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State v. Proffitt

Court of Appeals of Ohio, Twelfth District, Butler

April 3, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
WENDELL PROFFITT, JR., Defendant-Appellant.

         CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT Case Nos. 16CRB01150 and 16CRB01151

          Neal D. Schuett, city of Hamilton prosecutor, for plaintiff-appellee.

          Christopher P. Frederick, for defendant-appellant.

          OPINION

          M. POWELL, J.

         {¶ 1} Defendant-appellant, Wendell Proffitt, appeals his convictions in the Hamilton Municipal Court for domestic violence.

         {¶ 2} Appellant was charged with one count of domestic violence in violation of R.C. 2919.25(A), a m isdemeanor of the first degree, arising from an incident on January 11, 2016, and a separate count of domestic violence in violation of R.C. 2919.25(C), a misdemeanor of the fourth degree, arising from an incident on March 26, 2016. The alleged victim of the offenses was Jennifer Morris ("Jennifer"), appellant's wife, with whom he was residing at the time of the incidents. Appellant entered pleas of not guilty and the charges proceeded to a bench trial. At trial, the state called Jennifer and Hamilton Police Officer Danielle Sorber as witnesses. The state offered into evidence two separate statements Jennifer had written concerning the January 11, 2016 incident and the March 26, 2016 incident. The statements were written on Hamilton Police Department statement forms (the two statements will be respectively referred as the January Statement and the March Statement, and collectively as "the Statements"). Appellant testified on his own behalf.

         {¶ 3} Officer Sorber testified that on January 11, 2016, she responded to a residence on Ross Avenue in Hamilton, Ohio upon report of a fight. Upon arrival, the officer found Jennifer and Jennifer's mother. Appellant was not present. Officer Sorber observed red marks on the right side of Jennifer's face consistent with fingernail scratches. The officer denied independent knowledge of how the scratches on Jennifer's face originated and acknowledged they could have been self-inflicted. The officer observed no other visible signs of injury or struggle upon Jennifer's person. Jennifer reported to Officer Sorber what had occurred. During the officer's investigation, it was discovered that Jennifer was subject to an outstanding warrant for "dog tags." Consequently, Officer Sorber arrested Jennifer and took her to the police station for booking and then to the county jail. During the booking process, Officer Sorber obtained the January Statement from Jennifer regarding what had transpired between Jennifer and appellant on January 11, 2016. The January Statement stated that appellant had accused Jennifer of cheating on him, began screaming at her, dug his fingernails into the right side of her face, and choked her. Officer Sorber stated that the January Statement was consistent with what Jennifer had told her about the incident at the scene.

         {¶ 4} Jennifer testified that she and appellant were residing with their son at the Ross Avenue home on January 11, 2016. Jennifer stated that she and appellant "did argue a little bit" on that day, but that she did not remember if the argument became physical. Jennifer denied any recollection of making the January Statement. Upon being shown the statement, she acknowledged that it contained her handwriting and signature. She confirmed that the Hamilton Police Department statement form upon which the statement was written provided above her signature that the statement was true when it was made. However, when asked if the January Statement was true when she made it, Jennifer replied, "I'm not sure." Explaining, Jennifer stated that she has severe anxiety and that "my panic disorder makes everything seem a lot worse than it is."

         {¶ 5} At this juncture, the state moved the trial court to allow the January Statement to be read into evidence pursuant to Evid.R. 803(5), the recorded recollection exception to the hearsay rule. Defense counsel had no objection and the trial court directed Jennifer to read the January Statement.

         {¶ 6} On cross-examination, Jennifer denied any memory of what occurred on January 11, 2016, admitted that she "over exaggerates sometimes, " and twice testified that she did not believe the January Statement reflected what happened. Jennifer acknowledged she understood it is important to be truthful when speaking with the police and that she tried to be truthful with them.

         {¶ 7} By March 26, 2016, Jennifer, appellant, and their son had moved to a residence on Forrest Avenue in Hamilton, Ohio. Jennifer stated that she and appellant had a verbal altercation that day over a photograph depicting Jennifer and a friend. The photograph upset appellant and he again accused Jennifer of cheating on him. Jennifer denied any recollection of appellant threatening her on that day. She recalled the police responded to her home after being called by appellant. Jennifer believed she made a written statement concerning her television being broken. Jennifer did not remember how the television was broken, but believed appellant must have broken it because she did not break it herself and only she and appellant were home at the time. Jennifer was then shown the March Statement. She did not recognize the March Statement but acknowledged it was in her handwriting and contained her signature, and that the Hamilton Police Department statement form provided above her signature that the statement was true when it was made.

         {¶ 8} At this juncture, the state apparently moved the trial court to allow Jennifer to read the March Statement into evidence pursuant to Evid.R. 803(5). Once again, defense counsel made no objection and the trial court directed Jennifer to read the March Statement. In the March Statement, Jennifer wrote that appellant had threatened to kill her when she asked him to leave the home after appellant had thrown the television into the wall.

         {¶ 9} On cross-examination, Jennifer denied recollection of writing the March Statement. Jennifer stated that appellant could have threatened to kill her, but that she had no specific recollection of such a threat.

         {¶ 10} The state rested, and without objection, the Statements were admitted into evidence. The trial court subsequently denied appellant's Crim.R. 29 motion for acquittal.

         {¶ 11} Appellant testified and admitted that he and Jennifer have a tumultuous marriage, involving frequent arguments and sometimes pushing and punching each other. However, appellant specifically denied scratching and choking Jennifer on January 11, 2016, and threatening to kill her on March 26, 2016. Appellant stated the only threat he made on March 26, 2016, was to end the marriage if Jennifer's behavior continued. Appellant testified he left the premises on March 26, 2016, because "it was best for me to leave until she got * * * to a better place." Appellant further testified he called the police on March 26, 2016, to protect himself due to "other cases that [Jennifer] made against me."

         {¶ 12} After the close of the evidence and following closing arguments by the state and defense counsel, the trial court considered the evidence and stated,

When [Jennifer] testified here today, um - she testified about what she said was some kind of unusual medical condition that she has where she can't remember things and over exaggerates things so much though she's on disability for it. * * * And I think that she said that today because she was trying to explain why she was lying here today and I felt like she was clearly lying everywhere that she could here today. Um - because she's trying not to have the defendant be convicted and she's trying to help the defendant. In this case we heard statements that the defendant made to the police the day that these incidents happened and to the extent that these statements can be verified. Well, there were marks on her face and they were scratch marks on her face and says what she said in the statement. The statement seemed to me the written statement seemed to me to be truthful renditions of what happened close in time to when they happened and based on both of these statements I'm going to find the defendant to be Guilty on both of these cases.[1]

         {¶ 13} Appellant appeals his convictions, raising three assignments of error.

         {¶ 14} Assignment of Error No. 1:

         {¶ 15} MR. PROFFITT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND FAIR TRIAL WERE VIOLATED WHEN HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

         {¶ 16} Appellant argues defense counsel was ineffective at trial for failing to object to inadmissible hearsay evidence, namely, defense counsel failed to object to Jennifer reading the Statements into evidence and to allowing the Statements to be admitted as exhibits.

         {¶ 17} To prevail on an ineffective assistance of counsel claim, appellant must show his trial counsel's performance was deficient, and that he was prejudiced as a result. State v. Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel's performance will not be deemed deficient unless it fell below an objective standard of reasonableness. Strickland at 688. To show prejudice, appellant must establish that, but for his trial counsel's errors, there is a reasonable probability that the result of his trial would have been different. Id. at 694. The failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, ¶ 7.

         {¶ 18} Before we address whether defense counsel's failure to object to the Statements was ineffective assistance of counsel, we first consider whether the Statements qualified as a hearsay exception for recorded recollection under Evid.R. 803(5).

         {¶ 19} 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).

         {¶ 20} Pursuant to the above definitions, the Statements were hearsay. The Statements were made by Jennifer other than while testifying at trial, were assertions of what had occurred on January 11, 2016, and March 26, 2016, and were offered by the state to prove what occurred on those days between Jennifer and appellant. The trial court considered the Statements as substantive proof of what occurred on January 11, 2016, and March 26, 2016.

         {¶ 21} Hearsay is generally inadmissible, unless it falls within one of the numerous exceptions under Evid.R. 803 and 804. As pertinent to the instant case, Evid.R. 803(5) provides a hearsay exception for recorded recollection:

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

         {¶ 22} In order to admit a statement into evidence under Evid.R. 803(5), a party must establish that (1) the witness has a lack of present recollection of the recorded matter, (2) the recorded recollection was made at a time when the matter was fresh in the witness's memory, (3) the recorded recollection was made or adopted by the witness, and (4) the recorded recollection correctly reflects the prior knowledge of the witness. State v. Scott, 31 Ohio St.2d 1, 6 (1972); Dayton v. Combs, 94 Ohio App.3d 291, 300 (2d Dist. 1993). If Evid.R. 803(5) is satisfied, the statement itself may be read into evidence. State v. Trotter, 8th Dist. Cuyahoga No. 97064, 2012-Ohio-2760, ¶ 35.[2]

         {¶ 23} Under Evid.R. 803(5), the statement must correctly reflect the knowledge the witness had at the time it was recorded. Id. "[Evid.R. 803(5)] makes explicit the requirement that the foundation for the introduction of the statement under this exception must be made by testimony of the witness himself." Evid.R. 803(5), Staff Notes; State v. Ross, 6th Dist. Huron No. H-11-022, 2013-Ohio-1595, ¶ 17 ("The foundation for the admission of such a statement under Evid.R. 803[5] must be made through the testimony of the witness himself"). Thus, the proponent of the statement must produce affirmative proof, through the testimony of the witness, that the statement correctly reflects the witness's prior knowledge. The state failed in this regard.

         {¶ 24} Jennifer testified she was "not sure" if the January Statement accurately reflected what happened on January 11, 2016, because her "panic disorder makes everything seem a lot worse than it is." Jennifer further testified she thought she had made a statement concerning the March 26, 2016 incident, but did not recognize the March Statement when it was presented to her at trial.

         {¶ 25} The state established through Jennifer's testimony that the Statements were made in her handwriting and that the Hamilton Police Department forms upon which she had written the Statements provided above the signature line, "I have read the statement and it is true and correct."

         {¶ 26} However, Jennifer's mere acknowledgment that the forms upon which the Statements were written contain the aforementioned preprinted language does not satisfy the requirement under Evid.R. 803(5) that the "testimony of the witness" establish that the statement correctly reflects the witness's prior knowledge. Jennifer never testified that the Statements accurately reflected her prior knowledge of the incidents, nor may her testimony be so construed. Likewise, Jennifer's acknowledgment that the Statements were made in her handwriting does not suggest that they correctly reflect her prior knowledge of the incidents.

         {¶ 27} The trial court did not believe Jennifer's testimony concerning the Statements. That is the trial court's prerogative as the trier of fact and we should defer to this determination. However, Jennifer's unbelievable testimony that the Statements did not, or may not, correctly reflect her prior knowledge of the incidents, is not proof that the Statements correctly reflected her prior knowledge. Rather, Jennifer's incredible testimony leaves the issue unresolved. This does not satisfy the affirmative foundational requirement under Evid.R. 803(5) that the testimony of the witness show that the record correctly reflects the witness's prior knowledge.

         {¶ 28} Furthermore, Evid.R. 803(5) is not satisfied by Jennifer's expression of a general recognition of the importance of being truthful with the police and that she made an effort to do so.[3] Evid.R. 803(5) is clear that the witness's testimony must affirmatively establish that the statement correctly reflects prior knowledge of the witness. Evidence extrinsic to the witness's testimony, even if it tends to establish the trustworthiness of the statement, is incompetent for purposes of determining admissibility under Evid.R. 803(5).[4]

         {¶ 29} Based upon the foregoing, we find that the Statements were not within the ambit of the Evid.R. 803(5) hearsay exception. Had defense counsel objected to Jennifer reading the Statements into evidence and to allowing the Statements to be admitted as exhibits, the objection ought to have been sustained and the Statements excluded.

         {¶ 30} We now consider whether defense counsel's failure to object to the admission of the Statements ...


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