[Cite as State v. Stevens , 2024

- Ohio

- 198.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

ALLEN COUNTY

STATE OF OHIO,

CASE NO. 1

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PLAINTIFF

- APPELLEE,

v.

JOSHUA L. STEVENS, O P I N I O N

DEFENDANT

- APPELLANT.

Appeal from Allen County Common Pleas Court

Trial Court No. CR2022 0163

Judgment Affirmed

Date of Decision: January 22 , 2024

APPEARANCES:

Max Hersch for Appellant

John R. Willamowski, Jr. for AppelleeCase No. 1

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-

HESS , J.

{¶1} Defendant

- appellant, Joshua L. Stevens (“Stevens”), appeals from a

judgment of the Allen County Court of Common Pleas convicting him

, following a

jury trial , of felonious assault

. Stevens presents six assignment s of error asserting

that (1) the trial court erred when it admitted identifying statements in an exhibit as

ex c ited utterances; (2) trial counsel rendered ineffective assistance by failing to

object to an officer’s recitation of a n identifying hearsay statement; (3) trial counsel

rendered ineffective assistance by failing to object to evidence concerning whether

Stevens fled armed with a weapon; (4) multiple errors cumulatively deprived him

of his constitutional right to a fair trial; (5) the tri al court erred when it sentenced

him to an indefinite sentence under the unconstitutional Reagan Tokes Law ; and ( 6 )

trial counsel rendered ineffective assistance by failing to request a waiver of court

costs at sentencing

. For the reasons which follow, we overrule the assignment s of

error and affirm the trial court’s judgment.

Facts and Procedural History

{¶2} In July 2022

, Stevens was indicted on two counts of felonious assault

against Ralph W. Dewitt . Count One alleged a violation of R.C. 2903.11(A)(1) and

(D)(1)(a), and Count Two alleged a violation of R.C. 2903.11 (A)(2) and (D)(1)(a)

.

He pleaded not guilty, and the matter proceeded to a jury trial.Case No. 1

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{¶3} Dewitt testified that on May 2, 2022, he and his brother went to help

Clarence Perkins, who needed “a jump” because his car would not start. Dewitt sat

in his brother’s truck while his brother hooked up jumper cables. A stranger with a

“three point crown” tattoo above his left eyebrow , who Dewitt later learned was

Stevens, reach ed underneath the hood of the truck and hit the throttle. Dewitt’s

brother and Stevens got into an argument , and Stevens threatened to “whoop ”

Dewitt’s brother. Dewitt got between them and told Stevens that “he wasn’t going

to do nothing to him [sic] .” Clarence Perkins broke up the argument

. Stevens walked

away, Dewitt and his brother continued giving the “ jump

, ” and then Dewitt went

home.

{¶4} That night

, Dewitt was walking back and forth on the sidewalk in front

of the home of Elsie Robinson, his next door neighbor and mother of his brother’s

child, while talking on the phone with a potential buyer for a car he was trying to

sell. Cody Joseph , who “used to be” Dewitt’s brother’s best friend, was nearby,

“[u]nderneath the hood of the car ” looking for “ the easiest way to get to the clutch, ”

which needed a new sleeve. Dewitt heard noise on Robinson’s front porch and

turned toward it. H e saw someone moving around on the porch, but it was dark up

there, and he could not tell who the person was. Dewitt testified that Robinson kept

tools on her front porch, and he heard “a whole bunch of rattling,” so he “turned

back around, thinking it’s somebody up there getting tools

, ” and finished his phone

call. Dewitt testified that h e turned around again and “got hit with a hammer.” ACase No. 1

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-

“ [ s ] plit second” later, Dewitt “[s] tarted swinging back on ” the attacker. There was

a struggle, the hammer ended up on the ground

, and the attacker got away from

Dewitt and started running across the street.

{¶5} Dewitt chased the attacker

, who turned around and pulled out

something from his book bag

, which Dewitt thought looked like a knife

. At that

point, Dewitt could see the person was Stevens because Dewitt “got a good look at

him from the garage light.” “ T here was a whole bunch of yelling ,” and “[o]ther

people started coming and gathering around and looking out their windows.” Dewitt

kept telling Stevens “to drop it.” Stevens “went to take off,” and Dewitt “started

hitting him again.” Stevens dropped the object and then ran up an alley to the back

porch of Robinson’s mother’s house

. Stevens ran through the house, but Dewitt

stopped at the back door because people “kept hollering ‘there’s kids in here

[sic] .’ ” Dewitt started walking down the alley back towards his home . Someone

told him that Stevens had exited the front door of Robinson’s mother’s house and

“took off up the street.” Dewitt jumped in to his brother’s truck and “went down

that way.” He saw “the cops hit their spotlight,” so he parked the truck in the

driveway of Robinson’s mother ’s house and walked home. Police were present

when he arrived. Dewitt testified that about five minutes passed between the time

he was hit with the hammer and the police showing up. Dewitt also testified about

his injuries , the medical treatment he received the night of the attack, and ongoing

medical problems he has had since the attack.Case No. 1

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{¶6} Joseph testified that the night of May 2, 2022, he was at Dewitt’s home

,

and they were working on a car which had a problem with the clutch

. Joseph

testified that De w itt got a phone call

, and while he was talking on the phone

, Stevens

came “off the porch and smacked [Dewitt] in the head with a hammer.” Joseph had

seen Stevens “out and about town” before but did not know him. Joseph testified

that once Dewitt got hit, “he wanted to fight

, ” but Joseph did not see any punches

exchanged. Stevens “took off running down the alley.” Joseph was not sure if

Stevens still had the hammer . Dewitt chased Stevens

, Stevens ran “up in a house

down the street,” and Dewitt came home. When asked how much time passed

between Dewitt getting hit and police arriving, Joseph testified that “it wasn’t a

matter of no time [sic] . They must have been in the area ‘ca u se, I mean, ten/fifteen

minutes, if that.”

{¶7} Patrolman Nevan Stolly of the Lima Police Department testified that on

May 2, 2022, around 9:00 p.m., he and his partner, Patrolman Stevenson,

“responded to a fight in the front yard of” 905 East Second Street, i.e., Dewitt’s

residence. Upon arrival, Patrolman Stolly observed “ [a] very chaotic scene. A lot

of yelling and screaming. A lot of people standing around.” Patrolman Stolly

testified that he was “ confronted by a female ,” Robinson, who had “an object in her

hand” and was “kin d of just trying to ex plain to me what happened.” Robinson

“was very distraught,” “very excited,” and “very upset kind of.” She handed him a

hammer with “ a plastic bag at the end of it that she was holding on to

. ” PatrolmanCase No. 1

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Stolly testified that Robinson “ stated a gentleman by the name of Josh had struck a

gentleman that was out front of the residence on the street with a hammer and had

taken off on foot.” The prosecutor asked, “Who had taken off on foot?” and

Patrolman Stolly testified, “Josh Stevens is who she stated.” Patrolman Stolly

testified that Robinson told him the hammer “ was stolen off the front porch

. ” The

prosecutor said, “That would be off of her front porch?” and Patrolman Stolly

testified, “ Yes.” The prosecutor asked, “How did you know it w as taken off of her

front porch?” and Patrolman Stolly testified, “She stated.” D efense counsel then

objected on hearsay grounds

. The trial court overruled the objection, finding the

excited utterance hearsay exception applied. Subsequently, Patrolman Stolly

testified that he also determined a knife was taken from Robinson’s porch that night

and believed Stevens had taken it

. Patrolman Stolly unsuccessfully tried to locate

the knife.

{¶8} Patrolman Stolly testified that he was wearing a body camera that night

.

The state asked to play the footage for the jury, and defense counsel objected and

stat ed :

[ T ] his is going to contain statements from witnesses beyond just the

one we had, the excited utterance we had. It will contain statements

that are testimonial in nature, however are not subject to admissibility

right now because it doesn’t meet one of the exceptions under

Crawford , even though it does meet an 803 exception for hearsay of

declarants not here to testify or to be cross examined. It’s based on,

well, has to do with location of various things, location of a weapon,

and location of actually one weapon that we have and another that weCase No. 1

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don’t have. Basically, without any sort of opportunity to cross

examine it's not fair to have that testimony played for the jury.

In response, the prosecutor asserted that “ Patrolman Stolly did lay the necessary

foundation for the excited utterance” and that the prosecutor believed defense

counsel “agreed the excited utterance was met .” The prosecutor stated, “I think the

issue here would be confrontation clause and Crawford ” and argued that an

“exception to Crawford ” for an on

- going emergency applied. The trial court

overruled the objection . The court found playing the body camera footage would

not violate the Confrontation Clause and that “all of these statements would be

excited utterances by the people.” The trial court noted: “Quite honestly, I was a

little bit surprised when I first viewed the body cam. I expected to see just craziness,

chaotic craziness. It was chaotic. It’s not as crazy chaotic as I’ve probably seen on

some other videos. But, I would sti ll say that the people who were speaking were

all in a state of stress of the event.”

{¶9} Pertinent to this appeal, the footage begins with Patrolman Stolly

walking toward some people and asking

, “What’s going on?” Robinson approaches

him and distinctly says “Josh,” “the guy in the truck

, ” and “got assaulted.” Although

it is difficult to discern, it sounds as if she says, “The boy Josh. The guy in the truck

is the one that got assaulted.” Robinson holds up a hammer and says

, “Here’s the

weapon.” She puts the hammer on the ground at Patrolman Stolly’s direction.

Patrolman Stolly again asks what happened. Robinson tells him that “ myCase No. 1

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perspective that’s the weapon

, ” and “the man stole it off my front porch.” Someone

,

possibly Patrolman Stevenson, asks who got assaulted. Patrolman Stolly says

, “The

guy in the truck that just took off ?” Robinson says, “Yes.” Someone, possibly

Patrolman Stevenson, says, “He doesn’t want our help?” Robinson yells in the

direction of other bystanders

, “Ralph doesn’t want no help, right [sic] ?” Then she

yells, “Jessica! Ralph don’t want no help [sic] ?” Jessica Watkins approaches as

Robinson says that she wants “that man for stealing off my property for one. ”

Watkins was evidently Dewitt’s fiancée at the time of the incident and wife at the

time of trial, though she refer red to Dewitt as her “husband” on the footage.

{¶10} Patrolman Stolly asks what happened to the guy that got assaulted

.

Watkins says, “My old man.” Joseph says

, “ The boy grabbed a hammer out of his

back and busted him in the head with it.” Watkins says, “ Hit him in the head and

he took off

. My husband’s got a big old knot i n his head right here where he hit him

with that hammer.” Patrolman Stolly asks about the person who just took off in the

truck and about why people were screaming. Then Patrolman Stolly says, “W here ’s

the guy that hit him over the head with the hammer ?” Watkins says, “I don’t know.”

Patrolman Stolly asks what he was wearing, and Watkins says, “All black.”

Patrolman Stolly asks if he is “ a white male

, black ma le

. ” Watkins says, “ White

ma le .” Then, a bout 90 seconds into the footage, Robinson says, “His name is u h

...” Watkins says, “Josh.” Robinson then says, “Josh Stevens,” and Watkins

repeats the name. Robinson says, “But he stole off my property, bro.” The womenCase No. 1

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repeat the identification of Stevens as the perpetrator later in the footage in response

to additional questioning

.

{¶11} About six and a half minutes into the footage, Dewitt arrives on the

scene. Dewitt tells Patrolman Stolly that his attacker, who he just learned was

named “ Josh, ” pulled out a knife after Dewitt took the hammer from him and said

that he had a gun too

. Later in the footage

, there is further discussion about the

knife. A few minutes later, Robinson claims a knife was stolen from her porch.

{¶12} Stevens testified that he had one or two prior convictions for burglary

and a prior conviction for breaking and entering. Stevens testified that he got out of

prison on March 3, 2022 , and was homeless around May 2, 2022

. He testified that

o n May 2, 2022 , about 11:30 a.m. , he went to his cousin, Chris Gibson’s, home to

see if he could get some food. Stevens testified that Gibson is Robinson’s “old

man,” and she is “supposed to be Chris’s wife.” Gibson said he could not give

Stevens any food, so Stevens said, “That’s fine

. ” As Stevens “was getting ready to

walk off the porch,” he saw “this dude that was sitting here had a truck hood up and

then Shawn Perkins and them was sitting there and just putting jumper cables on it

[sic] .” Stevens testified : “As soon as they put the jumper cables on it they told the

dude to try it. It just clicked.” Stevens k new they needed to “idle it up and boost

the voltage” because he has “worked at Downtown Mall here in Lima

, ” has worked

at Ford, and is “a state certified mechanic

. ” Stevens testified that he is “just a

generous person,” so he went over to where they were working and “hit the throttleCase No. 1

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body in the truck.” Shawn Perkins , who is Stevens’s cousin, said, “Good looking

out [sic].” Then Dewitt , who Stevens did not know, said, “Hey, that’s somebody

else’s truck. Don’t touch it.” Stevens said, “All right; am I bad [sic] .” Shawn

Perkins said, “Don’t worry about it. It’s cool.” Then Stevens walked off. Stevens

testified that he did not see Dewitt again that day, that he did not hit him with a

hammer, that he had never seen the hammer allegedly used to hit Dewitt before , and

that he was not in the vicinity of the attack when it occurred

. Stevens testified that

he owned a bigger hammer which his brother, who he work ed for as a “full

- time

hand y man/fix it, ” had given him. Stevens also testified that Gibson gave him “[t]he

black handled knife that they was [sic] talking about[.]” Stevens acknowledged that

he has a crown tattoo above his left eye.

{¶13} The jury found Stevens guilty on both counts. The court found that

the counts merged, and the state elected to proceed to sentencing on Count Two.

Prior to the sentencing hearing, Stevens filed an objection to the imposition of an

indefinite sentence under the Reagan Tokes Law, asserting that the law violates the

separation

- of

- powers doctrine, the constitutional right to due process, and the

constitutional right to a jury trial. The court overruled the objection, imposed a n

indefinite sentence of six to nine years under the Reagan Tokes Law

, and ordered

Stevens to pay court costs.Case No. 1

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- Assignments of Error

{¶14} Stevens presents six assignment s of error : 1

Assignment of Error I : The trial court erred when it admitted the

identifying statements in State’s Exhibit 8 as excited utterances

.

Assignment of Error II : Trial counsel rendered ineffective assistance

of counsel by failing to object to Officer Stolly’s recitation of Elsie

Robinson’s identifying hearsay statement.

Assignment of Error III : Trial counsel rendered ineffective assistance

of counsel by failing to object to evidence concerning whether Mr.

Stevens might have fled armed with a weapon

.

Assignment of Error IV: The multiple errors cumulatively deprived

Mr. Stevens of his constitutional right to a fair trial.

Assignment of Error V: The trial court erred when it sentenced Mr.

Stevens to an indefinite sentence under the unconstitutional Reagan

Tokes Act.

Assignment of Error VI: Trial counsel rendered ineffective assistance

by failing to request a waiver of court costs at sentencing.

First Assignment of Error

{¶15} In the first assignment of error , Stevens contends the trial court erred

when it admitted the identifying statements of Robinson and Watkins in State’s

Exhibit 8, i.e., the body camera footage, as excited utterances. Stevens asserts that

“the overriding question is whether the stress of the event continued until the time

of their statements to the degree that their reflective faculties were overridden.” He

claims that “[t]he full context of the surrounding situation shows that their

1 The assignments of error are taken from pages i

- iv of Stevens’s merit brief. The second assignment of error

is worded somewhat differently on page 13 of the brief.Case No. 1

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-

statements were the product of reflection upon being questioned by police.” He

asserts that “[n]early a minute

- and

- a

- half after Patrolman Stolly approached and

began speaking with the women, he asked them to identify and describe the

perpetrator of the ass ault, which prompted them to name” him. Stevens maintains

that this questioning did not merely facilitate the women’s expression of what was

already the natural focus of their thoughts because the footage shows they “were

initially focused on the theft of the hammer and the fact of the assault itself

— not

the identity of the perpetrator.” He asserts that Robinson “was particularly agitated

by the fact that someone came onto her property to steal a tool; she repeated her

displeasure about this multiple time s.” He also asserts that at one point, Robins on

“became distracted” and spoke to other bystanders about whether Dewitt wanted

help

. Stevens maintains that “besides a near

- inaudible reference to ‘Josh ’ or ‘this

boy Josh’ in the first few seconds” of the f ootage, “the declarants said nothing about

the identity of the alleged assailant until Patrolman Stolly asked them directly.”

Thus, he claims that Patrolman Stolly’s “questioning did not merely facilitate the

natural focus of their expression” but rather “redirected their focus, rendering their

responses the product of reflective thought.” Stevens asserts that the identifying

statements were th erefore not excited utterances , and “[t]he trial court abused its

discretion when it held otherwise

. ” He asserts this error was not harmless because

the other evidence against him was not overwhelming.Case No. 1

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- Standard of Review

{¶16} “ Generally, a trial court has broad discretion with respect to the

admission of evidence. ” State v. Delong

, 3d Dist. Marion No. 9

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- 09

, 2022

- Ohio

4233, ¶ 6, citing State v

. Conway

, 109 Ohio St.3d 412, 2006

- Ohio

- 2815, 848 N.E.2d

810, ¶ 62. “ Accordingly, we will not disturb the trial court ’ s evidentiary rulings

absent an abuse of discretion that produces a material prejudice to the aggrieved

party. ” Id. An abuse of discretion is “ an unreasonable, arbitrary, or unconscionable

use of discretion, or * * * a view or action that no conscientious judge could honestly

have taken.” State v. Brady

, 119 Ohio St.3d 375, 2008

- Ohio

- 4493, 894 N.E.2d 671,

¶ 23

.

{¶17} However, “ a defendant’s failure to raise an issue at trial forfeits all but

plain error on review.” State v. Drain , 170 Ohio St.3d 107, 2022

- Ohio

- 3697, 209

N.E.3d 6 2 1, ¶ 51. To establish plain error, the defendant “must show that an error

occurred, that the error was obvious, and that there is ‘a reasonable probability that

the error resulted in prejudice,’ meaning that the error affected the outcome of the

trial.” (Emphasis deleted.) State v. McAlpin , 169 Ohio St.3d 279, 2022

- Ohio

- 1567,

204 N.E.3d 459, ¶ 66, quoting State v. Rogers , 143 Ohio St.3d 385, 2015

- Ohio

2459, 38 N.E.3d 860, ¶ 22. “Notice of plain error * * * is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage

of justice.” State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three

of the syllabus.Case No. 1

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-

{¶18} In his merit brief, Stevens contends abuse

- of

- discretion review applies

to his first assignment of error

. I n its appellee’s brief, the state asserts that plain

error review applies because at the trial level, defense counsel objected to the body

camera footage on Confrontation Clause grounds, not hearsay grounds. In his reply

brief, Stevens concedes that his trial counsel did not object to the body camera

footage on hearsay grounds. However, h e asserts that “ the trial court , on its own,

considered whether the statements were hearsay, and if so, whether an exception

would apply

. ” And he asserts that the court’s reasoning for concluding the excited

utterance exception applied “ is on the record and can be reviewed by this court for

an abuse of discretion .”

{¶19} Stevens cites no legal authority in support of t his position, and it is not

well

- taken. The fact that the trial court conduct ed its own hearsay analysis does not

alter the fact that Stevens did not object at trial to the body camera footage on

hearsay grounds or to the court’s hearsay analysis

. Because Stevens failed to raise

the hearsay issue at trial, he has forfeited all but plain error review. Drain at ¶ 51

.

Stevens failed to develop a plain

- error argument on appeal , and we will not fashion

one for him. State v. Flack , 3d Dist. Union No. 14

- 22

- 24 , 2023

- Ohio

- 1705, ¶ 13.

However, as we explain below, even if Stevens had argued plain error

, his argument

would fail because he has not demonstrated any error occurred.Case No. 1

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- Legal Principles

{¶20} “ ‘ Hearsay ’ is 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 in the statement .” Evid.R. 801(C). Hearsay is not admissible unless an

exception applies. Evid.R. 802. Under Evid.R. 803(2) , an excited utterance, “[a]

statement relating to a startling event or condition made while the declarant w as

under the stress of excitement caused by the event or condition

, ” i s “not excluded

by the hearsay rule, even though the declarant is available as a witness [

. ] ”

{¶21} A four

- part test is applied to determine whether a statement is

admissible as an excited utterance ; the requirements for admissib i l it y are :

(a) that there was some occurrence startling enough to produce a

nervous excitement in the declarant, which was sufficient to still his

[or her] reflective faculties and thereby make his [or her] statements

and declarations the unreflective and sincere expression of his [or her]

actual impressions and beliefs, and thus render his [or her] statement

of declaration spontaneous and unreflective,

(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

[or her] reflective faculties so that such domination continued to

remain sufficient to make [the] statements and declarations the

unreflective and sincere expression of his [or her] actual impressions

and beliefs,

(c) that the statement or declaration related to such startling

occurrence or the circumstances of such starling occurrence, and

(d) that the declarant had an opportunity to observe personally the

matters asserted in [the] statement or declaration.Case No. 1

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-

(Emphasis deleted .) State v. Jones

, 135 Ohio St.3d 10, 2012

- Ohio

- 5677, 984

N.E.2d 948, ¶ 166 , quoting Potter v. Baker , 162 Ohio St. 488, 124 N.E.2d 140

(1955) , paragraph two of the syllabus.

{¶22} “ T here is no per se amount of time after which a statement can no

longer be considered to be an excited utterance.” State v. Taylor , 66 Ohio St.3d

295, 303, 612 N.E.2d 316 (1993). “The central requirements are that the statement

must be made while the declarant is still under the stress of the event and the

statement may not be a result of reflective thought.” (Emphasis sic.) Id. “ Therefore

the passage of time between the statement and the event is relevant but not

dispositive * * * .” Id. “ ‘[E]ach case must be decided on its own circumstances,

since it is patently futile to attempt to formulate an inelastic rule delimiting the time

limits within which an oral utterance must be made in order that it be termed a

spontaneous exclamation.’ ” Id.

, quoting State v. Duncan

, 53 Ohio St.2d 215

, 219

-

220, 373 N.E.2d 1234 (1978)

. In addition

,

admission of a declaration as an excited utterance is not precluded by

questioning which: (1) is neither coercive nor leading, (2) facilitates

the declarant ’ s expression of what is already the natural focus of the

declarant ’ s thoughts, and (3) does not destroy the domination of the

nervous excitement over the declarant ’ s reflective faculties.

Jones at ¶ 170, quoting State v. Wallace

, 37 Ohio St.3d 87, 524 N.E.2d 466 (1988),

paragraph two of the syllabus.Case No. 1

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- Analysis

{¶23} Stevens ’s contention that the identifying statements were the product

of reflective thought and thus not excited utterances is not well

- taken

. The evidence

indicates that 5 to 15 minutes elapsed between the assault and the arrival of the

police and that Robinson and Watkins initially identified Stevens as the perpetrator

about 90 seconds after the police arrived

. The fact that the women made the initial

identification s after Patrolman Stolly inquired about the whereabouts

, clothing, and

race of the perpetrator did not preclude admission of those identification s as excited

utterance s

. Patrolman Stolly’s questions were not coercive or misleading

. His

simple and straightforward questions served to facilitat e the women’s expression of

what was already the natural focus of their thoughts and did not destroy the

domination of their nervous excitement over their reflective faculties

. Before

Patrolman Stolly asked these questions, t he women were not just focused on the fact

that a hammer was stolen and that Dewitt had been assaulted; they were also focused

on the perpetrator of those acts

. Prior to the initial identifications, Robinson

mentioned the name “Josh” and talked about “the man” who had stole n her hammer

,

and Watkins talked about the perpetrator hitting Dewitt in the head with a hammer

and taking off. And o n the footage, both women seem upset and agitated and give

prompt responses to Patrolman Stolly’s questions. Given these circumstances, we

reject the contention that Patrolman Stolly’s questions redirected the focus of the

women and rendered their identifying statements the product of reflective thought.Case No. 1

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-

One could reasonably conclude that when the women made the initial identifying

statements, their nervous excitement was still dominant over the ir reflective

faculties such that their identifying statements were the unreflective and sincere

expression of their actual impressions and beliefs. And b ecause Stevens has not

shown that the trial court erred, let alone committed plain error, when it admitted

the identifying statements as excited utterances

, we overrule the first assignment of

error.

Second Assignment of Error

{¶24} In the second assignment of error, Stevens contends th at trial counsel

rendered ineffective assistance by failing to object to Patrolman Stolly’s recitation

of Robinson ’s identifying hearsay statement

. Stevens asserts that even though trial

counsel objected to the admission of the body camera footage, counsel failed to

object when Patrolman Stolly testified about an identifying statement Robinson

made in the footage. Therefore, he asserts that even if the footage had been

excluded, “ the jury still would have heard Ms. Robinson’s unsworn statement

without the benefit of cross

- examination.” He claims that “[t]here is no reasonable

trial strategy in moving to exclude the out

- of

- court statements from the vid eo, but

not doing so when they were presented through a testifying witness.” Thus, he

asserts that we should find that trial counsel’s failure to object to the testimony fell

below an objective standard of reasonableness. He further asserts that the failure to

object prejudiced him because the central disputed fact was the perpetrator’sCase No. 1

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-

identity, and there is a reasonable probability that Robinson’s statement could have

swayed the jury.

Standard of Review

{¶25} “Upon direct appeal, appellate courts generally review claims of

ineffective assistance of counsel on a de novo basis, simply because the issue

originates at the appellate level; no trial court has ruled on the issue. Appellate

courts review the trial record and are left to judge from the bare record whether the

assistance was effective.” State v. Gondor

, 112 Ohio St.3d 377, 2006

- Ohio

- 6679,

860 N.E.2d 77, ¶ 53. “In order to prevail on an ineffective

- assistance

- of

- counsel

claim, a defendant must prove tha t counsel ’ s performance was deficient and that the

defendant was prejudiced by counsel ’ s deficient performance. ” State v. Davis

, 159

Ohio St.3d 31, 2020

- Ohio

- 309, 146 N.E.3d 560

, ¶ 10

, citing State v. Bradley

, 42

Ohio St.3d 136

, 141

- 142, 538 N.E.2d 373 ( 1989 )

, and Strickland v. Washington

,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

. The defendant “has the

burden of proof because in Ohio, a properly licensed attorney is presumed

competent.” Gondor at ¶ 62. “ In order to show deficient performance, the

defendant must prove that counsel’s performance fell below an objective level of

reasonable representation. To show prejudice, the defendant must show a

reasonable probability that, but for counsel’s errors, the result of the proceeding

would have been different.” Conway

, 109 Ohio St.3d 412, 2006

- Ohio

- 2815, 848

N.E.2d 810, at ¶ 95, citing Strickland at 687, and Bradley at 143. “A reasonableCase No. 1

- 22

- 81

- 20

-

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

Strickland at 694. Failure to satisfy either part of the ineffective

- assistance

- of

counsel test is fatal to the claim. See id. at 697.

Analysis

{¶26} Stevens has not demonstrated that counsel’s performance was

deficient. Stevens seems to assume we will sustain his first assignment and

conclude that a hearsay objection to Patrolman Stolly’s testimony had a reasonable

probability of success for the same reasons Stevens argue s that the trial court erred

in admitting the identifying statement s in the body camera footage. However, in

our analysis of the first assignment of error, we concluded that Stevens failed to

show that the trial court erred when it admitted the identifying statements in the

body camera footage as excited utterances. Consequently, a hearsay objection to

Patrolman Stolly’s testimony based on the same arguments presented in the first

assignment of error would have been futile. “ ‘ [T]he failure to make a futile

objection does not constitute deficient performance for an ineffective assistance of

counsel claim. ’ ” State v. Harrison , 2015

- Ohio

- 1419, 31 N.E.3d 220, ¶ 89 (3d

Dist.), quoting State v. Corder

, 2012

- Ohio

- 1995, 969 N.E.2d 787, ¶ 29 (4th Dist.).

Accordingly, we conclude that Stevens failed in his burden to show that he received

ineffective assistance of counsel and overrule the second assignment of error.Case No. 1

- 22

- 81

- 21

- Third Assignment of Error

{¶27} In the third assignment of error, Stevens contends that trial counsel

rendered ineffective assistance by failing to object to evidence concerning whether

he might have fled armed with a weapon

. Stevens maintains that “[e]vidence that

the perpetrator was armed with a weapon that was not used in the attack does not

satisfy even the low threshold for relevancy.” He asserts that “ whether the attacker

might have been armed with an unrelated weapon after the incident is not probative

of any element of felonious assault ” and is not relevant to the identity of the attacker,

which was a fact in dispute due to his testimony. He claims this evidence was “bare

other

- acts evidence that painted the attacker as a person with a propensity for

violence.” Stevens claims there was “no reasonable strategic basis” for trial counsel

to not object to “ this irrelevant and inflammatory evidence

. ” Stevens also asserts

that the failure to object prejudiced him because “ the prosecution’s case rested on

the testimony of Mr. Dewitt and Mr. Joseph (and the hearsay statements) with no

supporting forensic evidence or a confession

, ” and “the other acts bolstered the

prosecution’s case by casting Mr. Stevens ‘into the mold’ of a violent person.”

Standard of Review

{¶28} We set forth the standard of review for an ineffective

- assistance

- of

counsel claim in our discussion of the second assignment of error.Case No. 1

- 22

- 81

- 22

- Legal Principles

{¶29} Evid.R. 404(B)(1) states: “ E vidence of any other crime, wrong

, or act

is not admissible to prove a person ’ s character in order to show that on a particular

occasion the person acted in accordance with the character.” However, under

Evid.R. 404(B)(2), such evidence “may be admissible for another purpose, such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” The Supreme Court of Ohio has set forth a three

part analysis for determining the admissibility of other

- acts evidence:

(1) the evidence must be relevant, Evid.R. 401, (2) the evidence

cannot be presented to prove a person ’ s character to show conduct in

conformity therewith but must instead be presented for a legitimate

other purpose, Evid.R. 404 ( B ), and (3) the probative value of the

evidence cannot be substantially outweighed by the danger of unfair

prejudice, Evid.R. 403.

State v. Graham , 164 Ohio St.3d 187, 2020

- Ohio

- 6700, 172 N.E.3d 841, ¶ 72, citing

State v. Williams , 134 Ohio St.3d 521, 2012

- Ohio

- 5695, 983 N.E.2d 1278, ¶ 20

,

reconsideration granted on other grounds, 133 Ohio St.3d 1512, 2012

- Ohio

- 6209,

979 N.E.2d 1290.

Analysis

{¶30} Stevens has not shown that trial counsel rendered ineffective

assistance by failing to object to evidence concerning whether Stevens “might have

fled armed with a weapon.” Even if counsel had been deficient, Stevens has not

demonstrated prejudice. Stevens appears to suggest that the state’s proof that heCase No. 1

- 22

- 81

- 23

-

was the attacker was weak, so there is a reasonable probability that the jury

determined he was the attacker because it thought he was a violent person based on

evidence that he fled armed with a knife and gun

. However, t he jury would have

had to find that Stevens was Dewitt’s attacker before it could have found that

Stevens fled from the attack armed with a knife and/or gun

. Thus

, we fail to see

how evidence that Stevens might have fled armed with a weapon impacted the jury’s

verdict. Accordingly, we conclude that Stevens has not shown a reasonable

probability that, but for counsel’s alleged error, the result of the proceeding would

have been different

, and we overrule the third assignment of error.

Fourth Assignment of Error

{¶31} In the fourth assignment of error, Stevens contends that multiple errors

cumulatively deprived him of his constitutional right to a fair trial. “ ‘To find

cumulative error , a court must first find multiple errors committed at trial and

determine that there is a reasonable probability that the outcome below would have

been different but for the combination of the harmless errors.’ ” State v. Grant

,

2023

- Ohio

- 2720, ___ N.E.3d ___, ¶ 102 (3d Dist.) , quoting In re J.M. , 3d Dist.

Putnam No. 12

- 11

- 06, 2012

- Ohio

- 1467, ¶ 36. Because we have not found multiple

errors were committed at trial , the cumulative

- error doctrine does not apply. Thus,

we overrule the fourth assignment of error.Case No. 1

- 22

- 81

- 24

- Fifth Assignment of Error

{¶32} In the fifth assignment of error, Stevens contends that the trial court

erred when it sentenced him to an indefinite sentence under the “unconstitutional”

Reagan Tokes Law

. Stevens asserts that the law violates the separation

- of

- powers

doctrine, the right to due process, and the right to a jury trial. However, after Stevens

filed his appellate briefs

, “ the Supreme Court of Ohio addressed the constitutional

validity of the Reagan Tokes Law and held that it does not intrude upon the

separation

- of

- powers doctrine, does not implicate the offender’s right to a jury trial,

and does not violate the offender ’ s due

- process rights.” State v. Miller

, 3d Dist.

Seneca No. 13

- 23

- 03

, 2023

- Ohio

- 3935, ¶ 41, citing State v. Hacker

,

___ Ohio St.3d

___, 2023

- Ohio

- 2535,

___ N.E.3d

___, ¶ 25, 28, 40. Based upon the Supreme Court

of Ohio’s determination of these issues, we overrule the fifth assignment of error.

Sixth Assignment of Error

{¶33} In the sixth assignment of error, Stevens contends trial counsel

rendered ineffective assistance by failing to request a waiver of court costs at

sentencing. Stevens asserts that it was unreasonable for trial counsel to not request

a waiver because the record sho w s that he “was homeless earlier in the year 2022

, ”

that he was “indigent at the time of his trial

, ” and that even though “he was a state

certified mechanic, he was not using that certification, instead working for his

brother as [a] ‘ handyman/fix

- it. ’ ” Stevens maintains that “ this is not a case where

counsel made a strategic decision to forgo a request for waiver of costs to focusCase No. 1

- 22

- 81

- 25

-

instead on mitigation ” because at sentencing, trial counsel “gave only a very brief

statement concerning the absence of medical records cataloguing ongoing serious

physical harm” to Dewitt “but otherwise made no statement ‘to preserve appellate

rights

. ’ ” And Stevens asserts that if counsel had requested a waiver, there is “ a

reasonable probability that the motion would have been granted. ”

Standard of Review

{¶34} We set forth the standard of review for an ineffective

- assistance

- of

counsel claim in our discussion of the second assignment of error.

Legal Principles

{¶35} “By statute, the imposition of court costs on all convicted defendants

is mandatory.” State v. Taylor

, 161 Ohio St.3d 319, 2020

- Ohio

- 3514, 163 N.E.3d

486, ¶ 6 (“ Taylor ”)

. R.C. 2947.23(A)(1)(a) states: “In all criminal cases, * * * the

judge * * * shall include in the sentence the costs of prosecution * * * and render a

judgment against the defendant for such costs.” However, R.C. 2947.23(C) states

that “[t]he court retains jurisdiction to waive, suspend, or modify the payment of the

costs of prosecution * * * at the time of sentencing or at any time thereafter.”

{¶36} R.C. 2947.23(C) “provides no explicit criteria that a court should use

in deciding whether to waive * * * costs.” Taylor at ¶ 8. “[A] trial court is not

required to consider the defendant ’ s ability to pay in assessing a motion to waive *

* * court costs under R.C. 2947.23(C), though it is permitted to do so.” Id. at ¶ 16.

“ ‘[W]aiver of costs is permitted

— but not required

— if the defendant is indigent.’ ”Case No. 1

- 22

- 81

- 26

-

Id. at ¶ 7, quoting State v. White , 103 Ohio St.3d 580, 2004

- Ohio

- 5989, 817 N.E.2d

393, ¶ 14.

{¶37} With the adoption of R.C. 2947.23(C), “ ‘the timing of a motion to

seek waiver of costs is a matter of trial strategy.’ ” State v. Rister , 4th Dist.

Lawrence No. 21CA17, 2023

- Ohio

- 1284, ¶ 22, quoting State v. Phillips

, 4th Dist.

Scioto No. 20CA3905, 2022

- Ohio

- 478, ¶ 15, fn. 2

. In assessing an ineffective

assistance of counsel claim, “a court must indulge a strong presumption that

counsel ’ s conduct falls within the wide range of reasonable professional assistance;

that is, the defendant must overcome the presumption that, under the circumstances,

the challenged action ‘might be considered sound trial strategy.’ ” Strickland

, 466

U.S. at 689

, 104 S. Ct. 2052, 80 L. Ed. 2d 674, quoting Michel v. Louisiana

, 350

U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). “ ‘[I]t is well

- established that

debatable strategic and tactical decisions may not form the basis of a claim for

ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy

had been available.’ ” State v. Risner

, 3d Dist. Wyandot No. 16

- 20

- 05, 2021

- Ohio

342, ¶ 28, quoting State v. Artis

, 2019

- Ohio

- 2070, 137 N.E.3d 587

, ¶ 39 (3d Dist.)

.

“ [A]s a matter of trial strategy, c ounsel may decline to seek a waiver of costs at

sentencing upon a belief that raising it at a later time would be more advantageous,

or because counsel focuses priority on another issue such as mitigating punishment,

or both.” Rister at ¶ 27

.Case No. 1

- 22

- 81

- 27

-

{¶38} Moreover, i n the context of a claim that trial counsel rendered

ineffective assistance by failing to request a waiver of costs at sentencing, “[a]n

appellate court ’ s reliance on the fact that a defendant may move for a waiver of costs

at a later time under R.C. 2947.23(C) in its prejudice analysis is improper. ” Davis

,

159 Ohio St.3d 31, 2020

- Ohio

- 309, 146 N.E.3d 560, at ¶ 14. “ Whether the

defendant may move for a waiver of court costs at a later time has little or no bearing

on whether the trial court would have granted a motion to waive court costs at the

time of sentencing. ” Id. “ Furthermore, a determination of indigency alone does not

rise to the level of creating a reasonable probability that the trial court would have

waived costs had defense counsel moved the court to do so * * *.” Id. at ¶ 15.

“ [W] hen trial counsel fails to request that the trial court waive court costs on behalf

of a defendant who has previously been found to be indigent, a determination of

prejudice for purposes of an ineffective

- assistance

- of

- counsel analysis depends

upon whether the facts and circumstances presented by the defendant establish that

there is a reasonable probability that the trial court would have granted the request

to waive costs had one been made.” Id. at ¶ 16.

Analysis

{¶39} Stevens has not demonstrated deficient performance because he has

not overcome the presumption that under the circumstances, counsel’s failure to

move for a waiver of court costs at sentencing might be considered sound trial

strategy. R.C. 2929.12(B) provides that if the victim suffered serious physical harmCase No. 1

- 22

- 81

- 28

-

as a result of the offense, the sentencing court shall consider that factor “as

indicating the offender’s conduct is more serious than conduct normally constituting

the offense.” During the senten cing hearing

, in requesting “a lengthy prison

sentence,” the state suggested R.C. 2929.12(B) applied, arguing that “just looking

at some of the sentencing factors, Ralph Dewitt did suffer serious physical harm

.

The jury did find as much on Count One even through [sic] the State elected to

proceed on Count Two. He still has a scar on his head today. He has severe

headaches he still deals with. He had a history of seizures before this event, but

those have now gotten worse since this attack.” In response, defense counsel stated :

“Regarding the on

- going serious physical harm, it’s my understanding no medical

records were introduced at trial and so we would ask the Court to not find that.

Regarding anything else, in order to preserve appellate rights, we would make no

statement. Other than that, we do intend to appeal. Thank you. ” 2 Although defense

counsel’s comments were brief

, they indicat e counsel focused priority on mitigating

punishment

.

{¶40} Even if counsel’s failure to request a waiver of court costs at

sentencing was deficient performance, Stevens failed in his burden to demonstrate

prejudice. The facts and circumstances presented by Stevens do not establish a

reasonable probability that the trial court would have granted a request to waive

2 We note that Dewitt’s emergency room medical records from the night of the attack were admitted at trial,

but no additional medical records documenting on

- going medical problems were admitted.Case No. 1

- 22

- 81

- 29

-

court costs had one been made. Steven s directs our attention to the fact that (1) he

was indigent at the time of trial, (2) he was homeless earlier in 2022, and (3) he was

a state

- certified mechanic but working for his brother as a “ hand y man/fix

- it .” But

again, “ [ a ] determination of indigency alone does not rise to the level of creating a

reasonable probability that the trial court would have waived costs had defense

counsel moved the court to do so [

. ] ” Davis at ¶ 15

. And e ven though Stevens

testified to being homeless earlier in 2022, he also testified that he was employed

.

Stevens suggests that he was underemployed because he was working as a

“ handyman/fix

- it ” instead of as a mechanic, but he does not direct our attention to

any evidence that he was involuntarily under employed or will not be employable

upon his release. See generally State v. Smith , 4th Dist. Pickaway No. 19CA33,

2021

- Ohio

- 2866, ¶ 80 (“ if a court finds that a defendant has the ability to work and

pay court costs in the future, the court may decide to not waive court costs ” ).

{¶41} We observe that in its appellee’s brief, after expressing uncertainty

regarding whether Stevens has shown prejudice, the state asserts that if we are

“inclined to do so,” we “could look outside of [Stevens’s] brief ” and review certain

documents

, like the pre

- sentence investigation report. The state asserts that if we

“were to review all of these” documents, the state “concedes that it is possible” for

us to find that there is a reasonable probability that the trial court would have granted

a request for waiver of court costs had one been made. However, the state does not

articulate what facts and circumstances in the specified documents would lead toCase No. 1

- 22

- 81

- 30

-

such a conclusion, and in any event, “ ‘ “ [i]t is the duty of the appellant

, not this

court, to demonstrate [ the appellant’s ] assigned error through an argument that is

supported by citations to legal authority and facts in the record. ” ’ ” Marion v.

Cendol

, 3d Dist. Marion No. 9

- 12

- 59, 2013

- Ohio

- 3197, ¶ 8, quoting State v. Linzy

,

5th Dist. Richland No. 2012

- CA

- 33, 2013

- Ohio

- 1129, ¶ 33, quoting State v. Taylor

,

9th Dist. Medina No. 2783

- M, 1999 WL 61619, *3 (Feb. 9, 1999)

. See App.R.

16(A)(7) (appellant’s brief “shall include * * * [a]n argument containing the

contentions of the appellant with respect to each assignment of error presented for

review and the reasons in support of the contentions, with citations to the authoritie s,

statutes, and parts of the r ecord on which appellant relies”)

. “ If an argument exists

that can support an assignment of error, it is not this Court ’ s duty to root it out. ”

State v. Welling

, 3d Dist. Van Wert No. 15

- 23

- 05, 2023

- Ohio

- 3214, ¶ 6. Therefore,

we will not search the record for facts and circumstances not presented by Stevens

which might support his ineffective assistance claim

.

{¶42} For the foregoing reasons, we conclude that Stevens has not shown

trial counsel rendered ineffective assistance by failing to request a waiver of court

costs at sentencing and overrule the sixth assignment of error.Case No. 1

- 22

- 81

- 31

- Conclusion

{¶43} Having overruled the assignments of error, we affirm the trial court’s

judgment.

Judgment Affirmed

.

MILLER and ZIMMERMAN, J. J. , concur.

**Judge Michael D. Hess of the Fourth District Court of Appeals, sitting by

Assignment of the Chief Justice of the Supreme Court of Ohio.