State v. Rhoades , 2020 Ohio 2688 ( 2020 )


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  • [Cite as State v. Rhoades, 2020-Ohio-2688.]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    State of Ohio,                                      :
    Plaintiff-Appellee,                :
    No. 19AP-93
    v.                                                  :           (M.C. No. 2018CRB-13523)
    Alonzo Rhoades,                                     :           (REGULAR CALENDAR)
    Defendant-Appellant.               :
    D E C I S I O N
    Rendered on April 28, 2020
    On brief: Zachary M. Klein, City Attorney, Bill R. Hedrick,
    and Orly Ahroni, for appellee. Argued: Orly Ahroni.
    On brief: Alonzo Rhoades, pro se. Argued: Alonzo
    Rhoades.
    APPEAL from the Franklin County Municipal Court
    DORRIAN, J.
    {¶ 1} Defendant-appellant, Alonzo Rhoades, appeals pro se from the judgment of
    conviction and sentence entered by the Franklin County Municipal Court pursuant to a jury
    verdict finding him guilty of violating a civil protection order. For the following reasons, we
    affirm.
    I. Facts and Procedural History
    {¶ 2} The case giving rise to this appeal involves allegations that Rhoades violated
    a civil protection order requiring him to stay away from Jaide Reinhard ("Jaide"). Rhoades
    and Jaide were previously in a relationship and have a child together. In August 2017, Jaide
    petitioned for a domestic violence civil protection order from the Franklin County Court of
    Common Pleas, Division of Domestic Relations, Juvenile Branch. A protection order was
    No. 19AP-93                                                                              2
    issued by consent on September 26, 2017 ("Protection Order"), providing, among other
    conditions, that Rhoades could not be within 500 feet of Jaide or any place he knew or
    should know she was likely to be. The Protection Order further provided that if Rhoades
    accidentally came within 500 feet of Jaide in any public or private place, including
    roadways, he was required to depart immediately. The Protection Order was effective for
    four years, until September 26, 2021. A copy of the Protection Order was served on
    Rhoades on October 10, 2017.
    {¶ 3} The case on appeal began when a complaint was filed in the municipal court
    alleging that on July 2, 2018 Rhoades recklessly violated the Protection Order, a first-
    degree misdemeanor in violation of R.C. 2919.27(A)(1), by being within 500 feet of Jaide.
    The case was designated as Municipal Court criminal case No. 2018CRB-13523 ("case No.
    13523"). On October 1, 2018, another complaint was filed in the municipal court alleging
    that on September 30, 2018, Rhoades again violated the Protection Order, a first-degree
    misdemeanor in violation of R.C. 2919.27(A)(1). That case was designated as Municipal
    Court criminal case No. 2018CRB-20334 ("case No. 20334"). The state, plaintiff-appellee,
    moved to consolidate case No. 13523 with case No. 20334 for trial. A jury trial was
    conducted on the consolidated cases in February 2019.
    {¶ 4} Jaide testified at trial that she and her mother, Jennifer Reinhard
    ("Jennifer"), had lived in the same house on Joos Avenue since 2011. On July 2, 2018, Jaide
    and Jennifer left their home in separate cars so Jaide could drop off her car for repairs.
    After leaving Jaide's car to be serviced, they returned home with Jennifer driving. Upon
    approaching their home, Jaide saw Rhoades' car on Joos Avenue at a stop sign where Joos
    Avenue intersected a cross street. Jaide testified she recognized Rhoades' car because it
    was the same one he drove when they were in a relationship. Rhoades was in the driver's
    seat of the car. Jaide testified she made eye contact with Rhoades for a few seconds and
    pointed him out to Jennifer. When Rhoades drove away from the intersection, Jennifer
    turned the car around and drove after him while Jaide tried to get a photograph of Rhoades'
    car. Jaide testified the two cars passed within 10 to 15 feet of each other before Jennifer
    turned around to pursue Rhoades. Jaide was unable to take a photograph and they stopped
    pursuing Rhoades after he exited the neighborhood. Jaide then called police to report the
    incident. A recording of Jaide's call to police was played for the jury.
    No. 19AP-93                                                                                 3
    {¶ 5} Jaide described Joos Avenue as a short side street in a small, quiet, residential
    neighborhood. She testified it would not be necessary to drive on Joos Avenue to reach any
    particular destination. The state presented an aerial photograph of the area around Jaide's
    home, demonstrating it was a residential neighborhood with no businesses located on that
    block of Joos Avenue. Jaide estimated the stop sign where she spotted Rhoades was about
    300 feet from her residence.
    {¶ 6} Jennifer also testified at trial, stating she was driving home with Jaide on
    July 2, 2018 after dropping off Jaide's car to be serviced, when she saw Rhoades' car
    stopped at a stop sign at the end of Joos Avenue. After passing Rhoades, Jennifer pulled
    into the first driveway on their street to turn around. She then pursued Rhoades' car until
    it exited the neighborhood.
    {¶ 7} Columbus Division of Police Officer Matthew Carroll testified he and his
    partner, Officer Anthony Nowalk, were dispatched to the Reinhards' residence on July 2,
    2018. They spoke with Jaide about the incident and Officer Carroll subsequently prepared
    and filed a complaint against Rhoades. Officer Carroll testified he did not speak with
    anyone other than Jaide about the incident because he did not find it necessary. Officer
    Nowalk testified he reviewed a copy of the Protection Order while Officer Carroll
    interviewed Jaide. Officer Nowalk stated he measured the distance between the stop signs
    at either end of the Reinhards' block on Joos Avenue using a traffic-detection laser as 432
    feet. He testified that was approximately twice the distance between the Reinhards' house
    and the stop sign where Jaide saw Rhoades.
    {¶ 8} With respect to case No. 20334, Jaide testified she called police on
    September 30, 2018 because the neighbors who lived directly across the street told her they
    had seen a man and woman banging on the doors and looking in the windows of the
    Reinhards' house earlier in the day, while the Reinhards were away. A recording of Jaide's
    call to police on September 30, 2018 was played for the jury.
    {¶ 9} Mike Franceschelli testified he lives directly across the street from the
    Reinhards and was friends with them. He testified that on September 30, 2018, while he
    was in the front yard of his home, he saw Rhoades pull up in front of the Reinhards' house
    in a car with a woman in the passenger seat. He recognized Rhoades because he had
    previously seen him together with Jaide. Rhoades exited the car and pounded on the
    No. 19AP-93                                                                                 4
    Reinhards' front door, then went to the back of the house and pounded on the back door.
    He testified he told Jennifer what had occurred after the Reinhards returned home later
    that day and subsequently spoke to police about what he saw. Nancy Franceschelli similarly
    testified that she lives directly across the street from the Reinhards. On September 30,
    2018, while in her living room, she saw a car with a man and woman pull up in front of the
    Reinhards' house. The man exited the car, went to the front door of the Reinhards' house,
    and started beating on the door. The man then walked around the house and went through
    the gate into the back yard. She did not recognize the man who was banging on the door.
    She talked to Jennifer about the incident and later spoke with a police officer about it.
    {¶ 10} Officer Nowalk testified he was working without a partner on September 30,
    2018 when he was dispatched to the Reinhards' residence. He spoke with Jaide and then
    interviewed the Franceschellis about what they observed. Based on these interviews,
    Officer Nowalk prepared and filed a complaint against Rhoades.
    {¶ 11} Following the state's presentation, Rhoades' trial counsel moved for acquittal
    under Crim.R. 29, arguing the evidence was insufficient to sustain convictions. The trial
    court denied the motion for acquittal. Rhoades' trial counsel indicated to the court that
    Rhoades intended to testify in his own defense. Before the defense presentation began, the
    prosecutor moved to suppress a grocery store receipt Rhoades had provided in discovery,
    arguing it was inadmissible hearsay. Rhoades' trial counsel argued the receipt was
    admissible as a business record. When the trial court indicated it was inclined to grant the
    motion to suppress, Rhoades' trial counsel moved for a continuance to try to secure a
    witness from the grocery store to authenticate the receipt. The following day, Rhoades' trial
    counsel indicated Rhoades decided not to testify in his own defense, and he wished to
    proceed to closing arguments without presenting any additional evidence. The prosecutor
    and Rhoades' trial counsel made closing arguments and the case was submitted to the jury.
    {¶ 12} The jury was unable to reach a decision in case No. 20334, relating to the
    September 30, 2018 incident, and the trial court declared a mistrial in that case. The court
    then dismissed the charge in case No. 20334 at the prosecutor's request. In case No. 13523,
    the jury found Rhoades guilty of violating the Protection Order. The trial court sentenced
    Rhoades to 180 days of incarceration, with 39 days of jail-time credit. The court suspended
    the sentence and placed Rhoades on probation for two years.
    No. 19AP-93                                                                             5
    II. Assignments of Error
    {¶ 13} Rhoades appeals and assigns the following nine assignments of error for our
    review:
    [I.] The trial court erred and abused its discretion by not
    separating each case as its own separate incident.
    [II.] The trial court erred and abused its discretion by not
    recognizing the biases of the judge due to history regarding
    catch court and history with simuler case.
    [III.] The prosecution failed to disclose the full text of the
    consent agreement and its rules and limitations.
    [IV.] the honorable judge did see that after both key witness
    rule 29 was clear and applicable or that the wemon in
    testomony where biesed and provided no cretable evidnce to
    prove there case
    [V.] the responding officers did not meet the standered
    operating procieder gather evidence or hear from more then
    one party who by her own abmition carried strong biase
    [VI.] evidence was held and hidden till the minute of it being
    shown in court not allowing the othwer party the opertunity
    to see before the jury
    [VII.] Defentents counsal advised not to testifie do to evidence
    not yet shown and lack of berdon of proof
    [VIII.] the judge grandented a last ditch efferot to block the
    voice of the defendent by trying to suprese evidence with goes
    agents the judges ethics provided on his clerk of court profile
    [IX.] the court never established why the defince could have
    been in the naighbor hood or that the protected party lived
    there
    (Sic passim.)
    III. Discussion
    A. Joinder of offenses for trial
    {¶ 14} Rhoades argues in his first assignment of error the trial court abused its
    discretion by joining case Nos. 13523 and 20334 for trial. Rhoades argues there was a risk
    No. 19AP-93                                                                                   6
    of jury confusion arising from the testimony and evidence, and a risk that if the jury found
    him guilty of one offense they would assume he was guilty of the other.
    {¶ 15} Under Crim.R. 13, a court may order multiple complaints to be tried together
    if the offenses or defendants could have been joined in a single complaint. Crim.R. 8(A)
    provides that multiple offenses may be charged in the same complaint if the offenses "are
    of the same or similar character, or are based on the same act or transaction, or are based
    on two or more acts or transactions connected together or constituting parts of a common
    scheme or plan, or are part of a course of criminal conduct." Generally, the law favors the
    joinder of multiple offenses into a single trial. State v. Brinkley, 
    105 Ohio St. 3d 231
    , 2005-
    Ohio-1507, ¶ 28.
    {¶ 16} If similar offenses are properly joined, a defendant may move to sever the
    charges, pursuant to Crim.R. 14, which provides that if a defendant is prejudiced by a
    joinder of complaints for trial, the court shall order a separate trial or provide such other
    relief as justice requires. To demonstrate a trial court erred by denying a motion to sever, a
    defendant "must affirmatively demonstrate (1) that his rights were prejudiced, (2) that at
    the time of the motion to sever he provided the trial court with sufficient information so
    that it could weigh the considerations favoring joinder against the defendant's right to a fair
    trial, and (3) that given the information provided to the court, it abused its discretion in
    refusing to separate the charges for trial." State v. Schaim, 
    65 Ohio St. 3d 51
    , 59 (1992).
    {¶ 17} A trial court's decision on joinder is subject to review for abuse of discretion.
    State v. Morris, 10th Dist. No. 18AP-208, 2018-Ohio-5252, ¶ 34. In the present case,
    Rhoades did not oppose the state's motion for joinder prior to trial and did not move to
    sever the complaints for trial under Crim.R. 14. Therefore, he has forfeited all but plain
    error.
    Id. Plain error
    exists when an error is plain or obvious and affects a substantial right.
    State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 13. The error must constitute
    an obvious defect in the legal proceedings and there must be a reasonable probability that
    the error affected the outcome. State v. Barrie, 10th Dist. No. 15AP-848, 2016-Ohio-5640,
    ¶ 32. Appellate courts find plain error with the utmost caution, under exceptional
    circumstances to prevent a manifest miscarriage of justice.
    Id. {¶ 18}
    A trial court may sever properly joined offenses where the defendant
    affirmatively demonstrates prejudice resulting from a joint trial. Morris at ¶ 36. The state
    No. 19AP-93                                                                                    7
    can refute a claim of prejudice by demonstrating that: (1) the evidence of one offense could
    be introduced under Evid.R. 404(B) at the trial of the other offense, or (2) the evidence of
    the offenses joined at trial is simple and direct. The state need only satisfy one of these tests
    to negate a claim of prejudice.
    Id. at ¶
    37. See also State v. Lott, 
    51 Ohio St. 3d 160
    , 163
    (1990) ("[W]hen simple and direct evidence exists, an accused is not prejudiced by joinder
    regardless of the nonadmissibility of evidence of these crimes as 'other acts' under Evid.R.
    404(B).").
    {¶ 19} "Evidence is 'simple and direct' if the jury is capable of segregating the proof
    required for each offense." State v. Wilson, 10th Dist. No. 10AP-251, 2011-Ohio-430, ¶ 23.
    The offenses in the joined cases were the same, but they were committed on different days
    and involved different conduct. The evidence for case No. 13523 was provided by Jaide,
    Jennifer, and the responding police officers, based on their testimony about what occurred
    on July 2, 2018. The evidence for case No. 20334 was provided by the Franceschellis,
    testifying what they observed on September 30, 2018. Although Jaide also testified about
    the September 30, 2018 incident, her testimony was based on the Franceschellis' accounts
    and mirrored their testimony. Thus, the evidence as to each case was simple and direct.
    See State v. McBride, 10th Dist. No. 10AP-585, 2011-Ohio-1490, ¶ 12 ("Here, the evidence
    of the offenses is simple and direct and is not confusing or difficult to separate. The offenses
    in each indictment were analytically and logically separate: burglaries and thefts which
    occurred in different buildings on different days. Although the offenses involved similar
    conduct, the offenses were separate and not so complex that the jury would have difficulty
    separating the proof required for each offense."); see also State v. Wigle, 9th Dist. No.
    25593, 2011-Ohio-6239, ¶ 24 (finding evidence of each charge was simple and direct for
    joined offenses of violating a protection order, resisting arrest, and disorderly conduct
    where defendant's neighbor testified about events giving rise to charge of violating
    protection order and arresting officers testified about events leading to charges of resisting
    arrest and disorderly conduct). Moreover, although the jury found Rhoades guilty in case
    No. 13523, they were unable to reach a verdict in case No. 20334. This demonstrates the
    jury was able to distinguish between the evidence as to each offense. See Wigle at ¶ 24
    ("[T]he fact that the jury acquitted Wigle of the protection order violation, and convicted
    him of the remaining charges demonstrates that the jury was capable of separating the
    No. 19AP-93                                                                                      8
    issues."). Under these circumstances, we conclude the trial court did not plainly err by
    joining the cases for trial.
    {¶ 20} Accordingly, we overrule Rhoades' first assignment of error.
    B. Judicial bias
    {¶ 21} In his second assignment of error, Rhoades asserts the trial judge was biased
    against him. Rhoades claims the trial judge is generally biased in favor of women, citing
    his participation in a specialized human trafficking docket and statements favorable to
    women allegedly made by the trial judge in speeches, articles, and other trials. Rhoades
    further argues the trial judge's bias was demonstrated by the revocation of a personal
    recognizance bond before trial.
    {¶ 22} If a municipal court judge is alleged to have a bias or prejudice for or against
    any party to a proceeding pending before the judge, or be otherwise disqualified to preside
    over the proceeding, any party to the proceeding may file an affidavit of disqualification
    with the clerk of the Ohio Supreme Court. R.C. 2703.031. "R.C. 2703.031 provides the
    exclusive means by which a litigant may claim that a municipal court judge is unduly
    interested, biased, or prejudiced." Columbus Checkcashers, Inc. v. Guttermaster, Inc.,
    10th Dist. No. 13AP-106, 2013-Ohio-5543, ¶ 33. See also State v. Varouh, 9th Dist. No.
    18CA011415, 2020-Ohio-528, ¶ 27 ("[R.C. 2701.031] is the exclusive means by which a
    litigant may assert that a municipal court judge is biased or prejudiced."). The clerk of the
    municipal court is notified when an affidavit of disqualification of a municipal court judge
    is filed and must enter a notice on the docket of the proceeding. R.C. 2701.03(C)(1)(b) and
    (c). There is no indication on the docket of either municipal court case that Rhoades filed
    an affidavit of disqualification of the municipal court judge with the clerk of the Supreme
    Court. Therefore, Rhoades failed to invoke the jurisdiction of the proper court to review his
    claim of judicial bias. State v. Hussein, 10th Dist. No. 15AP-1093, 2017-Ohio-5519, ¶ 9. See
    also State v. Castile, 10th Dist. No. 13AP-10, 2014-Ohio-1918, ¶ 13 ("Because appellant
    failed to file an affidavit of disqualification against the trial judge, he forfeited his complaint
    [of judicial bias] on appeal.").
    {¶ 23} Accordingly, we overrule Rhoades' second assignment of error.
    No. 19AP-93                                                                                    9
    C. Sufficiency and weight of the evidence
    {¶ 24} In his third, fourth, fifth, and ninth assignments of error, Rhoades appears to
    challenge the sufficiency of the evidence supporting his conviction and to argue that the
    conviction was against the manifest weight of the evidence. We will consider these
    assignments of error together.
    {¶ 25} "Sufficiency of the evidence is a legal standard that tests whether the evidence
    introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th Dist. No.
    08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 
    78 Ohio St. 3d 380
    , 386
    (1997). In reviewing a challenge to the sufficiency of the evidence, an appellate court must
    determine "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 crime proven beyond
    a reasonable doubt." State v. Jenks, 
    61 Ohio St. 3d 259
    (1991), paragraph two of the
    syllabus. Where the evidence, "if believed, would convince the average mind of the
    defendant's guilt beyond a reasonable doubt," it is sufficient to sustain a conviction.
    Id. "The testimony
    of a single witness, if believed by the finder of fact, is sufficient to support a
    criminal conviction." State v. Booker, 10th Dist. No. 15AP-42, 2015-Ohio-5118, ¶ 18.
    Because a Crim.R. 29 motion questions the sufficiency of the evidence, we apply the same
    standard of review on appeal of a denial of a Crim.R. 29 motion as in a challenge to the
    sufficiency of the evidence. State v. Kearns, 10th Dist. No. 15AP-244, 2016-Ohio-5941,
    ¶ 44.
    {¶ 26} Rhoades was charged with violating R.C. 2919.27(A)(1), which prohibits
    recklessly granting a protection order or consent agreement issued under R.C. 2919.26 or
    3113.31. The latter statute provides for issuance of a domestic violence civil protection order
    or consent agreement. "A person acts recklessly when, with heedless indifference to the
    consequences, the person disregards a substantial and unjustifiable risk that the person's
    conduct is likely to cause a certain result or is likely to be of a certain nature." R.C.
    2901.22(C).
    {¶ 27} Jaide testified she had a civil protection order against Rhodes. A copy of the
    Protection Order was introduced into evidence, establishing it was a domestic violence civil
    protection order issued by consent of the parties pursuant to R.C. 3113.31. The Protection
    Order was effective from September 26, 2017 through September 26, 2021, and prohibited
    No. 19AP-93                                                                                10
    Rhoades from certain conduct with respect to Jaide, including being within 500 feet of
    where she was or any place she was likely to be. The order to serve the Protection Order
    was entered into evidence, showing a copy of the Protection Order was served on Rhoades
    on October 10, 2017. Jaide testified she has lived at the same address on Joos Avenue since
    2011. That address was also shown as Jaide's address on the Protection Order. Jaide and
    Jennifer both testified that on July 2, 2018, they saw Rhoades in the driver's seat of his car
    at a stop sign at the end of their block on Joos Avenue. Jaide testified the stop sign where
    she saw Rhoades was located 300 feet or less from her house. Officer Nowalk testified he
    measured the distance between the stop signs at either end of the block where Jaide's
    residence was located on Joos Avenue as 432 feet. He testified that was roughly twice the
    distance from Jaide's residence to the stop sign. Jaide and Jennifer also testified their
    vehicle passed Rhoades' car on the road, with Jaide estimating the distance between the
    two vehicles when they passed as 10 to 15 feet.
    {¶ 28} Viewing the evidence in the light most favorable to the state, a rational trier
    of fact could have found beyond a reasonable doubt that Rhodes was guilty of violating R.C.
    2919.27(A)(1) by being at the stop sign at the end of Joos Avenue on the block where Jaide's
    residence was located, because he was aware of the Protection Order and disregarded a
    substantial and unjustifiable risk that being in that location would place him within 500
    feet of Jaide or a place she was likely to be while the Protection Order was in effect and
    prohibited such conduct. See, e.g., State v. Kaseda, 11th Dist. No. 2012-L-002, 2012-Ohio-
    4652, ¶ 11-12 (finding evidence sufficient to support conviction for violating R.C.
    2919.27(A)(1) where the state presented evidence that a protection order prohibiting
    defendant from coming within 500 feet of the protected person was in effect at time of
    arrest, defendant was apprehended within 500 feet of the protected person's residence, and
    there was testimony that defendant was aware of the existence of the protection order);
    State v. Mohamed, 10th Dist. No. 05AP-29, 2005-Ohio-4928, ¶ 12 (finding evidence
    sufficient to support conviction for violating R.C. 2919.27(A)(1) where protection order was
    in effect prohibiting defendant from initiating or having contact with the protected person,
    defendant knew of the protection order, and defendant called the protected person's place
    of work and asked to speak with her). Thus, the evidence presented at trial was sufficient
    to sustain the jury's verdict.
    No. 19AP-93                                                                                 11
    {¶ 29} "While sufficiency of the evidence is a test of adequacy regarding whether the
    evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest
    weight of the evidence standard addresses the evidence's effect of inducing belief." Cassell
    at ¶ 38, citing State v. Wilson, 
    113 Ohio St. 3d 382
    , 2007-Ohio-2202, ¶ 25. When evaluating
    a challenge to a verdict as being against the manifest weight of the evidence, "an appellate
    court may not merely substitute its view for that of the trier of fact, but must review the
    entire record, weigh the evidence and all reasonable inferences, consider the credibility of
    witnesses and determine whether in resolving conflicts in the evidence, the trier of fact
    clearly lost its way and created such a manifest miscarriage of justice that the conviction
    must be reversed and a new trial ordered." State v. McCrary, 10th Dist. No. 10AP-881,
    2011-Ohio-3161, ¶ 12, citing Thompkins at 387. In conducting our review of the evidence,
    "we are guided by the presumption that the jury, or the trial court in a bench trial, 'is best
    able to view the witnesses and observe their demeanor, gestures and voice inflections, and
    use these observations in weighing the credibility of the proffered testimony.' " State v.
    Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. v.
    Cleveland, 
    10 Ohio St. 3d 77
    , 80 (1984). An appellate court should reserve reversal of a
    conviction as being against the manifest weight of the evidence for only the " 'exceptional
    case in which the evidence weighs heavily against the conviction.' " Thompkins at 387,
    quoting State v. Martin, 
    20 Ohio App. 3d 172
    , 175 (1st Dist.1983).
    {¶ 30} Rhoades alleges the testimony from Jaide and Jennifer was clearly
    contradictory; however, he fails to cite any specific contradictions or inconsistencies. Even
    if there were inconsistencies, a defendant "is not entitled to a reversal on manifest weight
    grounds merely because inconsistent evidence was presented at trial." State v. Chandler,
    10th Dist. No. 05AP-415, 2006-Ohio-2070, ¶ 9. "[T]he jury may take note of the
    inconsistencies and resolve them accordingly, 'believ[ing] all, part, or none of a witness's
    testimony.' " State v. Taylor, 10th Dist. No. 17AP-103, 2017-Ohio-8327, ¶ 37, quoting State
    v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21. Rhoades also attacks Officer
    Nowalk's credibility, noting he did not interview Jennifer about the July 2, 2018 incident,
    and alleging that laser scanning equipment is not part of the standard department issued
    traffic equipment. Officer Nowalk admitted at trial that he did not interview Jennifer on
    July 2, 2018, explaining he did not realize at the time that she had also witnessed the
    No. 19AP-93                                                                                12
    incident. To the extent Rhoades suggests this reduces the credibility of Officer Nowalk's
    investigation or his testimony, the jury was aware of this issue and able to consider it in
    weighing Officer Nowalk's credibility. With respect to the measurements, Officer Nowalk
    testified he measured the distance between the stop signs using his department issued laser
    traffic detector, which could be used to measure distance. Rhoades does not cite anything
    in the record to contradict Officer Nowalk's testimony about the laser measuring device.
    {¶ 31} Rhoades also argues there was a grocery store receipt and other materials
    establishing he was not on Joos Avenue on July 2, 2018 at the time Jaide and Jennifer
    claimed to see him. As discussed below, the grocery store receipt was disclosed in pretrial
    discovery but was not admitted into evidence. Likewise, none of the other materials
    Rhoades refers to were admitted into evidence at trial or otherwise made part of the record.
    Finally, Rhoades argues there was no evidence he attempted to talk to or otherwise make
    contact with Jaide. However, as explained above, the Protection Order prohibited Rhoades
    from being within 500 feet of Jaide or a place where she was likely to be. Therefore, it was
    not necessary for the state to establish Rhoades made any attempt to speak with or
    otherwise contact Jaide to prove a violation of the Protection Order.
    {¶ 32} Jaide and Jennifer both testified they saw Rhoades in his car at a stop sign at
    the end of the block of Joos Avenue where their home was located. They both testified they
    pursued Rhoades' car as it exited their neighborhood in an attempt to get a photograph, but
    were unable to take a photograph. Both Jaide and Officer Nowalk testified that the stop sign
    where Jaide and Jennifer saw Rhoades was less than 500 feet from Jaide's home. There
    was documentary evidence establishing the Protection Order prohibited Rhoades from
    being within 500 feet of Jaide or any place she was likely to be, that the Protection Order
    was in effect on July 2, 2018, and Rhoades was aware of the Protection Order. Based on
    our review of the evidence, we cannot conclude the jury clearly lost its way in finding
    Rhoades guilty of violating R.C. 2919.27(A)(1).
    {¶ 33} Because we conclude the conviction was supported by sufficient evidence and
    was not against the manifest weight of the evidence, we overrule Rhoades's third, fourth,
    fifth, and ninth assignments of error.
    No. 19AP-93                                                                                  13
    D. Suppression of evidence
    {¶ 34} In his sixth, seventh, and eighth assignments of error, Rhoades presents
    arguments relating to the suppression of evidence he intended to introduce at trial.
    Rhoades argues the trial court erred by suppressing a grocery store receipt that he claims
    would have established he was not on Joos Avenue on July 2, 2018 at the time Jaide and
    Jennifer claimed to have seen him.
    {¶ 35} Appellate review of a motion to suppress presents a mixed question of law
    and fact. State v. Castagnola, 
    145 Ohio St. 3d 1
    , 2015-Ohio-1565, ¶ 32, citing State v.
    Burnside, 
    100 Ohio St. 3d 152
    , 2003-Ohio-5372, ¶ 8. A court of appeals must accept the
    trial court's findings of fact if they are supported by competent, credible evidence. Burnside
    at ¶ 8.     "Accepting these facts as true, the appellate court must then independently
    determine, without deference to the conclusion of the trial court, whether the facts satisfy
    the applicable legal standard."
    Id. {¶ 36}
    After the close of the state's presentation, the prosecutor moved to suppress
    the grocery store receipt, which had been provided in pretrial discovery. The prosecutor
    argued the receipt was hearsay and did not qualify for any of the exceptions to the hearsay
    rule under the rules of evidence. Specifically, the prosecutor asserted the receipt was not
    admissible under the business records exception to the hearsay rule because, based on the
    pretrial witness disclosures, Rhoades did not plan to present a representative of the grocery
    store or other qualified witness to testify about the receipt. The prosecutor argued that
    because it was possible to falsify or forge a receipt, it was necessary for Rhoades to present
    a qualified witness to authenticate the grocery store receipt. Rhoades' trial counsel argued
    the grocery store receipt was admissible as a business record and that Rhoades would be
    able to testify to the authenticity of the receipt and the circumstances under which he
    received it. He further asserted Rhoades would be able to present evidence of having a
    credit card that matched the payment information on the grocery store receipt. When the
    trial court indicated it was likely to grant the motion to suppress, Rhoades' trial counsel
    requested a continuance to pursue securing testimony from a representative of the grocery
    store. The trial court granted a continuance until the following day. Ultimately, Rhoades
    elected not to put on any evidence or testify in his own defense. Thus, although the trial
    court indicated it was inclined to grant the motion to suppress, it did not issue a final ruling
    No. 19AP-93                                                                                14
    on the motion. Further, because Rhoades elected not to put on any evidence, the grocery
    store receipt was not proffered for admission as evidence. Notwithstanding the lack of a
    final ruling, because the trial court indicated it was inclined to grant the state's motion to
    suppress, we will consider whether the grocery store receipt would have been admissible.
    {¶ 37} Hearsay is defined as "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). Under the rules of evidence, a statement includes a written
    assertion. Evid.R. 801(A). Generally, hearsay evidence is not admissible, except as
    otherwise permitted under a constitutional provision, statute, or rule. Evid.R. 802. Evid.R.
    803(6) provides an exception to the prohibition on hearsay evidence for records of
    "regularly conducted business activity * * * if it was the regular practice of that business
    activity to make the * * * record * * * as shown by the testimony of the custodian or other
    qualified witness."
    {¶ 38} Rhoades suggests the grocery store receipt would have established his
    whereabouts as somewhere other than Joos Avenue on July 2, 2018, when Jaide and
    Jennifer claimed to have seen him. Thus, if offered into evidence, the receipt would have
    been hearsay because it was an out-of-court statement offered for the truth of the matter
    asserted—i.e., the date, time, and location information contained in the receipt. As such, it
    would have been inadmissible unless Rhoades could establish that it fell within an
    exception to the hearsay rule.
    {¶ 39} A store receipt may be admissible as a business record under Evid.R. 803(6).
    See State v. Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 36 ("Had the receipt
    been offered into evidence, it may have qualified for the business records exception to
    hearsay contained in Evid.R. 803(6)."). To qualify for admission under Evid.R. 803(6), a
    business record must satisfy four essential elements: (1) it must be one regularly recorded
    in a regularly conducted activity, (2) it must have been entered by a person with knowledge
    of the act, (3) it must have been recorded at or near the time of the transaction, and (4) a
    foundation must be laid by the custodian of records or some other qualified witness. State
    v. Hood, 
    135 Ohio St. 3d 137
    , 2012-Ohio-6208, ¶ 39. A qualified witness is someone with
    enough familiarity with the record-keeping system of the business to explain how the
    record came into existence in the ordinary course of business.
    Id. Rhoades has
    failed to
    No. 19AP-93                                                                               15
    establish that he was the custodian of records for the grocery store in question or otherwise
    had sufficient familiarity with the grocery store's record-keeping system to explain how the
    receipt was created in the ordinary course of business, or that he would have been able to
    produce testimony from the custodian of records or other qualified witness. See, e.g., State
    v. Shaheen, 3d Dist. No. 5-97-03 (July 29, 1997) (holding that loss-prevention manager of
    retail store was a qualified witness for purpose of admission of inventory history and refund
    receipt from that store); State v. Early, 2d Dist. No. CA 10827 (Dec. 30, 1988) (holding
    retail store receipt was properly admitted as a business record where general manager and
    apparel manager for the store testified regarding process for creation of receipts from the
    store). Thus, while the grocery store receipt was potentially admissible under the business
    records exception to the hearsay rule, Rhoades fails to demonstrate he could present a
    custodian or other qualified witness to authenticate the receipt.
    {¶ 40} Accordingly, we overrule Rhoades' sixth, seventh, and eighth assignments of
    error.
    E. Ineffective assistance of counsel
    {¶ 41} In addition to referring to the exclusion of the grocery store receipt in his
    seventh assignment of error, Rhoades also appears to suggest he received ineffective
    assistance of counsel. Rhoades indicates his trial counsel advised him not to testify in his
    own defense, and asserts this limited his ability to present certain evidence he argues would
    tend to establish he was not present on Joos Avenue on July 2, 2018.
    {¶ 42} We apply a two-part test to evaluate claims of ineffective assistance of
    counsel. Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984); State v. Bradley, 42 Ohio
    St.3d 136, 141-42 (1989). "First, the defendant must show that counsel's performance was
    deficient. * * * Second, the defendant must show that the deficient performance prejudiced
    the defense." Strickland at 687. To establish prejudice, a defendant "must show that there
    is a reasonable probability that, but for counsel's unprofessional errors, the result of the
    proceeding would have been different."
    Id. at 694.
    "A reasonable probability is a probability
    sufficient to undermine confidence in the outcome."
    Id. {¶ 43}
    Generally, a licensed attorney in Ohio is presumed to be competent and trial
    counsel is entitled to a strong presumption that all decisions fall within the wide range of
    reasonable professional assistance. State v. Jones, 10th Dist. No. 16AP-803, 2017-Ohio-
    No. 19AP-93                                                                                  16
    5529, ¶ 11. Appellate courts normally refrain from second-guessing strategic decisions
    made at trial. State v. Jackson, 
    107 Ohio St. 3d 300
    , 2006-Ohio-1, ¶ 138. The decision
    whether to allow a defendant to testify in his own defense usually constitutes a tactical
    decision. State v. Hughes, 10th Dist. No. 14AP-360, 2015-Ohio-151, ¶ 69.
    {¶ 44} To the extent Rhoades suggests his trial counsel was ineffective by advising
    him not to testify, he relies on matters outside the record. The only evidence in the record
    relating to Rhoades' ultimate decision not to testify indicates his trial counsel discussed the
    implications of testifying but does not reveal any specific advice his trial counsel gave. After
    the close of the state's presentation, Rhoades' trial counsel indicated Rhoades was inclined
    to testify:
    The Court: And I believe Mr. Rhoades would like to testify.
    [Rhoades' trial counsel]: Your Honor, I have discussed that
    with Mr. Rhoades. At this point, I have talked to him about all
    of the potential ramifications of doing so. It is my belief that it
    is his intention to testify in his own defense.
    (Tr. Vol. II at 177.) The prosecutor then moved to suppress the grocery store receipt and
    Rhoades' trial counsel obtained a continuance. When trial resumed the following day,
    Rhoades' trial counsel informed the court Rhoades had chosen not to testify:
    [Rhoades' trial counsel]: Your Honor, yesterday at the close of
    -- at the close of the State's case, we had sort of contemplated
    timing and the decision by Mr. Rhoades to testify at that point.
    I have had several discussions with Mr. Rhoades, as well as his
    family, and it's my understanding that at this point that he has
    decided not to testify, and we would then proceed directly to
    closing and charge of the jury. I did want to put that on the
    record, since yesterday we had put out that it was my belief that
    he was going to testify. So I just want to make the record clear.
    It was his decision today not to testify.
    (Tr. Vol. II at 191). Although the transcript clearly indicates Rhoades and his trial counsel
    discussed whether Rhoades should testify, the record does not contain any information
    about advice Rhoades' trial counsel may have given regarding that decision. Because a
    claim of ineffective assistance of counsel arising from any advice Rhoades' trial counsel may
    have given about whether to testify relies on matters outside the record, such a claim would
    not be appropriate on direct appeal. See State v. Davis, 10th Dist. No. 05AP-193, 2006-
    No. 19AP-93                                                                                17
    Ohio-5039, ¶ 19 ("When allegations of ineffective assistance of counsel hinge on facts not
    appearing in the record, the proper remedy is a petition for post-conviction relief rather
    than a direct appeal.").
    {¶ 45} Accordingly, to the extent Rhoades' seventh assignment of error asserts a
    claim of ineffective assistance of counsel, we overrule the seventh assignment of error.
    IV. Conclusion
    {¶ 46} For the foregoing reasons, we overrule Rhoades' nine assignments of error
    and affirm the judgment of the Franklin County Municipal Court.
    Judgment affirmed.
    BROWN and BEATTY BLUNT, JJ., concur.
    

Document Info

Docket Number: 19AP-93

Citation Numbers: 2020 Ohio 2688

Judges: Dorrian, J.

Filed Date: 4/28/2020

Precedential Status: Precedential

Modified Date: 4/28/2020