State v. Smith , 2022 Ohio 4687 ( 2022 )

[Cite as State v. Smith, 2022-Ohio-4687.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-21-10
v.
LOREN R. SMITH, JR. OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court
Trial Court No. 19 CR 13522
Judgment Affirmed
Date of Decision: December 27, 2022
APPEARANCES:
Catherine Meehan for Appellant
Russell R. Herman for Appellee
Case No. 4-21-10
MILLER, J.
{¶1} Defendant-appellant, Loren R. Smith, Jr., appeals the August 30, 2021
judgment of sentence of the Defiance County Court of Commons Pleas. For the
reasons that follow, we affirm.
I. Facts & Procedural History
{¶2} On March 27, 2019, the Defiance County Grand Jury indicted Smith on
the following four counts: Count One of operating a vehicle while under the
influence of alcohol (“OVI”) in violation of R.C. 4511.19(A)(1)(a) and (G)(1)(e), a
third-degree felony; Count Two of aggravated vehicular assault in violation of R.C.
2903.08(A)(1)(a) and (B)(1)(a), a second-degree felony; Count Three of vehicular
assault in violation of R.C. 2903.08(A)(2)(b) and (C)(2), a third-degree felony; and
Count Four of failure to stop after an accident in violation of R.C. 4549.02(A)(1)(a)
and (B)(2)(b), a fourth-degree felony. On April 3, 2019, Smith appeared for
arraignment and pleaded not guilty to the counts of the indictment. The matter
eventually proceeded to a jury trial beginning on June 28, 2021.
{¶3} At trial, Casey Huepenbecker testified that on the morning of March 7,
2019, he was driving west along Ohio State Route 18 when he noticed an eastbound
white Ford F-150 move to pass another vehicle. (June 28, 2021 Tr. at 280).
Huepenbecker stated that the F-150 entered the westbound lane of travel,
successfully overtook the other vehicle, and put at least two or three car lengths
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between itself and the passed vehicle. (June 28, 2021 Tr. at 280). He testified that
he did not see a deer or any other obstruction in the roadway. (June 28, 2021 Tr. at
280). Huepenbecker testified that he thought the F-150 was going to move back
into the eastbound lane of travel, but when he realized the F-150 was still coming at
him head-on, he swerved to avoid a collision. (June 28, 2021 Tr. at 280).
Huepenbecker’s efforts were not entirely successful, and the F-150 struck the left
front and side of Huepenbecker’s vehicle, causing Huepenbecker’s vehicle to roll
several times. (State’s Exs. 1-4). Huepenbecker sustained a number of injuries in
the collision, including several severely herniated disks and broken vertebrae, which
Huepenbecker testified still cause him constant pain and limit his range of motion.
(June 28, 2021 Tr. at 288-291). Huepenbecker stated that the crash occurred
sometime between 5:50 a.m. and 5:55 a.m. (June 28, 2021 Tr. at 279).
{¶4} Huepenbecker, a former army medic, testified that once his vehicle
came to a stop, he conducted a “blood sweep” to determine whether he had sustained
any serious injuries. (June 28, 2021 Tr. at 281, 283). Huepenbecker stated that on
finding that he was not bleeding severely, he left his own vehicle to check on the
driver of the F-150. (June 28, 2021 Tr. at 283). According to Huepenbecker, when
he got to the F-150, there was no one inside of the truck and he did not see anyone
in the surrounding area. (June 28, 2021 Tr. at 283). Huepenbecker stated that he
did not see anyone exit the F-150, and he could not identify its driver. (June 28,
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2021 Tr. at 291-292). Regarding the F-150, Huepenbecker testified that it was dirty
inside and that there were cans on the floorboard and on the seat, but he could not
identify the type of cans he observed. (June 28, 2021 Tr. at 284).
{¶5} Sergeant Trooper Michael McClain of the Ohio State Highway Patrol
(“OSHP”) testified that he was dispatched to the scene of the crash at approximately
6:01 a.m. on March 7, 2019, and arrived at approximately 6:08 a.m. (June 28, 2021
Tr. at 128, 146). Sergeant McClain stated that on arrival, he learned that the driver
of the F-150 had fled from the scene of the crash. (June 28, 2021 Tr. at 128).
According to Sergeant McClain, he then entered the F-150, where he noticed that
the airbag had deployed. (June 28, 2021 Tr. at 135). Sergeant McClain stated that
he also noticed a soft-sided cooler, inside of which he discovered seven full cans of
Natural Ice beer. (June 28, 2021 Tr. at 133). The cans were cold to the touch. (June
28, 2021 Tr. at 133). Sergeant McClain further testified that he saw additional
empty cans among the trash and other clutter inside of the F-150. (June 28, 2021
Tr. at 147).
{¶6} Sergeant McClain stated that a canine unit was called to the scene of
the crash in an attempt to locate the driver of the F-150. (June 28, 2021 Tr. at 129).
David Stecher, formerly a canine handler for the Defiance County Sheriff’s Office,
testified that his canine tracked the scent of the F-150’s driver from the scene of the
crash and down a long driveway located off State Route 18. (June 28, 2021 Tr. at
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187, 189). Stecher stated that the scent was lost toward the end of the driveway and
that he failed to locate the driver. (June 28, 2021 Tr. at 189-190). Stecher testified
that he spoke to Sarah Bennett, the occupant of the house at the end of the driveway,
who told him she had not seen anyone but that she had seen an unfamiliar white car
drive down the driveway, turn around, and speed off. (June 28, 2021 Tr. at 190).
Bennett herself confirmed that she saw the car in her driveway, though she testified
she did not see anyone getting in or out of the car nor did she see any of the car’s
occupants. (June 28, 2021 Tr. at 196-197, 201). Bennett stated she saw the car
between 7:00 a.m. and 7:30 a.m., that the car was there for approximately 30
seconds, and that she talked to Stecher not long after the car left. (June 28, 2021 Tr.
at 196-197, 200-201).
{¶7} For a variety of reasons, including explaining the significance of the
white car in Bennett’s driveway, the State introduced the statement of Renee Mast,
Smith’s girlfriend. Although subpoenaed by the State to testify at Smith’s trial,
Mast failed to appear as required. The State moved to have Mast’s statement
admitted as the statement of an unavailable witness, arguing that Smith had procured
Mast’s unavailability when, during a phone call from jail, he “aggressively
confront[ed]” her “about how she need[ed] to keep [her testimony] simple and plead
the Fifth.” (June 28, 2021 Tr. at 205). Finding that Smith had procured Mast’s
unavailability, the trial court admitted Mast’s statement over Smith’s objection.
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{¶8} Sergeant Benjamin Moser of the Defiance County Sheriff’s Office
supplied the background for Mast’s statement. Sergeant Moser testified that on
March 15, 2019, he pulled over Mast’s vehicle for a traffic infraction. (June 28,
2021 Tr. at 211). He stated that he knew Mast “operated a white Buick, and that
was one of the vehicles that was mentioned, a white car, had picked [Smith] up from
the crash scene.” (June 28, 2021 Tr. at 211). Sergeant Moser stated that Smith was
in the car with Mast and that Mast said she did not feel comfortable talking to him
with Smith present. (June 28, 2021 Tr. at 212). Accordingly, Sergeant Moser took
Mast to the Sheriff’s Office, where she gave her statement. (June 28, 2021 Tr. at
212). Mast’s written statement provided:
[Smith] called me earlier, 5:15ish, that morning of the 7th. He needed
a ride to work. I didn’t understand why his mom wasn’t taking him.
I picked him up off of the backroad he was walking to work. I thought
he was still drunk from the night before he did smell like it. So I didn’t
ask any questions, thought him and his mom got into it thats [sic] why
she didn’t take him. Thought he stayed at his grandparents. He never
told me. I took him to work and droped [sic] him off and went to work
later that day at 11 a.m. Just two days ago one of his friends stopped
over and they were talking and [Smith] got real angry and then I
started listing [sic] and thats [sic] how I found out about the accident.
(State’s Ex. 13). In response to a question posed by Sergeant Moser, Mast clarified,
“[Smith] called me around 5:15ish and picked him up about 5:30. I pulled into the
driveway.” (State’s Ex. 13). In addition, answering Sergeant Moser’s question
about what Smith and his friend were talking about when Smith got angry, Mast
stated, “When they went to the back room his friend then did say everyone knows
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about what happened. His friend said that he would of [sic] just hit the deer instead
of went [sic] left of center.” (State’s Ex. 13).
{¶9} Although the canine track did not locate the driver of the F-150,
Sergeant McClain soon identified a suspect. Sergeant McClain testified that the F-
150 was registered to Tim Grime, but that when he contacted Grime, Grime
informed him that the F-150 was being used by his son-in-law, John Pratt. (June
28, 2021 Tr. at 136-137). Sergeant McClain stated that Pratt came to the OSHP post
at around 9:10 a.m. to talk about the F-150. (June 28, 2021 Tr. at 137). According
to Sergeant McClain, although Pratt confirmed that he usually drove the F-150, he
stated that he was not in possession of the F-150 on March 7, 2019. (June 28, 2021
Tr. at 279). Sergeant McClain testified that Pratt told him that he had arranged for
Smith to fix the F-150’s clutch and that Smith had taken possession of the truck
approximately one week prior to the crash. (June 28, 2021 Tr. at 137).
{¶10} For his part, Pratt stated at trial that he did not have possession of the
F-150 on March 7, 2019, and that he did not have any keys to the truck at that time.
(June 28, 2021 Tr. at 260). Pratt confirmed that he had arranged for Smith to fix the
F-150 along with another person, Lucas Manley. (June 28, 2021 Tr. at 251). He
testified that approximately one week before the crash, the F-150 had been taken to
Smith’s grandfather’s workshop, and he stated that he had not seen the truck since
about March 5, 2019. (June 28, 2021 Tr. at 252-253, 255). Lyle Smith (“Lyle”),
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Smith’s grandfather, testified that the F-150 had been in his workshop for 13 days
prior to March 7, 2019, and that he had last seen the F-150 in his workshop on the
evening of March 6, 2019, when he and his wife were leaving for church. (June 28,
2021 Tr. at 223-225). He stated that, before he left for church, he had seen Smith
alone in the shop working on the F-150 and that Smith told him the truck would be
removed from the shop that evening. (June 28, 2021 Tr. at 226). Lyle testified that
he told Smith that he should not be driving the F-150 because his license was
suspended, to which Smith replied that he would not be driving the truck and that
someone else was coming to get it. (June 28, 2021 Tr. at 226). Lyle stated he did
not see anyone drive the F-150 off his property and that he did not see the F-150
again after he left for church, though he was not certain whether the truck was still
there when he and his wife returned that evening. (June 28, 2021 Tr. at 225-226).
{¶11} Having learned the F-150 had been entrusted to Smith, as well as that
Smith’s driver’s license was suspended and that Smith had a prior felony OVI,
Sergeant McClain focused his attention on Smith. (June 28, 2021 Tr. at 138).
Sergeant McClain, as well as OSHP Trooper Adam Foster, went to talk to Smith at
the Gardenscape facility in Archbold—Smith’s place of employment. (June 28,
2021 Tr. at 139, 177). Sergeant McClain and Trooper Foster arrived at the
Gardenscape facility at 11:06 a.m. on March 7, 2019. (June 28, 2021 Tr. at 139,
177). Sergeant McClain testified that he made contact with Wayne Dobson, the
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Gardenscape plant manager, who initially told him that he had taken Smith to work
that morning. (June 28, 2021 Tr. at 139). However, Sergeant McClain stated that,
when pressed, Dobson retracted his statement and admitted he had not given Smith
a ride to work as he usually did. (June 28, 2021 Tr. at 279). According to Sergeant
McClain, Dobson said that Smith had not shown up to his residence on the morning
of March 7, 2019. (June 28, 2021 Tr. at 139). Dobson confirmed this at trial,
testifying that he left for work without Smith on the morning on March 7, 2019.
(June 28, 2021 Tr. at 231). Dobson testified that as he was driving to work, Smith
called him and asked whether he was still at home. (June 28, 2021 Tr. at 231).
According to Dobson, when he told Smith that he had already left for work, Smith
told him that he did not need to turn around and that Smith would be at work when
he got there. (June 28, 2021 Tr. at 231). A picture of Dobson’s cell phone showed
that Dobson received phone calls from Smith’s cell phone at 5:55 a.m. and 6:02 a.m.
on March 7, 2019. (Ex. 12).
{¶12} At the Gardenscape facility, Sergeant McClain and Trooper Foster
were directed to a time clock located in a breakroom, where they found Smith’s
timecard. While Smith’s timecard was punched at 5:43 a.m., Sergeant McClain
noted that the key had been left in the time clock, and he opined that “anyone could
manipulate th[e] * * * time clock.” (June 28, 2021 Tr. at 140); (Exs. 10-11).
Sergeant McClain testified that Dobson told him that “someone must have already
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punched [Smith] in.” (June 28, 2021 Tr. at 140). Dobson acknowledged telling
Sergeant McClain that someone else must have punched Smith’s timecard. (June
28, 2021 Tr. at 236). However, Dobson testified that it was rare for one employee
to clock in another employee and that he did not know Smith, or any other
Gardenscape employee, to be clocked in when they were not working. (June 28,
2021 Tr. at 236, 238). Dobson further testified that the key was always in the time
clock and that someone could use it to open the machine and change the time, though
he stated that no one had ever manipulated the time clock as far as he knew. (June
28, 2021 Tr. at 237-239). Dobson had no information definitively indicating that
someone had punched in Smith or manipulated the time clock on the morning of
March 7, 2019. (June 28, 2021 Tr. at 238-242). Pratt, who also worked at
Gardenscape with Smith and Dobson, similarly testified that employees would
occasionally clock in other employees but that he had never seen another employee
manipulate the time clock. (June 28, 2021 Tr. at 268-269). Sergeant McClain
acknowledged that he did not speak to anyone at Gardenscape who said that they
had clocked in Smith on the morning of March 7, 2019. (June 28, 2021 Tr. at 149).
{¶13} After examining Smith’s timecard, Sergeant McClain and Trooper
Foster went to speak to Smith. Sergeant McClain testified that on encountering
Smith, Smith smelled like alcohol and “had very red, bloody, glassy eyes, slow
speech, [and] * * * a fresher abrasion on his forehead.” (June 28, 2021 Tr. at 142,
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144). Trooper Foster likewise stated that Smith smelled like alcohol and that his
eyes were bloodshot and glassy. (June 28, 2021 Tr. at 168-169). With respect to
the abrasion observed on Smith’s forehead, Sergeant McClain testified that the mark
was “consistent with airbag deployment.” (June 28, 2021 Tr. at 142). Sergeant
McClain stated that Smith denied that he had been driving the F-150. (June 28,
2021 Tr. at 150).
{¶14} Trooper Foster then administered a horizontal gaze nystagmus
(“HGN”) test to Smith. According to Trooper Foster, a study showed that in 88
percent of test subjects who exhibited four or more “clues” during an HGN test,
their blood alcohol concentrations were found to be .08 or higher. (June 28, 2021
Tr. at 165-166). Trooper Foster described the HGN test, testified that he was trained
to administer it, and indicated that the HGN test was administered to Smith in
accordance with the procedure he outlined. (June 28, 2021 Tr. at 156-165, 169-
170). He stated that Smith exhibited six “clues” during the HGN test, which
indicated to him that Smith was under the influence. (June 28, 2021 Tr. at 237-239).
Trooper Foster testified that he also administered a vertical gaze nystagmus
(“VGN”) test to Smith. According to Trooper Foster, VGN “clues” begin to appear
when a person’s blood alcohol concentration reaches .17. (June 28, 2021 Tr. at 171-
172). Trooper Foster testified he did not observe any “clues” when administering
the VGN test to Smith. (June 28, 2021 Tr. at 171-172). Trooper Foster opined that,
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based on Smith’s performance on the HGN and VGN tests, Smith’s blood alcohol
concentration was “somewhere between .08 and .17.” (June 28, 2021 Tr. at 172).
Sergeant McClain and Trooper Foster both testified that no additional sobriety
testing was performed, including blood or breath testing, and that, to their
knowledge, Smith returned to work for the rest of the day after they spoke to him.
(June 28, 2021 Tr. at 144, 151, 173-174, 180-181).
{¶15} Dobson and Pratt also testified about their interactions with Smith on
the morning of March 7, 2019. Dobson testified that during cold weather, Smith
would often begin the workday by going outside and starting fires underneath the
machinery to get the conveyor belts started. (June 28, 2021 Tr. at 241-242).
According to Dobson, it would take between 30 and 45 minutes for the belts to start
running, after which Smith would come inside and begin stacking bags of topsoil.
(June 28, 2021 Tr. at 242). However, Dobson offered no testimony concerning
whether Smith had started fires on the morning of March 7, 2019. Dobson testified
that he first saw Smith at approximately 7:15 a.m. on the morning of March 7, 2019,
but that prior to seeing Smith, he had been in the office doing administrative work.
(June 28, 2021 Tr. at 235). Dobson stated that Smith did not appear to be intoxicated
at work and that he just acted like the “silly guy” he always was. (June 28, 2021 Tr.
at 243). Dobson said he had no reason to believe that Smith should be sent home.
(June 28, 2021 Tr. at 243).
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{¶16} Pratt testified that lighting fires under the conveyor belts was not
exclusively Smith’s job and that various Gardenscape employees, himself included,
would start the fires as needed. (June 28, 2021 Tr. at 258-259, 272). Pratt stated he
did not remember personally lighting fires under the conveyor belts on March 7,
2019, and could not recall if anyone lit fires that morning. (June 28, 2021 Tr. at
258, 273). He testified he first saw Smith sometime between 6:35 a.m. and 7:00
a.m. and that Smith “walked in probably like five or ten minutes before [Pratt] had
to talk to the state trooper on the phone and they knocked on [Grime’s] door at
6:35.” (June 28, 2021 Tr. at 261, 267). Pratt, who stated that he got to work before
6:00 a.m., testified that it was unusual for him not to see Smith immediately when
he got to work, and he suggested that since he did not immediately see Smith, that
meant that Smith was not there when he clocked in. (June 28, 2021 Tr. at 267-268).
He stated that when he saw Smith, Smith called him over and “asked [him] if [he]
had insurance on the truck.” (June 28, 2021 Tr. at 261). Pratt testified that Smith
told him “he had swerved to miss a deer and hit a car head on, and he ran from the
scene.” (June 28, 2021 Tr. at 261). He stated he thought Smith was joking until he
received a phone call advising him the F-150 had been involved in a crash. (June
28, 2021 Tr. at 261-262). Pratt testified he could not smell alcohol on Smith when
talking to him, but that he “was talking kind of quiet” and “kind of holding himself.”
(June 28, 2021 Tr. at 266). Pratt described Smith as walking a little bit “funny,” but
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stated he was not sure why Smith was walking that way and that “it could have been
he was walking out of the injury.” (June 28, 2021 Tr. at 266-267).
{¶17} Finally, Dobson and Pratt testified about alcohol and drug
consumption on Gardenscape’s premises, though their testimonies were somewhat
contradictory. Dobson testified that Gardenscape employees did not consume
alcohol while working. (June 28, 2021 Tr. at 244-245). However, he conceded that
employees would drink beers on site after work hours, and he stated that it would
not be unusual if there were a picture of an on-site trash can full of beer cans. (June
28, 2021 Tr. at 244). Indeed, Exhibits 11 and 14 depicted a trash can filled with
various beer cans underneath the time clock in the Gardenscape breakroom. Pratt
agreed with Dobson that the trash can full of beer cans was not unusual for
Gardenscape, but contrary to Dobson’s testimony, Pratt stated that Gardenscape
employees, Smith and himself included, would often drink alcohol during work
hours. (June 28, 2021 Tr. at 265-266, 273). Pratt testified that while he did not
drink Natural Ice—the beer found in the wrecked F-150—Smith drank it “like
water” and would drink at work on a regular basis. (June 28, 2021 Tr. at 264-265).
Pratt testified that other substances were consumed on the premises of Gardenscape,
including marijuana and methamphetamine. (June 28, 2021 Tr. at 273).
{¶18} At the close of the State’s evidence, Smith moved for a judgment of
acquittal under Crim.R. 29. Smith argued Trooper Foster improperly opined
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regarding his blood alcohol concentration based solely on observations made during
the HGN and VGN tests and that the State consequently failed to present evidence
sufficient to show that he was under the influence of alcohol. The trial court
overruled Smith’s Crim.R. 29 motion, after which Smith rested without presenting
any evidence.
{¶19} On June 29, 2021, the jury found Smith guilty on all four counts as
charged in the indictment. The trial court accepted the jury’s verdicts and continued
Smith’s sentencing pending completion of a presentence investigation report.
{¶20} Smith’s sentencing hearing was held on August 25, 2021. At the
hearing, the trial court determined that Smith’s aggravated vehicular assault and
vehicular assault offenses merged for purposes of sentencing. The State elected to
have the trial court sentence Smith for the aggravated vehicular assault. Thereafter,
the trial court sentenced Smith to 36 months in prison for OVI, 8-12 years in prison
for aggravated vehicular assault, and 18 months in prison for failure to stop after an
accident. The trial court further ordered that all these sentences be served
consecutively for an aggregate minimum term of 12.5 years in prison and an
aggregate maximum term of 16.5 years in prison. The trial court filed its judgment
entry of sentence on August 30, 2021.
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II. Assignments of Error
{¶21} On September 16, 2021, Smith filed a notice of appeal. He raises the
following seven assignments of error for our review:
1. Mr. Smith’s conviction was not supported by sufficient
evidence.
2. Mr. Smith’s conviction was against the manifest weight of
the evidence.
3. The trial court erred in denying Mr. Smith’s Rule 29 motion
for acquittal.
4. Mr. Smith was denied the effective assistance of counsel as
guaranteed by the Sixth Amendment to the United States
Constitution and Article I, Section 10 of the Ohio Constitution.
5. The State of Ohio improperly introduced expert testimony
from Sgt. McClain to the prejudice of Mr. Smith and deprived
him of his right to a fair trial.
6. Mr. Smith was denied his Sixth Amendment right to
confrontation when the trial court declared Renee Mast an
unavailable witness and permitted her written statement to be
introduced into evidence.
7. The trial court erred in imposing an indefinite term as the
Reagan Tokes Law violated Mr. Smith’s constitutional right to
due process under the Fourteenth Amendment to the United
States Constitution and Article I, Section Ten of the Ohio
Constitution.
We will consider Smith’s assignments of error out of the order presented, and we
will jointly consider some of his assignments of error where appropriate.
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III. Discussion
A. First & Third Assignments of Error: Did the trial court err by denying
Smith’s Crim.R. 29 motion for acquittal and are Smith’s convictions supported
by sufficient evidence?
{¶22} In his first and third assignments of error, Smith argues that his
convictions are not supported by sufficient evidence. Specifically, Smith maintains
that the State “failed to prove beyond a reasonable doubt that [he] operated a motor
vehicle, operated a motor vehicle while under the influence, was involved in an
accident, and fled the scene thereafter.” He further contends that the State’s
evidence “was insufficient to establish that [he] was impaired beyond a reasonable
doubt at the time of the accident.” Thus, Smith’s arguments focus solely on the
purported inadequacy of the State’s evidence identifying him as the driver of the F-
150 and establishing his impairment at the time of the crash. He does not argue that
the State’s evidence is insufficient to support the other elements of the offenses of
which he was found guilty.
i. Sufficiency-of-the-Evidence Review & Crim.R. 29
{¶23} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional
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amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997).
Consequently, “[t]he relevant inquiry is 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.” Id. “In
deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of
fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-
4775, ¶ 33.
{¶24} Pursuant to Crim.R. 29(A), “[t]he court on motion of a defendant * *
*, after the evidence on either side is closed, shall order the entry of a judgment of
acquittal of one or more offenses charged in the indictment * * *, if the evidence is
insufficient to sustain a conviction of such offense or offenses.” “Because the
purpose of a Crim.R. 29 motion for acquittal ‘is to test the sufficiency of the
evidence presented at trial,’ we ‘review[] a denial of a Crim.R. 29 motion for
judgment of acquittal using the same standard that is used to review a sufficiency of
the evidence claim.’” (Bracketing in original.) State v. Brown, 3d Dist. Allen No.
1-19-61, 2020-Ohio-3614, ¶ 35, quoting State v. Willis, 12th Dist. Butler No.
CA2009-10-270, 2010-Ohio-4404, ¶ 9.
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ii. The State’s evidence is sufficient to demonstrate that Smith was operating
the F-150 at the time of the crash on March 7, 2019.
{¶25} Smith first maintains that the State’s evidence is insufficient to
establish his identity as the driver of the F-150 at the time of the crash. We disagree.
Pratt testified the F-150 had been in Smith’s possession for at least one week prior
to March 7, 2019, and Lyle’s testimony supports that the truck may have been with
Smith for closer to two weeks. Per Lyle’s testimony, the F-150 was still in Smith’s
possession on the evening before the crash, and Lyle did not see anyone other than
Smith with the F-150 at that time. Indeed, Pratt testified he had last seen the F-150
on or about March 5, 2019. Although Smith was not seen at the site of the crash,
Stecher’s canine tracked the F-150’s driver’s scent to Bennett’s driveway, where
Bennett reported seeing an unfamiliar white car. Neither Bennett nor any law
enforcement officer observed Smith in or around Bennett’s driveway, but Mast, who
according to Sergeant Moser drove a white Buick matching the general description
of the vehicle Bennett saw in her driveway, indicated in her statement that she had
picked Smith up “off of the back road” and “pulled into the driveway.” When
Sergeant McClain inventoried the F-150, he found a cooler containing seven cans
of Natural Ice—a beer that, according to Pratt’s testimony, Pratt did not drink but
that Smith drank “like water.” In addition, when looking through the F-150,
Sergeant McClain noted the airbag had deployed, and when he later spoke to Smith,
he observed a mark on Smith’s forehead that, in Sergeant McClain’s opinion, was
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consistent with having been caused by deployment of an airbag. Finally, and
critically, Pratt testified that Smith, apparently unprompted, admitted he drove the
F-150 on the morning of March 7, 2019, was involved in a collision, and fled the
crash scene. Mast’s statement echoed Pratt’s account insofar as she reported
overhearing Smith’s unidentified friend tell Smith that he would have “just hit the
deer instead of went [sic] left of center.”
{¶26} We are cognizant that some of the evidence in the record, such as
Smith’s timecard or Mast’s statement that she picked Smith up at approximately
5:30 a.m., could conceivably support a conclusion that Smith was not driving the F-
150 when it struck Huepenbecker’s vehicle a few minutes before 6:00 a.m. We are
also aware of certain tensions in the evidence, such as between Mast’s statement
that she “pulled into the driveway” when she picked Smith up around 5:30 a.m. and
Bennett’s statement that she saw the unfamiliar white car in her driveway closer to
7:00 a.m., that the jury needed to reconcile to find that Smith was driving the F-150
at the time of the crash. But at this juncture, we are not tasked with evaluating the
reasonableness of the jury’s resolution of these evidentiary issues. Consideration of
these matters is not appropriate when assessing the sufficiency of the State’s
evidence, where the relevant question is “not whether the state’s evidence is to be
believed, but whether, if believed, the evidence against [the] defendant would
support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook,
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J., concurring). Here, the State’s evidence, if resolved in its favor and believed by
the jury, is more than sufficient to demonstrate that Smith was driving the F-150 at
the time of the collision with Huepenbecker’s vehicle on the morning of March 7,
2019.
iii. The evidence is sufficient to prove that Smith was under the influence of
alcohol at the time of the crash on March 7, 2019.
{¶27} Of the offenses of which Smith was convicted, two of them—OVI and
aggravated vehicular assault—required proof that he was impaired by alcohol at the
time of the collision with Huepenbecker’s vehicle. OVI offenses are codified at
R.C. 4511.19, which provides in relevant part that “[n]o person shall operate any
vehicle, streetcar, or trackless trolley * * *, if, at the time of the operation, * * *[t]he
person is under the influence of alcohol * * *.” R.C. 4511.19(A)(1)(a). The offense
of aggravated vehicular assault is codified at R.C. 2903.08(A)(1), which provides
in relevant part that “[n]o person, while operating or participating in the operation
of a motor vehicle, * * * shall cause serious physical harm to another person * * *
[a]s the proximate result of committing a violation of [R.C. 4511.19(A)] * * *.”
R.C. 2903.08(A)(1)(a). Thus, to sustain convictions for both OVI and aggravated
vehicular assault in this case, the State needed to introduce evidence sufficient to
prove that Smith was “under the influence of alcohol” at the time of the crash.
{¶28} With respect to alcohol consumption, “under the influence” has been
defined as
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“[t]he condition in which a person finds himself after having
consumed some intoxicating beverage in such quantity that its effect
on him adversely affects his actions, reactions, conduct, movement or
mental processes or impairs his reactions to an appreciable degree,
thereby lessening his ability to operate a motor vehicle.”
(Bracketing in original.) State v. Carozza, 5th Dist. Ashland No. 14-COA-028,
2015-Ohio-1783, ¶ 22, quoting Toledo v. Starks, 25 Ohio App.2d 162, 166 (6th
Dist.1971). “‘Under the influence’ means that the accused consumed some
intoxicating beverage, in such a quantity ‘whether small or great’ that adversely
affected the accused’s ability to operate a vehicle.” Cleveland v. Martin, 8th Dist.
Cuyahoga No. 105420, 2018-Ohio-740, ¶ 20.
{¶29} In arguing that the State presented insufficient evidence to show that
he was under the influence of alcohol at the time of the crash, Smith claims that the
State’s evidence was limited to Sergeant McClain’s and Trooper Foster’s
observations of his physical characteristics and demeanor hours after the crash and
to Trooper Foster’s conclusions based on the results of the HGN and VGN tests.
Smith maintains that the latter evidence could not be used to sustain a finding that
he was under the influence of alcohol because Trooper Foster did not testify to “the
specific administration of the test[s]” and because Trooper Foster was
“impermissibly allowed to testify that [his] BAC was somewhere between .08 and
.17.” Smith contends that Trooper Foster’s testimony was “problematic considering
the HGN [and VGN] test[s] [were] the only test[s] conducted and [were] conducted
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more than five hours after the [crash].” According to Smith, the tests might have
demonstrated that he was under the influence at the time they were administered,
but they had “no correlation as to whether [he] was impaired by alcohol at 5:55 a.m.
at the time of the accident.”
{¶30} To support his argument, Smith cites State v. Bresson, 51 Ohio St.3d
123 (1990), where the Supreme Court of Ohio considered the admissibility of HGN
test results in OVI prosecutions.1 In Bresson, the court concluded that the “results
of [an HGN] test are admissible so long as the proper foundation has been shown
both as to the officer’s training and ability to administer the test and as to the actual
technique used by the officer in administering the test.” Id. at 128. The court held
that “[a] properly qualified officer may testify at trial regarding a driver’s
performance on the [HGN] test as it pertains to * * * whether the driver was
operating a vehicle while under the influence of alcohol.” Id. at syllabus. However,
the court concluded that “such testimony may not be admitted to show what the
exact alcohol concentration level of the driver was * * *.” Id.
{¶31} Having reviewed Trooper Foster’s testimony, we disagree with
Smith’s assertion that Trooper Foster did not testify to the technique he used when
1
In Bresson, the court dealt only with the admissibility of testimony regarding the results of HGN testing.
The court did not discuss VGN testing or the admissibility of VGN test results in OVI prosecutions. For
purposes of this opinion, we assume that the court’s reasoning in Bresson can be extended to VGN test results
and that VGN test results are admissible to the same extent and for the same purposes as HGN test results.
However, we expressly decline to decide these issues and reserve their final resolution for a proper case.
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administering the HGN test. While Trooper Foster did not go into great detail about
the particular HGN test administered to Smith, he exhaustively described the
standard HGN testing procedures and indicated that Smith’s HGN test was
administered in accordance with those procedures. (See June 28, 2021 Tr. at 156-
165, 169-170). And while Trooper Foster did not offer any detailed testimony about
his technique in administering the VGN test, that is ultimately not problematic in
this case as Trooper Foster detected no additional indicators of impairment via the
VGN test.
{¶32} However, some of Smith’s complaints about Trooper Foster’s
testimony are not entirely unreasonable. Trooper Foster’s testimony about Smith’s
blood alcohol concentration being between .08 and .17 certainly skirted the line of
what is permissible under Bresson. Nevertheless, Trooper Foster’s testimony was
arguably consistent with Bresson insofar as Trooper Foster did not testify to Smith’s
exact blood alcohol concentration and this case involved an “under-the-influence”
OVI rather than a “per se” OVI that would have required evidence of Smith’s blood
alcohol concentration. See State v. Banks, 2d Dist. Greene No. 2014-CA-11, 2014-
Ohio-5360, ¶ 25-26; State v. Robertson, 5th Dist. Richland No. 11CA0046, 2012-
Ohio-2955, ¶ 44; State v. Cole, 3d Dist. Wyandot No. 16-94-11, 1995 WL 551110,
*3 (Sept. 13, 1995).
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{¶33} But regardless, the admissibility of the HGN and VGN test results is
immaterial to determining whether the State presented sufficient evidence: “When
conducting a sufficiency of the evidence analysis, [the] court is to look at the actual
evidence admitted at trial, both admissible and inadmissible.” State v. Daniels, 11th
Dist. Trumbull No. 2020-T-0022, 2021-Ohio-790, ¶ 103. Irrespective of its
admissibility, Trooper Foster’s opinion regarding Smith’s blood alcohol
concentration unquestionably supports that Smith was under the influence of
alcohol at the time the HGN and VGN tests were administered. Moreover, Trooper
Foster’s testimony that Smith’s performance on the HGN test led him to conclude
that Smith was under the influence—testimony that was clearly admissible under
Bresson—lends additional support for a conclusion that Smith was intoxicated when
the HGN test was administered. Smith’s inebriation at that point in time is further
evidenced by Sergeant McClain’s and Trooper Foster’s observations that Smith
smelled like alcohol, had glassy and bloodshot eyes, and was speaking slowly.
{¶34} Yet, the question in this case is not whether the evidence is sufficient
to show that Smith was under the influence of alcohol at the time Sergeant McClain
and Trooper Foster first encountered him during the 11 o’clock hour on the morning
of March 7, 2019. Instead, the question in this case is whether there is sufficient
evidence that Smith was under the influence of alcohol more than five hours earlier
when the F-150 collided with Huepenbecker’s vehicle. The evidence of Smith’s
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impairment during the 11 o’clock hour might be relevant to answering that question.
The jury was free to draw any reasonable inferences from Smith’s impairment five
hours after the crash.
{¶35} We find the State presented evidence sufficient to establish an
inference that Smith’s apparent intoxication during the 11 o’clock hour was merely
a continuation of his early-morning intoxication. The fact that the F-150 struck
Huepenbecker’s vehicle in the manner that it did is itself some evidence that Smith
was impaired at the time of the crash. See State v. Miller, 9th Dist. Summit No.
29469, 2020-Ohio-1209, ¶ 9 and 16. So too was Smith’s flight from the crash scene
at least some evidence of impairment because his flight could support an additional
inference indicative of a consciousness of guilt. See State v. Sanford, 9th Dist.
Lorain No. 18CA011308, 2021-Ohio-1619, ¶ 24; State v. Gindlesperger, 8th Dist.
Cuyahoga No. 104539, 2017-Ohio-7478, ¶ 28 and 36-40. In addition, when
Sergeant McClain entered the F-150, he found numerous cans of beer. Although
many of the beer cans were full and little is known about the empty cans Sergeant
McClain discovered, the presence of these cans adds support for a conclusion that
Smith was under the influence of alcohol while he was driving the F-150.
Furthermore, while Pratt testified that he could not smell alcohol on Smith’s person,
Pratt’s observations that Smith was “holding himself” and walking a little bit
“funny”—observations that were made within an hour or so of the crash—also
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provide some support for concluding that Smith was under the influence at the time
of the crash. This is so notwithstanding that Pratt could not rule out that Smith was
acting that way due to injuries from the crash. Finally, Mast indicated in her
statement that when she picked Smith up in the early-morning hours of March 7,
2019, he smelled like alcohol, and she believed he was still drunk from the previous
evening. Therefore, viewing all the evidence in a light most favorable to the State,
we conclude that the State presented evidence sufficient to prove beyond a
reasonable doubt that Smith was under the influence of alcohol at the time of the
crash.
{¶36} Smith’s first and third assignments of error are overruled.
B. Fifth Assignment of Error: Did the trial court commit plain error by
allowing Sergeant McClain to offer an opinion regarding the cause of the
abrasion he observed on Smith’s forehead?
{¶37} In his fifth assignment of error, Smith argues that the trial court erred
by allowing Sergeant McClain to testify that the abrasion he observed on Smith’s
forehead on March 7, 2019, was “consistent with airbag deployment.” Smith claims
that, in this respect, Sergeant McClain was testifying as an expert witness, which
was inappropriate because the State did not produce evidence establishing Sergeant
McClain’s qualifications to provide expert opinion testimony regarding the
abrasion. Smith also maintains that Sergeant McClain should not have been
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permitted to offer this testimony because the State did not provide notice that
Sergeant McClain would be offering an expert opinion.
i. Standard of Review
{¶38} Ordinarily, trial court decisions regarding the admission of testimony,
including expert opinion testimony, are reviewed for abuse of discretion. State v.
Haskell, 3d Dist. Wyandot No. 16-15-03, 2015-Ohio-3095, ¶ 26; State v. Burks, 3d
Dist. Shelby No. 17-10-27, 2011-Ohio-3529, ¶ 22. However, because Smith failed
at trial to object to Sergeant McClain’s testimony, he has forfeited all but plain error.
See State v. Fetherolf, 3d Dist. Union Nos. 14-16-10 and 14-16-11, 2017-Ohio-
1316, ¶ 30.
{¶39} For plain error to apply, the trial court must have deviated from a legal
rule, the error must be plain, i.e., an obvious defect in the proceeding, and the error
must have affected the defendant’s “substantial rights.” State v. Barnes, 94 Ohio
St.3d 21, 27 (2002). “[T]o demonstrate that the trial court’s error affected a
substantial right, the defendant must establish that there is a reasonable probability
that, but for the trial court’s error, the outcome of the proceeding would have been
otherwise.” State v. Sutton, 3d Dist. Seneca No. 13-21-11, 2022-Ohio-2452, ¶ 50.
We take “[n]otice of plain error * * * with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,
53 Ohio St.2d 91 (1978), paragraph three of the syllabus.
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ii. The trial court did not commit plain error by allowing Sergeant McClain to
opine regarding the cause of the abrasion on Smith’s forehead.
{¶40} Smith’s argument, i.e., that the trial court erred by allowing Sergeant
McClain to testify that the abrasion on Smith’s forehead was “consistent with airbag
deployment,” is dependent on Sergeant McClain’s testimony being expert opinion
testimony, rather than the testimony of a lay witness. For a witness to offer an expert
opinion, the following conditions must be satisfied: (1) the witness’s testimony
must “either relate[] to matters beyond the knowledge or experience possessed by
lay persons or dispel[] a misconception common among lay persons”; (2) the
witness must be “qualified as an expert by specialized knowledge, skill, experience,
training, or education regarding the subject matter of the testimony”; and (3) the
witness’s testimony must be “based on reliable scientific, technical, or other
specialized information.” Evid.R. 702. However, if the witness is testifying not as
an expert witness but as a lay witness:
[T]he witness’ testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (1) rationally based
on the perception of the witness and (2) helpful to a clear
understanding of the witness’ testimony or the determination of a fact
in issue.
Evid.R. 701.
{¶41} “The distinction between lay and expert witness opinion testimony is
that lay testimony ‘results from a process of reasoning familiar in everyday life,’
while expert testimony ‘results from a process of reasoning which can be mastered
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Case No. 4-21-10
only by specialists in the field.’” State v. McKee, 91 Ohio St.3d 292, 297 (2001),
fn. 2, quoting State v. Brown, 836 S.W.2d 530, 549 (Tenn.1992). But “[t]he line
between expert testimony under Evid.R. 702 and lay opinion testimony under
Evid.R. 701 is not always easy to draw.” State v. Ndao, 2d Dist. Montgomery No.
27368, 2017-Ohio-8422, ¶ 25, quoting Hetzer-Young v. Elano Corp., 2d Dist.
Greene No. 2015-CA-38, 2016-Ohio-3356, ¶ 43. Indeed, in some cases “courts
have permitted lay witnesses to express their opinions in areas in which it would
ordinarily be expected that an expert must be qualified under Evid.R. 702.” McKee
at 296.
Although these cases are of a technical nature in that they allow lay
opinion testimony on a subject outside the realm of common
knowledge, they still fall within the ambit of [Evid.R. 701’s]
requirement that a lay witness’s opinion be rationally based on
firsthand observations and helpful in determining a fact in issue.
These cases are not based on specialized knowledge within the scope
of Evid.R. 702, but rather are based upon a layperson’s personal
knowledge and experience.
(Footnote omitted.) Id. at 297. “Thus, courts across Ohio have allowed police
officers, as lay witnesses, to offer opinions if such testimony meets the requirements
of Evid.R. 701.” State v. Duncan, 3d Dist. Allen No. 1-19-75, 2020-Ohio-3916, ¶
9.
{¶42} Even assuming that Sergeant McClain could not testify as an expert
regarding the abrasion he observed on Smith’s forehead, if his testimony satisfied
the requirements of Evid.R. 701, it would nevertheless be admissible lay opinion
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Case No. 4-21-10
testimony. At trial, Sergeant McClain testified that he has worked for OSHP for 31
years, 22 years of which he has served as a sergeant. (June 28, 2021 Tr. at 126-
127). He stated that although he does not respond to as many vehicular crashes as
he did when he began working for OSHP, he still responds to between 30 and 50
crash scenes every year. (June 28, 2021 Tr. at 126-127). He also testified he had
responded to many crash scenes where the airbags had deployed inside the involved
vehicles. (June 28, 2021 Tr. at 142). Sergeant McClain further stated he has
specialized training in the area of crash response and investigation and that his
training was up to date. (June 28, 2021 Tr. at 127-128). After reviewing his
background, Sergeant McClain then stated that, in his opinion as informed by his
experience with crashes where there was airbag deployment, the abrasion on
Smith’s forehead “would be consistent with airbag deployment.” (June 28, 2021
Tr. at 142).
{¶43} Here, the record indicates that Sergeant McClain’s opinion was
rationally based on his own perceptions of Smith, as interpreted through the lens of
his extensive experience with vehicular crashes and the aftermath of airbag
deployment. Moreover, Sergeant McClain’s opinion was helpful to the jury in
determining whether Smith was driving the F-150 at the time of the crash, which
was clearly a fact in issue. Under similar circumstances, courts have permitted law
enforcement officers to offer lay opinion testimony regarding the cause of an
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observed injury or the injury’s consistency with its purported cause. E.g., State v.
Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, ¶ 75 (officer properly
testified as lay witness regarding lacerations observed on defendant’s hands during
booking); State v. Orlandi, 10th Dist. Franklin No. 05AP-917, 2006-Ohio-6039, ¶
20 (based on his personal and professional experience, officer could properly give
lay opinion that scar was consistent with being kicked by the heel of a boot); State
v. Coit, 10th Dist. Franklin No. 02AP-475, 2002-Ohio-7356, ¶ 39-40 (experienced
law enforcement officer could opine as lay witness that the cuts on the victim’s leg
were consistent with being hit by a brick); State v. Parker, 2d Dist. Montgomery
No. 18926, 2002-Ohio-3920, ¶ 53 (detective’s opinion that victim’s wounds were
gunshot wounds was permissible as an opinion based on her perception and
experience as a police officer). Therefore, as Sergeant McClain’s testimony was
admissible as the opinion of a lay witness, the trial court did not commit error, let
alone plain error, by allowing his testimony.
{¶44} Smith’s fifth assignment of error is overruled.
C. Sixth Assignment of Error: By admitting Mast’s statement, did the trial
court violate Smith’s Sixth Amendment right of confrontation?
{¶45} In his sixth assignment of error, Smith argues that the trial court erred
by admitting Mast’s statement under the forfeiture by wrongdoing exception. Smith
maintains that the trial court should not have admitted Mast’s statement because the
State, as the proponent of Mast’s statement, failed to prove that Mast was
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unavailable as required to admit her statement. He claims that the admission of
Mast’s statement violated his Sixth Amendment right to confront Mast concerning
the contents of her statement.
i. Applicable Law & Standard of Review
{¶46} “Although evidentiary decisions on hearsay are typically reviewed for
an abuse of discretion, courts are instructed to ‘review de novo evidentiary rulings
that implicate the Confrontation Clause.’” State v. Artis, 3d Dist. Logan No. 8-18-
40, 2019-Ohio-2070, ¶ 16, quoting State v. McKelton, 148 Ohio St.3d 261, 2016-
Ohio-5735, ¶ 97.
{¶47} The Confrontation Clause of the Sixth Amendment to the United
States Constitution provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right * * * to be confronted with the witnesses against him.” The
Confrontation Clause prohibits “admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination.” Crawford v. Washington, 541
U.S. 36, 53-54, 124 S.Ct. 1354 (2004).
{¶48} The first question in determining whether a defendant’s right to
confrontation has been violated is frequently whether the statement of the non-
appearing witness is testimonial in nature. “[T]estimonial statements are those
made for ‘a primary purpose of creating an out-of-court substitute for trial
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Case No. 4-21-10
testimony.’” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 40,
quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143 (2011). Where a
statement is made during a police interrogation, the statement is testimonial “when
the circumstances objectively indicate that there is no * * * ongoing emergency, and
that the primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S.
813, 822, 126 S.Ct. 2266 (2006). In contrast, a statement made to police during an
interrogation is nontestimonial if the “circumstances objectively indicat[e] that the
primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency.” Id. “Only testimonial hearsay implicates the Confrontation
Clause.” McKelton at ¶ 185. “If the statement is nontestimonial, it is merely subject
to the regular admissibility requirements of the hearsay rules.” State v. Peeples, 7th
Dist. Mahoning No. 07 MA 212, 2009-Ohio-1198, ¶ 19.
{¶49} Although the Confrontation Clause generally bars the admission of an
unavailable witness’s testimonial statement if the defendant did not have a prior
opportunity to cross-examine the witness regarding their statement, such a statement
“may nevertheless be admissible under one of the two historical exceptions to the
Confrontation Clause recognized by the U.S. Supreme Court—forfeiture by
wrongdoing and dying declarations.” Artis, 2019-Ohio-2070, at ¶ 14. The
exception relevant here is forfeiture by wrongdoing. “[W]hen defendants seek to
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undermine the judicial process by procuring or coercing silence from witnesses and
victims, the Sixth Amendment does not require courts to acquiesce.” Davis at 833.
Defendants do not have a duty to assist the State in proving their guilt, but they do
have a duty not to impair the integrity of the criminal-trial system. Id. When a
defendant does so by obtaining the absence of a witness through wrongdoing, the
defendant “forfeits the constitutional right to confrontation.” Id. Thus, the doctrine
of forfeiture by wrongdoing “extinguishes confrontation claims on essentially
equitable grounds.” Crawford at 62.
{¶50} The common-law doctrine of forfeiture by wrongdoing is codified in
Evid.R. 804(B)(6). See Giles v. California, 554 U.S. 353, 367, 128 S.Ct. 2678(2008) (explaining that Fed.R.Evid. 804(b)(6) codified the forfeiture doctrine); 2001
Staff Notes, Evid.R. 804(B)(6) (explaining that Evid.R. 804(B)(6) is “patterned on
the federal rule” and “codifies a principle that has been recognized at common-law
in Ohio”). Evid.R. 804(B)(6) provides:
(B) Hearsay exceptions. The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
***
(6) Forfeiture by Wrongdoing. A statement offered against a party
if the unavailability of the witness is due to the wrongdoing of the
party for the purpose of preventing the witness from attending or
testifying. However, a statement is not admissible under this rule
unless the proponent has given to each adverse party advance written
notice of an intention to introduce the statement sufficient to provide
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the adverse party a fair opportunity to contest the admissibility of the
statement.
{¶51} For a witness’s statement to be admitted under the forfeiture by
wrongdoing exception, “the State must show by a preponderance of the evidence:
(1) the defendant’s wrongdoing resulted in the witness’s unavailability and (2) one
purpose was to cause the witness to be unavailable at trial.” Artis at ¶ 16. The
forfeiture rule applies only “when the defendant engaged in conduct designed to
prevent the witness from testifying.” (Emphasis sic.) Giles at 359. However, the
State need not establish that the defendant was motivated solely by a desire to stop
the witness from testifying. State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, ¶
90. Rather, it is enough for the State to show that the defendant “‘was motivated in
part by a desire to silence the witness.’” (Emphasis sic.) Id., quoting United States
v. Houlihan, 92 F.3d 1271, 1279 (1st Cir.1996).
ii. The Trial Court’s Findings Regarding Unavailability & Admissibility
{¶52} On the first day of Smith’s trial, June 28, 2021, the State presented the
testimony of several witnesses, after which it requested a short recess to address an
issue regarding the unavailability of Mast as a witness. Following an off-the-record
in-chambers discussion, the trial court stated on the record that “the State indicated
in chambers that they intended to call Ms. [Mast] as a witness * * * and had her
served with the subpoena to require her attendance beginning at 11:00 o’clock
today,” but that Mast failed to appear as commanded by the subpoena. (June 28,
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2021 Tr. at 204). Indeed, the record reflects that on May 4, 2021, the State issued a
subpoena requiring Mast to appear in court at 11:00 a.m. on June 28, 2021, and that
Mast was personally served with the subpoena at a Defiance-area address on May
7, 2021. (Doc. No. 47).
{¶53} The trial court, the prosecutor, and Smith’s trial counsel then engaged
in the following dialogue:
[Trial Court]: After further discussion with counsel in chambers
and review of the hearsay rules, the Court has also
been made aware that the State is possessed of a
written statement provided by Ms. Mast to law
enforcement and that the State in her absence is
seeking to admit that statement.
[Prosecutor]: That’s correct, Your Honor.
[Trial Court]: It is further my understanding between discussion
with both State and defense counsel in chambers that
there exist certain recorded telephone conversations
from the Corrections Center of Northwest Ohio
[(“CCNO”)] between [Smith] and this witness.
[Prosecutor]: Correct.
[Trial Counsel]: That’s correct, Your Honor.
[Trial Court]: And the substance of those conversations were
represented by the State and * * * what’s the
substance of those conversations * * *?
[Prosecutor]: Thank you, Your Honor. It has to deal with two
different conversations that took place. The first
conversation that took place involved this Defendant
Loren Smith and Ms. Mast. Mr. Smith had
contacted Ms. Mast; he had just gotten off the phone
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with his mother wherein they had discussed a
conversation that took place between [Smith’s trial
counsel] and Ms. Mast regarding her testimony and
certain aspects of that testimony. Mr. Smith began
to aggressively confront Ms. Mast about that
testimony, about how she needs to keep it simple and
plead the Fifth with regards to that. The next phone
conversation that took place it’s indicating that Ms.
Mast had intentions of leaving the area, she
indicated that she was going to be burning all her
stuff and packing her bags and she was going to gone
[sic]. She made comments that if you go down, I’m
going to go down with you, and to the like. At this
time, we would ask the Court to consider her
unavailable, declarant at this time.
[Trial Court]: First of all, with regard to those conversations, those
are from CCNO and are recorded?
[Prosecutor]: Correct and they have been provided to [Smith’s
trial counsel].
[Trial Court]: And [Smith’s trial counsel] you’ve had an
opportunity to hear those conversations.
[Trial Counsel]: I did Your Honor and I did review those yesterday.
[Trial Court]: Okay. I could either have them played but are those
based on – I’m obviously soliciting professional
statements from both counsel, but are those a fair
characterization of the conversations?
[Trial Counsel]: That would be fair Your Honor, and no need to play
those recordings.
(June 28, 2021 Tr. at 204-206). The CCNO recordings are not in the record, and it
cannot be determined from this dialogue when these telephone conversations took
place or when exactly the State became aware of them. However, on the morning
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of the first day of trial, Monday, June 28, 2021, the State filed two supplemental
discovery responses indicating that several telephone conversations had been
provided to Smith, including a “6/24/21 MAST/SMITH CCNO Phone Call,” a
“6/24/21 SMITH CCNO Phone Call,” and a “SMITH/MAST CCNO Phone Call.”
(Doc. Nos. 58, 59). From this additional discovery, it appears the earliest call was
made on Thursday, June 24, 2021, just four days prior to the start of the trial.2 The
proofs of service on the State’s supplemental responses indicated that the telephone
conversations had been provided to Smith’s trial counsel on Sunday, June 27, 2021.
(Doc. Nos. 58, 59).
{¶54} Based on the State’s representations and Smith’s agreement to the
characterization of the phone calls, the trial court found “by preponderance of the
evidence that [Smith] procured the unavailability, under the rules of evidence,
procured the unavailability of [Mast] and that the statement would therefore be
admissible on that basis.” (June 28, 2021 Tr. at 206-207). The trial court then
observed:
Counsel have also in chambers made the Court aware of the content
of the statement that they seek to admit, wherein Ms. Mast in that
statement indicates her belief that she may have personal criminal
2
In its appellate brief, the State asserts the wrongdoing occurred on Sunday, June 27, 2021, just prior to trial.
(Appellee’s Brief at 20). While this assertion may explain the State’s apparent lack of additional efforts to
obtain Mast’s presence at trial, we are bound to consider only what is in the record before us. The State did
not have the recordings made a part of the record for our consideration and defense counsel specifically
advised the trial court it was unnecessary to play the phone calls on the record. Although the situation
regarding Mast’s failing to appear arose in the midst of trial during the State’s presentation of evidence, both
parties would have been better served if a more deliberate effort had been made to create a complete record
for appellate review.
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responsibility for assisting [Smith] in connection with this entire
situation. That being the case, under the hearsay exception, * * * the
witness being unavailable insofar as she’s refused to comply with the
duly served subpoena, based on her unavailability that statement
would be admissible under * * * [Evid.R. 804(B)(3)] as a statement
against penal or pecuniary interest because it’s clearly from the
content of the statement given against her potential penal interest. So,
the statement would be admissible based on forfeiture and the
defendant procuring her [un]availability. If it were not for whatever
reason available to be admitted under that, it would be admissible
under a declarant unavailable statement against pecuniary or penal
interest. So, in either legal basis that statement would be admissible.
(June 28, 2021 Tr. at 207).
{¶55} Smith’s trial counsel then objected to the admission of Mast’s
statement specifically “on Sixth Amendment grounds with not being able to
confront [her] in regards to her testimony regarding that statement.” (June 28, 2021
Tr. at 208). The trial court overruled the objection. (June 28, 2021 Tr. at 208). The
trial court then addressed the matter of Mast’s potential appearance for the second
day of trial on June 29, 2021. The trial court noted that Smith “had [Mast] served
with a subpoena for tomorrow morning as well.” (June 28, 2021 Tr. at 208). The
record reflects that on June 17, 2021, Smith issued a subpoena requiring Mast to
appear in court at 9:00 a.m. on June 29, 2021, and that Mast was personally served
with the subpoena just a week earlier on June 21, 2021, at the same Defiance-area
address. (Doc. No. 52). The trial court indicated that if Mast appeared on Smith’s
subpoena, her statement “could be addressed either through cross-examination of
her if called as a witness for the defense or on rebuttal * * * if she appear[ed]
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pursuant to his subpoena having ignored your subpoena.” (June 28, 2021 Tr. at
209). From the record, it does not appear that Mast attended the second day of trial.
iii. The trial court did not err by admitting Mast’s statement because her
statement was admissible under the forfeiture by wrongdoing exception.
{¶56} Initially, we find that Mast’s statement to Sergeant Moser was
testimonial. Mast made her statement to Sergeant Moser on March 15, 2019—more
than a week after the crash. By this time, law enforcement officers were not faced
with an ongoing emergency that Mast’s statement could have helped them resolve.
Furthermore, based on the contents of the statement, the questions Sergeant Moser
posed to Mast, and the setting in which the statement was given, it is evident that
the primary purpose of Sergeant Moser’s questioning was to gather Mast’s
recollections of past events potentially relevant to a later criminal prosecution of
Smith and to establishing his criminal culpability. Thus, Mast’s statement to
Sergeant Moser was clearly testimonial in nature. Moreover, there is nothing in the
record suggesting that Smith had a prior opportunity to cross-examine Mast
regarding the contents of her statement. Consequently, Mast’s statement was
inadmissible under the Confrontation Clause unless the forfeiture by wrongdoing
exception applied.3
3
We note that while the trial court relied on the statement against penal interest hearsay exception contained
in Evid.R. 804(B)(3) as an alternative to admit Mast’s statement, under the circumstances, Evid.R. 804(B)(3)
could not have served as a separate and sufficient basis to admit Mast’s statement. Under Crawford,
unconfronted testimonial statements like Mast’s “are not subject to the exceptions to the hearsay rules.” Artis,
2019-Ohio-2070, at ¶ 14. Instead, such statements are admissible only under the two longstanding historical
exceptions recognized by the Supreme Court of the United States. Id. Although Evid.R. 804(B)(3) is an
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{¶57} Turning to that critical matter, the record establishes that two of the
requirements for application of the forfeiture by wrongdoing exception were easily
satisfied. First, based on the prosecutor’s reciting the nature of the phone calls
between Smith and Mast and defense counsel’s agreeing to their characterization, it
is evident Smith engaged in wrongdoing when he “aggressively confront[ed]” Mast
about her testimony and about the need for her to keep her testimony “simple and
plead the Fifth with regards to that.” See Steele v. Taylor, 684 F.2d 1193, 1201 (6th
Cir.1982) (stating that “[w]rongful conduct” has been held to include “a defendant’s
direction to a witness to exercise the Fifth Amendment privilege”); but see 2001
Staff Notes, Evid.R. 804(B)(6) (stating that “[e]ncouraging a witness to invoke a
valid privilege, such as the Fifth Amendment, * * * does not trigger [Evid.R.
804(B)(6)] because such conduct is not wrongdoing”). It is obvious that Smith’s
intent in engaging in this conduct was to render Mast unavailable to testify at his
trial. Moreover, the second phone call evidences the success Smith had in keeping
Mast from testifying as she stated her intentions to leave the area and be “gone.”
{¶58} Thus, the sole remaining issue is whether the trial court erred in
finding that Smith’s wrongdoing resulted in Mast’s unavailability as a witness. As
defined in Evid.R. 804, “‘[u]navailability as a witness’ includes any of the following
exception to the rule against hearsay, it is not an exception to the Sixth Amendment’s requirement that a
defendant have the opportunity to confront a witness regarding their testimonial statements. Accordingly,
because Mast’s statement was testimonial in nature, it could only have been admitted under the forfeiture by
wrongdoing exception.
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situations in which the declarant * * * is absent from the hearing and the proponent
of the declarant’s statement has been unable to procure the declarant’s attendance *
* * by process or other reasonable means.” Evid.R. 804(A)(5). In criminal cases,
“[a] witness is not considered unavailable unless the prosecution has made
reasonable efforts in good faith to secure his presence at trial.” State v. Keairns, 9
Ohio St.3d 228, 230 (1984), citing Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318(1968). “‘The lengths to which the prosecution must go to produce a witness * * *
is a question of reasonableness.’” Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531(1980),4 quoting California v. Green, 399 U.S. 149, 189, 90 S.Ct. 1930 (1970), fn.
22 (Harlan, J., concurring). When a witness does not appear at trial, “it is always
possible to think of additional steps that the prosecution might have taken to secure
the witness’ presence, but the Sixth Amendment does not require the prosecution to
exhaust every avenue of inquiry, no matter how unpromising.” (Internal citation
omitted.) Hardy v. Cross, 565 U.S. 65, 71-72, 132 S.Ct. 490 (2011). Ultimately,
what suffices as a reasonable, good-faith effort on the part of the prosecution varies
depending on the facts and circumstances of each case. State v. Tabor, 12th Dist.
Warren No. CA2011-07-076, 2012-Ohio-4642, ¶ 14.
{¶59} As the proponent of the evidence, “[t]he state has the burden of
proving both that the witness is unavailable and that it made reasonable, good faith
4
Roberts was abrogated in substantial part by Crawford, though on other grounds.
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efforts to secure the witness’s attendance.” State v. Parker, 6th Dist. Lucas No. L-
18-1238, 2020-Ohio-4607, ¶ 90. Although “testimony of witnesses rather than
hearsay not under oath” is usually demanded of the State before its witness can be
declared unavailable, the State may be relieved of this burden if “unavailability is
conceded by the [defendant].” Keairns at paragraph three of the syllabus.
{¶60} Here, the State did not present any testimony to establish Mast’s
unavailability. Instead, the State pointed to (1) the subpoenas that had been served
on Mast, (2) Smith’s wrongdoing as evidenced in the recorded phone calls and
conceded to by defense counsel, (3) Mast’s statement that she had no intentions of
attending or testifying at Smith’s trial, and (4) her subsequent failure to appear.
Under the particular circumstances of this case, where these points were conceded
or not disputed by Smith’s trial counsel, this was enough for the State to establish
that Mast was unavailable and that Smith procured Mast’s unavailability. First, in
acknowledging that the State accurately represented the contents of the
conversations between Smith and Mast, Smith’s trial counsel effectively conceded
that Mast was unavailable. Given that Mast clearly failed to appear upon her
subpoena, Smith’s trial counsel acceded to the State’s request when he agreed that
the State had accurately represented the contents of the conversations, which
supported that Mast would not testify despite being served with the subpoenas.
From the record, it appears the trial court and the State interpreted Smith’s trial
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counsel’s concession as having this effect. Furthermore, Smith’s trial counsel
acquiesced to the fact that the State had made some reasonable good-faith effort to
secure Mast’s attendance insofar as he did not dispute that Mast had been served
with the State’s subpoena or challenge whether this was a reasonable effort to secure
her attendance. See State v. Bragg, 2 Ohio App.3d 193, 195 (10th Dist.1981)
(holding that several efforts to subpoena a witness at different addresses were
indicative that the proponents of the witness’s testimony had been unable to secure
attendance of the witness by process). Significantly, at no time did Smith’s attorney
lodge an objection to the introduction of Mast’s statement based specifically upon
the State’s failure to competently establish that she was unavailable.
{¶61} We are also mindful that Smith’s wrongdoing occurred only days
before the commencement of trial. Both counsel for Smith and the State had
successfully subpoenaed Mast, who was scheduled to appear as a prosecution
witness on the morning of the first day of trial. Thus, the court and counsel were
reacting to Smith’s wrongdoing as they learned the consequences of it by Mast’s
failure to appear.
{¶62} To be clear, determining whether the State sufficiently demonstrated
Mast’s unavailability would be more straightforward if the State had put on the
record what it had done, other than serving its subpoena on Mast, to secure Mast’s
attendance at Smith’s trial. In a particular case, the presence or absence of such
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Case No. 4-21-10
additional efforts might be determinative of whether the State made a reasonable
good-faith effort to secure the witness’s attendance and thus of whether the witness
is truly unavailable. The need for such a demonstration may be intensified in a case
where wrongdoing by the defendant was discovered well in advance of trial.
{¶63} In any event, given the specific facts of this case, where the
wrongdoing was not learned of until the eve of trial, and especially considering
Smith’s trial counsel’s agreement with or acquiescence to the bases of the State’s
request, we find the State made a reasonable good-faith effort to secure Mast’s
attendance. Therefore, it was not error for the trial court to declare Mast unavailable
or for the trial court to conclude that Smith procured Mast’s unavailability.
{¶64} Smith raises an additional argument for the first time on appeal
objecting to the statement being admitted in violation of Evid.R. 804(B)(6)’s
qualification that “a statement is not admissible under this rule unless the proponent
has given to each adverse party advance written notice of an intention to introduce
the statement sufficient to provide the adverse party a fair opportunity to contest the
admissibility of the statement.” However, because this argument was not raised in
the trial court, we need not consider it on appeal.
Arguments raised for the first time on appeal are generally
barred. Such arguments are barred by the doctrine of waiver for
failure to raise these arguments before the trial court. It is well-
established that a party cannot raise any new issues or legal theories
for the first time on appeal * * *. Litigants must not be permitted to
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hold their arguments in reserve for appeal, thus evading the trial court
process.
State v. Crayton, 3d Dist. Crawford No. 3-22-10, 2022-Ohio-3183, ¶ 10, quoting
State v. Talley, 6th Dist. Lucas Nos. L-20-1131 and L-20-1132, 2021-Ohio-2558, ¶
22, quoting Cawley JV, L.L.C. v. Wall St. Recycling, L.L.C., 8th Dist. Cuyahoga No.
102121, 2015-Ohio-1846, ¶ 17.
{¶65} Additionally, we note that the statement was provided by the State in
its response to Smith’s discovery request. Because the impact of the wrongdoing
was only discovered when Mast failed to comply with the mandate of her subpoena,
there was no opportunity for the State to comply with the rule. Nevertheless, the
record reflects that Smith did have an opportunity to contest the admissibility of the
statement.
{¶66} Accordingly, we conclude that the trial court did not err by admitting
Mast’s written statement under the forfeiture by wrongdoing exception. Smith’s
sixth assignment of error is overruled.
D. Second Assignment of Error: Are Smith’s convictions against the manifest
weight of the evidence?
{¶67} In his second assignment of error, Smith argues that his convictions
are against the manifest weight of the evidence. Specifically, Smith argues that the
greater quantity of credible evidence established that he was already at the
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Gardenscape facility by the time of the crash, thus making it impossible for him to
have been driving the F-150 at the time it collided with Huepenbecker’s vehicle.
i. Standard for Manifest-Weight Review
{¶68} In determining whether a conviction is against the manifest weight of
the evidence, a reviewing court must examine 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. Thompkins, 78 Ohio St.3d 380,
387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A
reviewing court must, however, allow the trier of fact appropriate discretion on
matters relating to the weight of the evidence and the credibility of the
witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the
manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs
heavily against the conviction,’ should an appellate court overturn the trial court’s
judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9,
quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
ii. Smith’s convictions are not against the manifest weight of the evidence.
{¶69} Smith argues that his convictions are against the manifest weight of
the evidence because “[t]he record is filled with conflicting testimony, none of
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which fits the [State’s] timeline to suggest that [he] was operating the F-150 on
March 7, 2019, at 5:55 a.m.” To support his position, Smith points to Mast’s
statement, wherein she indicated that she had picked Smith up at 5:30 a.m. and drove
him directly to work. He also notes that his timecard showed that he clocked into
work at Gardenscape at 5:43 a.m., which was consistent with the timeline in Mast’s
statement. In addition, Smith relies on Pratt’s testimony that he first saw Smith at
around 6:35 a.m. Smith contends that if he “clocked into work at 5:43 a.m. and
started fires that morning, it lines up with [Pratt’s] testimony that he saw [Smith]
around 6:35 a.m.” Finally, Smith points to Bennett’s testimony that she saw the
white vehicle in her driveway between 7:00 and 7:30 a.m. Smith argues that
Bennett’s testimony “is inconsistent with [the State’s] theory that it was [Mast’s]
vehicle in [Bennett’s] driveway, and that she picked [Smith] up after the accident.”
{¶70} We acknowledge the inconsistencies in some of the State’s evidence.
For example, if the State’s theory—that Mast picked Smith up from Bennett’s
driveway shortly after the crash and drove him to work—is correct, the vehicle
Bennett claimed to have observed in her driveway between 7:00 a.m. and 7:30 a.m.
cannot have been Mast’s vehicle. Similarly, Mast’s claim that she picked Smith up
at 5:30 a.m. is not compatible with the State’s assertion that Smith crashed the F-
150 into Huepenbecker’s vehicle around 5:55 a.m. However, when assessing a
witness’s testimony or the statement of an out-of-court declarant, the finder of fact
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“may take note of any inconsistencies and resolve them accordingly, ‘believ[ing]
all, part, or none of a witness’s testimony’” or statement. (Bracketing in original.)
State v. Carter, 3d Dist. Allen Nos. 1-21-19 and 1-21-20, 2022-Ohio-1444, ¶ 97,
quoting State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21.
Thus, in considering Bennett’s testimony, the jury could reasonably find that
Bennett had in fact seen the unfamiliar white vehicle in her driveway but that she
simply misremembered the time at which she saw it. Likewise, in evaluating Mast’s
statement, the jury could find that Mast was mistaken about the time at which she
picked Smith up or that she was being untruthful, but that other parts of her
statement were entirely credible. Similarly, it was within the province of the jury
to reject Smith’s claim that his timecard accurately reflected the time at which he
arrived at Gardenscape and that he was not seen by his coworkers until slightly later
in the morning because he had been outside starting fires under the conveyor belts.
Indeed, the State’s evidence permitted a determination by the jury that someone else
had clocked Smith in or that the time clock had been manipulated.
{¶71} In light of the substantial evidence identifying Smith as the driver of
the F-150, we cannot say that the jury lost its way by resolving any of these
evidentiary inconsistencies in favor of the State. The State’s evidence showed that
Smith was still in possession of the F-150 on the evening of March 6, 2019, just
hours before the crash. At this time, no one other than Smith was seen with the F-
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150. Cold cans of Natural Ice—apparently one of Smith’s beers of choice—were
discovered inside of the F-150. The canine track from the F-150 led to Bennett’s
driveway, where Bennett reported seeing a vehicle that, according to Sergeant
Moser, fit the general description of Mast’s vehicle. Mast indicated in her statement
that she “pulled into the driveway” when picking Smith up, thus supplying the
missing link between Stecher’s canine track and Bennett’s observation of the white
car in her driveway. Hours after the crash, Sergeant McClain observed a mark on
Smith’s forehead that, in Sergeant McClain’s experience, was consistent with airbag
deployment. The evidence showed that the F-150’s airbag had deployed during the
crash. Last, but certainly not least, Smith admitted to Pratt that he had crashed the
F-150 into another vehicle and fled from the scene of the collision. Pratt’s account
of Smith’s admission was echoed in Mast’s statement insofar as Mast reported
overhearing Smith’s unidentified friend tell Smith that he would have “just hit the
deer instead of went [sic] left of center.”
{¶72} In sum, the State presented considerable evidence supporting that
Smith was driving the F-150 at the time it collided with Huepenbecker’s vehicle.
Therefore, having weighed the evidence and all reasonable inferences, and
considering the credibility of the witnesses, we cannot conclude that the jury clearly
lost its way and created such a manifest miscarriage of justice that Smith’s
convictions must be reversed.
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{¶73} Smith’s second assignment of error is overruled.
E. Fourth Assignment of Error: Did Smith receive ineffective assistance of
counsel?
{¶74} In his fourth assignment of error, Smith argues that he received
ineffective assistance of counsel. Smith maintains that his trial counsel was
ineffective for two reasons. First, Smith takes issue with his trial counsel’s failure
to object to parts of Pratt’s testimony, specifically Pratt’s testimony about what
Smith said to him at Gardenscape on the morning of March 7, 2019, and Pratt’s
testimony about comments Lucas Manley—the other person who was working on
the F-150—made that same morning. Smith argues that Pratt’s testimony contained
inadmissible hearsay, to which his trial counsel ought to have objected. In addition,
Smith contends that his trial counsel was ineffective for failing to present an alibi
defense. Smith notes that he had filed a notice of alibi indicating that John Smith
(“John”), another Gardenscape employee, would be able to verify that he was at
work at Gardenscape at the time of the crash, but that his trial counsel failed to call
John to testify at trial.
i. Ineffective-Assistance-of-Counsel Standard
{¶75} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” State
v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A
defendant asserting a claim of ineffective assistance of counsel must establish: (1)
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counsel’s performance was deficient or unreasonable under the circumstances; and
(2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d
303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052(1984). In order to show counsel’s conduct was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
prompted by reasonable professional judgment. Strickland at 689. Counsel is
entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).
Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute
ineffective assistance of counsel. State v. Frazier, 61 Ohio St.3d 247, 255 (1991).
Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142
(1989).
{¶76} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.’” Id., quoting Strickland at 694.
ii. Smith’s trial counsel did not perform deficiently by failing to object to
hearsay or purported hearsay.
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{¶77} Smith’s first argument is that his trial counsel performed unreasonably
by failing to object to Pratt’s testimony that Smith told him that “he had swerved to
miss a deer and hit a car head on, and * * * ran from the scene.” Smith maintains
that this alleged statement to Pratt constituted impermissible hearsay and that its
admission prejudiced his defense. However, under Evid.R. 801(D)(2)(a), “[a]
statement is not hearsay if * * * [t]he statement is offered against a party and is * *
* the party’s own statement, in either an individual or a representative capacity * *
*.” Thus, “a defendant’s own out-of-court statements are not generally considered
hearsay when offered against him at trial.” State v. Heald, 11th Dist. Lake Nos.
2021-L-111 and 2021-L-112, 2022-Ohio-2282, ¶ 15, citing State v. Leonard, 104
Ohio St.3d 54, 2004-Ohio-6235, ¶ 112. Accordingly, Pratt’s recollections of what
Smith supposedly said to him on the morning of March 7, 2019, do not qualify as
hearsay.
{¶78} Smith further claims that his trial counsel performed deficiently by not
objecting to Pratt’s testimony concerning comments Manley purportedly made on
the morning of March 7, 2019. At trial, Pratt testified that he knew Manley did not
work on the F-150 on the evening of March 6, 2019, because he spoke to Manley
between 5:30 a.m. and 6:00 a.m. on March 7, 2019, and Manley told him that he
intended to work on the F-150 later that day after work. (June 28, 2021 Tr. at 257-
258). Smith argues that Manley’s statement was inadmissible hearsay and that it
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“improperly bolstered [Pratt’s] credibility and [the State’s] theory that [Smith] was
the only person who could have operated the F-150 on the morning of March 7,
2019.”
{¶79} Yet, under Evid.R. 803, the rule against hearsay does not prohibit the
introduction of a “statement of the declarant’s then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive, design, mental feeling,
pain, and bodily health),” though statements “of memory or belief to prove the fact
remembered or believed” remain generally inadmissible. Evid.R. 803(3). Manley’s
statement that he intended to do repairs on the F-150 later on March 7, 2019,
supports an inference that the F-150 had not yet been fixed and returned to Pratt,
thereby making it more likely that Smith was still in possession of the F-150 that
morning. Pursuant to Evid.R. 803(3), Manley’s statement, as expressed through
Pratt, was not inadmissible hearsay.
{¶80} Therefore, Pratt’s testimony regarding Smith’s statement and
Manley’s statement was admissible under the Rules of Evidence. Consequently,
even if Smith’s trial counsel had objected to this testimony on the basis that it
contained inadmissible hearsay, the objections would have been properly overruled.
Given that any objections to this testimony would have been futile, Smith has failed
to establish that his trial counsel performed deficiently by opting not to object. See
State v. Messenger, 10th Dist. Franklin No. 19AP-879, 2021-Ohio-2044, ¶ 65-67.
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iii. Smith failed to demonstrate that his trial counsel performed deficiently in
pursuing his alibi defense.
{¶81} Smith additionally claims that he was denied the effective assistance
of counsel when his trial counsel “failed to issue a subpoena for John Smith’s
testimony at trial and failed to call him as a witness.” But this is inaccurate. The
record reflects that Smith’s trial counsel issued a subpoena for John on June 17,
2021, though efforts to serve the subpoena on John proved unsuccessful. (Doc. No.
52). Smith does not argue, and the record does not contain evidence to support, that
Smith’s trial counsel would have been able to secure John’s appearance at trial
through means other than subpoena and that his trial counsel failed, without good
reason, to use those means. Therefore, on this record, Smith has failed to
demonstrate that his trial counsel performed deficiently by failing to present John’s
testimony at trial. Furthermore, in the absence of John’s testimony, it was not
unreasonable for Smith’s trial counsel to ground Smith’s defense in cross-
examination of the State’s witnesses and in highlighting certain parts of the State’s
evidence, such as Mast’s statement that she picked Smith up at 5:30 a.m. and
Smith’s timecard, that were inconsistent with its theory of the case. Thus, although
Smith’s trial counsel did not exactly present an alibi defense, his testing of the
State’s case was structured in a way so as to suggest to the jury that Smith was at
Gardenscape, and not in the F-150, at the time of the crash. Here too Smith has
failed to establish that his trial counsel performed deficiently or unreasonably.
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{¶82} Smith’s fourth assignment of error is overruled.
F. Seventh Assignment of Error: Were Smith’s due-process rights violated
when the trial court sentenced him to 8 to 12 years in prison for aggravated
vehicular assault?
{¶83} In his seventh assignment of error, Smith argues that the trial court
erred by sentencing him to 8 to 12 years in prison for aggravated vehicular assault
because the indefinite-sentencing provisions of the Reagan Tokes Law are
unconstitutional. Specifically, Smith claims that these provisions violate his right
to due process.
{¶84} Smith’s challenge does not present a matter of first impression in this
court. Since the indefinite-sentencing provisions of the Reagan Tokes Law went
into effect in March 2019, we have repeatedly been asked to address the
constitutionality of these provisions. We have invariably concluded that the
indefinite-sentencing provisions of the Reagan Tokes Law do not infringe on
defendants’ due-process rights. E.g., State v. Crawford, 3d Dist. Henry No. 7-20-
05, 2021-Ohio-547, ¶ 11; State v. Wolfe, 3d Dist. Union No. 14-21-16, 2022-Ohio-
96, ¶ 21. Smith has not presented us with any compelling reason to depart from our
earlier precedent on due-process challenges to the indefinite-sentencing provisions
of the Reagan Tokes Law, and we decline to do so. Accordingly, we conclude that
the trial court did not err by sentencing Smith to 8 to 12 years in prison for
aggravated vehicular assault.
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{¶85} Smith’s seventh assignment of error is overruled.
IV. Conclusion
{¶86} For the foregoing reasons, Smith’s assignments of error are overruled.
Having found no error prejudicial to the appellant herein in the particulars assigned
and argued, we affirm the judgment of the Defiance County Court of Common
Pleas.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
/jlr
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