[Cite as State v. Leigh, 2014-Ohio-298.]




                 Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA
                           ___________________________________

                              JOURNAL ENTRY AND OPINION
                                        No. 99181
                           ___________________________________

                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                      AUSBURN LEIGH
                                                       DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-556285 and CR-556762
                                   Application for Reopening
                                      Motion No. 469299

        RELEASE DATE:               January 29, 2014
FOR APPELLANT

Ausburn Leigh, pro se
Inmate No. 632790
Lebanon Correctional Institution
P.O. Box 56
Lebanon, OH 45036


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Katherine Mullin
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:

       {¶1} Appellant, Ausburn Leigh, has filed an application with the court of appeals

to reopen this court’s judgment in State v. Leigh, 8th Dist. Cuyahoga No. 99181,

2013-Ohio-3243, pursuant to App.R. 26(B). The record establishes that a jury convicted

Leigh of felonious assault. In his initial appeal, Leigh alleged that the evidence was

insufficient to sustain his conviction.    Id. at ¶ 12.    The assignment of error was

overruled.   Leigh contends that the ineffectiveness of appellate counsel merits the

reopening of his appeal, which the state has opposed. For the reasons that follow, we

deny Leigh’s application for reopening.

       {¶2} App.R. 26(B)(5) requires an appellant to show a “genuine issue as to whether

[he] was deprived of the effective assistance of counsel on appeal.”

       {¶3} The appropriate standard to determine whether a defendant has received

ineffective assistance of appellate counsel is the two-pronged analysis found in Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).           State v.

Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10.

       {¶4} Appellant “must prove that his counsel [was] deficient for failing to raise the

issues he now presents and that there was a reasonable probability of success had he

presented those claims on appeal.” State v. Sheppard, 91 Ohio St.3d 329, 330, 744

N.E.2d 770 (2001), citing State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),

paragraph three of the syllabus.   Appellant “bears the burden of establishing that there

was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective assistance of
counsel on appeal.” State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). To

establish such a claim, Leigh must demonstrate that counsel’s performance was deficient

and that the deficiency prejudiced the defense. Strickland.    Appellate counsel is neither

required to raise and argue assignments of error that are meritless, nor is counsel

ineffective for not raising every conceivable assignment of error. Jones v. Barnes, 463

U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); State v. Gumm, 73 Ohio St.3d 413, 653

N.E.2d 253 (1995).

         {¶5} Leigh asserts that his appellate counsel was ineffective in two respects: (1)

counsel should have raised the ineffectiveness of trial counsel’s cross-examination of the

nurse witness; and (2) appellate counsel was ineffective for raising an assignment of error

that challenged the sufficiency of the evidence rather than arguing that the conviction was

against the manifest weight of the evidence.

         {¶6} With respect to his first contention, Leigh focuses on the testimony of Nurse

Enochs. Enochs is employed by the Cleveland Clinic Foundation as a staff registered

nurse.    She has taken care of patients who have been sexually assaulted.   The victim in

this case presented to the emergency room on November 10, 2011, and reported that she

had been raped.     While performing the rape kit examination, Enoch noted a bruise on the

victim’s left cheek.   Enoch stated that the bruise had not happened within the past few

hours.

         {¶7} Days later, on November 18, 2011, police encountered the victim at a gas

station where they observed her upset and crying, with cuts on her nose and left cheek.
Leigh, 8th Dist. Cuyahoga No. 99181, 2013-Ohio-3243, ¶ 4. A CT scan showed the

victim had facial and orbital fractures. Id. at ¶ 6.      The victim reported to police that

appellant had struck her on the left side of the face.

       {¶8} Appellant believes that, because of the bruise on the victim’s left cheek, his

trial counsel should have asked Enoch if it was possible that the victim’s eye was already

fractured on November 10, 2011.        However, defense counsel did cross-examine Enoch

about the bruise on her left cheek.   Specifically, he asked if any X-rays had been taken to

see if anything had been broken or any fractures were there at that time.      Enoch said that

no X-rays were taken.     Defense counsel also asked if Enoch took any photographs of the

bruise, and she again said no. From this line of questioning, a reasonable juror could

easily have inferred that the victim had a fracture at that time.        This was clearly the

purpose of asking whether any X-rays had been taken.           The manner in which counsel

phrased his cross-examination is a matter of trial strategy and does not constitute

ineffective assistance of counsel.           State v. Conway, 109 Ohio St.3d 412,

2006-Ohio-2815, 848 N.E.2d 810, ¶ 101 (“the scope of cross-examination falls within

the ambit of trial strategy, and debatable trial tactics do not establish ineffective assistance

of counsel”).   Even assuming the victim had a facial fracture on November 10, 2011,

there is testimony in the record that indicates she suffered new and additional injuries on

November 18, 2011, when appellant hit her in the face.             Therefore, Leigh has not

demonstrated how the result of the trial would have been different had counsel conducted
his cross-examination of Enoch differently. Accordingly, appellate counsel was not

ineffective for failing to raise this issue in an assignment of error.

       {¶9} Appellant also asserts that there was a reasonable probability that this court

would have sustained an assignment of error challenging his conviction as being against

the manifest weight of the evidence had it been raised.

       {¶10} An appellate attorney has discretion to decide which issues he or she

believes are the most fruitful arguments.       “Experienced advocates since time beyond

memory have emphasized the importance of winnowing out weaker arguments on appeal

and focusing on one central issue, if possible, or at most on a few key issues.”    Barnes,

463 U.S. 745, 751-752, 77 L.Ed.2d 987, 103 S.Ct. 3308.            The United States Supreme

Court in Barnes further held that

       Neither Anders [v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
       (1967)] nor any other decision of this Court suggests * * * that the indigent
       defendant has a constitutional right to compel appointed counsel to press
       nonfrivolous points requested by the client, if counsel, as a matter of
       professional judgment, decides not to present those points.

Id. at 751.   It is well settled that “[t]he power to reverse a judgment of conviction as

against the manifest weight must be exercised with caution and in only the rare case in

which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Also, Subdivision (3) of Article IV,

Section 3, Ohio Constitution, clearly states that “no judgment resulting from a trial by

jury shall be reversed on the weight of the evidence except by the concurrence of all three

judges hearing the cause.”      The power to reverse a conviction as being against the
manifest weight of the evidence is not only restricted, but also “must be exercised with

extreme caution and only in the exceptional case where the evidence weighs manifestly

against conviction.” State v. Wilson, 8th Dist. Cuyahoga Nos. 64442 and 64443, 1994

Ohio App. LEXIS 2508 (June 9, 1994). On these principles alone, Leigh’s argument

that his appellate counsel was ineffective for not asserting a challenge to his conviction as

being against the manifest weight of the evidence is meritless.

       {¶11} Additionally, a review of the record indicates that appellant’s felonious

assault conviction is not against the manifest weight of the evidence. A manifest weight

of evidence argument involves determining whether there exists a greater amount of

credible evidence to support one side of an issue rather than the other.            State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The appellate court weighs

the evidence and all reasonable inferences, considers the credibility of the witnesses and

determines whether, in resolving conflicts in the evidence, the fact finder clearly lost its

way and created a manifest miscarriage of justice such that the conviction must be

reversed and a new trial ordered.   Martin at 175.

       {¶12} The jury found appellant not guilty on all charges except the charge of

felonious assault.   There was testimony from police, medical professionals, and the

victim detailing the assault and the resulting injuries.     Other eyewitnesses observed

appellant hit the victim. There was some testimony that the victim did not suffer any

bruises from the assault. Specifically, Rosario testified that the victim did not have any

bruising or other injuries to her left cheek or eye following the incident.       However,
Rosario also indicated that she is Leigh’s former girlfriend.     Considering the record as a

whole, we cannot say that the jury clearly lost its way in how it resolved the conflicts in

the evidence.    This is not an exceptional case where the evidence weighs manifestly

against Leigh’s conviction for felonious assault; rather, it supports it.

       {¶13} For all of the foregoing reasons, appellant has not met the standard for

reopening his appeal.    The application to reopen is denied.



SEAN C. GALLAGHER, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
TIM McCORMACK, J., CONCUR
