Court No. CRB 1600046AB
R. Nicol, City of Vermilion Prosecuting Attorney, for
W. Bradley and Jason S. Harless, for appellant.
DECISION AND JUDGMENT
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
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 ...