State v. Delong

[Cite as State v. Delong, 2022-Ohio-4233.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-22-09
v.
ROGER DELONG, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Municipal Court
Trial Court No. CRB 2102139
Judgment Affirmed
Date of Decision: November 28, 2022
APPEARANCES:
Edwin M. Bibler for Appellant
Caleb Carson, III for Appellee
Case No. 9-22-09
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Roger Delong (“Delong”), appeals the February
2, 2022 judgment entry of the Marion County Municipal Court after Delong was
found guilty (by a jury) of domestic violence. For the reasons that follow, we affirm.
{¶2} This case stems from a physical altercation between Delong and
Kimberly Baker (“Baker”), which resulted in Baker being injured. On October 18,
2021, a complaint was filed in the trial court charging Delong with domestic
violence in violation of R.C. 2919.25(A), a first-degree misdemeanor. Delong
appeared for arraignment on the same day and entered a not-guilty plea. Law
enforcement became involved after Baker requested assistance by virtue of a 9-1-1
emergency call.
{¶3} On February 2, 2022, Delong’s jury trial commenced wherein he was
found guilty of the domestic-violence charge. Then, the trial court held a sentencing
hearing and sentenced Delong to serve 180-days in jail.
{¶4} Delong filed a timely notice of appeal and raises five assignments of
error. We will address his arguments in the order that they were presented.
Assignment of Error I
The trial court erred when it allowed statements of the alleged
victim, who was not present at trial, in violation of the
Confrontation Clause of the 6th and 14th Amendments to the
United State Constitution.
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{¶5} In his first assignment of error, Delong asserts that he was denied the
right to confront his accuser in violation of the Sixth Amendment to the United
States Constitution and Section 10, Article 1 of the Ohio Constitution. Specifically,
Delong asserts that the trial court erred by permitting the State to present Baker’s
out-of-court statement (her 9-1-1 call to police) because she was not present at trial.
Standard of Review
{¶6} Generally, a trial court has broad discretion with respect to the
admission of evidence. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶
62. Accordingly, we will not disturb the trial court’s evidentiary rulings absent an
abuse of discretion that produces a material prejudice to the aggrieved party. State
v. Gipson, 3d Dist. Allen No. 1-15-51, 2016-Ohio-994, ¶ 48, citing State v. Roberts,
9th Dist. Summit No. 21532, 2004-Ohio-962, ¶ 14. An abuse of discretion is more
than an error of judgment; it means that the trial court was unreasonable, arbitrary,
or unconscionable in reaching its ruling. State v. Adams, 62 Ohio St.2d 151, 157
(1980).
{¶7} However, we review hearsay-evidentiary rulings that implicate the
Confrontation Clause under a de novo standard of review. State v. Armour, 3d Dist.
Allen Nos. 1-22-05 and 1-22-06, 2022-Ohio-2717, ¶ 37, citing State v. McKelton,
148 Ohio St.3d 261, 2016-Ohio-5735. “De novo review is independent, without
deference to the lower court’s decision.” State v. Hudson, 3d Dist. Marion No. 9-
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Case No. 9-22-09
12-38, 2013-Ohio-647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio,
64 Ohio St.3d 145, 147 (1992).
Analysis
{¶8} Importantly, Delong objected to the introduction and admission of
State’s Exhibit A, Baker’s 9-1-1 emergency call, on the basis that Baker’s statement
in the call represented an incomplete statement because it was anticipated that Baker
would testify at trial and recant her earlier statements. The State argued that Baker’s
9-1-1 call was nontestimonial in nature and was made contemporaneous with a
startling event as an excited utterance. The trial court overruled Delong’s objection
and admitted State’s Exhibit A, which was subsequently played for the jury.
Confrontation Clause
{¶9} “The Confrontation Clause to the Sixth Amendment of the United
States Constitution, made applicable to the states by the Fourteenth Amendment,
provides that “‘[i]n all criminal prosecutions, the accused shall enjoy the right * * *
to be confronted with the witnesses against him * * *.”’” State v. Thomas, 3d Dist.
Marion No. 9-19-73, 2020-Ohio-5379, ¶ 17, quoting Crawford v. Washington, 541
U.S. 36, 42, 124 S.Ct. 1354, 1359 (2004), quoting the Confrontation Clause. The
similar provisions of Section 10, Article I of the Ohio Constitution “provide[ ] no
greater right of confrontation than the Sixth Amendment * * *.” State v. Self, 56
Ohio St.3d 73, 79 (1990).
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{¶10} “Only testimonial hearsay implicates the Confrontation Clause.”
McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, at ¶ 185. “‘[T]estimonial
statements are those made for “a primary purpose of creating an out-of-court
substitute for trial testimony.”’” Id., quoting State v. Maxwell, 139 Ohio St.3d 12,
2014-Ohio-1019, ¶ 40, quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct.
1143, 1155 (2011). Statements qualify as testimonial if they have a “primary
purpose” of “establish[ing] or prov[ing] past events potentially relevant to later
criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266,
2274 (2006). The Confrontation Clause prohibits admission of testimonial hearsay
statements made by a witness who does not appear at trial “unless the witness is
unavailable and the defendant has had a prior opportunity to cross-examine the
witness.” Maxwell at ¶ 34, citing Crawford at 53-54, 124 S.Ct. at 1365.
{¶11} Significantly, the trial court, in this case, was not asked to consider
whether the statements were testimonial or nontestimonial before considering the
content of the 9-1-1 emergency call in determining whether Baker’s statements were
admissible. Both the State and Delong agreed that the statements were
nontestimonial. Instead, Delong argued that because Baker was not available to
testify (at trial), her nontestimonial statements were rendered testimonial and
thereby prejudiced him. Ultimately, the trial court determined that the statements
were admissible under the Rules of Evidence (as an excited utterance) never
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reaching a determination regarding whether the statements were rendered
testimonial based upon the witness’s unavailability under Delong’s Confrontation-
Clause argument.
{¶12} Nevertheless, in our de novo review, we conclude that the 9-1-1
emergency call was not testimonial in nature. See State v. Douglas, 3d Dist. Marion
Nos. 9-18-19 and 9-18-20, 2019-Ohio-2067, ¶ 29, citing State v. Smith, 1st Dist.
Hamilton No. C-160836, 2017-Ohio-8558, ¶ 37 (“Because 911 calls seeking police
assistance are not testimonial in nature, the Confrontation Clause does not apply.”),
citing State v. McGee, 1st Dist. Hamilton No. C-150496, 2016-Ohio-7510, ¶ 16.
Indeed, the 9-1-1 emergency call was placed to address an ongoing emergency
involving Baker and Delong. Because the statements at issue were nontestimonial
and because the 9-1-1 emergency call was placed by Baker seeking law
enforcement’s assistance, we do not need to reach a determination regarding
whether Baker was unavailable or whether Delong had a prior opportunity to cross-
examine her.
{¶13} Accordingly, this portion of this assignment of error lacks merit.
Admissibility under the Rules of Evidence
{¶14} Even when the Confrontation Clause does not operate to prohibit the
admission of a hearsay statement, the statement may nonetheless be inadmissible
under the Rules of Evidence. See State v. Nevins, 2d Dist. Montgomery No. 21379,
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2007-Ohio-1511, ¶ 36, (“[T]estimony may be admissible under the Confrontation
Clause yet inadmissible under the rules of evidence, and vice versa * * *.”). Thus,
having addressed that the 9-1-1 emergency call was not barred by the Confrontation
Clause, we now turn to address whether it was admissible under the Rules of
Evidence, wherein we will apply an abuse of discretion standard of review.
{¶15} Hearsay is defined to mean “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 in the statement.” Evid.R. 801(C). In the instant case,
the declarant is Baker and the witness testifying as to her oral statements (in the 9-
1-1 emergency call) is Dispatcher Heidi Crow (“Crow”).1 Under the Rules of
Evidence, hearsay is generally inadmissible unless an exception to the hearsay rule
applies. Evid.R. 802. “Evid.R. 803 is one such rule which permits the admission
of certain hearsay statements even though the declarant is available as a witness.”
Dayton v. Combs, 94 Ohio App.3d 291, 300 (2d Dist.1993).
{¶16} Evid.R. 803 is titled Hearsay Exceptions; Availability of Declarant
Immaterial. Evid.R. 803 provides in its pertinent parts:
The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
1
Even though Delong (in his merit brief) detailed his oral statements made to Officer Hannah Greer (“Greer”)
while addressing his assertions relating to the degree of temporal proximity between the incident and the
statements made by Baker to Crow in her 9-1-1 emergency call, Delong’s assignment of error and his prayer
for relief specifically requests that we determine whether Baker’s statements (and not Delong’s statements)
were admissible. Thus, we will not address the admissibility of Delong’s statements to Greer.
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***
(2) Excited utterance. 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.
(Emphasis added.) Evid.R. 803(2). Hence, the rule itself provides that the
availability of the declarant is immaterial, and thus, no finding of unavailability of
the declarant is necessary to admit a statement under Evid.R. 803(2). See State v.
Dever, 64 Ohio St.3d 401, 414, 1992-Ohio-41, citing Evid.R. 803. This excited-
utterance exception “derives its guaranty of trustworthiness from the fact that
declarant is under such state of emotional shock that his [or her] reflective processes
have been stilled. Therefore, statements made under these circumstances are not
likely to be fabricated.” (Emphasis sic.) (Brackets added.) State v. Taylor, 66 Ohio
St.3d 295, 303, citing McCormick § 297 (2d Ed. 1972).
{¶17} A four-part test is applied to determine the admissibility of statements
as an excited utterance:
(a) That there was some occurrence startling enough to produce a
nervous excitement in the declarant, which was sufficient to still his
[or her] reflective faculties and thereby make his statements and
declarations the unreflective and sincere expression of his [or her]
actual impressions and beliefs, and thus render his [or her] statement
of declaration spontaneous and unreflective,
(b) That the statement or declaration, even if not strictly
contemporaneous with its exciting cause, was made before there had
been time for such nervous excitement to lose a domination over his
[or her] reflective faculties so that such domination continued to
remain sufficient to make his [or her] statements and declarations the
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unreflective and sincere expression of his [or her] actual impressions
and beliefs,
(c) That the statement or declaration related to such startling
occurrence or the circumstances of such starling occurrence, and
(d) That the declarant had an opportunity to observe personally the
matters asserted in his statement or declaration.
(Brackets added.) State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, ¶ 166,
quoting Potter v. Baker, 162 Ohio St. 488 (1955), paragraph two of the syllabus,
followed and approved in Taylor at fn. 2. The statement need not be made during
the course of the startling event. Rather, it is only necessary that the declarant still
appeared nervous or distraught and that there was a reasonable basis for continuing
to be emotionally upset. In addition, we note that that although the passage of time
is relevant to our consideration of a statement implicating the excited-utterance
exception, under the facts of this case, it is not dispositive of the issue. See Taylor
at 303.
{¶18} Elements one, three, and four of the Potter test are clearly satisfied in
this case. The domestic violence as alleged in this case was a startling occurrence,
Baker’s statements related to the domestic violence, and Baker, the victim, had the
opportunity to personally observe Delong cause her physical harm. The element at
issue is whether Baker’s declarations were made before there had been time for the
nervous excitement caused by the physical harm to wear off and her reflective
faculties to take over. Ultimately, this issue involves a question of fact and decisions
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regarding questions of fact reflected in a trial court’s admissibility ruling must be
reviewed based upon a reasonableness standard. See State v. Wallace, 37 Ohio St.3d
87, 90 (1988).
{¶19} Even though no time frames of violence were articulated by Baker
during her 9-1-1 emergency call, it is apparent that this was not a static event
because the event was startling enough to produce a nervous excitement in Baker
evinced by her breathing pattern, her emotional state, and her tone of voice in her
call for help. (See State’s Ex. A). Moreover, and significant to us, Baker and
Delong can be heard arguing throughout the 9-1-1 emergency call, and Crow, the
9-1-1 operator, had to intervene to stop Baker from responding to Delong’s
provocation. (See id.). Put more simply–there is no reason to believe that Baker’s
statement to Crow, made while seeking emergency assistance from law
enforcement, was untrustworthy. Thus, the trial court’s factual determination (i.e.,
startling event) was reasonable in light of the facts before us on appeal.
{¶20} Accordingly, we will not say that the trial court abused its discretion
in reaching its evidentiary determinations.
{¶21} Thusly, Delong’s first assignment of error is overruled.
Assignment of Error II
The trial court erred by failing to grant a judgment of acquittal,
pursuant to Crim. R. 29(a) [sic] on the charge of domestic
violence, and thereafter entered a judgment of conviction of that
offense as the charge was not supported by sufficient evidence.
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Assignment of Error III
The jury verdict on the domestic violence charge was against the
manifest weight of the evidence.
{¶22} Here, we elect to review Delong’s second and third assignments of
error together since they involve related issues. Delong argues in his second
assignment of error that the trial court erred by denying his Crim.R. 29 motion since
his domestic-violence conviction is not supported by sufficient evidence. In his
third assignment of error, Delong argues that his conviction is against the manifest
weight of the evidence.
Standard of Review
{¶23} We “review[ ] a denial of a Crim.R. 29 motion for judgment of
acquittal using the same standard that is used to review a sufficiency of the evidence
claim.” State v. Lightner, 3d Dist. Hardin No. 6-08-11, 2009-Ohio-544, ¶ 11.
{¶24} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997).
Consequently, “[t]he relevant inquiry is whether, after viewing the evidence in a
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light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt.” Id. “In
deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of
fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-
4775, ¶ 33.
{¶25} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78
Ohio St.3d 380, 387, superseded by state statute on other grounds, Smith at 89, and
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
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Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Sufficiency-of-the-Evidence Analysis
{¶26} We begin by reviewing the sufficiency of Delong’s domestic-violence
conviction. Domestic violence under R.C. 2919.25(A) provides that “[n]o person
shall knowingly cause or attempt to cause physical harm to a family or household
member.”
{¶27} At trial and on appeal, Delong challenges only whether the State
admitted sufficient evidence to establish that he “cause[d] or attempt[ed] to cause
physical harm” to Baker. Delong asserts that since he testified at trial (that he did
not cause or attempt to cause Baker physical harm) and Baker did not testify that
the evidence presented by the State was insufficient to support his domestic-
violence conviction. We disagree.
{¶28} The 9-1-1 emergency call was admitted at trial and played in open
court for the jury wherein Baker identifies Delong as the person who head-butted
her leaving a knot on her forehead. (Feb. 2, 2022 Tr. at 123). (See State’s Ex. A).
Crow testified that during their conversation Baker identified the assailant who
head-butted her leaving a swollen knot on her head as Delong. (Id. at 124).
Moreover, Officer Hannah Greer (“Greer”) testified that Delong initially stated that
he and Baker head-butted each other, but later clarified “that he head-butted her”
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since she was yelling at him. (Id. at 136). Greer then took photos of Baker’s
injuries, which was presented as evidence at trial. (See State’s Ex. B).
{¶29} We conclude that this evidence, when viewed in a light most favorable
to the State, would permit a reasonable trier of fact to conclude beyond a reasonable
doubt that Delong caused Baker physical harm. As such, Delong’s domestic-
violence conviction is based upon sufficient evidence. Accordingly, the trial court
did not err by denying his Crim.R. 29 motion for acquittal.
{¶30} Having concluded that the jury’s domestic-violence finding of guilt is
based upon sufficient evidence, we now turn to address whether Delong’s
conviction is against the manifest weight of the evidence.
{¶31} Here, Delong argues that because Greer did not photograph his injuries
at the scene (contrary to protocol) and since Delong gave conflicting statements (as
to who was the aggressor) that the jury clearly lost its way and created a manifest
miscarriage of justice.
{¶32} Whether Greer’s actions were contrary to protocol is not germane to
the issue at hand. The evidence recited above supports that Delong was the
aggressor and not Baker.
{¶33} Significant to us, the jury had the opportunity to observe the State’s
witnesses and Delong while testifying both under direct and cross-examination. The
jury “is best able ‘to view the witnesses and observe their demeanor, gestures[,] and
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voice inflections, and use these observations in weighing the credibility of the
proffered testimony.’” State v. Banks, 8th Dist. Cuyahoga No. 96535, 2011-Ohio-
5671, ¶ 13, quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24,
citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81 (1984). “[W]e
are mindful of the jury’s ‘superior first-hand perspective in judging the demeanor
and credibility of witnesses.’” State v. Suffel, 3d Dist. Paulding No. 11-14-05, 2015-
Ohio-222, ¶ 33, quoting State v. Phillips, 10th Dist. Franklin No. 14AP-79, 2014-
Ohio-5162, ¶ 125, citing DeHass at paragraph one of the syllabus. Indeed, the jury
heard the witnesses’ testimonies and was in the best position to determine whether
the testimonies were credible.
{¶34} The evidence we summarized in our sufficiency-of-the-evidence
analysis supports that Delong’s conviction is weightier than the evidence against it.
This evidence does not weigh heavily against Delong’s conviction. Consequently,
the jury did not lose its way and create such a manifest miscarriage of justice that
Delong’s conviction must be reversed and a new trial ordered.
{¶35} Accordingly, Delong’s second and third assignments of error are
overruled.
Assignment of Error IV
Defendant-Appellant, Roger Delong, was denied the right to
effective assistance of counsel and a fair trial under the Sixth and
Fourteenth Amendment to the United States Constitution and
the Ohio Constitution, Article I, Section 10.
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{¶36} In his fourth assignment of error, Delong asserts that he received
ineffective assistance of counsel. Specifically, Delong argues that his trial counsel
failed to subpoena Baker to testify at trial who was anticipated to recant her earlier
statements, and according to Delong, resulted in the erroneous admission of the 9-
1-1 emergency call.
Standard of Review
{¶37} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064 (1984). In order to show counsel’s conduct was deficient
or unreasonable, the defendant must overcome the presumption that counsel
provided competent representation and must show that counsel’s actions were not
trial strategies prompted by reasonable professional judgment. Strickland at 689;
State v. Harris, 3d Dist. Allen No. 1-21-30, 2021-Ohio-4559, ¶ 6.
{¶38} “‘To show prejudice, the [appellant] must show a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
been different.’” State v. Moll, 3d Dist. Defiance No. 4-19-17, 2020-Ohio-2784, ¶
4, quoting State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 95.
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{¶39} Even though the issue of ineffective assistance of counsel is a two-
pronged analysis, the appellate court does not need to consider the facts of the case
under both prongs if the appellant makes an insufficient showing on one. State v.
Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-547, ¶ 18, citing State v. Baker,
3d Dist. Allen No. 1-17-61, 2018-Ohio-3431, ¶ 19, citing State v. Walker, 3d Dist.
Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20.
Analysis
{¶40} Here, the State elected to subpoena Baker notwithstanding the
anticipation that she would recant her version of the events, and thus, the State also
filed a motion requesting that the court call Baker as a witness permitting the State
to proceed as if on cross-examination on the eve of trial. (See Doc. No. 32). The
following day and immediately prior to the commencement of Delong’s jury trial,
the trial court reserved ruling on the State’s motion, given that, it was unclear if
Baker would appear in the first instance or what the substance of her testimony
would be. (Feb. 2, 2022 at 13-16). (See id.).
{¶41} Under the facts presented, Delong cannot establish prejudice since the
State did subpoena Baker, and she still failed to appear. Moreover, the substance of
Baker’s testimony is unknown and any reference to what she might testify to at trial
is purely speculative. Moreover, it is entirely plausible and possible that, even if
Baker had appeared for trial and testified recanting her earlier statements, that the
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jury nevertheless could have elected to find her testimony not credible under the
circumstances and relied upon her earlier statements to the 9-1-1 dispatcher.
Consequently, this portion of Delong’s argument lacks merit.
{¶42} Additionally, notwithstanding the failure of trial counsel to subpoena
Baker, the 9-1-1 emergency call was admissible without respect to the availability
of the declarant (Baker) because, as we concluded in our resolution of Delong’s first
assignment of error, Evid.R. 803 itself provides that the availability of the declarant
is immaterial. See Dever, 64 Ohio St.3d at 414, 1992-Ohio-41, citing Evid.R. 803.
Simply put–the 9-1-1 emergency call was admissible regardless of whether Baker
was available to testify at trial or not. Therefore, Delong cannot establish that he
has suffered any prejudice as a result of his trial counsel’s failure to issue a dueling
subpoena for Baker. Thus, this portion of his argument also lacks merit.
{¶43} Because Delong cannot establish that he has suffered any prejudice,
we decline to address whether his trial counsel’s performance was deficient or
unreasonable under the circumstances. Therefore, we conclude that Delong has not
met his burden to establish that his trial counsel’s performance, even if deficient,
prejudiced him under the second prong of Strickland.
{¶44} Accordingly, Delong’s fourth assignment of error is overruled.
Assignment of Error V
Defendant-Appellant, Roger Delong, was deprived of his rights
to due process and a fair trial under the federal and state
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constitutions by the cumulative effect of the numerous errors in
this case.
Standard of Review
{¶45} Under the cumulative-error doctrine, “a conviction will be reversed
when the cumulative effect of errors in a trial deprives a defendant of a fair trial
even though each of the numerous instances of trial court error does not individually
constitute cause for reversal.” State v. Spencer, 3d Dist. Marion No. 9-13-50, 2015-
Ohio-52, ¶ 83. “‘To find cumulative error, a court must first find multiple errors
committed at trial and determine that there is a reasonable probability that the
outcome below would have been different but for the combination of the harmless
errors.’” (Emphasis sic.) State v. Sutton, 3d Dist. Seneca No. 13-21-11, 2022-Ohio-
2452, ¶ 80, quoting In re J.M., 3d Dist. Putnam No. 12-11-06, 2012-Ohio-1467, ¶
36.
Analysis
{¶46} Here, we have not found any errors in this case, let alone, multiple
errors; therefore, the cumulative-error doctrine does not apply.
{¶47} Accordingly, Delong’s fifth assignment of error is overruled.
{¶48} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER and WILLAMOWSKI, J.J., concur.
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