[Cite as State v. Bibbs, 2016-Ohio-8396.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,
                                                          CASE NO. 5-16-11
       PLAINTIFF-APPELLEE,

       v.

KEVIN E. BIBBS, SR.,                                      OPINION

       DEFENDANT-APPELLANT.



                 Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2015-CR-00243

                                      Judgment Affirmed

                           Date of Decision: December 27, 2016



APPEARANCES:

        William T. Cramer for Appellant

        Alex K. Treece for Appellee
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WILLAMOWSKI, J.

       {¶1} Defendant-appellant Kevin Bibbs (“Bibbs”) brings this appeal from the

judgment of the Court of Common Pleas of Hancock County. Bibbs alleges that the

trial court erred by 1) permitting a witness to read a prior written statement by the

witness and 2) admitting that statement as evidence. Bibbs also claims that he was

denied the effective assistance of counsel. For the reasons set forth below, the

judgment is affirmed.

       {¶2} On September 12, 2015, Bibbs and his wife, Brenda Bibbs (“Brenda”),

began arguing. Tr. 168. Brenda then turned away from Bibbs and he grabbed her

on the neck to keep her from walking away. Tr. 170-72. Brenda then pulled away

from Bibbs, which caused him to grab her again, this time by the face. Tr. 172-73.

Brenda then went into a different room and called the police because she was scared

of Bibbs. Tr. 174. Soon after the call, the police arrived on the scene. Tr. 177.

Brenda told the police what had happened and provided a written statement to the

police at that time. Tr. 210 and Ex. 7. Bibbs was then arrested and taken to the

police station. Tr. 224.

       {¶3} On September 22, 2015, the Hancock County Grand Jury indicted

Bibbs on one count of Domestic Violence with a previous conviction in violation of

R.C. 2919.25(A), a felony of the third degree. Doc. 1. A jury trial was held on

January 25, 2016. Doc. 67. During Brenda’s testimony, the prosecutor had her read

her prior written statement which she had provided to the police. Tr. 181. This

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statement was then admitted as an exhibit. Tr. 226. After deliberation, the jury

returned a verdict of guilty. Doc. 29. A sentencing hearing was held on March 30,

2016. Doc. 45. The trial court imposed a prison sentence of twenty-four months.

Id. Bibbs then filed a timely notice of appeal. Doc. 63. On appeal, Bibbs raises the

following assignments of error.

                            First Assignment of Error

       The trial court erred by permitting the State’s primary witness to
       read aloud to the jury a prior written statement to the police and
       to admit the written statement into evidence.

                          Second Assignment of Error

       [Bibbs] was denied the effective assistance of counsel when trial
       counsel failed to object to the admission of a prior statement by
       the State’s primary witness.

                            Prior Consistent Statement

       {¶4} In the first assignment of error, Bibbs claims that the trial court erred

by allowing Brenda to read her prior written statement and then to allow the

admission of that statement into evidence. Bibbs admits that no objection was made

to either the reading of the statement or to the admission of the statement. Thus,

this court must review this assignment of error under a plain error standard.

       Under Crim.R. 52(B), “[p]lain errors or defects affecting
       substantial rights may be noticed although they were not brought
       to the attention of the court.” To prevail under the plain-error
       standard, a defendant must show that an error occurred, that it
       was obvious, and that it affected his substantial rights. * * * We
       take “[n]otice of plain error * * * with the utmost caution, under


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       exceptional circumstances, and only to prevent a manifest
       miscarriage of justice.”

State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 62

(citations omitted).

       {¶5} “Hearsay” is defined 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.” Evid.R. 801(C). However, a prior written statement

may not be classified as hearsay if it meets certain requirements.

          Prior statement by witness. The declarant testifies at trial or
          hearing and is subject to cross-examination concerning the
          statement, and the statement is (a) inconsistent with
          declarant’s testimony, and was given under oath subject to
          cross-examination by the party against whom the statement is
          offered and subject to the penalty of perjury at a trial, hearing,
          or other proceeding, or in a deposition, or (b) consistent with
          declarant’s testimony and is offered to rebut an express or
          implied charge against declarant of recent fabrication or
          improper influence or motion, or (c) one of identification of a
          person soon after perceiving the person, if the circumstances
          demonstrate the reliability of the prior identification.

Evid.R. 801(D)(1).

       {¶6} In this case, the statement in question was admitted during the direct

examination of Brenda. Before she read the statement, Brenda testified that the

night of the incident, Bibbs was angry off and on. Tr. 167. The two of them were

arguing about Bibbs being “on his phone and not accomplishing anything, and

staying up all hours of the night and where [she] can’t get [her] rest.” Tr. 168. At

some point in the argument, she turned to leave, and Bibbs grabbed her on the neck.

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Tr. 172. Brenda pulled away and Bibbs reached out grabbing her by the face this

time. Tr. 172-73. When Brenda pulled away again, she went into the back room,

shut the door, and called the police. Tr. 173-74. Brenda then identified Exhibits 1-

5 as being photographs of her injuries. Tr. 170-76. Brenda also identified Exhibit

6 as a recording of the 911 call, which was played for the jury. Tr. 178. The

following shows the context in which the statement was admitted.

       Q. Okay. Are you on any medications that you shouldn’t be
       drinking on?

       A. Yes.

       Q. I don’t need to know that. I just had that question. Now you
       indicated to the 911 operator that you didn’t want an ambulance.
       Did you think you needed an ambulance that night?

       A. No.

       Q. Okay. Why was that?

       A. Because I knew he wouldn’t go to get back there to get me
       again.

       Q. Okay. Did you provide a written statement to the investigating
       officer?

       A. Yes, I did. Yes, I did.

       (Thereupon, State’s Exhibit 7 was marked for identification.)

       Q. This is the last set of questions I have. Do you recognize this
       document?

       A. Oh, yes, I wrote this.

       Q. Okay. Is that a copy of your written statement?

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Case No. 5-16-11



      A. Yes.

      Q. Okay. When did you write that?

      A. The night it happened, the morning that it happened.

      Q. Were the officers still there when you wrote it?

      A. Yes.

      Q. Okay. Could you read what you wrote?

      A. Yes. “Fighting, arguing, Kevin came up, come in and out, he
      grabbed left side of face, then grabbed my left side of neck, said
      bitch, called the cops. Bitch, you’re going down to [sic], bitch, I’ll
      kill you you’re mine. Brenda Bibbs.”

      Q. Okay. Now, you didn’t say that in your testimony that he said,
      Kevin said, bitch call the cops, but you’re going down too, bitch,
      I’ll kill you, you’re mine. Did he say those things that night?

      A. Yes.

      Q. Okay. Thank you, I have no further questions.

Tr. 180-82. The statement was later admitted without objection. Tr. 226.

      {¶7} The prior statement to the police was not inconsistent with Brenda’s

testimony, was not given under oath, and was not offered by Bibbs. Thus, the

exception set forth in Evidence Rule 801(D)(1)(a) is not applicable. The statement

was also not used for the purposes of identification, as the defendant was the

husband of the victim, so she knew his identity. Thus, the exception set forth in

Evidence Rule 801(D)(1)(c) also did not apply. The only possible exception would

be that provided by Evidence Rules 801(D)(1)(b).

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       {¶8} The statement in this case was consistent with Brenda’s trial testimony,

but the statement was read to the jury during direct examination. No challenge,

either express or implied, to the credibility of the witness indicating that she had

recently fabricated her statement or was doing so for an improper purpose had been

made. Brenda was not mentioned by Bibbs in the opening statement, she was the

first witness, and she had not been subject to cross-examination. Even on cross-

examination, no claim was made that she had fabricated her testimony or made it

for any improper purpose. The staff notes to 801(D)(1)(b) indicate that the use of

the prior statement is to rehabilitate the witness whose credibility has been

challenged. See also, State v. English, 12th Dist. Butler No. CA2013-03-048, 2014-

Ohio-441 (holding that it was error to admit prior consistent statement when

credibility of witness had not been challenged, but that the error was harmless due

to lack of objections); State v. Owens, 6th Dist. Lucas No. L-11-1207, 2013-Ohio-

325 (holding that although admission of prior consistent statement not used to rebut

previous claim of fabrication or improper influence was erroneous, it did not amount

to plain error when there was other evidence to support the conviction); and State v.

Hall, 8th Dist. Cuyahoga No. 96680, 2012-Ohio-266 (holding that Ohio Evid.R.

801(D)(1)(b) allows the admission of a prior consistent statement only if it is offered

to rebut an express or implied charge against the declarant of fabrication or improper

purpose). As no challenge to the credibility existed, the State was not using the



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prior consistent statement to rehabilitate the witness and the exception to the hearsay

rule set forth in Evidence Rule 801(D)(1)(b) does not apply.

       {¶9} Both Bibbs and the State argue on appeal that the statement was used

to refresh memory, though Bibbs argues it was an improper usage. Bibbs claims

that the State attempted to use the statement pursuant to Evidence Rule 612. This

rule allows the use of a writing to refresh the memory of a witness for the purpose

of testifying either while testifying or before testifying. This rule does not apply

because there was no indication in the record that the witness’ memory needed

refreshed. There were no questions asked to which the witness indicated she did

not recall which could be answered by the statement. Thus it was not used to refresh

her memory. Even if it had been used to refresh her memory, the State still would

not have been permitted under Evidence Rule 612 to admit the statement. The rule

only allows for the admission of the writing by the adverse party. Evid.R. 612 and

State v. Sanders, 130 Ohio App.3d 789, 797, 721 N.E.2d 433 (11th Dist. 1998).

       {¶10} The State argues that it could have the statement admitted pursuant to

the hearsay exception set forth in Evidence Rule 803(5).

       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.


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Evid.R. 803(5). As discussed above, there was no foundation laid in the record to

indicate that Brenda’s memory was insufficient in any manner which would

implicate the usage of Evidence Rule 803(5). If the State had shown that Brenda

could not remember, even after she had attempted to refresh her memory, she could

then have read the statement into the record. See Staff Notes to Evid.R. 803(5).

However, the statement still could not have been admitted as an exhibit by the

request of the State pursuant to this rule. Therefore, the trial court erred in allowing

the reading of the statement and in admitting it as an exhibit.

       {¶11} Although there was an error, our analysis cannot stop there. As there

was no objection to either the reading of the statement or the admission of the

statement as an exhibit, this court must determine whether the error was prejudicial

and arose to the level of plain error. “Plain error does not exist unless it can be said

that but for the error, the outcome of the trial would clearly have been otherwise.”

State v. Davis, 127 Ohio St.3d 268, 2010-Ohio-5706, 939 N.E.2d 147, ¶ 24.

       {¶12} In this case, Bibbs was charged with domestic violence, which

involves causing physical harm to a family member. R.C. 2919.25(A). Physical

harm is defined as “any injury, illness, or other physiological impairment, regardless

of its gravity or duration.” R.C. 2901.01(A)(3). Brenda testified that Bibbs was her

husband and that on the night in question he had grabbed her in a manner that caused

marks on the skin and pain. Officer Brooks Deidrick (“Deidrick”) responded to the

911 call and indicated that he took photographs of Brenda’s injuries. Tr. 214.

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Deidrick testified that Exhibit 5 specifically showed the injury to Brenda’s neck.

Tr. 215. Deidrick then testified that Exhibit 4 specifically showed injury to Brenda’s

left cheek. Tr. 216. The testimony of these witnesses supports the conviction even

without consideration of the admission of the prior consistent statement. Therefore,

the outcome of the trial would not have clearly been different without the error. The

error does not rise to the level of plain error and the first assignment of error is

overruled.

                             Ineffective Assistance of Counsel

       {¶13} In the second assignment of error, Bibbs claims that his counsel was

ineffective for failing to object to the reading of the prior consistent statement and

for failing to object to the admission of the statement as an exhibit.

       In evaluating whether a petitioner has been denied effective
       assistance of counsel, this court has held that the test is “whether
       the accused, under all the circumstances, * * * had a fair trial and
       substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d
       71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus.
       When making that determination, a two-step process is usually
       employed. “First, there must be a determination as to whether
       there has been a substantial violation of any of defense counsel's
       essential duties to his client. Next, and analytically separate from
       the question of whether the defendant's Sixth Amendment rights
       were violated, there must be a determination as to whether the
       defense was prejudiced by counsel's ineffectiveness.” State v. Lytle
       (1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d
       623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct.
       3135, 57 L.Ed.2d 1154.

       On the issue of counsel's ineffectiveness, the petitioner has the
       burden of proof, since in Ohio a properly licensed attorney is
       presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio

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       St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64
       Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The

failure to prove either 1) a substantial violation or 2) prejudice caused by the

violation makes it unnecessary for a court to consider the other prong of the test.”

State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20. “To show

prejudice, the defendant must show a reasonable probability that, but for counsel's

errors, the result of the proceeding would have been different.” State v. Conway,

109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95.

       {¶14} As discussed above, an error occurred when Brenda was allowed to

read the statement without first showing that it was admissible and then in allowing

the statement to be admitted as an exhibit. However, “[i]n order to demonstrate

prejudice, the defendant must prove a reasonable probability that the result of the

trial would have been different but for his or her counsel's errors.” State v. Ranes,

3d Dist. Putnam No. 12-15-03, 2016-Ohio-448, ¶ 14 (holding that counsel was not

ineffective when there was no showing of prejudice). Without the statement, the

evidence is such that it would not indicate a reasonable probability that the outcome

of the trial would have been different. The failure to show prejudice prohibits Bibbs

from prevailing on his ineffective assistance of counsel claim.         The second

assignment of error is overruled.




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       {¶15} Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Court of Common Pleas of Hancock County is affirmed.

                                                            Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/hls




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