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State v. Palacios

Court of Appeals of Ohio, Sixth District, Erie

November 22, 2017

State of Ohio Appellee
v.
Ashley A. Palacios Appellant

         Trial Court No. CRB 1600046AB

          Wayne R. Nicol, City of Vermilion Prosecuting Attorney, for appellee.

          Jack W. Bradley and Jason S. Harless, for appellant.

          DECISION AND JUDGMENT

          PIETRYKOWSKI, J.

         {¶ 1} Appellant, Ashley Palacios, appeals the December 2, 2016 judgment of the Vermilion Municipal Court which, following a trial to the court where she was found guilty of domestic violence and child endangering, sentenced her to 180 days in jail, 150 days suspended, probation, and a fine. For the reasons that follow, we reverse.

         {¶ 2} On February 25, 2016, a complaint was filed against appellant charging her with two first-degree misdemeanors: one count of endangering children, in violation of R.C. 2919.22(B)(1), and one count of domestic violence, in violation of R.C. 2919.25(A). Appellant entered not guilty pleas to the charges.

         {¶ 3} On April 7, 2016, the matter was set for a jury trial commencing on May 25, 2016. Appellant filed a written motion for a jury trial on May 18, 2016. The state opposed the motion arguing that pursuant to Crim.R. 23(A), the motion was untimely and, thus, appellant's right to a jury trial had been waived. The court granted the state's motion and the matter proceeded to a trial to the court.

         {¶ 4} On May 31, 2016, the trial court entered its judgment finding appellant guilty of the charges. On June 6, 2016, after retaining new counsel, appellant filed a motion for a new trial arguing that her attorney was ineffective by failing to properly request a jury trial, failing to request a competency hearing for the five-year-old child-victim, and failing to subpoena various defense witnesses. Appellant further argued that the court had been made aware of her request for a jury trial weeks prior and had ordered the clerk to call potential jurors; thus, the purpose of Crim.R. 23, to prevent delay and potential prejudice to the state, was not offended.

         {¶ 5} In response, the state argued that ineffective assistance of counsel was not a proper basis for a new trial under Crim.R. 33. The state disputed appellant's additional arguments.

         {¶ 6} On August 24, 2016, the trial court denied the motion. As to the request for a jury trial, the court found that the ten-day written notice requirement in Crim.R. 23 was mandatory. The court further rejected appellant's ineffective assistance of counsel claim finding that appellant presented no showing of a reasonable probability that she would not have been convicted by a jury. Finally, the court found that the statements made by the child victim to his pediatrician were an exception to the hearsay rule under Evid.R. 803(4), irrespective of whether the child has been deemed competent to testify.

         {¶ 7} By agreement of the state, appellant was sentenced on the domestic violence charge only to 180 days in jail with 150 days suspended, placed on probation, and ordered to pay a fine. This appeal followed with appellant raising four assignments of error for our review:

First Assignment of Error: The trial court committed a plain error when failing to conduct an inquiry into the competency of the complaining witness due to his age.
Second Assignment of Error: The trial court committed a prejudicial error when permitting testimonial hearsay evidence to be admitted without proper inquiry into the facts surrounding the testimony.
Third Assignment of Error: Ms. Palacios was deprived of her constitutionally guaranteed right to the effective assistance of counsel by trial ...

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