[Cite as State v. Doss, 2019-Ohio-436.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 18AP0027
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE CHRISTOPHER A. DOSS WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO Appellant CASE No. 2017 CR-B 001258
DECISION AND JOURNAL ENTRY
Dated: February 11, 2019
CALLAHAN, Judge.
{¶1} Appellant, Christopher Doss, appeals his conviction by the Wayne County
Municipal Court. This Court affirms.
I.
{¶2} On the evening of July 19, 2017, the Wooster Police Department received a 911
call reporting an altercation between Mr. Doss and his girlfriend, A.V. A Wooster police officer
arrived at the scene seven minutes after the dispatch went out, and he encountered A.V. walking
barefoot north of Mr. Doss’s residence. When the officer made contact with A.V., he noted her
obvious injuries and that she appeared “visibly upset” and “[i]t looked like she kind of left in a
hurry.” The officer asked A.V. what had happened, and she informed him that she had been in a
physical altercation with Mr. Doss in their bedroom. Two officers made contact with Mr. Doss
at his residence. He acknowledged that he had argued with A.V., but denied a physical
altercation. 2
{¶3} The officers placed Mr. Doss under arrest and he was charged with domestic
violence in violation of R.C. 2919.25(A) and unlawful restraint in violation of R.C. 2905.03(A).
Because A.V. did not appear as a witness for Mr. Doss’s bench trial, the State’s only witnesses
were the two police officers who responded to the scene. Mr. Doss testified in his own defense.
The trial court found Mr. Doss not guilty of unlawful restraint, but guilty of domestic violence,
sentenced him to 165 days in jail, and fined him $200. Mr. Doss appealed. His six assignments
of error are rearranged for purposes of discussion.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ADMITTING AND RELYING ON TESTIMONIAL HEARSAY IN VIOLATION OF MR. DOSS’S SIXTH AMENDMENT RIGHT TO CONFRONT HIS ACCUSER.
ASSIGNMENT OF ERROR NO. 6
IF THIS COURT FINDS THAT TRIAL COUNSEL DID NOT OBJECT TO TESTIMONIAL HEARSAY, THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING AND RELYING ON TESTIMONIAL HEARSAY IN VIOLATION OF MR. DOSS’S SIXTH AMENDMENT RIGHT TO CONFRONT HIS ACCUSER.
{¶4} In his first assignment of error, Mr. Doss argues that the trial court erred by
permitting Officer Carl Festa to testify regarding statements made by A.V. Mr. Doss objected to
this testimony at trial, but did not object on the basis that the testimony violated the
Confrontation Clause. He has forfeited all but plain error in this respect but, because “error * * *
[is] the starting point for a plain-error inquiry,” our analysis is the same. See State v. Hill, 92
Ohio St.3d 191, 200 (2001); Crim.R. 52(B).
{¶5} The Sixth Amendment to the United States Constitution guarantees an accused
the right to confront witnesses against him. Crawford v. Washington, 541 U.S. 36, 54 (2004). 3
The Confrontation Clause is implicated by the admission of out-of-court statements that are
testimonial in nature when the declarant does not testify in the proceeding. See Melendez–Diaz
v. Massachusetts, 557 U.S. 305, 309–310 (2009). Only testimonial statements make a declarant
a “witness” for purposes of the Confrontation Clause, and “[i]t is the testimonial character of the
statement that separates it from other hearsay that, while subject to traditional limitations upon
hearsay evidence, is not subject to the Confrontation Clause.” Davis v. Washington, 547 U.S.
813, 821 (2006).
{¶6} Statements are testimonial when “the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.” Id. at 822. This
determination focuses on the expectations of the declarant, and the intentions of the questioner
are only relevant to the extent that they bear on the expectations formed by a reasonable
declarant. State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, paragraph two of the syllabus.
This is an objective inquiry that takes into account the totality of the surrounding circumstances.
See State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, ¶ 156. Although not determinative of
the Confrontation Clause issue, “[i]n making the primary purpose determination, standard rules
of hearsay, designed to identify some statements as reliable, will be relevant.” Michigan v.
Bryant, 562 U.S. 344, 358-359 (2011).
{¶7} In Davis, the United States Supreme Court considered two situations in which
police officers testified regarding statements made to them in the course of responding to
incidents of domestic violence. In one case, the Court concluded that the declarant’s statements
were not testimonial in nature; in the other, the Court reached the opposite conclusion. The
Court noted four factors present in those cases that tended to characterize nontestimonial
statements: (1) close proximity in time to the events in question, (2) the presence of an ongoing 4
emergency, (3) the nature of the questions asked and responses received, and (4) the level of
formality present in the questioning. Id. at 827, 829-830. The Court emphasized that in
domestic disputes, “‘[o]fficers called to investigate * * * need to know whom they are dealing
with in order to assess the situation, the threat to their own safety, and possible danger to the
potential victim.’” (Alterations in original.) Id. at 832, citing Hiibel v. Sixth Judicial Dist. Court
of Nevada, Humboldt Cty., 542 U.S. 177, 186 (2004). Consequently, the Court noted, inquiries
made at the scene in the form of “‘initial inquiries’” may often produce nontestimonial
statements. Davis at 832.
{¶8} In this case, the trial court admitted a portion of Officer Festa’s testimony about
his encounter with A.V. over counsel’s objection that it amounted to hearsay because it fell into
the “excited utterance” exception to the hearsay rule set forth in Evid.R. 803(2). Officer Festa’s
testimony established, in fact, that A.V. was “visibly upset” and “kind of hysterical, kind of
frantic” when he found her. Contrary to the State’s position, however, the fact that her
statements to Officer Festa constituted excited utterances, at least in part, does not resolve the
Confrontation Clause issue. “‘[T]estimony may be admissible under the Confrontation Clause
yet inadmissible under the rules of evidence, and vice versa, [so] the declarant’s statements must
fall within the constitutional requirements and the rules of evidence to be admissible.’”
(Emphasis in original.) See State v. Miller, 9th Dist. Lorain No. 14CA010556, 2016-Ohio-4993,
¶ 11, quoting State v. Nevins, 171 Ohio App.3d 97, 2007-Ohio-1511, ¶ 36 (2d Dist.).
{¶9} Nonetheless, the character of her statements as excited utterances is one aspect of
the surrounding circumstances that informs this Court’s analysis. See Bryant, 562 U.S. at 358-
359. Officer Festa testified that he responded to the neighborhood of Mr. Doss’s residence
within minutes of the dispatch in response to a 911 call and that he found A.V. walking barefoot 5
“a couple hundred yards” away from the residence. He noted that she “looked like she kind of
left in a hurry,” and she exhibited visible injuries. In response to her circumstances, Officer
Festa asked A.V. what happened, and she responded that “there was a physical altercation in the
bedroom” during which “[Mr. Doss] grabbed her around the neck and then dragged her around
the bedroom[,] which ended up cutting her back on a wicker basket[.]”
{¶10} By any measure, these statements do not run afoul of the Confrontation Clause. A
reasonable declarant in A.V.’s circumstances encountering a law enforcement officer a short
time after the events in question would not perceive that her statements were made in order to
prove past events in a later criminal prosecution. Compare State v. Wallace, 35 Ohio St.3d 87,
89 (1988), quoting Potter v. baker, 162 Ohio St. 488 (1955), paragraph two of the syllabus
(explaining that excited utterances occur under circumstances in which a startling occurrence
“‘produc[es] a nervous excitement in the declarant, which [is] sufficient to still his reflective
faculties and thereby make his statements and declarations the unreflective and sincere
expression of his actual impressions and beliefs, and thus render his statement or declaration
spontaneous and unreflective.’”)
{¶11} A.V.’s statements are also nontestimonial when measured by the factors identified
in Davis. See generally Davis, 547 U.S. at 827, 829-830. Officer Festa responded to the scene
within minutes of the dispatch in response to a 911 call, and A.V.’s statements to him were close
in proximity to the events in question. Officer Festa noted that A.V. exhibited visible injuries
and appeared to have fled the scene of an attack barefoot. The location of her assailant was then
unknown. Officer’s Festa’s initial inquiries were of the type necessary to assess the situation, the
threat to his own safety, and possible danger to A.V. See Davis at 832. Finally, his inquiries
bore few, if any, indicia of the formality that would mark a testimonial statement. Id. at 827. 6
{¶12} A.V.’s statements to Officer Festa do not implicate Confrontation Clause
concerns because they were not testimonial in character, and the trial court did not err by
permitting Officer Festa’s testimony. Mr. Doss’s first and sixth assignments of error are
overruled.
ASSIGNMENT OF ERROR NO. 5
IF THIS COURT FINDS THAT TRIAL COUNSEL DID NOT OBJECT TO TESTIMONIAL HEARSAY, THEN TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO DO SO.
{¶13} Mr. Doss’s fifth assignment of error argues that he received ineffective assistance
of counsel because trial counsel failed to object to Officer Festa’s testimony, and “there is no
doubt that [A.V.’s] statements were testimonial.”
{¶14} In order to demonstrate ineffective assistance of counsel, a defendant must show
(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by
counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,
466 U.S. 668, 687 (1984).
{¶15} This Court has concluded that A.V.’s out-of-court statements were not testimonial
and, consequently, that there was no error in connection with Officer Festa’s testimony. In this
respect, Mr. Doss has not identified a deficiency in trial counsel’s performance. See State v.
McDowell, 9th Dist. Summit No. 26697, 2014-Ohio-3900, ¶ 18, citing State v. Williams, 9th
Dist. Summit No. 25716, 2011-Ohio-6604, ¶ 14. Mr. Doss’s fifth assignment of error is
ASSIGNMENT OF ERROR NO. 3
THERE WAS INSUFFICIENT EVIDENCE TO FIND MR. DOSS GUILTY OF DOMESTIC VIOLENCE. 7
{¶16} Mr. Doss’s third assignment of error is that his conviction for domestic violence
rests upon insufficient evidence. This Court disagrees.
{¶17} “Whether a conviction is supported by sufficient evidence is a question of law
that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009–Ohio–
6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is
whether the prosecution has met its burden of production by presenting sufficient evidence to
sustain a conviction. Thompkins at 390 (Cook, J., concurring). In reviewing the evidence, we do
not evaluate credibility, and we make all reasonable inferences in favor of the State. State v.
Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to
reasonably conclude that the essential elements of the crime were proven beyond a reasonable
doubt. Id.
{¶18} Crim.R. 29(A) provides that a motion for a judgment of acquittal may be made at
the close of the State’s evidence or at the close of the defendant’s case. When a motion is made
at the conclusion of the State’s case, the trial court must rule at that time without reserving
judgment until the defense has rested. Id. Consequently, when this Court reviews the denial of a
motion for judgment of acquittal under Crim.R. 29(A), we apply the standard set forth in Jenks
to the evidence presented by the State in its case-in-chief. See State v. Maxwell, 9th Dist.
Summit No. 24807, 2010-Ohio-4214, ¶ 13. An appellant may also argue that a conviction rests
on insufficient evidence apart from Crim.R. 29(A) because due process requires “that no person
shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined
as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of
every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316 (1979). When this Court 8
considers this type of sufficiency argument, we apply the Jenks standard to all of the evidence
presented at trial. See Maxwell at ¶ 12-13.
{¶19} Mr. Doss did not move for a judgment of acquittal under Crim.R. 29(A) at the
close of the State’s case, but he has argued on appeal that his conviction rests on insufficient
evidence. His failure to move for a judgment of acquittal did not forfeit his sufficiency argument
for purposes of appeal. See State v. Feaster, 9th Dist. Summit No. 26239, 2012-Ohio-4383, ¶ 5.
Although this Court may consider all of the evidence presented at trial in connection with this
sufficiency argument, see Maxwell at ¶ 12-13, we note that the evidence presented in the State’s
case-in-chief, standing alone, is sufficient to support Mr. Doss’s conviction.
{¶20} 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.” “Physical harm” is defined as “any
injury, illness, or other physiological impairment, regardless of its gravity or duration.” R.C.
2901.01(A)(3).
{¶21} Officer Festa testified that he responded to Mr. Doss’s neighborhood after a 911
caller reported an altercation between A.V. and her boyfriend. When he arrived at the scene, he
found A.V. walking barefoot in the vicinity of Mr. Doss’s residence. Officer Festa observed that
she appeared to be “hysterical” and to have left her previous location in haste. He observed red
marks around her neck on both sides and fresh abrasions on her left shoulder. When Officer
Festa asked A.V. what had happened, she told him that her boyfriend, Mr. Doss, had grabbed her
around the neck and dragged her around the bedroom. Officer Festa also photographed A.V.’s
injuries, and those photographs were submitted at trial. Officer Daniel Whitmore, who assisted
with the investigation, testified that Mr. Doss and A.V. lived together. 9
{¶22} Based on this evidence, the trier of fact could reasonably conclude beyond a
reasonable doubt that Mr. Doss caused physical harm to A.V., who resided in his household. Mr.
Doss’s conviction for domestic violence is based on sufficient evidence, and his third assignment
of error is overruled.
ASSIGNMENT OF ERROR NO. 2
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE A CRIMINAL RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL AFTER THE CLOSE OF THE STATE’S CASE IN CHIEF.
{¶23} In his second assignment of error, Mr. Doss argues that trial counsel provided
ineffective assistance on two additional grounds. This Court disagrees.
{¶24} Mr. Doss’s first argument is that trial counsel provided deficient performance by
failing to move for a judgment of acquittal at the close of the State’s case. In order to
demonstrate ineffective assistance of counsel, a defendant most show not only deficiency on the
part of trial counsel, but that any deficiency was “so serious as to deprive the defendant of a fair
trial[.]” Strickland, 466 U.S. at 687. In this respect, a defendant must demonstrate prejudice by
showing that, but for counsel’s errors, there is a reasonable possibility that the outcome of the
trial would have been different. Id. at 694. This Court has concluded that the State presented
sufficient evidence in its case-in-chief to support Mr. Doss’s conviction for domestic violence.
Given that conclusion, Mr. Doss cannot establish that the outcome of his trial would have been
different had he moved for a judgment of acquittal after the State presented its evidence.
{¶25} Mr. Doss’s second argument is that trial counsel’s performance was deficient
because he permitted Mr. Doss to testify in his own defense and placed his credibility at issue
despite the fact that, in his estimation, the State produced insufficient evidence to support a
conviction. As noted above, Mr. Doss’s conviction is supported by sufficient evidence. In 10
addition, in applying the Strickland test, “a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance[.]”
Strickland at 689. Tactical decisions, however, do not rise to the level of ineffective assistance.
State v. Bradley, 42 Ohio St.3d 136, 144 (1989). “The advice provided by [counsel] to his or her
client regarding the decision to testify is ‘a paradigm of the type of tactical decision that cannot
be challenged as evidence of ineffective assistance.’” State v. Winchester, 8th Dist. Cuyahoga
No. 79739, 2002-Ohio-2130, ¶ 12, quoting Hutchins v. Garrison, 724 F.2d 1425, 1436 (4th
Cir.1983). Without evidence in the record suggesting that a defendant’s decision to testify
resulted from coercion, this tactical decision will not sustain a claim of ineffective assistance.
State v. Garrison, 5th Dist. Muskingum No. CT2017-0018, 2018-Ohio-463, ¶ 36. The record in
this case does not suggest that Mr. Doss was coerced to testify, nor has he made this argument on
appeal. Without such support, Mr. Doss cannot demonstrate ineffective assistance with regard to
his testimony at trial.
{¶26} Mr. Doss’s second assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 4
MR. DOSS’S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶27} In his fourth assignment of error, Mr. Doss argues that his conviction for domestic
violence is against the manifest weight of the evidence.
{¶28} When considering whether a conviction is against the manifest weight of the
evidence, this Court must:
review 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. 11
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for
the exceptional case in which the evidence weighs heavily against the conviction. Id., citing
State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶29} Mr. Doss’s fourth assignment of error is premised upon the success of his first
and sixth: he argues that A.V.’s statements to Officer Festa were testimonial hearsay and that
without those statements, “[a]ll that remains is photographs depicting marks on the accuser, and
the defendant’s explanation for those marks.” A.V.’s statements were properly admitted,
however. Officer Festa testified that he found her “visibly upset” near Mr. Doss’s home, that she
bore recent injuries, and that in response to his initial inquiry, she told him that Mr. Doss placed
his hands around her throat and dragged her through their bedroom. Mr. Doss did not deny that
he caused A.V.’s injuries. Instead, he testified that they were inflicted earlier in the day with
A.V.’s consent during a sexual encounter.
{¶30} This Court must “consider[] the credibility of witnesses” as part of our manifest
weight review. Thompkins, 78 Ohio St.3d at 387, quoting Martin at 175. Nonetheless, this
Court is mindful of the well-established principle that a trier of fact enjoys the best position to
assess the credibility of witnesses. State v. Rivera, 9th Dist. Lorain No. 18CA011263, 2019-
Ohio-62, ¶ 39, quoting State v. Johnson, 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15.
Given the evidence in this case, this Court cannot conclude that this is the exceptional case in
which the evidence weighs heavily against the conviction.
{¶31} Mr. Doss’s fourth assignment of error is overruled.
III.
{¶32} Mr. Doss’s assignments of error are overruled. The judgment of the Wayne
County Municipal Court is affirmed. 12
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN FOR THE COURT
SCHAFER, P. J. CARR, J. CONCUR.
APPEARANCES:
PATRICK L. BROWN, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA R. UHLER, Assistant Prosecuting Attorney, for Appellee.