[Cite as State v. Curtis, 2020-Ohio-4152.]




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

 STATE OF OHIO                                    :
                                                  :
          Plaintiff-Appellee                      :   Appellate Case No. 28512
                                                  :
 v.                                               :   Trial Court Case No. 2017-CR-3784
                                                  :
 JAMAICA CURTIS                                   :   (Criminal Appeal from
                                                  :   Common Pleas Court)
          Defendant-Appellant                     :
                                                  :

                                             ...........

                                             OPINION

                             Rendered on the 21st day of August, 2020.

                                             ...........

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

MARK J. BAMBERGER, Atty. Reg. No. 0082053, P.O. Box 189, Spring Valley, Ohio
45370
      Attorney for Defendant-Appellant

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




WELBAUM, J.
                                                                                         -2-


       {¶ 1} Defendant-Appellant, Jamaica Curtis, appeals from her conviction on two

counts of nonsupport of dependents and the court’s denial of her motion for new trial. In

support of her appeal, Curtis contends that the trial court erred by failing to consider her

disability as evidence of her innocence.

       {¶ 2} After reviewing the record, we conclude that Curtis’s conviction for

nonsupport under R.C. 2919.21(B) was not against the manifest weight of the evidence.

The evidence indicated that Curtis did not support her children as required by court order,

and Curtis also failed to prove her affirmative defense under R.C. 2919.21(D).            In

addition, Curtis’s trial counsel did not render ineffective assistance of counsel by failing

to make a Crim.R. 29 motion for acquittal, which is based on insufficiency of the evidence.

Such a motion would not have changed the outcome of the trial because Curtis’s

conviction was not against the manifest weight of the evidence, which subsumes the issue

of sufficiency. Accordingly, the judgment of the trial court will be affirmed.



                              I. Facts and Course of Proceedings

       {¶ 3} On December 8, 2017, an indictment was filed charging Curtis with two

counts of nonsupport of dependents between August 1, 2015 and July 31, 2017. The

charges were both fifth-degree felonies and involved her children, L.C. and H.C. On

October 12, 2018, Curtis filed a waiver of her right to a jury trial and agreed to have her

case tried by the court.

       {¶ 4} On November 1, 2018, the parties appeared for a bench trial. At that time,

they agreed to admit State’s Exs. 1-6 and Defendant’s Ex. A. Transcript of Proceedings

(Bench Trial) (“Bench Tr.”), p. 4. The State’s exhibits included records pertaining to the
                                                                                        -3-


underlying divorce case, child custody and child support, the setting of child support, and

a printout from the support enforcement agency showing payments and lack of payments.

Id.   Curtis’s exhibit contained a number of medical records.

        {¶ 5} At trial, the parties also agreed to refer Curtis for intervention in lieu of

conviction (“ILC”) and to have the court delay reviewing the exhibits until the ILC

assessment was returned.       If the assessment indicated Curtis was an appropriate

candidate for ILC, the court would not need to review the exhibits; if she was not an

appropriate candidate, additional medical records might be needed, and the record would

be supplemented. The court would then be asked to move forward on the bench trial.

Id. at p. 5.

        {¶ 6} The trial court then referred Curtis for an ILC assessment and report,

scheduled Curtis to return to court on November 28, 2018, and admitted the exhibits. Id.

at p. 6-7. At that point, the State made an opening statement outlining the terms of the

indictment. Id. at p. 7-8. The defense, however, reserved the right to comment briefly

on the medical records if the parties reached the trial stage. Id. at p. 9. The court

agreed, and further both sides would be given the opportunity to make oral closing

arguments and submit written briefs. Id. After these discussions occurred, both sides

rested their cases. Id. at p. 10. Later that day, Curtis filed a motion for ILC, contending

that her drug and alcohol use was a factor leading to her criminal offenses.

        {¶ 7} On November 28, 2018, the parties again appeared before the court, and the

court noted that Curtis was eligible for intervention in lieu of conviction. Transcript of

Proceeding (ILC Report, Motion Hearing, Sentencing) (“ILC Tr.”), p. 4.          The court

commented, though, that before it granted the motion, Curtis would be required to plead
                                                                                          -4-


guilty to both counts. However, the guilty entries would not be filed, so that Curtis could

complete the ILC program. In that event, the case would be dismissed. But, if Curtis

failed to complete the program, the court would proceed immediately to sentencing. Id.

       {¶ 8} After the court advised Curtis of her rights, Curtis pled guilty to the charges.

Id. at p. 4-9. The court accepted the plea, advised Curtis of the conditions for compliance

with the ILC program, and ordered her to pay restitution of $8,558.91 to Ohio Child

Support Central in a monthly amount to be decided by that agency. Id. at p. 10-11.

       {¶ 9} No notice of further appearances is in the record, but on January 4, 2019, the

court filed an entry stating that Curtis and her attorney had appeared at the Court’s normal

docket on December 5, 2019, and had asked to submit additional documentation before

the court rendered its decision. The court then gave Curtis until January 18, 2019, to

submit further documentation. Nothing more was filed thereafter. As a result, the court

filed a bench trial decision on March 21, 2019, concluding that Curtis failed to pay support

as required between the dates alleged in the indictment. Bench Trial Decision, p. 1-2.

       {¶ 10} The court considered whether Curtis had proven an affirmative defense to

the charges, based on inability to pay and having made payment within her means. After

reviewing about 1,500 pages of medical records, the court concluded that Curtis had been

on and off of opioids since 2013, had a dependency on opioids, and that some of her

medical issues were related to opioid use. Id. at p. 4. In addition, the court observed

that despite having medical issues, Curtis had worked in 2013 and 2014 to support her

children. However, no evidence was presented about what had changed so that she

could no longer support them in 2015.         Id. at p. 4-5.   Based on all the evidence

presented (and lack of evidence), the court concluded that Curtis failed to provide
                                                                                          -5-


sufficient evidence of her defense under R.C. 2919.21(D) and found her guilty of the

charges in the indictment.

         {¶ 11} On May 30, 2019, Curtis filed a motion for new trial, based on the fact that

she had received a decision on April 23, 2019, from an administrative law judge. The

decision found that Curtis had been medically disabled since September 17, 2015, and

was entitled to receive full disability and disability insurance benefits. Curtis attached a

copy of the decision to her motion. After the State responded, the court set a hearing for

July 25, 2019.

         {¶ 12} At the hearing, Curtis conceded that her application for Social Security

benefits was filed in September 2015 and that no additional medical documents were

relied on in the Supplemental Social Security (“SSI”) decision other than those that had

been submitted to the trial court for its decision on the affirmative defense. ILC Tr. at p.

16-17.     Counsel for both sides also acknowledged that they were not able to find

authority indicating that the trial court would be bound by the SSI decision. Id. at p. 18.

         {¶ 13} On August 6, 2019, the court overruled the motion for new trial. The court

then sentenced Curtis to up to five years community control, with various conditions,

including payment of $8,558.91 to the Ohio Child Support Payment Central.              Curtis

timely appealed from the final order, and this case is ready for resolution.



                                                  II.

         {¶ 14} Curtis’s sole assignment of error states:

                The Trial Court Failed to Properly Consider the Manifest Evidence of

         the Defendant-Appellant’s Disability as Evidence of Innocence.
                                                                                          -6-


       {¶ 15} Although Curtis’s assignment of error alleges a manifest weight challenge,

her argument is primarily based on trial counsel’s failure to move for a “directed verdict”

(Crim.R. 29 acquittal). Curtis alleges that the outcome of the trial would have been

different if such a motion had been made.

       {¶ 16} Before we discuss the merits of this contention, we should note that this

case presents an unusual procedural posture. At the trial, the parties did not present

witnesses, but only stipulated to some documents. However, the court said that it would

not consider these documents because both sides had agreed that Curtis should be

referred for an ILC assessment. The court was amenable, and later granted the ILC

motion on a finding that Curtis was an appropriate candidate. The court also had Curtis

plead guilty in court, and Curtis signed the plea forms. In addition, the court accepted

the plea. ILC Tr. at p. 9-10. At that time, the court stated that it would hold the guilty

plea forms in abeyance and ordered various ILC conditions that Curtis was to follow. The

court never filed an entry granting the ILC motion, however.           The next thing that

happened was the court’s grant of time for Curtis to file additional information, which

Curtis failed to do. The court then entered its bench trial decision finding Curtis guilty as

charged.

       {¶ 17} There was no further discussion of ILC in the trial court and no indication

whether Curtis failed to complete ILC.       Instead, the court considered the evidence

previously presented and found Curtis guilty. During the rest of the case occurring after

the ILC hearing, including the oral hearing on the motion for new trial and sentencing,

Curtis did not object to the procedure that was followed, and did not, herself, mention ILC.

       {¶ 18} On consideration, we conclude that the court’s oral statements granting ILC
                                                                                          -7-


(and accepting the guilty pleas) were of no effect because the court never filed an entry

granting ILC. In Ohio, “courts speak only through their journal entries.” Kaine v. Marion

Prison Warden, 88 Ohio St.3d 454, 455, 727 N.E.2d 907 (2000). Accord State v. Smith,

2d Dist. Montgomery No. 26217, 2015-Ohio-700, ¶ 10 (“a court speaks only through its

journal entries, not through its oral pronouncements”).       As a result, ILC was never

granted, and the status of the case returned to where it was before the referral for the ILC

assessment. Consistent with its statement at trial that it would allow further evidence,

the court gave Curtis an opportunity to submit more evidence. However, Curtis elected

not to file anything thereafter, and the court correctly rendered a decision on the merits of

the case.

       {¶ 19} Turning to Curtis’s assignment of error, we note that “[a] weight of the

evidence argument challenges the believability of the evidence and asks which of the

competing inferences suggested by the evidence is more believable or persuasive.

State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 12. In this situation,

“ ‘[t]he court, reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the [factfinder] clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. The

discretionary power to grant a new trial should be exercised only in the exceptional case

in which the evidence weighs heavily against the conviction.’ ” State v. Thompkins, 78

Ohio St.3d 380, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172,

175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 20} Typically, in manifest weight review, we defer to trial court decisions on
                                                                                          -8-


credibility issues, as those courts are in the best position to make that determination.

State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).

However, in this case, there were no credibility decisions, because the case was decided

solely on documents that were submitted.

       {¶ 21} In her brief, Curtis makes no specific argument concerning why the

judgment was against the manifest weight of the evidence, and we conclude, after

reviewing the record, that it was not.

       {¶ 22} Curtis was charged with having violated R.C. 2919.19(B), which provides

that “(1) No person shall abandon, or fail to provide support as established by a court

order to, another person whom, by court order or decree, the person: (a) Is legally

obligated to support * * *.” R.C. 2919.21(G)(1) elevates the penalty to a fifth-degree

felony where, as here, “the offender has failed to provide support under division (A)(2) or

(B) of this section for a total accumulated period of twenty-six weeks out of one hundred

four consecutive weeks, whether or not the twenty-six weeks were consecutive * * *.”

       {¶ 23} The information submitted to the trial court leaves no doubt that Curtis failed

to pay child support in the required amounts and during the claimed time periods, and

Curtis therefore was guilty of having violated R.C. 2919.21(B) as charged. In fact, Curtis

did not dispute this at trial, nor has she disputed it here. Instead, her defense was that

she was unable to work during the time in question. Concerning such a defense, R.C.

2919.21(D) provides:

              It is an affirmative defense to a charge of failure to provide adequate

       support under division (A) of this section or a charge of failure to provide

       support established by a court order under division (B) of this section that
                                                                                        -9-


       the accused was unable to provide adequate support or the established

       support but did provide the support that was within the accused's ability and

       means.

       {¶ 24} “An affirmative defense operates to relieve an accused of criminal liability.

‘The burden of going forward with the evidence of an affirmative defense, and the burden

of proof, by a preponderance of the evidence, is upon the accused.’ ” State v. Jones, 2d

Dist. Montgomery No. 20162, 2004-Ohio-4519, ¶ 25, quoting R.C. 2901.05(A).

       {¶ 25} In Jones, the defendant claimed the trial court should have given the jury

an affirmative defense instruction because he was destitute and his claimed medical

condition prevented him from working. Id. at ¶ 26. We rejected that contention. We

noted that this defense requires proof of both parts of R.C. 2919.21(D), and that “[b]y its

terms, R.C. 2929.21(D) requires some evidence from which the jury could reasonably find

that Defendant ‘did provide the support that was within the accused's ability and means.’ ”

Id. at ¶ 28. We described this as “some evidence that a modicum of support was

provided.” Id. Because the defendant in that case provided no support during the

pertinent time period, we concluded that he had not been entitled to an instruction on the

defense.

       {¶ 26} Here, Curtis failed to present any evidence as to whether the support was

within her means, but she did provide evidence of a modicum of support.          The time

period in question was August 1, 2015 through July 31, 2017. During that time, Curtis

paid $1,537.85 in support, which was support for almost 17 weeks as opposed to

nonsupport for more than 87 weeks. This amount could be classified as a modicum of

support and could satisfy that part of the statutory requirement.
                                                                                          -10-


       {¶ 27} The burden of proof on this issue was not satisfied, however, because

Curtis offered no evidence of whether she tried to obtain work during the time when she

failed to provide support, nor did she submit evidence as to what income she did have

and how she supported herself from 2015 to 2017. The trial court therefore could not

have concluded, in the absence of proof, whether the amount Curtis did pay was the

support that was within her means.

       {¶ 28} Regarding the second requirement in R.C. 2919.21(B), which is that Curtis

was unable to provide support, Curtis’s excuse was that her medical conditions prevented

her from working. As noted above, the trial court rejected this argument because Curtis

was able to work with the same medical conditions in 2013 and 2014 and provided no

reason why she could not work in 2015 through 2017. We agree that there was no

explanation of this in the record.1

       {¶ 29} Specifically, between December 2013 and July 31, 2015 (before the dates

of non-payment alleged in the indictment), Curtis had 16 hospital visits or admissions.

At the time, Curtis was employed.       During these visits, she was treated for various

conditions, including:

              (1) (December 2013) – sepsis secondary to acute pyelonephritis (a

       kidney infection causing an eight-day stay);


1 Before discussing the medical records, we note that in its decision, the trial court said it
had reviewed 1,500 pages of medical records. See Bench Trial Decision (Mar. 21, 2019)
at p. 3. However, the only medical information in the record was in Defendant’s Ex. A,
which contains 465 pages of medical records. In addition to Ex. A, the trial court referred
to Ex. B in its decision. However, there is no record of such a document having been
admitted. The only documents admitted at trial or at any place in the record were
Defendant’s Ex. A, and several State exhibits, and these were the only documents
forwarded to the court’s property room. Nonetheless, we have reviewed all the medical
records in Ex. A, and they provide adequate support for the trial court’s decision.
                                                                               -11-


      (2) (March 2014) – left facial swelling (treated in emergency room

(“ER) and released that day);

      (3) (April 14, 2014) – nasal surgery for chronic sinusitis (outpatient

surgery);

      (4) (April 30, 2014) – post-op bleeding from surgery (treated in ER

and released);

      (5) (May 12, 2014) – five day stay for abdominal pain and removal of

gallbladder;

      (6) (May 21, 2014) – 11-day stay for abdominal pain following

altercation with patient at work, plus removal of appendix;

      (7) (July 2014) – complaint of abdominal pain (treated in the ER and

released);

      (8) (August 2014) – right upper quadrant abdominal pain (treated in

ER and released);

      (9) (September 2014) – chronic abdominal pain (treated in ER and

released);

      (10) (October 2014) – pelvic ultrasound for endometriosis, with no

acute findings;

      (11) (November 3, 2014) – abdominal pain (treated in ER and

released);

      (12) (November 9, 2014) – six-day admission for abdominal pain,

with no cause found and referred for pain management;

      (13) (December 2014) – abdominal pain (treated in ER and released,
                                                                                       -12-


      and given limited pain medication);

             (14) (January 3, 2015) – lower right jaw pain (treated in ER and

      released);

             (15) (January 13, 2015) – continued abdominal pain (treated in ER

      and released); and

             (16) (April 2015) – abdominal pain, (treated in ER and released; no

      further workup warranted).

Defendant’s Ex. A, p. 1-29, 63-68, 70-79, 83-88, 93-119, 123-148, 167-175,180-186, 192-

199, 208-210, 212-220, 227-257, 262-276, 277-284, 284-294, and 295-303.

      {¶ 30} Between August 1, 2015 and July 31, 2017 (the dates of nonsupport alleged

in the complaint), Curtis had fewer hospital visits (11), and for less significant medical

issues. Specifically, she had the following medical problems and admissions:

             (1) (August 2015) – left knee pain (given Percocet in ER and

      released);

             (2) (September 2015) – outpatient diagnostic and surgical

      arthroscopy left knee;

             (3) (May 6, 2016) – complaint of right-sided hip pain after falling in

      the shower (negative x-rays of hip and pelvis; treated in ER and released);

             (4) (May 12, 2016) – left anterior rib pain with no known injury

      (negative chest x-ray; treated in the ER and released);

             (5) (May 28, 2016) – right-sided flank pain and urinary complaints

      (treated at ER and released with oral antibiotics and pain medication);

             (6) (June 2016) – two-day admission for continued left lower
                                                                                      -13-


      quadrant abdominal pain;

             (7) (November 2016) – pain in left knee (MRI on knee; treated in ER

      and released);

             (8) (December 2016) – outpatient left knee diagnostic and surgical

      arthroscopy;

             (9) January 2017 – outpatient nasal surgery;

             (10) March 2017 – complaint of “abdominal migraine” (treated in ER

      and released); and

             (11) May 2017 – complaint of back pain with no injury (negative x-

      rays; treated in ER with pain medication and released).

Ex. A at p. 308-313, 315-317, 323-330, 335-343, 344-352, 359-365, 371-382, 385-404,

and 411-418. As indicated, the medical problems and treatment during this period were

less serious than the ones when Curtis was working, and the records lack any indication

of why she could not work as she had before.

      {¶ 31} According to the trial court, there was evidence of Curtis’s on and off

dependency on opioids, and this is supported in the record as well. See Ex. A at p. 257,

262, 264, 290, 330, 397, 400-405. However, the trial court stressed that addiction does

not excuse failure to pay support.    We agree.    Courts have held in the context of

adoption proceedings that voluntary decisions to use drugs do not provide a justifiable

excuse for failing to pay child support. E.g., In re Adoption of K.N.W., 4th Dist. Athens

No. 15CA36, 2016-Ohio-5863, ¶ 4.

      {¶ 32} We have not found similar authority concerning the affirmative defense in

R.C. 2919.21(D), but the duty to support in these two situations is the same.        The
                                                                                        -14-


Supreme Court of Ohio has also said, in the context of an adoption case, that a parent

does not violate the duty of support under R.C. 2919.21 if the court having jurisdiction

over the children has reduced the parental support obligation to zero or has eliminated

the obligation. See In re Adoption of B.I., 157 Ohio St.3d 29, 2019-Ohio-2450, 131

N.E.3d 28, ¶ 38. Notably, Curtis could have asked the divorce court to modify her

support obligation. However, nothing in the record indicates that Curtis availed herself

of this option. Furthermore, as the trial court observed, Curtis used drugs from 2013

onward and was still able to pay some support in 2013 and 2014.

       {¶ 33} As we noted, the medical records did not convince the trial court that Curtis

was unable to work. Again, this decision was not against the manifest weight of the

evidence. While the medical records showed that Curtis went to the hospital numerous

times during the relevant time period, there were a number of visits for various ailments

that were not supported by objective findings. For example, in a May 6, 2016 emergency

room visit to Sycamore Hospital, Curtis claimed she had fallen in the shower but had

negative x-rays. Nonetheless, she was prescribed 90 Percocet pills. Ex. A at p. 325-

327. Less than two weeks later, Curtis appeared at a different hospital (Southview), with

a claim of rib pain, without a specified cause of injury. Id. at p. 337.

       {¶ 34} In a March 2017 visit alleging “abdominal migraines,” the examiner noted

that Curtis had come to the emergency department “on numerous occasions with

negative imaging and labs to include 12+ CT scans over the past 2-3 years.” Id. at p.

397. At that time, Curtis was taking both Percocet and Tramadol for pain. Id. at p. 403.

       {¶ 35} The examiner further noted, after chart review, that:

              Pt follows with Dr Courtney Campbell MD at Ohio State for
                                                                                        -15-


       Gastroenterology specialist on 3/7/2017 for workup and evaluation. It was

       noted on chart review that patient has had these symptoms for 3+ years

       and is unresponsive to PO Narcotics i.e. Norco or Percocet as well as

       NSAIDS, Zofran, Bentyl and the only thing that has worked is Morphine and

       Dilaudid IV. On discharge Dr Campbell * * * [gave Curtis] an integrative

       medicine referral for alternative pain management strategies. Dr Campbell

       suggested no further CT/AP imaging indicated as patient has had 12+ CT

       images in the past 2-3 years which were negative and it is unlikely to further

       utility. Pt last ED visit for the abdominal pain was at MVA on 3/14/2017 for

       similar presentation and was treated with IV Haldol with no success and

       additional Morphine and Zofran with relief and was advised outpatient

       follow-up as all labs studies at that time were non-acute.

Ex. A at p. 404-405. On that visit, after Curtis was given Dilaudid twice in the emergency

room, she was released with a prescription for Tramadol for pain. Id. at 405. Curtis also

appeared again at a different emergency room in May 2017 for pain in her left back and

shoulder, but reported no injury, trauma, or fall. Id. at p. 413. X-rays were negative.

Curtis was given Valium but claimed no relief and was then given morphine. Id. at 418.

She was released with prescriptions for various drugs, including Tramadol. Id. These

records indicate drug-seeking activity and support the trial court’s conclusions.

       {¶ 36} Furthermore, even if this had been otherwise, there was simply no

explanation of why Curtis could not work during the pertinent time period. Accordingly,

we cannot find that this is the exceptional case in which the evidence weighed heavily

against the defendant’s conviction.
                                                                                          -16-


       {¶ 37} The second argument that Curtis makes is that trial counsel rendered

ineffective assistance by failing to file a Crim.R. 29 motion for acquittal.

       {¶ 38} “The right to counsel plays a crucial role in the adversarial system embodied

in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to

accord defendants the ‘ample opportunity to meet the case of the prosecution’ to which

they are entitled.” Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 80

L.Ed.2d 674 (1984), quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275,

63 S.Ct. 236, 87 L.Ed. 268 (1942).

       {¶ 39} “A convicted defendant's claim that counsel's assistance was so defective

as to require reversal of a conviction * * * has two components. First, the defendant must

show that counsel's performance was deficient. This requires showing that counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel's errors were

so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.

at 687. “An error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Id. at 691.

       {¶ 40} In Strickland, the court also stressed that “[j]udicial scrutiny of counsel's

performance must be highly deferential. It is all too tempting for a defendant to second-

guess counsel's assistance after conviction or adverse sentence, and it is all too easy for

a court, examining counsel's defense after it has proved unsuccessful, to conclude that a

particular act or omission of counsel was unreasonable. * * * A fair assessment of attorney
                                                                                         -17-


performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to

evaluate the conduct from counsel's perspective at the time. Because 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).

      {¶ 41} Curtis’s ineffective assistance claim is based on the failure to file a Crim.R.

29(A) motion for acquittal. This subsection of Crim.R. 29 provides that:

             The court on motion of a defendant or on its own motion, after the

      evidence on either side is closed, shall order the entry of a judgment of

      acquittal of one or more offenses charged in the indictment, information, or

      complaint, if the evidence is insufficient to sustain a conviction of such

      offense or offenses.

      {¶ 42} “A motion for acquittal under Crim.R. 29(A) is governed by the same

standard as the one for determining whether a verdict is supported by sufficient evidence.”

State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. See also

State v. Hudson, 2018-Ohio-423, 106 N.E.3d 205, ¶ 14 (2d Dist.).

      {¶ 43} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541.
                                                                                        -18-


In this situation, we apply the following test:

              An appellate court's function when reviewing the sufficiency of the

       evidence to support a criminal conviction is to examine the evidence

       admitted at trial to determine whether such evidence, if believed, would

       convince the average mind of the defendant's guilt beyond a reasonable

       doubt. The relevant inquiry is 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. Jenks, 61 Ohio St.3d 259, 259-60, 574 N.E.2d 492 (1991), paragraph two of the

syllabus, superseded by constitutional amendment on other grounds as stated in State v.

Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997).

       {¶ 44} Even if trial counsel had filed a motion under Crim.R. 29, it would not have

changed the outcome.        Specifically, “[a]lthough sufficiency and manifest weight are

different legal concepts, manifest weight may subsume sufficiency in conducting the

analysis; that is, a finding that a conviction is supported by the manifest weight of the

evidence necessarily includes a finding of sufficiency." (Citations omitted.) State v.

McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v.

Winbush, 2017-Ohio-696, 85 N.E.3d 501, ¶ 58 (2d Dist.).                  Consequently, “a

determination that a conviction is supported by the weight of the evidence will also be

dispositive of the issue of sufficiency.” (Citations omitted.) State v. Braxton, 10th Dist.

Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.

       {¶ 45} Because we have already concluded that the conviction was not against the

manifest weight of the evidence, a motion arguing sufficiency could not possibly have
                                                                                        -19-


been successful.      As a result, trial counsel did not render ineffective assistance of

counsel by failing to make such a motion.

       {¶ 46} Based on the preceding discussion, Curtis’s sole assignment of error is

overruled.

       {¶ 47} As a final matter, we note that Curtis has not raised any error concerning

the trial court’s failure to grant her motion for new trial.   In fact, this subject is not

mentioned in Curtis’s brief, nor has she mentioned the SSI decision. Therefore, we will

not consider the refusal to grant the motion for new trial.



                                      III. Conclusion

       {¶ 48} Curtis’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.

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



DONOVAN, J. and FROELICH, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Heather N. Ketter
Mark J. Bamberger
Hon. Dennis J. Adkins
