[Cite as State v. Spradlin, 2017-Ohio-630.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2016-05-026
: OPINION - vs - 2/21/2017 :
RYAN SPRADLIN, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2016 CR 0023
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
The Farrish Law Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Ryan Spradlin, appeals his conviction in the Clermont
County Court of Common Pleas for felonious assault. For the reasons detailed below, we
affirm.
{¶ 2} At trial, Michelle Jesse testified that she lived in the same apartment building as
Spradlin, his wife Tia, and their children. In the early morning hours of January 3, 2016, she Clermont CA2016-05-026
and her friend Donna Lowery were outside Jesse's apartment, smoking. They heard loud
music coming from the Spradlins' apartment. Jesse then started to hear "a lot of screaming,
hollering, yelling, thump, thump, thump, a lot of noises." She heard Tia yell "help, help."
Lowery also heard a woman's voice calling for help.
{¶ 3} Jesse called 9-1-1 and told the dispatcher "I need the police here right away * *
* [h]e's beating the hell out of this lady downstairs." The dispatcher asked her if she could
see what was happening and she responded, "No, I can hear it. Oh, my God, you've got to
hurry."
{¶ 4} Amelia Village Police Officer Saylor responded to the scene about two minutes
after being dispatched, or about 1:44 a.m. He approached the Spradlins' front door and
listened. He heard a female voice say "stop, get away from me" several times and then "help
me." Saylor announced himself and began knocking. He then heard "please help me, he's
going to kill me."
{¶ 5} Saylor started kicking the door in an attempt to open it. After a number of
unsuccessful kicks, Saylor heard Spradlin say "hey, I got kids in here, man." Spradlin then
opened the door. From his vantage, Saylor could see into the bathroom and observed Tia
sitting on the bathtub. Her face was black and blue, and bloody. She was crying.
{¶ 6} Officer Saylor saw blood on Spradlin's hand. He ordered Spradlin to the
ground, who complied. Saylor handcuffed Spradlin and immediately took him out to a police
car.
{¶ 7} Meanwhile, Jesse and Lowery entered the Spradlins' apartment. Jesse went to
check on the Spradlins' children and Lowery went to see Tia in the bathroom. Lowery
observed that Tia's mouth was bleeding, she had teeth missing, and her left eye was swollen
shut. Crying, Tia told Lowery that Spradlin had accused her of cheating and he assaulted her
so that she "wouldn't be pretty anymore." Lowery said that Tia appeared to be intoxicated. -2- Clermont CA2016-05-026
{¶ 8} Officer Saylor returned from the police car and spoke with Tia. Saylor
described her demeanor as "very upset, crying, shaking. She was struggling to – to put her
thoughts together * * *." He asked her if she was okay. She responded, "he was going to kill
me." Saylor noticed that there was water in the bathtub and asked her what it was for. She
said, "I think he was going to drown me." She said that Spradlin punched her and kicked her
in the head and face and that he knocked her teeth out.
{¶ 9} Saylor spoke with Spradlin and asked what happened. Spradlin said that Tia
fell in the bathroom. He said he cut his hand by punching the front door, which was made of
steel.
{¶ 10} Saylor took photographs of the apartment about ten minutes after he arrived
on scene, which the state entered into evidence. Some photographs depict the living room,
in which various small items are strewn chaotically about the floor of the living room. There
are photographs of two of Tia's dislodged teeth, which were dental implants. These were
located by police on the floor of the living room. Another photograph depicts a fist-sized hole
punched into a door. Saylor testified that the hole was on the exterior of the bathroom door.
{¶ 11} Adam Dressler, a paramedic with the Union Township Fire Department,
treated Tia at the apartment and on an ambulance ride to the hospital. She was "frantic,
irate," and "very upset." Tia repeatedly told Dressler that Spradlin "knocked my fucking teeth
out," and that Spradlin punched her repeatedly and choked her. She said that Spradlin
turned the shower on to cover the sound of her screaming. She said he was "going to make
her so she wouldn't be pretty" and that she told him it would not matter if he did because she
had a good personality. Spradlin responded, "I'll just fucking kill you."
{¶ 12} Doctor Adam Kennah, an emergency medical physician, provided medical
treatment to the Spradlins at the hospital. Tia told Dr. Kennah that Spradlin choked and
punched her repeatedly. She said that she felt pain around her eye and was only seeing -3- Clermont CA2016-05-026
black and white out of both eyes. Dr. Kennah diagnosed her with a traumatic orbital
hematoma (bruising at the eye). Dr. Kennah opined that it would take two to three weeks for
the swelling around the eye to dissipate. The doctor also noted that Tia had fractured dental
implants, which would require a dentist to assess for treatment. Tia also suffered a closed
head injury (a concussion with no disruption of the skull). Finally, Dr. Kennah observed
multiple contusions or bruises, including bruising on her shoulder blade, left arm, and around
her neck.
{¶ 13} Dr. Kennah opined that Tia's injuries were consistent with being choked and
repeatedly punched. Dr. Kennah further opined that Tia's injuries were not consistent with a
"low level" fall, i.e., a fall from standing height. Dr. Kennah said that he would not expect to
see such traumatic injuries from a low level fall unless the injured person was elderly.
{¶ 14} Dr. Kennah said that Spradlin told him that the laceration on his knuckle
resulted from him punching a wall and then catching it on a piece of metal while drawing his
hand back. Nonetheless, Dr. Kennah said that he treated Spradlin as if the laceration was
the result of being cut by teeth.
{¶ 15} Spradlin testified. He said that on the night of January 2 he and his wife began
drinking and smoking marijuana after they put their children to sleep. As the night
progressed, Tia became increasingly intoxicated and angry. She began screaming at him.
In response, he walked out onto his apartment patio to smoke a cigarette. Then he heard a
"deadly" and "nonstop" scream coming from inside the apartment
{¶ 16} Spradlin ran back into the apartment and found Tia in the bathroom, face down
on the floor. She was still screaming, and he rolled her onto her back. He noted that she
had a black eye and there was blood on her lips. He saw her four "crowns," or dental
implants, on the bathroom floor.
{¶ 17} He observed a wall-mounted towel rack in the bathroom that was now laying -4- Clermont CA2016-05-026
on the floor. He said that earlier in the night he had been bathing his children, they were
splashing, and there was water on the floor.
{¶ 18} Spradlin said that as he was attempting to calm his screaming wife he began
to panic. He got up from the bathroom floor and started crying. He went out to the living
room area and grabbed his hair. He punched the front door of the apartment and cut his
hand on the metal hinge. Spradlin testified that he was left-handed.
{¶ 19} He went back into the bathroom. Tia was laying on her stomach again. He
rolled her over once more. She was still very upset. At that point, he heard someone
knocking on the door.
{¶ 20} The knocking became louder. Spradlin looked through the door's peephole
and saw that it was an Amelia Village police officer. The Spradlins' five-year-old child was
walking around the apartment by now, apparently awakened by Tia's screams. Spradlin told
the police officer that "I have children in here" and asked the police officer to wait. He carried
the child to her bed and then returned to the door and opened it. Officer Saylor ordered him
to the ground and he complied.
{¶ 21} On cross-examination, Spradlin said that Officer Saylor was lying about where
the fist-sized hole in the door was located. Spradlin said that the photograph actually
depicted a hole in his bedroom door, which had been there for some time. Spradlin also said
that all of the debris on the floor of living room was not there when he was arrested. He
could not explain who caused the mess.
{¶ 22} The case went to the jury, who deliberated for a day. Several hours after
deliberations began, the jury sent a note to the trial court indicating that they were
deadlocked, that they had discussed the case in great detail and voted twice but it was
obvious after their discussions that no one was wavering on their opinion or changing their
vote. The court read the jury an instruction encouraging them to continue their deliberations -5- Clermont CA2016-05-026
in an effort to reach a verdict.
{¶ 23} Later, the jury sent the court a note indicating that they were still deadlocked.
The court asked for counsel to convene to discuss this second note. However, before the
court and counsel could meet, the jury sent a third note indicating that they were making
progress towards a verdict and wished to continue deliberating.
{¶ 24} The jury ultimately rendered a guilty verdict. At sentencing, the court imposed
a prison term of three years. Spradlin presents five assignments of error for review.
{¶ 25} Assignment of Error No. 1:
{¶ 26} THE TRIAL COURT ERRED AS A MATTER OF LAW BY ALLOWING THE
STATE TO INTRODUCE HEARSAY STATEMENTS WHICH VIOLATED APPELLANT'S
RIGHT TO A FAIR AND IMPARTIAL TRIAL.
{¶ 27} Spradlin argues the court erred in admitting Tia's various out-of-court
statements, i.e., yelling for help, identifying him as her attacker, and alleging how she was
attacked. Spradlin argues that these statements were hearsay and not otherwise admissible.
The state argues that Tia's out-of-court statements were either not hearsay, or were
admissible as exceptions to the hearsay rule, i.e., excited utterances or statements for the
purpose of medical diagnosis or treatment. Spradlin further argues that the state's use of
Tia's out-of-court statements, and his inability to cross-examine her, violated his rights under
the Confrontation Clause.
{¶ 28} Spradlin concedes that he did not object to any of the statements he now
contends were erroneously admitted. Therefore, on appeal, he has waived any error except
plain error. "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). Plain error does not exist
unless, but for the error, the outcome of the trial would have been different. State v. Blacker,
12th Dist. Warren No. CA2008-07-094, 2009-Ohio-5519, ¶ 39. -6- Clermont CA2016-05-026
Directives
{¶ 29} Jesse, Lowery, and Officer Saylor testified that they heard Tia yelling "help" or
"help me." Tia's yells for assistance are not hearsay. 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." A "statement" is defined for
hearsay purposes, as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if
it is intended by the person as an assertion." Evid.R. 801(A).
{¶ 30} "Help" and "help me" are not hearsay because they are directives and are not
"assertions." See State v. Richardson, 12th Dist. Clermont Nos. CA2014-03-023, CA2014-
06-044 and CA2014-06-045, 2015-Ohio-824, ¶ 47. An "assertion" for hearsay purposes
simply means to say that something is so, e.g., that an event happened or that a condition
existed. Id. A directive, like a yell for help, is not an assertion because it is incapable of
being proved either true or false. Therefore, a directive cannot be offered to prove the truth
of the matter asserted. Id. Accordingly, the court did not err in admitting this testimony.
Excited Utterances
{¶ 31} Spradlin contends that Tia's statements to Lowery and Officer Saylor
identifying Spradlin as her attacker, the mechanism of his attack, and the purpose behind the
attack (so she "wouldn't be pretty anymore") were inadmissible hearsay. Spradlin argues
that these statements were not admissible as excited utterances because they were the
product of reflection and not impulse.
{¶ 32} Evid.R. 803(2) provides a hearsay exception for "[a] statement relating to a
startling event or condition made while the declarant was under the stress of excitement
caused by the event or condition." The controlling factor in analyzing whether a statement is
an excited utterance is whether the declaration was made under such circumstances as
would reasonably show that it resulted from impulse rather than reason and reflection. State -7- Clermont CA2016-05-026
v. Knecht, 12th Dist. Warren No. CA2015-04-037, 2015-Ohio-4316, ¶ 27. In Knecht, this
court concluded that the trial court properly admitted hearsay statements where two police
officers testified that a domestic violence victim was "crying, very upset, emotional,
distraught" when they first spoke with her. Id. at ¶ 28. The police also observed injuries on
the victim's head and face. Id. at ¶ 5.
{¶ 33} We conclude that the trial court did not err in allowing Lowery and Officer
Saylor to testify as to Tia's statements inculpating Spradlin. The evidence showed that Jesse
called 9-1-1 soon after the assault began. Officer Saylor responded within two minutes of
being dispatched. When he arrived, Tia was still pleading for help.
{¶ 34} Spradlin opened the apartment door and Officer Saylor could see that Tia was
injured. Saylor restrained Spradlin without incident and took him to his police car. He
returned immediately to check on Tia. Meanwhile, Lowery entered the apartment and spoke
with Tia. She found Tia on the bathroom floor, badly injured and crying. When Office Saylor
returned and encountered Tia he described her as "very upset, crying, shaking" and
"struggling to – to put her thoughts together." Officer Spradlin asked Tia if she was "okay." It
is not clear if she understood the question because she responded, "he was going to kill me."
{¶ 35} We conclude these facts demonstrate that Tia's statements to Lowery and
Officer Saylor resulted from impulse and the stress of the situation and not reason and
reflection. Accordingly, we conclude that the court did not err in admitting Tia's out-of-court
statements testified to by Lowery and Officer Saylor.
{¶ 36} We further conclude that Tia's statements to Dressler were also admissible as
excited utterances. Dressler testified that he arrived on scene eleven minutes after Officer
Saylor arrived. When he encountered Tia she had moved from the bathroom to her bed, but
was still "screaming," "frantic, irate" and "very upset." She remained "wound up" on the
ambulance ride to the hospital as she continued making statements inculpating Spradlin. -8- Clermont CA2016-05-026
Statements for Purposes of Medical Diagnosis or Treatment
{¶ 37} Spradlin argues that the court erred by allowing Dressler and Dr. Kennah to
testify as to Tia's statements inculpating Spradlin. Spradlin contends that these statements
were not admissible under the statements made for the purpose of medical diagnosis or
treatment exception to the hearsay rule.
{¶ 38} Evid.R. 803(4) provides as follows: "[s]tatements made for purposes of medical
diagnosis or treatment and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or treatment." However, statements identifying
an assailant are not properly admissible under Evid.R. 803(4) absent some evidence that the
identity of the perpetrator is reasonably pertinent to diagnosis or treatment. State v. Shouse,
12th Dist. Brown No. CA2013-11-014, 2014-Ohio-4620, ¶ 22; State v. Kingery, 12th Dist.
Fayette No. CA2009-08-014, 2010-Ohio-1813, ¶ 34.
{¶ 39} Dressler and Dr. Kennah summarized their procedures for assessing a patient.
Dressler testified that he would take a medical history from the patient, so as to get a
"baseline for what their medical problems are, anything else we need to look for * * *." In
other words, "basically what led up to the event, why we are here." Dr. Kennah performed
his medical assessment with the goal to determine "the possible extent of the injuries."
Accordingly, he would question his patient to determine "the mechanism of how they were
injured so I can decide possibly how badly they were injured, and what needed to be
examined or studied."
{¶ 40} The evidence indicated that Dressler and Dr. Kennah provided medical
diagnosis or treatment to Tia for her physical injuries sustained in the attack. After thoroughly
reviewing the record, we can find no evidence indicating that the identification of Tia's
attacker was reasonably pertinent to a medical professional's diagnosis or treatment. -9- Clermont CA2016-05-026
Accordingly, those portions of Tia's out-of-court statements made to Dressler and Dr. Kennah
which identified Spradlin as her attacker were not admissible under Evid.R. 803(4).1
{¶ 41} Nonetheless, the admission of these statements does not rise to the level of
plain error for several reasons. First, we have already concluded that Tia's statements to
Dressler were admissible on other grounds, i.e., as excited utterances. Second, Tia's
statements to Dr. Kennah were largely if not entirely cumulative of testimony we have also
determined was admissible, i.e., the testimony of Lowery, Officer Saylor, and Dressler. This
court will not find plain error where erroneously admitted evidence is largely cumulative of
other, properly admitted evidence, and where the other properly admitted evidence amply
demonstrated a defendant's guilt. Shouse, 2014-Ohio-4620 at ¶ 23. Spradlin has therefore
failed to show that the outcome of his trial clearly would have been different but for the error,
and he cannot prevail on his plain error claim.
Confrontation Clause
{¶ 42} Spradlin argues that the admission of Tia's out-of-court statements through the
testimony of Dressler and Officer Saylor violated his Confrontation Clause rights because he
did not have the opportunity to cross-examine her at trial.
{¶ 43} The Confrontation Clause as found in the Sixth Amendment to the United
States Constitution preserves the right of a criminal defendant "to be confronted with the
witnesses against him." To that end, the Confrontation Clause bars the admission of
"testimonial hearsay" unless the declarant is unavailable and the accused had a prior
opportunity to cross-examine the declarant. Knecht, 2015-Ohio-4316, at ¶ 21. They key
issue, therefore, is whether the statement was "testimonial." Id.
{¶ 44} The United States Supreme Court found testimonial statements existed where
1. This is not to say that the identity of Tia's attacker was not relevant to diagnosis or treatment. There simply is insufficient evidence in this record to permit us to reach that conclusion. - 10 - Clermont CA2016-05-026
there was no ongoing emergency and the statements resulted from a police interrogation
whose "'primary purpose [was] to establish or prove past events potentially relevant to later
criminal prosecution.'" State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, ¶ 17, quoting
Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266 (2006). However, as the United
States Supreme Court further explained, "the existence vel non of an ongoing emergency is
not the touchstone of the testimonial inquiry." Michigan v. Bryant, 562 U.S. 344, 374, 131
S.Ct. 1143, (2011). (Emphasis sic.) Rather, in making this "primary purpose" determination,
courts must consider "all of the relevant circumstances." Id. at 369. In other words, "whether
an ongoing emergency exists is simply one factor – albeit an important factor – that informs
the ultimate inquiry regarding the 'primary purpose' of an interrogation." Id. at 366.
{¶ 45} Another factor to be considered in determining the "primary purpose" of an
interrogation is the formality of the situation. Ohio v. Clark, ___ U.S. ___, 135 S.Ct. 2173,
2180 (2015). For instance, while a "formal station-house interrogation" is more likely to
provoke testimonial statements, "less formal questioning is less likely to reflect a primary
purpose aimed at obtaining testimonial evidence against the accused." Id. The standard
rules of hearsay, designed to identify some statements as reliable, are also relevant when
determining whether a statement is testimonial. Id. The same is true regarding "the
statements and actions of both the declarant and interrogators" for this "provide[s] objective
evidence of the primary purpose of the interrogation." Bryant at 367. In the end, "the
question is whether, in light of all the circumstances, viewed objectively, the 'primary purpose'
of the conversation was to 'creat[e] an out-of-court substitute for trial testimony.'" Clark at
2180, quoting Bryant at 358. "Where no such primary purpose exists, the admissibility of a
statement is the concern of state and federal rules of evidence, not the Confrontation
Clause." Id., quoting Bryant at 359.
{¶ 46} Spradlin argues that Tia's statements to Officer Saylor and Dressler were - 11 - Clermont CA2016-05-026
testimonial because they were in response to questioning and further, that that there was no
ongoing emergency because Officer Saylor had already restrained him by the time Tia made
the statements. After thoroughly reviewing the record, we conclude that Tia's statements to
Officer Saylor and Dressler were nontestimonial.
{¶ 47} As the record reflects, Tia's statements to Officer Saylor inculpating Spradlin
occurred only minutes after Saylor arrived on scene and while there was an ongoing
emergency. By that time the focus of the emergency had shifted from stopping an assault to
determining the appropriate medical response for Tia's care. That Spradlin had been
restrained did not terminate the urgency of making the appropriate medical decision for Tia's
injuries.
{¶ 48} Moreover, Officer Saylor did not ask Tia a question one would expect in a
formal police interrogation. He asked her if she was okay. This question was consistent with
Officer Saylor's trial testimony that when he first interacted with Tia he was attempting to
assess her need for emergency medical assistance. In other words, we do not believe that
Officer Saylor was attempting to question Tia in an effort to create a substitute for her
testimony at trial.
{¶ 49} We further find that the statements Tia made to Dressler also do not implicate
the Confrontation Clause because the primary purpose of Dressler's questioning was to
obtain an accurate medical history and then to provide appropriate treatment at the
apartment and while traveling to the hospital. Dressler testified that his job as a paramedic
was not to investigate the scene or necessarily determine what caused the injury, but to give
the person treatment as quickly as possible. Accordingly, we find Tia's statements to
Dressler and Officer Saylor were nontestimonial and thus do not implicate Spradlin's rights
under the Confrontation Clause. This assignment of error is meritless.
{¶ 50} Assignment of Error No. 2: - 12 - Clermont CA2016-05-026
{¶ 51} THE TRIAL COURT ERRED AS A MATTER OF LAW BY PERMITTING TIA
SPRADLIN TO ASSERT A FIFTH AMENDMENT RIGHT NOT TO TESTIFY OUTSIDE THE
PRESENCE OF THE JURY WHICH VIOLATED APPELLANT'S RIGHT TO A FAIR TRIAL.
{¶ 52} The state subpoenaed Tia to appear at trial and give testimony. Tia appeared
with counsel, who informed the court that Tia intended to invoke her Fifth Amendment right to
remain silent if asked any questions about what happened on January 3, 2016. At the state's
request, and with no objection from Spradlin, the state questioned Tia outside of the
presence of the jury. She answered several preliminary questions, i.e., her name, address,
and relationship to Spradlin. When the state asked what happened between her and
Spradlin the morning of January 3, she responded that she was "pleading the fifth."
{¶ 53} The court then announced that there was the possibility that her answers,
depending on what they were, could incriminate her, and that she had the right to exercise
her rights under the Fifth Amendment. Spradlin's counsel did not object and furthermore
indicated they had no other questions of Tia. Accordingly, the court excused Tia from
testifying.
{¶ 54} Later in the trial, while discussing jury instructions with counsel, the court made
some comments reflecting its lack of understanding of Tia's motivation to assert her Fifth
Amendment rights:
So, Tia Spradlin has not testified, and she has taken the 5th Amendment. And she may be not testifying because she doesn't want to testify against her husband. She may be test – may not be testifying because she doesn't want to provide evidence that would help convict him. She may be testifying – not testifying because she lied in the statement she made. She may not be testifying because she committed a crime of her own. I mean, there are all kinds of possibilities. It would be speculation to suggest why – what her testimony would have been if she had testified, and why she has chosen not to testify.
(Emphasis added.)
- 13 - Clermont CA2016-05-026
{¶ 55} Spradlin argues that the court committed plain error by failing to conduct a
colloquy to determine if Tia had a proper basis to invoke her rights under the Fifth
Amendment. Spradlin concedes that he is limited to a review for plain error because he did
not object. However, he argues that the outcome of the trial could have been different had
Tia been required to testify. He contends that his conviction was premised entirely on Tia's
out-of-court statements. So if he had had the opportunity to cross-examine her at trial, Tia
may have contradicted her out-of-court statements or corroborated his version of events.
{¶ 56} In State v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, the Ohio Supreme
Court addressed the responsibility of the trial court in a situation where a witness refuses to
testify on the basis of the Fifth Amendment. The court noted that the proponent of the
privilege bears the burden of demonstrating that he or she is "faced with some authentic,
objectively reasonable danger of incrimination." Id. at ¶ 44. To this end, the trial court has
the "critical" responsibility to inquire "into the basis of a witness's assertion of the privilege * *
* even when the purported basis seems implausible, frivolous, or suspect." Id. at ¶ 47. In
other words, "[a] trial court must ensure that the proponent of the privilege provides the basis
for asserting the privilege and evidence to support that claim * * *." Id. at ¶ 46.
{¶ 57} After reviewing the record, we find that the trial court failed to conduct the
inquiry mandated by Arnold. While we agree that this was error, we do not find that it rises to
the level of plain error.
{¶ 58} This court cannot say that but for the trial court conducting the proper Arnold
colloquy the outcome of the trial would have been different. As the trial court noted, Tia
could have invoked the privilege for any number of reasons, including reasons which would
not have been proper (e.g., because she intended to perjure herself). Accordingly, there is
no evidence from which we could determine whether the trial court would have permitted her
to exercise her Fifth Amendment right or ordered her to answer the state's questions. - 14 - Clermont CA2016-05-026
{¶ 59} Assuming the court ordered her to testify, it would be yet another leap for us to
speculate as to the content of her testimony. Spradlin argues that she "could" have testified
favorably for him. However, she could have done the opposite. As such, Spradlin cannot
demonstrate that there would have been a different result at trial but for the court's failure to
conduct the Arnold colloquy.
{¶ 60} Moreover, we do not agree with Spradlin's argument that his conviction was
based entirely on Tia's out-of-court statements. As we will discuss below, even if we
excluded all of Tia's statements inculpating Spradlin, the state produced other evidence, both
direct and circumstantial, which supported Spradlin's conviction. Accordingly, this court
concludes that Spradlin has not demonstrated plain error and this assignment of error is
meritless.
{¶ 61} Assignment of Error No. 3:
{¶ 62} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN APPELLANT'S
CONVICTION FOR FELONIOUS ASSAULT.
{¶ 63} Spradlin argues that his conviction for felonious assault was against the
manifest weight of the evidence because the state failed to prove that he was the perpetrator
of the assault. He argues that he was the only witness at trial who had first-hand knowledge
of what occurred inside the apartment and his version of events was consistent with the
evidence. He separately argues that the state failed to prove that Tia suffered "serious
physical harm."
{¶ 64} When reviewing the sufficiency of the evidence to support a criminal
conviction, an appellate court's function is to examine the evidence admitted at trial to
determine whether such evidence, viewed in a light most favorable to the prosecution, would
convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. - 15 - Clermont CA2016-05-026
Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 17.
{¶ 65} In determining whether a judgment is against the manifest weight of the
evidence, an appellate court must look at 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.
State v. Cooper, 12th Dist. Butler No. CA2010-05-113, 2011-Ohio-1630, ¶ 7. The
discretionary power to grant a new trial should be exercised only in exceptional cases where
the evidence weighs heavily against the conviction. State v. Thompkins, 78 Ohio St.3d 380,
387 (1997).
{¶ 66} The jury found Spradlin guilty of felonious assault, a violation of R.C.
2903.11(A)(1), which prohibits causing "serious physical harm" to another. After thoroughly
reviewing the record, we conclude that the manifest weight of the evidence supported
Spradlin's conviction. Two disinterested witnesses, Jesse and Lowery, testified that they
heard screaming and pleas for help coming from the apartment that Spradlin shared with his
wife and children. Officer Saylor also heard Tia yelling for help. Once Officer Saylor opened
the door he, Jesse, and Lowery observed Tia suffering from injuries consistent with what
Jesse told the police dispatcher she thought was occurring, i.e., domestic violence.
{¶ 67} Shortly after the attack, Tia identified Spradlin as her attacker to three
witnesses and consistently told them that Spradlin choked and repeatedly punched her. She
repeated these allegations to Dr. Kennah, who said that she suffered consistent injuries.
Moreover, Dr. Kennah opined that Tia's injuries were inconsistent with a low-level fall, i.e., the
only theory that Spradlin advanced to explain the origin of the numerous injuries suffered by
his wife that morning. Finally, Spradlin's injury on the knuckle of his dominant, left hand was
consistent with his having "knocked" out his wife's dental implants. - 16 - Clermont CA2016-05-026
{¶ 68} The jury did not believe Spradlin's version of events and we generally defer to
the factfinder on matters of witness credibility. State v. Andrews, 12th Dist. Butler No.
CA2009-02-052, 2010-Ohio-108, ¶ 46. Spradlin's testimony was also, at times, difficult to
believe. For instance, despite the photographic evidence to the contrary, Spradlin denied
that the living room had any debris strewn about it. He could not explain why or how
someone would "stage" the photograph. There is nothing in the record that would make us
second guess the jury's decision in this case.
{¶ 69} This court also finds that the manifest weight of the evidence supports the
jury's finding that Spradlin caused Tia "serious physical harm." In pertinent part, the Revised
Code defines "serious physical harm" as: "[a]ny physical harm that involves some permanent
incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
[a]ny physical harm that involves some permanent disfigurement or that involves some
temporary, serious disfigurement". R.C. 2901.01(A)(5)(c) and (d).
{¶ 70} Tia received emergency medical treatment for several fractured dental
implants, a concussion, significant bruising and swelling around her eye, and bruising on
various parts of her body, including around her neck where she alleged Spradlin choked her.
With respect to her fractured dental implants, Dr. Kennah testified that she would have to see
a dentist. Dr. Kennah also testified that it would take several weeks for the swelling around
Tia's black eye to reduce completely. Tia reported pain around her eye and that she could
not see color out of either eye.
{¶ 71} The state introduced numerous photographs into evidence that graphically
depicted Tia's injuries, which were taken at both the apartment and hospital. The
photographs depict the significance of the swelling around her eye, her missing dental
implants, and the numerous bruises covering Tia's body. We conclude that the evidence
presented at trial demonstrated serious physical harm under both R.C. 2901.01(A)(5)(c) and - 17 - Clermont CA2016-05-026
(d), i.e., physical harm involving temporary, substantial incapacity, and permanent and
temporary disfigurement.
{¶ 72} Accordingly, we find that Spradlin's felonious assault conviction is not against
the manifest weight of the evidence. Our determination that Spradlin's conviction is
supported by the weight of the evidence is also dispositive of the issue of sufficiency. State
v. Rodriguez, 12th Dist. Butler No. CA2008-07-162, 2009-Ohio-4460, ¶ 62. This assignment
of error is meritless.
{¶ 73} Assignment of Error No. 4:
{¶ 74} THE TRIAL COURT ERRED BY GIVING A HOWARD CHARGE TO THE
JURY AFTER ONLY SEVERAL HOURS OF DELIBERATION AND ON MORE THAN ONE
OCCASION.
{¶ 75} A Howard2 charge is a jury instruction designed to be given to a jury that
believes it is deadlocked in order to "challenge [the jury] to try one last time to reach a
consensus." State v. Robb, 88 Ohio St.3d 59, 81 (2000). The charge is set forth in Ohio
Jury Instructions, CR Section 429.09.
{¶ 76} The jury deliberated for one day. After several hours of deliberation, the jury
sent a note to the court indicating that it was deadlocked.3 The court then provided the jury
with the Howard charge and sent it back to attempt more deliberations. Later the same day,
upon the jury's request, the court provided it with a copy of the Howard charge in audio and
written formats.
{¶ 77} Spradlin contends that the court erred in giving the Howard charge so early
into the deliberations and erred again when it gave the charge to the jury a second time.
2. State v. Howard, 42 Ohio St.3d 18 (1989).
3. The record does not reflect the timing of any event with respect to this assignment of error. However, the state did not dispute Spradlin's claim that the jurors deliberated for "several hours" before indicating a deadlock. - 18 - Clermont CA2016-05-026
Spradlin concedes that he did not raise this objection at trial and thus has waived all but plain
error. We find that the court did not commit any error, plain or otherwise.
{¶ 78} Spradlin provides no authority or rationale for the argument that a court must
wait a certain time before providing a Howard charge to a jury who announces it is
deadlocked. Nor does Spradlin provide any authority for the argument that it is error to
provide a jury with an audio or written form of the Howard charge. Essentially, Spradlin is
implying that the Howard charge is coercive and compelled an otherwise deadlocked jury to
render a verdict against him. We disagree.
{¶ 79} The Howard charge is intended to encourage jurors to reach a verdict and to
appreciate opposing viewpoints, whether they be for a finding of guilt or acquittal. The
charge is carefully drafted to avoid suggesting what verdict would be preferable. Moreover,
the Supreme Court of Ohio has found that a Howard charge is not coercive and has
repeatedly approved its use. See State v. Brown, 100 Ohio St.3d 51, 60 (2003).
Accordingly, we find no error in the trial court's discretionary decision to provide the Howard
charge at the time it did.
{¶ 80} We also conclude that the court committed no error, much less plain error,
when it provided jurors with a written and audio copy of the Howard charge after they
requested it. Crim.R. 30(A) provides: "[t]he court shall reduce its final instructions to writing
or make an audio, electronic, or other recording of those instructions, provide at least one
written copy or recording of those instructions to the jury for use during deliberations, and
preserve those instructions for the record." Accordingly, the jury was entitled to a written or
audio copy of the instructions and there is no error here.
{¶ 81} Spradlin also argues that the court erred by allowing the jury to continue to
deliberate after sending a second note indicating that it remained deadlocked. The note
reads as follows: - 19 - Clermont CA2016-05-026
We have absolutely no change to opinions of guilt, not guilty. Three more hours of deliberations, we are deadlocked at present. Later, the jury sent another note indicating it was making progress and wished to continue
deliberations. Ultimately, the jury rendered a verdict.
{¶ 82} Again, the record is not clear as to timing of these events. According to the
state's brief, the court received the second note from the jury and asked counsel to convene
to discuss it. Before counsel could convene, the jury sent the third note indicating it was
making progress towards a verdict and wished to continue deliberations.
{¶ 83} Whether a jury is irreconcilably deadlocked is a "necessarily discretionary
determination" for a trial court to make based on the specific circumstances of each case.
Brown, 100 Ohio St.3d at 60, quoting Arizona v. Washington, 434 U.S. 497, 510, 98 S.Ct.
824 (1978), fn. 28. Spradlin's argument appears to be that the court should have
immediately found that the jury was deadlocked and declared a mistrial upon receipt of the
second note. We disagree. This is a matter ordinarily left to the sound discretion of the trial
court and we perceive no abuse of discretion in asking counsel to convene to discuss the
note. We also interpret the note as updating the court on the current status of deliberations
and not a statement that further deliberations would be entirely fruitless. We believe the
court took the appropriate step in asking counsel to convene to discuss the issue. In the
interim, the jury began making progress and ultimately rendered a verdict. There is no plain
error here and this assignment of error is meritless.
{¶ 84} Assignment of Error No. 5:
{¶ 85} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF HIS CONSTITUTIONAL RIGHTS THUS PREJUDICING HIS RIGHT TO A
FAIR TRIAL.
{¶ 86} Spradlin argues that his trial counsel was ineffective for failing to object to: (1)
- 20 - Clermont CA2016-05-026
Tia's out-of-court statements, (2) Tia asserting her Fifth Amendment right, and (3) the court
providing the Howard charge more than once.
{¶ 87} Counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment. State v.
Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14. To prevail on an
ineffective assistance of counsel claim, Spradlin must show his trial counsel's performance
fell below an objective standard of reasonableness and that he was prejudiced as a result.
Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984).
{¶ 88} In order to demonstrate prejudice, Spradlin must establish that, but for his trial
counsel's errors, there is a reasonable probability that the result of trial would have been
different. State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 42.
A "reasonable probability" is a probability that is "sufficient to undermine confidence in the
outcome." Strickland at 694. The failure to make an adequate showing on either prong is
fatal to an ineffective assistance of counsel claim. Kinsworthy at ¶ 42.
{¶ 89} Spradlin cannot demonstrate ineffective assistance of counsel with respect to
failing to object to Tia's out-of-court statements that we have already concluded were
admissible as nonhearsay or excited utterances. Counsel cannot be ineffective for failing to
object to admissible evidence. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶
218. Even if we presumed that the failure to object to hearsay that was admitted in error
constituted deficient representation, Spradlin cannot establish that he was prejudiced. As we
earlier concluded, any erroneously admitted statements were largely if not entirely cumulative
of other, properly admitted evidence.
{¶ 90} Spradlin cannot demonstrate ineffective assistance of counsel with respect to
his argument that counsel failed to object to Tia's assertion of her Fifth Amendment privilege.
The decision to call or not call a witness is a strategic decision and we typically do not - 21 - Clermont CA2016-05-026
second guess counsel strategy as a reviewing court. State v. Johnson, 12th Dist. Butler No.
CA2011-09-169, 2013-Ohio-856, ¶ 56. Here, there was an obvious strategic reason not to
object to the trial court's finding that Tia properly exercised her Fifth Amendment right, which
is that her testimony could have been adverse to Spradlin. Accordingly, counsel was not
deficient in this respect.
{¶ 91} Finally, Spradlin cannot demonstrate ineffective assistance for his counsel's
failure to object to the Howard charge. We have concluded that the court did not err in the
manner in which it gave the Howard charge, accordingly, counsel cannot be deficient for
failing to object. This assignment of error is meritless.
{¶ 92} Appellant's five assignments of error are overruled. Judgment affirmed.
S. POWELL, P.J., and M. POWELL, J., concur.
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