State v. Barnes

• Court: Ohio Court of Appeals
• Decided: June 4, 2026
• Docket: 115741
• Status: Published

Opinion

[Cite as State v. Barnes, 2026-Ohio-2088.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 115741 v. :

DEANTAIE BARNES, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: June 4, 2026

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-25-701421-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Dominic Neville, Assistant Prosecuting Attorney, for appellee.

Eric M. Levy, for appellant.

EILEEN T. GALLAGHER, P.J.:

Appellant Deantaie Barnes (“Barnes”) challenges his conviction of

felonious assault, domestic violence, and aggravated menacing. He raises five

assignments of error for our review: 1. The trial court erred by permitting the State to proceed forward with an evidence-based prosecution where it did not secure the presence of the victim T.G. for trial in violation of appellant’s right to confront all witnesses against him pursuant to the Sixth Amendment to the United States Constitution and made applicable to the State of Ohio through the Fourteenth Amendment.

2. Appellant was denied the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution when trial counsel failed to object to the admission of hearsay evidence, including 911 calls, on scene statements, and Medical records, containing statements of the non-testifying victim and the failure to object otherwise constituted plain error.

3. The evidence was insufficient to support a conviction on each count for which appellant was convicted and sentenced.

4. The convictions were against the manifest weight of the evidence.

5. The State of Ohio committed prosecutorial misconduct in closing arguments by improperly vouching for the credibility of the non- testifying victim.

After a thorough review of the applicable law and facts, we find that the

evidence admitted did not violate Barnes’s rights under the Confrontation Clause

and did not constitute hearsay. In addition, his trial counsel was not ineffective for

failing to make futile objections.

We further find that Barnes’s convictions were supported by sufficient

evidence and not against the manifest weight of the evidence. We overrule the

assignments of error and affirm the judgment of the trial court.

I. Factual and Procedural History

On the night in question, a 911 call came in requesting EMS and police

assistance for an assault. When Cleveland Emergency Medical Services (“EMS”) worker R.H. and her partner, A.M., had arrived on scene, they observed a male and

a female exiting the apartment building to which they had been dispatched. The

female, T.G., flagged them down, and the male left the scene.

The EMS workers went into T.G.’s apartment with her. She told them

what had happened, and they assessed her for injuries, noting that it looked as if her

wrist might have been broken. (Tr. 186 and 198.) The EMS workers confirmed with

T.G. that the male they had observed leaving the scene was the same male involved

in the assault. (Tr. 186.) T.G. was concerned that Barnes had her keys and her

phone, and she did not want him to come back. (Tr. 186-187.)

After approximately 20 minutes on the scene, A.M. went outside to

retrieve a phone from the ambulance so that T.G. could call her sister. When she

came back into the apartment, she told R.H. that she had seen Barnes starting to

walk back to the building. The EMS workers notified dispatch that the assailant was

returning to the building. R.H. attempted to prevent Barnes from opening the door

by putting her foot against the door, but he was able to push the door open. (Tr. 188

and 198.) The EMS workers asked Barnes to leave T.G.’s keys, and he began verbally

threatening them, stating “I will f*cking kill you b*tches.” (Tr. 199.) R.H. pushed

the panic button on her radio.

Barnes threw T.G.’s phone on the ground and left the building.

(Tr. 193.) R.H. felt nervous and “extremely threatened.” (Tr. 189.) A.M. felt

“scared” because Barnes’s demeanor was “very aggressive” at that time. (Tr. 199.) A.M. was particularly concerned because Barnes had T.G.’s keys to the apartment

building and they were not able to “barricade him out.” (Id.)

Cleveland Police Officer Sebastian Luongo (“Ofc. Luongo”) received a

call to respond to a female who had been assaulted by a male. EMS had reported

that there was an ongoing altercation and had requested police assistance.

Upon arriving at the residence, Ofc. Luongo encountered the two EMS

workers and T.G. inside. One of the EMS workers told him that T.G. had stated that

she had been assaulted by Barnes. (Tr. 165.) The EMS workers said that Barnes had

run away from the scene and provided his description to the officer. (Tr. 163-164.)

They also told the officer that Barnes had made verbal threats to them. (Tr. 165.)

Ofc. Luongo learned that T.G. and Barnes had been in a dating relationship for

several months and were living together. (Tr. 164.)

Ofc. Luongo chased after Barnes. Cleveland Police Detective Raul

Moyano (“Det. Moyano”) was working as a patrolman on the night of the incident.

He assisted in finding Barnes and apprehending him. The two officers caught up

with Barnes and confirmed that he matched the description given by the EMS

workers.

T.G. identified Barnes as the person who had assaulted her. (Tr. 172.)

The EMS workers “strongly suspected” that T.G.’s wrist was broken, and

Ofc. Luongo observed a visible lump on the side of her head. (Tr. 172.) T.G. asked

about her apartment keys, and Ofc. Luongo was able to locate them in Barnes’s pants

pocket. (Tr. 173-174.) Because the EMS workers were now victims in the case and could no

longer provide care to T.G., a second ambulance came to transport T.G. to the

hospital. (Tr. 190.) One of the EMS workers from the second ambulance completed

a “patient care run report.” The report stated:

[Patient chief complaint] of head pain, left cheek pain, left wrist pain, vaginal pain, and has noted hematoma on right side of forehead, and noted controlled bleeding on lower lip secondary to assault. [Patient] states, “He was beating me with a chair,” and states she was “stomped.” [Patient] also says she was punched and kicked in the face, and kicked in the vagina. [Patient] says she had [loss of consciousness] during the incident. . . .

(State’s exhibit No. 3.)

Cleveland Police Detective Taylor Cunningham (“Det. Cunningham”)

was a domestic-violence detective and was assigned to the case. She contacted T.G.

to ask if they could meet so she could obtain a written statement from her. T.G.

stated that she was not able to meet with the detective because of her schedule.

Det. Cunningham spoke with T.G. briefly over the phone, and T.G. corroborated her

initial statements from the police report but did not elaborate. (Tr. 210.) After

speaking with T.G., Det. Cunningham reviewed the 911 call and T.G.’s medical

records. (Tr. 210 and 212.) She also reviewed Barnes’s criminal history, which

included a conviction for assault on a peace officer in 2019. (Tr. 217.)

Barnes was indicted on three counts of strangulation, two felonies of

the second degree and one felony of the third degree, in violation of R.C. 2903.18(B);

one count of felonious assault, a felony of the second degree, in violation of

R.C. 2903.11(A)(1); one count of domestic violence, a misdemeanor of the first degree, in violation of R.C. 2919.25(A); and two counts of aggravated menacing,

misdemeanors of the first degree, in violation of R.C. 2903.21(A). The first five

counts related to T.G., while the two aggravated menacing charges concerned EMS

workers R.H. and A.M.

The matter proceeded to a jury trial; T.G. did not appear at the trial.

Prior to commencement, Barnes objected to T.G.’s absence from the trial. He argued

that his constitutional right to confront his accusers was violated when T.G. refused

to appear despite the issuance of a subpoena. The court noted his objection for the

record and trial commenced.

The State presented the testimony of R.H., A.M., Ofc. Luongo,

Det. Moyano, and Det. Cunningham. The State offered as exhibits the recording of

the 911 call, T.G.’s medical records, the EMS run report, video footage from

Ofc. Luongo’s body camera, a screenshot from the body-camera footage depicting

T.G. in the back of the ambulance, and the journal entry reflecting Barnes’s prior

conviction.

At the conclusion of the State’s case, Barnes moved for acquittal on all

counts under Crim.R. 29; the court denied the motion. Barnes did not present any

testimony or evidence. After resting, Barnes renewed his motion for acquittal, and

it was again denied.

The jury found Barnes not guilty of the strangulation counts, but guilty

of the remaining charges. Barnes was sentenced to an aggregate sentence of four to

six years. He then filed the instant appeal. II. Law and Argument

A. Presence of Victim

In his first assignment of error, Barnes argues that the trial court erred

by allowing the State to prosecute him without securing the presence of the victim

for trial. He asserts that his constitutional right to confront witnesses against him

under the Sixth Amendment was violated because the State presented statements

by T.G. through her medical records, the 911 call, and testimony of the police officers

and EMS workers.

The State contends that Barnes’s Sixth Amendment rights were not

violated because none of T.G.’s statements that were presented at trial were

testimonial in nature.

Typically, we review evidentiary rulings that implicate the

Confrontation Clause de novo. State v. McKelton, 2016-Ohio-5735, ¶ 97, citing

United States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010.). De novo review

requires us to independently review the trial court’s decision without any deference

to its determination. State v. McCullough, 2018-Ohio-1967, ¶ 6 (8th Dist.), citing

State v. Knox, 2016-Ohio-5519, ¶ 12 (8th Dist.). However, Barnes concedes that he

did not object at trial to the admission of the exhibits containing statements by T.G.

While he did lodge an initial objection to T.G.’s absence, he did not subsequently

object to the admission of any of the State’s exhibits or testimony. Under these

circumstances, he has waived all but plain error on appeal. See State v. Houston,

2018-Ohio-3043, ¶ 25 (8th Dist.) (“We have applied the plain error doctrine to instances where the appellant failed to object to an alleged confrontation clause

error at trial.”).

“Crim.R. 52(B) provides that ‘[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of

the court.’” Id. Under the plain-error standard, “the defendant bears the burden of

‘showing that but for a plain or obvious error, the outcome of the proceeding would

have been otherwise, and reversal must be necessary to correct a manifest

miscarriage of justice.’” State v. West, 2022-Ohio-1556, ¶ 22, quoting State v.

Quarterman, 2014-Ohio-4034, ¶ 16.

The Sixth Amendment’s Confrontation Clause, which is binding on

the states through the Fourteenth Amendment, provides: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.”

Interpreting this amendment, the United States Supreme Court has

recognized that the “admission of an out-of-court statement of a witness who does

not appear at trial is prohibited by the Confrontation Clause if the statement is

testimonial unless the witness is unavailable and the defendant has had a prior

opportunity to cross-examine the witness.” State v. Maxwell, 2014-Ohio-1019, ¶ 34,

citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004). The central concern of

the Confrontation Clause is “‘“to ensure the reliability of the evidence against a

criminal defendant by subjecting it to rigorous testing in the context of an adversary

proceeding before the trier of fact.”’” State v. Smith, 2019-Ohio-3257, ¶ 10 (1st Dist.), quoting State v. Madrigal, 87 Ohio St.3d 378, 384, quoting Maryland v.

Craig, 497 U.S. 836, 845 (1990).

Because the Confrontation Clause is only implicated by testimonial

hearsay, the admission of nontestimonial statements does not violate the Sixth

Amendment. McKelton, 2016-Ohio-5735, at ¶ 185. Whether statements are

testimonial or nontestimonial depends on the primary purpose of the statements.

Id. In general, “[s]tatements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the primary purpose

of the interrogation is to enable police assistance to meet an ongoing emergency.”

Davis v. Washington, 547 U.S. 813, 822 (2006). If, however, there is no such

ongoing emergency and “the primary purpose of the interrogation is to establish or

prove past events potentially relevant to later prosecution,” then the statements are

testimonial. Id. In discussing the primary purpose test, the Davis Court explained

that a 911 call, and usually the initial interrogation that is conducted in connection

with the call, is not ordinarily designed primarily to establish or prove a past fact;

rather, it is to describe current circumstances that require police assistance. Id. at

827.

In Michigan v. Bryant, 562 U.S 344 (2011), the court clarified “what

Davis meant” by “an ongoing emergency” and its role in determining the “primary

purpose” of an interrogation. Id. at 359. The Bryant Court emphasized that

“whether an emergency exists and is ongoing is a highly context-dependent inquiry.” Id. at 363. A court must consider “‘the statements and actions of both the declarant

and interrogators.’” State v. Jones, 2012-Ohio-5677, ¶ 155, quoting Bryant at 367.

Whether a risk still exists to the victims, the public, or the police is an

important factor in the “ongoing emergency” inquiry. The Bryant Court noted that

“[d]omestic violence cases . . . often have a narrower zone of potential victims than

cases involving threats to public safety.” Bryant at 363. Nevertheless, the

assessment of whether an ongoing emergency exists “cannot narrowly focus on

whether the threat solely to the first victim has been neutralized because the threat

to the first responders and public may continue.” Id. The medical state of the victim

“provides important context for first responders to judge the existence and

magnitude of a continuing threat to the victim, themselves, and the public.” Id. at

365.

Although the existence of an ongoing emergency is a significant factor

in the primary-purpose analysis, “any conclusion determining that there is no

ongoing emergency is not dispositive of the Confrontation Clause question.” State

v. Williams, 2024-Ohio-337, ¶ 26 (8th Dist.), citing Cleveland v. Merritt, 2016-

Ohio-4693, ¶ 22 (8th Dist.). “Instead, ‘whether an ongoing emergency exists is

simply one factor . . . that informs the ultimate inquiry regarding the “primary

purpose” of an interrogation.’” Ohio v. Clark, 576 U.S. 237, 245 (2015), quoting

Bryant at 366. When considering the existence of an ongoing emergency and the

primary-purpose test, the court should consider the formality or informality of the

encounter and the statements and actions of the declarant and the interrogators, particularly in light of the circumstances of the interrogation. Merritt at ¶ 42, citing

Clark at 245 and Bryant at 360.

With the foregoing principles in mind, we separately review the

contents of the 911 call, the medical records, and the statements to police and the

EMS workers. See United States v. Arnold, 486 F.3d 177, 189 (6th Cir. 2007) (“Each

victim statement thus must be assessed on its own terms and in its own context to

determine on which side of the [testimonial-nontestimonial] line it falls.”).

1. 911 Call

Barnes argues that the 911 call in this matter was testimonial because

it was reporting a crime that had already concluded.

This court has recognized that statements made during a 911 call are

often found to be nontestimonial and are admissible if the statements satisfy a

hearsay exception. State v. Jacinto, 2020-Ohio-3722, ¶ 61 (8th Dist.). This is

because a 911 caller is typically “speaking about events as they [are] actually

happening” and “[a]lthough one might call 911 to provide a narrative report of a

crime absent any imminent danger,” 911 callers are usually facing ongoing

emergencies. (Emphasis deleted.) Davis, 547 U.S. at 827. Under such

circumstances, the 911 caller is not testifying, the 911 caller is not acting as a witness,

and the statements of the 911 caller are not testimonial in nature. Id. at 827-828.

Viewing the contents of T.G.’s 911 call in its entirety, we find that T.G.’s

statements to the dispatcher were made during an ongoing emergency and were

nontestimonial. T.G. was distraught and continued to exhibit significant signs of stress. When questioned, T.G. indicated that she required both police and EMS

assistance and the totality of the circumstances objectively indicate that her

statements to the dispatcher were not made “to document past events” but were

made with the “primary purpose” of obtaining protection and assistance in resolving

an ongoing threat, particularly since Barnes still had her phone and keys. Further,

Barnes had returned to the apartment building and threatened the EMS workers.

He then left but still had T.G.’s keys.

Thus, Barnes posed an ongoing threat, and T.G.’s statements during

the 911 call were nontestimonial and did not violate the Confrontation Clause. See,

e.g., State v. Boyce, 2024-Ohio-464, ¶ 18 (8th Dist.).

Barnes further contends that the 911 call was inadmissible because it

was not authenticated. The call recording was introduced during

Det. Cunningham’s testimony as State’s exhibit No. 1; the 911 dispatcher did not

testify. However, at the close of the State’s case, the parties and the court discussed

admission of the exhibits. When discussing the 911 call, the following exchange

occurred:

PROSECUTOR: So State’s Exhibit 1 was the 9-1-1 call.

I don’t know if we put it on the record, but we can now, that there was a stipulation to the admissibility of the 9-1-1 call because of — so we did not have to bring a dispatcher in.

THE COURT: I do recall that.

Counsel, does that sound accurate to you, there was a stipulation?

DEFENSE COUNSEL: That is correct, your Honor. THE COURT: Okay.

We conclude that the 911 call was properly admitted by the trial court.

2. Statements Made to Police

Barnes argues that T.G.’s statements made on the scene and later to

Det. Cunningham via phone were testimonial. However, Barnes does not cite any

specific statements that the officers stated were made by T.G. Luongo testified to

his own observations and what he learned from the EMS workers, R.H. and A.M.

With regard to T.G.’s phone call with Det. Cunningham, the detective

also did not offer any of T.G.’s statements during her testimony. She did state that

T.G. had “corroborated” her previous statements made on scene. Even if this were

to be considered testimonial, when reviewed for plain error, we cannot find that

Barnes suffered any prejudice. The jury had already heard the testimony of the EMS

workers and the responding officer as to the identity of the assailant and what had

occurred; a statement that T.G. had “corroborated” her own past statements was

duplicative. The trial court did not err in admitting testimony regarding T.G.’s

statements to the police officers.

3. Medical Records

Barnes contends that T.G.’s medical records from her treatment after

the incident were also testimonial and should have been excluded. This argument

lacks merit; the Ohio Supreme Court has held that statements elicited for purposes

of medical diagnoses and treatment are not testimonial and that their admission into evidence at trial does not violate the Confrontation Clause. State v. Smith,

2024-Ohio-5745, ¶ 54, citing State v. Arnold, 2010-Ohio-2742, ¶ 41.

Similarly, “[s]tatements made for the purposes of medical diagnosis

and treatment are a clearly defined, long-standing exception to the rules of hearsay.”

State v. Echols, 2015-Ohio-5138, ¶ 27 (8th Dist.). Evid.R. 803(4) allows for the

admission of “[s]tatements made for purposes of medical diagnosis or treatment

and describing medical history, or past or present symptoms, pain, or sensations, or

the inception or general character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment.”

The statements that were reflected in T.G.’s medical records were for

the primary purpose of receiving medical care; those statements were

nontestimonial and were properly admitted.

Barnes further contends that T.G.’s statements in her medical records

identifying him as her assailant were not admissible because they were not necessary

for medical purposes. However, the records did not contain any identification of

Barnes. The records referred to T.G.’s assailant as her “significant other” or

“spouse.” Accordingly, the records were not testimonial and did not contain

hearsay. See State v. Smith, 2008-Ohio-5985 (8th Dist.) (statement in medical

record did not identify the defendant where it only indicated that a “boyfriend” had

hit the victim). Even if the statements referring to T.G.’s “spouse” (which is not even

accurate) or “significant other” could be construed as identifying Barnes, the error in the statements’ admission was harmless under Crim.R. 52(A) because they were

cumulative to the admissible testimony by the EMS workers and Ofc. Luongo.

Barnes further argues that the medical records were improperly

admitted through Cunningham, who was not involved in T.G.’s treatment. The

medical records were presented during Det. Cunningham’s testimony because she

was outlining what she reviewed in her investigation of this matter.

“[P]roperly authenticated medical records are admissible as business

records under Evid.R. 803(6) without offending a defendant’s right to confront

witnesses because those records are not testimonial in nature.” State v. Alston,

2015-Ohio-4127, ¶ 17 (9th Dist.), citing State v. Tolbert, 2010-Ohio-2864, ¶ 12 (9th

Dist.).

In addition, authenticated hospital records are generally admissible

at trial. State v. Congress, 2006-Ohio-2081, ¶ 14 (8th Dist.), citing Hunt v.

Mayfield, 65 Ohio App.3d 349 (1989). Under R.C. 2317.422, hospital records may

be authenticated via certification by the custodian of the records and do not require

live testimony at trial as to their preparation. “Admission of hospital records via

R.C. 2317.422 certification does not offend a defendant’s confrontation rights.” Id.,

citing State v. Spikes, 67 Ohio St.2d 405 (1981). Here, the medical records contained

the certification required by R.C. 2317.422 and the records were admissible. 4. Statements to EMS Workers

Barnes argues that T.G.’s statements to the EMS workers were also

testimonial because there was no ongoing emergency. He contends that T.G. was

more interested in getting her keys back than medical treatment.

The Ohio Supreme Court has held that “[s]tatements made to medical

personnel for purposes of diagnosis or treatment are not inadmissible under

Crawford [541 U.S. 36], because they are not even remotely related to the evils that

the Confrontation Clause was designed to avoid.” State v. Muttart, 2007-Ohio-

5267, ¶ 63. The Court also noted that “[t]he fact that the information gathered by

the medical personnel in this case was subsequently used by the state does not

change the fact that the statements were not made for the state’s use.” Id. at ¶ 62.

T.G. was having her injuries assessed and actively receiving medical

treatment when her statements were made to the EMS workers. Thus, her

statements were for the primary purpose of receiving medical care, not for use at

trial. See Smith, 2024-Ohio-5745, at ¶ 55.

Barnes’s first assignment of error is overruled.

B. Ineffective Assistance of Counsel

In his second assignment of error, Barnes argues that his counsel was

ineffective by failing to object to the admission of hearsay testimony from the

nontestifying victim.

To prevail on an ineffective-assistance-of-counsel claim, an appellant

must show that defense counsel’s performance was deficient and that the deficient performance prejudiced the defense, depriving the appellant of a fair trial.

Strickland v. Washington, 466 U.S. 668, 687-688 (1984). Defense counsel’s

performance will not be deemed deficient unless it fell below an objective standard

of reasonableness. Id. at 688. In order to show prejudice, appellant must establish

that, but for their trial counsel’s errors, there is a reasonable probability that the

result of the trial would have been different. Id. at 694. A reviewing court “need not

address both prongs of Strickland if an appellant fails to prove either prong.” State

v. Carter, 2017-Ohio-8847, ¶ 27 (9th Dist.), citing State v. Ray, 2005-Ohio-4941,

¶ 10 (9th Dist.). In applying the Strickland test, courts must always recall that

properly licensed counsel is presumed to be competent and trial counsel must be

afforded deference regarding trial strategy. In re Roque, 2006-Ohio-7007, ¶ 11 (11th

Dist.), citing Vaughn v. Maxwell, 2 Ohio St.2d 299, 301, and State v. Dixon, 2004-

Ohio-1585, ¶ 52.

Because we have determined that T.G.’s statements were

nontestimonial and properly admitted, any objection by defense counsel would have

been futile. The failure to perform a futile act cannot be the basis for a claim of

ineffective assistance of counsel nor could it be prejudicial. State v. Kilbane, 2014-

Ohio-1228, ¶ 37 (8th Dist.), citing State v. Ford, 2007-Ohio-5722, ¶ 9 (8th Dist.),

citing State v. Henderson, 2007-Ohio-2372 (8th Dist.); see also State v. Mitchell, 53

Ohio App.3d 117, 119 (8th Dist. 1988) (“[A] trial attorney does not violate any

substantial duty in failing to make futile objections.”). Barnes’s counsel was not ineffective, and his second assignment of

error is overruled.

C. Sufficiency of the Evidence

In his third assignment of error, Barnes argues that his convictions

were not supported by sufficient evidence. Specifically, he asserts that he could not

have been convicted of felonious assault, domestic violence, and aggravated

menacing without direct testimony from the victim.

“‘[A]n 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 defendant’s guilt beyond a reasonable doubt.” State v. McQuisition, 2024-

Ohio-3011, ¶ 25 (8th Dist.), quoting State v. Jenks, 61 Ohio St.3d 259 (1991). “‘The

relevant inquiry is whether, after viewing the evidence in a 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., quoting id. at paragraph two of

the syllabus, citing Jackson v. Virginia, 443 U.S. 307 (1979). “‘In essence,

sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain

a verdict is a question of law.’” Id., quoting State v. Thompkins, 78 Ohio St.3d 380,

386 (1997).

A victim is not required to testify at trial because “[c]ases can be

proven through other witnesses, evidence, circumstances, and inferences.” State v.

Helman, 2004-Ohio-4867 ¶ 21 (7th Dist.), citing State v. Mayes, 1979 Ohio App. LEXIS 10090 (8th Dist. May 24, 1979); see also State v. Hudson, 2019-Ohio-3497,

¶ 31 (1st Dist.) (“There is no requirement that a victim testify at a trial, since a case

can be proven through other evidence and witnesses.”).

In the instant matter, the State presented evidence of all of the

elements of the offenses via the 911 call, the medical records, and the testimony of

the responding officers, the EMS workers, and the detective. Viewing the evidence

in a light most favorable to the State, we find that any rational trier of fact could have

found the essential elements of felonious assault and domestic violence proven

beyond a reasonable doubt even without testimony by T.G.

With regard to the aggravated menacing charges, Barnes argues that

the testimony of R.H. and A.M. failed to establish that he knowingly caused them to

believe he would cause them serious physical harm.

“Aggravated menacing does not require that the offender be able to

carry out his threat or even believe himself capable of carrying it out; it is sufficient

if the offender knowingly causes the victim to believe the offender will carry his

threat into execution.” State v. Chopak, 2012-Ohio-1537, ¶ 18 (8th Dist.), citing

State v. Walker, 2007-Ohio-4047, ¶ 14 (8th Dist.). A person acts knowingly when

he “is aware that [his] conduct will probably cause a certain result or will probably

be of a certain nature.” R.C. 2901.22(B). The gist of the offense of aggravated

menacing is the victim’s reasonable belief that serious physical harm is about to

befall him or her. Chopak at ¶ 18, citing Walker at ¶ 14. Here, Barnes threatened R.H. and A.M., saying that he was going to

“f*cking kill you b*tches” and that they could “call the police. They won’t stop me.”

(Tr. 188.) We find that there was sufficient evidence to demonstrate that Barnes

knowingly caused R.H. and A.M. to believe that he would cause serious physical

harm to them.

Barnes’s third assignment of error is overruled.

D. Manifest Weight of the Evidence

In his fourth assignment of error, Barnes argues that his convictions

were against the manifest weight of the evidence. Specifically, he contends the jury

had no opportunity to assess the credibility of T.G. and convicted him on a “paper

trial.” He further argues that the verdicts were logically inconsistent because the

jury acquitted Barnes of the strangulation charges that were based upon the same

evidence as the charges for which he was found guilty.

When reviewing a manifest weight challenge, an appellate court

“‘weighs the evidence and all reasonable inferences, considers the credibility of

witnesses and determines 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. Virostek, 2022-Ohio-

1397, ¶ 54 (8th Dist.), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.

1983). A reversal on the basis that a verdict is against the manifest weight of the

evidence is granted “‘only in the exceptional case in which the evidence weighs heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, quoting Martin

at 175.

Again, there is no requirement that a victim testify in order to convict

a defendant. And the jury had much more than a “paper trial.” Both EMS workers

testified, along with the responding officers, who all interacted with both Barnes and

T.G. There was testimony as to the visible injuries on T.G. that was further

supported by T.G.’s medical records. Finally, the jurors were able to hear the 911

call, where T.G. could clearly be heard asking for EMS and police, and then

screaming, crying, and begging “Don’t beat me no more,” while having a difficult

time catching her breath.

We find that there was persuasive evidence presented of domestic

violence and felonious assault. Even if we believed the verdicts to be inconsistent,

inconsistent verdicts between independent counts do not create a reversible error.

Because each count in an indictment is regarded as if it was a separate indictment,

consistency in the verdict is not necessary. United States v. Powell, 469 U.S. 57, 62

(1984). “The several counts of an indictment containing more than one count are

not interdependent and an inconsistency in a verdict does not arise out of

inconsistent responses to different counts, but only arises out of inconsistent

responses to the same count.” State v. Lovejoy, 79 Ohio St.3d 440, 446 (1997),

quoting Browning v. State, 120 Ohio St. 62 (1929), at paragraph two of the syllabus.

“[C]ourts have consistently rejected the argument that inconsistent verdicts would

render a defendant’s conviction against the manifest weight of the evidence.” State v. Jones, 2019-Ohio-5237, ¶ 33 (8th Dist.), citing State v. Norman, 2011-Ohio-2870,

¶ 14 (10th Dist.); State v. Gravelle, 2009-Ohio-1533, ¶ 76-77 (6th Dist.); State v.

Parker, 2008-Ohio-3538, ¶ 22-25 (8th Dist.).

Having reviewed the evidence presented at trial, we are not persuaded

that the verdicts were against the manifest weight of the evidence. This is not the

exceptional case where the jury clearly lost its way and created a manifest

miscarriage of justice. Barnes’s fourth assignment of error is overruled.

E. Prosecutorial Misconduct

In his final assignment of error, Barnes argues that the State engaged

in prosecutorial misconduct by improperly vouching for the credibility of the

nontestifying victim during its closing argument. In particular, Barnes points to the

following statements by the prosecutor:

The only reason why this wouldn’t be evidence is if she was just lying to [sic] these medical records, she’s lying to EMS, she’s lying to medical staff at the hospital.

There’s no – she’s lying that she wanted — needed to even go to the hospital. Those aren’t lies. She’s revealing the truth.

If this whole thing is that she wanted to put a case against the defendant, the reason why she lied to the medical professionals is because she wants some sort of vindictiveness, some sort of retribution against the defendant, she’d be here and testify. She would have followed up with the detective.

The State of Ohio could present its case without the victim, and those medical records and the EMS run report check off the elements of strangulation and serious physical harm, and the 9‑1-1 phone call allows you to be in the moment of that assault.

(Tr. 291.) We note that Barnes did not object to the allegedly improper

statements and thus is limited to arguing plain error on appeal.

The relevant question in reviewing a claim of prosecutorial

misconduct is whether the comments made by the prosecutor “‘“so infected the trial

with unfairness as to make the resulting conviction a denial of due process.”’” State

v. Froman, 2020-Ohio-4523, ¶ 114, quoting Darden v. Wainwright, 477 U.S. 168,

181 (1986), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). In

answering that question, the reviewing court considers “whether the conduct was

improper and, if so, whether it prejudicially affected the defendant’s substantial

rights.” Id., citing Maxwell, 2014-Ohio-1019, at ¶ 243. In evaluating prejudice, the

court considers “the effect that the misconduct had ‘on the jury in the context of the

entire trial.’” Id., quoting State v. Keenan, 66 Ohio St.3d 402, 410 (1993). “The

focus of that inquiry is on the fairness of the trial, not the culpability of the

prosecutor.” State v. Hostacky, 2014-Ohio-2975, ¶ 42 (8th Dist.), citing State v.

Bey, 85 Ohio St.3d 487, 493 (1999).

Both the prosecution and the defense enjoy wide latitude in closing

arguments as to what they believe the evidence has shown and what reasonable

inferences may be drawn therefrom. State v. Stephens, 24 Ohio St.2d 76, 82 (1970).

Moreover, prosecutorial misconduct constitutes reversible error only in rare

instances. Keenan at 405, quoting State v. DePew, 38 Ohio St.3d 275, 288 (1988).

With that latitude in mind, we still recognize that [a] prosecutor is not allowed to express a personal opinion concerning the credibility of evidence, but can argue that the character, quality, or consistency of particular evidence or witnesses should be considered when assessing credibility.

State v. Cody, 2002-Ohio-7055, ¶ 35 (8th Dist.), citing State v. Tyler, 50 Ohio St.3d

24, 41 (1990). Although it is never advisable for a prosecutor to aver that a witness

is telling the truth, upon reviewing the prosecutor’s remarks in the context of the

entire trial, we do not find that they prejudicially affected Barnes’s substantial rights.

The statements were made in the context of the prosecutor arguing that the victim

did not have a motive to lie to the medical providers and that if T.G. had made up

the incident to get Barnes in trouble, it is likely that she would have appeared to

testify at trial.

Moreover, the trial court instructed the jury that “[n]either opening

statement of counsel, their remarks during the course of the trial, nor their

arguments at the conclusion of the taking of evidence are to be considered by you as

evidence in this case.” (Tr. 147.) The jury is presumed to follow the instructions of

the trial court. State v. Banks, 2015-Ohio-5413, ¶ 68 (8th Dist.), citing State v. Loza,

71 Ohio St.3d 61, 79 (1994).

We cannot say that the cited statements by the prosecutor rose to the

level of plain error. There is no evidence that, but for their admission, the outcome

of the trial would have been different.

Barnes’s final assignment of error is overruled. The judgment of the

trial court is affirmed. It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, PRESIDING JUDGE

EMANUELLA D. GROVES, J., and MARY J. BOYLE, J., CONCUR