[Cite as State v. Leigh, 2017-Ohio-7105.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     OTTAWA COUNTY


State of Ohio                                   Court of Appeals No. OT-16-028

        Appellee                                Trial Court No. 16 CR 010

v.

Gregory S. Leigh, Sr.                           DECISION AND JUDGMENT

        Appellant                               Decided: August 4, 2017


                                            *****

        James J. VanEerten, Ottawa County Prosecuting Attorney, and
        Dina Shenker, Assistant Prosecuting Attorney, for appellee.

        Loretta Riddle, for appellant.

                                            *****

        MAYLE, J.

        {¶ 1} Defendant-appellant, Gregory Leigh Sr., appeals the October 16, 2016

judgment of the Ottawa County Court of Common Pleas sentencing him for a conviction

of domestic violence. For the reasons that follow, we affirm.
                                      I. Background

       {¶ 2} On January 27, 2016, Leigh was indicted on one count of domestic violence

against his then-girlfriend, S.M., in violation of R.C. 2919.25(A) and (D)(4), a third-

degree felony. His case went to trial on August 30, 2016, and the jury found Leigh

guilty. On October 16, 2016, the trial court sentenced Leigh to 30 months in prison.

       {¶ 3} The incident that gave rise to the domestic violence charge occurred on

September 26, 2015. The victim, S.M., testified at trial. According to S.M., she and

Leigh were living and working together at a motel in Port Clinton. Sometime that day

they got into an argument in their motel room. While they were arguing, she slammed

the television remote on a table and broke the back of it. When Leigh saw that she broke

the remote, he became angrier, grabbed her by the throat, and then pushed her against the

wall. Leigh eventually let her go. S.M. then tried to get dressed. While she was looking

for her pants, Leigh grabbed her by her shirt and threw her on the bed. S.M. testified that

Leigh left the motel after throwing her on the bed. At the time, she had several scratches

on her neck and chest from Leigh grabbing her throat and shirt during the argument.

       {¶ 4} Immediately after the incident, S.M. left the room and went to the manager’s

office to call 911. Deputy Kevin Meek of the Ottawa County Sheriff’s Department

responded to S.M.’s 911 call. S.M. told him what happened, and the officer took

photographs of the scratches on her neck and chest. S.M. identified those photographs at

trial. S.M. said that the officer asked her to make a written statement against Leigh, but

she refused. S.M. refused to make a statement because she “just wanted [Leigh] to go”



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and because she was afraid of Leigh at that time. She testified, however, that she was no

longer afraid of him and she remained in a relationship with him. They continued to live

together until January 2016 when Leigh was arrested for domestic violence for the

September 26 incident.

       {¶ 5} Deputy Meek also testified at trial. He said that he found S.M. in the lobby

area of the motel. He observed that she had red marks on her neck and was visibly upset.

Deputy Meek said that S.M. told him the following story, which was generally consistent

with S.M.’s testimony at trial: Leigh and S.M. started arguing after Leigh called her lazy;

S.M. slammed and threw the television remote and Leigh knocked items off the

microwave; Leigh grabbed her by the throat and pushed her against the wall; when Leigh

let her go she tried to put on pants; Leigh then grabbed her by the throat and pushed her

on the bed; and S.M. later left the motel room and called 911 from the manager’s office.

Deputy Meek identified the photographs that he took of S.M.’s neck and chest. He

opined that the locations of the scratch marks in those areas were consistent with

someone being grabbed the way S.M. described. He said that he asked S.M. to provide a

written statement, but she refused.

       {¶ 6} Leigh testified and provided a different version of events. Leigh stated that

the issues between he and S.M. started around 8:00 a.m. on September 26 when Leigh

learned that the motel manager refused to pay them for trimming some hedges on the

motel property. Leigh and the manager got into an argument about the payment. The

manager fired Leigh and S.M., and then demanded that they vacate their motel room.



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Leigh contacted the motel owner who said that he would speak to the manager and told

Leigh that they could stay in their room. Leigh returned to the room and told S.M. about

his conversations with the manager and the owner. Leigh claimed that he and S.M. then

engaged in rough sex; he was adamant that the marks on S.M.’s neck and chest happened

during sex and were not related to any type of domestic violence. Leigh denied ever

holding S.M. against a wall by her throat.

       {¶ 7} Leigh testified that the motel manager came to the door shortly after Leigh

and S.M. had sex and asked them to do some work around the property. Leigh and the

manager began arguing again. Leigh claimed that the manager—not he—called S.M.

lazy. Leigh told the manager that he and S.M. would begin working soon. The manager

left and the couple began bickering. Leigh knocked some plates off of the microwave out

of frustration, and this caused S.M. to become increasingly angry. S.M. then slammed

the television remote on the table and broke it. After that happened, Leigh left the motel

because he did not want to do something that he would later regret. He claimed that he

left sometime between 11:00 a.m. and 11:30 a.m. to walk to a nearby store to buy

cigarettes. He called his brother to come pick him up.

       {¶ 8} Leigh said that S.M. lied on the stand, S.M.’s version of events was untrue,

and S.M. called the police because she was concerned about Leigh doing something

unsafe after he left the motel. He also said that S.M. knew “what to say to get somebody

removed from the property” and that she told the police that Leigh had hurt her “to

protect” him.



4.
         {¶ 9} After Leigh testified, the state called Deputy Meek again to testify in

rebuttal. He testified that Leigh’s version of the story did not make sense to him. He

claimed that Leigh’s account did not adequately explain why S.M. called 911. He also

claimed that he arrived at the motel only seven minutes after the 911 call came in and the

marks on S.M.’s body appeared fresh. When asked about S.M.’s demeanor, Deputy

Meek said that S.M. seemed “truthful,” was “visually upset over the whole incident,” and

“appeared to have been crying.”

         {¶ 10} Leigh appeals the trial court’s judgment, asserting three assignments of

error:

                ASSIGNMENT OF ERROR NO. I

                APPELLANT’S DUE PROCESS RIGHTS AND RIGHT TO A

         FAIR TRIAL WERE VIOLATED WHEN HIS PRIOR DOMESTIC

         VIOLENCE CONVICTIONS WERE ADMITTED AT TRIAL[.]

                ASSIGNMENT OF ERROR NO. II

                APPELLANT’S CONSTITUTIONAL RIGHT TO REMAIN

         SILENT WAS VIOLATED WHEN HE TESTIFIED WITHOUT THE

         COURT GOING OVER THAT RIGHT WITH DEFENDANT AND

         INSURING HE KNOWINGLY, INTELIGENTLY [sic] AND

         VOLUNTARILY WAIVED THAT RIGHT BEOFRE [sic] TAKING THE

         STAND.




5.
              ASSIGNMENT OF ERROR NO. III

              APPELLANT RECEIVED CONSTITUTIONALLY

       INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL

       COUNSEL COMMITTED SUCH ERRORS AS ALLOWING

       TESTIMONY OF AN OFFICER BOLSTERING THE TESTIMONY OF

       THE VICTIM AND EVIDENCE OF APPELLANT’S PRIOR DOMESTIC

       VIOLENCE CONVICTIONS.

                                  II. Law and Analysis

                A. Admission of Prior Domestic Violence Convictions

       {¶ 11} In his first assignment of error, Leigh contends that he was deprived of a

fair trial because the trial court allowed his two prior domestic violence convictions to be

admitted into evidence. Leigh argues that his prior domestic violence convictions were

inadmissible “other acts” under Evid. R. 404(B), which states that “[e]vidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order to

show action in conformity therewith,” and because evidence of his prior domestic

violence convictions was unduly prejudicial under Evid. R. 403. The state counters that

the prior convictions were properly admitted to prove an essential element of third-degree

felony domestic violence under R.C. 2919.25(A) and (D)(4), which requires proof that

the defendant pleaded guilty to or was convicted of two or more offenses of domestic

violence. We agree with the state.




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       {¶ 12} “[T]he admission of evidence lies within the broad discretion of the trial

court, and a reviewing court should not disturb evidentiary decisions in the absence of an

abuse of discretion that has created material prejudice.” State v. Conway, 109 Ohio St.3d

412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62, citing State v. Issa, 93 Ohio St.3d 49, 64,

752 N.E.2d 904 (2001). Our inquiry is limited to determining whether the trial court

acted unreasonably, arbitrarily, or unconscionably. Id., citing State v. Barnes, 94 Ohio

St.3d 21, 23, 759 N.E.2d 1240 (2002).

       {¶ 13} Under R.C. 2919.25(A), “[n]o person shall knowingly cause or attempt to

cause physical harm to a family or household member.” Generally, a violation of that

section is a first-degree misdemeanor. R.C. 2919.25(D)(2). If, however, the defendant

previously pleaded guilty to or was convicted of two or more offenses of domestic

violence, a violation of R.C. 2919.25(A) is a third-degree felony. R.C. 2919.25(D)(4).

When a prior conviction elevates the degree of an offense—for example, where a prior

conviction makes the offense a third-degree felony instead of a first-degree

misdemeanor—the prior conviction is an essential element of the crime that the state

must prove beyond a reasonable doubt. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-

1017, 926 N.E.2d 1239, ¶ 90; State v. Torres, 6th Dist. Wood No. WD-98-049, 1999

Ohio App. LEXIS 1408, 7-8 (Mar. 31, 1999).

       {¶ 14} Here, Leigh was charged with third-degree felony domestic violence under

R.C. 2919.25(A) and (D)(4), making proof of his prior convictions an essential element

of the state’s case. Because Leigh’s prior convictions are elements of the crime, they are



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not “other acts” evidence under Evid.R. 404(B). State v. Spaulding, Slip Opinion No.

2016-Ohio-8126, ¶ 118; Torres at 7-8. Accordingly, the trial court acted within its

discretion by admitting Leigh’s prior domestic violence convictions into evidence. We

find, therefore, that Leigh’s first assignment of error is not well-taken.

                                B. Right to Remain Silent

       {¶ 15} In his second assignment of error, Leigh claims that his Fifth Amendment

right to remain silent was violated when the trial court did not discuss this right with him

before he took the stand. More specifically, Leigh argues that the trial court was required

to ensure that Leigh knowingly, intelligently, and voluntarily waived his Fifth

Amendment rights before he testified in his own defense. The state asserts that Leigh had

adequate time to consult with counsel and, in any event, the trial court sufficiently

advised Leigh of his right to remain silent when it told prospective jurors during voir dire

(with Leigh present) that Leigh was not required to testify.

       {¶ 16} A defendant’s right to testify or not testify on his own behalf is a personal

right that only the defendant can waive. State v. Bey, 85 Ohio St.3d 487, 499, 709 N.E.2d

484 (1999). Despite the importance of this right, “a trial court is not required to conduct

an inquiry with the defendant concerning the decision whether to testify in his defense.”

(Emphasis in original.) Id.; State v. Seibert, 6th Dist. Wood No. WD-02-017, 2003-Ohio-

3107, ¶ 10. Because a trial court is not required to conduct any type of colloquy with the

defendant regarding his decision to testify, a court’s failure to do so is not error. Bey at

500.



8.
       {¶ 17} Accordingly, the trial court was under no obligation to inform Leigh of his

right to remain silent, nor was the trial court required to ensure that he was knowingly,

voluntarily, and intelligently waiving that right before he testified on his own behalf. We

find that Leigh’s second assignment of error is not well-taken.

                          C. Ineffective Assistance of Counsel

       {¶ 18} In his third assignment of error, Leigh argues that his trial attorneys were

ineffective for two reasons: (1) they did not move to exclude or bifurcate Leigh’s prior

domestic violence convictions, and (2) they did not object to Deputy Meek’s testimony

that S.M. “seemed truthful.” In response, the state argues that counsel was not ineffective

because (1) Leigh’s prior convictions were an essential element of third-degree felony

domestic violence, and (2) Deputy Meek’s statement was appropriate because it was

offered in rebuttal to Leigh’s testimony.

       {¶ 19} Properly licensed Ohio lawyers are presumed to be competent. State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. In order to prevail

on a claim of ineffective assistance of counsel, an appellant must show that counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S.

668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffective assistance of

counsel, an appellant must show “(1) deficient performance of counsel, i.e., performance

falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a

reasonable probability that, but for counsel’s errors, the proceeding’s result would have



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been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶

204, citing Strickland at 687-88. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761

N.E.2d 18 (2002). As recognized in Strickland, there are “countless ways to provide

effective assistance in any given case,” and “[j]udicial scrutiny of counsel’s performance

must be highly deferential.” Strickland at 689; State v. Bradley, 42 Ohio St.3d 136, 142,

538 N.E.2d 373 (1989).

                                  1. Prior Convictions

       {¶ 20} Leigh first argues that his attorneys were ineffective for not moving to

exclude or bifurcate his prior domestic violence convictions.

       {¶ 21} As we discussed above, the state needed to establish Leigh’s prior

convictions of domestic violence to prove that Leigh committed third-degree felony

domestic violence against S.M. Thus, the convictions were admissible and could not be

bifurcated from the rest of the state’s case against Leigh. Spaulding, Slip Opinion No.

2016-Ohio-8126, ¶ 118; Torres, 6th Dist. Wood No. WD-98-049, 1999 Ohio App.

LEXIS 1408, at 7-8.

       {¶ 22} Moreover, when counsel acts on reasonable tactical strategies, a defendant

cannot claim ineffective assistance. State v. Clayton, 62 Ohio St.2d 45, 47, 402 N.E.2d

1189 (1980). In this case, defense counsel stipulated to the admission of Leigh’s prior

convictions “so the deputy won’t have to take the stand and reiterate.” Defense counsel

therefore prevented the jury from hearing the details of the prior convictions, which were



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not relevant to the case and had the potential to be unduly prejudicial. We find this to be

a matter of trial strategy and not ineffective assistance.

                         2. Deputy Meek’s Rebuttal Testimony

       {¶ 23} Leigh also argues that his attorneys were ineffective because they failed to

object to Deputy Meek’s rebuttal testimony that S.M. “seemed truthful.” He contends

that this constituted improper bolstering of S.M.’s veracity. While we agree that Deputy

Meek’s statement was not properly admissible, we do not agree that Leigh’s attorneys

provided ineffective assistance by failing to object to it.

       {¶ 24} A police officer’s opinion of another witness’s truthfulness is inadmissible.

State v. Cooper, 6th Dist. Lucas No. L-12-1296, 2014-Ohio-1294, ¶ 24, citing State v.

Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 122. But any error is

mitigated if the victim testifies and is subject to cross-examination. See State v.

Coleman, 6th Dist. Lucas No. L-15-1056, 2016-Ohio-7335, 72 N.E.3d 1086, ¶ 34.

“When the victim testifies, the jury is able to hear the victim's answers, witness her

demeanor and judge her credibility completely independent of the other's testimony

concerning the veracity of the victim.” State v. Hupp, 3d Dist. Allen No. 1-08-21, 2009-

Ohio-1912, ¶ 20.

       {¶ 25} Here, trial counsel should have objected to Deputy Meek’s statement that

S.M. “seemed truthful.” We find, however, that Leigh was not prejudiced by this error.

S.M. testified at trial and was cross-examined by Leigh’s attorney, so the jury was able to




11.
assess her veracity independently of Deputy Meek’s statement. Moreover, we cannot say

that the outcome of the trial would have been different but for counsel’s failure to object.

       {¶ 26} We therefore find that defense counsel’s failure to object to Deputy Meek’s

improper testimony was harmless error. Coleman at ¶ 34. As such, Leigh’s third

assignment of error is not well-taken.

                                     III. Conclusion

       {¶ 27} The October 13, 2016 judgment of the Ottawa County Court of Common

Pleas is affirmed. Leigh is ordered to pay the costs of this appeal pursuant to App.R. 24.



                                                                       Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J
                                                _______________________________
Christine E. Mayle, J.                                      JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE



           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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