State v. Tate

[Cite as State v. Tate, 2012-Ohio-4276.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97697
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TIMOTHY TATE
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-553238
BEFORE: E. Gallagher, J., Celebrezze, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: September 20, 2012
ATTORNEY FOR APPELLANT
Christopher R. Fortunato
13363 Madison Avenue
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Sheila Turner-McCall
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant, Timothy Tate, appeals from his conviction for
domestic violence rendered in the Cuyahoga County Court of Common Pleas. Tate
argues that his trial counsel rendered ineffective assistance. For the following reasons,
we overrule Tate’s argument of ineffective assistance of counsel. However, this court
finds plain error and remands the case for proceedings consistent with this opinion.
{¶2} The facts in the instant case arise from events that occurred on July 18,
2011, in Cleveland, Ohio. On that day, Yesolde Collins and Charlotte Thomas met to
take modeling pictures at Charlotte’s uncle’s house. Later that afternoon, the two
walked to Thomas’ mother’s residence to meet up with Collins’ boyfriend, Tate, so that
Collins could give him the keys to their shared apartment. At that time, Collins and
Tate began to argue and Tate repeatedly struck Collins. Collins told Thomas to call 911
and Thomas ran into a nearby store and placed the call. Police arrived on the scene and
arrested Tate.
{¶3} Trial commenced and Tate’s counsel stipulated to the authenticity of two
previous domestic violence charges on behalf of Tate. Tate was found to be guilty as
charged and was sentenced to two years in prison.
{¶4} In his sole assignment of error, Tate argues he was denied due process
when his trial counsel failed to provide effective assistance at trial.
{¶5} In order to prevail on a claim of ineffective assistance of counsel, the
defendant must show (1) that counsel’s performance was deficient, and (2) that the
deficient performance prejudiced the defense so as to deprive the defendant of a fair
trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Counsel’s
performance may be found to be deficient if counsel “made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland at 687. To establish prejudice, “the defendant must prove that there exists a
reasonable probability that, were it not for counsel’s errors, the result of the trial would
have been different.” Bradley at 143.
{¶6} In determining whether counsel’s performance fell below an objective
standard of reasonableness, “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Strickland at 689. Because of the difficulties inherent in determining
whether counsel rendered effective assistance in any given case, a strong presumption
exists that counsel’s conduct fell within the wide range of reasonable, professional
assistance. Id.{¶7} In this assigned error, Tate argues that his trial counsel rendered ineffective
assistance on numerous instances. For purposes of clarity, each of Tate’s allegations
shall be addressed separately.
{¶8} Tate first alleges that his counsel erred when he “did not: [a]sk for
dismissal of indictment.” However, this is the only time that this facet of the
assignment of error is referenced. The Ohio Rules of Appellate procedure require an
appellant’s brief to contain
[a]n argument containing the contentions of the appellant with respect to
each assignment of error presented for review and the reasons in support of
the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies. App.R. 16(A)(7).
{¶9} Tate has not provided this court with any information as to where he feels
his trial counsel made this error, any authority citing that this sort of error is relevant to
ineffective assistance, or anything to support this contention at all. Tate does not even
state a reason the indictment could have been challenged. Therefore, we will not
consider this factor as part of the ineffective assistance of counsel argument.
{¶10} Tate next claims that his trial counsel erred when he did not “aggressively
retain or seek the removal of jurors in the voir dire in four instances.” Again, in his
brief he does not state this argument beyond this lone sentence. He never identifies the
“four instances” to which he is referring. In the “Statement of Facts” section of his brief
he mentions by name five potential jurors who were removed for cause: Kibort, Stein,
Talley, Stevens, and Butler. In order to evaluate Tate’s arguments thoroughly we will
assume Tate meant five “instances” and draw his arguments from the “Statement of
Facts” section to our best ability. In each of the five instances Tate argues that all were
biased against the state, as such, his counsel should have fought to retain them. We
disagree.
{¶11} The first juror Tate mentions is Juror Kibort. In court, she related that
she had been a victim of domestic violence and was unhappy with the aid she received
from the state in trying to pursue charges. Tate suggests that she had a bias against the
state. This is not clear from the transcript. It is unclear that her testimony necessarily
represents a bias against the state as Tate seems to believe exists. Tate’s trial counsel
made a motion to remove this juror for cause and the court granted it. This was a
strategic decision on the part of Tate’s trial counsel. The Supreme Court of Ohio has
held that regarding voir dire “we will not second guess trial strategy decisions, and a
court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” State v. Mason, 82 Ohio St.3d 144,
157-158, 694 N.E.2d 932 (1998), overruled on other grounds. Furthermore, “debatable
trial tactics do not constitute a denial of effective assistance of counsel.” State v.
Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (8th Dist.1980).
{¶12} The next juror Tate cites as being unable to be fair to the state is Juror
Stein, who was also a victim of domestic violence. However, the transcript is directly
contrary to that conclusion. Ms. Stein said, “I have a very deep-seated resentment
against and, of course, against men who abuse women, and I would be very biased.”
Here, it is even clearer that trial counsel moved to dismiss this juror in the best interest of
his client.
{¶13} Tate references Juror Stevens, who stated that “It’s just the way I was
brought up. You don’t have domestic violence at any household.” She went on to say
she could not be fair in this case. The transcript again demonstrates that the removal of
this juror was, in fact, in Tate’s best interest. This cannot be regarded as an error
lending itself to an ineffective assistance of counsel argument.
{¶14} Tate also makes reference to Juror Talley, a man who was himself
accused of domestic violence. Talley had some difficulty of the distinction between
domestic violence and, as he put it, “wrestling around.” The state moved to excuse the
juror for cause and Tate’s trial counsel made no objection nor did he consent. At this
point, Tate’s trial counsel had eliminated three potentially biased jurors for cause,
unopposed. To in turn allow the state to dismiss a juror, unopposed, is not an egregious
error amounting to ineffective assistance.
{¶15} The last juror Tate references is Juror Butler, a former U.S. Attorney, who
said she could not be fair to the state in this case as she recently lost the election for
prosecutor against the Cuyahoga County Prosecutor, William D. Mason. Tate says his
trial counsel erred when he did not try to keep her on the jury when the state made a
motion to remove for cause. Again, this seems like strategy on behalf of trial counsel,
and it is not this court’s job to second guess the viable strategies employed by lawyers.
{¶16} This court does not regard the actions by Tate’s trial counsel to be errors,
but rather tactical maneuvers. “Voir dire is largely a matter of strategy and tactics.
Actions of defense counsel which might be considered sound trial strategy are to be
presumed effective.” State v. Abdul, 8th Dist. No. 90789, 2009-Ohio-225, ¶ 35. Tate’s
arguments wrongly assume that the goal of voir dire is to try to keep as many jurors who
are partial to your cause as possible. Instead, voir dire is intended to create a jury pool
best equipped to assess the facts presented without being influenced by personal bias in
order to ensure a fair and just outcome. Furthermore, Tate has offered no evidence, and
this court infers no evidence, that “were it not for counsel’s errors, the result of the trial
would have been different.” Bradley, 42 Ohio St.3d at 143, 538 N.E.2d 373. The
evidence Tate offers does not even allow this court to believe that, if not for trial
counsel’s alleged errors, the voir dire process would have ended with different results.
The jurors referenced above were appropriately removed for cause and this court cannot
find attorney error in that practice.
{¶17} Tate next alleges his trial counsel erred in stipulating to Tate’s two prior
convictions for domestic violence. In cases where it is necessary for the state to prove
prior convictions in order to achieve a felony conviction, it is not uncommon for the
defendant’s attorney to stipulate to the previous charges as a strategic maneuver. See
State v. Allen, 8th Dist. No. 90476, 2008-Ohio-5985, at ¶ 55-56. “Stipulations to prior
convictions are widely recognized as a practice which benefits defendants by precluding
the state from introducing evidence as to the details of the prior convictions.” State v.
Arnold, 8th Dist. No. 79280, 2002 Ohio App. LEXIS 201, *8 (Jan. 24, 2002). Ohio
courts have found, “trial counsel could stipulate to the fact of a prior conviction in order
to reduce the prejudicial effect of a prior criminal record. The decision is purely one of
trial strategy. Thus, the decision of appellant’s counsel to stipulate * * * cannot be
characterized as ineffective assistance of counsel.” State v. Rogers, 11th Dist. No.
2007-T-0003, 2008-Ohio-2757, at ¶ 77.
{¶18} Tate argues that his trial counsel erred in waiving an opening statement. In
Bradley, the court stated that when considering the waiving of opening statements,
“given * * * the ‘strong presumption’ that counsel’s performance constituted reasonable
assistance, counsel’s actions must be viewed as tactical decisions and do not rise to the
level of ineffective assistance.” Bradley at 144. Here, we find the situation to be
similar to Bradley. Again, the alleged error is little more than a tactical move on the
part of trial counsel and, alone, cannot be found to be ineffective assistance of counsel.
There is nothing in the record to show, and Tate makes no argument to show, that had
his trial counsel made an opening statement, the outcome of the trial would have been
different. Id. at 143.
{¶19} Tate alleges his trial counsel erred in failing to challenge two pieces of
hearsay evidence. The first was the tape of the 911 call Thomas made on the day of the
incident. The second was the written statement Collins gave the police on the day of the
incident. We find trial counsel’s restraint from objecting to this evidence to be
inconsequential as the evidence would have been allowed under hearsay exceptions.
{¶20} The tape of Thomas’ call to 911 would have been admitted under two
exceptions to the hearsay rule. Ohio Rule of Evidence 803 provides for exceptions to
the hearsay rule. The present sense impression exception allows hearsay when it is
[a] statement describing or explaining an event or condition made while
the declarant was perceiving the event or condition, or immediately
thereafter unless circumstances indicate lack of trustworthiness. Evid.R.
803(1).
Also, the excited utterance exception allows hearsay when it is “[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). Thomas’ call to 911 would have
been admissible under either of these exceptions as she stated she was concerned about
both Collins’ and her own well-being when she made the call.
{¶21} Collins’ written statement would also be admissible under the present
sense impression exception. This is especially relevant as Collins had trouble
remembering the incident clearly at the time of trial. This is reflected in the alleged
hearsay evidence as the statement Collins signed for the police officers read, “[Tate] hit
me so hard I don’t remember.” Present sense impression hearsay is admissible because
“[f]abrication and faulty recollection are generally precluded by the fact that present
sense impressions are limited to those statements describing or explaining an event made
while or immediately after the declarant witnesses the event.” State v. Jordan, 8th Dist.
No. 70783, 1997 Ohio App. LEXIS 5107, *16 (Nov. 13, 1997). The declarent is less
likely to embellish or lie immediately following an incident as they have not had time to
reflect on the event. They merely state what happened.
{¶22} Tate argues that the hearsay should have been excluded as both witnesses
were there to testify at trial. This argument has no merit as Ohio Rules of Evidence
Section 803 provides that present sense impressions and excited utterances “are not
excluded by the hearsay rule, even though the declarant is available as a witness.” They
are intended for use even when the declarant is available and testifying.
{¶23} Tate’s trial counsel’s lack of objection when it would have undoubtedly
been overruled cannot lend itself to a finding of ineffective assistance of counsel.
{¶24} Tate argues that his trial counsel erred when he created an uncertainty as
to whether or not Tate would testify on his own behalf. The record reflects, however,
that it was Tate himself who told the court he wished to testify. The court then
explained to him the rights he would be waiving if he did testify on his own behalf.
Tate had a brief conference with trial counsel, after which his trial counsel stated to the
court that Tate no longer wished to testify. Any uncertainty created here was caused by
Tate himself. Tate offers nothing to demonstrate how this prejudiced his defense.
Here there is no error that contributed to an ineffective assistance of counsel argument.
{¶25} Tate’s last argument for error on the part of his trial counsel is that he did
not impeach Collins’ character when she testified. More specifically, trial counsel did
not impeach Collins’ character that she had to be brought to court via bench warrant and
arrest and be made to testify. Tate does not explain how his trial counsel, refraining
from impeaching Collins as to the bench warrant, prejudiced his defense. Again legal
strategy cannot lend itself to an ineffective assistance of counsel argument. We must
grant deference to Tate’s trial counsel.
{¶26} Tate’s arguments amount to little more than hindsight, second-guessing of
trial tactics or harmless errors. When considered in their totality, there is nothing to
show that these errors amount to ineffective assistance of counsel.
{¶27} For the reasons stated above we overrule Tate’s assignment of error.
{¶28} This court, however, finds the trial court’s judgment of conviction
constituted a plain error as the element of prior convictions was not properly established
to convict Tate of the felony domestic violence charge. Because this element of the
offense was not met, Tate’s felony conviction must be overturned, and the lesser
misdemeanor conviction for domestic violence entered.
{¶29} When an error is plain error, this court has the authority to review it, sua
sponte.
Ohio Crim.R. 52 (B) states: “Plain error or defects affecting substantial
rights may be noticed although they were not brought to the attention of the
court.” This rule allows the appellate court, at the request of appellate
counsel or sua sponte, to consider a trial error that was not objected to
when that error was “plain error.”
State v. Vason, 8th Dist. No. 88069, 2007-Ohio-1599, ¶ 10.
{¶30} Furthermore, this court has an obligation to correct plain error.
When an error is clearly apparent on the record and is prejudicial to the
appellant, there is no justifiable reason to ignore such an error where the
interests of justice require that review be granted.
State v. Eiding, 57 Ohio App.2d 111, 121, 385 N.E.2d 1332 (8th Dist.1978).
The plain error standard is tough to reach.
To rise to the level of plain error, it must appear on the face of the record
not only that the error was committed, but that except for the error, the
result of the trial clearly would have been otherwise and that not to
consider the error would result in a miscarriage of justice.
State v. Young, 8th Dist. No. 79243, 2002-Ohio-2744, ¶ 41.
Here, we believe this standard is met.
{¶31} In order to prove felony in this case, it was necessary for the state to
prove, beyond a reasonable doubt, Tate’s two prior convictions for domestic violence.
R.C. 2919.25(A) establishes the basic offense of domestic violence as, “[n]o person shall
knowingly cause or attempt to cause physical harm to a family or household member.”
R.C. 2919.25(D)(4) is the clause that enhances the misdemeanor offense to a felony of
the third degree, it reads
[i]f the offender previously has pleaded guilty to or been convicted of two
or more offenses of domestic violence or two or more violations or
offenses of the type described in division (D)(3) of this section involving a
person who was a family or household member at the time of the violations
or offenses, a violation of division (A) or (B) of this section is a felony of
the third degree.
{¶32} This court has stated, “when the prior conviction is a degree-enhancing
element versus a sentence-enhancing element, the state is required to prove its existence
beyond a reasonable doubt.” State v. Mitchell, 8th Dist. Nos. 67490 and 67491, 1996
Ohio App. LEXIS 5454, *8 (Dec. 5, 1996).
{¶33} Proof of a previous conviction is governed under R.C. 2945.75(B). In
order “to prove a prior conviction under R.C. 2945.75(B), the state must present both a
certified copy of the prior judgment and evidence that the defendant named in the prior
judgment is the defendant in the case at bar.” State v. Macalla, 8th Dist. No. 88825,
2008-Ohio-569, ¶ 44. Macalla goes on to say
that simple identity of names is insufficient: “Having previously been
convicted” is now a necessary element of the new offense and must be
proved beyond a reasonable doubt by the state. This includes the question
of identity. It would not be sufficient for the state to prove that “John
Smith” was previously convicted in Cuyahoga County. It must now prove
that the “John Smith” previously convicted in Cuyahoga County was one
and the same person as the “John Smith” now on trial.
Id. at ¶ 45-46, citing State v. Simpson, 20 Ohio App.2d 336, 254 N.E.2d 23 (3d
Dist.1969).
{¶34} In order to establish this element, proof such as a social security number
or birth date must be used as a unique identifier. Id. at ¶ 51.
{¶35} Here, the record shows little more than the fact that the previous
convictions displayed the same name of Timothy Tate, but does not have any unique
identifier to say that this is the same Tate that is on trial. No social security number or
date of birth was submitted by the state. Tate only stipulated to the previous conviction’s
authenticity. There was no stipulation as to identity. The court asked, prior to trial, if
he stipulated to the authenticity and trial counsel responded in the affirmative. Tate’s
trial counsel made a motion to acquit on the basis of identity after the state rested their
case. This motion was denied by the court. We find, however, that the record reflects
that the state failed to establish the element of prior convictions for the felony charge.
Thus, the trial court’s conviction of a felony was in error.
{¶36} It is also clear from the record that had this error not occurred, the result
of the trial would have been different and to ignore the error would be a miscarriage of
justice. State v. Young, 8th Dist. No. 79243, 2002-Ohio- 2744, ¶ 41. The error
resulted in Tate’s conviction of a felony rather than a misdemeanor. It is evident that
ignoring this error would result in a miscarriage of justice. We find that all of the
elements of the first-degree misdemeanor domestic violence charge have been met, but
not the prior convictions element of the third-degree felony charge.
{¶37} Having found plain error, sua sponte, we reverse Tate’s conviction and
remand the case to the trial court to enter a judgment convicting Tate of domestic
violence as a misdemeanor of the first degree and to impose sentence pursuant to law.
{¶38} This cause is reversed and remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
lower court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KENNETH A. ROCCO, J., CONCURS;
FRANK D. CELEBREZZE, JR., P.J., DISSENTS
WITH SEPARATE OPINION
FRANK D. CELEBREZZE, JR., P.J., DISSENTING:
{¶39} I respectfully dissent from the majority’s finding of plain error in this
matter. In finding plain error, the majority concluded that the element of appellant’s
prior conviction was not proven beyond a reasonable doubt based on the state’s failure to
establish appellant’s identity as the party who was previously convicted for domestic
violence.
{¶40} Here, the record reflects that prior to trial, appellant, through counsel,
stipulated to the authenticity of his two previous domestic violence convictions in
Franklin County, Ohio, against the same victim as in the instant case. While I agree that
R.C. 2945.75(B) requires the state to provide evidence that “the defendant named in the
prior judgment is the defendant in the case at bar,” I would find that where, as here, a
defendant stipulates to the authenticity of his previous convictions, it is inherent that the
defendant is equally stipulating to the fact that he is the same party named in the prior
judgment of conviction. This scenario is distinguishable from the facts contained in State
v. Macalla, 8th Dist. No. 88825, 2008-Ohio-569, where no stipulation to the prior
conviction was provided by the defendant.
{¶41} Based on the foregoing, I believe that the state proved appellant’s prior
conviction beyond a reasonable doubt. Accordingly, I would affirm appellant’s felony
conviction and his subsequent prison sentence.
Appendix
Assignment of Error
The appellant did not receive due process when appellant’s trial
counsel was ineffective in his assistance to the appellant at trial
through numerous instances of ineffective assistance of counsel that
produced a cumulative effect against the appellant in violation of the
Sixth Amendment to the United States Constitution and Article I, Sec.
10 of the Ohio Constitution.