[Cite as State v. Spradlin, 2017-Ohio-630.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

STATE OF OHIO, : 

 

 Plaintiff-Appellee, : CASE NO. CA2016-05-026 

 : O P I N I O N 

 - vs - 2/21/2017 

 : 

RYAN SPRADLIN, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

Case No. 2016 CR 0023 

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South 

Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee 

The Farrish Law Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, 

Ohio 45202, for defendant-appellant 

 RINGLAND, J.

{¶ 1} Defendant-appellant, Ryan Spradlin, appeals his conviction in the Clermont 

County Court of Common Pleas for felonious assault. For the reasons detailed below, we 

affirm. 

{¶ 2} At trial, Michelle Jesse testified that she lived in the same apartment building as 

Spradlin, his wife Tia, and their children. In the early morning hours of January 3, 2016, she 
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and her friend Donna Lowery were outside Jesse's apartment, smoking. They heard loud 

music coming from the Spradlins' apartment. Jesse then started to hear "a lot of screaming, 

hollering, yelling, thump, thump, thump, a lot of noises." She heard Tia yell "help, help." 

Lowery also heard a woman's voice calling for help. 

{¶ 3} Jesse called 9-1-1 and told the dispatcher "I need the police here right away * * 

* [h]e's beating the hell out of this lady downstairs." The dispatcher asked her if she could 

see what was happening and she responded, "No, I can hear it. Oh, my God, you've got to 

hurry." 

{¶ 4} Amelia Village Police Officer Saylor responded to the scene about two minutes 

after being dispatched, or about 1:44 a.m. He approached the Spradlins' front door and 

listened. He heard a female voice say "stop, get away from me" several times and then "help 

me." Saylor announced himself and began knocking. He then heard "please help me, he's 

going to kill me." 

{¶ 5} Saylor started kicking the door in an attempt to open it. After a number of 

unsuccessful kicks, Saylor heard Spradlin say "hey, I got kids in here, man." Spradlin then 

opened the door. From his vantage, Saylor could see into the bathroom and observed Tia 

sitting on the bathtub. Her face was black and blue, and bloody. She was crying. 

{¶ 6} Officer Saylor saw blood on Spradlin's hand. He ordered Spradlin to the 

ground, who complied. Saylor handcuffed Spradlin and immediately took him out to a police 

car. 

{¶ 7} Meanwhile, Jesse and Lowery entered the Spradlins' apartment. Jesse went to 

check on the Spradlins' children and Lowery went to see Tia in the bathroom. Lowery 

observed that Tia's mouth was bleeding, she had teeth missing, and her left eye was swollen 

shut. Crying, Tia told Lowery that Spradlin had accused her of cheating and he assaulted her 

so that she "wouldn't be pretty anymore." Lowery said that Tia appeared to be intoxicated. 
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{¶ 8} Officer Saylor returned from the police car and spoke with Tia. Saylor 

described her demeanor as "very upset, crying, shaking. She was struggling to – to put her 

thoughts together * * *." He asked her if she was okay. She responded, "he was going to kill 

me." Saylor noticed that there was water in the bathtub and asked her what it was for. She 

said, "I think he was going to drown me." She said that Spradlin punched her and kicked her 

in the head and face and that he knocked her teeth out. 

{¶ 9} Saylor spoke with Spradlin and asked what happened. Spradlin said that Tia 

fell in the bathroom. He said he cut his hand by punching the front door, which was made of 

steel. 

{¶ 10} Saylor took photographs of the apartment about ten minutes after he arrived 

on scene, which the state entered into evidence. Some photographs depict the living room, 

in which various small items are strewn chaotically about the floor of the living room. There 

are photographs of two of Tia's dislodged teeth, which were dental implants. These were 

located by police on the floor of the living room. Another photograph depicts a fist-sized hole 

punched into a door. Saylor testified that the hole was on the exterior of the bathroom door. 

{¶ 11} Adam Dressler, a paramedic with the Union Township Fire Department, 

treated Tia at the apartment and on an ambulance ride to the hospital. She was "frantic, 

irate," and "very upset." Tia repeatedly told Dressler that Spradlin "knocked my fucking teeth 

out," and that Spradlin punched her repeatedly and choked her. She said that Spradlin 

turned the shower on to cover the sound of her screaming. She said he was "going to make 

her so she wouldn't be pretty" and that she told him it would not matter if he did because she 

had a good personality. Spradlin responded, "I'll just fucking kill you." 

{¶ 12} Doctor Adam Kennah, an emergency medical physician, provided medical 

treatment to the Spradlins at the hospital. Tia told Dr. Kennah that Spradlin choked and 

punched her repeatedly. She said that she felt pain around her eye and was only seeing 
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black and white out of both eyes. Dr. Kennah diagnosed her with a traumatic orbital 

hematoma (bruising at the eye). Dr. Kennah opined that it would take two to three weeks for 

the swelling around the eye to dissipate. The doctor also noted that Tia had fractured dental 

implants, which would require a dentist to assess for treatment. Tia also suffered a closed 

head injury (a concussion with no disruption of the skull). Finally, Dr. Kennah observed 

multiple contusions or bruises, including bruising on her shoulder blade, left arm, and around 

her neck. 

{¶ 13} Dr. Kennah opined that Tia's injuries were consistent with being choked and 

repeatedly punched. Dr. Kennah further opined that Tia's injuries were not consistent with a 

"low level" fall, i.e., a fall from standing height. Dr. Kennah said that he would not expect to 

see such traumatic injuries from a low level fall unless the injured person was elderly. 

{¶ 14} Dr. Kennah said that Spradlin told him that the laceration on his knuckle 

resulted from him punching a wall and then catching it on a piece of metal while drawing his 

hand back. Nonetheless, Dr. Kennah said that he treated Spradlin as if the laceration was 

the result of being cut by teeth. 

{¶ 15} Spradlin testified. He said that on the night of January 2 he and his wife began 

drinking and smoking marijuana after they put their children to sleep. As the night 

progressed, Tia became increasingly intoxicated and angry. She began screaming at him. 

In response, he walked out onto his apartment patio to smoke a cigarette. Then he heard a 

"deadly" and "nonstop" scream coming from inside the apartment 

{¶ 16} Spradlin ran back into the apartment and found Tia in the bathroom, face down 

on the floor. She was still screaming, and he rolled her onto her back. He noted that she 

had a black eye and there was blood on her lips. He saw her four "crowns," or dental 

implants, on the bathroom floor. 

{¶ 17} He observed a wall-mounted towel rack in the bathroom that was now laying 
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on the floor. He said that earlier in the night he had been bathing his children, they were 

splashing, and there was water on the floor. 

{¶ 18} Spradlin said that as he was attempting to calm his screaming wife he began 

to panic. He got up from the bathroom floor and started crying. He went out to the living 

room area and grabbed his hair. He punched the front door of the apartment and cut his 

hand on the metal hinge. Spradlin testified that he was left-handed. 

{¶ 19} He went back into the bathroom. Tia was laying on her stomach again. He 

rolled her over once more. She was still very upset. At that point, he heard someone 

knocking on the door. 

{¶ 20} The knocking became louder. Spradlin looked through the door's peephole 

and saw that it was an Amelia Village police officer. The Spradlins' five-year-old child was 

walking around the apartment by now, apparently awakened by Tia's screams. Spradlin told 

the police officer that "I have children in here" and asked the police officer to wait. He carried 

the child to her bed and then returned to the door and opened it. Officer Saylor ordered him 

to the ground and he complied. 

{¶ 21} On cross-examination, Spradlin said that Officer Saylor was lying about where 

the fist-sized hole in the door was located. Spradlin said that the photograph actually 

depicted a hole in his bedroom door, which had been there for some time. Spradlin also said 

that all of the debris on the floor of living room was not there when he was arrested. He 

could not explain who caused the mess. 

{¶ 22} The case went to the jury, who deliberated for a day. Several hours after 

deliberations began, the jury sent a note to the trial court indicating that they were 

deadlocked, that they had discussed the case in great detail and voted twice but it was 

obvious after their discussions that no one was wavering on their opinion or changing their 

vote. The court read the jury an instruction encouraging them to continue their deliberations 
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in an effort to reach a verdict. 

{¶ 23} Later, the jury sent the court a note indicating that they were still deadlocked. 

The court asked for counsel to convene to discuss this second note. However, before the 

court and counsel could meet, the jury sent a third note indicating that they were making 

progress towards a verdict and wished to continue deliberating. 

{¶ 24} The jury ultimately rendered a guilty verdict. At sentencing, the court imposed 

a prison term of three years. Spradlin presents five assignments of error for review. 

{¶ 25} Assignment of Error No. 1: 

{¶ 26} THE TRIAL COURT ERRED AS A MATTER OF LAW BY ALLOWING THE 

STATE TO INTRODUCE HEARSAY STATEMENTS WHICH VIOLATED APPELLANT'S 

RIGHT TO A FAIR AND IMPARTIAL TRIAL. 

{¶ 27} Spradlin argues the court erred in admitting Tia's various out-of-court 

statements, i.e., yelling for help, identifying him as her attacker, and alleging how she was 

attacked. Spradlin argues that these statements were hearsay and not otherwise admissible. 

The state argues that Tia's out-of-court statements were either not hearsay, or were 

admissible as exceptions to the hearsay rule, i.e., excited utterances or statements for the 

purpose of medical diagnosis or treatment. Spradlin further argues that the state's use of 

Tia's out-of-court statements, and his inability to cross-examine her, violated his rights under 

the Confrontation Clause. 

{¶ 28} Spradlin concedes that he did not object to any of the statements he now 

contends were erroneously admitted. Therefore, on appeal, he has waived any error except 

plain error. "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). Plain error does not exist 

unless, but for the error, the outcome of the trial would have been different. State v. Blacker, 

12th Dist. Warren No. CA2008-07-094, 2009-Ohio-5519, ¶ 39. 
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Directives 

{¶ 29} Jesse, Lowery, and Officer Saylor testified that they heard Tia yelling "help" or 

"help me." Tia's yells for assistance are not hearsay. Evid.R. 801(C) defines "hearsay" 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." A "statement" is defined for 

hearsay purposes, as "(1) an oral or written assertion or (2) nonverbal conduct of a person, if 

it is intended by the person as an assertion." Evid.R. 801(A). 

{¶ 30} "Help" and "help me" are not hearsay because they are directives and are not 

"assertions." See State v. Richardson, 12th Dist. Clermont Nos. CA2014-03-023, CA2014-

06-044 and CA2014-06-045, 2015-Ohio-824, ¶ 47. An "assertion" for hearsay purposes 

simply means to say that something is so, e.g., that an event happened or that a condition 

existed. Id. A directive, like a yell for help, is not an assertion because it is incapable of 

being proved either true or false. Therefore, a directive cannot be offered to prove the truth 

of the matter asserted. Id. Accordingly, the court did not err in admitting this testimony. 

Excited Utterances 

{¶ 31} Spradlin contends that Tia's statements to Lowery and Officer Saylor 

identifying Spradlin as her attacker, the mechanism of his attack, and the purpose behind the 

attack (so she "wouldn't be pretty anymore") were inadmissible hearsay. Spradlin argues 

that these statements were not admissible as excited utterances because they were the 

product of reflection and not impulse. 

{¶ 32} Evid.R. 803(2) provides a hearsay exception for "[a] statement relating to a 

startling event or condition made while the declarant was under the stress of excitement 

caused by the event or condition." The controlling factor in analyzing whether a statement is 

an excited utterance is whether the declaration was made under such circumstances as 

would reasonably show that it resulted from impulse rather than reason and reflection. State 
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v. Knecht, 12th Dist. Warren No. CA2015-04-037, 2015-Ohio-4316, ¶ 27. In Knecht, this 

court concluded that the trial court properly admitted hearsay statements where two police 

officers testified that a domestic violence victim was "crying, very upset, emotional, 

distraught" when they first spoke with her. Id. at ¶ 28. The police also observed injuries on 

the victim's head and face. Id. at ¶ 5. 

{¶ 33} We conclude that the trial court did not err in allowing Lowery and Officer 

Saylor to testify as to Tia's statements inculpating Spradlin. The evidence showed that Jesse 

called 9-1-1 soon after the assault began. Officer Saylor responded within two minutes of 

being dispatched. When he arrived, Tia was still pleading for help. 

{¶ 34} Spradlin opened the apartment door and Officer Saylor could see that Tia was 

injured. Saylor restrained Spradlin without incident and took him to his police car. He 

returned immediately to check on Tia. Meanwhile, Lowery entered the apartment and spoke 

with Tia. She found Tia on the bathroom floor, badly injured and crying. When Office Saylor 

returned and encountered Tia he described her as "very upset, crying, shaking" and 

"struggling to – to put her thoughts together." Officer Spradlin asked Tia if she was "okay." It 

is not clear if she understood the question because she responded, "he was going to kill me." 

{¶ 35} We conclude these facts demonstrate that Tia's statements to Lowery and 

Officer Saylor resulted from impulse and the stress of the situation and not reason and 

reflection. Accordingly, we conclude that the court did not err in admitting Tia's out-of-court 

statements testified to by Lowery and Officer Saylor. 

{¶ 36} We further conclude that Tia's statements to Dressler were also admissible as 

excited utterances. Dressler testified that he arrived on scene eleven minutes after Officer 

Saylor arrived. When he encountered Tia she had moved from the bathroom to her bed, but 

was still "screaming," "frantic, irate" and "very upset." She remained "wound up" on the 

ambulance ride to the hospital as she continued making statements inculpating Spradlin. 
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Statements for Purposes of Medical Diagnosis or Treatment 

{¶ 37} Spradlin argues that the court erred by allowing Dressler and Dr. Kennah to 

testify as to Tia's statements inculpating Spradlin. Spradlin contends that these statements 

were not admissible under the statements made for the purpose of medical diagnosis or 

treatment exception to the hearsay rule. 

{¶ 38} Evid.R. 803(4) provides as follows: "[s]tatements made for purposes of medical 

diagnosis or treatment and describing medical history, or past or present symptoms, pain, or 

sensations, or the inception or general character of the cause or external source thereof 

insofar as reasonably pertinent to diagnosis or treatment." However, statements identifying 

an assailant are not properly admissible under Evid.R. 803(4) absent some evidence that the 

identity of the perpetrator is reasonably pertinent to diagnosis or treatment. State v. Shouse, 

12th Dist. Brown No. CA2013-11-014, 2014-Ohio-4620, ¶ 22; State v. Kingery, 12th Dist. 

Fayette No. CA2009-08-014, 2010-Ohio-1813, ¶ 34. 

{¶ 39} Dressler and Dr. Kennah summarized their procedures for assessing a patient. 

Dressler testified that he would take a medical history from the patient, so as to get a 

"baseline for what their medical problems are, anything else we need to look for * * *." In 

other words, "basically what led up to the event, why we are here." Dr. Kennah performed 

his medical assessment with the goal to determine "the possible extent of the injuries." 

Accordingly, he would question his patient to determine "the mechanism of how they were 

injured so I can decide possibly how badly they were injured, and what needed to be 

examined or studied." 

{¶ 40} The evidence indicated that Dressler and Dr. Kennah provided medical 

diagnosis or treatment to Tia for her physical injuries sustained in the attack. After thoroughly 

reviewing the record, we can find no evidence indicating that the identification of Tia's 

attacker was reasonably pertinent to a medical professional's diagnosis or treatment. 
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Accordingly, those portions of Tia's out-of-court statements made to Dressler and Dr. Kennah 

which identified Spradlin as her attacker were not admissible under Evid.R. 803(4).1

{¶ 41} Nonetheless, the admission of these statements does not rise to the level of 

plain error for several reasons. First, we have already concluded that Tia's statements to 

Dressler were admissible on other grounds, i.e., as excited utterances. Second, Tia's 

statements to Dr. Kennah were largely if not entirely cumulative of testimony we have also 

determined was admissible, i.e., the testimony of Lowery, Officer Saylor, and Dressler. This 

court will not find plain error where erroneously admitted evidence is largely cumulative of 

other, properly admitted evidence, and where the other properly admitted evidence amply 

demonstrated a defendant's guilt. Shouse, 2014-Ohio-4620 at ¶ 23. Spradlin has therefore 

failed to show that the outcome of his trial clearly would have been different but for the error, 

and he cannot prevail on his plain error claim. 

Confrontation Clause 

{¶ 42} Spradlin argues that the admission of Tia's out-of-court statements through the 

testimony of Dressler and Officer Saylor violated his Confrontation Clause rights because he 

did not have the opportunity to cross-examine her at trial. 

{¶ 43} The Confrontation Clause as found in the Sixth Amendment to the United 

States Constitution preserves the right of a criminal defendant "to be confronted with the 

witnesses against him." To that end, the Confrontation Clause bars the admission of 

"testimonial hearsay" unless the declarant is unavailable and the accused had a prior 

opportunity to cross-examine the declarant. Knecht, 2015-Ohio-4316, at ¶ 21. They key 

issue, therefore, is whether the statement was "testimonial." Id. 

{¶ 44} The United States Supreme Court found testimonial statements existed where 

 

1. This is not to say that the identity of Tia's attacker was not relevant to diagnosis or treatment. There simply is 

insufficient evidence in this record to permit us to reach that conclusion. 
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there was no ongoing emergency and the statements resulted from a police interrogation 

whose "'primary purpose [was] to establish or prove past events potentially relevant to later 

criminal prosecution.'" State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, ¶ 17, quoting 

Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266 (2006). However, as the United 

States Supreme Court further explained, "the existence vel non of an ongoing emergency is 

not the touchstone of the testimonial inquiry." Michigan v. Bryant, 562 U.S. 344, 374, 131 

S.Ct. 1143, (2011). (Emphasis sic.) Rather, in making this "primary purpose" determination, 

courts must consider "all of the relevant circumstances." Id. at 369. In other words, "whether 

an ongoing emergency exists is simply one factor – albeit an important factor – that informs 

the ultimate inquiry regarding the 'primary purpose' of an interrogation." Id. at 366. 

{¶ 45} Another factor to be considered in determining the "primary purpose" of an 

interrogation is the formality of the situation. Ohio v. Clark, ___ U.S. ___, 135 S.Ct. 2173, 

2180 (2015). For instance, while a "formal station-house interrogation" is more likely to 

provoke testimonial statements, "less formal questioning is less likely to reflect a primary 

purpose aimed at obtaining testimonial evidence against the accused." Id. The standard 

rules of hearsay, designed to identify some statements as reliable, are also relevant when 

determining whether a statement is testimonial. Id. The same is true regarding "the 

statements and actions of both the declarant and interrogators" for this "provide[s] objective 

evidence of the primary purpose of the interrogation." Bryant at 367. In the end, "the 

question is whether, in light of all the circumstances, viewed objectively, the 'primary purpose' 

of the conversation was to 'creat[e] an out-of-court substitute for trial testimony.'" Clark at 

2180, quoting Bryant at 358. "Where no such primary purpose exists, the admissibility of a 

statement is the concern of state and federal rules of evidence, not the Confrontation 

Clause." Id., quoting Bryant at 359. 

{¶ 46} Spradlin argues that Tia's statements to Officer Saylor and Dressler were 
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testimonial because they were in response to questioning and further, that that there was no 

ongoing emergency because Officer Saylor had already restrained him by the time Tia made 

the statements. After thoroughly reviewing the record, we conclude that Tia's statements to 

Officer Saylor and Dressler were nontestimonial. 

{¶ 47} As the record reflects, Tia's statements to Officer Saylor inculpating Spradlin 

occurred only minutes after Saylor arrived on scene and while there was an ongoing 

emergency. By that time the focus of the emergency had shifted from stopping an assault to 

determining the appropriate medical response for Tia's care. That Spradlin had been 

restrained did not terminate the urgency of making the appropriate medical decision for Tia's 

injuries. 

{¶ 48} Moreover, Officer Saylor did not ask Tia a question one would expect in a 

formal police interrogation. He asked her if she was okay. This question was consistent with 

Officer Saylor's trial testimony that when he first interacted with Tia he was attempting to 

assess her need for emergency medical assistance. In other words, we do not believe that 

Officer Saylor was attempting to question Tia in an effort to create a substitute for her 

testimony at trial. 

{¶ 49} We further find that the statements Tia made to Dressler also do not implicate 

the Confrontation Clause because the primary purpose of Dressler's questioning was to 

obtain an accurate medical history and then to provide appropriate treatment at the 

apartment and while traveling to the hospital. Dressler testified that his job as a paramedic 

was not to investigate the scene or necessarily determine what caused the injury, but to give 

the person treatment as quickly as possible. Accordingly, we find Tia's statements to 

Dressler and Officer Saylor were nontestimonial and thus do not implicate Spradlin's rights 

under the Confrontation Clause. This assignment of error is meritless. 

{¶ 50} Assignment of Error No. 2: 
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{¶ 51} THE TRIAL COURT ERRED AS A MATTER OF LAW BY PERMITTING TIA 

SPRADLIN TO ASSERT A FIFTH AMENDMENT RIGHT NOT TO TESTIFY OUTSIDE THE 

PRESENCE OF THE JURY WHICH VIOLATED APPELLANT'S RIGHT TO A FAIR TRIAL. 

{¶ 52} The state subpoenaed Tia to appear at trial and give testimony. Tia appeared 

with counsel, who informed the court that Tia intended to invoke her Fifth Amendment right to 

remain silent if asked any questions about what happened on January 3, 2016. At the state's 

request, and with no objection from Spradlin, the state questioned Tia outside of the 

presence of the jury. She answered several preliminary questions, i.e., her name, address, 

and relationship to Spradlin. When the state asked what happened between her and 

Spradlin the morning of January 3, she responded that she was "pleading the fifth." 

{¶ 53} The court then announced that there was the possibility that her answers, 

depending on what they were, could incriminate her, and that she had the right to exercise 

her rights under the Fifth Amendment. Spradlin's counsel did not object and furthermore 

indicated they had no other questions of Tia. Accordingly, the court excused Tia from 

testifying. 

{¶ 54} Later in the trial, while discussing jury instructions with counsel, the court made 

some comments reflecting its lack of understanding of Tia's motivation to assert her Fifth 

Amendment rights: 

So, Tia Spradlin has not testified, and she has taken the 5th 

Amendment. And she may be not testifying because she doesn't 

want to testify against her husband. She may be test – may not 

be testifying because she doesn't want to provide evidence that 

would help convict him. She may be testifying – not testifying 

because she lied in the statement she made. She may not be 

testifying because she committed a crime of her own. I mean, 

there are all kinds of possibilities. It would be speculation to 

suggest why – what her testimony would have been if she had 

testified, and why she has chosen not to testify. 

(Emphasis added.) 
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{¶ 55} Spradlin argues that the court committed plain error by failing to conduct a 

colloquy to determine if Tia had a proper basis to invoke her rights under the Fifth 

Amendment. Spradlin concedes that he is limited to a review for plain error because he did 

not object. However, he argues that the outcome of the trial could have been different had 

Tia been required to testify. He contends that his conviction was premised entirely on Tia's 

out-of-court statements. So if he had had the opportunity to cross-examine her at trial, Tia 

may have contradicted her out-of-court statements or corroborated his version of events. 

{¶ 56} In State v. Arnold, 147 Ohio St.3d 138, 2016-Ohio-1595, the Ohio Supreme 

Court addressed the responsibility of the trial court in a situation where a witness refuses to 

testify on the basis of the Fifth Amendment. The court noted that the proponent of the 

privilege bears the burden of demonstrating that he or she is "faced with some authentic, 

objectively reasonable danger of incrimination." Id. at ¶ 44. To this end, the trial court has 

the "critical" responsibility to inquire "into the basis of a witness's assertion of the privilege * * 

* even when the purported basis seems implausible, frivolous, or suspect." Id. at ¶ 47. In 

other words, "[a] trial court must ensure that the proponent of the privilege provides the basis 

for asserting the privilege and evidence to support that claim * * *." Id. at ¶ 46. 

{¶ 57} After reviewing the record, we find that the trial court failed to conduct the 

inquiry mandated by Arnold. While we agree that this was error, we do not find that it rises to 

the level of plain error. 

{¶ 58} This court cannot say that but for the trial court conducting the proper Arnold

colloquy the outcome of the trial would have been different. As the trial court noted, Tia 

could have invoked the privilege for any number of reasons, including reasons which would 

not have been proper (e.g., because she intended to perjure herself). Accordingly, there is 

no evidence from which we could determine whether the trial court would have permitted her 

to exercise her Fifth Amendment right or ordered her to answer the state's questions. 
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{¶ 59} Assuming the court ordered her to testify, it would be yet another leap for us to 

speculate as to the content of her testimony. Spradlin argues that she "could" have testified 

favorably for him. However, she could have done the opposite. As such, Spradlin cannot 

demonstrate that there would have been a different result at trial but for the court's failure to 

conduct the Arnold colloquy. 

{¶ 60} Moreover, we do not agree with Spradlin's argument that his conviction was 

based entirely on Tia's out-of-court statements. As we will discuss below, even if we 

excluded all of Tia's statements inculpating Spradlin, the state produced other evidence, both 

direct and circumstantial, which supported Spradlin's conviction. Accordingly, this court 

concludes that Spradlin has not demonstrated plain error and this assignment of error is 

meritless. 

{¶ 61} Assignment of Error No. 3: 

{¶ 62} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN APPELLANT'S 

CONVICTION FOR FELONIOUS ASSAULT. 

{¶ 63} Spradlin argues that his conviction for felonious assault was against the 

manifest weight of the evidence because the state failed to prove that he was the perpetrator 

of the assault. He argues that he was the only witness at trial who had first-hand knowledge 

of what occurred inside the apartment and his version of events was consistent with the 

evidence. He separately argues that the state failed to prove that Tia suffered "serious 

physical harm." 

{¶ 64} When reviewing the sufficiency of the evidence to support a criminal 

conviction, an appellate court's function is to examine the evidence admitted at trial to 

determine whether such evidence, viewed in a light most favorable to the prosecution, would 

convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. 
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Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 17. 

{¶ 65} In determining whether a judgment is against the manifest weight of the 

evidence, an appellate court must look at the entire record, weigh the evidence and all 

reasonable inferences, consider the credibility of witnesses, and determine whether in 

resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. 

State v. Cooper, 12th Dist. Butler No. CA2010-05-113, 2011-Ohio-1630, ¶ 7. The 

discretionary power to grant a new trial should be exercised only in exceptional cases where 

the evidence weighs heavily against the conviction. State v. Thompkins, 78 Ohio St.3d 380, 

387 (1997). 

{¶ 66} The jury found Spradlin guilty of felonious assault, a violation of R.C. 

2903.11(A)(1), which prohibits causing "serious physical harm" to another. After thoroughly 

reviewing the record, we conclude that the manifest weight of the evidence supported 

Spradlin's conviction. Two disinterested witnesses, Jesse and Lowery, testified that they 

heard screaming and pleas for help coming from the apartment that Spradlin shared with his 

wife and children. Officer Saylor also heard Tia yelling for help. Once Officer Saylor opened 

the door he, Jesse, and Lowery observed Tia suffering from injuries consistent with what 

Jesse told the police dispatcher she thought was occurring, i.e., domestic violence. 

{¶ 67} Shortly after the attack, Tia identified Spradlin as her attacker to three 

witnesses and consistently told them that Spradlin choked and repeatedly punched her. She 

repeated these allegations to Dr. Kennah, who said that she suffered consistent injuries. 

Moreover, Dr. Kennah opined that Tia's injuries were inconsistent with a low-level fall, i.e., the 

only theory that Spradlin advanced to explain the origin of the numerous injuries suffered by 

his wife that morning. Finally, Spradlin's injury on the knuckle of his dominant, left hand was 

consistent with his having "knocked" out his wife's dental implants. 
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{¶ 68} The jury did not believe Spradlin's version of events and we generally defer to 

the factfinder on matters of witness credibility. State v. Andrews, 12th Dist. Butler No. 

CA2009-02-052, 2010-Ohio-108, ¶ 46. Spradlin's testimony was also, at times, difficult to 

believe. For instance, despite the photographic evidence to the contrary, Spradlin denied 

that the living room had any debris strewn about it. He could not explain why or how 

someone would "stage" the photograph. There is nothing in the record that would make us 

second guess the jury's decision in this case. 

{¶ 69} This court also finds that the manifest weight of the evidence supports the 

jury's finding that Spradlin caused Tia "serious physical harm." In pertinent part, the Revised 

Code defines "serious physical harm" as: "[a]ny physical harm that involves some permanent 

incapacity, whether partial or total, or that involves some temporary, substantial incapacity; 

[a]ny physical harm that involves some permanent disfigurement or that involves some 

temporary, serious disfigurement". R.C. 2901.01(A)(5)(c) and (d). 

{¶ 70} Tia received emergency medical treatment for several fractured dental 

implants, a concussion, significant bruising and swelling around her eye, and bruising on 

various parts of her body, including around her neck where she alleged Spradlin choked her. 

With respect to her fractured dental implants, Dr. Kennah testified that she would have to see 

a dentist. Dr. Kennah also testified that it would take several weeks for the swelling around 

Tia's black eye to reduce completely. Tia reported pain around her eye and that she could 

not see color out of either eye. 

{¶ 71} The state introduced numerous photographs into evidence that graphically 

depicted Tia's injuries, which were taken at both the apartment and hospital. The 

photographs depict the significance of the swelling around her eye, her missing dental 

implants, and the numerous bruises covering Tia's body. We conclude that the evidence 

presented at trial demonstrated serious physical harm under both R.C. 2901.01(A)(5)(c) and 
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(d), i.e., physical harm involving temporary, substantial incapacity, and permanent and 

temporary disfigurement. 

{¶ 72} Accordingly, we find that Spradlin's felonious assault conviction is not against 

the manifest weight of the evidence. Our determination that Spradlin's conviction is 

supported by the weight of the evidence is also dispositive of the issue of sufficiency. State 

v. Rodriguez, 12th Dist. Butler No. CA2008-07-162, 2009-Ohio-4460, ¶ 62. This assignment 

of error is meritless. 

{¶ 73} Assignment of Error No. 4: 

{¶ 74} THE TRIAL COURT ERRED BY GIVING A HOWARD CHARGE TO THE 

JURY AFTER ONLY SEVERAL HOURS OF DELIBERATION AND ON MORE THAN ONE 

OCCASION. 

{¶ 75} A Howard2 charge is a jury instruction designed to be given to a jury that 

believes it is deadlocked in order to "challenge [the jury] to try one last time to reach a 

consensus." State v. Robb, 88 Ohio St.3d 59, 81 (2000). The charge is set forth in Ohio 

Jury Instructions, CR Section 429.09. 

{¶ 76} The jury deliberated for one day. After several hours of deliberation, the jury 

sent a note to the court indicating that it was deadlocked.3 The court then provided the jury 

with the Howard charge and sent it back to attempt more deliberations. Later the same day, 

upon the jury's request, the court provided it with a copy of the Howard charge in audio and 

written formats. 

{¶ 77} Spradlin contends that the court erred in giving the Howard charge so early 

into the deliberations and erred again when it gave the charge to the jury a second time. 

 

2. State v. Howard, 42 Ohio St.3d 18 (1989). 

3. The record does not reflect the timing of any event with respect to this assignment of error. However, the 

state did not dispute Spradlin's claim that the jurors deliberated for "several hours" before indicating a deadlock. 
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Spradlin concedes that he did not raise this objection at trial and thus has waived all but plain 

error. We find that the court did not commit any error, plain or otherwise. 

{¶ 78} Spradlin provides no authority or rationale for the argument that a court must 

wait a certain time before providing a Howard charge to a jury who announces it is 

deadlocked. Nor does Spradlin provide any authority for the argument that it is error to 

provide a jury with an audio or written form of the Howard charge. Essentially, Spradlin is 

implying that the Howard charge is coercive and compelled an otherwise deadlocked jury to 

render a verdict against him. We disagree. 

{¶ 79} The Howard charge is intended to encourage jurors to reach a verdict and to 

appreciate opposing viewpoints, whether they be for a finding of guilt or acquittal. The 

charge is carefully drafted to avoid suggesting what verdict would be preferable. Moreover, 

the Supreme Court of Ohio has found that a Howard charge is not coercive and has 

repeatedly approved its use. See State v. Brown, 100 Ohio St.3d 51, 60 (2003). 

Accordingly, we find no error in the trial court's discretionary decision to provide the Howard 

charge at the time it did. 

{¶ 80} We also conclude that the court committed no error, much less plain error, 

when it provided jurors with a written and audio copy of the Howard charge after they 

requested it. Crim.R. 30(A) provides: "[t]he court shall reduce its final instructions to writing 

or make an audio, electronic, or other recording of those instructions, provide at least one 

written copy or recording of those instructions to the jury for use during deliberations, and 

preserve those instructions for the record." Accordingly, the jury was entitled to a written or 

audio copy of the instructions and there is no error here. 

{¶ 81} Spradlin also argues that the court erred by allowing the jury to continue to 

deliberate after sending a second note indicating that it remained deadlocked. The note 

reads as follows: 
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We have absolutely no change to opinions of guilt, not guilty. 

Three more hours of deliberations, we are deadlocked at 

present. 

Later, the jury sent another note indicating it was making progress and wished to continue 

deliberations. Ultimately, the jury rendered a verdict. 

{¶ 82} Again, the record is not clear as to timing of these events. According to the 

state's brief, the court received the second note from the jury and asked counsel to convene 

to discuss it. Before counsel could convene, the jury sent the third note indicating it was 

making progress towards a verdict and wished to continue deliberations. 

{¶ 83} Whether a jury is irreconcilably deadlocked is a "necessarily discretionary 

determination" for a trial court to make based on the specific circumstances of each case. 

Brown, 100 Ohio St.3d at 60, quoting Arizona v. Washington, 434 U.S. 497, 510, 98 S.Ct. 

824 (1978), fn. 28. Spradlin's argument appears to be that the court should have 

immediately found that the jury was deadlocked and declared a mistrial upon receipt of the 

second note. We disagree. This is a matter ordinarily left to the sound discretion of the trial 

court and we perceive no abuse of discretion in asking counsel to convene to discuss the 

note. We also interpret the note as updating the court on the current status of deliberations 

and not a statement that further deliberations would be entirely fruitless. We believe the 

court took the appropriate step in asking counsel to convene to discuss the issue. In the 

interim, the jury began making progress and ultimately rendered a verdict. There is no plain 

error here and this assignment of error is meritless. 

{¶ 84} Assignment of Error No. 5: 

{¶ 85} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN 

VIOLATION OF HIS CONSTITUTIONAL RIGHTS THUS PREJUDICING HIS RIGHT TO A 

FAIR TRIAL. 

{¶ 86} Spradlin argues that his trial counsel was ineffective for failing to object to: (1) 
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Tia's out-of-court statements, (2) Tia asserting her Fifth Amendment right, and (3) the court 

providing the Howard charge more than once. 

{¶ 87} Counsel is strongly presumed to have rendered adequate assistance and 

made all significant decisions in the exercise of reasonable professional judgment. State v. 

Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14. To prevail on an 

ineffective assistance of counsel claim, Spradlin must show his trial counsel's performance 

fell below an objective standard of reasonableness and that he was prejudiced as a result. 

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). 

{¶ 88} In order to demonstrate prejudice, Spradlin must establish that, but for his trial 

counsel's errors, there is a reasonable probability that the result of trial would have been 

different. State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 42. 

A "reasonable probability" is a probability that is "sufficient to undermine confidence in the 

outcome." Strickland at 694. The failure to make an adequate showing on either prong is 

fatal to an ineffective assistance of counsel claim. Kinsworthy at ¶ 42. 

{¶ 89} Spradlin cannot demonstrate ineffective assistance of counsel with respect to 

failing to object to Tia's out-of-court statements that we have already concluded were 

admissible as nonhearsay or excited utterances. Counsel cannot be ineffective for failing to 

object to admissible evidence. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 

218. Even if we presumed that the failure to object to hearsay that was admitted in error 

constituted deficient representation, Spradlin cannot establish that he was prejudiced. As we 

earlier concluded, any erroneously admitted statements were largely if not entirely cumulative 

of other, properly admitted evidence. 

{¶ 90} Spradlin cannot demonstrate ineffective assistance of counsel with respect to 

his argument that counsel failed to object to Tia's assertion of her Fifth Amendment privilege. 

The decision to call or not call a witness is a strategic decision and we typically do not 
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second guess counsel strategy as a reviewing court. State v. Johnson, 12th Dist. Butler No. 

CA2011-09-169, 2013-Ohio-856, ¶ 56. Here, there was an obvious strategic reason not to 

object to the trial court's finding that Tia properly exercised her Fifth Amendment right, which 

is that her testimony could have been adverse to Spradlin. Accordingly, counsel was not 

deficient in this respect. 

{¶ 91} Finally, Spradlin cannot demonstrate ineffective assistance for his counsel's 

failure to object to the Howard charge. We have concluded that the court did not err in the 

manner in which it gave the Howard charge, accordingly, counsel cannot be deficient for 

failing to object. This assignment of error is meritless. 

{¶ 92} Appellant's five assignments of error are overruled. Judgment affirmed. 

 S. POWELL, P.J., and M. POWELL, J., concur.