[Cite as State v. Clark, 2017-Ohio-178.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103324



                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                           MOSES CLARK

                                                        DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-592368-A
                                   Application for Reopening
                                      Motion No. 500207

        RELEASE DATE:                January 18, 2017
FOR APPELLANT

Moses Clark, pro se
Inmate No. A671-842
Noble Correctional Institution
15708 McConnelsville Road
Caldwell, Ohio 43724


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Maxwell Martin
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

       {¶1} Moses Clark has filed an application for reopening pursuant to App.R. 26(B).

 Clark is attempting to reopen the appellate judgment rendered in State v. Clark, 8th Dist.

Cuyahoga No. 103324, 2016-Ohio-4561, that affirmed his conviction and sentence for

three counts of rape and three counts of kidnapping.        We decline to reopen Clark’s

appeal.

       {¶2} In order to establish a claim of ineffective assistance of appellate counsel,

Clark is required to establish that the performance of his appellate counsel was deficient

and the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990).

       {¶3} In Strickland, the United States Supreme Court held that a court’s scrutiny of

an attorney’s work must be highly deferential.     The court further stated that it is all too

tempting for a defendant to second-guess his attorney after conviction and that it would

be too easy for a court to conclude that a specific act or omission was deficient, especially

when examining the matter in hindsight.           Thus, a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.

Strickland.
        {¶4} Clark raises one proposed assignment of error in support of his application

for reopening. Clark’s sole proposed assignment of error is that:

        The appellant was denied effective assistance of appellate counsel on his
        first appeal as of right when he failed to properly raise his constitutional
        right to the confrontation clause.

        {¶5} Clark, through his assignment of error, argues that his right to confront the

victim was violated because she was deceased at the time of trial.       Specifically, Clark

argues that the trial court erred by admitting into evidence the statements made by the

deceased victim to a police officer and further erred by allowing the narrative from the

victim’s medical records into evidence.

        {¶6} The issues raised through Clark’s sole proposed assignment of error, the

admission into evidence of the deceased victim’s statements and the deceased victim’s

medical records, were previously addressed upon direct appeal to this court and found to

be without merit. With regard to the issue that the trial court erred in admitting into

evidence the statements of the deceased victim, this court in State v. Clark, supra, held

that:

        In the second assignment of error, Clark argues that the trial court erred in
        admitting statements that [the victim] made to Officer Gray. During trial,
        Officer Gray testified that he was one of the police officers who first
        arrived on scene to Ann Washington’s house, responding to a call that a
        female had just been raped. When he arrived, he found [the victim] slumped
        over in a chair, upset and crying. At this point in Officer Gray’s testimony,
        defense counsel objected, but the trial court overruled the objection. Officer
        Gray testified that [the victim] told him that she was riding the RTA bus
        with a friend but decided to get off because a man was bothering her. The
        man also got off the bus, followed her, and pulled out a gun on her.
       Defense counsel objected again at this point, and the trial court expressed
       its concern that the state had not laid the proper foundation for admission of
       [the victim’s] statement as an excited utterance exception to hearsay.
       Defense counsel argued the [the victim’s] statements were not excited
       utterances and admission of her statements would violate Clark’s right to
       confront witness within the meaning of Crawford v. Washington, 541 U.S.
       36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The trial court determined
       that [the victim’s] statements were indeed excited utterance and did not
       violate Crawford because the officer’s questioning was designed to address
       the emergency at hand.

       ***

       Officer Gray testified that [the victim]’s statements to him were made as
       soon as he responded to the scene and within ten minutes of when the 911
       call came into dispatch. Officer Gray and Washington each testified that
       [the victim] was crying and upset throughout the interview; Officer Gray
       testified that Washington had her open hand on [the victim]’s back trying to
       comfort and calm her. Under these facts, the trial court did not abuse its
       discretion in finding that [the victim]’s statements to Officer Gray fell
       within the “excited utterances” exception to the hearsay rule.

Clark at ¶ 30 - 32, 35.

{¶7} In addition, with regard to the right of confrontation, this court held that:

       Next, we determine whether Clark’s right of confrontation was
       violated.

       ***

       In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d
       224 (2006), the United States Supreme Court found the statements
       made with the “primary purpose” of enabling police to meet and
       “ongoing” emergency are not testimonial. Id. at 826.

              ***

              Under these circumstances, [the victim’s] primary purpose in
              talking to the police officer was to receive assistance from
              him and the police officer’s primary purpose was to assist [the
              victim]. Even though [the victim’s] statements to Officer
       Gray may be later used in court, it cannot be said that Officer
       Gray was seeking to develop [the victim’s] testimony about
       past events for a criminal proceeding. See State v. Goshade,
       1st Dist. Hamilton No. C-120586, 2013-Ohio-4457, ¶ 17.

       Therefore, considering the totality of the circumstances, we
       find that [the victim]’s statements were not testimonial and,
       therefore, the trial court did not err in allowing those
       statements into evidence under the excited utterance
       exception to the hearsay rule.

       ***

Clark at ¶36, 38 - 41.

       {¶8} Finally, with regard to the admission into evidence of [the victim’s]

medical records, this court held that:

       In the third assignment of error, Clark argues that the trial
       court
       erred when it allowed the narrative from [the victim]’s
       medical records into evidence.

       ***

       As with [the victim], the victim in [State v. Echols, 8th
       Dist. Cuyahoga No. 102504, 2015-Ohio-5138], died
       before trial. The [the victim]’s treating physician read a
       lengthy narrative into the record that included what she
       was doing before she was attacked and detailed
       circumstances of the attack. In this case, [nurse]
       Reali-Sorrell testified that it was important to collect
       information about the assault to understand what
       happened to [the victim], what her injuries might be,
       and to know how to treat her. Clark fails to point to
       any evidence, and we found none in our review of
       [nurse] Reali-Sorrell’s testimony, that shows that the
       nurse was collecting the information primarily to be
       used in later criminal proceedings. Thus, the trial
       court did not commit plain error when it allowed the
         nurse’s testimony with regard to [the victim]’s medical
         records into evidence pursuant to Evid.R. 803(4).

         In light of the above, we find that Clark’s Sixth
         Amendment rights were not violated by Officer Gray’s
         or nurse Reali-Sorrell’s testimony and the trial court
         did not abuse its discretion in allowing the testimony
         into evidence.

         The second and third assignments of error are
         overruled.

Clark at ¶ 42, 46 - 49.

         {¶9} Clark’s claim, that his right to confrontation under the Sixth

Amendment was violated by the trial court admitting the statements of the

deceased victim and further allowing the narrative from the victim’s

medical records admitted into evidence, is barred from further review by the

doctrine of res judicata. The issues presently raised in support of his sole

proposed assignment of error were previously determined to be without

merit in Clark, supra. Clark is not permitted to relitigate issues that were

previously raised on appeal and found to be without merit.          Ashe v.

Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); State v.

Crago, 93 Ohio App.3d 621, 639 N.E.2d 801 (10th Dist.1994); State v.

Williamson, 8th Dist. Cuyahoga No. 102320, 2015-Ohio-4482; State v. Day,

8th Dist. Cuyahoga No. 67767, 1995 Ohio App. LEXIS 4847 (Nov. 2,

1995).     Clark has failed to establish any prejudice through his sole

proposed assignment of error.
       {¶10} Finally, we find that Clark has failed to comply with App.R. 26(B)(2)(d),

which mandates that the applicant must attach to the application for reopening “a sworn

statement of the basis for the claim that appellate counsel’s representation was deficient.”

 State v. Doles, 75 Ohio St.3d 604, 665 N.E.2d 197 (1996); State v. Lechner, 72 Ohio

St.3d 374, 650 N.E.2d 449 (1995); State v. Bates, 8th Dist. Cuyahoga Nos. 97631, 97632,

97633, and 97634, 2015-Ohio-4176.

       {¶11} Accordingly, the application for reopening is denied.




LARRY A. JONES, SR., PRESIDING JUDGE

MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
