State v. Thompson , 2019 Ohio 2525 ( 2019 )

[Cite as State v. Thompson, 2019-Ohio-2525.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 18AP-211
(C.P.C. No. 17CR-3403)
v. :
(REGULAR CALENDAR)
Lee C. Thompson, Jr., :
Defendant-Appellant. :
D E C I S I O N
Rendered on June 25, 2019
On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
Walton, for appellee. Argued: Michael P. Walton.
On brief: Yeura R. Venters, Public Defender, and George M.
Schumann, for appellant. Argued: George M. Schumann.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Lee C. Thompson, Jr., appeals from a judgment entry
of the Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict,
of one count of domestic violence. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} By indictment filed June 20, 2017, plaintiff-appellee, State of Ohio, charged
Thompson with one count of domestic violence in violation of R.C. 2919.25, a felony of the
third degree; and one count of abduction in violation of R.C. 2905.02, a felony of the third
degree. Thompson entered a plea of not guilty.
{¶ 3} At a trial beginning January 21, 2018, the state presented the testimony of
only two witnesses. J.S. testified she became romantically involved with Thompson and
No. 18AP-211 2
the two of them lived together on Sullivant Avenue. Eventually, J.S. and Thompson moved
across the street and lived with a woman whom Thompson referred to as mom, though she
was not his biological mother. J.S. said they lived in that house from August 2016 to
October or November 2016. In total, J.S. testified her relationship with Thompson lasted
three and one-half months.
{¶ 4} J.S. testified that during their relationship, Thompson would hit her, push
her up against the wall, and smack her in the face. J.S. described one instance in which she
tried to leave and Thompson smacked her so hard that her glasses broke. She said she was
"[s]cared and nervous" to see Thompson in court again because she had not seen him since
she left the relationship. (Tr. Vol. II at 31.)
{¶ 5} J.S. then described an incident on November 20, 2016 in which she went with
Thompson to his brother's house to play cards and drink beer. After saying something that
upset Thompson, J.S. said she left the house and started running away but Thompson
chased her. J.S. said she ran in front of traffic on Mound Street in an attempt to escape but
Thompson caught her and pushed her to the ground. At that point, J.S. said Thompson
had his knees on her lower back and was pushing her head into the ground. J.S. testified
that Thompson then stood up and started kicking her in the ribs, telling her "I told you I'd
never put my hands on you, but I never said nothing about my feet." (Tr. Vol. II at 33.)
After the altercation, J.S. said Thompson picked her up and forced her back to his brother's
residence.
{¶ 6} J.S. said she did not leave Thompson immediately because every time she had
tried to leave him before, he would become violent. The next day, J.S. went with Thompson
to another friend's house where she said she sat silently because she was not "allowed" to
speak. (Tr. Vol. II at 37.) J.S. testified Thompson had previously told her "[y]ou don't have
no business talking. There's nothing for you to say. Just sit there. That's what you do as a
woman." (Tr. Vol. II at 38.)
{¶ 7} J.S. stayed with Thompson for a few more days and then formulated a plan
to escape. She told Thompson she was going to donate plasma, which she had done
previously, and then she left the house. She testified she did not take her purse with her or
any belongings; she just left the house. J.S. said that after donating plasma, she called her
son to pick her up, and she stayed with her son for a couple of days. However, J.S. testified
No. 18AP-211 3
she did not immediately file a police report because she was afraid that Thompson might
see her somewhere before police were able to apprehend him.
{¶ 8} After staying with her son for several days, J.S. said she then went to a
homeless shelter. On November 27, 2016, J.S. was experiencing pain in her ribs and it was
hard for her to breathe so she went to the hospital. An examination revealed internal
bruising on her ribs and indentations on her sides from Thompson's shoes. J.S. testified
that hospital personnel called the police to make a report. Two police officers came to the
hospital and interviewed J.S. After the interview, police officers drove J.S. to the homeless
shelter to retrieve her belongings and then they transported J.S. to a domestic violence
shelter. J.S. testified she stayed at the domestic violence shelter until February 2017.
{¶ 9} James Null, an officer with the Columbus Division of Police, testified that he
responded to a call to Mount Carmel West Hospital on November 27, 2016. At the hospital,
Officer Null took a statement from J.S. regarding the November 20, 2016 incident and the
abuse she suffered while in a relationship with Thompson. Following the interview, Officer
Null said he administered a series of screening questions to J.S. to see whether she would
benefit from admission to the Choices program, a shelter for victims of domestic violence.
Officer Null testified he then transported J.S. to the homeless shelter to collect her
belongings and then to Choices.
{¶ 10} Thompson did not call any witnesses. Following deliberations, the jury found
Thompson guilty of domestic violence with the specific finding that Thompson had two or
more prior domestic violence convictions. However, the jury found Thompson not guilty
of abduction. Following a February 21, 2018 sentencing hearing, the trial court sentenced
Thompson to three years in prison to run consecutive to Thompson's sentence in a separate
criminal case. The trial court journalized Thompson's conviction and sentence in a
February 23, 2018 judgment entry. Thompson timely appeals.
II. Assignments of Error
{¶ 11} Thompson assigns the following errors for our review:
[1.] Trial counsel rendered ineffective assistance in violation of
the Defendant's rights to counsel and to a fair trial under U.S.
Const. Amend. V, VI, and XIV, and Ohio Const. Art I, § 10 and
16.
No. 18AP-211 4
[2.] The cumulative effect of the ineffectiveness of appellant's
counsel combined to deny appellant a fair trial guaranteed by
the United States and Ohio Constitutions.
III. First Assignment of Error – Ineffective Assistance of Counsel
{¶ 12} In his first assignment of error, Thompson argues he received the ineffective
assistance of counsel. More specifically, Thompson asserts his trial counsel was ineffective
in failing to make various objections, stipulating to extraneous facts, and failing to request
a limiting instruction.
{¶ 13} In order to prevail on a claim of ineffective assistance of counsel, Thompson
must satisfy a two-prong test. First, he must demonstrate that his counsel's performance
was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong
requires Thompson to show that his counsel committed errors which were "so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Id. If Thompson can so demonstrate, he must then establish that he was
prejudiced by the deficient performance. Id. To show prejudice, Thompson must establish
there is a reasonable probability that, but for his counsel's errors, the result of the trial
would have been different. A "reasonable probability" is one sufficient to undermine
confidence in the outcome of the trial. Id. at 694.
{¶ 14} In considering claims of ineffective assistance of counsel, courts indulge in a
strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101.
Thompson contends his trial counsel was ineffective in (1) failing to object to testimony of
prior incidents of domestic violence; (2) failing to request a limiting instruction concerning
the testimony of prior incidents of domestic violence; (3) stipulating to the admission of
extraneous factual details related to Thompson's prior convictions; (4) failing to object to
the prosecutor's statements regarding J.S.'s credibility during closing arguments; (5) failing
to object to hearsay in Officer Null's testimony; and (6) failing to object to the trial court's
non-neutral statements made in the presence of the jury.
No. 18AP-211 5
A. Prior Incidents of Domestic Violence
{¶ 15} Thompson's first allegation of ineffective assistance of counsel is his trial
counsel's failure to object to the testimony surrounding prior alleged instances of domestic
violence. More specifically, Thompson argues his counsel was deficient in failing to make
a single objection to any of J.S.'s testimony including what he deems to be the extraneous
details of his prior history of domestic violence with J.S. A trial counsel's failure to object
to testimony does not amount to ineffective assistance of counsel unless the defendant can
demonstrate a reasonable probability that, but for his counsel's failure to object, the result
of the proceedings would have been different. State v. Watts, 10th Dist. No. 15AP-951,
2016-Ohio-5386, ¶ 42, citing State v. Valentine, 10th Dist. No. 14AP-893, 2016-Ohio-277,
¶ 24.
{¶ 16} As Thompson notes, the indictment specified that he had prior convictions
for domestic violence. At trial, the parties stipulated that Thompson had a domestic
violence conviction in April 2015 and another domestic violence conviction in August 2014.
Despite the stipulation, J.S. then testified that Thompson had previously been violent
toward her, describing incidents in which he would hit or smack her, including a time when
he broke her eye glasses. J.S. testified she was afraid of Thompson based on his prior
history of violence toward her. J.S. also testified that Thompson would routinely instruct
her not to speak in front of his friends and she indicated that she did not leave Thompson
because every time she tried to leave him, he would become violent. Thompson's trial
counsel did not object to any of this testimony, and Thompson now argues this testimony
amounted to inadmissible other acts evidence under Evid.R. 404(B).
{¶ 17} Evid.R. 404(B) states "[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith." Such evidence "may, however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident." Though Thompson argues the sole purpose of J.S.'s testimony
regarding the prior incidents was to show he acted in conformity with that prior behavior,
we are mindful that Count 2 of the indictment charged Thompson with abduction. Under
R.C. 2905.02, no person shall "[b]y force or threat, restrain the liberty of another person
under circumstances that create a risk of physical harm to the victim or place the other
No. 18AP-211 6
person in fear." R.C. 2905.02(A)(2). In other words, as charged in Thompson's indictment,
the state was required to prove that Thompson placed J.S. "in fear" in order to prove
abduction. J.S.'s testimony regarding Thompson's prior violent behavior tends to prove
why she would be in fear of him for purposes of Count 2 of the indictment. J.S.'s testimony
about Thompson's prior violent behavior was relevant to the charge of abduction, and the
trial court likely would have overruled any objection had Thompson's trial counsel objected.
{¶ 18} Moreover, the jury found Thompson not guilty of abduction under Count 2
of the indictment. Thus, to the extent Thompson argues that the challenged testimony was
unduly prejudicial and should have warranted an objection, we note that the jury was able
to parse through J.S.'s testimony and discern which portions supported a finding of guilt
beyond a reasonable doubt and which portions did not. J.S. testified in great detail about
the events supporting Count 1, the charge of domestic violence, testimony that was not
dependent on Thompson's prior behavior. Even without her testimony about Thompson's
prior conduct, J.S. provided very clear testimony regarding the events of November 20,
2016 that were sufficient to find Thompson guilty of domestic violence. On this record,
Thompson cannot demonstrate that the results of the proceeding would have been different
had his counsel objected to J.S.'s testimony about Thompson's prior behavior toward her.
Thus, trial counsel's failure to object to this testimony does not substantiate a claim for
ineffective assistance of counsel.
{¶ 19} Thompson additionally argues that his trial counsel was deficient in failing
during voir dire to elicit more specific responses from potential jurors on whether they were
able to understand that Thompson's prior convictions for domestic violence did not tend to
show he was more likely to have committed the indicted offense. However, the trial court
instructed the jury that Thompson's prior convictions did not show he had a propensity to
commit the present offense. Jurors are presumed to follow the trial court's instructions.
State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 192, citing State v. Loza, 71 Ohio
St.3d 61, 75 (1994). Thus, we conclude trial counsel's conduct during voir dire on this issue
was not deficient conduct.
No. 18AP-211 7
B. Limiting Instruction
{¶ 20} Thompson next argues that even if J.S.'s testimony about his prior violent
behavior was admissible, his trial counsel was nonetheless deficient in failing to request a
limiting instruction on the permissible purpose of the testimony.
{¶ 21} Strategic and tactical decisions of trial counsel cannot form the basis of a
claim of ineffective assistance of counsel. State v. Glenn-Coulverson, 10th Dist. No. 16AP-
265, 2017-Ohio-2671, ¶ 56, citing Columbus v. Oppong, 10th Dist. No. 15AP-1059, 2016-
Ohio-5590. As a general rule, the decision of whether or not to request a particular jury
instruction is a matter of trial strategy and, for that reason, will not substantiate a claim of
ineffective assistance of counsel. Id. We see no reason to deviate from the general rule
here.
{¶ 22} This court has previously noted that trial counsel's decision not to request a
limiting instruction on other acts evidence can represent a tactical decision not to draw
additional attention to the other acts testimony State v. Rawls, 10th Dist. No. 03AP-41,
2004-Ohio-836, ¶ 42, citing State v. Schaim, 65 Ohio St.3d 51, 61 (1992), fn. 9. Further, we
need not decide whether this decision amounted to a reasonable trial strategy because we
find no reasonable probability the outcome of Thompson's trial would have been different
had trial counsel requested the limiting instruction. State v. Ferguson, 10th Dist. No.
07AP-999, 2008-Ohio-6677, ¶ 66, citing Strickland at 694. In particular, as we noted
above, the jury found Thompson not guilty on the abduction charge, indicating the jury was
able to sort through the testimony and determine its weight for each of the indicted charges.
Also, J.S. provided specific, detailed testimony relating solely to the events of November 20,
2016 that, standing alone, was enough to establish Thompson's guilt on the charge of
domestic violence. Thus, because Thompson cannot show prejudice from trial counsel's
failure to request a limiting instruction, the lack of limiting instruction will not substantiate
a claim of ineffective assistance of counsel. State v. Hughes, 10th Dist. No. 14AP-360, 2015-
Ohio-151, ¶ 69 (a defendant cannot substantiate a claim of ineffective assistance of counsel
based on a strategic or tactical decision of counsel from which the defendant cannot show
prejudice).
No. 18AP-211 8
C. Stipulations Related to Prior Convictions
{¶ 23} Thompson's third alleged instance of ineffective assistance of counsel is his
trial counsel's stipulation to what he deems "extraneous factual details" surrounding his
prior convictions for domestic violence. (Thompson's Brief at 30.) As to the stipulation for
the first prior conviction of domestic violence, Thompson argues trial counsel should have
limited the stipulation to the entry of conviction and not agreed to admission of the criminal
complaint. As to the second prior conviction of domestic violence, Thompson argues his
counsel was deficient in failing to verify that the entry of conviction was redacted as it
related to substance abuse and mental health issues as well as the identity of the victim in
that case.
{¶ 24} Trial counsel noted on the record it was agreeing to the stipulation to the
criminal complaint because the sentencing entry related to that conviction did not make it
clear what the conviction was for. This was a reasonable explanation for counsel's decision.
For the second domestic violence conviction, the trial court indicated it was planning to
redact the judgment entry but ultimately failed to do so. However, for the same reasons we
outlined above, Thompson cannot demonstrate prejudice from this extraneous information
reaching the jury. The jury had ample evidence to support Thompson's guilt on the charge
of domestic violence from J.S.'s testimony that related solely to the events of November 20,
2016. Accordingly, we conclude trial counsel's stipulations related to the prior convictions
did not amount to the ineffective assistance of counsel.
D. Prosecutor's Closing Argument
{¶ 25} Thompson's fourth alleged instance of ineffective assistance of counsel is his
trial counsel's failure to object during the prosecutor's closing arguments when the
prosecutor remarked on J.S.'s credibility. In arguing to the jurors that they needed to only
believe one witness to convict Thompson, the prosecutor stated "I ask you to judge [J.S.'s]
credibility; and I would submit she's credible; and I ask you to return guilty as to both
counts." (Tr. Vol. II at 117.) The prosecutor then repeated a similar phrase twice during its
rebuttal closing.
{¶ 26} Generally, "[i]t is improper for an attorney to express his or her personal
belief or opinion as to the credibility of a witness or as to the guilt of the accused." State v.
Williams, 79 Ohio St.3d 1, 12 (1997), citing State v. Thayer, 124 Ohio St. 1 (1931). The state
No. 18AP-211 9
responds that the prosecutor was not vouching for the witness's credibility but instead was
submitting to the jury that J.S. provided credible testimony. We need not determine
whether these statements amounted to improper vouching by the prosecutor, however,
because even if they did, the trial court instructed the jury that closing arguments are not
evidence and that it is for the jury alone to determine the credibility of any particular
witness. Thompson at ¶ 192 (jurors are presumed to follow a court's instructions).
Moreover, here the jury found Thompson guilty of Count 1 but not guilty of Count 2,
indicating the jury independently evaluated the entirety of J.S.'s testimony and decided
which portions it found credible and which portions it did not. Thus, because Thompson
does not show prejudice from his trial counsel's lack of objection to these remarks, the lack
of objection during closing arguments does not substantiate a claim of ineffective assistance
of counsel.
E. Hearsay Testimony
{¶ 27} Thompson's fifth alleged instance of ineffective assistance of counsel is his
trial counsel's failure to object to hearsay in Officer Null's testimony. More specifically,
Officer Null reviewed his report from the incident and then testified that J.S. completed a
domestic violence screening questionnaire to aid the decision of whether she should go to
a domestic violence shelter. Thompson asserts this testimony was hearsay used to bolster
J.S.'s testimony and that his trial counsel was deficient in failing to object.
{¶ 28} A statement is inadmissible hearsay when it is an out-of-court statement
offered for the truth of the matter asserted. Evid.R. 801(C) and 802. There are exceptions
to the hearsay rule, however, and those exceptions are listed in Evid.R. 803 and 804. "In
general, statements offered by police officers explaining their conduct while investigating a
crime 'are not hearsay because they are not offered for their truth, but, rather, are offered
as an explanation of the process of investigation.' " State v. Bartolomeo, 10th Dist. No.
08AP-969, 2009-Ohio-3086, ¶ 17, quoting State v. Warren, 8th Dist. No. 83823, 2004-
Ohio-5599, ¶ 46. Here, Officer Null was describing his investigatory process and explaining
the steps he took in interviewing J.S., including referring her to a domestic violence shelter.
He was not vouching for J.S.'s credibility or stating that J.S. was definitively a victim of
domestic violence; rather, he was describing his conduct as he investigated the events of
November 20, 2016. Thus, because this testimony was not offered for the truth of the
No. 18AP-211 10
matter asserted, it was not hearsay, and Thompson's trial counsel was not deficient in
failing to object to it.
F. Trial Court's Non-Neutral Statements
{¶ 29} Thompson's sixth and final alleged instance of ineffective assistance of
counsel is his trial counsel's failure to object to the trial court's statements that Thompson
characterizes as non-neutral.
{¶ 30} After explaining the charges against Thompson, the trial court stated to the
potential jurors:
* * * Again, back in November of 2016 is when this happened.
It didn't get indicted by the state for some months afterwards,
but that's when it happened.
It happened around Mound and Terrace at Mr. Thompson's
brother's home. That's where it's alleged to have happened.
And then part of the other dispute between Mr. Thompson and
[J.S.] took place at his apartment, which was around South
Columbian and Sullivant Avenue. * * *
(Voir Dire Tr. at 6-7.) Thompson argues that because the trial court used the phrase "it
happened" without consistently using the word "allegedly" to modify it, the trial court was
making a non-neutral statement to the jury that it believed J.S. that a crime had occurred.
Accordingly, Thompson argues his trial counsel should have objected.
{¶ 31} We do not agree with Thompson's characterization of these statements as
non-neutral. When read in context, the trial court refers to the "alleged" incident, and the
statements were intended as general background to the dispute. The purpose of this
colloquy was to gauge whether any potential jurors may recognize either Thompson or J.S.
Because these statements were appropriate, Thompson's counsel was not deficient in
failing to object.
{¶ 32} Next, Thompson argues the trial court made a non-neutral statement when
it explained the concept that only one witness is necessary to prove a case beyond a
reasonable doubt. Thompson asserts the trial court's preliminary instruction on this
concept had the effect of bolstering the state's theory of the case as the state was going to
rely solely on J.S.'s testimony. However, the trial court did not misstate the concept or the
law and was simply offering an explanation for an anticipated legal concept at trial.
No. 18AP-211 11
Thompson points to no authority indicating a trial court errs when making such
preliminary instructions. Thus, his trial counsel's failure to object on this point was not
deficient.
{¶ 33} Thompson also argues the trial court made a non-neutral statement when it
told the jury the trial court would act as the jury's lawyer, but it is the jury's job to judge the
facts. Thompson asserts this statement was confusing for the jury. However, when read in
context, the trial court was explaining to the jury that it would be instructing the jury on the
law at the end of the presentation of evidence and that the jury would ultimately decide the
facts applicable to those legal rules. We do not agree with Thompson that this statement
was confusing to the jury, and thus Thompson's trial counsel was not deficient in failing to
object to this statement.
{¶ 34} Finally, Thompson argues the trial court erred when it asked defense counsel,
in the presence of the jury, whether Thompson intended to testify. We agree with
Thompson that the general rule is that "[i]t is improper for either the prosecutor or the
court to comment on a defendant's invocation of his right to remain silent." State v.
Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, ¶ 68. However, here, the trial court was
not commenting on Thompson's decision not to testify; rather, the trial court was clarifying
a procedural point of whether the defense would be calling any witnesses as defense counsel
had indicated during voir dire that it would decide "later" whether Thompson would testify
or not. (Voir Dire Tr. at 79.) Thompson does not articulate what prejudice resulted from
the trial court's inquiry at the close of state's evidence whether Thompson intended to
testify. Thus, his trial counsel's failure to object to the trial counsel's question in the
presence of the jury will not substantiate a claim of ineffective assistance of counsel.
{¶ 35} In sum, Thompson fails to demonstrate from his six alleged instances of
ineffective assistance of counsel that either his counsel was deficient or that he suffered any
prejudice as a result. Accordingly, Thompson did not receive the ineffective assistance of
counsel under the Strickland test. We overrule his first assignment of error.
IV. Second Assignment of Error – Cumulative Effects of Errors
{¶ 36} In his second and final assignment of error, Thompson argues the cumulative
effect of his trial counsel's errors resulted in him being denied a fair trial.
No. 18AP-211 12
{¶ 37} Thompson relies on State v. DeMarco, 31 Ohio St.3d 191 (1987) for the
proposition that although errors at trial singularly "may not rise to the level of prejudicial
error, a conviction will be reversed where the cumulative effect of the errors deprives a
defendant of the constitutional right to a fair trial." Id. at paragraph two of the syllabus.
Thompson urges us to conclude that his trial counsel's many errors, when considered
together, deprived him a fair trial.
{¶ 38} Even if we were to agree with Thompson that his counsel's overall
performance was deficient under the first prong of Strickland, we are nonetheless
constrained by the second prong of Strickland which requires Thompson to demonstrate
that but for his counsel's performance, the outcome of the proceedings would have been
different. Here, as we noted throughout our analysis of Thompson's first assignment of
error, J.S. provided specific, detailed testimony surrounding the events of November 20,
2016 that, standing alone, was sufficient to prove Thompson's guilt. Although Thompson
complains about his trial counsel's various failures in regard to his conduct, we do not find
that Thompson can overcome the fact that the victim testified very clearly about what
happened in this case. Thus, because Thompson is unable to demonstrate the requisite
prejudice under the second prong of Strickland, the cumulative effect of the alleged errors
did not deprive him of a fair trial. Hughes at ¶ 74. Accordingly, we overrule Thompson's
second and final assignment of error.
V. Disposition
{¶ 39} Based on the foregoing reasons, Thompson did not receive the ineffective
assistance of counsel, and the cumulative effect of Thompson's trial counsel's alleged errors
did not operate to deprive him of a fair trial. Having overruled Thompson's two
assignments of error, we affirm the judgment of the Franklin County Court of Common
Pleas.
Judgment affirmed.
KLATT, P.J., concurs.
DORRIAN, J., concurs and concurs in judgment only.
No. 18AP-211 13
DORRIAN, J., concurring and concurring in judgment only.
{¶ 40} I concur with the majority that Thompson did not receive the ineffective
assistance of counsel and the cumulative effect of any alleged errors did not operate to
deprive him of a fair trial.
{¶ 41} However, I concur in judgment only regarding whether the failure to object
to Officer Null's testimony on the screening for eligibility for the Choices shelter constituted
ineffective assistance of counsel. I would conclude that it did not amount to ineffective
assistance of counsel because no prejudice resulted therefrom. As noted by the majority,
the jury had ample evidence to support Thompson's guilt on the charge of domestic violence
from J.S.'s testimony regarding what happened the evening of November 20, 2016, without
testimony of the officer's interview of her regarding eligibility for the Choices shelter.