[Cite as State v. Shaw,

.] STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 15 BE 0065 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) JAMES ROBERT SHAW ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 15 CR 174

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Daniel P. Fry Belmont County Prosecutor Atty. Kevin Flanagan Chief Assistant Prosecuting Attorney 147-A West Main Street St. Clairsville, Ohio 43950 No Brief Filed

For Defendant-Appellant: Atty. John M. Jurco P.O. Box 783 St. Clairsville, Ohio 43950

JUDGES:

Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb Dated: March 31, 2017 [Cite as State v. Shaw,

.] WAITE, J.

{¶1} Appellant James Robert Shaw appeals the conviction in Belmont

County Common Pleas Court for his third offense of domestic violence, in violation of

R.C. 2919.25(A). Appellant raises five issues on appeal dealing with his conviction

and sentence. Following a review of this record, Appellant’s assignments of error are

without merit and are overruled. The trial court’s decision is affirmed.

Factual and Procedural Background

{¶2} On August 5, 2015, the Belmont County Grand Jury indicted Appellant

on his third offense of domestic violence, in violation of R.C. 2919.25(A), a felony of

the third degree, for events transpiring on July 1, 2015. The indictment stated that

Appellant:

did knowingly cause or attempt to cause physical harm to a family or

household member, to-wit: [victim]. All in violation of Ohio Revised

Code Section 2919.25(A).

[APPELLANT] WAS PREVIOUSLY CONVICTED OF TWO (2) PRIOR

DOMESTIC VIOLENCE OFFENSES AS FOLLOWS: 1) ON

SEPTEMBER 30, 2003, IN CASE NO. 03M1439, IN THE OHIO

COUNTY MAGISTRATE COURT – WHEELING, WEST VIRGINIA;

AND 2) ON JULY 29, 2005, IN CASE NO. 05M11, IN THE

MARSHALL COUNTY CIRCUIT COURT – MOUNDSVILLE, WEST

VIRGINIA. -2-

{¶3} On August 13, 2015, an arraignment was held where Appellant pleaded

not guilty and defense counsel was appointed. Pretrial conference was held on

August 24, 2015 and two days later the trial court issued a judgment entry denying

Appellant’s oral request for a recognizance bond. Appellant’s earlier request for

recognizance bond, sent to the court by letter, was also denied.

{¶4} A hearing was held on September 8, 2015, where the parties informed

the court that no plea agreement had been reached. At this hearing, the state

provided information about newly discovered evidence. Appellant had made

telephone calls to the victim while he was incarcerated, despite the existence of a

restraining order. Defense counsel objected to the use of the evidence. On

September 11, 2015, the state filed supplemental discovery.

{¶5} A jury trial was held on September 15, 2015. Appellant was found

guilty of third offense domestic violence, in violation of R.C. 2919.25(A). On October

5, 2015, Appellant was sentenced to thirty months in prison, with ninety-seven days

credit for time served.

{¶6} Appellant filed this timely appeal.

ASSIGNMENT OF ERROR NO. 1

The trial court erred in not declaring a mistrial.

ASSIGNMENT OF ERROR NO. 2

The trial court erred in introducing other acts evidence of allegedly

broken ribs.

ASSIGNMENT OF ERROR NO. 3 -3-

The trial court erred in introducing the Wheeling, Ohio County, West

Virginia conviction to prove up [sic] third offense domestic violence.

{¶7} Appellant contends in his first three assignments of error that the trial

court erred in permitting the evidence of other bad acts and that a mistrial should

have been declared. Specifically, Appellant urges that the trial court permitted other

acts evidence to be put before the jury when the victim used the phrase “this time”

during her testimony, and when she referred to “broken ribs” during a telephone

conversation with Appellant while he was incarcerated awaiting trial. Appellant also

claims the jury panel was “poisoned” by the statements made to jurors concerning

Appellant’s prior domestic violence convictions. Finally Appellant contends the trial

court erred in permitting his Wheeling, West Virginia domestic violence conviction

into evidence.

{¶8} The admission of evidence is within the broad discretion of the trial

court and a reviewing court will not reverse its decision absent an abuse of discretion.

State v. Mays,

,

(8th Dist. 1996). “An

abuse of discretion is more than an error of judgment; it requires a finding that the

trial court's decision was unreasonable, arbitrary, or unconscionable.” State v. Nuby,

7th Dist. No. 16 MA 0036,

, citing State v. Adams,

,

(1980).

{¶9} Evid.R. 404(B) reads:

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It -4-

may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. In criminal cases, the proponent of

evidence to be offered under this rule shall provide reasonable notice in

advance of trial, or during trial if the court excuses pretrial notice on

good cause shown, of the general nature of any such evidence it

intends to introduce at trial.

{¶10} During the victim’s direct testimony she recounted the conversation she

had with a local police department sergeant who was in the vicinity shortly after her

altercation with Appellant. The victim testified that she asked the sergeant, “did you

find him this time?” (09/14/15 Tr., p. 166.) Defense counsel objected that her use of

the phrase “this time” implied that Appellant had committed other acts, and that use

of this kind of testimony violated Evid.R. 404(B). On this basis, counsel also made

an oral motion for a mistrial. The trial court overruled the request for mistrial, but

instructed the jury that the phrase “this time” was being stricken from the record and

should not be considered in their deliberations.

{¶11} A mistrial can be declared only where there is a “manifest necessity” for

such an act. On appeal, a reviewing court must evaluate whether the trial court

abused its discretion. Arizona v. Washington,

,

,

(1978). A motion for mistrial should be granted only if a defendant’s

right to a fair trial has been adversely affected by the misconduct or irregularity -5-

complained of in the motion. State v. Clark,

,

(8th Dist. 1974).

{¶12} In Tingue v. State,

,

(1914), paragraph

three of the syllabus, the Ohio Supreme Court held:

A mistrial should not be ordered in a cause simply because some error

has intervened. The error must prejudicially affect the merits of the

case and the substantial rights of one or both of the parties, and this is

as true of the temporary absence of the judge as any other departure

from due process of law during the trial of a cause.

{¶13} In reviewing the above testimony, it cannot be said that the state’s

questioning or the victim’s testimony prejudicially affected the merits of the case or

Appellant’s substantial rights, nor did it adversely affect his right to a fair trial. The

state did not ask a question about other incidents of abuse nor did it attempt in any

way to elicit such testimony from the victim. Appellant’s objection to the victim’s

volunteered and very brief comment was sustained and stricken from the record and

the jury was cautioned to disregard the comment. No evidence of “other acts” was

presented by the victim’s testimony beyond the unsolicited comment, and this was

properly addressed by the court following an objection.

{¶14} The trial court’s curative instruction to the jury is recognized as an

effective way to remedy errors which occur during trial. State v. Zuern,

,

(1987). Juries are presumed to follow such instructions.

State v. Henderson,

,

(1988) citing Parker v. -6-

Randolph,

,

,

(1979). Here, the curative

instruction conveyed to the jury that it should disregard the victim’s statement.

Likewise, they were instructed to ignore any reference the victim made to broken ribs

in the recorded telephone call. This reference was not clearly linked to wrongdoing

by Appellant. A curative instruction was given. There was no indication that the jury

did not follow the court’s instruction.

{¶15} In his third assignment of error, Appellant contends the trial court erred

in permitting evidence of Appellant’s Wheeling, West Virginia domestic violence

conviction to be admitted in order to prove Appellant’s current offense was his third

offense of domestic violence. Essentially, Appellant claims he was never informed in

West Virginia that his guilty plea could be used to enhance a later domestic violence

charge to a felony level. In support of this contention, Appellant cites State v.

Clevenger, 11th Dist. No. 2001-L-160,

. Appellant provides no

argument in support of his contention other than this cite.

{¶16} R.C. 2919.25(A), (B), and (C) define the offense of domestic violence.

A first-time offense is either a misdemeanor of the fourth degree or a misdemeanor of

the first degree, depending upon the section of the statute under which the defendant

is charged. R.C. 2919.25(D)(2). A second offense is either a felony of the fourth

degree or a misdemeanor of the second degree. R.C. 2919.25(D)(3). If the offender

has “pleaded guilty to or been convicted of two or more offenses of domestic

violence,” a subsequent domestic violence offense is elevated to either a third degree

felony or a first-degree misdemeanor. R.C. 2919.25(D)(4). Because the state -7-

contended that Appellant had two prior convictions for domestic violence, he was

charged with a third-degree felony for the offense at issue.

{¶17} Where a prior conviction affects the degree of the offense and not just

the potential penalty upon conviction, it is an essential element of the offense. State

v. Allen,

,

(1987). Therefore, in the case sub

judice, the state was required to prove that Appellant had pleaded guilty to or had

been convicted of two or more domestic violence offenses. The statute allows the

state to offer evidence of a defendant’s guilty plea as proof of a prior offense.

Whether it involved a guilty plea or conviction, the state must prove this element

beyond a reasonable doubt before the level of the offense may be increased. State

v. Henderson,

,

(1979).

{¶18} In Appellant’s case, the state offered and the trial court admitted state’s

Exhibit 3. The exhibit contained the Wheeling, West Virginia judgment entry of

Appellant’s conviction in Ohio County West Virginia Magistrate’s Court, Case No.

037-M-1439. Although counsel objected to admission of the document for lack of

authentication at trial, which was overruled by the trial court, Appellant takes issue

here not with the exhibit, but instead that he was allegedly not informed at the time of

his guilty plea in West Virginia that it could be utilized later to elevate a future

domestic violence offense.

{¶19} Again, R.C. 2919.25(D)(4) requires the state to prove beyond a

reasonable doubt that Appellant had previously pleaded guilty to or been convicted of

two or more offenses of domestic violence. If the state offers such proof by means of -8-

an earlier judgment entry, that entry must comply with Crim.R. 32(C). It must set

forth (1) the fact of a conviction, (2) the sentence, (3) the judge’s signature, and (4)

the time-stamp indicating that the clerk entered the judgment on the journal.

{¶20} The state here offered a judgment entry from the Wheeling, West

Virginia court in order to prove one of Appellant’s prior convictions. It reflected the

conviction; sentencing; the signature of the judge; and contained an indication of

journalization by the clerk. At trial, defense counsel never raised any issue regarding

the substance of the West Virginia plea and whether Appellant was made aware of its

potential for use in elevating a future offense. This issue is waived. Moreover, the

issue of whether his West Virginia plea was entered knowingly or voluntarily is not

before us. Thus, Appellant’s assertions in his first three assignments of error that he

was prejudiced by evidence is not supported by the record. Neither the victim’s

statements nor the prior domestic violence conviction are tantamount to prior acts

evidence warranting a mistrial. The trial court properly provided a curative instruction

and did not abuse its discretion in denying Appellant’s counsel’s oral motion for a

mistrial. Additionally, the inclusion of Appellant’s prior domestic violence conviction

was a required element of the offence. Therefore, Appellant’s first three assignments

of error are without merit and are overruled.

ASSIGNMENT OF ERROR NO. 4

Defense counsel committed ineffective assistance of counsel by not

having the appellant stipulate to his two (2) prior offenses of domestic -9-

battery and, as such, prevent the State from proving these facts to the

jury.

{¶21} In his fourth assignment of error, Appellant argues he was denied the

effective assistance of counsel when trial counsel failed to have Appellant stipulate to

his prior domestic violence convictions.

{¶22} To prevail on an ineffective assistance of counsel claim, Appellant must

show not only that counsel’s performance was deficient, but also that he was

prejudiced by that deficiency. Strickland v. Washington,

,

,

(1984); see also State v. Williams,

, 2003-

Ohio-4396,

. “Deficient performance” is defined as performance

that falls below an objective standard of reasonable representation.

.

{¶23} Prejudice is shown when there is a reasonable probability that, but for

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

.

Appellant’s burden in an ineffective assistance challenge is to demonstrate some

action or inaction by trial counsel that undermined or called into question the integrity

of the process that resulted in conviction. State v. Calhoun,

,

(1999).

{¶24} When evaluating conduct of trial counsel, courts, “must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” State v. Wesson,

,

,

. -10-

{¶25} Appellant cites State v. Gwen,

,

,

for the contention that, when dealing with domestic violence

offenses, a defendant “may, and often does, stipulate to a prior conviction to avoid

the evidence being presented before a jury.” Id. at ¶ 14. While that certainly is a true

statement, there is no requirement that a defendant stipulate to prior offenses. In

fact, as the state is charged with proving those prior convictions beyond a reasonable

doubt, counsel may have legitimate reasons for advising a defendant not to stipulate.

Appellant admits as much in his appellate brief, when he contends that there was an

error with a prior conviction and, had Appellant stipulated to that conviction, he would

have been precluded from raising that argument. A decision not to stipulate to a prior

conviction utilized to elevate a domestic violence offense can be part of trial strategy,

and the record before us provides no indication that trial counsel undermined or

called into question his effectiveness or the fairness of the process in general. This

record, then, reveals no deficient performance nor prejudice to Appellant.

{¶26} Appellant’s fourth assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 5

The trial court erred in sentencing the appellant, James Robert Shaw to

thirty (30) months in prison less credit for time served for a smack.

{¶27} In Appellant’s fifth assignment of error he contends his felony sentence

is contrary to law since he is guilty of inflicting merely “a smack” to the victim.

{¶28} In reviewing a felony sentence, “an appellate court may vacate or

modify a felony sentence on appeal only if it determines by clear and convincing -11-

evidence that the record does not support the trial court’s findings under relevant

statutes or that the sentence is otherwise contrary to law.” State v. Marcum,

,

,

, ¶ 1.

{¶29} Appellant asserts various reasons why his sentence is contrary to law,

including that no children, sex, weapons or gang-member activity were involved; the

offense was a “single strike or smack for which the alleged victim did not receive any

medical treatment” and the victim did not suffer serious harm because she did not

“have to put anything on the location where she was allegedly struck” (Appellant’s

Brf., p. 19). Appellant also states that he apologized and that the only aggravating

factor pursuant to R.C. 2929.12(B) was that he knew his victim. Finally, Appellant

argues that the victim touched Appellant first.

{¶30} After reciting this litany, Appellant goes no further in providing argument

in support of this assignment of error. Whether Appellant feels this list stands on its

own requiring no further explanation, or Appellant himself could find no supporting

authority in support of his contention is unclear.

{¶31} R.C. 2929.12 sets forth the discretion of the sentencing court to

determine the most effective way to comply with the purposes and principles of

sentencing. R.C. 2929.12(A). In exercising such discretion, the court must consider

the statutory seriousness and recidivism factors in R.C. 2929.12(B), (C), (D), and (E)

and may consider any other relevant factors.

{¶32} The factors that indicate the offender's conduct is more serious than

conduct normally constituting the offense include: (1) a physical or mental injury was -12-

exacerbated due to the victim's physical or mental condition or age; (2) the victim

suffered serious physical, psychological, or economic harm; (3) the offender held a

public office or position of trust in the community; (4) the offender’s occupation, office,

or profession obliged the offender to prevent the offense or bring others committing it

to justice; (5) the offender’s professional reputation, occupation, office, or profession

was used to facilitate the offense or is likely to influence the conduct of others; (6) the

offender's relationship with the victim facilitated the offense; (7) the offense was

committed for hire or as part of organized criminal activity; (8) the offense was

motivated by prejudice; or (9) the offense is domestic violence (or assault involving a

family or household member), the offense was committed in the vicinity of a child

(who is not the victim), and the offender or victim is a parent or person in loco

parentis to the child. R.C. 2929.12(B)(1)-(9).

{¶33} The factors that indicate the offender's conduct is less serious than

conduct normally constituting the offense include: (1) the victim induced or facilitated

the offense; (2) the offender acted under strong provocation; (3) the offender did not

cause or expect to cause physical harm to any person or property; and (4) there are

substantial grounds to mitigate the offender's conduct, although the grounds are not

enough to constitute a defense. R.C. 2929.12(C)(1)-(4).

{¶34} The factors that indicate the offender is likely to commit future crimes

include: (1) at the time of the offense, the offender was under pretrial release,

community control, postrelease control or other sanctions for an earlier offense or

was unfavorably terminated from postrelease control or transitional control; (2) the -13-

offender has a history of criminal convictions or was previously adjudicated a

delinquent child; (3) the offender has not responded favorably to sanctions previously

imposed for criminal convictions or has not been rehabilitated to a satisfactory degree

after previously being adjudicated a delinquent child; (4) the offender has a pattern of

drug or alcohol abuse related to the offense and refuses to acknowledge that pattern

or refuses treatment; or (5) the offender shows no genuine remorse for the offense.

R.C. 2929.12(D)(1)-(5).

{¶35} The factors that indicate the offender is not likely to commit future

crimes include: (1) the offender was not previously adjudicated a delinquent child; (2)

the offender was not previously convicted of a criminal offense; (3) the offender

previously led a law-abiding life for a significant number of years; (4) the offense was

committed under circumstances not likely to recur; and (5) the offender shows

genuine remorse for the offense. R.C. 2929.12(E)(1)-(5).

{¶36} R.C. 2929.11 does not require the trial court to make any specific

findings as to the purposes and principles of sentencing. State v. Wilson,

,

,

, ¶ 31. Similarly, R.C. 2929.12 does not

require the trial court to “use specific language or make specific findings on the

record in order to evince the requisite consideration of the applicable seriousness

and recidivism factors.” State v. Arnett,

,

(2000). -14-

{¶37} A silent record raises the rebuttable presumption that the sentencing

court considered the proper statutory items within R.C. 2929.11 and R.C. 2929.12.

State v. Grillon, 7th Dist. No.

,

.

{¶38} In the instant case, the trial court expressly stated at the sentencing

hearing that the court reviewed R.C. 2929.11 and R.C. 2929.12 at length.

(Sentencing Hrg. Tr., pp. 6-9.) The court also stated it reviewed the file and PSI at

length. Id. at 6. The court quoted facts reported in the PSI and made statements

related to the seriousness of the offense. Id. at 6-8. Regarding recidivism, the court

read Appellant’s criminal record into the record and noted Appellant’s prior criminal

history included violence directed against women. Id. at pp. 7-8. The court stated, “I

don’t believe that you’ve shown any real remorse. Instead, * * * you try to explain

away your prior conduct, and your real concern is how you are going to be treated in

prison if you’re sent there, rather than how you have treated your victims, including

the victim in this case.” Id. at 8. The court also declared that the sentence was

based on his prior domestic violence offense, felony sex abuse convictions, and the

need for punishment. Id. at 7-8.

{¶39} Moreover, in the sentencing entry the trial court explicitly declared that it

was to consider: “the principles and purposes of sentencing set forth in Revised

Code §2929.11, consider the factors contained in Ohio Revised Code

§2929.12(B),(C),(D), and (E), and any other factors relevant to achieving those

purposes and principles.” (10/6/15 J.E., p. 2.) The judgment entry also stated the

court considered the record, including Appellant’s violation of the no-contact order -15-

while incarcerated, the oral statements, and the PSI. The sentencing entry set forth

findings that aligned with the statutory factors. For instance, the court reiterated that

Appellant has a criminal history, particularly of violent crimes against women, and

recited some of the offenses. In the entry the court expressly stated that Appellant

has not responded to sanctions previously imposed and that he has an established

pattern of violent criminal activity against women without any genuine remorse for his

conduct. The court found no mitigating factors suggesting that recidivism was

unlikely. The court added that community control would not adequately punish

Appellant or protect the public and would demean the seriousness of the offense.

{¶40} Regarding the factors in R.C. 2929.12(B) making the offense more

serious, Appellant’s relationship with the victim, who was his ex-girlfriend and mother

of his child, facilitated the offense. See R.C. 2929.12(B)(6). The victim suffered

physical and psychological harm. See R.C. 2929.12(A) (any other factor).

{¶41} Regarding evaluation of the factors in R.C. 2929.12(C) that can make

an offense less serious, the court found no factors in Appellant’s favor.

{¶42} As to the factors in R.C. 2929.12(D) indicating the offender is likely to

commit future crimes, this was Appellant’s third domestic violence conviction. He

also had two felony sex abuse convictions and two convictions for persistent

disorderly conduct and was on misdemeanor probation when he committed the

instant offense. See R.C. 2929.12(D)(1). Appellant has not responded favorably to

sanctions previously imposed. See R.C. 2929.12(D)(3). -16-

{¶43} There was no expression of genuine remorse, and he did not accept

responsibility for the offense. See R.C. 2929.12(D)(5). Compare R.C. 2929.12(E)(5)

(showing genuine remorse is a factor making recidivism less likely).

{¶44} As to the factors in R.C. 2929.12(E) that indicate an offender is not

likely to commit future crime, as a juvenile Appellant had three delinquency

adjudications. See R.C. 2929.12(E)(1). Appellant’s adult offenses, including those

similar to the one at issue, weigh heavily on the scale. See R.C. 2929.12(E)(2). His

record shows he did not lead a law-abiding life for a significant number of years prior

to this offense. See R.C. 2929.12(E)(3). The record reflects the offense was

committed under circumstances likely to recur. See R.C. 2929.12(E)(4).

{¶45} R.C. 2929.11(A) speaks of an “unnecessary” burden on government

resources, and even that concern must be weighed against the general purposes

and principles of sentencing. See also

(costs should not

outweigh the benefit the people of the state derive from an offender’s incarceration).

The trial court exercised its discretion in weighing the factors and in determining that

a maximum sentence of 30 months was appropriate, and that any burden on

resources was not unnecessary or was outweighed by the need to protect the public,

deter the offender and others, and punish Appellant.

{¶46} As set forth in the record and in the trial court’s findings, Appellant has

demonstrated a pattern of violence against women. A long history of domestic

violence and felony sex convictions makes Appellant’s current contention that his

sentence was contrary to law because his offense consisted only of a “smack” ring -17-

even more hollow. The severity of the physical and psychological harm to the victim

is listed as a factor within the determination of whether the offender's conduct is more

serious than conduct normally constituting the offense. See R.C. 2929.12(B)(2).

Even here the court noted that, although the physical harm to the victim in this

instance was not substantial, the psychological impact of being slapped across the

face in the middle of the street along with Appellant’s long history of violence against

women demonstrates the necessity for incarceration. To present to this Court that

Appellant committed only “a single strike or smack” and that the victim “put her hand

on the appellant first, albeit non-violently” demonstrates a willfully myopic view of

Appellant’s long history of violence. (Appellant’s Brf., pp. 19-20.)

{¶47} Thus, this Court does not clearly and convincingly find that Appellant’s

sentence is contrary to law as required by the statute governing the appeal. For the

foregoing reasons, Appellant’s fifth assignment of error is without merit and is

overruled.

{¶48} Based on the foregoing, Appellant’s assignments of error are overruled

and the judgment of the trial court is affirmed.

DeGenaro, J., concurs.

Robb, P.J., concurs.