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Date: 08-08-2020
Case Style:
STATE OF OHIO v. CORY BENJAMIN SHEPHERD
Case Number: 6-19-02 6-19-03
Judge: William R. Zimmerman
Court: IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HARDIN COUNTY
Plaintiff's Attorney: Jason M. Miller
Defendant's Attorney:
Call 918-582-6422 for free help finding a great criminal defense lawyer.
Description:
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{¶1} Defendant-appellant, Cory Benjamin Shepherd (“Shepherd”), appeals
the February 11, 2019 judgment entries of sentence of the Hardin County Court of
Common Pleas. For the reasons that follow, we affirm the judgment of the trial
court in case number 20182105 CRI, assigned appellate case number 6-19-03, and
dismiss case number 20162142 CRI, assigned appellate case number 6-19-02.
{¶2} On October 11, 2016, Shepherd (in case number 20162142 CRI)
waived prosecution by indictment, and the State filed a bill of information, charging
him with one count of failure to appear in violation R.C. 2937.29 and 2937.99(A),
(B), a fourth-degree felony. (Case No. 20162142 CRI, Doc. Nos. 1, 2, 3). Shepherd
pled guilty to the failure-to-appear charge in the bill of information, the trial court
found him guilty, and he was sentenced to 12 months in prison, which he was
ordered to serve consecutively to an 18-month prison term imposed in case number
20162082 CRI. (Case No. 20162142 CRI, Doc. Nos. 4, 5).
{¶3} On April 21, 2017, Shepherd (in case number 20162142 CRI) filed a
motion for judicial release. (Case No. 20162142 CRI, Doc. No. 11). On May 3,
2017, the State filed a memorandum in opposition to Shepherd’s motion for judicial
release. (Case No. 20162142 CRI, Doc. No. 13). On May 22, 2017, Shepherd filed
an application seeking admittance to the “Hardin County Recovery Court.” (Case
No. 20162142 CRI, Doc. No. 16). On September 6, 2017, the trial court granted
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Shepherd’s motion for judicial release under R.C. 2929.20, and placed him on
judicial release with community-control sanctions, which included successful
completion of the terms and conditions of the Recovery Court. (Case No. 20162142
CRI, Doc. No. 24). On September 11, 2018, after Shepherd failed to adhere to the
terms and conditions of the Recovery Court, the trial court terminated Shepherd
from the program. (Case No. 20162142 CRI, Doc. No. 28). Thereafter, on
September 19, 2018, the State requested that the trial court revoke Shepherd’s
community control. (Case No. 20162142 CRI, Doc. No. 29).
{¶4} Also on September 19, 2018, the Hardin County Grand Jury indicted
Shepherd (in case number 20182105 CRI) on two counts: Count One of tampering
with evidence in violation of R.C. 2921.12(A)(1), a third-degree felony, and Count
Two of criminal damaging or endangering in violation of R.C. 2909.06(A)(1), a
second-degree misdemeanor. (Case No. 20182105 CRI, Doc. No. 1). Shepherd
appeared for arraignment on October 4, 2018 and entered pleas of not guilty to the
indictment. (Case No. 20182105 CRI, Doc. No. 6).
{¶5} After a probable-cause hearing on October 4, 2018, the trial court (in
case number 20162142 CRI) proceeded to a final-revocation hearing on January 15,
2019 during which the trial court concluded that Shepherd violated the terms and
conditions of his community control. (Case No. 20162142 CRI, Doc. Nos. 36, 44).
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{¶6} Case number 20182105 CRI proceeded to a jury trial on February 5,
2019, and the jury found Shepherd guilty of the counts in the indictment. (Case No.
20182105 CRI, Doc. Nos. 22, 23). That same day, the trial court sentenced
Shepherd to 24 months in prison on Count One and 90 days in jail on Count Two,
and ordered that Shepherd serve the terms concurrently. (Case No. 20182105 CRI,
Doc. No. 25). Also that day, the trial court (in case number 20162142 CRI) revoked
Shepherd’s judicial release and “sentenced him to 12 months in prison.” (Case No.
20162142 CRI, Doc. No. 47). The trial court ordered that Shepherd serve the prison
term imposed in case number 20162142 CRI consecutive to the concurrent prison
term imposed in case number 20182105 CRI for an aggregate sentence of 36
months. (Case No. 20182105 CRI, Doc. No. 25). The trial court filed its judgment
entries of sentence on February 7, 2019. (Case No. 20162142 CRI, Doc. No. 47);
(Case No. 20182105 CRI, Doc. No. 25).
{¶7} Shepherd filed his notices of appeal on February 27, 2019 in case
numbers 20162142 CRI and 20182105 CRI, which were consolidated for purposes
of appeal. (Case No. 20162142 CRI, Doc. No. 50); (Case No. 20182105 CRI, Doc.
No. 31). Because Shepherd does not assign any error as to case number 20162142
CRI, assigned appellate case number 6-19-02, we dismiss that appeal under App.R.
12 and 16.
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{¶8} Shepherd raises five assignments of error as to case number 20182105
CRI, assigned appellate case number 6-19-03. For ease of our discussion, we will
begin by discussing Shepherd’s first and fifth assignments of error together,
followed by his fourth, second, and third assignments of error.
Assignment of Error No. I
The State’s evidence that Shepherd tampered with evidence by
cutting of [sic] his GPS monitor was legally insufficient.
Assignment of Error No. V
The evidence manifestly weighed against convicting Shepherd of
Tampering with Evidence.
{¶9} In his first and fifth assignments of error, Shepherd argues that his
tampering-with-evidence conviction is based on insufficient evidence and is against
the manifest weight of the evidence.1
Specifically, in his first assignment of error,
Shepherd argues that his tampering-with-evidence conviction is based on
insufficient evidence because the State failed to present evidence (1) that a
reasonable person in Shepherd’s position would have known that an official
investigation was in progress or was about to be or likely to be instituted or (2) that
he removed the ankle monitor with the specific intention of impairing its availability
or value as evidence in that investigation. In his fifth assignment of error, Shepherd
1
Shepherd does not challenge his criminal-damaging conviction.
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specifically argues that the weight of the evidence shows that he did not tamper with
evidence.
Standard of Review
{¶10} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997). Therefore, we address each legal concept individually.
{¶11} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,
“[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,
citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19
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(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”), citing Thompkins at 386.
{¶12} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Sufficiency of the Evidence Analysis
{¶13} We begin by addressing Shepherd’s argument that his tampering-withevidence conviction is based on insufficient evidence. See State v. Velez, 3d Dist.
Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist.
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Marion No. 9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999). As an initial matter,
the record reveals that Shepherd failed to renew his Crim.R. 29(A) motion at the
conclusion of his case-in-chief or at the conclusion of all the evidence. (See Feb. 5,
2019 Tr. at 78, 80-81, 95-96).
In order to preserve the issue of sufficiency on appeal, this court has
held that “[w]hen a defendant moves for acquittal at the close of the
state’s evidence and that motion is denied, the defendant waives any
error which might have occurred in overruling the motion by
proceeding to introduce evidence in his or her defense. In order to
preserve a sufficiency of the evidence challenge on appeal once a
defendant elects to present evidence on his behalf, the defendant must
renew his Crim.R. 29 motion at the close of all the evidence.”
State v. Hurley, 3d Dist. Hardin No. 6-13-02, 2014-Ohio-2716, ¶ 37, quoting State
v. Edwards, 3d Dist. Marion No. 9-03-63, 2004-Ohio-4015, ¶ 6. Based on this
court’s precedent, Shepherd’s failure to renew his Crim.R. 29(A) motion at the
conclusion of his case-in-chief or at the conclusion of all evidence waived all but
plain error on appeal. Id. at ¶ 37, citing State v. Flory, 3d Dist. Van Wert No. 15-
04-18, 2005-Ohio-2251, citing Edwards.
{¶14} “However, ‘[w]hether a sufficiency of the evidence argument is
reviewed under a prejudicial error standard or under a plain error standard is
academic.’” Id. at ¶ 38, citing Perrysburg v. Miller, 153 Ohio App.3d 665, 2003-
Ohio-4221, ¶ 57 (6th Dist.), quoting State v. Brown, 2d Dist. Montgomery No.
17891, 2000 WL 966161, *8 (July 14, 2000). “Regardless of the standard used, ‘a
conviction based on legally insufficient evidence constitutes a denial of due process,
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and constitutes a manifest injustice.’” Id., quoting Thompkins at 386-387.
Accordingly, we will proceed to determine whether the State presented sufficient
evidence to support Shepherd’s convictions. See id.
{¶15} R.C. 2921.12 sets forth the elements of the offense of tampering with
evidence and provides, in relevant part: “No person, knowing that an official
proceeding or investigation is in progress, or is about to be or likely to be instituted,
shall * * * [a]lter, destroy, conceal, or remove any record, document, or thing, with
purpose to impair its value or availability as evidence in such proceeding or
investigation * * *.” R.C. 2921.12(A)(1). Thus, to establish that Shepherd tampered
with evidence, the State had to show
“(1) the knowledge of an official proceeding or investigation in
progress or likely to be instituted; (2) the alteration, destruction,
concealment, or removal of the potential evidence; and (3) the purpose
of impairing the potential evidence’s availability or value in such
proceeding or investigation.”
State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, ¶ 11.
{¶16} Knowledge that an official proceeding or investigation is under way
or is likely to be instituted is based on a reasonable person standard. State v. Hicks,
3d Dist. Union Nos. 14-07-26 and 14-07-31, 2008-Ohio-3600, ¶ 54, citing State v.
Mann, 12th Dist. Clermont No. CA2006-05-035, 2007-Ohio-1555, ¶ 11. “The focus
is on the intent of the defendant rather than the purpose of the criminal
investigation.” Id. at ¶ 54, citing Mann at ¶ 11.
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{¶17} “R.C. 2921.12(A)(1) employs a ‘purposely’ culpability standard.”
State v. Rock, 3d Dist. Seneca No. 13-13-38, 2014-Ohio-1786, ¶ 13, citing State v.
Skorvanek, 182 Ohio App.3d 615, 2009-Ohio-1709, ¶ 21 (9th Dist.), citing State v.
Jones, 9th Dist. Summit No. 23234, 2006-Ohio-6963, ¶ 13-15. “A person acts
purposely when it is his specific intention to cause a certain result, or, when the gist
of the offense is a prohibition against conduct of a certain nature, regardless of what
the offender intends to accomplish thereby, it is his specific intention to engage in
conduct of that nature.” R.C. 2901.22(A). See Rock at ¶ 13, citing Skorvanek at ¶
21. See also State v. Holtvogt, 2d Dist. Montgomery No. 24748, 2012-Ohio-2233,
¶ 21. To determine whether a defendant acted purposely, his or her intent may be
inferred from the surrounding facts and circumstances. See State v. Elliot, 3d Dist.
Seneca No. 13-12-43, 2013-Ohio-2386, ¶ 27, citing State v. Huffman, 131 Ohio St.
27, 28 (1936); Rock at ¶ 13, citing Skorvanek at ¶ 21, citing State v. Patel, 9th Dist.
Summit No. 24030, 2008-Ohio-4693, ¶ 34.
{¶18} Therefore, the relevant inquiries in this case are whether the evidence,
when viewed in a light most favorable to the prosecution, is such that any rational
trier of fact could have found that: (1) a reasonable person in Shepherd’s position
would have known that an official investigation was in progress or was about to be
or likely to be instituted; (2) Shepherd altered, destroyed, concealed, or removed the
ankle monitor by cutting it off; and (3) Shepherd removed the ankle monitor with
Case No. 6-19-02, 6-19-03
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the specific intention of impairing its availability or value as potential evidence in
the investigation. See Straley at ¶ 11; Rock at ¶ 13, citing Hicks at ¶ 54, Skorvanek
at ¶ 21, and R.C. 2921.12(A)(1). Because they are the only elements that Shepherd
challenges on appeal, we will review the sufficiency of the evidence supporting only
(1) whether a reasonable person in Shepherd’s position would have known that an
official investigation was in progress or was about to be or likely to be instituted at
the time he removed the ankle monitor and (2) whether Shepherd removed the ankle
with the specific intention of impairing its availability or value as potential evidence
in that investigation.
{¶19} Viewing the evidence in a light most favorable to the prosecution, we
conclude that Shepherd’s tampering-with-evidence conviction is based on sufficient
evidence. First, a rational trier of fact could have found that a reasonable person in
Shepherd’s position would have known that an investigation was under way at the
time he removed the ankle monitor. That is, an offender who is subject to
community control is not only the subject of an ongoing investigation, but that
offender also has knowledge of that investigation. See State v. Thomas, 5th Dist.
Licking No. 14-CA-90, 2015-Ohio-2116, ¶ 15 (concluding that the defendant was
“subject of an official investigation as part of his ongoing probation and
supervision”).
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{¶20} Here, Shepherd signed agreements to abide by the terms and
conditions of his community control, which included his agreement to abide by the
terms and conditions of the Recovery Court. (See Feb. 5, 2019 Tr. at 11-13, 14-15,
18); (State’s Exs. 1, 2, 3). As part of his acceptance into the Recovery Court,
Shepherd was subject to (between one and five) mandatory-drug screenings each
week. (State’s Ex. 2). See Thomas at ¶ 15. Moreover, as a participant in the
Recovery Court, Shepherd was subject to additional sanctions for failing to follow
the terms and conditions of the Recovery Court. (Feb. 5, 2019 Tr. at 18).
{¶21} Because Shepherd violated the terms and conditions of the Recovery
Court by providing an adulterated-urine sample, Shepherd “was placed on house
arrest” “with a GPS ankle monitor.” (Id. at 18-19). Shepherd signed an additional
agreement acknowledging the terms and conditions associated with the ankle
monitor, which included a specific agreement not to “remove” or “tamper” with the
monitor. (Id. at 22-26); (State’s Ex. 4). Compare State v. Wells, 4th Dist. Lawrence
No. 18CA23, 2019-Ohio-3799, ¶ 16 (concluding that Wells’s tampering-withevidence conviction for removing his ankle monitor was based on sufficient
evidence because, in part, “Wells read and signed an agreement” which informed
him that “it was a violation to tamper with the monitor”). Moreover, Aaron J.J.
McPherson (“McPherson”), the Hardin County Common Pleas Court Chief
Probation Officer and Shepherd’s probation officer, testified that, based on
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Shepherd’s violation of the terms and conditions of the Recovery Court, Shepherd’s
conduct was not only the subject of an ongoing investigation into his continued
participation in the Recovery Court, but as part of the ongoing supervision of his
community control. (Feb. 5, 2019 Tr. at 32, 37-38).
{¶22} Second, a rational trier of fact could have found that Shepherd
removed the ankle monitor with the specific intention of impairing its availability
or value as evidence in the investigation into his compliance with the terms and
conditions of his community-control sanctions, including the investigation into his
continued participation in the Recovery Court. Importantly, on the day that he
removed his ankle monitor, Shepherd was ordered to report to the Recovery Court
at 1:00 p.m. after he tested positive for “opiates and gabapentin” earlier that day.
(Id. at 20); (State’s Ex. 5). However, knowing that his positive-drug test would
result in additional sanctions from the Recovery Court, “he cut the ankle bracelet
off.” (Feb. 5, 2019 Tr. at 21, 31-32); (State’s Ex. 2). Indeed, McPherson testified
that Shepherd admitted that “he panicked due to a positive screen in the morning,”
removed the ankle monitor, and then left his residence to purchase heroin. (Feb. 5,
2019 Tr.at 31-32). Accordingly, the evidence presented by the state sufficiently
demonstrates that Shepherd removed the ankle monitor with the specific intention
of impairing its availability or value as evidence in the investigation.
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{¶23} For these reasons, we conclude that there is sufficient evidence that a
reasonable person in Shepherd’s position would have known that an investigation
was under way at the time he removed the ankle monitor and that Shepherd removed
the ankle monitor with the specific intention of impairing its value or availability as
evidence in the investigation. Therefore, Shepherd’s tampering-with-evidence
conviction is based on sufficient evidence.
Manifest Weight of the Evidence
{¶24} Having concluded that Shepherd’s tampering-with-evidence
conviction is based on sufficient evidence, we next address Shepherd’s argument
that his tampering-with-evidence conviction is against the manifest weight of the
evidence. Velez, 2014-Ohio-1788, at ¶ 76. Here, Shepherd makes many of the same
arguments that he makes in his sufficiency-of-the-evidence assignment of error.
Specifically, he argues that the weight of the evidence reflects that “the ankle
monitor had no value in relation to a determination of whether Shepherd failed a
drug screen or was on probation.” (Appellant’s Brief at 18). However, the evidence
that we summarized in our sufficiency-of-the-evidence analysis supporting
Shepherd’s tampering-with-evidence conviction is weightier than the evidence that
he did not tamper with evidence.
{¶25} Notably, Shepherd fails to acknowledge that he was not only the
subject of an ongoing investigation as the result of his community-control sanctions,
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but that he knew that he was the subject of that investigation. See Thomas, 2015-
Ohio-2116, at ¶ 15. Accordingly, as part of the ongoing investigation into
Shepherd’s adherence to his community-control sanctions, which included
adherence to the terms and conditions of the Recovery Court—one of which being
to not only wear the ankle monitor but to not tamper with it or remove it—the weight
of the evidence reflects that Shepherd’s wearing of the ankle monitor was a fact of
value to that ongoing investigation. Therefore, we cannot say that the trier of fact
clearly lost its way and created such a manifest miscarriage of justice that
Shepherd’s conviction must be reversed and a new trial ordered. Thus, Shepherd’s
tampering-with-evidence conviction is not against the manifest weight of the
evidence.
{¶26} Shepherd’s first and fifth assignments of error are overruled.
Assignment of Error No. IV
The plain error standard does not apply to the State’s
Confrontation Clause violation. Even if it did, it was reversible
error for the State to use surrogate testimony under that
standard.
{¶27} In his fourth assignment of error, Shepherd argues that the admission
of evidence of his failed-drug test, his ankle-monitor contract, and the installation
of the ankle monitor violated his right under the Confrontation Clause to confront
witnesses offered against him. In particular, Shepherd argues that “McPherson
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provided substitute testimony for Probation Officer Henderson in violation of
Shepherd’s confrontation right about substitutive facts.” (Appellant’s Brief at 14).
Standard of Review
{¶28} Generally, the admission or exclusion of evidence lies within the trial
court’s discretion, and a reviewing court should not reverse absent an abuse of
discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio2815, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of discretion
implies that the trial court acted unreasonably, arbitrarily, or unconscionably. State
v. Adams, 62 Ohio St.2d 151, 157 (1980). “However, we review de novo evidentiary
rulings that implicate the Confrontation Clause.” State v. McKelton, 148 Ohio St.3d
261, 2016-Ohio-5735, ¶ 97. “De novo review is independent, without deference to
the lower court’s decision.” State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-
Ohio-647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio, 64 Ohio St.3d
145, 147 (1992).
Analysis
{¶29} The Confrontation Clause to the Sixth Amendment of the United
States Constitution, made applicable to the states by the Fourteenth
Amendment, provides that “‘[i]n all criminal prosecutions, the accused shall enjoy
the right * * * to be confronted with the witnesses against him * * *.’” Crawford v.
Washington, 541 U.S. 36, 42, 124 S.Ct. 1354 (2004), quoting the Confrontation
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Clause. See also State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, ¶ 34; State
v. McNeal, 3d Dist. Allen No. 1-01-158, 2002-Ohio-2981, ¶ 43, fn. 13.
The United States Supreme Court has interpreted [the Sixth
Amendment right to confrontation] to mean that admission of an outof-court statement of a witness who does not appear at trial is
prohibited by the Confrontation Clause if the statement is testimonial
unless the witness is unavailable and the defendant has had a prior
opportunity to cross-examine the witness.
Maxwell at ¶ 34, citing Crawford at 53-54. The United States Supreme Court “did
not define the word ‘testimonial’ but stated that the core class of statements
implicated by the Confrontation Clause includes statements ‘made under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.’” Id. at ¶ 35, quoting Crawford
at 52.
{¶30} “Only testimonial hearsay implicates the Confrontation Clause.”
McKelton at ¶ 185. “‘[T]estimonial statements are those made for “a primary
purpose of creating an out-of-court substitute for trial testimony.”’” Id., quoting
Maxwell at ¶ 40, quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143
(2011). That is, “[t]o rank as ‘testimonial,’ a statement must have a ‘primary
purpose’ of ‘establish[ing] or prov[ing] past events potentially relevant to later
criminal prosecution.’” Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705,
2714 (2011), fn. 6, quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266
(2006). “The key issue is what constitutes a testimonial statement: ‘It is the
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testimonial character of the statement that separates it from other hearsay that, while
subject to traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause.’” State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, ¶ 33,
quoting Davis at 821. Nevertheless, “[t]here is also no dispute that the
Confrontation Clause ‘does not bar the use of testimonial statements for purposes
other than establishing the truth of the matter asserted.’” State v. Ricks, 136 Ohio
St.3d 356, 2013-Ohio-3712, ¶ 18, quoting Crawford at 59, and citing Williams v.
Illinois, 567 U.S. 50, 57-58, 132 S.Ct. 2221 (2012).
{¶31} In this case, Shepherd argues that the admission of evidence of his
failed-drug test, his ankle-monitor contract, and the installation of the ankle monitor
absent his ability to examine Probation Officer Henderson violated his right under
the Confrontation Clause to confront witnesses offered against him. As an initial
matter, because Shepherd failed to raise the Confrontation Clause issue to the trial
court, he waived all but plain error on appeal. McKelton at ¶ 191; State v.
Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, ¶ 65. “Crim.R. 52(B) governs plainerror review in criminal cases.” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-
Ohio-1787, ¶ 55, citing State v. Risner, 73 Ohio App.3d 19, 24 (3d Dist.1991). “A
court recognizes plain error with the utmost caution, under exceptional
circumstances, and only to prevent a miscarriage of justice.” State v. Smith, 3d Dist.
Hardin No. 6-1414, 2015-Ohio-2977, ¶ 63, citing State v. Saleh, 10th Dist. Franklin
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No. 07AP-431, 2009-Ohio-1542, ¶ 68. Under plain-error review, “[w]e may reverse
only when the record is clear that defendant would not have been convicted in the
absence of the improper conduct.” Id., citing State v. Williams, 79 Ohio St.3d 1, 12
(1997).
{¶32} Because Shepherd does not challenge the admissibility of the drug-test
evidence, the ankle-monitor contract, or the ankle-monitor installation, we will
address only whether the admission of that evidence violated Shepherd’s Sixth
Amendment rights. We will begin by addressing whether the Confrontation Clause
applies to the drug-test evidence or the ankle-monitor contract. Documents that are
“neither prepared for the primary purpose of accusing a targeted individual nor
prepared for the primary purpose of providing evidence in a criminal trial [are]
nontestimonial, and [their] admission into evidence at trial under Evid.R. 803(6) as
a business record does not violate a defendant’s Sixth Amendment confrontation
rights.” Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, at syllabus. Generally,
business records are nontestimonial because they are prepared in the course of a
regularly conducted business activity—that is, business records are typically not
prepared for litigation. Hood at ¶ 34. See also Crawford at 56; State v. Adams, 146
Ohio St.3d 232, 2016-Ohio-3043, ¶ 4.
Whether a business record meets a hearsay exception is immaterial in
regard to the Confrontation Clause; it is the nontestimonial character
of the record that removes it from the purview of the Confrontation
Clause: “Business and public records are generally admissible absent
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confrontation not because they qualify under an exception to the
hearsay rules, but because—having been created for the
administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial—they are not testimonial.”
Hood at ¶ 34, quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324, 129
S.Ct. 2527 (2009).
{¶33} Here, the drug-test report and the ankle-monitor contract are
nontestimonial business records and their admission did not impinge Shepherd’s
confrontation rights. See Maxwell at ¶ 54; Hood at ¶ 39. That is, each document
was prepared in the ordinary course of the regular performance of the probation
department with the primary purpose of documenting the probationer’s adherence
to the terms and conditions of his or her supervision. See State v. McDargh, 2d Dist.
Clark No. 2015-CA-27, 2016-Ohio-1132, ¶ 13 (“A probation officer may introduce
a business record maintained in the regular course of business by the Probation
Department, by laying a proper foundation in accordance with Evid. R. 803(6).”).
Indeed, McPherson described Shepherd’s drug-test report as a document that the
probation department generates and logs into its computer system with respect to
every probationer’s routine-drug testing. (See Feb. 5, 2019 Tr. at 33-34); (State’s
Ex. 5). Likewise, McPherson identified the ankle-monitor contract as a template
that the probation office uses “every time a participant comes into Recovery Court
[and] they are placed on an ankle monitor.” (Feb. 5, 2019 Tr. at 23- 24); (State’s
Ex. 4). Moreover, McPherson indicated that the failed-drug-test report and ankle
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monitor contract are part of the probation file that the department maintained for
Shepherd. (Feb. 5, 2019 Tr. at 24, 35).
{¶34} Further, neither document was prepared for the primary purpose of
targeting Shepherd or for the primary purpose of providing evidence in a criminal
trial for tampering with evidence. See Maxwell at syllabus; State v. Bump, 3d Dist.
Logan No. 8-12-04, 2013-Ohio-1006, ¶ 104. The drug-test evidence was not
introduced into evidence for the purpose of proving the truth of the matter asserted.
Rather, the drug-test evidence was related by McPherson solely for the purpose of
explaining Shepherd’s intention of impairing the ankle-monitor’s availability or
value as evidence in the investigation into whether he was adhering to the terms and
conditions of his community control. See Maxwell at ¶ 42, citing Williams, 567 U.S.
at 79. See also Bump at ¶ 104. Likewise, the ankle-monitor contract was offered
for the purpose of explaining Shepherd’s knowledge of the ongoing investigation
into his adherence to the terms and conditions of his community control, not for its
truth. See Maxwell at ¶ 42, citing Williams at 79. Furthermore, the drug-test report
and ankle-monitor contract were not prepared with the primary purpose to implicate
Shepherd as guilty of tampering with evidence. See id.; Bump at ¶ 104. As a result,
we conclude that the admission of the drug-test evidence and the ankle-monitor
contract in this case did not violate the Confrontation Clause. Bump at ¶ 104.
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{¶35} Finally, the admission of the ankle-monitor-installation evidence did
not violate Shepherd’s Sixth Amendment rights because that evidence is not hearsay
evidence. “If testimony qualifies as nonhearsay, it does not implicate the
Confrontation Clause.” McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, at ¶ 186.
Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). “A ‘statement” is (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). Here, McPherson’s testimony concerning how the ankle monitor
became affixed to Shepherd’s person does not constitute an out-of-court statement
because the testimony did not reference an oral or written assertion or nonverbal
conduct intended to be an assertion. See State v. Carruth, 2d Dist. Montgomery No.
19997, 2004-Ohio-2317, ¶ 57; State v. Betts, 4th Dist. Pickaway No. 02CA26, 2004-
Ohio-818, ¶ 32; State v. Groves, 6th Dist. Wood No. WD-13-065, 2014-Ohio-4337,
¶ 6. Rather, (notwithstanding McPherson’s testimony that he did not affix it to
Shepherd’s person) McPherson identified—based on his personal knowledge—the
ankle monitor as the ankle monitor that was affixed to Shepherd’s person. (See Feb.
5, 2019 Tr. 36). Accordingly, there is no Confrontation-Clause violation.
{¶36} For these reasons, it was not error, let alone plain error, for the trial
court to admit evidence of Shepherd’s failed-drug test, Shepherd’s ankle-monitor
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contract, or the installation of the ankle monitor. Shepherd’s fourth assignment of
error is overruled.
Assignment of Error No. II
Shepherd’s convictions should be reversed because his trial
counsel was deficient at trial, with resulting prejudice.
{¶37} In his second assignment of error, Shepherd argues that his trial
counsel was ineffective for failing to object to: (1) the admission of inadmissible
“other acts” evidence under Evid.R. 404(B); (2) the admission of testimony
conveying legal conclusions in violation of Evid.R. 701; and (3) the admission of
testimony in violation of the Confrontation Clause.
Standard of Review
{¶38} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) the counsel’s performance was deficient or unreasonable under the
circumstances; and (2) the deficient performance prejudiced the defendant. State v.
Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052 (1984). In order to show counsel’s conduct was deficient or
unreasonable, the defendant must overcome the presumption that counsel provided
competent representation and must show that counsel’s actions were not trial
strategies prompted by reasonable professional judgment. Strickland at 687.
Counsel is entitled to a strong presumption that all decisions fall within the wide
range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675
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(1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally
constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995).
Rather, the errors complained of must amount to a substantial violation of counsel’s
essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141-142
(1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on
other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978).
{¶39} “Prejudice results when ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting
Bradley at 142, citing Strickland at 691. “‘A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’” Id., quoting Bradley at 142
and citing Strickland at 694.
Analysis
{¶40} On appeal, Shepherd argues that his trial counsel was ineffective for
failing to object to: (1) the admission of inadmissible “other acts” evidence under
Evid.R. 404(B); (2) the admission of testimony conveying legal conclusions in
violation of Evid.R. 701; and (3) the admission of testimony in violation of the
Confrontation Clause. “The ‘failure to object to error, alone, is not enough to sustain
a claim of ineffective assistance of counsel.’” Liles at ¶ 49, quoting State v. Johnson,
112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 139, citing State v. Holloway, 38 Ohio St.3d
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239, 244 (1988). “To prevail on such a claim, a defendant must first show that there
was a substantial violation of any of defense counsel’s essential duties to his client
and, second, that he was materially prejudiced by counsel’s ineffectiveness.”
Holloway at 244, citing Lytle at 396-397 and Strickland at 668. “Because
‘objections tend to disrupt the flow of a trial, and are considered technical and
bothersome by the fact-finder,’ competent counsel may reasonably hesitate to object
in the jury’s presence.” State v. Campbell, 69 Ohio St.3d 38, 53 (1994), quoting
Jacobs, Ohio Evidence, at iii-iv (1989).
{¶41} First, Shepherd argues that his trial counsel erred by allowing “the
State to saturate this trial with evidence of acts that [he] was not at all charged with
in this case: evidence of prior convictions; drug addictions; failed drug screenings;
the type of drugs Shepherd was on during probation; and the fact that he was on
house arrest.” (Appellant’s Brief at 10). Specifically, Shepherd argues that this
evidence was impermissible character evidence under Evid.R. 404(B).
{¶42} “‘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.”’” Bagley, 2014-Ohio-1787, at ¶ 56, quoting State v. May,
3d Dist. Logan No. 8-11-19, 2012-Ohio-5128, ¶ 69, quoting Evid.R. 404(B). See
also State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶ 21.
“‘However, there are exceptions to the general rule: “It may, however, be
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admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.”’” Bagley
at ¶ 56, quoting May at ¶ 69, quoting Evid.R. 404(B). See also R.C. 2945.59. “‘The
list of acceptable reasons for admitting testimony of prior bad acts into evidence is
non-exhaustive.’” Bagley at ¶ 56, quoting State v. Persohn, 7th Dist. Columbiana
No. 11 CO 37, 2012-Ohio-6091, ¶ 23, citing State v. Melton, 11th Dist. Lake No.
2009-L-078, 2010-Ohio-1278, ¶ 78, and citing State v. Faye, 3d Dist. Wyandot Nos.
16-99-08 and 16-99-09, 2000 WL 566741, *4 (May 4, 2000).
{¶43} “In State v. Williams, the Supreme Court of Ohio set forth the threestep analysis trial courts should conduct in determining whether “other acts”
evidence is admissible under Evid.R. 404(B).” Id. at ¶ 57, citing 134 Ohio St.3d
521, 2012-Ohio-5695, ¶ 19-20. “‘The first step is to consider whether the other acts
evidence is relevant to making any fact that is of consequence to the determination
of the action more or less probable than it would be without the evidence.’” Id.,
quoting Williams at ¶ 20, citing Evid.R. 401. “‘The next step is to consider whether
evidence of the other crimes, wrongs, or acts is presented to prove the character of
the accused in order to show activity in conformity therewith or whether the other
acts evidence is presented for a legitimate purpose, such as those stated in Evid.R.
404(B).’” Id., quoting Williams at ¶ 20. “‘The third step is to consider whether the
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probative value of the other acts evidence is substantially outweighed by the danger
of unfair prejudice.’” Id., quoting Williams at ¶ 20, citing Evid.R. 403.
{¶44} The evidence of which Shepherd complains was admissible for a
purpose other than showing that he acted in conformity with the character or
reputation suggested by that evidence. See State v. Costell, 3d Dist. Union No. 14-
15-11, 2016-Ohio-3386, ¶ 123, citing State v. Dotson, 2d Dist. Clark No.2003 CA
34, 2004-Ohio-6875, ¶ 16. Specifically, the evidence of which he complains was
relevant to proving the elements of the charges facing Shepherd. See id., citing
Williams at ¶ 7. That is, the State offered that evidence (as we described in our
sufficiency-of-the-evidence analysis) to prove that a reasonable person in
Shepherd’s position would have known that an investigation was under way at the
time he removed the ankle monitor and that Shepherd removed the ankle monitor
with the specific intention of impairing its availability or value as evidence in that
investigation. Specifically, that evidence was introduced to prove Shepherd’s
knowledge of the investigation that was underway into his compliance with the
terms and conditions of his community control. Likewise, that evidence was
introduced to prove Shepherd’s motive for removing the ankle monitor.
Accordingly, the evidence at issue is not improper character evidence. Therefore,
Shepherd’s trial counsel cannot be ineffective for failing to object to the admission
of that evidence. See State v. Teal, 6th Dist. Lucas No. L-15-1280, 2017-Ohio-
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7202, ¶ 31, citing State v. Curtis, 9th Dist. Medina No. 04CA0067-M, 2005-Ohio2143, ¶ 23.
{¶45} Next, Shepherd contends that his trial counsel erred by permitting
McPherson and Brent Leonard (“Leonard”), Vice President of Sales and Marketing
and Business Development at Ohio Alcohol Monitoring Systems, to conclude that
Shepherd tampered with evidence by removing his ankle monitor. In particular, he
contends that McPherson’s and Leonard’s testimony improperly conveyed legal
conclusions in violation of Evid.R. 701.
{¶46} Testimony in the form of an opinion “is not objectionable solely
because it embraces an ultimate issue to be decided by the trier of fact.” Evid.R.
704. See State v. Bond, 10th Dist. Franklin No. 11AP-403, 2011-Ohio-6828, ¶ 15.
However, opinion testimony must be admissible under Evid.R. 701 or 702. Bond
at ¶ 15. Evid.R. 701, which governs the admission of opinion testimony by a lay
witness, permits “a witness who has not been qualified as an expert may testify as
to opinions that are ‘(1) rationally based on the perception of the witness, and (2)
helpful to a clear understanding of the witness’ testimony or the determination of a
fact in issue.’” State v. Neil, 10th Dist. Franklin No. 14AP-981, 2016-Ohio-4762, ¶
71, quoting Evid.R. 701.
{¶47} In this case, McPherson’s and Leonard’s testimony was based on their
personal observations and was helpful to the jury’s understanding that Shepherd
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removed the ankle monitor without permission in contravention of his anklemonitor contract. Compare State v. Crome, 10th Dist. Franklin No. 96APA11-1600,
1997 WL 599155, *2-3 (Sept. 25, 1997) (concluding that the witness’s “lay opinion
that the transaction was a theft offense” was admissible under Evid.R. 701 because
it was based on her own perception and “helpful to the jury’s understanding of the
facts”). Indeed, read in context, McPherson’s testimony that he “received a tamper
with evidence” alert was describing for the jury a message that he received alerting
him that Shepherd’s ankle monitor was no longer affixed to his person. (See Feb.
5, 2019 Tr. at 27-28). Specifically, McPherson was relating to the jury that
Shepherd violated the term of his ankle-monitor contract prohibiting him from
“tampering” with the device by impermissibly removing the ankle monitor as well
the action that he took in response to the alert. (See State’s Ex. 4).
{¶48} Likewise, in discussing a “tampering notification,” Leonard was
explaining to the jury the types of alerts that are sent to the person who is tasked
with monitoring the ankle-monitor device—here, McPherson. (See Feb. 5, 2019 Tr.
at 59, 69). Precisely, Leonard told the jury that individuals in McPherson’s position
are not only notified that a violation occurred but that person is also notified as to
the type of violation that occurred—in this case, a “tampering” violation. Therefore,
because we conclude that McPherson’s and Leonard’s testimony was admissible
under Evid.R. 701, Shepherd’s trial counsel was not ineffective for failing to object
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to the testimony. See State v. Tillman, 6th Dist. Fulton No. F-11-006, 2012-Ohio5265, ¶ 25.
{¶49} Finally, based on our resolution of Shepherd’s fourth assignment of
error, Shepherd’s trial counsel cannot be ineffective for failing to object to the
Confrontation Clause issues relative to the drug-test evidence, ankle-monitor
contract, or the installation of the ankle monitor. See State v. Douglas, 3d Dist.
Marion No. 9-18-19, 2019-Ohio-2067, ¶ 42.
{¶50} Shepherd’s second assignment of error is overruled.
Assignment of Error No. III
Because of cumulative error, Shepherd’s right to a fair trial was
denied.
{¶51} In his third assignment of error, Shepherd argues that the cumulative
effect of the trial court’s errors denied him a fair trial. Specifically, Shepherd argues
that the cumulative effect of the errors that he alleged in his first, second, fourth,
and fifth assignments of error deprived him of a fair trial.
Standard of Review
{¶52} “Under [the] doctrine of cumulative error, a conviction will be
reversed when the cumulative effect of errors in a trial deprives a defendant of a fair
trial even though each of the numerous instances of trial court error does not
individually constitute cause for reversal.” State v. Spencer, 3d Dist. Marion No. 9-
13-50, 2015-Ohio-52, ¶ 83, citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-
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2577, ¶ 222-224 and State v. Garner, 74 Ohio St.3d 49, 64 (1995). “To find
cumulative error, a court must first find multiple errors committed at trial and
determine that there is a reasonable probability that the outcome below would have
been different but for the combination of the harmless errors.” State v. Stober, 3d
Dist. Putnam No. 12-13-13, 2014-Ohio-5629, ¶ 15, quoting In re J.M., 3d. Dist.
Putnam No. 12-11-06, 2012-Ohio-1467, ¶ 36.
Analysis
{¶53} Because we found no error as alleged by Shepherd in his first, second,
fourth, or fifth assignments of error, the doctrine of cumulative error does not apply.
State v. Bertuzzi, 3d Dist. Marion No. 9-13-12, 2014-Ohio-5093, ¶ 110.
{¶54} Shepherd’s third assignment of error is overruled.
Outcome: Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court in case
number 20182105 CRI, assigned appellate case number 6-19-03.
Plaintiff's Experts:
Defendant's Experts:
Comments: