State v. May

[Cite as State v. May, 2012-Ohio-5128.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 8-11-19

v.

DANIEL R. MAY, OPINION

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court
Trial Court No. 10-02-0022

Judgment Affirmed

Date of Decision: November 5, 2012

APPEARANCES:

Marc S. Triplett for Appellant

William T. Goslee and Eric C. Stewart for Appellee
Case No. 8-11-19

ROGERS, J.

{¶1} Defendant-Appellant, Daniel May, appeals from the judgment of the

Court of Common Pleas of Logan County convicting him of domestic violence

and sentencing him to a total prison term of three years and six months. On

appeal, May claims that the trial court committed the following reversible errors:

(1) admitting testimony regarding May’s pre-arrest silence; (2) allowing testimony

regarding the out-of-court statements of Diane Gerber, the alleged domestic

violence victim; (3) the court calling Gerber as its own witness; (4) admitting

evidence of previous physical altercations between May and Gerber; (5)

permitting introduction of May’s statements to the arresting officers while

purportedly in custody; and (6) allowing the State to use its preemptory challenges

in a discriminatory manner. May also contends that he was denied effective

assistance of counsel and that all of the above errors amounted to a denial of due

process. For the reasons that follow, we affirm the trial court’s judgment.

{¶2} On March 10, 2010, the Logan County Grand Jury handed down an

indictment charging May with two counts of domestic violence in violation of

R.C. 2919.25(A). Because each count included a specification that May had been

previously convicted of two or more domestic violence offenses, the violations

were classified as felonies of the third degree. On April 27, 2010, the State moved

to dismiss the original indictment without prejudice on the grounds that the

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“victim is uncooperative.” (Docket No. 19). The trial court granted the motion

that same day.

{¶3} On May 10, 2011, the Logan County Grand Jury handed down a

second indictment charging May with four counts of domestic violence in

violation of R.C. 2919.25(A). Again, each count included a specification that May

had been previously convicted of two or more domestic violence offenses, and the

violations were classified as felonies of the third degree.

{¶4} The indictment arose from four incidents in which May allegedly

harmed Gerber, his mother.1 At the time of the incidents, May lived with Gerber

and during the course of all these incidents, both May and Gerber were highly

intoxicated. The first incident occurred on October 24, 2008. Gerber called the

emergency dispatch and reported that May had beaten her. When the deputies

arrived at the house, they discovered Gerber with a bloody nose. The second

incident took place on January 23, 2010. Gerber again called emergency dispatch

to report that May was drunk and naked and had locked her out of the house. She

informed deputies that May punched her in the face, which was consistent with the

officers’ observation of redness and swelling in the area where Gerber said her son

punched her.

1
The original indictment arose from the first and second incidents.

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{¶5} The third incident occurred on October 17, 2010. Gerber called

emergency dispatchers and said she was having trouble with May. When the

responding officers arrived, they saw that Gerber’s jaw was swollen and that there

were red marks on her face. Although Gerber was initially apprehensive about

revealing the source of the marks, she eventually relented and said that May had

punched her again. The fourth and final incident took place on April 26, 2011.

Gerber called emergency dispatchers saying, “Please stop him.” Trial Tr., p. 94.

The deputies responded and Gerber told them that May had struck her in the face.

Further, the officers observed a red mark on Geber’s upper left check. On each

occasion, the deputies arrested May.

{¶6} On June 24, 2011, the trial court set this matter for trial in early

September 2011. On August 24, 2011, the State filed a motion for the trial court

to call Gerber as a witness. The motion states that “Gerber gave both written and

recorded statements to law enforcement that [May] had beaten her. However,

[Gerber] now claims she doesn’t remember what happened.” (Docket No. 47, p.

1). May did not file a written opposition to the State’s motion.

{¶7} The trial commenced on September 1, 2011 and concluded the next

day. Voir dire of the jury occurred on September 1, 2011. The State used three of

its four preemptory challenges to remove male jurors and a preemptory challenge

to remove a male alternate juror. The resulting jury was composed of seven males

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and five females. After voir dire, May did not request that the trial court engage in

a hearing to probe the State’s bases for excluding the male jurors and alternate

juror.

{¶8} The State first called the two emergency dispatchers who answered

Gerber’s calls during each of the incidents described in the indictment. The first

witness, Dawn Heppard, answered Gerber’s call on October 24, 2008. During her

testimony, the State played the recording of Gerber’s call on that date, which

included the following dialogue:

DISPATCHER: 911, what’s your emergency?

DIANE GERBER: My son is beating me. (Indiscernible).

DISPATCHER: I’m sorry?

DIANE GERBER: (Indiscernible).

DISPATCHER: I can’t – I can’t understand you.

DIANE GERBER: Come to 2385.

DISPATCHER: 2385 what?

DIANE GERBER: 2285.

DISPATCHER: 2385 what road, ma’am?

DIANE GERBER: 2285.

DISPATCHER: 2285?

DIANE GERBER: Yes, ma’am.

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DISPATCHER: What road?

DIANE GERBER: Just outside of town.

DISPATCHER: Okay. You said your son was beating you?

DIANE GERBER: Yeah.

DISPATCHER: You need a squad for your injuries?

DIANE GERBER: No, I’ll be fine. Just need somebody
(indiscernible).

DISPATCHER: Ma’am, I can’t understand you. What?

DIANE GERBER: I’m sorry. I need somebody to control him.

DISPATCHER: You need somebody to control him?

DIANE GERBER: Yes. Trial Tr., p. 82-83.

May’s trial counsel did not object to the playing of this recording or its admission

into evidence.

{¶9} The State then called Shannon Reese, the emergency dispatcher who

answered Gerber’s calls on January 23, 2010, October 17, 2010, and April 26,

2011. Again, the State played the recordings of the emergency calls from those

dates. The January 23, 2010 call included the following dialogue:

DISPATCHER: 911, what is your emergency?

DIANE GERBER: My son is drunk.

DISPATCHER: Your what?

DIANE GERBER: My son is drunk.

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DISPATCHER: Your son is drunk?

DIANE GERBER: Yeah.

DISPATCHER: What’s going on?

DIANE GERBER: He’s running around naked.

DISPATCHER: He’s what?

DIANE GERBER: He’s running around naked.

DISPATCHER: He’s running around naked?

DIANE GERBER: Yes, ma’am.

DISPATCHER: Where at?

DIANE GERBER: He’s locked me out of the house.

DISPATCHER: He’s locked you out of the house?

DIANE GERBER: Yes, ma’am.

DISPATCHER: Okay. Where are you at?

DIANE GERBER: I’m sorry, it’s cold out here. It’s two
(indiscernible).

DISPATCHER: It’s what?

DIANE GERBER: I’m thinking. It’s 2885 State Route 47.

DISPATCHER: State Route 47?

DIANE GERBER: Yes, ma’am.

DISPATCHER: Are you outside of the house now?

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DIANE GERBER: Yes, ma’am.

DISPATCHER: Have you been drinking?

DIANE GERBER: Yes, ma’am.

DISPATCHER: What’s your name?

DIANE GERBER: Diane Gerber.

DISPATCHER: It’s what?

DIANE GERBER: Diane Gerber.

DISPATCHER: Diane Gerber?

DIANE GERBER: Yes, ma’am.

DISPATCHER: What’s your son’s name?

DIANE GERBER: Daniel May.

DISPATCHER: It’s what?

DIANE GERBER: Daniel May.

DISPATCHER: Daniel May?

DIANE GERBER: Yes, ma’am. It’s cold out here.

DISPATCHER: What’s he doing now? What’s he doing inside?

DIANE GERBER: I don’t know. I have no idea.

DISPATCHER: Is he running around naked?

DIANE GERBER: He was, yes, just a minute ago. (Indiscernible).
Id. at 89-91.

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{¶10} The October 17, 2010 emergency call included the following

dialogue:

DISPATCHER: 911, what’s your emergency?

DIANE GERBER: I – can you ask – please ask somebody to come
out here? I don’t know what the problem is.

DISPATCHER: What’s going on?

DIANE GERBER: I’m not sure.

DISPATCHER: Okay. What aren’t you sure about? What’s
going on, Diane?

DIANE GERBER: I don’t know (indiscernible).

DISPATCHER: Know what? Diane? What’s going on?

DIANE GERBER: I don’t what his problem is.

DISPATCHER: You don’t know what whose problem is?

DIANE GERBER: No.

DISPATCHER: Diane, you’re going to need to talk to me, tell
me what’s going on.

DIANE GERBER: I can’t (indiscernible).

DISPATCHER: He what?

DIANE GERBER: He’s coming back in the house.

DISPATCHER: He’s coming back in the house?

DIANE GERBER: I got to go.

DISPATCHER: Diane.

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DIANE GERBER: I got to go.

DISPATCHER: You can stay on the phone.

DIANE GERBER: I have to go. Id. at 91-93.

{¶11} And, finally, the April 26, 2011 phone call included the following

dialogue:

DISPATCHER: 911, what is your emergency? 911. Hello?

DIANE GERBER: Hi.

DISPATCHER: Do you have an emergency?

DIANE GERBER: Yes.

DISPATCHER: What’s going on?

DIANE GERBER: Diane Gerber. Please –

DISPATCHER: You need what?

DIANE GERBER: Diane Gerber. Please, stop him.

DISPATCHER: An ambulance? Are you there? I can barely –
Id. at 93-94.2

May’s trial counsel again did not object to either the playing of these recordings or

their admission into evidence.

{¶12} After the recordings were played, Deputy Joe Kopus of the Logan

County Sheriff’s Office took the stand. Deputy Kopus was one of the responding

2
In addition to these transcripts of the phone calls, we have also reviewed State’s Exhibit 1, which is a
compact disc that contains all four recordings.

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officers during each of the incidents charged in the indictment. In addition to

these four incidents, he testified that he had been to Gerber’s and May’s residence

multiple other times:

Q: And in this case, were you dispatched to [Gerber’s and
May’s] home on any of these occasions?

A: Yes, sir, I was.

Q: How many of them were you dispatched to?

A: I was – as far as this case goes, four times. I’ve been out
there other times. I can’t give you an exact number how many I’ve
been to the residence.

Q: Okay. But the – so the four incidents that he’s charged with,
those four dates, you were – you responded on all four of those
dates?

A: Yes, sir.

Q: And you’ve also been out there on other occasions as well[?]

A: Correct, yeah. Id. at 99.

{¶13} Deputy Kopus went on to discuss his interactions with both May and

Gerber during his investigations at their residence. For the October 24, 2008

incident, Deputy Kopus recounted that when he arrived at the scene, Gerber and

May were sitting together in the living room of their residence and Gerber had a

bloody nose. Gerber then told Deputy Kopus that May hit her in the nose. Deputy

Kopus took several pictures of Gerber, which were admitted into evidence. He

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testified that the pictures show a red mark on Gerber’s nose and blood both on her

finger and on her bed.

{¶14} Deputy Kopus’ investigation of the October 24, 2008 incident also

revealed that Gerber and May were possibly involved in an argument before the

alleged violence. The testimony reveals the following about this argument:

Q: Now, in this incident, did you try to find out where this
occurred or what the argument was about?

A: [The other officer] mainly handled the report. I was just a
backup officer. Yeah, [Gerber] stated that [May] struck her in the
nose. And, you know, she was holding a cloth to her nose. And that
was about it.

Q: And you didn’t get into why or what the argument was about?

A: When [the other officer] asked [May] his side of the story, he
stated that he wasn’t going to answer any questions. Id. at 104.

Meanwhile, Deputy Kopus took a statement from Gerber in which she stated that

she was not arguing with May before the alleged violence. This statement also

included the following assertions from Gerber regarding the events of the evening:

Q3: Did [May] hit you[?]

A3: No

Q4: Did [May] slap you[?]

A4: Yes in the nose [and] it started bleeding. State’s Exhibit 16.

{¶15} Deputy Kopus then testified regarding the January 23, 2010 incident.

He again recounted that Gerber told him that May had hit her, this time in the

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upper left eye area. Deputy Kopus observed red marks on Gerber’s face where

she said she had been hit. He took pictures of Gerber, but he testified that the red

marks did not appear in the pictures. Deputy Kopus also testified that May

answered questions regarding the incident and denied hitting his mother, but that

the deputies still arrested him for domestic violence.

{¶16} As to the October 17, 2010 incident, Deputy Kopus indicated that

upon his arrival at the residence, Gerber was outside and was “physically upset.”

Trial Tr., p. 113. He also testified that after discussing how important it was for

Gerber to talk to him about the evening’s events, Gerber stated “‘well, I will just

let him kill me next time.’” Id. She then told Deputy Kopus that May hit her in

the left jaw area, which is where he saw various red marks and some swelling.

{¶17} Deputy Kopus recorded his conversation with Gerber and May

during this incident and the State played the recording, which was received into

evidence.3 The recording reveals that at first, Gerber denied that May hit her.

However, later in her conversation with Deputy Kopus, Gerber stated that May

had threatened her several times and started to cry. She then said that she wanted

to get away from May and then stated that May had hit her in the jaw. Gerber then

said that during her emergency call earlier that she hung up because she did not

want May to see her talking on the phone.

3
We have reviewed both the transcript of the recording and State’s Exhibit 2, which is a compact disc
containing the recording.

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{¶18} The remaining portion of the recording featured Deputy Kopus’s

conversation with May. May’s trial counsel objected to the playing of the

remaining portion because it was highly prejudicial to May. The trial court,

however, overruled the motion. During the course of the conversation, May

denied hitting his mother and admitted to an aggravated menacing arrest and

domestic violence convictions. Despite May’s denial, the deputies said that they

were going to arrest him for domestic violence, which May said would cause him

to serve 30 days in prison. After the deputies informed May that he was under

arrest, he became uncooperative and started to resist. Once the deputies subdued

May, he was placed under arrest and transported to the county jail.

{¶19} Deputy Kopus then testified regarding the April 26, 2011 incident.

He said that he found Gerber with a red mark and swelling in her upper cheek area

that day. Deputy Kopus also indicated that Gerber said that that was the area

where May hit her.

{¶20} Again, Deputy Kopus recorded his conversations during the course

of his on-scene investigation.4 The recording reflects that Gerber said May

threatened to kill her. After first saying that her argument with May was verbal,

Gerber then said May had actually hit her. The following exchange occurred

regarding Gerber’s cooperation with May’s prosecution:

4
We have reviewed both the transcript of the recording and State’s Exhibit 3, which is a compact disc
containing the recording.

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DEPUTY: What do you want done, Diane?

DIANE GERBER: I want him to get some help.

DEPUTY: Yeah. But when you do this and we charge him you
change your story every single time.

DIANE GERBER: I know.

DEPUTY: I don’t have a problem doing my job, but every time
you go in front of the judge you say you don’t remember or you say
it never happened or you say that the officers lied about it.

DIANE GERBER: Well, I know I said all three. Id. at 150.

{¶21} She also indicated that May had broken her teeth “six or eight times.”

Id. at 153. Deputy Kopus then arrested May after he had denied hitting his

mother. Deputy Kopus also indicated that Gerber gave a written statement on

April 26, 2011 to his partner, Logan County Deputy Sheriff Joe Layman. This

statement included the following:

Q: How did you get the injury (bump) over your left eye? Cheek
bone.

A: [May] slapped me.

***

Q: Do you want to file charges against [May] for assaulting you?

A: It was a slap, more of a verbal [sic]. I dont [sic] want him to
get a felony. I need to get some help. State’s Exhibit 17.

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Moreover, Deputy Kopus testified that Gerber’s injuries were consistent with

“getting struck or slapped by someone who is right handed.” Trial Tr., p. 167. He

also indicated that May was right handed.

{¶22} On cross-examination, Deputy Kopus admitted that Gerber and May

were not fighting when he responded to these four incidents. Indeed, he

acknowledged that he did not hear “a lot of yelling, screaming, [and] chaos” when

he was on the scene. Id. at 169. Deputy Kopus also admitted that he had never

seen May hit his mother. He also recounted a separate incident in which he

responded to the house and arrested Gerber for persistent disorderly conduct after

she threatened violence against May. He stated that during this incident, May was

not abusive or mean towards Gerber.

{¶23} After Deputy Kopus stepped down, the trial court granted the State’s

motion and called Gerber as its own witness, without objection by May’s trial

counsel. She testified that she could not recall anything about any of the four

incidents. But, Gerber said that she would not deny the deputies’ testimony that

she did call 911 and made a complaint of domestic violence.

{¶24} On cross-examination by the State, the following exchange occurred:

Q: Would your argument – would your arguments turn into
fighting at all?

A: No, sir.

Q: Has Daniel ever hit you?

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A: No. Id. at 205.

Gerber also reiterated that she could not recall any of the incidents or making any

of her statements to the deputies. But, she acknowledged that if the deputies had

said she made them, then she must have. Then, on cross-examination by May’s

counsel, Gerber indicated that she was not afraid of May. She also recounted the

incident in which she called emergency dispatchers simply because she could not

find her son after she woke up from a nap.

{¶25} After Gerber’s testimony concluded, the State called Logan County

Deputy Sheriff Tony Robinson. In addition to generally corroborating Deputy

Kopus’s testimony regarding the October 24, 2008 incident, Deputy Robinson

reiterated that May did not answer questions during the deputies’ investigation.

Deputy Robinson also referred to other incidents in which he was called to the

residence when May was verbally abusive towards his mother.

{¶26} The State then called Logan County Deputy Sheriff Thomas Meek,

who essentially provided the same testimony regarding the January 23, 2010

incident as Deputy Kopus. Deputy Meek’s testimony indicated that when he

arrived at the house, he observed that Gerber was still locked outside the house

and that May was still naked. Further, upon the deputies’ arrival, Gerber

immediately started to give her statement to the deputies, including that May had

hit her.

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{¶27} Finally, the State called Deputy Layman for the purpose of

discussing the April 26, 2011 incident. When Deputy Layman arrived at Gerber’s

and May’s house, he observed that Gerber was “uneasy with whatever was going

on in the house.” Trial Tr., p. 259. He also reiterated Gerber’s statements that

May was verbally abusive and had threatened her life.

{¶28} Once Deputy Layman stepped down and the State’s exhibits were

admitted, the State rested. May’s trial counsel moved, pursuant to Crim.R. 29, for

acquittal on the grounds that the State failed to provide sufficient evidence for a

reasonable jury to find beyond a reasonable doubt that May was guilty of any of

the charges. The trial court denied the motion.

{¶29} In his defense, May recalled Gerber to the stand. A portion of

Gerber’s testimony refers to May’s purportedly peaceful character:

Q: Have you ever seen [May] be violent or hurt or be aggressive
toward anyone? . . . Have you ever seen anything like? Does he go
out to bars?

A: No.

Q: He’s never gone out to a bar and then come home drunk or
anything?

A: No.

Q: You never had any knowledge, personal, that you know he
was ever in a bar fight, let’s just say?

A: (Shakes head). Id. at 294.

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After Gerber completed her testimony, May rested.

{¶30} It is important to note that during the course of the trial proceedings,

May’s trial counsel entered no other objection to any of the testimony that the

State adduced or the exhibits that it offered into evidence, except for the objection

to a portion of the October 17, 2010 recording on unfair prejudice grounds. Also,

the parties stipulated to May’s previous convictions for domestic violence.

{¶31} On September 2, 2011, the jury returned a verdict of guilty on all of

the charges alleged in the indictment. May renewed his motion for acquittal under

Crim.R. 29, but the trial court again denied it. On September 7, 2011, the trial

court issued a judgment entry reflecting the verdict. The trial court then proceeded

to the sentencing phase. On October 14, 2011, the trial court held a sentencing

hearing. The trial court entered an sentence of three years and six months in

prison. This sentence was journalized in a judgment entry filed on October 18,

2011.

{¶32} May filed this timely appeal, presenting the following assignments of

error for our review.

Assignment of Error No. I

THE TRIAL COURT ERRED WHEN IT ADMITTED
TESTIMONY THAT APPELLANT REFUSED TO PROVIDE
THE DEPUTIES WITH A STATEMENT.

Assignment of Error No. II

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THE TRIAL COURT ERRED WHEN IT ADMITTED THE
TESTIMONY OF OFFICER KOPUS AND THE
DISPATCHERS OF THE LOGAN COUNTY SHERIFF’S
DEPARTMENT ABOUT THE CONTENTS OF THE
STATEMENTS MADE BY DIANE GERBER.

Assignment of Error No. III

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
GRANTED APPELLEE’S MOTION AND CALLED DIANE
GERBER AS ITS OWN WITNESS.

Assignment of Error No. IV

THE TRIAL COURT ERRED WHEN IT ADMITTED
EVIDENCE THAT APPELLANT AND HIS MOTHER HAD
PURPORTEDLY PREVIOUSLY HAD PHYSICAL
ALTERCATIONS.

Assignment of Error No. V

THE TRIAL COURT ERRED WHEN IT ADMITTED
APPELLANT’S STATEMENTS TO THE ARRESTING
OFFICERS.

Assignment of Error No. VI

THE TRIAL COURT ERRED WHEN IT PERMITTED THE
PROSECUTION TO EMPLOY ITS PREEMPTORY
CHALLENGES IN A GENDER-DISCRIMINATORY
MANNER.

Assignment of Error No. VII

THE ACTS AND OMISSIONS OF TRIAL COUNSEL
DEPRIVED APPELLANT OF HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.

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Assignment of Error No. VIII

THE COMBINED EFFECT OF ALL THE ERRORS
IDENTIFIED IN THIS BRIEF DEPRIVED APPELLANT OF
DUE PROCESS AND A FAIR TRIAL.

Assignment of Error No. I

{¶33} In his first assignment of error, May contends that it was erroneous

for the trial court to admit testimony that he refused to answer the deputies’

questions during the investigation of the October 24, 2008 incident. We disagree.

{¶34} We preliminarily note that May did not raise an objection to the

admission of this evidence in the trial court. Consequently, our review is limited

to the existence of plain error in the trial court proceedings. See State v. Balo, 3d

Dist. No. 1-10-48, 2011-Ohio-3341, ¶ 48. To have plain error under Crim.R.

52(B), there must be an error that both constitutes an “obvious” defect in the trial

proceedings and affects “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27

(2002). Plain error is to be used “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Id. Plain

error exists only in the event that it can be said that “but for the error, the outcome

of the trial would clearly have been otherwise.” State v. Biros, 78 Ohio St.3d 426,

436 (1997); see State v. Johnson, 3d Dist. No. 2-98-39 (June 30, 1999).

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{¶35} The United States Constitution provides that no person “shall be

compelled in any criminal case to be a witness against himself.”5 Fifth

Amendment to the United States Constitution. The Ohio Supreme Court has

interpreted this clause as precluding the State from offering evidence of pre-arrest

silence as substantive evidence of the criminal defendant’s guilt. See State v.

Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, ¶ 30 (“[T]he use of [a defendant’s]

pre-arrest silence in the [S]tate’s case-in-chief as substantive evidence of guilt

subverts the policies behind the Fifth Amendment.”). In Leach, the State referred

to the defendant’s pre-arrest silence in its opening statement and purposefully

elicited testimony to that effect from the investigating officers. Meanwhile, the

other evidence of the defendant’s guilt was “not overwhelming.” Id. at ¶ 38.

Consequently, the Court found that the State offered the defendant’s pre-arrest

silence as substantive evidence of guilt and reversed his conviction. Id.

{¶36} This court has been presented with Leach-based challenges in two

relevant cases. In State v. Castle, 3d Dist. No. 8-06-27, 2007-Ohio-3599, the

testifying officer made a “vague, isolated remark” regarding the defendant’s

failure to answer police questions. Id. at ¶ 35. Further, “[n]othing in the record

indicate[d] that the prosecution intentionally elicited the remark; that the remark
5
The Ohio Constitution uses the same language to establish the right of criminal defendants against self-
incrimination. Ohio Constitution, Article I, Section 10. Accordingly, the Ohio Constitution’s self-
incrimination privilege provides the same degree of protection to criminal defendants in this regard as the
United States Constitution does. See State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, ¶ 47 (“[W]hen
provisions of the Ohio Constitution and United States Constitution are essentially identical, we should
harmonize our interpretations of the provisions.”).

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equated silence with guilt; or that the remark harmed [the defendant] in any way.”

Id. As a result, we found no reversible error. Similarly, in State v. Rick, 3d Dist.

No. 9-08-27, 2009-Ohio-785, we found that the testifying officer’s comment on

pre-arrest silence was permissible because it “was only cited to show the

chronology of events on the night [that the defendant] was apprehended.” Id. at ¶

48.

{¶37} Here, both Deputy Kopus and Deputy Robinson indicated that May

did not answer questions regarding the October 24, 2009 incident. A review of

their testimony and the State’s arguments shows that this matter is factually

distinguishable from Leach and instead falls into the Castle/Rick ambit of cases.

Unlike Leach, the State did not refer to May’s pre-arrest silence in its opening

statement. Further, as in Castle, there is no indication that the State intended to

elicit testimony that May failed to respond to questions regarding the charged

incidents. Rather, like Rick, the record reflects that Deputy Kopus’ and Deputy

Robinson’s testimony regarding May’s pre-arrest silence occurred in the course of

them describing the investigation of the October 24, 2008 incident. In light of this

evidence, we find no plain error in the trial court’s admission of the testimony

regarding May’s pre-arrest silence. Compare Sate v. Riffle, 9th Dist. No.

07CA0114-M, 2008-Ohio-4155, ¶ 16 (finding that three references to the

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defendant’s pre-arrest silence during case-in-chief and closing statement

constituted substantive evidence of guilt and produced reversible error).

{¶38} Accordingly, we overrule May’s first assignment of error.

Assignment of Error No. II

{¶39} In his second assignment of error, May argues that the trial court

improperly allowed the testimony of Deputy Kopus and the Logan County

Sheriff’s Department emergency dispatchers regarding Gerber’s out-of-court

statements. Specifically, May claims that the statements amount to inadmissible

hearsay that falls under no exception. The State counters that the statements were

admissible as excited utterances or present sense impressions.6 We disagree with

May and find that the challenged statements all fall under a hearsay exception.

{¶40} As a threshold matter, we again note that May did not object to the

admission of these out-of-court statements at trial. Consequently, we employ

plain error review. See Balo, 2011-Ohio-3341, at ¶ 48.

Evidentiary Rules for Hearsay

{¶41} Hearsay is “a statement, other than one made by the declarant while

testifying at trial or hearing, offered in evidence to prove the truth of the matter

6
The State also suggests that the statements potentially fall under the statement of then existing mental,
emotional, or physical condition hearsay exception. See Evid.R. 803(3). Statements admitted under this
exception “cannot include an explanation as to why the declarant was of that particular [condition].” State
v. Stewart, 75 Ohio App.3d 141, 152 (11th Dist. 1991), citing State v. Apanovitch, 33 Ohio St.3d 19, 21
(1987). Except for Gerber’s statements regarding the mere existence of her injuries, none of the statements
implicated in this Assignment of Error are covered by the then existing mental, emotional, or physical
condition because they all involve explanations by Gerber as to the source of her injuries.

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Case No. 8-11-19

asserted.” Evid.R. 801(C). Evid.R. 802 generally prohibits the admission of

hearsay unless the offered hearsay statement is covered by a specific exception.

Two such exceptions are possibly applicable in this matter.

{¶42} First, the present sense impression exception allows the admission of

a hearsay statement if it “describe[s] or explain[s] an event or condition while the

declarant was perceiving the event or condition, or immediately thereafter unless

circumstances indicate lack of trustworthiness.” Evid.R. 803(1). “The principle

underlying this exception is the assumption that statements or perceptions,

describing the event and uttered in close temporal proximity to the event, bear a

high degree of trustworthiness.” Cox v. Machinery Co., 41 Ohio App.3d 28, 35

(12th Dist. 1987). Accordingly, “central to the admission of statements of present

sense impression is the temporal proximity of the statements to the event at issue.”

State v. Graves, 9th Dist. No. 08CA009397, 2009-Ohio-1133, ¶ 4, vacated on

other grounds, 2011-Ohio-5997; see also Cox at 35-36 (“The key to the

statement’s trustworthiness is the spontaneity of the statement, either

contemporaneous with the event or immediately thereafter.”). While temporal

proximity is critical to a present sense impression analysis, there is no bright line

rule as to what amount of elapsed time precludes a finding that the exception

applies. Indeed, some courts have found that the exception applies even where the

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Case No. 8-11-19

statement was made up to an hour after the event perceived. See, e.g., State v.

Travis, 165 Ohio App.3d 626, 2006-Ohio-787, ¶ 37 (2d Dist.).

{¶43} Second, the excited utterance exception permits the introduction of

“[a] statement relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition.” Evid.R.

803(2). For a statement to satisfy Evid.R. 803(2)’s excited utterance exception, the

following four elements must be present:

(1) the event must be startling enough to produce a nervous
excitement in the declarant,
(2) the statement must have been made while the declarant was still
under the stress of excitement caused by the event,
(3) the statement must relate to the startling event, and
(4) the declarant must have personally observed the startling event.
State v. Tebelman, 3d Dist. No. 12-09-01, 2010-Ohio-481, ¶ 27,
citing State v. Taylor, 66 Ohio St.3d 295, 300-01 (1993).

Further, “[t]he controlling factor is whether the declaration was made under such

circumstances as would reasonably show that it resulted from impulse rather than

reason and reflection.” State v. Humphries, 79 Ohio App.3d 589, 598 (12th Dist.

1992).

Gerber’s October 24, 2008 Telephone Call

{¶44} The courts have consistently noted that “911 calls are generally

admissible as excited utterances or present sense impressions.” State v. Johnson,

10th Dist. No. 08AP-652, 2009-Ohio-3383, ¶ 22. Based on our review of Gerber’s

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Case No. 8-11-19

telephone call to the Logan County Sheriff’s emergency dispatch on October 24,

2008, we find that it fits into this general trend.

{¶45} Two of Gerber’s statements in the 911 call are central to our review.

First, she stated that “[m]y son is beating me” and second, she said, “I need

somebody to control him.” Trial Tr., p. 82-83. While there is no concrete

evidence in the record establishing the exact time of the alleged abuse, these

statements suggest that May hit his mother shortly before the call. It is unlikely

that Gerber would request help “control[ling]” May unless she was perceiving a

present threat to her safety. Further, her use of the present participle “beating”

also indicates that May’s alleged abuse was ongoing at the time of the call. Under

these facts, we find that Gerber’s statements in the October 24, 2008 emergency

dispatch call were present sense impressions.

{¶46} Moreover, even if the statements were not present sense impressions,

they were excited utterances. Gerber indicated that she needed somebody to

control May, which suggests that she was under the stress of possible physical

harm at the time that she made the call. May seizes upon Gerber’s statement in

the 911 call that “I’ll be fine” to argue that she was not under the stress of

excitement. Id. at 83. However, Gerber did not say “I am fine.” She said, “I’ll be

fine,” suggesting that at the time of the call she was not “fine.” As a result, May’s

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Case No. 8-11-19

reliance on this statement is misplaced since it actually signals that Gerber was

under the stress of May’s alleged abuse at the time of the call.

{¶47} Consequently, we find that it was not plain error for the trial court to

admit Gerber’s statements in this 911 call into evidence.

Gerber’s Statements to Deputy Kopus on October 24, 2008

{¶48} Deputy Kopus testified that Gerber informed him during his

investigation of the October 24, 2008 incident that May had hit her. The State also

offered a written statement from Gerber regarding May’s alleged abuse that

evening.7 A review of the record discloses that the trial court properly admitted

Gerber’s statements.

{¶49} Again, there is no concrete indication in the record exactly when the

alleged abuse occurred. However, when Deputy Kopus arrived on the scene,

Gerber’s nose was still bleeding from the alleged abuse and she was holding a

towel to it. This evidence, combined with Gerber’s statements in her 911 call,

indicates that the alleged abuse occurred shortly before Gerber made her oral

statement to Deputy Kopus. Further, it also reflects that Gerber was still under the

stress of the abuse when she made her statement. As such, her oral statements to

Deputy Kopus were admissible as an excited utterance. While it may have been

error to admit the written statement, we find it to be cumulative and harmless in

7
We note that in his appellate brief, May challenges the reading of the written statement into the record,
but that he does not explicitly challenge the admission of the written statement into the record as State’s
Exhibit 16.

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Case No. 8-11-19

this case. Consequently, we find that it was not plain error for the trial court to

admit Deputy Kopus’ testimony regarding Gerber’s statements to him.

Gerber’s January 23, 2010 Telephone Call

{¶50} Gerber’s telephone call to the Logan County emergency dispatchers

on January 23, 2010 included two relevant statements: (1) May was running

around naked; and (2) Gerber was locked out of the house in the cold weather.

There is no indication in the record that these events were not occurring at the time

that Gerber made her statements to the dispatcher. Further, when Deputy Kopus

and Deputy Meek arrived at the house, May was still naked and Gerber was still

locked outside. Based on this, Gerber’s statements are plainly within the present

sense impression exception.8 Moreover, even if the statements were not within a

hearsay exception, their admission would be harmless because Gerber did not

suggest that she suffered any physical abuse during the telephone call.

Consequently, we find that it was not plain error for the trial court to admit

Gerber’s statements in her 911 call on January 23, 2011.

Gerber’s Statements to Deputies on January 23, 2010

{¶51} During the deputies’ investigation of the January 23, 2010 incident,

Gerber once again told the responding deputies that May had hit her. Both Deputy

8
Since Gerber made the statements while she was still locked out, there is also a sufficient basis to
conclude that she was under stress so as to bring statements under the excited utterance exception.

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Case No. 8-11-19

Kopus and Deputy Meek testified as to these statements. A review of the record

discloses that the statements are admissible as present sense impressions.

{¶52} Deputy Meek testified that when he and Deputy Kopus arrived at the

house, they discovered Gerber locked outside with May still inside naked. Deputy

Meek further stated that upon their arrival, Gerber immediately said that May had

struck her. This close temporal proximity between Gerber’s statement and the

described event satisfies the present sense impression exception. Compare Travis,

165 Ohio App.3d 626, 2006-Ohio-787, at ¶ 37 (finding that declarant’s statement

to police was admissible where statement related to events that occurred an hour

beforehand and were immediately given after police arrived) with State v. May,

7th Dist. No. 10 CO 23, 2011-Ohio-6637, ¶ 41 (finding that declarant’s statement

regarding described events was not covered by present sense impression because

declarant did not make statement until long after the deputies had arrived on scene

to investigate).9 Consequently, we find that it was not plain error for the trial court

to admit Gerber’s statements to the deputies on January 23, 2010.

Gerber’s October 17, 2010 Telephone Call

{¶53} Gerber’s telephone call to the Logan County emergency dispatchers

on October 17, 2010 included two relevant statements: (1) May was coming back

into the house; and (2) Gerber said she had to get off the phone. These statements

9
Moreover, Gerber’s statement was made while she was under the shock of having seen her son nude in
her bedroom and having been locked outside of the house on a cold evening. This evidence is sufficient to
establish the applicability of the excited utterance exception.

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Case No. 8-11-19

suggest that Gerber was contemporaneously observing May at the time of the

phone call and that she was fearful that May would find her on the telephone.

Indeed, she later told the deputies that she hung up the phone because she was

afraid that May would discover her. Based on this, Gerber’s statements in the

telephone call are properly considered either present sense impressions or excited

utterances and they were accordingly admissible. Further, even if the statements

were inadmissible, their admission would be harmless error because the statements

do not indicate that May had abused Gerber.

{¶54} May points to Gerber’s failure to identify the nature of the

emergency in her 911 call to indicate that she was not under stress at the time of

the call. This failure does little more than reinforce Gerber’s reluctant nature in

reporting May’s alleged abuse. Further, it could be seen as implying that Gerber

was unwilling to identify the emergency out of fear that May would take adverse

action against her. As a result, we decline to adopt May’s reasoning.

Consequently, we find that it was not plain error for the trial court to admit

Gerber’s October 17, 2010 telephone call.

Gerber’s Statements to Deputies on October 17, 2010

{¶55} Deputy Kopus testified that Gerber was “physically upset” when she

made her statements to the deputies on October 17, 2010. Trial Tr., p. 113. The

recording of her statements disclosed that Gerber repeatedly said she could not

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Case No. 8-11-19

handle the situation anymore and that she needed to get away from May. Further,

Gerber cried at several points in the conversation. This evidence suggests that

Gerber was distressed throughout her statements. As such, the statements were

admissible as excited utterances. Consequently, we find that it was not plain error

for the trial court to admit Gerber’s statements to the deputies on October 17,

2010.

Gerber’s April 26, 2011 Telephone Call

{¶56} Gerber’s 911 telephone call on April 26, 2011 merely included her

statement that there was an emergency and that she wanted somebody to stop

“him.” Id. at 93-94. Her request that someone come to control May indicates that

there was ongoing conduct and that Gerber was fearful for her personal safety. As

a result, the statements are either excited utterances or present sense impressions

and are properly admissible. Consequently, we find that it was not plain error for

the trial court to admit Gerber’s statements during her telephone call on April 26,

2011.

Gerber’s Statements to Deputies on April 26, 2011

{¶57} Deputy Layman testified that when Deputy Kopus and he arrived at

Gerber’s and May’s house on April 26, 2011, Gerber appeared “uneasy with

whatever situation was going on inside the house.” Id. at 259. Further, Deputy

Kopus’ testimony indicated that May had threatened to kill Gerber and was

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Case No. 8-11-19

verbally abusive to her. These facts suggest that Gerber was under stress of the

alleged abuse when she made her statements. As such, her statements to the

deputies on April 26, 2011 fall under the excited utterance exception.

{¶58} May claims that there was no basis for an excited utterance finding

because Gerber did not explicitly state that she was afraid of May. While Gerber

did not explicitly admit her fear, her statements reflect that she was afraid of May.

She wanted deputies to come to her house to control him. And, she was on the

receiving end of death threats from him. Based on this evidence, we find May’s

argument to be unpersuasive. Consequently, we find that the trial court did not

commit plain error in admitting Gerber’s statements to the deputies on April 26,

2011.

May’s Arguments for Inadmissibility

{¶59} May’s counterargument regarding the applicability of the excited

utterance exception narrowly focuses on the deputies’ description of Gerber as

highly intoxicated. This description is immaterial to the admissibility of the above

evidence, and goes only to the weight of the evidence. Rather, our analysis

focuses on the statements, actions, and demeanor of Gerber. She called

emergency dispatchers requesting assistance in controlling or stopping May.

When the deputies responded, they found her once with a bloody nose, once she

was “physically upset,” and once she was “uneasy.” These items of evidence

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Case No. 8-11-19

provide a sufficient basis for a finding that Gerber’s statements were admissible as

excited utterances and her intoxication does not render this conclusion invalid.

{¶60} May also suggests that for the excited utterance exception to apply in

this matter, Gerber had to be uncontrollably shaking or in an extreme state of fear.

Despite May’s suggestion, he has not cited any case requiring such a showing. In

light of this and our application of plain error review, the evidence of Gerber’s

distress discussed above is sufficient to satisfy the excited utterance exception.

{¶61} May’s contention that the present sense impression exception does

not apply is also unavailing. The exception applies both where the declarant’s

statement relates to his contemporaneous observation of the described event and

where the declarant made his statement soon after observing the described event.

State v. Urso, 195 Ohio App.3d 665, 2011-Ohio-4702, ¶ 69 (11th Dist.) (finding

that statement was admissible because declarant described events as he was

perceiving them); Travis, 165 Ohio App.3d 626, 2006-Ohio-787, at ¶ 37 (finding

that declarant’s statement to police was admissible where statement related to

events that occurred an hour beforehand). Thus, the present sense impression

exception still applies here and we decline to read the exception as narrowly as

May suggests we do.

{¶62} Accordingly, we overrule May’s second assignment of error.

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Assignment of Error No. III

{¶63} In his third assignment of error, May claims that the trial court

abused its discretion by granting the State’s motion for the trial court to call Diane

Gerber as its own witness. We disagree.

{¶64} Evid.R. 614(A) provides: “The court may, on its own motion or at

the suggestion of a party, call witnesses, and all parties are entitled to cross-

examine witnesses thus called.” Further, Evid.R. 614(C) requires that objections

to the trial court’s calling of a witness be made either at the time of the calling or

shortly thereafter. May did not present any objection to the trial court’s calling of

Gerber as its own witness. He filed no written opposition to the State’s motion,

nor did his trial counsel orally contest the calling of Gerber. As such, May has

waived appellate review of this issue. State v. Davis, 79 Ohio App.3d 450, 455

(4th Dist. 1992) (“The failure of a party to object in accordance with Evid.R.

614(C) waives consideration of the claimed error on appeal * * *.”); see also State

v. Brown, 11th Dist. No. 2001-T-0146, 2003-Ohio-2364, ¶ 38-39 (finding waiver

of Evid.R. 614 issues when not raised in court below); Metaullics Sys. Co. L.P. v.

Molten Metal Equip. Innovations, Inc., 110 Ohio App.3d 367, 373 (8th Dist. 1996)

(same).

{¶65} Even if the issue was not waived, the record reflects that the calling

of Gerber as the trial court’s witness did not prejudice May. Gerber testified that

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Case No. 8-11-19

May had not hit her and that she could not remember the incidents included in the

indictment. Further, Gerber was subject to cross-examination by May’s trial

counsel. And, May’s trial counsel even recalled Gerber as a defense witness.

Based on this record, we find no error in the trial court’s calling of Gerber as its

own witness.

{¶66} Accordingly, we overrule May’s third assignment of error.

Assignment of Error No. IV

{¶67} In his fourth assignment of error, May contends that the trial court

erroneously allowed evidence regarding previous physical altercations between

May and Gerber. We disagree.

{¶68} Again, we preliminarily note that May did not object to the

admission of this evidence in the trial court. Consequently, May has “waived any

challenge to the admission of evidence on appeal, save plain error.” Shanklin v.

Lowman, 3d Dist. No. 8-10-07, 2011-Ohio-255, ¶ 46; see also Balo, 2011-Ohio-

3341, ¶ 8.

{¶69} Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in

conformity therewith.” However, there are exceptions to the general rule: “It may,

however, be admissible for other purposes, such as proof of motive, opportunity,

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Case No. 8-11-19

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Id.

{¶70} In his appellate brief, May identifies several portions of the trial

transcript in which the State purportedly offered evidence that is inadmissible

under Evid.R. 404(B) because it demonstrates May’s previous bad acts. These

portions of the transcript reveal the following evidence: (1) the deputies have been

to Gerber’s and May’s house several times in addition to the incidents described in

the indictment; (2) Gerber refused to assist in previous prosecutions of May; (3)

May has previous domestic violence convictions and an arrest for aggravated

menacing; and (4) May broke his mother’s teeth on previous occasions. We

address each of these items in turn.

Previous Police Visits

{¶71} The evidence that the deputies have visited Gerber’s and May’s

house on previous occasions other than the ones charged in the indictment does

not amount to “other acts” evidence that is inadmissible under Evid.R. 404(B).

There was no testimony indicating that the deputies observed May engage in any

bad acts or arrested him during these other visits. Indeed, except for one occasion,

the record is devoid of any evidence as to why the deputies visited the house or

what they observed during these visits. As to this one exception, the evidence

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Case No. 8-11-19

adduced established that the deputies visited because Gerber was unable to find

May and that she was arrested for disorderly conduct as a result of her actions.10

{¶72} Even if the visits were inadmissible, the error would have been

harmless. See State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, ¶ 25 (stating

that harmless error “is any error that does not affect the outcome of the case and,

thus, does not warrant a judgment overturned or set aside.”). The evidence of the

previous visits does not reduce the import of Gerber’s statements to the deputies

and the testimony regarding her injuries. Further, May’s stipulation to previous

domestic violence offenses already had the effect of informing the jury that there

were previous interactions between May and the deputies. Thus, any potential

erroneous admission of this evidence would not have affected the jury’s findings.

Consequently, we find no plain error in the trial court’s admission of this evidence

of other police visits to Gerber’s and May’s house.

Gerber’s Lack of Cooperation with Previous Prosecutions of May

{¶73} Like the police visits, the evidence of Gerber’s lack of cooperation

with previous prosecutions of May does not amount to “other acts” evidence that

is inadmissible under Evid.R. 404(B). The evidence adduced at trial included

Gerber’s statements in the recordings that she was uncooperative with prosecuting

May after the first indictment was issued. The first indictment’s charges were

10
We also note that May’s trial counsel referred to the fact that the authorities had been to the house
multiple times. See Trial Tr., p. 187 (“I know that you have been out there various different times * * *.”).

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Case No. 8-11-19

based on the October 24, 2008 and January 23, 2010 incidents, both of which were

also covered in the second indictment. As such, the evidence relates to the counts

charged in the second indictment and the circumstances surrounding this

prosecution, which leaves this evidence outside the purview of Evid.R. 404(B).

See State v. Hobson, 5th Dist. No. CA-732 (Aug. 2, 1991) (finding that Evid.R.

404(B) did not cover the witness’s “narrative of the events that occurred,” which

described “the surrounding circumstances for the crime [charged]”). Further, the

evidence does not reflect upon May’s character, but only upon Gerber’s character

for credibility. Consequently, we find no plain error in the admission of the

evidence regarding Gerber’s lack of cooperation with previous prosecutions of

May.

Evidence of May’s Criminal History

{¶74} Two items of evidence presented at trial relate to May’s criminal

history: (1) his previous convictions for domestic violence; and (2) his previous

charge for aggravated menacing. The admission of these items does not constitute

reversible error.

{¶75} May was charged with four counts of domestic violence, each with a

specification that he had previous domestic violence convictions. The State must

prove an indictment specification beyond a reasonable doubt. See State v. Louis,

9th Dist. No. 20073 (Mar. 7, 2001) (“[T]he existence of a prior crime of domestic

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Case No. 8-11-19

violence [is] an element of the crime charged and it [is], therefore, incumbent

upon the State to establish the prior crime by evidence beyond a reasonable

doubt.”). Based on this requirement, courts have allowed the State to present

additional evidence of the defendant’s domestic violence convictions, even when

the parties have stipulated to such convictions. State v. Arnold, 8th Dist. No.

79280 (Jan. 24, 2002); see also State v. Rivera, 99 Ohio App.3d 325, 329-30 (11th

Dist. 1994) (allowing State to present evidence of prior drug convictions even

though the defendant stipulated to such convictions because the State had to prove

previous convictions to obtain punishment enhancement).

{¶76} In this matter, the parties did stipulate to May’s previous

convictions.11 The State also called Deputy Kopus and played the recordings of

his conversations with May. In those conversations, May said that he had prior

convictions and that his next conviction would produce a prison term. This

evidence is plainly admissible because it is relevant to the specifications included

in the indictment.

{¶77} The recordings also include May’s statement that he was previously

charged with aggravated menacing. Unlike evidence of his previous domestic

violence convictions, this is not relevant to the crimes charged in the indictment.

However, we find no prejudicial error in the evidence’s admission. The State did

11
Although the State contends that it did not present additional evidence of May’s convictions, the record
reflects that the State played the audio tape with May making his own admissions as to his prior
convictions.

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Case No. 8-11-19

not present any evidence besides May’s short admission regarding the aggravated

menacing charge. And, the State did not cite to it in either the opening or closing

statement. Thus, there is no indication that this evidence overpowered the jury

and caused the outcome of the trial to change. Consequently, we find that the

admission of evidence regarding May’s criminal history does not amount to plain

error.

May’s Alleged Breaking of Gerber’s Teeth

{¶78} Evidence that May allegedly broke Gerber’s teeth presents a closer

call. However, after considering the record in its entirety, we do not find any

reversible error.

{¶79} In the recording of Deputy Kopus’ conversation with Gerber on

April 26, 2011, Gerber indicates that May had previously broken her teeth.

However, there was no indication in the conversation whether the breaking of

Gerber’s teeth resulted from May’s violence or from another type of conduct.

Further, on direct examination by May’s trial counsel, Gerber said that May did

not purposefully break her teeth and that he repaired them whenever they broke.

As a result of this, the jury was unable to draw any inferences from the evidence

except that Gerber’s teeth were previously broken.

{¶80} Even if the evidence was improper, its admission would be harmless.

May’s alleged breaking of Gerber’s teeth did not change the outcome in the trial

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Case No. 8-11-19

court. Gerber’s statements, the testimony from the responding deputies, and the

evidence of Gerber’s injuries support May’s conviction. See State v. Barker, 6th

Dist. No. L-01-1290, 2002-Ohio-2801, ¶ 26 (finding that the admission of prior

bad acts was not plain error because other evidence was sufficient to support the

defendant’s conviction). In light of this, we cannot say that the jury relied upon

the evidence of May’s alleged breaking of Gerber’s teeth in reaching its verdict.

Consequently, we find no plain error in the admission of evidence regarding the

alleged breaking of Gerber’s teeth.

{¶81} Additionally, we note that May introduced evidence of his peaceful

character. When May recalled Gerber as a defense witness, she testified that May

was not aggressive or violent toward anyone. Even if the evidence of May’s other

acts had a prejudicial effect on the jury, Gerber’s testimony would have reduced it.

{¶82} Accordingly, we overrule May’s fourth assignment of error.

Assignment of Error No. V

{¶83} In his fifth assignment of error, May argues that his statements to the

responding officers are inadmissible. Specifically, May suggests that the

statements were made while he was under arrest and before he was advised of his

constitutional rights. We disagree.

{¶84} In the trial court proceedings, May did not object to the admission of

his statements on the grounds that they violated his Miranda rights. As such May

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Case No. 8-11-19

has waived this issue, except for plain error. State v. Truax, 7th Dist. No. 06 BE

66, 2007-Ohio-4993, ¶ 16, citing State v. Foust, 105 Ohio St.3d 107, 2004-Ohio-

7006, ¶ 58 (“[T]he failure to properly provide Miranda warning are issues that

must be resolved in the trial court during suppression proceedings, and these

issues cannot be raised for the first time on appeal.”). As discussed above, May’s

statements to the deputies referred to his previous domestic violence convictions,

which are admissible, and his previous aggravated menacing arrest, which is not

prejudicial to May. See State v. Morris, 7th Dist. No. 08 CO 7, 2009-Ohio-3326, ¶

47 (finding that due to other evidence in the case, the defendant’s statements to

deputies in violation of Miranda were harmless). Consequently, we do not find

plain error in the admission of May’s statements.

{¶85} Accordingly, we overrule May’s fifth assignment of error.

Assignment of Error No. VI

{¶86} In his sixth assignment of error, May maintains that the trial court

erroneously allowed the State to employ preemptory challenges in a gender

discriminatory fashion. We disagree.

{¶87} In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419

(1994), the United States Supreme Court found that “the Equal Protection Clause

prohibits discrimination in jury selection on the basis of gender.” Id. at 146; see

also Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712 (1986) (prohibiting use

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Case No. 8-11-19

of racial discrimination in preemptory challenges). A criminal defendant’s failure

to assert a J.E.B. issue, however, results in a waiver of that issue, except for the

existence of plain error. State v. Ballew, 76 Ohio St.3d 244, 253 (1996). In

Ballew, the defense’s failure to object prevented the State from offering a non-

discriminatory explanation for its preemptory challenge. As a result, the Court

decided against addressing the issue’s merits. Id. The same facts exist here and

we follow Ballew’s guidance in finding a waiver of any J.E.B. issue.

{¶88} Accordingly, May’s sixth assignment of error is overruled.

Assignment of Error No. VII

{¶89} In his seventh assignment of error, May contends that he was

deprived of the effective assistance of counsel in violation of the Sixth and

Fourteenth Amendments to the United States Constitution. Specifically, May

suggests that his trial counsel’s failure to object to the evidence described in

Assignment of Error Nos. I through V and the State’s preemptory challenges

establish ineffective assistance of counsel. We disagree.

{¶90} An ineffective assistance of counsel claim requires proof that trial

counsel’s performance fell below objective standards of reasonable representation

and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d

136 (1989), paragraph two of the syllabus. To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there

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exists a reasonable probability that, but for counsel’s errors, the outcome at trial

would have been different. Id. at paragraph three of the syllabus. “Reasonable

probability” is a probability sufficient to undermine confidence in the outcome of

the trial. State v. Waddy, 63 Ohio St.3d 424, 433 (1992), citing United States v.

Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375 (1985), superseded by constitutional

amendment on other grounds as recognized by State v. Smith, 80 Ohio St.3d 89,

103 (1997).

{¶91} Further, the court must look to the totality of the circumstances and

not isolated instances of an allegedly deficient performance. State v. Malone, 2d

Dist. No. 10564 (Dec. 13, 1989). “Ineffective assistance does not exist merely

because counsel failed ‘to recognize the factual or legal basis for a claim, or failed

to raise the claim despite recognizing it.’” Id., quoting Smith v. Murray, 77 U.S.

527, 535, 106 S.Ct. 2661 (1986).

{¶92} As explained above, evidence of May’s pre-arrest silence, other acts,

and statements to the deputies, as well as the evidence of Gerber’s statements to

emergency dispatchers and responding officers, were either properly admitted or

their admission was harmless error. Further, the trial court’s calling of Gerber as

its own witness was not error. As such, we cannot find that the failure of May’s

trial counsel to object to these evidentiary items or to the calling of Gerber as the

trial court’s witness rises to the level of ineffective assistance of counsel. See

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State v. Dubose, 7th Dist. No. 00-C.A.-60, 2002-Ohio-6613, ¶ 12-13 (finding no

ineffective assistance of counsel where the trial counsel did not object to

admissible evidence or to evidence that was harmlessly admitted).

{¶93} As to the failure of May’s trial counsel to request a hearing regarding

the State’s alleged use of gender discrimination during voir dire, we look to the

authority of State v. Burks, 10th Dist. No. 07AP-553, 2008-Ohio-2463. There, the

court confronted an ineffective assistance of counsel claim for failure of the trial

counsel to assert a Batson violation during the voir dire process. Without an

objection, there was no record regarding the State’s possible use of racial

discrimination during voir dire. As a result, the court stated:

We do not presume prejudice from a trial counsel’s failure to raise a
Batson challenge, and, as here, without an adequate record, we
cannot properly consider on direct appeal a claim of ineffective
assistance of counsel for a trial counsel’s failure to raise a Batson
objection. Id. at ¶ 57.

{¶94} We elect to follow Burks and apply it here to the State’s alleged use

of gender discrimination during voir dire. There was no objection in the trial court

and there is only evidence that the State excused male jurors and alternates. As a

result, there is an inadequate record and we are unable to assess the merits of

May’s argument. We also note that the makeup of the jury was almost equally

balanced as to gender. Consequently, we decline to assess whether the failure of

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May’s trial counsel to probe into the reasons for the State’s preemptory challenges

supports an ineffective assistance of counsel claim.

{¶95} Accordingly, we overrule May’s seventh assignment of error.

Assignment of Error No. VIII

{¶96} In his eighth assignment of error, May argues that cumulative errors

in the trial court proceedings deprived him of due process. We disagree.

{¶97} The doctrine of cumulative error provides that “a conviction will be

reversed where the cumulative effect of errors in a trial deprives a defendant of the

constitutional right to a fair trial even though each of numerous instances of trial

court error does not individually constitute cause for reversal.” State v. Baucom,

3d Dist. No. 17-03-14, 2003-Ohio-6986, ¶ 6, quoting State v. Leach, 150 Ohio

App.3d 567, 2002-Ohio-6654, ¶ 57 (1st Dist.). The appellant must show that there

is a reasonable probability that but for the errors, the trial outcome would have

been different. State v. Ray, 3d Dist. No. 14-05-39, 2006-Ohio-5640, ¶ 68. Here,

because we have found no errors in May’s previous assignments, May’s argument

that cumulative error has resulted in a denial of due process must also necessarily

fail. State v. Bradley, 3d Dist. No. 15-10-03, 2010-Ohio-5422, ¶ 82.

{¶98} Accordingly, we overrule May’s eighth assignment of error.

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{¶99} Having found no error prejudicial to May, in the particulars assigned

and argued, we affirm the judgment of the trial court.

Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr

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