 [Cite as State v. Foster, 2014-Ohio-530.]




                                IN THE COURT OF APPEALS OF OHIO
                                   SECOND APPELLATE DISTRICT
                                      MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 DANIELLE FOSTER

         Defendant-Appellant



 Appellate Case No.        25655

 Trial Court Case No. 2012-CRB-6676


 (Criminal Appeal from
 (Municipal Court)
                                                ...........

                                               OPINION

                                Rendered on the 14th day of February, 2014.

                                                ...........

AMY B. MUSTO, Atty. Reg. No. 0071514, Assistant City Prosecutor, 335 West Third Street,
Room 372, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

RUSS B. COPE, Atty. Reg. No. 0083845, 6826 Loop Road, Dayton, Ohio 45459
     Attorney for Defendant-Appellant

                                             .............
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WELBAUM, J.

        {¶ 1}    Defendant-appellant, Danielle Foster, appeals from her conviction in the Dayton

 Municipal Court on one count of resisting arrest, one count of domestic violence, one count of

 assault, and two counts of disorderly conduct on grounds that she was denied effective assistance

 of counsel. For the reasons outlined below, we affirm the trial court’s judgment.



                                 Facts and Course of Proceedings

        {¶ 2}    In August 2012, Foster was charged with resisting arrest in violation of R.C.

 2921.33(A), a second-degree misdemeanor; obstructing official business in violation of R.C.

 2921.31(A), a second degree-misdemeanor; domestic violence in violation of R.C.

 2919.25(A)(1), a first-degree misdemeanor; assault in violation of R.C. 2903.13(A), a first degree

 misdemeanor; endangering children in violation of R.C. 2919.22(A), a first degree misdemeanor;

 and two counts of disorderly conduct in violation of R.C. 2917.11(A)(1), both fourth-degree

 misdemeanors. The charges arose from an August 10, 2012 incident at the Montgomery County

 Job Center, wherein Foster was confronted by a deputy sheriff and security personnel while

 disciplining her three-year-old son, K. Foster pled not guilty to all of the charges and the matter

 proceeded to a bench trial. The following facts were elicited at trial.

        {¶ 3}    On August 10, 2012, Deputy Edward Hunter, a Montgomery County Sheriff’s

 Deputy assigned to the Job Center, testified that he heard yelling and smacking sounds coming

 from a public restroom of the Job Center while he was in his office approximately 30 feet away.

 He testified that another security officer and clients of the Job Center could also hear Foster

 yelling outside of the restroom. After hearing the commotion, Deputy Hunter knocked on the
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restroom door three times, announced he was with the sheriff’s office, and then entered. Upon

entering the restroom, he observed Foster holding K.’s arm in a position as if she was going to

strike him. Deputy Hunter then testified that Foster became agitated when he asked her what

was going on, and that she indicated in a loud, aggravated tone that it was none of his business

how she disciplined her child. In addition, when he asked her to lower her voice and calm down,

Deputy Hunter claimed that Foster yelled: “F*** the Job Center and everybody in it.” Trans.

(Oct. 29, 2012), p. 7. At that point, Deputy Hunter asked Foster to leave.

       {¶ 4}    Before escorting her out of the Job Center, Deputy Hunter testified that he had

Foster come to his office and complete paperwork for a trespass notice, which would prevent her

from returning. When he explained the conditions of the trespass notice, Foster refused to sign

the form and proceeded to leave his office with K. and her other two children. Deputy Hunter

testified that as he escorted Foster out of the building, she began screaming profane words and

drawing further attention to herself. According to his testimony, Deputy Hunter repeatedly

asked Foster to stop her disruptive conduct, but she continued to yell and call him vulgar names.

       {¶ 5}    Deputy Hunter further testified that he and a private security officer, Donald

Scammahorn, followed Foster as she exited the Job Center building. After reaching the exit,

both officers stopped and watched Foster as she walked away. While she was walking away,

Deputy Hunter testified that he observed Foster jerking and pulling her son by the arm and

screaming at the officers to “leave her the f*** alone.” Id. at p. 10. Deputy Hunter also saw

Foster stop in the middle of a parking lot and strike her son forcefully three times on his lower

back and buttocks. He testified that K. was not misbehaving when Foster struck him. In

addition, he testified that Foster appeared to be out of control and K. appeared to be in pain and
                                                                                             4


was screaming.

       {¶ 6}     Upon seeing Foster strike K., Deputy Hunter testified that he became concerned

for the child’s well-being. Accordingly, he and Officer Scammahorn started to approach Foster

in order to take her into custody for child endangerment. At this point in time, Foster and her

children were inside her vehicle. Deputy Foster testified that Officer Scammahorn instructed

Foster not to start her vehicle, but that she ignored the instruction and backed up her vehicle

while screaming at them. In response, Deputy Hunter moved toward the vehicle and put his

hand up instructing Foster to stop. Foster slowed down, but did not stop, thus prompting Deputy

Hunter to pull on the doorhandle, which was unlocked. Foster then stopped the vehicle, and

Deputy Hunter advised her that she was under arrest. He then instructed Foster to exit the

vehicle, but she failed to comply. Deputy Hunter testified that he was eventually able to pull her

from the vehicle with the assistance of Officer Scammahorn. He claimed that Foster made the

arrest difficult by kicking and using profanity. Officer Scammahorn provided testimony that was

consistent with the testimony of Deputy Hunter.

       {¶ 7}     In her defense, Foster testified and denied engaging in any untoward or loud,

disorderly conduct. However, she admitted that she was offended when Deputy Hunter asked

her whether she had a child protective services case. She also admitted that she was frustrated

by K.’s behavior and by the fact that she was being prevented from “tak[ing] care of [her]

business.” Trans. (Oct. 29, 2012), p. 41. Foster also denied striking K. in the parking lot. In

addition, she denied screaming and refusing to comply with the officers when they asked her to

stop her vehicle. Foster testified that the officers did not ask her to exit her vehicle, but instead

they tried to take her keys and “yanked” her out. Id. at 43. She also testified that she was upset
                                                                                           5


during the arrest because she was seven months pregnant and concerned about her unborn child.

       {¶ 8}    The trial court found the officers’ testimony to be credible and consistent, and

found that Foster’s testimony lacked credibility. Based on the officers’ testimony, the trial court

found Foster guilty of domestic violence, assault, resisting arrest, and two counts of disorderly

conduct. The trial court, however, found Foster not guilty of obstructing official business and

child endangerment.

       {¶ 9}    Foster appeals from her conviction and raises one assignment of error.



                                   Assignment of Error No. I

       {¶ 10} Foster’s sole assignment of error states as follows:

       DEFENDANT-APPELLANT WAS DEPRIVED OF HER RIGHTS UNDER

       THE 6TH AMENDMENT TO THE U.S. CONSTITUTION TO EFFECTIVE

       ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO REQUEST

       THAT      [sic]   COURT      INQUIRE       INTO     THE       COMPETENCY          OF

       DEFENDANT-APPELLANT AT TIME OF THE ALLEGED OFFENSES BY

       FAILING TO FILE A PLEA OF NOT GUILTY BY REASON OF INSANITY

       AND FAILURE OF COUNSEL TO PRESENT ANY EVIDENCE AS TO

       SOCIAL OR MEDICAL HISTORY OF THE DEFENDANT-APPELLANT IN

       MITIGATION FOR HER ACTIONS.

       {¶ 11} In her single assignment of error, Foster argues that her trial counsel was

ineffective in failing to: (1) investigate potential social and medical issues that could have

accounted for Foster’s behavior; (2) present mitigating evidence as to her behavior; (3) file a
                                                                                             6


motion to request the court to determine Foster’s competency; and (4) pursue an insanity defense.

       {¶ 12} We review alleged instances of ineffective assistance of trial counsel under the

two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989). Pursuant to these cases, in order to reverse a conviction

based on ineffective assistance of counsel, a defendant first “must show that counsel's

representation fell below an objective standard of reasonableness.” Strickland at 688. Second,

“[t]he 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. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

Furthermore, “[b]ecause of the difficulties inherent in making the evaluation, 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 overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 689,

quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

       {¶ 13} Upon reviewing the record, we do not find that the conduct Foster complains of

qualifies as ineffective assistance of counsel. Foster’s first argument, that trial counsel failed to

investigate any social or medical issues that may have explained her behavior on August 10,

2012, is not supported by the record. While effective representation carries with it a duty to

make reasonable investigations, Id. at 691, there is nothing in the record indicating that Foster’s

trial counsel did not perform a reasonable investigation of any social or medical issues.

Therefore, Foster failed her burden to overcome the presumption that counsel’s representation
                                                                                            7


fell within the wide range of reasonable professional assistance.       Accordingly, Foster’s first

argument lacks merit and is overruled.

       {¶ 14} Foster’s second argument, that counsel failed to present evidence mitigating her

behavior, also lacks merit. It is well established that the presentation of mitigating evidence is a

matter of trial strategy and “ ‘[t]he decision to forgo the presentation of additional mitigating

evidence does not itself constitute ineffective assistance of counsel.’ ” State v. Hand, 107 Ohio

St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 240, quoting State v. Keith, 79 Ohio St.3d 514, 536,

684 N.E.2d 47 (1997). Therefore, “ ‘a debatable decision concerning trial strategy cannot form

the basis of a finding of ineffective assistance of counsel.’ ”        State v. Ellison, 2d Dist.

Montgomery No. 25638, 2013-Ohio-5455, ¶ 30, quoting State v. Hill, 2d Dist. Greene No.2004

CA 79, 2005-Ohio-3176, ¶ 13.

       {¶ 15}    In this case, Foster’s defense strategy at trial consisted of her denying that she

engaged in the extreme behavior reported by the Job Center officers.            Had trial counsel

introduced evidence mitigating and explaining her behavior, Foster’s testimony claiming that she

did not engage in such behavior would have been completely contradicted. In other words, the

presentation of mitigating evidence was inconsistent with the defense’s trial strategy and theory

of the case. Because trial strategy cannot form the basis of an ineffective assistance claim,

Foster’s second argument also lacks merit and is overruled.

       {¶ 16} Under her third argument, Foster alleges trial counsel was ineffective in failing to

question her competency to stand trial and in failing to request a competency hearing. “A

defendant is competent to stand trial if he is capable of understanding the nature and objective of

the proceedings against him and of assisting in his defense. * * * Absent evidence to the contrary,
                                                                                             8


a defendant is presumed to be competent. R.C.2945 .37(G).” State v. Skatzes, 2d Dist.

Montgomery No. 15848, 2003-Ohio-516, ¶ 360, citing State v. Carter, 89 Ohio St.3d 593, 603,

734 N.E.2d 345 (2000); R.C. 2945.37(G). If the record fails to establish that the defendant

displayed a sufficient indicia of incompetency to stand trial, then trial counsel's failure to request

a competency hearing does not constitute deficient performance. State v. Thomas, 97 Ohio St.3d

309, 2002–Ohio–6624, 779 N.E.2d 1017, ¶ 41; State v. Pennington, 2d Dist. Montgomery No.

24090, 2011-Ohio-4445, ¶ 19-20.

       {¶ 17} In the instant case, Foster did not display any indicia of incompetency during trial

to warrant a competency hearing. In addition, there is nothing in the record to indicate that she

suffered from a mental illness or had difficulty understanding the nature and objective of the legal

proceedings. Moreover, the record is devoid of any evidence that she exhibited any difficulty in

assisting her defense. In fact, Foster testified at trial and responded to questions in a manner that

did not call her sanity into question. Nevertheless, Foster argues the fact that she denied any

wrongdoing is a basis for finding her incompetent.            However, the fact that she denied

wrongdoing relates to her credibility, not her competency. Therefore, because there is nothing in

the record indicating that Foster lacked competency, we do not find that trial counsel’s failure to

request a competency hearing fell below an objective standard of reasonableness. Accordingly,

Foster’s third argument is likewise overruled.

       {¶ 18} Foster’s fourth argument, that trial counsel was ineffective in failing to pursue an

insanity defense, also lacks merit. As we explained in State v. Robinson, 2d Dist. Montgomery

No. 17393, 2001 WL 62569 (Jan. 26, 2001):

       This court will not second-guess strategic decisions made by trial counsel. See
                                                                                                 9


       State v. Mason (1998), 82 Ohio St.3d 144, 161. See, also, Strickland, supra, at

       690. In general, trial counsel's failure to pursue an insanity defense is not, per se,

       ineffective assistance of counsel. See State v. Decker (1986), 28 Ohio St.3d 137,

       State v. Sneed (1992), 63 Ohio St.3d 3, and State v. Wong (1994), 95 Ohio App.3d

       39. A person is not guilty of an offense by reason of insanity only if he proves

       that, at the time of the commission of the offense, he did not know, as a result of

       severe mental disease or defect, the wrongfulness of his acts.                     R.C.

       2901.01(A)(14).       The fact that the trial strategy selected proved to be

       unsuccessful does not equate per se to a denial of effective assistance of counsel.

       See State v. Frazier (1991), 61 Ohio St.3d 247, 255. Id. at *4.

       {¶ 19} Here, the record indicates that Foster’s trial counsel had legitimate reasons not to

pursue an insanity defense. First, there is nothing in the record indicating that Foster suffered

from a severe mental illness that caused her to not understand the wrongfulness of her acts.

Therefore, it is unlikely an insanity defense would have been successful. In addition, an insanity

defense would have conflicted with Foster’s defense strategy of pleading not guilty and denying

all allegations regarding her behavior. “It is acceptable trial strategy to offer a not guilty defense,

and we will not second guess that strategy on appeal.” Id. at *5. Because trial strategy cannot

be the basis of an ineffective assistance claim, Foster’s fourth and final argument is overruled.

       {¶ 20} For the foregoing reasons, we find no merit to any of the four arguments

advanced on appeal. Accordingly, Foster’s sole assignment of error is overruled.



                                             Conclusion
                                                                                       10


       {¶ 21} Having overruled Appellant Danielle Foster’s sole assignment of error alleging

ineffective assistance of counsel, we hereby affirm the judgment of the trial court.



                                          .............

DONOVAN and HALL, JJ., concur.




Copies mailed to:

Amy B. Musto
Russ B. Cope
Hon. Carl Sims Henderson
