author: CALLAHAN, Judge.

text:
    IN RE: J.B.
    Nos. 28752 28753
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: January 24, 2018
    SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.
    ALEXANDRA HULL, Attorney at Law, for Appellant.
    HOLLY FARAH, Ravenna, Guardian ad Litem.
    DECISION AND JOURNAL ENTRY
   CALLAHAN, Judge.

{¶ 1} Appellants, Mother and Father, appeal the judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated their parental rights and awarded permanent custody of their child, J.B., to appellee Summit County Children Services Board ("CSB"). This Court reverses and remands.

I.

{¶ 2} Mother and Father are the unmarried biological parents of J.B. (d.o.b. 10/10/15). Father was incarcerated and serving a nine-year prison sentence when the child was born at 32 weeks gestation. Due to the child's prematurity, Mother's cognitive delays which hindered her ability to care for the baby without prompting and intervention, and Mother's lack of family support in the area, CSB filed a complaint on the day J.B. was scheduled to be released from the hospital, alleging that the child was dependent. The juvenile court granted the agency an emergency order of temporary custody. At the adjudicatory hearing, Mother stipulated that J.B. was a dependent child. The agency then presented evidence as to the child's dependency relative to Father. After the initial dispositional hearing, the juvenile court placed the child in the temporary custody of CSB, and adopted the agency's case plan as the order of the court.

{¶ 3} Over the course of the next several months, Mother was compliant with her case plan objectives. However, she remained unable to implement the information she received during intensive parenting classes to demonstrate an ability to safely and adequately care for the child. Approximately ten-and-a-half months after filing its complaint, CSB filed a motion for permanent custody. In support of the first-prong finding necessary for an award of permanent custody, the agency alleged that (1) the child could not be placed with either parent within a reasonable time or should not be placed with his parents pursuant to R.C. 2151.414(B)(1)(a), and (2) Father had abandoned the child pursuant to R.C. 2151.414(B)(1)(b). As the facts did not support such an allegation, CSB did not allege that J.B. had been in the temporary custody of the agency for 12 or more months of a consecutive 22-month period pursuant to R.C. 2151.414(B)(1)(d). The agency further alleged that an award of permanent custody was in the child's best interest. Mother filed a motion for legal custody, or in the alternative, for a six-month extension of temporary custody. The juvenile court scheduled a permanent custody hearing for a date three-and-a-half months later; however, the hearing did not take place.

{¶ 4} Three days after the permanent custody hearing was to have taken place, the juvenile court, without explanation, issued an order rescheduling the permanent custody hearing for a date two-and-a-half months later. One month after the latest scheduling order, the juvenile court held a file review and issued an order continuing the permanent custody hearing for another two-and-a-half months on the court's own motion. The next day, CSB filed another motion for permanent custody, notwithstanding the fact that its original motion remained pending. The agency neither withdrew its original motion, nor requested leave to file a second motion. Nor did the agency caption its second motion as an amended or renewed motion. Moreover, there is no record of the trial court having ruled on the first motion.

{¶ 5} In its second motion for permanent custody, CSB attempted to combine the first-prong provisions of R.C. 2151.414(B)(1)(a), (b), and (d), muddling the statutory language in the process. Specifically, the agency alleged:

The child is not abandoned as to his mother, he is not orphaned, and he has been in the temporary custody of one or more public children service agencies or private child placing agencies for twelve (12) or more months out of a consecutive twenty-two (22) month period or previously in the temporary custody of an equivalent agency in another state, but cannot be placed with either parent within a reasonable time or should not be placed with his/her parents.

The only time CSB expressly alleged that Father had abandoned the child was in reference to an R.C. 2151.414(E) factor, relevant to first-prong grounds that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent pursuant to R.C. 2151.414(B)(1)(a). Moreover, as to the (B)(1)(a) prong, the agency disregarded the statutory language and changed the conjunction from "and" to "but" as quoted above.

{¶ 6} One week before the permanent custody hearing was ultimately held, Father filed a motion for legal custody to a third party, specifically a "close family friend" who lived in California. At the permanent custody hearing, the juvenile court considered CSB's second motion for permanent custody, Mother's motion for legal custody, and the parents' joint oral motions for a six-month extension of temporary custody. At the conclusion of the hearing, the visiting judge issued a judgment entry granting CSB's motion for permanent custody and terminating Mother's and Father's parental rights to J.B. Mother and Father filed separate timely appeals, each raising two nearly identical issues for review. This Court consolidates the parents' assignments of error to facilitate discussion.

II.

MOTHER'S ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT J.B. HAD BEEN IN THE TEMPORARY CUSTODY OF CSB FOR TWELVE OR MORE MONTHS OF A CONSECUTIVE TWENTY-TWO-MONTH PERIOD.

FATHER'S ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THAT J.B. HAD BEEN IN THE TEMPORARY CUSTODY OF SCCS FOR TWELVE OR MORE MONTHS OF A CONSECUTIVE TWENTY-TWO-MONTH PERIOD.

{¶ 7} Mother argues that the juvenile court erred by relying on its finding that J.B. had been in the temporary custody of CSB for 12 or more months of a consecutive 22-month period to support its award of permanent custody. Specifically, Mother argues that the agency's first motion for permanent custody, which properly did not allege that J.B. had been in the temporary custody of CSB for 12 of 22 months, was the only viable motion for permanent custody for the juvenile court's consideration. She argues, in other words, that the agency's second motion could no more than supplement the first motion, relating back to the date that the first motion was filed. Father adopts Mother's argument. This Court finds the argument to be well taken.

{¶ 8} Before a juvenile court may terminate parental rights and award permanent custody of a child to a proper moving agency, it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the temporary custody of the agency for 12 or more months of a consecutive 22-month period; that the child is neither abandoned, orphaned, nor has been in the agency's temporary custody for 12 of 22 months and the child cannot be placed with either parent within a reasonable time or should not be placed with parents based on an analysis under R.C. 2151.414(E) ; or the child or another child of the same parent has been adjudicated abused, neglected, or dependent three times; and (2) that an award of permanent custody to the agency is in the best interest of the child based on an analysis under R.C. 2151.414(D). R.C. 2151.414(B)(1) /(2); see also In re William S. , 75 Ohio St.3d 95, 98-99, 661 N.E.2d 738 (1996).

{¶ 9} In this case, in support of the first-prong requirements, the juvenile court found that CSB had proved by clear and convincing evidence that Father had abandoned J.B., and that J.B. had been in the temporary custody of the agency for 12 or more months of a consecutive 22-month period. Although CSB had also alleged in its motion for permanent custody that J.B. cannot be placed with either parent within a reasonable time or should not be placed with his parents, the juvenile court did not make a finding in that regard. The five first-prong factors enumerated in R.C. 2151.414(B)(1)(a)-(e) are alternative findings; accordingly, CSB must only prove one of those grounds in order to satisfy the first-prong requirement of the permanent custody test. In re A.W. , 9th Dist. Lorain No. 17CA011123, 2017-Ohio-7786, 2017 WL 4246227, ¶ 17, citing In re E.M. , 9th Dist. Wayne No. 15CA0033, 2015-Ohio-5316, 2015 WL 9273810, ¶ 12. Assuming the evidence would have supported the finding that J.B. could not or should not be placed with his parents, such a finding by the juvenile court would have satisfied the first prong of the permanent custody test. Under those circumstances, an erroneous finding by the juvenile court that J.B. had been in the temporary custody of CSB for 12 or more months of a consecutive 22-month period would merely constitute harmless error. See In re T.K. , 9th Dist. Summit No. 28720, 2017-Ohio-9135, 2017 WL 6522311, ¶ 10. As the juvenile court failed, however, to find alternative first-prong grounds as to both parents, an erroneous finding that J.B. had been in the temporary custody of CSB for at least 12 months would require reversal based on the agency's failure to prove the first prong of the permanent custody test.

{¶ 10} This case presents an issue of first impression for this Court: whether a children services agency, that has filed a motion for permanent custody that has not been disposed, may file a subsequent motion for permanent custody prior to the commencement of the permanent custody hearing, to allege the additional first-prong ground that the child has now been in the temporary custody of the agency for 12 or more months of a consecutive 22-month period, merely because of the passage of time. For the reasons that follow, this Court holds that, in these circumstances, the agency lacks authority to file a subsequent motion for permanent custody when its prior motion for permanent custody remains pending and has not yet been disposed.

{¶ 11} R.C. 2151.413 sets forth the circumstances under which a children services agency may or shall file a motion for permanent custody. Although the agency, unless a statutory exception applies, "shall" file such a motion if a child has been in the temporary custody of the agency for 12 or more months of a consecutive 22-month period, R.C. 2151.413(D)(1), the statute makes no provision for the filing of a subsequent motion for permanent custody when such a motion is already pending before the juvenile court. Based on the following discussion, this Court concludes that, when the agency has a pending motion for permanent custody, the agency's filing of a subsequent motion for permanent custody, which alleges for the first time that the child has been in its temporary custody for at least 12 months, violates the spirit of the law, the intent of the legislature, and notions of fairness.

{¶ 12} Based on a conflict certified by this Court, the Supreme Court of Ohio held that the "12 of 22" provision enacted in March 1999, may be invoked as first-prong grounds in a children services agency's motion for permanent custody only if the child has been in the agency's temporary custody for 12 or more months of a consecutive 22-month period at the time the agency files the motion. In re C.W. , 104 Ohio St.3d 163, 2004-Ohio-6411, ¶ 26, 818 N.E.2d 1176. The Supreme Court specifically stated that "[i]n other words, the time that passes between the filing of a motion for permanent custody and the permanent-custody hearing does not count toward the 12-month period set forth in R.C. 2151.414(B)(1)(d)." Id. Given the substantial rights involved, the In re C.W. court emphasized the need to "balance the importance of reuniting a child with the child's parents against the importance of a speedy resolution of the custody of a child." Id. at ¶ 22, citing In re K.G. , 9th Dist. Wayne Nos. 03CA0066, 03CA0067, and 03CA0068, 2004-Ohio-1421, 2004 WL 573887, ¶ 19. Moreover, the Supreme Court of Ohio very recently reiterated the extreme importance of the parent-child bond, writing, "when the state attempts to permanently terminate the relationship between a parent and child, the parent must be afforded every procedural and substantive protection the law allows." (Internal quotations omitted.) In re R.K. , 152 Ohio St.3d 316, 2018-Ohio-23, 95 N.E.3d 394, ¶ 5, quoting In re Hayes , 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997).

{¶ 13} In In re C.W. , the high court repeatedly cited to this Court's opinion in In re K.G. in discussing its reasoning. In In re K.G. , with regard to the "12 of 22" provision, this Court focused on the intent of the legislature to foster the concurrent goals of (1) limiting the time that a child spends in foster care, and (2) "preserving the family unit when possible." 2004-Ohio-1421, 2004 WL 573887, at ¶ 19-22. This Court further noted that, notwithstanding the statutory advisory time limits in which the juvenile court should hear a motion for permanent custody, such hearings are unfortunately frequently not heard for many months after the agency has filed its motion. Id. at ¶ 23, 27 ; see also R.C. 2151.414(A)(2). In that case, the hearing was not held until nine months after the filing of the permanent custody motion; in the instant case, the juvenile court did not hold the permanent custody hearing until ten months after the motion was filed. Nevertheless, in In re K.G. , we refused to sanction the agency's premature filing of a permanent custody motion to take advantage of delays necessitated by the trial court's docket as violative of the legislature's intent when it enacted the "12 of 22" grounds provision. In re K.G. at ¶ 27. Recognizing the slippery slope should the agency be permitted to gamble that its motion for permanent custody would not actually be heard until after the child had been in its temporary custody for at least 12 months, this Court held:

[the agency] had no authority to move for permanent custody, alleging 12 months of temporary custody, until those facts had actually occurred. To hold otherwise would be contrary to common sense and would certainly achieve an unjust result.

Id. at ¶ 29.

{¶ 14} The same reasoning is applicable in this case, where CSB filed an initial motion for permanent custody prior to J.B.'s having been in the agency's custody for 12 months. The first motion did not allege "12 of 22" grounds. To allow CSB to wait until continuances of the permanent custody hearing resulted in the passage of time sufficient to support a finding that the child had been in the agency's temporary custody for more than 12 months, and then file a subsequent motion for permanent custody alleging "12 of 22" grounds, would also offend the intent of the legislature. Such tactics would allow the agency to file an initial motion for permanent custody, effectively as a mere catalyst to cause the juvenile court to schedule a hearing. In instances when the hearing is (sometimes routinely) continued or delayed, albeit for good cause and for a reasonable period of time as permitted by R.C. 2151.414(A)(2), CSB has no authority to file a subsequent motion to take advantage of necessary and authorized delays to allege "12 of 22" grounds for the first time, when the agency's first motion remains pending. There is no authority to supplement an extant motion for permanent custody with "12 of 22" grounds that did not exist when the original motion was filed. In the absence of circumstances where the original motion has been disposed by denial after a hearing, or the children services agency has in good faith withdrawn the motion and filed an alternative less restrictive final dispositional motion, the agency, in the interests of justice and common sense, may not file a subsequent motion for permanent custody to allege new "12 of 22" grounds that did not exist when it filed its first motion.

{¶ 15} CSB may file a motion for permanent custody at any time alleging grounds enunciated in R.C. 2151.414(B)(1) or (2), as long as such grounds exist at the time the agency files its motion. See In re C.W. , 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, at ¶ 27. Unless the motion is withdrawn in good faith or otherwise disposed in a manner which does not terminate the case, however, the agency is bound by the allegations in its original motion for permanent custody and may not further allege "12 of 22" grounds only because the passage of time due to continuances and other delays would otherwise support such grounds. To hold otherwise would be to sanction the agency's lack of the use of ongoing reasonable efforts to effect reunification once the child has been in its temporary custody for 12 months as the parties wait for the commencement of the permanent custody hearing scheduled months into the future. See In re K.G. at ¶ 27.

{¶ 16} The agency's allegations of the grounds supporting its request for permanent custody also implicate issues of due process, which includes notice. See In re J.M. , 9th Dist. Summit No. 24827, 2010-Ohio-1967, 2010 WL 1780131, ¶ 11. As we wrote in In re K.G. at ¶ 28,

Juv.R. 19 provides that a motion "shall state with particularity the grounds upon which it is made[.]" Implicit in that requirement is that the grounds alleged are grounds that presently exist and are based on facts that have already occurred.

{¶ 17} When CSB's first motion for permanent custody was filed, J.B. had not been in the temporary custody of the agency for 12 or more months. The agency's second motion for permanent custody did not supplant the first for reasons discussed above. Accordingly, Mother and Father had not received notice that they would have to defend against allegations that J.B. had been in the agency's temporary custody for at least 12 months.

{¶ 18} In the interests of justice, due process, and the common sense approach previously adopted by this Court in In re K.G. , as well as in support of the legislative intent to both effect timely permanence for a child and preserve the family unit when possible, this Court holds that a children services agency has no authority to file a subsequent motion for permanent custody, alleging "12 of 22" grounds, when the agency's original and undisposed motion for permanent custody did not and factually could not allege such grounds. The agency may not take advantage of continuances and delays in the commencement of the permanent custody hearing scheduled in response to the first motion to allege additional grounds that the child has now been in the agency's temporary custody for at least 12 months. Accordingly, the juvenile court erred by premising its award of permanent custody on its finding that J.B. had been in the temporary custody of CSB for 12 or more months of a 22-month period. Mother's and Father's respective first assignments of error are sustained.

MOTHER'S ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND PLAIN ERROR IN PLACING J.B. IN THE PERMANENT CUSTODY OF CSB AS THE DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

FATHER'S ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT TERMINATED FATHER'S PARENTAL RIGHTS BECAUSE THE DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 19} Mother and Father argue that the juvenile court's award of permanent custody was not supported by sufficient evidence and was against the manifest weight of the evidence. Based on this Court's resolution of Mother's and Father's first assignments of error, the remaining two assignments of error have been rendered moot, and we decline to address them. See App.R. 12(A)(1)(c).

III.

{¶ 20} Mother's and Father's respective first assignments of error are sustained. We decline to address the remaining two assignments of error. The judgment of the Summit County Court of Common Pleas, Juvenile Division, is reversed and the cause remanded for further proceedings consistent with this opinion.

Judgment reversed, and cause remanded.

SCHAFER, P.J.,

CARR, J.,

CONCUR.

      This Court does not by this statement intend to indicate that a children services agency may properly file a subsequent motion for permanent custody in which it alleges new grounds merely by captioning the motion as amended or renewed, when a prior motion remains pending.

      Although the juvenile court expressly denied Mother's motions for legal custody and a six-month extension of temporary custody, the judgment entry did not reference Father's motion for legal custody to a third party.

      During closing argument, the assistant prosecutor acknowledged for the first time that CSB had filed two motions for permanent custody. Although the assistant prosecutor referenced the 200-day statutory time limit in which the trial court shall dispose of a motion for permanent custody, the statute by its plain language makes the time limit advisory. See R.C. 2151.414(A)(2) ("The failure of the court to comply with the time periods set forth in division (A)(2) of this section does not affect the authority of the court to issue any order under this chapter and does not provide any basis for attacking the jurisdiction of the court or the validity of any order of the court.") Nor has any Ohio appellate court construed the statutory time limit as mandatory.

      This fact is supported by the record in this case where, upon filing its second motion for permanent custody, CSB also filed a motion for judicial determination of reasonable efforts to finalize the permanency plan of adoption of J.B., indicating that the agency would no longer be working with Mother towards reunification, even though the permanent custody hearing was not scheduled for another four-and-a-half months. In fact, Mother's mental health case manager testified that she was asked to leave a visitation by an agency social work assistant to give Mother some private bonding time. When the case manager protested, saying that was the only time she had to work with Mother on parenting skills, the CSB employee reportedly told her that it was "[t]oo late in the case" to help Mother.


source: Caselaw Access Project

author: Wise, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Reginald CONLEY, Defendant-Appellant
    No. 17 CAA 03 0018
    Court of Appeals of Ohio, Fifth District, Delaware County.
    DATE OF JUDGMENT ENTRY: January 25, 2018
    CAROL HAMILTON O'BRIEN, PROSECUTING ATTORNEY, DOUGLAS N. DUMOLT, ASSISTANT PROSECUTOR, 140 N. Sandusky Street, 3rd Floor, Delaware, Ohio 43015, For Plaintiff-Appellee
    TODD A. WORKMAN, WORKMAN LAW FIRM, 35 North Sandusky Street, Delaware, Ohio 43015, For Defendant-Appellant
    JUDGES: Hon. Patricia A. Delaney, P. J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.
   Wise, J.

{¶ 1} Defendant-Appellant Reginald Conley appeals his conviction on two counts of murder entered in the Delaware County Court of Common Pleas following a jury trial.

{¶ 2} Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE CASE

{¶ 3} On July 22, 2016, the Delaware County Ohio Grand Jury returned a joint indictment against Appellant Reginald Conley and co-defendant Jermaine Kelly. The indictment charged Appellant with two counts of Murder; Count One in violation of R.C. § 2903.02(A) and Count Two in violation of R.C. § 2903.02(B), both unclassified felonies. Id. Appellant was further charged with Intimidation of a Witness in violation of R.C. § 2921.04(B)(2) and with Having a Weapon Under Disability in violation of R.C. § 2923.13(A)(4). Counts One, Two, and Three also carried a Gang Affiliation Specification in violation of R.C. § 2941.142 and a Firearm Specification in violation of R.C. § 2941.145.

{¶ 4} Prior to trial, the defendants moved to sever their trials. Following an evidentiary hearing, the motions were denied. The trial court also held an evidentiary hearing on the defendants' motions in limine to exclude evidence of Conley's involvement in a double homicide with Gervins. Again, the trial court denied the motions.

{¶ 5} Both Defendants waived their right to a jury trial as to the gang specifications related to Counts One, Two, and Three, and their right to a jury trial as to their respective having weapons under disability charges. Those charges were tried to the court. The murder and intimidation charges along with the firearm specifications were all tried to a jury, with the trial commencing on March 6, 2017, and continuing through March 7, 8, 9 and 10, 2017.

{¶ 6} At trial, the jury heard the following account of the events that took place on November 9, 2012, which led to the above charges.

{¶ 7} Victoria Hilbrands testified that on November 9, 2012, she lived at 6901 Redbank Rd. in Galena, Ohio. Around 5:30 P.M. she heard a loud banging on the door. T. at 254-255. She could not initially see anyone outside the door. However, she heard a man, later identified as Dontee Gervins, yelling that he had been shot and asking to be let in. T. at 256. Mrs. Hilbrands immediately called 911. T. at 257. That call was placed at 5:43 P.M. T. at 284. While on the phone with 911, Mrs. Hilbrands could hear Gervins on his cell phone. Gervins repeatedly said "I won't tell anybody" to the person with whom he was speaking. T. at 260.

{¶ 8} Gale Dunlap testified that she lived on Gorsuch Rd. This is a short distance from the Hilbrands' residence on Redbank Rd. T. at 346-347. On November 9, 2012, Dunlap was returning home from work sometime after 5:00 P.M. when a vehicle pull out of the Hilbrands driveway. The vehicle exited the driveway in a manner that forced her to brake her vehicle. T. at 350. She described the vehicle as a light blue or gray sedan but could not identify who was driving or how many occupants were in the vehicle. T. at 351. Mrs. Dunlap was behind the vehicle for a short period of time. During this time, the vehicle failed to stop at two stop signs. T. at 353. Around this same time, Mrs. Dunlap saw a squad traveling toward the location where the shooting had occurred. Mrs. Dunlap was unable to positively identify the vehicle, but testified it was consistent with that later found to be used by Reginald Conley. T. at 356.

{¶ 9} Deputy Charm Johnson (also referred to in the record by her maiden name as "Charm Miller") testified that she was the first person to arrive at the Hilbrands' residence after the shooting. T. at 284-286. She arrived at approximately 5:50 P.M. T. at 299. Dep. Johnson found Gervins laying on the front porch of the Hilbrands' residence. T. at 286. Gervins appeared very weak, indicated he had been shot, but was unable to verbalize his name or other information at that time. T. at 286. Gervins' cellphone was lying next to him on the porch, and Dep. Johnson could hear a female voice on the line. T. at 287. Shortly thereafter Dep. Johnson notified medics that the scene was safe and they could approach to aide Gervins. T. at 288.

{¶ 10} Brooks Church testified that he was one of the first medics who arrived on the residence. T. at 326. Church described Gervins as scared, very alert, barely able to speak, but could speak a little in between breaths. T. at 328. Church asked Gervins where the shooting occurred. Gervins responded "here" and gestured as if to indicate near the residence. T. at 330. When asked, Gervins indicated that he knew who shot him. T. at 330.

{¶ 11} Detective Charles Gannon was the first officer to arrive on scene after Deputy Johnson. He testified he became involved in the investigation at 5:42 P.M. on November 9, 2012. T. at 1190. He was on his way home when the 911 call was placed, but he was the closest detective to 6901 Red Bank Rd. T. at 1190. When Det. Gannon arrived at the scene, medics were working on Mr. Gervins and he was still alive. T. at 1194. Shortly after Det. Gannon arrived, Gervins' cellphone began ringing and "Wifey" was displayed as the caller on the screen of the cell phone. T. at 1200. Det. Gannon had a brief conversation with Amber Bland and ended the call to continue his work on the scene. T. at 202-1203. Det. Gannon finished processing the scene and documented what occurred. T. at 1203-1212. After his work at the scene was completed, he drove to Riverside hospital. T. at 1217.

{¶ 12} At the hospital, Det. Gannon learned that Dontee Gervins had been living with his fiancé, Amber Bland, on the near-east side of Columbus, Ohio. T. at 376. Gervins was selling marijuana to pay the bills and was associated with a gang called the Bloods. T. at 377. During this same time frame, Ms. Bland informed him that Gervins and her brother (Richard Bland) were closely associated with a man named Reginald Conley. T. at 378. He learned Conley went by the street name "Twice." T. at 378.

{¶ 13} Ms. Bland explained that late in the morning on November 9, 2012, Gervins and Ms. Bland ordered pizza and "chilled" at their residence with his friend "Blaze" (later identified as Domino Mack) and Blaze's girlfriend. T. at 379. After they finished eating pizza, Gervins received a phone call and stated that he had to leave but would be back. T. at 380. Before Gervins left, Ms. Bland heard him go into the laundry room and retrieve an unknown quantity of money from a safe in the ceiling. T. at 381-382. Shortly thereafter, Gervins left with Blaze and Blaze's girlfriend. Ms. Bland then fell asleep with her children. T. at 383.

{¶ 14} Several hours later, Ms. Bland was awoken by a phone call from Gervins. T. at 383. When she answered the phone, he immediately stated "Babe, I've been shot" and hung up the phone. T. at 383. This call was placed at 5:44 P.M. Ms. Bland immediately called him back and had a short conversation with him. Gervins sounded scared and out of breath. T. at 384.

{¶ 15} When Ms. Bland called him back, Gervins stated that he had been shot and that he was in New Albany. When Ms. Bland asked if he knew who shot him, Gervins stated that it was "Ice" who shot him and that she was not to tell anyone. She stayed on the phone with him until the paramedics arrived a few minutes later and the phone was hung up. T. at 385.

{¶ 16} Ms. Bland went to the hospital to be with Gervins and was accompanied by a number of his friends and family. One individual she spoke with at the hospital was "Blaze." T. at 387. Because "Blaze" was the last person she had seen Mr. Gervins with that day, she spoke with him about what had transpired. She then provided that information to Gervins' sister (Dena Bronaugh) and to detectives from the Delaware County Sheriff's Office. T. at 387-388.

{¶ 17} Ms. Bland stayed with Mr. Gervins at the hospital most of the week that followed the shooting. During that time he was intubated and unable to breath without the assistance of a tube down his throat. Ultimately, Mr. Gervins succumbed to his injuries on November 18, 2012. T. at 389.

{¶ 18} Dr. Gerston testified that Gervins was shot in the lower-mid back. The bullet travelled at an upward trajectory perforating the liver and the right lung of Gervins. T. at 472-474. This would have caused continuous internal bleeding, difficulty breathing, and immobility in a matter often to fifteen minutes. T. at 475. Despite efforts to save Gervins' life, he ultimately died as a result of the gunshot wound to the back. T. at 477.

{¶ 19} In the days immediately after the shooting, Detectives from the Delaware County Sheriff's Office began to make use of the leads provided by Gervins' family at the hospital. Det. Gannon used the contact information provided by Gervins' family and subpoenaed Conley's call detail records for the relevant timeframe. T. at 1219-1220. When he received information that Jermaine Kelly may have been involved in the shooting, he obtained historical cell phone records for Kelly as well. T. at 1221. Det. Gannon also subpoenaed Gervins' cellphone records.

{¶ 20} The records identified numerous calls between Conley and Gervins and between Conley and Kelly on the date of the shooting. These records were ultimately given to Det. Moledor for cell phone mapping. T. at 1223. Det. Moledor was able to map the locations of cell phones belonging to Dontee Gervins, Jermaine Kelly, and Reginald Conley around the time Gervins was shot.

{¶ 21} Generally speaking, all three phones were in the area of the Wilson Market on the near east side of Columbus approximately one hour before the shooting. Between 5:00 P.M. and 5:45 P.M. all three phones can be seen traveling northbound out of Columbus. At 5:33 P.M. Kelly's phone connected to a cell phone tower approximately 2.7 km. from the location of the shooting. That tower would have been the closest to Kelly when the call was made. T. at 981. By approximately 6:00 P.M., Kelly and Conley's phones can both be seen traveling southbound back into the Columbus area. No data from the cell phone mapping was inconsistent with Conley and Kelly being present at the shooting on Redbank Rd. T. at 985.

{¶ 22} Around the time of Gervins' death, investigators were attempting to identify possible suspects and motive for the shooting. Det. Gannon learned that approximately ten days prior to the shooting, Gervins had been involved in a shooting on Gault St. in Columbus. Det. Gannon obtained records from Columbus Police regarding the Gault Street shooting and learned that Gervins was suspected as being the driver in a robbery that ultimately resulted in the death of two individuals. T. at 1238. The information indicated a man named "Twice" was also involved in the Gault St. shooting. The fact that both shootings involved someone with the street name "Twice" and Gervins led him to interview Mary Page and Jonathan Dantzler. T. at 1239-1240.

{¶ 23} Mary Page testified that in 2012 she allowed Gervins to sell drugs out of her residence. T. at 732. This residence was across the street from an apartment complex on Gault St. in Columbus, Ohio. T. at 734. Page testified that in the days leading up to the death of Gervins, men identified as "Twice" and "Jesus" (whom she later identified as Jonathan Dantzler) came to her residence with Gervins. T. at 734-736. "Twice" and Dantzler asked Page to knock on the door of a crack dealer she knew in the Gault St. Apartments. The plan was that Conley and Dantzler would then rob the dealer at gunpoint, while Gervins would remain in the car to facilitate their escape. T. at 735; 739-740.

{¶ 24} Page explained that when she, Dantzler, and "Twice" approached the door to the residence, she knocked on the door and inquired of an occupant if she could buy drugs. When she was told no by the occupant, she asked to use the bathroom. T. at 739. When she was told she could not use the bathroom, "Twice" and Dantzler began shooting into the apartment and went inside. Page did not enter the residence and instead fled the scene.

{¶ 25} When Page arrived home, she saw "Twice" and Dantzler get into the car with Gervins and drive off. T. at 740. Page explained that when she saw "Twice" and Gervins later in the day, "Twice" told her not to say anything and told her to implicate two dark skinned guys if questioned about the robbery. T. at 743. At this time, Gervins gave her some drugs. Neither Gervins, Dantzler, nor "Twice" were dark skinned. T. at 744.

{¶ 26} Later that day, Page learned that someone had been killed in the shooting and one person was critically injured. T. at 743. Shortly thereafter, Columbus Police arrived at her home and arrested her for her involvement in the robbery. She initially told investigators it was two dark-skinned guys who put her up to it, but decided to tell the truth a few moments into her six minute interview. T. at 745. She later identified Gervins as the driver, Dantzler as "Jesus", but did not know who "Twice" was. T. at 756. Page ultimately pled guilty to manslaughter with a firearm specification and testified against Dantzler at his trial. T. at 728-729.

{¶ 27} Dantzler testified that he was convicted for two counts of homicide arising out of the Gault St. shooting described by Mary Page. T. at 1072. He stated that on the day of the Gault St. shooting, he went to the Gault St. residence in question with Reginald Conley ("Twice"), Gervins, and Page. T. at 1075. Dantzler explained that Gervins drove him, Conley, and Page to the Gault St. residence and that Gervins remained in the car while Page, Conley and he went up to get drugs from the apartment. T. at 1076. Dantzler was arrested a few days after the shooting.

{¶ 28} On the day Gervins was shot, Dantzler was incarcerated awaiting trial for the Gault St. shootings. T. at 1072. While incarcerated, Dantzler placed a phone call to his brother Jermaine Kelly (who goes by "Mac Maine" and "Maine"). T. at 1069; 1073. On that call, Kelly informed Dantzler that he was 'just with Twice." Kelly then stated "I hope we shoot good." Kelly then informed Dantzler that they "shot a little deer." T. at 1168-1169. This call was placed on November 9, 2012 at 6:34 P.M. and occurred less than an hour after Gervins' shooting. In a call to his mother Kelly acknowledged his participation in this call. T. at 1160.

{¶ 29} As part of the investigation, investigators attempted to locate the vehicle described by Gale Dunlap. Det. Gannon testified he located a traffic citation issued to Reginald Conley in August of 2012. The ticket indicated Conley was driving a 2006 Ford Fusion, green in color, with a plate matching the one he borrowed from Christopher Hall. T. at 1232-1233. This prompted detectives to interview Christopher Hall.

{¶ 30} Christopher Hall testified that he knew Reginald Conley as "Reggie Two Times" and "Twice" in mid to late 2012. T. at 531. Hall explained that in 2012, he owned a green Ford Fusion that he had lent to Conley. T. at 532, 536. Conley had possession of the vehicle for at least several weeks. In late 2012, Hall received a phone call that he could retrieve the vehicle. T. at 537. However, Hall was unable to retrieve the vehicle because the Columbus Police impounded it prior to his arrival. T. at 538. This vehicle was later turned over to the Delaware County Sheriff's Office for processing. T. at 566.

{¶ 31} BCI Supervising Agent Gary Wilgus testified he processed the vehicle Hall provided Conley during the timeframe in question. T. at 566. As part of the processing of that vehicle, Agent Wilgus photographed the interior and exterior of the vehicle. T. at 568-585. Additionally, he attempted to locate the presence of gunshot residue, blood, and latent fingerprints. T. at 571-594. He explained that had a firearm been discharged inside the motor vehicle, there would have been gunshot residue present. T. at 581. Ultimately, no evidence of gunshot residue or blood was located on the vehicle itself. T. at 590-591, 620.

{¶ 32} While no gunshot residue was identified on the vehicle itself, Agent Wilgus documented a blue Champion sweatshirt in the backseat of the vehicle he processed. T. at 571. When the sweatshirt was forensically processed, gunshot residue and the DNA of Reginald Conley were found on it. T. at 637-644, 687-689. Daniel Steiner also testified that fingerprints lifted by Agent Wilgus from inside the vehicle were left by Conley. T. at 718.

{¶ 33} During the course of the investigation, Reginald Conley made some statements about what occurred in this case. When interviewed by Det. Gannon, he identified himself as "Twice." T. at 1241. He stated that on the date of the shooting, he received a call from Gervins. In response to that call, Conley met up with Gervins at the Wilson Market. He stated Gervins was brought to the market by "Blaze" (Domino Mack); the three waited there for the arrival of Conley's cousin. T. at 1243. After waiting with them for a short time, Conley claimed he walked to his grandma's house a couple blocks away. T. at 1244. Conley stated he had his phone with him all day and that if law enforcement checked the records it would show him at his grandma's house near Wilson Market. T. at 1248.

{¶ 34} In addition to speaking with law enforcement, Conley made statements to Ms. Bland about Gervins' shooting. Ms. Bland testified she saw Conley, whom she also knew as "Twice", on Near Year's Eve of 2012 at an establishment called 'The Moonlight." T. at 392. When she saw him, he approached her and they discussed the shooting of Gervins. T. at 395. He stated he was with Mr. Gervins when he went up to Delaware on the day Gervins was shot. He further stated he had a gun on his person at the time Gervins was shot. T. at 395. Ms. Bland identified Mr. Conley in the courtroom as the person she knew as both Reginald Conley and "Twice." T. at 391.

{¶ 35} Conley made additional statements regarding the incident to his cousin Lamonte Rayford. Rayford is also the brother of Amber Bland. Rayford testified he learned that Gervins, his sister's paramour, was shot while Rayford was incarcerated in Franklin County. T. at 784. He explained his sister, Amber Bland, told him what she knew while he was at the Workhouse in Franklin County. This prompted Rayford to call "Twice" (Reginald Conley) from jail. T. at 787.

{¶ 36} During this call, Rayford discussed with Conley what had transpired with Gervins and the Gault St. shooting for which Dantzler had been arrested. T. at 795. Rayford commented to Conley that he heard Conley was out doing his "thug" too (meaning committing the same offenses as Dantzler). After laughing, Conley stated "they got my name in their mouth" (meaning individuals are accusing him of something). T. at 796-797. When the topic turned to the shooting of Gervins, Conley made some self-aggrandizing comments and then laughed when Rayford suggested Conley had left Gervins for dead. T. at 799.

{¶ 37} Finally, Appellant presented statements Conley made to fellow inmate Christopher Brookman. Christopher Brookman testified he was incarcerated at the Delaware County Jail with Reginald Conley while both were awaiting disposition of their criminal cases. T. at 921. Brookman explained that on one occasion an inmate "trustee" at the jail had a brief conversation with Conley which caused Conley to become upset. T. at 923-24. When Brookman questioned Conley about why he was upset, Conley stated he learned someone he knew on the street was going to testify that Conley had admitted to the crime for which he was awaiting trial. T. at 926. Conley then indicated that "he never should have trusted that weak-ass nigger. I shouldn't have never said nothing to him." T. at 927.

{¶ 38} Appellant also presented a number of Kelly's statements at trial. Detective Arthur Kester, III, testified he interviewed Jermaine Kelly on two separate occasions. He was first interviewed on December 14, 2012. T. at 1153. During the interview Kelly denied knowing anyone by the name of Reginald Conley, "Twice", or "Baby Twice." He further denied knowing an individual by the name of Jonathan Dantzler, "Jesus" or "Baby Jesus." T. at 1155. During the second interview with Kelly, Kelly requested to see the evidence against him. When the Detectives produced a binder and started to go through the evidence Kelly told them to shut the book and left the interview. T. at 1157.

{¶ 39} Months after Gervins' shooting, Kelly also made statements to Lamonte Rayford regarding Gervins' shooting. Rayford explained he met Kelly after his release from prison and knew him as "Mac Maine." T. at 803. Rayford testified he began to see Kelly daily at the "Taste of Chicago" pizza shop near where they lived. While Rayford described himself as merely an acquaintance of Kelly, he explained his cousin "Meme" (Demetrius Edwards) was very close to Kelly. T. at 806.

{¶ 40} Rayford explained that on one occasion, Rayford and "Meme" began discussing the Gervins shooting in the presence of Kelly. At that time, Kelly explained that Gervins had to be killed because Gervins was going "to tell on some shit that went down." Kelly explained that he had been the one who shot Gervins. He explained that Gervins was taken to Delaware to go get money and told he had to switch seats in the car. When Gervins exited the car, Kelly shot him. T. at 807-809.

{¶ 41} As part of the investigation, law enforcement forensically processed the phones of Conley and Kelly. T. at 1113. The iPhone that was examined was associated with the phone number (614) 316-1329. It contained numerous messages suggesting Jermaine Kelly (Mac Maine) was using the phone in November and December of 2012. This phone was taken from Kelly's person upon his arrest. T. at 1125-1129. The phone was linked to a "Mac Maine" Facebook page with associated email addressed JermaineKelly82@yahoo.com and MacMaine.3@yahoo.com. Kelly's phone also included contact information for "Baby Twice."

{¶ 42} Detective Ullom also examined the Blackberry Curve associated with phone number (614) 701-0403 and taken from the person of Reginald Conley. T. at 1134. This phone and corresponding number were provided to law enforcement by Conley during his initial interview. T. at 1246. The data recoverable from the phone was quite limited as it appears that the phone was newly activated on November I8, 2012 at approximately 6:48P.M. T. at 1136-1137. Det. Gannon testified that Conley activated the cell phone the same day Gervins died. T. at 1247.

{¶ 43} At trial, Appellee also presented the testimony of Richard Bland. Mr. Bland testified that he was the brother of Lamonte Rayford and Amber Bland. T. at 882. He testified the street name of Reginald Conley was "Twice" and was familiar with Jermaine Kelly being "Mac Maine." T. at 883. He explained that he didn't know Kelly very well, but that Conley was his cousin. T. at 885. He testified that around the time Gervins was shot, Conley was driving a greenish Ford Fusion that had a mirror missing on the passenger side. T. at 888.

{¶ 44} Appellee presented additional testimony relevant to the gang specification at trial. Lamonte Rayford, a cousin to Reginald Conley, testified he has been a gang member for most of his life in the Columbus area. He explained how individuals typically join a gang. He explained that one can commit a variety of offenses (i.e. sell drugs, rob people, or kill people) or they can be "blessed" into a gang if they have someone in their family with sufficient tenure and rank in the gang. T. at 774. He further explained that gangs typically have certain geographic territory within the city that can affect which gang individuals in the area join and one's family relationship has some bearing. T. at 775.

{¶ 45} Based upon where he lived and whom he was related to, Rayford testified he was a "Blood." However, he commonly associated with "Crips" who he knew to engage in robberies, drug transactions, and other illicit acts. T. at 776. In 2012, Rayford was associated with the "ATM Crips" ("Anytime Money Crips"); other members included "Twice" (Reginald Conley), "Meme" (Demetrius Edwards), "Van" (Conley's brother), and several others. The purpose of this gang was to get money by any means necessary. T. at 777-778. Reginald Conley had "ATM" tattooed on his body to identify himself as a member of this gang. T. at 779.

{¶ 46} Outside the presence of the jury, Rayford explained that back in 2012 he and Conley would consume and sell marijuana, codeine, methazine, pills, and powders together. T. at 867. He explained that they got money for drugs by "hustling" (selling drugs) and "robbing." T. at 868. On a number of occasions, he saw Conley sell drugs. T. at 868. Hall also testified Conley sold drugs to support his own habit. T. at 554. Rayford testified he committed a number of robberies with Conley in 2012. T. at 870. When asked for the names of specific stores they robbed together, he indicated he would rather not answer that question.

{¶ 47} Outside the presence of the jury, Dantzler explained that he was from Trevitt Heights and the gang that controls that area is called the Crips. T. at 1085. He explained that he was a Crip and that there were certain colors and signals associated with the gang. T. at 1087. Dantzler explained that he would sell crack cocaine around his part of the city to make ends meet. T. at 1088. He explained that he also identified as an "ATM Crip." T. at 1090.

{¶ 48} The jury found Appellant Conley guilty of two counts of Murder and one count of intimidation of a Witness. Appellant was also found guilty of one firearm specification and one specification of gang affiliation for each of the above counts. Appellant was not found guilty for Weapons Under Disability, as this count was dismissed as a result of a motion for Rule 29 acquittal.

{¶ 49} Appellant Conley now appeals, assigning the following error for review:

ASSIGNMENTS OF ERROR

{¶ 50} "I. THE TRIAL COURT/JURY ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT IN ENTERING A GUILTY VERDICT TO THE OFFENSE [SIC] OF RAPE [SIC] AS THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTIONS.

{¶ 51} "II. THE TRIAL COURT/JURY ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT IN ENTERING A GUILTY VERDICT TO THE OFFENSE [SIC] OF RAPE [SIC] AS THE VERDICTS ARE NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 52} "III. APPELLANTS [SIC] SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS DENIED WHEN THE STATE ADDUCED EVIDENCE

OF A CO-DEFENDANTS [SIC] ADMISSIONS IMPLICATING APPELLANT AND WHERE THE CO-DEFENDANT DID NOT TESTIFY."

I., II.

{¶ 53} In his First Two Assignments of Error, Appellant argues that his convictions for murder were against the manifest weight and sufficiency of the evidence. We disagree.

{¶ 54} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The 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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing court is to 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 jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also , State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175, 485 N.E.2d 717.

{¶ 55} We note the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page." Davis v. Flickinger , 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶ 56} Appellant, in the case sub judice , is challenging his convictions for the murder of Dontee Girvens in violation of R.C. § 2903.02 (A). Such section states: (A) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy.

{¶ 57} Appellant initially argues that his conviction is against the manifest weight and sufficiency of the evidence because Appellee did not prove beyond a reasonable doubt that (1) he was identified as the shooter, or (2) that the shooting took place in Delaware County.

{¶ 58} Upon review, this Court finds based on the testimony presented at trial as set forth above, that the State presented proof beyond a reasonable doubt that Appellant was guilty of the murder of Dontee Gervins.

{¶ 59} The jury heard testimony from both Amber Bland and Lamonte Rayford that Appellant admitted to them that he was involved on Gervins' murder. Further, evidence was presented as to cell phone tower data which placed Appellant, his co-defendant Kelly and Gervins together in Delaware County. Also, the telephone call Gervins made to Ms. Bland after he was shot placed him in Delaware County. Further, Gervins told the medic who was treating him that he was shot "here" and indicated in front of Ms. Hilbrands' residence. Additionally, Dr. Gerston testified that based upon Gervins' injuries and the fact that the bullet perforated Gervins' liver and lung, he would only have been able to move for 10 to 15 minutes after being shot, as his blood pressure would drop and his lungs would fill with blood.

{¶ 60} There was also ample evidence presented that Gervins was the only witness to the Gault Street shootings who could have testified against his cousin Jonathan Dantzler, who was in jail awaiting trial, and who could identify and inform the police that Appellant was also involved those shootings. Co-defendant Jermaine Kelly received a call from Dantzler, who is Kelly's brother, from the jail less than an hour after Gervins was shot. During this call Kelly informed his brother that he was "just with Twice" and that they "shot a little deer".

{¶ 61} Based on the foregoing, together with all of the evidence presented, we find that Appellant's murder conviction was supported by sufficient evidence and that the jury did not lose its way in finding Appellant guilty beyond a reasonable doubt.

{¶ 62} Appellant's First and Second Assignments of Error are overruled.

III.

{¶ 63} In his Third Assignment of Error, Appellant argues he was denied his Sixth Amendment right to confrontation when Lamonte Rayford was permitted to testify as to certain statements made to him by co-defendant Jermaine Kelly, when Kelly himself did not testify. We disagree.

{¶ 64} Appellant claims Lamonte Rayford's testimony that Kelly told him "they took him to Delaware and had him switch seats" and "[t]hey were basically telling him ..." violated his right to confrontation.

{¶ 65} Initially, we note Appellant did not object to the first statement and the trial court sustained his objection to the second statement. We therefore review the admission of the statements for plain error.

{¶ 66} Crim.R. 52(B) affords appellate courts discretion to correct "[p]lain errors or defects affecting substantial rights" notwithstanding an accused's failure to meet his obligation to bring those errors to the attention of the trial court. However, the accused bears the burden to demonstrate plain error on the record, State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, and must show "an error, i.e., a deviation from a legal rule" that constitutes "an 'obvious' defect in the trial proceedings," State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

{¶ 67} Even if the error is obvious, it must have affected substantial rights, and "[w]e have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial." Id. The Ohio Supreme Court recently clarified in State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that the accused is "required to demonstrate a reasonable probability that the error resulted in prejudice-the same deferential standard for reviewing ineffective assistance of counsel claims." (Emphasis sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez , 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004). Accord, State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶ 32-34.

{¶ 68} If the accused shows that the trial court committed plain error affecting the outcome of the proceeding, an appellate court is not required to correct it; the Supreme Court has "admonish[ed] courts to notice plain error 'with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.' " (Emphasis added.) Barnes at 27, 759 N.E.2d 1240, quoti ng State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. Accord, State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶ 32-34.

{¶ 69} "[A] trial court is vested with broad discretion in determining the admissibility of evidence in any particular case, so long as such discretion is exercised in line with the rules of procedure and evidence." Rigby v. Lake Cty. , 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). Evid.R. 402 states that all relevant evidence is admissible. "Relevant evidence is defined as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

{¶ 70} In State v. Crotts, the Ohio Supreme Court explained,

As a legal term, "prejudice" is simply "[d]amage or detriment to one's legal rights or claims." Black's Law Dictionary (8th Ed.1999) 1218. Thus, it is fair to say that all relevant evidence is prejudicial. That is, evidence that tends to disprove a party's rendition of the facts necessarily harms that party's case. Accordingly, the rules of evidence do not attempt to bar all prejudicial evidence-to do so would make reaching any result extremely difficult. Rather, only evidence that is unfairly prejudicial is excludable.
'Exclusion on the basis of unfair prejudice involves more than a balance of mere prejudice. If unfair prejudice simply meant prejudice, anything adverse to a litigant's case would be excludable under Rule 403. Emphasis must be placed on the word "unfair." Unfair prejudice is that quality of evidence which might result in an improper basis for a jury decision. Consequently, if the evidence arouses the jury's emotional sympathies, evokes a sense of horror, or appeals to an instinct to punish, the evidence may be unfairly prejudicial. Usually, although not always, unfairly prejudicial evidence appeals to the jury's emotions rather than intellect.' " Oberlin v. Akron Gen. Med. Ctr. (2001), 91 Ohio St.3d 169, 172, 743 N.E.2d 890, quoting Weissenberger's Ohio Evidence (2000) 85-87, Section 403.3.
104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23-24.

{¶ 71} In the case at bar, Rayford testified that he had a conversation with his cousin Demetrius Edwards and Jermaine Kelly about why Gervins had to die. During questioning by the State, Rayford testified as follows:

Q: Without going into what Kelly said or may have said about other people, what did Kelly say he did?
A: He said he shot Dontee.
Q: And how did he say it happened, what he did?
A: He called Dontee, told him he had some money for him, but he had to go to Delaware, and told him he had to switch seats. So when he got out to switch seats, that's when he shot Dontee.
Q: From what he said, did it sound like the shooting happened outside the car?
A: Yes.
Q: And from what he said, Kelly indicated he was the shooter, correct?
A: Yes.
Q: Based on your experience, your life experience, do you have any idea why they would need to switch seats at that point?
A: Basically, my knowledge is to get him out of the car. They were basically telling him ...
Atty. Gordon: Object.
Court: Sustained.

{¶ 72} (T. at 808-809).

{¶ 73} The Sixth Amendment's Confrontation Clause provides, "In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him." "The United States Supreme Court has held that the right to confrontation is violated when an out-of-court statement that is testimonial in nature is admitted into evidence without the defendants having had the opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)." State v. Syx, 190 Ohio App.3d 845, 2010-Ohio-5880, 944 N.E.2d 722, ¶ 23 (2d Dist.). The Crawford court stated that "the core class of testimonial statements includes statements 'that were 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 52, 124 S.Ct. 1354." Syx at ¶ 23. The Sixth Amendment's Confrontation Clause applies only to testimonial statements and does not apply to non-testimonial statements. State v. Siler , 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, ¶ 21.

{¶ 74} To determine whether a statement to a person not engaged in law enforcement is testimonial, the "objective witness" test is applied. Siler at ¶ 26-27. This test requires the court to determine whether an objective witness would have reasonably believed that her statement would be available for use at a later trial. State v. Stahl , 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, ¶ 36. The test focuses on the expectation of the declarant at the time the statement was made. The intent of the questioner is irrelevant unless it could affect a reasonable declarant's expectations. Id.

{¶ 75} Applying this precedent, the admission of Kelly's statements to Rayford and Edwards, both friends, which incriminated himself and Appellant in a homicide would not implicate the confrontation clause as the primary purpose of the statement was unrelated to creating evidence for prosecution. Pertinent circumstances include the fact the statement was not made to law enforcement or other authority and the statement was made during a conversation with friends.

{¶ 76} Based in the foregoing, we find Rayford's testimony as to Kelly's statements were not testimonial and therefore were not prohibited by the 6th Amendment.

{¶ 77} Appellant's Third Assignment of Error is overruled.

{¶ 78} For the foregoing reasons, the judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.

Delaney, P.J., and Baldwin, J., concur.


author: MARY EILEEN KILBANE, P.J.:

text:
    Juanita R. HOUSTON, Plaintiff-Appellee v. AT & T TELEHOLDINGS, INC., et al., Defendants-Appellants
    No. 105949
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 25, 2018
    Fred J. Pompeani, Rebecca Kopp-Levine, Porter Wright Morris & Arthur, L.L.P., 950 Main Avenue, Suite 500, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANTS
    Murray Richelson, Daniel M. Katz, David A. Katz, David A. Katz Co., L.P.A., 50 Public Square, 842 Terminal Tower, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    Michael DeWine, Ohio Attorney General, Timothy X. McGrail, Assistant Attorney General, State Office Building, 11th Floor, 615 W. Superior Avenue, Cleveland, Ohio 44113-1899, Also Listed
    BEFORE: Kilbane, P.J., McCormack, J., and Stewart, J.
    JOURNAL ENTRY AND OPINION
   MARY EILEEN KILBANE, P.J.:

{¶ 1} Defendant-appellant, AT & T Teleholdings, Inc. ("AT & T"), appeals the trial court's decision granting the motion of plaintiff-appellee, Juanita R. Houston ("Houston"), to voluntarily dismiss AT & T's workers' compensation appeal without AT & T's consent. Pursuant to the holding of the Ohio Supreme Court in Ferguson v. State , 151 Ohio St.3d 265, 2017-Ohio-7844, 87 N.E.3d 1250, we reverse and remand.

{¶ 2} Houston was injured on December 12, 2013, in the course and scope of her employment with AT & T, when she slipped and fell on icy steel stairs while at work (the "December 2013 accident"). She filed a claim with appellee, Ohio Bureau of Workers' Compensation ("BWC"), and the BWC allowed her claim for "facet arthropathy" and "degenerative disc disease at the L3-4, L4-5, and L5-S1 levels." In January 2015, Houston filed a motion requesting additional allowances for substantial aggravation of each of the initially allowed conditions. The BWC allowed the requested additional conditions.

{¶ 3} In August 2015, AT & T appealed to the court of common pleas from the order of the staff hearing officer of the Industrial Commission of Ohio ("ICO"). The ICO staff hearing officer found that Houston's additional conditions were the proximate and direct result of the December 2013 accident and, therefore, she is eligible to participate in the workers' compensation fund for these additional conditions.

{¶ 4} The trial court set this matter for trial to commence on June 12, 2017. In May 2017, Houston moved to continue the trial. The trial court denied her motion. Subsequently, Houston moved to voluntarily dismiss her complaint without prejudice. The trial court granted Houston's motion despite the fact that AT & T did not consent to a voluntary dismissal of Houston's complaint as required by R.C. 4123.512(D) in an employer-initiated workers' compensation appeal.

{¶ 5} It is from this order that AT & T now appeals, presenting the following single assignment of error for our review:

Assignment of Error
The trial court erred by granting [Houston's] motion to voluntarily dismiss the complaint without prejudice, in that [AT & T] was the party that filed the court appeal and AT & T did not consent to the dismissal as required by R.C. 4123.512(D).

{¶ 6} R.C. 4123.512(D), commonly known as the workers' compensation statute's "consent provision," specifically provides:

The claimant shall, within thirty days after the filing of the notice of appeal, file a petition containing a statement of facts in ordinary and concise language showing a cause of action to participate or to continue to participate in the fund and setting forth the basis for the jurisdiction of the court over the action. Further pleadings shall be had in accordance with the Rules of Civil Procedure, provided that service of summons on such petition shall not be required and provided that the claimant may not dismiss the complaint without the employer's consent if the employer is the party that filed the notice of appeal to court pursuant to this section.

(Emphasis added.) Id.

{¶ 7} We note that Houston's motion to voluntarily dismiss this matter and the trial court's decision to grant her motion were based upon this court's holding in Ferguson v. State , 2015-Ohio-4499, 42 N.E.3d 804 (8th Dist.). In Ferguson , this court found that R.C. 4123.521(D) was unconstitutional in that it violated the separation of powers doctrine and the equal protection and due process clauses of the Ohio and federal constitutions. Id. at ¶ 37. This court stayed the instant appeal pending the Ohio Supreme Court's decision in Ferguson .

{¶ 8} The Ohio Supreme Court recently reversed this court's holding in Ferguson and found the consent provision of R.C. 4123.512(D) to be constitutional. Ferguson , 151 Ohio St.3d 265, 2017-Ohio-7844, 87 N.E.3d 1250. Therefore, we must abandon our holding in Ferguson and reverse the trial court's judgment allowing Houston to dismiss her complaint without AT & T's consent in violation of R.C. 4123.512(D).

{¶ 9} Accordingly, AT & T's sole assignment of error is sustained.

{¶ 10} Judgment is reversed and the matter is remanded to the trial court for further proceedings on the merits.

TIM McCORMACK, J., and MELODY J. STEWART, J., CONCUR


author: FRANK D. CELEBREZZE, JR., J.:

text:
    IN RE: A.G., A Minor Child
    [Appeal By M.G., Mother]
    No. 105781
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 25, 2018
    Alexandria M. Ruden, Tonya D. Whitsett, Legal Aid Society of Cleveland, 1223 West 6th Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT
    C.S., pro se 31204 Erin Avenue Cleveland, Ohio 44103, FOR APPELLEE
    ALSO LISTED Christopher R. Lenahan, Christopher R. Lenahan, Inc., Co., 2035 Crocker Road, Suite 104, Westlake, Ohio 44145, Guardian ad Litem
    BEFORE: Celebrezze, J., S. Gallagher, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Appellant, M.G. ("Mother"), brings the instant appeal challenging the reallocation of parental rights that resulted from a motion to modify filed by appellee, C.S. ("Father"). Mother argues that the trial court erred in adopting the magistrate's decision because neither the trial court nor the magistrate made a determination that there had been a change in circumstance, the trial court failed to make any particularized finding that the reallocation of parental rights was in the child's best interest, and the court violated Mother's due process rights. After a thorough review of the record and law, this court reverses and remands.

I. Factual and Procedural History

{¶ 2} Mother and Father had a child, A.G., born December 26, 2011. Through proceedings to determine custody and parentage that culminated in a November 16, 2012 journal entry, Mother and Father reached an agreement where Mother was named the custodial and residential parent and Father received parenting time. In 2014 and 2015, Father filed motions to modify visitation but they were dismissed for failure to prosecute.

{¶ 3} Father filed a motion to modify custody on June 21, 2016. On the preprinted motion regarding a prompt to set forth a change in circumstance, Father wrote: "I'm trying to get custody of my daughter because the mother is always leaving her unattended while she smoke[s] weed, and she's been abusing our child, while in her [custody]." The motion was assigned to a magistrate, and a hearing was scheduled for March 27, 2017.

{¶ 4} The magistrate's decision issued March 27, 2017, indicates that a hearing was held on that date, which was attended by Father, Mother, and the Guardian ad litem ("GAL") for the child. The decision then goes on to name Father as the residential parent with Mother receiving visitation.

{¶ 5} On April 19, 2017, the trial court filed a journal entry adopting the magistrate's decision. The record does not indicate that Mother filed timely objections prior to the decision. On May 11, 2017, Mother sought a transcript of the March 27, 2017 hearing, and on May 12, 2017, she filed a notice of appeal. She now assigns three errors for review:

I. The trial court committed plain error when it modified the prior custody order without finding a change in circumstances as required by R.C. 3109.04(E)(1)(a).
II. The trial court committed plain error when it failed to include specific findings pursuant to R.C. 3109.04(C) that it was in the best interest of the child to award custody to appellee-father, who had two convictions for domestic violence committed against appellant-mother.
III. The trial court committed plain error when it violated appellant-mother's due process rights by fabricating testimony, relying upon a non-existent guardian ad litem recommendation, and deciding custody after only an eight (8) minute hearing.

II. Law and Analysis

A. Standard of Review

{¶ 6} Mother failed to object to the magistrate's decision. According to Juv.R. 40(D)(3)(b)(iv), "[e]xcept for a claim of plain error, a party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion * * * unless the party has objected to that finding or conclusion as required by Juv.R. 40(D)(3)(b)."

{¶ 7} Here, that means that this court reviews Mother's claim only for plain error. In re S.H. , 8th Dist. Cuyahoga No. 100911, 2014-Ohio-4476, 2014 WL 5089067, ¶ 12. "Plain error is not favored and is only applicable in rare cases where the error 'seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself.' " Id. , quoting S.J. v. J.T. , 6th Dist. Lucas No. L-11-1011, 2011-Ohio-6316, 2011 WL 6153015, ¶ 8.

B. Change in Circumstance

{¶ 8} R.C. 3109.04 deals with allocating parental rights of a child. The initial determination requires a careful analysis of numerous factors set forth in the statute. To limit relitigation of the issue, R.C. 3109.04(E)(1) requires that decisions to modify custody be based on a change in circumstance that arose after the issuance of the decree in effect at the time, or newly discovered information. Wyss v. Wyss , 3 Ohio App.3d 412, 416, 445 N.E.2d 1153 (10th Dist.1982).

{¶ 9} This statute provides in part,

The court shall not modify a prior decree allocating parental rights and responsibilities for the care of children unless it finds, based on facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child, the child's residential parent, or either of the parents subject to a shared parenting decree, and that the modification is necessary to serve the best interest of the child.

(Emphasis added.) R.C. 3109.04(E)(1)(a).

{¶ 10} This determination is substantively different than a modification of a shared parenting plan as addressed in R.C. 3109.04(E)(2), where no change of circumstance is required. The Ohio Supreme Court had indicated that modifying which person is the residential or custodial parent cannot be accomplished through R.C. 3109.04(E)(2). Fisher v. Hasenjager , 116 Ohio St.3d 53, 2007-Ohio-5589, 876 N.E.2d 546, ¶ 26. See also Davis v. Flickinger , 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997) ("[T]here must be a change of circumstances to warrant a change of custody, and the change must be a change of substance, not a slight or inconsequential change."). Therefore, in order for the court to modify custody in the manner that it did, it must find that a change in circumstance occurred:

R.C. 3109.04(E)(1)(a) precludes a trial court from modifying a prior decree allocating parental rights and responsibilities unless it finds, based on facts that have arisen since the time of the decree or were unknown to it at that time, not only that a change has occurred in circumstances of the child, the child's residential parent, or either parent subject to a shared-parenting decree, but also that the modification of the prior custody decree is necessary to serve the best interest of the child.

In re James , 113 Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467, paragraph one of the syllabus.

{¶ 11} "The statute allows a court to modify a prior decree allocating parental rights and responsibilities only if (1) 'a change has occurred in the circumstances of the child, the child's residential parent, or either of the parents subject to a shared parenting decree' and (2) the modification is in the best interest of the child." Fisher at ¶ 21, quoting R.C. 3109.04(E)(1)(a).

{¶ 12} Here, the magistrate's decision and the trial court's decision do not mention a change in circumstance. In the absence of objections, the trial court's review of the magistrate's decision was limited to a review for "whether an error of law or other defect existed on the face of the magistrate's decision." In re S.H., 8th Dist. Cuyahoga No. 100911, 2014-Ohio-4476, 2014 WL 5089067, at ¶ 11, citing In re K.X. , 10th Dist. Franklin No. 04AP-949, 2005-Ohio-3791, 2005 WL 1745311, ¶ 15. The failure to find a change in circumstance is such a defect on the face of the magistrate's decision in this case.

{¶ 13} The trial court's failure to address any change in circumstance constitutes plain error. The Ohio Supreme Court has determined such a change is required for the court to act in modifying custody. See In re James , 113 Ohio St.3d 420, 2007-Ohio-2335, 866 N.E.2d 467.

{¶ 14} Further, the magistrate's and trial court's decisions do not evidence any particularized findings as to this child. Both decisions provide boilerplate considerations with no factual determinations applicable to the individual child here. This dovetails into Mother's second assignment of error and the lack of any findings relating to the best interests of the child. Because the lack of any finding regarding a change in circumstance constitutes plain error in this case, this court need not address Mother's second assignment of error, which takes issue with the decision's lack of particularized findings.

B. Evidence Adduced at the Hearing

{¶ 15} Mother also takes issue with the trial court's reliance on the GAL's recommendation when, she asserts, the GAL did not give a recommendation in this case. However, this takes issue with items that were addressed by the magistrate at a hearing. Mother failed to object or provide the trial court with a transcript of the hearing in a timely fashion, which is required. See Juv.R. 40(D)(3)(b)(iv). As a result, this court cannot consider the transcript or Mother's factual objections. In re Z.A.P. , 177 Ohio App.3d 217, 2008-Ohio-3701, 894 N.E.2d 342, ¶ 22 (4th Dist.). Therefore, this court cannot address this aspect of the assigned error.

{¶ 16} Mother also claims that the hearing only lasted eight minutes and the magistrate could not have heard testimony as is alleged in the magistrate's decision. Again, without the transcript being properly before this court, we cannot properly address this assigned error. Without objections and a transcript, this court must find that the extent of the hearing constitutes plain error. However, because we cannot consider the transcript, there is nothing in the record to demonstrate plain error here. Therefore, Mother's third assignment of error is overruled.

III. Conclusion

{¶ 17} The lower court's decision lacks any finding as to a change in circumstance that is necessary for the reallocation of parental rights in this case. The trial court was required to make a finding that a change in circumstances existed such that the reallocation of parental rights was appropriate. No such finding exists in the record before this court. This constitutes plain error.

{¶ 18} This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. In light of the facts and circumstances involved in this case, the juvenile court's administrative judge, in its discretion, may consider reassigning this case to a different judge on remand.

SEAN C. GALLAGHER, P.J., and PATRICIA ANN BLACKMON, J., CONCUR