[Cite as State v. Porter, 2014-Ohio-2680.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 13CA89
RICKY PORTER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Court of
                                               Common Pleas, Case No. 2013CR0329D


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         June 16, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JAMES J. MAYER, JR.                            ROBERT GOLDBERGER
Prosecuting Attorney                           10 West Newlon Place
Richland County, Ohio                          Mansfield, Ohio 44902

By: John C. Nieft
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 13CA89                                                           2

Hoffman, P.J.


         {¶1}   Defendant-appellant Ricky Porter appeals his conviction and sentence

entered by the Richland County Court of Common Pleas. Plaintiff-appellee is the state

of Ohio.

                            STATEMENT OF THE FACTS AND CASE

         {¶2}   On May 12, 2013, officers from the Mansfield Police Department

responded to a call at The Woods Apartment Complex located at 944 Woodville Road in

Mansfield. Appellant's mother called the police due to Appellant's being drunk and

angry.

         {¶3}   Upon the officers' arrival, they searched unsuccessfully for Appellant in the

apartment building and on the grounds of the complex. The officers photographed

damage allegedly done by Appellant to the property. During this time, a neighbor's

daughter visited with Appellant's mother to calm her down.

         {¶4}   After the officers left the premises, Appellant returned, banging and

kicking at the door. The neighbor's daughter called the police. Officers were again

dispatched to the apartment complex. Officers Dittrich and McKinley of the Mansfield

Police Department responded and searched the laundry room. They found Appellant

hiding behind pipes next to a furnace. Appellant refused to come out. Officer McKinley

testified he could smell the odor of alcohol on Appellant's person. Appellant had slurred

speech, glassy eyes and an agitated attitude.           The officers attempted to extract

Appellant from the premises, but Appellant broke free and became violent. Appellant

punched Officer Dittrich in the jaw and clawed his face and left eye.
Richland County, Case No. 13CA89                                                            3


       {¶5}   Another officer came to the aid of Officers Dittrich and McKinley, helping

to tackle Appellant. Appellant was eventually handcuffed, while yelling obscenities at

the officers. Appellant continued to cuss and threaten the officers. At the jail, he threw

a punch at a corrections officer.

       {¶6}   Officer Dittrich's injuries included a swollen left eye, left jaw, and scratches

on his cheek. He also suffered a shoulder injury. Officer McKinley had a torn uniform

and some bruising.

       {¶7}   As a result of the incident, Appellant was indicted on one count of assault

of a police officer, in violation of R.C. 2903.13(A), a felony of the fourth degree.

       {¶8}   The matter proceeded to a jury trial. Appellant was found guilty of the

charge, and sentenced to eighteen months incarceration and restitution.

       {¶9}   Appellant appeals, assigning as error:

       {¶10} "I. APPELLANT LACKED EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶11} "II. THE COURT ERRED IN OVERRULING DEFENDANT'S ATTEMPT

TO IMPEACH WITNESS FRANCE."

                                                  I.

       {¶12} In the first assignment of error, Appellant maintains he was denied the

effective assistance of trial counsel.

       {¶13} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such

claims, “a court must indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance; that is, the defendant must
Richland County, Case No. 13CA89                                                          4


overcome the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’ “ Id. at 689, citing Michel v. Louisiana, 350 U.S. 91,

101, 76 S.Ct. 158 (1955).

       {¶14} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690.

       {¶15} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

       {¶16} Appellant maintains his trial counsel was ineffective in failing to introduce

statements of Appellant's mother stating, "They are beating up my baby."

       {¶17} At trial, the defense averred the Mansfield Police Department, Officer

Dittrich in particular, retaliated against Appellant for a complaint he had lodged against

the Mansfield Police Department six months previous.

       {¶18} Upon review of the record, we find Appellant has not demonstrated how

the statements made by his mother would have affected the outcome of the trial.

Specifically, Appellant has not demonstrated a reasonable probability, but for the

alleged error of trial counsel, the result of the proceeding would have been different.

       {¶19} Accordingly, the first assignment of error is overruled.
Richland County, Case No. 13CA89                                                           5


                                                II.

       {¶20} In the second assigned error, Appellant maintains the trial court erred in

denying his attempt to impeach a witness.         Specifically, Appellant asserts Witness

Walter France had become a hostile witness in Appellant's attempt to demonstrate

police misconduct, and the trial court erred in not allowing counsel to refresh the

witness' recollection.

       {¶21} At trial herein, the following exchange occurred on the record,

       {¶22} "Q. What did it sound like?

       {¶23} "A. It sounded like somebody was tearing up the place.

       {¶24} "Q. Okay. The guy laying on the floor, was he acting in an aggressive

manner in any way?

       {¶25} "A. No, he was laying still, had his face down.

       {¶26} "Q. Was this at the end of all the noise, was the noise over at that point?

       {¶27} "A. Yeah.

       {¶28} "Q. So you never saw what was happening in there?

       {¶29} "A. No, no.

       {¶30} "Q. Do you remember a discussion we had on the phone a few weeks

ago?

       {¶31} "A. I talked to a lot of people since I talked to you, Mr. Cockley. I can't say

that I do.

       {¶32} "Q. A discussion where you indicated - -

       {¶33} "MS. COUCH-PAGE: Objection, Your Honor.

       {¶34} "THE COURT: Sustained.
Richland County, Case No. 13CA89                                                      6


      {¶35} "Q. From the time you heard the big boom on the wall, that knocked the

pictures off, to when the officer left and the people left, how much time do you think

elapsed?

      {¶36} "A. Not really sure. I was more concerned with my mother. When I found

out she wasn't in any danger I pretty much went back in the apartment and continued to

make sure she was okay. Not really sure.

      {¶37} "MR. COCKLEY: Nothing further. Thank you."

      {¶38} Tr. at 257-258.

      {¶39} Evidence Rule 607(A) reads,

      {¶40} "(A) Who may impeach

      {¶41} "The credibility of a witness may be attacked by any party except that the

credibility of a witness may be attacked by the party calling the witness by means of a

prior inconsistent statement only upon a showing of surprise and affirmative damage.

This exception does not apply to statements admitted pursuant to Evid. R. 801(D)(1)(a),

801(D)(2), or 803."

      {¶42} Appellant's counsel attempted to impeach his witness with a prior

inconsistent statement to counsel.     Appellant's counsel did not claim surprise or

affirmative damage. Appellant's counsel continued with questioning of France. The

witness testified he did not see the events taking place in the hall, but only heard the

noise. Assuming arguendo, the trial court erred in prohibiting Appellant to impeach his

own witness by means of a prior inconsistent statement, we find Appellant has not

demonstrated prejudice as a result of the alleged error. Accordingly, we find the trial

court's alleged error would be harmless.
Richland County, Case No. 13CA89                                                  7


      {¶43} Appellant's second assignment of error is overruled.

      {¶44} Appellant's conviction and sentence entered by the Richland County Court

of Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Baldwin, J. concur
Richland County, Case No. 13CA89   8
