[Cite as State v. Wilcox,

.]

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

STATE OF OHIO, : APPEAL NO. C-220472 TRIAL NO. B-2004192 Plaintiff-Appellee, :

: O P I N I O N. VS. :

QUANTEZ WILCOX, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: August 23, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Presiding Judge.

{¶1} Following a shooting outside the library in downtown Cincinnati,

defendant-appellant Quantez Wilcox was charged with and found guilty of murder,

felonious assault, having weapons under disability, and tampering with evidence. On

appeal, he raises six assignments of error, claiming, among other things, a violation of

his Confrontation Clause rights. Because we agree that Mr. Wilcox’s Confrontation

Clause rights were violated when the trial court allowed a prejudicial video interview

of a nontestifying witness to be played at trial, we reverse the trial court’s judgment

with respect to Mr. Wilcox’s murder conviction (the felonious assault charge and

second murder charge were merged), and we remand this cause for a new trial to be

held in accordance with this opinion and the law. We otherwise affirm the trial court’s

judgment, including the convictions for tampering with evidence and having weapons

under disability.

I.

{¶2} During an August 2020 evening, Mr. Wilcox parked near the public

library in downtown Cincinnati. As he sat in the driver’s seat of his silver Mazda, he

was approached by victim Keshawn Turner—his ex-girlfriend’s new boyfriend. The

two quarreled. As the dispute escalated, Mr. Wilcox fired a single shot, which struck

Mr. Turner in the chest and later killed him. The sole witness to the shooting was

Doniesha Monroe—Mr. Turner’s girlfriend and Mr. Wilcox’s ex-girlfriend.

{¶3} Kenneth Rue was working as a downtown ambassador for 3CDC that

evening. Walking near the downtown library at approximately 8:45 p.m., he heard a

loud bang and then saw people running. He witnessed Mr. Turner fall to the ground

multiple times then pick himself up, and then followed him into an alley where he

2 OHIO FIRST DISTRICT COURT OF APPEALS

collapsed for the final time. Mr. Rue radioed the police to recount what he had seen.

He then knelt beside Mr. Turner to tell him that police were on the way. Mr. Rue did

not see a gun in Mr. Turner’s possession.

{¶4} Another witness, Haneen Maghathe, also heard the gunshot and saw

Mr. Turner and Ms. Monroe run into the alley. She followed the pair into the alley and

recorded the scene with her phone. She described Ms. Monroe as “frantic” and

“scared.” In the recording, Ms. Monroe identified Mr. Wilcox as the shooter. This

video was shown at trial.

{¶5} Officers David Price and Nicholas Casch of the Cincinnati Police

Department were each dispatched to the scene. They both wore body cameras, which

captured the following events. Officer Price spoke with Ms. Monroe about the events

of the evening, and he also talked with Ms. Maghathe. Officer Casch saw Mr. Turner

lying motionless while another officer performed CPR. Two other officers arrived and

began to render first aid services to the victim. They cut off Mr. Turner’s clothing to

find the bullet hole, and as they rolled him over, they found a loaded firearm in a black

holster behind his back. Officer Casch took possession of the 9 mm handgun,

removing the magazine and a round in the chamber before depositing it in the back of

his cruiser.

{¶6} Minutes earlier, a street over, Cincinnati Police Officer Cian McGrath

had just left the Hamilton County Justice Center and was heading west on Ninth Street

when he heard the gunshot. He saw a silver Mazda fly through an intersection at a red

light, and he initiated a traffic stop. Mr. Wilcox pulled over. As Officer McGrath

approached the car, Mr. Wilcox opened the driver’s door with his hands out. He told

Officer McGrath that his brakes had failed, and Officer McGrath noted that he was

3 OHIO FIRST DISTRICT COURT OF APPEALS

sweating and seemed nervous. After hearing on his radio that Mr. Wilcox was

suspected of the shooting, Officer McGrath took him into custody.

{¶7} William Sweet also witnessed a person driving fast just before he was

pulled over. He saw the driver throw something out of his window. Mr. Sweet crossed

the street to investigate, discovering a gun. He picked it up and turned it over to a

police officer. Mr. Wilcox’s DNA was discovered on the gun. Additionally, a firearms

expert determined that the bullet found in Mr. Turner’s back was fired from the gun

that Mr. Wilcox tossed from his vehicle, and a trace evidence examiner from the

Hamilton County Coroner’s Office prepared a report showing that Mr. Wilcox’s hands

and the driver’s side window of his car tested positive for gunshot residue.

{¶8} During his initial interview with Cincinnati Police Homicide Detective

Sandy Sieving, Mr. Wilcox professed his innocence. By the time of trial, however, Mr.

Wilcox admitted to the shooting but insisted that he acted in self-defense. He testified

that he was sensitive to violence, as he had been shot when he was 18 years old and he

had lost a cousin and two friends in shootings. At trial, when describing what

happened the night of the shooting, Mr. Wilcox explained that Ms. Monroe had called

him earlier in the night and asked him to bring her some food. He picked up the food

and drove downtown to the library, where she requested they meet. After he parked,

Ms. Monroe approached his car and he handed her the food. The two chatted for a bit.

At this point, Mr. Turner came up to the car. Mr. Wilcox explained that he had never

met Mr. Turner before and did not know of his relationship with Ms. Monroe. Mr.

Wilcox felt threatened by statements made by Mr. Turner and testified that he saw

him reach for his gun holster. Fearing that Mr. Turner would shoot him, Mr. Wilcox

grabbed his own gun from the passenger seat and shot Mr. Turner. He then drove off

4 OHIO FIRST DISTRICT COURT OF APPEALS

quickly. Soon after he drove off, he threw the gun out the window before Officer

McGrath stopped him. Mr. Wilcox also admitted that he was not initially truthful with

Detective Sieving about what happened because he did not trust the police.

{¶9} Ms. Monroe did not show up to testify at trial, but police body-worn

camera footage from the night of the murder was played before the jury. The footage

included a nearly 10-minute interview between Officer Price and Ms. Monroe during

which she was questioned about the murder.

{¶10} Mr. Wilcox was indicted on two counts of murder, with specifications,

in violation of R.C. 2903.02(A) and (B); two counts of felonious assault, with

specifications, in violation of R.C. 2903.11(A); one count of having weapons while

under disability, in violation of R.C. 2923.13(A)(3); and one count of tampering with

evidence, in violation of R.C. 2921.12(A)(1). The state dismissed count 4 for felonious

assault immediately before trial. Mr. Wilcox testified at trial, admitting to shooting

Mr. Turner, having a weapon while under disability, and tampering with evidence, but

proceeded to argue that he acted in self-defense. Unpersuaded by his defense, the jury

found Mr. Wilcox guilty of all five remaining charges.

{¶11} The trial court sentenced Mr. Wilcox to an indefinite term of 15 years to

life for count 1 (murder), plus 5 years on the firearm specification, to be served

consecutively. The second murder count and the felonious assault count were merged

with count 1. For counts 5 (weapons under disability) and 6 (tampering with

evidence), Mr. Wilcox received 36 months each, to be served consecutively to both

count 1 and each other. The aggregate sentence totaled 26 years to life in the Ohio

Department of Corrections. Mr. Wilcox now appeals.

5 OHIO FIRST DISTRICT COURT OF APPEALS

II.

{¶12} In his first assignment of error, Mr. Wilcox maintains that the trial court

erred when it allowed into evidence certain statements made by Ms. Monroe, who did

not testify at trial. He takes issue with two videos that were played at trial—the video

recorded by Ms. Maghathe and Officer Price’s body-worn camera footage.

{¶13} “[T]he Confrontation Clause prohibits ‘testimonial statements of a

witness who did not appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.’ ” State v. Smith, 2019-

Ohio-3257,

, ¶ 10 (1st Dist.), quoting Crawford v. Washington,

,

,

(2004), paragraph (a) of the syllabus. The

clause exists “ ‘to ensure the reliability of the evidence against a criminal defendant by

subjecting it to rigorous testing in the context of an adversary proceeding before the

trier of fact.’ ”

quoting State v. Madrigal,

,

(2000). And “we review objections to evidence based on the Confrontation Clause de

novo.”

citing State v. Thomas,

,

, ¶ 14 (9th Dist.),

and State v. Burton,

,

, ¶ 16 (4th Dist.).

{¶14} In Crawford, the United States Supreme Court established a framework

for determining whether the Confrontation Clause bars the admission of evidence.

. The Court distinguished between testimonial and nontestimonial

statements, explaining that nontestimonial statements do not implicate the

Confrontation Clause while testimonial statements by a nontestifying witness are

inadmissible unless the witness is unavailable and the defendant had a prior

opportunity to cross-examine her.

At minimum, testimonial statements include

6 OHIO FIRST DISTRICT COURT OF APPEALS

“prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and

to police interrogations.”

.

{¶15} We begin by reviewing the admissibility of the video recorded by Ms.

Maghathe. This clip is short—just 15 seconds in length—and features Ms. Monroe

crying and screaming as a police officer attempts to resuscitate Mr. Turner. Ms.

Maghathe asks, “Who did this?” and Ms. Monroe replies, “Quantez Wilcox.” Then,

when questioned by Ms. Maghathe, “Are they still here?” (presumably, in reference to

Mr. Wilcox), Ms. Monroe replies, “No.”

{¶16} Ms. Monroe’s informal and emotional statements are not testimonial in

nature. They were not made in response to police questioning, see Ohio v. Clark,

,

,

(2015), nor were they made during any

formal proceeding or questioning. See State v. Hamm, 1st Dist. Hamilton Nos. C-

160230 and C-160231,

. Her statements were “volunteered

under circumstances where there was no time for the speaker to reflect and falsify * *

* her account of [the] event.”

It cannot be said that Ms. Monroe was “attempting

to create an out-of-court substitute for trial testimony.” See State v. James, 7th Dist.

Mahoning No. 18 MA 0064,

. Therefore, these statements are

nontestimonial and do not implicate the Confrontation Clause. The trial court did not

err in admitting the video containing these statements into evidence.

{¶17} We reach a different conclusion in our analysis of the admissibility of

Officer Price’s body-worn camera footage, which features a lengthy police interview of

Ms. Monroe. Again, Mr. Wilcox argues that the admission of this video violated his

Confrontation Clause rights because Ms. Monroe’s statements contained therein were

7 OHIO FIRST DISTRICT COURT OF APPEALS

testimonial, and she did not testify at trial, nor did he have a prior opportunity to cross-

examine her.

{¶18} In its appellate brief, the state does not substantively address the

argument, beyond making a general allegation that Ms. Monroe’s statements fell

within certain categories of admissible hearsay statements. It seems to acknowledge

that the statements were testimonial in nature, but it does not clarify its position. And

it fails to reconcile the distinction between admissibility for hearsay purposes and

constitutional requirements under the Confrontation Clause.

{¶19} The Supreme Court has held that statements made in response to police

questioning “are testimonial when the circumstances objectively indicate that there is

no * * * ongoing emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution.”

Davis v. Washington,

,

,

(2006). This

court elaborated on this point in Smith,

,

, at ¶ 12-13,

explaining that police body-worn camera footage of a nontestifying witness included

testimonial statements that were offered in the presence of a police officer—

presumably in his protection—and the witness was no longer in danger. In Smith,

there was no ongoing emergency or threat of harm, and the primary purpose of the

discussion between the officer and the witness was to ascertain what had happened.

Id. at ¶ 13.

{¶20} Unlike the video filmed by Ms. Maghathe, the discussion with Ms.

Monroe captured on Officer Price’s body-worn camera footage lasts for over ten

minutes and involves extensive police questioning. While the video does contain

several statements in response to police questions that could be viewed as addressing

8 OHIO FIRST DISTRICT COURT OF APPEALS

an ongoing emergency—including Ms. Monroe’s answers to questions regarding who

the perpetrator was, what car he was driving, and which direction he drove off after

the shooting—the main thrust of the video implicates the Confrontation Clause.

Officer Price and Ms. Monroe were notified about halfway through the video that Mr.

Wilcox has been apprehended, ending any ongoing emergency.

{¶21} But Officer Price continued asking Ms. Monroe questions about the

offense, including, “So what was the other guy [Mr. Wilcox] mad about?” Ms. Monroe

embarked on a narration of the events that led to the shooting. She implicated Mr.

Wilcox in a variety of unsavory actions, including stalking her and breaking into her

car, and repeatedly indicated that she kept reporting him for these actions. While

making these statements, Ms. Monroe was clearly distraught—crying and her voice

wrought with emotion. Moreover, she shared with the officer that she is pregnant with

Mr. Turner’s child, and another police officer expressed concerns that her emotional

state might result in harm to the fetus. These statements were made in response to

police questioning, see Clark,

,

,

, and at

a point when the circumstances objectively indicated that there was no longer an

ongoing emergency. See

. We presume, then, that the primary purpose

of Officer Price’s questioning of Ms. Monroe was to gather facts regarding a past crime

for later prosecution. See Smith at ¶ 13.

{¶22} Also during the video, Ms. Monroe shared an account of the shooting

that differed drastically from the account Mr. Wilcox presented at trial. She explained

that she and Mr. Wilcox had been in an ongoing dispute due to him stalking her and

breaking her car windows, and that he shot out of his car window as she and Mr.

Turner were just “walking past.”

9 OHIO FIRST DISTRICT COURT OF APPEALS

{¶23} Having determined that the statements contained in Officer Price’s

body-worn camera footage were testimonial in nature, they could only be admissible

if Ms. Monroe were present and available for cross-examination or if Mr. Wilcox had

a prior opportunity to cross-examine her. See Crawford,

,

,

. As neither of these circumstances occurred, the admission of her

police interview violated the requirements of the Confrontation Clause. We proceed

to review this Confrontation Clause violation for harmless error. See Smith, 2019-

Ohio-3257,

, at ¶ 14; State v. Beasley,

, 2018-Ohio-

493,

(“Confrontation Clause claims are * * * subject to

harmless-error analysis.”).

{¶24} Crim.R. 52(A) governs the harmless error standard in the context of a

criminal case: “Under the harmless-error standard of review, the state bears the

burden of demonstrating that the error did not affect the substantial rights of the

defendant.” State v. Smith,

,

, ¶ 103 (8th Dist.), citing

State v. Graham,

,

,

. Mr.

Wilcox asserts that Ms. Monroe’s statements in Officer Price’s body-worn camera

video substantially prejudiced him by undermining his self-defense claim. The state

did not address the issue, other than to summarily conclude (without analysis) that

any error was harmless.

{¶25} The Ohio Supreme Court established a three-part test for determining

whether an error in the admission of evidence affected the substantial rights of the

defendant, thereby necessitating a new trial, or whether the admission of that evidence

constituted harmless error:

10 OHIO FIRST DISTRICT COURT OF APPEALS

First, it must be determined whether the defendant was prejudiced by

the error, i.e., whether the error had an impact on the verdict. Second,

it must be determined whether the error was not harmless beyond a

reasonable doubt. Lastly, once the prejudicial evidence is excised, the

remaining evidence is weighed to determine whether it establishes the

defendant’s guilt beyond a reasonable doubt.

(Citations omitted.) State v. Harris,

,

,

, citing State v. Morris,

,

,

.

Applying this analysis to the evidence in this case, we find that the erroneous

admission of Ms. Monroe’s statements to Officer Price regarding the shooting was not

harmless error and affected Mr. Wilcox’s substantial rights with respect to his murder

conviction.

{¶26} First, Mr. Wilcox suffered prejudice by virtue of the absence of other

witnesses to the shooting. Because the only surviving persons with personal

knowledge of the events giving rise to the murder charge were himself and Ms.

Monroe, we can reasonably infer that her statements carried particular weight with

the jury. This is especially true in light of the fact that “ ‘[s]elf-defense claims are

generally an issue of credibility.’ ” State v. Grayson, 8th Dist. Cuyahoga No. 110388,

, quoting State v. Walker, 8th Dist. Cuyahoga No. 109328, 2021-

Ohio-2037, ¶ 13. Ms. Monroe’s statements undermined Mr. Wilcox’s credibility, thus

tilting the scale away from the jury finding that he acted in self-defense. And many of

Ms. Monroe’s statements, particularly those expressing her distress at the events and

those regarding her pregnancy, painted her as a sympathetic witness, further chipping

away at Mr. Wilcox’s defense by prejudicing the jury against him. Therefore, Mr.

11 OHIO FIRST DISTRICT COURT OF APPEALS

Wilcox was prejudiced by the erroneous admission of Officer Price’s body-worn

camera footage containing statements that undermined his self-defense claim. See

.

{¶27} Second, to determine whether error in the admission of evidence is

harmless beyond a reasonable doubt, we consider whether “ ‘there is [no] reasonable

possibility that the improperly admitted evidence contributed to the conviction.’ ”

Smith,

,

, at ¶ 106, quoting State v. McKelton,

,

,

. Ohio’s recently amended self-

defense law requires that, “if there is evidence presented at trial that tends to support

that the defendant used force against another in self-defense or in defense of another,

the state must prove beyond a reasonable doubt that the defendant did not use the

force in self-defense or defense of another.” State v. Smith, 1st Dist. Hamilton No. C-

190507,

, citing R.C. 2901.05(B)(1). “Once the initial showing

is made, the burden of persuasion requires the state to disprove at least one of the

elements of self-defense * * * beyond a reasonable doubt.” Id. at ¶ 49. Specifically, to

carry its burden of disproving self-defense involving deadly force, the state must

“[prove] beyond a reasonable doubt that the defendant (1) was at fault in creating the

situation giving rise to the affray; or (2) did not have a bona fide belief that [he] was in

imminent danger of death or great bodily harm for which the use of deadly force was

[his] only means of escape.” Id. at ¶ 50; see State v. Mitchell, 1st Dist. Hamilton No.

C-220471,

, ¶ 17, citing R.C. 2901.09(B) (explaining that a person no

longer has a duty to retreat before using self-defense if that person is in a place in

which he or she has a lawful right to be).

12 OHIO FIRST DISTRICT COURT OF APPEALS

{¶28} In the video, Ms. Monroe’s description of the events of the night differs

critically from Mr. Wilcox’s—she states that he drove past her and Mr. Turner and shot

out of his car window at the pair, hitting Mr. Turner. She mentions nothing of the

interaction that Mr. Wilcox claims occurred between him and Mr. Turner that led to

his belief that he was threatened. Considering this, in addition to the above prejudice

analysis, Ms. Monroe’s statements in Officer Price’s body-worn camera video surely

prejudiced the jury against Mr. Wilcox, making the jurors less likely to believe that he

acted in self-defense. Therefore, there exists a reasonable possibility that the

improperly admitted evidence contributed to his murder conviction. See Smith, 2023-

Ohio-603,

, at ¶ 106.

{¶29} Finally, as to the third prong of the harmless error analysis, the state’s

case is much weaker without the offending evidence. Again, Mr. Wilcox’s testimony

describing that he saw Mr. Turner reach for his gun and felt threatened, in addition to

the police finding a gun on Mr. Turner, certainly tended to support that he resorted to

the use of deadly force in self-defense. The state was therefore required to disprove

self-defense beyond a reasonable doubt. And in the absence of Ms. Monroe’s

statements casting doubt on Mr. Wilcox’s character, very little evidence presented by

the state tends to prove that he did not act in self-defense. Therefore, her statements

could easily have tipped the scales in favor of a conviction.

{¶30} We sustain Mr. Wilcox’s first assignment of error in part, holding that

the trial court erred in allowing Officer Price’s body-worn camera footage to be shown

at trial. But we overrule this assignment of error insofar as it relates to the admission

of the video recorded by Ms. Maghathe. Mr. Wilcox is entitled to a new trial on the

murder charge at which the jury can reach a decision without considering the

13 OHIO FIRST DISTRICT COURT OF APPEALS

improper and prejudicial statements made by Ms. Monroe in Officer Price’s body-

worn camera footage.

{¶31} But the new trial only implicates the murder charge (we have no

jurisdiction to address his felonious assault or second murder counts because they

were merged with the first count for murder). Self-defense is available as a defense to

a defendant’s intentional use of force, see Grayson, 8th Dist. Cuyahoga No. 110388,

, and neither the offense of having weapons while under

disability nor the offense of tampering with evidence involves a use of force. See R.C.

2923.13(A)(3); R.C. 2921.12(A)(1). Therefore, Mr. Wilcox’s self-defense claim would

only serve as a defense to the murder charge, not to his convictions for tampering with

evidence or having weapons while under disability.

{¶32} We proceed to address Mr. Wilcox’s remaining assignments of error

insofar as they relate to his convictions for having weapons under disability and

tampering with evidence, as the improper evidence does not bear on these convictions.

Our resolution of this assignment of error renders Mr. Wilcox’s remaining challenges

to his murder conviction moot, see State v. Parrish, 1st Dist. Hamilton No. C-190379,

, citing App.R. 12(A)(1)(c), except for his second assignment of

error—which we explain in further detail below.

III.

{¶33} In his second assignment and third assignments of error—which he

argues together—Mr. Wilcox claims that his conviction for murder was based on

insufficient evidence and against the manifest weight of the evidence. Sustaining the

first assignment of error renders his manifest weight challenge to these convictions

moot. See Parrish at ¶ 16, citing App.R. 12(A)(1)(c). But we are still required to 14 OHIO FIRST DISTRICT COURT OF APPEALS

address Mr. Wilcox’s second assignment of error challenging the sufficiency of the

evidence underpinning his murder conviction, because “[a]n assignment of error

challenging the sufficiency of the evidence is potentially dispositive of a defendant’s

conviction and may not be rendered moot by a remand on any other assignment of

error.” State v. Gideon,

,

,

.

{¶34} To determine the sufficiency of the evidence to support a criminal

conviction, we consider whether, after viewing the evidence in the light most favorable

to the state, any reasonable trier of fact could have found all the essential elements of

the offense proven beyond a reasonable doubt. State v. MacDonald, 1st Dist.

Hamilton No. C-180310,

, quoting State v. Martin,

,

(1st Dist. 1983). We review sufficiency determinations

de novo, State v. Dent,

,

,

,

and we must not weigh the evidence. MacDonald at ¶ 12.

{¶35} First, Mr. Wilcox argues that, because the evidence shows that he acted

in self-defense, there exists insufficient evidence to convict on the murder count.

However, this issue is one of manifest weight so we decline to review it for sufficiency.

See State v. Messenger, Slip Opinion No.

(“The state’s new

burden of disproving the defendant’s self-defense claim beyond a reasonable doubt is

subject to a manifest-weight review on appeal, and the [appellate court] correctly

declined to review the state’s rebuttal of self-defense for sufficiency of the evidence.”).

{¶36} Second, Mr. Wilcox insists that the state failed to introduce sufficient

evidence for the factfinder to reasonably conclude that the location of the offense was

in Hamilton County, Ohio.

15 OHIO FIRST DISTRICT COURT OF APPEALS

{¶37} “ ‘Under Article I, Section 10 [of the Ohio Constitution] and R.C.

2901.12, evidence of proper venue must be presented in order to sustain a conviction

for an offense.’ ” State v. Foreman,

,

,

, quoting State v. Hampton,

,

,

. “[V]enue must be proved beyond a reasonable doubt in a criminal case.”

State v. Robinson, 1st Dist. Hamilton No. C-180153,

, quoting

State v. Gardner,

,

(1st Dist. 1987).

{¶38} Here, Officers Price and Casch, Mr. Sweet, and Detective Sieving all

testified that the crime scene was in Hamilton County, Ohio. Each of them had

personal knowledge of the location of the crime scene. Because a civilian witness, a

Cincinnati Police homicide detective, and multiple police officers who responded to

the scene of the crime—all with personal knowledge of the location of the crime scene—

testified that the offense occurred in Hamilton County, Ohio, any reasonable trier of

fact could have found that venue was proven beyond a reasonable doubt.

{¶39} We overrule Mr. Wilcox’s second assignment of error, and his third

assignment of error is moot and we decline to address it.

IV.

{¶40} In his fourth assignment of error, Mr. Wilcox insists that he was denied

his right to the effective assistance of counsel. He specifically takes issue with trial

counsel’s failure to cross-examine a number of witnesses at trial.

{¶41} “ ‘In criminal proceedings, a defendant has the right to effective

assistance of counsel under both the United States and Ohio Constitutions.’ ” State v.

Solorio, 1st Dist. Hamilton No. C-210526,

, quoting State v.

Evick, 12th Dist. Clinton No. CA2019-05-010,

, citing the Sixth

16 OHIO FIRST DISTRICT COURT OF APPEALS

Amendment to the United States Constitution, and Article I, Section 10, Ohio

Constitution. To prevail on an ineffective assistance of counsel claim, the defendant

must demonstrate that (1) “counsel’s performance was deficient,” and (2) “the

deficient performance prejudiced the defense.” Strickland v. Washington,

,

,

(1984). To show prejudice, a defendant

“must prove that there exists a reasonable probability that, were it not for counsel’s

errors, the result of the trial would have been different.” State v. Bradley,

,

(1989).

{¶42} On the record before us, it cannot be said that trial counsel’s failure to

cross-examine the identified witnesses resulted in prejudice to Mr. Wilcox with respect

to his weapons under disability and tampering with evidence charges. While

testifying, Mr. Wilcox admitted to having weapons under disability and to tampering

with evidence. These charges almost certainly resulted in convictions due to Mr.

Wilcox’s admission of guilt, so there does not exist a reasonable probability cross-

examining certain witnesses would have changed the outcome of the trial with respect

to these two convictions. Because a defendant must prove both deficient performance

and prejudice in order to prevail on an ineffective assistance claim, see

, and Mr. Wilcox cannot show prejudice, there is no need to consider whether trial

counsel’s performance was deficient. We overrule his fourth assignment of error.

V.

{¶43} In his fifth assignment of error, Mr. Wilcox argues that the trial court

abused its discretion when it refused to include certain requested jury instructions on

self-defense. This assignment of error relates only to his murder conviction, so it is

moot in light of our resolution of the first assignment of error. See App.R. 12(A)(1)(c).

17 OHIO FIRST DISTRICT COURT OF APPEALS

VI.

{¶44} In his sixth and final assignment of error, Mr. Wilcox challenges the

length of his sentence. He argues that, based on the record before it, the trial court

should have made his sentences for counts 5 and 6—for having weapons under

disability and tampering with evidence, respectively—concurrent to his murder

sentence.

{¶45} Because our resolution of the first assignment of error reverses Mr.

Wilcox’s murder conviction and sentence and orders a new trial on that charge, there

no longer presently exists a sentence on the murder charge to which Mr. Wilcox’s

tampering with evidence and weapons under disability sentences could run

concurrently. This issue is therefore moot. See App.R. 12(A)(1)(c).

* * *

{¶46} In light of the foregoing analysis, we sustain Mr. Wilcox’s first

assignment of error in part. We reverse the trial court’s judgment in part and remand

this cause for a new trial on the murder charge, consistent with this opinion and the

law. We otherwise affirm the trial court’s judgment, overruling his fourth assignment

of error with respect to Mr. Wilcox’s convictions for having weapons under disability

and tampering with evidence. We also overrule his second assignment of error, and

his third, fifth, and sixth assignments of error are moot.

Judgment accordingly. KINSLEY, J., concurs. WINKLER, J., concurring in part and dissenting in part.

WINKLER, J., concurring in part and dissenting in part.

18 OHIO FIRST DISTRICT COURT OF APPEALS

{¶47} I respectfully dissent from the majority’s holding that Monroe’s

statements captured by Officer Price’s body-worn camera were testimonial, and that

therefore, their admission into evidence violated Wilcox’s right to confront the

witnesses against him. I am convinced that Monroe’s statements were nontestimonial

and were admissible into evidence under the excited-utterance exception to the

hearsay rule.

{¶48} The Sixth Amendment to the United States Constitution states, “In all

criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the

witnesses against him.” In Crawford v. Washington,

,

,

(2004), the United States Supreme Court held that the Confrontation

Clause bars “testimonial statements of a witness who did not appear at trial unless he

was unavailable to testify, and the defendant had a prior opportunity for cross-

examination.”

.

{¶49} The Court stated in Crawford that the “use of ex parte examinations as

evidence against the accused” is the principal evil the clause was meant to remedy.

State v. Robinson, 1st Dist. Hamilton No. C-060434,

, quoting

. It distinguished between testimonial and nontestimonial hearsay and

held that only testimonial statements implicate the Confrontation Clause.

; State v. Stahl,

,

,

, ¶ 15-16.

{¶50} The right to confrontation does not extend to nontestimonial hearsay

because that form of hearsay does not implicate the “Sixth Amendment’s core

concerns.”

; State v. Lewis, 1st Dist. Hamilton Nos. C-050989 and C-

060010,

. “Where nontestimonial hearsay is at issue, it is wholly

consistent with the Framers’ design to afford States flexibility in their development of

19 OHIO FIRST DISTRICT COURT OF APPEALS

hearsay law * * *,” or to adopt an “approach that exempt[s] such statements from

Confrontation Clause scrutiny altogether.”

.

{¶51} I agree with the majority that Monroe’s statements in the cell phone

video taken by Maghathe were nontestimonial. They were admissible as excited

utterances under Evid.R. 803(B)(2). It provides, “The following are not excluded by

the hearsay rule, even though the declarant is available as a witness: * * * [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.”

{¶52} Monroe was reacting to the startling effect of her boyfriend being shot

minutes earlier by Wilcox. Maghathe described her as “frantic and scared.” Officer

Price described her as hysterical, crying and beating her chest, all of which is

confirmed by the video. Monroe’s statements were volunteered under circumstances

where there was no time to reflect and falsify her account of the event. See State v.

Goshade, 1st Dist. Hamilton No. C-120586,

; State v.

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

, ¶ 26-29.

{¶53} Similarly, I would hold that Monroe’s statements to Officer Price

minutes after the shooting were nontestimonial. In Crawford, the Supreme Court

declined to “spell out a comprehensive definition” of “testimonial.” It stated that the

term “applies at a minimum” to prior testimony at a preliminary hearing, before a

grand jury, or at a former trial, and to police interrogations. Stahl,

,

,

, at ¶ 15; State v. Robinson, 1st Dist. Hamilton No.

C-060434,

. Police interrogations “fall squarely within” the class

of statements the Confrontation Clause seeks to exclude.” Crawford,

,

,

; Stahl at ¶ 17. Nevertheless, the Court made clear that

20 OHIO FIRST DISTRICT COURT OF APPEALS

it was using the term “interrogation” in “its colloquial, rather than any technical legal

sense.” Police interrogation could take many forms and not all would result in

testimonial statements. Davis v. Washington,

,

,

(2006); State v. Nix, 1st Dist. Hamilton No. C-030696,

,

¶ 74.

{¶54} In the context of excited utterances made to police officers, the United

States Supreme Court has held that the key to determining whether statements are

testimonial is whether the questioning by police or a police counterpart was seeking

information needed to respond to a present emergency or whether it was seeking

information about past events as part of the investigation of a crime.

;

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

, at ¶ 35.

{¶55} It stated:

Statements are nontestimonial when made in the course of police

interrogation under circumstances objectively indicating that the

primary purpose of the interrogation is to enable police assistance to

meet an ongoing emergency. They are testimonial when the

circumstances objectively indicate that there is no such ongoing

emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal

prosecution.

.

{¶56} In assessing whether a statement is testimonial, the court must

“objectively evaluate the circumstances in which the encounter occur[red] and the

statements and actions of the parties.” State v. Jones,

, 2012-Ohio-

21 OHIO FIRST DISTRICT COURT OF APPEALS

5677,

, quoting Michigan v. Bryant,

,

,

(2011). The focus is not on the subjective or actual purpose or

intent of the interrogator or the declarant, but on “the purpose that reasonable

participants would have had under the same circumstances.”

; Goshade,

1st Dist. Hamilton No. C-120586,

. The focus must be on the

parties at the time of the interrogation and not based on hindsight.

;

Goshade at ¶ 15. Whether an emergency existed is “a highly context-dependent

inquiry.”

.

{¶57} Through most of the approximately ten minute video captured by

Officer Price’s body worn camera, Monroe was shaking and crying and clutching her

chest. The scene was chaotic. Another police officer seemingly told several loud

bystanders to get back. Another bystander attempted to comfort Monroe. Paramedics

had arrived and were tending to Turner’s injuries. CPR was being performed on

Turner, who appears to be in extremis a few feet from Monroe. Emergency personnel

are seen walking past Monroe carrying a gurney. These circumstances did not, as the

majority states, indicate that “there was no longer an ongoing emergency.”

{¶58} In response to Officer Price’s questions, Monroe identified Wilcox as the

shooter, stated his age, and described his clothing and the car he was driving. After

six minutes, Officer Price indicates that they have the suspect “maybe.” He asked

Monroe for her name and address and other personal information. Next, he asked

her what “the other guy” was so mad about. Then Monroe began to talk about her

former relationship with Wilcox. She was speaking quickly, and the information

seemed to just spill out. At that time, she again began audibly sobbing. A female

officer approached Monroe, asked her if she was alright and tried to comfort her. She

22 OHIO FIRST DISTRICT COURT OF APPEALS

asked Monroe if she had any “kids,” and Monroe stated that she was pregnant. The

female officer told her that she needed to try and calm down. Subsequently, Monroe

and the female officer walked out of the camera range. Officer Price then asked,

“Didn’t they say they had him in custody, or is that someone else?” A voice on the

radio confirmed that they did.

{¶59} Officer Price’s interview of Monroe was not the sort of “evil” the

Confrontation Clause was designed to prevent. The situation was fluid, and the police

were responding to an ongoing emergency. The questioning was not a structured

police interview. It was informal, and occurred just minutes after the shooting, as

opposed to hours. See State v. Smith,

,

, ¶ 12 (1st Dist.)

(startling event occurred hours before police questioning). Contrary to the majority’s

assertion, Officer Price was not sure that the suspect had been apprehended. His

questions were not leading, and he sought to discover what had happened and why, so

as to appropriately respond to an ongoing emergency, not to gather facts for a later

prosecution. Under the totality of the circumstances, Monroe’s statements in the

body-camera video were nontestimonial. The majority’s interpretation of testimonial

would render testimonial anything said to a police officer involved in investigating a

crime and render Evid. R. 803(2) meaningless when police officers are involved. See

Nix, 1st Dist. Hamilton No. C-030696,

, at ¶ 77.

{¶60} Wilcox did not specifically argue below or in his brief that Monroe’s

statements were testimonial. He contends that they lacked adequate indicia of

reliability. In Crawford, the Supreme Court overruled in part its previous decision in

Ohio v. Roberts,

,

,

(1980), which had

permitted the admission of hearsay statements made by unavailable witnesses against

23 OHIO FIRST DISTRICT COURT OF APPEALS

criminal defendants if the statements bore “adequate indicia of reliability.” Crawford,

,

,

; Lewis, 1st Dist. Hamilton Nos. C-

050989 and C-060010,

. Shortly after Crawford was decided,

this court stated, “Crawford does not appear to affect the continuing viability of

Roberts with respect to nontestimonial hearsay.” Nix at ¶ 73, fn. 9.

{¶61} Under Roberts, an out-of-court statement had adequate indicia of

reliability if it either fell “within a firmly rooted hearsay exception” or “exhibited

particular guarantees of trustworthiness.”

. The excited-utterance

exception has been found to be a firmly rooted hearsay exception. See White v. Illinois,

,

,

(1992), fn. 8; State v. Jordan, 8th

Dist. Cuyahoga No. 70783,

, 15-18 (Nov. 13, 1997); State v.

Stapleton, 2d Dist. Montgomery No. 13579,

(June

22, 1994); State v. Barton,

,

(1st

Dist. 1991).

{¶62} Monroe’s statements in the body-camera video clearly fell within the

hearsay exception for excited utterances. Her demeanor depicted in the video

demonstrates that she was still under the influence of the startling event, having

observed her boyfriend being shot minutes earlier. See State v. Hamm, 1st Dist.

Hamilton Nos. C-16230 and C-16231,

; Goshade, 1st Dist.

Hamilton No. C-120586,

. The fact that she was responding to

Officer Price’s questions did not prelude the admission of her statements as excited

utterances. The admission of statements as excited utterances is not precluded by

questioning that (1) is not coercive or leading, (2) facilitates the declarant’s expression

of what is already the natural focus of the declarant’s thoughts, and (3) does not

24 OHIO FIRST DISTRICT COURT OF APPEALS

destroy “the domination of the nervous excitement over the declarant’s reflective

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

, ¶ 28,

quoting State v. Leonard,

,

,

, ¶ 95.

Officer Price’s questioning met these requirements.

{¶63} Even if the admission of Monroe’s statements was error, a constitutional

violation can be harmless error if it did not, beyond a reasonable doubt, contribute to

the conviction. State v. Matthews, 1st Dist. Hamilton Nos. C-060669 and C-060092,

; Robinson, 1st Dist. Hamilton No. C-060434,

. The majority asserts that the state’s case was “weaker without the offending

statements.” I disagree.

{¶64} Shortly after the gunshot was heard, Wilcox’s car appeared on a video

surveillance camera speeding away from the scene. He threw away the gun before

Officer McGrath saw him “flying through the intersection against the red light.” After

he stopped Wilcox’s car, Wilcox was “sweaty” and “nervous.” He claimed that he had

been in northern Kentucky, not near the library, and that his brakes had failed. When

Detective Sieving interviewed him, he again lied to the police about his whereabouts.

It was only after he had been indicted that he claimed the shooting was in self-defense.

{¶65} At trial, Wilcox testified that he believed that when Turner leaned back

and put his hand on the left side where Turner’s gun holster was located Turner was

going to pull the gun out of his holster, so Wilcox grabbed his own gun and shot

Turner. This claim was contradicted by the video showing that when paramedics

rolled Turner over, his gun holster was tucked in his pants in the middle of his back.

{¶66} The majority’s contention that Monroe’s statements affected the jury is

purely speculative. Under the circumstances, I would hold that the admission of

25 OHIO FIRST DISTRICT COURT OF APPEALS

Monroe’s statements in the body camera video did not contribute to Wilcox’s

conviction, and therefore, any error was harmless.

{¶67} In sum, I would hold that Monroe’s statements to Officer Price in the

officer’s body-camera video were nontestimonial and were properly admitted into

evidence as excited utterances. Accordingly, I would overrule Wilcox’s first

assignment of error. I would also overrule his remaining assignments of error and

affirm his convictions.

Please note:

The court has recorded its entry on the date of the release of this opinion.

26