State v. Bibbs

[Cite as State v. Bibbs, 2016-Ohio-8396.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
CASE NO. 5-16-11
PLAINTIFF-APPELLEE,
v.
KEVIN E. BIBBS, SR., OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2015-CR-00243
Judgment Affirmed
Date of Decision: December 27, 2016
APPEARANCES:
William T. Cramer for Appellant
Alex K. Treece for Appellee
Case No. 5-16-11
WILLAMOWSKI, J.
{¶1} Defendant-appellant Kevin Bibbs (“Bibbs”) brings this appeal from the
judgment of the Court of Common Pleas of Hancock County. Bibbs alleges that the
trial court erred by 1) permitting a witness to read a prior written statement by the
witness and 2) admitting that statement as evidence. Bibbs also claims that he was
denied the effective assistance of counsel. For the reasons set forth below, the
judgment is affirmed.
{¶2} On September 12, 2015, Bibbs and his wife, Brenda Bibbs (“Brenda”),
began arguing. Tr. 168. Brenda then turned away from Bibbs and he grabbed her
on the neck to keep her from walking away. Tr. 170-72. Brenda then pulled away
from Bibbs, which caused him to grab her again, this time by the face. Tr. 172-73.
Brenda then went into a different room and called the police because she was scared
of Bibbs. Tr. 174. Soon after the call, the police arrived on the scene. Tr. 177.
Brenda told the police what had happened and provided a written statement to the
police at that time. Tr. 210 and Ex. 7. Bibbs was then arrested and taken to the
police station. Tr. 224.
{¶3} On September 22, 2015, the Hancock County Grand Jury indicted
Bibbs on one count of Domestic Violence with a previous conviction in violation of
R.C. 2919.25(A), a felony of the third degree. Doc. 1. A jury trial was held on
January 25, 2016. Doc. 67. During Brenda’s testimony, the prosecutor had her read
her prior written statement which she had provided to the police. Tr. 181. This
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statement was then admitted as an exhibit. Tr. 226. After deliberation, the jury
returned a verdict of guilty. Doc. 29. A sentencing hearing was held on March 30,
2016. Doc. 45. The trial court imposed a prison sentence of twenty-four months.
Id. Bibbs then filed a timely notice of appeal. Doc. 63. On appeal, Bibbs raises the
following assignments of error.
First Assignment of Error
The trial court erred by permitting the State’s primary witness to
read aloud to the jury a prior written statement to the police and
to admit the written statement into evidence.
Second Assignment of Error
[Bibbs] was denied the effective assistance of counsel when trial
counsel failed to object to the admission of a prior statement by
the State’s primary witness.
Prior Consistent Statement
{¶4} In the first assignment of error, Bibbs claims that the trial court erred
by allowing Brenda to read her prior written statement and then to allow the
admission of that statement into evidence. Bibbs admits that no objection was made
to either the reading of the statement or to the admission of the statement. Thus,
this court must review this assignment of error under a plain error standard.
Under Crim.R. 52(B), “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought
to the attention of the court.” To prevail under the plain-error
standard, a defendant must show that an error occurred, that it
was obvious, and that it affected his substantial rights. * * * We
take “[n]otice of plain error * * * with the utmost caution, under
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exceptional circumstances, and only to prevent a manifest
miscarriage of justice.”
State v. Obermiller, 147 Ohio St. 3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 62
(citations omitted).
{¶5} “Hearsay” is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Evid.R. 801(C). However, a prior written statement
may not be classified as hearsay if it meets certain requirements.
Prior statement by witness. The declarant testifies at trial or
hearing and is subject to cross-examination concerning the
statement, and the statement is (a) inconsistent with
declarant’s testimony, and was given under oath subject to
cross-examination by the party against whom the statement is
offered and subject to the penalty of perjury at a trial, hearing,
or other proceeding, or in a deposition, or (b) consistent with
declarant’s testimony and is offered to rebut an express or
implied charge against declarant of recent fabrication or
improper influence or motion, or (c) one of identification of a
person soon after perceiving the person, if the circumstances
demonstrate the reliability of the prior identification.
Evid.R. 801(D)(1).
{¶6} In this case, the statement in question was admitted during the direct
examination of Brenda. Before she read the statement, Brenda testified that the
night of the incident, Bibbs was angry off and on. Tr. 167. The two of them were
arguing about Bibbs being “on his phone and not accomplishing anything, and
staying up all hours of the night and where [she] can’t get [her] rest.” Tr. 168. At
some point in the argument, she turned to leave, and Bibbs grabbed her on the neck.
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Tr. 172. Brenda pulled away and Bibbs reached out grabbing her by the face this
time. Tr. 172-73. When Brenda pulled away again, she went into the back room,
shut the door, and called the police. Tr. 173-74. Brenda then identified Exhibits 1-
5 as being photographs of her injuries. Tr. 170-76. Brenda also identified Exhibit
6 as a recording of the 911 call, which was played for the jury. Tr. 178. The
following shows the context in which the statement was admitted.
Q. Okay. Are you on any medications that you shouldn’t be
drinking on?
A. Yes.
Q. I don’t need to know that. I just had that question. Now you
indicated to the 911 operator that you didn’t want an ambulance.
Did you think you needed an ambulance that night?
A. No.
Q. Okay. Why was that?
A. Because I knew he wouldn’t go to get back there to get me
again.
Q. Okay. Did you provide a written statement to the investigating
officer?
A. Yes, I did. Yes, I did.
(Thereupon, State’s Exhibit 7 was marked for identification.)
Q. This is the last set of questions I have. Do you recognize this
document?
A. Oh, yes, I wrote this.
Q. Okay. Is that a copy of your written statement?
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A. Yes.
Q. Okay. When did you write that?
A. The night it happened, the morning that it happened.
Q. Were the officers still there when you wrote it?
A. Yes.
Q. Okay. Could you read what you wrote?
A. Yes. “Fighting, arguing, Kevin came up, come in and out, he
grabbed left side of face, then grabbed my left side of neck, said
bitch, called the cops. Bitch, you’re going down to [sic], bitch, I’ll
kill you you’re mine. Brenda Bibbs.”
Q. Okay. Now, you didn’t say that in your testimony that he said,
Kevin said, bitch call the cops, but you’re going down too, bitch,
I’ll kill you, you’re mine. Did he say those things that night?
A. Yes.
Q. Okay. Thank you, I have no further questions.
Tr. 180-82. The statement was later admitted without objection. Tr. 226.
{¶7} The prior statement to the police was not inconsistent with Brenda’s
testimony, was not given under oath, and was not offered by Bibbs. Thus, the
exception set forth in Evidence Rule 801(D)(1)(a) is not applicable. The statement
was also not used for the purposes of identification, as the defendant was the
husband of the victim, so she knew his identity. Thus, the exception set forth in
Evidence Rule 801(D)(1)(c) also did not apply. The only possible exception would
be that provided by Evidence Rules 801(D)(1)(b).
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{¶8} The statement in this case was consistent with Brenda’s trial testimony,
but the statement was read to the jury during direct examination. No challenge,
either express or implied, to the credibility of the witness indicating that she had
recently fabricated her statement or was doing so for an improper purpose had been
made. Brenda was not mentioned by Bibbs in the opening statement, she was the
first witness, and she had not been subject to cross-examination. Even on cross-
examination, no claim was made that she had fabricated her testimony or made it
for any improper purpose. The staff notes to 801(D)(1)(b) indicate that the use of
the prior statement is to rehabilitate the witness whose credibility has been
challenged. See also, State v. English, 12th Dist. Butler No. CA2013-03-048, 2014-
Ohio-441 (holding that it was error to admit prior consistent statement when
credibility of witness had not been challenged, but that the error was harmless due
to lack of objections); State v. Owens, 6th Dist. Lucas No. L-11-1207, 2013-Ohio-
325 (holding that although admission of prior consistent statement not used to rebut
previous claim of fabrication or improper influence was erroneous, it did not amount
to plain error when there was other evidence to support the conviction); and State v.
Hall, 8th Dist. Cuyahoga No. 96680, 2012-Ohio-266 (holding that Ohio Evid.R.
801(D)(1)(b) allows the admission of a prior consistent statement only if it is offered
to rebut an express or implied charge against the declarant of fabrication or improper
purpose). As no challenge to the credibility existed, the State was not using the
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prior consistent statement to rehabilitate the witness and the exception to the hearsay
rule set forth in Evidence Rule 801(D)(1)(b) does not apply.
{¶9} Both Bibbs and the State argue on appeal that the statement was used
to refresh memory, though Bibbs argues it was an improper usage. Bibbs claims
that the State attempted to use the statement pursuant to Evidence Rule 612. This
rule allows the use of a writing to refresh the memory of a witness for the purpose
of testifying either while testifying or before testifying. This rule does not apply
because there was no indication in the record that the witness’ memory needed
refreshed. There were no questions asked to which the witness indicated she did
not recall which could be answered by the statement. Thus it was not used to refresh
her memory. Even if it had been used to refresh her memory, the State still would
not have been permitted under Evidence Rule 612 to admit the statement. The rule
only allows for the admission of the writing by the adverse party. Evid.R. 612 and
State v. Sanders, 130 Ohio App. 3d 789, 797, 721 N.E.2d 433 (11th Dist. 1998).
{¶10} The State argues that it could have the statement admitted pursuant to
the hearsay exception set forth in Evidence Rule 803(5).
A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection
to enable him to testify fully and accurately, shown by the
testimony of the witness to have been made or adopted when the
matter was fresh in his memory and to reflect that knowledge
correctly. If admitted, the memorandum or record may be read
into evidence but may not itself be received as an exhibit unless
offered by an adverse party.
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Evid.R. 803(5). As discussed above, there was no foundation laid in the record to
indicate that Brenda’s memory was insufficient in any manner which would
implicate the usage of Evidence Rule 803(5). If the State had shown that Brenda
could not remember, even after she had attempted to refresh her memory, she could
then have read the statement into the record. See Staff Notes to Evid.R. 803(5).
However, the statement still could not have been admitted as an exhibit by the
request of the State pursuant to this rule. Therefore, the trial court erred in allowing
the reading of the statement and in admitting it as an exhibit.
{¶11} Although there was an error, our analysis cannot stop there. As there
was no objection to either the reading of the statement or the admission of the
statement as an exhibit, this court must determine whether the error was prejudicial
and arose to the level of plain error. “Plain error does not exist unless it can be said
that but for the error, the outcome of the trial would clearly have been otherwise.”
State v. Davis, 127 Ohio St. 3d 268, 2010-Ohio-5706, 939 N.E.2d 147, ¶ 24.
{¶12} In this case, Bibbs was charged with domestic violence, which
involves causing physical harm to a family member. R.C. 2919.25(A). Physical
harm is defined as “any injury, illness, or other physiological impairment, regardless
of its gravity or duration.” R.C. 2901.01(A)(3). Brenda testified that Bibbs was her
husband and that on the night in question he had grabbed her in a manner that caused
marks on the skin and pain. Officer Brooks Deidrick (“Deidrick”) responded to the
911 call and indicated that he took photographs of Brenda’s injuries. Tr. 214.
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Deidrick testified that Exhibit 5 specifically showed the injury to Brenda’s neck.
Tr. 215. Deidrick then testified that Exhibit 4 specifically showed injury to Brenda’s
left cheek. Tr. 216. The testimony of these witnesses supports the conviction even
without consideration of the admission of the prior consistent statement. Therefore,
the outcome of the trial would not have clearly been different without the error. The
error does not rise to the level of plain error and the first assignment of error is
overruled.
Ineffective Assistance of Counsel
{¶13} In the second assignment of error, Bibbs claims that his counsel was
ineffective for failing to object to the reading of the prior consistent statement and
for failing to object to the admission of the statement as an exhibit.
In evaluating whether a petitioner has been denied effective
assistance of counsel, this court has held that the test is “whether
the accused, under all the circumstances, * * * had a fair trial and
substantial justice was done.” State v. Hester (1976), 45 Ohio St. 2d
71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus.
When making that determination, a two-step process is usually
employed. “First, there must be a determination as to whether
there has been a substantial violation of any of defense counsel's
essential duties to his client. Next, and analytically separate from
the question of whether the defendant's Sixth Amendment rights
were violated, there must be a determination as to whether the
defense was prejudiced by counsel's ineffectiveness.” State v. Lytle
(1976), 48 Ohio St. 2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d
623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S. Ct.
3135, 57 L. Ed. 2d 1154.
On the issue of counsel's ineffectiveness, the petitioner has the
burden of proof, since in Ohio a properly licensed attorney is
presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
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St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64
Ohio St. 2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.
State v. Calhoun, 86 Ohio St. 3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The
failure to prove either 1) a substantial violation or 2) prejudice caused by the
violation makes it unnecessary for a court to consider the other prong of the test.”
State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20. “To show
prejudice, the defendant must show a reasonable probability that, but for counsel's
errors, the result of the proceeding would have been different.” State v. Conway,
109 Ohio St. 3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95.
{¶14} As discussed above, an error occurred when Brenda was allowed to
read the statement without first showing that it was admissible and then in allowing
the statement to be admitted as an exhibit. However, “[i]n order to demonstrate
prejudice, the defendant must prove a reasonable probability that the result of the
trial would have been different but for his or her counsel's errors.” State v. Ranes,
3d Dist. Putnam No. 12-15-03, 2016-Ohio-448, ¶ 14 (holding that counsel was not
ineffective when there was no showing of prejudice). Without the statement, the
evidence is such that it would not indicate a reasonable probability that the outcome
of the trial would have been different. The failure to show prejudice prohibits Bibbs
from prevailing on his ineffective assistance of counsel claim. The second
assignment of error is overruled.
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{¶15} Having found no prejudicial error in the particulars assigned and
argued, the judgment of the Court of Common Pleas of Hancock County is affirmed.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/hls
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