[Cite as State v. Johnson, 2012-Ohio-3812.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97698




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                     BRIAN JOHNSON
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-552651

        BEFORE: Rocco, J., Jones, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: August 23, 2012
ATTORNEY FOR APPELLANT

Gayl M. Berger
24100 Chagrin Blvd., #330
Cleveland, OH 44122

ATTORNEY FOR APPELLEE

Norman Schroth
Asst. County Prosecutor
The Justice Center
1200 Ontario Street, 8th floor
Cleveland, OH 44113
KENNETH A. ROCCO, J.:

       {¶1} Defendant-appellant Brian Johnson (“Johnson”) appeals his conviction,

arguing that his conviction was against the manifest weight of the evidence, was not

supported by sufficient evidence, that he did not receive effective assistance of counsel,

and that the prosecution engaged in a discovery violation. Having found no merit to

Johnson’s assignments of error, we affirm the trial court’s final judgment.

       {¶2} Johnson was arrested pursuant to a police report made by ex-girlfriend,

Takina Hollowell (“Hollowell”).        Johnson was indicted for aggravated burglary,

domestic violence, aggravated menacing, theft, and criminal damaging. The case went to

a bench trial.

       {¶3} Hollowell and Johnson had met in August 2008, began a relationship, and

moved in together in July 2009. According to Hollowell, the two stopped living together

in May 2011, because Johnson was abusive.

       {¶4} Hollowell testified that on June 16, 2011, she was in her apartment sleeping,

and at around 5:00 a.m. she awoke to find Johnson straddling her, choking her, and

making verbal threats. Hollowell stated that she passed out and Johnson threw water on

her to revive her. Hollowell’s clothes were ripped and Johnson pulled extensions from

Hollowell’s hair. As the two tussled with one another, Hollowell hit Johnson in the
mouth, causing him to bleed. He wiped the blood with a towel from Hollowell’s laundry

basket.

       {¶5} Hollowell eventually broke free and ran out of the apartment hallway calling

for help. Hollowell, who was naked, testified that someone gave her a towel or blanket

to cover up, though she could not describe the person.

       {¶6} Johnson ran from the building. Hollowell went back to her apartment and

found that her phone and ATM/debit card were missing and that her television screen was

shattered. Because her phone was missing, she went to her grandmother’s house to call

Johnson’s probation officer to tell him what happened.       The probation officer told

Hollowell to file a police report.

       {¶7} Hollowell filed a report with the Euclid Police Department. Officer Donald

Ivory (“Ivory”) photographed Hollowell’s injuries and went to her apartment to document

the damage. Trial exhibits included photographs of the following: Hollowell’s bruised

neck and face; the ripped clothing; the hair pulled from Hollowell; the bloody towel; the

shattered television; her apartment key; and the spare key that Johnson had returned to

Hollowell weeks before the incident.

       {¶8} On cross-examination Hollowell was asked about the missing ATM/debit

card. Hollowell had stated that she discovered money was missing from her account by

calling the bank. She also stated that she went to use the card, and found that the money

was gone. Hollowell testified that Johnson called her numerous times while he was

incarcerated during the pendency of the instant matter.
      {¶9} On cross-examination, Hollowell was asked whether she knew a woman by

the name of Siera Fair (“Fair”).       Hollowell denied knowing anyone by that name.

Hollowell testified that she believed that Johnson was motivated to attack her because she

had started a relationship with another man.

      {¶10} Hollowell’s neighbor, Arlyse Levick (“Levick”), also testified.        Levick

testified that she was awoken at 4:30 a.m. by someone knocking on her door and asking

that she call the police. Levick asked why she should call the police. When she did not

hear a response, she decided not to answer the door and not to call the police. Levick

also testified that Johnson had previously notified her that he was moving out of

Hollowell’s apartment.

      {¶11} The next witness was Officer Ivory, who testified that he received

Hollowell’s police report and had met with Hollowell. He photographed Hollowell’s

injuries, which consisted of bruises on the sides and back of her neck and a black eye.

Officer Ivory went to Hollowell’s apartment where he observed the broken television, the

hair that had been pulled out, and the torn clothing on the floor. He observed and

photographed a towel that appeared to have fresh blood on it; no DNA analysis was

performed on the towel. At the time of the investigation he believed that the key

Johnson had returned to Hollowell was her apartment key. He never tried the key,

though, and upon inspection in court it appeared that the key Johnson returned to

Hollowell was not the apartment key.
      {¶12} Detective Russell Kucinski (“Kucinski”) was called to testify for the

defense. Kucinski testified that the first time the topic of dismissing the case came up

was when he spoke with Johnson. He testified that he had learned that following the

incident, Johnson had moved back in with Hollowell. He also testified that at no point

did Hollowell recant or change her story about what happened, but that she did state that

she did not want him to go to jail and that they were trying to work things out. Kucinski

contacted the parties, completed follow-up, and sent the case to the Grand Jury.

      {¶13} Johnson took the stand in his own defense. He denied being at Hollowell’s

apartment on the date of the incident. He testified that he lived in “two places”; he lived

with his new girlfriend, Fair, but he also continued to live with Hollowell. He admitted

to keeping Hollowell’s apartment key, but testified that on the date in question he was

sleeping at Fair’s house. Johnson testified that, on the night in question, Hollowell had

called Johnson’s cell phone, that Fair had answered, and that this was when Hollowell

discovered that Johnson was also having a relationship with Fair. Johnson stated that

Hollowell was motivated by jealousy and was lying about the attack. He denied any

involvement in the burglary, the assault, or the property damage. Johnson acknowledged

that he had numerous felony convictions in the past ten years.

      {¶14}    At the close of all the evidence, the trial court found Johnson guilty on all

counts. Johnson filed his notice of appeal from the trial court’s entry of final judgment

and presents four assignments of error for review.
      “I.     Appellant’s convictions for aggravated burglary, domestic violence,

aggravated menacing, theft, and criminal damaging are contrary to the manifest

weight of the evidence.

      “II.    The state failed to present evidence sufficient to sustain appellant’s

convictions for aggravated burglary, domestic violence, aggravated menacing, theft,

and criminal damaging.

      “III. Appellant was denied his Sixth Amendment right to effective assistance

of counsel.

      “IV. The prosecution failed to comply with the requirements of Criminal

Rule 16 by failing to provide all discoverable information, i.e., jail tapes.”

      {¶15} We consider Johnson’s second assignment of error before his first, because

a reversal based on the manifest weight of the evidence can occur only if the State has

first presented sufficient evidence to support a conviction. See State v. Thompkins, 78

Ohio St.3d 380, 388, 678 N.E.2d 541 (1997). When reviewing whether the verdict was

supported by sufficient evidence we determine whether “after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.” State v. Leonard,

104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶77, quoting State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

      {¶16} Johnson argues that there was no sign of forced entry and no evidence as to

how he got into Hollowell’s apartment. First, evidence was presented as to how Johnson
may have gotten into Hollowell’s apartment. Johnson admitted that he had a key that he

never returned to Hollowell. Second, Ohio law has long held that the force element for

an aggravated burglary charge is established through the opening of a closed but unlocked

door. See State v. Lane, 50 Ohio App.2d 41, 46, 361 N.E.2d 535 (10th Dist. 1976). See

also State v. Austin, 2d Dist. No. 20445, 2005-Ohio-1035, ¶17, overruled on other

grounds (evidence that the defendant turned a door knob of an unlocked door in order to

enter an apartment was sufficient proof of forcible entry).

       {¶17} In the instant case Hollowell testified that she was sleeping in her apartment

and was awoken by Johnson choking her. Johnson did not live at the apartment. After

Johnson had moved out, Hollowell had taken back from Johnson what she thought was

her apartment key. Johnson did not have permission to come into the apartment that

night. Hollowell’s testimony provides sufficient evidence of forcible entry.

       {¶18} Assuming arguendo that Johnson had permission to enter Hollowell’s

residence, permission can be revoked upon an act of violence against a person who has

the authority to revoke the privilege of initial entry. State v. Steffen, 31 Ohio St.3d 111,

115, 509 N.E.2d 383 (1987). Once Johnson began attacking Hollowell, any supposed

permission to enter her apartment was revoked. Because there was sufficient evidence of

forcible entry, Johnson’s argument to the contrary is not well taken.

       {¶19} Johnson also argues that his conviction was not supported by sufficient

evidence because the police failed to properly investigate Hollowell’s allegations. He

argues that the police should have corroborated Hollowell’s statement that money was
missing from her bank account; that they should have produced the jailhouse phone

conversations between Hollowell and Johnson; that Hollowell’s torn clothing should have

been brought in as evidence; and that the bloody towel should have been tested for DNA.

According to Johnson, his conviction is based on solely on Hollowell’s unsubstantiated

and inconsistent testimony. We disagree.

         {¶20} First, the prosecution did not rely on Hollowell’s testimony alone. Levick

testified that she heard someone knock on her door asking that she call the police.

Officer Ivory testified that when Hollowell came to the police station to file a report, she

had bruises around her neck and on her face.             Photographic evidence depicted

Hollowell’s injuries.     Other photographic exhibits identified Hollowell’s shattered

television set, Hollowell’s torn clothing, clumps of Hollowell’s extensions that had been

pulled out of her head, and the bloody towel. The judge also had the opportunity to hear

both Hollowell’s and Johnson’s versions of what happened on the night in question.

         {¶21} Second, while Johnson may believe that all potential leads were not

investigated by police, failure to exhaust all leads is not tantamount to insufficient

evidence. The State produced testimony and photographic evidence that supported it’s

theory of the case. Viewing the evidence in a light most favorable to the prosecution, we

conclude that any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. Accordingly, we overrule this assignment of

error.
       {¶22} We also find no merit in Johnson’s assertion that his verdict was against the

manifest weight of the evidence. In evaluating the manifest weight of the evidence, this

court sits as the thirteenth juror.   We review the entire record, weigh the evidence and all

reasonable inferences, consider the witnesses’ credibility, and determine whether the jury

clearly lost its way such that there was a manifest miscarriage of justice. Thompkins, 78

Ohio St.3d at 387, 678 N.E.2d 541. We grant a new trial only in the exceptional case

where the evidence weighs heavily against the conviction. Id.

       {¶23} According to Johnson, Hollowell’s testimony was not credible and was

inconsistent. Johnson argues that Hollowell had a motivation to lie, because she was

jealous that Johnson had been with another woman. According to Hollowell’s testimony,

it was Johnson who was motivated by jealousy: he attacked Hollowell because she had

begun a new relationship. Johnson argues that Hollowell is not credible because she was

inconsistent in her explanation about how she determined that money was missing from

her bank account. Hollowell had stated that she discovered money was missing by

calling the bank, but she also stated she found out when she had tried to use her ATM

card at a machine. Johnson also points out that Hollowell stated that the attack began at

5:00 a.m., whereas Levick testified that she was awoken by a knock at 4:30 a.m. Further,

Hollowell testified that she made repeated requests that Levick call the police, whereas

Levick heard only one request.

       {¶24} Both Hollowell and Johnson testified at trial. The court was in the best

position to weigh the witnesses’ credibility.          Any inconsistencies in Hollowell’s
testimony were not of the sort that would lead us to find a manifest miscarriage of justice.

 Having reviewed the trial transcript, we cannot say that the trial court clearly lost its way

in crediting Hollowell’s version of events over Johnson’s. Accordingly, this assignment

of error is overruled.

       {¶25} In his third assignment of error Johnson asserts that he was denied his Sixth

Amendment right to effective assistance of counsel.           To succeed on a claim of

ineffective assistance of counsel the defendant must show that “(1) the performance of

defense counsel was seriously flawed and deficient and (2) the result of the defendant’s

trial or legal proceeding would have been different had defense counsel provided proper

representation.” State v. Griffith, 8th Dist. No. 97366, 2012-Ohio-2628, ¶ 15 (citing

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). When

determining whether counsel’s performance was deficient, we generally will not find

ineffective assistance of counsel simply because a tactical or strategic trial decision

proves unsuccessful.     State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).

       {¶26} Johnson cites to a number of decisions made by his trial counsel that he

believes constitute ineffective assistance of counsel. Johnson asserts that counsel should

have requested bank records verifying that Johnson used Hollowell’s ATM card, and

phone records confirming that Hollowell bought a new phone after her old one was taken

by Johnson. Johnson also argues that his counsel should have investigated whether any

bills were in his name at Hollowell’s address. The record does not indicate whether or

not Johnson’s counsel made these inquiries, so it would be entirely speculative on our part
to assume that his counsel had not looked into these matters. Accordingly, we need not

further address these arguments.

       {¶27} Johnson also argues that his counsel should have ordered DNA testing on the

bloody towel, should have subpoenaed a representative from Key Bank to confirm

whether money was missing from Hollowell’s account, and should have subpoenaed his

parole officer to find out when she first learned about the new charges levied against

Johnson. We disagree, because these decisions could constitute sound trial strategy.

For example, Johnson argues that trial counsel should have requested DNA testing of the

bloody towel. But if the testing had revealed that Johnson was the source of the blood,

this test could have further inculpated Johnson. The same rationale applies to bank

records and to other questions trial counsel chose not to pursue at trial.

       {¶28} We, likewise, cannot find ineffective assistance for counsel’s failure to file a

Notice of Alibi. Johnson testified that at the time of the incident, he was with his other

girlfriend, Fair. According to Johnson, it was imperative that his attorney file a Notice of

Alibi so that Fair could testify and back up his story.1   On direct appeal we are limited to

a review of the trial record. We agree with the Ninth District’s conclusion that if “the

claimed ineffectiveness is a failure to call certain witnesses, a defendant will never be

       1
        Johnson’s attorney had attempted to call Fair to testify. Hollowell had
testified that she did not know Fair, and Johnson’s counsel wanted to impeach
Hollowell’s credibility on that issue. The trial court did not allow Fair to testify,
determining that her proposed testimony went only to a collateral matter.
Johnson’s attorney never attempted to call Fair to the stand as an alibi witness, so
it is unclear whether the trial court would have allowed her to testify as to
Johnson’s alibi.
able to establish prejudice on a direct appeal because the appellate court is limited to facts

that appear in the record before the trial court.”         State v. Rivera, 9th Dist. No.

06CA008909, 2007-Ohio-2156, ¶ 20. See also State v. Burns, 5th Dist. No. 10CA130,

2011-Ohio-5926, ¶ 48 (defense counsel did not provide a proffer of alleged alibi witness’

proposed testimony, so record did not demonstrate that counsel was deficient for failing

to call the witness to testify).   This rationale extends to cases where a witness cannot be

called to testify because defense counsel failed to provide a Notice of Alibi. State v.

Starks, 9th Dist. No. 20622, 2008-Ohio-408, ¶14. A reviewing court cannot assume that

the alibi witness would have supported the defendant’s alibi.

       {¶29} In the instant case, the record does not indicate why defense counsel did not

file a Notice of Alibi, nor why he decided not to call Fair to the stand to corroborate

Johnson’s alibi.    For all we know, this decision could have constituted sound trial

strategy.   Because trial counsel is presumed to be competent, and because we are

constrained to a review of the trial record, we cannot find ineffective assistance of

counsel on direct appeal.

       {¶30} The same is true for the jailhouse tapes.        Johnson argues that his trial

counsel should have filed a motion to compel the prosecutor’s office to provide

recordings of the jailhouse phone conversations between Johnson and Hollowell.

Johnson asserts that counsel should have moved for a mistrial or at least a continuance for

the prosecution to provide the jailhouse tapes. As we are constrained to the record below

on a direct appeal, we have no way of knowing the contents of these recordings.
Accordingly, we are not in a position to weigh in on whether defense counsel’s failure to

obtain the tapes amounts to ineffective assistance of counsel. Johnson’s third assignment

of error is overruled.

       {¶31} In his fourth assignment of error Johnson argues that the prosecution failed

to comply with Crim.R. 16 because it did not provide during discovery phone tapes

recorded between Johnson and Hollowell while Johnson was in jail. Hollowell testified

that she had spoken on the phone with Johnson “numerous times” while he was in jail,

that Johnson had instructed Hollowell not to come to court to testify, and that the

prosecution knew about these phone calls. Tr. 87. The prosecution did not provide

copies of these recorded conversations to Johnson during discovery.

       {¶32} Under Evid.R. 401, “‘[r]elevant evidence is any evidence having any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.”

Crim.R. 16 regulates the discovery process, and sets forth under what circumstances each

party is required to provide discovery.    The court has a number of remedies available

“[i]f at any time during the course of the proceedings it is brought to the attention of the

court that a party has failed to comply with this rule or with an order issued pursuant to

this rule.” Crim.R. 16(L). “A continuance, upon proper motion, is a favored method to

avoid prejudice that may flow from a failure to provide discovery yet ensure that the

charges against an accused are tried timely and fairly.”   State v. Bates, 191 Ohio App.3d

85, 2010-Ohio-5636, 944 N.E.2d 1206, ¶ 11 (2d Dist.).
       {¶33} However, where as here, the defendant fails to move for a continuance or to

otherwise bring the discovery violation to the trial court’s attention, we review only for

plain error. State v. Stembridge, 9th Dist. No. 23812, 2008-Ohio-1054, ¶ 12. Under

plain-error review, we will not reverse unless it is clear that, but for the error, the outcome

would have been different. State v. Bourn, 8th Dist. No. 92834, 2010-Ohio-1203, ¶ 18.

       {¶34} The record before us gives us no insight into the contents of the phone

conversations between Hollowell and Johnson.            The only testimony regarding the

conversations comes from Hollowell, who testified that Johnson told her not to come and

testify against him. With the lack of record evidence, we cannot say that it is clear that

the outcome would have been different had the tapes been provided to Johnson. Because

we find no plain error in the alleged discovery violation, we overrule the fourth

assignment of error.

       {¶35} The trial court’s orders are affirmed.

       It is ordered that appellees recover from appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



____________________________________
KENNETH A. ROCCO, JUDGE
LARRY A. JONES, SR., P.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS
(SEE ATTACHED OPINION)

SEAN C. GALLAGHER, J., CONCURRING:

       {¶36} Although I concur fully with the judgment and analysis of the majority, I

write separately to raise questions about the quality of the police investigation in this case.

 Appellant raises a number of questions about his trial counsel’s failure to seek DNA

testing on a bloody towel and the failure to subpoena bank records from KeyBank

regarding the victim’s account.      I can understand why a defense attorney does not want

to create negative evidence, but I am perplexed why a police department would fail to

secure readily available evidence.     This was largely a case of “he said, she said,” and the

trial judge was in the best position to evaluate the credibility of the witnesses. Even

with this evidence, it still would have been a “he said, she said” case, but it would have

been a lot clearer if the police secured all the evidence available.
