*1
[Cite as
State v. Goshade
,
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO APPEAL NO. C-120586 :
STATE OF OHIO,
TRIAL NO. B-1107510 : Plaintiff-Appellee,
O P I N I O N. : vs. : THOMAS GOSHADE, : Defendant-Appellant. Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 9, 2013
Joseph T. Deters , Hamilton County Prosecuting Attorney, and Scott M. Heenan , Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond L. Katz , for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar . *2 D INKELACKER , Judge.
{¶1} Defendant-appellant Thomas Goshade was convicted of one count of domestic violence under R.C. 2919.25(A) and one count of felonious assault under R.C. 2903.11(A)(2). He was sentenced to 18 months’ imprisonment on the domestic- violence count and four years’ imprisonment on the felonious-assault count, to be served concurrently. Goshade now appeals those convictions. We find no merit in his four assignments of error, and we affirm the trial court’s judgment.
I. Facts and Procedure The record shows that at approximately 5:11 a.m. on November 11, 2011, Officer Martin Strong of the Forest Park Police Department responded to a 911 call placed by Ticora Edmonson. He met Emondson at the door of her home, crying and upset. She had a red, swollen right check and a red mark around her neck. The officer observed “a cord to an electrical device lying in the hallway” and a broken, splintered bedroom door frame. Edmonson told Officer Strong that she had been arguing with
Goshade, who was the father of her child, and that she had locked herself and her child in a bedroom. Goshade had kicked in the door and had started hitting her. He then picked up an electrical cord, wrapped it around her neck and tried to choke her with it. He subsequently took the cell phone on which she had made the 911 call and the keys to her car, and left the area in her vehicle. When Goshade took the cell phone from Edmondson, he did not end
the call. Therefore, the 911 recording contained statements made by Goshade in separate conversation on his own cell phone. He stated that he had “made her feel it” and that he “took her to the brink.”
{¶5} The police were able to track Goshade using Edmonton’s cell phone, and he was subsequently arrested in a store parking lot some distance away. He admitted to Officer Strong that he had gotten into an argument with Edmonson, that he had broken down a door, that he had hit her and that he had choked her. When Officer Strong asked Goshade if he had choked Edmonson with a cord, he said, “I tried.” At trial, Edmonson testified that she and Goshade had been living
together and that she had called 911 because she and Goshade had been fighting. Then, she asserted her Fifth Amendment privilege against self-incrimination. The recording of the 911 call was admitted into evidence. It contained Edmonson’s cries for help and Goshade’s conversation on his own cell phone.
II. Confrontation Clause
In his first assignment of error, Goshade contends that the trial court
erred in considering inadmissible testimonial hearsay. He argues that admission
into evidence of Edmonson’s statements to Officer Strong violated his right to
confront the witnesses against him. This assignment of error is not well taken.
Edmonson’s statements were admitted under the excited-utterance
exception to the hearsay rule. Evid.R. 803(2) defines an excited utterance 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.” Excited
utterances are reliable because they do not entail an opportunity for the declarant
to reflect, thus reducing the chance to fabricate or distort the truth.
State v.
Wallace
,
self-incrimination, she was unavailable to testify.
State v. Osman
, 4th Dist. Athens
No. 09CA36,
States Supreme Court has held that the key to determining whether statements are testimonial is whether the questioning by police or a police counterpart was seeking information needed to respond to a present emergency or whether it was seeking information about past events as part of the investigation of a crime. Davis v. Washington , 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ; Washington at ¶ 35. It stated:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Davis
at 822.
In assessing whether a statement is testimonial, the court must
“objectively evaluate the circumstances in which the encounter occur[red] and
the statements and actions of the parties.”
State v. Jones
, 135 Ohio St.3d 10,
struggle heard in the background. When Officer Strong arrived at Edmonson’s home, she met him at the door, crying and upset. She was so upset that it took some time for Strong to determine what had happened. She had red marks on her face and neck and the door was splintered, supporting her claim that a violent encounter had occurred. Goshade’s whereabouts were unknown, unlike in cases where courts
have found the victim’s statements to be testimonial because the alleged perpetrator
had been apprehended or secured.
See Davis
,
Edmondson’s statements were not testimonial. Therefore, the trial court did not err
in admitting them into evidence under the excited-utterance exception to the hearsay
rule. Further, even if the admission of her statements into evidence had been error,
any error was harmless given that Goshade admitted to Officer Strong that he had hit
and choked Edmondson.
See State v. Ricks
, ___ Ohio St.3d ___,
III. Manifest Weight of the Evidence
In his second assignment of error, Goshade contends that his
convictions were against the manifest weight of the evidence. After reviewing the
record, we cannot say that the trier of fact lost its way and created such a manifest
miscarriage of justice that we must reverse Goshade’s convictions and order a new
trial. Therefore, the convictions were not against the manifest weight of the
evidence, and we overrule Goshade’s second assignment of error.
See State v.
Thompkins
,
IV. Allied Offenses of Similar Import In his third assignment of error, Goshade contends that the trial court erred by imposing multiple sentences for crimes that were allied offenses of similar import under R.C. 2941.25. He argues that both offenses of which he was convicted involved the same conduct with the same animus. Therefore, they should have been merged for sentencing. This assignment of error is not well taken. We first note that Goshade failed to raise the issue in the trial court.
Consequently, he has waived all but plain error by failing to raise any objection to the
imposition of multiple punishments at the sentencing.
State v. Underwood
, 124
Ohio St.3d 365,
a defendant for two or more offenses having as their genesis the same criminal
conduct 0r transaction, if the offenses (1) were not allied offenses of similar import,
(2) were committed separately, or (3) were committed with a separate animus as to
each offense.
Anderson
at ¶ 15, citing
State v. Bickerstaff
,
*9
The imposition of concurrent sentences is not the equivalent of
merging allied offenses.
State v. Damron
,
1061, the Ohio Supreme Court changed the analysis that courts are to apply in allied-
offenses cases.
State v. Lanier
, 192 Ohio App.3d 762,
offense in the context of the defendant’s conduct.
State v. Williams
, 134 Ohio St.3d
482,
{¶26}
Although felonious assault under R.C. 2903.11(A)(2) and domestic
violence can be committed by the same conduct, in this case they were not. The
domestic-violence conviction was the result of Goshade beating the victim after
breaking down the bedroom door. If his conduct had ended after he had beaten the
victim, he could not have been convicted of felonious assault under subsection (A)(2)
because he did not use a deadly weapon. The felonious-assault conviction was based
upon him choking the victim with the electrical cord, which became a deadly weapon
when he used it as a weapon by wrapping it around her neck.
See
R.C. 2923.11(A);
In
re Kristopher F.
, 5th Dist. Stark No. 2006CA00312,
V. Ineffective Assistance of Counsel In his fourth assignment of error, Goshade contends that he was denied the effective assistance of counsel. He argues that counsel was ineffective for failing to object when he was convicted of both felonious assault and domestic violence because they were allied offenses of similar import. But because we have held that the two offenses were not allied offenses subject to merger, Goshade’s counsel was not ineffective for failing to raise the issue. Goshade has not demonstrated that his counsel’s representation fell
below an objective standard of reasonableness or that, but for counsel’s
*11
D
unprofessional errors, the result of the proceeding would have been otherwise.
Therefore, he has failed to meet his burden to show ineffective assistance of counsel.
See Strickland v. Washington
, 466 U.S. 668, 687-689, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984);
State v. McCrary
, 1st Dist. Hamilton No. C-080860,
Judgment affirmed. H ENDON , P.J., concurs.
D E W INE , J. , concurs in part and dissents in part. E W INE , J. , concurring in part and dissenting in part. I concur in the majority’s opinion in regard to the Confrontation Clause
and weight of the evidence issues. I must respectfully dissent as to the allied-offenses and ineffective-assistance-of-counsel issues. Since the Ohio Supreme Court’s decision in State v. Johnson , 128 Ohio
St.3d 153,
turns on whether the charges for domestic violence and felonious assault were based *12 upon the same conduct. See majority opinion at ¶ 27; see also R.C. 2941.25; Johnson at syllabus. I also agree with the majority that domestic violence and felonious assault under R.C. 2903.12(A) can be committed with the same conduct. What I disagree with is the majority’s conclusion that Mr. Goshade’s convictions were not based on the same conduct. I just cannot reach that result from the record before us. Let’s look at that record. Here is the totality of what the state says in the bill of particulars about the acts that constituted all counts charged in the indictment:
On or about November 11, 2011, * * * the defendant forced his way into a locked bedroom. Once the Defendant gained access of the room the Defendant using the Defendant’s hands and a computer cord choked Ticora Edmondson, the Defendant’s child’s mother, living as the Defendant’s spouse. The Defendant threatened to kill Edmonson. The Defendant fled the scene with Edmondson’s cell phone and vehicle.
The only evidence at trial about the details of the altercation was the testimony of Officer Strong. This is what Officer Strong testified the victim told him:
I was told that she had been arguing with her child’s father and she had locked herself in the bedroom with her child. This person came be [sic] known to me as Mr. Goshade, the child’s father, had then knocked in the door, kicked in the door, got into the bedroom.
They had got into a struggle where he slapped, struck and choked her, and she told me that he had
taken an electrical cord from an electrical device and wrapped it around her neck and attempted to choke her with that.
And this is what Officer Strong testified the defendant told him:
Q. What did he tell you happened?
A. I started the line of questioning, asked him if they had been in an argument. He indicated affirmative, that, yes, they were. I asked him if he had broken down a door. He indicated yes. I asked him if they’d gotten into a fight. Yes. I asked him had he slapped her. He said yes. Had he hit her? Yes. Had he choked her? Yes.
And the final question I had asked him, I asked if he had choked her with a cord, and he said I tried.
Q. I tried to choke her with a cord?
A. That was his only exception to any of the questions that I had asked him.
That is all the evidence we have to go on from the record about the details of what occurred. The state’s arguments at trial don’t suggest anything that could be
construed as separate conduct either. In closing argument, the prosecutor summed up the evidence supporting the domestic-violence charge this way: “[T]hrough excited utterances we know that the defendant broke that door down, obviously in a rage, choked her and left the scene before the police officers could get there.” As to the felonious-assault count, the prosecutor cited the same conduct, stressing that the cord used in the assault constituted a deadly weapon:
The second count is a felonious assault, and the felonious assault is not a count where we have to show there is serious physical harm. All we have to show is what was used in this situation was a deadly weapon. A cord in and of itself is not a deadly weapon, but when it’s used in a manner to wrap around an individual’s neck, it is obvious it can be used for purposes of serious physical harm, or death. * * * We don’t have to show anything other than the fact that he attempted to cause harm by means of a deadly weapon * * *.
Based on this record it seems crystal clear to me, at least, that the state relied upon the same conduct to prove both offenses. The only fair reading of the record is that Mr. Goshade administered one beating to the victim in which he strangled her with his hands and a cord. One way to understand the majority’s contrary opinion is that it is
premised upon the idea that there was some type of temporal space between a
beating administered by Mr. Goshade’s hands and the use of the cord.
See
majority
opinion at ¶ 26 (“If his conduct had ended after he had beaten the victim, he could
not have been convicted of felonious assault”). And if the record supported this
inference that there was a beating followed by a temporal interruption and
subsequent attempt to choke the victim with a cord, there would be a good argument
that two separate offenses occurred.
See
,
e.g.
,
State v. Harmon
, 9th Dist. Summit
No. 26502,
significance to the fact that Mr. Goshade used both a cord and his hands to hurt his *15 victim. See majority opinion at ¶ 25. But such a construction of the allied-offenses statute leads to untenable—even absurd—results. Imagine the typical fight scene from a Hollywood movie (think Indiana Jones or maybe Clint Eastwood), where in the course of the conflict the assailant uses his fists, his feet, a beer bottle, a chair and who knows what else to go after his victim. Under the majority’s reading of the statute, the number of charges the assailant might face would be limited only by the number of objects used in the struggle. That can’t be the law. The majority’s attempt to parse the assault of Ms. Edmondson into
separate acts seems at odds with the Supreme Court’s decision in Johnson . This is what the court said in Johnson :
We decline the invitation of the state to parse Johnson’s conduct into a blow-by-blow in order to sustain multiple convictions for the second beating. This beating was a discrete act that resulted in the simultaneous commission of allied offenses, child abuse and felony murder.
Johnson
at ¶ 56. Adherence with
Johnson
requires that we decline the State’s
invitation in this case as well.
So does adherence with our precedent. In
Anderson
,
{¶39}
The Second District summed up the law in this area as follows: “When
a course of conduct involves two or more acts or omissions undifferentiated by time,
place, or circumstance, merger of multiple criminal offenses arising from that course
of conduct is required because the offenses involve the ‘same conduct.’ ”
State v.
Johnson
, 2d Dist. Montgomery No. 24031,
said to be somewhat academic in this case. Because the trial court ran Mr. Goshade’s
sentences concurrently, merging the convictions would not affect the overall length
of his sentence. But we have been told that because Mr. Goshade is prejudiced by
being convicted of more offenses than are authorized by law, this kind of error is not
harmless.
See State v. Underwood
, 124 Ohio St.3d 365,
Please note:
The court has recorded its own entry on the date of the release of this opinion.