[Cite as State v. Lamar-Smith, 2016-Ohio-21.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 102688




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.


                            KOMEKO LAMAR-SMITH
                                                      DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-14-587255-A

        BEFORE: Kilbane, P.J., Blackmon, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED:                     January 7, 2016
ATTORNEY FOR APPELLANT

P. Andrew Baker
17877 St. Clair Avenue
Cleveland, Ohio 44110


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Amy Venesile
Timsi Pathak
Assistant County Prosecutors
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:

        {¶1} Defendant-appellant, Komeko Lamar-Smith (“Lamar-Smith”), appeals from

his conviction for felonious assault. Having reviewed the record and the controlling

case law, we affirm.

        {¶2} On July 24, 2014, Lamar-Smith was indicted with one count of felonious

assault, in violation of R.C. 2903.11(A)(1), for allegedly causing serious physical harm to

Lindsey Bremer (“Bremer”) on May 30, 2014.                Lamar-Smith pled not guilty.       He

waived his right to a jury trial, and the matter proceeded to a bench trial on January 27,

2015.

        {¶3} Bremer testified that she was attending a Memorial Day cookout with a

small group of friends at her boyfriend’s apartment complex in Warrensville Heights,

Ohio.    She had placed a $20 bill inside the cellophane of her pack of cigarettes and laid

it on the picnic table.     Lamar-Smith, a neighbor, walked over to the group who had been

socializing.      Moments later, he walked away with Bremer’s cigarettes.               Bremer

approached him, asking for her cigarettes.               Bremer testified that in response,

Lamar-Smith punched her in the eye.          She fell back and struck her head on the cement,

chipping her teeth and injuring her elbows.         Bremer further testified that she did not

strike Lamar-Smith and denied jumping on his back.

        {¶4} Bremer was taken to South Pointe Hospital shortly after midnight on May

31, 2014.       She was treated for a nose fracture, dental fractures, and a corneal abrasion on

her left eye.     She was discharged approximately three hours later.
       {¶5} Warrensville Heights Detective Dennis Fossett (“Detective Fossett”)

testified that Lamar-Smith provided a statement indicating that he had been in an

altercation with Bremer’s boyfriend, Duke Jones (“Duke”), who lives at the apartment

complex where the cookout was held.        The police were unable to obtain a statement

from Bremer, despite repeated attempts to contact her.     He did speak with Lamar-Smith,

who told Detective Fossett that his friend, Ernest Hill (“Hill”), would verify his version of

events. Detective Fossett was unable to obtain a statement from Hill, who indicated that

he was intoxicated at the cookout and could not remember what had happened.

       {¶6} Lamar-Smith testified on his own behalf. He acknowledged that he has

prior convictions, but he denied violently attacking Bremer and said that such conduct

was not consistent with his character. According to Lamar-Smith, although he was not

part of the group of Duke’s friends at the cookout, he and Duke have been friends for

many years and he is always welcome to help himself to food.         He prepared a plate of

food for himself and went over to say hello to Duke. At that point, Duke struck him in

the back of the head, and in response, he grabbed Duke.      Bremer, who had been sitting

on Duke’s lap, approached from the left and struck Lamar-Smith with a set of keys,

cutting his forehead.   Lamar-Smith stated that he then reflexively struck out against the

attack, in a backhand gesture.    He stated that he did not specifically intend to strike or

hurt Bremer.
      {¶7} Lamar-Smith testified that he spoke with the police immediately after they

arrived and explained what had happened.      A photograph admitted into evidence depicts

a small cut just beneath Lamar-Smith’s left eyebrow.

      {¶8} The trial court found Lamar-Smith guilty of felonious assault as charged in

the indictment. On February 26, 2015, the trial court determined that community control

sanctions will adequately protect the public and will not demean the seriousness of the

offense. The court sentenced Lamar-Smith to two years of community control sanctions

and ordered him to pay $480 in restitution.

      {¶9} Lamar-Smith now appeals and assigns four errors for our review.

                                Assignment of Error One

      The trial court erred when it sustained the State’s objection to

      Defendant-appellant’s testimony regarding retaliatory action taken by the

      alleged victim.

                                Assignment of Error Two

      Defendant-appellant’s conviction must be reversed because of improper
      cross-examination regarding his criminal history.

                               Assignment of Error Three

      Defendant-appellant’s conviction must be reversed for ineffective

      assistance of counsel.

                                Assignment of Error Four

      Defendant-appellant’s conviction was against the manifest weight of the
      evidence.
                                        Evid.R. 616

       {¶10} In his first assignment of error, Lamar-Smith asserts that the trial court erred

when it sustained the state’s objection to his testimony that after the altercation on May

30, 2014, Bremer and Duke approached him at his apartment and Duke exhibited a

weapon.      He argues that this evidence would have supported his claim that Bremer and

Duke exhibited animosity toward him and would have negated the claim that he was the

aggressor.

       {¶11} We review the trial court’s ruling for an abuse of discretion. State v.

Smith, 126 Ohio App.3d 193, 205-206, 709 N.E.2d 1245 (7th Dist.1998), citing         State v.

Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

       {¶12} Pursuant to Evid.R. 608(B):

       Specific instances of the conduct of a witness, for the purpose of attacking
       or supporting the witness’s character for truthfulness, other than conviction
       of crime as provided in Evid.R. 609, may not be proved by extrinsic
       evidence. They may, however, in the discretion of the court, if clearly
       probative of truthfulness or untruthfulness, be inquired into on
       cross-examination of the witness (1) concerning the witness’s character for
       truthfulness or untruthfulness, or (2) concerning the character for
       truthfulness or untruthfulness of another witness as to which character the
       witness being cross-examined has testified.

       {¶13} In addition, Evid.R. 608(B), precludes the admission of extrinsic evidence

as it relates to conduct reflecting upon untruthful character unless clearly probative.

Smith at 205.

       {¶14} Evid.R. 616 governs methods of impeachment of witnesses and states in

relevant part as follows:
       Bias, prejudice, interest, or any motive to misrepresent may be shown to

       impeach the witness either by examination of the witness or by extrinsic

       evidence.

       {¶15} In this matter, our review of the record indicates that this line of questioning

was not pursued during the defense’s cross-examination of Bremer in order to impeach

her following her direct testimony. Rather, it was offered during Lamar-Smith’s direct

testimony, as extrinsic evidence of a specific instance of subsequent conduct in order to

negatively reflect upon Bremer’s version of events.        It was highly prejudicial and of

minimal probative value since it purported to relate to events after the cookout.         We

therefore conclude that the trial court not did not abuse its discretion in concluding that

this evidence was not admissible.

       {¶16} The first assignment of error is without merit.

                                        Evid.R. 609

       {¶17} In his second assignment of error, Lamar-Smith argues that the trial court

erred in permitting the state to cross-examine him regarding his prior convictions.

       {¶18} As an initial matter, we note that it was Lamar-Smith who first presented

evidence of his record to the trial court, as he testified on direct examination as follows:

       Q. And, Mr. Smith, you’ve been in court before, right?

       A. Yes.

       Q. Okay. And you have a criminal record, correct?

       A. Yes.
         Q. Okay. And you’re well aware that the Court already knows about

         your criminal history, correct?

         {¶19} Insofar as he challenges the state’s cross-examination of him regarding his

record, we note that a reviewing court will not reverse a trial court’s decision on the

admission or exclusion of evidence absent an abuse of discretion. State v. Sage, 31 Ohio

St.3d 173, 180, 510 N.E.2d 343 (1987).            Moreover, in a bench trial, the court is

presumed to consider only reliable, relevant, and competent evidence in rendering its

decision unless it affirmatively appears to the contrary.         State v. Andre, 8th Dist.

Cuyahoga No. 101023, 2015-Ohio-17, ¶ 27, citing State v. White, 15 Ohio St.2d 146, 151,

239 N.E.2d 65 (1968).

         {¶20} Pursuant to Evid.R. 404(A)(1), “Evidence of a pertinent trait of character

offered by an accused, or by the prosecution to rebut the same is admissible[.]”          In

accordance with this rule, a defendant may introduce testimony, through himself or

others, of a relevant character trait that would tend to prove he acted in conformity

therewith on a particular occasion.        However, doing so “opens the door” to allow the

prosecution to rebut the same trait. The staff notes to Evid.R. 404(A)(1) illustrate this

point:

         The basic rule is that the defendant may, at his option, offer evidence of his

         good character as proof that he did not commit the act charged because such

         conduct is not in accord with his character. This is often denominated the

         “mercy defense.”    If the accused offers evidence of his good character,
       then and only then, can the prosecution offer evidence of the bad character

       of the accused.

       {¶21} Therefore, when a defendant offers evidence of his peaceful or nonviolent

nature, he opens the door for the state to rebut that claim and under Evid.R. 405, this may

include specific instances of conduct. See State v. Collins, 97 Ohio App.3d 438, 446,

646 N.E.2d 1142 (8th Dist.1994) (where defendant’s grandmother testified that he is not a

troublemaker, she was properly cross-examined with reference to his prior record); State

v. Hart, 72 Ohio App.3d 92, 97-100, 593 N.E.2d 463 (10th Dist.1991) (defendant’s

character witness was properly cross-examined with reference to his prior record).

       {¶22} In addition, Evid.R. 609 provides for impeachment of witness by evidence

of conviction of a crime.   It states in relevant part:

       (A)(2) Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B),
       evidence that the accused has been convicted of a crime is admissible if the
       crime was punishable by death or imprisonment in excess of one year
       pursuant to the law under which the accused was convicted and if the court
       determines that the probative value of the evidence outweighs the danger of
       unfair prejudice, of confusion of the issues, or of misleading the jury.

       {¶23} In this bench trial, Lamar-Smith stated, on cross-examination, “I didn’t just

violently attack this woman.      That is not my character.”   Under Evid.R. 405, the state

was permitted to impeach this claim. The trial court is presumed to have correctly

applied this rule, as well as Evid.R. 609, and considered only relevant evidence.      We

find no abuse of discretion.

       {¶24} The second assignment of error is without merit.

                               Ineffective Assistance of Counsel
       {¶25} In his third assignment of error, Lamar-Smith asserts that his trial counsel

was ineffective for failing to subpoena witnesses who would have testified in support of

his version of the events surrounding the altercation.

       {¶26} In order to substantiate a claim of ineffective assistance of counsel, the

appellant is required to demonstrate that (1) the performance of defense counsel was

seriously flawed and deficient, and (2) the result of the appellant’s trial or legal

proceeding would have been different had defense counsel provided proper

representation. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); State v. Brooks, 25 Ohio St.3d 144, 495 N.E.2d 407 (1986). “Judicial scrutiny

of counsel’s performance is to be highly deferential, and reviewing courts must refrain

from second-guessing the strategic decisions of trial counsel.”   State v. Carter, 72 Ohio

St.3d 545, 558, 1995-Ohio-104, 651 N.E.2d 965. Further, “trial counsel is entitled to a

strong presumption that all decisions fell within the wide range of reasonable,

professional assistance.” State v. Sallie, 81 Ohio St.3d 673, 675, 1998-Ohio-343, 693

N.E.2d 267, citing State v. Thompson, 33 Ohio St.3d 1, 10, 514 N.E.2d 407 (1987).

       {¶27} In order to obtain a reversal on ineffective assistance of counsel based upon

counsel’s failure to subpoena witnesses, a defendant must demonstrate that the testimony

of any one or more of the witnesses would be of significant assistance to the defense.

State v. Reese, 8 Ohio App.3d 202, 456 N.E.2d 1253 (1st Dist.1982); Cleveland v.

Graham, 8th Dist. Cuyahoga No. 100394, 2014-Ohio-3413, ¶ 11.
       {¶28} In this matter, the record demonstrates that immediately after the trial court

found Lamar-Smith guilty of felonious assault, his trial counsel stated:

       [Y]our Honor, I would point out that on Mr. Smith’s behalf, I did have my
       investigators go out and talk to numerous different witnesses that were
       provided for us in this case. Many of those witnesses did support Mr.
       Smith’s version of the events and what happened at that time; however,
       none of them would agree to come to court for us and would not honor a
       subpoena, for that matter. I can say as an officer of the Court that my
       investigator did go out and find other witnesses that did corroborate what
       Mr. Smith said. For those reasons, your Honor, I would ask the Court to
       impose either community control or a minimum term of incarceration.

       {¶29} In this matter, the record demonstrates that Detective Fossett conducted a

follow-up investigation. He went to the apartment complex at various times to speak

with potential witnesses.     Lamar-Smith informed Detective Fossett that Hill would

support the defense version of events. However, Hill stated that he was unable to

remember what had happened.        No other potential witnesses were mentioned during the

investigation of the incident or during the trial.      On this record, we conclude that

Lamar-Smith has failed to demonstrate that his trial counsel’s performance was deficient

since no specific witnesses have been identified.     Moreover, there is no indication that

the result of the trial would have been different had the potential witnesses testified.

       {¶30} The third assignment of error is without merit.

                    Weight of the Evidence Supporting the Conviction

       {¶31} In his fourth assignment of error, Lamar-Smith argues that his conviction for

felonious assault is against the manifest weight of the evidence because Bremer’s

testimony of an unprovoked felonious assault after she tried to get her cigarettes is not
credible or logical.   He also argues that his version of events, that he reflexively “struck

blindly at [her] when she cut him with a set of keys,” is more credible and is supported by

the other evidence in the record.

       {¶32} In State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d

541, the Ohio Supreme Court explained a challenge to the manifest weight of the

evidence supporting a conviction as follows:

       Weight of the evidence concerns “the inclination of the greater amount of

       credible evidence, offered in a trial, to support one side of the issue rather

       than the other. It indicates clearly to the jury that the party having the

       burden of proof will be entitled to their verdict, if, on weighing the evidence

       in their minds, they shall find the greater amount of credible evidence

       sustains the issue which is to be established before them. Weight is not a

       question of mathematics, but depends on its effect in inducing belief.”

       (Emphasis added.) Black’s [Law Dictionary (6 Ed.1990)], at 1594.

       When a court of appeals reverses a judgment of a trial court on the basis

       that the verdict is against the weight of the evidence, the appellate court sits

       as a “‘thirteenth juror’” and disagrees with the factfinder’s resolution of the

       conflicting testimony. [Quoting Tibbs v. Florida, 457 U.S. 31, 45, 102 S.

       Ct. 2211, 2220, 72 L.Ed.2d 652          (1982)].   See, also, State v. Martin

       (1983), 20 Ohio App. 3d 172, 175, 20 Ohio B. Rep. 215, 219, 485 N.E.2d

       717, 720-721 (“The 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 jury 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.”).

Id.

       {¶33} In this matter, Bremer testified that Lamar-Smith had not been invited to the

cookout, but nonetheless helped himself to something to eat. She testified that she

stopped him as he began to walk off with her pack of cigarettes that had her $20 bill. At

that point, Lamar-Smith struck her in the face. She was transported to the hospital for

emergency treatment. She sustained a broken nose and broke several teeth when she fell

backward. Lamar-Smith testified that he was struck by Duke, and that Bremer then struck

him with her keys, cutting his forehead. A small cut is depicted in a defense photograph.

 In an instinctive response to this cut, he then struck out in a backhanded fashion, striking

Bremer.

       {¶34} Following our review of the record, we conclude that the conviction is not

against the manifest weight of the evidence. We cannot say that the court clearly lost its

way and created a manifest miscarriage of justice in convicting him of felonious assault.

The record as a whole clearly supports the state’s version of events. It is far more

credible that the great injuries Bremer sustained to her eye, nose, and teeth were from the
head-on punch that she described, and not from an instinctive, reflexive, and backhand

blow, “struck blindly” at Bremer.      In addition, although defendant has a small cut

beneath his eyebrow, it is not logical that this small wound would have triggered such a

violent response. The conviction is not against the manifest weight of the evidence.

      {¶35} The fourth assignment of error is without merit.

      {¶36} Judgment is affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE

PATRICIA A. BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR
