[Cite as State v. Hendricks, 2012-Ohio-1924.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
STATE OF OHIO, : Case No. 11CA3253 : Plaintiff-Appellee, : : DECISION AND v. : JUDGMENT ENTRY : JUSTIN K. HENDRICKS, : : RELEASED 04/30/12 Defendant-Appellant. : ______________________________________________________________________ APPEARANCES:
Jonathan D. Schmidt, Benson & Schmidt, LLP, Chillicothe, Ohio, for appellant.
Matthew S. Schmidt, Ross County Prosecutor, and Richard W. Clagg, Ross County Assistant Prosecutor, Chillicothe, Ohio, for appellee. ______________________________________________________________________ Harsha, J.
{¶1} Justin Hendricks appeals his conviction for felonious assault, which
resulted from an incident where Hendricks punched a girl in the face, breaking her jaw.
Hendricks contends that the trial court erred when it refused on hearsay grounds to let
him impeach the victim with her prior inconsistent statements. Although we agree that
the trial court erred in sustaining the prosecution’s objection on hearsay grounds, the
record gives no indication that the victim’s trial testimony was inconsistent with the prior
statement Hendricks wanted to use for impeachment. Therefore, the prior statement
was not admissible for impeachment purposes and we reject this argument.
{¶2} Hendricks also argues that the trial court erred by not instructing the jury
on aggravated assault, an inferior degree of felonious assault. Because Hendricks did
not request an aggravated assault instruction or object after the court sua sponte raised
the issue and decided against giving the instruction, he has forfeited all but plain error. Ross App. No. 11CA3253 2
Here, Hendricks failed to rebut the presumption that trial counsel made a strategic
decision not to seek the instruction in hopes of obtaining an acquittal on felonious
assault and at worst having Hendricks convicted of the lesser included offense of simple
assault. A defendant may not rely on the plain error rule to evade the consequences of
his own trial strategy. Accordingly, we reject Hendricks’ argument and affirm the trial
court’s judgment.
I. Facts
{¶3} After the Ross County grand jury indicted Hendricks on one count of
felonious assault of a 15 year old girl, Hendricks pleaded not guilty to the charge. The
matter proceeded to a jury trial, which produced the following evidence.
{¶4} The victim, C.R., testified that one afternoon her friend S.L.’s grandma
dropped the two girls off at a McDonald’s. There they met S.L.’s friend Whitney.
Initially, C.R. testified that she and S.L. walked to a person named Danny’s house. But
subsequently she testified that Whitney dropped the girls off at the house. Once there,
C.R. and S.L. hung out and drank alcohol with Hendricks and Danny. Eventually the
men left, and the girls fell asleep. Later the men came back and woke them up. Then
the foursome started “just messing around, and then [the men] took it a little bit too
serious, [Hendricks] pushed [S.L.].” C.R. told Hendricks not to put his hands on S.L.,
and Hendricks punched C.R. in the face with a closed fist, breaking her jaw. C.R.
testified that after the punch, S.L. put her hands on Hendricks in some manner. Then
the girls walked to a gas station to call an ambulance. On cross-examination, C.R.
testified that she did not remember telling police that S.L.’s grandma dropped the girls
off at Danny’s house. C.R. did admit that the girls were not supposed to be at the Ross App. No. 11CA3253 3
house. C.R. also acknowledged that her memory of the evening was a little blurry
because of the alcohol she drank.
{¶5} S.L., also age 15, testified that her grandma took her and C.R. to a
McDonald’s where they met Whitney. After Whitney left the restaurant, the girls walked
to the house where Hendricks and Danny lived. Once there, the girls sat around with
the men. The group eventually went out to get alcohol and came back to the house to
drink it. S.L. acknowledged that she became intoxicated. Hendricks and Danny left
while the girls went to sleep. When the men came back, Hendricks pulled the mattress
out from underneath the girls. C.R. stood up and started to yell. S.L. stood up and
Hendricks pushed her. After C.R. started to yell and curse at Hendricks, he punched
her in the jaw with a closed fist. Then S.L. choked Hendricks. S.L. claimed that C.R.
never hit or pushed Hendricks. The girls went to a Speedway to call an ambulance and
police.
{¶6} Officer Tad Franklin of the Chillicothe Police Department testified that he
responded to a call from a Speedway regarding a possible injury. When he arrived, he
saw C.R. and S.L. and observed that C.R. had an obvious injury to her right jaw.
Franklin testified that neither girl appeared intoxicated. On cross-examination, Franklin
testified that the girls gave him the following order of events: Hendricks shoved the
victim, S.L. choked Hendricks, the victim shoved Hendricks, and Hendricks punched the
victim. On redirect examination, Hendricks testified that both girls “stated that they were
joking around with Mr. Hendricks and that’s when he took it the wrong way and became
angry and called them names and either [the victim] or [S.L.] shoved him * * *.”
Subsequently Franklin testified that only S.L. gave him that information. Ross App. No. 11CA3253 4
{¶7} The trial court instructed the jury on felonious assault and the lesser
included offense of assault. The jury returned a verdict for felonious assault and this
appeal followed.
II. Assignments of Error
{¶8} Hendricks assigns two errors for our review:
I. The trial court erred in prohibiting cross examination of a witness regarding prior inconsistent statements she herself made.
II. The trial court erred by failing to instruct the jury on aggravated assault.
III. Admissibility of Prior “Inconsistent” Statements
{¶9} In his first assignment of error, Hendricks contends that the trial court
incorrectly relied on hearsay as a basis for preventing him from impeaching the victim
with her prior inconsistent statements. Generally an appellate court will not disturb a
trial court’s ruling on the admissibility of evidence absent an abuse of discretion. State
v. Blevins, 4th Dist. No. 10CA3353, 2011-Ohio-3367, ¶ 31.
{¶10} Evid.R. 801(C) defines hearsay as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.” Hendricks contends that the court erred when it excluded
C.R.’s prior “inconsistent” statements because they were not offered to prove the truth
of the matter asserted; rather they were offered to impeach her credibility under Evid.R.
613 “by simply demonstrating for the jury that she made different statements at different
times.” (Appellant’s Br. 9). Hendricks claims the court’s error appears in the following
portion of the trial transcript:
[DEFENSE]: AND IF I’M NOT MISTAKEN, [S.L.’S] GRANDMA THOUGHT THAT YOU AND [S.L.] WERE GOING TO BE SPENDING Ross App. No. 11CA3253 5
THE EVENING WITH WHITNEY, DIDN’T SHE?
[PROSECUTION]: OBJECTION YOUR HONOR.
***
THE COURT: LET’S APPROACH.
BENCH CONFERENCE WITH COUSEL [sic]
THE COURT: BASIS?
[PROSECUTION]: NOT SURE I SEE THE RELEVANCE OF WHAT [S.L.’S] GRANDMOTHER THOUGHT. WE ALREADY KNEW WHAT THESE KIDS WERE DOING. IT DOESN’T GO TO ANY AFFIRMATIVE DEFENSE OR TOWARD THE ACT.
[DEFENSE]: AS I UNDERSTAND IT BOTH [THE VICTIM] AND [S.L.], THEY GAVE TWO (2) COMPLETELY STORY TO THE POLICE WHEN THEY FIRST HAD CONTACT WITH THE POLICE AS TO HOW THEY GOT TO THESE BOYS’ HOUSE TO BEGIN WITH. THEY TOLD THE POLICE THAT [S.L.’S] GRANDMA DROPPED THEM OFF AT THE HOUSE. [S.L.’S] GRANDMA DIDN’T DROP THEM OFF AT THE HOUSE, SHE DROPPED THEM OFF AT MCDONALD’S.
(INAUDIBLE CONVERSATION)
THE COURT: (INAUDIBLE) THE ANSWER YOU COULDN’T HEAR, I THOUGHT SHE SAID THAT. I DON’T KNOW.
[DEFENSE]: I HEARD HER SAY THEY WALKED, THAT WAS PART OF WHAT THE JURY WASN’T ABLE TO HEAR. MY POINT IS SHE SAID ONE THING TO THE POLICE, (INAUDIBLE) GOES TOWARD CREDIBILITY.
THE COURT: YOU CAN ASK HER, BUT I’M NOT SURE YOU’RE GOING GET EXTRINSIC EVIDENCE INTO THAT FACT, SO I’LL LET YOU ASK THE QUESTION.
[PROSECUTION]: THE QUESTION HERE IS STILL GETS INTO THE GRANDMOTHER’S STATE OF MIND. THAT DOESN’T HAVE ANYTHING TO DO WITH THEIR STATEMENTS.
THE COURT: IT DOESN’T. WHAT THE GRANDMOTHER THOUGHT CORRECT. THAT QUESTION IS IMPERMISSIBLE WAS TO WHAT---- Ross App. No. 11CA3253 6
[DEFENSE]: I CAN RE-ASK THAT.
BENCH CONFERENCE CONCLUDED.
THE COURT: I’LL SUSTAIN THE OBJECTION
[DEFENSE]: WHEN YOU AND YOUR FRIEND [S.L.] GOT DROPPED OFF AT MCDONALD’S, DID YOU TELL [S.L.’S] GRANDMA THAT YOU WERE GOING TO BE SPENDING THE NIGHT WITH WHITNEY?
[PROSECUTION]: OBJECTION
THE COURT: SUSTAINED.
[DEFENSE]: APPROACH
THE COURT: SURE[.]
BENCH CONFERENCE WITH COUNSEL:
[DEFENSE]: I’M NOT SURE I UNDERSTAND.
THE COURT: IT’S A STATEMENT MADE OUT OF COURT NOT OF CROSS EXAMINATION, IT’S HEARSAY.
[DEFENSE]: I’M ASKING HER----
THE COURT: THERE’S NO EXCEPTION TO HEARSAY RULE FOR THE WITNESS SAID.
[DEFENSE]: OKAY.
{¶11} It does not appear that Hendricks appeals the trial court’s ruling on the first
objection to the question about who S.L.’s grandma thought the girls were spending the
evening with because the court did not sustain that objection “on hearsay grounds.”
(Appellant’s Br. 9). In response to the prosecutor’s objection, defense counsel argued
that the victim made prior inconsistent statements about how the girls got to the house.
But defense counsel did not ask the victim about her own statements on how she got to Ross App. No. 11CA3253 7
the house. Rather, defense counsel initially asked the victim about S.L.’s grandma’s
state of mind. This is a matter that required speculation. C.R. did not have personal
knowledge of this matter as Evid.R. 602 requires, so the question was clearly
objectionable. And in response to the prosecution’s argument, defense counsel
indicated that he would rephrase the question. And in fact the second question, which
is the real focus of this assignment of error, did ask C.R. about a prior statement she
purportedly made. Defense counsel asked the victim if she told S.L.’s grandma that the
girls were spending the night with Whitney. The prosecutor objected, and the court
sustained the objection on hearsay grounds.
{¶12} We agree that the court erred when it sustained the objection on hearsay
grounds. Hendricks contends that he did not seek admission of the statement to prove
the truth matter of the asserted, but rather to prove that the victim made the statement
and it was inconsistent with other statements she made. “If the relevance of an out-of-
court statement is that the statement was made, rather than the truth of the assertion
contained in the statement, the statement is not hearsay.” 2 Giannelli, Giannelli
Evidence, Section 801.7 (3d. Ed.2010). See State v. Williams, 38 Ohio St.3d 346, 348,
528 N.E.2d 910 (1988) (“A statement is not hearsay if it is admitted to prove that the
declarant made it, rather than to prove the truth of its contents.”). See also State v.
Bittner, 12th Dist. No. CA2001-01-009, 2002 WL 4493 (Dec. 31, 2001) (holding out of
court statements admissible where not offered to prove the truth of the matters asserted
but offered for another purpose, i.e., their consistency implied that the declarants
planned, prior to police arrival, to conceal what really happened).
{¶13} At trial, defense counsel did not take the position that C.R. never saw Ross App. No. 11CA3253 8
Hendricks the evening in question but instead argued that the altercation did not occur
as the girls testified it did. Therefore, defense counsel clearly was not asking C.R.
whether she told S.L.’s grandma that the girls were going to be spending the night with
Whitney to prove the girls in fact spent the night with Whitney. Defense counsel asked
about the statement to prove C.R. made it. Because defense counsel did not try to offer
the statement to prove the truth of the matter asserted, the trial court erred in sustaining
the objection on hearsay grounds.
{¶14} But because there is no evidence of an inconsistency between C.R.’s trial
testimony and her alleged prior statement to S.L.’s grandma, impeachment by self-
contradiction under Evid.R. 613 was not available to Hendricks. The underlying
rationale of Evid R. 613 is self-contradiction. It generally involves the use of the
witness’s own statement to contradict her present testimony. Without evidence of an
inconsistency, or contradiction, the prior statement is properly excluded. See Giannelli
Evidence at Section 613.4, citing State v. Mack, 73 Ohio St.3d 502, 514, 653 N.E.2d
329 (1995). Here, when defense counsel asked the question C.R. had not given any
testimony about statements either of the girls had given to S.L.’s grandma. Obviously,
without some testimony on that area, there could be no inconsistency with a prior
statement. The inconsistent statements defense counsel previously mentioned were
the victim’s statements about how she got to the house. Defense counsel never pointed
to any trial testimony concerning what C.R. told S.L.’s grandma about the girls’ plans
that evening. That’s because nothing in the record suggests the victim gave any
testimony on this issue at this point in the proceedings. Therefore, even though the trial
court erred when it sustained the objection on hearsay grounds, the court did not Ross App. No. 11CA3253 9
erroneously prohibit Hendricks from cross-examining the victim regarding prior
inconsistent statements under Evid.R. 613.
{¶15} Hendricks could have argued that defense counsel’s question was
permissible under Evid.R. 608. The rule provides that “[s]pecific instances of the
conduct of a witness, for the purpose of attacking or supporting the witness’s character
for truthfulness, * * * may not be proved by extrinsic evidence. They may, however, in
the discretion of the court, if clearly probative of truthfulness or untruthfulness, be
inquired into on cross-examination of the witness (1) concerning the witness’s character
for truthfulness or untruthfulness * * *.” Evid.R. 608(B). Defense counsel might have
asked C.R. about her statement to the grandma in an effort to show that C.R. was a liar
because she lied to S.L.’s grandma about the girls’ plans. However, Hendricks did not
raise this argument at the trial level or on appeal. Moreover, the trial transcript indicates
that C.R. later testified that the girls were not supposed to be at the house that evening.
The jury could infer from this testimony that C.R. lied to someone about her plans.
{¶16} Moreover, we note that defense counsel did eventually ask the victim,
without objection, about what she told police as to how the girls got to the house. C.R.
testified that she did not remember telling police that S.L.’s grandma dropped the girls
off there. She acknowledged that her memory of the evening was a little blurry due to
the alcohol she drank. The jury could certainly use this information to evaluate the
victim’s credibility, along with the fact that during trial she gave two different accounts of
how the girls got the house – first testifying that the girls walked and later claiming that
Whitney dropped them off. Therefore, we overrule the first assignment of error.
IV. Jury Instruction on Aggravated Assault Ross App. No. 11CA3253 10
{¶17} In his second assignment of error, Hendricks contends that the trial court
erred when it decided not to instruct the jury on aggravated assault as a “lesser included
offense” of felonious assault. Generally, we use a de novo review to determine whether
the court’s jury instructions charge on all relevant questions of the law that the evidence
supports. State v. Brown, 4th Dist. No. 09CA3, 2009-Ohio-5390, ¶ 34. The actual
wording and format of the instructions are within the trial court’s discretion. Id.
{¶18} However, the State contends that Hendricks failed to raise his argument at
the trial level and has forfeited all but plain error. We agree. Hendricks did not file
proposed jury instructions with the court. Although Hendricks claims that “[i]t is easily
derived from the transcript that the defense [requested] a jury instruction on aggravated
assault” the record gives no indication that Hendricks made such a request. Instead, it
appears from the trial transcript that the court raised the possibility of an aggravated
assault instruction sua sponte.
{¶19} Hendricks points to this Court’s statement in Buskirk v. Harrell, 4th Dist.
No. 99CA31, 2000 WL 943782, *8 (June 28, 2000) that “[g]enerally, errors which arise
during the course of a trial, which are not brought to the attention of the court by
objection or otherwise, are waived and may not be raised upon appeal.” Hendricks
claims that the fact that the trial court explained why it did not believe an aggravated
assault instruction was warranted indicates that “the trial court’s attention was given to
the issue of an aggravated assault instruction,” so he did not have to object to preserve
his argument for appeal. (Appellant’s Br. 11). This argument ignores the plain
language in Buskirk that the error complained of on appeal must be brought to the trial
court’s attention. Because Hendricks failed to alert the trial court to any error in its Ross App. No. 11CA3253 11
decision to not give an aggravated assault instruction, he has forfeited all but plain error.
{¶20} “Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” Crim.R. 52(B). “A silent
defendant has the burden to satisfy the plain-error rule[,] and a reviewing court may
consult the whole record when considering the effect of any error on substantial rights.”
State v. Davis, 4th Dist. No. 06CA21, 2007-Ohio-3944, ¶ 22, citing United States v.
Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). For a reviewing court to
find plain error: 1.) there must be an error, i.e., “a deviation from a legal rule”; 2.) the
error must be plain, i.e., “an ‘obvious’ defect in the trial proceedings”; and 3.) the error
must have affected “substantial rights,” i.e., it must have affected the outcome of the
proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
Furthermore, the Supreme Court of Ohio has admonished courts that notice of plain
error under Crim.R. 52(B) is to be taken “‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’” Id., quoting State
v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶21} R.C. 2903.12, the aggravated assault statute, provides:
(A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly:
(1) Cause serious physical harm to another * * *.
“Aggravated assault is not a lesser-included offense of the offense of felonious assault.”
State v. Searles, 8th Dist. No. 96549, 2011-Ohio-6275, ¶ 18. “Instead, aggravated
assault is an inferior degree of felonious assault because its elements are identical to or
contained within the offense of felonious assault, coupled with the additional presence Ross App. No. 11CA3253 12
of one or both mitigating circumstances of sudden passion or a sudden fit of rage
brought on by serious provocation occasioned by the victim.” Id. “In other words,
aggravated assault is the same conduct as felonious assault but its nature and penalty
are mitigated by provocation.” State v. Parnell, 10th Dist. 11AP-257, 2011-Ohio-6564, ¶
20.
{¶22} Even if we assume, without deciding, that Hendricks qualified for an
aggravated assault instruction, we cannot find plain error in the court’s failure to instruct
the jury on this offense. In a trial for felonious assault, where the defendant presents
sufficient evidence of serious provocation, the trial court has a duty to instruct the jury
on aggravated assault. See State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988),
paragraph four of the syllabus. However, the defendant retains the right to waive such
an instruction and seek acquittal on the charged offense rather than invite conviction on
an inferior degree of the charged offense. See by way of analogy State v. Clayton, 62
Ohio St.2d 45, 47, 402 N.E.2d 1189 (1980), fn. 2 (explaining that while the trial court
has a duty to instruct the jury on a lesser included offense when appropriate, the
defendant retains the right to waive the instruction). Thus, Hendricks could make the
tactical decision not to request an instruction on aggravated assault.
{¶23} A failure to request a jury instruction on an inferior degree of an offense is
presumed to be a matter of trial strategy. State v. Walker, 4th Dist. No. 99CA2494,
2000 WL 875954, *4 (June 26, 2000). A defendant may not rely on the plain error rule
to evade the consequences of his own trial strategy. State v. Noggle, 140 Ohio App.3d
733, 745, 749 N.E.2d 309 (3rd Dist. 2000) (“[P]lain error cannot be used to negate a
deliberate, tactical decision by trial counsel.”). See by way of analogy State v. Claytor, Ross App. No. 11CA3253 13
61 Ohio St.3d 234, 240, 574 N.E.2d 472 (1991) (“What appears to have been a tactical
decision in this case during the trial [to not to try the case on the theory of or request an
instruction on a lesser included offense] cannot now be converted into judicial error.”).
{¶24} Hendricks has not rebutted the presumption of trial strategy. As we
explained above, the record gives no indication trial counsel sought an aggravated
assault instruction. And the fact that counsel remained silent when the court sua sponte
raised the issue and decided not to give the instruction only bolsters the presumption
that counsel made a strategic decision to not pursue the instruction. Hendricks cannot
complain that the trial court committed plain error where counsel apparently was
seeking an acquittal on felonious assault (a second-degree felony) and at worst a
conviction for simple assault (a first-degree misdemeanor), rather than inviting a
conviction on aggravated assault (a fourth-degree felony). R.C. 2903.11(D)(1)(a); R.C.
2903.13(C); R.C. 2903.12(B).
{¶25} Accordingly, we find no error in the trial court’s failure to instruct the jury
on aggravated assault. In the absence of error, a plain error argument becomes
meritless. We overrule the second assignment of error.
V. Conclusion
{¶26} We overrule both of Hendricks’ assignments of error and affirm the trial
JUDGMENT AFFIRMED. Ross App. No. 11CA3253 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J.: Concurs in Judgment and Opinion. McFarland, J.: Concurs in Judgment and Opinion as to Assignment of Error II; Concurs in Judgment Only as to Assignment of Error I.
For the Court
BY: ____________________________ William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.