         [Cite as State v. Walker, 2018-Ohio-3918.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                        :   APPEAL NO. C-170321
                                                          TRIAL NO. B-1604851
        Plaintiff-Appellee,                           :
                                                             O P I N I O N.
  vs.                                                 :

LORENZO WALKER,                                       :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 28, 2018



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Michael J. Trapp, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.

       {¶1}    Following a jury trial, defendant-appellant Lorenzo Walker was found

guilty of two counts of felonious assault with accompanying weapon specifications.

He appeals from the trial court’s entry convicting him of those offenses and imposing

an aggregate sentence of 19 years’ imprisonment.

       {¶2}   In three assignments of error, Walker argues that the trial court erred

in determining that victim Zachary Backus was unavailable and in allowing the state

to introduce prior testimony from Backus; that his counsel rendered ineffective

assistance by failing to submit a mitigation argument at sentencing; and that the trial

court erred by entering sentences that were contrary to law because they were

intended to punish him for twice exercising his right to a jury trial. Finding no merit

to his arguments, we affirm the trial court’s judgment.

                                 Factual Background


       {¶3}   On May 11, 2016, Backus and Jerdon Louiso were working as

“spotters” for a towing company. Their job was to drive around in search of vehicles

that were to be repossessed. While traveling in Backus’s vehicle and looking for a

particular car in Springfield Township, Backus and Louiso pulled into the parking lot

of an apartment complex to turn around. Walker approached Backus’s vehicle in the

parking lot and confronted Backus and Louiso. He cursed at them, ordered them to

leave, and fired multiple shots at Backus’s vehicle as it pulled away. Backus was

struck in his back by a ricocheting bullet, and his vehicle suffered significant damage.

       {¶4}   Walker was charged with two counts of felonious assault in violation of

R.C. 2903.11(A)(2), and accompanying weapon specifications. In January 2017, his



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                      OHIO FIRST DISTRICT COURT OF APPEALS



case proceeded to a jury trial, but a mistrial was declared when the jury was unable

to reach a verdict. A second jury trial began in May 2017. Backus failed to appear at

this second trial, and the state asked the court to declare him unavailable and permit

his testimony from the first trial to be read to the jury. Following a hearing, the trial

court determined that Backus was unavailable despite a good-faith effort by the state

to secure his presence, and it allowed the state to introduce Backus’s testimony from

the first trial because it had been subject to cross-examination and otherwise met the

requirements of Evid.R. 804(B)(1).

       {¶5}   Walker was found guilty of both counts of felonious assault and the

specifications, and was sentenced to an aggregate term of 19 years’ imprisonment.

                   Evid.R. 804(B)(1) and the Confrontation Clause


       {¶6}   In his first assignment of error, Walker argues that the trial court erred

in allowing the state to use the prior testimony of Backus. He argues that the

testimony was not admissible under Evid.R. 804(B)(1), and that the admission of

Backus’s prior testimony violated the Confrontation Clause.

       {¶7}   Walker argues that we should review the trial court’s admission of

Backus’s prior testimony for an abuse of discretion. While we typically review a trial

court’s evidentiary rulings for an abuse of discretion, “we review de novo evidentiary

rulings that implicate the Confrontation Clause.” State v. McKelton, 148 Ohio St.3d

261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 97, citing United v. Henderson, 626 F.3d

326, 333 (6th Cir.2010).

       {¶8}   Under Evid.R. 804(B)(1), former testimony given at another hearing of

the same or different proceeding by a witness who is found to be unavailable will not

be excluded as hearsay when “the party against whom the testimony is now offered *



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                     OHIO FIRST DISTRICT COURT OF APPEALS



* * had an opportunity and similar motive to develop the testimony by direct, cross,

or redirect examination.” Pursuant to Evid.R. 804(A)(5), a declarant is considered

unavailable when she or he “is absent from the hearing and the proponent of the

declarant’s statement has been unable to procure the declarant’s attendance * * * by

process or other reasonable means.”

       {¶9}   Testimony is admissible under Evid.R. 804(B)(1) “upon a showing that

the witness is unavailable despite reasonable efforts made in good faith to secure his

presence at trial.” State v. Keairns, 9 Ohio St.3d 228, 460 N.E.2d 245 (1984),

paragraph two of the syllabus; see State v. Wright, 2017-Ohio-1568, 90 N.E.3d 162, ¶

25 (1st Dist.).   The proponent of the declarant’s testimony bears the burden of

establishing unavailability. Keairns at 232; Wright at ¶ 25. The unavailability of a

witness must be established based on the testimony of witnesses, rather than hearsay

not under oath, unless the party against whom the testimony is being offered has

conceded the unavailability. Keairns at paragraph three of the syllabus; Wright at ¶

25.

       {¶10} Here, the record demonstrates that the state issued a subpoena to

Backus on March 14, 2017, notifying him that he was required to appear on May 2,

2017, to testify at trial. The Hamilton County Clerk of Court’s official appearance

docket reflects that the subpoena for Backus had been “returned and endorsed

Zachary Backus” that same day; however, our record contains a document that

indicates a failure of service on Backus by the Hamilton County Sheriff’s

Department, noting that Backus was out of county.

       {¶11} Backus failed to appear for trial on May 2, 2017. The state then issued

another subpoena to be personally served on Backus, stating that his presence was




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required the following day, May 3, 2017, to testify in the case against Walker. When

Backus failed to appear on May 3, the state asked the trial court to declare Backus

unavailable and allow his prior testimony to be read to the jury.

       {¶12} As the proponent of Backus’s testimony, the state had the burden of

establishing his unavailability and reasonable efforts made in good faith to secure his

presence. At a hearing, the state presented testimony from three people, including

Springfield Township Police Officer Chris Williams, regarding its attempt to secure

Backus’s presence. Officer Williams testified that he had attempted to serve Backus

at his place of residence after Backus failed to appear on May 2, 2017. Backus was

not home, but Officer Williams made contact with Backus’s brother, who informed

him that Backus was on the road with his band. Officer Williams testified that he left

a message for Backus, and that Backus returned his call, stating that he was in

Atlanta, Georgia with his band. Backus texted Officer Williams a picture of a flyer

indicating that his band was playing in Atlanta on May 2, 2017.          After leaving

Backus’s residence, Officer Williams then personally served Jerdon Louiso with a

subpoena for the following day.

       {¶13} Kelsey Alexander, a victim’s advocate with the Hamilton County

Prosecutor’s Office, testified that she had reached out to Backus on the Sunday prior

to the Tuesday that he had been subpoenaed to appear. Alexander summarized the

text message that she had sent to Backus as follows: “Hey, I’m just making sure that

you know to come to court and that you got your subpoena and that it’s a Court order

and it’s set to go.” When Backus failed to respond to Alexander’s text, she called him

the next day. Backus answered the phone, but hung up after Alexander identified

herself.   Alexander called Backus again, and left a message with the relevant




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information when Backus failed to answer. Alexander testified that texting had

previously been the best means of communicating with Backus.

        {¶14} The trial court determined that the state had made more than a

reasonable, good-faith effort to secure Backus’s presence at trial, and declared that

Backus was unavailable. The court noted that the clerk of court’s docket indicated

that on March 14, 2017, a subpoena issued to Backus had been returned and

endorsed, although the court stated that it was not sure whether Backus had, in fact,

received the subpoena.      The court permitted the state to introduce Backus’s

testimony from the first trial because it had been subject to cross-examination by

Walker’s counsel, who had the exact same motive to develop the testimony in the

prior trial.

        {¶15} Walker argues that the state did not make a reasonable, good-faith

effort to secure Backus’s presence because he claims that the state was aware six

weeks before trial that the subpoena issued to Backus had not been served, and it

took no additional efforts to find him in order to serve him with a subpoena before

trial. We cannot agree. The state issued a subpoena to Backus approximately six

weeks prior to the date that he was scheduled to appear in court. Although the

record contains a document showing a return on Backus’s subpoena which indicates

that service had not been obtained, the clerk of court’s appearance docket reflects

that the subpoena had been “returned and endorsed Zachary Backus” on the date

that it was issued. On its face, this indicates that Backus had been successfully

served and notified of his need to appear in court on May 2. And the state could have

reasonably relied on it in its efforts to procure Backus’s attendance by process.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} Citing to Keairns, the dissent asserts that it was not reasonable for the

trial court to rely on the appearance docket because a finding of good-faith and

reasonable efforts must be based on witness testimony. While Keairns requires

testimony rather than hearsay not under oath, it does not preclude reliance on other

admissible evidence and court records. Keairns, 9 Ohio St.3d 228, 460 N.E.2d 245,

at paragraph three of the syllabus; Wright, 2017-Ohio-1568, 90 N.E.3d 162, at ¶ 25.

The concerns raised in Keairns with relying on hearsay statements are not

implicated when a trial court, to determine good-faith efforts, considers the

appearance docket, an official part of the court record that the clerk is mandated to

keep. See R.C. 2303.12 (“The clerk of the court of common pleas shall keep at least

four books. They shall be called the appearance docket, trial docket and printed

duplicates of the trial docket for the use of the court and the officers thereof, journal,

and execution docket.”).

       {¶17} The dissent further argues that the trial court erred in relying on the

appearance docket because the clerk’s notation on the docket was only a brief

description of the record, and not the actual record. It cites Centofanti v. Wayne

Homes, 7th Dist. Mahoning No. 10 MA 180, 2012-Ohio-4116, ¶ 24, for the

proposition that “a docket notation by the clerk should not be relied upon because it

does not reflect a properly filed court document.” The Centofanti court reviewed the

propriety of a trial court’s decision to vacate an arbitration award. In that case, the

appellant sought to enforce an arbitration award that he secured while a motion to

stay the case was pending and before the court ordered arbitration. The appellant

argued that he proceeded with arbitration because he had relied on a notation in an

electronic docket summary provided by the clerk, which changed the status of the




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                     OHIO FIRST DISTRICT COURT OF APPEALS



case to “stayed pending arbitration.” The court explained that a notation of a case

disposition in a docket is not a court order or judgment of the court, and that the

court speaks only through its journal. Id. at ¶ 24-25. In that case, the court never

entered an order staying arbitration and no such order was reflected in its journal.

Therefore, the appellant could not enforce an arbitration award.

       {¶18} Centofanti is not relevant to the case at hand. We are not treating the

appearance docket as a judgment of the court or relying on it to conclude that Backus

had, in fact, been properly served. Rather, because the appearance docket is part of

the official record, we find that for purposes of determining whether the state made

good-faith efforts to secure his presence “by process or other reasonable means,” it

was reasonable for the trial court to consider the appearance docket’s language that

the subpoena issued to Backus had been “returned and endorsed Zachary Backus.”

       {¶19} In addition to attempting to secure Backus’s presence by process, the

state took further efforts to secure Backus’s presence. Victim’s advocate Kelsey

Alexander contacted Backus a few days before he was scheduled to appear in court.

Backus did not respond to Alexander’s text message. When she called him, he hung

up. When she called again and left a message, he did not return her telephone call.

And when Backus failed to appear for trial on May 2, 2017, the state attempted that

same day to personally serve him with another subpoena via Officer Williams.

       {¶20} Following our review of the record, we find that the state made a

reasonable, good-faith effort to secure Backus’s presence at trial via process and

other reasonable means. The state issued a subpoena to Backus approximately six

weeks prior to trial and the appearance docket indicated that the subpoena had been

returned and endorsed by him. It followed up with Backus via a victim’s advocate a




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                     OHIO FIRST DISTRICT COURT OF APPEALS



few days before trial. And it attempted to personally serve him after he failed to

appear on the first day of trial. Nothing in the record demonstrates that the state did

not act in good faith in making these efforts. Because Backus’s testimony from the

first trial came from an adversarial proceeding (a trial on the exact same charges),

and was subject to cross-examination by Walker, the trial court did not err in

admitting it under Evid.R. 804(B)(1) after determining that Backus was unavailable.

See Wright, 2017-Ohio-1568, 90 N.E.3d 162, at ¶ 30.

       {¶21} We further hold that the admission of Backus’s prior testimony did not

violate the Confrontation Clause. The Confrontation Clause provides that an accused

has the right to confront witnesses against her or him, and it “bars the ‘admission of

testimonial statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had a prior opportunity for cross-

examination.’ ” State v. Lewis, 1st Dist. Hamilton Nos. C-050989 and C-060010,

2007-Ohio-1485, ¶ 29, quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124

S.Ct. 1354, 158 L.Ed.2d 177 (2004); see State v. Ford, 10th Dist. Franklin No. 07AP-

803, 2008-Ohio-4373,¶ 89. Here, we have already determined that the trial court

did not err in determining that Backus was unavailable, despite reasonable, good-

faith efforts to secure his presence.   And Walker had the opportunity to cross-

examine Backus when he testified at the first trial. Consequently, the admission of

Backus’s prior testimony was not in violation of the Confrontation Clause.

       {¶22} The first assignment of error is overruled.




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                        OHIO FIRST DISTRICT COURT OF APPEALS


                               Ineffective Assistance


       {¶23} In his second assignment of error, Walker argues that he received

ineffective assistance from his trial counsel when counsel failed to submit a

mitigation argument at sentencing.

       {¶24} Walker’s counsel stated at the sentencing hearing that “I don’t want to

ruin anything by saying the wrong thing for the appellate record. So I will submit

with regard to that.”

       {¶25} Counsel will not be considered ineffective unless her or his

performance was deficient and caused actual prejudice to the defendant. Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance

will only be deemed deficient if it fell below an objective standard of reasonableness.

Strickland at 688; Bradley at 142.     A defendant is only prejudiced by counsel’s

performance if there is a reasonable probability that the outcome of the proceeding

would have been different but for the deficient performance. Strickland at 694;

Bradley at 142.    A reviewing court must indulge a presumption that counsel’s

behavior fell within the acceptable range of reasonable professional assistance.

Strickland at 689; Bradley at 142.

       {¶26} Generally, the presentation of mitigation argument at a sentencing

hearing is a matter of trial strategy that will not support a claim of ineffective

assistance. State v. Tinsley, 8th Dist. Cuyahoga No. 105551, 2018-Ohio-278, ¶ 17.

Walker contends that the utter failure to offer mitigation cannot be considered a

valid strategy.   We hold that, even if counsel’s failure to present a mitigation

argument could be considered deficient, Walker has failed to establish a reasonable




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                       OHIO FIRST DISTRICT COURT OF APPEALS



probability that the outcome of the proceeding would have been different but for

counsel’s deficient performance. In imposing maximum consecutive sentences, the

trial court considered both Walker’s lengthy juvenile record and his prior conviction

for manslaughter, and stated that Walker’s conduct in this case exhibited a total

disregard for human life. The record contains no evidence that the trial court would

have imposed a lesser sentence had counsel presented a mitigation argument.

          {¶27} Walker’s second assignment of error is overruled.

                                       Sentencing


          {¶28} In his third assignment of error, Walker argues that the trial court

erred by entering sentences that were contrary to law because they were intended to

punish him for twice exercising his right to a jury trial, depriving him of due process

of law.

          {¶29} Prior to imposing sentence, the trial court stated “[h]ere is the deal,

Mr. Walker, sir, certainly I appreciate your right to a jury trial. We did that. That’s

your right and good for you. We tried it twice and, actually, 23 out of 24 jurors said

that you were guilty. So we did it again.” Walker argues that the trial court’s

statements expressed its antipathy towards him for twice exercising his right to a

jury trial, and that the sentence was punishment for exercising this right.

          {¶30} The Ohio Supreme Court recently addressed an allegation of vindictive

punishment in State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431.

The Rahab court held that “[t]here is no question, then, that a sentence vindictively

imposed on a defendant for exercising his constitutional right to a jury trial is

contrary to law.” Id. at ¶ 8. But the court declined to apply a presumption of




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                       OHIO FIRST DISTRICT COURT OF APPEALS



vindictiveness, and held that a defendant must prove actual vindictiveness by the

trial court. Id. at ¶ 19.

        {¶31} Here, we find no vindictiveness in the trial court’s sentence. A review

of the entire sentencing hearing convinces us that the court, in its comments, was

merely commenting on the fact that Walker had been accorded two trials, and that

all but one juror from those trials had believed he was guilty. Walker has failed to

demonstrate that the sentences were the product of actual vindictiveness.

        {¶32} Because Walker has failed to demonstrate by clear and convincing

evidence that the sentences imposed were intended to punish him for exercising his

right to a jury trial, we overrule his third assignment of error.

                                        Conclusion


        {¶33} Having overruled Walker’s assignments of error, we accordingly affirm

the trial court’s judgment.

                                                                    Judgment affirmed.


CUNNINGHAM, P.J., concurs.
ZAYAS, J., dissents.

ZAYAS, J., dissenting.

        {¶34} I respectfully dissent from the majority opinion and would find that

the trial court erred in concluding that the state made a reasonable good-faith effort

to secure the witness’s attendance at trial. Accordingly, I would reverse the trial

court’s judgment and remand the cause for a new trial.

                            Standard of Review for Unavailability

        {¶35} The Confrontation Clause of the Sixth Amendment to the United

States Constitution provides criminal defendants with the right to be confronted with



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                     OHIO FIRST DISTRICT COURT OF APPEALS



adverse witnesses. Because of this preference for the testimony of a witness who can

be cross-examined and observed by the trier of fact, the Confrontation Clause and

Evid.R. 804 require the state to establish a witness’s unavailability before the trial

court can admit hearsay into evidence. State v. Keairns, 9 Ohio St.3d 228, 229-230,

460 N.E.2d 245 (1984).

       {¶36} To establish unavailability, the prosecution must show that the witness

is unavailable despite the state’s good-faith effort to obtain the witness’s presence at

trial. Id. at 230.   Whether a good-faith effort has been made is a question of

reasonableness. Id. at 232. A showing of unavailability must be based upon the

testimony of witnesses, under oath, as to the good-faith efforts to secure the witness

for trial when, as here, the defendant does not concede unavailability. Id. at 250;

State v. Wright, 2017-Ohio-1568, 90 N.E.3d 162, ¶ 25 (1st Dist.), citing Keairns at

paragraph three of the syllabus; State v. Nix, 1st Dist. Hamilton No. C-030696,

2004-Ohio-5502, ¶ 26-27.

       {¶37} Generally, a trial court’s decision to admit or exclude evidence will not

be disturbed absent an abuse of discretion. State v. Wolderufael, 10th Dist. Franklin

No. 02AP-1148, 2003-Ohio-3817, ¶ 27. “When the gravamen of the evidentiary

question involves a constitutional right or other pure legal question, however, the

standard of review is de novo.” State v. Hairston, 10th Dist. Franklin No. 08AP-735,

2009-Ohio-2346, ¶ 27. See Wolderufael at ¶ 27 (explaining that when an evidentiary

issue involves a pure legal question, the standard of review is de novo); Hamilton v.

Morgan, 474 F.3d 854, 858 (6th Cir.2007) (concluding issues of the unavailability of

the witness and the reasonableness of the state's efforts to produce the witness are

reviewed de novo).




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                               Unavailability Hearing

        {¶38} The testimony presented by the state established that Alexander knew

that Backus played in a band and traveled frequently to perform.          Backus had

previously told her that texting was the best way to reach him. On Sunday, two days

prior to trial, she sent a text message to Backus to confirm that he had received a

subpoena and would appear for court. He did not respond to her text.

        {¶39} The following day, she called him, and the phone connection sounded

like it had dropped. She could hear noises in the background, but Backus did not

respond when she said, “Hello.” After he hung up, she immediately called him back

thinking the connection had dropped, and the call went straight to his voicemail. She

left all of the information in a message, and asked him to call her. He did not return

the call.

        {¶40} Officer Williams testified that he attempted to serve a subpoena on

Backus after he failed to appear for trial. His attempt was unsuccessful because

Backus was not home.        Later that night, Backus called him, and after their

conversation, he texted Williams a flyer showing that he was currently performing in

Atlanta.

        {¶41} The record shows that the prosecutor issued a subpoena for Backus on

March 14, 2017, commanding him to appear on May 2, 2017. The subpoena was

returned the same day, endorsed by Deputy Bernius, showing that he was unable to

serve the subpoena, with an additional remark, “outside of Hamilton County.” The

return reflects that no sheriff fees or mileage fees were incurred. The prosecution did

not discuss this subpoena or offer any sworn testimony regarding this subpoena.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶42} The trial court sua sponte reviewed the clerk of court’s website and

noted the clerk’s electronic docket contained a notation on March 14, 2017, that

“indicates that a subpoena was sent, returned, and endorsed, Zachary Backus.” The

court further noted that, “I am not sure if he got it, or whatever, but certainly as part

of the state’s efforts, they did send out the subpoena ***.” The record does not

indicate that the trial court reviewed the actual subpoena return that was issued and

returned, unserved, on March 14, 2017.

       {¶43} I must note that the clerk’s website is not part of our record. See

App.R. 9(A). However, the appearance docket, which is part of the record on appeal,

notes that a subpoena was issued to Backus on March 14, 2017. The docket also

notes that the subpoena for Backus was “returned and endorsed Zachary Backus” the

same day. Nothing in the appearance docket notes that a subpoena was “sent” or

“sent out” as the court found. And a review of the filed subpoena return shows that

the deputy was unable to serve the subpoena to Backus’s address with a remark:

“Outside of Hamilton County.” No sheriff fees or mileage fees were incurred.

       {¶44} The court erred in relying on the docket entry as evidence of the state’s

good-faith efforts absent any testimony by the state that the clerk’s notation factored

into its good-faith efforts to locate the witness and absent a return showing that the

subpoena had been served. The clerk’s notation is a brief description of the record

that was filed, and not the actual record that was filed. See Sup.R. 26.03(C); see also

Centofanti v. Wayne Homes, 7th Dist. Mahoning No. 10 MA 180, 2012-Ohio-4116, ¶

24 (explaining that a docket notation by the clerk should not be relied upon because

it does not reflect a properly filed court document). The language in the clerk’s




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notation does not establish that the subpoena had been served. And, in fact, the

return that was endorsed by Bernius indicates that the subpoena was not served.

       {¶45} The state presented no testimony regarding the subpoena that was

issued and returned unserved on March 14, 2017. The state presented no testimony

from a witness from the clerk’s office regarding the meaning of its notation. Finally,

the state presented no evidence that it had seen the clerk’s entry or that the entry

impacted its good-faith efforts to secure Backus for trial.

       {¶46} Because the state presented no testimony regarding the subpoena or

the clerk’s notation, the trial court erred in relying on the clerk’s notation to conclude

that the state sent out a subpoena to Backus on March 14, 2017, as part of its good-

faith efforts to secure his presence for trial. See Keairns, 9 Ohio St.3d 228, 460

N.E.2d 245, at paragraph three of the syllabus. In reviewing the testimony regarding

the state’s efforts, the court’s erroneous reliance on the clerk’s notation led to its

conclusion that the state made more than reasonable efforts to secure Backus’s

testimony.

       {¶47} A review of the record establishes that the state did not make a

reasonable effort to secure Backus for trial.          There is no return of service

demonstrating proper service on Backus. The state issued a subpoena on March 14,

2017, but that subpoena was returned unserved the same day. The state did not

issue a second subpoena after the first one was returned unserved until after the trial

had begun.    The state made no efforts to contact or otherwise secure Backus’s

presence between March 14, 2017, when the subpoena was returned unserved, and

April 30, 2017, when Alexander sent a text message to Backus.

       {¶48} While the state made multiple efforts to contact Backus after the




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subpoena was returned unserved, those subsequent efforts did not begin until two

days before the scheduled trial. On a Sunday, the victim’s advocate sent him a text

message informing him of the trial date. Until that time, the state presented no

evidence that Backus had been informed of the trial date. The following day, the

advocate again attempted to reach him by calling him and leaving a message. The

last attempt to secure his presence occurred after the trial had commenced when a

police officer attempted to personally serve him with a subpoena. The state was

aware that Backus traveled frequently with his band.

       {¶49} This lapse of time in which the state made no effort to contact Backus

is not sufficiently reasonable or diligent to secure his presence for trial. See State v.

Workman, 171 Ohio App.3d 89, 2007-Ohio-1360, 869 N.E.2d 713, ¶ 20, 23 (3d Dist.)

(finding that the state’s issuance of a subpoena four days before trial that was

returned unserved the day of trial because the sheriff’s office could not locate the

witness did not constitute reasonable efforts); State v. Reese, 5th Dist. Richland No.

06CA45, 2007-Ohio-1082 (finding that where the state made no effort to contact the

witness until the issuance of a subpoena five days before trial and a subpoena on the

day of trial “negates any argument of reasonable diligence.”). Because the state

failed to demonstrate unavailability, the trial court abused its discretion in admitting

the prior testimony of Backus.

       {¶50} Having determined that the prior testimony was inadmissible, the

remaining issue is whether Walker was prejudiced by its admission. Backus was the

state’s key witness, and the only witness who could identify Walker as the shooter.

Because Backus’s testimony provided the only evidence identifying Walker as the

perpetrator of the offenses, the inadmissible hearsay prejudiced Walker and violated




                                               17
                      OHIO FIRST DISTRICT COURT OF APPEALS



his confrontation rights.

       {¶51} Accordingly, I would sustain the first assignment of error, reverse the

judgment of the trial court, and remand the cause for a new trial. I would hold the

remaining assignments of error to be moot.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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