State v. Wright , 2015 Ohio 3118 ( 2015 )

[Cite as State v. Wright, 2015-Ohio-3118.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, :
: Case No. 14CA3457
v. :
: DECISION AND
JEREMY A. WRIGHT, : JUDGMENT ENTRY
:
Defendant-Appellant. : RELEASED 07/31/2015
APPEARANCES:
Timothy Young, Ohio Public Defender, and Valerie Kunze, Assistant Ohio Public Defender,
Columbus, Ohio, for Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Cynthia G. Schumaker, Assistant
Ross County Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
Hoover, P.J.
{¶ 1} Defendant-appellant, Jeremy A. Wright (“Wright”), appeals his conviction from a
bench trial in the Ross County Common Pleas Court. The trial court found him guilty of the
offense of domestic violence, a felony of the third degree in violation of R.C. 2919.25. On
appeal, Wright contends that (1) he received ineffective assistance of counsel; (2) his conviction
was not supported by sufficient evidence; and (3) his conviction was against the manifest weight
of the evidence. We find that Wright did not receive ineffective assistance of counsel; therefore,
Wright's first assignment of error is overruled. We also find that Wright’s conviction was
supported by sufficient evidence and was not against the manifest weight of the evidence. As a
result, Wright's second and third assignments of error are overruled. Accordingly, we affirm the
judgment of the trial court.
Ross App. No. 14CA3457 2
I. FACTS
{¶ 2} In June 2014, the Ross County Grand Jury indicted Wright on one count of
domestic violence, a violation of R.C. 2919.25, a third degree felony. The indictment arose from
an incident that occurred on November 3, 2013, between Wright and Tiffany Dearth (“Dearth”).
{¶ 3} Wright pleaded not guilty to the charge and later waived his right to a jury trial.
Wright’s case was tried to the bench on August 14, 2014. At trial, the State called two witnesses,
Dearth and officer Michael Short. The defense called Wright to testify on his own behalf.
{¶ 4} Dearth testified that she had known Wright since May 2013 and started dating him
in June 2013. During the summer of 2013, beginning in June or July, Dearth visited Wright’s
grandmother’s residence at an assisted living facility1 on the east side of Columbus, Ohio. Dearth
had visited the facility at least five times. While she was at the facility, she observed signs that
read “assisted living” and she observed nurses at the facility. Dearth stated that Wright did not
have a bedroom at his grandmother’s residence because “there’s only one bedroom for his
grandma because nobody else can live there.” Dearth did say that she might have seen Wright’s
coat and a pair of his jeans at his grandmother’s residence.
{¶ 5} According to Dearth, on August 25, 2013, Dearth and Wright moved into a trailer
in Londonderry, Ohio; and they lived at the trailer until October 29, 2013. When questioned
about her living arrangements with Wright, Dearth stated that they were not just roommates, but
were boyfriend and girlfriend and engaged in sexual relations during the time they lived together.
According to Dearth, she signed a rental agreement2 for the Londonderry property. Dearth
1
Dearth at first testified that the name of the assisted living facility where Wright’s grandmother lived was “The
Woods at Parkside”; but on rebuttal, Dearth testified that the name of the facility was actually “Woodlands at
Eastland.”
2
The State attempted to elicit testimony from Dearth regarding the rental agreement that purportedly listed both
names (Dearth and Wright) for persons who would be residing at the residence; however, the State had apparently
not disclosed the document to Wright until the morning of the trial. Therefore, upon objection of Wright’s attorney,
the trial court refused to allow the State to introduce the document. However, the trial court did allow Dearth to
Ross App. No. 14CA3457 3
conveyed her intentions to the landlord that she and Wright would be residing in the trailer.
Dearth contended that Wright slept at the residence every night and kept his clothes, shoes, and
personal belongings at the residence. Dearth added that Wright kept his body wash and razor in
the bathroom. As for contributions to the household, Dearth stated that Wright bought a sectional
couch for the living room3; that he would obtain food for the two of them by using his food card
or “EBT food stamp”; and that he did household duties like cooking and cleaning.
{¶ 6} Dearth further testified that she worked at Granny’s Pizza, which was right beside
where she and Wright lived. Dearth explained that only one set of keys had been issued to them.
This was because they only needed one set since Wright was not employed; and he mostly stayed
at the residence. Dearth also testified that she had a vehicle and that she and Wright shared the
vehicle.
{¶ 7} At the end of October 2013, Dearth could no longer afford the rental payment for
the trailer, so Dearth and Wright moved out of the residence. Dearth then stayed at the home of
her friend, Keshia4 Pitts (“Pitts”), who lived in Chillicothe, Ohio. On November 3, 2013, Dearth
was staying at Pitts’s home. Dearth testified that prior to Wright coming to Pitts’s home, she had
talked with him about separating because he made no financial contributions; and she could not
do it all by herself. Dearth stated that Wright did not want to separate and that he made physical
threats to her.
{¶ 8} As claimed by Dearth, she asked Pitts to talk with Wright requesting that he bring
the keys to the rental property and Dearth’s car keys and cell phone to Dearth. Apparently, Pitts
identify the document and testify about the circumstances of her alleged cohabitation with Wright. Dearth was not
permitted to testify about the contents of the document.
3
Wright’s trial attorney elicited testimony during cross-examination of Dearth that Wright had purchased the couch
from the landlord Mike Johnson. According to Dearth, both Mike Johnson and Wright told her that Wright
purchased the couch.
4
Ms. Pitts’s name was spelled as “Keshia” and “Kiesha” in the transcript of the proceedings. We have used the first
spelling of “Keshia” in this decision.
Ross App. No. 14CA3457 4
did contact Wright because he arrived at Pitts’s residence around 8:30 p.m. with the requested
items. When Wright arrived he knocked on the door, but Dearth was afraid to come out because
of the earlier physical threats. Eventually though Dearth did go out onto the porch; and Wright
threw the car keys, rental property keys, and her phone into the grass in front of Pitts’s home.
When Dearth went to grab the phone and the keys in the grass, Wright attacked her. Wright
tackled her, ripped her shirt, straddled her, and began choking and slapping her. Dearth claimed
that Wright hit the side of her neck and just kept choking her. Dearth testified that Wright was
positioned on top of her for three to four minutes. Dearth said that she felt like she was going to
pass out while she was being attacked because she could not breathe. Wright was threatening to
kill Dearth and was calling her names. Pitts came out with a bat and told Wright to leave and that
she was going to call law enforcement. Wright then left in a white car. Pitts recorded the license
plate number and called it in to law enforcement.
{¶ 9} An officer with the Chillicothe Police Department, Officer Michael Short,
responded to Pitts’s call. Officer Short took the statements of Dearth and Pitts and took pictures
of Dearth. Officer Short also testified at the trial. He observed that Dearth’s shirt was ripped and
that she had redness on her neck and chest area. Although Dearth had red marks on her neck, she
did not seek medical treatment. The photographs of Dearth’s injuries were authenticated through
the testimony of Officer Short; and four of the photographs were admitted into evidence.
{¶ 10} Dearth had also claimed that Wright initiated contact with her at the end of
December 2013 through social media on Facebook. Wright apologized to Dearth and convinced
her that he made a mistake. Wright told her that “it would never happen again” and that he loved
her. Dearth and Wright began seeing each other again. By January 26, 2014, though, Wright
forced Dearth to make videos on her phone stating that she was lying about the whole incident.
Ross App. No. 14CA3457 5
Wright threatened Dearth that he was going to “tie [her] up, put [her] in a closet, not let [her]
out” and “he was going to kill [her]” if she did not make the videos. Wright also threatened
Dearth that his friend Joy would also beat her up if she did not make the videos. Wright had
Dearth contact Officer Short and the Law Director’s office to tell them that “it didn’t happen.”
Dearth testified that later she did report the information regarding the videos to the Ross County
Prosecutor.
{¶ 11} After making the videos, Dearth convinced Wright that she was very sick and
having seizures and that she needed to go to a hospital. Dearth testified that this was the only
way that she could get away from him. Wright would not take Dearth to Adena Hospital. He
wanted to get out of Chillicothe; so he took her to Grant Hospital in Columbus, Ohio. Wright
was with Dearth during the whole time she was in the emergency room. Once Dearth was given
her room, she was able to talk to her nurse and tell her what happened. They made Wright leave
her room. Wright ran out of the hospital and left in Dearth’s car. She was given a private unit
because Wright attempted to come back in the hospital several times. The police or security
officers chased Wright out of Grant. Dearth spent three days at Grant and was released on
January 29, 2014. When she was released, she took a cab to her grandmother’s home in
Columbus; and the next day, Dearth’s parents picked her up and took her back to their home in
Londonderry. Dearth did not report any of these events to law enforcement. Dearth explained
that she was scared and she just did not know to report the events since she had never been in
any kind of trouble and had never done this.
{¶ 12} Wright presented a different version of the events. Wright argued that he did not
live with Dearth. He stated that he did not have a set of keys to the trailer; and he did not sign
any rental agreement for the trailer. Instead, Wright contends that he used his grandmother’s
Ross App. No. 14CA3457 6
address in Columbus, Ohio, as his residence. Wright stated that he had lived with his
grandmother for two years ever since he was released from SEPTA for a conviction he received
in Fairfield County. Wright admitted that he did not have a bedroom at his grandmother’s
residence; but he claimed that he slept on a couch that folds out into a bed. Wright claimed that
his probation records in Fairfield County reflected the Columbus address as his residence. On
cross-examination, however, Wright could not give the name of the facility in which his
grandmother resided. He could only give the name of the road on which the facility was located.
Wright admitted that he had no documents with him at trial that showed his address as the
Columbus address.
{¶ 13} Wright characterized his relationship with Dearth as “we were just partying.”
Wright testified that although he was sleeping with Dearth, he did not consider himself and
Dearth to be dating. In fact, Wright claimed that Dearth was dating someone else by the name of
Jamie Barrows5. When Dearth and Barrows would fight and argue, Dearth would beg and call
Wright to come down. Wright testified that he would “come down overnight or so” to the trailer
in Londonderry but he “would immediately go back home” in case his probation officer checked
on him. Wright testified that he was not supposed to leave Franklin County since he was on
probation through Fairfield County. Wright admitted to staying the night but he contended that
he would leave the next night. Wright claimed that he never used the Londonderry address as his
address and that he never received mail at that address. He claimed that he never kept anything at
her trailer; but he would have his “own little personal bag” with an outfit to change into the
following day and a toothbrush. He admitted to driving Dearth’s vehicle; however, he argued
that he drove it because Dearth suffered from seizures.
5
Dearth testified that she and Mr. Barrows were only friends and that she never lived with Mr. Barrows.
Ross App. No. 14CA3457 7
{¶ 14} Wright contended that he made no contributions to the household. He claimed that
he did no household chores at the residence. Wright denied that he purchased the couch for the
trailer in Londonderry. He claimed that he only helped move the couch into the trailer. Wright
testified that he was not employed during August 2013 through October 2013; thus, he had no
money to purchase the couch. He did admit that he would share food that he bought with his
food stamps with Dearth. On cross-examination, Wright admitted that he picked up his food
stamps from the Western Avenue location in Ross County, Ohio. The food stamps were not sent
to the address in Columbus that Wright claimed as his residence.
{¶ 15} Not only did Wright claim that he did not live with Dearth in a boyfriend-
girlfriend relationship, but he also asserted that the events of November 3, 2013, occurred
differently than Dearth presented. Wright testified that Dearth still had his I.D.; and he wanted to
retrieve it. Likewise, Wright had Dearth’s cell phone; and she wanted it. Thus, Wright, along
with some friends, pulled up to Pitts’s residence and asked Dearth to bring out his I.D. Dearth
would not come out; so Wright jumped out of the car to get it. Wright got his I.D. and returned
Dearth’s cell phone. Pitts then chased him to the car and got the license plate number; Wright
and his friends then left. Wright contended that no physical confrontation occurred between
Wright and Dearth on November 3, 2013.
{¶ 16} Wright also portrayed the events that occurred after November 3, 2013, quite
differently than Dearth’s version of events. Wright claimed that Dearth contacted him and
wanted to “tag along” with him. He claimed that Dearth wanted to go talk to Officer Short and
“commit the truth”; but that when Officer Short mentioned falsification charges, Dearth “got
scared and said she’d never been to jail.” Wright’s friends then proposed the idea of creating a
video to exonerate Wright. Wright testified that he never threatened Dearth or forced her to make
Ross App. No. 14CA3457 8
the video. After making the video, Wright admitted to driving Dearth to the hospital in
Columbus because Dearth was having a seizure. Wright asserted that they went to Grant Hospital
because it is known for giving prescriptions to people. Dearth was admitted to the hospital; and
when she went to her room, Wright left.
{¶ 17} Wright testified regarding his criminal history also. Wright had two domestic
violence convictions involving his baby’s mother; Wright also mentioned a conviction he
received for “protecting [his] mother.” This was a conviction for aggravated assault, a felony of
the fourth degree. Wright also stated that he had been in trouble for assault or disorderly conduct
and had two convictions for theft.
{¶ 18} The parties stipulated to Wright’s prior convictions for domestic violence. Two
sentencing entries for the prior convictions were stipulated to and entered into evidence.
{¶ 19} The trial court found Wright guilty of domestic violence and sentenced him to a
prison term of eighteen months. It is from this conviction and sentence that Wright now brings
his timely appeal.
II. ASSIGNMENTS OF ERROR
{¶ 20} Wright assigns the following errors for our review:
First Assignment of Error:
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL,
IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION. Strickland v. Washington 466 U.S. 668, 104 S. Ct. 2052(1984). T. pp. 1-161.
Second Assignment of Error:
JEREMY WRIGHT’S CONVICTION FOR DOMESTIC VIOLENCE WAS
NOT SUPPORTED BY SUFFICIENT EVIDENCE IN VIOLATION OF MR.
WRIGHT’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
Ross App. No. 14CA3457 9
CONSTITUTION, AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION. August 21, 2014 Entry; T. pp. 4-85
Third Assignment of Error:
JEREMY WRIGHT’S CONVICTION FOR DOMESTIC VIOLENCE WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION
OF MR. WRIGHT’S RIGHT TO DUE PROCESS OF LAW UNDER THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION. August 21, 2014 Entry; T. pp. 4-141.
{¶ 21} For ease of analysis, we will address the second and third assignments of error
prior to addressing the first assignment of error.
III. LAW AND ANALYSIS
A. Sufficiency and Manifest Weight of the Evidence
{¶ 22} Wright argues in the second assignment of error that his conviction was not
supported by sufficient evidence and in his third assignment of error that the conviction was
against the manifest weight of the evidence. “The legal concepts of sufficiency of the evidence
and weight of the evidence are both quantitatively and qualitatively different.” State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “When reviewing the sufficiency of
the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether
the evidence, if believed, reasonably could support a finding of guilt beyond a reasonable doubt.”
State v. Davis, 4th Dist. Ross No. 12CA3336, 2013–Ohio–1504, ¶ 12. “The standard of review is
whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the
light most favorable to the prosecution, any rational trier of fact could have found all the
essential elements of the offense beyond a reasonable doubt.” Id., citing Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Therefore, when we review a sufficiency
of the evidence claim in a criminal case, we review the evidence in a light most favorable to the
Ross App. No. 14CA3457 10
prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67
Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on
a sufficiency of the evidence claim unless reasonable minds could not reach the conclusion the
trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d 226 (2001); State v.
Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).
{¶ 23} In the case sub judice, Wright was charged with domestic violence, a violation of
R.C. 2919.25. Because Wright had been previously convicted of two or more offenses of
domestic violence, the degree of the offense was a third degree felony. The elements of the
offense were set forth in the indictment as follows:
That Jeremy A. Wright, on or about the 3rd day of November, 2013, in the
County of Ross, aforesaid did knowingly cause or attempt to cause physical harm
to another, a family or household member, the said Jeremy A. Wright having been
previously convicted of two (2) or more offenses of Domestic Violence, to wit:
Domestic Violence, Section 2919.25 of the Ohio Revised Code, in the Court of
Common Pleas, Ross County, Ohio, on or about the 3rd day of October, 2005,
and two (2) counts of Domestic Violence, Section 2919.25 of the Ohio Revised
Code, in the Court of Common Pleas, Ross County, Ohio, on or about the 16th
day of September, 2005, in violation of Section 2919.25 of the Ohio Revised
Code and against the peace and dignity of the State of Ohio.
{¶ 24} As for the element of the prior convictions, the parties stipulated to Wright’s prior
convictions for domestic violence. As a result, the two sentencing entries for the prior
convictions were entered into evidence. Consequently, any rational trier of fact could have found
this element of the offense beyond a reasonable doubt.
Ross App. No. 14CA3457 11
{¶ 25} Dearth and Officer Short both testified to the date of the offense being November
3, 2013, and that the offense occurred in Ross County, Ohio. Wright did not contest these
elements of the offense. Therefore, any rational trier of fact could have found these elements of
the offense beyond a reasonable doubt.
{¶ 26} Wright did contest the element of the offense that he was a “family or household
member” of Dearth by testifying that he did not live with her. However, Dearth provided ample
testimony that she and Wright lived together in the trailer in Londonderry, Ohio. Dearth testified
that she conveyed to the landlord that she and Wright would be residing in the trailer. Dearth
contended that Wright slept at the residence every night and kept his clothes, shoes, personal
belongings, body wash, and razor at the residence. She further testified that Wright contributed
to the household by sharing food with her that he obtained through his food stamps. In addition,
Wright also contributed by doing household chores while Dearth worked at a pizza place next to
their trailer. They also shared a vehicle owned by Dearth. Dearth also testified that she and
Wright were boyfriend and girlfriend and that they engaged in sexual relations. Wright claimed
that he lived in Columbus with his grandmother at the assisted living facility; but his argument is
simply not credible. Wright was not even able to provide the name of the assisted living facility
during his cross-examination. Wright even admitted that he did not have a bedroom or a bed at
the facility. As a result, when reviewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the element that Wright and Dearth were family or
household members beyond a reasonable doubt.
{¶ 27} Wright also claimed that he did not knowingly cause or attempt to cause physical
harm to Dearth. Again, Dearth provided adequate evidence that Wright harmed her. Dearth
testified that when she went to grab the phone and the keys in the grass, Wright attacked her.
Ross App. No. 14CA3457 12
Wright tackled her; ripped her shirt; straddled her; choked her, hit the side of her neck, and
slapped her. Dearth testified that she could not breath while she was being choked; and she felt
like she was going to pass out. Dearth also claimed that Wright called her names and threatened
to kill her. To support her allegations, the photographs that were taken by Officer Short and
admitted into evidence indeed showed redness in her neck area. In contrast, the version of the
facts that Wright presented to the trial court seemed to leave out a lot of detail. He testified that
he pulled up to Pitts’s residence and asked Dearth to bring out his I.D. When Dearth would not
come out, he jumped out of the car to get the I.D. Wright claimed that he returned Dearth’s cell
phone but he did not explain how he returned it. Wright contends that Pitts chased him to the car
but does not explain why he was chased to his car. Wright argues that he simply left and that no
physical confrontation occurred between Wright and Dearth.
{¶ 28} Upon evaluating the testimonies of the parties in a light most favorable to the
prosecution, any rational trier of fact could have found that Wright did knowingly cause or
attempt to cause physical harm to Dearth beyond a reasonable doubt. We find that reasonable
minds could reach the conclusion that the trial court reached here. Wright’s conviction was
supported by sufficient evidence. His second assignment of error is without merit and is hereby
overruled.
{¶ 29} “ ‘Although a court of appeals may determine that a judgment of a trial court is
sustained by sufficient evidence, that court may nevertheless conclude that the judgment is
against the weight of the evidence.’ ” State v. Topping, 4th Dist. Lawrence No. 11CA6, 2012–
Ohio–5617, ¶ 60, quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. “When an appellate
court considers a claim that a conviction is against the manifest weight of the evidence, the court
must dutifully examine the entire record, weigh the evidence, and consider the credibility of
Ross App. No. 14CA3457 13
witnesses.” Id. “The reviewing court must bear in mind, however, that credibility generally is an
issue for the trier of fact to resolve.” Id., citing State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d
904 (2001), and State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of
the syllabus. This is so because “[t]he trier of fact ‘is best able to view the witnesses and observe
their demeanor, gestures, and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.’ ” State v. Pippen, 4th Dist. Scioto No. 11CA3412, 2012–
Ohio–4692, ¶ 31, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d
1273 (1984).
{¶ 30} “Once the reviewing court finishes its examination, the court may reverse the
judgment of conviction only if it appears that the fact-finder, when resolving the conflicts in
evidence, clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” (Quotations omitted.) Davis, 2013-Ohio-
1504, at ¶ 14.
{¶ 31} If the prosecution presented substantial evidence upon which the trier of fact
reasonably could conclude, beyond a reasonable doubt, that the essential elements of the offense
had been established, the judgment of conviction is not against the manifest weight of the
evidence. State v. Cooper, 170 Ohio App.3d 418, 2007-Ohio-1186, 867 N.E.2d 493, ¶ 16 (4th
Dist.). A reviewing court should find a conviction against the manifest weight of the evidence “
‘only in the exceptional case in which the evidence weighs heavily against the conviction.’ ”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983); see also State v. Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
{¶ 32} We cannot find that the fact-finder, when resolving the conflicts in evidence,
clearly lost its way and created a manifest miscarriage of justice. We find, rather, that Wright’s
Ross App. No. 14CA3457 14
conviction for domestic violence was not against the manifest weight of the evidence.
Consequently, we overrule Wright’s third assignment of error.
B. Ineffective Assistance of Counsel
{¶ 33} In his first assignment of error, Wright contends that he received ineffective
assistance of counsel from his trial attorney. Specifically, Wright contends that he received
ineffective assistance of counsel because (1) his attorney only presented Wright as a witness and
failed to present corroborating evidence as part of Wright’s defense; and (2) his attorney did not
make a Criminal Rule 29 motion for acquittal.
{¶ 34} Criminal defendants have a right to counsel, including a right to the effective
assistance from counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d
763 (1970), fn. 14; State v. Stout, 4th Dist. Gallia No. 07CA5, 2008–Ohio–1366, ¶ 21. To
establish constitutionally ineffective assistance of counsel, a criminal defendant must show (1)
that his counsel's performance was deficient and (2) that the deficient performance prejudiced the
defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State
v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In order to show deficient
performance, the defendant must prove that counsel's performance fell below an objective level
of reasonable representation. To show prejudice, the defendant must show a reasonable
probability that, but for counsel's errors, the result of the proceeding would have been different.”
State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, 848 N.E.2d 810, ¶ 95. “Failure to
establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116,
2008–Ohio–968, ¶ 14.
Ross App. No. 14CA3457 15
{¶ 35} “When considering whether trial counsel's representation amounts to deficient
performance, ‘a court must indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance.’ ” State v. Walters, 4th Dist. Washington Nos.
13CA33, 13CA36, 2014–Ohio–4966, ¶ 23, quoting Strickland at 689. “Thus, ‘the defendant
must overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.’ ” Id., quoting Strickland at 689. “ ‘A properly licensed attorney
is presumed to execute his duties in an ethical and competent manner.’ ” Id., quoting State v.
Taylor, 4th Dist. Washington No. 07CA1, 2008–Ohio–482, ¶ 10. “Therefore, a defendant bears
the burden to show ineffectiveness by demonstrating that counsel's errors were so serious that he
or she failed to function as the counsel guaranteed by the Sixth Amendment.” Id.{¶ 36} Wright argues that he received ineffective assistance of counsel because his trial
attorney did not present corroborating evidence as part of the defense in his case. Wright argues
that the trial court indicated that other evidence would have clarified the issues. Wright states
that the trial court suggested that multiple witnesses could have clarified the issues. The
witnesses that the trial court mentioned were Keshia Pitts, Mike Johnson, and a witness
regarding the alleged Columbus residence of Wright.
{¶ 37} Decisions about which witnesses to call involve matters committed to counsel's
professional judgment. State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶
127; see also State v. Jackson, 4th Dist. Lawrence No. 97CA2, 1997 WL 749480, *2 (Dec. 5,
1997) (“Generally, decisions to call witnesses is within the purview of defense counsel’s trial
strategy and is not considered deficient performance absent a showing of prejudice.”). Stated
differently “counsel's decision whether to call a witness falls within the rubric of trial strategy
Ross App. No. 14CA3457 16
and will not be second-guessed by a reviewing court.” Treesh, 90 Ohio St.3d at 490, 739 N.E.2d
749.
{¶ 38} Wright’s trial counsel may have concluded that calling other witnesses would be
ineffective and only serve to reinforce the credibility of the testimony presented by the State of
Ohio. Similarly, counsel’s decision to not present other witnesses may have been sound trial
strategy. Counsel may have legitimately determined that calling other witnesses would only
serve to hinder Wright’s version of events.
{¶ 39} For instance, it is likely that any testimony Pitts would give would have been
favorable to the State of Ohio. After all, Dearth testified that Pitts was the person who came out
of her house with a bat; told Wright to leave; wrote down the license plate of the vehicle; and
called law enforcement. The State had actually filed a praecipe for issuance of a subpoena for
Pitts; but it was not served upon her as she was “no longer living at the address.” Similarly, if the
landlord, Mike Johnson, had been called to testify by Wright’s trial counsel, it is likely that
Johnson would have bolstered Dearth’s testimony, not Wright’s testimony. Johnson would more
than likely have testified that Dearth indeed conveyed to him that Wright would be living with
her in the trailer. Also, Johnson would probably have verified that Wright purchased the couch
from Johnson for the trailer. Lastly, if someone from the assisted living facility testified
regarding Wright’s alleged Columbus address, it is also likely that he or she would have testified
that only the grandmother was permitted to live in the assisted facility. It is highly unlikely that
an employee from the assisted living facility would testify that Wright, who had been convicted
various crimes, resided in the facility.
Ross App. No. 14CA3457 17
{¶ 40} It is clear to us that the decision of Wright’s trial counsel not to call other
witnesses was indeed trial strategy. We will not second-guess trial counsel’s decision here.
Wright’s trial counsel did not act deficiently for failing to call other witnesses.
{¶ 41} Wright also claims that he received ineffective assistance of counsel when his trial
counsel failed to hold the State to its burden of production by not making a motion for acquittal
pursuant to Crim.R. 29. A Crim.R. 29(A) motion tests the sufficiency of the evidence presented
at trial. State v. Volgares, 4th Dist. Lawrence No. 98CA6, 1999 WL 354339, *4 (May 17, 1999),
citing State v. Williams, 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996), and State v. Miley, 114
Ohio App.3d 738, 742, 684 N.E.2d 102 (4th Dist.). Because we find that sufficient evidence
existed to convict Wright of domestic violence, we find his argument that he received ineffective
assistance of counsel for his trial counsel’s failure to make a Crim.R. 29 motion to be without
merit.
{¶ 42} Lastly, none of the alleged instances of ineffective assistance, either individually
or collectively, were prejudicial. To maintain his ineffective assistance of counsel argument,
Wright must demonstrate it was reasonably probable that, but for his trial counsel's errors, the
verdict would have been otherwise. Wright's argument that calling other witnesses for
corroborating evidence would have changed the outcome of the case is mere speculation.
Moreover, Wright fails to explain how trial counsel’s failure to call witnesses prejudiced him.
Also, trial counsel’s failure to make a Crim.R. 29 motion for acquittal would have been denied
had it been made since the trial court found sufficient evidence to convict him. In light of the
record, Wright has not shown that, but for his trial counsel's alleged errors, a reasonable
probability exists that the trial court would have found him not guilty.
{¶ 43} Based on the foregoing, we overrule Wright’s first assignment of error.
Ross App. No. 14CA3457 18
IV. CONCLUSION
{¶ 44} Having overruled each of Wright’s assignments of error for the reasons stated
above, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Ross App. No. 14CA3457 19
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs herein
taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the
failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration
of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
By:
Marie Hoover
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.