State v. Rhoades

[Cite as State v. Rhoades, 2020-Ohio-2688.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 19AP-93

v. : (M.C. No. 2018CRB-13523)

Alonzo Rhoades, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on April 28, 2020

On brief: Zachary M. Klein, City Attorney, Bill R. Hedrick,

and Orly Ahroni, for appellee. Argued: Orly Ahroni.

On brief: Alonzo Rhoades, pro se. Argued: Alonzo

Rhoades.

APPEAL from the Franklin County Municipal Court

DORRIAN, J.

{¶ 1} Defendant-appellant, Alonzo Rhoades, appeals pro se from the judgment of

conviction and sentence entered by the Franklin County Municipal Court pursuant to a jury

verdict finding him guilty of violating a civil protection order. For the following reasons, we

affirm.

I. Facts and Procedural History

{¶ 2} The case giving rise to this appeal involves allegations that Rhoades violated

a civil protection order requiring him to stay away from Jaide Reinhard ("Jaide"). Rhoades

and Jaide were previously in a relationship and have a child together. In August 2017, Jaide

petitioned for a domestic violence civil protection order from the Franklin County Court of

Common Pleas, Division of Domestic Relations, Juvenile Branch. A protection order was

No. 19AP-93 2

issued by consent on September 26, 2017 ("Protection Order"), providing, among other

conditions, that Rhoades could not be within 500 feet of Jaide or any place he knew or

should know she was likely to be. The Protection Order further provided that if Rhoades

accidentally came within 500 feet of Jaide in any public or private place, including

roadways, he was required to depart immediately. The Protection Order was effective for

four years, until September 26, 2021. A copy of the Protection Order was served on

Rhoades on October 10, 2017.

{¶ 3} The case on appeal began when a complaint was filed in the municipal court

alleging that on July 2, 2018 Rhoades recklessly violated the Protection Order, a first-

degree misdemeanor in violation of R.C. 2919.27(A)(1), by being within 500 feet of Jaide.

The case was designated as Municipal Court criminal case No. 2018CRB-13523 ("case No.

13523"). On October 1, 2018, another complaint was filed in the municipal court alleging

that on September 30, 2018, Rhoades again violated the Protection Order, a first-degree

misdemeanor in violation of R.C. 2919.27(A)(1). That case was designated as Municipal

Court criminal case No. 2018CRB-20334 ("case No. 20334"). The state, plaintiff-appellee,

moved to consolidate case No. 13523 with case No. 20334 for trial. A jury trial was

conducted on the consolidated cases in February 2019.

{¶ 4} Jaide testified at trial that she and her mother, Jennifer Reinhard

("Jennifer"), had lived in the same house on Joos Avenue since 2011. On July 2, 2018, Jaide

and Jennifer left their home in separate cars so Jaide could drop off her car for repairs.

After leaving Jaide's car to be serviced, they returned home with Jennifer driving. Upon

approaching their home, Jaide saw Rhoades' car on Joos Avenue at a stop sign where Joos

Avenue intersected a cross street. Jaide testified she recognized Rhoades' car because it

was the same one he drove when they were in a relationship. Rhoades was in the driver's

seat of the car. Jaide testified she made eye contact with Rhoades for a few seconds and

pointed him out to Jennifer. When Rhoades drove away from the intersection, Jennifer

turned the car around and drove after him while Jaide tried to get a photograph of Rhoades'

car. Jaide testified the two cars passed within 10 to 15 feet of each other before Jennifer

turned around to pursue Rhoades. Jaide was unable to take a photograph and they stopped

pursuing Rhoades after he exited the neighborhood. Jaide then called police to report the

incident. A recording of Jaide's call to police was played for the jury.

No. 19AP-93 3

{¶ 5} Jaide described Joos Avenue as a short side street in a small, quiet, residential

neighborhood. She testified it would not be necessary to drive on Joos Avenue to reach any

particular destination. The state presented an aerial photograph of the area around Jaide's

home, demonstrating it was a residential neighborhood with no businesses located on that

block of Joos Avenue. Jaide estimated the stop sign where she spotted Rhoades was about

300 feet from her residence.

{¶ 6} Jennifer also testified at trial, stating she was driving home with Jaide on

July 2, 2018 after dropping off Jaide's car to be serviced, when she saw Rhoades' car

stopped at a stop sign at the end of Joos Avenue. After passing Rhoades, Jennifer pulled

into the first driveway on their street to turn around. She then pursued Rhoades' car until

it exited the neighborhood.

{¶ 7} Columbus Division of Police Officer Matthew Carroll testified he and his

partner, Officer Anthony Nowalk, were dispatched to the Reinhards' residence on July 2,

2018. They spoke with Jaide about the incident and Officer Carroll subsequently prepared

and filed a complaint against Rhoades. Officer Carroll testified he did not speak with

anyone other than Jaide about the incident because he did not find it necessary. Officer

Nowalk testified he reviewed a copy of the Protection Order while Officer Carroll

interviewed Jaide. Officer Nowalk stated he measured the distance between the stop signs

at either end of the Reinhards' block on Joos Avenue using a traffic-detection laser as 432

feet. He testified that was approximately twice the distance between the Reinhards' house

and the stop sign where Jaide saw Rhoades.

{¶ 8} With respect to case No. 20334, Jaide testified she called police on

September 30, 2018 because the neighbors who lived directly across the street told her they

had seen a man and woman banging on the doors and looking in the windows of the

Reinhards' house earlier in the day, while the Reinhards were away. A recording of Jaide's

call to police on September 30, 2018 was played for the jury.

{¶ 9} Mike Franceschelli testified he lives directly across the street from the

Reinhards and was friends with them. He testified that on September 30, 2018, while he

was in the front yard of his home, he saw Rhoades pull up in front of the Reinhards' house

in a car with a woman in the passenger seat. He recognized Rhoades because he had

previously seen him together with Jaide. Rhoades exited the car and pounded on the

No. 19AP-93 4

Reinhards' front door, then went to the back of the house and pounded on the back door.

He testified he told Jennifer what had occurred after the Reinhards returned home later

that day and subsequently spoke to police about what he saw. Nancy Franceschelli similarly

testified that she lives directly across the street from the Reinhards. On September 30,

2018, while in her living room, she saw a car with a man and woman pull up in front of the

Reinhards' house. The man exited the car, went to the front door of the Reinhards' house,

and started beating on the door. The man then walked around the house and went through

the gate into the back yard. She did not recognize the man who was banging on the door.

She talked to Jennifer about the incident and later spoke with a police officer about it.

{¶ 10} Officer Nowalk testified he was working without a partner on September 30,

2018 when he was dispatched to the Reinhards' residence. He spoke with Jaide and then

interviewed the Franceschellis about what they observed. Based on these interviews,

Officer Nowalk prepared and filed a complaint against Rhoades.

{¶ 11} Following the state's presentation, Rhoades' trial counsel moved for acquittal

under Crim.R. 29, arguing the evidence was insufficient to sustain convictions. The trial

court denied the motion for acquittal. Rhoades' trial counsel indicated to the court that

Rhoades intended to testify in his own defense. Before the defense presentation began, the

prosecutor moved to suppress a grocery store receipt Rhoades had provided in discovery,

arguing it was inadmissible hearsay. Rhoades' trial counsel argued the receipt was

admissible as a business record. When the trial court indicated it was inclined to grant the

motion to suppress, Rhoades' trial counsel moved for a continuance to try to secure a

witness from the grocery store to authenticate the receipt. The following day, Rhoades' trial

counsel indicated Rhoades decided not to testify in his own defense, and he wished to

proceed to closing arguments without presenting any additional evidence. The prosecutor

and Rhoades' trial counsel made closing arguments and the case was submitted to the jury.

{¶ 12} The jury was unable to reach a decision in case No. 20334, relating to the

September 30, 2018 incident, and the trial court declared a mistrial in that case. The court

then dismissed the charge in case No. 20334 at the prosecutor's request. In case No. 13523,

the jury found Rhoades guilty of violating the Protection Order. The trial court sentenced

Rhoades to 180 days of incarceration, with 39 days of jail-time credit. The court suspended

the sentence and placed Rhoades on probation for two years.

No. 19AP-93 5

II. Assignments of Error

{¶ 13} Rhoades appeals and assigns the following nine assignments of error for our

review:

[I.] The trial court erred and abused its discretion by not

separating each case as its own separate incident.

[II.] The trial court erred and abused its discretion by not

recognizing the biases of the judge due to history regarding

catch court and history with simuler case.

[III.] The prosecution failed to disclose the full text of the

consent agreement and its rules and limitations.

[IV.] the honorable judge did see that after both key witness

rule 29 was clear and applicable or that the wemon in

testomony where biesed and provided no cretable evidnce to

prove there case

[V.] the responding officers did not meet the standered

operating procieder gather evidence or hear from more then

one party who by her own abmition carried strong biase

[VI.] evidence was held and hidden till the minute of it being

shown in court not allowing the othwer party the opertunity

to see before the jury

[VII.] Defentents counsal advised not to testifie do to evidence

not yet shown and lack of berdon of proof

[VIII.] the judge grandented a last ditch efferot to block the

voice of the defendent by trying to suprese evidence with goes

agents the judges ethics provided on his clerk of court profile

[IX.] the court never established why the defince could have

been in the naighbor hood or that the protected party lived

there

(Sic passim.)

III. Discussion

A. Joinder of offenses for trial

{¶ 14} Rhoades argues in his first assignment of error the trial court abused its

discretion by joining case Nos. 13523 and 20334 for trial. Rhoades argues there was a risk

No. 19AP-93 6

of jury confusion arising from the testimony and evidence, and a risk that if the jury found

him guilty of one offense they would assume he was guilty of the other.

{¶ 15} Under Crim.R. 13, a court may order multiple complaints to be tried together

if the offenses or defendants could have been joined in a single complaint. Crim.R. 8(A)

provides that multiple offenses may be charged in the same complaint if the offenses "are

of the same or similar character, or are based on the same act or transaction, or are based

on two or more acts or transactions connected together or constituting parts of a common

scheme or plan, or are part of a course of criminal conduct." Generally, the law favors the

joinder of multiple offenses into a single trial. State v. Brinkley, 105 Ohio St.3d 231, 2005-

Ohio-1507, ¶ 28.

{¶ 16} If similar offenses are properly joined, a defendant may move to sever the

charges, pursuant to Crim.R. 14, which provides that if a defendant is prejudiced by a

joinder of complaints for trial, the court shall order a separate trial or provide such other

relief as justice requires. To demonstrate a trial court erred by denying a motion to sever, a

defendant "must affirmatively demonstrate (1) that his rights were prejudiced, (2) that at

the time of the motion to sever he provided the trial court with sufficient information so

that it could weigh the considerations favoring joinder against the defendant's right to a fair

trial, and (3) that given the information provided to the court, it abused its discretion in

refusing to separate the charges for trial." State v. Schaim, 65 Ohio St.3d 51, 59 (1992).

{¶ 17} A trial court's decision on joinder is subject to review for abuse of discretion.

State v. Morris, 10th Dist. No. 18AP-208, 2018-Ohio-5252, ¶ 34. In the present case,

Rhoades did not oppose the state's motion for joinder prior to trial and did not move to

sever the complaints for trial under Crim.R. 14. Therefore, he has forfeited all but plain

error. Id. Plain error exists when an error is plain or obvious and affects a substantial right.

State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 13. The error must constitute

an obvious defect in the legal proceedings and there must be a reasonable probability that

the error affected the outcome. State v. Barrie, 10th Dist. No. 15AP-848, 2016-Ohio-5640,

¶ 32. Appellate courts find plain error with the utmost caution, under exceptional

circumstances to prevent a manifest miscarriage of justice. Id.

{¶ 18} A trial court may sever properly joined offenses where the defendant

affirmatively demonstrates prejudice resulting from a joint trial. Morris at ¶ 36. The state

No. 19AP-93 7

can refute a claim of prejudice by demonstrating that: (1) the evidence of one offense could

be introduced under Evid.R. 404(B) at the trial of the other offense, or (2) the evidence of

the offenses joined at trial is simple and direct. The state need only satisfy one of these tests

to negate a claim of prejudice. Id. at ¶ 37. See also State v. Lott, 51 Ohio St.3d 160, 163

(1990) ("[W]hen simple and direct evidence exists, an accused is not prejudiced by joinder

regardless of the nonadmissibility of evidence of these crimes as 'other acts' under Evid.R.

404(B).").

{¶ 19} "Evidence is 'simple and direct' if the jury is capable of segregating the proof

required for each offense." State v. Wilson, 10th Dist. No. 10AP-251, 2011-Ohio-430, ¶ 23.

The offenses in the joined cases were the same, but they were committed on different days

and involved different conduct. The evidence for case No. 13523 was provided by Jaide,

Jennifer, and the responding police officers, based on their testimony about what occurred

on July 2, 2018. The evidence for case No. 20334 was provided by the Franceschellis,

testifying what they observed on September 30, 2018. Although Jaide also testified about

the September 30, 2018 incident, her testimony was based on the Franceschellis' accounts

and mirrored their testimony. Thus, the evidence as to each case was simple and direct.

See State v. McBride, 10th Dist. No. 10AP-585, 2011-Ohio-1490, ¶ 12 ("Here, the evidence

of the offenses is simple and direct and is not confusing or difficult to separate. The offenses

in each indictment were analytically and logically separate: burglaries and thefts which

occurred in different buildings on different days. Although the offenses involved similar

conduct, the offenses were separate and not so complex that the jury would have difficulty

separating the proof required for each offense."); see also State v. Wigle, 9th Dist. No.

25593, 2011-Ohio-6239, ¶ 24 (finding evidence of each charge was simple and direct for

joined offenses of violating a protection order, resisting arrest, and disorderly conduct

where defendant's neighbor testified about events giving rise to charge of violating

protection order and arresting officers testified about events leading to charges of resisting

arrest and disorderly conduct). Moreover, although the jury found Rhoades guilty in case

No. 13523, they were unable to reach a verdict in case No. 20334. This demonstrates the

jury was able to distinguish between the evidence as to each offense. See Wigle at ¶ 24

("[T]he fact that the jury acquitted Wigle of the protection order violation, and convicted

him of the remaining charges demonstrates that the jury was capable of separating the

No. 19AP-93 8

issues."). Under these circumstances, we conclude the trial court did not plainly err by

joining the cases for trial.

{¶ 20} Accordingly, we overrule Rhoades' first assignment of error.

B. Judicial bias

{¶ 21} In his second assignment of error, Rhoades asserts the trial judge was biased

against him. Rhoades claims the trial judge is generally biased in favor of women, citing

his participation in a specialized human trafficking docket and statements favorable to

women allegedly made by the trial judge in speeches, articles, and other trials. Rhoades

further argues the trial judge's bias was demonstrated by the revocation of a personal

recognizance bond before trial.

{¶ 22} If a municipal court judge is alleged to have a bias or prejudice for or against

any party to a proceeding pending before the judge, or be otherwise disqualified to preside

over the proceeding, any party to the proceeding may file an affidavit of disqualification

with the clerk of the Ohio Supreme Court. R.C. 2703.031. "R.C. 2703.031 provides the

exclusive means by which a litigant may claim that a municipal court judge is unduly

interested, biased, or prejudiced." Columbus Checkcashers, Inc. v. Guttermaster, Inc.,

10th Dist. No. 13AP-106, 2013-Ohio-5543, ¶ 33. See also State v. Varouh, 9th Dist. No.

18CA011415, 2020-Ohio-528, ¶ 27 ("[R.C. 2701.031] is the exclusive means by which a

litigant may assert that a municipal court judge is biased or prejudiced."). The clerk of the

municipal court is notified when an affidavit of disqualification of a municipal court judge

is filed and must enter a notice on the docket of the proceeding. R.C. 2701.03(C)(1)(b) and

(c). There is no indication on the docket of either municipal court case that Rhoades filed

an affidavit of disqualification of the municipal court judge with the clerk of the Supreme

Court. Therefore, Rhoades failed to invoke the jurisdiction of the proper court to review his

claim of judicial bias. State v. Hussein, 10th Dist. No. 15AP-1093, 2017-Ohio-5519, ¶ 9. See

also State v. Castile, 10th Dist. No. 13AP-10, 2014-Ohio-1918, ¶ 13 ("Because appellant

failed to file an affidavit of disqualification against the trial judge, he forfeited his complaint

[of judicial bias] on appeal.").

{¶ 23} Accordingly, we overrule Rhoades' second assignment of error.

No. 19AP-93 9

C. Sufficiency and weight of the evidence

{¶ 24} In his third, fourth, fifth, and ninth assignments of error, Rhoades appears to

challenge the sufficiency of the evidence supporting his conviction and to argue that the

conviction was against the manifest weight of the evidence. We will consider these

assignments of error together.

{¶ 25} "Sufficiency of the evidence is a legal standard that tests whether the evidence

introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th Dist. No.

08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 386

(1997). In reviewing a challenge to the sufficiency of the evidence, an appellate court must

determine "whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus. Where the evidence, "if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt," it is sufficient to sustain a conviction. Id.

"The testimony of a single witness, if believed by the finder of fact, is sufficient to support a

criminal conviction." State v. Booker, 10th Dist. No. 15AP-42, 2015-Ohio-5118, ¶ 18.

Because a Crim.R. 29 motion questions the sufficiency of the evidence, we apply the same

standard of review on appeal of a denial of a Crim.R. 29 motion as in a challenge to the

sufficiency of the evidence. State v. Kearns, 10th Dist. No. 15AP-244, 2016-Ohio-5941,

¶ 44.

{¶ 26} Rhoades was charged with violating R.C. 2919.27(A)(1), which prohibits

recklessly granting a protection order or consent agreement issued under R.C. 2919.26 or

3113.31. The latter statute provides for issuance of a domestic violence civil protection order

or consent agreement. "A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that the person's

conduct is likely to cause a certain result or is likely to be of a certain nature." R.C.

2901.22(C).

{¶ 27} Jaide testified she had a civil protection order against Rhodes. A copy of the

Protection Order was introduced into evidence, establishing it was a domestic violence civil

protection order issued by consent of the parties pursuant to R.C. 3113.31. The Protection

Order was effective from September 26, 2017 through September 26, 2021, and prohibited

No. 19AP-93 10

Rhoades from certain conduct with respect to Jaide, including being within 500 feet of

where she was or any place she was likely to be. The order to serve the Protection Order

was entered into evidence, showing a copy of the Protection Order was served on Rhoades

on October 10, 2017. Jaide testified she has lived at the same address on Joos Avenue since

2011. That address was also shown as Jaide's address on the Protection Order. Jaide and

Jennifer both testified that on July 2, 2018, they saw Rhoades in the driver's seat of his car

at a stop sign at the end of their block on Joos Avenue. Jaide testified the stop sign where

she saw Rhoades was located 300 feet or less from her house. Officer Nowalk testified he

measured the distance between the stop signs at either end of the block where Jaide's

residence was located on Joos Avenue as 432 feet. He testified that was roughly twice the

distance from Jaide's residence to the stop sign. Jaide and Jennifer also testified their

vehicle passed Rhoades' car on the road, with Jaide estimating the distance between the

two vehicles when they passed as 10 to 15 feet.

{¶ 28} Viewing the evidence in the light most favorable to the state, a rational trier

of fact could have found beyond a reasonable doubt that Rhodes was guilty of violating R.C.

2919.27(A)(1) by being at the stop sign at the end of Joos Avenue on the block where Jaide's

residence was located, because he was aware of the Protection Order and disregarded a

substantial and unjustifiable risk that being in that location would place him within 500

feet of Jaide or a place she was likely to be while the Protection Order was in effect and

prohibited such conduct. See, e.g., State v. Kaseda, 11th Dist. No. 2012-L-002, 2012-Ohio-

4652, ¶ 11-12 (finding evidence sufficient to support conviction for violating R.C.

2919.27(A)(1) where the state presented evidence that a protection order prohibiting

defendant from coming within 500 feet of the protected person was in effect at time of

arrest, defendant was apprehended within 500 feet of the protected person's residence, and

there was testimony that defendant was aware of the existence of the protection order);

State v. Mohamed, 10th Dist. No. 05AP-29, 2005-Ohio-4928, ¶ 12 (finding evidence

sufficient to support conviction for violating R.C. 2919.27(A)(1) where protection order was

in effect prohibiting defendant from initiating or having contact with the protected person,

defendant knew of the protection order, and defendant called the protected person's place

of work and asked to speak with her). Thus, the evidence presented at trial was sufficient

to sustain the jury's verdict.

No. 19AP-93 11

{¶ 29} "While sufficiency of the evidence is a test of adequacy regarding whether the

evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest

weight of the evidence standard addresses the evidence's effect of inducing belief." Cassell

at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25. When evaluating

a challenge to a verdict as being against the manifest weight of the evidence, "an appellate

court may not merely substitute its view for that of the trier of fact, but must review 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. McCrary, 10th Dist. No. 10AP-881,

2011-Ohio-3161, ¶ 12, citing Thompkins at 387. In conducting our review of the evidence,

"we are guided by the presumption that the jury, or the trial court in a bench trial, 'is best

able to view the witnesses and observe their demeanor, gestures and voice inflections, and

use these observations in weighing the credibility of the proffered testimony.' " State v.

Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 80 (1984). An appellate court should reserve reversal of a

conviction as being against the manifest weight of the evidence for only the " 'exceptional

case in which the evidence weighs heavily against the conviction.' " Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

{¶ 30} Rhoades alleges the testimony from Jaide and Jennifer was clearly

contradictory; however, he fails to cite any specific contradictions or inconsistencies. Even

if there were inconsistencies, a defendant "is not entitled to a reversal on manifest weight

grounds merely because inconsistent evidence was presented at trial." State v. Chandler,

10th Dist. No. 05AP-415, 2006-Ohio-2070, ¶ 9. "[T]he jury may take note of the

inconsistencies and resolve them accordingly, 'believ[ing] all, part, or none of a witness's

testimony.' " State v. Taylor, 10th Dist. No. 17AP-103, 2017-Ohio-8327, ¶ 37, quoting State

v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21. Rhoades also attacks Officer

Nowalk's credibility, noting he did not interview Jennifer about the July 2, 2018 incident,

and alleging that laser scanning equipment is not part of the standard department issued

traffic equipment. Officer Nowalk admitted at trial that he did not interview Jennifer on

July 2, 2018, explaining he did not realize at the time that she had also witnessed the

No. 19AP-93 12

incident. To the extent Rhoades suggests this reduces the credibility of Officer Nowalk's

investigation or his testimony, the jury was aware of this issue and able to consider it in

weighing Officer Nowalk's credibility. With respect to the measurements, Officer Nowalk

testified he measured the distance between the stop signs using his department issued laser

traffic detector, which could be used to measure distance. Rhoades does not cite anything

in the record to contradict Officer Nowalk's testimony about the laser measuring device.

{¶ 31} Rhoades also argues there was a grocery store receipt and other materials

establishing he was not on Joos Avenue on July 2, 2018 at the time Jaide and Jennifer

claimed to see him. As discussed below, the grocery store receipt was disclosed in pretrial

discovery but was not admitted into evidence. Likewise, none of the other materials

Rhoades refers to were admitted into evidence at trial or otherwise made part of the record.

Finally, Rhoades argues there was no evidence he attempted to talk to or otherwise make

contact with Jaide. However, as explained above, the Protection Order prohibited Rhoades

from being within 500 feet of Jaide or a place where she was likely to be. Therefore, it was

not necessary for the state to establish Rhoades made any attempt to speak with or

otherwise contact Jaide to prove a violation of the Protection Order.

{¶ 32} Jaide and Jennifer both testified they saw Rhoades in his car at a stop sign at

the end of the block of Joos Avenue where their home was located. They both testified they

pursued Rhoades' car as it exited their neighborhood in an attempt to get a photograph, but

were unable to take a photograph. Both Jaide and Officer Nowalk testified that the stop sign

where Jaide and Jennifer saw Rhoades was less than 500 feet from Jaide's home. There

was documentary evidence establishing the Protection Order prohibited Rhoades from

being within 500 feet of Jaide or any place she was likely to be, that the Protection Order

was in effect on July 2, 2018, and Rhoades was aware of the Protection Order. Based on

our review of the evidence, we cannot conclude the jury clearly lost its way in finding

Rhoades guilty of violating R.C. 2919.27(A)(1).

{¶ 33} Because we conclude the conviction was supported by sufficient evidence and

was not against the manifest weight of the evidence, we overrule Rhoades's third, fourth,

fifth, and ninth assignments of error.

No. 19AP-93 13

D. Suppression of evidence

{¶ 34} In his sixth, seventh, and eighth assignments of error, Rhoades presents

arguments relating to the suppression of evidence he intended to introduce at trial.

Rhoades argues the trial court erred by suppressing a grocery store receipt that he claims

would have established he was not on Joos Avenue on July 2, 2018 at the time Jaide and

Jennifer claimed to have seen him.

{¶ 35} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 32, citing State v.

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. A court of appeals must accept the

trial court's findings of fact if they are supported by competent, credible evidence. Burnside

at ¶ 8. "Accepting these facts as true, the appellate court must then independently

determine, without deference to the conclusion of the trial court, whether the facts satisfy

the applicable legal standard." Id.

{¶ 36} After the close of the state's presentation, the prosecutor moved to suppress

the grocery store receipt, which had been provided in pretrial discovery. The prosecutor

argued the receipt was hearsay and did not qualify for any of the exceptions to the hearsay

rule under the rules of evidence. Specifically, the prosecutor asserted the receipt was not

admissible under the business records exception to the hearsay rule because, based on the

pretrial witness disclosures, Rhoades did not plan to present a representative of the grocery

store or other qualified witness to testify about the receipt. The prosecutor argued that

because it was possible to falsify or forge a receipt, it was necessary for Rhoades to present

a qualified witness to authenticate the grocery store receipt. Rhoades' trial counsel argued

the grocery store receipt was admissible as a business record and that Rhoades would be

able to testify to the authenticity of the receipt and the circumstances under which he

received it. He further asserted Rhoades would be able to present evidence of having a

credit card that matched the payment information on the grocery store receipt. When the

trial court indicated it was likely to grant the motion to suppress, Rhoades' trial counsel

requested a continuance to pursue securing testimony from a representative of the grocery

store. The trial court granted a continuance until the following day. Ultimately, Rhoades

elected not to put on any evidence or testify in his own defense. Thus, although the trial

court indicated it was inclined to grant the motion to suppress, it did not issue a final ruling

No. 19AP-93 14

on the motion. Further, because Rhoades elected not to put on any evidence, the grocery

store receipt was not proffered for admission as evidence. Notwithstanding the lack of a

final ruling, because the trial court indicated it was inclined to grant the state's motion to

suppress, we will consider whether the grocery store receipt would have been admissible.

{¶ 37} Hearsay is defined as "a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted." Evid.R. 801(C). Under the rules of evidence, a statement includes a written

assertion. Evid.R. 801(A). Generally, hearsay evidence is not admissible, except as

otherwise permitted under a constitutional provision, statute, or rule. Evid.R. 802. Evid.R.

803(6) provides an exception to the prohibition on hearsay evidence for records of

"regularly conducted business activity * * * if it was the regular practice of that business

activity to make the * * * record * * * as shown by the testimony of the custodian or other

qualified witness."

{¶ 38} Rhoades suggests the grocery store receipt would have established his

whereabouts as somewhere other than Joos Avenue on July 2, 2018, when Jaide and

Jennifer claimed to have seen him. Thus, if offered into evidence, the receipt would have

been hearsay because it was an out-of-court statement offered for the truth of the matter

asserted—i.e., the date, time, and location information contained in the receipt. As such, it

would have been inadmissible unless Rhoades could establish that it fell within an

exception to the hearsay rule.

{¶ 39} A store receipt may be admissible as a business record under Evid.R. 803(6).

See State v. Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 36 ("Had the receipt

been offered into evidence, it may have qualified for the business records exception to

hearsay contained in Evid.R. 803(6)."). To qualify for admission under Evid.R. 803(6), a

business record must satisfy four essential elements: (1) it must be one regularly recorded

in a regularly conducted activity, (2) it must have been entered by a person with knowledge

of the act, (3) it must have been recorded at or near the time of the transaction, and (4) a

foundation must be laid by the custodian of records or some other qualified witness. State

v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, ¶ 39. A qualified witness is someone with

enough familiarity with the record-keeping system of the business to explain how the

record came into existence in the ordinary course of business. Id. Rhoades has failed to

No. 19AP-93 15

establish that he was the custodian of records for the grocery store in question or otherwise

had sufficient familiarity with the grocery store's record-keeping system to explain how the

receipt was created in the ordinary course of business, or that he would have been able to

produce testimony from the custodian of records or other qualified witness. See, e.g., State

v. Shaheen, 3d Dist. No. 5-97-03 (July 29, 1997) (holding that loss-prevention manager of

retail store was a qualified witness for purpose of admission of inventory history and refund

receipt from that store); State v. Early, 2d Dist. No. CA 10827 (Dec. 30, 1988) (holding

retail store receipt was properly admitted as a business record where general manager and

apparel manager for the store testified regarding process for creation of receipts from the

store). Thus, while the grocery store receipt was potentially admissible under the business

records exception to the hearsay rule, Rhoades fails to demonstrate he could present a

custodian or other qualified witness to authenticate the receipt.

{¶ 40} Accordingly, we overrule Rhoades' sixth, seventh, and eighth assignments of

error.

E. Ineffective assistance of counsel

{¶ 41} In addition to referring to the exclusion of the grocery store receipt in his

seventh assignment of error, Rhoades also appears to suggest he received ineffective

assistance of counsel. Rhoades indicates his trial counsel advised him not to testify in his

own defense, and asserts this limited his ability to present certain evidence he argues would

tend to establish he was not present on Joos Avenue on July 2, 2018.

{¶ 42} We apply a two-part test to evaluate claims of ineffective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio

St.3d 136, 141-42 (1989). "First, the defendant must show that counsel's performance was

deficient. * * * Second, the defendant must show that the deficient performance prejudiced

the defense." Strickland at 687. To establish prejudice, a defendant "must show that there

is a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694. "A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Id.

{¶ 43} Generally, a licensed attorney in Ohio is presumed to be competent and trial

counsel is entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Jones, 10th Dist. No. 16AP-803, 2017-Ohio-

No. 19AP-93 16

5529, ¶ 11. Appellate courts normally refrain from second-guessing strategic decisions

made at trial. State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, ¶ 138. The decision

whether to allow a defendant to testify in his own defense usually constitutes a tactical

decision. State v. Hughes, 10th Dist. No. 14AP-360, 2015-Ohio-151, ¶ 69.

{¶ 44} To the extent Rhoades suggests his trial counsel was ineffective by advising

him not to testify, he relies on matters outside the record. The only evidence in the record

relating to Rhoades' ultimate decision not to testify indicates his trial counsel discussed the

implications of testifying but does not reveal any specific advice his trial counsel gave. After

the close of the state's presentation, Rhoades' trial counsel indicated Rhoades was inclined

to testify:

The Court: And I believe Mr. Rhoades would like to testify.

[Rhoades' trial counsel]: Your Honor, I have discussed that

with Mr. Rhoades. At this point, I have talked to him about all

of the potential ramifications of doing so. It is my belief that it

is his intention to testify in his own defense.

(Tr. Vol. II at 177.) The prosecutor then moved to suppress the grocery store receipt and

Rhoades' trial counsel obtained a continuance. When trial resumed the following day,

Rhoades' trial counsel informed the court Rhoades had chosen not to testify:

[Rhoades' trial counsel]: Your Honor, yesterday at the close of

-- at the close of the State's case, we had sort of contemplated

timing and the decision by Mr. Rhoades to testify at that point.

I have had several discussions with Mr. Rhoades, as well as his

family, and it's my understanding that at this point that he has

decided not to testify, and we would then proceed directly to

closing and charge of the jury. I did want to put that on the

record, since yesterday we had put out that it was my belief that

he was going to testify. So I just want to make the record clear.

It was his decision today not to testify.

(Tr. Vol. II at 191). Although the transcript clearly indicates Rhoades and his trial counsel

discussed whether Rhoades should testify, the record does not contain any information

about advice Rhoades' trial counsel may have given regarding that decision. Because a

claim of ineffective assistance of counsel arising from any advice Rhoades' trial counsel may

have given about whether to testify relies on matters outside the record, such a claim would

not be appropriate on direct appeal. See State v. Davis, 10th Dist. No. 05AP-193, 2006-

No. 19AP-93 17

Ohio-5039, ¶ 19 ("When allegations of ineffective assistance of counsel hinge on facts not

appearing in the record, the proper remedy is a petition for post-conviction relief rather

than a direct appeal.").

{¶ 45} Accordingly, to the extent Rhoades' seventh assignment of error asserts a

claim of ineffective assistance of counsel, we overrule the seventh assignment of error.

IV. Conclusion

{¶ 46} For the foregoing reasons, we overrule Rhoades' nine assignments of error

and affirm the judgment of the Franklin County Municipal Court.

Judgment affirmed.

BROWN and BEATTY BLUNT, JJ., concur.