[Cite as State v. Hirschy, 2023-Ohio-3204.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

ALLEN COUNTY

STATE OF OHIO,

 PLAINTIFF-APPELLEE, CASE NO. 1-22-44

 v.

CRAIG A. HIRSCHY, O P I N I O N

 DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court

Trial Court No. CR2021 0439

Judgment Affirmed

Date of Decision: September 11, 2023 

APPEARANCES:

Christopher R. Bucio for Appellant

John R. Willamowski, Jr. for Appellee
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ZIMMERMAN, J.

{¶1} Defendant-appellant, Craig A. Hirschy (“Hirschy”), appeals his 

conviction for aggravated burglary. For the reasons that follow, we affirm.

{¶2} This case stems from an assault by Hirschy on Thomas Blair (“Blair”)

over Blair’s relationship with Ashley Baxter (“Baxter”), Hirschy’s ex-girlfriend. In 

the evening hours of December 6, 2021, Hirschy entered Blair’s residence in Allen 

County through an unlocked backdoor while Blair was asleep on his sofa. Blair was 

awoken by Hirschy (who was kneeling on his chest) punching him in his face 

causing him physical harm. Thereafter, Hirschy demanded Blair’s cellphone and 

the pin number to open it. Hirschy gained access to the phone and deleted a 

voicemail message that he left Blair on October 21, 2021. After throwing the phone 

to the ground, Hirschy exited through Blair’s backdoor.

{¶3} On January 13, 2022, the Allen County Grand Jury indicted Hirschy for 

aggravated burglary, in violation of R.C. 2911.11(A)(1), (B), a first-degree felony. 

On January 21, 2022, Hirschy appeared for arraignment and entered a not guilty 

plea.

{¶4} Hirschy proceeded to a jury trial on May 2 and 3, 2022, where he was 

found guilty of aggravated burglary. 

{¶5} On June 30, 2022, the trial court sentenced Hirschy to an indefinite 

minimum prison term of four years to a maximum prison term of six years. 
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{¶6} Hirschy filed a timely notice of appeal and raises two assignments of 

error for our review, which we will address separately and out of order.

Second Assignment of Error

The trial court committed plain error in allowing the testimony of 

Deputy Douglas Wuebker, without the State providing the 

defense notice of their intent to use these “other acts” in his Allen 

County trial and the trial court failing [sic] to conduct an analysis 

as to the admissibility of these “other acts”.

{¶7} In his second assignment of error, Hirschy raises two arguments. First, 

he argues that the trial court erred when it permitted the admission of other-acts 

evidence without requiring the State to provide notice of their intent to use otheracts evidence in advance of trial. Secondly, he argues that the trial court failed to 

conduct any analysis as to the admissibility of the other-acts evidence.

Standard of Review

{¶8} Generally, the admission or exclusion of evidence lies within the trial 

court’s discretion, and a reviewing court should not reverse absent an abuse of 

discretion and material prejudice. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio2815, ¶ 62. An abuse of discretion implies that the trial court acted unreasonably, 

arbitrarily, or unconscionably. State v. Adams, 62 Ohio St.2d 151, 157.

{¶9} Significantly, Hirschy did not object to the trial court’s admission of the 

purported other-acts evidence (at trial) on any basis. See Evid.R. 103(A)(1). “[I]f 

the party wishing to exclude evidence fails to contemporaneously object at trial 
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when the evidence is presented, that party waives for appeal all but plain error.” 

State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 53-54, citing State 

v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 59-60, State v. Barrett, 4th Dist. 

Scioto No. 03CA2889, 2004-Ohio-2064, ¶ 20, and State v. Lenoir, 2d Dist. 

Montgomery No. 22239, 2008-Ohio-1984, ¶ 19. See Evid.R. 103(D).

{¶10} “Crim.R. 52(B) governs plain-error review in criminal cases.” Bagley

at ¶ 55, citing State v. Risner, 73 Ohio App.3d 19, 24 (3d Dist.1991). “Plain errors 

or defects affecting substantial rights may be noticed although they were not brought 

to the attention of the court.” Crim.R. 52(B). A finding of plain error is three-fold, 

requiring (1) an error or deviation from law, (2) that the error is plain, or an obvious 

defect in the proceedings, and (3) that the error affected “substantial rights,” altering 

the outcome of the trial. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 16, 

citing State v. Barnes, 94 Ohio St.3d 21, 27 (2002). The burden is on the party 

asserting plain error to demonstrate such error. Id. at ¶ 17, citing State v. Jester, 32 

Ohio St.3d 147, 150 (1987). 

{¶11} We “recognize[] plain error with the utmost caution, under exceptional 

circumstances, and only to prevent a miscarriage of justice.” State v. Smith, 3d Dist. 

Hardin No. 6-1414, 2015-Ohio-2977, ¶ 63, citing State v. Diar, 120 Ohio St.3d 460, 

2008-Ohio-6266, ¶ 139 and State v. Saleh, 10th Dist. Franklin No. 07AP-431, 2009-

Ohio-1542, ¶ 68. “We may reverse [under plain-error review] only when the record 
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is clear that defendant would not have been convicted in the absence of the improper 

conduct.” Id., citing State v. Williams, 79 Ohio St.3d 1, 12 (1997). Accordingly, 

we will review all of Hirschy’s arguments under his second assignment of error for 

plain error. 

Analysis

{¶12} We begin by addressing whether Dep. Wuebker testified regarding

other-acts evidence, and if so, whether the admission of that evidence constitutes a 

deviation of the law. In this case, Dep. Wuebker testified that the Mercer County 

dispatch received two “anonymous” 9-1-1 calls reporting a drunk driver on 

Carthagena Road in Mercer County. Dep. Wuebker testified that he was able to 

identify the “anonymous” caller as Hirschy by cross-referencing Hirschy’s phone 

number with the caller-identification from dispatch.

1

 The record reveals that 

Hirschy was attempting to implicate Baxter as the drunk driver. According to Dep. 

Wuebker, Hirschy admitted he was able to track Baxter’s cellphone to Speedway 

Lanes in New Bremen, Auglaize County by virtue of her sharing her location with

his cellphone. Dep. Wuebker stated that Hirschy told him that he and Baxter were 

broken up, and that he (Hirschy) went to Speedway Lanes because he wanted to 

return Baxter’s key to her.2 Dep. Wuebker testified that Baxter came in contact with 

1 Baxter provided Dep. Wuebker with Hirschy’s cellphone number. 

2 Following a Christmas party hosted by their employer, Hirschy observed Baxter and Blair (coworkers) 

holding hands and briefly share a kiss as they exited the bowling alley. 
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Hirschy at Speedway Lanes nearly hitting her vehicle with his vehicle. According 

to Dep. Wuebker, Hirschy then began tailgating Baxter and trying to run her off the 

roadway as she proceeded to her home in Mercer County, Ohio. However, through 

his investigation, Dep. Wuebker learned that Hirschy’s vehicle had collided with a 

fence post on Carthagena Road during his interactions with Baxter.

{¶13} Dep. Wuebker’s testimony (regarding these events occurring in 

Auglaize and Mercer Counties) was necessary because it provided the trier of fact 

with a complete picture of what happened between Hirschy and Baxter on 

December 6, 2021 and because it formed the immediate background of the crime of

which Hirschy was charged with in Allen County. Further, the testimony of Dep. 

Wuebker aided the trier of fact in their understanding of the crime. See State v. 

Wainscott, 12th Dist. Butler No. CA2015-07-056, 2016-Ohio-1153, ¶ 19, quoting 

State v. Davis, 64 Ohio App.3d 334, 340 (12th Dist.1989), citing State v. Wilkinson, 

64 Ohio St.2d 308, 318 (1980). See also State v. Lester, 3d Dist. Union Nos. 14-

18-21 and 14-18-22, 2020-Ohio-2988, ¶ 43. 

{¶14} In State v. Lester, we concluded that Evid.R. 404(B) only applies to 

“[e]vidence of other crimes, wrongs, or acts” extrinsic to the charged offense and 

not those crimes, wrongs, or acts that are intrinsic to the offense since they are 

outside the scope of Evid.R. 404(B). (Emphasis sic.) Lester at ¶ 43, citing 404(B). 

In this case, as in Lester, the crimes, wrongs, or acts testified to by Dep. Wuebker 
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were intrinsic to the instant offense. See id., citing State v. Hill, 5th Dist. Stark No. 

2018CA00077, 2019-Ohio-3432, ¶ 51-52, citing Jordan v. Dayton Testing Lab., 2d 

Dist. Montgomery No. 19741, 2004-Ohio-2425, ¶ 48 and United States v. Siegel, 

536 F.3d 306, 316 (4th Cir.2008). 

{¶15} Here, Hirschy has failed to establish how this evidence demonstrates 

“evidence of other crimes, wrongs, or acts” bringing it within the scope of Evid.R. 

404(B). See Lester at ¶ 43, citing Hill at ¶ 51-52, citing Jordan at ¶ 48, citing Seigel

at 316. Thus, the record supports that the events in Auglaize and Mercer Counties

are “inextricably intertwined” with Hirschy’s offense, and therefore, are intrinsic to 

the aggravated-burglary charge in Allen County. 

{¶16} Accordingly, Dep. Wuebker’s testimony did not involve extrinsic acts, 

but rather acts intrinsic to the charged offense, and based upon our review of the 

record, we conclude that there is no error or deviation from the law and that plain 

error does not exist under the facts presented. 

{¶17} Hirschy’s second assignment of error is overruled.

First Assignment of Error

Counsel was ineffective for failing to object to evidence for which 

no 404(b) notice was given, and waiving time in a Celina 

Municipal Court case that ultimately had a substantial impact on 

his trial in Allen County Common Pleas Court.

{¶18} In Hirschy’s first assignment of error, he argues that he received 

ineffective assistance of counsel. Specifically, Hirschy argues that his trial counsel 
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failed to object to the admission of other-acts evidence when no notice of intent to 

use other-acts evidence was provided by the State in advance of trial, and that trial 

counsel executed a speedy-trial waiver (in Celina Municipal Court) without 

Hirschy’s consent.

Standard of Review

{¶19} A defendant asserting a claim of ineffective assistance of counsel must 

establish: (1) the counsel’s performance was deficient or unreasonable under the 

circumstances; and (2) the deficient performance prejudiced the defendant. State v. 

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 

687, 104 S.Ct. 2052, 2064 (1984). A properly licensed attorney is presumed 

competent. State v. Hamblin, 37 Ohio St.3d 153, 155-156 (1988). Therefore, in 

order to show trial counsel’s conduct was deficient or unreasonable, the defendant 

must overcome the presumption that counsel provided competent representation and 

must show that counsel’s actions were not trial strategies prompted by reasonable 

professional judgment. Strickland at 687, 104 S.Ct. at 2052. 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. Carter, 72 Ohio St.3d 545, 558 (1995). Rather, the errors 

complained of must amount to a substantial violation of counsel’s essential duties 
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to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989), quoting State 

v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on other grounds, Lytle v. 

Ohio, 438 U.S. 910, 98 S.Ct. 3135 (1978).

{¶20} “Prejudice results when ‘there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different.’” State v. Liles, 3d Dist. Allen No. 1-13-04, 2014-Ohio-259, ¶ 48, quoting 

Bradley at 142, citing Strickland at 691, 104 S.Ct. at 2052. “‘A reasonable 

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

quoting Bradley at 142 and citing Strickland at 694, 104 S.Ct. at 2067-2068.

Analysis

{¶21} As an initial matter, we must address Hirschy’s attachment of Exhibit 

C (his trial attorney’s statement of fees), Exhibit D (Hirschy’s affidavit dated Feb. 

27, 2023), Exhibit E (waiver of trial time limits in Celina Municipal Court, case 

number 21CRB00574), and Exhibit F (a summary and docket print out also from

case number 21CRB00574) as an appendix to his brief as support for his first 

assignment of error. We (as an appellate court) are confined to the record on appeal. 

See App.R. 9. The record on appeal is comprised of the following:

(1) The original papers and exhibits thereto filed in the trial court, 

the transcript of proceedings, if any, including exhibits, and a certified 

copy of the docket and journal entries prepared by the clerk of the trial 

court shall constitute the record on appeal in all cases.
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(2) The trial court shall ensure that all proceedings of record are 

recorded by a reliable method, which may include a 

stenographic/shorthand reporter, audio-recording device, and/or 

video-recording device. The selection of the method in each case is in 

the sound discretion of the trial court[] * * *.

App.R. 9(A)(1)-(2). Significantly, the appendix of a brief is not considered part of 

the record on appeal. See State v. Burgett, 3d Dist. Marion No. 9-10-37, 2010-Ohio5945, ¶ 30; App.R. 9(A). Moreover “[i]t is well established, [ ] that ‘“‘[a] reviewing 

court cannot add matter to the record before it, which was not a part of the trial 

court’s proceedings, and then decide the appeal on the basis of the new matter.’”’” 

State ex rel. Municipal Construction Equipment Operators’ Labor Council v. 

Cleveland, 162 Ohio St.3d 195, 2020-Ohio-3197, ¶ 19, quoting State ex rel. 

Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, ¶ 

20, quoting State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 

730 (1995), quoting State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of 

the syllabus. Because these documents were not included in the original papers and 

exhibits filed in the trial court, we will not consider Exhibits C, D, E, and F that 

were submitted by the appellant in the appendix attached to his merit brief. 

{¶22} Next, we consider the first portion of Hirschy’s argument relating to 

his trial counsel’s claimed failure to object to other-acts evidence. Based upon our 

determination (under his second assignment of error), Dep. Wueberk’s testimony 

involved intrinsic acts related to the instant offense and no notice was needed by the 
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State. The failure to raise a meritless objection to admissible evidence does not 

constitute a deficient or unreasonable performance. State v. Brown, 3d Dist. Allen 

No. 1-19-61, 2020-Ohio-3614, ¶ 79. Hence, Hirschy’s trial counsel’s handling of 

this evidence is neither deficient nor unreasonable. 

{¶23} Finally, we cannot address the last portion of Hirschy’s ineffectiveassistance-of-counsel argument regarding his trial counsel’s execution of a speedytrial waiver without his consent (in Celina Municipal Court) since Hirschy did not 

file a notice of appeal related to that case. See App.R. 4(A)(1). Hence, we are 

without jurisdiction to hear an appeal of his trial counsel’s action in Celina 

Municipal Court pursuant to App.R. 4(A)(1) nor can we address any attendant 

implication that the execution of such a waiver (in Celina Municipal Court) may

have had in Allen County due to our lack of jurisdiction and corresponding record. 

{¶24} Accordingly, Hirschy’s first assignment of error is overruled.

{¶25} Having found no error prejudicial to the appellant herein in the 

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

Judgment Affirmed

MILLER, P.J. and POWELL, JR., concur.

** Judge Stephen W. Powell of the Twelfth District Court of Appeals, sitting 

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

/jlr