[Cite as State v. Brown , 2020-Ohio-3614.]

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

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 1-19-61

v. TAYVON BROWN, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2018 0227 Judgment Affirmed in Part, Reversed in Part and Cause Remanded Date of Decision: July 6, 2020

APPEARANCES:



### Andrea M. Brown for Appellant 

### Jana E. Emerick for AppelleeCase No. 1-19-61

-2- PRESTON, J. {¶1} Defendant-appellant, Tayvon J. Brown (“Brown”), appeals the September 18, 2019 judgment of conviction and sentence of the A llen County Court of Common Pleas. For the reasons that follow, we affirm in par t and reverse in part. {¶2} On December 16, 2017, an officer from the Lima Police Departmen t responded to a call about a traffic accident on the north side of the city of Lima. On arrival, the officer observed Keaireus Fuqua (“Fuqua”) and a sm all child walking toward a disabled vehicle. When the officer approached Fuqua, he noticed that her lips and the area around her mouth were smeared with blood. Th e officer asked Fuqua what caused the bleeding, and she responded by telling th e officer that she was pregnant and exclaiming, “[H]e never should have put his ha nds on [her].” After additional questioning, Fuqua stated that Brown, her roma ntic partner, caused the injuries to her face. Fuqua was then taken to the hospital where she made further statements implicating Brown in an assault against her. {¶3} On June 13, 2018, the Allen County Grand Jury indicted Brown on one count of domestic violence in violation of R.C. 2919.25(A), (D) (5), a fifth-degree felony. (Doc. No. 4). The indictment specifically alleged tha t Brown knew that Fuqua was pregnant at the time of the violation. ( Id. ). On June 25, 2018, Brown appeared for arraignment and pleaded not guilty to the count of the indictment. (Doc. No. 22).Case No. 1-19-61

-3- {¶4} On December 13, 2018, the State filed a motion for the trial co urt to call Fuqua as the court’s witness pursuant to Evid.R. 614(A). (Doc. No. 80). As grounds for its motion, the State argued that it had reason to believe that Fuqua’s trial testimony would “contradict a prior statement made to police.” ( Id. ). {¶5} A jury trial commenced on December 17, 2018. At the beginning of the trial, the State renewed its motion for the trial court to call Fuqua as the court’s witness. (Dec. 17-18, 2018 Tr. at 21). The trial court grante d the State’s motion without objection. ( Id. at 22). In addition, Brown twice moved for a judgment of acquittal under Crim.R. 29. ( Id. at 157, 185-186). The trial court denied both of Brown’s Crim.R. 29 motions. ( Id. at 162, 186). On December 18, 2018, the jury found Brown guilty of domestic violence. (Doc. Nos. 94, 95). However, the jury found that the State did not prove beyond a reasonable doubt th at Brown knew that Fuqua was pregnant at the time of the offense. (Doc. No. 94). Consequently, Brown was found guilty of first-degree misdemeanor domestic violence rather than fifthdegree felony domestic violence as charged in the indictment. (Doc. No. 95). {¶6} The trial court proceeded immediately to sentencing. The trial court sentenced Brown to 180 days in the Allen County Jail—80 days of which the trial court suspended. (Doc. No. 95). The trial court did not award Brown any jail-time credit. ( See Dec. 17-18, 2018 Tr. at 247). In addition, Brown was placed o n “community control/probation” for a period of two years and ord ered to pay a $1000Case No. 1-19-61

-4- fine. (Doc. No. 95). The trial court’s judgment entry of conv iction and sentence was filed on December 19, 2018. ( Id. ). {¶7} On January 2, 2019, Brown filed a notice of appeal from the tri al court’s December 19, 2018 judgment. (Doc. No. 98). On September 3, 20 19, this court dismissed Brown’s appeal for lack of a final, appealable order. (Doc. No. 119). Specifically, we concluded that because Brown was sentenced to a term of local incarceration in jail for a misdemeanor offense, the trial cour t was required to calculate Brown’s jail-time credit under R.C. 2949.08, and we n oted that the trial court failed to include a calculation of Brown’s jail-time cred it in its judgment entry of conviction and sentence. ( Id. ). Accordingly, we dismissed Brown’s appeal “for the trial court to file a proper and complete sentencing entry. ” ( Id. ). {¶8} On September 18, 2019, the trial court filed an amended judgmen t entry of conviction and sentence in which it stated that it was givin g Brown “no credit for time previously served prior to the sentencing date as the jail time imposed was a condition of community control.” (Doc. No. 120). {¶9} On October 7, 2019, Brown filed a notice of appeal from the tri al court’s September 18, 2019 judgment. (Doc. No. 122). He raises five a ssignments of error for our review. We address Brown’s assignments of error in the order presented, but, for the sake of clarity, we consider Brown’s second and th ird assignments of error together.Case No. 1-19-61

-5- Assignment of Error No. I The trial court’s improper admission of hearsay statements constituted plain error and deprived defendant-appellant of his right to a fair trial. {¶10} In his first assignment of error, Brown argues that the trial c ourt committed plain error by allowing the admission of several hear say statements at his trial. He maintains that the record “is replete with sever al out-of-court statements made by the victim, Ms. Fuqua, and admitted at trial in which [he] was identified as the alleged assailant” and that “[b]ut for the tr ial court’s error in allowing the hearsay statements into evidence, the outcome of [ his] jury trial would have been much different.” (Appellant’s Brief at 9). Specific ally, Brown takes issue with hearsay contained in the testimony of the officer wh o initially responded to Fuqua’s traffic accident, Patrolman Nathan Fried (“Patrolman Fried”), in the testimony of an emergency room nurse at St. Rita’s Medical Cent er (“St. Rita’s”) who met with Fuqua on December 16, 2017, Ronda Norris (“Norris” ), and in State’s Exhibit 15, which are medical records from Fuqua’s visit to the emergency room at St. Rita’s on December 16, 2017. ( Id. ). {¶11} “Ordinarily, we review a trial court’s hearsay rulings for an a buse of

discretion.” State v. McKelton , 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 97, citing State v. Hymore , 9 Ohio St.2d 122, 128 (1967). See HSBC Bank U.S.A., Natl. Assn.

v. Gill , 1st Dist. Hamilton No. C-180404, 2019-Ohio-2814, ¶ 6-10 (docu menting aCase No. 1-19-61

-6- split between courts of appeals concerning the proper standard of review to apply when reviewing the admission of hearsay but concluding that McKelton and other Supreme Court decisions dictate abuse-of-discretion review). H owever, as Brown recognizes, because he failed to object to the admission of the hearsay contained in

Patrolman Fried’s and Norris’s testimonies and in State’s Exhib it 15, we review for plain error. State v. Obermiller , 147 Ohio St.3d 175, 2016-Ohio-1594, ¶ 72, citing State v. Fitzpatrick , 102 Ohio St.3d 321, 2004-Ohio-3167, ¶ 66. {¶12} We recognize plain error “‘with the utmost caution, under excep tional circumstances and only to prevent a manifest miscarriage of jus tice.’” State v.

Landrum , 53 Ohio St.3d 107, 111 (1990), quoting State v. Long , 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. For plain error to ap ply, the trial court must have deviated from a legal rule, the error must have been an ob vious defect in the proceeding, and the error must have affected a substantial righ t. State v. Barnes , 94 Ohio St.3d 21, 27 (2002). Under the plain error standard, the appellant must demonstrate that the outcome of his trial would clearly have be en different but for

the trial court’s errors. State v. Waddell , 75 Ohio St.3d 163, 166 (1996), citing State

v. Moreland , 50 Ohio St.3d 58 (1990). {¶13} 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). Generally, hea rsay is not admissibleCase No. 1-19-61

-7- unless an exception applies. Evid.R. 802. “‘Evid.R. 803 is on e such rule which permits the admission of certain hearsay statements even though the declarant is

available as a witness.’” State v. Bender , 3d Dist. Union No. 14-19-22, 2020-Ohio722, ¶ 12, quoting Dayton v. Combs , 94 Ohio App.3d 291, 300 (2d Dist.1993). Three of these exceptions—Evid.R. 803(2), Evid.R. 803(4), and E vid.R. 803(6)— potentially apply to the hearsay admitted in the present case. {¶14} We begin with Patrolman Fried’s testimony and the first of the arguably applicable exceptions to the hearsay rule—Evid.R. 803( 2), which allows for the admission of excited utterances. At trial, Patrolman F ried testified that on the morning of December 16, 2017, he was dispatched to the six- hundred block of West Northern Avenue in Lima to respond to a report of a traffi c accident with no injuries. (Dec. 17-18, 2018 Tr. at 30-31). He stated that he arrived in the area approximately 10-12 minutes after the Lima Police Department wa s first contacted about the accident. ( Id. at 31). Patrolman Fried testified that when he arrived at the scene, he observed a woman and a young boy walking toward a veh icle that was “facing the wrong way into traffic” and resting alongside the c urb. ( Id. at 32-33). He stated that the woman identified herself as Fuqua and that h e was able to establish that she had been driving the vehicle. ( Id. at 33-34). {¶15} Patrolman Fried testified that when he approached Fuqua, “[s]he had blood on her mouth * * * [and] seemed very emotional, very dist raught.” ( Id. atCase No. 1-19-61

-8- 34). Patrolman Fried stated that he “asked her what happened a nd she stated that [she was] pregnant and ‘he never should have put his hands on m e.’” ( Id. ). He testified that he then asked Fuqua who had put their hands on h er, and she responded that it was Brown. ( Id. at 34-35). Finally, Patrolman Fried said that he “asked [Fuqua] how she had received the injury and she said it was fro m [Brown].” ( Id. at 35). {¶16} The State argues that Fuqua’s statements to Patrolman Fried reg arding the blood on her mouth and the identity of her assailant were a dmissible as excited utterances pursuant to Evid.R. 803(2). Under Evid.R. 803(2), “ statement[s] relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” are excepted from the hearsay rule. In determining whether a statement is admissible under Evid.R. 803 (2), the Supreme Court of Ohio has applied the following four-part test: (a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to st ill his reflective faculties and thereby make his statements and declar ations the unreflective and sincere expression of his actual impressio ns and beliefs, and thus render his statement or declaration spontaneo us and unreflective,Case No. 1-19-61

-9- (b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had

been time for such nervous excitement to lose a domination over his

reflective faculties so that such domination continued to remain

sufficient to make his statements and declarations the unreflec tive and sincere expression of his actual impressions and beliefs, (c) that the statement or declaration related to such startling occurrence or the circumstances of such startling occurrence, a nd (d) that the declarant had an opportunity to observe personally the

matters asserted in his statement or declaration. (Emphasis sic.) State v. Jones , 135 Ohio St.3d 10, 2012-Ohio-5677, ¶ 166, quoting

Potter v. Baker , 162 Ohio St. 488 (1955), paragraph two of the syllabus. {¶17} “‘When evaluating statements under this test, “[t]here is no pe r se amount of time after which a statement can no longer be conside red to be an excited

utterance.”’” State v. Baskin , 3d Dist. Allen No. 1-18-23, 2019-Ohio-2071, ¶ 61, quoting State v. Little , 3d Dist. Allen No. 1-16-29, 2016-Ohio-8398, ¶ 11, quoting State v. Taylor , 66 Ohio St.3d 295, 303 (1993). “‘Rather, “each case must be

decided on its own circumstances.”’” Id. , quoting Little at ¶ 11, quoting State v.

Duncan , 53 Ohio St.2d 215, 219 (1978). “‘“The central requirements a re that the

statement must be made while the declarant is still under the s tress of the event andCase No. 1-19-61

-10- the statement may not be a result of reflective thought.”’” Id. , quoting Little at ¶ 11, quoting Taylor at 303. “Further, ‘the admission of a declaration as an excit ed utterance is not precluded by questioning which: (1) is neithe r coercive nor leading, (2) facilitates the declarant’s expression of what is already t he natural focus of the declarant’s thoughts, and (3) does not destroy the domination o f the nervous

excitement over the declarant’s reflective faculties.’” State v. Whitfield , 1st Dist. Hamilton No. C-020241, 2002-Ohio-5984, ¶ 6, quoting State v. Wallace , 37 Ohio St.3d 87, 93 (1988). {¶18} We conclude that Fuqua’s statements to Patrolman Fried were admissible as excited utterances under Evid.R. 803(2). First, there is no question that the event to which Fuqua’s statements referred—an assault perpetrated by the man she was dating—was startling enough to produce a nervous ex citement in Fuqua and impair her reflective faculties. See State v. Boss , 5th Dist. Ashland No. 16-COA-026, 2017-Ohio-697, ¶ 24; Cleveland v. Williams , 8th Dist. Cuyahoga No. 101588, 2015-Ohio-1739, ¶ 5-6, 18-20. Furthermore, Fuqua’s sta tements related to the assault, and as the victim, Fuqua observed personally the m atters asserted in her statements. In addition, although Fuqua’s statements were made in response to Patrolman Fried’s questions and were thus not unprompted, Patro lman Fried’s questioning was not coercive or leading; instead, it was open-e nded and allowedCase No. 1-19-61

-11- Fuqua to express what was already on her mind without overcomin g the excitement produced by the assault. See Whitfield at ¶ 8-9. ( See State’s Ex. 2). {¶19} Brown does not dispute that Fuqua’s statements to Patrolman Fri ed meet most of the criteria for admissibility as excited utteranc es. However, he contends that Fuqua did not make the statements to Patrolman Fr ied while under the stress of the excitement of the attack because “she had just be en in a motor vehicle accident where she ran her car up over a curb after leaving her residence to follow Brown in her car.” (Appellant’s Reply Brief at 1-2). Brown ac knowledges that Fuqua was “very upset,” “very emotional,” and “very distraught” when she spoke to Patrolman Fried, but he notes that there was no testimony “p inpointing that Ms. Fuqua was still under the stress/excitement of the startling ev ent * * * as opposed to the fact that she had just ran her car up over a curb with h er son in the vehicle.” ( Id. at 2). He maintains that the accident was an “intervening cir cumstance * * * [that] could have influenced her statements to Patrolman Fried” and suggests that her statements were made in response to the stress of the accid ent rather than the stress of the assault. ( Id. at 1-2). {¶20} We disagree. In this case, there was little evidence concernin g when

the accident occurred in relation to the assault. In her testi mony, Fuqua could not recall when she and Brown got into the altercation, other than that it happened after they woke up on the morning of December 16, 2017. (Dec. 17-18, 2018 Tr. at 67-Case No. 1-19-61

-12- 68). She stated that, shortly after the incident, Brown left h er apartment in a vehicle and that she then left her apartment and chased after him in he r vehicle before running into the curb. ( Id. at 71). Although there is nothing in the record regarding how much time elapsed between when Fuqua hit the curb and when the Lima Police Department was first contacted about the accident, Patrolman Fr ied testified that he arrived at the scene of the accident approximately 10-12 minute s after the call came in, and the video recording from the dashboard camera of Patrol man Fried’s patrol

vehicle reflects that Patrolman Fried initiated contact with Fu qua at approximately 10:50 a.m. ( Id. at 31); (State’s Ex. 2). Thus, although the time between the assault and Fuqua’s statements cannot be determined with absolute certa inty, the evidence strongly suggests that the statements were made close enough in time to the assault that Fuqua was still suffering from the original stress of the attack. {¶21} Moreover, while the accident was “intervening” in the sense tha t it occurred between the attack and Fuqua’s statements, it was not an isolated incident that severed the connection between the assault and Fuqua’s sta tements. When Fuqua crashed her vehicle, she was in pursuit of the man who ha d recently attacked her. If anything, the traffic accident served to maintain, or even amplify, the state of nervous excitement caused by the assault rather than diminis h it. See State v. Boyd , 3d Dist. Hancock No. 5-89-23, 1990 WL 121491, *4 (Aug. 21, 19 90) (“There was only one intervening circumstance noted in the evidence. [ The assault victim]Case No. 1-19-61

-13- was informed by the bartender that the house was on fire. This would tend to increase the stress already existing and would not eliminate it.”) (Emphasis sic.). Therefore, the record leaves little doubt that Fuqua was under the influence of the stress caused by the assault when she made the statements to Pa trolman Fried. Accordingly, we conclude that Fuqua’s statements to Patrolman F ried are admissible as excited utterances under Evid.R. 803(2) and that the trial court did not plainly err by allowing Patrolman Fried to testify about those statements. {¶22} Next, we turn to the hearsay embedded in Norris’s testimony and in State’s Exhibit 15. Most of Norris’s testimony was directed to ward explaining St. Rita’s emergency department’s regular procedures and the proced ures that were followed during Fuqua’s visit. Norris testified that in order to properly care for a person who comes into the emergency room, it is important to ge t as much information as possible from the person, specifically about wha t happened to the person and why they were admitted. (Dec. 17-18, 2018 Tr. at 11 6). She stated that patients will be asked “what brought them [to the emergency roo m] in order to better treat them appropriately.” ( Id. ). {¶23} Norris also testified that whenever medical personnel interact with a patient at the emergency room, a record is made of the interact ion. ( Id. at 118). She stated that information gathered from a patient is documented i n the record at or around the time the patient gives the information, that the inf ormation is logged byCase No. 1-19-61

-14- a person that talks to the patient or has knowledge of what the patient said, and that these records are kept and relied on in the ordinary course of business at St. Rita’s. ( Id. at 118-119). Norris testified that when Fuqua came to the eme rgency room at St. Rita’s on December 16, 2017, a record of Fuqua’s visit was created in accordance with these procedures. ( Id. at 117, 119). Norris identified State’s Exhibit 15 as a fair and accurate copy of Fuqua’s medical records from St. Rita ’s. ( Id. at 119); (State’s Ex. 15). {¶24} State’s Exhibit 15 contains a number of statements made by Fuqu a to the medical staff at St. Rita’s on December 16, 2017. (State’s Ex. 15). First, the medical record indicates that Fuqua told Dr. Sampath Medepalli that “she was in an altercation with her boyfriend,” that “[h]e threw her on the gr ound and punched her in the face and then she turned on her abdomen and he punched h er in the back,” and that “[s]he had a nosebleed initially.” ( Id. ). In addition, Nurse Ashley Scott recorded that Fuqua stated that “she got in a fight [with her] child’s father” and that Fuqua “report[ed] [that] he was hitting her and slamming her.” ( Id. ). Nurse Scott also reported that Fuqua stated that her “stomach [was] startin g to hurt * * *.” ( Id. ). {¶25} Finally, at one point, Norris read from the notes of Dr. Medepa lli and Nurse Scott contained in State’s Exhibit 15. (Dec. 17-18, 2018 Tr. at 121, 123). In addition, Norris stated that when she spoke to Fuqua, Fuqua “ag reed that she was not going back home to him.” ( Id. at 127). According to Norris, Fuqua “also agreedCase No. 1-19-61

-15- that she was going to be going to the Prosecutor’s Office on Mo nday to discuss getting a protection order.” ( Id. ). Apart from this testimony, Norris did not testify to anything Fuqua said during her visit to St. Rita’s on Decemb er 16, 2017. {¶26} The State argues that Evid.R. 803(4) and 803(6) support the adm ission of Fuqua’s out-of-court statements contained in Norris’s testim ony and in State’s Exhibit 15. Evid.R. 803(4) excepts from the hearsay rule “[s]t atements made for purposes of medical diagnosis or treatment and describing medic al history, or past or present symptoms, pain, or sensations, or the inception or g eneral character of the cause or external source thereof insofar as reasonably pert inent to diagnosis or treatment.” “‘The hearsay rules except statements made for the purpose of medical diagnosis or treatment due to the inherent reliability underlyi ng the nature of those

statements.’” Bender , 2020-Ohio-722, at ¶ 13, quoting State v. Lykins , 4th Dist. Adams No. 18CA1079, 2019-Ohio-3316, ¶ 94 and citing State v. Muttart , 116 Ohio St.3d 5, 2007-Ohio-5267, ¶ 39. “‘[S]tatements made for the pur pose of medical diagnosis and treatment are considered reliable because “‘facts reliable enough to be relied on in reaching a diagnosis have sufficient trustworth iness to satisfy hearsay

concerns.’”’” Id. , quoting Lykins at ¶ 95, quoting State v. Dever , 64 Ohio St.3d 401, 411 (1992), quoting McCormick, Evidence , Section 250 (4th Ed.1992), and citing

Muttart at ¶ 41.Case No. 1-19-61

-16- {¶27} On the other hand, Evid.R. 803(6), commonly referred to as the business-records exception, exempts from the rule against hears ay: A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or fr om information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it wa s the regular practice of that business activity to make the memorand um, report, record, or data compilation, all as shown by the testim ony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling o f every kind, whether or not conducted for profit. “Generally, authenticated medical records are admissible at tri al.” State v. Schultz , 8th Dist. Cuyahoga Nos. 102306 and 102307, 2015-Ohio-3909, ¶ 28 , citing Hunt v. Mayfield , 65 Ohio App.3d 349, 352 (2d Dist.1989). “Although potentiall y replete with hearsay problems, medical records are admissible under the exception to the hearsay rule for records of regularly conducted activity set fo rth in Evid.R. 803(6).”

Id. , citing State v. Humphries , 79 Ohio App.3d 589, 595 (12th Dist.1992).Case No. 1-19-61

-17- {¶28} Because it presents more potential hearsay issues, we begin wit h the

out-of-court statements contained in State’s Exhibit 15. Brown does not argue that State’s Exhibit 15 fails to satisfy the requirements of Evid.R. 803(6). ( See Appellant’s Brief at 9); ( See Appellant’s Reply Brief at 3). After reviewing Norris’s testimony concerning St. Rita’s regular procedures and the mann er in which State’s Exhibit 15 was prepared and kept, we are satisfied that even if some of the

statements contained in State’s Exhibit 15 are not admissible u nder Evid.R. 803(4), State’s Exhibit 15 itself is admissible under Evid.R. 803(6). Moreover, Brown does not appear to dispute that Fuqua’s statements to the staff at S t. Rita’s about her physical symptoms, i.e., a nosebleed and stomach pain, and the cause of those symptoms, i.e., being thrown on the ground, hit, punched, and s lammed, were made for purposes of medical diagnosis or treatment and were reasona bly pertinent to medical diagnosis or treatment. Therefore, Brown seems to conc ede that these statements are admissible under Evid.R. 803(4)—a concession wit h which we agree. {¶29} However, Brown argues that the portions of Fuqua’s statements i n which she identified her attacker as her “boyfriend” or “child’ s father” are not admissible under Evid.R. 803(4) because “absent some evidence t hat the identity of a perpetrator is necessary for medical purposes, any statements identifying [him] as the assailant were not properly admitted pursuant to Evid.R. 80 3(4) * * *.” (Appellant’s Reply Brief at 3). Indeed, many courts have expre ssed their approvalCase No. 1-19-61

-18- of “the general rule ‘that a statement as to the identity of th e perpetrator of a criminal act, which is not reasonably related or necessary to medical di agnosis, is not admissible under Evid.R. 803(4).’” State v. Dyer , 11th Dist. Lake No. 2015-L-121, 2017-Ohio-426, ¶ 50, quoting State v. Ashford , 11th Dist. Trumbull No. 99-T-0015, 2001 WL 137595, *8 (Feb. 16, 2001). See State v. McCluskey , 4th Dist. Ross No. 17CA3604, 2018-Ohio-4859, ¶ 34; State v. Kingery , 12th Dist. Fayette No. CA2009-08-014, 2010-Ohio-1813, ¶ 34. Yet, in this case, we nee d not determine how or whether this general rule applies because the identifica tions in State’s Exhibit 15 are cumulative to Fuqua’s statements to Patrolman Fr ied in which she identified Brown as her assailant, and we have already determin ed that such statements are admissible under Evid.R. 803(2). See Dyer at ¶ 53. “Generally, where other admissible substantive evidence mirrors improper he arsay, the error in allowing the hearsay is deemed harmless, since it would not hav e changed the

outcome of the trial.” State v. Williams , 1st Dist. Hamilton No. C-160336, 2017- Ohio-8898, ¶ 17, citing State v. Richcreek , 196 Ohio App.3d 505, 2011-Ohio-4686, ¶ 43 (6th Dist.), citing State v. Byrd , 8th Dist. Cuyahoga No. 82145, 2003-Ohio3958, ¶ 39. Therefore, even assuming error in the admission of the identifications in State’s Exhibit 15, the error was harmless. See id. ; Dyer at ¶ 53. {¶30} Finally, with respect to Norris’s testimony, we conclude that t he trial court’s error, if any, in allowing the admission of the hearsay in Norris’s testimonyCase No. 1-19-61

-19- was harmless. In light of the admissible substantive evidence discussed above, including Fuqua’s statements to Patrolman Fried that Brown caus ed her injuries and Fuqua’s account of the attack that she related to Patrolman Fri ed and to the medical staff at St. Rita’s, we cannot conclude that the outcome of the trial would have been different had Norris not been permitted to testify concerning F uqua’s statements about not going home with Brown or about seeking a civil protec tion order. Furthermore, Norris’s reading of sections of State’s Exhibit 15 was merely duplicative of the exhibit itself—much of which we have already concluded to be

admissible. {¶31} In sum, much of the hearsay to which Brown now objects is admis sible under various exceptions to the rule against hearsay. To the e xtent that some of this hearsay might be inadmissible, the exclusion of this evidence w ould not have changed the outcome of Brown’s trial. As a result, we conclude that the trial court did not commit plain error. {¶32} Accordingly, Brown’s first assignment of error is overruled. Assignment of Error No. II The trial court erred in not granting defendant-appellant’s motion for acquittal, pursuant to Crim.R. 29(A), due to insufficient evidence presented to support a conviction. Assignment of Error No. III The jury’s verdict of guilty on the charge of domestic violence , a misdemeanor of the first degree, was not supported byCase No. 1-19-61

-20- sufficient evidence and was against the manifest weight of the evidence. {¶33} In his second and third assignments of error, Brown argues that his domestic-violence conviction is not supported by sufficient evi dence and that it is against the manifest weight of the evidence. {¶34} Manifest “weight of the evidence and sufficiency of the evidenc e are clearly different legal concepts.” State v. Thompkins , 78 Ohio St.3d 380, 389 (1997). Accordingly, we address each legal concept individuall y. {¶35} “An appellate court’s function when reviewing the sufficiency o f the evidence to support a criminal conviction is to examine the evi dence admitted at trial to determine whether such evidence, if believed, would co nvince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds , State v. Smith , 80 Ohio St.3d 89 (1997). Consequently, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the evidence was sufficient, we neither resolve evi dentiary conflicts nor assess the credibility of witnesses, as both are functions rese rved for the trier of

fact.” State v. Jones , 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio4775, ¶ 33, citing State v. Williams , 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25Case No. 1-19-61

-21- (1st Dist.). See also State v. Berry , 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence.”), citing Thompkins at 386. Because the purpose of a Crim.R. 29 motion for acquittal “is to test the sufficiency of the evidence presented at trial,” we “review[] a denial of a Crim.R. 29 motion for jud gment of acquittal using the same standard that is used to review a sufficiency of the evidence claim.”

State v. Willis , 12th Dist. Butler No. CA2009-10-270, 2010-Ohio-4404, ¶ 9, cit ing State v. Terry , 12th Dist. Fayette No. CA2001-07-012, 2002-Ohio-4378, ¶ 9, ci ting

State v. Williams , 74 Ohio St.3d 569, 576 (1996); State v. Lightner , 3d Dist. Hardin No. 6-08-11, 2009-Ohio-544, ¶ 11, citing State v. Carter , 72 Ohio St.3d 545, 553 (1995). {¶36} On the other hand, in determining whether a conviction is again st 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 th e evidence, the [trier of fact] clearly lost its way and created such a manifest misca rriage 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 discre tion on matters relating to the weight of the evidence and the credibility of the witnes ses. State v. DeHass ,Case No. 1-19-61

-22- 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weig ht standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavil y 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. {¶37} In this case, Brown was convicted of domestic violence in viola tion of R.C. 2919.25(A). R.C. 2919.25(A) provides that “[n]o person sh all knowingly cause or attempt to cause physical harm to a family or househol d member.” “A person acts knowingly, regardless of purpose, when the person i s aware that the person’s conduct will probably cause a certain result or will p robably be of a certain nature.” R.C. 2901.22(B). “Physical harm to persons” means “a ny injury, illness, or other physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). {¶38} As used in R.C. 2919.25(A), “family or household member” includ es “a person living as a spouse * * * of the offender” who “is res iding or has resided with the offender.” R.C. 2919.25(F)(1)(a)(i). A “person livin g as a spouse” includes a person who is “cohabiting with the offender” or who “otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.” R.C. 2919.25(F)(2). “The offense of domestic violence, as expressed in [R.C. 2919.25(F)(1)(a)] * * *, arises out of the relationshipCase No. 1-19-61

-23- of the parties rather than their exact living circumstances.” State v. Williams , 79 Ohio St.3d 459 (1997), paragraph one of the syllabus. {¶39} “The Supreme Court of Ohio has defined ‘“cohabitation” to inclu de two essential elements: (1) the sharing of familial or financi al responsibilities and (2) consortium.’” State v. Douglas , 3d Dist. Marion Nos. 9-18-19 and 9-18-20, 2019-Ohio-2067, ¶ 18, quoting State v. Eberly , 3d Dist. Wyandot No. 16-04-03, 2004-Ohio-3026, ¶ 21, citing Williams at 465. Possible factors establishing shared familial or financial responsibilities might include provisions for shelter, food, cl othing, utilities, [or] commingled assets. Factors that might establis h consortium include mutual respect, fidelity, affection, society , cooperation, solace, comfort, aid of each other, friendship, an d conjugal relations. These factors are unique to each case and how much weight, if any, to give to each of these factors must be d ecided on a case-by-case basis by the trier of fact.

Williams at 465. “‘The burden of establishing cohabitation is not subs tantial.’”

State v. White , 2d Dist. Montgomery No. 25792, 2014-Ohio-1446, ¶ 14, quoting

State v. Woullard , 158 Ohio App.3d 31, 2004-Ohio-3395, ¶ 73 (2d Dist.2004). {¶40} In addition to the evidence referenced in our analysis of Brown ’s first assignment of error, the following evidence was presented at Br own’s trial.Case No. 1-19-61

-24- Patrolman Fried was the State’s first witness. In addition to testifying about Fuqua’s statements, Patrolman Fried testified that after calling an amb ulance to tend to Fuqua’s injuries, the focus of the investigation shifted to try ing to locate Brown. (Dec. 17-18, 2018 Tr. at 36). He stated that he learned from F uqua that the alleged incident had taken place in an apartment on Brower Road in Lima , Ohio and that two patrol officers were directed to go to the apartment “to ch eck and see if [Brown] * * * returned and then also to * * * look at potential evidenc e because [Fuqua] stated there was blood all over the apartment.” ( Id. at 39). Patrolman Fried testified that he eventually drove to the apartment to assist in the inve stigation, at which time he took a picture of a dent in a wall of the apartment allegedl y caused when Brown threw Fuqua’s cell phone against the wall. ( Id. at 42); (State’s Ex. 6). {¶41} Patrolman Fried also identified State’s Exhibit 4 as a photogra ph he took of Fuqua on the day on the incident. (Dec. 17-18, 2018 Tr . at 41-42); (State’s Ex. 4). Patrolman Fried testified that State’s Exhibit 4 accur ately depicted the way that Fuqua looked on December 16, 2017. (Dec. 17-18, 2018 Tr. at 42). In State’s Exhibit 4, dried and drying blood is visible around Fuqua’s mou th and on her lips and chin. (State’s Ex. 4). {¶42} On cross-examination, Patrolman Fried testified that he did not personally witness any violence between Fuqua and Brown and tha t Fuqua never indicated that Brown lived with her in the apartment on Brower Road. (Dec. 17-18,Case No. 1-19-61

-25- 2018 Tr. at 44-45). Patrolman Fried further testified that Fuq ua spoke to him a few months after the alleged incident and that she gave him a lette r “stating that the report [she made] was false.” ( Id. at 46). Patrolman Fried identified Defendant’s Exhibit A as a copy of the letter Fuqua gave him. ( Id. ); (Defendant’s Ex. A). In the letter, Fuqua writes, “A report was made by Officer Nathan Frie d and this report was false. It states that ‘I said I was thrown to the ground o n my stomach then punched in the back and in the face.’ That’s not true. I was never punched. I made it clear that I was never hit with a closed fist.” (Defendant’ s Ex. A). Patrolman Fried characterized Fuqua’s letter as an attempt to recant her previous statements. (Dec. 17-18, 2018 Tr. at 47). {¶43} Next, Fuqua was called as the court’s witness pursuant to Evid. R. 614(A). She was first examined by the State. She testified th at on December 16, 2017, she was living in the apartment on Brower Road and that B rown was at her apartment that morning. ( Id. at 49-50). She stated that Brown spent the night at her apartment, that she woke up to Brown telling her that she recei ved a call on her cell phone from a restricted number, and that “he was talking to the person that called [her using a] blocked [number].” ( Id. at 67-68). Fuqua testified that Brown “got mad and threw [her cell phone] against the wall.” ( Id. at 68). She stated that the phone broke when it hit the wall and that it made “a little sli t” in the wall. ( Id. ).Case No. 1-19-61

-26- {¶44} Fuqua testified that after Brown threw her phone, she “started going crazy on him,” hit him with her fists, and pushed him. ( Id. at 70). She stated that Brown “tried to get [her] off of him and then [her] nose * * * started bleeding,” so she searched the apartment for some tissues or a rag to stem th e bleeding. ( Id. ). Fuqua testified that she then found her phone and that once she found her phone, Brown tried to leave the apartment. ( Id. at 71). She stated that she followed him in her car before running her car onto the curb. ( Id. ). {¶45} Fuqua testified that when she first started seeing Brown in 201 6, he was living in a house on Scott Street and she was living with h er mother on Second Street. (Dec. 17-18, 2018 Tr. at 54-55). She stated that she initially spent some time with Brown but that due to her job at McDonald’s, she did “[n]ot really” visit him often. ( Id. at 54). Fuqua testified that Brown did not spend any time at her mother’s house with her and that she would go to his residence to see him. ( Id. at 55). Fuqua could not recall telling police officers in 2016 th at she lived at Brown’s house on Scott Street, and she insisted that she was living wit h her mother. ( Id. at 56). {¶46} Fuqua stated that Brown is the father of her daughter, who was born in June 2018. ( Id. at 57). She testified that until December 16, 2017, she was st ill seeing Brown. ( Id. at 58). During their relationship, Brown would help out with Fuqua’s son, and Fuqua testified that Brown was good with her s on and “boughtCase No. 1-19-61

-27- him shoes like it was his child.” ( Id. at 58). Fuqua testified that Brown was “kind of” a father figure to her son. ( Id. at 85). She also testified that Brown would “help out,” buy some food and clothing, and help out with her expense s “[if] [she] asked him.” ( Id. at 58-59). She denied ever buying anything for Brown and stat ed that if “[she] asked him, like [she] needed help, he would help. [It w as] the same way [her] family would.” ( Id. at 85). However, Fuqua declined to characterize Brown’s relationship with her and her child as a “little mini family.” ( Id. at 58). {¶47} Fuqua stated that during their relationship, she and Brown like d each other “[f]or the most part” and respected each other. ( Id. at 59). She testified that they would help each other out with their problems, and she ref erred to Brown as her “friend.” ( Id. ). She also acknowledged that her relationship with Brown was a sexual relationship and that she became pregnant with Brown’s c hild around September 2017. ( Id. at 59-60). {¶48} Fuqua stated that she remembered talking to Detective Steven Stechschulte (“Detective Stechschulte”) on December 16, 2017 bu t that she could not remember the entire conversation with him. (Dec. 17-18, 20 18 Tr. at 53). Fuqua

admitted that she told Detective Stechschulte that Brown hit he r when she tried to take her phone back from him, but she testified that Brown did not do that and she only said that because she was mad at Brown. ( Id. at 71). She also stated that she did not remember telling Patrolman Fried that Brown started hit ting her after sheCase No. 1-19-61

-28- tried to get her phone or that she said in her written statemen t that Brown got mad about her phone and started hitting her. ( Id. at 72). She eventually admitted that she said and wrote those things but insisted that “none of that is true * * * [and] [t]hat was [her] speaking out of anger.” ( Id. at 73). She also acknowledged that she said in her statement that Brown slammed her and hit her, but a gain denied that Brown actually committed those acts. ( Id. at 73-74). She testified that she could not remember telling medical personnel at St. Rita’s that Brown hit her or slammed her. ( Id. at 74). {¶49} Fuqua stated that everything she told Patrolman Fried and Detec tive Stechschulte about being struck or slammed to the ground by Bro wn was false and that she said those things out of anger at Brown. ( Id. at 74-75). She testified that she “came up there multiple times trying to change it like a mo nth after and nobody would change nothing that I said. I said everything out of ang er. Nobody would change nothing that I said.” ( Id. at 75). She explained that she was angry and trying to make Brown look bad. ( Id. at 78). When talking about Defendant’s Exhibit A, she testified that the letter was meant to explain that Brown n ever threw her to the ground, punched her in the face, or punched her in the back. ( Id. at 76). When asked to explain how her nose was bloodied, she stated that it happened when Brown “pushed” her face to get her off of him while she was “going cr azy on him.” ( Id. at 76-77). Fuqua stated that the cause of the nosebleed was not a strike with an openCase No. 1-19-61

-29- hand. ( Id. at 76). Finally, she stated that “[m]ost of the stuff [she] s aid was lies,” including statements she made to medical personnel, and that Br own never hit her. ( Id. at 82). {¶50} When examined by Brown’s trial counsel, Fuqua stated that she w as “furious” with Brown for breaking her phone and angry that her car had been damaged during her pursuit of Brown. ( Id. at 85). She reiterated that she was just making things up when she spoke to police officers and medical personnel. ( Id. at 86). She also testified that she received the bloody nose when Brown pushed against her face with an open palm to get her off of him. ( Id. ). She reiterated that Brown never beat her or threw her to the ground, and she pointed to t he fact that she did not have any bruises. ( Id. at 96-97). Fuqua stated that the only thing that happened was the bloody nose, and she said she often experiences bloody noses. ( Id. at 97). {¶51} She testified that she was not living with Brown on December 16 , 2017. (Dec. 17-18, 2018 Tr. at 88-89). Fuqua stated that alth ough she and Brown would occasionally spend the night at each other’s houses durin g their relationship, they never lived together. ( Id. at 89-90). She testified that she and Brown did “[n]ot really” share financial responsibilities. ( Id. at 95). She agreed with Brown’s trial counsel’s assessment that she would occasionally ask Brown to l end her some money when she “found [herself] in a bind.” ( Id. ). She stated that Brown would usually give her money if she asked but that they were not spli tting their bills. ( Id. ).Case No. 1-19-61

-30- According to Fuqua, there was no regular payment from Brown to her to cover expenses. ( Id. ). {¶52} Fuqua testified that she went “almost every day” to the police station to try to change her report of what happened to her on December 16, 2017 but that she was largely unsuccessful. ( Id. at 92-93). She also referenced Defendant’s Exhibit B, a letter addressed to a judge of the Allen County Co urt of Common Pleas, in which she wrote that “some of the things [she] said to the p olice was false and exaggerated and [she] tried to notify the police numerous times before the case got any further.” ( Id. at 94). Further, Fuqua writes in Defendant’s Exhibit B that s he

“said those things ou t of anger” a nd that Bro wn “is pay ing for something he didn’t do.” (Defendant’s Ex. B). {¶53} Following Fuqua’s testimony, Patrolman Chad Kunkleman (“Patrolman Kunkleman”) of the Lima Police Department testified that on the morning of December 16, 2017 he responded to Patrolman Fried’s call for assistance with the investigation into Fuqua’s traffic accident. (Dec. 17 -18, 2018 Tr. at 106- 107). He stated that when he arrived at the scene, Patrolman F ried asked him to drive to the Brower Road apartments to take pictures. ( Id. at 107). Patrolman Kunkleman testified that when he arrived at Fuqua’s apartment, he opened the door and observed blood on the floor. ( Id. at 108). According to Patrolman Kunkleman, there was blood right inside the entry door, “blood all through the kitchen,” “bloodCase No. 1-19-61

-31- * * * going all the way down the hallway and into the bathroom, ” and “[b]lood on the floor inside the bathroom.” ( Id. at 109-111). He identified State’s Exhibits 7 through 14 as photographs that accurately depicted the apartmen t as he found it on December 16, 2017. ( Id. at 111); (State’s Exs. 7, 8, 9, 10, 11, 12, 13, 14). {¶54} On cross-examination, Patrolman Kunkleman testified that the bl ood he observed inside the apartment “could be” consistent with a b loody nose and that he did not observe any violence between Fuqua and Brown. (Dec. 17-18, 2018 Tr. at 112). He also stated that he never spoke to Fuqua or Brown. ( Id. ). {¶55} Norris testified next. On cross-examination, Norris was questi oned about State’s Exhibit 15. Norris acknowledged that one stateme nt in Fuqua’s medical record, in which she stated that her stomach was starti ng to hurt, contradicted her later denial of any abdominal or pelvic pain. ( Id. at 129). However,

Norris stated that such contradictions are “not uncommon at all with patients” and that patients will “tell a nurse one thing and tell a physician another.” ( Id. ). On redirect examination, Norris stated that it was possible that F uqua’s abdominal pain had subsided by the time she spoke to the physician. ( Id. at 130). {¶56} The State’s final witness was Detective Stechschulte. Detectiv e Stechschulte testified that he spoke with Fuqua at St. Rita’s, where he recorded their conversation. ( Id. at 134). He testified that he observed Fuqua’s trial testimon y and that Fuqua’s trial testimony was in contradiction “on multiple points” to theCase No. 1-19-61

-32- statements she made to him at St. Rita’s. ( Id. ). At that point, a video recording of Fuqua’s interview with Detective Stechschulte was played for th e jury, without objection, for the purposes of impeaching Fuqua’s trial testimo ny. ( Id. at 135). The video contradicts much of Fuqua’s in-court testimony. After th e video was played, the trial court instructed the jury to consider the video for i mpeachment purposes only. ( Id. at 137). {¶57} Detective Stechschulte testified that during the course of his investigation, he “receive[d] information that indicated that s he stayed there from somewhere around July of 2016 all the way up until October of 2 017 that she had been living down there. [He] also went through [their] in-hous e system to try to locate reports that would corroborate that claim that she had b een staying down there at that time.” (Dec. 17-18, 2018 Tr. at 138). From context, i t appears that Detective Stechschulte was testifying that records indicated that Fuqua h ad been residing at Brown’s residence. ( See id. ). He stated that he was able to locate a couple of complaints that listed Fuqua’s address as 633 South Scott Stree t. ( Id. ). He testified that these reports were made at various times of the day. ( Id. at 138-139). {¶58} On cross-examination, Detective Stechschulte explained that his examination of police records indicated that Fuqua had lived at the Scott Street address for a year and a couple months. ( Id. at 149-150). He stated that Fuqua had given her address as 633 South Scott Street on at least two occ asions and thatCase No. 1-19-61

-33- although the police did not thoroughly verify whether she was a ctually living there, some evidence was consistent with her living at that address. ( Id. at 150). Finally, he indicated that one of the calls came into the police station at approximately 1:30 a.m. and that he believed that indicated that she was living th ere. ( Id. ). {¶59} After the State rested its case, Brown offered the testimony of two witnesses. Brown’s first witness, Dianiqua Polojac (“Polojac”) , who is Fuqua’s first cousin, testified that she has a close relationship with Fuqua and that they see each other on a regular basis. ( Id. at 164). She testified that she was aware of where Fuqua had been living in the previous years, and she stated tha t Fuqua had lived in the Brower Road apartments, on Wayne Street, and with her mothe r on Second Street. ( Id. ). She stated that Fuqua lived with her mother before moving t o the Brower Road apartments and that she lived with her mother for a pproximately ten years before moving to the Brower Road apartments. ( Id. at 165). Polojac testified that Fuqua never lived on Scott Street. ( Id. at 165). She stated that Fuqua would occasionally stay nights at her house or at Brown’s house but “ she never lived anywhere else but her mom’s and her own place.” ( Id. at 166). Polojac stated that, as far as she knew, Fuqua never lived with Brown. ( Id. ). She testified that she had been to Brown’s house and that it did not look like Fuqua was l iving there because “[s]he didn’t have any clothes or anything there. When she lef t she went home to her mom’s to change clothes and get the things she needed.” ( Id. ).Case No. 1-19-61

-34- {¶60} Brown’s final witness was Danetta Robinson (“Robinson”), Fuqua’ s cousin and Polojac’s sister. (Dec. 17-18, 2018 Tr. at 174). S he testified that over the previous years, Fuqua lived in the Brower Road apartments a nd with her mother on Second Street. ( Id. at 174-175). She stated that, to her knowledge, Fuqua never lived with Brown. ( Id. at 175). She stated that based on her visits to the Brower Road apartments and to Fuqua’s mother’s house, Fuqua definitely lived in both of those residences. ( Id. at 175-176). Robinson testified that she had been to Brown’s house, and she said that although Fuqua would be at Brown’s hou se, “she wasn’t living there.” ( Id. at 176). She did not see any signs that Fuqua was living at Brown’s house. ( Id. ). {¶61} On cross-examination, Robinson testified that Brown lived on Sc ott Street for many years, including the years immediately precedin g December 16, 2017. ( Id. at 178). She stated that she was often at Brown’s house on Sc ott Street and that Fuqua was also at Brown’s house “[m]ost of the time” t hat she would be visiting. ( Id. at 179). She remarked that it was “[p]robably not” uncommon f or Fuqua to stay the night at Brown’s house. Robinson testified t hat although she had been to Fuqua’s Brower Road apartment on many occasions, she ne ver saw Brown at Fuqua’s apartment. ( Id. ). She could not say whether Brown ever stayed the night at Fuqua’s apartment. ( Id. ).Case No. 1-19-61

-35- {¶62} Brown advances three separate arguments to support his claim th at the foregoing evidence is insufficient to sustain his conviction an d that this evidence weighs against his conviction. First, he argues that his convi ction is not supported by sufficient evidence because the only evidence supporting tha t he assaulted Fuqua is hearsay found in Patrolman Fried’s testimony, Norris’s testi mony, and State’s Exhibit 15, all of which he insists is inadmissible hearsay. ( Appellant’s Brief at 12- 14, 16). Brown claims that, in light of Fuqua’s testimony that he did not assault her on December 16, 2017 and the alleged inadmissibility of Patrolm an Fried’s and Norris’s testimonies and State’s Exhibit 15, the State did not present evidence sufficient to prove every element of the offense of domestic vi olence. ( Id. at 13). However, we have already concluded that most of Fuqua’s stateme nts contained in

Patrolman Fried’s and Norris’s testimonies and in State’s Exhib it 15, specifically those regarding the details of the assault and Fuqua’s identifi cation of Brown as her assailant, constitute admissible hearsay. Therefore, to the ex tent that Brown argues that his conviction is not supported by sufficient evidence bec ause it is based on inadmissible hearsay, we reject that argument. {¶63} Next, Brown argues that the jury clearly lost its way when it determined that Fuqua was a “family or household member” as def ined by R.C. 2919.25(F)(1). (Appellant’s Brief at 15). He notes that both of his witnesses “testified that Ms. Fuqua did not reside with [him], only that [Fuqua] would stayCase No. 1-19-61

-36- there on occasion.” ( Id. ). Brown also observes that Fuqua “herself testified that she did not reside with [him], [that] they did not share household expenses or otherwise, but he would occasionally help her out if she asked him.” ( Id. ). Stated differently, Brown argues that Fuqua was not a “person living as a spouse,” and therefore not a “family or household member,” because the evidence does not dem onstrate that he and Fuqua were cohabiting or had cohabited. {¶64} Although somewhat of a close question, we conclude that the Sta te presented evidence sufficient to prove beyond a reasonable doub t that Fuqua and Brown were or had been cohabiting and that the evidence weighs in favor of this conclusion. First, the evidence clearly establishes consortium . Fuqua testified that her relationship with Brown was sexual in nature and that they shared a child together. Furthermore, Fuqua testified that during their relat ionship, she and Brown liked each other, respected each other, and would help each oth er with their problems. She also referred to Brown as her friend. This evid ence demonstrates that Brown and Fuqua had conjugal relations and that their rela tionship involved mutual respect, friendship, and aid of each other. See Williams , 79 Ohio St.3d at 465. Thus, there is ample evidence of consortium. See id. {¶65} With respect to whether Brown and Fuqua shared familial or fina ncial responsibilities, most, if not all, of the evidence relating to shared responsibilities came from Fuqua’s testimony. Fuqua testified that Brown would usually provideCase No. 1-19-61

-37- her with money and help her out with expenses if she asked him, that he bought food and clothing for her and her son, and that he would help h er out “the same way [her] family would.” (Dec. 17-18, 2018 Tr. at 85). However, F uqua denied that she ever bought anything for Brown, and she testified that she and Brown did “[n]ot really” share financial responsibilities, that they did not spl it their bills, and that Brown did not provide her with regular payments to cover expens es. ( Id. at 95). {¶66} Admittedly, the financial arrangement between Brown and Fuqua w as not typical of cohabiting partners. In many cases where a coup le was found to have been cohabiting, the couple either commingled their assets or b oth partners contributed to paying for things such as housing, food, and uti lities. Yet, this court and others have found shared familial or financial responsibili ties in circumstances where one partner was entirely responsible for supporting the o ther or where financial assistance flowed solely from one partner to the othe r without reciprocation. State v. Edwards , 9th Dist. Summit No. 25137, 2010-Ohio-6496, ¶ 14-15, 19, 26 (concluding that the trial court’s determination that the defendant and victim cohabited was not against the weight of the evidence whe re the victim gave the defendant money and bought things for the defendant’s child ren but the defendant did not assist with paying bills or otherwise provide financial support to the victim); State v. Pash , 3d Dist. Mercer No. 10-09-13, 2010-Ohio-1267, ¶ 11 (concluding that a couple shared familial or financial responsi bilities where theCase No. 1-19-61

-38- victim fully supported the defendant during the three-month per iod that they lived together and paid for all household expenses in addition to the defendant’s personal expenses); State v. Boldin , 11th Dist. Geauga No. 2007-G-2808, 2008-Ohio-6408, ¶ 52 (where the defendant testified that the victim paid for gr oceries and utilities, did all of the household chores, and handled the finances, ther e was sufficient evidence that the couple shared familial or financial responsib ilities). But see State

v. Cobb , 153 Ohio App.3d 541, 2003-Ohio-3821, ¶ 5-6 (1st Dist.) (where the defendant provided the victim with one month’s rent and, on occ asion, gave her money for her telephone bill, groceries, and license plates, th ere was “[a]t most, * * * a sporadic provision of money” insufficient to show a sharing of familial or financial responsibilities). Furthermore, nothing in Williams mandates that the provisions for food, shelter, utilities, clothing, or other exp enses be made frequently or at regular intervals. While a one-time payment or a few ran dom, isolated payments from one partner to the other might not suffice to sho w that the couple shared familial or financial responsibilities, in situations wh ere one partner consistently provides the other partner with money for necessar ies at the other partner’s request, we see no reason why such an arrangement can not qualify as the sharing of familial or financial responsibilities. {¶67} With this in mind, we conclude both that there was sufficient e vidence presented that Brown and Fuqua shared familial or financial res ponsibilities and thatCase No. 1-19-61

-39- the evidence weighs in favor of this conclusion. Although Fuqu a’s testimony establishes that she and Brown did not commingle assets or shar e expenses, that she did not buy anything for Brown, and that Brown did not give her money in periodic installments, Fuqua’s testimony does demonstrate that whenever she asked Brown for assistance, Brown would typically oblige. According to Fuq ua, the money she received from Brown would then be directed toward paying for he r basic needs and her son’s basic needs. Apart from the financial assistance Bro wn provided to Fuqua, the record also reflects that Brown would “help out” with Fuqua ’s son and that Brown was something of a father figure to the boy. Therefore, while this case approaches the limit of the evidence that will suffice to show that a couple shared familial or financial responsibilities, we conclude that the ev idence presented was nonetheless adequate to prove beyond a reasonable doubt that Br own and Fuqua shared familial or financial responsibilities. Moreover, as Fu qua’s account of Brown’s contributions was not contradicted by other evidence, w e also conclude that the evidence weighs in favor of a finding that Brown and F uqua shared familial or financial responsibilities. {¶68} To summarize, sufficient evidence was presented to prove beyond a reasonable doubt that Brown and Fuqua shared familial or financ ial responsibilities and had consortium. Furthermore, the evidence weighs in favor of finding that Brown and Fuqua shared familial or financial responsibilities a nd had consortium.Case No. 1-19-61

-40- Accordingly, the evidence establishes that Brown and Fuqua were cohabiting or had been cohabiting within the relevant statutory time period. Alt hough the bulk of the evidence supports that Brown and Fuqua maintained separate resi dences, the Supreme Court of Ohio has interpreted R.C. 2919.25 “broadly to include those who did not live with the offender but who also deserved protection under the statute based on their relationship with the offender.” State v. McGlothan , 138 Ohio St.3d 146, 2014-Ohio-85, ¶ 14, citing Williams , 79 Ohio St.3d at 464. Given the evidence of Brown and Fuqua’s cohabitation, Fuqua is a person deserving of R.C. 2919.25’s protections. Therefore, we conclude that there is sufficient e vidence to support a finding that Fuqua is Brown’s “family or household member” and that the jury did not clearly lose its way by reaching such a finding. {¶69} Finally, we consider Brown’s third argument for overturning his conviction, in which he argues that the jury clearly lost its w ay when it disregarded Fuqua’s trial testimony in favor of Fuqua’s out-of-court statem ents. Brown argues that Fuqua’s in-court repudiation of her earlier statements in which she claimed that he attacked her and her recantation letters outweigh any other evidence suggesting that he assaulted her. ( See Appellant’s Reply Brief at 4-5). Moreover, Brown claims that the State improperly impeached Fuqua’s testimony wi th the video recording of her interview with Detective Stechschulte. ( Id. at 6). Brown maintains that “[i]t is apparent that the State believed that an appropri ate way to have otherwiseCase No. 1-19-61

-41- inadmissible evidence admitted * * * was to have the Court call [Fuqua] because the truth was inconsistent with the State’s position.” ( Id. ). He argues that the State’s approach to Fuqua’s testimony was “essentially just an attempt at circumventing Evid.R. 607[,] * * * not proper pursuant to Evid.R. 613,” and r esulted in the

erroneous admission of the recorded interview as substantive ev idence of his guilt. ( Id. at 6, 8-9). {¶70} Brown’s arguments are without merit. First, with regard to the State’s use of the recorded interview, we question whether it was appro priate for the trial court to admit the video recording for purposes of impeaching F uqua’s testimony. In her testimony, Fuqua admitted that she had previously made i nconsistent statements to Detective Stechschulte, and she attempted to expl ain why she made the prior inconsistent statements. Fuqua’s acknowledgement of her prior inconsistent statements casts some doubt on the admissibility o f the recorded interview for impeachment purposes, and at the very least, her recognition of the prior statements likely made the admission of the recorded inte rview unnecessary. See State v. Spaulding , 6th Dist. Sandusky No. S-16-028, 2017-Ohio-7993, ¶ 16 (“If a witness admits making a conflicting statement, there is no ne ed for extrinsic evidence.”), citing State v. Adams , 9th Dist. Lorain No. 15CA010868, 2017-Ohio1178, ¶ 18; State v. Ferguson , 10th Dist. Franklin No. 12AP-1003, 2013-Ohio-4798, ¶ 15 (“If a witness admits having made the contradictory statem ents, however, thenCase No. 1-19-61

-42- extrinsic evidence of the prior inconsistent statement is not a dmissible.”), citing In

re M.E.G. , 10th Dist. Franklin No. 06AP-1256, 2007-Ohio-4308 and State v. Hill , 2d Dist. Montgomery No. 20028, 2004-Ohio-2048, ¶ 40. {¶71} Nevertheless, we do not believe that the admission of the recor ded interview for purposes of impeachment altered the balance of th e evidence against Brown. The record reflects that it was the State, rather than Brown’s trial counsel, that asked the trial court to issue an instruction to the jury concerning the recorded interview. (Dec. 17-18, 2018 Tr. at 136). In response, the tr ial court instructed the jury that the recorded interview was not to be considered “for the truth of what was said during that interview” and that it was offered only for pu rposes of determining whether Fuqua’s trial testimony was credible. ( Id. at 137). Because “[t]he jury is presumed to follow the trial court’s instructions” and there is no indication in the record that the jury disregarded this instruction, we have litt le concern that the jury considered the recorded interview as substantive evidence again st Brown. State v.

Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 103, citing State v. Loza , 71 Ohio St.3d 61, 75 (1994). Furthermore, to the extent that the jury might have improperly considered the recorded interview as substantive evidence, we n ote that much of what Fuqua said in the interview had already been presented to the jury through

other admissible evidence.Case No. 1-19-61

-43- {¶72} Lastly, we consider whether the jury clearly lost its way by re lying on Fuqua’s out-of-court statements to find that Brown committed th e offense of domestic violence instead of acquitting Brown on the basis of F uqua’s trial testimony that Brown did not assault her. After reviewing the record, we cannot conclude that the jury clearly lost its way by discounting Fuqu a’s trial testimony about the events of the morning of December 16, 2017. At trial , Fuqua acknowledged that she told investigators and medical profession als that Brown

assaulted her but she claimed that she had lied to all of these individuals because she was angry with Brown for damaging her cell phone. Furtherm ore, Fuqua testified concerning all of the efforts she undertook to recant her allegations against Brown. Thus, the jury was well aware of Fuqua’s explanations f or her prior statements accusing Brown of domestic violence and her many eff orts to retract her accusations. The jury was also aware that Fuqua was insisting on a different version of the events of December 16, 2017—a version in which Brown nev er hit her or threw her to the ground and in which her nose started bleeding only after she went after Brown for throwing her cell phone and Brown pressed again st her face in an effort to get her off of him. Yet, in finding that Brown knowi ngly caused or attempted to cause Fuqua physical harm, the jury evidently foun d that Fuqua’s incourt account of the events of December 16, 2017 was not believ able. “This court will not substitute its judgment for that of the trier of facts on the issue of witnessCase No. 1-19-61

-44- credibility unless it is patently apparent that the trier of fa ct lost its way in arriving

at its verdict.” State v. Griffith , 2d Dist. Montgomery No. 26451, 2015-Ohio-4112, ¶ 28, citing State v. Bradley , 2d Dist. Champaign No. 97-CA-03, 1997 WL 691510 (Oct. 24, 1997). On this record, specifically in light of Fuqu a’s multiple prior

statements that Brown assaulted her and the fact that these sta tements were consistent with each other, it is not “patently apparent” that the jury lost its way by disregarding Fuqua’s in-court account. {¶73} When Fuqua’s trial testimony is discounted, the evidence weighs decisively in favor of a finding that Brown committed the offen se of domestic violence. Fuqua’s out-of-court statements to Patrolman Fried a nd to medical personnel at St. Rita’s establish that Fuqua was physically ass aulted, that Brown was her assailant, and that Brown knowingly caused her physical harm. In addition, numerous photographs depict blood on Fuqua’s face and spread th roughout her apartment; these photographs provide further support for a find ing that Fuqua sustained physical harm. Moreover, as discussed above, the evi dence weighs in favor of a finding that Fuqua is Brown’s “family or household m ember.” {¶74} Therefore, we conclude that the State presented sufficient evid ence to support Brown’s domestic-violence conviction and that the trial court did not err by denying Brown’s Crim.R. 29 motion. Furthermore, having weighed the evidence and all reasonable inferences, and considering the credibility of the witnesses, weCase No. 1-19-61

-45- cannot conclude that the jury clearly lost its way and created such a manifest miscarriage of justice that Brown’s domestic-violence convictio n must be reversed. {¶75} Brown’s second and third assignments of error are overruled. Assignment of Error No. IV Defendant-appellant was denied the right to effective assistanc e of counsel in violation of the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution. {¶76} In his fourth assignment of error, Brown argues that he was den ied his right to effective assistance of counsel as provided for by the United States Constitution and by the Ohio Constitution. Specifically, Brown argues that his trial counsel was ineffective for failing to object to the admission of “several inadmissible hearsay statements in the testimony of every witne ss presented during the State’s case-in-chief, including Patrolman Fried, Ronda Nor ris, and Detective Stechschulte.” (Appellant’s Brief at 18). {¶77} “In criminal proceedings, a defendant has the right to effectiv e assistance of counsel under both the United States and Ohio Con stitutions.” State

v. Evick , 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A defendant asserting a claim of ineffective assistance of counse l must establish: (1) the counsel’s performance was deficient or unreasonable under t he 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.Case No. 1-19-61

-46- 2052 (1984). In order to show counsel’s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided c ompetent representation and must show that counsel’s actions were not tr ial strategies prompted by reasonable professional judgment. Strickland at 689. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie , 81 Ohio St.3d 673, 675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute

ineffective assistance. State v. Frazier , 61 Ohio St.3d 247, 255 (1991). Rather, the errors complained of must amount to a substantial violation of counsel’s essential

duties to his client. See State v. Bradley , 42 Ohio St.3d 136, 141-142 (1989), citing State v. Lytle , 48 Ohio St.2d 391, 396 (1976). {¶78} Prejudice results when “‘there is a reasonable probability that , but for counsel’s unprofessional errors, the result of the proceeding w ould have been

different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability is a probability sufficient to undermine confidence in the outc ome.’” Id. , quoting

Strickland at 694. {¶79} After reviewing the record, we conclude that Brown has failed t o establish that he received ineffective assistance of counsel. First, with respect to the hearsay statements contained in Patrolman Fried’s testimony, we previously

concluded that such statements are admissible as excited uttera nces under Evid.R.Case No. 1-19-61

-47- 803(2). “‘A defense counsel’s failure to object is not ineffec tive assistance of counsel if the evidence is admissible.’ As the Supreme Court o f Ohio stated, ‘“Counsel is certainly not deficient for failing to raise a mer itless issue.”’” State v.

Carter , 8th Dist. Cuyahoga No. 104874, 2018-Ohio-2238, ¶ 47, quoting State v.

Jackson , 8th Dist. Cuyahoga No. 86105, 2006-Ohio-174, ¶ 87, quoting State v. Taylor , 78 Ohio St.3d 15, 31 (1997). Consequently, Brown’s trial cou nsel’s handling of Patrolman Fried’s testimony about Fuqua’s statement s was neither

deficient nor unreasonable. {¶80} Moreover, even assuming that Brown’s trial counsel performed deficiently by failing to object to the hearsay in Norris’s tes timony, Brown has not demonstrated that he was prejudiced by his trial counsel’s perf ormance. As discussed under Brown’s first assignment of error, the most inc riminating aspect of Norris’s testimony was likely when she read from Fuqua’s medica l records. Given that Fuqua’s medical records are admissible and that Fuqua’s st atements within those records are either admissible under Evid.R. 803(4) or als o covered by other admissible evidence, there is not a reasonable probability that the outcome of

Brown’s trial would have been different had his trial counsel o bjected to this part of Norris’s testimony. In addition, Brown has offered no argument regarding how his trial counsel’s failure to object to the other hearsay in Norri s’s testimony, which were Fuqua’s statements about not going back home to Brown and about going toCase No. 1-19-61

-48- the prosecutor’s office to discuss getting a protection order, prejudiced him. In light of the admissible evidence identifying Brown as the perpetrator of an assault against Fuqua, we do not believe that an objection to, and the exclusio n of, these out-ofcourt statements would have materially affected the outcome of Brown’s trial. {¶81} Finally, although Detective Stechschulte’s testimony was genera lly not concerned with Fuqua’s out-of-court statements, it did cont ain some statements that migh t be described as hearsay . Det ective Stechschulte tes tified that he was on call on December 16, 2017 when he was “alerted * * * that day s hift was out on call with [Fuqua] where she alleged that her soon-to-be child’s fath er had assaulted her.” (Dec. 17-18, 2018 Tr. at 133). Additionally, Detective Stechsc hulte stated that he was in contact with Fuqua while Brown was at large and that she would tell him that Brown “was either in Akron, headed to Akron, he was at his sist er’s, what kind of car he was in.” ( Id. at 141). He also testified that during his interview with Fuq ua, he asked her whether she was struck with a closed fist and she responded that “she didn’t know; all she [knew was] that he hit her several times a nd made her nose bleed.” ( Id. ). {¶82} Brown’s trial counsel’s failure to object to these statements d oes not constitute ineffective assistance of counsel. Concerning Detec tive Stechschulte’s testimony about being alerted that Fuqua had alleged that Brown assaulted her, it is apparent from context that the statement was not offered for th e truth of the matterCase No. 1-19-61

-49- asserted. The statement was elicited during a line of question ing in which the State sought to establish when Detective Stechschulte first became in volved in the case and what investigatory steps he took after receiving the report of alleged domestic violence. ( See id. at 133-134). “It is well-established that, where statements a re offered into evidence to explain an officer’s conduct during th e course of investigating a crime, such statements are generally not hearsa y.” State v. Humphrey , 10th Dist. Franklin No. 07AP-837, 2008-Ohio-6302, ¶ 11, citin g State

v. Thomas , 61 Ohio St.2d 223, 232 (1980). Regardless, even if this stat ement was improperly admitted, the subject matter of this testimony was c overed by other admissible evidence, and thus, there is not a reasonable probab ility that the outcome

of Brown’s trial would have been different if his trial counsel had objected. Likewise, Brown has failed to show that he was prejudiced by hi s trial counsel’s failure to object to the other potential hearsay contained in D etective Stechschulte’s testimony. Some of the information contained in these other ou t-of-court statements was introduced at Brown’s trial through other admissible eviden ce. Furthermore,

to the extent that these out-of-court statements concerned matt ers not addressed by other admissible evidence, the admission of this evidence did n ot likely change the outcome of Brown’s trial given the admissible hearsay supportin g that Brown assaulted Fuqua and the questionable reliability of Fuqua’s tri al testimony in whichCase No. 1-19-61

-50- she denied that Brown attacked her. As a result, Brown has fai led to demonstrate

that he received ineffective assistance of counsel. {¶83} Brown’s fourth assignment of error is overruled. Assignment of Error No. VThe trial court erred in sentencing by not granting defendantappellant credit for time served pursuant to R.C. § 2949.08. {¶84} In his fifth assignment of error, Brown argues that the trial c ourt erred by not granting him jail-time credit. Brown argues that becaus e his jail sentence was imposed as a separate sanction to his community control, ra ther than as a condition of his community control, the trial court should have awarded him jailtime credit. (Appellant’s Brief at 20-21). In its brief, the State indicates that it agrees with Brown that his jail sentence was not imposed as a c ondition of his community control and suggests that this case “be remanded to t he trial court in order for [Brown] to be resentenced in conformity with R.C. 294 9.08(C)(1) and awarded proper jail-time credit.” (Appellee’s Brief at 27, 29- 30). Given that our review of the record coincides with the agreement between the p arties as to the issue of jail-time credit, this case is remanded to the trial court s o that it may calculate the number of days of jail-time credit, if any, to which Brown is e ntitled and award any such days to Brown. {¶85} Brown’s fifth assignment of error is sustained.Case No. 1-19-61

-51- {¶86} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued with respect to his first, seco nd, third, and fourth assignments of error, we affirm the judgment of the trial court as to those matters. However, having found error prejudicial to the appellant herein in the particulars assigned and argued with respect to his fifth assignment of err or, we reverse the judgment of the trial court as to that matter and remand to the trial court for further proceedings consistent with this opinion. Judgment Affirmed in Part, Reversed in Part and Cause Remanded SHAW, P.J. and ZIMMERMAN, J., concur. /jlr