State v. Bibbs
2016 Ohio 8396
| Ohio Ct. App. | 2016Background
- Kevin E. Bibbs was indicted for third-degree felony domestic violence after his wife, Brenda Bibbs, reported he grabbed her neck and face during an argument and threatened her; police photographed her injuries and she gave a written statement at the scene.
- At trial Brenda testified about the incident and, on direct examination, read aloud a prior written statement she had given to police; that written statement (State’s Exhibit 7) was later admitted into evidence without objection.
- The jury convicted Bibbs; the trial court sentenced him to 24 months’ imprisonment. Bibbs appealed.
- On appeal Bibbs raised two assignments of error: (1) the trial court erred by allowing the witness to read and by admitting the prior written statement; and (2) trial counsel was ineffective for failing to object.
- The appellate court evaluated hearsay/exceptions (Evid.R. 801(D)(1), 803(5), and 612), plain-error review (Crim.R. 52(B)), and ineffective-assistance standards to decide whether any error was prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior written statement (reading + exhibit) | State: statement was admissible (argued refreshing memory or hearsay exceptions) | Bibbs: admission violated Evid.R. 801/612/803(5); no proper foundation; hearsay | Court: admission was erroneous — prior-consistent exception (801(D)(1)(b)) and 612/803(5) did not apply; statement should not have been admitted as an exhibit |
| Plain error from failure to object | State: any error was not plain or prejudicial | Bibbs: failure to object waived, but plain error review should reverse | Court: no plain error — independent testimonial and photographic evidence supported conviction; outcome would not clearly have differed |
| Ineffective assistance for not objecting | State: counsel’s omission did not prejudice outcome | Bibbs: counsel materially erred by failing to object to reading and admission | Court: no ineffective assistance — Bibbs failed to show reasonable probability of a different outcome without the error |
| Proper use of prior statements under Evid.R. 801/803/612 | State: could justify use as refreshment (612) or past recollection recorded (803(5)) | Bibbs: neither rule applied because witness had recollection and statement was not made under oath or to rebut fabrication | Court: 612 inapplicable (no need to refresh); 803(5) inapplicable (no showing of insufficient recollection); 801(D)(1)(b) inapplicable (no prior challenge to credibility) |
Key Cases Cited
- State v. Obermiller, 147 Ohio St.3d 175 (Ohio 2016) (plain-error standard and cautious application of Crim.R. 52(B))
- State v. Davis, 127 Ohio St.3d 268 (Ohio 2010) (but-for standard for plain error reversal)
- State v. Calhoun, 86 Ohio St.3d 279 (Ohio 1999) (framework for ineffective-assistance analysis)
- State v. Conway, 109 Ohio St.3d 412 (Ohio 2006) (prejudice standard: reasonable probability result would differ)
- Vaughn v. Maxwell, 2 Ohio St.2d 299 (Ohio 1965) (presumption of competency for licensed attorneys)
- State v. Hester, 45 Ohio St.2d 71 (Ohio 1976) (fair trial and substantial justice standard for ineffective-assistance claims)