SUPREMECOUR I" 0Rqn^® COUNSEL for APPELLEE, STATE of OHIO

IN THE SUPREME COURT OF OHIO Supreme Court STAT'E OF OHIO Case No. 09-- .® 379 Appellee, On Appeal from the VS. Williams County Court of Appeals, Sixth Appellate District RANDALL D. SNYDER Court of Appeals Appellant. Case No. WM-08-004 MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT RANDALL D. SNYDER WII..T IAM F. KLUGE Atto;^ney Reg. No. 0022433 124 South Metcalf Street Lima, Ohio 45801 (419) 225-5706 Fax No.: (419) 225-6003 COUNSEL FOR APPELLANT, RANDALL D. SNYDER THCsiti'IAS A. THOMPSON, #0068787 Prosos:,Ating Attorney Wiiliains County, Ohio 121(î:vV: High Street Bryan, Uhio 43506 (419) 636-4411 CLFnk OF COIJRT Fax iìo.: (41 9) 636-3919 SUPREMECOUR I" 0rQN^® COUNSEL FOR APPELLEE, STATE OF OHIO eisii . TABLE OF CONTENTS PAGE EXPL'ANATION OF WHY THIS CASE IS OF PUBLIC OR f.:I2EAT GENERAL INTEREST AND INVOLVES A FELONY . .. .1 STA'mEMENT OF CASE AND FACTS .................................................... I ARGNMENT IN SUPPORT OF PROPOSITION OF LAW .........................6 1tit: Proposition of Law I: Trial counsel's dual representation of the 1 Appellant and Co-Appellant without informed written consent violated Rule 1.7 of the Rules of Professional Conduct and resulted in a violation of the Confrontation Clause pursuant '^, to U.S. v. Bruton (1968), 391 U.S. 128, 88 S. Ct. 1620 ..........................6 Proposition of Law II: Dental records which are not self -authenticating pursuant to R.C. 2317.422 are inadmissible under Evid. R. 901 unless authenticated or identified by a witness with knowledge . .. .. .. .. .. .. .. ...8 Proposition of Law III: A conviction must be reversed and the matter remanded for a new trial when, due to the affirmative defense of self- defense, the conviction is not based upon sufficient evidence and is against the manifest weight of the evidence . ...... ...........................11 Proposition of Law IV: The cumulative effect of trial counsel's deficient performance denied'the Appellant the effective assistance of counsel in violation of the Sixth Amendment ........................................13 ,.. COP?"LUSION .. .. .. .... .. .. .. .. .... .. .. .. .. .. .. ... .. ... ... .. .. .. .. .. .. ...15 CERTIFICATE OF SERVICE ............................................................16 APPEN DIX . .. .. .. .. .17 i Appx. Pages Decision and Judgment Entry of the Williams County Court of Appeals (January 9, 2009) . .. .. .. .. ... ..24 Judgment Entry of Sentencing (January 23, 2008) .......................................................................3 Judgment Entry of Conviction (December 17, 2007) . .. ...2 ii EXPLANATION OF WHY THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A FELONY This case presents an issue of public or great general interest, and involves a felony, since only this Court has jurisdiction over the issue of whether an attorney violated the Rules of Professional Conduct by dual representation of co-defendants at a joint trial, witliout obtaining informed written consent for such dual representation. The issue is of great public interest in that the appellate court lacked jurisdiction to determine same, even when raised in the context of voiding or reversing the judgment of the trial court, and therefore this is the only venue for which the Appellant can seek relief. This case also involves a great public interest concerning the admissibility of unauthenticated, improperly identified and non-self-authenticating dental records. Moreover, this case concerns the cumulative effect of trial counsel's deficient perfo.r. nance and whether same rises to the level of a Sixth Amendment violation of inef£ective assistance of counsel. STATEMENT OF CASE AND FACTS In January 2005 Noah Snyder ("Noah"), the Appellant, Randall D. Snyder's ("Randall") son, purchased a seven acre tract of farm land on the corner of County Roact 17 and County Road D in Bryan, Williams County, Ohio. In contemplation of putting in a driveway to access the property, and after some.discussion with his neighbor, Quinn Michael ("Quinn"), concerning the boundary line, Noah had the property surveyed in the spring of 2005. Further, Noah and the Appellant placed wooden stakes on the appropriate corners to mark the 1 boundaries, which evidenced that part of what Quinn thought was his land actually belonged to Noah. In the summer of 2005, Noah had cement and dirt hauled in to constiuct the driveway and it was piled in the back corner of the properties, partially on Quinn's land. Prior to the survey, Quinn had informed Noah that when he was ready to construct the driveway he could pile the dirt and cement on the property, which Quinn mistakenly thought was his. For approxima.tely two years, the pile of dirt remained in the back corner of the properties without any indication from Quinn that it was a prob3em. Iiowever, on Friday, May 25, 2007, while Noah and the Appellant were mowing the property, Appellant found one of the stakes in the yard. When the Appellant retumed the stake to its original location Quinn started rubbing his eyes and statdboohoo hoo, what is the big deal it's just a property stake. In response, the Appefiant told Quinn to leave the stalces alone and mind his business, resulting in f l Quinii becoming irate and telling Noah to get the dirt off his property or he would have someone remove it. Later that night Noah contacted a friend and arranged for him to come over the following day and remove the dirt using Noah's bulldozer. On Saturday, May 26, 2007, Noah arrived home from worlc around noon and while inside with his family heard the bulldozer start up in his barn. Approximately twenFu minutes later, Noah heard the bulldozer as it returned to the barn and therefore, he went outside. When Noah exited his back door he observed Quinn dumping a load of dirt onto his property with a skid steer. u Noah walked back to the area and stood on the dirt pile, resulting in Quinn 2 0 backing up, pointing the skid steer toward him, instructing Noah to move or he would run him over and driving toward Noah. To avoid being hit in the right leg Noah moved to his left, Quinn turned the skid steer around and headed towards his house and Noah picked up a piece of plastic PVC pipe, which was laying aroLmd the pile, and threw it at the skid steer. Noah returned home and telephoned the Appellant for advice, resulting in the Appellant's arrival shortly thereafter and the two of them walking over to Quinn's property. As they walked toward the front of Quinn's house, Quinn emerged from the baekruptly tarned on the skid steer and met Noah and the Appellant right in front of his'house. Upon Noah and the Appellant coming witliin four to six feet of Quinn he jumped off the skid steer, lifted his shirt, pulled out a gun, pointed it at them and stated it's loaded, the safety is off and I will shoot. Upon observing the gun, Noah pushed the gun away, got Quinn in a headlock, or bear hug, forcing him backwards and 'A ppellant grabbed both of Quinn's arms and held the gun up in the air. The three stumbled across the sidewalk and porch steps causing them to fall onto the porch. As Appellant continued holding the gun, Noah struck Quinn's forearms three to four times.trying to get him to release the gun, there was a bang and the window shattered. The Appellant finally pulled the gun out of Quinn's hands, rolled over and stoori iip, holding the gun downwards when Deputy Moser arrived and ordered the Appeilant to drop the gun. Randall turned around to see who it was, recognized the , , Deputy and threw the gun into the bushes. The Deputy ordered Noah and the Appellant to stand up against the wall, while Quinn remained in the sidewalk area. 3 Appellant yelled that Quinn was crawling toward the gun and as Quinn refused to comply with Deputy Moser's orders to get back on the sidewalk, he was handcuffed and placed under investigative detention. Deputy Moser requested that the Appellant assist him in locating the gun, then instructed Noah and Appellant to go stand by their pickup truck while he spoke with Quinn until EMS arrived and attended to him. Upon the airival of Deputy Zimmann, he spoke with Deputy Moser and upon his reqiuest went and spoke with Noah and the Appellant. After Quinn was transported to r. the li^ypital, Deputy Moser spoke with Noah and Appellant, who agreed to drive to the sheriff's department and write out statements. After obtaining said voluntary statements, Deputy Moser telephoned Prosecuting Attorney Thompson who authofized the arrest of Noah and the Appellant for simple assault, criminal trespassing and criminal damaging. Shortly after being taken into custody for the misdemeanor offenses, Noah and the Appellant were released upon posting bond. > ;. A{):i, On May 31, 2007 a complaint was filed in the Bryan Municipal Court for one couiiY, of felonious assault. After waiving a preliminary hearing on June 12, 2007 the matter was bound over to the grand jury. The Appellant was indicted on June 20, 2007 for one count of felonious assaL:;t, a felony of the second degree, in violation of R.C. 2903.11 (A), and one count of vandalism, a felony of the fifth degree, in violation of R.C. 2909.05 (A). An•aignment was had on July 11, 2007 whereby the Appellant was released uponâ personal recognizance bond and to comply with the temporary protection order. A pretrial hearing was scheduled on August 20, 2007 and after same the 4 matter was assigned for jury trial. On December 12, 2007, after a three day trial, the jury acquitted the Appellant of the vandalism charge and returned a guilty verdict on the felonious assault. The trial court revoked the bond and continued the sentencing hearing pending the prepasation of a pre-sentencing investigation.

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