[Cite as State v. Slater, 2016-Ohio-7766.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                         C.A. No.       28049

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DWIGHT E. SLATER, JR.                                 COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2015 02 0541

                                  DECISION AND JOURNAL ENTRY

Dated: November 16, 2016



        WHITMORE, Judge.

        {¶1}     Appellant, Dwight E. Slater, Jr., appeals from the November 25, 2015 judgment

of the Summit County Court of Common Pleas. This Court affirms.

                                                  I

        {¶2}     In the early morning hours of February 19, 2015, S.K. called 911 to report a

domestic dispute between herself and her live-in boyfriend, Mr. Slater. Upon investigation into

S.K.’s allegations, Akron police officers arrested Mr. Slater and a temporary protection order

was issued in favor of S.K.

        {¶3}     Mr. Slater was indicted on (1) one count of domestic violence, in violation of R.C.

2919.25(A), a felony of the fourth degree, and (2) one count of domestic violence, in violation of

R.C. 2919.25(C), a misdemeanor of the second degree. The indictment was later supplemented

to include a third count for violating a protection order, in violation of R.C. 2919.27, a

misdemeanor of the first degree.
                                                 2


       {¶4}    Mr. Slater waived his right to a jury trial and a bench trial ensued. Officer

Matthew Scherick, Officer Robert Miller, Officer Jacob Fangmann, and S.K. testified on behalf

of the State. Mr. Slater testified on his own behalf.

       {¶5}    At the conclusion of trial, the court found Mr. Slater guilty of domestic violence,

in violation of R.C. 2919.25(A), a felony of the fourth degree. Further, the court acquitted Mr.

Slater of both misdemeanors: (1) domestic violence (R.C. 2919.25(C) and (2) violating a

protection order (R.C. 2919.27). The court sentenced Mr. Slater to two years community

control, which included, inter alia, a no contact provision as to S.K. and that Mr. Slater attend a

26-week batterer’s intervention program through Summit Psychological Associates.

       {¶6}    Mr. Slater now appeals, raising two assignments of error.

                                                 II

                                Assignment of Error Number One

       MR. SLATER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF
       COUNSEL GUARANTEED UNDER THE SIXTH AMENDMENT TO THE
       U.S. CONSTITUTION AND ARTICLE 1, SECTION 1, 10 & 16 OF THE OHIO
       CONSTITUTION.

       {¶7}    In his first assignment of error, Mr. Slater argues ineffective assistance of counsel

because trial counsel put forth “minimal effort” in defending him. Specifically, Mr. Slater

argues that trial counsel (1) failed to object to hearsay; (2) failed to call Dennis Williams-Luster,

an alleged eyewitness, to testify on his behalf; and (3) only made his Crim.R. 29 motion for “the

sake of the record.”

       {¶8}    In response, the State argues that Mr. Slater failed to delineate which statements

on pages 16-17, 21, 50-52 of the transcript he believes to be hearsay. Further, the State argues

that, due to the “overwhelming” evidence of Mr. Slater’s guilt, the trial court properly denied the

Crim.R. 29 motion, whether trial counsel made a strenuous argument or just made an argument
                                                 3


to preserve the record. Hence, the State argues that Mr. Slater suffered no prejudice because the

outcome of the court’s ruling would have been the same either way.

        {¶9}    To prevail on a claim of ineffective assistance of counsel, Mr. Slater must

establish (1) that his counsel's performance was deficient to the extent that “counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that but

for his counsel's deficient performance the result of the trial would have been different.

Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A deficient performance is one that

falls below an objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d

136 (1989), paragraph two of the syllabus. This Court, however, “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.’” Strickland at 689, quoting

Michel v. Louisiana, 350 U.S. 91, 101 (1955). In addition, to establish prejudice, Mr. Slater must

show that there exists a reasonable probability that, were it not for counsel's errors, the result of

the trial would have been different. Strickland at 694.

        {¶10} First, as to the alleged hearsay statements, Mr. Slater has not indicated which

statements he believes trial counsel should have objected to during the direct examinations of

Officers Scherick and Fangmann1. As such, this Court will not make an argument on his behalf.

See App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8

(May 6, 1998) (“If an argument exists that can support this assignment of error, it is not this

[C]ourt’s duty to root it out.”).


        1
         We note that Officer Fangmann only testified as to the allegations regarding a violation
of the temporary protection order. Mr. Slater was acquitted of this charge. Thus, no prejudice
occurred.
                                                 4


        {¶11} Second, as to trial counsel’s decision not to have Mr. Williams-Luster testify, trial

counsel explained his strategy as follows:

        [n]ow, although * * * Mr. Williams-Luster is present today, I do not anticipate
        calling him to testify. The reason being, while he was in the house during all of
        this, he has no direct observation of an alleged event. So it is testifying in the
        negative. Frankly, I think Mr. Slater is able to very clearly describe what
        happened that evening.

“[T]here are numerous avenues in which counsel can provide effective assistance of counsel in

any given case, and debatable trial strategies do not constitute ineffective assistance of counsel.”

State v. Maldonado, 9th Dist. Lorain No. 01CA007924, 2002-Ohio-2205, ¶ 7. Accordingly,

“‘[d]ecisions regarding the calling of witnesses are within the purview of defense counsel’s trial

tactics [ ]’ and absent a showing of prejudice, the failure to call witnesses will not be deemed

erroneous.” (Alterations sic.) Id., quoting State v. Coulter, 75 Ohio App.3d 219, 230 (12th

Dist.1992).   Here, the trial court heard Officer Scherick’s testimony that Mr. Williams-Luster

was present in the kitchen during this incident and that when asked “if he saw anything or heard

anybody fighting,” he said, “I didn’t see nothing.” Further, Mr. Slater has not pointed to

anything in the record that establishes a reasonable probability that, but for trial counsel’s

decision not to call Mr. Williams-Luster as a witness, the result of the trial would have been

different.

        {¶12} Third, as to the strength of trial counsel’s Crim.R. 29 motion, the trial court heard

testimony from two Akron police officers that: (1) S.K. and Mr. Slater lived together and have

two children in common; (2) on the night of the incident, S.K’s clothes were torn, she was

crying, she was wearing one shoe, and she had a bloody lip; and (3) S.K. stated that Mr. Slater

attacked her. Further, S.K. testified that Mr. Slater “[h]it [her] in [the] face.” In spite of this

evidence, trial counsel still moved for an acquittal after the State rested and again at the end of
                                                  5


trial. When reviewing a conviction for sufficiency, evidence must be viewed in a light most

favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus. The pertinent question is whether “any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.” Id. In viewing the above

evidence in a light most favorable to the State, Mr. Slater’s Crim.R. 29 motion, no matter how

persuasive, clearly would have been denied. Thus, because a rational trier of fact could have

found the essential elements of domestic violence, pursuant to R.C. 2919.25(A),2 proven beyond

a reasonable doubt, Mr. Slater cannot demonstrate prejudice.

         {¶13} Mr. Slater’s first assignment of error is overruled.

                                 Assignment of Error Number Two

         MR. SLATER’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT
         OF THE EVIDENCE [] IN VIOLATION OF THE DUE PROCESS CLAUSE OF
         THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I,
         SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.

         {¶14} In his second assignment of error, Mr. Slater argues that his conviction for

domestic violence, in violation of R.C. 2919.25(A), is against the manifest weight of the

evidence. Specifically, Mr. Slater argues that this matter is a classic “he said-she said” dispute,

and S.K. changed her testimony at trial as to what happened on February 19, 2015, and she “has

a propensity for staging incidents for the purpose of calling 911.”

         {¶15} In response, the State argues that the trial court did not err in “finding the * * *

officers and the victim to be more credible than the self-serving testimony of [Mr. Slater].” We

agree.




         2
         R.C. 2919.25(A) states that “[n]o person shall knowingly cause or attempt to cause
physical harm to a family or household member.”
                                                  6


        {¶16} In determining whether a conviction is against the manifest weight of the

evidence an appellate court:

   must review the entire record, weigh the evidence and all reasonable inferences,
   consider the credibility of witnesses and determine whether, in resolving conflicts in
   the evidence, the trier of fact clearly lost its way and created such a manifest
   miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

        {¶17} A weight of the evidence challenge indicates that a greater amount of credible

evidence supports one side of the issue than it supports the other. State v. Thompkins, 78 Ohio

St.3d 380, 387 (1997). Further, when reversing a conviction on the basis that the conviction was

against the manifest weight of the evidence, the appellate court sits as the “thirteenth juror” and

disagrees with the factfinder’s resolution of the conflicting testimony. Id. at 388, quoting Tibbs

v. Florida, 457 U.S. 31, 42 (1982). An appellate court must make every reasonable presumption

in favor of the judgment and findings of fact of the trial court. Karches v. Cincinnati, 38 Ohio

St.3d 12, 19 (1988). Therefore, this Court’s “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. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983); see also Otten at 340.

        {¶18} “Credibility determinations are primarily within the province of the trier of

fact[,]” who is “‘free to believe all, part, or none of the testimony of each witness.’” State v. Just,

9th Dist. Wayne No. 12CA0002, 2012-Ohio-4094, ¶ 42, citing State v. Violett, 9th Dist. Medina

No. 11CA0106-M, 2012-Ohio-2685, ¶ 11; State v. Cross, 9th Dist. Summit No. 25487, 2011-

Ohio-3250, ¶ 35, quoting Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184,

¶ 35.

        {¶19} In the present matter, after hearing testimony from several witnesses, including

Mr. Slater, and reviewing the evidence submitted at trial, the court found Mr. Slater guilty of
                                                  7


domestic violence, in violation of R.C. 2919.25(A), and acquitted him of all other charges. R.C.

2919.25(A) states that “[n]o person shall knowingly cause or attempt to cause physical harm to a

family or household member.”

       {¶20} Officer Scherick testified that he was one of the officers that responded to S.K’s

911 call regarding a “domestic fight.” Upon arriving at the parties’ address, Officer Scherick

observed S.K. coming out of an apartment complex across the street, and he described her

appearance and demeanor as follows:

       ***
       [a] female came to the doorway, very upset, crying. She looked shaken up. Her
       hair was disheveled. Her clothes were torn.
       ***
       I believe she had on just like a small black shirt and a pair of * * * leggings* * *.
       And she only had one shoe on, which was very odd, because that night it was very
       cold, extremely cold. * * * She wasn’t prepared for the weather. I mean, it was
       freezing out, and she came to the doorway in this condition.
       ***
       And I’m struck by her appearance and how she is not prepared to be standing
       outside, and the first thing I thought to do is get her in our car, because it’s a lot
       warmer in our car than standing on the street or the sidewalk in the cold. I look at
       her further. She has red marks on her face and a little bit of blood on her mouth.
       ***
       She kept her hand close to her chest because her bra was exposed. * * * She was
       very upset. I could tell she was crying.
       ***
Further, Officer Scherick testified that S.K. told him that: (1) she lived with Mr. Slater; (2) they

had children together; (3) they argued over Mr. Slater’s cousin visiting and a cell phone; and (4)

“[Mr. Slater] hit [her]. [Mr. Slater] attacked [her].”

       {¶21} Officer Miller testified that when he and Officer Scherick first arrived at the

parties’ home, he observed S.K. “run out of a house across the street” looking “upset like she had

been crying,” and wearing “disordered” clothing and only one shoe.             Officer Miller also

observed that S.K. had “a spot of blood on her mouth.” Further, Officer Miller stated that Mr.
                                                 8


Slater admitted to arguing with S.K., but also stated that he “wasn’t even sure what they argued

about.” Officer Miller indicated that he did not observe any injuries to Mr. Slater’s person.

       {¶22} S.K. testified that she was in a relationship with Mr. Slater for ten years and they

had two children together. Further, she was helping to raise Mr. Slater’s son from a prior

relationship. At the time of the incident, she lived with Mr. Slater and their children at Moore

Street in Akron, Ohio. On the date in question, S.K. testified that she and Mr. Slater were

arguing over whether or not she would go upstairs to bed, and the argument turned physical.

S.K. further testified that Mr. Slater threatened “he was going to drive [S.K.] outside,” and then

he “[h]it [her] in [the] face.” S.K. went to a neighbor’s house and called the police.

       {¶23} Mr. Slater testified that he typically works from 5:30 p.m. in the evening to 1:30

a.m. in the morning, Sunday through Thursday. On the date in question, Mr. Slater picked up his

cousin, Mr. Williams-Luster, after work, went through a drive-through to buy beer, and came

home to find S.K. awake and cleaning the kitchen. Mr. Slater testified that he and S.K. had been

having some disagreements, so he was hesitant about Mr. Williams-Luster coming over to the

house that evening. However, Mr. Slater invited his cousin inside, approached S.K. in the

kitchen, and asked her the location of the remote control for the television in order to adjust the

volume. According to Mr. Slater, this question spurred an argument because S.K. claimed that

she did not have the remote control or her cell phone with the remote control app on it. Mr.

Slater continued questioning her about the whereabouts of her cell phone. In response, S.K. left

the house. Mr. Slater further testified that he did not raise his voice or touch S.K. during the

argument, and, when she left the house, there were no marks on her face.

       {¶24} As stated above, the trier of fact is free to believe all, some, or none of a witness’

testimony.   See Just, 2012-Ohio-4094, at ¶ 42.        “Similarly, when conflicting evidence is
                                                 9


presented at trial, a conviction is not against the manifest weight of the evidence simply because

the [trier of fact] believed the [police officers’ and S.K.’s] testimony over the testimony of [Mr.

Slater], as in the instant case.” See State v. Yarbour, 9th Dist. Medina No. 04CA0008-M, 2004-

Ohio-5444, ¶ 22, citing State v. Warren, 106 Ohio App.3d 753, 760 (1st Dist.1995). Further,

having reviewed the record, we cannot conclude that the court clearly lost its way by doing so.

See Otten, 33 Ohio App.3d at 340.

       {¶25} Mr. Slater’s second assignment of error is overruled.

                                                III

       {¶26} Mr. Slater’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                        10


Costs taxed to Appellant.




                                             BETH WHITMORE
                                             FOR THE COURT



MOORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

DAVID G. LOMBARDI, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
