State v. Turks, 2010 Ohio 5944

Turks was convicted by jury of felonious assault for injuries Tamiko Turks suffered in June 2007.
Turks was tried in April 2008; he did not appear for verdict; conviction entered in his absence and warrant issued.
Turks was sentenced to eight years in June 2008; appellate court affirmed the conviction and sentence in 2009.
Turks obtained leave to file a delayed motion for a new trial, which the trial court denied after a December 2009 hearing.
Turks appealed on five assignments of error, including confrontation, lesser-included offense, newly discovered evidence, ineffective assistance, and sentencing.
The appellate court affirmed all trial court rulings and the sentence in March 2010, with a separate concurrence addressing standard of review for sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Confrontation rights and hearsay	Turks argues Tamiko's statements were testimonial and improperly admitted.	Turks contends admission violated Crawford and the Confrontation Clause.	No plain error; Tamiko testified and prior statements were admissible under Crawford.
Lesser-included offense instruction on assault	Evidence supported an instruction on assault as a lesser included offense.	Trial court should have instructed on assault.	Not required; Ellis overruled; evidence did not support conviction on assault if acquitted felonious assault.
Newly discovered evidence claim	Tamiko's recovered memory constitutes newly discovered evidence warranting a new trial.	Evidence was cumulative/impeaching and not likely to change result.	No abuse of discretion; no strong probability of change in outcome.
Effective assistance of counsel	Counsel failed to object to hearsay, failed to request lesser offense instruction, and failed to object to Confrontation Clause violation.	No ineffective assistance; decisions were strategic or unsupported by prejudice.	No deficient performance or prejudice; rulings upheld.
Sentencing as maximum term	Eight-year sentence was improper given remorse and victim's leniency request.	Court should consider prior domestic violence history and lack of remorse.	No reversible error; consecutive and maximum-term findings supported; discretion upheld.

Crawford v. Washington, 541 U.S. 36 (U.S. Supreme Court (2004)) (Confrontation Clause requires opportunity for cross-examination; testimonial statements admissible when declarant testifies)
Ohio v. Roberts, 448 U.S. 56 (U.S. Supreme Court (1980)) (Exclusion of out-of-court statements; framework for unavailability and cross-examination)
State v. Wilkins, 64 Ohio St.2d 382 (1980) (Lesser included offense analysis (pre-Deem formulation))
State v. Deem, 40 Ohio St.3d 205 (1988) (Refined test for lesser included offenses; Deem framework applied)
State v. Smith, 117 Ohio St.3d 447 (2008) (Modern articulation of Deem test for mutually exclusive ways of committing greater offense)