State v. Hirschy

2023 Ohio 3204

• Court: Ohio Court of Appeals
• Decided: September 11, 2023
• Docket: 1-22-44
• Status: Published

Opinion

[Cite as State v. Hirschy, 2023-Ohio-3204.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-22-44

v.

CRAIG A. HIRSCHY, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR2021 0439

Judgment Affirmed

Date of Decision: September 11, 2023

APPEARANCES:

Christopher R. Bucio for Appellant

John R. Willamowski, Jr. for Appellee Case No. 1-22-44

ZIMMERMAN, J.

{¶1} Defendant-appellant, Craig A. Hirschy (“Hirschy”), appeals his

conviction for aggravated burglary. For the reasons that follow, we affirm.

{¶2} This case stems from an assault by Hirschy on Thomas Blair (“Blair”)

over Blair’s relationship with Ashley Baxter (“Baxter”), Hirschy’s ex-girlfriend. In

the evening hours of December 6, 2021, Hirschy entered Blair’s residence in Allen

County through an unlocked backdoor while Blair was asleep on his sofa. Blair was

awoken by Hirschy (who was kneeling on his chest) punching him in his face

causing him physical harm. Thereafter, Hirschy demanded Blair’s cellphone and

the pin number to open it. Hirschy gained access to the phone and deleted a

voicemail message that he left Blair on October 21, 2021. After throwing the phone

to the ground, Hirschy exited through Blair’s backdoor.

{¶3} On January 13, 2022, the Allen County Grand Jury indicted Hirschy for

aggravated burglary, in violation of R.C. 2911.11(A)(1), (B), a first-degree felony.

On January 21, 2022, Hirschy appeared for arraignment and entered a not guilty

plea.

{¶4} Hirschy proceeded to a jury trial on May 2 and 3, 2022, where he was

found guilty of aggravated burglary.

{¶5} On June 30, 2022, the trial court sentenced Hirschy to an indefinite

minimum prison term of four years to a maximum prison term of six years.

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{¶6} Hirschy filed a timely notice of appeal and raises two assignments of

error for our review, which we will address separately and out of order.

Second Assignment of Error

The trial court committed plain error in allowing the testimony of Deputy Douglas Wuebker, without the State providing the defense notice of their intent to use these “other acts” in his Allen County trial and the trial court failing [sic] to conduct an analysis as to the admissibility of these “other acts”.

{¶7} In his second assignment of error, Hirschy raises two arguments. First,

he argues that the trial court erred when it permitted the admission of other-acts

evidence without requiring the State to provide notice of their intent to use other-

acts evidence in advance of trial. Secondly, he argues that the trial court failed to

conduct any analysis as to the admissibility of the other-acts evidence.

Standard of Review

{¶8} Generally, the admission or exclusion of evidence lies within the trial

court’s discretion, and a reviewing court should not reverse absent an abuse of

discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-

2815, ¶ 62. An abuse of discretion implies that the trial court acted unreasonably,

arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157.

{¶9} Significantly, Hirschy did not object to the trial court’s admission of the

purported other-acts evidence (at trial) on any basis. See Evid.R. 103(A)(1). “[I]f

the party wishing to exclude evidence fails to contemporaneously object at trial

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when the evidence is presented, that party waives for appeal all but plain error.”

State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 53-54, citing State

v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 59-60, State v. Barrett, 4th Dist.

Scioto No. 03CA2889, 2004-Ohio-2064, ¶ 20, and State v. Lenoir, 2d Dist.

Montgomery No. 22239, 2008-Ohio-1984, ¶ 19. See Evid.R. 103(D).

{¶10} “Crim.R. 52(B) governs plain-error review in criminal cases.” Bagley

at ¶ 55, citing State v. Risner, 73 Ohio App.3d 19, 24 (3d Dist.1991). “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 finding of plain error is three-fold,

requiring (1) an error or deviation from law, (2) that the error is plain, or an obvious

defect in the proceedings, and (3) that the error affected “substantial rights,” altering

the outcome of the trial. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 16,

citing State v. Barnes, 94 Ohio St.3d 21, 27 (2002). The burden is on the party

asserting plain error to demonstrate such error. Id. at ¶ 17, citing State v. Jester, 32

Ohio St.3d 147, 150 (1987).

{¶11} We “recognize[] plain error with the utmost caution, under exceptional

circumstances, and only to prevent a miscarriage of justice.” State v. Smith, 3d Dist.

Hardin No. 6-1414, 2015-Ohio-2977, ¶ 63, citing State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, ¶ 139 and State v. Saleh, 10th Dist. Franklin No. 07AP-431, 2009-

Ohio-1542, ¶ 68. “We may reverse [under plain-error review] only when the record

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is clear that defendant would not have been convicted in the absence of the improper

conduct.” Id., citing State v. Williams, 79 Ohio St.3d 1, 12 (1997). Accordingly,

we will review all of Hirschy’s arguments under his second assignment of error for

plain error.

Analysis

{¶12} We begin by addressing whether Dep. Wuebker testified regarding

other-acts evidence, and if so, whether the admission of that evidence constitutes a

deviation of the law. In this case, Dep. Wuebker testified that the Mercer County

dispatch received two “anonymous” 9-1-1 calls reporting a drunk driver on

Carthagena Road in Mercer County. Dep. Wuebker testified that he was able to

identify the “anonymous” caller as Hirschy by cross-referencing Hirschy’s phone

number with the caller-identification from dispatch.1 The record reveals that

Hirschy was attempting to implicate Baxter as the drunk driver. According to Dep.

Wuebker, Hirschy admitted he was able to track Baxter’s cellphone to Speedway

Lanes in New Bremen, Auglaize County by virtue of her sharing her location with

his cellphone. Dep. Wuebker stated that Hirschy told him that he and Baxter were

broken up, and that he (Hirschy) went to Speedway Lanes because he wanted to

return Baxter’s key to her.2 Dep. Wuebker testified that Baxter came in contact with

1 Baxter provided Dep. Wuebker with Hirschy’s cellphone number. 2 Following a Christmas party hosted by their employer, Hirschy observed Baxter and Blair (coworkers) holding hands and briefly share a kiss as they exited the bowling alley.

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Hirschy at Speedway Lanes nearly hitting her vehicle with his vehicle. According

to Dep. Wuebker, Hirschy then began tailgating Baxter and trying to run her off the

roadway as she proceeded to her home in Mercer County, Ohio. However, through

his investigation, Dep. Wuebker learned that Hirschy’s vehicle had collided with a

fence post on Carthagena Road during his interactions with Baxter.

{¶13} Dep. Wuebker’s testimony (regarding these events occurring in

Auglaize and Mercer Counties) was necessary because it provided the trier of fact

with a complete picture of what happened between Hirschy and Baxter on

December 6, 2021 and because it formed the immediate background of the crime of

which Hirschy was charged with in Allen County. Further, the testimony of Dep.

Wuebker aided the trier of fact in their understanding of the crime. See State v.

Wainscott, 12th Dist. Butler No. CA2015-07-056, 2016-Ohio-1153, ¶ 19, quoting

State v. Davis, 64 Ohio App.3d 334, 340 (12th Dist.1989), citing State v. Wilkinson,

64 Ohio St.2d 308, 318 (1980). See also State v. Lester, 3d Dist. Union Nos. 14-

18-21 and 14-18-22, 2020-Ohio-2988, ¶ 43.

{¶14} In State v. Lester, we concluded that Evid.R. 404(B) only applies to

“[e]vidence of other crimes, wrongs, or acts” extrinsic to the charged offense and

not those crimes, wrongs, or acts that are intrinsic to the offense since they are

outside the scope of Evid.R. 404(B). (Emphasis sic.) Lester at ¶ 43, citing 404(B).

In this case, as in Lester, the crimes, wrongs, or acts testified to by Dep. Wuebker

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were intrinsic to the instant offense. See id., citing State v. Hill, 5th Dist. Stark No.

2018CA00077, 2019-Ohio-3432, ¶ 51-52, citing Jordan v. Dayton Testing Lab., 2d

Dist. Montgomery No. 19741, 2004-Ohio-2425, ¶ 48 and United States v. Siegel,

536 F.3d 306, 316 (4th Cir.2008).

{¶15} Here, Hirschy has failed to establish how this evidence demonstrates

“evidence of other crimes, wrongs, or acts” bringing it within the scope of Evid.R.

404(B). See Lester at ¶ 43, citing Hill at ¶ 51-52, citing Jordan at ¶ 48, citing Seigel

at 316. Thus, the record supports that the events in Auglaize and Mercer Counties

are “inextricably intertwined” with Hirschy’s offense, and therefore, are intrinsic to

the aggravated-burglary charge in Allen County.

{¶16} Accordingly, Dep. Wuebker’s testimony did not involve extrinsic acts,

but rather acts intrinsic to the charged offense, and based upon our review of the

record, we conclude that there is no error or deviation from the law and that plain

error does not exist under the facts presented.

{¶17} Hirschy’s second assignment of error is overruled.

First Assignment of Error

Counsel was ineffective for failing to object to evidence for which no 404(b) notice was given, and waiving time in a Celina Municipal Court case that ultimately had a substantial impact on his trial in Allen County Common Pleas Court.

{¶18} In Hirschy’s first assignment of error, he argues that he received

ineffective assistance of counsel. Specifically, Hirschy argues that his trial counsel

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failed to object to the admission of other-acts evidence when no notice of intent to

use other-acts evidence was provided by the State in advance of trial, and that trial

counsel executed a speedy-trial waiver (in Celina Municipal Court) without

Hirschy’s consent.

{¶19} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064 (1984). A properly licensed attorney is presumed

competent. State v. Hamblin, 37 Ohio St.3d 153, 155-156 (1988). Therefore, in

order to show trial counsel’s conduct was deficient or unreasonable, the defendant

must overcome the presumption that counsel provided competent representation and

must show that counsel’s actions were not trial strategies prompted by reasonable

professional judgment. Strickland at 687, 104 S.Ct. at 2052. Counsel is entitled to

a strong presumption that all decisions fall within the wide range of reasonable

professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or

strategic trial decisions, even if unsuccessful, do not generally constitute ineffective

assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995). Rather, the errors

complained of must amount to a substantial violation of counsel’s essential duties

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to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989), quoting State

v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on other grounds, Lytle v.

Ohio, 438 U.S. 910, 98 S.Ct. 3135 (1978).

{¶20} “Prejudice results when ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting

Bradley at 142, citing Strickland at 691, 104 S.Ct. at 2052. “‘A reasonable

probability is a probability sufficient to undermine confidence in the outcome.’” Id.,

quoting Bradley at 142 and citing Strickland at 694, 104 S.Ct. at 2067-2068.

{¶21} As an initial matter, we must address Hirschy’s attachment of Exhibit

C (his trial attorney’s statement of fees), Exhibit D (Hirschy’s affidavit dated Feb.

27, 2023), Exhibit E (waiver of trial time limits in Celina Municipal Court, case

number 21CRB00574), and Exhibit F (a summary and docket print out also from

case number 21CRB00574) as an appendix to his brief as support for his first

assignment of error. We (as an appellate court) are confined to the record on appeal.

See App.R. 9. The record on appeal is comprised of the following:

(1) The original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases.

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(2) The trial court shall ensure that all proceedings of record are recorded by a reliable method, which may include a stenographic/shorthand reporter, audio-recording device, and/or video-recording device. The selection of the method in each case is in the sound discretion of the trial court[] * * *.

App.R. 9(A)(1)-(2). Significantly, the appendix of a brief is not considered part of

the record on appeal. See State v. Burgett, 3d Dist. Marion No. 9-10-37, 2010-Ohio-

5945, ¶ 30; App.R. 9(A). Moreover “[i]t is well established, [ ] that ‘“‘[a] reviewing

court cannot add matter to the record before it, which was not a part of the trial

court’s proceedings, and then decide the appeal on the basis of the new matter.’”’”

State ex rel. Municipal Construction Equipment Operators’ Labor Council v.

Cleveland, 162 Ohio St.3d 195, 2020-Ohio-3197, ¶ 19, quoting State ex rel.

Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, ¶

20, quoting State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728,

730 (1995), quoting State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of

the syllabus. Because these documents were not included in the original papers and

exhibits filed in the trial court, we will not consider Exhibits C, D, E, and F that

were submitted by the appellant in the appendix attached to his merit brief.

{¶22} Next, we consider the first portion of Hirschy’s argument relating to

his trial counsel’s claimed failure to object to other-acts evidence. Based upon our

determination (under his second assignment of error), Dep. Wueberk’s testimony

involved intrinsic acts related to the instant offense and no notice was needed by the

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State. The failure to raise a meritless objection to admissible evidence does not

constitute a deficient or unreasonable performance. State v. Brown, 3d Dist. Allen

No. 1-19-61, 2020-Ohio-3614, ¶ 79. Hence, Hirschy’s trial counsel’s handling of

this evidence is neither deficient nor unreasonable.

{¶23} Finally, we cannot address the last portion of Hirschy’s ineffective-

assistance-of-counsel argument regarding his trial counsel’s execution of a speedy-

trial waiver without his consent (in Celina Municipal Court) since Hirschy did not

file a notice of appeal related to that case. See App.R. 4(A)(1). Hence, we are

without jurisdiction to hear an appeal of his trial counsel’s action in Celina

Municipal Court pursuant to App.R. 4(A)(1) nor can we address any attendant

implication that the execution of such a waiver (in Celina Municipal Court) may

have had in Allen County due to our lack of jurisdiction and corresponding record.

{¶24} Accordingly, Hirschy’s first assignment of error is overruled.

{¶25} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

MILLER, P.J. and POWELL, JR., concur.

** Judge Stephen W. Powell of the Twelfth District Court of Appeals, sitting by Assignment of the Chief Justice of the Supreme Court of Ohio.

/jlr

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