[Cite as State v. Combs,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-120756 TRIAL NO. B-1204769 Plaintiff-Appellee, :

vs. : O P I N I O N.

HAROLD COMBS, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 19, 2013

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

William Gallagher, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS

FISCHER, Judge.

{¶1} Defendant-appellant Harold Combs appeals his conviction for

felonious assault, arguing that his right to a fair trial was allegedly violated when: the

prosecutor improperly vouched for the credibility of the witnesses and Combs’s guilt

during closing argument; the state improperly introduced evidence of Combs’s

invocation of his right to remain silent; and Combs received ineffective assistance of

counsel. While we determine that the prosecutor improperly vouched for the

witnesses and Combs’s guilt in closing, we cannot determine that plain error

occurred as a result. Moreover, the reference to Combs’s invocation of his right to

remain silent was not so extensive as to stress to the jury an inference of guilt from

the silence, so no error occurred. Finally, we cannot conclude that Combs received

ineffective assistance of counsel. Therefore, we affirm the judgment of the trial

court.

I. Factual Background and Procedural Posture

{¶2} On April 16, 2012, Combs and his girlfriend got into an argument while

at Combs’s apartment, which led to a physical altercation between the two. The

argument ended with Combs’s girlfriend out in the hallway of the apartment

building, topless, with a bleeding cut on her forehead. One of the neighbors in the

building called 911, and, as a result, Combs was arrested and then indicted for two

counts of felonious assault, one under R.C. 2903.11(A)(1), and one under R.C.

2903.11(A)(2), for use of a deadly weapon or dangerous ordnance. The matter

proceeded to a jury trial in the Hamilton County Court of Common Pleas.

{¶3} At trial, the state presented the testimony of two police officers who

had responded to the 911 call from the neighbor. The first officer testified that when

2 OHIO FIRST DISTRICT COURT OF APPEALS

he and his partner had arrived on the scene, the victim had been sitting or standing

just inside the apartment building, topless, with a shirt or towel covering her head.

The officer had seen blood on the shirt or towel and on the floor, marks around the

victim’s neck, and a “gash” in her head. The officer then had gone to Combs’s

apartment to speak to Combs. The officer had seen blood throughout the bedroom,

both on the bed and the floor, and he also had witnessed belongings knocked over in

the closet.

{¶4} Combs had told the officer that the victim had “come at him” with

scissors, but the officer had not seen any wounds on Combs, and the officer had

observed a pair of scissors lying neatly on a tray table beside the bed. The officer

testified that, after further questioning, Combs had become uncooperative and had

said to the officer: “[T]ake me to jail.” The officer testified that Combs had had no

problems physically walking to the police car.

{¶5} The second officer also testified. He corroborated the first officer’s

testimony that he had not observed any injuries on Combs. The second officer had

stayed with victim to get her story.

{¶6} Finally, the state presented the testimony of the victim. She testified

that she was 54 years old. She had met Combs in February and had moved in with

him at the end of March. On the night the incident had occurred, she and Combs

had had a nice dinner, and he had been drinking wine and beer. After the two had

gotten in bed, Combs had started to put on his clothes, and he asked her for money.

The victim testified that she had given him $20 and had asked him where he was

going and why he needed money. Combs had become agitated and had asked her for

more money. When she had refused to give him any more, he had told her to get out

3 OHIO FIRST DISTRICT COURT OF APPEALS

of his apartment. According to the victim, Combs had started to choke her while

lifting her out of the bed, telling her that she was not moving fast enough. Then, he

had hit her with an unknown object, and he had dragged her out of the bedroom, out

of the apartment, and into the hallway of the apartment complex. A neighbor had

given the victim a shirt and had called 911. The victim had been taken to University

Hospital where the wound on her head had been glued shut. She testified that she

still had a scar.

{¶7} The state presented several pictures depicting a scratch and bruise on

the victim’s neck, bruises on her arms, and a gash in her head. The state also

presented a picture of the scissors that the officer had seen resting on the bedside

tray table. The victim denied having used the scissors to threaten Combs, and she

testified that the scissors had been used to open her mail. The state also presented

hospital records from University Hospital, which contained the victim’s statement to

medical personnel that she had been assaulted and choked, and which also stated

that the victim had sustained a cut and bruising.

{¶8} Combs testified in his defense. He testified that he was 70 years old,

and that he had trouble getting around and sometimes used a cane. He testified that

that he did not drink, except the occasional beer, because drinking caused him to

“black out.” According to Combs, on the night he had been arrested, the victim had

laid a 20 bill on his stomach while they had been lying in bed together, which he had

returned to her immediately. Then, the victim had begun smoking in bed, and he

testified that he did not “allow people to smoke in [his] house.” He had directed the

victim to the ashtray on the bedside table, which was “usually clean.” The victim had

refused to put out the cigarette.

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶9} Combs testified that he had told the victim to get out. Then they had

started arguing over their wedding rings and over Combs’s hat that they had picked

out together. He had stepped in front of her when she had reached for the hat in the

closet, and then she had pushed him. When he had stood up, she had had a pair of

scissors in her hand and had started “poking” him with the scissors. He had tried to

get the scissors out of her hand, but then she had started biting his ear. He then had

hit her with his hand or fist to stop her from biting him, and, he added, he had a

fingernail that was “like a claw or something almost when it grows.” Combs had

denied dragging the victim out of the apartment.

{¶10} The jury found Combs guilty of felonious assault under R.C.

2903.11(A)(1), and the lesser-included offense of assault under R.C. 2903.13(A), but

not guilty under R.C. 2903.11(A)(2). The trial court merged the assault offense with

the felonious-assault offense and sentenced Combs to five years in the department of

corrections. This appeal ensued.

II. Prosecutorial Misconduct

{¶11} In his first assignment of error, Combs argues that his right to a fair

trial was violated when the prosecutor vouched for the credibility of state witnesses

and commented on Combs’s guilt during closing argument. Combs points to three

specific incidents of alleged misconduct. In the first instance, the prosecutor,

speaking about the victim, stated, “what it boils down to is for her credibility, and I’ll

be honest with you, I believe her. I’ve always believed her. I think it happened

exactly that way.” In the second instance, the prosecutor stated to the jury, “I am

confident that * * * when you discuss this amongst yourselves, that you will conclude,

as I have concluded, that the evidence warrants a conviction of the defendant * * *.”

5 OHIO FIRST DISTRICT COURT OF APPEALS

In the third instance, the prosecutor, speaking with regard to the officer-witnesses,

stated:

I’ll tell you, these two policemen, one’s been on for eight

years, one’s been on for five, if there was a real issue as

to their credibility * * * I guarantee that [defense

counsel] would have had their personnel records. * * * If

there was (sic) documented instances of misconduct by

either one of these policemen, you would know about it.

I would know about it. The judge would know about it,

because that’s [defense counsel’s] job. He would have

brought it out.

{¶12} At the outset, we note that Combs did not object to these statements

during closing argument, so all but plain error has been waived. Crim.R. 52(B);

State v. Long,

,

(1978). We will not reverse a

judgment for plain error unless the outcome of the trial clearly would have been

different absent the error. Id.; State v. Miller, 1st Dist. Hamilton No. C-070691,

.

{¶13} In determining whether prosecutorial misconduct has occurred, the

test is both whether the prosecutor’s remarks were improper, “and if so, whether

they prejudicially affected the accused’s substantial rights.” State v. Jones,

,

,

. “The touchstone of the analysis ‘is

the fairness of the trial, not the culpability of the prosecutor.’ ”

quoting Smith v.

Phillips,

,

,

(1982).

6 OHIO FIRST DISTRICT COURT OF APPEALS

{¶14} Combs argues that the prosecutor’s remarks constituted improper

vouching. “Vouching occurs when the prosecutor implies knowledge of facts outside

the record or places his or her personal credibility in issue.” State v. Davis,

,

,

, ¶ 229. Thus, an attorney cannot express his

or her personal beliefs or opinions as to the credibility of a witness or as to the guilt

of the accused during trial. State v. Williams,

,

(1997).

{¶15} The prosecutor in Combs’s case made three separate comments in

closing regarding his knowledge and opinions, and each comment constituted

improper vouching. The prosecutor told the jury that he believed the victim’s story;

that he believed the evidence warranted a guilty conviction of Combs; and that he

would have known if the officers had any credibility issues. In each instance, the

prosecutor placed his personal credibility in issue by offering his own opinion as to

the credibility of each state witness and the evidence. Such conduct is clearly not

proper, and in a case with less compelling direct evidence might influence this court

to find error.

{¶16} Although we agree with Combs that these remarks constituted

improper vouching, we must review for plain error. See Crim.R. 52(B). We cannot

conclude, in light of all of the evidence presented at trial, that the prosecutor’s

improper remarks clearly affected the outcome of the trial.

{¶17} Combs testified that the victim had “poked” him with scissors, and that

when he had tried to get the scissors away from her, she had bit him on the ear. He

then testified that he had hit the victim with his hand or fist to get her off of him, and

he seemed to speculate that the gash on the victim’s head could have been caused by

7 OHIO FIRST DISTRICT COURT OF APPEALS

his fingernail. Combs’s version of events was not credible, however, because the

responding officers testified that they had not witnessed any injuries whatsoever on

Combs. The evidence showed that the victim had sustained a deep cut on her head

that had been bleeding severely, and she had suffered bruising and scratching. The

evidence also showed that the scissors, which allegedly had been used to instigate the

attack, had been lying neatly on a tray table beside the bed. Moreover, the victim

testified that the wound on her head had been glued shut at the hospital and that she

still had a scar.

{¶18} Given the overwhelming evidence produced at trial, we cannot say that

Combs clearly would have been found not guilty of felonious assault absent the

prosecutor’s improper comments in closing. Therefore, we must overrule Combs’s

first assignment of error.

III. Evidence of Combs’s Post-Arrest Silence

{¶19} In his second assignment of error, Combs argues that his right to a fair

trial was violated by the introduction during the state’s case-in-chief of Combs’s post-

arrest invocation of his right to remain silent. Combs points to the direct

examination of one of the officers during which the following exchange took place:

Q. When you saw the defendant, * * * there were no

injuries to him, correct?

A. I did not see any injuries.

Q. Did he appear at all intoxicated to you?

A. I don’t believe so.

Q. Did he make any statements to you?

8 OHIO FIRST DISTRICT COURT OF APPEALS

A. The only statement he gave us was that he was

defending himself from Ms. Green who had scissors,

said he hit her.

And then once he was under arrest, I believe he

invoked his right to remain silent.

Q. Okay. Did he use any expletive? I mean, did he yell

at you? Did he say, just take me? I mean, any -- I mean,

what was his demeanor I guess.

A. I mean, he was compliant with us.

Q. Were you able to determine, did he ever call 911?

A. I don’t believe so.

{¶20} The United States Supreme Court held in Doyle v. Ohio,

,

,

(1976), that the use of a defendant’s post-arrest, post-

Miranda silence for impeachment purposes at trial violates the Due Process Clause

of the Fourteenth Amendment. The Doyle principle was extended in Wainwright v.

Greenfield,

,

,

(1986), so that post-

arrest, post-Miranda silence also could not be used as substantive evidence of guilt

without violating due process. This court has held that “the test under Doyle is to

determine whether the prosecutor’s comment was extensive, whether an inference of

guilt from silence is stressed to the jury as a basis of conviction.” (Internal

quotations and ellipses omitted.) State v. Jones, 1st Dist. Hamilton No. C-970043,

, *24 (Aug. 28, 1998).

{¶21} Here, the reference to Combs’s post-arrest silence was not so extensive

as to stress to the jury an inference of guilt from the silence. Reviewing the reference

9 OHIO FIRST DISTRICT COURT OF APPEALS

in context, the prosecutor’s question was not clearly targeted to elicit a response from

the officer regarding Combs’s post-arrest silence, and the prosecutor directed the

officer away from Combs’s silence immediately afterward with further questioning.

Moreover, the officer’s statement was used to show the chronology of events during

his investigation. See State v. Rick, 3d Dist. Marion No. 9-08-27,

. Therefore, we determine that no Doyle violation occurred.

{¶22} We overrule Combs’s second assignment of error.

IV. Ineffective Assistance of Counsel

{¶23} In his third assignment of error, Combs argues that he received

ineffective assistance of counsel. Combs points to his counsel’s failure to object to

the reference to his post-arrest silence and to the improper vouching, as discussed in

his first two assignments of error. In addition, Combs also points to the following

alleged errors by his counsel: (1) failing to object to hearsay statements in the

officer’s testimony as to what the victim had told the officer; (2) failing to object to

the introduction of hearsay statements in the medical records, and to the

prosecutor’s characterization of those medical records in closing; (3) failing to object

to the playing of the 911 call; (4) failing to object when the officer read from his own

written report; (5) and failing to object to improper commentary from the officer

regarding the credibility of the victim.

{¶24} In order to prevail on a claim for ineffective assistance of counsel,

Combs must show both that his counsel’s performance fell below an objective

standard of reasonable performance, and that he was prejudiced as a result of the

deficient performance. See Strickland v. Washington,

,

,

(1984). Prejudice occurs where “there is a reasonable

10 OHIO FIRST DISTRICT COURT OF APPEALS

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

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”

.

A. Reference to Combs’s post-arrest silence

{¶25} As we stated in disposing of Combs’s second assignment of error, the

reference to Combs’s post-arrest silence on direct examination of one of the officers

did not amount to a Doyle violation, and, therefore, counsel was not ineffective for

failing to object to the reference. See Jones, 1st Dist. Hamilton No. C-970043,

, at *34.

B. The victim’s statement to the officer

{¶26} Combs argues that his counsel was ineffective for failing to object to

the following exchange between one of the officers and the prosecutor:

Q. And what did [the victim] – what, if anything, did

she say to you?

A. [S]he said [Combs] choked her and hit her in the

head with something, she didn’t know what.

{¶27} Hearsay is “a statement, other than one made by the declarant while

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

asserted.” Evid.R. 801(C). The state argues that this statement was admissible as an

excited utterance under Evid.R. 803(2), which is an exception to the hearsay rule and

is defined as “[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.” “In

analyzing whether a statement is an excited utterance, ‘[t]he controlling factor is

whether the declaration was made under such circumstances as would reasonably

11 OHIO FIRST DISTRICT COURT OF APPEALS

show that it resulted from impulse rather than reason and reflection.’ ” State v.

Washington, 1st Dist. Hamilton No. C-090561,

, ¶ 26, quoting State

v. Wallace,

,

(1988).

{¶28} The officer testified that the victim had still been upset when she had

given him the statement regarding Combs. Moreover, when the officers had arrived

on the scene, the victim had been topless, covered in blood, had had a visible gash on

her head that she had been covering with a towel or shirt, and the bedroom had been

blood stained. This evidence suggests that the victim had been distressed when

giving her statement; therefore, we determine that the statement was admissible as

an excited utterance because it did not result from reason or reflection. Thus,

counsel was not ineffective for failing to object to the statement.

C. Medical records

{¶29} As to the medical records, Combs argues his counsel was ineffective for

failing to object to the prosecution’s use of hearsay statements from medical

professionals contained in those reports and the prosecutor’s characterization of

those reports in closing as those of a “third party” who had “no dog in the fight.” A

review of the record, however, indicates that Combs and the state stipulated to the

admissibility of the medical records. Combs’s counsel obviously used the medical

records to show that the victim’s injuries were not severe. For example, in closing,

counsel focused on the medical professionals’ use of the word “laceration” to describe

the victim’s head injury to refute the state’s characterization of the injury as a

“puncture wound.” Combs’s counsel also told the jury in closing that the medical

professionals could have described the victim’s injuries, but they would not have

12 OHIO FIRST DISTRICT COURT OF APPEALS

known how those injuries occurred, except for what they had been told by the victim

and the officers.

{¶30} Therefore, the failure to object to the use of the medical records was a

trial strategy, which we, as reviewing court, will not second-guess. See State v.

Whipple,

,

, ¶ 44 (1st Dist.), citing State v. Mason,

,

(1998).

D. The 911 call

{¶31} Combs argues that his counsel should have objected when the state

played the 911-call tape to the jury, because the neighbor, and not the victim, placed

the call. Although Combs does not elaborate any further or cite any case law for his

argument, we assume that Combs means the call constituted inadmissible double

hearsay. Under Evid.R. 805, hearsay within hearsay is admissible if each layer of

hearsay falls within an exception to the hearsay rule.

{¶32} The statements from the neighbor to the operator were admissible as

present sense impressions under Evid.R. 803(1): “statement[s] describing or

explaining an event or condition made while the declarant was perceiving the event

or condition, or immediately thereafter unless circumstances indicate lack of

trustworthiness.” The statements from the victim, as relayed by the neighbor, were

admissible as excited utterances under Evid.R. 803(2), because they were not the

product of reason and reflection, and were made just after the incident in Combs’s

apartment, while the victim was still topless and bleeding. See Washington, 1st Dist.

Hamilton No. C-090561,

, at ¶ 26; see also State v. Crowley, 2d Dist.

Clark No. 2009 CA 65,

, *14 (“911 calls are usually admissible under

13 OHIO FIRST DISTRICT COURT OF APPEALS

the excited utterance or the present sense impression exception to the hearsay

rule.”).

{¶33} Therefore, counsel was not ineffective for failing to object to the

admission of the 911 call.

E. Officer’s written report

{¶34} Combs argues that his counsel should have objected when one of the

officers was permitted to read from his own police report. The officer was allowed to

testify that he had written in his report: “[A]rrested knowingly struck victim with an

unknown object in the head causing serious physical harm.”

{¶35} Although this statement was hearsay, it was merely duplicative of

previous testimony. Thus, no reasonable probability exists that the result would

have been different for Combs had his counsel objected to admission of the officer’s

testimony.

F. Vouching by the prosecutor and the officer

{¶36} Combs further argues that his counsel was ineffective for failing to

object when the prosecutor vouched for the evidence in the case against Combs and

for the witnesses during closing. As we determined in the discussion of Combs’s first

assignment of error, these remarks were improper. Additionally, Combs alleges that

one of the officers vouched for the victim’s credibility during the following exchange:

Q. [W]hen you go on an assault call, do you always

arrest somebody?

A. Not necessarily. I mean, it depends on the facts of

the matter, of the story, what, you know, we can figure

out at the scene.

14 OHIO FIRST DISTRICT COURT OF APPEALS

Q. Right. And if you had thought that the * * * victim

had gone at the defendant with a scissors, what would

you have done?

A. If it would appear to be a self-defense type thing, I

believe we could have determined that there, and we

would have made the appropriate arrest at that time.

Q. Okay. But it’s your testimony that you don’t believe

that there was a self-defense (sic)?

A. Correct.

{¶37} A witness’s opinion regarding the veracity of another witness is

inadmissible. See Davis,

,

,

, at ¶ 122-

123 (where the court determined that an officer’s testimony that the accused had

been “very deceptive” in an interview with police was erroneously admitted because

“[a] police officer’s opinion that an accused is being untruthful is inadmissible”); see

also State v. Huff,

,

(1st Dist. 2001)

(determining that counsel was ineffective for failing to object to a detective’s

testimony that the victims were credible and were telling the truth).

{¶38} We need not decide whether counsel should have objected to the

officer’s testimony because, given the evidence presented at trial, no reasonable

probability exists that the result of the proceeding would have been different had

counsel objected to the officer’s testimony or to the vouching by the prosecutor in

closing. Combs’s version of events was simply not credible in light of all the evidence

presented. Combs alleged that the victim instigated the physical altercation by

“poking” him with scissors and biting him on the ear, yet Combs had no injuries.

15 OHIO FIRST DISTRICT COURT OF APPEALS

Combs then claimed that he only hit the victim with his hand or his fist, yet the

victim had a heavily bleeding laceration on her head that had to be glued at the

hospital, bruising on her arms, and scratches on her neck. Had Combs’s story been

more credible, then the failure to object to the improper vouching by the prosecutor

in closing might have been ineffective assistance of counsel.

{¶39} On this record, Combs cannot succeed on his claim for ineffective

assistance of counsel; therefore, we overrule Combs’s third assignment of error.

V. Conclusion

{¶40} Having determined that Combs’s three assignments of error are

without merit, we affirm the judgment of the trial court convicting Combs of

felonious assault.

Judgment affirmed. HENDON, P.J., and HILDEBRANDT, J., concur.

Please note: The court has recorded its own entry on the date of the release of this opinion.

16