State v. StevensState v. Stevens
Max Hersch for Appellant
John R. Willamowski, Jr. for Appellee
{1} Defendant-appellant, Joshua L. Stevens (“Stevens“), appeals from a judgment of the Allen County Court of Common Pleas convicting him, following a jury trial, of felonious assault. Stevens presents six assignments of error asserting that (1) the trial court erred when it admitted identifying statements in an exhibit as excited utterances; (2) trial counsel rendered ineffective assistance by failing to object to an officer‘s recitation of an identifying hearsay statement; (3) trial counsel rendered ineffective assistance by failing to object to evidence concerning whether Stevens fled armed with a weapon; (4) multiple errors cumulatively deprived him of his constitutional right to a fair trial; (5) the trial court erred when it sentenced him to an indefinite sentence under the unconstitutional Reagan Tokes Law; аnd (6) trial counsel rendered ineffective assistance by failing to request a waiver of court costs at sentencing. For the reasons which follow, we overrule the assignments of error and affirm the trial court‘s judgment.
Facts and Procedural History
{2} In July 2022, Stevens was indicted on two counts of felonious assault against Ralph W. Dewitt. Count One alleged a violation of
{4} That night, Dewitt was walking back and forth on the sidewalk in front of the home of Elsie Robinson, his next door neighbor and mother of his brother‘s child, while talking on the phone with a potential buyer for a car he was trying to sell. Cody Joseph, who “used to be” Dewitt‘s brother‘s best friend, was nearby, “[u]nderneath the hood of the car” looking for “the easiest way to get to the clutch,” which needed a new sleeve. Dewitt heard noise on Robinson‘s front porch and turned toward it. He saw someone moving around on the porch, but it was dark up there, and he could not tell who the person was. Dewitt testified that Robinson kept tools on her front porch, and he heard “a whole bunсh of rattling,” so he “turned back around, thinking it‘s somebody up there getting tools,” and finished his phone call. Dewitt testified that he turned around again and “got hit with a hammer.” A
{5} Dewitt chased the attacker, who turned around and pulled out something from his book bag, which Dewitt thought looked like a knife. At that point, Dewitt could see the person was Stevens because Dewitt “got a good look at him from the garage light.” “There was a whole bunch of yelling,” and “[o]ther people started coming and gathering around and looking out their windows.” Dewitt kept telling Stevens “to drop it.” Stevens “went to take off,” and Dewitt “started hitting him again.” Stevens dropped the object and then ran up an alley tо the back porch of Robinson‘s mother‘s house. Stevens ran through the house, but Dewitt stopped at the back door because people “kept hollering ‘there‘s kids in here [sic].‘” Dewitt started walking down the alley back towards his home. Someone told him that Stevens had exited the front door of Robinson‘s mother‘s house and “took off up the street.” Dewitt jumped into his brother‘s truck and “went down that way.” He saw “the cops hit their spotlight,” so he parked the truck in the driveway of Robinson‘s mother‘s house and walked home. Police were present when he arrived. Dewitt testified that about five minutes passed between the time he was hit with the hammer and the police showing up. Dewitt also testified about his injuries, the medical treatment he received the night of the attack, and ongoing medical problems he has had since the attack.
{7} Patrolman Nevan Stolly of the Lima Pоlice Department testified that on May 2, 2022, around 9:00 p.m., he and his partner, Patrolman Stevenson, “responded to a fight in the front yard of” 905 East Second Street, i.e., Dewitt‘s residence. Upon arrival, Patrolman Stolly observed “[a] very chaotic scene. A lot of yelling and screaming. A lot of people standing around.” Patrolman Stolly testified that he was “confronted by a female,” Robinson, who had “an object in her hand” and was “kind of just trying to explain to me what happened.” Robinson “was very distraught,” “very excited,” and “very upset kind of.” She handed him a hammer with “a plastic bag at the end of it that she was holding on to.” Patrolman
{8} Patrolman Stolly testified that he was wearing a body camera that night. The state asked to play the footage for the jury, and dеfense counsel objected and stated:
[T]his is going to contain statements from witnesses beyond just the one we had, the excited utterance we had. It will contain statements that are testimonial in nature, however are not subject to admissibility right now because it doesn‘t meet one of the exceptions under Crawford, even though it does meet an 803 exception for hearsay of declarants not here to testify or to be cross examined. It‘s based on, well, has to do with location of various things, location of a weapon, and location of actually one weapon that we have and another that we
don‘t have. Basically, without any sort of opportunity to cross examine it‘s not fair to have that testimony played for the jury.
In response, the prosecutor asserted that “Patrolman Stolly did lay the necessary foundation for the excited utterance” and that the prosecutor believed defense counsel “agreed the excited utterance was met.” The prosecutor stated, “I think the issue here would be confrontation clause and Crawford” and argued that an “exception to Crawford” for an on-going emergency applied. The trial court overruled the objection. The court found playing the body camera footage would not violate the Confrontation Clause and that “all of these statements would be excited utterances by the people.” The trial court noted: “Quite honestly, I was a little bit surprised when I first viewed the body cam. I expected to see just craziness, chaotic craziness. It was chaotic. It‘s not as crazy chaotic as I‘ve probably seen on some other videos. But, I would still say that the people who were speaking were all in a state of strеss of the event.”
{9} Pertinent to this appeal, the footage begins with Patrolman Stolly walking toward some people and asking, “What‘s going on?” Robinson approaches him and distinctly says “Josh,” “the guy in the truck,” and “got assaulted.” Although it is difficult to discern, it sounds as if she says, “The boy Josh. The guy in the truck is the one that got assaulted.” Robinson holds up a hammer and says, “Here‘s the weapon.” She puts the hammer on the ground at Patrolman Stolly‘s direction. Patrolman Stolly again asks what happened. Robinson tells him that “my
{10} Patrolman Stolly asks what happened to the guy that got assaulted. Watkins says, “My old man.” Joseph says, “The boy grabbed a hammer out of his back and busted him in the head with it.” Watkins says, “Hit him in the head and he took off. My husband‘s got a big old knot in his head right here where he hit him with that hammer.” Patrolman Stolly asks about the person who just took off in the truck and about why people were screaming. Then Patrolman Stolly says, “Where‘s the guy that hit him over the head with the hammer?” Watkins says, “I don‘t know.” Patrolman Stolly asks what he was wearing, and Watkins says, “All black.” Patrolman Stolly asks if he is “a white male, black male.” Watkins says, “White male.” Then, about 90 seconds into the footage, Robinson says, “His name is uh ...” Watkins says, “Josh.” Robinson then says, “Josh Stevens,” and Watkins repeats the name. Robinson says, “But he stole off my property, bro.” The women
{11} About six and a half minutes into the footage, Dewitt arrives on the scene. Dewitt tells Patrolman Stolly that his attacker, who he just learned was named “Josh,” pulled out a knife after Dewitt took the hammer from him and said that he had a gun too. Later in the footage, there is further discussion about the knife. A few minutes later, Robinson claims a knife was stolen from her porch.
{12} Stevens testified that he had one or two prior convictions for burglary and a prior conviction for breaking and entering. Stevens testified that he got out of prison on March 3, 2022, and was homeless around May 2, 2022. He testified that on May 2, 2022, about 11:30 a.m., he went to his cousin, Chris Gibson‘s, home to see if he could get some food. Stevens testified that Gibson is Robinson‘s “old man,” and she is “supposed to be Chris‘s wife.” Gibson said he could not give Stevens any food, so Stevens said, “That‘s fine.” As Stevens “was getting ready to walk off the porch,” he saw “this dude that was sitting here had a truck hood up and then Shawn Perkins and them was sitting there and just putting jumper cables on it [sic].” Stevens testified: “As soon as they put the jumper cables on it they told the dude to try it. It just clicked.” Stevens knew they needed to “idle it up and boost the voltage” because he has “worked at Downtown Mall here in Lima,” has worked at Ford, and is “a state certified mechanic.” Stevens testified that he is “just a generous person,” so he went over to where they were wоrking and “hit the throttle
{13} The jury found Stevens guilty on both counts. The court found that the counts merged, and the state elected to proceed to sentencing оn Count Two. Prior to the sentencing hearing, Stevens filed an objection to the imposition of an indefinite sentence under the Reagan Tokes Law, asserting that the law violates the separation-of-powers doctrine, the constitutional right to due process, and the constitutional right to a jury trial. The court overruled the objection, imposed an indefinite sentence of six to nine years under the Reagan Tokes Law, and ordered Stevens to pay court costs.
{14} Stevens presents six assignments of error:1
Assignment of Error I: The trial court erred when it admitted the identifying statements in State‘s Exhibit 8 as excited utterances.
Assignment of Error II: Trial counsel rendered ineffective assistance of counsel by failing to object to Officer Stolly‘s recitation of Elsie Robinson‘s identifying hearsay statement.
Assignment of Error III: Trial counsel rendered ineffective assistance of counsel by failing to object to evidence concerning whether Mr. Stevens might have fled armed with a weapon.
Assignment of Error IV: The multiple errors cumulatively deprived Mr. Stevens of his constitutional right to a fair trial.
Assignment of Error V: The trial court erred when it sentenced Mr. Stevens to an indefinite sentence under the unconstitutional Reagan Tokes Act.
Assignment of Error VI: Trial counsel rendered ineffective assistance by failing to request a waiver of court costs at sentencing.
First Assignment of Error
{15} In the first assignment of error, Stevens contends the trial court erred when it admitted the identifying statements of Robinson and Watkins in State‘s Exhibit 8, i.e., the body camera footage, as excited utterances. Stevens asserts that “the overriding question is whether the stress of the event continued until the time of their statements to the degree that their reflective faculties were overridden.” He claims that “[t]he full context of the surrounding situation shows that their
{16} “Generally, a trial court has broаd discretion with respect to the admission of evidence.” State v. Delong, 3d Dist. Marion No. 9-22-09, 2022-Ohio-4233, ¶ 6, citing State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62. “Accordingly, we will not disturb the trial court‘s evidentiary rulings absent an abuse of discretion that produces a material prejudice to the aggrieved party.” Id. An abuse of discretion is “an unreasonable, arbitrary, or unconscionable use of discretion, or * * * a view or action that no conscientious judge could honestly have taken.” State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23.
{17} However, “a defendant‘s failure to raise an issue at trial forfeits all but plain error on review.” State v. Drain, 170 Ohio St.3d 107, 2022-Ohio-3697, 209 N.E.3d 621, ¶ 51. To establish plain error, the defendant “must show that an error occurred, that the error was obvious, and that there is ‘a reasonable probability that the error resulted in prejudice,’ meaning that the error affected the outcome of the trial.” (Emphasis deleted.) State v. McAlpin, 169 Ohio St.3d 279, 2022-Ohio-1567, 204 N.E.3d 459, ¶ 66, quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. “Notice of plain error * * * is to be taken with the utmost caution, under exceрtional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{19} Stevens cites no legal authority in support of this position, and it is not well-taken. The fact that the trial court conducted its own hearsay analysis does not alter the fact that Stevens did not object at trial to the body camera footage on hearsay grounds or to the court‘s hearsay analysis. Because Stevens failed to raise the hearsay issue at trial, he has forfeited all but plain error review. Drain at ¶ 51. Stevens failed to develop a plain-error argument on appeal, and we will not fashion one for him. State v. Flack, 3d Dist. Union No. 14-22-24, 2023-Ohio-1705, ¶ 13. However, as we explain below, even if Stevens had argued plain error, his argument would fail because he has not demonstrated any error occurred.
{20} ” ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the triаl or hearing, offered in evidence to prove the truth of the matter asserted in the statement.”
{21} A four-part test is applied to determine whether a statement is admissible as an excited utterance; the requirements for admissibility are:
(a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his [or her] reflective faculties and thereby make his [or her] statements and declarations the unreflective and sincere expression of his [or her] actual impressions and beliefs, and thus rеnder his [or her] statement of declaration spontaneous and unreflective,
(b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his [or her] reflective faculties so that such domination continued to remain sufficient to make [the] statements and declarations the unreflective and sincere expression of his [or her] actual impressions and beliefs,
(c) that the statement or declaration related to such startling occurrence or the circumstances of such starling occurrence, and
(d) that the declarant had an opportunity to observe personally the matters asserted in [the] statement or declaration.
{22} “There is no per se amount of time after which a statement can no longer be considered to be an excited utterance.” State v. Taylor, 66 Ohio St.3d 295, 303, 612 N.E.2d 316 (1993). “The central requirements are that the statement must be made while the declarant is still under the stress of the event and the statement may not be a result of reflective thought.” (Emphasis sic.) Id. “Therefore the passage of time between the statement and the event is relevant but not dispositive * * *” Id. ” ‘[E]ach case must be decided on its own circumstances, since it is patently futile to attempt to formulate an inelastic rule delimiting the time limits within which an oral utterance must be made in order that it be termed a spontaneous exclamation.’ ” Id., quoting State v. Duncan, 53 Ohio St.2d 215, 219-220, 373 N.E.2d 1234 (1978). In addition,
admission of a declaration as an excited utterance is not precluded by questioning which: (1) is neither coercive nor leading, (2) facilitates the declarant‘s expression of what is already the nаtural focus of the declarant‘s thoughts, and (3) does not destroy the domination of the nervous excitement over the declarant‘s reflective faculties.
Jones at ¶ 170, quoting State v. Wallace, 37 Ohio St.3d 87, 524 N.E.2d 466 (1988), paragraph two of the syllabus.
{23} Stevens‘s contention that the identifying statements were the product of reflective thought and thus not excited utterances is not well-taken. The evidence indicates that 5 to 15 minutes elapsed between the assault and the arrival of the police and that Robinson and Watkins initially identified Stevens as the perpetrator about 90 seconds after the police arrived. The fact that the women made the initial identifications after Patrolman Stolly inquired about the whereabouts, clothing, and race of the perpetrator did not preclude admission of those identifications as excited utterances. Patrolman Stolly‘s questions were not coercive or misleading. His simple and straightforward questions served to facilitate the women‘s expression of what was already the natural focus of their thoughts and did not destroy the domination of their nervous excitement over their reflective faculties. Before Patrolman Stolly asked these questions, the women were not just focused on the fact that a hammer was stolen and that Dewitt had been assaulted; they were also focused on the perpetrator of those acts. Prior to the initial identifications, Robinson mentioned the name “Josh” and talked about “the man” who had stolen her hammer, and Watkins talked about the perpetrator hitting Dewitt in the head with a hammer and taking off. And on the footage, both women seem upset and agitated and give prompt responses to Patrolman Stolly‘s questions. Given these circumstances, we reject the contention that Patrolman Stolly‘s questions redirected the focus of the women and rendered their identifying statements the product of reflective thought.
Second Assignment of Error
{24} In the second assignment of error, Stevens contends that trial counsel rendered ineffective assistance by failing to object to Patrolman Stolly‘s recitation of Robinson‘s identifying hearsay statement. Stevens asserts that еven though trial counsel objected to the admission of the body camera footage, counsel failed to object when Patrolman Stolly testified about an identifying statement Robinson made in the footage. Therefore, he asserts that even if the footage had been excluded, “the jury still would have heard Ms. Robinson‘s unsworn statement without the benefit of cross-examination.” He claims that “[t]here is no reasonable trial strategy in moving to exclude the out-of-court statements from the video, but not doing so when they were presented through a testifying witness.” Thus, he asserts that we should find that trial counsel‘s failure to object to the testimony fell below an objective standard of reasonableness. He further asserts that the failure to object prejudiced him because the central disputed fact was the perpetrator‘s
Standard of Review
{25} “Upon direct appeal, appellate courts generally review claims of ineffective assistance of counsel on a de novo basis, simply because the issue originates at the appellate level; no trial court has ruled on the issue. Appellate courts review the trial record and are left to judge from the bare record whether the assistance was effective.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 53. “In order to prevail on an ineffective-assistance-of-counsel claim, a defendant must prove that counsel‘s performance was deficient and that the defendant was prejudiced by counsel‘s deficient performance.” State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 10, citing State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989), and Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant “has the burden of proof because in Ohio, a properly licensed attorney is presumed competent.” Gondor at ¶ 62. “In order to show deficient performance, the defendant must prove that counsel‘s performance fell below an objective level of reasonable representation. To show prejudice, the defendant must show a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different.” Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶ 95, citing Strickland at 687, and Bradley at 143. “A reasonable
Analysis
{26} Stevens has not demonstrated that counsel‘s performance was deficient. Stevens seems to assume we will sustain his first assignment and conclude that a hearsay objection to Patrolman Stolly‘s testimony had a reasonable probability of success for the same reasons Stevens argues that the trial court erred in admitting the identifying statements in the body camera footage. However, in our analysis of the first assignment of error, we concluded that Stevens failed to show that the trial court erred when it admitted the identifying statements in the body camera footage as excited utterances. Consequently, a hearsay objection to Patrolman Stolly‘s testimony based on the same arguments presented in the first assignment of error would have been futile. ” ‘[T]he failure to make a futile objection does not constitute deficient performance for an ineffective assistance of counsel claim.’ ” State v. Harrison, 2015-Ohio-1419, 31 N.E.3d 220, ¶ 89 (3d Dist.), quoting State v. Corder, 2012-Ohio-1995, 969 N.E.2d 787, ¶ 29 (4th Dist.). Accordingly, we conclude that Stevens failed in his burden to show that he received ineffective assistance of counsel and overrule the second assignment of error.
{¶27} In the third assignmеnt of error, Stevens contends that trial counsel rendered ineffective assistance by failing to object to evidence concerning whether he might have fled armed with a weapon. Stevens maintains that “[e]vidence that the perpetrator was armed with a weapon that was not used in the attack does not satisfy even the low threshold for relevancy.” He asserts that “whether the attacker might have been armed with an unrelated weapon after the incident is not probative of any element of felonious assault” and is not relevant to the identity of the attacker, which was a fact in dispute due to his testimony. He claims this evidence was “bare other-acts evidence that painted the attacker as a person with a propensity for violence.” Stevens claims there was “no reasonable strategic bаsis” for trial counsel to not object to “this irrelevant and inflammatory evidence.” Stevens also asserts that the failure to object prejudiced him because “the prosecution‘s case rested on the testimony of Mr. Dewitt and Mr. Joseph (and the hearsay statements) with no supporting forensic evidence or a confession,” and “the other acts bolstered the prosecution‘s case by casting Mr. Stevens ‘into the mold’ of a violent person.”
Standard of Review
{¶28} We set forth the standard of review for an ineffective-assistance-of-counsel claim in our discussion of the second assignment of error.
{¶29}
(1) the evidence must be relevant,
Evid.R. 401 , (2) the evidence cannot be presented to prove a person‘s character to show conduct in conformity therewith but must instead be presented for a legitimate other purpose,Evid.R. 404(B) , and (3) the probative value of the evidence cannot be substantially outweighed by the danger of unfair prejudice,Evid.R. 403 .
State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 72, citing State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20, reconsideration granted on other grounds, 133 Ohio St.3d 1512, 2012-Ohio-6209, 979 N.E.2d 1290.
Analysis
{¶30} Stevens has not shown that trial counsel rendered ineffective assistance by failing to object to evidence concerning whether Stevens “might have fled armed with a weapon.” Even if counsel had been deficient, Stevens has not demonstrated prejudice. Stevens appears to suggest that the state‘s proof that he
Fourth Assignment of Error
{¶31} In the fourth assignment of error, Stevens contends that multiple errors cumulatively deprived him of his constitutional right to a fair trial. “‘To find cumulative error, a court must first find multiple errors committed at trial and determine that there is a reasonable probability that the outcome below would have been different but for the combination of the harmless errors.‘” State v. Grant, 2023-Ohio-2720, ___ N.E.3d ___, ¶ 102 (3d Dist.), quoting In re J.M., 3d Dist. Putnam No. 12-11-06, 2012-Ohio-1467, ¶ 36. Because we have not found multiple errors were committed at trial, the cumulative-error doctrine does not apply. Thus, we overrule the fourth assignment of error.
{¶32} In the fifth assignment of error, Stevens contends that the trial court erred when it sentenced him to an indefinite sentence under the “unconstitutional” Reagan Tokes Law. Stevens asserts that the law violates the separation-of-powers doctrine, the right to due process, and the right to a jury trial. However, after Stevеns filed his appellate briefs, “the Supreme Court of Ohio addressed the constitutional validity of the Reagan Tokes Law and held that it does not intrude upon the separation-of-powers doctrine, does not implicate the offender‘s right to a jury trial, and does not violate the offender‘s due-process rights.” State v. Miller, 3d Dist. Seneca No. 13-23-03, 2023-Ohio-3935, ¶ 41, citing State v. Hacker, ___ Ohio St.3d ___, 2023-Ohio-2535, ___ N.E.3d ___, ¶ 25, 28, 40. Based upon the Supreme Court of Ohio‘s determination of these issues, we overrule the fifth assignment of error.
Sixth Assignment of Error
{¶33} In the sixth assignment of error, Stevens contends trial counsel rendered ineffective assistance by failing to request a waiver of court costs at sentencing. Stevens asserts that it was unreasonable for trial counsel to not request a waiver because the record shows that he “was homeless earlier in the year 2022,” that he was “indigent at the time of his trial,” and that even though “he was a state-certified mechanic, he was not using that certification, instead working for his brother as [a] ‘handyman/fix-it.‘” Stevens maintains that “this is not a case where counsel made a strategic decision to forgo a request for waiver of costs to focus
Standard of Review
{¶34} We set forth the standard of review for an ineffective-assistance-of-counsel claim in our discussion of the second assignment of error.
Legal Principles
{¶35} “By statute, the imposition of court costs on all convicted defendants is mandatory.” State v. Taylor, 161 Ohio St.3d 319, 2020-Ohio-3514, 163 N.E.3d 486, ¶ 6 (”Taylor“).
{¶36}
{¶37} With the adoption of
Analysis
{¶39} Stevens has not demonstrated deficient performance because he has not overcome the presumption that under the circumstances, counsel‘s failure to move for a waiver of court costs at sentencing might be considered sound trial strategy.
{¶40} Even if counsel‘s failure to request a waiver of court costs at sentencing was deficient performance, Stevens failed in his burden to demonstrate prejudice. The facts and circumstances presented by Stevens do not establish a reasonable probability that the trial court would have granted a request to waive
{¶41} We observe that in its appellee‘s brief, after expressing uncertainty regarding whether Stevens has shown prejudice, the state asserts that if we are “inclined to do so,” we “could look outside of [Stevens‘s] brief” and review certain documents, like the pre-sentence investigation report. The state asserts that if we “were to review all of these” documents, the state “concedes that it is possible” for us to find that there is a reasonable probability that the trial court would have granted a request for waiver of court costs had one been made. However, the state does not articulate what facts and circumstances in the specified documents would lead to
{¶42} For the foregoing reasons, we conclude that Stevens has not shown trial counsel rendered ineffective assistance by failing to request a waiver of court costs at sentencing and overrule the sixth assignment of error.
{¶43} Having overruled the assignments of error, we affirm the trial court‘s judgment.
Judgment Affirmed.
MILLER and ZIMMERMAN, J.J., concur.
**Judge Michael D. Hess of the Fourth District Court of Appeals, sitting by Assignment of the Chief Justice of the Supreme Court of Ohio.