[Cite as State v. Doss, 2019-Ohio-436.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                        C.A. No.      18AP0027

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
CHRISTOPHER A. DOSS                                  WAYNE COUNTY MUNICIPAL COURT
                                                     COUNTY OF WAYNE, OHIO
        Appellant                                    CASE No.   2017 CR-B 001258

                                  DECISION AND JOURNAL ENTRY

Dated: February 11, 2019



        CALLAHAN, Judge.

        {¶1}     Appellant, Christopher Doss, appeals his conviction by the Wayne County

Municipal Court. This Court affirms.

                                                I.

        {¶2}     On the evening of July 19, 2017, the Wooster Police Department received a 911

call reporting an altercation between Mr. Doss and his girlfriend, A.V. A Wooster police officer

arrived at the scene seven minutes after the dispatch went out, and he encountered A.V. walking

barefoot north of Mr. Doss’s residence. When the officer made contact with A.V., he noted her

obvious injuries and that she appeared “visibly upset” and “[i]t looked like she kind of left in a

hurry.” The officer asked A.V. what had happened, and she informed him that she had been in a

physical altercation with Mr. Doss in their bedroom. Two officers made contact with Mr. Doss

at his residence.      He acknowledged that he had argued with A.V., but denied a physical

altercation.
                                                 2


       {¶3}    The officers placed Mr. Doss under arrest and he was charged with domestic

violence in violation of R.C. 2919.25(A) and unlawful restraint in violation of R.C. 2905.03(A).

Because A.V. did not appear as a witness for Mr. Doss’s bench trial, the State’s only witnesses

were the two police officers who responded to the scene. Mr. Doss testified in his own defense.

The trial court found Mr. Doss not guilty of unlawful restraint, but guilty of domestic violence,

sentenced him to 165 days in jail, and fined him $200. Mr. Doss appealed. His six assignments

of error are rearranged for purposes of discussion.

                                                II.

                              ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ADMITTING
       AND RELYING ON TESTIMONIAL HEARSAY IN VIOLATION OF MR.
       DOSS’S SIXTH AMENDMENT RIGHT TO CONFRONT HIS ACCUSER.

                              ASSIGNMENT OF ERROR NO. 6

       IF THIS COURT FINDS THAT TRIAL COUNSEL DID NOT OBJECT TO
       TESTIMONIAL HEARSAY, THE TRIAL COURT COMMITTED PLAIN
       ERROR BY ADMITTING AND RELYING ON TESTIMONIAL HEARSAY IN
       VIOLATION OF MR. DOSS’S SIXTH AMENDMENT RIGHT TO
       CONFRONT HIS ACCUSER.

       {¶4}    In his first assignment of error, Mr. Doss argues that the trial court erred by

permitting Officer Carl Festa to testify regarding statements made by A.V. Mr. Doss objected to

this testimony at trial, but did not object on the basis that the testimony violated the

Confrontation Clause. He has forfeited all but plain error in this respect but, because “error * * *

[is] the starting point for a plain-error inquiry,” our analysis is the same. See State v. Hill, 92

Ohio St.3d 191, 200 (2001); Crim.R. 52(B).

       {¶5}    The Sixth Amendment to the United States Constitution guarantees an accused

the right to confront witnesses against him. Crawford v. Washington, 541 U.S. 36, 54 (2004).
                                                 3


The Confrontation Clause is implicated by the admission of out-of-court statements that are

testimonial in nature when the declarant does not testify in the proceeding. See Melendez–Diaz

v. Massachusetts, 557 U.S. 305, 309–310 (2009). Only testimonial statements make a declarant

a “witness” for purposes of the Confrontation Clause, and “[i]t is the testimonial character of the

statement that separates it from other hearsay that, while subject to traditional limitations upon

hearsay evidence, is not subject to the Confrontation Clause.” Davis v. Washington, 547 U.S.

813, 821 (2006).

       {¶6}    Statements are testimonial when “the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution.” Id. at 822. This

determination focuses on the expectations of the declarant, and the intentions of the questioner

are only relevant to the extent that they bear on the expectations formed by a reasonable

declarant. State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, paragraph two of the syllabus.

This is an objective inquiry that takes into account the totality of the surrounding circumstances.

See State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, ¶ 156. Although not determinative of

the Confrontation Clause issue, “[i]n making the primary purpose determination, standard rules

of hearsay, designed to identify some statements as reliable, will be relevant.” Michigan v.

Bryant, 562 U.S. 344, 358-359 (2011).

       {¶7}    In Davis, the United States Supreme Court considered two situations in which

police officers testified regarding statements made to them in the course of responding to

incidents of domestic violence. In one case, the Court concluded that the declarant’s statements

were not testimonial in nature; in the other, the Court reached the opposite conclusion. The

Court noted four factors present in those cases that tended to characterize nontestimonial

statements: (1) close proximity in time to the events in question, (2) the presence of an ongoing
                                                  4


emergency, (3) the nature of the questions asked and responses received, and (4) the level of

formality present in the questioning. Id. at 827, 829-830.          The Court emphasized that in

domestic disputes, “‘[o]fficers called to investigate * * * need to know whom they are dealing

with in order to assess the situation, the threat to their own safety, and possible danger to the

potential victim.’” (Alterations in original.) Id. at 832, citing Hiibel v. Sixth Judicial Dist. Court

of Nevada, Humboldt Cty., 542 U.S. 177, 186 (2004). Consequently, the Court noted, inquiries

made at the scene in the form of “‘initial inquiries’” may often produce nontestimonial

statements. Davis at 832.

       {¶8}    In this case, the trial court admitted a portion of Officer Festa’s testimony about

his encounter with A.V. over counsel’s objection that it amounted to hearsay because it fell into

the “excited utterance” exception to the hearsay rule set forth in Evid.R. 803(2). Officer Festa’s

testimony established, in fact, that A.V. was “visibly upset” and “kind of hysterical, kind of

frantic” when he found her.       Contrary to the State’s position, however, the fact that her

statements to Officer Festa constituted excited utterances, at least in part, does not resolve the

Confrontation Clause issue. “‘[T]estimony may be admissible under the Confrontation Clause

yet inadmissible under the rules of evidence, and vice versa, [so] the declarant’s statements must

fall within the constitutional requirements and the rules of evidence to be admissible.’”

(Emphasis in original.) See State v. Miller, 9th Dist. Lorain No. 14CA010556, 2016-Ohio-4993,

¶ 11, quoting State v. Nevins, 171 Ohio App.3d 97, 2007-Ohio-1511, ¶ 36 (2d Dist.).

       {¶9}    Nonetheless, the character of her statements as excited utterances is one aspect of

the surrounding circumstances that informs this Court’s analysis. See Bryant, 562 U.S. at 358-

359. Officer Festa testified that he responded to the neighborhood of Mr. Doss’s residence

within minutes of the dispatch in response to a 911 call and that he found A.V. walking barefoot
                                                 5


“a couple hundred yards” away from the residence. He noted that she “looked like she kind of

left in a hurry,” and she exhibited visible injuries. In response to her circumstances, Officer

Festa asked A.V. what happened, and she responded that “there was a physical altercation in the

bedroom” during which “[Mr. Doss] grabbed her around the neck and then dragged her around

the bedroom[,] which ended up cutting her back on a wicker basket[.]”

       {¶10} By any measure, these statements do not run afoul of the Confrontation Clause. A

reasonable declarant in A.V.’s circumstances encountering a law enforcement officer a short

time after the events in question would not perceive that her statements were made in order to

prove past events in a later criminal prosecution. Compare State v. Wallace, 35 Ohio St.3d 87,

89 (1988), quoting Potter v. baker, 162 Ohio St. 488 (1955), paragraph two of the syllabus

(explaining that excited utterances occur under circumstances in which a startling occurrence

“‘produc[es] a nervous excitement in the declarant, which [is] sufficient to still his reflective

faculties and thereby make his statements and declarations the unreflective and sincere

expression of his actual impressions and beliefs, and thus render his statement or declaration

spontaneous and unreflective.’”)

       {¶11} A.V.’s statements are also nontestimonial when measured by the factors identified

in Davis. See generally Davis, 547 U.S. at 827, 829-830. Officer Festa responded to the scene

within minutes of the dispatch in response to a 911 call, and A.V.’s statements to him were close

in proximity to the events in question. Officer Festa noted that A.V. exhibited visible injuries

and appeared to have fled the scene of an attack barefoot. The location of her assailant was then

unknown. Officer’s Festa’s initial inquiries were of the type necessary to assess the situation, the

threat to his own safety, and possible danger to A.V. See Davis at 832. Finally, his inquiries

bore few, if any, indicia of the formality that would mark a testimonial statement. Id. at 827.
                                                6


       {¶12} A.V.’s statements to Officer Festa do not implicate Confrontation Clause

concerns because they were not testimonial in character, and the trial court did not err by

permitting Officer Festa’s testimony.    Mr. Doss’s first and sixth assignments of error are

overruled.

                              ASSIGNMENT OF ERROR NO. 5

       IF THIS COURT FINDS THAT TRIAL COUNSEL DID NOT OBJECT TO
       TESTIMONIAL HEARSAY, THEN TRIAL COUNSEL WAS INEFFECTIVE
       FOR FAILING TO DO SO.

       {¶13} Mr. Doss’s fifth assignment of error argues that he received ineffective assistance

of counsel because trial counsel failed to object to Officer Festa’s testimony, and “there is no

doubt that [A.V.’s] statements were testimonial.”

       {¶14} In order to demonstrate ineffective assistance of counsel, a defendant must show

(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by

counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington,

466 U.S. 668, 687 (1984).

       {¶15} This Court has concluded that A.V.’s out-of-court statements were not testimonial

and, consequently, that there was no error in connection with Officer Festa’s testimony. In this

respect, Mr. Doss has not identified a deficiency in trial counsel’s performance. See State v.

McDowell, 9th Dist. Summit No. 26697, 2014-Ohio-3900, ¶ 18, citing State v. Williams, 9th

Dist. Summit No. 25716, 2011-Ohio-6604, ¶ 14.          Mr. Doss’s fifth assignment of error is

overruled.

                              ASSIGNMENT OF ERROR NO. 3

       THERE WAS INSUFFICIENT EVIDENCE TO FIND MR. DOSS GUILTY OF
       DOMESTIC VIOLENCE.
                                                7


       {¶16} Mr. Doss’s third assignment of error is that his conviction for domestic violence

rests upon insufficient evidence. This Court disagrees.

       {¶17} “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009–Ohio–

6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is

whether the prosecution has met its burden of production by presenting sufficient evidence to

sustain a conviction. Thompkins at 390 (Cook, J., concurring). In reviewing the evidence, we do

not evaluate credibility, and we make all reasonable inferences in favor of the State. State v.

Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is sufficient if it allows the trier of fact to

reasonably conclude that the essential elements of the crime were proven beyond a reasonable

doubt. Id.

       {¶18} Crim.R. 29(A) provides that a motion for a judgment of acquittal may be made at

the close of the State’s evidence or at the close of the defendant’s case. When a motion is made

at the conclusion of the State’s case, the trial court must rule at that time without reserving

judgment until the defense has rested. Id. Consequently, when this Court reviews the denial of a

motion for judgment of acquittal under Crim.R. 29(A), we apply the standard set forth in Jenks

to the evidence presented by the State in its case-in-chief. See State v. Maxwell, 9th Dist.

Summit No. 24807, 2010-Ohio-4214, ¶ 13. An appellant may also argue that a conviction rests

on insufficient evidence apart from Crim.R. 29(A) because due process requires “that no person

shall be made to suffer the onus of a criminal conviction except upon sufficient proof—defined

as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of

every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316 (1979). When this Court
                                                 8


considers this type of sufficiency argument, we apply the Jenks standard to all of the evidence

presented at trial. See Maxwell at ¶ 12-13.

       {¶19} Mr. Doss did not move for a judgment of acquittal under Crim.R. 29(A) at the

close of the State’s case, but he has argued on appeal that his conviction rests on insufficient

evidence. His failure to move for a judgment of acquittal did not forfeit his sufficiency argument

for purposes of appeal. See State v. Feaster, 9th Dist. Summit No. 26239, 2012-Ohio-4383, ¶ 5.

Although this Court may consider all of the evidence presented at trial in connection with this

sufficiency argument, see Maxwell at ¶ 12-13, we note that the evidence presented in the State’s

case-in-chief, standing alone, is sufficient to support Mr. Doss’s conviction.

       {¶20} R.C. 2919.25(A) provides that “[n]o person shall knowingly cause or attempt to

cause physical harm to a family or household member.” “Physical harm” is defined as “any

injury, illness, or other physiological impairment, regardless of its gravity or duration.” R.C.

2901.01(A)(3).

       {¶21} Officer Festa testified that he responded to Mr. Doss’s neighborhood after a 911

caller reported an altercation between A.V. and her boyfriend. When he arrived at the scene, he

found A.V. walking barefoot in the vicinity of Mr. Doss’s residence. Officer Festa observed that

she appeared to be “hysterical” and to have left her previous location in haste. He observed red

marks around her neck on both sides and fresh abrasions on her left shoulder. When Officer

Festa asked A.V. what had happened, she told him that her boyfriend, Mr. Doss, had grabbed her

around the neck and dragged her around the bedroom. Officer Festa also photographed A.V.’s

injuries, and those photographs were submitted at trial. Officer Daniel Whitmore, who assisted

with the investigation, testified that Mr. Doss and A.V. lived together.
                                                 9


       {¶22} Based on this evidence, the trier of fact could reasonably conclude beyond a

reasonable doubt that Mr. Doss caused physical harm to A.V., who resided in his household. Mr.

Doss’s conviction for domestic violence is based on sufficient evidence, and his third assignment

of error is overruled.

                              ASSIGNMENT OF ERROR NO. 2

       TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO MAKE A
       CRIMINAL RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL AFTER
       THE CLOSE OF THE STATE’S CASE IN CHIEF.

       {¶23} In his second assignment of error, Mr. Doss argues that trial counsel provided

ineffective assistance on two additional grounds. This Court disagrees.

       {¶24} Mr. Doss’s first argument is that trial counsel provided deficient performance by

failing to move for a judgment of acquittal at the close of the State’s case.          In order to

demonstrate ineffective assistance of counsel, a defendant most show not only deficiency on the

part of trial counsel, but that any deficiency was “so serious as to deprive the defendant of a fair

trial[.]” Strickland, 466 U.S. at 687. In this respect, a defendant must demonstrate prejudice by

showing that, but for counsel’s errors, there is a reasonable possibility that the outcome of the

trial would have been different. Id. at 694. This Court has concluded that the State presented

sufficient evidence in its case-in-chief to support Mr. Doss’s conviction for domestic violence.

Given that conclusion, Mr. Doss cannot establish that the outcome of his trial would have been

different had he moved for a judgment of acquittal after the State presented its evidence.

       {¶25} Mr. Doss’s second argument is that trial counsel’s performance was deficient

because he permitted Mr. Doss to testify in his own defense and placed his credibility at issue

despite the fact that, in his estimation, the State produced insufficient evidence to support a

conviction. As noted above, Mr. Doss’s conviction is supported by sufficient evidence. In
                                                10


addition, in applying the Strickland test, “a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance[.]”

Strickland at 689. Tactical decisions, however, do not rise to the level of ineffective assistance.

State v. Bradley, 42 Ohio St.3d 136, 144 (1989). “The advice provided by [counsel] to his or her

client regarding the decision to testify is ‘a paradigm of the type of tactical decision that cannot

be challenged as evidence of ineffective assistance.’” State v. Winchester, 8th Dist. Cuyahoga

No. 79739, 2002-Ohio-2130, ¶ 12, quoting Hutchins v. Garrison, 724 F.2d 1425, 1436 (4th

Cir.1983). Without evidence in the record suggesting that a defendant’s decision to testify

resulted from coercion, this tactical decision will not sustain a claim of ineffective assistance.

State v. Garrison, 5th Dist. Muskingum No. CT2017-0018, 2018-Ohio-463, ¶ 36. The record in

this case does not suggest that Mr. Doss was coerced to testify, nor has he made this argument on

appeal. Without such support, Mr. Doss cannot demonstrate ineffective assistance with regard to

his testimony at trial.

        {¶26} Mr. Doss’s second assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 4

        MR. DOSS’S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF
        THE EVIDENCE.

        {¶27} In his fourth assignment of error, Mr. Doss argues that his conviction for domestic

violence is against the manifest weight of the evidence.

        {¶28} When considering whether a conviction is against the manifest weight of the

evidence, this Court must:

        review 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.
                                                11


State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for

the exceptional case in which the evidence weighs heavily against the conviction. Id., citing

State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

       {¶29} Mr. Doss’s fourth assignment of error is premised upon the success of his first

and sixth: he argues that A.V.’s statements to Officer Festa were testimonial hearsay and that

without those statements, “[a]ll that remains is photographs depicting marks on the accuser, and

the defendant’s explanation for those marks.”          A.V.’s statements were properly admitted,

however. Officer Festa testified that he found her “visibly upset” near Mr. Doss’s home, that she

bore recent injuries, and that in response to his initial inquiry, she told him that Mr. Doss placed

his hands around her throat and dragged her through their bedroom. Mr. Doss did not deny that

he caused A.V.’s injuries. Instead, he testified that they were inflicted earlier in the day with

A.V.’s consent during a sexual encounter.

       {¶30} This Court must “consider[] the credibility of witnesses” as part of our manifest

weight review. Thompkins, 78 Ohio St.3d at 387, quoting Martin at 175.            Nonetheless, this

Court is mindful of the well-established principle that a trier of fact enjoys the best position to

assess the credibility of witnesses. State v. Rivera, 9th Dist. Lorain No. 18CA011263, 2019-

Ohio-62, ¶ 39, quoting State v. Johnson, 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15.

Given the evidence in this case, this Court cannot conclude that this is the exceptional case in

which the evidence weighs heavily against the conviction.

       {¶31} Mr. Doss’s fourth assignment of error is overruled.

                                                III.

       {¶32} Mr. Doss’s assignments of error are overruled. The judgment of the Wayne

County Municipal Court is affirmed.
                                                12


                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



SCHAFER, P. J.
CARR, J.
CONCUR.


APPEARANCES:

PATRICK L. BROWN, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA R. UHLER, Assistant Prosecuting
Attorney, for Appellee.
