[Cite as Cleveland v. Bryant, 2017-Ohio-7246.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105079



                                CITY OF CLEVELAND
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                       LOUIS BRYANT
                                                       DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                       Criminal Appeal from the
                                      Cleveland Municipal Court
                                      Case No. 2016 CRB 000095

        BEFORE:           Boyle, P.J., S. Gallagher, J., and Jones, J.

        RELEASED AND JOURNALIZED: August 17, 2017
ATTORNEY FOR APPELLANT

Jeffrey Froude
P.O. Box 771112
Lakewood, Ohio 44107


ATTORNEYS FOR APPELLEE

Barbara Langhenry
Director of Law
City of Cleveland Law Department
BY: Marco A. Tanudra
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

      {¶1} Defendant-appellant, Louis Bryant, appeals from a judgment of the

Cleveland Municipal Court convicting him of aggravated menacing.          He raises three

assignments of error for our review:

      1. The trial court erred in denying defense counsel’s [Crim.R. 29] motion
      for acquittal and finding defendant guilty because insufficient evidence was
      presented.

      2. The trial court erred in finding defendant guilty against the manifest
      weight of the evidence.

      3. Defendant received ineffective assistance of counsel because her failure
      to fulfill her affirmative duty to investigate and engage expert testimony
      prejudiced him.

      {¶2} For the reasons that follow, we affirm.

I. Procedural History and Facts

      {¶3} In January 2016, plaintiff-appellee, city of Cleveland, filed a complaint in

the Cleveland Municipal Court charging Bryant with aggravated menacing in violation of

Cleveland Codified Ordinances (“C.C.O.”) 621.06, a first-degree misdemeanor offense.

Bryant pleaded not guilty to the charge, and the case proceeded to a bench trial, where the

following facts were presented.

      {¶4} The victim testified that on the morning of December 24, 2015, he had just

returned home from the store and was attempting to enter his house when he heard “a shot

go off * * * come across [his] shoulder” and then “hit right up under the window.” The

victim showed police where there was a small hole in his aluminum siding, just under a

window that the victim believed was caused by the shot. When the victim looked across
the street, he noticed his neighbor, Bryant, pointing what appeared to be a high-powered

rifle in his direction.   The victim said the rifle was green with camouflage and had a

scope on it. At trial, the victim further testified that he and Bryant had never gotten

along since Bryant moved into the neighborhood two years earlier and that the shot had

“scared the heck out of [him].”

       {¶5} Cleveland police officer Brent Scaggs testified that he responded to the

victim’s call within 20 minutes and that Bryant was cooperative and polite when Officer

Scaggs knocked on Bryant’s door and explained why he was there. Bryant allowed the

officer to enter his home.    Bryant then escorted the officer upstairs to where he kept an

air pellet gun that matched the description of the gun that the victim had detailed to

police. Bryant then proceeded to show Officer Scaggs how he used the gun.

       {¶6} The officer testified that he wanted to discuss the situation with his

supervisor and therefore decided to confiscate the gun in lieu of making an arrest.    The

officer further testified that he observed a small hole in the siding of the victim’s home,

just beneath a window, and stated that he thought the pellet gun could have caused that

type of damage.

       {¶7} The city rested, and Bryant moved for a Crim.R. 29 acquittal.        The court

denied the motion.

       {¶8} Bryant testified in his defense. Bryant flatly denied shooting his pellet gun

at his neighbor. Although Bryant stated that he did encounter the victim on the morning

of December 24, 2015, he said that the encounter only involved the victim shouting a
derogatory remark at him.    According to Bryant, he and the victim did not get along after

a previous altercation and that ever since then, the victim would speak in a derogatory

way to him from across the street and make obscene gestures toward him.              Bryant

indicated that the victim knew what Bryant’s gun looked like from the times Bryant

practiced target shooting in his backyard. Bryant did not believe his air pellet gun was

capable of shooting a projectile across the street, much less capable of causing damage to

the home.

       {¶9} At the close of all evidence, the defense renewed its motion for acquittal,

which the trial court denied.    The court then found Bryant guilty of the charge of

aggravated menacing and sentenced him to a suspended 180-day jail term and a $1,000

fine, $950 of which the court waived.

II. Sufficiency and Manifest Weight of the Evidence

       {¶10} In his first and second assigned errors, Bryant claims that the trial court

erred in denying his Crim.R. 29 motions for acquittal because the city failed to present

sufficient evidence that he committed aggravated menacing and further argues that his

conviction was against the manifest weight of the evidence.

       {¶11} Crim.R. 29(A) provides that a trial court “shall order the entry of a judgment

of acquittal of one or more offenses charged in the indictment, * * * if the evidence is

insufficient to sustain a conviction of such offense or offenses.”         When assessing

whether the evidence presented at trial was sufficient to sustain a conviction, an appellate

court reviews that evidence in a light most favorable to the prosecution to determine
whether such evidence, if believed, would convince a rational trier of fact of the

defendant’s guilt beyond a reasonable doubt.       State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus. The proper inquiry is not whether the

prosecution’s “evidence is to be believed, but whether, if believed, the evidence against a

defendant would support a conviction.”       State v. Thompkins, 78 Ohio St.3d 380, 390,

678 N.E.2d 541 (1997).     Accordingly, a challenge to the sufficiency of the evidence tests

whether the prosecution has met its burden of production at trial.    Thompkins at 390.

       {¶12} On the other hand, a manifest-weight challenge tests whether the

prosecution has met its burden of persuasion.      Id.   On review from a manifest- weight

challenge, the appellate court is tasked with reviewing all of the evidence in the record

and in resolving the conflicts therein, determining whether 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.” Id. at 387. “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.     Moreover, this court recognizes that the “weight to

be given the evidence and the credibility of the witnesses are primarily for the trier of the

fact[.]”    State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and 100899,

2015-Ohio-1013, ¶ 73, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

paragraph one of the syllabus.

       {¶13} Here, Bryant was convicted of aggravated menacing in violation of C.C.O.

621.06, which states that “[n]o person shall knowingly cause another to believe that the
offender will cause serious physical harm to the person or property of the other person,

the other person’s unborn, or a member of the other person’s immediate family.”

       {¶14} The record reflects that the victim’s testimony at trial was sufficient, by

itself, to provide sufficient evidence beyond a reasonable doubt of every single element of

the offense of aggravated menacing under C.C.O. 621.06.             Specifically, the victim

testified that he heard, felt, and witnessed a shot hit his home and that when he turned

around to see where it had come from, he saw Bryant across the street with a gun pointed

at him.   Furthermore, the victim testified that Bryant’s actions in shooting the gun

caused him to be afraid.

       {¶15} Although there was no direct evidence that Bryant acted knowingly to cause

the victim to be afraid in this instance, the court could rationally infer the element existed

based on the other evidence presented, including the evidence that Bryant had a gun,

pointed it at his neighbor, and fired a shot. It is reasonable to assume that any person

committing these acts would know that they could cause fear.          See C.C.O. 601.07(b)

(stating, a “person acts knowingly, regardless of his or her purpose, when he or she is

aware that his or her conduct will probably cause a certain result or will probably be of a

certain nature.”).

       {¶16} With respect to the weight of the evidence, we recognize that this case

presented as a classic “he said, [he] said” dispute where the prosecution insisted on the

defendant’s guilt with little more than the victim’s account of events, and the defense

denied all culpability whatsoever.    In doing so, however, we cannot say that the trial
court clearly lost its way in finding Bryant guilty of the charge.   In a case where the

credibility of each witness is paramount, we acknowledge that the trier of fact is in the

best position to measure credibility. Accordingly, we find that the trial court could have

reasonably found the victim’s testimony more credible than Bryant’s, especially in light

of the bad blood between both men and the fact that Bryant admitted to verbally

interacting with the victim on the morning of the incident.

       {¶17} We therefore overrule Bryant’s first and second assigned errors.

III. Ineffective Assistance of Counsel

       {¶18} In his final assignment of error, Bryant argues that his conviction must be

reversed and a new trial ordered because he received ineffective assistance of counsel at

trial. Specifically, Bryant argues that counsel was ineffective for failing to enlist the

help of an expert witness who could testify as to the sounds that an air pellet gun makes

when fired and whether his particular gun could launch a projectile with enough force to

damage the victim’s home.

       {¶19} In order to succeed on an ineffective assistance claim, Bryant must show

that his trial counsel rendered deficient performance and that counsel’s deficient

performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, Bryant must prove

that his trial counsel’s performance fell below an objective standard of reasonable

representation. Id. at 688; State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373

(1989).    In evaluating counsel’s performance, “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.’”

Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed.

83 (1955).

       {¶20} To show prejudice, a defendant must establish that there is a reasonable

probability that, but for counsel’s deficient performance, the result of the proceeding

would have been different. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892

N.E.2d 864, ¶ 204, citing Strickland at 687-688, 694; Bradley at paragraph two of the

syllabus.    The failure to make a showing of either deficient performance or prejudice

defeats a claim of ineffective assistance of counsel. Strickland at 697.

       {¶21} What an expert would have testified to in this case, and whether that

testimony would have been helpful to Bryant’s defense, are unknown to this court.

Therefore, we cannot determine from the record before us if Bryant’s counsel was

deficient or more notably, whether any purported deficiency prejudiced Bryant.     Because

the questions raised by the assigned error are outside the record on direct appeal and are

necessary to our resolution of Bryant’s ineffective assistance claim, we must overrule

Bryant’s third assignment of error.      See State v. Zupancic, 9th Dist. Wayne No.

12CA0065, 2013-Ohio-3072 (“[A] claim of ineffective assistance of counsel on direct

appeal cannot be premised on decisions of trial counsel that are not reflected in the record

of proceedings * * * [and] [s]peculation regarding the prejudicial effects of counsel’s
performance will not establish ineffective assistance of counsel.”).

       {¶22} Judgment affirmed.

       It is ordered that appellee recover from appellant the 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   Cleveland

Municipal Court to carry this judgment into execution. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
LARRY A. JONES, SR., J., CONCUR
