STATE OF OHIO, Plaintiff-Appellee -vs- SCOTT DAVIS, Defendant-Appellant
Case No. 13 CA 55
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 14, 2014
2014-Ohio-1197
Hon. William B. Hoffman, P. J.; Hon. Sheila G. Farmer, J.; Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court, Case No. 13 CRB 518; JUDGMENT: Affirmed
For Plaintiff-Appellee
AMY S. WEEKS
ASSISTANT LAW DIRECTOR
40 West Main Street
Newark, Ohio 43055
For Defendant-Appellant
CHRISTOPHER SHOOK
MORROW, GORDON & BYRD
33 West Main Street, P. O. Box 4190
Newark, Ohio 43058-4190
Wise, J.
{¶1}. Defendant-Appellant Scott Davis appeals from his conviction, following a jury trial in the Licking County Municipal Court, on one count of domestic violencе. The relevant facts leading to this appeal are as follows.
{¶2}. On the morning of March 17, 2013, appellant‘s father, David Delawder, noticed appellant and two other persons removing items from a pole barn on Delawder‘s property on Pinewood Trail near Newark, Ohio. Appellant and Dеlawder previously had a disagreement concerning a washer and dryer and rent money that was to be paid to Delawder for storing the property. The situation became physical. According to Delawder‘s subsequent trial testimony, appellant assaulted him with his fists and his hands. Delawder also claimed that hе was hit in the back of the head with a 2 x 4 piece of lumber.
{¶3}. Following the altercation, Delawder contacted 911. Licking County Sheriff‘s Deputy Christopher Van Balen later testified that he was dispatched on March 17, 2013 on a possible assault to a location in Perry Township, Licking County, Ohio. When he arrived at the scеne, he made contact with Delawder. Deputy Van Balen discussed the situation with Delawder and took pictures of his claimed injuries. Deputy Van Balen testified that he thereafter attempted to contact appellant via cell phone, but he was unsuccessful.
{¶4}. On March 21, 2013, appellant was charged with one count of domestic violence,
{¶5}. The matter was thereupon scheduled for a pre-trial conference June 14, 2013 at 2:30 P.M. and a jury trial on June 17, 2013 at 8:30 A.M.
{¶6}. On the day of trial, appellant filed a motion to continue for the purpose of prеsenting an alibi defense. Appellant filed a notice of alibi at the same time. Counsel for appellant stated in the motion to continue that there had been no contact prior to the pre-trial conference on June 14, 2013. The court denied the motion to continue.
{¶7}. At the close of thе State‘s case, the defense proffered a summary of the testimony that would have been presented for appellant‘s alibi. This statement was presented outside of the presence of the jury. Trial counsel indicated that three witnesses, had their presence been able to be secured, would have testified that appellant was at a house on Cedar Run Road with three individuals playing video games at the time of the incident at issue. See Tr. at 60-61.
{¶8}. Furthermore, at the close of the State‘s case, defense counsel moved for acquittal pursuant to Criminal Rule 29. The defense argument was essеntially that the State had failed to present sufficient evidence to establish the date of the offense. See Tr. at 61. The motion for acquittal was denied.
{¶9}. The jury ultimately found appellant guilty of the offense of domestic violence.
{¶10}. The trial court sentenced appellant to ninety days in jail, with sixty days suspended, placed appellant on probation for a period of two years, and imposed a fine
{¶11}. Appellant filed a notice of appeal on June 17, 2013. He herein raises thе following four Assignments of Error:
{¶12}. “I. THE STATE PRESENTED INSUFFICIENT EVIDENCE TO ESTABLISH APPELLANT AND VICTIM AS FAMILY OR HOUSEHOLD MEMBERS FOR PURPOSES OF A DOMESTIC VIOLENCE CONVICTION.
{¶13}. “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING TESTIMONY OVER OBJECTION THAT THE ALLEGED VICTIM WAS THE FATHER OF APPELLANT.
{¶14}. III. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING APPELLANT‘S REASONABLE REQUEST FOR A CONTINUANCE OF TRIAL TO SECURE WITNESSES FOR AN ALIBI DEFENSE.
{¶15}. “IV. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.”
I.
{¶16}. In his First Assignment of Error, appellant argues the State failed to present sufficient evidence at trial that the victim was a “family or household member” for purposes of Ohio‘s domestic violence statute. We disagree.
{¶17}. In reviewing a claim based on the sufficiency of the evidencе, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the
{¶18}.
{¶19}. Pursuant to
{¶20}. The Ohio Supreme Court of Ohio has held: “[C]learly, the General Assembly believed that an assault involving a family or household member deserves further protection than an assault on a stranger. * * * [T]he offense of domestic violence, as expressed in
{¶21}. We herein first address appellant‘s argument that he was not sufficiently shown to have been a “family or household member” based on the testimony of the victim, Delawder, that appellant is his son. At trial, the following exchange took place between the prosecutor and Delawder:
{¶22}. “Q: Okay and how do you know [Appellant] Scott Davis?
{¶23}. “A: He is my son.
{¶24}. “[DEFENSE COUNSEL] MS. SCHOECK: Objection, move to strike hearsay foundation.
{¶25}. “THE COURT: Overruled.
{¶27}. “Q: Okay and um ... obviously given your testimony about your last name you have different last names?
{¶28}. “A: Yes.
{¶29}. “Q: Is he your biological son?
{¶30}. “A: Yes ma‘am he is.
{¶31}. “Q: And why do you have different last names?
{¶32}. “A: That was according to his mother that was her ordeal.
{¶33}. “Q: Okay were you married at that time?
{¶34}. “A: No we were not.”
{¶35}. Tr. at 33-34.
{¶36}. Appellant emphasizes that the State did not present evidence that a father-son rеlationship between victim and himself had been formally established via Ohio‘s paternity establishment statutes (see
{¶37}. Accordingly, we find sufficient evidence was presented to support the initial “family member” element under
{¶38}. We next address appellant‘s argument that he was not sufficiently shown to have resided with Delawder, based on the trial testimony. The pertinent exchange between the prosecutor and Delawder at trial is as follows:
{¶39}. “Q: Okay now did [Appellant] Mr. Davis at that time live with you?
{¶40}. “A: At that yes ... well he pretty much ... what happened was that everybody knowing in this courtroom I gave him a place to live because he was homeless and his girlfriend all they did was fight and argue, fight and argue and I got tired of it. I just lost five people in my life, my mom, my brother and everything he knew what was going on in my head it was аll mixed up in my head. I go outside and they beat the living hell out of me.
{¶41}. “Q: Now, but at that time Mr. Delawder was Scott Davis living with you in your house?
{¶42}. “A: No he left my premises.
{¶43}. “Q: And about when before that did he leave?
{¶44}. “A: After he beat me up.
{¶46}. “A: Well more or less he was coming and going but he was not living in my home. Yes.
{¶47}. “Q: Okay he was coming and going so he was in and out of your house?
{¶48}. “A: Correct.”
{¶49}. Tr. at 38.
{¶50}. Upon review, wе find sufficient evidence was presented to support the “residing or has resided with” element under
{¶51}. Accordingly, appellant‘s First Assignment of Error is overruled.
II.
{¶52}. In his Second Assignment of Error, appellant argues the trial court erred in admitting into evidence certain testimony going to the victim‘s paternal relationship to аppellant. We disagree.
{¶53}. The admission or exclusion of evidence rests in the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180. As a general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802. Our task is to look at the totality of the circumstances in the case sub judice, and determine whether the trial court acted unreаsonably, arbitrarily or unconscionably. State v. Oman (Feb. 14, 2000), Stark App.No. 1999CA00027. Hearsay is “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.” Evid.R. 801(C). Hearsay is generally inadmissible, subject to certain exceptions. See Evid.R. 802.
{¶55}. “Q: Okay and how do you know [Appellant] Scott Davis?
{¶56}. “A: He is my son.
{¶57}. “[DEFENSE COUNSEL] MS. SCHOECK: Objection, move to strike hearsay foundation.
{¶58}. “THE COURT: Overruled.
{¶59}. Tr. at 33.
{¶60}. Appellant presently appears to argue that Delawder‘s knowledge of his paternity of appellant could only have come frоm appellant‘s mother and thus his testimony in that regard was improper hearsay. However, our reading of the record in this instance does not disclose the precise source of Delawder‘s knowledge of paternity; the only subsequent reference to appellant‘s mother by Delawder conсerns the choice of appellant‘s last name. We therefore find appellant‘s hearsay argument in this regard to be speculative and without merit.
{¶61}. Appellant‘s Second Assignment of Error is overruled.
III.
{¶62}. In his Third Assignment of Error, appellant contends the trial court committed reversible error in denying his motion to continue the trial for purposes of securing alibi witnesses. We disagree.
{¶63}. A trial court has the inherent authority to manage its own proceedings and control its own docket. Love Properties, Inc. v. Kyles, Stark App.No. 2006CA00101, 2007-Ohio-1966, ¶ 37, citing State ex rel. Nat. City Bank v. Maloney, Mahoning App.No. 03 MA 139, 2003-Ohio-7010, ¶ 5. A litigant does not have a right to unreasonably delay a trial. See Hartt v. Munobe (1993), 67 Ohio St.3d 3, 9, 1993-Ohio-177. The grant or denial of a continuance is a matter entrusted to the broad, sound discretion of the trial court. Polaris Ventures IV, Ltd. v. Silverman, Delaware App.No. 2005 CAE 11 0080, 2006-Ohio-4138, ¶ 14, citing State v. Unger (1981), 67 Ohio St.2d 65, 423 N.E.2d 1078. In оrder to find an abuse of discretion, we must determine that the trial court‘s decision was unreasonable, arbitrary or unconscionable, and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶64}. In determining whether a trial court abused its discretion in denying a motion for a continuance, an appellate court should consider the following factors: (1) the length of the delay requested; (2) whether other continuances have been requested and received; (3) the inconveniences to witnesses, opposing counsel and the court; (4) whether there is a legitimate reason for the continuance; (5) whether the defendant сontributed to the circumstances giving rise to the need for the continuance; and other relevant factors, depending on the unique facts of each case. In re P.T., Stark App.No.2011 CA00200, 2012-Ohio-1287, ¶ 17, citing Unger at 67-68, 423 N.E.2d 1078. See, also, State v. Holmes (1987), 36 Ohio App.3d 44, 47-48, 521 N.E.2d 479.
{¶65}. In support of his claim, appellant somewhat vaguely maintains that his appointed trial counsel encountered “some apparent difficulty” making contact with appellant prior to the pre-trial, which occurred three days before trial. See Appellant‘s Brief at 15. Appellant urges that there had been no prior continuance requests, and that the only inconveniences would have been to the two State‘s witnesses, one who lives in
{¶66}. We note appellant filed his alibi notice a few minutes before trial, despite the deadline of seven days before trial set forth under Crim.R. 12.1. Furthermore, the proposed alibi witnesses were not identified by complete names and addresses. Upon review of the record in light of the guidelines set forth in Unger, supra, we find no abuse of discretion in the trial court‘s denial of appellant‘s request to continue the trial.
{¶67}. Accordingly, appellant‘s Third Assignment of Error is overruled.
IV.
{¶68}. In his Fourth Assignment of Error, appellant maintains he did not receive the effective assistance of counsel during the trial. We disagree.
{¶69}. The two-part test for ineffective assistance of counsel in criminal cases is set forth in Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. A claim for ineffective assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel‘s performancе fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel‘s essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel‘s ineffectiveness. Strickland, supra; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
{¶70}. In determining whether counsel‘s rеpresentation fell below an objective standard of reasonableness, judicial scrutiny of counsel‘s performance must be highly deferential. Bradley at 142. Because of the difficulties inherent in determining whether effective assistance of counsel was rendered in any give case, a strong presumption
{¶71}. However, it is well-established that a reviewing court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the appellant as a result of thе alleged deficiencies. See Bradley at 143, quoting Strickland at 697. Furthermore, “[a] defendant must demonstrate actual prejudice, and speculation regarding the prejudicial effects of counsel‘s performance will not establish ineffective assistance of counsel.” State v. Halsell, 9th Dist. Summit No. 24464, 2009-Ohio-4166, ¶ 30, citing State v. Downing, 9th Dist. Summit No. 22012, 2004-Ohio-5952, ¶ 27. Actual prejudice means there is a reаsonable probability that but for counsel‘s unprofessional errors, the outcome of the case would have been different. See State v. Adams, Licking App.No. 2005-CA-0024, 2005-Ohio-5211, ¶ 18.
{¶72}. The crux of appellant‘s claim of ineffective assistance goes to his trial counsel‘s handling of a motion to acquit at the close of the State‘s case. The record reveals appellant‘s trial counsel did move at the close of the State‘s case for an acquittal pursuant to Criminal Rule 29. In the oral motion, trial counsel argued that the State had “failed to establish all the elements of their offense,” while counsel specifically argued thаt the prosecution had failed to establish the date of the offense. See Tr. at 61.
{¶73}. Appellant herein was convicted of one count of domestic violence under
{¶74}. Accordingly, appellant‘s Fourth Assignment of Error is overruled.
{¶75}. For the reasons stated in the foregoing opinion, the judgment of the Municipal Court of Licking County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, J., concurs.
Hoffman, P. J., concurs separately.
JWW/d 0219
{¶76} I concur in the majority‘s analysis and disposition of Appellant‘s first, third and fourth assignments of error.
{¶77} I further concur in the majority‘s disposition of Appellant‘s second assignment of error. However, I do so based upon the hearsay exception found in Evid.R. 804 (B)(4)(b).