State v. Proffitt ( 2017 )


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  • [Cite as State v. Proffitt, 2017-Ohio-1236.]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    BUTLER COUNTY
    STATE OF OHIO,                                       :
    CASE NOS. CA2016-07-134
    Plaintiff-Appellee,                          :               CA2016-07-135
    :           OPINION
    - vs -                                                        4/3/2017
    :
    WENDELL PROFFITT, JR.,                               :
    Defendant-Appellant.                         :
    CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT
    Case Nos. 16CRB01150 and 16CRB01151
    Neal D. Schuett, city of Hamilton prosecutor, 345 High Street, 2nd Floor, Hamilton, Ohio
    45011, for plaintiff-appellee
    Christopher P. Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for defendant-
    appellant
    M. POWELL, J.
    {¶ 1} Defendant-appellant, Wendell Proffitt, appeals his convictions in the Hamilton
    Municipal Court for domestic violence.
    {¶ 2} Appellant was charged with one count of domestic violence in violation of R.C.
    2919.25(A), a misdemeanor of the first degree, arising from an incident on January 11, 2016,
    and a separate count of domestic violence in violation of R.C. 2919.25(C), a misdemeanor of
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    the fourth degree, arising from an incident on March 26, 2016. The alleged victim of the
    offenses was Jennifer Morris ("Jennifer"), appellant's wife, with whom he was residing at the
    time of the incidents. Appellant entered pleas of not guilty and the charges proceeded to a
    bench trial. At trial, the state called Jennifer and Hamilton Police Officer Danielle Sorber as
    witnesses. The state offered into evidence two separate statements Jennifer had written
    concerning the January 11, 2016 incident and the March 26, 2016 incident. The statements
    were written on Hamilton Police Department statement forms (the two statements will be
    respectively referred as the January Statement and the March Statement, and collectively as
    "the Statements"). Appellant testified on his own behalf.
    {¶ 3} Officer Sorber testified that on January 11, 2016, she responded to a residence
    on Ross Avenue in Hamilton, Ohio upon report of a fight. Upon arrival, the officer found
    Jennifer and Jennifer's mother. Appellant was not present. Officer Sorber observed red
    marks on the right side of Jennifer's face consistent with fingernail scratches. The officer
    denied independent knowledge of how the scratches on Jennifer's face originated and
    acknowledged they could have been self-inflicted. The officer observed no other visible signs
    of injury or struggle upon Jennifer's person. Jennifer reported to Officer Sorber what had
    occurred. During the officer's investigation, it was discovered that Jennifer was subject to an
    outstanding warrant for "dog tags." Consequently, Officer Sorber arrested Jennifer and took
    her to the police station for booking and then to the county jail. During the booking process,
    Officer Sorber obtained the January Statement from Jennifer regarding what had transpired
    between Jennifer and appellant on January 11, 2016. The January Statement stated that
    appellant had accused Jennifer of cheating on him, began screaming at her, dug his
    fingernails into the right side of her face, and choked her. Officer Sorber stated that the
    January Statement was consistent with what Jennifer had told her about the incident at the
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    scene.
    {¶ 4} Jennifer testified that she and appellant were residing with their son at the Ross
    Avenue home on January 11, 2016. Jennifer stated that she and appellant "did argue a little
    bit" on that day, but that she did not remember if the argument became physical. Jennifer
    denied any recollection of making the January Statement. Upon being shown the statement,
    she acknowledged that it contained her handwriting and signature. She confirmed that the
    Hamilton Police Department statement form upon which the statement was written provided
    above her signature that the statement was true when it was made. However, when asked if
    the January Statement was true when she made it, Jennifer replied, "I'm not sure."
    Explaining, Jennifer stated that she has severe anxiety and that "my panic disorder makes
    everything seem a lot worse than it is."
    {¶ 5} At this juncture, the state moved the trial court to allow the January Statement
    to be read into evidence pursuant to Evid.R. 803(5), the recorded recollection exception to
    the hearsay rule. Defense counsel had no objection and the trial court directed Jennifer to
    read the January Statement.
    {¶ 6} On cross-examination, Jennifer denied any memory of what occurred on
    January 11, 2016, admitted that she "over exaggerates sometimes," and twice testified that
    she did not believe the January Statement reflected what happened. Jennifer acknowledged
    she understood it is important to be truthful when speaking with the police and that she tried
    to be truthful with them.
    {¶ 7} By March 26, 2016, Jennifer, appellant, and their son had moved to a residence
    on Forrest Avenue in Hamilton, Ohio. Jennifer stated that she and appellant had a verbal
    altercation that day over a photograph depicting Jennifer and a friend. The photograph upset
    appellant and he again accused Jennifer of cheating on him.               Jennifer denied any
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    recollection of appellant threatening her on that day. She recalled the police responded to
    her home after being called by appellant. Jennifer believed she made a written statement
    concerning her television being broken. Jennifer did not remember how the television was
    broken, but believed appellant must have broken it because she did not break it herself and
    only she and appellant were home at the time. Jennifer was then shown the March
    Statement. She did not recognize the March Statement but acknowledged it was in her
    handwriting and contained her signature, and that the Hamilton Police Department statement
    form provided above her signature that the statement was true when it was made.
    {¶ 8} At this juncture, the state apparently moved the trial court to allow Jennifer to
    read the March Statement into evidence pursuant to Evid.R. 803(5). Once again, defense
    counsel made no objection and the trial court directed Jennifer to read the March Statement.
    In the March Statement, Jennifer wrote that appellant had threatened to kill her when she
    asked him to leave the home after appellant had thrown the television into the wall.
    {¶ 9} On cross-examination, Jennifer denied recollection of writing the March
    Statement. Jennifer stated that appellant could have threatened to kill her, but that she had
    no specific recollection of such a threat.
    {¶ 10} The state rested, and without objection, the Statements were admitted into
    evidence. The trial court subsequently denied appellant's Crim.R. 29 motion for acquittal.
    {¶ 11} Appellant testified and admitted that he and Jennifer have a tumultuous
    marriage, involving frequent arguments and sometimes pushing and punching each other.
    However, appellant specifically denied scratching and choking Jennifer on January 11, 2016,
    and threatening to kill her on March 26, 2016. Appellant stated the only threat he made on
    March 26, 2016, was to end the marriage if Jennifer's behavior continued. Appellant testified
    he left the premises on March 26, 2016, because "it was best for me to leave until she got * *
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    * to a better place." Appellant further testified he called the police on March 26, 2016, to
    protect himself due to "other cases that [Jennifer] made against me."
    {¶ 12} After the close of the evidence and following closing arguments by the state
    and defense counsel, the trial court considered the evidence and stated,
    When [Jennifer] testified here today, um – she testified about
    what she said was some kind of unusual medical condition that
    she has where she can't remember things and over exaggerates
    things so much though she's on disability for it. * * * And I think
    that she said that today because she was trying to explain why
    she was lying here today and I felt like she was clearly lying
    everywhere that she could here today. Um – because she's
    trying not to have the defendant be convicted and she's trying to
    help the defendant. In this case we heard statements that the
    defendant made to the police the day that these incidents
    happened and to the extent that these statements can be
    verified. Well, there were marks on her face and they were
    scratch marks on her face and says what she said in the
    statement. The statement seemed to me the written statement
    seemed to me to be truthful renditions of what happened close in
    time to when they happened and based on both of these
    statements I'm going to find the defendant to be Guilty on both of
    these cases.1
    {¶ 13} Appellant appeals his convictions, raising three assignments of error.
    {¶ 14} Assignment of Error No. 1:
    {¶ 15} MR. PROFFITT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO
    DUE PROCESS AND FAIR TRIAL WERE VIOLATED WHEN HE RECEIVED INEFFECTIVE
    ASSISTANCE OF COUNSEL.
    {¶ 16} Appellant argues defense counsel was ineffective at trial for failing to object to
    inadmissible hearsay evidence, namely, defense counsel failed to object to Jennifer reading
    the Statements into evidence and to allowing the Statements to be admitted as exhibits.
    1. The trial court's comments reference "statements that the defendant made to the police the day these
    incidents happened." The record does not reflect that appellant, as the defendant in the trial court, made any
    statements to the police on the day of the incidents, or at any other time. We assume from the context of the trial
    court's comments that the trial court misspoke and that its reference to the "defendant" was intended as a
    reference to Jennifer.
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    {¶ 17} To prevail on an ineffective assistance of counsel claim, appellant must show
    his trial counsel's performance was deficient, and that he was prejudiced as a result. State v.
    Clarke, 12th Dist. Butler No. CA2015-11-189, 2016-Ohio-7187, ¶ 49; Strickland v.
    Washington, 
    466 U.S. 668
    , 687-688, 
    104 S. Ct. 2052
    (1984). Trial counsel's performance will
    not be deemed deficient unless it fell below an objective standard of reasonableness.
    Strickland at 688. To show prejudice, appellant must establish that, but for his trial counsel's
    errors, there is a reasonable probability that the result of his trial would have been different.
    
    Id. at 694.
    The failure to satisfy either prong of the Strickland test is fatal to an ineffective
    assistance of counsel claim. Clarke at ¶ 49. Counsel is strongly presumed to have rendered
    adequate assistance and made all significant decisions in the exercise of reasonable
    professional judgment. State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-
    4625, ¶ 7.
    {¶ 18} Before we address whether defense counsel's failure to object to the
    Statements was ineffective assistance of counsel, we first consider whether the Statements
    qualified as a hearsay exception for recorded recollection under Evid.R. 803(5).
    {¶ 19} Evid.R. 801(C) defines "hearsay" as "a statement, other than one made by the
    declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
    matter asserted." A "statement" is defined for hearsay purposes as "(1) an oral or written
    assertion or (2) nonverbal conduct of a person, if it is intended by the person as an
    assertion." Evid.R. 801(A).
    {¶ 20} Pursuant to the above definitions, the Statements were hearsay. The
    Statements were made by Jennifer other than while testifying at trial, were assertions of what
    had occurred on January 11, 2016, and March 26, 2016, and were offered by the state to
    prove what occurred on those days between Jennifer and appellant. The trial court
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    considered the Statements as substantive proof of what occurred on January 11, 2016, and
    March 26, 2016.
    {¶ 21} Hearsay is generally inadmissible, unless it falls within one of the numerous
    exceptions under Evid.R. 803 and 804. As pertinent to the instant case, Evid.R. 803(5)
    provides a hearsay exception for recorded recollection:
    A memorandum or record concerning a matter about which a
    witness once had knowledge but now has insufficient recollection
    to enable him to testify fully and accurately, shown by the
    testimony of the witness to have been made or adopted when
    the matter was fresh in his memory and to reflect that knowledge
    correctly. If admitted, the memorandum or record may be read
    into evidence but may not itself be received as an exhibit unless
    offered by an adverse party.
    {¶ 22} In order to admit a statement into evidence under Evid.R. 803(5), a party must
    establish that (1) the witness has a lack of present recollection of the recorded matter, (2) the
    recorded recollection was made at a time when the matter was fresh in the witness's
    memory, (3) the recorded recollection was made or adopted by the witness, and (4) the
    recorded recollection correctly reflects the prior knowledge of the witness. State v. Scott, 
    31 Ohio St. 2d 1
    , 6 (1972); Dayton v. Combs, 
    94 Ohio App. 3d 291
    , 300 (2d Dist.1993). If Evid.R.
    803(5) is satisfied, the statement itself may be read into evidence. State v. Trotter, 8th Dist.
    Cuyahoga No. 97064, 2012-Ohio-2760, ¶ 35.2
    {¶ 23} Under Evid.R. 803(5), the statement must correctly reflect the knowledge the
    2. Evid.R. 803(5) allows a record to be read into evidence, but specifically provides that the record itself is not to
    be admitted as an exhibit unless offered by an adverse party. Thus, Evid.R. 803(5) makes clear that although
    both are substantive evidence for a trial court (or a jury) to consider, the reading of statements into evidence is
    separate from admitting the statements as exhibits. While a trial court properly allows a statement to be read
    into evidence under Evid.R. 803(5) when the foundational requirements are met, a trial court errs in admitting the
    statement as an exhibit if it was not offered by the adverse party. See State v. Kinsel, 4th Dist. Ross No. 1141,
    1985 Ohio App. LEXIS 8339 (July 5, 1985) (while the accident report could properly be read into evidence under
    Evid.R. 803[5], the trial court erred in admitting the accident report as an exhibit where the accident report was
    not offered by the defendant); State v. Bibbs, 3d Dist. Hancock No. 5-16-11, 2016-Ohio-8396 (the trial court
    erred in allowing the reading of the statement and in admitting it as an exhibit). In the case at bar, defense
    counsel specifically acquiesced to the admission of the Statements into evidence as state exhibits.
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    witness had at the time it was recorded. 
    Id. "[Evid.R. 803(5)]
    makes explicit the requirement
    that the foundation for the introduction of the statement under this exception must be made
    by testimony of the witness himself." Evid.R. 803(5), Staff Notes; State v. Ross, 6th Dist.
    Huron No. H-11-022, 2013-Ohio-1595, ¶ 17 ("The foundation for the admission of such a
    statement under Evid.R. 803[5] must be made through the testimony of the witness himself").
    Thus, the proponent of the statement must produce affirmative proof, through the testimony
    of the witness, that the statement correctly reflects the witness's prior knowledge. The state
    failed in this regard.
    {¶ 24} Jennifer testified she was "not sure" if the January Statement accurately
    reflected what happened on January 11, 2016, because her "panic disorder makes
    everything seem a lot worse than it is." Jennifer further testified she thought she had made a
    statement concerning the March 26, 2016 incident, but did not recognize the March
    Statement when it was presented to her at trial.
    {¶ 25} The state established through Jennifer's testimony that the Statements were
    made in her handwriting and that the Hamilton Police Department forms upon which she had
    written the Statements provided above the signature line, "I have read the statement and it is
    true and correct."
    {¶ 26} However, Jennifer's mere acknowledgment that the forms upon which the
    Statements were written contain the aforementioned preprinted language does not satisfy the
    requirement under Evid.R. 803(5) that the "testimony of the witness" establish that the
    statement correctly reflects the witness's prior knowledge. Jennifer never testified that the
    Statements accurately reflected her prior knowledge of the incidents, nor may her testimony
    be so construed. Likewise, Jennifer's acknowledgment that the Statements were made in
    her handwriting does not suggest that they correctly reflect her prior knowledge of the
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    incidents.
    {¶ 27} The trial court did not believe Jennifer's testimony concerning the Statements.
    That is the trial court's prerogative as the trier of fact and we should defer to this
    determination. However, Jennifer's unbelievable testimony that the Statements did not, or
    may not, correctly reflect her prior knowledge of the incidents, is not proof that the
    Statements correctly reflected her prior knowledge. Rather, Jennifer's incredible testimony
    leaves the issue unresolved. This does not satisfy the affirmative foundational requirement
    under Evid.R. 803(5) that the testimony of the witness show that the record correctly reflects
    the witness's prior knowledge.
    {¶ 28} Furthermore, Evid.R. 803(5) is not satisfied by Jennifer's expression of a
    general recognition of the importance of being truthful with the police and that she made an
    effort to do so.3 Evid.R. 803(5) is clear that the witness's testimony must affirmatively
    establish that the statement correctly reflects prior knowledge of the witness. Evidence
    extrinsic to the witness's testimony, even if it tends to establish the trustworthiness of the
    statement, is incompetent for purposes of determining admissibility under Evid.R. 803(5).4
    {¶ 29} Based upon the foregoing, we find that the Statements were not within the
    ambit of the Evid.R. 803(5) hearsay exception. Had defense counsel objected to Jennifer
    3. This testimony was elicited during Jennifer's cross-examination and was subsequent to the trial court's ruling
    that Jennifer read the Statements into evidence pursuant to Evid.R. 803(5). Thus, this testimony could not have
    been considered by the trial court in ruling the Statements admissible.
    4. The dissent apparently construes our opinion as finding the trial court relied upon extrinsic evidence tending
    to show the Statements were trustworthy in admitting them. We make no such finding and note that none of the
    evidence extrinsic to Jennifer's testimony tending to show the Statements were trustworthy was presented until
    after the Statements had been admitted. Therefore, the trial court could not have relied upon such evidence in
    admitting the Statements. We acknowledge that there is evidence, other than Jennifer's testimony, tending to
    show that the Statements are trustworthy. However, we emphasize that admissibility under Evid.R. 803(5) is a
    threshold determination restricting establishment of certain foundational requirements to the declarant's
    testimony. Once a statement is properly admitted pursuant to Evid.R. 803(5), then, and only then, may all
    evidence reflecting upon the trustworthiness of the statement be considered in determining the weight to be
    given to the statement. This reference in the body of our opinion is intended only to address any suggestion in
    the dissent that hearsay is admissible under Evid.R. 803(5) upon a general showing that the hearsay is
    trustworthy.
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    reading the Statements into evidence and to allowing the Statements to be admitted as
    exhibits, the objection ought to have been sustained and the Statements excluded.
    {¶ 30} We now consider whether defense counsel's failure to object to the admission
    of the Statements is ineffective assistance of counsel.
    {¶ 31} As set forth above, the Strickland test consists of two prongs; a performance
    prong (did counsel's performance fall below an objective standard of reasonableness), and a
    prejudice prong (is there a reasonable probability that the result of his trial would have been
    different, but for counsel's errors). Both prongs must be established for counsel to be found
    to have provided ineffective assistance. State v. Myers, 12th Dist. Fayette No. CA2005-12-
    035, 2007-Ohio-915, ¶ 33.
    {¶ 32} The fact that the admission of the Statements was objectionable does not, in
    and of itself, establish that counsel's performance was deficient. "[A]ttorneys are given a
    'heavy measure of deference' in their decision making and there exists a 'strong presumption
    that counsel's conduct falls within the wide range of reasonable professional assistance.'"
    Id.; 
    Strickland, 466 U.S. at 689
    . Refraining from objecting to otherwise objectionable
    evidence may, depending upon the circumstances, be sound trial strategy.
    {¶ 33} It is apparent that defense counsel's trial strategy was to attack the veracity of
    the Statements rather than oppose their admissibility. In opening statement, defense
    counsel said, "I believe the statements of the witness or (sic) likely not be corroborated by the
    physical evidence that was observed by the officers." In a case such as this, where the
    state's case is dependent upon the Statements, it would be a sound trial strategy to attack
    the veracity of the Statements, if they are admitted. However, such a trial strategy does not
    exclude a primary trial strategy of opposing admission of this damaging evidence. Opposing
    admission of the Statements sacrifices nothing in terms of a trial strategy to attack the
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    veracity of the Statements. If defense counsel is unsuccessful in resisting admission of the
    Statements, he may still attack their veracity, consistent with having opposed their
    admissibility in the first instance. However, a trial strategy to accede to the admission of the
    Statements only for the opportunity to establish that they are not true, begs the question of
    why defense counsel would not initially oppose their admission. Certainly, casting Jennifer
    as generally untruthful was unnecessary, as it was the Statements and not her trial testimony
    that incriminated appellant.
    {¶ 34} No reasonable trial strategy is apparent in defense counsel's failure to object to
    the admission of the Statements, upon which the state's case depended.5 Defense counsel's
    failure to object to the admission of the Statements falls below an objective standard of
    reasonableness. Appellant has therefore satisfied the Strickland performance prong.
    {¶ 35} Consideration of the Strickland prejudice prong requires an inquiry as to
    whether there is a reasonable probability that the result of appellant's trial would have been
    different, but for counsel's error. Clearly, without the Statements, the state would have been
    unable to establish what occurred between appellant and Jennifer on January 11, 2016, and
    March 26, 2016. While Officer Sorber observed scratches on Jennifer's face on January 11,
    2016, those observations lack context absent the January Statement. The state's case was
    dependent upon the Statements. Indeed, the trial court's announcement of its verdict
    unequivocally reveals that the guilty findings were based upon the Statements: "[T]he written
    5. This is particularly true in a bench trial, such as we have in this case. In contrast, a jury trial would have
    presented a different situation. In a jury trial, defense strategy might suggest avoiding the risk of offending the
    jury by objecting to the admission of relevant, yet otherwise inadmissible, evidence and then attacking the
    reliability of the Statements during Jennifer's cross-examination. However, the risk of offending the trier of fact is
    not present in a bench trial, as a trial court is presumed to act properly in consideration of the evidence. State v.
    Eubank, 
    60 Ohio St. 2d 183
    , 187 (1979) ("[W]e may give weight to the fact that the error occurred in a trial to the
    court, rather than in a jury trial. Indeed, a judge is presumed to consider only the relevant, material and
    competent evidence in arriving at a judgment, unless the contrary affirmatively appears from the record."); State
    v. Browning, 12th Dist. Clermont No. CA94-04-022, 
    1994 WL 704903
    (Dec. 19, 1994).
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    statement seemed to me to be truthful renditions of what happened close in time to when
    they happened and based on both of these statements I'm going to find the defendant to be
    Guilty on both of these cases." Absent admission of the Statements, there is a reasonable
    probability that the results of the trial would have been different and that appellant would
    have been acquitted. Defense counsel's failure to object to the admission of the Statements
    into evidence therefore satisfies the Strickland prejudice prong.
    {¶ 36} In light of the foregoing, we find that appellant received ineffective assistance of
    counsel at trial when defense counsel failed to object to the admission of the Statements into
    evidence.6
    {¶ 37} Appellant's first assignment of error is sustained.
    {¶ 38} Assignment of Error No. 2:
    {¶ 39} THE TRIAL COURT VIOLATED MR. PROFFITT'S FEDERAL AND STATE
    CONSTITUTIONAL RIGHTS TO DUE PROCESS AND FAIR TRIAL WHEN IT ADMITTED
    INTO EVIDENCE WRITTEN STATEMENTS CONTAINING INADMISSIBLE HEARSAY.
    {¶ 40} Appellant argues the trial court erred in directing Jennifer to read the
    Statements into evidence and in admitting the Statements as exhibits.
    {¶ 41} We are mindful that the admissibility of evidence is within the sound discretion
    6. As stated earlier, Evid.R. 803(5) allows a record to be read into evidence, but specifically provides that the
    record itself cannot be admitted as an exhibit unless offered by an adverse party. "The purpose of this restriction
    is to avoid elevating the declarations contained in documents above ordinary testimonial evidence." State v.
    Davis, 11th Dist. Lake No. 92-L-089, 1993 Ohio App. LEXIS 5917, *18 (Dec. 10, 1993). In the case at bar, not
    only did Jennifer read the Statements into evidence, but the statements themselves were admitted as exhibits at
    the state's request, and not at the request of defense counsel, the adverse party. In addition, defense counsel
    informed the trial court he "would not object to their admission" as exhibits. A defense counsel's failure to object
    to the admission of statements as exhibits under Evid.R. 803(5) may constitute ineffective assistance of counsel,
    especially in a jury trial, as admitting a record as an exhibit "results in it going to the deliberation room with the
    jury and a patent danger is that it will be given undue weight by the jury." Davis at *18-19. Nonetheless, we will
    not address whether appellant received ineffective assistance of counsel when defense counsel failed to object
    to the admission of the Statements as exhibits. Nor will we address the admission of the Statements as exhibits
    separate and apart from whether the Statements come within the Evid.R. 803(5) recorded recollection hearsay
    exception. Any additional prejudice from the admission of the Statements as exhibits is marginal and
    insubstantial, particularly in a bench trial such as here.
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    of the trial court and that the trial court is entitled to our deference in making decisions upon
    the admissibility of evidence. We further recognize that decisions on the admissibility of
    evidence should not be reversed unless there is an abuse of discretion. However, the focus
    of our opinion is defense counsel's failure to invoke, by objection, the trial court's discretion to
    determine if the Statements were admissible pursuant to Evid.R. 803(5), to resist the
    admission of the evidence, and to preserve for appeal an abuse of discretion in the
    admission of inadmissible evidence.
    {¶ 42} It is not the trial court's responsibility to interject itself into defense trial strategy.
    Trial strategy may be promoted by the admission of otherwise inadmissible evidence.
    Jennifer was the first witness to testify at trial and the Statements were admitted during the
    state's case-in-chief, direct examination of Jennifer and before defense counsel had cross-
    examined her. Defense counsel declined the trial court's invitation to object to the January
    Statement and interjected no objection to the March Statement. At this early stage of the
    trial, the trial court could have no inkling of what the evidence would show and what the
    defense strategy may be. Certainly, the trial court did not abuse its discretion by admitting
    the Statements in that context. To have done otherwise would risk substituting the trial
    court's conception of sound trial strategy for defense counsel's.
    {¶ 43} Because defense counsel did not object to the admissibility of the Statements,
    and the trial court did not discuss Evid.R. 803(5) in admitting them, we cannot definitively
    know if the trial court considered the foundational requirements of Evid.R. 803(5) in admitting
    the Statements, or whether the Statements were admitted merely because defense counsel
    did not oppose their admission.7 The record suggests the latter. When the state moved for
    7. At the conclusion of the evidence, the trial court noted that Officer Sorber's observations that Jennifer had
    scratches on her face corroborated the Statements. The court then went on to state that the Statements were
    "truthful renditions of what happened close in time to when they happened." However, these observations and
    statements by the trial court were not made in conjunction with the admission of the Statements, but rather when
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    the admission of the January Statement under Evid.R. 803(5), the trial court inquired of
    defense counsel, "Well, * * * what do you think about that?" When defense counsel indicated
    he had no objection to the admission of the January Statement, the trial court stated, "You
    don't object? Okay. Why don't you read the statement for us?"
    {¶ 44} The reality is, trial courts often permit the admission of inadmissible evidence
    when there is no objection. In the usual case, this is not an abuse of discretion. In such
    instances, the error, if any, is not in the trial court's admission of the evidence, but in
    counsel's failure to resist its admission and preserve for appeal any abuse of discretion in the
    admission of the inadmissible evidence.
    {¶ 45} As set forth above, defense counsel specifically stated he had no objection to
    Jennifer reading the January Statement into evidence, even after being invited to do so by
    the trial court, and made no objection when the state moved for Jennifer to read the March
    Statement into evidence. Defense counsel also did not object to the admission of the
    Statements as exhibits. Evid.R. 103(A)(1) requires a party to timely object and state the
    specific ground for the objection. We have discussed above why we believe this failure
    constitutes ineffective assistance of counsel. Because defense counsel failed to object to the
    reading of the Statements and to their admission as exhibits, appellant's argument is waived
    unless the admission of the Statements amounted to plain error. See State v. Blake, 12th
    Dist. Butler No. CA2011-07-130, 2012-Ohio-3124. However, appellant does not claim plain
    error on appeal and we will not address the issue sua sponte.
    {¶ 46} Appellant's second assignment of error is accordingly overruled.
    the trial court announced its verdict and long after the Statements had been admitted during Jennifer's direct
    examination by the state. It is apparent that the trial court's comments were related to its weighing of the
    evidence rather than its admissibility as the court relied upon Officer Sorber's testimony which was not offered
    until after the Statements had been admitted.
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    {¶ 47} Assignment of Error No. 3:
    {¶ 48} MR. PROFFITT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
    THE EVIDENCE.
    {¶ 49} Appellant argues his domestic violence convictions are against the manifest
    weight of the evidence. However, this assignment of error is moot given our holding under
    the first assignment of error that defense counsel was ineffective at trial.
    {¶ 50} The judgment of the trial court finding appellant guilty of two counts of domestic
    violence in violation of R.C. 2919.25(A) and 2919.25(C), respectively, is reversed and the
    matter is remanded to the trial court for further proceedings.
    HENDRICKSON, P.J., concurs.
    PIPER, J., dissents.
    PIPER, J., dissenting.
    {¶ 51} In determining the trial court relied upon extrinsic evidence, the majority
    misapplies the facts to the foundation requirements for admission of evidence pursuant to
    Evid.R. 803(5). The majority opinion finds that if a victim-witness testifies doubting whether
    or not her previous statements reflect what happened, then her other testimony cannot be
    used to establish the use of Evid.R. 803(5). The question becomes whether or not there was
    sufficient evidence for the trial court to consider Jennifer's past statements as true when she
    gave them. The record is clear there was testimony upon which the trial court reasonably
    relied in finding her past statements truthful when she gave them.
    {¶ 52} The majority suggests an appellate review best determines which portions of
    Jennifer's testimony should be relied upon in determining the trustworthiness of her
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    previously recorded statements.8 It is the trial court that rightly assesses the witness'
    demeanor and believability in determining whether or not past statements have sufficient
    trustworthiness. In doing so, the trial court determined that Evid.R. 803(5) was applicable.
    Since wide latitude is given to the trial court in deciding the appropriateness of admitting
    evidence, I respectfully dissent from the majority's opinion, which to me, substitutes its
    judgment for that of the trial court.
    Sufficient Foundation Existed
    {¶ 53} In considering the trial court's observations and the way the evidence
    developed, the trial court did not abuse its discretion in finding there was sufficient indicia of
    trustworthiness to admit the victim-witness' prior statements.
    {¶ 54} The staff notes specific to Evid.R. 803(5) provide,
    The exception gathers its circumstantial guarantee of
    trustworthiness from the fact that the person having made the
    statement is on the witness stand subject to oath, cross-
    examination and demeanor evaluation. (1) If the statement was
    reduced to writing at or near the time of the event and (2) the
    witness can testify that the writing accurately describes the event
    that he observed first hand and (3) that it does not now refresh
    the independent recollection of the witness, it may be admissible
    as an exception to the hearsay rule.
    (Emphasis added, numbers added.)
    {¶ 55} In the instant case, the victim-witness testified (1) her statements were reduced
    to writing at or near the time of the event by her going to the police department and
    handwriting her statements, (2) all indications are that when she wrote the statements, she
    intended them to be truthful and, (3) that even after reading the statements, she does not
    remember what happened. Her testimony was in accordance with Evid.R. 803(5), and
    8. The majority also weighs the different defense strategies and prioritizes which defense strategies are
    "primary" to other strategies. As later discussed, the first prong of Strickland does not permit such a weighing
    process.
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    importantly, she was subject to the trial court's "demeanor evaluation." Moreover, none of
    this testimony required the trial court to rely upon extrinsic evidence.
    {¶ 56} The majority emphasizes the victim-witness' uncertainty, however, it is the trial
    court that is in the best position to judge the victim-witness' credibility regarding her
    testimony. City of Hamilton v. Rose, 12th Dist. Butler No. CA2000-07-146, 
    2001 WL 432732
    ,
    *3. The majority's judgment is severely hampered by not having the opportunity to observe
    the victim-witness and evaluate her demeanor and delivery of testimony.
    {¶ 57} Case law cited by the majority would agree with the analysis herein:
    Where the witness cannot recall the preparation of the record
    and can testify only that he would not have signed or prepared
    the memorandum had he not believed it to be a true and
    accurate statement of the event in question[,] * * * [m]ost
    commentators advocate admitting the statement, despite the fact
    that the foundation is nothing more than a general assertion of
    honesty which sheds little light on accuracy.
    (Emphasis added). City of Dayton v. Combs, 
    94 Ohio App. 3d 291
    , 301 (2d Dist.1993), citing
    1 Weissenberger, Ohio Evidence, Section 803.60, at 59 (1993).
    {¶ 58} Combs presented facts very similar to those before us. In Combs, the witness
    acknowledged his signature on the statement and, if the statement says something, it is
    "probably" true, and that his statement was "to the best of his ability." The appellate court
    said that "albeit not a perfect foundation," the testimony contained sufficient indicia of the
    statement's trustworthiness to meet Evid.R. 803(5). The trial court sub judice reasonably
    determined that the foundation presented had an indicia of trustworthiness not dissimilar to
    that in Combs, and other cases as well.
    {¶ 59} There are many cases where the victim acknowledges his or her signature, thus
    indicating a truthful statement to the police. See State v. Fields, 8th Dist. Cuyahoga No.
    88916, 2007-Ohio-5060, ¶ 20 (the victim signed a statement after her alleged assault and
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    admitted signing the written statement and that her signature acknowledged it to be truthful
    and accurate).        Here, the victim acknowledged, through her in-court testimony, the
    statements themselves reflected they were true when she wrote them. In fact, the majority
    refers to this acknowledgement in its statement of facts when it stated, "Jennifer
    acknowledged she understood it is important to be truthful when speaking with the police and
    that she tried to be truthful with them."
    {¶ 60} Although in vague and reluctant terms, the victim-witness herein testified to the
    veracity of the statements she previously gave the police. When asked, prior to the
    statement being read into evidence, whether she signed the statement, she testified that it
    was her signature on the statement, and that the statements indicated it was true when
    made. This second statement was also in her handwriting, and she testified it contained her
    signature, which she knew reflected her statement was true when she made it.
    {¶ 61} In supporting a reversal of this case, the majority cites State v. Ross, 6th Dist.
    Huron No. H-11-022, 2013-Ohio-1595. Similar to our current situation, Ross argued on
    appeal that it was plain error for the witness' video interview to be admitted. The Sixth
    District disagreed, finding that, "an adequate foundation was laid for the use of [the] video
    pursuant to Evid.R. 803(5)." 
    Id. at ¶
    19. The foundation in Ross is extremely similar to the
    foundation presented in our current case.
    In Ross:                                                      Present case:
    i. At the time of her testimony, the victim-witness        i. At the time of her testimony, the victim-witness
    could not remember everything that had                     said she did not remember the events that
    occurred;                                                  occurred;
    ii. While testifying, the victim-witness was not sure     ii. While testifying, the victim-witness indicated that
    of what she told the police back when she was             she was not sure as to what she told the police
    interviewed;                                              in her statements;
    iii. The victim-witness acknowledged in her               iii. The victim-witness acknowledged handwriting
    testimony that she gave a recorded video                  the statements and that the signatures on the
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    statement to the police;                                  statements were hers as well;
    iv. The video interview occurred close in time to       iv. She testified that the statements she gave to the
    when the event occurred;                                police were close in time to the events when
    they occurred;
    v.   She believed she had been truthful in her           v. When she gave her statements to the police,
    interview at the time it was made.                     she knew "it is important to tell the truth;"
    she thought she told the truth when she gave her
    statements; and, that her statements reflect they
    were truthful when written.
    {¶ 62} Where the foundation sub judice was equivalent to the foundation found
    acceptable in Fields, Combs and Ross, the trial court herein was not unreasonable, arbitrary,
    or unconscionable in its ruling. Equally important to note, this comparison of testimony does
    not rely upon extrinsic evidence, as the majority suggests.9
    {¶ 63} The trial court was the only one in a position to assess and evaluate demeanor
    in determining the credibility of the victim-witness' testimony. The trial court specifically found
    the victim-witness' in-court-testimony lacked credibility. The court went so far as to express it
    was obviously apparent the victim-witness was lying in an effort to help her husband in his
    defense.       Additionally, the trial court specifically noted that the victim-witness' prior
    statements were truthful at the time they were made and were "truthful renditions of what
    happened close in time to when they happened." We should not second guess the trial court
    on these findings. Evid.R. 803(5) is rightfully applied when preventing a witness from
    feigning a lack of memory to control the outcome of a defendant's accountability for his
    criminal conduct.         The trial court found in this instance, the victim-witness' previous
    statements were truthful versions of the previous events and that her in court testimony was
    untruthful, designed to aid her husband.
    9. The majority suggests the trial court can never be assisted by extrinsic evidence in assessing the
    trustworthiness of a potential Evid.R. 803(5) hearsay exception. However, the parties did not litigate such before
    us, as the issue did not arise.
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    {¶ 64} Time and again, victims of domestic violence are known to frequently become
    vague or even recant statements in order to protect the abuser. See State v. Plott, 3d Dist.
    Seneca Nos. 13-15-39 and 13-15-40, 2017-Ohio-38. The cycle of domestic violence is one
    of control, anger, abuse, and forgiveness, then the cycle repeats itself. Such common
    knowledge is not outside the purview of trial courts, given the frequency with which domestic
    violence cases arise. Thus, the issues of evidentiary admissibility, particularly when dealing
    with hearsay exceptions like Evid.R. 803(5), are best left for the trial courts in assessing the
    witness' demeanor towards evaluating the indicia of trustworthiness. Courts are aware that
    victims of domestic violence are often under psychological pressure to protect their abusers,
    often sitting just feet away while the victim testifies.
    {¶ 65} While the foundation herein may not be perfect, and while the majority may be
    "less persuaded by the trial court's reasoning process than by the countervailing arguments"
    such does not support finding the trial court abused its discretion. Morris, 2012-Ohio-2407 at
    ¶ 14.10 Therefore, even assuming defense counsel had objected, Proffitt's first assignment of
    error must be overruled, as the trial court had sound reason in allowing the victim-witness to
    read her statements into evidence pursuant to Evid.R. 803(5).
    Strickland – 1st Prong
    {¶ 66} To establish constitutionally-ineffective assistance of counsel, it must be clearly
    demonstrated that counsel's performance was deficient such that the defendant was
    deprived of a fair trial. "The proper measure of attorney performance remains simply
    reasonableness under prevailing professional norms." State v. Carroll, 4th Dist. Ross No. 15
    10. The victim-witness wrote in one of her statements, "please help me." If we too narrowly construe the exact
    words necessary for an Evid.R. 803(5) foundation, and shackle a trial court's discretion in admitting past
    recollections recorded, the state will be severely hampered in aiding domestic violence victims psychologically
    caught-up in the cycle of violence.
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    CA 3506, 2016-Ohio-7218, ¶ 24. It is not the moment of a single opportunity to object, but
    rather the overall performance of counsel that sheds light on defense counsel's strategy.
    {¶ 67} When a 9-1-1 fight call is made to the police; the scene responded to shows
    signs of a thrown, busted TV and fresh holes in the wall; and the victim has obvious abuse
    injuries to her face which are observed by the police; and there is a history of past physical
    altercations in the relationship, defense counsel's trial strategy becomes difficult to formulate,
    and even impossible, if the victim testifies truthfully to what occurred.
    {¶ 68} Yet consider, by the time trial rolls around, the victim-witness becomes reluctant
    to assist in the prosecution of her husband and father of her child. She now is willing to
    testify in a way that undermines or negates the previous statements she gave to police. Not
    willing to say she lied in her statements, making her subject to a falsification charge, the
    victim is willing to aid her abuser by indicating she does not remember what she said to the
    police. Now the defense strategy begins to take form and develop. With the victim-witness'
    subtle yet furtive cooperation, defense counsel obtains a strategy to discredit the victim-
    witness' prior statements.11
    {¶ 69} Therefore, pursuant to the defense strategy, the admission into evidence of the
    victim-witness' prior recorded statements became irrelevant, because the strategy was to
    discredit the witness and her previous statements. The victim-witness offers that she cannot
    remember what happened, that she has a panic/anxiety disorder, her brain just shuts down,
    she was under the influence of medication, and she frequently "exaggerates." The trial court,
    however, saw through defense counsel's strategy.12
    11. The victim-witness volunteered, "I'm not trying to incriminate myself," yet she was obviously concerned about
    the thin line that separated her from that possibility.
    12. The trial court, in assessing the trustworthiness of the victim-witness' prior statements, used her current
    testimony and determined she was not telling the truth in court about certain aspects of her testimony in an effort
    to aid her husband's defense.
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    {¶ 70} Defense counsel did not object to the victim-witness reading her past
    statements into evidence because the strategy all along was to make the statements
    unbelievable. Although the court specifically extended the opportunity for defense counsel to
    object, he expressly waived such opportunity because (1) the foundation had been properly
    laid by the state, (2) if he objected based on foundation, defense counsel knew the state
    would cure any deficiency with further questioning, and (3) defense counsel's strategy all
    along was to discredit the victim-witness including her previous statements.13
    {¶ 71} When the victim-witness skipped over a few sentences reading her prior
    statement, defense counsel objected because he wanted every line to be read. In that
    exchange, the court informed defense counsel that only defense counsel could request
    admission of the physical statements. Evid.R. 803(5). The court stated, "if the defendant
    offers [the statement] into evidence, then the statement[,] the written statement comes into
    evidence and then I would have that in front of me." Defense counsel responded "uh huh"
    presumably in acquiescence since defense counsel did not want certain parts left out.
    Additionally, at the end of the state's case when discussing the exhibits, it was apparent the
    prosecutor believed the statements had already been admitted by the defense and defense
    counsel responded, "That's fine. We would not object to their admission."
    {¶ 72} Defense counsel knew that only he could have the statements admitted. It is
    clear he did not consider the statements anymore harmful than the testimony itself. Since his
    13. The majority seems to dismiss the subtle difference between counsel who fails to object because they do not
    know to object or are otherwise asleep at the wheel and counsel, as here, who consciously decided not to object.
    See State v. Bradley, 
    42 Ohio St. 3d 136
    , 140 (1989) (defense counsel consciously refused to object). Here,
    counsel decided not to object, just as he decided admitting the physical statements as exhibits did not hurt his
    strategy. It was not within defense counsel's strategy to tip off the state to better fortify the trustworthiness of the
    victim-witness' prior statements, and as footnote 2 of the majority opinion points out that the more the victim-
    witness was questioned, the more the foundation for Evid.R. 803(5) was developed. Thus, not objecting to
    foundation was a significant tactic in his strategy, as defense counsel did not want to have the state develop any
    additional testimony going to the truthfulness of her past statements.
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    strategy was to convince the court they did not matter (were not believable), defense counsel
    saw no harm in their being admitted. Defense counsel's plan was to use cross-examination
    to make the victim-witness look like an unstable, exaggerating, mentally defective, under-the-
    influence individual whose past statements could not be believed ‒ not an unreasonable
    strategy.
    {¶ 73} Merely because the trial tactics defense counsel employed were ultimately
    unsuccessful, it does not mean that counsel's performance was deficient. Debatable trial
    tactics and strategies do not constitute deficient performance. State v. Payton, 124 Ohio
    App.3d 552 (12th Dist.1997). Judicial scrutiny of counsel's performance must be highly
    deferential, and every effort must be made to eliminate the distorting effects of hindsight.
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    (1984), paragraph two of the
    syllabus.
    {¶ 74} Our precedent has consistently abided by the "strong presumption" and "wide
    range" of professional assistance that can be rendered before being considered deficient.
    State v. Revels, 12th Dist. Butler Nos. CA2001-09-223 and CA2001-09-230, 2002-Ohio-
    4231, ¶ 25 (failing to present a false identification defense and choosing not to cross-
    examine the eyewitness was not deemed to be deficient performance); State v. Graham,
    12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814 (failing to proffer an exculpatory
    statement, to make objections, to cross-examine the state's expert, and to move the court
    based on insufficiency of evidence was not deemed to be deficient performance); and State
    v. Casey, 12th Dist. Clinton Nos. CA2016-01-001 and CA2016-06-013, 2017-Ohio-790
    (failing to object "no fewer than thirty three" times to hearsay and failing to object "no fewer
    than twenty one" times to unqualified expert testimony, was not deemed to be deficient
    performance).
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    {¶ 75} The majority finds "no reasonable trial strategy is apparent" when defense
    counsel declined to object to the victim-witness' prior statements being read into evidence.
    However, using cross-examination to discredit a witness' prior statements is a reasonable
    strategy particularly in a domestic violence case resting upon the testimony of an abused and
    reluctant wife and mother.
    {¶ 76} Until today, no Ohio precedent holds the absence of a "primary strategy," rather
    than defense counsel's implemented strategy, operates to create constitutionally-ineffective
    assistance of counsel. To explain its reasoning, the majority suggests that Strickland
    supports a reversal for ineffective assistance if the appellate court can picture the existence
    of a "primary" strategy which could have been pursued before, and in spite of, trial counsel's
    strategy. However, the law is clear and long-established that appellate courts must not
    engage in a weighing of strategies when addressing whether a defendant was denied
    effective assistance of counsel. State v. Phillips, 
    74 Ohio St. 3d 72
    (1995).
    {¶ 77} For example, the Second District Court of Appeals recently addressed a similar
    argument that an individual is denied effective assistance of counsel because a better trial
    strategy existed. State v. Hartman, 2d Dist. Montgomery No. 26609, 2016-Ohio-2883.
    Hartman was accused of rape, and at trial, the victim testified to the events of non-
    consensual sex. However, on direct, the victim did not go into detail about force being used.
    During cross-examination, defense counsel asked the victim specific questions about any
    force Hartman had used to challenge her credibility by bringing up the victim's inconsistent
    statements to investigators about Hartman's use of force.          The questions on cross-
    examination, along with the victim's answers to those questions, were very damaging
    because they allowed the jury to hear details about the force Hartman used during his
    crimes.
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    {¶ 78} Hartman claimed on appeal that his trial counsel was ineffective for employing
    such a strategy and should have avoided any questions about force on cross-examination.
    The Hartman court disagreed, and refused to engage in weighing which strategy was better.
    Hartman's counsel could have used the lack of force as a defense strategy, yet, the appellate
    court determined:
    In a case that rests entirely on the credibility of the witnesses, a
    strategic choice to conduct cross-examination of the victim on
    factual issues relating to elements of the offense is not
    automatically ineffective assistance of counsel. In the case
    before us, it was a valid defense strategy to attack the credibility
    of the victim through the use of prior inconsistent statements, a
    well-established trial strategy.
    
    Id. at ¶
    49.
    {¶ 79} Discrediting a victim-witness' prior statements is certainly a reasonable strategy,
    not professional performance in violation of the Constitution. 
    Id. at ¶
    46 ("Hindsight is not
    permitted to distort the assessment of what was reasonable in light of counsel's perspective
    at the time, and a debatable decision concerning trial strategy cannot form the basis of a
    finding of ineffective assistance of counsel"); State v. Bajaj, 7th Dist. Columbiana No. 03 C0
    16, 2005-Ohio-2931 (reasonable defense strategy to discredit victim); and State v. Reid, 8th
    Dist. Cuyahoga No. 83206, 2004-Ohio-2018 (defense counsel's failure to object to evidence
    of defendant's previous sexual assault of victim was reasonable trial strategy where counsel
    intended to discredit the victim).
    {¶ 80} When the majority focuses narrowly upon the single moment of a potential
    objection, it precludes itself the broader opportunity to perceive the totality of defense
    counsel's strategy during the trial. It is the overall record that discloses trial counsel's
    strategy, and not objecting was merely a part of that strategy. Simply because there might
    be a better way, in hindsight, to defend Proffitt does not mean that trial counsel's
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    performance was deficient. Attempting to discredit the witness' prior statements with the use
    of her current in-court testimony was not unreasonable in light of the circumstances. For the
    reasons discussed, even if the foundation was insufficient, which I do not agree, Proffitt
    cannot clearly demonstrate an ineffective assistance of counsel claim because he did not
    establish "deficient performance" pursuant to the first strong in Strickland and a plethora of
    other case law.14 A debatable decision concerning trial strategy cannot form the basis for
    finding defective performance.
    Strickland – 2nd Prong
    {¶ 81} The prejudice prong of Strickland basically requires that the defendant
    demonstrate that "but for counsel's errors, the result of the proceedings would have been
    different." State v. Adams, 4th Dist. Lawrence No. 15CA2, 2016-Ohio-7772, ¶ 91. Generally,
    courts decline to speculate or assume the existence of prejudice. 
    Id. To succeed
    on this
    prong, the defendant must "affirmatively establish" that the claimed prejudice had a
    detrimental effect on the outcome. 
    Id. {¶ 82}
    When the state attempted to use the prior recorded statements by having them
    read into evidence, defense counsel had only two directions he might travel. He could take
    an up-the-hill fight to keep the evidence out, or he could continue coasting downhill with his
    original strategy of discrediting the prior statements through cross-examination. If counsel
    chose the former, we know with certainty the state would have attempted to rehabilitate or
    cure any suggested deficiency in the establishment of a foundation. Defense counsel chose
    to stick with his strategy, rather than accepting the boulder of Sisyphus. To assume the state
    would have been ultimately unsuccessful and defense counsel could have kept out evidence
    14. Just as the majority determines in its footnote 4, I too, do not address in detail counsel's acquiescence to the
    statements coming into evidence as exhibits because their significance as exhibits was "marginal and
    insubstantial."
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    of both statements is speculative, at best. Thus, we should decline the opportunity to
    assume prejudice where none has been proven.
    {¶ 83} An objection would only have served to focus the state on efforts to emphasize
    the trustworthiness of the past statements. It is unreasonable to assume the state would
    immediately fold its tent simply because of an objection. Further questioning may well have
    developed the prior statements as having indicia of trustworthiness or that the victim-witness
    was aligned with her husband and his defense, thus permitting the state's use of leading
    questions. Evid.R. 611(C).
    {¶ 84} In speculating on how the trial might have proceeded had Proffitt's counsel
    objected, the majority cannot say with any level of certainty the outcome would have been
    different. If a witness claims a lack of memory as to a prior statement he or she gave, such
    can be treated as a denial, and the use of extrinsic evidence may be permitted. State v.
    Pierce, 2d Dist. Montgomery No. 24323, 2011-Ohio-4873, ¶ 2. Other evidentiary avenues
    permit the use of extrinsic evidence depending on how the facts develop. See Evid.R.
    616(C). How the evidence might have developed if an objection had occurred, we will never
    know.
    {¶ 85} The defendant clearly has the burden to prove his claim of prejudice. State v.
    Bradley, 
    42 Ohio St. 3d 136
    , 143 (1989). However, we need not speculate as to what turn the
    trial testimony may have taken if there had been an objection because the defendant's failure
    on the first prong of Strickland makes it unnecessary to engage in an analysis of the
    prejudicial impact of any alleged errors. 
    Id. Simply stated,
    Proffitt received assistance of
    counsel, and his Sixth Amendment right to counsel was not violated.
    CONCLUSION
    {¶ 86} Based on the record, the trial court properly admitted the victim-witness'
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    testimony, and did so after finding that the state had laid a sufficient foundation. Evid.R.
    803(5) evidence is proper when the witness has insufficient memory to accurately testify to
    crucial information, the witness' past recollection recorded was made when the matter was
    fresh in the witness' memory, and the past recollection recorded correctly reflects the witness'
    knowledge at the time it was recorded, which reflected "a general assertion of honesty." The
    trial court's decision in this matter was not unreasonable, arbitrary, or unconscionable.
    {¶ 87} Furthermore, and even if the evidence was inadmissible, Proffitt cannot
    demonstrate that he received ineffective assistance of counsel where counsel's lack of
    objection to the statements was trial strategy. The fact it was not the "primary strategy" that
    the majority would have preferred to see is of no consequence. Our review standard is highly
    deferential and we must avoid temptation to focus on the outcome or employ hindsight. The
    trial court's ability to see through the credibility issues raised by defense counsel's trial
    strategy does not render such assistance ineffective. As such, I respectfully dissent from the
    majority's decision to reverse Proffitt's convictions.
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Document Info

Docket Number: CA2016-07-134, CA2016-07-135

Judges: M. Powell

Filed Date: 4/3/2017

Precedential Status: Precedential

Modified Date: 4/3/2017