[Cite as State v. Small, 2012-Ohio-149.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   John W. Wise, J.
                          Plaintiff-Appellee   :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 10-CA-138
                                               :
                                               :
DOUGLAS D. SMALL                               :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Licking County
                                                    Court of Common Pleas Case No.
                                                    10-CR-00246

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             January 13, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

KENNETH W. OSWALT                                   MATTHEW J. KINSMAN
Licking County Prosecutor                           33 W. Main Street
Licking County, Ohio                                P.O. Box 4190
20 S. Second Street, Fourth Floor                   Newark, Ohio 43058-4190
Newark, Ohio 43055
                                                    DOUGLAS D. SMALL
                                                    Inmate #A639-643
                                                    Ross Correctional Institute
                                                    P.O. Box 7010
                                                    16149 St. Route 104
                                                    Chillicothe, Ohio 45601
[Cite as State v. Small, 2012-Ohio-149.]


Edwards, J.

        {¶1}     Appellant, Douglas Small, appeals his conviction and sentence entered in

the Licking County Court of Common Pleas. Appellant was convicted by a jury of one

count of Robbery, a felony of the second degree, in violation of R.C. 2911.02(A)(2), one

count of Intimidation of a Victim/Witness in a Criminal Case, a felony of the third degree,

in violation of R.C. 2921.04(B), two counts of Assault, misdemeanors of the first degree,

in violation of R.C. 2903.13(A)(1), and one count of Intimidation, a felony of the third

degree, in violation of R.C. 2921.03(A).

        {¶2}     The trial court sentenced appellant to a term of three years on each of the

felony counts ordered to be served consecutively to one another for a total prison term

of nine years. The misdemeanor sentences were ordered to be served consecutively

with each other and concurrently with the other counts.

        {¶3}     Counsel for appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,

indicating that the within appeal was wholly frivolous and setting forth two proposed

assignments of error.            Appellant did file a pro se brief alleging one additional

assignment of error as well as one assignment of error which mirrors one raised by

counsel relative to the consecutive sentences.

        {¶4}     Appellant raises the following potential assignments of error:

                                                    I

        {¶5}     “THE      TRIAL      COURT   ERRED     BY   OVERRULING       APPELLANT’S

CRIMINAL RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL.”
Licking County App. Case No. 10-CA-138                                                   3


                                                 II

       {¶6}   “THE TRIAL COURT ERRED IN FAILING TO MAKE THE REQUIRED

FINDINGS UNDER R.C. 2929.14(E)(4) TO JUSTIFY CONSECUTIVE SENTENCES.”

                                                 III

       {¶7}   “TRIAL COUNSEL WAS INEFFECTIVE IN MULTIPLE WAYS, AND THE

CUMMULATIVE EFFECT RESULTED IN PREJUDICE OF DEFENDANT. (1) FAILING

TO RENEW CRIM.R. 29 MOTION FOR ACQUITTAL AT THE CLOSE OF ALL

EVIDENCE. (2) FAILING TO CALL KEY WITNESSES (3) FAILING TO PRESENT

DEFENDANTS PHONE RECORDS.”

       {¶8}   In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant’s counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time

to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies

these requirements, the appellate court must fully examine the proceedings below to

determine if any arguably meritorious issues exist. If the appellate court also determines

that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal without violating constitutional requirements, or may proceed to a

decision on the merits if state law so requires. Id.

       {¶9}   Counsel in this matter has followed the procedure in Anders v. California

(1967), 386 U.S. 738, we find the appeal to be wholly frivolous and grant counsel’s
Licking County App. Case No. 10-CA-138                                                       4


motion to withdraw. For the reasons which follow, we affirm the judgment of the trial

court:

                                                   I

         {¶10} In his first assignment of error, appellant argues the trial court erred in

denying appellant’s motion for acquittal.

         {¶11} Crim. R. 29(A) requires a trial court, upon motion of the defendant, to

enter a judgment of acquittal of one or more offenses charged in an indictment if the

evidence is insufficient to sustain a conviction of the offense or offenses. However, a

trial court may not grant an acquittal by authority of Crim.R. 29(A) if the record

demonstrates that reasonable minds can reach different conclusions as to whether each

material element of a crime has been proven beyond a reasonable doubt. On appeal of

the denial of a Crim .R. 29(A) motion, 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.

Williams, 74 Ohio St.3d 569, 576, 1996-Ohio-91, 660 N.E.2d 724, citing State v. Jenks

(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.

         {¶12} Appellant   was    convicted   of       Robbery,   Intimidation   of   a   Crime

Victim/Witness, two counts of Assault, and Intimidation of a Public Servant. The facts

presented in the State’s case taken in the light most favorable to the State established

that appellant and three other men were involved in a day of heavy drinking. The men

moved their location during the course of the day ending up near appellant’s home.

Appellant physically attacked two of his drinking partners and demanded one of their

cell phones. After taking the cell phone, appellant told the phone’s owner that he would
Licking County App. Case No. 10-CA-138                                                  5


kill him if he called the police. Two other witnesses testified to the events. Police were

called, and appellant was arrested. Thereafter, the cell phone was discovered after a

search of appellant’s house.

      {¶13} At the time of the arrest, appellant threatened police. Furthermore, he

was acting in such a manner as to require police to institute additional safeguards in

transporting appellant.

      {¶14} Upon review of the evidence, we find appellant has failed to demonstrate

that when the evidence is considered in a light most favorable to the State a reasonable

trier of fact could not have found that all of the elements of each offense were proven

beyond a reasonable doubt.      For this reason, we find the trial court did not err in

denying appellant’s motion for acquittal.

      {¶15} Appellant’s first assignment of error is overruled.

                                               II

      {¶16} In his second assignment of error, appellant maintains the trial court

improperly imposed consecutive sentences.

      {¶17} In State v. Foster, the Ohio Supreme Court held, trial courts “have full

discretion to impose a prison sentence within the statutory range and are no longer

required to make findings or give their reasons for imposing maximum, consecutive, or

more than the minimum sentences.” Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470, ¶ 100.

      {¶18} The Ohio Supreme Court recently reaffirmed its hold in Foster, “We hold

that the decision of the United States Supreme Court in Oregon v. Ice does not revive

Ohio's former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and
Licking County App. Case No. 10-CA-138                                                     6

2929.41(A), which were held unconstitutional in State v. Foster. Because the statutory

provisions are not revived, trial court judges are not obligated to engage in judicial fact-

finding prior to imposing consecutive sentences unless the General Assembly enacts

new legislation requiring that findings be made.” State v. Hodge, 2010 WL 5392914.

       {¶19} Because the sentences in this case are within the range provided by R.C.

2929.14, the trial court did not abuse its discretion in imposing consecutive sentences.

       {¶20} For this reason, appellant’s second assignment of error is overruled.

                                                III

       {¶21} In his final assignment of error, appellant avers he was denied effective

assistance of trial counsel because trial counsel failed to renew the motion for acquittal,

failed to call two of the four police officers who were at the scene of the offense, and

failed to introduce appellant’s phone records into evidence.

       {¶22} We have already determined the motion for acquittal lacked merit,

therefore, appellant has not shown any prejudice due to the failure to renew the motion

for acquittal.

       {¶23} With regard to failing to introduce certain witnesses, counsel's decision

regarding the calling of witnesses is within the purview of trial strategy. State v. Coulter

(1992), 75 Ohio App.3d 219, 230, 598 N.E.2d 1324; State v. Hunt (1984), 20 Ohio

App.3d 310, 312, 486 N.E.2d 108. The failure to subpoena witnesses for trial does not

violate counsel's duty to defendant absent a showing of prejudice.        Id. Accordingly,

courts have traditionally been reluctant to find ineffective assistance of counsel in those

cases where an attorney fails to call a particular witness. See State v. Otte (1996), 74
Licking County App. Case No. 10-CA-138                                                  7

Ohio St.3d 555, 565-66, 660 N.E.2d 711; State v. Williams (1996), 74 Ohio St.3d 456,

659 N.E.2d 1254.

      {¶24} There is nothing in the record before us on appeal which would

demonstrate prejudice in failing to call the remaining two officers who were at the scene.

      {¶25} As it relates to the failure to introduce phone records, likewise, the phone

records are not in the record before us. Appellant has again failed to demonstrate the

failure to introduce these records prejudiced appellant.

      {¶26} For these reasons, appellant’s third assignment of error is overruled.




By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                                JUDGES

JAE/as1031
[Cite as State v. Small, 2012-Ohio-149.]


                IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
DOUGLAS D. SMALL                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 10-CA-138




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Licking County Court of Common Pleas is affirmed. Attorney Kinsman

is permitted to withdraw as counsel of record. Costs assessed to appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
