State v. Reed

[Cite as State v. Reed, 2021-Ohio-858.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
JUAN E. REED : Case No. 20 CAA 04 0021
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas Case No. 19 CR I 02 0116
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 18, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
R. JOSEPH VARVEL APRIL F. CAMPBELL
145 North Union Street 46 ½ North Sandusky Street
Dealware, OH 43015 Dealware, OH 43015
Delaware County, Case No. 20 CAA 04 0021 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Juan E. Reed appeals October 28, 2019 judgment of
conviction and sentence of the Delaware County Court of Common Pleas. Plaintiff-
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Before the events in this matter, Reed and A.S. had known one another for
eight years. They lived together on and off, cared for each other's children, worked
together, shared household duties, and had an on-again, off-again intimate relationship.
Reed was without transportation, and used A.S.'s truck for work. A.S. often worked with
Reed.
{¶ 3} On February 12, 2019, the two woke up at Reed's home. After dropping
their children off at school, Reed drove A.S's truck to their job for the day, painting
apartment interiors at a complex in New Albany.
{¶ 4} They stared work at 8:00 a.m., and were the sole workers at the site that
day. During the afternoon, Reed took A.S.'s truck several times over her objection, staying
away for longer periods of time on each occasion. On the final occasion, A.S. asked Reed
to return her keys and an argument ensued. Reed refused to return the keys, and then
began taunting her with the keys. He then grabbed A.S. by the neck and slammed her to
the floor twice. Reed then straddled A.S. and began strangling her. A.S. fought her way
free and tried to get away. Reed tried to trip her, but instead ended up kicking her in the
left leg with his steel-toed work boots. He then once again grabbed her by the throat,
slammed her to the floor, and dragged her into a closet where she lost consciousness.
A.S. believed Reed was going to kill her.
Delaware County, Case No. 20 CAA 04 0021 3
{¶ 5} When A.S. regained consciousness, Reed was gone. She ran outside to
her truck and sat inside, but Reed still had her keys. When he showed up, she demanded
her keys and told him he was not allowed in her truck. Reed ignored her, packed up his
tools, got in the truck and began driving towards home. A.S, unfamiliar with the area
where they were working, chose to remain with Reed.
{¶ 6} But as he drove, Reed continued his assault on A.S. He grabbed her by the
neck with his right hand and slammed her head against the passenger side window, the
dashboard and the console cup holders. A.S. tried to call 911, but Reed took her phone
from her. Once back home, as Reed got out of the truck, A.S. slid into the driver's seat
and left.
{¶ 7} The following day, A.S. had numerous bruises, a headache, nausea, and
sensitivity to light. Additionally, her throat hurt and she was hoarse. She reported the
incidents of the day before to Deputy Wooten of the Delaware County Sheriff's
Department. Although she had not initially desired to seek medical attention, after Wooten
advised A.S. that strangulation can cause serious injury, A.S. agreed to do so.
{¶ 8} Physician's Assistant (PA) Janel Scarbrough saw A.S. at the Grady Hospital
emergency room. Scarbrough gathered a history from A.S. and performed a head-to-toe
examination. She noted A.S.'s voice was hoarse and raspy and that A.S. had difficulty
swallowing. A.S. further had bruising around her eyes, under her chin, and on her left
shin, as well as abrasion marks on her face and neck. Scarbrough believed the bruises
were recent, having been inflicted within the past 24 hours. Given A.S.'s report of
experiencing light sensitivity, a headache and nausea, Scarbrough believed A.S. had also
suffered a concussion.
Delaware County, Case No. 20 CAA 04 0021 4
{¶ 9} As a result of these events, on February 22, 2019, the Delaware County
Grand Jury returned an indictment charging Reed with one count each of kidnapping, a
felony of the first degree, felonious assault, a felony of the second degree, domestic
violence, a felony of the fourth degree due to Reed's previous conviction for domestic
violence, menacing by stalking, a felony of the of the fourth degree due to Reed's history
of violence toward A.S. and others, and disrupting public services, a felony of the fourth
degree.
{¶ 10} Reed pled not guilty to the charges and elected to proceed to a jury trial
which began September 10, 2019.
{¶ 11} Before trial, however, the trial court held a hearing to address numerous
motions filed by Reed. Relevant here, Reed filed a motion to prohibit the state from
admitting other acts evidence including misconduct or criminal convictions which were
not the subject of the instant indictment. The trial court denied this motion finding the other
acts the state intended to introduce pertained to the elements of menacing by stalking
specifically, establishing a pattern of conduct against A.S. and additionally establishing
Reed's history of violence in order to enhance the level of the offense. As such, the trial
court found the evidence was not subject to Evid.R 404(B).
{¶ 12} Reed also filed a motion to compel the state to comply with Crim.R. 16(K)
by providing written reports for its expert witnesses. The experts Reed referred to included
PA Scarbrough. The trial court denied the motion, finding treating medical professionals
may be called at trial to testify as to their personal observations and need not provide
written report.
Delaware County, Case No. 20 CAA 04 0021 5
{¶ 13} Following a 3-day trial, the jury found Reed guilty of domestic violence and
menacing by stalking and acquitted him of the balance of the charges. Reed was
sentenced to a term of community control.
{¶ 14} Reed filed an appeal and the matter is now before this court for
consideration. Reed raises four assignments of error as follow:
I
{¶ 15} "REED'S CONVICTIONS SHOULD BE REVERSED BECAUSE HIS TRIAL
COUNSEL WAS INEFFECTIVE IN A MANNER THAT PREJUDICED REED.
A. CONSISTENT FAILURE TO OBJECT TO ARGUMENT AND TESTIMONY
CONCERNING INADMISSIBLE PRIOR BAD ACTS.
B. FAILURE TO OBJECT TO JANEL SCARBROUGH TESTIFYING AS AN EXPERT
WITHOUT BEING QUALIFIED BY THE TRIAL COURT AS UNDER EVID.R. 104(A),
WITHOUT A REPORT UNDER CRIM.R. 16(K), AND TESTIFYING SUBSTANTIVELY
ABOUT PRIOR ACTS OF VIOLENCE THAT WERE INADMISSIBLE EVID.R. 403."
II
{¶ 16} "THE JURY'S DECISION TO FIND REED GUILTY OF FELONY
DOMESTIC VIOLENCE AND MENACING BY STALKING SHOULD BE VACATED,
BECAUSE THE EVIDENCE WEIGHED MANIFESTLY AGAINST CONVICTING REED
OF EACH COUNT."
III
{¶ 17} "PLAIN ERROR OCCURRED WHEN THE TRIAL COURT ALLOWED THE
STATE TO SATURATE REED'S TRIAL WITH EVIDENCE BOTH IRRELEVANT AND
UNFAIRLY PREJUDICIAL TO THE OFFENSES FOR WHICH REED WAS TRIED."
Delaware County, Case No. 20 CAA 04 0021 6
IV
{¶ 18} "REED WAS DENIED HIS RIGHT TO A FAIR TRIAL THROUGH
CUMULATIVE ERROR."
I
{¶ 19} In his first assignment of error, Reed argues his counsel rendered
ineffective assistance by failing to object to inadmissible prior bad acts, and for failing to
object to PA Scarbrough testifying as an expert without being qualified and tendered as
such by the state, and without having submitted a written expert witness report before
trial. We disagree.
{¶ 20} To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell
below an objective standard of reasonable representation, and (2) that counsel's errors
prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the
result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–
688, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136,
538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. "Reasonable
probability" is "probability sufficient to undermine confidence in the outcome." Strickland
at 694, 104 S. Ct. 2052.
{¶ 21} Because there are countless ways to provide effective assistance in any
given case, judicial scrutiny of a lawyer's performance must be highly deferential.
Strickland, 466 U.S. 668 at 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674. "Decisions on strategy
and trial tactics are granted wide latitude of professional judgment, and it is not the duty
Delaware County, Case No. 20 CAA 04 0021 7
of a reviewing court to analyze trial counsel's legal tactics and maneuvers." State v.
Quinones, 8th Dist. Cuyahoga No. 100928, 2014-Ohio-5544, ¶ 18.
Prior Bad Acts
{¶ 22} Reed first faults his counsel for failing to object to the state's use of a 2012
conviction for disorderly conduct which involved Reed pushing and strangling his then
girlfriend K.L., and threatening to burn her house down. Reed further faults counsel for
failing to object to the state's use of Reed's history of violence with A.S. Reed argues all
of this testimony amounted to inadmissible 404(B) evidence. We disagree.
{¶ 23} Evidence Rule 404(B) provides,
(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order
to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake
or accident. In criminal cases, the proponent of evidence to be
offered under this rule shall provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to
introduce at trial.
{¶ 24} As noted by the state, Reed was charged with menacing by stalking, a
fourth degree felony, which required the state to prove Reed engaged in a pattern of
Delaware County, Case No. 20 CAA 04 0021 8
conduct which caused A.S. to believe that Reed would cause her physical harm or mental
distress AND that Reed had a history of violence against A.S. or any other person. It is
the history of violence against the victim or any other person which enhances the level of
the offense to a fourth degree felony. Thus neither evidence of Reed's 2012 conviction,
nor his patterns of conduct against A.S. were introduced as prior bad acts, but rather as
elements of the crime with which Reed was charged and therefore which the state was
required to prove. Nor was the state required, as Reed argues, to choose between the
pattern of behavior conduct and the historical conduct as it had to prove both. We
therefore find counsel was not ineffective for failing to object to the admission of this
evidence.
Expert Witness Testimony
{¶ 25} Reed makes several arguments in regard to PA Scarbrough's testimony.
He first faults counsel's failure to object to Scarbrough testifying as an expert when the
state never qualified nor tendered her as such. Next he faults counsel for failing to object
to Scarbrough's testimony regarding the age of A.S.'s bruises without first having provided
and expert witness report to the defense per Crim.R. 16(K). Finally, Reed faults his
counsel for failing to object to portions of Scarbrough's testimony which were unrelated
to medical diagnosis and treatment.
{¶ 26} Before testifying regarding A.S.'s emergency room visit, Scarbrough
testified she has been a physician's assistant for 15 years with 14 of those years spent
working in emergency medicine. She outlined her education, including a bachelor's
degree in science as a physician's assistant and a master's degree in emergency
medicine. She further testified she is required to engage in yearly continuing education.
Delaware County, Case No. 20 CAA 04 0021 9
Transcript of trial, volume II, (T.(II) ) 261-262. During her time in emergency medicine she
has treated approximately 90 people presenting for strangulation. T.(II) 300.
{¶ 27} In State v. Drummond, 111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d
1038, ¶ 115, the Ohio Supreme Court held that “[w]hile the state never formally tendered
[a witness] as an expert, defense counsel never challenged his qualifications to testify
and thus waived all but plain error” under Crim.R. 52(B). The Drummond Court reasoned
that the witness “was qualified to testify as an expert about gang-related matters” under
Evid.R. 702, and therefore any error was harmless.
{¶ 28} So too here. Because PA Scarbrough would have qualified as an expert
had the state proffered her as one, Reed cannot show prejudice and his counsel's failure
to object to her testimony was not ineffective.
Crim.R. 16(K)
{¶ 29} We next address Reed's Crim.R. 16(K) argument. That rule provides:
An expert witness for either side shall prepare a written report
summarizing the expert witness's testimony, findings, analysis,
conclusions, or opinion, and shall include a summary of the expert's
qualifications. The written report and summary of qualifications shall
be subject to disclosure under this rule no later than twenty-one days
prior to trial, which period may be modified by the court for good
cause shown, which does not prejudice any other party. Failure to
disclose the written report to opposing counsel shall preclude the
expert's testimony at trial.
Delaware County, Case No. 20 CAA 04 0021 10
{¶ 30} It was not necessary for Scarbrough to testify as an expert witness. It is well
established that a treating medical professional may be called at trial to testify as an
observer of a patients' physical condition and not as expert retained in anticipation of
litigation. Henry v. Richardson, 193 Ohio App. 3d 375, 2011-Ohio-2098, 951 N.E.2d 1123
¶ 33; Fischer v. Dairy Mart Convenience Stores, Inc., 77 Ohio App. 3d 543, 602 N.E.2d
1204 (8th Dist.1991). Evid.R. 701, testimony by a lay witness, allows treating physicians
to render opinions based upon their personal observations and perceptions. See Williams
v. Reynolds Rd. Surgical Ctr., 6th Dist. No. L-02-1144, 2004-Ohio-1645, *3.
{¶ 31} While the state argues Scarbrough testified as a fact witness and not an
expert witness, we note the trial court determined that based on Scarbrough's testimony,
it was required to provide the jury with an instruction regarding expert witnesses and the
state did not disagree. T. (III) 942.
{¶ 32} Even if Scarbrough did testify as an expert, however, the medical records
pertaining to A.S.'s emergency room visit were provided to Reed and Reed does not
argue Scarbrough testified inconsistently with those records. Rather, Reed takes issue
with Scarbrough's testimony indicating the injuries on A.S.'s body, specifically the age of
the bruises and lack of major bruising to her neck, were consistent with the history
provided by A.S.
{¶ 33} In a factually similar case, State v. Fetty, 11th Dist. Portage No. 2011-P-
0091, 2012-Ohio-6127, 2012 WL 6727343, the court found, "[b]ecause the victim's
medical records * * * had been provided to the defense, this appears to be a case where
the disclosure of the medical records in lieu of an expert report adequately provided the
Delaware County, Case No. 20 CAA 04 0021 11
requesting party with the information it needed." Id. ¶ 45. The court found that the treating
medical professional testified consistently with the medical records and did not testify as
to the cause of the victim's injury. The court concluded the defendant "cannot claim he
was prejudiced by a lack of Crim.R. 16(K) report, as he was not ambushed or thwarted in
his ability to cross-examine the physician—a situation Crim.R. 16(K) is intended to
prevent." Id. at ¶ 46.
{¶ 34} So too here. Reed was provided with A.S.'s medical records, pertaining to
her visit with A.S. Scarbrough. Scarbrough was called by the state to testify about her
personal observations while treating A.S., all of which were contained in the medical
record generated by Scarbrough. State's Exhibit 11. Scarbrough did not give any opinion
as to who or what caused A.S.'s injuries, only that the state of the injuries were consistent
with having taken place within the past 24 hours, and that based on her experience she
would not expect to see much neck bruising from strangulation. Trial counsel was
therefore not ineffective for failing to object to this testimony.
Testimonial Hearsay
{¶ 35} Finally, Reed argues counsel was ineffective for failing to object to portions
of Scarbrough's testimony that had nothing to do with the injuries sustained by A.S.
Specifically, Reed points to the narrative given by A.S. regarding the events of the
previous day as well as the tumultuous and violent nature of the relationship between her
and Reed.
{¶ 36} The Confrontation Clause of the Sixth Amendment to the U.S. Constitution
guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be
confronted with the witnesses against him * * *." In Crawford v. Washington, 541 U.S. 36,
Delaware County, Case No. 20 CAA 04 0021 12
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court held that
testimonial statements of a witness who does not appear at trial may not be admitted or
used against a criminal defendant unless the declarant is unavailable to testify, and the
defendant has had a prior opportunity for cross-examination.
{¶ 37} In State v. Arnold, 126 Ohio St. 3d 290, 2010-Ohio-2742, 933 N.E.2d 775,
the Ohio Supreme Court applied the “primary purpose” test, in a case involving victim
statements made to a social worker at a child advocacy center. The Supreme Court
concluded that statements made primarily for forensic or investigative purposes are
testimonial and thus inadmissible under the Confrontation Clause when the declarant is
unavailable. However, the Court found statements made for diagnosis and treatment are
nontestimonial and thus admissible without offending the confrontation clause. Id. at
paragraphs one and two of the syllabus.
{¶ 38} We find the portions of PA Scarbrough's testimony discussing A.S.'s
description of the previous day's events which had nothing to do with her injuries, as well
as the history of violence between Reed and A.S. were testimonial statements to which
counsel should have objected. It is well established, however, that the Confrontation
Clause does not bar admission of a statement so long as the declarant is present at trial
to defend or explain it. See State v. Bell, 5th Dist. Stark No. 2013-CA-00110, 2014-Ohio-
663 at ¶ 13 citing State v. Siler, 5th Dist. Ashland No. 02 COA 028, 2005-Ohio-6591, ¶
51, quoting State v. Marbury, 2d Dist. Montgomery No. 19226, 2004-Ohio-1817, ¶ 38,
citing Crawford at 59, f.n. 9.
{¶ 39} Here, the declarant, A.S., was present at trial and was subject to cross
examination by Reed's counsel. We therefore find any error harmless. Because Reed
Delaware County, Case No. 20 CAA 04 0021 13
cannot demonstrate prejudice, we find his counsel was not ineffective for failing to object
to Scarbrough's testimony.
{¶ 40} The first assignment of error is overruled.
II
{¶ 41} In his second assignment of error, Reed argues his convictions for domestic
violence and menacing by stalking are against the manifest weight of the evidence. We
disagree.
{¶ 42} On review for manifest weight, a reviewing court is to 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 jury 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. Martin, 20 Ohio App. 3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d
541 (1997). The granting of a new trial "should be exercised only in the exceptional case
in which the evidence weighs heavily against the conviction." Martin at 175.
{¶ 43} Reed argues the evidence that he did not commit the acts was more
believable and persuasive than evidence that he did. Reed points to two specific reasons
supporting his argument.
{¶ 44} First Reed points to the testimony of Dublin City Police Officer Larry Gatton
who was summonsed to Reed's home in February 2017 to remove A.S. from his house
for destroying property. Apparently A.S. was angry because she suspected Reed was
Delaware County, Case No. 20 CAA 04 0021 14
seeing someone else. A.S. told Gatton Reed had attacked her. A third person present
told Gatton A.S. had punched herself. T(II) 342-353. No charges came of the incident.
{¶ 45} Reed next points to the testimony of his boss Alejandro Roces Rodriquez
who was allegedly present during a February 2019 incident between Reed and A.S.
during which the two argued at a job site and Reed punched A.S. in the head. Rodriquez
testified he witnessed the entire incident and Reed never punched A.S. T(III) 605-628.
We note, however, that the state presented testimony from Jerry Jervis, a resident of the
trailer park where the three were working that day. Jervis testified he witnessed A.S.
running out of the trailer next door to him with Reed right behind her. He then watched as
Reed hit A.S., sending her rolling off the deck. According to Jervis, Rodriquez came out
of the trailer after Reed hit A.S. and split them up. T(II) 327-329.
{¶ 46} While this testimony put the credibility of A.S., Rodriquez, and Jervis at
issue, this court must afford the decision of the trier of fact concerning credibility issues
the appropriate deference. We will not substitute our judgment for that of the trier of fact
on the issue of witness credibility unless it is patently clear that the fact finder lost its way.
State v. Ahmed, 5th Dist. No. 2007-CA-00049, 2008-Ohio-389, 2008 WL 307711, ¶ 28
citing State v. Parks, 3rd Dist. No. 15-03-16, 2004-Ohio-4023, at ¶ 13, citing State v.
Twitty, 2nd Dist. No. 18749, 2002-Ohio-5595, at ¶ 114.
{¶ 47} Upon review of the record it is not patently clear that this jury lost its way in
making its credibility determinations, nor was the result so unreliable as to create a
manifest miscarriage of justice. The second assignment of error is therefore overruled.
III
Delaware County, Case No. 20 CAA 04 0021 15
{¶ 48} In his third assignment of error Reed again raises the admission of his 2012
conviction for disorderly conduct and PA Scarbrough's expert testimony and argues
admission of this testimony amounts to plain error. Reed also takes issue with a mention
by a state's witness that Reed was arrested on a warrant for the instant charges and taken
to jail for an interview. Reed argues the admission of this testimony is plain error.
{¶ 49} An error not raised in the trial court must be plain error for an appellate court
to reverse. State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804 (1978) at paragraph one of
the syllabus; Crim.R. 52(B). In order to prevail under a plain error analysis, Reed bears
the burden of demonstrating that the outcome of the trial clearly would have been different
but for the error. Id. at paragraph two of the syllabus. Notice of plain error "is to be taken
with the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice." Id. at paragraph three of the syllabus.
{¶ 50} We have addressed the admission of Reed's 2012 conviction and PA
Scarbrough's testimony in Reed's first assignment of error. Having found no error in
counsel's failure to object to such testimony, we also find no plain error was committed in
its admission.
{¶ 51} As for Reed's argument that the state elicited testimony concerning Reed's
arrest and the fact that he was in jail, we have examined Reeds transcript references and
find they pertain to testimony by Delaware County Sheriff's Detective Jeff Bessinger.
{¶ 52} Bessinger testified because he could not immediately locate Reed, a
warrant issued for his arrest. He further testified after Reed had been arrested the
previous day he "was brought into the Delaware County Jail, and I interviewed him there."
Delaware County, Case No. 20 CAA 04 0021 16
T (II) 520. The state further inquired if Reed had spent the night in the Delaware County
Jail and Bessinger stated he did not know. T (II) 521.
{¶ 53} While we find this testimony wholly irrelevant, we cannot say it rises to the
level of plain error. Reed bears the burden of demonstrating the outcome of his trial clearly
would have been different but for the admission of this testimony, and has failed to explain
how this testimony impacted the verdict reached by the jury.
{¶ 54} The third assignment of error is overruled.
IV
{¶ 55} In his final assignment of error, Reed argues he was denied a fair trial due
to cumulative error as set forth in his first three assignments of error.
{¶ 56} In State v. Brown, 100 Ohio St. 3d 51, 2003-Ohio-5059, 796 N.E.2d 506, the
Ohio Supreme Court recognized the doctrine of cumulative error. However, where we
have found the trial court did not err, cumulative error is inapplicable. State v. Carter, 5th
Dist. Stark No. 2002CA00125, 2003-Ohio-1313 at ¶ 37.
{¶ 57} We have found no error in Reed's preceding three assignments of error.
The doctrine of cumulative error is therefore inapplicable.
{¶ 58} The final assignment of error is overruled.
Delaware County, Case No. 20 CAA 04 0021 17
{¶ 59} The judgment of the Delaware County Court of Common Pleas is affirmed.
By Wise, Earle, J.
Baldwin, P.J. and
Wise, John, J. concur.
EEW/rw