[Cite as State v. Hood, 2025-Ohio-422.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
STATE OF OHIO, CASE NO. 9-24-08 PLAINTIFF-APPELLEE,
v.
ORTAVIOUS L. HOOD, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court Trial Court No. 2023 CR 0031
Judgment Affirmed
Date of Decision: February 10, 2025
APPEARANCES:
April F. Campbell for Appellant
Allison M. Kesler for Appellee Case No. 9-24-08
ZIMMERMAN, J.
{¶1} Defendant-appellant, Ortavious L. Hood, Jr. (“Hood”), appeals the
February 23, 2024 judgment entry of sentence the Marion County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} This case stems from a January 15, 2023 traffic stop of a vehicle
operated by Hood for a “significantly cracked” windshield by Captain Ken
Rittenour (“Captain Rittenour”) of the Marion County Sheriff’s Office. (July 12,
2023 Tr. at 8). As a result of the traffic stop, Hood was indicted on January 18,
2023 by the Marion County Grand Jury for six Counts: Count One of trafficking in
cocaine in violation of R.C. 2925.03(A)(2), (C)(4)(f), a first-degree felony; Count
Two of possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(e), a first-
degree felony; Count Three of having weapons while under disability in violation
of R.C. 2923.13(A)(2), (B), a third-degree felony; Count Four of having weapons
while under disability in violation of R.C. 2923.13(A)(3), (B), a third-degree felony;
Count Five of improperly handling firearms in a motor vehicle in violation of R.C.
2923.16(B), (I), a fourth-degree felony; and Count Six of carrying a concealed
weapon in violation of R.C. 2923.12(A)(2), (F)(1), a first-degree misdemeanor. The
indictment included firearm specifications under R.C. 2941.141(A) as to Counts
One and Two and forfeiture specifications as to all of the counts. Hood appeared
for arraignment on January 23, 2023 and pleaded not guilty to the indictment.
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{¶3} On June 6, 2023, Hood filed a motion to suppress evidence, arguing that
Captain Rittenour did not have reasonable suspicion or probable cause to stop him.
Hood further requested that the trial court suppress the laboratory report generated
under R.C. 2925.51 because the notary public’s commission had expired.
Moreover, in that same motion, Hood requested the transcripts of the State’s
presentation of its case against Hood before the Marion County Grand Jury, alleging
that the indictment was deficient because the weight of the cocaine was not
determined by lab analysis until after the indictment. The State filed a memorandum
in opposition to Hood’s motion on June 20, 2023. After a hearing on July 12, 2023,
the trial court on July 14, 2023 granted Hood’s suppression motion in part, denied
it in part, and denied Hood’s request to inspect the grand jury transcripts.
Consequently, because the trial court determined (based on the State’s concession)
that the laboratory report generated under R.C. 2925.51 was notarized with an
expired notary, the trial court concluded that the State should call the analyst to
testify at any trial in this case.
{¶4} On January 23-24, 2024, the case proceeded to a jury trial as to Counts
One (along with the firearm specification), Two (along with the firearm
specification), Five, and Six and to a bench trial as to the remaining counts and
specifications. On January 24, 2024, the jury found Hood guilty as to Counts One,
Two, Five, and Six, and the firearm specifications as to Counts One and Two. The
trial court found Hood guilty of Counts Three and Four and the forfeiture
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specifications as to Counts Two, Three, Four, Five, and Six, but not guilty of the
forfeiture specifications as to Count One.
{¶5} On February 23, 2024, the trial court sentenced Hood to a minimum
term of 10 years in prison to a maximum term of 15 years in prison as to Count Two,
36 months in prison as to Count Four, 12 months in prison as to Count Five, 90 days
in jail as to Count Six, and 1 year in prison as to the firearm specification
accompanying Count Two. The trial court ordered Hood to serve the prison terms
imposed as to Counts Two, Four, Five, and the firearm specification consecutively.
Further, the trial court ordered Hood to serve the term imposed as to Count Six
concurrently to the consecutive terms imposed as to Counts Two, Four, Five, and
the firearm specification for an aggregate sentence of a minimum term of 15 years
to a maximum term of 20 years in prison. Moreover, the trial court merged Counts
One and Two and Three and Four, respectively, for purposes of sentencing. The
trial court also ordered the contraband identified in the forfeiture specifications
forfeited.
{¶6} On March 15, 2024, Hood filed his notice of appeal. He raises four
assignment of error for our review.
First Assignment of Error
The evidence against Hood should have been suppressed because the officers who stopped Hood did not have reasonable suspicion or probable cause to stop him.
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{¶7} In his first assignment of error, Hood argues that the trial court erred by
denying his motion to suppress evidence. Specifically, Hood contends that Captain
Rittenour did not have probable cause or reasonable suspicion to stop him because
the windshield crack was on the passenger’s side, which did not render the operation
of his vehicle unsafe.
Standard of Review
{¶8} A review of the denial of a motion to suppress involves mixed questions
of law and fact. State v. Burnside, 2003-Ohio-5372, ¶ 8. At a suppression hearing,
the trial court assumes the role of trier of fact and, as such, is in the best position to
evaluate the evidence and the credibility of witnesses. Id. See also State v. Carter,
72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a motion to suppress,
“an appellate court must accept the trial court’s findings of fact if they are supported
by competent, credible evidence.” Burnside at ¶ 8, citing State v. Fanning, 1 Ohio
St.3d 19 (1982). With respect to the trial court’s conclusions of law, however, our
standard of review is de novo, and we must independently determine whether the
facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124 Ohio
App.3d 706 (4th Dist. 1997).
Analysis
{¶9} “The Fourth Amendment to the United States Constitution and Article
I, Section 14 of the Ohio Constitution generally prohibit warrantless searches and
seizures, and any evidence that is obtained during an unlawful search or seizure will
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be excluded from being used against the defendant.” State v. Tyson, 2015-Ohio-
3530, ¶ 9 (3d Dist.). “Generally, any evidence obtained in violation of the Fourth
Amendment, as well as any evidence seized subsequent to such violation, must be
suppressed as ‘fruit of the poisonous tree.’” State v. Fielding, 2014-Ohio-3105, ¶
15 (10th Dist.), quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963). See
also State v. Jenkins, 2010-Ohio-5943, ¶ 9 (3d Dist.) (The Fourth Amendment does
not explicitly provide “that violations of its provisions against unlawful searches
and seizures will result in the suppression of evidence obtained as a result of such
violation, but the United States Supreme Court has held that the exclusion of
evidence is an essential part of the Fourth Amendment.”).
{¶10} “‘A traffic stop constitutes a seizure and implicates the protections of
the Fourth Amendment’ but ‘“is constitutionally valid if an officer has a reasonable
and articulable suspicion that a motorist has committed, is committing, or is about
to commit a crime.”’” Tyson at ¶ 10, quoting State v. Dillehay, 2013-Ohio-327, ¶
13 (3d Dist.) and State v. Aldridge, 2014-Ohio-4537, ¶ 10 (3d Dist.), quoting State
v. Mays, 2008-Ohio-4539, ¶ 7. “The Supreme Court of Ohio has defined
‘reasonable articulable suspicion’ as ‘specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant the intrusion
[upon an individual’s freedom of movement].’” State v. Shaffer, 2013-Ohio-3581,
¶ 18 (3d Dist.), quoting State v. Bobo, 37 Ohio St.3d 177, 178 (1988). “In
determining whether reasonable articulable suspicion exists, a reviewing court must
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look to the totality of the circumstances.” State v. Steinbrunner, 2012-Ohio-2358,
¶ 14 (3d Dist.). “A police officer’s testimony alone is sufficient to establish
reasonable articulable suspicion for a stop.” State v. McClellan, 2010-Ohio-314, ¶
38 (3d Dist.).
{¶11} “In addition to a reasonable and articulable suspicion of criminal
activity, ‘[p]robable cause is certainly a complete justification for a traffic stop,’ but
it is not required to justify a traffic stop.” Tyson at ¶ 11, quoting Mays at ¶ 23.
“‘Probable cause’ is a stricter standard than and subsumes ‘reasonable and
articulable suspicion.’” Id., quoting Mays at ¶ 23. Accordingly, “an officer who
witnesses a traffic violation possesses probable cause, and a reasonable articulable
suspicion, to conduct a traffic stop.” State v. Haas, 2012-Ohio-2362, ¶ 16 (3d Dist.).
{¶12} In this case, the trial court denied Hood’s motion to suppress evidence
after concluding that Captain Rittenour had “reasonable suspicion” to stop Hood
based on damage to the windshield which rendered operation of the vehicle unsafe
in violation of R.C. 4513.02. (Doc No. 52). In reaching its conclusion, the trial
court determined that the damage to the windshield constituted a violation of R.C.
4513.02 since it was substantial and impaired the driver’s vision. Specifically, the
trial court reasoned that
[t]he damage is more than a single crack. Rather it has a large impact point in the passenger side of the front windshield about the height of the front seat’s headrests, which then extends into a spiral pattern extending over the majority of the passenger half of the windshield and extending from the top to the bottom of the windshield. In total
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there are more than twenty cracks extending from the impact point to various edges of the windshield.
(Id.).
{¶13} Decisively, we conclude that the trial court did not err by denying
Hood’s motion to suppress evidence because Captain Rittenour had reasonable
suspicion to stop Hood based the damage that he observed to Hood’s windshield in
violation of R.C. 4513.02. Imperatively, there is competent, credible evidence in
the record supporting the trial court’s determination that the damage to Hood’s
windshield constituted a violation of R.C. 4513.02.
{¶14} R.C. 4513.02, provides in its relevant part, that “[n]o person shall drive
. . . on any highway any vehicle . . . which is in such unsafe condition as to endanger
any person.” R.C. 4513.02(A). “Many Ohio courts have concluded that a cracked
windshield provides reasonable suspicion to justify a traffic stop if the crack renders
the vehicle ‘unsafe,’ pursuant to R.C. 4513.02(A).” State v. Carey, 2018-Ohio-831,
¶ 16 (9th Dist.) (collecting cases). “‘Some courts have stated that the combination
of [R.C. 4513.02(A) and Ohio Adm.Code 4501:2-1-11] make it a violation to
operate a vehicle with any cracks in the windshield because administrative agencies’
rules have the full force and effect of law when issued pursuant to statutory
authority.’” Id., quoting State v. Latham, 2004-Ohio-2314, ¶ 14 (2d Dist.).
“Generally, courts have . . . found a windshield crack to establish reasonable
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suspicion that R.C. 4513.02(A) has been violated when the crack is substantial or
impairs the driver’s vision.” Id.
{¶15} At the suppression hearing, Captain Rittenour testified that, in his
“opinion [it] wasn’t just a little cracked, it was significantly cracked.” (July 12,
2023 Tr. at 8). Compare Carey at ¶ 18 (determining that “Deputy Lesnasky’s
testimony was sufficient to demonstrate the existence of a substantial or significant
crack in the truck’s windshield”). He testified that the windshield was not in safe
working condition because “it would obstruct [Hood’s] view of making the right-
hand turns.” (July 12, 2023 Tr. at 16). State’s Exhibits 1 through 4 depict the
condition of the windshield as it appeared on the day of the traffic stop.
Consequently, there is competent, credible evidence supporting the trial court’s
determination that Captain Rittenour had reasonable suspicion to stop Hood based
on a violation of R.C. 4513.02. Accordingly, the trial court did not err by denying
Hood’s motion to suppress evidence.
{¶16} Hood’s first assignment of error is overruled.
Second Assignment of Error
Because the grand jury indicted Hood with trafficking and possession of cocaine without evidence by way of lab report that the substance was cocaine, nor had evidence as to the amount of it, Hood’s indictment was defective, and Hood’s Ohio and Federal Constitutional rights, as well as the Ohio Rules of Criminal Procedure, were violated.
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{¶17} In his second assignment of error, Hood argues that Counts One and
Two of the indictment are defective since “the State did not have evidence by way
of a lab report, that the substance suspected to be cocaine, was actually cocaine” or
“have evidence of the amount.” (Appellant’s Brief at 8). Hood asserts that the
evidence presented before the grand jury was insufficient to support its probable
cause finding that he trafficked and possessed cocaine in an amount exceeding 27
grams but less than 100 grams.
{¶18} Generally, this court reviews “a trial court’s decision on a motion to
dismiss an indictment for abuse of discretion.” State v. Hudson, 2022-Ohio-1435,
¶ 19. An abuse of discretion suggests that a decision is unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
{¶19} However, because Hood did not object or move to dismiss the
indictment, he has waived all but plain error on appeal. Accord State v. Leonard,
2024-Ohio-2817, ¶ 11 (1st Dist.); State v. Buford, 2008-Ohio-5505, ¶ 11 (6th Dist.)
(noting that “a plain-error analysis applies to challenges of defective indictments
first raised on appeal”). Under “‘Crim.R. 52(B), “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of
the court.”’” State v. Harrison, 2015-Ohio-1419, ¶ 69 (3d Dist.), quoting State v.
Walburg, 2011-Ohio-4762, ¶ 47 (10th Dist.). “We recognize plain error with the
utmost caution, under exceptional circumstances, and only to prevent a manifest
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miscarriage of justice.” Id. “‘For plain error to apply, the trial court must have
deviated from a legal rule, the error must have been an obvious defect in the
proceeding, and the error must have affected a substantial right.’” Id., quoting State
v. Vielma, 2012-Ohio-875, ¶ 34 (3d Dist.). “‘Under the plain error standard, the
appellant must demonstrate that the outcome of his trial would clearly have been
different but for the trial court’s errors.’” (Emphasis added.) Id., quoting Vielma at
¶ 34.
{¶20} “Both Section 10, Article I of the Ohio Constitution and the Fifth
Amendment to the Unites States Constitution provide that prosecution for capital
offenses or felonies shall be instituted by grand jury indictments.” State v. Rodano,
2017-Ohio-1034, ¶ 22 (8th Dist.). “The grand jury’s responsibilities include both
‘the determination whether there is probable cause to believe a crime has been
committed and the protection of citizens against unfounded criminal prosecutions.’”
Id., quoting United States v. Calandra, 414 U.S. 338, 343 (1974). “The grand jury
sits not to determine guilt or innocence, but to assess whether there is adequate basis
for bringing a criminal charge.” Id. “‘An indictment returned by a legally
constituted and unbiased grand jury . . . if valid on its face, is enough to call for trial
of the charge on the merits.’” Id., quoting Costello v. United States, 350 U.S. 359,
363 (1956).
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{¶21} “It is well-established that the purpose of an indictment is to give the
accused adequate notice of the crime charged.” State v. Clements, 2010-Ohio-4801,
¶ 8 (12th Dist.). “An indictment is sufficient if it contains the elements of the offense
charged, fairly informs the defendant of the charge, and enables the defendant to
plead an acquittal or conviction in bar of future prosecutions for the same offense.”
Id. See also Crim.R. 7(B).
{¶22} In this case, Hood does not allege that the indictment is deficient on
its face. Instead, Hood contends that the evidence presented to the grand jury was
insufficient for it to find that there was probable cause that he trafficked or possessed
cocaine in an amount exceeding 27 grams but less than 100 grams. However, a trial
“court’s supervisory power to review grand jury proceedings is limited to prevent
fundamental unfairness.” Rodano at ¶ 27, citing State v. Hill, 2015-Ohio-2389, ¶
22 (8th Dist.) (asserting that “a trial court may invoke its supervisory power to
review the grand jury proceedings, but only to prevent ‘fundamental unfairness’”),
quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 256-257 (1988). “‘An
error is “fundamental” when “the structural protections of the grand jury have been
so compromised as to render the proceedings fundamentally unfair, allowing the
presumption of prejudice.”’” Id., quoting Hill at ¶ 22, quoting Bank of Nova Scotia
at 257.
{¶23} “[T]he presentation of improper evidence to the grand jury is not a
‘fundamental error.’” Hill at ¶ 25. Because “‘the validity of an indictment is not
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affected by the character of the evidence considered’ . . . an indictment, fair upon
its face, and returned by a properly constituted grand jury, conclusively determines
the existence of probable cause to believe the defendant perpetrated the offense
alleged therein.” Id., quoting Calandra, 414 U.S. at 343. Importantly, the United
States Supreme Court has determined that “defendants are not constitutionally
entitled to a judicial redetermination of the grand jury’s finding that probable cause
justifies criminal prosecution.” Id. at ¶ 26, citing Kaley v. United States, 571 U.S.
320 (2014), syllabus. See also State v. Wilks, 2018-Ohio-1562, ¶ 37 (asserting that
“a facially valid indictment is not subject to challenge based on grounds of
inadequate or incompetent evidence”). Relevantly,
“[i]f indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment.”
Hill at ¶ 26, quoting Costello, 350 U.S. at 363.
{¶24} Because Hood’s argument regarding the grand jury proceedings does
not allege a fundamental error, his argument is not subject to judicial review.
Consequently, we conclude that there is no reversible error, plain or otherwise,
regarding the grand jury proceedings. See Rodano at ¶ 28 (concluding that “[t]here
is no reversible error, plain or otherwise, regarding the grand jury proceeding”
“[a]lthough the grand jury did not consider her second report (issued long after the
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grand jury proceeding) [because] the prosecution’s evidence is tested at trial, not in
the grand jury proceeding”).
{¶25} Hood’s second assignment of error is overruled.
Third Assignment of Error
The trial court erred in allowing the forensic analyst to give substitute testimony from the Captain who notarized the laboratory report, in violation of Hood’s confrontation right. It also therefore reversibly erred in admitting the lab report into evidence because it did not comply with R.C. 2925.51 and was prejudicial hearsay.
{¶26} In his third assignment of error, Hood argues that the trial court erred
by admitting impermissible hearsay evidence and that the admission of that hearsay
evidence violated his rights under the Confrontation Clause of the Sixth Amendment
to the United States Constitution. Specifically, Hood challenges the admission of
State’s Exhibit 17 based on “out of court statements from the captain who did not
testify, to demonstrate that his commission had not expired” even though “the trial
court had previously ruled that the notarization was improper, [and] the State did
not seek to amend the report.” (Appellant’s Brief at 10).
{¶27} 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, 2006-Ohio-2815, ¶ 62. As we
previously stated, an abuse of discretion implies that the trial court acted
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unreasonably, arbitrarily, or unconscionably. Adams, 62 Ohio St.2d at 157-158.
“However, we review de novo evidentiary rulings that implicate the Confrontation
Clause.” State v. McKelton, 2016-Ohio-5735, ¶ 97. “De novo review is
independent, without deference to the lower court’s decision.” State v. Hudson,
2013-Ohio-647, ¶ 27 (3d Dist.).
{¶28} In this case, Hood contends that the trial court abused its discretion by
admitting State’s Exhibit 17 based on the testimony of Anthony Tambasco
(“Tambasco”), a forensic scientist and the director of the Mansfield Division of
Police Forensic Science Laboratory, who analyzed the cocaine in this case. Hood
disputes the trial court’s reliance on Tambasco’s testimony that Captain Chad
Brubaker’s (“Captain Brubaker”) notarization of Tambasco’s statement stating his
qualifications and the scientific validity of the testing procedures (in State’s Exhibit
17) was not expired.
{¶29} We will begin by addressing whether the admission of State’s Exhibit
17 based on Captain Brubaker’s hearsay statement was proper under the rules of
evidence. Then, we will consider whether the admission of Captain Brubaker’s out-
of-court statement violated Hood’s Sixth Amendment rights.
Hearsay
{¶30} Hearsay is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
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truth of the matter asserted.” Evid.R. 801(C). “Hearsay is inadmissible under
Evid.R. 802, unless a particular statement fails to meet the two-part definition in
Evid.R. 801(C), or fully satisfies the conditions for nonhearsay prior statements
under Evid.R. 801(D)(1) or (2), or falls within one of recognized exceptions under
Evid.R. 803 or 804.” State v. Richcreek, 2011-Ohio-4686, ¶ 22 (6th Dist.). “[A]
statement is, by definition, not hearsay when it is offered for a purpose other than to
prove the truth of the matter asserted.” State v. Armour, 2022-Ohio-2717, ¶ 38 (3d
Dist.).
{¶31} “R.C. 2925.51(A) creates an exception to the hearsay rules.” State v.
Hudson, 2002 WL 472304, *2 (8th Dist. Mar. 28, 2002). Under R.C. 2925.51,
a laboratory report of a controlled substance performed by a police laboratory “stating that the substance which is the basis of the alleged offense has been weighed and analyzed and stating the findings as to the content, weight, and identity of the substance and that it contains any amount of a controlled substance and the number and description of unit dosages, is prima-facie evidence of the content, identity, and weight or the existence and number of unit dosages of the substance.”
State v. Garrett, 2004-Ohio-2231, ¶ 19 (5th Dist.), quoting R.C. 2925.51(A). The
statute requires that the “report shall be signed and notarized and the signer must
state his or her education and attest that scientifically accepted tests were performed
with due caution and that the evidence was handled by accepted procedures.” Id.,
citing R.C. 2925.51(A). “The report must be served to the attorney representing the
accused prior to any proceeding in which the report may be used.” Hudson at *2,
citing R.C. 2925.51(B). “The only time the report is not considered prima facie
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evidence of the contents, identity and weight of the substance tested is when the
accused, within seven days of receiving the report, demands the testimony of the
person signing the report.” Id., citing R.C. 2925.51(C).
{¶32} Contrary to Hood’s argument on appeal, State’s Exhibit 17 was not
admitted in violation of the hearsay rules. Decisively, the trial court correctly
admitted the report based on Tambasco’s testimony, which established the report’s
authenticity. See State v. Schilling, 65 Ohio App.3d 154, 160 (5th Dist. 1989); State
v. Rodriquez, 66 Ohio App.3d 5, 16-17 (6th Dist. 1990). Importantly, in its decision
on Hood’s suppression motion, the trial court instructed the State to call the analyst
(not the notary) to testify at trial.
{¶33} Consequently, the validity of Captain Brubaker’s notary had no
bearing on the admissibility of the report. See Hudson at *3. Even so, Tambasco
clarified at trial that Captain Brubaker’s notary (contrary to the stated expiration)
was not expired at the time he notarized Tambasco’s report.
Confrontation Clause
{¶34} Having determined that the trial court properly admitted State’s
Exhibit 17 under the hearsay rules, we will turn to Hood’s argument that it should
have been excluded under the Confrontation Clause. The Confrontation Clause to
the Sixth Amendment of the United States Constitution, made applicable to the
states by the Fourteenth Amendment, provides that “‘[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him
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. . . .’” Crawford v. Washington, 541 U.S. 36, 42 (2004), quoting the Confrontation
Clause.
The United States Supreme Court has interpreted [the Sixth Amendment right to confrontation] to mean that 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.
{¶35} Consequently, “[o]nly testimonial hearsay implicates the
Confrontation Clause.” McKelton, 2016-Ohio-5735, at ¶ 185. “Therefore, even if
a statement falls under a hearsay exception it can be excluded as testimonial because
such statements violate the Confrontation Clause.” State v. Hairston, 2016-Ohio-
8495, ¶ 27 (10th Dist.). Conversely, nontestimonial statements may be admissible
under a hearsay exception. Id. Likewise, “[t]here is also no dispute that the
Confrontation Clause ‘does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted.’” State v. Ricks, 2013-Ohio-
3712, ¶ 18, quoting Crawford at 59, and citing Williams v. Illinois, 567 U.S. 50, 57-
58 (2012).
{¶36} For the same reasons that we determined that the admission of State’s
Exhibit 17 did not violate the hearsay rules, we conclude that Hood’s confrontation
rights were not violated by its admission. Critically, the validity of a notary’s
commission, while important for the legal efficacy of a document, is not a statement
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made by a witness about a past event. Instead, it is a procedural or administrative
fact. See Read v. Toledo Loan Co., 68 Ohio St. 280 (1903), paragraph two of the
syllabus (holding that “the act of the notary public or other officer taking and
certifying the same is a ministerial, and not a judicial, act”). Even so, based on the
facts presented by this case, Tambasco testified to the validity of Captain Brubaker’s
notary commission.
{¶37} More importantly, Hood was afforded the opportunity to confront
Tambasco—the analyst and author of the report regarding the results of his analysis,
including his education, methodology, and the handling of the evidence. That is,
Hood was able to confront Tamabsco about key facts of the State’s case regarding
the cocaine.
{¶38} For these reasons, Hood’s third assignment of error is overruled.
Fourth Assignment of Error
Hood’s convictions should be reversed because his counsel was prejudicially ineffective for failing to object to the analyst’s testimony under the confrontation clause, hearsay rules, and R.C. 2925.21.
{¶39} In his fourth assignment of error, Hood argues his trial counsel was
ineffective for failing to object to Tambasco’s testimony regarding Captain
Brubaker’s notarization of his lab report.
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{¶40} 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 (1984). In order to show 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. 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 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, 438 U.S. 910 (1978).
{¶41} “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, 2014-Ohio-259, ¶ 48 (3d Dist.), quoting Bradley at 142,
citing Strickland at 691. “‘A reasonable probability is a probability sufficient to
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undermine confidence in the outcome.’” Id., quoting Bradley at 142 and citing
Strickland at 694.
{¶42} On appeal, Hood argues that his trial counsel was ineffective for
failing “to object to test testimony of Tambasco, who substitute testified for a
captain of the Mansfield police department who improperly notarized his lab
report.” (Appellant’s Brief at 12). However, based on our resolution of Hood’s
third assignment of error, Hood’s argument that his trial counsel was ineffective for
failing to object to Tambasco’s testimony is without merit.
{¶43} Hood’s fourth assignment of error is overruled.
{¶44} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WALDICK, P.J. and MILLER, J., concur.
/hls
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