State v. Proffitt

[Cite as State v. Proffitt, 2017-Ohio-1236.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
CASE NOS. CA2016-07-134
Plaintiff-Appellee, : CA2016-07-135
: OPINION
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:
WENDELL PROFFITT, JR., :
Defendant-Appellant. :
CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT
Case Nos. 16CRB01150 and 16CRB01151
Neal D. Schuett, city of Hamilton prosecutor, 345 High Street, 2nd Floor, Hamilton, Ohio
45011, for plaintiff-appellee
Christopher P. Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for defendant-
appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Wendell Proffitt, appeals his convictions in the Hamilton
Municipal Court for domestic violence.
{¶ 2} Appellant was charged with one count of domestic violence in violation of R.C.
2919.25(A), a misdemeanor of the first degree, arising from an incident on January 11, 2016,
and a separate count of domestic violence in violation of R.C. 2919.25(C), a misdemeanor of
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the fourth degree, arising from an incident on March 26, 2016. The alleged victim of the
offenses was Jennifer Morris ("Jennifer"), appellant's wife, with whom he was residing at the
time of the incidents. Appellant entered pleas of not guilty and the charges proceeded to a
bench trial. At trial, the state called Jennifer and Hamilton Police Officer Danielle Sorber as
witnesses. The state offered into evidence two separate statements Jennifer had written
concerning the January 11, 2016 incident and the March 26, 2016 incident. The statements
were written on Hamilton Police Department statement forms (the two statements will be
respectively referred as the January Statement and the March Statement, and collectively as
"the Statements"). Appellant testified on his own behalf.
{¶ 3} Officer Sorber testified that on January 11, 2016, she responded to a residence
on Ross Avenue in Hamilton, Ohio upon report of a fight. Upon arrival, the officer found
Jennifer and Jennifer's mother. Appellant was not present. Officer Sorber observed red
marks on the right side of Jennifer's face consistent with fingernail scratches. The officer
denied independent knowledge of how the scratches on Jennifer's face originated and
acknowledged they could have been self-inflicted. The officer observed no other visible signs
of injury or struggle upon Jennifer's person. Jennifer reported to Officer Sorber what had
occurred. During the officer's investigation, it was discovered that Jennifer was subject to an
outstanding warrant for "dog tags." Consequently, Officer Sorber arrested Jennifer and took
her to the police station for booking and then to the county jail. During the booking process,
Officer Sorber obtained the January Statement from Jennifer regarding what had transpired
between Jennifer and appellant on January 11, 2016. The January Statement stated that
appellant had accused Jennifer of cheating on him, began screaming at her, dug his
fingernails into the right side of her face, and choked her. Officer Sorber stated that the
January Statement was consistent with what Jennifer had told her about the incident at the
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scene.
{¶ 4} Jennifer testified that she and appellant were residing with their son at the Ross
Avenue home on January 11, 2016. Jennifer stated that she and appellant "did argue a little
bit" on that day, but that she did not remember if the argument became physical. Jennifer
denied any recollection of making the January Statement. Upon being shown the statement,
she acknowledged that it contained her handwriting and signature. She confirmed that the
Hamilton Police Department statement form upon which the statement was written provided
above her signature that the statement was true when it was made. However, when asked if
the January Statement was true when she made it, Jennifer replied, "I'm not sure."
Explaining, Jennifer stated that she has severe anxiety and that "my panic disorder makes
everything seem a lot worse than it is."
{¶ 5} At this juncture, the state moved the trial court to allow the January Statement
to be read into evidence pursuant to Evid.R. 803(5), the recorded recollection exception to
the hearsay rule. Defense counsel had no objection and the trial court directed Jennifer to
read the January Statement.
{¶ 6} On cross-examination, Jennifer denied any memory of what occurred on
January 11, 2016, admitted that she "over exaggerates sometimes," and twice testified that
she did not believe the January Statement reflected what happened. Jennifer acknowledged
she understood it is important to be truthful when speaking with the police and that she tried
to be truthful with them.
{¶ 7} By March 26, 2016, Jennifer, appellant, and their son had moved to a residence
on Forrest Avenue in Hamilton, Ohio. Jennifer stated that she and appellant had a verbal
altercation that day over a photograph depicting Jennifer and a friend. The photograph upset
appellant and he again accused Jennifer of cheating on him. Jennifer denied any
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recollection of appellant threatening her on that day. She recalled the police responded to
her home after being called by appellant. Jennifer believed she made a written statement
concerning her television being broken. Jennifer did not remember how the television was
broken, but believed appellant must have broken it because she did not break it herself and
only she and appellant were home at the time. Jennifer was then shown the March
Statement. She did not recognize the March Statement but acknowledged it was in her
handwriting and contained her signature, and that the Hamilton Police Department statement
form provided above her signature that the statement was true when it was made.
{¶ 8} At this juncture, the state apparently moved the trial court to allow Jennifer to
read the March Statement into evidence pursuant to Evid.R. 803(5). Once again, defense
counsel made no objection and the trial court directed Jennifer to read the March Statement.
In the March Statement, Jennifer wrote that appellant had threatened to kill her when she
asked him to leave the home after appellant had thrown the television into the wall.
{¶ 9} On cross-examination, Jennifer denied recollection of writing the March
Statement. Jennifer stated that appellant could have threatened to kill her, but that she had
no specific recollection of such a threat.
{¶ 10} The state rested, and without objection, the Statements were admitted into
evidence. The trial court subsequently denied appellant's Crim.R. 29 motion for acquittal.
{¶ 11} Appellant testified and admitted that he and Jennifer have a tumultuous
marriage, involving frequent arguments and sometimes pushing and punching each other.
However, appellant specifically denied scratching and choking Jennifer on January 11, 2016,
and threatening to kill her on March 26, 2016. Appellant stated the only threat he made on
March 26, 2016, was to end the marriage if Jennifer's behavior continued. Appellant testified
he left the premises on March 26, 2016, because "it was best for me to leave until she got * *
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* to a better place." Appellant further testified he called the police on March 26, 2016, to
protect himself due to "other cases that [Jennifer] made against me."
{¶ 12} After the close of the evidence and following closing arguments by the state
and defense counsel, the trial court considered the evidence and stated,
When [Jennifer] testified here today, um – she testified about
what she said was some kind of unusual medical condition that
she has where she can't remember things and over exaggerates
things so much though she's on disability for it. * * * And I think
that she said that today because she was trying to explain why
she was lying here today and I felt like she was clearly lying
everywhere that she could here today. Um – because she's
trying not to have the defendant be convicted and she's trying to
help the defendant. In this case we heard statements that the
defendant made to the police the day that these incidents
happened and to the extent that these statements can be
verified. Well, there were marks on her face and they were
scratch marks on her face and says what she said in the
statement. The statement seemed to me the written statement
seemed to me to be truthful renditions of what happened close in
time to when they happened and based on both of these
statements I'm going to find the defendant to be Guilty on both of
these cases.1
{¶ 13} Appellant appeals his convictions, raising three assignments of error.
{¶ 14} Assignment of Error No. 1:
{¶ 15} MR. PROFFITT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO
DUE PROCESS AND FAIR TRIAL WERE VIOLATED WHEN HE RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL.
{¶ 16} Appellant argues defense counsel was ineffective at trial for failing to object to
inadmissible hearsay evidence, namely, defense counsel failed to object to Jennifer reading
the Statements into evidence and to allowing the Statements to be admitted as exhibits.
1. The trial court's comments reference "statements that the defendant made to the police the day these
incidents happened." The record does not reflect that appellant, as the defendant in the trial court, made any
statements to the police on the day of the incidents, or at any other time. We assume from the context of the trial
court's comments that the trial court misspoke and that its reference to the "defendant" was intended as a
reference to Jennifer.
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{¶ 17} To prevail on an ineffective assistance of counsel claim, appellant must show
his trial counsel's performance was deficient, and that he was prejudiced as a result. State v.
Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S. Ct. 2052 (1984). Trial counsel's performance will
not be deemed deficient unless it fell below an objective standard of reasonableness.
Strickland at 688. To show prejudice, appellant must establish that, but for his trial counsel's
errors, there is a reasonable probability that the result of his trial would have been different.
Id. at 694. The failure to satisfy either prong of the Strickland test is fatal to an ineffective
assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment. State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-
4625, ¶ 7.
{¶ 18} Before we address whether defense counsel's failure to object to the
Statements was ineffective assistance of counsel, we first consider whether the Statements
qualified as a hearsay exception for recorded recollection under Evid.R. 803(5).
{¶ 19} Evid.R. 801(C) defines "hearsay" 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." A "statement" is defined for hearsay purposes as "(1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is intended by the person as an
assertion." Evid.R. 801(A).
{¶ 20} Pursuant to the above definitions, the Statements were hearsay. The
Statements were made by Jennifer other than while testifying at trial, were assertions of what
had occurred on January 11, 2016, and March 26, 2016, and were offered by the state to
prove what occurred on those days between Jennifer and appellant. The trial court
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considered the Statements as substantive proof of what occurred on January 11, 2016, and
March 26, 2016.
{¶ 21} Hearsay is generally inadmissible, unless it falls within one of the numerous
exceptions under Evid.R. 803 and 804. As pertinent to the instant case, Evid.R. 803(5)
provides a hearsay exception for recorded recollection:
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.
{¶ 22} In order to admit a statement into evidence under Evid.R. 803(5), a party must
establish that (1) the witness has a lack of present recollection of the recorded matter, (2) the
recorded recollection was made at a time when the matter was fresh in the witness's
memory, (3) the recorded recollection was made or adopted by the witness, and (4) the
recorded recollection correctly reflects the prior knowledge of the witness. State v. Scott, 31
Ohio St. 2d 1, 6 (1972); Dayton v. Combs, 94 Ohio App. 3d 291, 300 (2d Dist.1993). If Evid.R.
803(5) is satisfied, the statement itself may be read into evidence. State v. Trotter, 8th Dist.
Cuyahoga No. 97064, 2012-Ohio-2760, ¶ 35.2
{¶ 23} Under Evid.R. 803(5), the statement must correctly reflect the knowledge the
2. Evid.R. 803(5) allows a record to be read into evidence, but specifically provides that the record itself is not to
be admitted as an exhibit unless offered by an adverse party. Thus, Evid.R. 803(5) makes clear that although
both are substantive evidence for a trial court (or a jury) to consider, the reading of statements into evidence is
separate from admitting the statements as exhibits. While a trial court properly allows a statement to be read
into evidence under Evid.R. 803(5) when the foundational requirements are met, a trial court errs in admitting the
statement as an exhibit if it was not offered by the adverse party. See State v. Kinsel, 4th Dist. Ross No. 1141,
1985 Ohio App. LEXIS 8339 (July 5, 1985) (while the accident report could properly be read into evidence under
Evid.R. 803[5], the trial court erred in admitting the accident report as an exhibit where the accident report was
not offered by the defendant); State v. Bibbs, 3d Dist. Hancock No. 5-16-11, 2016-Ohio-8396 (the trial court
erred in allowing the reading of the statement and in admitting it as an exhibit). In the case at bar, defense
counsel specifically acquiesced to the admission of the Statements into evidence as state exhibits.
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witness had at the time it was recorded. Id. "[Evid.R. 803(5)] makes explicit the requirement
that the foundation for the introduction of the statement under this exception must be made
by testimony of the witness himself." Evid.R. 803(5), Staff Notes; State v. Ross, 6th Dist.
Huron No. H-11-022, 2013-Ohio-1595, ¶ 17 ("The foundation for the admission of such a
statement under Evid.R. 803[5] must be made through the testimony of the witness himself").
Thus, the proponent of the statement must produce affirmative proof, through the testimony
of the witness, that the statement correctly reflects the witness's prior knowledge. The state
failed in this regard.
{¶ 24} Jennifer testified she was "not sure" if the January Statement accurately
reflected what happened on January 11, 2016, because her "panic disorder makes
everything seem a lot worse than it is." Jennifer further testified she thought she had made a
statement concerning the March 26, 2016 incident, but did not recognize the March
Statement when it was presented to her at trial.
{¶ 25} The state established through Jennifer's testimony that the Statements were
made in her handwriting and that the Hamilton Police Department forms upon which she had
written the Statements provided above the signature line, "I have read the statement and it is
true and correct."
{¶ 26} However, Jennifer's mere acknowledgment that the forms upon which the
Statements were written contain the aforementioned preprinted language does not satisfy the
requirement under Evid.R. 803(5) that the "testimony of the witness" establish that the
statement correctly reflects the witness's prior knowledge. Jennifer never testified that the
Statements accurately reflected her prior knowledge of the incidents, nor may her testimony
be so construed. Likewise, Jennifer's acknowledgment that the Statements were made in
her handwriting does not suggest that they correctly reflect her prior knowledge of the
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incidents.
{¶ 27} The trial court did not believe Jennifer's testimony concerning the Statements.
That is the trial court's prerogative as the trier of fact and we should defer to this
determination. However, Jennifer's unbelievable testimony that the Statements did not, or
may not, correctly reflect her prior knowledge of the incidents, is not proof that the
Statements correctly reflected her prior knowledge. Rather, Jennifer's incredible testimony
leaves the issue unresolved. This does not satisfy the affirmative foundational requirement
under Evid.R. 803(5) that the testimony of the witness show that the record correctly reflects
the witness's prior knowledge.
{¶ 28} Furthermore, Evid.R. 803(5) is not satisfied by Jennifer's expression of a
general recognition of the importance of being truthful with the police and that she made an
effort to do so.3 Evid.R. 803(5) is clear that the witness's testimony must affirmatively
establish that the statement correctly reflects prior knowledge of the witness. Evidence
extrinsic to the witness's testimony, even if it tends to establish the trustworthiness of the
statement, is incompetent for purposes of determining admissibility under Evid.R. 803(5).4
{¶ 29} Based upon the foregoing, we find that the Statements were not within the
ambit of the Evid.R. 803(5) hearsay exception. Had defense counsel objected to Jennifer
3. This testimony was elicited during Jennifer's cross-examination and was subsequent to the trial court's ruling
that Jennifer read the Statements into evidence pursuant to Evid.R. 803(5). Thus, this testimony could not have
been considered by the trial court in ruling the Statements admissible.
4. The dissent apparently construes our opinion as finding the trial court relied upon extrinsic evidence tending
to show the Statements were trustworthy in admitting them. We make no such finding and note that none of the
evidence extrinsic to Jennifer's testimony tending to show the Statements were trustworthy was presented until
after the Statements had been admitted. Therefore, the trial court could not have relied upon such evidence in
admitting the Statements. We acknowledge that there is evidence, other than Jennifer's testimony, tending to
show that the Statements are trustworthy. However, we emphasize that admissibility under Evid.R. 803(5) is a
threshold determination restricting establishment of certain foundational requirements to the declarant's
testimony. Once a statement is properly admitted pursuant to Evid.R. 803(5), then, and only then, may all
evidence reflecting upon the trustworthiness of the statement be considered in determining the weight to be
given to the statement. This reference in the body of our opinion is intended only to address any suggestion in
the dissent that hearsay is admissible under Evid.R. 803(5) upon a general showing that the hearsay is
trustworthy.
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reading the Statements into evidence and to allowing the Statements to be admitted as
exhibits, the objection ought to have been sustained and the Statements excluded.
{¶ 30} We now consider whether defense counsel's failure to object to the admission
of the Statements is ineffective assistance of counsel.
{¶ 31} As set forth above, the Strickland test consists of two prongs; a performance
prong (did counsel's performance fall below an objective standard of reasonableness), and a
prejudice prong (is there a reasonable probability that the result of his trial would have been
different, but for counsel's errors). Both prongs must be established for counsel to be found
to have provided ineffective assistance. State v. Myers, 12th Dist. Fayette No. CA2005-12-
035, 2007-Ohio-915, ¶ 33.
{¶ 32} The fact that the admission of the Statements was objectionable does not, in
and of itself, establish that counsel's performance was deficient. "[A]ttorneys are given a
'heavy measure of deference' in their decision making and there exists a 'strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance.'"
Id.; Strickland, 466 U.S. at 689. Refraining from objecting to otherwise objectionable
evidence may, depending upon the circumstances, be sound trial strategy.
{¶ 33} It is apparent that defense counsel's trial strategy was to attack the veracity of
the Statements rather than oppose their admissibility. In opening statement, defense
counsel said, "I believe the statements of the witness or (sic) likely not be corroborated by the
physical evidence that was observed by the officers." In a case such as this, where the
state's case is dependent upon the Statements, it would be a sound trial strategy to attack
the veracity of the Statements, if they are admitted. However, such a trial strategy does not
exclude a primary trial strategy of opposing admission of this damaging evidence. Opposing
admission of the Statements sacrifices nothing in terms of a trial strategy to attack the
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veracity of the Statements. If defense counsel is unsuccessful in resisting admission of the
Statements, he may still attack their veracity, consistent with having opposed their
admissibility in the first instance. However, a trial strategy to accede to the admission of the
Statements only for the opportunity to establish that they are not true, begs the question of
why defense counsel would not initially oppose their admission. Certainly, casting Jennifer
as generally untruthful was unnecessary, as it was the Statements and not her trial testimony
that incriminated appellant.
{¶ 34} No reasonable trial strategy is apparent in defense counsel's failure to object to
the admission of the Statements, upon which the state's case depended.5 Defense counsel's
failure to object to the admission of the Statements falls below an objective standard of
reasonableness. Appellant has therefore satisfied the Strickland performance prong.
{¶ 35} Consideration of the Strickland prejudice prong requires an inquiry as to
whether there is a reasonable probability that the result of appellant's trial would have been
different, but for counsel's error. Clearly, without the Statements, the state would have been
unable to establish what occurred between appellant and Jennifer on January 11, 2016, and
March 26, 2016. While Officer Sorber observed scratches on Jennifer's face on January 11,
2016, those observations lack context absent the January Statement. The state's case was
dependent upon the Statements. Indeed, the trial court's announcement of its verdict
unequivocally reveals that the guilty findings were based upon the Statements: "[T]he written
5. This is particularly true in a bench trial, such as we have in this case. In contrast, a jury trial would have
presented a different situation. In a jury trial, defense strategy might suggest avoiding the risk of offending the
jury by objecting to the admission of relevant, yet otherwise inadmissible, evidence and then attacking the
reliability of the Statements during Jennifer's cross-examination. However, the risk of offending the trier of fact is
not present in a bench trial, as a trial court is presumed to act properly in consideration of the evidence. State v.
Eubank, 60 Ohio St. 2d 183, 187 (1979) ("[W]e may give weight to the fact that the error occurred in a trial to the
court, rather than in a jury trial. Indeed, a judge is presumed to consider only the relevant, material and
competent evidence in arriving at a judgment, unless the contrary affirmatively appears from the record."); State
v. Browning, 12th Dist. Clermont No. CA94-04-022, 1994 WL 704903 (Dec. 19, 1994).
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statement seemed to me to be truthful renditions of what happened close in time to when
they happened and based on both of these statements I'm going to find the defendant to be
Guilty on both of these cases." Absent admission of the Statements, there is a reasonable
probability that the results of the trial would have been different and that appellant would
have been acquitted. Defense counsel's failure to object to the admission of the Statements
into evidence therefore satisfies the Strickland prejudice prong.
{¶ 36} In light of the foregoing, we find that appellant received ineffective assistance of
counsel at trial when defense counsel failed to object to the admission of the Statements into
evidence.6
{¶ 37} Appellant's first assignment of error is sustained.
{¶ 38} Assignment of Error No. 2:
{¶ 39} THE TRIAL COURT VIOLATED MR. PROFFITT'S FEDERAL AND STATE
CONSTITUTIONAL RIGHTS TO DUE PROCESS AND FAIR TRIAL WHEN IT ADMITTED
INTO EVIDENCE WRITTEN STATEMENTS CONTAINING INADMISSIBLE HEARSAY.
{¶ 40} Appellant argues the trial court erred in directing Jennifer to read the
Statements into evidence and in admitting the Statements as exhibits.
{¶ 41} We are mindful that the admissibility of evidence is within the sound discretion
6. As stated earlier, Evid.R. 803(5) allows a record to be read into evidence, but specifically provides that the
record itself cannot be admitted as an exhibit unless offered by an adverse party. "The purpose of this restriction
is to avoid elevating the declarations contained in documents above ordinary testimonial evidence." State v.
Davis, 11th Dist. Lake No. 92-L-089, 1993 Ohio App. LEXIS 5917, *18 (Dec. 10, 1993). In the case at bar, not
only did Jennifer read the Statements into evidence, but the statements themselves were admitted as exhibits at
the state's request, and not at the request of defense counsel, the adverse party. In addition, defense counsel
informed the trial court he "would not object to their admission" as exhibits. A defense counsel's failure to object
to the admission of statements as exhibits under Evid.R. 803(5) may constitute ineffective assistance of counsel,
especially in a jury trial, as admitting a record as an exhibit "results in it going to the deliberation room with the
jury and a patent danger is that it will be given undue weight by the jury." Davis at *18-19. Nonetheless, we will
not address whether appellant received ineffective assistance of counsel when defense counsel failed to object
to the admission of the Statements as exhibits. Nor will we address the admission of the Statements as exhibits
separate and apart from whether the Statements come within the Evid.R. 803(5) recorded recollection hearsay
exception. Any additional prejudice from the admission of the Statements as exhibits is marginal and
insubstantial, particularly in a bench trial such as here.
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of the trial court and that the trial court is entitled to our deference in making decisions upon
the admissibility of evidence. We further recognize that decisions on the admissibility of
evidence should not be reversed unless there is an abuse of discretion. However, the focus
of our opinion is defense counsel's failure to invoke, by objection, the trial court's discretion to
determine if the Statements were admissible pursuant to Evid.R. 803(5), to resist the
admission of the evidence, and to preserve for appeal an abuse of discretion in the
admission of inadmissible evidence.
{¶ 42} It is not the trial court's responsibility to interject itself into defense trial strategy.
Trial strategy may be promoted by the admission of otherwise inadmissible evidence.
Jennifer was the first witness to testify at trial and the Statements were admitted during the
state's case-in-chief, direct examination of Jennifer and before defense counsel had cross-
examined her. Defense counsel declined the trial court's invitation to object to the January
Statement and interjected no objection to the March Statement. At this early stage of the
trial, the trial court could have no inkling of what the evidence would show and what the
defense strategy may be. Certainly, the trial court did not abuse its discretion by admitting
the Statements in that context. To have done otherwise would risk substituting the trial
court's conception of sound trial strategy for defense counsel's.
{¶ 43} Because defense counsel did not object to the admissibility of the Statements,
and the trial court did not discuss Evid.R. 803(5) in admitting them, we cannot definitively
know if the trial court considered the foundational requirements of Evid.R. 803(5) in admitting
the Statements, or whether the Statements were admitted merely because defense counsel
did not oppose their admission.7 The record suggests the latter. When the state moved for
7. At the conclusion of the evidence, the trial court noted that Officer Sorber's observations that Jennifer had
scratches on her face corroborated the Statements. The court then went on to state that the Statements were
"truthful renditions of what happened close in time to when they happened." However, these observations and
statements by the trial court were not made in conjunction with the admission of the Statements, but rather when
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the admission of the January Statement under Evid.R. 803(5), the trial court inquired of
defense counsel, "Well, * * * what do you think about that?" When defense counsel indicated
he had no objection to the admission of the January Statement, the trial court stated, "You
don't object? Okay. Why don't you read the statement for us?"
{¶ 44} The reality is, trial courts often permit the admission of inadmissible evidence
when there is no objection. In the usual case, this is not an abuse of discretion. In such
instances, the error, if any, is not in the trial court's admission of the evidence, but in
counsel's failure to resist its admission and preserve for appeal any abuse of discretion in the
admission of the inadmissible evidence.
{¶ 45} As set forth above, defense counsel specifically stated he had no objection to
Jennifer reading the January Statement into evidence, even after being invited to do so by
the trial court, and made no objection when the state moved for Jennifer to read the March
Statement into evidence. Defense counsel also did not object to the admission of the
Statements as exhibits. Evid.R. 103(A)(1) requires a party to timely object and state the
specific ground for the objection. We have discussed above why we believe this failure
constitutes ineffective assistance of counsel. Because defense counsel failed to object to the
reading of the Statements and to their admission as exhibits, appellant's argument is waived
unless the admission of the Statements amounted to plain error. See State v. Blake, 12th
Dist. Butler No. CA2011-07-130, 2012-Ohio-3124. However, appellant does not claim plain
error on appeal and we will not address the issue sua sponte.
{¶ 46} Appellant's second assignment of error is accordingly overruled.
the trial court announced its verdict and long after the Statements had been admitted during Jennifer's direct
examination by the state. It is apparent that the trial court's comments were related to its weighing of the
evidence rather than its admissibility as the court relied upon Officer Sorber's testimony which was not offered
until after the Statements had been admitted.
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{¶ 47} Assignment of Error No. 3:
{¶ 48} MR. PROFFITT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶ 49} Appellant argues his domestic violence convictions are against the manifest
weight of the evidence. However, this assignment of error is moot given our holding under
the first assignment of error that defense counsel was ineffective at trial.
{¶ 50} The judgment of the trial court finding appellant guilty of two counts of domestic
violence in violation of R.C. 2919.25(A) and 2919.25(C), respectively, is reversed and the
matter is remanded to the trial court for further proceedings.
HENDRICKSON, P.J., concurs.
PIPER, J., dissents.
PIPER, J., dissenting.
{¶ 51} In determining the trial court relied upon extrinsic evidence, the majority
misapplies the facts to the foundation requirements for admission of evidence pursuant to
Evid.R. 803(5). The majority opinion finds that if a victim-witness testifies doubting whether
or not her previous statements reflect what happened, then her other testimony cannot be
used to establish the use of Evid.R. 803(5). The question becomes whether or not there was
sufficient evidence for the trial court to consider Jennifer's past statements as true when she
gave them. The record is clear there was testimony upon which the trial court reasonably
relied in finding her past statements truthful when she gave them.
{¶ 52} The majority suggests an appellate review best determines which portions of
Jennifer's testimony should be relied upon in determining the trustworthiness of her
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previously recorded statements.8 It is the trial court that rightly assesses the witness'
demeanor and believability in determining whether or not past statements have sufficient
trustworthiness. In doing so, the trial court determined that Evid.R. 803(5) was applicable.
Since wide latitude is given to the trial court in deciding the appropriateness of admitting
evidence, I respectfully dissent from the majority's opinion, which to me, substitutes its
judgment for that of the trial court.
Sufficient Foundation Existed
{¶ 53} In considering the trial court's observations and the way the evidence
developed, the trial court did not abuse its discretion in finding there was sufficient indicia of
trustworthiness to admit the victim-witness' prior statements.
{¶ 54} The staff notes specific to Evid.R. 803(5) provide,
The exception gathers its circumstantial guarantee of
trustworthiness from the fact that the person having made the
statement is on the witness stand subject to oath, cross-
examination and demeanor evaluation. (1) If the statement was
reduced to writing at or near the time of the event and (2) the
witness can testify that the writing accurately describes the event
that he observed first hand and (3) that it does not now refresh
the independent recollection of the witness, it may be admissible
as an exception to the hearsay rule.
(Emphasis added, numbers added.)
{¶ 55} In the instant case, the victim-witness testified (1) her statements were reduced
to writing at or near the time of the event by her going to the police department and
handwriting her statements, (2) all indications are that when she wrote the statements, she
intended them to be truthful and, (3) that even after reading the statements, she does not
remember what happened. Her testimony was in accordance with Evid.R. 803(5), and
8. The majority also weighs the different defense strategies and prioritizes which defense strategies are
"primary" to other strategies. As later discussed, the first prong of Strickland does not permit such a weighing
process.
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importantly, she was subject to the trial court's "demeanor evaluation." Moreover, none of
this testimony required the trial court to rely upon extrinsic evidence.
{¶ 56} The majority emphasizes the victim-witness' uncertainty, however, it is the trial
court that is in the best position to judge the victim-witness' credibility regarding her
testimony. City of Hamilton v. Rose, 12th Dist. Butler No. CA2000-07-146, 2001 WL 432732,
*3. The majority's judgment is severely hampered by not having the opportunity to observe
the victim-witness and evaluate her demeanor and delivery of testimony.
{¶ 57} Case law cited by the majority would agree with the analysis herein:
Where the witness cannot recall the preparation of the record
and can testify only that he would not have signed or prepared
the memorandum had he not believed it to be a true and
accurate statement of the event in question[,] * * * [m]ost
commentators advocate admitting the statement, despite the fact
that the foundation is nothing more than a general assertion of
honesty which sheds little light on accuracy.
(Emphasis added). City of Dayton v. Combs, 94 Ohio App. 3d 291, 301 (2d Dist.1993), citing
1 Weissenberger, Ohio Evidence, Section 803.60, at 59 (1993).
{¶ 58} Combs presented facts very similar to those before us. In Combs, the witness
acknowledged his signature on the statement and, if the statement says something, it is
"probably" true, and that his statement was "to the best of his ability." The appellate court
said that "albeit not a perfect foundation," the testimony contained sufficient indicia of the
statement's trustworthiness to meet Evid.R. 803(5). The trial court sub judice reasonably
determined that the foundation presented had an indicia of trustworthiness not dissimilar to
that in Combs, and other cases as well.
{¶ 59} There are many cases where the victim acknowledges his or her signature, thus
indicating a truthful statement to the police. See State v. Fields, 8th Dist. Cuyahoga No.
88916, 2007-Ohio-5060, ¶ 20 (the victim signed a statement after her alleged assault and
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admitted signing the written statement and that her signature acknowledged it to be truthful
and accurate). Here, the victim acknowledged, through her in-court testimony, the
statements themselves reflected they were true when she wrote them. In fact, the majority
refers to this acknowledgement in its statement of facts when it stated, "Jennifer
acknowledged she understood it is important to be truthful when speaking with the police and
that she tried to be truthful with them."
{¶ 60} Although in vague and reluctant terms, the victim-witness herein testified to the
veracity of the statements she previously gave the police. When asked, prior to the
statement being read into evidence, whether she signed the statement, she testified that it
was her signature on the statement, and that the statements indicated it was true when
made. This second statement was also in her handwriting, and she testified it contained her
signature, which she knew reflected her statement was true when she made it.
{¶ 61} In supporting a reversal of this case, the majority cites State v. Ross, 6th Dist.
Huron No. H-11-022, 2013-Ohio-1595. Similar to our current situation, Ross argued on
appeal that it was plain error for the witness' video interview to be admitted. The Sixth
District disagreed, finding that, "an adequate foundation was laid for the use of [the] video
pursuant to Evid.R. 803(5)." Id. at ¶ 19. The foundation in Ross is extremely similar to the
foundation presented in our current case.
In Ross: Present case:
i. At the time of her testimony, the victim-witness i. At the time of her testimony, the victim-witness
could not remember everything that had said she did not remember the events that
occurred; occurred;
ii. While testifying, the victim-witness was not sure ii. While testifying, the victim-witness indicated that
of what she told the police back when she was she was not sure as to what she told the police
interviewed; in her statements;
iii. The victim-witness acknowledged in her iii. The victim-witness acknowledged handwriting
testimony that she gave a recorded video the statements and that the signatures on the
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statement to the police; statements were hers as well;
iv. The video interview occurred close in time to iv. She testified that the statements she gave to the
when the event occurred; police were close in time to the events when
they occurred;
v. She believed she had been truthful in her v. When she gave her statements to the police,
interview at the time it was made. she knew "it is important to tell the truth;"
she thought she told the truth when she gave her
statements; and, that her statements reflect they
were truthful when written.
{¶ 62} Where the foundation sub judice was equivalent to the foundation found
acceptable in Fields, Combs and Ross, the trial court herein was not unreasonable, arbitrary,
or unconscionable in its ruling. Equally important to note, this comparison of testimony does
not rely upon extrinsic evidence, as the majority suggests.9
{¶ 63} The trial court was the only one in a position to assess and evaluate demeanor
in determining the credibility of the victim-witness' testimony. The trial court specifically found
the victim-witness' in-court-testimony lacked credibility. The court went so far as to express it
was obviously apparent the victim-witness was lying in an effort to help her husband in his
defense. Additionally, the trial court specifically noted that the victim-witness' prior
statements were truthful at the time they were made and were "truthful renditions of what
happened close in time to when they happened." We should not second guess the trial court
on these findings. Evid.R. 803(5) is rightfully applied when preventing a witness from
feigning a lack of memory to control the outcome of a defendant's accountability for his
criminal conduct. The trial court found in this instance, the victim-witness' previous
statements were truthful versions of the previous events and that her in court testimony was
untruthful, designed to aid her husband.
9. The majority suggests the trial court can never be assisted by extrinsic evidence in assessing the
trustworthiness of a potential Evid.R. 803(5) hearsay exception. However, the parties did not litigate such before
us, as the issue did not arise.
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{¶ 64} Time and again, victims of domestic violence are known to frequently become
vague or even recant statements in order to protect the abuser. See State v. Plott, 3d Dist.
Seneca Nos. 13-15-39 and 13-15-40, 2017-Ohio-38. The cycle of domestic violence is one
of control, anger, abuse, and forgiveness, then the cycle repeats itself. Such common
knowledge is not outside the purview of trial courts, given the frequency with which domestic
violence cases arise. Thus, the issues of evidentiary admissibility, particularly when dealing
with hearsay exceptions like Evid.R. 803(5), are best left for the trial courts in assessing the
witness' demeanor towards evaluating the indicia of trustworthiness. Courts are aware that
victims of domestic violence are often under psychological pressure to protect their abusers,
often sitting just feet away while the victim testifies.
{¶ 65} While the foundation herein may not be perfect, and while the majority may be
"less persuaded by the trial court's reasoning process than by the countervailing arguments"
such does not support finding the trial court abused its discretion. Morris, 2012-Ohio-2407 at
¶ 14.10 Therefore, even assuming defense counsel had objected, Proffitt's first assignment of
error must be overruled, as the trial court had sound reason in allowing the victim-witness to
read her statements into evidence pursuant to Evid.R. 803(5).
Strickland – 1st Prong
{¶ 66} To establish constitutionally-ineffective assistance of counsel, it must be clearly
demonstrated that counsel's performance was deficient such that the defendant was
deprived of a fair trial. "The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms." State v. Carroll, 4th Dist. Ross No. 15
10. The victim-witness wrote in one of her statements, "please help me." If we too narrowly construe the exact
words necessary for an Evid.R. 803(5) foundation, and shackle a trial court's discretion in admitting past
recollections recorded, the state will be severely hampered in aiding domestic violence victims psychologically
caught-up in the cycle of violence.
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CA 3506, 2016-Ohio-7218, ¶ 24. It is not the moment of a single opportunity to object, but
rather the overall performance of counsel that sheds light on defense counsel's strategy.
{¶ 67} When a 9-1-1 fight call is made to the police; the scene responded to shows
signs of a thrown, busted TV and fresh holes in the wall; and the victim has obvious abuse
injuries to her face which are observed by the police; and there is a history of past physical
altercations in the relationship, defense counsel's trial strategy becomes difficult to formulate,
and even impossible, if the victim testifies truthfully to what occurred.
{¶ 68} Yet consider, by the time trial rolls around, the victim-witness becomes reluctant
to assist in the prosecution of her husband and father of her child. She now is willing to
testify in a way that undermines or negates the previous statements she gave to police. Not
willing to say she lied in her statements, making her subject to a falsification charge, the
victim is willing to aid her abuser by indicating she does not remember what she said to the
police. Now the defense strategy begins to take form and develop. With the victim-witness'
subtle yet furtive cooperation, defense counsel obtains a strategy to discredit the victim-
witness' prior statements.11
{¶ 69} Therefore, pursuant to the defense strategy, the admission into evidence of the
victim-witness' prior recorded statements became irrelevant, because the strategy was to
discredit the witness and her previous statements. The victim-witness offers that she cannot
remember what happened, that she has a panic/anxiety disorder, her brain just shuts down,
she was under the influence of medication, and she frequently "exaggerates." The trial court,
however, saw through defense counsel's strategy.12
11. The victim-witness volunteered, "I'm not trying to incriminate myself," yet she was obviously concerned about
the thin line that separated her from that possibility.
12. The trial court, in assessing the trustworthiness of the victim-witness' prior statements, used her current
testimony and determined she was not telling the truth in court about certain aspects of her testimony in an effort
to aid her husband's defense.
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{¶ 70} Defense counsel did not object to the victim-witness reading her past
statements into evidence because the strategy all along was to make the statements
unbelievable. Although the court specifically extended the opportunity for defense counsel to
object, he expressly waived such opportunity because (1) the foundation had been properly
laid by the state, (2) if he objected based on foundation, defense counsel knew the state
would cure any deficiency with further questioning, and (3) defense counsel's strategy all
along was to discredit the victim-witness including her previous statements.13
{¶ 71} When the victim-witness skipped over a few sentences reading her prior
statement, defense counsel objected because he wanted every line to be read. In that
exchange, the court informed defense counsel that only defense counsel could request
admission of the physical statements. Evid.R. 803(5). The court stated, "if the defendant
offers [the statement] into evidence, then the statement[,] the written statement comes into
evidence and then I would have that in front of me." Defense counsel responded "uh huh"
presumably in acquiescence since defense counsel did not want certain parts left out.
Additionally, at the end of the state's case when discussing the exhibits, it was apparent the
prosecutor believed the statements had already been admitted by the defense and defense
counsel responded, "That's fine. We would not object to their admission."
{¶ 72} Defense counsel knew that only he could have the statements admitted. It is
clear he did not consider the statements anymore harmful than the testimony itself. Since his
13. The majority seems to dismiss the subtle difference between counsel who fails to object because they do not
know to object or are otherwise asleep at the wheel and counsel, as here, who consciously decided not to object.
See State v. Bradley, 42 Ohio St. 3d 136, 140 (1989) (defense counsel consciously refused to object). Here,
counsel decided not to object, just as he decided admitting the physical statements as exhibits did not hurt his
strategy. It was not within defense counsel's strategy to tip off the state to better fortify the trustworthiness of the
victim-witness' prior statements, and as footnote 2 of the majority opinion points out that the more the victim-
witness was questioned, the more the foundation for Evid.R. 803(5) was developed. Thus, not objecting to
foundation was a significant tactic in his strategy, as defense counsel did not want to have the state develop any
additional testimony going to the truthfulness of her past statements.
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strategy was to convince the court they did not matter (were not believable), defense counsel
saw no harm in their being admitted. Defense counsel's plan was to use cross-examination
to make the victim-witness look like an unstable, exaggerating, mentally defective, under-the-
influence individual whose past statements could not be believed ‒ not an unreasonable
strategy.
{¶ 73} Merely because the trial tactics defense counsel employed were ultimately
unsuccessful, it does not mean that counsel's performance was deficient. Debatable trial
tactics and strategies do not constitute deficient performance. State v. Payton, 124 Ohio
App.3d 552 (12th Dist.1997). Judicial scrutiny of counsel's performance must be highly
deferential, and every effort must be made to eliminate the distorting effects of hindsight.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), paragraph two of the
syllabus.
{¶ 74} Our precedent has consistently abided by the "strong presumption" and "wide
range" of professional assistance that can be rendered before being considered deficient.
State v. Revels, 12th Dist. Butler Nos. CA2001-09-223 and CA2001-09-230, 2002-Ohio-
4231, ¶ 25 (failing to present a false identification defense and choosing not to cross-
examine the eyewitness was not deemed to be deficient performance); State v. Graham,
12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814 (failing to proffer an exculpatory
statement, to make objections, to cross-examine the state's expert, and to move the court
based on insufficiency of evidence was not deemed to be deficient performance); and State
v. Casey, 12th Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013, 2017-Ohio-790
(failing to object "no fewer than thirty three" times to hearsay and failing to object "no fewer
than twenty one" times to unqualified expert testimony, was not deemed to be deficient
performance).
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{¶ 75} The majority finds "no reasonable trial strategy is apparent" when defense
counsel declined to object to the victim-witness' prior statements being read into evidence.
However, using cross-examination to discredit a witness' prior statements is a reasonable
strategy particularly in a domestic violence case resting upon the testimony of an abused and
reluctant wife and mother.
{¶ 76} Until today, no Ohio precedent holds the absence of a "primary strategy," rather
than defense counsel's implemented strategy, operates to create constitutionally-ineffective
assistance of counsel. To explain its reasoning, the majority suggests that Strickland
supports a reversal for ineffective assistance if the appellate court can picture the existence
of a "primary" strategy which could have been pursued before, and in spite of, trial counsel's
strategy. However, the law is clear and long-established that appellate courts must not
engage in a weighing of strategies when addressing whether a defendant was denied
effective assistance of counsel. State v. Phillips, 74 Ohio St. 3d 72 (1995).
{¶ 77} For example, the Second District Court of Appeals recently addressed a similar
argument that an individual is denied effective assistance of counsel because a better trial
strategy existed. State v. Hartman, 2d Dist. Montgomery No. 26609, 2016-Ohio-2883.
Hartman was accused of rape, and at trial, the victim testified to the events of non-
consensual sex. However, on direct, the victim did not go into detail about force being used.
During cross-examination, defense counsel asked the victim specific questions about any
force Hartman had used to challenge her credibility by bringing up the victim's inconsistent
statements to investigators about Hartman's use of force. The questions on cross-
examination, along with the victim's answers to those questions, were very damaging
because they allowed the jury to hear details about the force Hartman used during his
crimes.
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{¶ 78} Hartman claimed on appeal that his trial counsel was ineffective for employing
such a strategy and should have avoided any questions about force on cross-examination.
The Hartman court disagreed, and refused to engage in weighing which strategy was better.
Hartman's counsel could have used the lack of force as a defense strategy, yet, the appellate
court determined:
In a case that rests entirely on the credibility of the witnesses, a
strategic choice to conduct cross-examination of the victim on
factual issues relating to elements of the offense is not
automatically ineffective assistance of counsel. In the case
before us, it was a valid defense strategy to attack the credibility
of the victim through the use of prior inconsistent statements, a
well-established trial strategy.
Id. at ¶ 49.
{¶ 79} Discrediting a victim-witness' prior statements is certainly a reasonable strategy,
not professional performance in violation of the Constitution. Id. at ¶ 46 ("Hindsight is not
permitted to distort the assessment of what was reasonable in light of counsel's perspective
at the time, and a debatable decision concerning trial strategy cannot form the basis of a
finding of ineffective assistance of counsel"); State v. Bajaj, 7th Dist. Columbiana No. 03 C0
16, 2005-Ohio-2931 (reasonable defense strategy to discredit victim); and State v. Reid, 8th
Dist. Cuyahoga No. 83206, 2004-Ohio-2018 (defense counsel's failure to object to evidence
of defendant's previous sexual assault of victim was reasonable trial strategy where counsel
intended to discredit the victim).
{¶ 80} When the majority focuses narrowly upon the single moment of a potential
objection, it precludes itself the broader opportunity to perceive the totality of defense
counsel's strategy during the trial. It is the overall record that discloses trial counsel's
strategy, and not objecting was merely a part of that strategy. Simply because there might
be a better way, in hindsight, to defend Proffitt does not mean that trial counsel's
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performance was deficient. Attempting to discredit the witness' prior statements with the use
of her current in-court testimony was not unreasonable in light of the circumstances. For the
reasons discussed, even if the foundation was insufficient, which I do not agree, Proffitt
cannot clearly demonstrate an ineffective assistance of counsel claim because he did not
establish "deficient performance" pursuant to the first strong in Strickland and a plethora of
other case law.14 A debatable decision concerning trial strategy cannot form the basis for
finding defective performance.
Strickland – 2nd Prong
{¶ 81} The prejudice prong of Strickland basically requires that the defendant
demonstrate that "but for counsel's errors, the result of the proceedings would have been
different." State v. Adams, 4th Dist. Lawrence No. 15CA2, 2016-Ohio-7772, ¶ 91. Generally,
courts decline to speculate or assume the existence of prejudice. Id. To succeed on this
prong, the defendant must "affirmatively establish" that the claimed prejudice had a
detrimental effect on the outcome. Id.
{¶ 82} When the state attempted to use the prior recorded statements by having them
read into evidence, defense counsel had only two directions he might travel. He could take
an up-the-hill fight to keep the evidence out, or he could continue coasting downhill with his
original strategy of discrediting the prior statements through cross-examination. If counsel
chose the former, we know with certainty the state would have attempted to rehabilitate or
cure any suggested deficiency in the establishment of a foundation. Defense counsel chose
to stick with his strategy, rather than accepting the boulder of Sisyphus. To assume the state
would have been ultimately unsuccessful and defense counsel could have kept out evidence
14. Just as the majority determines in its footnote 4, I too, do not address in detail counsel's acquiescence to the
statements coming into evidence as exhibits because their significance as exhibits was "marginal and
insubstantial."
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of both statements is speculative, at best. Thus, we should decline the opportunity to
assume prejudice where none has been proven.
{¶ 83} An objection would only have served to focus the state on efforts to emphasize
the trustworthiness of the past statements. It is unreasonable to assume the state would
immediately fold its tent simply because of an objection. Further questioning may well have
developed the prior statements as having indicia of trustworthiness or that the victim-witness
was aligned with her husband and his defense, thus permitting the state's use of leading
questions. Evid.R. 611(C).
{¶ 84} In speculating on how the trial might have proceeded had Proffitt's counsel
objected, the majority cannot say with any level of certainty the outcome would have been
different. If a witness claims a lack of memory as to a prior statement he or she gave, such
can be treated as a denial, and the use of extrinsic evidence may be permitted. State v.
Pierce, 2d Dist. Montgomery No. 24323, 2011-Ohio-4873, ¶ 2. Other evidentiary avenues
permit the use of extrinsic evidence depending on how the facts develop. See Evid.R.
616(C). How the evidence might have developed if an objection had occurred, we will never
know.
{¶ 85} The defendant clearly has the burden to prove his claim of prejudice. State v.
Bradley, 42 Ohio St. 3d 136, 143 (1989). However, we need not speculate as to what turn the
trial testimony may have taken if there had been an objection because the defendant's failure
on the first prong of Strickland makes it unnecessary to engage in an analysis of the
prejudicial impact of any alleged errors. Id. Simply stated, Proffitt received assistance of
counsel, and his Sixth Amendment right to counsel was not violated.
CONCLUSION
{¶ 86} Based on the record, the trial court properly admitted the victim-witness'
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testimony, and did so after finding that the state had laid a sufficient foundation. Evid.R.
803(5) evidence is proper when the witness has insufficient memory to accurately testify to
crucial information, the witness' past recollection recorded was made when the matter was
fresh in the witness' memory, and the past recollection recorded correctly reflects the witness'
knowledge at the time it was recorded, which reflected "a general assertion of honesty." The
trial court's decision in this matter was not unreasonable, arbitrary, or unconscionable.
{¶ 87} Furthermore, and even if the evidence was inadmissible, Proffitt cannot
demonstrate that he received ineffective assistance of counsel where counsel's lack of
objection to the statements was trial strategy. The fact it was not the "primary strategy" that
the majority would have preferred to see is of no consequence. Our review standard is highly
deferential and we must avoid temptation to focus on the outcome or employ hindsight. The
trial court's ability to see through the credibility issues raised by defense counsel's trial
strategy does not render such assistance ineffective. As such, I respectfully dissent from the
majority's decision to reverse Proffitt's convictions.
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