[Cite as State v. Spradlin, 2017-Ohio-630.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              CLERMONT COUNTY




STATE OF OHIO,                                       :

          Plaintiff-Appellee,                        :      CASE NO. CA2016-05-026

                                                     :             OPINION
    - vs -                                                          2/21/2017
                                                     :

RYAN SPRADLIN,                                       :

          Defendant-Appellant.                       :



    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                         Case No. 2016 CR 0023



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

The Farrish Law Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati,
Ohio 45202, for defendant-appellant



          RINGLAND, J.

          {¶ 1} Defendant-appellant, Ryan Spradlin, appeals his conviction in the Clermont

County Court of Common Pleas for felonious assault. For the reasons detailed below, we

affirm.

          {¶ 2} At trial, Michelle Jesse testified that she lived in the same apartment building as

Spradlin, his wife Tia, and their children. In the early morning hours of January 3, 2016, she
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and her friend Donna Lowery were outside Jesse's apartment, smoking. They heard loud

music coming from the Spradlins' apartment. Jesse then started to hear "a lot of screaming,

hollering, yelling, thump, thump, thump, a lot of noises." She heard Tia yell "help, help."

Lowery also heard a woman's voice calling for help.

          {¶ 3} Jesse called 9-1-1 and told the dispatcher "I need the police here right away * *

* [h]e's beating the hell out of this lady downstairs." The dispatcher asked her if she could

see what was happening and she responded, "No, I can hear it. Oh, my God, you've got to

hurry."

          {¶ 4} Amelia Village Police Officer Saylor responded to the scene about two minutes

after being dispatched, or about 1:44 a.m. He approached the Spradlins' front door and

listened. He heard a female voice say "stop, get away from me" several times and then "help

me." Saylor announced himself and began knocking. He then heard "please help me, he's

going to kill me."

          {¶ 5} Saylor started kicking the door in an attempt to open it. After a number of

unsuccessful kicks, Saylor heard Spradlin say "hey, I got kids in here, man." Spradlin then

opened the door. From his vantage, Saylor could see into the bathroom and observed Tia

sitting on the bathtub. Her face was black and blue, and bloody. She was crying.

          {¶ 6} Officer Saylor saw blood on Spradlin's hand. He ordered Spradlin to the

ground, who complied. Saylor handcuffed Spradlin and immediately took him out to a police

car.

          {¶ 7} Meanwhile, Jesse and Lowery entered the Spradlins' apartment. Jesse went to

check on the Spradlins' children and Lowery went to see Tia in the bathroom. Lowery

observed that Tia's mouth was bleeding, she had teeth missing, and her left eye was swollen

shut. Crying, Tia told Lowery that Spradlin had accused her of cheating and he assaulted her

so that she "wouldn't be pretty anymore." Lowery said that Tia appeared to be intoxicated.
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         {¶ 8} Officer Saylor returned from the police car and spoke with Tia.          Saylor

described her demeanor as "very upset, crying, shaking. She was struggling to – to put her

thoughts together * * *." He asked her if she was okay. She responded, "he was going to kill

me." Saylor noticed that there was water in the bathtub and asked her what it was for. She

said, "I think he was going to drown me." She said that Spradlin punched her and kicked her

in the head and face and that he knocked her teeth out.

         {¶ 9} Saylor spoke with Spradlin and asked what happened. Spradlin said that Tia

fell in the bathroom. He said he cut his hand by punching the front door, which was made of

steel.

         {¶ 10} Saylor took photographs of the apartment about ten minutes after he arrived

on scene, which the state entered into evidence. Some photographs depict the living room,

in which various small items are strewn chaotically about the floor of the living room. There

are photographs of two of Tia's dislodged teeth, which were dental implants. These were

located by police on the floor of the living room. Another photograph depicts a fist-sized hole

punched into a door. Saylor testified that the hole was on the exterior of the bathroom door.

         {¶ 11} Adam Dressler, a paramedic with the Union Township Fire Department,

treated Tia at the apartment and on an ambulance ride to the hospital. She was "frantic,

irate," and "very upset." Tia repeatedly told Dressler that Spradlin "knocked my fucking teeth

out," and that Spradlin punched her repeatedly and choked her. She said that Spradlin

turned the shower on to cover the sound of her screaming. She said he was "going to make

her so she wouldn't be pretty" and that she told him it would not matter if he did because she

had a good personality. Spradlin responded, "I'll just fucking kill you."

         {¶ 12} Doctor Adam Kennah, an emergency medical physician, provided medical

treatment to the Spradlins at the hospital. Tia told Dr. Kennah that Spradlin choked and

punched her repeatedly. She said that she felt pain around her eye and was only seeing
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black and white out of both eyes. Dr. Kennah diagnosed her with a traumatic orbital

hematoma (bruising at the eye). Dr. Kennah opined that it would take two to three weeks for

the swelling around the eye to dissipate. The doctor also noted that Tia had fractured dental

implants, which would require a dentist to assess for treatment. Tia also suffered a closed

head injury (a concussion with no disruption of the skull). Finally, Dr. Kennah observed

multiple contusions or bruises, including bruising on her shoulder blade, left arm, and around

her neck.

       {¶ 13} Dr. Kennah opined that Tia's injuries were consistent with being choked and

repeatedly punched. Dr. Kennah further opined that Tia's injuries were not consistent with a

"low level" fall, i.e., a fall from standing height. Dr. Kennah said that he would not expect to

see such traumatic injuries from a low level fall unless the injured person was elderly.

       {¶ 14} Dr. Kennah said that Spradlin told him that the laceration on his knuckle

resulted from him punching a wall and then catching it on a piece of metal while drawing his

hand back. Nonetheless, Dr. Kennah said that he treated Spradlin as if the laceration was

the result of being cut by teeth.

       {¶ 15} Spradlin testified. He said that on the night of January 2 he and his wife began

drinking and smoking marijuana after they put their children to sleep.            As the night

progressed, Tia became increasingly intoxicated and angry. She began screaming at him.

In response, he walked out onto his apartment patio to smoke a cigarette. Then he heard a

"deadly" and "nonstop" scream coming from inside the apartment

       {¶ 16} Spradlin ran back into the apartment and found Tia in the bathroom, face down

on the floor. She was still screaming, and he rolled her onto her back. He noted that she

had a black eye and there was blood on her lips. He saw her four "crowns," or dental

implants, on the bathroom floor.

       {¶ 17} He observed a wall-mounted towel rack in the bathroom that was now laying
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on the floor. He said that earlier in the night he had been bathing his children, they were

splashing, and there was water on the floor.

       {¶ 18} Spradlin said that as he was attempting to calm his screaming wife he began

to panic. He got up from the bathroom floor and started crying. He went out to the living

room area and grabbed his hair. He punched the front door of the apartment and cut his

hand on the metal hinge. Spradlin testified that he was left-handed.

       {¶ 19} He went back into the bathroom. Tia was laying on her stomach again. He

rolled her over once more. She was still very upset. At that point, he heard someone

knocking on the door.

       {¶ 20} The knocking became louder. Spradlin looked through the door's peephole

and saw that it was an Amelia Village police officer. The Spradlins' five-year-old child was

walking around the apartment by now, apparently awakened by Tia's screams. Spradlin told

the police officer that "I have children in here" and asked the police officer to wait. He carried

the child to her bed and then returned to the door and opened it. Officer Saylor ordered him

to the ground and he complied.

       {¶ 21} On cross-examination, Spradlin said that Officer Saylor was lying about where

the fist-sized hole in the door was located. Spradlin said that the photograph actually

depicted a hole in his bedroom door, which had been there for some time. Spradlin also said

that all of the debris on the floor of living room was not there when he was arrested. He

could not explain who caused the mess.

       {¶ 22} The case went to the jury, who deliberated for a day. Several hours after

deliberations began, the jury sent a note to the trial court indicating that they were

deadlocked, that they had discussed the case in great detail and voted twice but it was

obvious after their discussions that no one was wavering on their opinion or changing their

vote. The court read the jury an instruction encouraging them to continue their deliberations
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in an effort to reach a verdict.

       {¶ 23} Later, the jury sent the court a note indicating that they were still deadlocked.

The court asked for counsel to convene to discuss this second note. However, before the

court and counsel could meet, the jury sent a third note indicating that they were making

progress towards a verdict and wished to continue deliberating.

       {¶ 24} The jury ultimately rendered a guilty verdict. At sentencing, the court imposed

a prison term of three years. Spradlin presents five assignments of error for review.

       {¶ 25} Assignment of Error No. 1:

       {¶ 26} THE TRIAL COURT ERRED AS A MATTER OF LAW BY ALLOWING THE

STATE TO INTRODUCE HEARSAY STATEMENTS WHICH VIOLATED APPELLANT'S

RIGHT TO A FAIR AND IMPARTIAL TRIAL.

       {¶ 27} Spradlin argues the court erred in admitting Tia's various out-of-court

statements, i.e., yelling for help, identifying him as her attacker, and alleging how she was

attacked. Spradlin argues that these statements were hearsay and not otherwise admissible.

The state argues that Tia's out-of-court statements were either not hearsay, or were

admissible as exceptions to the hearsay rule, i.e., excited utterances or statements for the

purpose of medical diagnosis or treatment. Spradlin further argues that the state's use of

Tia's out-of-court statements, and his inability to cross-examine her, violated his rights under

the Confrontation Clause.

       {¶ 28} Spradlin concedes that he did not object to any of the statements he now

contends were erroneously admitted. Therefore, on appeal, he has waived any error except

plain error. "Plain errors or defects affecting substantial rights may be noticed although they

were not brought to the attention of the court." Crim.R. 52(B). Plain error does not exist

unless, but for the error, the outcome of the trial would have been different. State v. Blacker,

12th Dist. Warren No. CA2008-07-094, 2009-Ohio-5519, ¶ 39.
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                                          Directives

       {¶ 29} Jesse, Lowery, and Officer Saylor testified that they heard Tia yelling "help" or

"help me." Tia's yells for assistance are not hearsay. Evid.R. 801(C) defines "hearsay" 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." A "statement" is defined for

hearsay purposes, as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if

it is intended by the person as an assertion." Evid.R. 801(A).

       {¶ 30} "Help" and "help me" are not hearsay because they are directives and are not

"assertions." See State v. Richardson, 12th Dist. Clermont Nos. CA2014-03-023, CA2014-

06-044 and CA2014-06-045, 2015-Ohio-824, ¶ 47. An "assertion" for hearsay purposes

simply means to say that something is so, e.g., that an event happened or that a condition

existed. Id. A directive, like a yell for help, is not an assertion because it is incapable of

being proved either true or false. Therefore, a directive cannot be offered to prove the truth

of the matter asserted. Id. Accordingly, the court did not err in admitting this testimony.

                                     Excited Utterances

       {¶ 31} Spradlin contends that Tia's statements to Lowery and Officer Saylor

identifying Spradlin as her attacker, the mechanism of his attack, and the purpose behind the

attack (so she "wouldn't be pretty anymore") were inadmissible hearsay. Spradlin argues

that these statements were not admissible as excited utterances because they were the

product of reflection and not impulse.

       {¶ 32} Evid.R. 803(2) provides a hearsay exception for "[a] statement relating to a

startling event or condition made while the declarant was under the stress of excitement

caused by the event or condition." The controlling factor in analyzing whether a statement is

an excited utterance is whether the declaration was made under such circumstances as

would reasonably show that it resulted from impulse rather than reason and reflection. State
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v. Knecht, 12th Dist. Warren No. CA2015-04-037, 2015-Ohio-4316, ¶ 27. In Knecht, this

court concluded that the trial court properly admitted hearsay statements where two police

officers testified that a domestic violence victim was "crying, very upset, emotional,

distraught" when they first spoke with her. Id. at ¶ 28. The police also observed injuries on

the victim's head and face. Id. at ¶ 5.

       {¶ 33} We conclude that the trial court did not err in allowing Lowery and Officer

Saylor to testify as to Tia's statements inculpating Spradlin. The evidence showed that Jesse

called 9-1-1 soon after the assault began. Officer Saylor responded within two minutes of

being dispatched. When he arrived, Tia was still pleading for help.

       {¶ 34} Spradlin opened the apartment door and Officer Saylor could see that Tia was

injured. Saylor restrained Spradlin without incident and took him to his police car. He

returned immediately to check on Tia. Meanwhile, Lowery entered the apartment and spoke

with Tia. She found Tia on the bathroom floor, badly injured and crying. When Office Saylor

returned and encountered Tia he described her as "very upset, crying, shaking" and

"struggling to – to put her thoughts together." Officer Spradlin asked Tia if she was "okay." It

is not clear if she understood the question because she responded, "he was going to kill me."

       {¶ 35} We conclude these facts demonstrate that Tia's statements to Lowery and

Officer Saylor resulted from impulse and the stress of the situation and not reason and

reflection. Accordingly, we conclude that the court did not err in admitting Tia's out-of-court

statements testified to by Lowery and Officer Saylor.

       {¶ 36} We further conclude that Tia's statements to Dressler were also admissible as

excited utterances. Dressler testified that he arrived on scene eleven minutes after Officer

Saylor arrived. When he encountered Tia she had moved from the bathroom to her bed, but

was still "screaming," "frantic, irate" and "very upset." She remained "wound up" on the

ambulance ride to the hospital as she continued making statements inculpating Spradlin.
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                Statements for Purposes of Medical Diagnosis or Treatment

       {¶ 37} Spradlin argues that the court erred by allowing Dressler and Dr. Kennah to

testify as to Tia's statements inculpating Spradlin. Spradlin contends that these statements

were not admissible under the statements made for the purpose of medical diagnosis or

treatment exception to the hearsay rule.

       {¶ 38} Evid.R. 803(4) provides as follows: "[s]tatements made for purposes of medical

diagnosis or treatment and describing medical history, or past or present symptoms, pain, or

sensations, or the inception or general character of the cause or external source thereof

insofar as reasonably pertinent to diagnosis or treatment." However, statements identifying

an assailant are not properly admissible under Evid.R. 803(4) absent some evidence that the

identity of the perpetrator is reasonably pertinent to diagnosis or treatment. State v. Shouse,

12th Dist. Brown No. CA2013-11-014, 2014-Ohio-4620, ¶ 22; State v. Kingery, 12th Dist.

Fayette No. CA2009-08-014, 2010-Ohio-1813, ¶ 34.

       {¶ 39} Dressler and Dr. Kennah summarized their procedures for assessing a patient.

Dressler testified that he would take a medical history from the patient, so as to get a

"baseline for what their medical problems are, anything else we need to look for * * *." In

other words, "basically what led up to the event, why we are here." Dr. Kennah performed

his medical assessment with the goal to determine "the possible extent of the injuries."

Accordingly, he would question his patient to determine "the mechanism of how they were

injured so I can decide possibly how badly they were injured, and what needed to be

examined or studied."

       {¶ 40} The evidence indicated that Dressler and Dr. Kennah provided medical

diagnosis or treatment to Tia for her physical injuries sustained in the attack. After thoroughly

reviewing the record, we can find no evidence indicating that the identification of Tia's

attacker was reasonably pertinent to a medical professional's diagnosis or treatment.
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Accordingly, those portions of Tia's out-of-court statements made to Dressler and Dr. Kennah

which identified Spradlin as her attacker were not admissible under Evid.R. 803(4).1

        {¶ 41} Nonetheless, the admission of these statements does not rise to the level of

plain error for several reasons. First, we have already concluded that Tia's statements to

Dressler were admissible on other grounds, i.e., as excited utterances. Second, Tia's

statements to Dr. Kennah were largely if not entirely cumulative of testimony we have also

determined was admissible, i.e., the testimony of Lowery, Officer Saylor, and Dressler. This

court will not find plain error where erroneously admitted evidence is largely cumulative of

other, properly admitted evidence, and where the other properly admitted evidence amply

demonstrated a defendant's guilt. Shouse, 2014-Ohio-4620 at ¶ 23. Spradlin has therefore

failed to show that the outcome of his trial clearly would have been different but for the error,

and he cannot prevail on his plain error claim.

                                            Confrontation Clause

        {¶ 42} Spradlin argues that the admission of Tia's out-of-court statements through the

testimony of Dressler and Officer Saylor violated his Confrontation Clause rights because he

did not have the opportunity to cross-examine her at trial.

        {¶ 43} The Confrontation Clause as found in the Sixth Amendment to the United

States Constitution preserves the right of a criminal defendant "to be confronted with the

witnesses against him." To that end, the Confrontation Clause bars the admission of

"testimonial hearsay" unless the declarant is unavailable and the accused had a prior

opportunity to cross-examine the declarant. Knecht, 2015-Ohio-4316, at ¶ 21. They key

issue, therefore, is whether the statement was "testimonial." Id.

        {¶ 44} The United States Supreme Court found testimonial statements existed where


1. This is not to say that the identity of Tia's attacker was not relevant to diagnosis or treatment. There simply is
insufficient evidence in this record to permit us to reach that conclusion.
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there was no ongoing emergency and the statements resulted from a police interrogation

whose "'primary purpose [was] to establish or prove past events potentially relevant to later

criminal prosecution.'" State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, ¶ 17, quoting

Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266 (2006). However, as the United

States Supreme Court further explained, "the existence vel non of an ongoing emergency is

not the touchstone of the testimonial inquiry." Michigan v. Bryant, 562 U.S. 344, 374, 131

S.Ct. 1143, (2011). (Emphasis sic.) Rather, in making this "primary purpose" determination,

courts must consider "all of the relevant circumstances." Id. at 369. In other words, "whether

an ongoing emergency exists is simply one factor – albeit an important factor – that informs

the ultimate inquiry regarding the 'primary purpose' of an interrogation." Id. at 366.

       {¶ 45} Another factor to be considered in determining the "primary purpose" of an

interrogation is the formality of the situation. Ohio v. Clark, ___ U.S. ___, 135 S.Ct. 2173,

2180 (2015). For instance, while a "formal station-house interrogation" is more likely to

provoke testimonial statements, "less formal questioning is less likely to reflect a primary

purpose aimed at obtaining testimonial evidence against the accused." Id. The standard

rules of hearsay, designed to identify some statements as reliable, are also relevant when

determining whether a statement is testimonial. Id. The same is true regarding "the

statements and actions of both the declarant and interrogators" for this "provide[s] objective

evidence of the primary purpose of the interrogation." Bryant at 367. In the end, "the

question is whether, in light of all the circumstances, viewed objectively, the 'primary purpose'

of the conversation was to 'creat[e] an out-of-court substitute for trial testimony.'" Clark at

2180, quoting Bryant at 358. "Where no such primary purpose exists, the admissibility of a

statement is the concern of state and federal rules of evidence, not the Confrontation

Clause." Id., quoting Bryant at 359.

       {¶ 46} Spradlin argues that Tia's statements to Officer Saylor and Dressler were
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testimonial because they were in response to questioning and further, that that there was no

ongoing emergency because Officer Saylor had already restrained him by the time Tia made

the statements. After thoroughly reviewing the record, we conclude that Tia's statements to

Officer Saylor and Dressler were nontestimonial.

       {¶ 47} As the record reflects, Tia's statements to Officer Saylor inculpating Spradlin

occurred only minutes after Saylor arrived on scene and while there was an ongoing

emergency. By that time the focus of the emergency had shifted from stopping an assault to

determining the appropriate medical response for Tia's care. That Spradlin had been

restrained did not terminate the urgency of making the appropriate medical decision for Tia's

injuries.

       {¶ 48} Moreover, Officer Saylor did not ask Tia a question one would expect in a

formal police interrogation. He asked her if she was okay. This question was consistent with

Officer Saylor's trial testimony that when he first interacted with Tia he was attempting to

assess her need for emergency medical assistance. In other words, we do not believe that

Officer Saylor was attempting to question Tia in an effort to create a substitute for her

testimony at trial.

       {¶ 49} We further find that the statements Tia made to Dressler also do not implicate

the Confrontation Clause because the primary purpose of Dressler's questioning was to

obtain an accurate medical history and then to provide appropriate treatment at the

apartment and while traveling to the hospital. Dressler testified that his job as a paramedic

was not to investigate the scene or necessarily determine what caused the injury, but to give

the person treatment as quickly as possible. Accordingly, we find Tia's statements to

Dressler and Officer Saylor were nontestimonial and thus do not implicate Spradlin's rights

under the Confrontation Clause. This assignment of error is meritless.

       {¶ 50} Assignment of Error No. 2:
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       {¶ 51} THE TRIAL COURT ERRED AS A MATTER OF LAW BY PERMITTING TIA

SPRADLIN TO ASSERT A FIFTH AMENDMENT RIGHT NOT TO TESTIFY OUTSIDE THE

PRESENCE OF THE JURY WHICH VIOLATED APPELLANT'S RIGHT TO A FAIR TRIAL.

       {¶ 52} The state subpoenaed Tia to appear at trial and give testimony. Tia appeared

with counsel, who informed the court that Tia intended to invoke her Fifth Amendment right to

remain silent if asked any questions about what happened on January 3, 2016. At the state's

request, and with no objection from Spradlin, the state questioned Tia outside of the

presence of the jury. She answered several preliminary questions, i.e., her name, address,

and relationship to Spradlin. When the state asked what happened between her and

Spradlin the morning of January 3, she responded that she was "pleading the fifth."

       {¶ 53} The court then announced that there was the possibility that her answers,

depending on what they were, could incriminate her, and that she had the right to exercise

her rights under the Fifth Amendment. Spradlin's counsel did not object and furthermore

indicated they had no other questions of Tia. Accordingly, the court excused Tia from

testifying.

       {¶ 54} Later in the trial, while discussing jury instructions with counsel, the court made

some comments reflecting its lack of understanding of Tia's motivation to assert her Fifth

Amendment rights:

              So, Tia Spradlin has not testified, and she has taken the 5th
              Amendment. And she may be not testifying because she doesn't
              want to testify against her husband. She may be test – may not
              be testifying because she doesn't want to provide evidence that
              would help convict him. She may be testifying – not testifying
              because she lied in the statement she made. She may not be
              testifying because she committed a crime of her own. I mean,
              there are all kinds of possibilities. It would be speculation to
              suggest why – what her testimony would have been if she had
              testified, and why she has chosen not to testify.

(Emphasis added.)


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       {¶ 55} Spradlin argues that the court committed plain error by failing to conduct a

colloquy to determine if Tia had a proper basis to invoke her rights under the Fifth

Amendment. Spradlin concedes that he is limited to a review for plain error because he did

not object. However, he argues that the outcome of the trial could have been different had

Tia been required to testify. He contends that his conviction was premised entirely on Tia's

out-of-court statements. So if he had had the opportunity to cross-examine her at trial, Tia

may have contradicted her out-of-court statements or corroborated his version of events.

       {¶ 56} In State v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, the Ohio Supreme

Court addressed the responsibility of the trial court in a situation where a witness refuses to

testify on the basis of the Fifth Amendment. The court noted that the proponent of the

privilege bears the burden of demonstrating that he or she is "faced with some authentic,

objectively reasonable danger of incrimination." Id. at ¶ 44. To this end, the trial court has

the "critical" responsibility to inquire "into the basis of a witness's assertion of the privilege * *

* even when the purported basis seems implausible, frivolous, or suspect." Id. at ¶ 47. In

other words, "[a] trial court must ensure that the proponent of the privilege provides the basis

for asserting the privilege and evidence to support that claim * * *." Id. at ¶ 46.

       {¶ 57} After reviewing the record, we find that the trial court failed to conduct the

inquiry mandated by Arnold. While we agree that this was error, we do not find that it rises to

the level of plain error.

       {¶ 58} This court cannot say that but for the trial court conducting the proper Arnold

colloquy the outcome of the trial would have been different. As the trial court noted, Tia

could have invoked the privilege for any number of reasons, including reasons which would

not have been proper (e.g., because she intended to perjure herself). Accordingly, there is

no evidence from which we could determine whether the trial court would have permitted her

to exercise her Fifth Amendment right or ordered her to answer the state's questions.
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       {¶ 59} Assuming the court ordered her to testify, it would be yet another leap for us to

speculate as to the content of her testimony. Spradlin argues that she "could" have testified

favorably for him. However, she could have done the opposite. As such, Spradlin cannot

demonstrate that there would have been a different result at trial but for the court's failure to

conduct the Arnold colloquy.

       {¶ 60} Moreover, we do not agree with Spradlin's argument that his conviction was

based entirely on Tia's out-of-court statements. As we will discuss below, even if we

excluded all of Tia's statements inculpating Spradlin, the state produced other evidence, both

direct and circumstantial, which supported Spradlin's conviction. Accordingly, this court

concludes that Spradlin has not demonstrated plain error and this assignment of error is

meritless.

       {¶ 61} Assignment of Error No. 3:

       {¶ 62} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN APPELLANT'S

CONVICTION FOR FELONIOUS ASSAULT.

       {¶ 63} Spradlin argues that his conviction for felonious assault was against the

manifest weight of the evidence because the state failed to prove that he was the perpetrator

of the assault. He argues that he was the only witness at trial who had first-hand knowledge

of what occurred inside the apartment and his version of events was consistent with the

evidence. He separately argues that the state failed to prove that Tia suffered "serious

physical harm."

       {¶ 64} When reviewing the sufficiency of the evidence to support a criminal

conviction, an appellate court's function is to examine the evidence admitted at trial to

determine whether such evidence, viewed in a light most favorable to the prosecution, would

convince the average mind of the defendant's guilt beyond a reasonable doubt. State v.
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Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 17.

       {¶ 65} In determining whether a judgment is against the manifest weight of the

evidence, an appellate court must look at 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.

State v. Cooper, 12th Dist. Butler No. CA2010-05-113, 2011-Ohio-1630, ¶ 7.                   The

discretionary power to grant a new trial should be exercised only in exceptional cases where

the evidence weighs heavily against the conviction. State v. Thompkins, 78 Ohio St.3d 380,

387 (1997).

       {¶ 66} The jury found Spradlin guilty of felonious assault, a violation of R.C.

2903.11(A)(1), which prohibits causing "serious physical harm" to another. After thoroughly

reviewing the record, we conclude that the manifest weight of the evidence supported

Spradlin's conviction. Two disinterested witnesses, Jesse and Lowery, testified that they

heard screaming and pleas for help coming from the apartment that Spradlin shared with his

wife and children. Officer Saylor also heard Tia yelling for help. Once Officer Saylor opened

the door he, Jesse, and Lowery observed Tia suffering from injuries consistent with what

Jesse told the police dispatcher she thought was occurring, i.e., domestic violence.

       {¶ 67} Shortly after the attack, Tia identified Spradlin as her attacker to three

witnesses and consistently told them that Spradlin choked and repeatedly punched her. She

repeated these allegations to Dr. Kennah, who said that she suffered consistent injuries.

Moreover, Dr. Kennah opined that Tia's injuries were inconsistent with a low-level fall, i.e., the

only theory that Spradlin advanced to explain the origin of the numerous injuries suffered by

his wife that morning. Finally, Spradlin's injury on the knuckle of his dominant, left hand was

consistent with his having "knocked" out his wife's dental implants.
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       {¶ 68} The jury did not believe Spradlin's version of events and we generally defer to

the factfinder on matters of witness credibility. State v. Andrews, 12th Dist. Butler No.

CA2009-02-052, 2010-Ohio-108, ¶ 46. Spradlin's testimony was also, at times, difficult to

believe. For instance, despite the photographic evidence to the contrary, Spradlin denied

that the living room had any debris strewn about it. He could not explain why or how

someone would "stage" the photograph. There is nothing in the record that would make us

second guess the jury's decision in this case.

       {¶ 69} This court also finds that the manifest weight of the evidence supports the

jury's finding that Spradlin caused Tia "serious physical harm." In pertinent part, the Revised

Code defines "serious physical harm" as: "[a]ny physical harm that involves some permanent

incapacity, whether partial or total, or that involves some temporary, substantial incapacity;

[a]ny physical harm that involves some permanent disfigurement or that involves some

temporary, serious disfigurement". R.C. 2901.01(A)(5)(c) and (d).

       {¶ 70} Tia received emergency medical treatment for several fractured dental

implants, a concussion, significant bruising and swelling around her eye, and bruising on

various parts of her body, including around her neck where she alleged Spradlin choked her.

With respect to her fractured dental implants, Dr. Kennah testified that she would have to see

a dentist. Dr. Kennah also testified that it would take several weeks for the swelling around

Tia's black eye to reduce completely. Tia reported pain around her eye and that she could

not see color out of either eye.

       {¶ 71} The state introduced numerous photographs into evidence that graphically

depicted Tia's injuries, which were taken at both the apartment and hospital.             The

photographs depict the significance of the swelling around her eye, her missing dental

implants, and the numerous bruises covering Tia's body. We conclude that the evidence

presented at trial demonstrated serious physical harm under both R.C. 2901.01(A)(5)(c) and
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(d), i.e., physical harm involving temporary, substantial incapacity, and permanent and

temporary disfigurement.

        {¶ 72} Accordingly, we find that Spradlin's felonious assault conviction is not against

the manifest weight of the evidence.                 Our determination that Spradlin's conviction is

supported by the weight of the evidence is also dispositive of the issue of sufficiency. State

v. Rodriguez, 12th Dist. Butler No. CA2008-07-162, 2009-Ohio-4460, ¶ 62. This assignment

of error is meritless.

        {¶ 73} Assignment of Error No. 4:

        {¶ 74} THE TRIAL COURT ERRED BY GIVING A HOWARD CHARGE TO THE

JURY AFTER ONLY SEVERAL HOURS OF DELIBERATION AND ON MORE THAN ONE

OCCASION.

        {¶ 75} A Howard2 charge is a jury instruction designed to be given to a jury that

believes it is deadlocked in order to "challenge [the jury] to try one last time to reach a

consensus." State v. Robb, 88 Ohio St.3d 59, 81 (2000). The charge is set forth in Ohio

Jury Instructions, CR Section 429.09.

        {¶ 76} The jury deliberated for one day. After several hours of deliberation, the jury

sent a note to the court indicating that it was deadlocked.3 The court then provided the jury

with the Howard charge and sent it back to attempt more deliberations. Later the same day,

upon the jury's request, the court provided it with a copy of the Howard charge in audio and

written formats.

        {¶ 77} Spradlin contends that the court erred in giving the Howard charge so early

into the deliberations and erred again when it gave the charge to the jury a second time.



2. State v. Howard, 42 Ohio St.3d 18 (1989).

3. The record does not reflect the timing of any event with respect to this assignment of error. However, the
state did not dispute Spradlin's claim that the jurors deliberated for "several hours" before indicating a deadlock.
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Spradlin concedes that he did not raise this objection at trial and thus has waived all but plain

error. We find that the court did not commit any error, plain or otherwise.

       {¶ 78} Spradlin provides no authority or rationale for the argument that a court must

wait a certain time before providing a Howard charge to a jury who announces it is

deadlocked. Nor does Spradlin provide any authority for the argument that it is error to

provide a jury with an audio or written form of the Howard charge. Essentially, Spradlin is

implying that the Howard charge is coercive and compelled an otherwise deadlocked jury to

render a verdict against him. We disagree.

       {¶ 79} The Howard charge is intended to encourage jurors to reach a verdict and to

appreciate opposing viewpoints, whether they be for a finding of guilt or acquittal. The

charge is carefully drafted to avoid suggesting what verdict would be preferable. Moreover,

the Supreme Court of Ohio has found that a Howard charge is not coercive and has

repeatedly approved its use.       See State v. Brown, 100 Ohio St.3d 51, 60 (2003).

Accordingly, we find no error in the trial court's discretionary decision to provide the Howard

charge at the time it did.

       {¶ 80} We also conclude that the court committed no error, much less plain error,

when it provided jurors with a written and audio copy of the Howard charge after they

requested it. Crim.R. 30(A) provides: "[t]he court shall reduce its final instructions to writing

or make an audio, electronic, or other recording of those instructions, provide at least one

written copy or recording of those instructions to the jury for use during deliberations, and

preserve those instructions for the record." Accordingly, the jury was entitled to a written or

audio copy of the instructions and there is no error here.

       {¶ 81} Spradlin also argues that the court erred by allowing the jury to continue to

deliberate after sending a second note indicating that it remained deadlocked. The note

reads as follows:
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              We have absolutely no change to opinions of guilt, not guilty.
              Three more hours of deliberations, we are deadlocked at
              present.
Later, the jury sent another note indicating it was making progress and wished to continue

deliberations. Ultimately, the jury rendered a verdict.

       {¶ 82} Again, the record is not clear as to timing of these events. According to the

state's brief, the court received the second note from the jury and asked counsel to convene

to discuss it. Before counsel could convene, the jury sent the third note indicating it was

making progress towards a verdict and wished to continue deliberations.

       {¶ 83} Whether a jury is irreconcilably deadlocked is a "necessarily discretionary

determination" for a trial court to make based on the specific circumstances of each case.

Brown, 100 Ohio St.3d at 60, quoting Arizona v. Washington, 434 U.S. 497, 510, 98 S.Ct.

824 (1978), fn. 28.     Spradlin's argument appears to be that the court should have

immediately found that the jury was deadlocked and declared a mistrial upon receipt of the

second note. We disagree. This is a matter ordinarily left to the sound discretion of the trial

court and we perceive no abuse of discretion in asking counsel to convene to discuss the

note. We also interpret the note as updating the court on the current status of deliberations

and not a statement that further deliberations would be entirely fruitless. We believe the

court took the appropriate step in asking counsel to convene to discuss the issue. In the

interim, the jury began making progress and ultimately rendered a verdict. There is no plain

error here and this assignment of error is meritless.

       {¶ 84} Assignment of Error No. 5:

       {¶ 85} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN

VIOLATION OF HIS CONSTITUTIONAL RIGHTS THUS PREJUDICING HIS RIGHT TO A

FAIR TRIAL.

       {¶ 86} Spradlin argues that his trial counsel was ineffective for failing to object to: (1)

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Tia's out-of-court statements, (2) Tia asserting her Fifth Amendment right, and (3) the court

providing the Howard charge more than once.

       {¶ 87} Counsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment. State v.

Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14. To prevail on an

ineffective assistance of counsel claim, Spradlin must show his trial counsel's performance

fell below an objective standard of reasonableness and that he was prejudiced as a result.

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984).

       {¶ 88} In order to demonstrate prejudice, Spradlin must establish that, but for his trial

counsel's errors, there is a reasonable probability that the result of trial would have been

different. State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 42.

A "reasonable probability" is a probability that is "sufficient to undermine confidence in the

outcome." Strickland at 694. The failure to make an adequate showing on either prong is

fatal to an ineffective assistance of counsel claim. Kinsworthy at ¶ 42.

       {¶ 89} Spradlin cannot demonstrate ineffective assistance of counsel with respect to

failing to object to Tia's out-of-court statements that we have already concluded were

admissible as nonhearsay or excited utterances. Counsel cannot be ineffective for failing to

object to admissible evidence. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶

218. Even if we presumed that the failure to object to hearsay that was admitted in error

constituted deficient representation, Spradlin cannot establish that he was prejudiced. As we

earlier concluded, any erroneously admitted statements were largely if not entirely cumulative

of other, properly admitted evidence.

       {¶ 90} Spradlin cannot demonstrate ineffective assistance of counsel with respect to

his argument that counsel failed to object to Tia's assertion of her Fifth Amendment privilege.

The decision to call or not call a witness is a strategic decision and we typically do not
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second guess counsel strategy as a reviewing court. State v. Johnson, 12th Dist. Butler No.

CA2011-09-169, 2013-Ohio-856, ¶ 56. Here, there was an obvious strategic reason not to

object to the trial court's finding that Tia properly exercised her Fifth Amendment right, which

is that her testimony could have been adverse to Spradlin. Accordingly, counsel was not

deficient in this respect.

       {¶ 91} Finally, Spradlin cannot demonstrate ineffective assistance for his counsel's

failure to object to the Howard charge. We have concluded that the court did not err in the

manner in which it gave the Howard charge, accordingly, counsel cannot be deficient for

failing to object. This assignment of error is meritless.

       {¶ 92} Appellant's five assignments of error are overruled. Judgment affirmed.


       S. POWELL, P.J., and M. POWELL, J., concur.




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