[Cite as State v. Weems, 2013-Ohio-1343.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98397




                                     STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                       BRIAN WEEMS
                                                            DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-555001

        BEFORE:          Jones, J., Celebrezze, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                     April 4, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Erica Barnhill
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

        {¶1} Defendant-appellant, Brian Weems, appeals his felonious assault conviction.

We affirm.

        {¶2} In 2011, Weems was charged with two counts of felonious assault with

notices of prior conviction and repeat violent offender specifications.       He waived his

right to a jury trial and the matter proceeded to a trial before the bench.   The following

pertinent evidence was presented at trial.

        {¶3} Weems and victim Juanita Crawford lived in the same four-unit apartment

building in Cleveland. On September 25, 2011, Crawford was in her apartment when

her friend Pam called up to her from outside. Crawford went outside; Pam and Weems

were arguing.    A small crowd of bystanders had gathered.

        {¶4} Crawford heard someone yell that Weems had a gun, so she turned and fled.

Weems ran after her and hit her in the head with a hammer.     No gun was recovered.

        {¶5} Crawford’s niece called 911 and reported that “Brian” had hit her aunt in the

head with a hammer.       The niece identified Brian as the man who lived upstairs from her

aunt.   When the police arrived, Crawford identified Weems as her attacker, but he had

already left the scene.

        {¶6} Eric Wathen, who lived in the same building, was home at the time of the

assault.   From his window, Wathen could see Crawford, Weems, and another woman

arguing.   He heard Crawford scream and saw Weems chase Crawford and hit her in the
head with a hammer.

       {¶7} Two days later, police arrested Weems in his apartment.     Weems admitted to

assaulting Crawford, but maintained he used only his hands, not a hammer.

       {¶8} Three days after the assault, Crawford met with a detective and positively

identified Weems as her attacker.     As a result of her injuries, Crawford received ten

staples to her head; at the time of trial, she still suffered from recurring headaches,

fainting spells, and memory loss.

       {¶9} Weems testified in his own defense that he did not assault Crawford and was

in Akron at the time the incident occurred.   He accused the state’s witnesses of lying.

       {¶10} The trial court convicted Weems of both counts of felonious assault with the

attendant notices of prior conviction and repeat violent offender specifications.          The

court merged the convictions, finding they were allied offenses of similar import, and

sentenced Weems to eight years in prison.        The trial court declined to impose any

additional time under the repeat violent offender specification.

       {¶11} Weems now appeals, raising the following assignments of error for our

review:

       [I]. Brian Weems was denied effective assistance of counsel in violation
       of the Sixth and Fourteenth Amendments to the United States Constitution
       and Article 1, Section 10 of the Ohio Constitution when his attorney failed
       to present the victim’s prior inconsistent statements to the trier of fact.

       [II.] Appellant’s felonious assault conviction is against the manifest
       weight of the evidence.

       [III.] Brian Weems was denied effective assistance of counsel in violation
       of the Sixth and Fourteenth Amendments to the United States Constitution
       and Article 1, Section 10 of the Ohio Constitution when his attorney
       gratuitously attacked his own client at sentencing and failed to offer any
       mitigation.

                           Ineffective Assistance of Trial Counsel

       {¶12} In the first and third assignments of error, Weems challenges the

effectiveness of his trial counsel.

       {¶13} We review a claim of ineffective assistance of counsel under the two-part

test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984).   In order to prevail on an ineffective assistance of counsel claim, an appellant

must demonstrate that his counsel’s performance fell below an objective standard of

reasonable representation; and if so, show there was a reasonable probability that his

counsel’s errors affected the outcome of the proceedings. Id.

       {¶14} Weems bases his claim of ineffective assistance of counsel claim on trial

counsel’s:   (1) failure to cross-examine Crawford on her prior inconsistent statements;

and (2) counsel’s statements during sentencing.

       {¶15} First, Weems claims that Crawford’s testimony was inconsistent with what

she had previously told police and medical personnel.     According to Weems, Crawford

told the police that Weems attacked her inside her apartment over a dispute about food

and told medical personnel Weems attacked her because she refused him food.

Crawford testified, however, that the dispute was over Weems’s fight with Pam and the

attack occurred outside.

       {¶16} Weems argues that his trial counsel’s failure to cross-examine Crawford on
these inconsistencies and decision not to discuss them during closing arguments rendered

counsel constitutionally ineffective.   But judicial scrutiny of a lawyer’s performance

must be highly deferential. State v. Sallie, 81 Ohio St.3d 673, 674, 1998-Ohio-343, 693

N.E.2d 267.

       [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.    Debatable trial tactics do not establish ineffective assistance of

counsel.   State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810.

       {¶17} Contrary to Weems’s claim that defense counsel failed to question Crawford

on inconsistencies in her testimony, defense counsel attempted         to cross-examine

Crawford about the statement she made to police, but the state objected.   The transcript

reflects that a sidebar conference occurred, but the conference was off the record, and

after, counsel did not continue that line of questioning. Weems also argues that counsel

should have cross-examined Crawford about her inconsistent statements in the police

report; however, the police report was never entered into evidence and there was no

testimony that evidenced any inconsistent statements in the report.

       {¶18} A thorough review of the record does not convince us that counsel’s

performance affected the outcome of the trial.         Crawford never wavered on the

identification of her attacker and both her niece and Wathen verified that Weems was the

attacker; even Weems himself admitted to police that he had assaulted Crawford.    Thus,

any failure to point out possible inconsistencies about where and why the attack occurred
do not equate to a finding of ineffective assistance of counsel.     Weems also complains

that his attorney did not effectively argue the case during closing arguments, but opening

and closing arguments are not evidence; and upon review, we find that counsel’s

argument did not affect the outcome of the trial, especially given that it was a bench trial.

          {¶19} Next, Weems claims that his counsel’s statements at sentencing prejudiced

him.      Specifically, Weems points to statements defense counsel made regarding

Weems’s tendency to “tell stories,” that Weems refused to accept responsibility for his

actions, and that counsel assumed Weems would file a grievance against him.

          {¶20} A review of the record, however, shows that counsel’s statements were

made in response to the fact that counsel built a theory of the case based on Weems’s

initial assertion that he was home at the time of the incident; when Weems testified at trial

that he was in Akron at the time of the assault, counsel was caught off-guard and was

unable to proceed with his original theory. In looking at the sentencing hearing as a

whole, we do not find that counsel’s statements fell below an objective standard of

reasonable representation or that Weems’s sentence would have been lesser if his counsel

had better advocated on his behalf.    Based on these facts, Weems was not prejudiced by

his counsel’s conduct.

          {¶21} The trial court had the opportunity to review Weems’s presentence

investigation report and a mitigation of penalty report prepared by the court’s psychiatric

clinic.    Crawford testified that she suffered a laceration on her head that required ten

staples to close and still suffered from headaches, dizzy spells, and memory loss.
Moreover, the eight-year sentence is reasonable based upon the serious harm caused to

the victim and Weems’s prior criminal record. See R.C. 2929.12(B)(2), 2929.12(D)(2).

       {¶22} Thus, we cannot conclude that Weems was afforded ineffective assistance

of trial counsel.

       {¶23} The first and third assignments of error are overruled.

                            Manifest Weight of the Evidence

       {¶24} In the second assignment of error, Weems argues that his conviction was

against the manifest weight of the evidence.        When reviewing a manifest weight

challenge, the court must review the record, weigh the evidence and all reasonable

inferences, examine the credibility of the witnesses, and determine whether, in resolving

conflicts, if the jury or 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.

Tibbs v. Florida, 457 U.S. 31, 45, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), citing Jackson

v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Thus, the question

raised through a manifest weight issue is whether there is substantial evidence upon

which a jury could conclude that all elements of the charged crime have been proven

beyond a reasonable doubt. State v. Getsy, 84 Ohio St.3d 180, 1998-Ohio-533, 702

N.E.2d 866, citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978).

       {¶25} Weems contends that his version of events, that he was in Akron at the time

of the attack, should be believed over that of the state’s witnesses. He cites to the

inconsistencies in Crawford’s testimony and Wathen’s criminal record.
      {¶26} Although we are able to consider the credibility of the witnesses, we are

guided by the presumption that the trier of fact “is best able to view the witnesses and

observe their demeanor, gestures and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.” State v. Moore, 8th Dist. No.

98178, 2012-Ohio-5891, ¶ 15, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984).    Accordingly, we afford great deference to the trier of

fact’s determination of witness credibility.   State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus.

      {¶27} The trial court, as the trier of fact in this case, opted to believe the state’s

version of the facts over Weems’s testimony.     We cannot say that the trial court clearly

lost its way and created such a manifest miscarriage of justice that the convictions must

be reversed.

      {¶28} The second assignment of error is overruled.

      {¶29} Accordingly, judgment is affirmed.

      It is ordered that appellee recover from appellant his 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.     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.




LARRY A. JONES, SR., JUDGE

FRANK D. CELEBREZZE, JR., P.J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS WITH
SEPARATE OPINION

KATHLEEN ANN KEOUGH, J., CONCURRING WITH SEPARATE CONCURRING
OPINION:

       {¶30} I fully concur with the majority opinion in this case but write separately to

address Weems’s third assignment of error contending that his trial counsel was

ineffective by making inappropriate and prejudicial statements at sentencing.

       {¶31} In support of his assignment of error, Weems dissects counsel’s statements

and points to isolated comments, which are at times taken out of context. Reviewing the

entire sentencing hearing, including Weems’s own statements made during sentencing, I

cannot say that Weems was prejudiced, such that his sentence may have been different.

Although the trial court sentenced Weems to the maximum sentence of eight years, the

trial court exercised its discretion and did not impose a sentence on the repeat violent

offender specification, which carried a possible penalty of up to ten years. It is clear the

court rendered a sentence that was reasonable based on the facts and circumstances of the

case. Although Weems has failed to show prejudice to warrant a reversal of his sentence

under a finding of ineffective assistance of counsel, I find that counsel’s statements at

sentencing did not serve any mitigating purpose. If counsel felt that a record needed to
be established to circumvent any subsequent actions filed against him, the record could

have been established after the sentence was rendered. Self-preserving statements during

a client’s sentencing are not appropriate.
