State v. Hirschy ( 2023 )

[Cite as State v. Hirschy, 2023-Ohio-3204.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-22-44
v.
CRAIG A. HIRSCHY, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2021 0439
Judgment Affirmed
Date of Decision: September 11, 2023
APPEARANCES:
Christopher R. Bucio for Appellant
John R. Willamowski, Jr. for Appellee
Case No. 1-22-44
ZIMMERMAN, J.
{¶1} Defendant-appellant, Craig A. Hirschy (“Hirschy”), appeals his
conviction for aggravated burglary. For the reasons that follow, we affirm.
{¶2} This case stems from an assault by Hirschy on Thomas Blair (“Blair”)
over Blair’s relationship with Ashley Baxter (“Baxter”), Hirschy’s ex-girlfriend. In
the evening hours of December 6, 2021, Hirschy entered Blair’s residence in Allen
County through an unlocked backdoor while Blair was asleep on his sofa. Blair was
awoken by Hirschy (who was kneeling on his chest) punching him in his face
causing him physical harm. Thereafter, Hirschy demanded Blair’s cellphone and
the pin number to open it. Hirschy gained access to the phone and deleted a
voicemail message that he left Blair on October 21, 2021. After throwing the phone
to the ground, Hirschy exited through Blair’s backdoor.
{¶3} On January 13, 2022, the Allen County Grand Jury indicted Hirschy for
aggravated burglary, in violation of R.C. 2911.11(A)(1), (B), a first-degree felony.
On January 21, 2022, Hirschy appeared for arraignment and entered a not guilty
plea.
{¶4} Hirschy proceeded to a jury trial on May 2 and 3, 2022, where he was
found guilty of aggravated burglary.
{¶5} On June 30, 2022, the trial court sentenced Hirschy to an indefinite
minimum prison term of four years to a maximum prison term of six years.
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{¶6} Hirschy filed a timely notice of appeal and raises two assignments of
error for our review, which we will address separately and out of order.
Second Assignment of Error
The trial court committed plain error in allowing the testimony of
Deputy Douglas Wuebker, without the State providing the
defense notice of their intent to use these “other acts” in his Allen
County trial and the trial court failing [sic] to conduct an analysis
as to the admissibility of these “other acts”.
{¶7} In his second assignment of error, Hirschy raises two arguments. First,
he argues that the trial court erred when it permitted the admission of other-acts
evidence without requiring the State to provide notice of their intent to use other-
acts evidence in advance of trial. Secondly, he argues that the trial court failed to
conduct any analysis as to the admissibility of the other-acts evidence.
Standard of Review
{¶8} Generally, the admission or exclusion of evidence lies within the trial
court’s discretion, and a reviewing court should not reverse absent an abuse of
discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-
2815, ¶ 62. An abuse of discretion implies that the trial court acted unreasonably,
arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157.
{¶9} Significantly, Hirschy did not object to the trial court’s admission of the
purported other-acts evidence (at trial) on any basis. See Evid.R. 103(A)(1). “[I]f
the party wishing to exclude evidence fails to contemporaneously object at trial
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when the evidence is presented, that party waives for appeal all but plain error.”
State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 53-54, citing State
v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 59-60, State v. Barrett, 4th Dist.
Scioto No. 03CA2889, 2004-Ohio-2064, ¶ 20, and State v. Lenoir, 2d Dist.
Montgomery No. 22239, 2008-Ohio-1984, ¶ 19. See Evid.R. 103(D).
{¶10} “Crim.R. 52(B) governs plain-error review in criminal cases.” Bagley
at ¶ 55, citing State v. Risner, 73 Ohio App.3d 19, 24 (3d Dist.1991). “Plain errors
or defects affecting substantial rights may be noticed although they were not brought
to the attention of the court.” Crim.R. 52(B). A finding of plain error is three-fold,
requiring (1) an error or deviation from law, (2) that the error is plain, or an obvious
defect in the proceedings, and (3) that the error affected “substantial rights,” altering
the outcome of the trial. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 16,
citing State v. Barnes, 94 Ohio St.3d 21, 27 (2002). The burden is on the party
asserting plain error to demonstrate such error. Id. at ¶ 17, citing State v. Jester, 32
Ohio St.3d 147, 150 (1987).
{¶11} We “recognize[] plain error with the utmost caution, under exceptional
circumstances, and only to prevent a miscarriage of justice.” State v. Smith, 3d Dist.
Hardin No. 6-1414, 2015-Ohio-2977, ¶ 63, citing State v. Diar, 120 Ohio St.3d 460,
2008-Ohio-6266, ¶ 139 and State v. Saleh, 10th Dist. Franklin No. 07AP-431, 2009-
Ohio-1542, ¶ 68. “We may reverse [under plain-error review] only when the record
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is clear that defendant would not have been convicted in the absence of the improper
conduct.” Id., citing State v. Williams, 79 Ohio St.3d 1, 12 (1997). Accordingly,
we will review all of Hirschy’s arguments under his second assignment of error for
plain error.
Analysis
{¶12} We begin by addressing whether Dep. Wuebker testified regarding
other-acts evidence, and if so, whether the admission of that evidence constitutes a
deviation of the law. In this case, Dep. Wuebker testified that the Mercer County
dispatch received two “anonymous” 9-1-1 calls reporting a drunk driver on
Carthagena Road in Mercer County. Dep. Wuebker testified that he was able to
identify the “anonymous” caller as Hirschy by cross-referencing Hirschy’s phone
number with the caller-identification from dispatch.1 The record reveals that
Hirschy was attempting to implicate Baxter as the drunk driver. According to Dep.
Wuebker, Hirschy admitted he was able to track Baxter’s cellphone to Speedway
Lanes in New Bremen, Auglaize County by virtue of her sharing her location with
his cellphone. Dep. Wuebker stated that Hirschy told him that he and Baxter were
broken up, and that he (Hirschy) went to Speedway Lanes because he wanted to
return Baxter’s key to her.2 Dep. Wuebker testified that Baxter came in contact with
1
Baxter provided Dep. Wuebker with Hirschy’s cellphone number.
2
Following a Christmas party hosted by their employer, Hirschy observed Baxter and Blair (coworkers)
holding hands and briefly share a kiss as they exited the bowling alley.
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Hirschy at Speedway Lanes nearly hitting her vehicle with his vehicle. According
to Dep. Wuebker, Hirschy then began tailgating Baxter and trying to run her off the
roadway as she proceeded to her home in Mercer County, Ohio. However, through
his investigation, Dep. Wuebker learned that Hirschy’s vehicle had collided with a
fence post on Carthagena Road during his interactions with Baxter.
{¶13} Dep. Wuebker’s testimony (regarding these events occurring in
Auglaize and Mercer Counties) was necessary because it provided the trier of fact
with a complete picture of what happened between Hirschy and Baxter on
December 6, 2021 and because it formed the immediate background of the crime of
which Hirschy was charged with in Allen County. Further, the testimony of Dep.
Wuebker aided the trier of fact in their understanding of the crime. See State v.
Wainscott, 12th Dist. Butler No. CA2015-07-056, 2016-Ohio-1153, ¶ 19, quoting
State v. Davis, 64 Ohio App.3d 334, 340 (12th Dist.1989), citing State v. Wilkinson,
64 Ohio St.2d 308, 318 (1980). See also State v. Lester, 3d Dist. Union Nos. 14-
18-21 and 14-18-22, 2020-Ohio-2988, ¶ 43.
{¶14} In State v. Lester, we concluded that Evid.R. 404(B) only applies to
“[e]vidence of other crimes, wrongs, or acts” extrinsic to the charged offense and
not those crimes, wrongs, or acts that are intrinsic to the offense since they are
outside the scope of Evid.R. 404(B). (Emphasis sic.) Lester at ¶ 43, citing 404(B).
In this case, as in Lester, the crimes, wrongs, or acts testified to by Dep. Wuebker
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were intrinsic to the instant offense. See id., citing State v. Hill, 5th Dist. Stark No.
2018CA00077, 2019-Ohio-3432, ¶ 51-52, citing Jordan v. Dayton Testing Lab., 2d
Dist. Montgomery No. 19741, 2004-Ohio-2425, ¶ 48 and United States v. Siegel,
536 F.3d 306, 316 (4th Cir.2008).
{¶15} Here, Hirschy has failed to establish how this evidence demonstrates
“evidence of other crimes, wrongs, or acts” bringing it within the scope of Evid.R.
404(B). See Lester at ¶ 43, citing Hill at ¶ 51-52, citing Jordan at ¶ 48, citing Seigel
at 316. Thus, the record supports that the events in Auglaize and Mercer Counties
are “inextricably intertwined” with Hirschy’s offense, and therefore, are intrinsic to
the aggravated-burglary charge in Allen County.
{¶16} Accordingly, Dep. Wuebker’s testimony did not involve extrinsic acts,
but rather acts intrinsic to the charged offense, and based upon our review of the
record, we conclude that there is no error or deviation from the law and that plain
error does not exist under the facts presented.
{¶17} Hirschy’s second assignment of error is overruled.
First Assignment of Error
Counsel was ineffective for failing to object to evidence for which
no 404(b) notice was given, and waiving time in a Celina
Municipal Court case that ultimately had a substantial impact on
his trial in Allen County Common Pleas Court.
{¶18} In Hirschy’s first assignment of error, he argues that he received
ineffective assistance of counsel. Specifically, Hirschy argues that his trial counsel
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failed to object to the admission of other-acts evidence when no notice of intent to
use other-acts evidence was provided by the State in advance of trial, and that trial
counsel executed a speedy-trial waiver (in Celina Municipal Court) without
Hirschy’s consent.
Standard of Review
{¶19} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064 (1984). A properly licensed attorney is presumed
competent. State v. Hamblin, 37 Ohio St.3d 153, 155-156 (1988). Therefore, in
order to show trial counsel’s conduct was deficient or unreasonable, the defendant
must overcome the presumption that counsel provided competent representation and
must show that counsel’s actions were not trial strategies prompted by reasonable
professional judgment. Strickland at 687, 104 S.Ct. at 2052. Counsel is entitled to
a strong presumption that all decisions fall within the wide range of reasonable
professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or
strategic trial decisions, even if unsuccessful, do not generally constitute ineffective
assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995). Rather, the errors
complained of must amount to a substantial violation of counsel’s essential duties
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to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989), quoting State
v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on other grounds, Lytle v.
Ohio, 438 U.S. 910, 98 S.Ct. 3135 (1978).
{¶20} “Prejudice results when ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting
Bradley at 142, citing Strickland at 691, 104 S.Ct. at 2052. “‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” Id.,quoting Bradley at 142 and citing Strickland at 694, 104 S.Ct. at 2067-2068.
Analysis
{¶21} As an initial matter, we must address Hirschy’s attachment of Exhibit
C (his trial attorney’s statement of fees), Exhibit D (Hirschy’s affidavit dated Feb.
27, 2023), Exhibit E (waiver of trial time limits in Celina Municipal Court, case
number 21CRB00574), and Exhibit F (a summary and docket print out also from
case number 21CRB00574) as an appendix to his brief as support for his first
assignment of error. We (as an appellate court) are confined to the record on appeal.
See App.R. 9. The record on appeal is comprised of the following:
(1) The original papers and exhibits thereto filed in the trial court,
the transcript of proceedings, if any, including exhibits, and a certified
copy of the docket and journal entries prepared by the clerk of the trial
court shall constitute the record on appeal in all cases.
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(2) The trial court shall ensure that all proceedings of record are
recorded by a reliable method, which may include a
stenographic/shorthand reporter, audio-recording device, and/or
video-recording device. The selection of the method in each case is in
the sound discretion of the trial court[] * * *.
App.R. 9(A)(1)-(2). Significantly, the appendix of a brief is not considered part of
the record on appeal. See State v. Burgett, 3d Dist. Marion No. 9-10-37, 2010-Ohio-
5945, ¶ 30; App.R. 9(A). Moreover “[i]t is well established, [ ] that ‘“‘[a] reviewing
court cannot add matter to the record before it, which was not a part of the trial
court’s proceedings, and then decide the appeal on the basis of the new matter.’”’”
State ex rel. Municipal Construction Equipment Operators’ Labor Council v.
Cleveland, 162 Ohio St.3d 195, 2020-Ohio-3197, ¶ 19, quoting State ex rel.
Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, ¶
20, quoting State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728,
730 (1995), quoting State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of
the syllabus. Because these documents were not included in the original papers and
exhibits filed in the trial court, we will not consider Exhibits C, D, E, and F that
were submitted by the appellant in the appendix attached to his merit brief.
{¶22} Next, we consider the first portion of Hirschy’s argument relating to
his trial counsel’s claimed failure to object to other-acts evidence. Based upon our
determination (under his second assignment of error), Dep. Wueberk’s testimony
involved intrinsic acts related to the instant offense and no notice was needed by the
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State. The failure to raise a meritless objection to admissible evidence does not
constitute a deficient or unreasonable performance. State v. Brown, 3d Dist. Allen
No. 1-19-61, 2020-Ohio-3614, ¶ 79. Hence, Hirschy’s trial counsel’s handling of
this evidence is neither deficient nor unreasonable.
{¶23} Finally, we cannot address the last portion of Hirschy’s ineffective-
assistance-of-counsel argument regarding his trial counsel’s execution of a speedy-
trial waiver without his consent (in Celina Municipal Court) since Hirschy did not
file a notice of appeal related to that case. See App.R. 4(A)(1). Hence, we are
without jurisdiction to hear an appeal of his trial counsel’s action in Celina
Municipal Court pursuant to App.R. 4(A)(1) nor can we address any attendant
implication that the execution of such a waiver (in Celina Municipal Court) may
have had in Allen County due to our lack of jurisdiction and corresponding record.
{¶24} Accordingly, Hirschy’s first assignment of error is overruled.
{¶25} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER, P.J. and POWELL, JR., concur.
** Judge Stephen W. Powell of the Twelfth District Court of Appeals, sitting
by Assignment of the Chief Justice of the Supreme Court of Ohio.
/jlr
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