[Cite as State v. Ford, 2018-Ohio-2128.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 105698



                                           STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  JARRELL ST. ANTHONY FORD

                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-16-612720-A

        BEFORE: Kilbane, J., E.A. Gallagher, A.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                May 31, 2018
ATTORNEY FOR APPELLANT

Erin R. Flanagan
Erin R. Flanagan, Esq., Ltd.
75 Public Square, Suite 920
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
Timothy R. Troup
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113



MARY EILEEN KILBANE, P.J.:

        {¶1}     Defendant-appellant, Jarrell St. Anthony Ford (“Ford”), appeals his convictions.

For the reasons set forth below, we affirm.

        {¶2}     In December 2016, Ford was charged in a 20-count indictment along with

codefendant, Donshawn Haywood (“Haywood”). The charges arise from his involvement with

Haywood and a juvenile, J.W., in the aggravated robbery of Jaquan Martin (“Martin”) and the

associated intimidation of a witness, Onyinyechi Onugha (“Onugha”). Counts 1 and 2 charged

Ford with aggravated robbery. Counts 3-5 charged him with robbery. Counts 6 and 7 charged

him with felonious assault.1 Martin is the victim named in Counts 1-7. Count 8 charged Ford

with the felonious assault of Onugha.2 Count 9 charged him with carrying a concealed weapon


Each of Counts 1-7 carried a one- and three-year firearm specification and two forfeiture specifications.
1


2
Onugha is also listed as the victim in Counts 11, 17, and 19.
with two forfeiture specifications. Count 10 charged him with the improper handling of a

firearm in a motor vehicle.3 Count 11 charged him with the intimidation of a witness. Counts

12 and 13 charged him with the failure to comply. Count 14 charged him with vandalism.

Count 15 charged him obstructing official business. Count 16 charged him with disrupting

public service. Count 17 charged him with criminal damaging.4 Count 18 charged him with

resisting arrest. Counts 19 and 20 charged him with discharge of a firearm on or near prohibited

premises.5

        {¶3}     The matter proceeded to a jury trial, at which the following evidence was

adduced.

        {¶4}     On July 22, 2016, at approximately 11:30 p.m., Martin was waiting at a bus stop

in Euclid, Ohio, when a car driven by Ford pulled up near the bus stop. Haywood and J.W.

exited the car and began to assault Martin. Haywood pointed a gun at Martin, punched him, and

knocked him to the ground. J.W. also punched and kicked Martin. During the assault, Ford

brandished a firearm while walking in the street. He fired his gun, which caused a car driven by

Onugha to veer off the street and crash into a condominium building. The three men then

returned to their car and fled the scene.

        {¶5}     Martin then called 911. While on the phone with the 911 operator, the car driven

by Ford returned, and Haywood and J.W. assaulted Martin again. The attackers returned to their

car again and fled the scene for the second time.                   The incident was recorded by a video




3
Each of Counts 9 and 10 carried two forfeiture specifications.

4
Each of Counts 12-15 and 17 carried a furthermore clause.

5
Counts 8, 19, and 20 each carried a one- and three-year firearm specification and a forfeiture specification.
surveillance system, which was played for the jury. Martin was treated for his injuries at Euclid

Hospital. He received 15 staples in his head and 9 sutures in his eyebrow.

       {¶6}    Euclid police located the car driven by Ford several minutes after the second

assault. Euclid Police Officer Christian Studly assisted Euclid Police Officer Kyle Flagg in a

high-speed chase, pursuing the vehicle driven by Ford. The chase ended when Ford lost control

of the car and crashed. All three males fled on foot. Officer Flagg testified that he apprehended

Ford within minutes and returned Ford to Officer Studly’s vehicle.

       {¶7}    Haywood and J.W. were apprehended a short time later.           A semiautomatic

handgun belonging to Ford was located on the driver’s side of the vehicle, and a backpack

containing an inoperable revolver and the identification card of Haywood was located on the

front passenger side of the vehicle. DNA analysis confirmed that Martin’s blood was found on

the shirt worn by J.W. DNA analysis also confirmed that a hat found at the scene belonged to

Haywood.

       {¶8}    After the conclusion of trial, the jury convicted Ford of Counts 1 through 18 and

all of the attendant specifications. Ford was sentenced to a total of 11 years and 9 months in

prison and ordered to pay $9,338.95 as restitution to Martin.

       {¶9}    Ford now appeals, raising the following three assignments of error for review.

                                    Assignment of Error One

       The trial court erred in denying Ford’s Batson challenges to the State’s
       peremptory strikes of two African-American panelists.

                                    Assignment of Error Two

       The trial court improperly admitted hearsay testimony to Ford’s prejudice.

                                   Assignment of Error Three
        Ford was denied effective assistance of counsel, in violation of his Sixth
        Amendment rights under the United States Constitution.

                                        Batson Challenge

        {¶10} In the first assignment of error, Ford argues the trial court erred by failing to

properly inquire into the state’s race neutral reasons for peremptorily striking two prospective

African-American jurors from the panel — Prospective Juror No. 8 and Prospective Juror No.

12.

        {¶11} In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the

United States Supreme Court recognized that the Equal Protection Clause of the United States

Constitution prohibits the use of peremptory challenges in a discriminatory manner to exclude

potential jurors solely on account of their race. Id. at 89; see also State v. Hernandez, 63 Ohio

St.3d 577, 581, 589 N.E.2d 1310 (1992).

        {¶12} There are three steps involved in adjudicating a Batson claim. As the Ohio

Supreme Court in State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, stated:

        First, the opponent of the peremptory challenge must make a prima facie case of
        racial discrimination. Second, if the trial court finds this requirement fulfilled,
        the proponent of the challenge must provide a racially neutral explanation for the
        challenge. Batson, 476 U.S. at 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69. However,
        the “explanation need not rise to the level justifying exercise of a challenge for
        cause.” Id. at 97, 106 S.Ct. 1712, 90 L.Ed.2d 69. Finally, the trial court must
        decide based on all the circumstances, whether the opponent has proved
        purposeful racial discrimination. Id. at 98, 106 S.Ct. 1712, 90 L.Ed.2d 69. See,
        also, Purkett v. Elem (1995), 514 U.S. 765, 767-768, 115 S.Ct. 1769, 131 L.Ed.2d
        834. A trial court’s findings of no discriminatory intent will not be reversed on
        appeal unless clearly erroneous. State v. Hernandez (1992), 63 Ohio St.3d 577,
        583, 589 N.E.2d 1310, following Hernandez v. New York (1991), 500 U.S. 352,
        111 S.Ct. 1859, 114 L.Ed.2d 395.

Id. at ¶ 106.
       {¶13} We note that with the prima facie step, the trial court must “consider all relevant

circumstances in determining whether a prima-facie case exists, including statements by counsel

exercising the peremptory challenge, counsel’s questions during voir dire, and whether a pattern

of strikes against minority venire members is present.” Batson at 96-97. At the second step of

the inquiry, “‘the issue is the facial validity of the prosecutor’s explanation.           Unless a

discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be

deemed race neutral.’” Purkett at 768, quoting Hernandez, 500 U.S. at 360; see also State v.

Gowdy, 88 Ohio St.3d 387, 392, 2000-Ohio-355, 727 N.E.2d 579. “In step three, the trial court

may not simply accept a proffered race-neutral reason at face value, but must examine the

prosecutor’s challenges in context to ensure that the reason is not merely pretextual.” State v.

Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 65. Indeed, “‘[t]he rule in

Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it

requires the judge to assess the plausibility of that reason in light of all evidence with a bearing

on it.’” Id., quoting Miller-El v. Dretke, 545 U.S. 231, 251-252, 125 S.Ct. 2317, 162 L.Ed.2d

196 (2005). The juror may not be excluded if the trial court determines that the proffered reason

is merely pretextual and that a racial motive is in fact behind the challenge. Id., citing Miller-El.

       {¶14} In the instant case, the state’s exercise of its peremptory challenges resulted in the

removal of two African-American persons as jurors. First, Ford argues that with regard to

prospective juror No. 8, the state offered implausible reasons for striking this prospective juror

because the differences alleged by the state in this juror as compared to the empaneled white

jurors were far from significant.

       {¶15} When the state exercised its peremptory challenge to excuse prospective juror No.

8, defense counsel raised a Batson challenge. Upon this challenge, the court required the state to
provide a race-neutral reason for excusing the juror. The state indicated preliminarily that both

of the jurors who it challenged for cause were white jurors. The state then stated that it had

reservations about prospective juror No. 8 for the following reasons:

          [F]irst he seemed to have an overpowering personality. He was responsive to
          almost all questions and part of the calculation we make when we are selecting a
          panel is how that member will fit in with the other 11 members who are
          deliberating and the State does not want someone who has such an overpowering
          personality on the panel.

          Second, he seemed more demanding than any other juror in terms of wanting the
          police reports and transcripts. He was most reluctant to let go of that, said he
          really expected to receive that, and was more put off than other panelists about not
          having those.

          He seemed less sure of how to resolve discrepancies in memory between the
          jurors. I learned from my colleagues that he seemed dismissive after some
          interactions with me, that his body language was dismissive and off-putting.

          There’s one other thing — and I considered asking him about this and elected not
          to, because frankly, I didn’t want to contaminate him if he didn’t already know
          this — but the company he works for, Rockwell Automation, my understanding is
          that their vice president and general counsel is [defense counsel’s] spouse.

          {¶16} In rejecting the Batson challenge with regard to this prospective juror, the court

stated:

          I don’t know how you would, as you say, contaminate the situation by asking him
          questions because certainly we asked questions of other individuals who know
          [the state’s colleague] and [defense counsel], so I’m not sure that the basis for not
          inquiring of him is valid in terms of contamination[.]

          ***

          I do not disagree with the statements made by [the state] as to [prospective juror
          No. 8]. He did have a very commanding personality. I watched him, his body
          language, his facial expressions. He did appear to be very concerned with not
          getting a transcript of the proceedings, or a transcript of any witness testimony,
          not quite happy with the answer that we just don’t do that, wondering how a
          police officer or anyone actually could testify so many months or days later,
          certainly liked the fact that the Court advised that notes could be taken, but then
          he was very involved in the discussion as to whose notes do we believe.
       Now, obviously I have an instruction for the jurors once they’re impaneled as to
       how they are to evaluate and use those notes and nobody’s notes are considered
       better than the memory of somebody, but I think [the state] explained that to the
       panel anyway.

       ***

       I wasn’t necessarily privy to looks by [prospective juror No. 8] towards [the
       State]. I did find it interesting that when you said, “Do you believe I have two
       dogs?” I think everybody else — well, you’ve asked that many times in voir dire
       before, and nobody says no. And this is just to show his sort of personality and
       how he sees things and how he’s a little bit demanding and wants to get some
       attention I think. He wanted to make clear that, no, he didn’t necessarily believe
       you, that you would have to show him proof — and I’m not saying that’s a bad
       thing in the context of a trial with the State having to prove beyond a reasonable
       doubt before a conviction or before a jury could find the defendant guilty — but
       that just added to the flavor of his commanding testimony, like he’s going to be in
       charge, so to speak, is the way I felt when he said it. I agree with you there.

       So I’m going to allow the peremptory challenge. Your objection is noted. But
       otherwise, [prospective juror No. 8] will be excused by the State.

       {¶17} Here, the state articulated the following race-neutral reasons for striking this

prospective juror:   (1) his overpowering personality; (2) his heightened demand for police

reports and transcripts; (3) his uncertainty about resolving discrepancies in memory during

deliberations; (4) his dismissive and off-putting body language; and (5) his employment at the

same company where defense counsel’s spouse served as vice-president and general counsel.

The trial court then expressed on the record its reasons for rejecting the Batson challenge. The

court discounted the state’s fourth and fifth reasons, but found compelling the state’s first reason.

 “When the explanation for a peremptory challenge ‘invoke[s] a juror’s demeanor,’ the trial

judge’s ‘firsthand observations’ are of great importance.” Thaler v. Haynes, 559 U.S. 43, 49,

130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010), quoting Synder v. Louisiana, 552 U.S. 472, 477, 128
S.Ct. 1203, 170 L.Ed.2d 175 (2008). Based on the foregoing, we find that the trial court’s

determination was not clearly erroneous with regard to prospective juror No. 8.

       {¶18} Next, with regard to prospective juror No. 12, Ford argues the trial court erred by

not independently and explicitly assessing the credibility of the state’s race-neutral reasons for

excluding this prospective juror.

       {¶19} A review of the record reveals that this prospective juror’s sister is a Cuyahoga

County assistant prosecuting attorney who told the assistant prosecuting attorney trying the case

that she would not want her brother on a jury. She relayed this information to the prosecuting

attorney outside of the courtroom, after voir dire had begun. Ford contends that while the trial

court devoted considerable energy to exploring this exchange, it did not adjudicate whether the

sister’s opinion of her brother’s potential performance on Ford’s jury was a race-neutral reason

for striking him. The exchange between the parties and the court regarding the removal of

prospective juror No. 12 is as follows:

       [STATE]: There are a couple of reasons for excusing [prospective juror No. 12].
        One is frankly he works at Murtis Taylor. We have a concern about having a
       social worker on the panel. The panelist who would be taking his spot is also an
       African American juror. So the next panelist to drop down into the box would be
       Panelist Number 20, who is also African American, and I’ll tell the Court very
       frankly, I spoke to [my colleague] in our office, and she told me that she would
       not want her brother on a jury, that she did not —

       THE COURT:         I don’t know that I can consider that in terms of your
       justification.

       [STATE]: I’m saying that that informs my justification for striking him. This is
       not about his skin color. This is about frankly his sister’s assessment of how he
       would be as a juror and whether he would critically and fairly evaluate the
       evidence.

       THE COURT: I’m not sure I can allow you to use somebody else’s assessment
       who is not involved in this trial to inform the Court as a basis for excusing him.
       Certainly she wasn’t present here; she’s not involved in this case. We tell
everybody not to discuss this matter with anybody outside this courtroom. You
had the opportunity to voir dire him individually. We all did. There was no
for-cause challenge by the State or the defense, and you’re saying that you’re
justifying your peremptory on the basis that [your colleague] told you she
wouldn’t want her brother as a juror. I don’t know that that’s a valid basis to
respond to the Batson argument.

[STATE]: Your Honor, once they make a Batson challenge, if the Court finds
that the juror that a party is striking —

THE COURT: I know that. I’m just talking about you talking to [your
colleague] to tell you what she thinks about that particular juror, or panel member.
 I don’t think it’s appropriate. How can you be allowed to rely on what your
fellow prosecutor told you who is not involved in this case who you’re talking to
at a break about your jury?

[STATE]: I spoke to her this morning to confirm that her brother was
[prospective juror No. 12] who is on our jury. I asked her if that was her brother.
 She said yes. I don’t remember her exact words, but she said she did not think
that he would be a good juror, particularly for the State, and that she did not think
he would critically evaluate the evidence, critically and fairly evaluate the
evidence. Again, I don’t remember her exact words, but our job is to proffer a
race-neutral explanation for why we want to strike this juror, and I’m saying that
is one of the components that is informing our decision to strike this juror.

THE COURT: [Defense Counsel]?

[DEFENSE COUNSEL]: I would add that by the same token that [the
prosecuting attorney] went to his colleague, you know, we would have had an
opportunity — I suppose [co-counsel] could have talked to his wife and said,
“Hey, what do you know about Juror Number 8?” which he didn’t do, and we
didn’t inquire of. We would not have dreamed of inquiring along that line.

I think if they wish to make that peremptory challenge, it may be grounds for a
mistrial of this case because I think we have so selectively —

THE COURT: Grounds for a mistrial?

[DEFENSE COUNSEL]: I’m putting it out there to the Court. I realize we
didn’t begin in any way, but realize, we had a small panel — I was surprised to
see the composition of the panel, the 26 people that were presented, and now if
that peremptory challenge would stand, I think that on behalf of [Ford], I would
say that we may be deprived of having a racially-neutral panel.
THE COURT: My concern with the State’s response to your Batson challenge,
they basically set forth two arguments, two reasons for — hold on. One is that he
works at Murtis Taylor. They assume then that he’s a social worker, but you
never developed that in voir dire. You don’t know specifically what kind of job
he does at Murtis Taylor. He could be working as a janitor for Murtis Taylor.
We don’t know — or I don’t know. [The colleague] may know. [The
colleague] may have told you, but that never came out as far as I remember during
the voir dire process specifically what his job was.
Independent of that, you’ve set forth the State’s bases for exercising the
peremptory, which is what his sister told you in communications with her this
morning before we ever started.

My concern is number two, having those conversations with [your colleague]. I
understand that all you’re required to do is set forth a basis for exercising a
peremptory challenge, but I’m not sure in the overall scheme of things that
allowing that to be a basis when you get information from somebody outside of
this courtroom and [not] through the voir dire process, that’s my concern. Now,
the Murtis Taylor thing, I don’t know, but you didn’t develop if he is a social
worker or whatnot. We don’t know what he does for Murtis Taylor. I don’t
think that ever came out.

[STATE]: We do. He said he was a child behavioral therapist.

THE COURT: So he’s a child behavioral therapist, and so that, to you, means
he’s a social worker and that’s your basis then independent of what [your
colleague] told you.

[STATE]: Yes, and there are additional bases. We got a little sidetracked on
[my colleague’s] comment to me when I asked her if that was fact her brother.
He has this — this feud * * * with [my colleague] * * * and we think that may
influence how he views our office.

I understand he said he thinks he can be fair and impartial, but the fact that he has
an ongoing feud with his own sister * * * gives us grave concern about his ability
to be fair and impartial in this case.

Additionally, when I was asking questions of the entire panel, he was generally
nonresponsive. He did respond to the one about experience with firearms. I
think he couldn’t help but respond to that, given that he is a marine veteran.

***

His responses when the Court asked about knowing anyone who works in law
enforcement or knowing anyone who works in the court, his claim is that he didn’t
realize that [his sister] worked in the court, but he says he knows she’s a
       prosecutor, and for him not to respond when the Court is asking about people
       who work in law enforcement or work in the law or work in the court, I think that
       was concerning at least, and that’s what prompted me to ask [my colleague] if that
       was in fact her brother. I thought it may have been happenstance that they had
       the same last name when he passed on all the questions about knowing people
       working in the court.

       THE COURT: I did find that curious that the first time that I — I don’t really
       concentrate so much on the names as I do on the numbers in terms of identifying
       them for purposes of the record, so I didn’t notice the name yesterday — but when
       you advised that [your colleague] had told you that he was her brother, I was
       surprised that he had not mentioned that yesterday when I was inquiring of him.
       That’s a valid concern.

       The fact that he doesn’t plan to talk with his sister for another two weeks, I can’t
       quite figure out if he’s toying about that whole situation, and I don’t know what
       that means, if he’s really mad at her, or if he’s just sort of in control, I’ll give her
       two weeks before I allow her to talk to me, which does show perhaps an animus
       against [your colleague]. I’m not sure if that extends to the prosecutor’s office,
       but it might. He seemed to think it was sort of comical. That would be my
       concern with him.

       Those are the best reasons you stated thus far.

       I understand the Murtis Taylor situation combined therewith might be sufficient to
       withstand the Batson challenge, but the other issue is that you’ve evaluated it
       whereby [Panelist] Number 20, would replace him, or she would then be on the
       panel.

       [STATE]: I just threw that out there as another factor for the Court to consider,
       Your Honor.
       ***

       I’m going to deny the Batson challenge, but certainly that’s preserved for appeal.

       {¶20} Here, the state initially explained that it wanted to remove prospective juror No. 12

because it learned that this prospective juror was a sibling of a Cuyahoga County assistant

prosecuting attorney, and the siblings were currently feuding with each other. The colleague

told the prosecutor trying the case that she would not want her brother on a jury. The prosecutor

initiated the conversation with his colleague because he recognized the juror’s last name and
asked if they were related. Prospective juror No. 12 did not mention this during the first day of

voir dire, despite being questioned about knowing anyone who works for the court or having

friends or family members who were members of a law enforcement agency. Specifically, the

trial court asked, “[d]o any of you know anyone that works for the court, the Cuyahoga County

Court of Common Pleas? If so, raise your hand.” The court also asked, “[d]o any of you have

any family members or close friends or relatives who are police officers or members of a law

enforcement agency? If so, please raise your hand[.]”

       {¶21} The state additionally offered the juror’s employment as a child therapist and the

feud possibly influencing how this prospective juror views the prosecutor’s office as reasons for

striking the juror from the panel. The state pointed out that prospective juror No. 12 would be

replaced by another African-American panelist.

       {¶22} While we are concerned by the state’s revelation of the family feud during voir

dire, we do not find the trial court’s findings clearly erroneous. “This Court gives deference to

the trial court’s ruling on a Batson issue, which is mainly an evaluation of credibility.” State v.

Boynton, 8th Dist. Cuyahoga No. 93598, 2010-Ohio-4248, ¶ 12, citing State v. Murphy, 91 Ohio

St.3d 516, 530, 2001-Ohio-112, 747 N.E.2d 765. “Deference is necessary because a reviewing

court, which analyzes only the transcripts from voir dire, is not as well positioned as the trial

court is to make credibility determinations.” Miller-El, 537 U.S. at 339, 123 S.Ct. 1029, 154

L.Ed.2d 931.

       {¶23} In the instant case, the trial court, as the gatekeeper in a Batson challenge, set forth

a lengthy analysis in deciding to deny the challenge. Under Batson, the state had to build a

record that legitimately demonstrated its articulated concern. The court accepted the state’s

concern that prospective juror No. 12 was not forthright to a number of questions, such as
knowing anyone who works for the court or having any family members in law enforcement.

The court stated that it was surprised that the prospective juror “had not mentioned that yesterday

when I was inquiring of him. That’s a valid concern.” The court, however, did not accept the

prosecutor’s justification regarding his colleague’s concerns and the colleague’s family feud with

prospective juror No. 12.       The court stated, “I’m just talking about you talking to [your

colleague] to tell you what she thinks about that particular juror, or panel member. I don’t think

it’s appropriate.” The court further stated:

        The fact that he doesn’t plan to talk with his sister for another two weeks, I can’t
        quite figure out if he’s toying about that whole situation, and I don’t know what
        that means, if he’s really mad at her, or if he’s just sort of in control, I’ll give her
        two weeks before I allow her to talk to me, which does show perhaps an animus
        against [your colleague]. I’m not sure if that extends to the prosecutor’s office,
        but it might. He seemed to think it was sort of comical. That would be my
        concern with him.

        {¶24} The trial court also considered prospective juror No. 12’s employment, in

conjunction with the fact that prospective juror No. 12 would be replaced by another

African-American juror when it decided to deny the Batson challenge.

        {¶25} Based on the foregoing, it is evident that the court assessed the plausibility of the

state’s concerns and found the fact that prospective juror No. 12 was not forthright with respect

to his sister’s employment as a prosecutor, his possible animus toward the prosecutor’s office, in

conjunction with his job and the fact that he would be replaced by an African-American juror,

sufficient to withstand Ford’s Batson challenge.

        {¶26} Under the totality of these circumstances, the concerns the court relied on

represented a race-neutral explanation and were based upon something other than the race of the

juror, even though the state offered to the court on the record that prospective juror No. 12 was

feuding with his sister at the time of the voir dire.
       {¶27} Therefore, the first assignment of error is overruled.

                                       Hearsay Testimony

       {¶28} In the second assignment of error, Ford argues the trial court erred when it allowed

extensive hearsay testimony from the state’s witness. In particular, he claims Lynise Adams

(“Adams”) was allowed to provide her recollection of Onugha’s comments after Onugha’s car

crashed. The trial court, after a sidebar outside of the presence of the jury, admitted Adams’s

testimony as excited utterance under Evid.R. 803(2).

       {¶29} Hearsay is an out-of-court statement offered to prove the truth of the matter

asserted. Evid.R. 801(C). Whenever the state seeks to introduce hearsay into evidence in a

criminal proceeding, the court must determine whether the evidence fits within an exception to

the hearsay rule. State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio-1228, ¶ 29.

       {¶30} Evid.R. 803(2) provides an exception to the hearsay rule if the out-of-court

statement constituted an “excited utterance,” which the rule defines as 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.” “Reactive excited statements are considered more trustworthy than

hearsay generally on the dual grounds that, first, the stimulus renders the declarant incapable of

fabrication and, second, the impression on the declarant’s memory at the time of the statement is

still fresh and intense.” State v. Taylor, 66 Ohio St.3d 295, 300, 612 N.E.2d 316 (1993).

       {¶31} To qualify as an “excited utterance” the following four factors must be established:


       (a) that there was some occurrence startling enough to produce a nervous
       excitement in the declarant, which was sufficient to still his reflective faculties
       and thereby make his statements and declarations the unreflective and sincere
       expression of his actual impressions and beliefs, and thus render his statement or
       declaration spontaneous and unreflective, (b) that the statement or declaration,
       even if not strictly contemporaneous with its exciting cause, was made before
       there had been time for such nervous excitement to lose a domination over
       declarant’s reflective faculties so that such domination continued to remain
       sufficient to make his statements and declarations the unreflective and sincere
       expression of his actual impressions and beliefs, (c) that the statement or
       declaration related to such startling occurrence or the circumstances of such
       startling occurrence, and (d) that the declarant had an opportunity to observe
       personally the matters asserted in his statement or declaration.

Potter v. Baker, 162 Ohio St. 488, 500-501, 124 N.E.2d 140 (1955). “The controlling factor
comes down to whether the declaration resulted from impulse as opposed to reason and
reflection. State v. Nixon, 12th Dist. Warren No. CA2011-11-116, 2012-Ohio-1292, ¶ 13.”
State v. Houston, 2017-Ohio-4179, 92 N.E.3d 176, ¶ 50 (8th Dist.). The Ohio Supreme Court
also held that there is no per se amount of time after which a statement is no longer considered to
be an excited utterance. Taylor at 303.
       {¶32} We review a trial court’s evidentiary rulings for abuse of discretion. State v. Long,

53 Ohio St.2d 91, 98, 372 N.E.2d 804 (1978).

       {¶33} Here, Adams testified that within a few minutes after the crash, she went outside

and approached Onugha who “was in shock * * * [s]haken, disoriented. She was crying and * *

* at first she wasn’t speaking any English. Then [my neighbor and I] kept asking her was she

okay, and then she started speaking English.” The state then asked Adams if Onugha was “able

to tell you anything about what had just happened to her?” Defense counsel objected, and the

court held a discussion at sidebar. The trial court overruled the objection, stating:

       I do believe that [the state has] already established that this would be an excited
       utterance given the testimony that you elicited from her to include that she
       approached the driver in the car within minutes of hearing the crash, the driver
       was in shock, shaken, disoriented, crying, speaking in a different language
       initially, and then finally answering questions in English. So I think you’ve
       established the excited utterance exception to the hearsay.

       {¶34} Adams then testified:

       As [Onugha] walked up to us, she just kept saying there was a gun in her face,
       there was a gun in her face, and we got her to sit down on the steps and she told us
       that as she came up to the intersection, that somebody reached — her window was
       down, he reached into her car and pointed a gun at her and started shooting
       through her driver’s door, through the passenger door, out the other side, and then
       pulled it back out, told her to get out of the way and that’s when she threw the car
       in reverse and tried to get out of the way.

       {¶35} On redirect, Adams admitted to the state that she did not remember Onugha’s exact

words. The state asked Adams,

       [t]he questions defense counsel asked about what the driver of this crashed vehicle
       told you, do you remember the exact words that she used when she was describing
       where the gun was pointed, how the gun was fired, or [are these] her words, or
       your interpretation, your impression of what she said?

Adams replied, “I don’t remember her exact words, but from what she said, that’s how I

interpreted it.”   Defense counsel objected, and the trial court overruled the objection.      At

sidebar, the court stated that it would strike the inquiry and answer and instruct the jury to

disregard the testimony. In doing so, the court stated:

       THE COURT: Certainly she testified both on direct and on cross-examination
       that what she remembers is the victim, we’ll call her, actually saying to her at that
       time that the man put a gun in through the driver’s window, shot it through the
       passenger door and then basically there were a couple other things, but ran off.

       When you asked her that last question, you changed it up. In other words, you
       said, “Well, is it possible? In other words, is that your interpretation of what she
       said?”

       So if you’re asking me to strike that last inquiry and answer, I can do that.

       [DEFENSE COUNSEL]: But you can’t unring a bell, right?

       THE COURT: You can’t unring a bell, but I can instruct them to disregard that

       testimony because she was consistent in both direct and cross-examination, and

       but for how you asked that question, she seemed pretty confident about her

       testimony. I think the fact that you asked it made her try to reevaluate what she

       had said.    Otherwise, she’s consistent in what she said both on direct and
       cross-examination. She said it both times.       I know that you were trying to

       rehabilitate her to the extent that it may differ between what you thought she

       would testify to about standing in the street pointing a gun at her, but she was

       consistent with your question and that of [defense counsel] in saying what she

       said. So you got to take her testimony as is, if you want that excited utterance.

       {¶36} Ford contends that the court erred because Adams’s testimony did not establish

part (b) of the Potter test — that any initial “nervous excitement” exhibited by Onugha continued

to remain sufficient to make her statements and declarations the unreflective and sincere

expression of her actual impressions and beliefs. He further contends that the trial court’s

allowance of this testimony, compounded by its instruction to the jury to disregard Adams’s

admission that the “shots into the car” testimony might have been her interpretation of Onugha’s

story was prejudicial error.

       {¶37} A review of this testimony reveals that Onugha made these statements almost

immediately after Ford shot at her and caused her to crash her vehicle. It is understandable that

she would be in a state of nervous excitement after the incident.          We do not find these

statements to be the product of reflective thought because of the short time span between the

shooting and the statements and Onugha’s continued state of shock. Furthermore, Adams’s

testimony regarding Onugha’s statements is admissible even if she did not remember the exact

words Onugha used because Adams was consistent with what she said in both direct and

cross-examination. The trial court acknowledged that “her interpretation” was a direct response

to the state’s questioning and then struck that question and response from the record. The trial

court instructed the jury to “completely disregard the last question or questions asked by [the

state] during * * * redirect examination, and this witness’s response or responses to those
questions.” We note that curative instructions are presumed to be an effective way to remedy

errors that occur during trial. State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2000).

“A presumption exists that a jury follows the instructions given to it by the trial court.” State v.

Carter, 8th Dist. Cuyahoga No. 104653, 2017-Ohio-5573, ¶ 43, citing State v. Glover, 10th Dist.

Franklin No. 07AP-832, 2008-Ohio-4255, ¶ 80.

       {¶38} Therefore, the second assignment of error is overruled.

                                Ineffective Assistance of Counsel

       {¶39} In the third assignment of error, Ford argues he was denied effective assistance of

counsel when defense counsel stipulated to the state calling Onugha as the court’s witness under

Evid.R. 614(A) and the introduction of telephone calls allegedly made by Ford from the

Cuyahoga County Jail through Euclid Police Detective Joshua Schultz (“Detective Schultz”).

       {¶40} In order to establish ineffective assistance of counsel, Ford must demonstrate (1)

that counsel’s performance fell below an objective standard of reasonable representation, and (2)

that he was prejudiced by that performance. Strickland v. Washington, 466 U.S. 668, 687-688,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).            Prejudice is established when the defendant

demonstrates “a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland at 694.

       {¶41} In evaluating a claim of ineffective assistance of counsel, there is a strong

presumption that counsel’s conduct in question fell within a wide range of reasonable

professional assistance. State v. Singleton, 8th Dist. Cuyahoga No. 98301, 2013-Ohio-1440, ¶

67; Strickland. As a result, trial tactics and strategies do not constitute a denial of effective

assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980), citing
People v. Miller, 7 Cal.3d 562, 498 P.2d 1089 (1972); State v. Gooden, 8th Dist. Cuyahoga

No. 88174, 2007-Ohio-2371.

       {¶42} In the instant case, the state filed a motion on the morning of trial, requesting that

the court call Onugha as an Evid.R. 614(A) witness. The state argued that Onugha claims that

her memories of the incident have vanished. Ford stipulated to the admission of this evidence.

On appeal, Ford argues the state was disingenuous because it had full knowledge, almost two

months earlier at codefendant J.W.’s juvenile court proceedings, that Onugha testified she had

prayed and asked God to erase her memory of the incident and that she no longer remembered

the event.

       {¶43} Evid.R. 614(A) provides that “[t]he court may, on its own motion or at the

suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus

called.” “Evid.R. 614(A) exists to bring about the proper determination of a case. A witness

whose appearance is important to the proper determination of the case, but who appears to be

favorable to the other party, is a principal candidate for application of Evid.R. 614(A).” State v.

Curry, 8th Dist. Cuyahoga No. 89075, 2007-Ohio-5721, ¶ 18.

       {¶44} Immediately after the incident, Onugha gave consistent accounts of what

transpired.   At the time of trial, however, she claimed that her memories of the incident

vanished.     The trial court allowed the state to cross-examine Onugha with her original

statements so that the jury could hear her memories of the incident.

       {¶45} In State v. Green, 66 Ohio St.3d 141, 148, 609 N.E.2d 1253 (1993), the Ohio

Supreme Court held that a defense attorney’s decision to stipulate to prior statements fell “within

the wide range of reasonable professional assistance.” Here, we also find that defense counsel’s
decision to stipulate to the state’s Evid.R. 614(A) motion fell within the wide range of reasonable

professional assistance.

       {¶46} Ford also contends that defense counsel’s decision not to request a limiting

instruction regarding Onugha’s credibility was deficient.          In State v. Durham, 8th Dist.

Cuyahoga No. 94747, 2012-Ohio-2053, ¶ 12, we held that defense counsel’s decision whether to

request a limiting instruction involves strategic choices of counsel that fell within the realm of

trial strategy and tactics that will not ordinarily be disturbed on appeal. Similarly, defense

counsel’s decision in the instant case to not request a limiting instruction was a strategic choice.

       {¶47} Ford additionally argues that defense counsel was ineffective for failing to object to

the foundational basis for the jail-cell calls made by Ford to outside individuals. He claims this

error was compounded when defense counsel stipulated to the authenticity of these calls.

       {¶48} In State v. Thompson, 8th Dist. Cuyahoga No. 96929, 2012-Ohio-921, we

addressed the admissibility of jailhouse phone calls. We stated:

       Evid.R. 901 governs the authentication of demonstrative evidence, including
       recordings of telephone conversations. The threshold for admission is quite low,
       and the proponent of the evidence need only submit “evidence sufficient to
       support a finding that the matter in question is what its proponent claims.”
       Evid.R. 901(A). “[T]he proponent must present foundational evidence that is
       sufficient to constitute a rational basis for a jury to decide that the primary
       evidence is what its proponent claims it to be.” State v. Tyler, 4th Dist. [Ross]
       No. 10CA3183, 196 Ohio App.3d 443, 964 N.E.2d 12, 2011-Ohio-3937, ¶ 25,
       citing State v. Payton, 4th Dist. [Ross] No. 01-CA2606, 2002-Ohio-508. A
       proponent may demonstrate genuineness or authenticity through direct or
       circumstantial evidence. Tyler at id., citing State v. Williams, 64 Ohio App.2d
       271, 274, 413 N.E.2d 1212 (8th Dist.1979).

       For a recorded telephone call to be admissible, the recording must be “authentic,
       accurate, and trustworthy.” Tyler at ¶ 26, citing State v. Were, 118 Ohio St.3d
       448, 2008-Ohio-2762, 890 N.E.2d 263. But, because “conclusive evidence as to
       authenticity and identification need not be presented to justify allowing evidence
       to reach the jury,” the evidence required to establish authenticity need only be
       sufficient to afford a rational basis for a jury to decide that the evidence is what its
       proponent claims it to be.    State v. Bell, 12th Dist. [Clermont] No.
       CA2008-05-044, 2009-Ohio-2335, 2009 WL 1395857, ¶ 17, 30.

Thompson at ¶ 27-28.

       {¶49} We note that in order to establish that the audio recording is a recording of a

jail-cell conversation, the state is not required to “‘prove beyond any doubt that the evidence is

what it purports to be.”’ Id. at ¶ 29, quoting State v. Moshos, 12th Dist. [Clermont] No.

CA2009-06-008, 2010-Ohio-735, ¶ 12, citing State v. Aliff, 4th Dist. [Ross] No. 99CA8, 2000

Ohio App. LEXIS 1676 (Apr. 12, 2000).           Rather, the state need only to demonstrate a

“reasonable likelihood” that the recording was authentic. Bell at ¶ 30, citing Evid.R. 901(B)(1).

“Such evidence may be supplied by, but is not limited to, the testimony of a witness with

knowledge, voice identification, or by evidence that a call was made to the number assigned at

the time by the telephone company to a particular person.” Thompson at ¶ 29, citing Evid.R.

901(B)(1), (5), and (6); Moshos at ¶ 14; State v. Small, 10th Dist. [Franklin] No. 06AP-1110,

2007-Ohio-6771, ¶ 38.

       {¶50} Evid.R. 901 provides for two methods by which a trial court may find that these

phone conversations are admissible. Evid.R. 901(B)(9) provides that a sound recording may be

authenticated through evidence that demonstrates a process or system used that produces an

“accurate result.”   Evid.R. 901(B)(5) provides for authentication by voice identification

“whether heard firsthand or through mechanical or electronic transmission or recording.”

       {¶51} In Thompson, the defendant’s girlfriend and a sergeant of the Cuyahoga County

Sheriff’s Department testified about the phone calls. The girlfriend identified the defendant’s

voice on the phone calls. Thompson, 8th Dist. Cuyahoga No. 96929, 2012-Ohio-921, at ¶ 13.

The sergeant testified that “each jail inmate is given an identification number and that number,
along with the last four digits of an inmate’s social security number, must be inputted when an

inmate makes a phone call.” Id. at ¶ 7. We found that the voice identification, phone records,

and testimony of the sergeant were sufficient to constitute a reasonable showing of authenticity.

Id. at ¶ 32.

        {¶52} After reviewing the record in the instant case, we are concerned with the manner in

which the state laid the foundation for the recordings of Ford’s jail-cell calls. Nevertheless, we

cannot conclude that but for the introduction of the jail-cell calls, the result of the proceedings

would have been different.

        {¶53} The state relied on Euclid Police Detective Schultz to identify Ford’s voice on the

phone calls, despite testifying that he briefly spoke to Ford one time, approximately eight months

ago, when he attempted to interview him. Detective Schultz testified as follows:

        [STATE]: Do you recognize [Ford’s] voice in those recorded conversations?

        [DETECTIVE SCHULTZ]: I do.

        [STATE]: If you heard those again, do you think you would recognize them?

        [DETECTIVE SCHULTZ]: I would.

        [STATE]: Detective, I would like to play State’s Exhibit 5. We’re going to
        advance to 5 minutes and 33 seconds into this recording.

        (Audiotape played in open court)

        [STATE]: We’re stopping at 6 minutes and 15 seconds in. Detective Schultz,
        did you recognize the male voice that we heard in that recording?

        [DETECTIVE SCHULTZ]: I did.

        [STATE]: Whose voice was that?

        [DETECTIVE SCHULTZ]: That was [Ford’s].
       {¶54} While the manner in which the state laid its foundation is concerning, defense

counsel chose as strategy to stipulate to the authenticity of the phone calls and then attack

Detective Schultz’s memory with regard to his identification of Ford’s voice. Debatable trial

tactics and strategies do not necessarily amount to a denial of the right to effective assistance of

counsel. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189. Moreover, the jury was presented with

other sufficient testimony regarding Ford’s involvement in the crime and his identification as one

of the assailants. Therefore, we cannot say the outcome would have been different had defense

counsel not stipulated to the authenticity of the jail-cell calls and objected to the foundational

basis for the phone calls.

       {¶55} Accordingly, the third assignment of error is overruled.

       {¶56} Judgment is affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

EILEEN A. GALLAGHER, A.J., and
TIM McCORMACK, J., CONCUR
