## Facts

- In September 2001, Eric Knott murdered David and Ruth Malcolm.
- Investigators suspected Eric’s father, Brett Knott, helped destroy or conceal evidence connected to the murders, including disposing of Eric’s bloodstained clothing at Brett’s construction jobsite.
- Brett denied disposing of any clothing when interviewed by law enforcement.
- Brett was charged with obstruction of justice and tampering with evidence based on alleged assistance in concealing/destroying evidence and related conduct during the investigation.
- At Brett’s trial, the State called Eric as a witness.
- The State asked Eric whether he recalled a conversation with Chris Wittkugle at the sheriff’s office. Eric testified that he could not remember the conversation.
- The trial court allowed the State to attempt to refresh Eric’s recollection by using a recording of the conversation.
- The recording was played in the jury’s presence, and it implicated Brett in helping with concealment or destruction of evidence.
- The jury found Brett guilty of obstruction of justice and tampering with evidence.
- The trial court imposed consecutive prison terms but did not make the statutory findings required at the time to support consecutive sentences on the record.

## Issues

1. Did the trial court commit reversible error by allowing the jury to hear a recording that the State claimed was used only to refresh a witness’s recollection?
2. Was trial counsel ineffective for failing to object to the jury hearing the recording?
3. Did the trial court err, or did counsel provide ineffective assistance, by not giving or requesting a co-conspirator testimony instruction under R.C. 2923.01(H)(2) when the defendant was not charged with conspiracy?
4. Were consecutive sentences unlawful because the trial court failed to make the required statutory findings and provide reasons for consecutive terms?

## Decision

- The Fourth District held the trial court erred by allowing the jury to hear the recording when it was used only to refresh Eric’s recollection; the recording should have been played outside the jury’s presence for that limited purpose.
- Because Brett did not object, the court applied plain-error review and concluded the error did not warrant reversal; even without the recording, the State presented ample evidence supporting the convictions.
- The court rejected Brett’s ineffective-assistance claim about the failure to object: counsel should have objected, but Brett failed to show prejudice because the remaining evidence supported the verdicts.
- The court found no error in the absence of a co-conspirator testimony instruction because R.C. 2923.01(H)(2) applies only when the defendant is charged with conspiracy; counsel was not ineffective for failing to seek an instruction that did not apply.
- The court agreed that the trial court failed to make the statutorily required consecutive-sentencing findings and therefore remanded for resentencing.
- Disposition: convictions affirmed; sentence reversed in part and remanded for resentencing.

## Legal Principles

- When a recording (or other material) is used solely to refresh a witness’s recollection under Evid.R. 612, it should be presented to the witness outside the jury’s hearing; otherwise the jury may hear content not admitted as substantive evidence for that purpose.
- Plain error requires more than identifying a mistake; the appellant must show the error affected the outcome. If the record contains sufficient independent evidence of guilt, an evidentiary misstep may be deemed nonprejudicial on plain-error review.
- Ineffective assistance of counsel requires (1) deficient performance and (2) a reasonable probability of a different result absent the deficiency. A failure to object does not justify relief without a showing of prejudice.
- R.C. 2923.01(H)(2) requires a special cautionary instruction regarding co-conspirator testimony only in a case where the defendant is charged with conspiracy; the instruction is not required in a prosecution where conspiracy is not charged.
- Under Ohio’s then-applicable sentencing statutes, consecutive sentences required specific findings on the record (and reasons as required); failure to make those findings required reversal of the consecutive-sentencing order and a remand for resentencing.

## Conclusion

In State v. Knott, 2004-Ohio-5745 (2004), the Fourth District Court of Appeals affirmed Brett Knott’s convictions for obstruction of justice and tampering with evidence, holding that playing a recorded jailhouse conversation to the jury as a memory-refreshing device was error but not plain error and did not support ineffective-assistance relief, while vacating the consecutive sentences and remanding for resentencing because the trial court did not make the required statutory findings for consecutive terms.
