a witness’ inability to ‘recall either the events that
    are the subject of an extra-judicial statement or previous
    testimony or recollect the circumstances under which the
    statement was given, does not have Sixth Amendment
    consequences.’ “ Owens at 558-559, adopting Justice Harlan's
    concurrence in California v. Green (1970), 
    399 U.S. 149
    , 188, 
    90 S.Ct. 1930
    . ‘[T]he traditional protections of the oath, cross-
    examination, and opportunity for the jury to observe the
    witness’ demeanor satisfy the constitutional requirements.’ Id. at
    560.’ ” Id at paragraph 50.
    Fown, 
    2009-Ohio-5141
    , at ¶29. Turks was provided an opportunity for effective
    cross-examination of Tamiko—that he failed to avail himself of that opportunity
    for whatever reason(s) is irrelevant for Sixth Amendment purposes. 
    Id.
    {¶15} Therefore, Turks’ first assignment of error is overruled.
    ASSIGNMENT OF ERROR NO. II
    THE TRIAL COURT ERRED WHEN IT FAILED TO
    INSTRUCT THE JURY ON ASSAULT WHEN THE
    EVIDENCE PRESENTED AT TRIAL SUPPORTED A
    CONVICTION ON THE LESSER-INCLUDED OFFENSE OF
    ASSAULT.
    {¶16} In his second assignment of error, Turks argues that the trial court
    erred by failing to instruct the jury on the lesser-included offense of assault,
    because the evidence established that he recklessly, and not knowingly, caused
    Tamiko’s injuries. We disagree.
    {¶17} As an initial matter, we note that Turks failed to request a jury
    instruction on any lesser-included offense or object to the jury instructions on this
    basis at trial, and therefore, he has waived all but plain error on appeal. (Apr. 29-
    -8-
    Case No. 1-10-02, 1-10-26
    30, 2008 Tr. at 119, 145-46); State v. Black (1978), 
    54 Ohio St.2d 304
    , 310, 
    376 N.E.2d 948
    , citing State v. Williams (1977), 
    51 Ohio St.2d 112
    , 
    364 N.E.2d 1364
    ;
    Crim.R. 30(A). See, also, State v. Williams, 3d Dist. No. 1-01-63, 2002-Ohio-
    3623, ¶41; State v. Druckenmiller (Jan. 25, 1991), 3d Dist. No. 3-89-30, at *4.
    {¶18} To determine whether a criminal defendant was entitled to a jury
    instruction (charge) on a lesser included offense requires a two-step analysis. State
    v. Davis (1983), 
    6 Ohio St.3d 91
    , 95, 
    451 N.E.2d 772
    ; State v. Kidder (1987), 
    32 Ohio St.3d 279
    , 281, 
    513 N.E.2d 311
    . See, also, State v. Mills (Nov. 1, 1990), 3d
    Dist. No. 1-89-45. First, the reviewing court must determine whether the one
    offense is, in fact, a lesser included offense of the other offense. An offense is a
    lesser included offense if: (1) one offense carries a greater penalty than the other;
    (2) some element of the greater offense is not required to prove commission of the
    lesser offense; and (3) the greater offense as statutorily defined cannot be
    committed without the lesser offense as statutorily defined also being committed.
    State v. Evans, 
    122 Ohio St.3d 381
    , 
    2009-Ohio-2974
    , 
    911 N.E.2d 889
    , ¶26
    (clarifying the three-part test set forth in State v. Deem (1988), 
    40 Ohio St.3d 205
    ,
    
    533 N.E.2d 294
    ). Second, the reviewing court must determine whether the trial
    court was obligated to give a jury instruction on the lesser included offense under
    the specific facts of the case. Davis, 6 Ohio St.2d at 95-96, citing State v. Wilkins
    (1980), 
    64 Ohio St.2d 382
    , 387, 
    415 N.E.2d 303
    . “[A] charge on the lesser
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    Case No. 1-10-02, 1-10-26
    included offense is required only where the evidence presented at trial would
    reasonably support both an acquittal on the crime charged and a conviction on the
    lesser included offense.” State v. Thomas (1988), 
    40 Ohio St.3d 213
    , 216, 
    533 N.E.2d 286
    , citing Kidder, 32 Ohio St.3d at 281; Davis, 
    6 Ohio St.2d 91
    ; Wilkins,
    
    64 Ohio St.2d 382
    .
    {¶19} Therefore, we must first decide whether an assault2 under R.C.
    2903.13(B) is a lesser included offense of a felonious assault under R.C.
    2903.11(A)(1). The latter is codified in R.C. 2903.11, which provides, in relevant
    part: “[n]o person shall knowingly * * * [c]ause serious physical harm to another *
    * *.” R.C. 2903.11(A)(1) (emphasis added).                       The former is codified in R.C.
    2903.13(B), which provides, in pertinent part: “[n]o person shall recklessly cause
    serious physical harm to another * * *.” R.C. 2903.13(B) (emphasis added).
    {¶20} In State v. Ellis, this Court held that an assault under R.C.
    2903.13(B) was not a lesser included offense of a felonious assault under R.C.
    2903.11(A)(1). (Nov. 14, 1985), 3d Dist No. 1-84-37.                           Our analysis in Ellis
    focused on whether one could commit the latter without also committing the
    former. Id. at *1, citing Wilkins, 64 Ohio St.2d at 384. After examining the two
    statutes, we acknowledged that “the two crimes differ only in that [felonious
    2
    This offense has also been referred to as “misdemeanor assault,” since a violation of the statute is usually
    a first degree misdemeanor, or “simple assault.” State v. Hartman (1998), 
    130 Ohio App.3d 645
    , 646-47,
    
    720 N.E.2d 971
     (“misdemeanor assault”); R.C. 2903.13(C); State v. Fuller, 2nd Dist. No. 20658, 2005-
    Ohio-3696, ¶11 (“simple assault”); State v. Ellis (Nov. 14, 1985), 3d Dist. No. 1-84-37 (“simple assault”).
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    Case No. 1-10-02, 1-10-26
    assault] requires proof of the mental state of culpability of ‘knowingly’ whereas
    [assault] requires proof of the mental culpability of ‘recklessly.’” 
    Id.
     Next, we set
    forth the definitions of “knowingly” and “recklessly” as statutorily defined in R.C.
    2901.22(B) and (C) and concluded:
    It is apparent from these two definitions or characterizations
    that the mental state of recklessness involves indifference
    coupled with perverseness not present in the mental state of
    knowingly. It follows that contrary to the second requirement
    hereinbefore quoted from State v. Wilkins, supra, the offense of
    felonious assault proscribed by R.C. 2903.11(A)(1) can be
    committed without the offense of assault proscribed by R.C.
    2903.13(B) also being committed. For such reason, without any
    other, the latter offense is not a lesser included offense of the
    former, and the trial court here did not commit error in not
    charging the jury on the latter offense.
    Id. Therefore, if we continue to follow Ellis, the trial court sub judice was not
    required to instruct the jury on assault since assault under R.C. 2903.13(B) is not a
    lesser included offense of felonious assault under R.C. 2903.11(A)(1). So, we
    must now decide whether Ellis should continue to be controlling precedent under
    the doctrine of stare decisis.
    {¶21} Stare decisis requires a court to uphold its prior decision where time
    has vindicated the logic utilized to render the holding and the rules of law stated in
    the earlier case are sound. Scott v. News Herald (1986), 
    25 Ohio St.3d 243
    , 249,
    
    496 N.E.2d 699
    , citing Hall v. Rosen (1977), 
    50 Ohio St.2d 135
    , 138, 
    363 N.E.2d 725
    . Nevertheless, the doctrine of stare decisis is a principle of policy rather than
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    Case No. 1-10-02, 1-10-26
    an inexorable command or mechanical formula of adherence to the latest decision.
    Payne v. U.S. (1991), 
    501 U.S. 808
    , 828, 
    111 S.Ct. 2597
    , 
    115 L.Ed.2d 720
    .
    However, “‘any departure from the doctrine of stare decisis demands special
    justification.’” Westfield Ins. Co. v. Galatis, 
    100 Ohio St.3d 216
    , 
    2003-Ohio-5849
    ,
    
    797 N.E.2d 1256
    , ¶44, quoting Wampler v. Higgins (2001), 
    93 Ohio St.3d 111
    ,
    120, 
    752 N.E.2d 962
    . “Special justification” exists when: “(1) the decision was
    wrongly decided at [the] time, or changes in circumstances no longer justify
    continued adherence to the decision, (2) the decision defies practical workability,
    and (3) abandoning the precedent would not create an undue hardship for those
    who have relied upon it.” Galatis, 
    2003-Ohio-5849
    , at ¶48. See, also, Groch v.
    Gen. Motors Corp., 
    117 Ohio St.3d 192
    , 
    2008-Ohio-546
    , 
    883 N.E.2d 377
    , ¶134
    (noting Galatis test as applicable test for overruling prior precedent); Allied
    Holdings, Inc. v. Meade, 3d Dist. No. 8-06-13, 
    2006-Ohio-6682
    , ¶14 (applying
    same). Finally, we note that “an appellate court ‘not only has the right, but is
    entrusted with the duty to examine its former decisions and, when reconciliation is
    impossible, to discard its former errors.’” State v. Certain, 
    180 Ohio App.3d 457
    ,
    
    2009-Ohio-148
    , 
    905 N.E.2d 1259
    , ¶10, quoting State v. Burton, 10th Dist. No.
    06AP-690, 
    2007-Ohio-1941
    , ¶22, quoting Galatis, 
    2003-Ohio-5849
    , at ¶44.
    {¶22} Special justification exists to overrule our prior decision in Ellis.
    First, changes in the lesser included offense test since our decision in Ellis no
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    Case No. 1-10-02, 1-10-26
    longer justify our continued adherence to the decision. Our decision in Ellis relied
    upon the Ohio Supreme Court’s lesser included offense test in Wilkins (1980), 
    64 Ohio St.2d 382
    . In relevant part, the second prong of Wilkins’ test—known as the
    “statutory-elements test”—provided that: “the offense of the greater degree cannot
    be committed without the offense of the lesser degree also being committed.” 64
    Ohio St.2d at 384. Six years later, the Ohio Supreme Court released State v.
    Rohdes, wherein it found that the evidence presented at trial was “instrumental” to
    whether involuntary manslaughter by aggravated menacing was a lesser included
    offense to murder. (1986), 
    23 Ohio St.3d 225
    , 227, 
    492 N.E.2d 430
     (“The
    statutory elements reasonably deemed to be established in the context of the
    evidence of a particular case are instrumental to any analysis of lesser included
    offenses * * * a cold comparison of the statutory elements to determine whether
    they always coincide is irrelevant.”).
    {¶23} The following year, the Ohio Supreme Court admitted that its
    decision in Rohdes “did tend to cloud the picture of this area of the law,” and that
    its analysis was flawed because “[t]he underlying facts, i.e., those related to the
    aggravated menacing charge, were prematurely considered in determining whether
    the murder could have been committed without also committing involuntary
    manslaughter.” Kidder (1987), 32 Ohio St.3d at 280, 282. The Court in Kidder
    further admitted that its analysis in Rohdes “was contrary to [its] longstanding rule
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    Case No. 1-10-02, 1-10-26
    that the evidence presented in a particular case is irrelevant to the determination of
    whether an offense, as statutorily defined, is necessarily included in a greater
    offense.” Id. at 282. The Court explained that “the evidence in Rohdes concerning
    the underlying misdemeanor became relevant in determining whether the jury
    should have been charged on the lesser offense.” Id.           The Court thereafter
    modified the second prong of Wilkins’ lesser included offense test as follows: “the
    offense of the greater degree cannot, as statutorily defined, ever be committed
    without the offense of the lesser degree, as statutorily defined, also being
    committed.” Id. (modifications emphasized).
    {¶24} Just one year later, the Ohio Supreme Court slightly modified the
    lesser included offense test in State v. Deem to distinguish between lesser included
    offenses and inferior degree offenses, but, pertinent here, the Court maintained
    Kidders’ modifications to the second prong of Wilkins’ test. (1988), 40 Ohio St.3d
    at 209. Thereafter, the lesser included offense test became known as the “Deem
    test” and remained unmodified until 2008 when the Court decided State v. Smith,
    
    117 Ohio St.3d 447
    , 
    2008-Ohio-1260
    , 
    884 N.E.2d 595
    . See, e.g., Thomas, 40 Ohio
    St.3d at 215; State v. Carter (2000), 
    89 Ohio St.3d 593
    , 600, 
    734 N.E.2d 345
    ;
    State v. Barnes (2002), 
    94 Ohio St.3d 21
    , 25-26, 
    759 N.E.2d 1240
    ; Shaker Hts. v.
    Mosely, 
    113 Ohio St.3d 329
    , 
    2007-Ohio-2072
    , 
    865 N.E.2d 859
    , ¶10 (all applying
    the “Deem test”). The Court in Smith held that: when a statute sets forth mutually
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    Case No. 1-10-02, 1-10-26
    exclusive ways of committing the greater offense (e.g., where one element of the
    offense can be satisfied by proving either that the defendant actually committed
    another offense or attempted to commit it), a court is required to apply the second
    part of the Deem test separately to each alternate method of committing the greater
    offense. 
    2008-Ohio-1260
    , paragraph three of the syllabus.
    {¶25} The Ohio Supreme Court revisited the Deem test most recently in
    State v. Evans, 
    2009-Ohio-2974
    . Although the Court in Evans rejected the State’s
    invitation to modify the second part of the Deem test to consider the specific facts
    and circumstances of each case, it did note:
    This test is not a word game to be performed by rote by
    matching the words chosen by the legislature to define criminal
    offenses. Some offenses, such as aggravated murder and murder,
    lend themselves to such a simple matching test; others do not. *
    * * We would also note that the elements of the offenses are
    ‘matched’ only in part (iii) of the test to determine if ‘some
    element’ of the greater offense is not found in the lesser offense.
    The proper overall focus is on the nature and circumstances of
    the offenses as defined, rather than on the precise words used to
    define them.” State v. Thomas, 
    40 Ohio St.3d 213
     at 216-217, 
    533 N.E.2d 286
    . Thus, the test does not require identical language to
    define the two offenses, but focuses upon whether the words
    used in the statute defining the greater offense will put the
    offender on notice that an indictment for that offense could also
    result in the prosecution of the lesser included offense.
    Id., at ¶¶11, 13, 22. Similarly, the Court rejected the defendant’s argument that a
    person could conceivably indicate possession of a deadly weapon without
    implying a threat to inflict physical harm as “implausible examples * * * that
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    Case No. 1-10-02, 1-10-26
    ‘lapse into the strict textual comparison,’” which the Court had previously rejected
    in its analogous cases determining whether offenses are allied offenses of similar
    import. Id. at ¶24. The Court explained as follows:
    Despite making the statement to Stewart “I have a gun” as he
    tried to take her purse, Evans now argues that a person can
    indicate possession of a deadly weapon without implying a threat
    to inflict physical harm, for example, by purchasing a hunting
    knife in a hardware or sporting goods store as he simultaneously
    shoplifts a bag of nails by placing them in his pocket. This
    argument is not well taken. In State v. Winn, 
    121 Ohio St.3d 413
    ,
    
    2009-Ohio-1059
    , 
    905 N.E.2d 154
    , ¶24, we rejected similarly
    implausible examples advanced in the context of an allied
    offense analysis, stating that they “lapse into the strict textual
    comparison” that this court has previously rejected. Having
    previously rejected such strict textual comparison in the context
    of the Deem lesser included offense analysis, emphasizing that a
    court should focus “on the nature and circumstances of the
    offenses as defined, rather than on the precise words used to
    define them,” we now reject the implausible scenario advanced
    by Evans in this case. Thomas, 40 Ohio St.3d at 217.
    Moreover, to ensure that such implausible scenarios will not derail
    a proper lesser included offense analysis, we further clarify the
    second part of the Deem test to delete the word “ever.” This
    clarification does not modify the Deem test, but rather eliminates
    the implausible scenarios advanced by parties to suggest the
    remote possibility that one offense could conceivably be
    committed without the other also being committed. Deem
    requires a comparison of the elements of the respective offenses
    in the abstract to determine whether one element is the
    functional equivalent of the other. If so, and if the other parts of
    the test are met, one offense is a lesser included offense of the
    other.
    - 16 -
    Case No. 1-10-02, 1-10-26
    Id. at ¶¶24-25 (emphasis added). Therefore, the second part3 of the Deem test
    (formerly Wilkins and Kidder tests) now provides that: “the greater offense as
    statutorily defined cannot be committed without the lesser offense as statutorily
    defined also being committed.” Id. at paragraph two of the syllabus.
    {¶26} In light of the forgoing, we conclude that our cursory analysis in
    Ellis suggests an application of the type of ‘strict textual comparison’ that the
    Ohio Supreme Court has more recently rejected in Evans, 
    2009-Ohio-2974
    , at ¶24.
    After reviewing the statutory elements, we now conclude that a felonious assault
    in violation of R.C. 2903.11(A)(1) cannot be committed without the lesser offense
    of assault in violation of R.C. 2903.13(B). Id. at ¶¶24-25; paragraph two of the
    syllabus. Second, in addition to the modifications to the lesser included offense
    test, the vast majority of other districts have already reached this conclusion. State
    v. Hartman (1st Dist., 1988), 
    130 Ohio App.3d 645
    , 647, 
    720 N.E.2d 971
    ; State v.
    Colston (Dec. 17, 1993), 2nd Dist. No. 13599, at *9; State v. Wong (4th Dist.,
    1994), 
    95 Ohio App.3d 39
    , 53, 
    641 N.E.2d 1137
    , fn. 5; State v. Owens, 5th Dist.
    No. 2004-CA-87, 
    2005-Ohio-4402
    , ¶41; State v. Walker (Apr. 17, 1998), 6th Dist.
    No. S-97-019, at *2; State v. Bennett, 7th Dist. No. 04-MA-184, 
    2006-Ohio-3566
    ,
    at ¶31; State v. McPherson, 8th Dist. No. 92481, 
    2010-Ohio-64
    , ¶7; State v.
    3
    We note that the Ohio Supreme Court in Evans changed the order of the parts of the Deem test. Under the
    Deem test, this new formulation is the second part, but under Evans it is the third part of the lesser included
    offense test. Evans, 
    2009-Ohio-2974
    , at paragraph two of the syllabus.
    - 17 -
    Case No. 1-10-02, 1-10-26
    Pasqualucci, 9th Dist. No. 21905, 
    2004-Ohio-4876
    , ¶20; State v. Jackson (Dec. 8,
    1994), 10th Dist. No. 94APA04-531, at *4; State v. Krug, 11th Dist. No. 2008-L-
    085, 
    2009-Ohio-3815
    , ¶93.       Third, we find that our decision in Ellis defies
    practical workability, and that abandoning our precedent would not create an
    undue hardship. Galatis, 
    2003-Ohio-5849
    , at ¶48. In fact, we have not found one
    single case citing Ellis, even though it was decided almost twenty-five (25) years
    ago. For all these reasons, Ellis is overruled.
    {¶27} We now join the majority of appellate districts and hold that an
    assault in violation of R.C. 2903.13(B) is a lesser included offense of a felonious
    assault in violation of R.C. 2903.11(A)(1).
    {¶28} Our conclusion that an assault in violation of R.C. 2903.13(B) is a
    lesser included offense of a felonious assault in violation of R.C. 2903.11(A)(1),
    however, does not end our analysis of Turks’ assignment of error. Next, we must
    determine whether the trial court was obligated to give a jury instruction on the
    lesser included offense under the specific facts of the case. Davis, 6 Ohio St.2d at
    95-96, citing Wilkins, 64 Ohio St.2d at 387. “[A] charge on the lesser included
    offense is required only where the evidence presented at trial would reasonably
    support both an acquittal on the crime charged and a conviction on the lesser
    included offense.” Thomas, 40 Ohio St.3d at 216, citing Kidder, 32 Ohio St.3d at
    281; Davis, 
    6 Ohio St.2d 91
    ; Wilkins, 
    64 Ohio St.2d 382
    .
    - 18 -
    Case No. 1-10-02, 1-10-26
    {¶29} The evidence at trial did not reasonably support both an acquittal on
    felonious assault and a conviction on assault. We are familiar with the facts of this
    case. At trial, Tamiko’s mother, Bertha Reeder, testified that she talked with
    Tamiko about what happened the night of the incident, and Tamiko told her that:
    Turks grabbed her from behind when she was running away from him, held her
    arms back, and picked her up and threw her down to the ground. (Apr. 29-30,
    2008 Tr. at 38, 50-51). Likewise, Detective Stechschulte testified that Tamiko
    told him “she was running from the house that Lloyd Turks had grabbed her from
    behind and placed his hand on the back of her neck and his other hand on the
    small of her back and flipped her upside down and dropped her on her neck.” (Id.
    at 104-05). As a result, Tamiko was severely injured and is now a quadriplegic.
    (Id. at 37). Additionally, Tamiko feared that Turks might hurt her since she was
    ending their marriage. (Id. at 79-88). As such, the trial court did not commit plain
    error by failing to instruct the jury on the lesser included offense of assault since
    the evidence did not reasonably support such an instruction.
    {¶30} Furthermore, Turks has consistently denied that he caused Tamiko’s
    injuries. Shortly after Tamiko was hospitalized, Turks told Officer Niedemire that
    Tamiko was injured when: she was wrestling in the backyard with a cousin, whose
    name he didn’t know; she had an asthma attack; she walked up onto the back
    porch of the residence and sat on the top rail; he was trying to talk to her and she
    - 19 -
    Case No. 1-10-02, 1-10-26
    fell off the railing. (Id. at 74). This was the same explanation that Turks tried to
    give to Tamiko shortly after her injuries, which she rejected. (Id. at 69-70). At
    trial, Turks argued: “as a result of the evidence * * * it’s absolutely impossible,
    absolutely impossible, that [he] could have been involved in this,” and in his prior
    appeal Turks argued that the State failed to show he caused Tamiko’s injuries. (Id.
    at 24); Turks, 
    2009-Ohio-1837
    , at ¶8. Therefore, we also cannot conclude that the
    trial court committed plain error by failing to instruct the jury on the lesser
    included offense of assault in light of Turks’ consistent defense of denial.
    {¶31} Turks’ second assignment of error is, therefore, overruled.
    ASSIGNMENT OF ERROR NO. III
    THE TRIAL COURT ERRED BY NOT GRANTING TURKS’
    MOTION FOR A NEW TRIAL BASED ON NEWLY
    DISCOVERED EVIDENCE.
    {¶32} In his third assignment of error, Turks argues that the trial court
    erred by denying his motion for a new trial based upon newly discovered
    evidence.   Specifically, Turks argues that the newly discovered evidence he
    offered—Tamiko’s newly recovered memory of the cause of her injuries—meets
    the six factors set forth in State v. Hawkins (1993), 
    66 Ohio St.3d 339
    , 
    612 N.E.2d 1227
    . We disagree.
    {¶33} ‘“To warrant the granting of a motion for a new trial in a criminal
    case, based on the ground of newly discovered evidence, it must be shown that the
    - 20 -
    Case No. 1-10-02, 1-10-26
    new evidence (1) discloses a strong probability that it will change the result if a
    new trial is granted, (2) has been discovered since the trial, (3) is such as could not
    in the exercise of due diligence have been discovered before the trial, (4) is
    material to the issues, (5) is not merely cumulative to former evidence, and (6)
    does not merely impeach or contradict the former evidence.”’ Hawkins, 66 Ohio
    St.3d at 350, quoting State v. Petro (1947), 
    148 Ohio St. 505
    , 
    76 N.E.2d 370
    , at
    the syllabus.
    {¶34} An appellate court reviews a trial court’s determination of a motion
    for a new trial based on newly discovered evidence under an abuse of discretion
    standard. Hawkins, 66 Ohio St.3d at 350; State v. Schiebel (1990), 
    55 Ohio St.3d 71
    , 
    564 N.E.2d 54
    , paragraph one of the syllabus; State v. LaMar, 
    95 Ohio St.3d 181
    , 
    2002-Ohio-2128
    , 
    767 N.E.2d 166
    , ¶85. An abuse of discretion implies that
    the trial court’s decision was unreasonable, arbitrary, or unconscionable.
    Blakemore v. Blakemore (1983), 
    5 Ohio St.3d 217
    , 219, 
    450 N.E.2d 1140
    .
    {¶35} Turks attached to his motion for a new trial an affidavit purportedly
    from Tamiko wherein she averred that:
    Between June 14-15, 2007, at the home of Angela Johnson and
    Keith Durr, I was injured through my own fault. Lloyd D.
    Turks did not in any way cause my injuries, nor did he induce
    me to fall which resulted in my paralyzation [sic]. My mother,
    Bertha Reeder, blamed Mr. Turks because she was angry, and
    did not like him. She felt he was responsible for all of my
    problems. Thus she told the police that he had picked me up
    and threw me. This never occurred. At his trial I testified to
    - 21 -
    Case No. 1-10-02, 1-10-26
    what my mother told me because at that time I had no
    recollection of the incident myself. However, after much
    rehabilitative therapy and time, I have specifically remembered
    what happened that day and I fell because I was enraged and out
    of control. It was my fault alone, and I am very sorry for the
    statements I made to the police, and the testimony set forth in
    court. It was inaccurate and completely misleading. I hold
    myself responsible for Mr. Turks [sic] conviction.
    (Doc. No. 119, attached); (State’s Ex. 1); (D’s Ex. A). At the motion hearing,
    Tamiko testified that Turks provided her with this affidavit, and her cousin signed
    it on her behalf while no one else was present. (Dec. 10, 2009 Tr. at 12-14).
    Tamiko further testified that the affidavit was “true except for the part, the one
    part right there at the top, where it says that I was injured through my own fault.”
    (Id. at 17). Tamiko testified at the hearing concerning her injuries as follows:
    A: I was wrestling around with Keith and then after me and
    Keith got done wrestling then my cousin, John, came in and me
    and him was talking and then me and him got to wrestling
    ‘cause he wanted me to go outside and talk to Lloyd [Turks].
    Q: Did you go outside?
    A: Yes.
    Q: And do you remember talking to him at all? Talking to
    Lloyd. Let me ask the question again. Do you remember talking
    to --
    A: When I went outside I was out there for a few minutes. It
    wasn’t long. Maybe a few minutes. But I don’t know what we
    talked about or what was said. I just got annoyed and took off
    running.
    Q: So, you don’t remember in your conversation with Lloyd
    him saying anything that frightened you or made you feel
    afraid?
    A: No.
    Q: What’s the next thing you remember after you took off
    running?
    - 22 -
    Case No. 1-10-02, 1-10-26
    A: Him grabbing me and falling.
    Q: Do you remember where he grabbed you?
    A: On my shirt.
    Q: And do you remember him grabbing you on your shirt and
    then – I’m sorry – what did you say was the next thing you
    remember after that?
    A: Me falling.
    ***
    Q: Now, I believe it came out in the trial that you and Mr.
    Turks, well, there was some testimony that you guys had had
    some disagreements and some fights like that in the past. Did
    that happen? Is that accurate?
    A: Yes.
    Q: So, do you recall the night you were arguing? Were you at
    all afraid at that point that he was going to hurt you? Do you
    recall if you had that feeling at all?
    A: Maybe. Probably. That’s why I probably took off running.
    (Id. at 8-11).
    {¶36} After viewing the evidence presented at the hearing, we cannot
    conclude that the trial court abused its discretion by denying the motion for a new
    trial. The evidence presented does not disclose a strong probability that it will
    change the result if a new trial is granted and tends to merely impeach or
    contradict the former evidence. Hawkins, 66 Ohio St.3d at 350, quoting Petro, 
    148 Ohio St. 505
    , at the syllabus. To begin with, Tamiko discredited the affidavit’s
    core statement of the newly discovered evidence—that the injury was her own
    fault. (Dec. 10, 2009 Tr. at 17). Furthermore, Tamiko’s credibility both now and
    at trial was questionable, considering that Tamiko originally told three (3)
    different individuals that Turks grabbed her and threw her to the ground, and then,
    - 23 -
    Case No. 1-10-02, 1-10-26
    suddenly could not remember what happened to her when she testified at trial.
    There was also testimony presented at the original trial that Tamiko had refused to
    press charges against Turks for other acts of domestic violence he had previously
    committed against her. Given these circumstances, it is unlikely the result of the
    trial would be different with Tamiko’s newly regained memory. Furthermore, this
    new evidence merely tends to impeach or contradicts the testimony concerning
    what Tamiko originally said was the cause of her injuries. Therefore, we cannot
    find that the trial court abused its discretion by denying the motion for a new trial.
    {¶37} Turks’ third assignment of error is, therefore, overruled.
    ASSIGNMENT OF ERROR NO. IV
    TRIAL        COUNSEL       WAS      CONSTITUTIONALLY
    INEFFECTIVE, IN VIOLATION OF THE SIXTH AND
    FOURTEENTH AMENDMENTS TO THE UNITED STATES
    CONSTITUTION AND SECTION 10, ARTICLE I OF THE
    OHIO CONSTITUTION FOR FAILING TO OBJECT TO THE
    HEARSAY TESTIMONY OF BERTHA REEDER, FOR NOT
    REQUESTING THE COURT INSTRUCT THE JURY ON
    THE LESSER INCLUDED OFFENSE OF ASSAULT, AND
    FOR FAILING TO OBJECT TO THE VIOLATION OF
    TURKS’ RIGHT OF CONFRONTATION. UNITED STATE V.
    CRONIC (1984), 
    466 U.S. 648
    ; STRICKLAND V. WASHINGTON
    (1984), 
    466 U.S. 668
    .
    {¶38} In his fourth assignment of error, Turks alleges that he was denied
    effective assistance of counsel because trial counsel failed to object to hearsay
    testimony, failed to request a lesser included instruction, and failed to object to the
    violation of his Confrontation Clause rights. We disagree.
    - 24 -
    Case No. 1-10-02, 1-10-26
    {¶39} A defendant asserting a claim of ineffective assistance of counsel
    must establish: (1) the counsel’s performance was deficient or unreasonable under
    the circumstances; and (2) the deficient performance prejudiced the defendant.
    State v. Kole (2001), 
    92 Ohio St.3d 303
    , 306, 
    750 N.E.2d 148
    , citing Strickland v.
    Washington (1984), 
    466 U.S. 668
    , 687, 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
    .
    {¶40} In order to show counsel’s conduct was deficient or unreasonable,
    the defendant must overcome the presumption that counsel provided competent
    representation and must show that counsel’s actions were not trial strategies
    prompted by reasonable professional judgment. Strickland, 
    466 U.S. at 687
    .
    Counsel is entitled to a strong presumption that all decisions fall within the wide
    range of reasonable professional assistance. State v. Sallie (1998), 
    81 Ohio St.3d 673
    , 675, 
    693 N.E.2d 267
    .         Tactical or strategic trial decisions, even if
    unsuccessful, do not generally constitute ineffective assistance. State v. Carter
    (1995), 
    72 Ohio St.3d 545
    , 558, 
    651 N.E.2d 965
    . Rather, the errors complained of
    must amount to a substantial violation of counsel’s essential duties to his client.
    See State v. Bradley (1989), 
    42 Ohio St. 3d 136
    , 141-42, 
    538 N.E.2d 373
    , quoting
    State v. Lytle (1976), 
    48 Ohio St.2d 391
    , 396, 
    358 N.E.2d 623
    . Prejudice results
    when “there is a reasonable probability that, but for counsel’s unprofessional
    errors, the result of the proceeding would have been different.” Bradley, 42 Ohio
    St.3d at 142, citing Strickland, 
    466 U.S. at 691
    . “A reasonable probability is a
    - 25 -
    Case No. 1-10-02, 1-10-26
    probability sufficient to undermine confidence in the outcome.” Bradley, 42 Ohio
    St.3d at 142; Strickland, 
    466 U.S. at 694
    .
    {¶41} Since we have already determined that Turks’ rights under the
    Confrontation Clause were not violated, and the trial court did not err by failing to
    instruct the jury on the lesser included offense of assault, we cannot find that trial
    counsel was ineffective on these alleged grounds.
    {¶42} Additionally, trial counsel’s failure to make objections, alone, does
    not establish ineffective assistance of counsel, because this decision is generally
    viewed as trial strategy. State v. Conway (2006), 
    109 Ohio St.3d 412
    , 2006-Ohio-
    2815, 
    848 N.E.2d 810
    , ¶103; State v. McKinney, 11th Dist. No. 2007-T-0004,
    
    2008-Ohio-3256
    , ¶191, citing State v. Hunt (1984), 
    20 Ohio App.3d 310
    , 311, 
    486 N.E.2d 108
    ; State v. Gumm (1995), 
    73 Ohio St.3d 413
    , 428, 
    653 N.E.2d 253
    . The
    record here reveals that Tamiko called defense counsel Thursday, Friday, and
    Monday before trial and informed defense counsel that she could not remember
    what happened the night of the incident. (April 29-30, 2007 Tr. at 66). Tamiko
    specifically informed defense counsel before trial that she probably told her
    mother that Turks chased her off the porch, picked her up, and threw her down,
    but that she was not sure that was true when she made the statement. (Id. at 65-
    66). Accordingly, trial counsel’s failure to object to the admission of Tamiko’s
    hearsay statements could have been a matter of trial strategy, because trial counsel
    - 26 -
    Case No. 1-10-02, 1-10-26
    was aware before trial that Tamiko would testify and explain these statements
    away. Since it was a matter of trial strategy, counsel’s decision not to object to the
    hearsay statements cannot establish ineffective assistance. Carter, 72 Ohio St.3d at
    558.
    {¶43} Turks’ fourth assignment of error is, therefore, overruled.
    ASSIGNMENT OF ERROR NO. V
    THE TRIAL COURT ABUSED ITS DISCRETION WHEN
    SENTENCING TURKS TO THE MAXIMUM SENTENCE BY
    FINDING HE SHOWED NO REMORSE; BY NOT
    CONSIDERING REQUEST FOR LENIENCY FROM THE
    VICTIM;  BY   FINDING   THE  MARTIAL   [SIC]
    RELATIONSHIP FACILITATED THE OFFENSE; AND
    THAT HIS SENTENCE WOULD NOT BURDEN STATE
    RESOURCES.
    {¶44} In his fifth and final assignment of error, Turks argues that the trial
    court abused its discretion by sentencing him to the maximum term of eight (8)
    years imprisonment. We disagree.
    {¶45} A trial court’s sentence will not be disturbed on appeal absent a
    defendant’s showing by clear and convincing evidence that the sentence is
    unsupported by the record; the sentencing statutes’ procedure was not followed or
    there was not a sufficient basis for the imposition of a prison term; or that the
    - 27 -
    Case No. 1-10-02, 1-10-26
    sentence is contrary to law.4 State v. Ramos, 3d Dist. No. 4-06-24, 
    2007-Ohio-767
    ,
    ¶23 (the clear and convincing evidence standard of review set forth under R.C.
    2953.08(G)(2) remains viable with respect to those cases appealed under the
    applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,
    12th Dist. No. CA2005-10-426, 
    2006-Ohio-2401
    , ¶4; State v. Tyson, 3d Dist. Nos.
    1-04-38; 1-04-39, 
    2005-Ohio-1082
    , ¶19, citing R.C. 2953.08(G).                             Clear and
    convincing evidence is that “which will produce in the mind of the trier of facts a
    firm belief or conviction as to the facts sought to be established.” Cross v. Ledford
    (1954), 
    161 Ohio St. 469
    , 
    120 N.E.2d 118
    , paragraph three of the syllabus; State v.
    Boshko (2000), 
    139 Ohio App.3d 827
    , 835, 
    745 N.E.2d 1111
    . An appellate court
    should not, however, substitute its judgment for that of the trial court because the
    trial court is ‘“clearly in the better position to judge the defendant’s likelihood of
    recidivism and to ascertain the effect of the crimes on the victims.”’ State v.
    Watkins, 3d Dist. No. 2-04-08, 
    2004-Ohio-4809
    , ¶16, quoting State v. Jones
    (2001), 
    93 Ohio St.3d 391
    , 400, 
    754 N.E.2d 1252
    .
    {¶46} As an initial matter, Turks concedes that the sentence of eight (8)
    years was not contrary to law. (Appellant’s Brief at 23). Rather, Turks argues that
    4
    This Court notes that the Ohio Supreme Court has recently released a plurality opinion on the issue of
    whether a clear and convincing standard or an abuse of discretion standard is proper for reviewing felony
    sentences under R.C. 2953.08(G). State v. Kalish, 
    120 Ohio St.3d 23
    , 
    2008-Ohio-4912
    , 
    896 N.E.2d 124
    .
    Although this Court utilized our precedential clear and convincing standard, affirmed and adopted by
    Kalish’s three dissenting Justices, we would have concluded that Turks’ sentence was proper under the
    Kalish plurality’s two-step approach as well.
    - 28 -
    Case No. 1-10-02, 1-10-26
    a maximum sentence was not supported by the record, especially in light of the
    fact that he expressed genuine remorse and the victim, Tamiko, asked for leniency.
    We disagree.
    {¶47} At the resentencing hearing, Turks stated, “* * * I’d like to say I’m
    sorry for everything, what happened, even though I wasn’t the cause. I’m just
    sorry I was there. I apologize to everybody that’s here for me, and here against
    me. It was just a whole big mess and I apologize for everything. * * *.” (Mar. 9,
    2010 Tr. at 8). After hearing Turks’ statement, the trial court found that Turks had
    not expressed genuine remorse. (Id. at 11). The trial court stated, in pertinent part:
    I understand his position that he’s not responsible and is not
    accepting any responsibility for that. That’s his right to do that.
    I’m certainly not making a finding in violation of his right to
    have that position because I understand his position on appeal
    and he may want to appeal further. But I’m simply making it
    based upon everything that’s been presented here, the history of
    the case and the facts, that I’m finding that the defendant
    doesn’t show any genuine remorse for the offense.
    Based upon Turks’ remarks and the fact that the trial court sits in the best position
    to hear his voice inflections and view his demeanor in order to determine whether
    he had genuine remorse for his actions, we cannot conclude that the trial court
    erred in its finding. State v. Alberty (Mar. 28, 2000), 3d Dist. No. 1-99-84, at *2,
    citing State v. Kershaw (1999), 
    132 Ohio App.3d 243
    , 
    724 N.E.2d 1176
    . See, also,
    State v. Majercik, 11th Dist. No. 2009-L-066, 
    2010-Ohio-711
    , ¶25.
    - 29 -
    Case No. 1-10-02, 1-10-26
    {¶48} We are also not persuaded that the trial court abused its discretion in
    sentencing Turks to the maximum sentence because the victim, Tamiko, asked the
    trial court to have leniency upon him. To begin with, the trial court did consider
    Tamiko’s plea of leniency at the resentencing hearing. (Mar. 9, 2010 Tr. at 9).
    Furthermore, the State indicated on the record at the original sentencing that the
    police had been called and had filed written reports some fourteen (14) times
    concerning Turks’ previous acts of domestic violence against Tamiko. (June 25,
    2008 Tr. at 3-4).    At trial, Patrolman Niedemire testified that Tamiko never
    followed through with the domestic violence charges against Turks, even though
    he warned her that the violence could escalate. (Apr. 29-30, 2008 Tr. at 75-76).
    Given this past history, we cannot find that the trial court abused its discretion in
    sentencing Turks because of Tamiko’s plea for leniency. Furthermore, we note
    that the trial court was within its discretion to consider these past uncharged acts
    for purposes of sentencing Turks. See, e.g., State v. Cooey (1989), 
    46 Ohio St.3d 20
    , 35, 
    544 N.E.2d 895
    .
    {¶49} Finally, Turks argues that the trial court abused its discretion in
    sentencing him because it erroneously found that his relationship with Tamiko
    facilitated the offense and erroneously found that the maximum sentence did not
    place an unnecessary burden on the State’s resources. We disagree. The evidence
    at trial established that Turks was Tamiko’s husband and, therefore, had readily
    - 30 -
    Case No. 1-10-02, 1-10-26
    available access to her within that relationship of trust to commit the present
    offense. (Apr. 29-30, 2008 Tr. at 25, 56, 79, 99). Furthermore, although the trial
    court must consider the financial burden on the State, the trial court is not required
    to elevate resource conservation above the seriousness and recidivism factors.
    State v. Fox (Mar. 6, 2001), 3d Dist. No. 16-2000-17, at *4. The trial court found
    that a prison sentence was consistent with the purposes and principles of
    sentencing, especially in light of the fact that Tamiko suffered serious physical
    harm. (Mar. 9, 2010 Tr. at 11). We find no abuse of the trial court’s discretion in
    this regard.
    {¶50} After reviewing the entire record, we cannot conclude that the trial
    court abused its discretion by sentencing Turks to the maximum term of eight (8)
    years imprisonment.
    {¶51} Turks’ fifth assignment of error is, therefore, overruled.
    {¶52} Having found no error prejudicial to the appellant herein in the
    particulars assigned and argued, we affirm the judgments of the trial court.
    Judgments Affirmed
    ROGERS, J., concurs.
    /jlr
    - 31 -
    Case No. 1-10-02, 1-10-26
    WILLAMOWSKI, P.J. Concurring Separately.
    {¶55} I concur fully with the majority opinion, however write separately to
    emphasize that the appropriate standard of review was applied. The standard of
    review for sentences was set forth in the plurality opinion of Kalish, supra. In
    Kalish, four panel members noted that R.C. 2953.08(G) requires that appellate
    courts require appellants to meet a clearly and convincingly contrary to law
    standard of review when reviewing a sentence.5 For example, if the sentencing
    court imposed consecutive sentences, as in this case, the standard of review would
    be whether appellant has shown that the sentence was clearly and convincingly
    contrary to law. However, if the appeal is based upon the proper application of the
    factors in R.C. 2929.12, four panel members in Kalish would require review using
    an abuse of discretion standard as specifically set forth in R.C 2929.12.6
    {¶56} In his assignments of error, Turks alleges that the trial court erred by
    sentencing him to maximum consecutive sentences under R.C 2929.14. This
    portion of the appeal is reviewed under a clearly and convincingly contrary to law
    standard. However, Turks also alleges that the trial court erred in applying the
    factors set forth in R.C. 2929.12(B) in that he alleges that he expressed genuine
    remorse. Since R.C. 2929.12(B) specifically grants the trial court discretion to
    5
    Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all
    reached this conclusion.
    6
    Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this
    position, although the first three would use both standards of review in all cases.
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    Case No. 1-10-02, 1-10-26
    apply the factors, the application of the factors must be reviewed under an abuse
    of discretion standard. The majority properly concluded that the trial court did not
    abuse its discretion in determining that Turks did not show any genuine remorse.
    Thus, I concur with the opinion of the majority.
    - 33 -