State v. FuchsState v. Fuchs
Rendered on the 18th day of October, 2019.
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, 4 East Schantz Avenue, Dayton, Ohio 45409 Attorney for Defendant-Appellant
TUCKER, J.
{¶ 2} We find that Fuchs has demonstrated a reasonable probability that the outcome of his trial would have been different had the jury not been provided with the evidence in question. Therefore, the trial court‘s judgment is reversed, and this case is remanded to the trial court for further proceedings.
I. Facts and Procedural History
{¶ 3} Prior to April 2016, Fuchs and Shana Belcher were romantically involved “for a short amount of time” while Belcher was separated from her husband, Gary. Transcript of Proceedings 139:11-140:11, Dec. 6, 2017. After the Belchers reconciled, Fuchs apparently began harassing them, prompting Gary Belcher to file a petition for a civil stalking protection order. In Case No. 2016 CV 02002, the Montgomery County Court of Common Pleas granted the petition and issued a final protection order pursuant to
{¶ 4} Fuchs seems to have violated the order almost immediately; a criminal complaint filed on June 14, 2016, in the Municipal Court of Montgomery County charged
{¶ 5} Fuchs allegedly violated the protection order a second time on April 9, 2017, when he purportedly drove through the Belchers’ neighborhood in a white, 1998 Dodge Ram pickup truck. On May 22, 2017, a Montgomery Cоunty grand jury indicted him in the instant case for one count of violating a protection order, charged as a fifth degree felony pursuant to
{¶ 6} Over the course of three days, November 27, 2017, and December 6-7, 2017, the case was tried to a jury. The State offered the testimony of three witnesses—one of the Belchers’ neighbors, Shanа Belcher, and an officer with the Huber Heights Police Division—and presented a total of 10 exhibits. Although the parties stipulated that Fuchs had been convicted previously for violating the protection order, the State introduced three of its exhibits to prove as much. See Transcript of Proceedings 143:15-145:5, 179:6-179:15, 199:21-200:7 and Joint Exhibit 1. State‘s Exhibit 4 included two documents from the docket of Case No. 2016 CV 02002—a copy of the protection order itself, and a magistrate‘s decision that presented an account of the circumstances leading to the issuance of the order. Id. at 143:15-145:5. State‘s Exhibit 5 was a certificate of
{¶ 7} Fuchs‘s counsel did not object to State‘s Exhibits 4-6 or request any redactions. In his defense, Fuchs оffered the testimony of an alibi witness and that of his mother, who testified that the pickup truck allegedly seen by the Belchers could not have been his vehicle.
{¶ 8} On December 7, 2017, the jury returned a verdict of guilty. The trial court filed a judgment entry of conviction on January 9, 2018, and Fuchs timely appealed to this court on January 24, 2018.
{¶ 9} Fuchs‘s original appellate counsel withdrew after suffering significant illness. Following a series of dеlays, Fuchs‘s substitute counsel filed an Anders brief on September 10, 2018, but in our per curiam opinion of February 19, 2019, we determined that the case presented at least two non-frivolous issues for review. The State and Fuchs‘s second substitute counsel have since briefed the issues on their merits, and having heard the parties’ oral arguments, we may now render our opinion.
II. Analysis
{¶ 10} For his first assignment of error, Fuchs contends that:
APPELLANT‘S CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS VIOLATED WHEN HIS TRIAL COUNSEL ENTERED INTO A STIPULATION OF THE UNDERLYING PROTECTION ORDER WITHOUT
REQUESTING DETACHMENT OF AN APPENDED MAGISTRATE‘S DECISION OR TO REQUEST A LIMITING INSTRUCTION TO THE JURY REGARDING THE PROTECTION ORDER‘S ATTACHED FACTUAL FINDINGS.
{¶ 11} Fuchs argues that by stipulating to the admission of evidence associated with his previous conviction, which otherwise would have been inadmissible under
{¶ 12} To prevail on a claim of “ineffective assistance of counsel, a defendant must satisfy the two-pronged test in Strickland v. Washington, 466 U.S. 668, 687 (1984).” State v. Cardenas, 2016-Ohio-5537, 61 N.E.3d 20, ¶ 38 (2d Dist.). The Strickland test requires a showing that: “(1) defense counsel‘s performance was so deficient that [it did not fulfill the right to assistance of counsel] guaranteed under the Sixth Amendment to the United States Constitution; and (2) * * * defense counsel‘s errors prejudiced the defendant.” Id., citing Strickland at 687. Judicial “scrutiny of counsel‘s performance must be highly deferential,” so “a [reviewing] court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance * * *.” Strickland at 689, citing Michel v. Louisiana, 350 U.S. 91, 101 (1955). To show prejudice, the defendant bears the burden to demonstrate “a reasonable prоbability that, but for counsel‘s
{¶ 13} As we noted in our review of the Anders brief filed by Fuchs‘s first substitute counsel, the outcome of Fuchs‘s trial turned on what the jury believed had, or had not, occurred on April 9, 2017, because Fuchs stipulated that he was subject to the protection order issued in Case No. 2016 CV 02002; that he was served with a copy of the order at the time it was issued; that the ordеr was in effect on April 9, 2017; and that he had previously been convicted of violating the order. In addition, Fuchs stipulated that State‘s Exhibits 4-6 were “authentic,” even though these exhibits were introduced by the State to prove facts already acknowledged by Fuchs to be true. See Transcript of Proceedings, Joint Exhibit 1.
{¶ 14} State‘s Exhibit 4 consisted of a copy of the protection order and an underlying magistrate‘s decisiоn. In her decision of late April or early May 2016, the magistrate found that Fuchs had threatened to “cut” Gary Belcher during a threatening telephone call; that “[t]elecommunications harassment charges [were] pending” against Fuchs as a result of an earlier incident of telephone harassment; that Fuchs had threatened to kill Belcher and was arrested while driving in Belcher‘s neighborhood with a gun in his vehicle, “а case [that] likewise [was] pending“; and that Fuchs and Belcher had “got[ten] into a fistfight” in January 2016. The order itself stated Fuchs had “knowingly engaged in a pattern of conduct that caused [Belcher] to believe that [Fuchs] [would] cause physical harm * * *.”
{¶ 15} During the trial, the State called three witnesses, and Fuchs called two.
{¶ 16} Of Fuchs‘s witnesses, the first indicated that he hardly knew Fuchs, being acquainted only through a mutual friend, and he testified that Fuchs and their mutual friend had been kayaking with him at or near the time Fuchs allegedly drove through the Belchers’ neighborhood. Fuchs‘s second witness was his mother, who testified that Fuchs‘s truck was inoperable on April 9, 2017.
{¶ 17} In this context, we find a reasonable probability that the outcome of Fuchs‘s trial would have been different had State‘s Exhibit 4 not been admitted into evidence. The protection order itself stated that Fuchs had been engaged in a “pattern of [threatening] conduct,” and thе magistrate‘s findings of fact presented the jury with potentially inflammatory descriptions of Fuchs‘s past behavior. Irrespective of the exhibit‘s relevance, “evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice,” and it “may be excluded if its probative value is substantially outweighed” by its redundancy. See
{¶ 18} The State argues that Fuchs‘s trial counsel was not ineffective for failing to object to the exhibit‘s admission without redaction because the exhibit “would [have been] admissible [anyway] under
{¶ 19} Regardless of whether State‘s Exhibit 4 could have been offered under
{¶ 20} The State also argues that Fuchs‘s trial counsel might have consciously chosen to withhold an objection to State‘s Exhibit 4 as a matter of strategy, inasmuch as the magistrate‘s decision included a footnote casting doubt on Shana Belcher‘s truthfulness as a witness. Appellee‘s Brief 7-8. Although this argument is plausible, Fuchs‘s counsel made no reference to that portion of the magistrate‘s decision in his opening or closing statement, and he made no attempt to impeach Belcher‘s testimony on the basis of the footnote during cross-examination.
{¶ 21} Additionally, the State argues that “even if * * * the admission of [State‘s Exhibit 4] was erroneous, any [such] error was invited [error].” Appellee‘s Brief 8. The State suggests that by “stipulating to the admission of the evidence without redaction or * * * a limiting instruction, Fuchs invited the error [оf] which he now complains.” Id. Yet, the doctrine of invited error applies to “an error that [a party itself] induce[s] [a] trial court to make,” rather than to an error that the party passively fails to notice or attempt to correct. See, e.g., State ex rel. The V Cos. v. Marshall, 81 Ohio St. 3d 467, 470-471 (1998);
{¶ 22} State‘s Exhibit 4 included unfairly prejudicial evidence of other acts, and we find that Fuchs‘s trial counsel rendered ineffective representation by failing to object to the admission of the exhibit without redactions. We find further thаt the jury‘s receipt of the exhibit gives rise to a reasonable possibility that the outcome of Fuchs‘s trial would have been different had the exhibit not been introduced into evidence, or had it been entered into evidence only in a redacted form. Fuchs‘s first assignment of error is sustained.
{¶ 23} For his second assignment of error, Fuchs contends that:
THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING THE STIPULATED PROTECTION ORDER WITHOUT MODIFICATION AND WITHOUT PROVIDING A LIMITING INSTRUCTION TO THE JURY, IN VIOLATION OF RULE 404(B) OF THE OHIO RULES OF EVIDENCE.
{¶ 24} On review of Fuchs‘s first assignment of error, we have found that Fuchs‘s trial counsel wаs ineffective for failing to object to the admission of State‘s Exhibit 4
III. Conclusion
{¶ 25} Fuchs has demonstrated a reasonable probability that the outcome of his trial would have been different had the jury not been presented with the unfairly prejudicial evidence included in State‘s Exhibit 4, and we find as a result that his trial counsel was ineffective with respect to the admission of the exhibit. Therefore, Fuchs‘s conviction is reversed, and this case is remanded to the trial court for further proceedings.
FROELICH, J., concurs.
WELBAUM, P.J., dissents:
{¶ 26} I respectfully dissent from the majority‘s holding in this case and would affirm the judgment of the trial court. I do not agree that the failure of Fuchs‘s trial counsel to object to the admission of State‘s Exhibit 4 qualifies as deficient performance supporting an ineffective assistance of counsel claim. Although State‘s Exhibit 4 contained information that may have been harmful to Fuchs‘s case, there was, nevertheless, information in the exhibit that also benefitted Fuchs‘s case. Specifically, footnote one of the exhibit depicted Shana Belcher (the only eyewitness who testified that Fuchs drove by her residence) as untruthful due to her having previously lied about Fuchs in court. Footnote one specifically provided that:
Petitioner‘s wife, Shana, had previously filed a petition against Weston Fuchs, alleging that he had physically assaulted her. When they came in
for the full hearing just days before the instant petition was filed, she recanted and said everything she testified to was a lie. She claimed at the time her husband madе her file it in order to see her children. A discussion was had with Shana outside the presence of the Petitioner to determine whether she needed domestic violence services. She claimed that she was where she wanted to be and would like to be included on the order.
State‘s Exhibit 4/Joint Exhibit I. Based on this information, it is plausible that Fuchs‘s trial counsel stipulated to the admission of State‘s Exhibit 4 as a matter of trial stratеgy. This would also explain why Fuchs‘s trial counsel did not ask for a limiting instruction.
{¶ 27} Our “scrutiny of counsel‘s performance must be highly deferential” so, as a reviewing court, we “must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance * * *.” Strickland, 466 U.S. 668, 689 (1984), citing Michel, 350 U.S. 91, 101 (1955). “Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel‘s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel.” State v. Williams, 2d Dist. Montgomery No. 27919, 2019-Ohio-4105, ¶ 41, citing State v. Cook, 65 Ohio St. 3d 516, 524-525 (1992); Strickland at 687-689.
{¶ 28} I believe the majority‘s assessment of trial counsel‘s failure to object to State‘s Exhibit 4 is not sufficiently deferential to a plausible trial strategy. In my view, hindsight may have distorted the majority‘s assessment of what was reasonable, thus causing the majority to miscalculate the viability of a clearly debatable decision regarding trial strategy, which cannot form the basis of an ineffective assistance claim.
{¶ 30} Unlike the majority, I believe that it was reasonable for Fuchs‘s trial counsel to permit the admission of State‘s Exhibit 4 because the exhibit contained explicit evidence indicating that the only eyewitness who could identify Fuchs was a liar who had a motive to lie. Had there been no compelling evidence favoring Fuchs in the exhibit, I would agree with the majority‘s holding. However, that is not the case. Instead, the contents of footnote one in State‘s Exhibit 4 provided information that could have reasonably led to an acquittal. The fact that it did not is irrelevant.
{¶ 31} Although it is arguable that Fuchs‘s trial counsеl could have requested to have State‘s Exhibit 4 redacted to remove the prejudicial information contained therein,
{¶ 32} For the foregoing reasons, and in light of the strong presumption that the conduct of Fuchs‘s trial counsel wаs reasonable, it is my view that the failure of Fuchs‘s trial counsel to object to the admission of State‘s Exhibit 4 or to have the exhibit redacted was not deficient, but a debatable trial strategy that cannot form the basis of an ineffective assistance claim. I also believe that Fuchs waived all but plain error when his trial counsel stipulated to the admission of State‘s Exhibit 4. In light of the foregoing discussion, I do not believе there is plain error present. Accordingly, I respectfully dissent from the majority‘s judgment and would affirm the judgment of the trial court.
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Jans
Gary C. Schaengold
Hon. Timothy N. O‘Connell