State v. PhelpsState v. Phelps
Darin S. Barber, 12 East Warren Street, Lebanon, OH 45036, for defendant-appellant
O P I N I O N
YOUNG, J.
{¶1} Defendant-appellant, Stephen R. Phelps, appeals from a judgment of the Warren County Court of Common Pleas convicting him of felony domestic violence and sentencing him to 17 months in prison.
{¶2} Appellant and his sister, Jolene Phelps, were living with their mother, Barbara Trisler, and their stepfather, Nicolas Trisler, in the city of Blanchester, Warren County, Ohio. On the morning of December 14, 2008, Nicolas jokingly told
{¶3} On January 16, 2009, appellant was indicted on one count of domestic violence in violation of
{¶4} Appellant now appeals, raising one аssignment of error in his initial brief and two additional assignments of error in a supplemental brief.
Assignment of Error No. 1:
{¶6} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT ENTERED JUDGMENT CONVICTING HIM OF FOURTH-DEGREE FELONY DOMESTIC VIOLENCE BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO SHOW THAT HE HAD A PRIOR CONVICTION FOR DOMESTIC VIOLENCE.”
{¶7} Appellant argues the trial court erred by entering judgment convicting him of fourth-degree felony domestic violence, because the state failed to present sufficient evidence to show that he had been previously convicted of domestic violence. We disagree with this argument.
{¶8} The relevant inquiry in reviewing an insufficient evidence claim is
{¶9} Appellant was charged with domestic violence under
{¶10} “When existence of a prior conviction does not simply enhance the penalty but transforms the crime itself by increasing its degree, the prior conviction is an essential element of the crime and must be proved by the state [beyond a reasonable doubt].” State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, ¶8. Therefore, since appellant‘s prior conviction is an element of the fourth-degree felony with which he was charged and convicted, the state was required to prove the prior conviction beyond a reasonable doubt. Id.
{¶11}
{¶12} In this case, the state introduced into evidence a certified copy of a
{¶13} When this evidence is examined in a light most favorable to the state, it is apparent that the state presented sufficient evidence to identify the “Stephen R. Phelps” named in the certified copies of the judgment entries from the prior cases as being the same “offender in the case at bar,” i.e., appellant. See
{¶14} Consequently, appellant‘s first assignment of error is overruled.
First Supplemental Assignment of Error:
{¶16} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT ADMITTED STATE‘S EXHIBIT 1 AND 2, IN THEIR ENTIRETY, INTO EVIDENCE.”
Second Supplemental Assignment of Error:
{¶18} “DEFENDANT-APPELLANT WAS PREJUDICED BY THE
{¶19} Appellant‘s supplemental assignments of error are interrelated and therefore will be addressed together.
{¶20} Appellant argues the trial court erred when it admitted state‘s Exhibits 1 and 2 in their entirety, becausе those exhibits contained evidence of his prior misconduct that was inadmissible under
{¶21} State‘s Exhibit 1 included not only a judgment entry showing that appellant had been convicted of domestic violence against Jolene in 1998, but also a temporary protection order and “fact sheet.” The TPO contained a finding that the safety and protection of Jolene or other family or household members “may be impaired” by appellant‘s continued presenсe in the family‘s residence, and ordered appellant not to abuse Jolene or any other family or household member “by harming, attempting to harm, threatening, molesting, following, stalking, bothering, harassing, annoying, contacting or forcing sexual relations upon them.” The fаct sheet alleged that appellant was intoxicated at the time of the offense, had refused to leave when asked, and had assaulted Jolene causing her several injuries, and warned of the possible existence of outstanding warrants for appellant in other jurisdictions.
{¶22} State‘s Exhibit 2 included not only a judgment entry showing that appellant had been convicted of domestic violence against his mother in 2004, but also evidence that he had been convicted at the same time for possession of drug paraphernalia and marijuana. Exhibit 2 also included an “Intake Sheet” summarizing appellant‘s offense by stating, “[Appellant] released from prison 10 days ago – Came to mom‘s house high and told her to hand over money and keys to car or he would
{¶23}
{¶24} “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowlеdge, identity, or absence of mistake or accident.”
{¶25} Appellant acknowledges that it was permissible for the state to introduce evidence of his prior convictions for domestic violence in order to obtain a conviction against him on the charge of fourth-degree felony domestic violence. However, he argues the trial court erred by admitting State‘s Exhibits 1 and 2 in their entirety, because those exhibits contain evidence regarding the specific details of his prior convictions for domestic violеnce that exceeded the amount of evidence necessary to prove the existence of the prior convictions, and “transform[ed] the matter into an
{¶26} The state conceded during oral argument that some of the evidence contained in Exhibits 1 and 2 went beyond what was necessary to prove that appellant was the defendant named in the certified copies of the judgment entries in the 1998 and 2004 domestic violence cases. However, the state correctly points out that appellant failed to object to the admission of this evidence at trial, and argues the admission of the other acts evidence did not constitutе plain error.
{¶27} Appellant acknowledges that his trial counsel failed to object to the admission of this evidence. However, citing State v. Feathers, Portage App. No. 2005-P-0039, 2007-Ohio-3024, ¶76, he requests that we address his supplemental assignments of error under the “regular standard of review” as if there had been a рroper objection, because his trial counsel‘s failure to object to the evidence amounted to constitutionally ineffective assistance. We find this argument unpersuasive.
{¶28} In Feathers at ¶76, the court of appeals stated:
{¶29} “Feathers did not object to this testimony. However, in Feathers’ third supplementаl assignment of error, Feathers claims his trial counsel was ineffective for failing to object to this testimony. Therefore, we will address this assignment of error on the regular standard of review, as if there was a proper objection.” See, also, id. at ¶63.
{¶30} Seizing upon this language, appellant requests that we review his supplemental assignment of error regarding the other acts evidence under the “regular standard of review,” rather than a plain error standard of review. We decline to do so.
{¶31} Initially, we do not interpret Feathers as holding that a criminal defendant can avoid the harsh consequences of the plain error rule merely by raising on appeal a claim of ineffective assistance of trial counsel. Instead, a more reasonable interpretation of Feathers is that the court of appeals simply concluded that trial counsel had provided Feathers with constitutionally ineffective assistance in multiple ways, and therefore Feathers was entitled to a new trial. Thus, in order to prevail on his other acts claim, appellant must show that the trial cоurt‘s failure to exclude this evidence amounted to plain error.
{¶32}
{¶33} In this case, appellant cаnnot show that the outcome of his trial would have been different if the other acts evidence had not been admitted. Nicholas testified that appellant grabbed him and threw him down, causing him injury. Barbara testified that she did not actually see appellant grab Nichоlas and throw him down, but did hear Nicholas hit the floor. Both Nicholas and Barbara were reluctant to testify against appellant, and both attempted to minimize appellant‘s culpability by blaming his conduct on his drug and alcohol addictions. The state‘s evidence also showed that appellant committed the offense after he had been drinking, using drugs, and fighting with his girlfriend all night.
{¶34} The state also introduced evidence of recorded telephone conversations between appellant and Barbara, in which appellant asked her not to testify against him and to encourage Nicholas not to testify against him either. He also encouraged Barbara to tell the prosecutor that she could not remember or recall what happened on the night in question, or to “take the fifth.” Hе also asked Barbara to ask Nicholas to do the same. Appellant also advised Barbara that while she could be forced to come to court, she could not be forced to testify against him.
{¶35} Appellant also claims that his trial counsel prоvided him with constitutionally ineffective assistance of counsel by failing to object to the other acts
{¶36} To prevail on an ineffective assistance claim, a defendant must show that his trial counsel‘s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for his counsel‘s performance errors, the outcome of his trial would have been different. Strickland v. Washington (1984), 466 U.S. 668, 687-694, 104 S.Ct. 2052. A “reasonable probability” is a probability sufficient to undermine confidence in the trial‘s оutcome. Id.
{¶37} In this case, appellant cannot show that a reasonable probability exists that, but for his trial counsel‘s failure to object to the other acts evidence, the outcome of his trial would have been different, i.e., that the error undermines confidence in the outcome of his trial. Id.
{¶38} Therefore, appellant‘s first and second supplemental assignments of error are overruled.
{¶39} Judgment affirmed.
POWELL, P.J., and HENDRICKSON, J., concur.