[Cite as State v. Eutsey, 2018-Ohio-4807.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. John W. Wise, P.J
         Plaintiff – Appellee                   Hon. William B. Hoffman, J.
                                                Hon. Patricia A. Delaney, J.
 -vs-
                                                Case No. 2018CA0045
 ELLIOTT EUTSEY

        Defendant – Appellant                   O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Stark County Court of
                                                Common Pleas, Case No. 2017CR1934



 JUDGMENT:                                      Affirmed

 DATE OF JUDGMENT ENTRY:                        December 3, 2018


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 JOHN D. FERRERO                                BERNARD L. HUNT
 PROSECUTING ATTORNEY                           2395 McGinty Road, N.W.
 STARK COUNTY, OHIO                             North Canton, Ohio 44720

 KATHLEEN O. TATARSKY
 Assistant Prosecuting Attorney
 110 Central Plaza, South – Suite 510
 Canton, Ohio 44702-1413
Stark County, Case No. 2018CA0045                                                          2

Hoffman, J.
       {¶1}   Defendant-appellant Elliott Eutsey appeals his convictions and sentence

entered by the Stark County Court of Common Pleas, following a jury trial. Plaintiff-

appellee is the state of Ohio.

                           STATEMENT OF THE CASE AND FACTS

       {¶2}   On November 16, 2017, the Stark County Grand Jury indicted Appellant on

one count of domestic violence, in violation of R.C. 2919.25(A), a felony of the third

degree; one count of criminal damaging or endangering, in violation of R.C.

2909.06(A)(1), a misdemeanor of the first degree; and one count of intimidation of an

attorney, victim, or witness in a criminal case, in violation of R.C. 2921.04(A), a

misdemeanor of the first degree, all resulting from an incident involving Kimberly Mitchell,

the mother of Appellant's three children.       Appellant appeared for arraignment on

November 22, 2017, and entered a plea of not guilty to the Indictment.

       {¶3}   After Mitchell refused to cooperate with the state's requests she meet to

prepare for trial and avoided service of the subpoena for trial on three occasions, the state

filed a motion for custody of material witness on February 5, 2018. The trial court

ultimately granted the motion. The state also filed a notice of intent to introduce evidence

pursuant to Evid.R. 804(B)(6). Therein, the state sought a ruling allowing it to admit

Mitchell's prior testimonial statements, arguing Appellant's wrongdoing caused the victim

to be unavailable; therefore, the statements were not barred by the Confrontation Clause.

       {¶4}   Appellant made hundreds of calls from the jail to Mitchell. Via Order filed

February 6, 2018, the trial court prohibited Appellant from making any jail calls other than

to his attorney or for a verified medical emergency.
Stark County, Case No. 2018CA0045                                                         3


        {¶5}   Appellant's third attorney, Kyle Stone, entered a notice of appearance on

February 27, 2018. The trial court appointed Attorney Rick Pitinii to assist in Appellant's

defense. Via Judgment Entry filed March 13, 2018, the trial court granted the state's

notice of intent to introduce evidence pursuant to Evid. R. 804(B)(6).

        {¶6}   The matter proceeded to trial on March 14, 2018.

        {¶7}   Canton City Police Officer Anthony Birone testified he was dispatched to

822 Milton Court NW, Canton, Ohio, at approximately 6:30 a.m. on October 1, 2017.

When he arrived, Officer Birone observed an SUV resting against the side of the

residence. Officer Birone proceeded to the front door where he was met by a female who

stated Appellant, her daughter Kimberly Mitchell's boyfriend, had struck Mitchell in the

head.

        {¶8}   Officer Birone indicated his body camera was activated and working when

he spoke to Mitchell. The state played footage from the video. Officer Birone testified

the first segment of the video fairly and accurately depicted his conversation with Mitchell

as to the ownership of the SUV and how the vehicle had come to be damaged. He further

testified the second and third segments of the video fairly and accurately depicted his

conversation with Mitchell during which she informed him Appellant had punched her in

the forehead, identified Appellant, and provided Officer Birone with his date of birth.

Officer Birone also stated the final segment of the video fairly and accurately depicted his

conversation with Mitchell during which she told him the names of her three children and

indicated Appellant was the father of two of the children.

        {¶9}   Officer Birone testified he personally observed Mitchell write a Voluntary

Witness Statement, which he identified at trial. The officer read the Voluntary Witness
Stark County, Case No. 2018CA0045                                                        4


Statement to the jury as follows:



              It says Elliot Eutsey (father of children) came over to visit. He was

       drunk and can tell had some drug out of, of some sort of -- I can't read this

       next word -- to his behavior. He was accusing me of cheating even though

       we have not been together. He punched me in the head causing a knot on

       it. He then broke my phone after trying to contact his mother. He then threw

       a playpen at the window and then broke it. He grabbed my car keys and

       drove car into pole, then took off. Trial Transcript at 120-121.



       {¶10} Officer Birone described Mitchell's injuries.     He indicated he observed

damage to the interior and exterior of the residence as well as a mangled playpen under

a window. Thereafter, the state played audio recordings of two telephone calls made on

October 20, 2017. Officer Birone identified the female voice as belonging to Mitchell.

       {¶11} On cross-examination, Officer Birone acknowledged Mitchell did not seek

medical attention for her injuries. The officer added the knot on Mitchell's head appeared

to be a "fresh" injury.

       {¶12} Stark County Sheriff's Deputy Anthony Pellegrino testified he has had the

opportunity to hear Appellant speak on multiple occasions. Deputy Pellegrino indicated

he believed he would be able to identify Appellant's voice. The state played the same

audio recordings played during Officer Birone's testimony. Deputy Pellegrino identified

the male voice on the recordings as belonging to Appellant.

       {¶13} The state rested its case. Appellant did not call any witnesses on his behalf.
Stark County, Case No. 2018CA0045                                                        5


The trial court instructed the jury. After deliberating, the jury found Appellant guilty of

domestic violence and criminal damaging or endangering, but not guilty of intimidation of

an attorney, victim or witness in a criminal case. The trial court sentenced Appellant to

an aggregate term of imprisonment of 36 months.

       {¶14} It is from these convictions and sentence Appellant appeals, raising the

following assignments of error:



              I. THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE

       ASSISTANCE OF COUNSEL.

              II. THE TRIAL COURT VIOLATED THE APPELLANT'S RIGHT

       UNDER     THE    SIXTH     AMENDMENT         TO   THE   UNITED     STATES

       CONSTITUTION AND THE OHIO CONSTITUTION IN SECTION 10,

       ARTICLE 1.

              III. THE TRIAL COURT'S FINDING OF GUILT WAS AGAINST THE

       MANIFEST WEIGHT AND WAS NOT SUPPORTED BY SUFFICIENT

       EVIDENCE.



                                                I

       {¶15} In his first assignment, Appellant raises a claim of ineffective assistance of

counsel.

       {¶16} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). A defendant asserting a claim of ineffective

assistance of counsel must establish: (1) the counsel’s performance was deficient or
Stark County, Case No. 2018CA0045                                                           6


unreasonable under the circumstances; and (2) the deficient performance prejudiced the

defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was

deficient or unreasonable, the defendant must overcome the presumption counsel

provided competent representation and must show counsel’s actions were not trial

strategies prompted by reasonable professional judgment. Strickland at 687.

       {¶17} Trial counsel is entitled to a strong presumption all decisions fall within the

wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675

(1998). A reviewing court “need not determine whether counsel's performance was

deficient before examining the prejudice suffered by the defendant as a result of the

alleged deficiencies.” State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989),

quoting Strickland at 697, 104 S.Ct. 2052. Even debatable trial tactics and strategies do

not constitute ineffective assistance of counsel. State v. Clayton (1980), 62 Ohio St.2d

45, 402 N.E.2d 1189.

       {¶18} “Prejudice results when ‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’

” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting Bradley at 142,

citing Strickland at 691. “ ‘A reasonable probability is a probability sufficient to undermine

confidence in the outcome.’ ” Id., quoting Bradley at 142 and citing Strickland at 694.

       {¶19} Appellant cites two instances which he contends establish trial counsel’s

performance fell below an acceptable standard of reasonable representation. We shall

address each in turn.

       {¶20} The first instance of alleged ineffectiveness occurred during Opening
Stark County, Case No. 2018CA0045                                                      7


Statement when Attorney Stone was allegedly admonished by the trial court:



             MR. STONE: * * * However, the alleged victim felt bad afterwards for

      fabricating the story, for embellishing what took place, and so there was a

      discussion about how she was going to make it right, there was a discussion

      of how she was going to fix it because she knew what she did wrong.

             And so the, the recordings of the phone calls that you might hear

      won't be Mr. Eutsey intimidating or hindering; it will be hey, I'm in jail and

      this isn't what we discussed, you said that you were going to do -- this --

      that's what you will hear. You won't hear in those conversations don't go

      testify, don't go do this, don't go do that; you won't hear that in those

      recordings. But you will hear an individual who is in jail and, rightfully so,

      upset when you were supposed to get this right and it didn't happen.

             But the damage was already done. The damage -- the, the warrant

      was already issued. The damage was done, and so here we are. The

      alleged victim MIA. Here we are though, the Defendant having to defend

      himself.

             The Court:    Okay, I want to hear an opening statement not a

      closing argument. What's your evidence going to show, sir?

             Trial Transcript at 107-108.



      {¶21} We find this portion of Attorney Stone’s opening statement which prompted

the trial court’s comment did not rise to that level of deficient performance required to
Stark County, Case No. 2018CA0045                                                           8


support a claim of ineffective assistance of counsel on either prong one or two of the

Strickland test.

       {¶22} Appellant’s second instance of alleged ineffective assistance is trial

counsel’s failure “to object to inadmissible hearsay by Officer Birone relative to the alleged

injury.” Brief of Appellant at 4. Appellant specifically references page 115 of the trial

transcript. The prosecutor asked Officer Birone, “What happened after you finished

looking around outside?” Officer Birone responded, “I was confronted at the front door

by a female who made the statement that her daughter’s boyfriend had been there and

had struck her in the head.” Tr. at 115. Defense counsel did not object.

       {¶23} The failure to make objections is not alone enough to sustain a claim of

ineffective assistance of counsel. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815,

848 N.E.2d 810, ¶ 103. Because the referenced testimony was cumulative to the victim’s

statements admitted at trial, we find Appellant cannot satisfy the second prong of the

Strickland test.

       {¶24} Appellant has failed to demonstrate how his trial counsel's performance was

deficient or that the result of the trial would have been different. Accordingly, he cannot

prevail on his claim of ineffective assistance. Strickland, 466 U.S. at 687.

       {¶25} Appellant’s first assignment of error is overruled.

                                                 II

       {¶26} In his second assignment of error, Appellant submits the trial court violated

his constitutional right to confront witnesses under the Sixth Amendment to the United

States Constitution and Section 10, Article 1 of the Ohio Constitution.

       {¶27} Although Appellant specifically assigns as error a violation of his Sixth
Stark County, Case No. 2018CA0045                                                                                 9


Amendment right to confront witnesses and references such in the first paragraph of his

argument in support of this assignment of error, the remaining portion of his argument

fails to advance this contention. Our review of the record reveals no objection based upon

the confrontation clause was asserted at trial.1

        {¶28} The state did not respond to Appellant’s confrontation clause assertion.

Because defense counsel failed to preserve this error, we find it unnecessary to address

it further as the error is waived.

        {¶29} Within this assignment of error, Appellant also contends the trial court erred

in granting the state’s notice of intent to introduce evidence pursuant to Evid. R. 804(B)(6).

We review the trial court's determination of admissibility under Evid. R. 804(B)(6) for an

abuse of discretion. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151,

at ¶ 92.

        {¶30} Evid. R. 804(B)(6), which provides an exception to the hearsay rule, reads:



                 (6) Forfeiture by Wrongdoing. A statement offered against a party if

        the unavailability of the witness is due to the wrongdoing of the party for the

        purpose of preventing the witness from attending or testifying. However, a

        statement is not admissible under this rule unless the proponent has given

        to each adverse party advance written notice of an intention to introduce the

        statement sufficient to provide the adverse party a fair opportunity to contest

        the admissibility of the statement.


1Appellate counsel did not specifically raise a claim of ineffective assistance of trial counsel for failing to
object to the violation of Appellant’s Sixth Amendment right to confront witnesses.
Stark County, Case No. 2018CA0045                                                        10


       {¶31} Specifically, Appellant maintains because he was acquitted of the

intimidation charge, the state did not establish his actions caused Mitchell’s absence;

therefore, Evid. R. 804(B)(6) was inapplicable and the trial court abused its discretion in

admitting her testimonial statements. We disagree. We find the fact Appellant was

ultimately acquitted of the intimidation charge does not render the trial court’s earlier

evidentiary ruling Mitchell’s testimonial statements to Officer Birone were admissible as

an exception to the hearsay rule an abuse of discretion.

       {¶32} Appellant’s second assignment of error is overruled.

                                                III

       {¶33} Appellant challenges his conviction as against the manifest weight of the

evidence, and based upon insufficient evidence.

       {¶34} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997–Ohio–52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991). Therein, the Ohio Supreme Court held, “An appellate

court's function when reviewing the sufficiency of the evidence to support a criminal

conviction is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Id. at paragraph two of the

syllabus.
Stark County, Case No. 2018CA0045                                                          11


       {¶35} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

       {¶36} “The weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967), at paragraph one of the syllabus. The trier of fact is in the best position to judge

the credibility of the witnesses.

       {¶37} Appellant was convicted of domestic violence, in violation of R.C.

2919.25(A), which prohibits a person from knowingly causing or attempting to cause

physical harm to a family or household member. R.C. 2901.01(A)(3) defines “physical

harm” as “any injury, illness, or other physiological impairment, regardless of its gravity or

duration.” Appellant was also convicted of criminal damaging or endangering, in violation

of R.C. 2909.06(A)(1), which provides, “No person shall cause, or create a substantial

risk of physical harm to any property of another without the other person's consent.”

       {¶38} As set forth in our Statement of the Case and Facts, Officer Birone arrived

at 822 Milton Court NW, Canton, Ohio, at approximately 6:30 a.m. on October 1, 2017,

and observed an SUV resting against the side of the residence. The officer spoke with

Kimberly Mitchell, the victim, who advised him Appellant, the father of her children, arrived

at the residence, either drunk or high, and accused her of cheating on him. Appellant
Stark County, Case No. 2018CA0045                                                        12


punched Mitchell in the head, causing a knot. Appellant broke her phone then threw a

playpen out the window. He grabbed her car keys and drove her car into pole, then fled.

Officer Birone described Mitchell's injuries. He indicated he observed damage to the

interior and exterior of the residence as well as a mangled playpen under a window.

      {¶39} Upon our review of the record, we find any rational trier of fact, after viewing

the evidence in a light most favorable to the prosecution, could have found Appellant

knowingly caused or attempted to cause physical harm to Mitchell, and caused or created

a substantial risk of physical harm to Mitchell’s vehicle and the playpen without her

consent. We further find the trier of fact clearly did not lose its way and create such a

manifest miscarriage of justice warranting the reversal of the judgment.

      {¶40} Appellant's final assignment of error is overruled.

      {¶41} The judgment of the Stark County Court of Common Pleas is affirmed.




By: Hoffman, J.

Wise, P.J. and

Delaney, J. concur
