[Cite as State v. Griffith, 2012-Ohio-2628.]



                  Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 97366



                                        STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                     RICKY C. GRIFFITH
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-549701

        BEFORE: Stewart, P.J., Boyle, J., and Rocco, J.

        RELEASED AND JOURNALIZED:                       June 14, 2012
ATTORNEY FOR APPELLANT

Matthew J. King
1280 West Third Street, 1st Floor
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: John P. Colan
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1} Defendant-appellant Ricky C. Griffith appeals from his conviction for

felonious assault in connection with an incident in which he backed his pickup truck at a

victim but did not hit her. He argues that the state failed to offer sufficient evidence that

he acted knowingly, that the jury’s verdict is against the manifest weight of the evidence,

and that trial counsel was ineffective in several respects, but notably for failing to seek

suppression of statements he made to the police.

                                              I

       {¶2} Griffith first argues that the state failed to show that he acted knowingly as a

predicate for a conviction on felonious assault.

       {¶3} We determine whether the evidence is sufficient to sustain a verdict by

examining the evidence in the light most favorable to the prosecution and determining

whether any rational trier of fact could have found that the prosecution proved the

essential elements of the crime beyond a reasonable doubt. State v. Yarbrough, 95 Ohio

St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, at ¶ 78, quoting Jackson v. Virginia, 443

U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶4} The state charged Griffith under R.C. 2903.11(A)(2): that he knowingly

caused or attempted to cause physical harm to the victim by means of a deadly weapon —

a motor vehicle.
          {¶5} The evidence showed that the victim had parked her car in the parking lot of a

post office. She entered the post office, completed her business, and returned to her

parking space. A pickup truck was parked next to her car and she noticed a new paint

mark on the side of her car. The victim was trying to rub out the mark when Griffith

approached. She was apparently blocking his access to the door of his truck, so he told

her to “move out of the way, bitch.” She replied that he had hit her car and that she was

trying to rub out the mark he left. He said that he did not hit her car and called her a

“spic.”     In light of this response, the victim asked Griffith to supply her with his

insurance information. He refused and tried to get her to move out of the way. When

she continued to block him, he pushed her, causing her to bounce off her car and into his

open truck door. The truck door slammed against Griffith’s finger. He screamed in

pain and said, “now I’m going to hit your car dumb spic bitch.” He then slammed his

truck door against her car, leaving a noticeable dent. Realizing that Griffith was leaving

the scene, the victim moved behind and just to the side of the truck to take a photograph

of his license plate. Griffith told her, “[g]o ahead, get a good picture, get it good, bitch.”

 He then put the truck into reverse and backed up. She testified that she had to move out

of the truck’s way because she thought it was going to hit her.

          {¶6} The victim called her father, an off-duty police officer who lived nearby, and

described the truck that Griffith drove. The father quickly located the parked truck and

waited for the police to arrive. The police questioned Griffith, who admitted that he had

an altercation with the victim, although he denied that he had left a paint mark on her car.
 He said that the victim had gone “crazy” and slammed a door on his finger, so he left the

scene. He told the police that “he looked up in the rearview mirror, saw her behind the

car” and “gunned it to get out of there.”

       {¶7} Griffith does not dispute that his truck could constitute a deadly weapon,

State v. Tate, 8th Dist. No. 87008, 2006-Ohio-3722, ¶ 23, so his argument is limited to the

question of whether he acted knowingly in attempting to cause the victim physical harm.

       {¶8} R.C. 2901.22(B) defines the mental state of “knowingly” as:

       A person acts knowingly, regardless of his purpose, when he is aware that
       his conduct will probably cause a certain result or will probably be of a
       certain nature. A person has knowledge of circumstances when he is aware
       that such circumstances probably exist.

       {¶9} “The mental state of the offender is a part of every criminal offense in Ohio

except for those plainly imposing strict liability.” State v. Lozier, 101 Ohio St.3d 161,

2004-Ohio-732, 803 N.E.2d 770, ¶ 18.

       {¶10} Because a person’s subjective mental state is not often proved by direct

evidence, “[i]t must ordinarily be proven by reference to the surrounding facts and

circumstances.”    State v. Clark, 101 Ohio App.3d 389, 405, 655 N.E.2d 795 (8th

Dist.1995).   The jury may thus presume the requisite intent when the natural and

probable consequences of a defendant’s action is to produce a result. State v. Caldwell,

79 Ohio App.3d 667, 678, 607 N.E.2d 1096 (4th Dist.1992).

       {¶11} The state argues that the very broad appellate standard of review for the

sufficiency of evidence requires us to uphold the jury’s verdict because it was possible

that a rational trier of fact could have concluded that Griffith’s act of gunning his engine
as he reversed out of his parking space, despite knowing that the victim was behind the

truck, showed that he acted with an intent to injure her.

       {¶12} Although we think the facts offered at trial tended to show more so that

Griffith acted recklessly (that is, he acted with heedless indifference to the consequences),

we are unable to say that no rational trier of fact could have concluded from the evidence

that Griffith acted knowingly. Griffith was angry because he had his finger smashed by a

car door. Being in that state of mind, he confirmed to a police sergeant that “he looked

up in the rearview mirror, saw her behind the car.” The victim likewise testified that

although she was standing slightly off to the side, she was “standing right behind the car,

like he moved while I was still standing there.” With knowledge that the victim was

standing behind his truck, he gunned the engine as he put the truck in reverse gear, saying

that he wished to “get out of there.” The large size of the truck made it almost certain

that the victim would have been injured had she not jumped out the way. The standard

of review we use for questions concerning the sufficiency of the evidence is such that we

are compelled to find that the state offered sufficient evidence to prove the felonious

assault count.

       {¶13} Griffith argues in his second assignment of error that the jury’s verdict is

against the manifest weight of the evidence. Despite correctly noting that the sufficiency

of the evidence is conceptually distinct from the manifest weight of the evidence (with

appropriate citations to the relevant standard of review), Griffith does not make a separate

argument. Instead, he incorporates the same arguments he made in support of his claim
that the verdict was not supported by sufficient evidence. This fails the App.R. 16(A)(7)

obligation to offer an argument with respect to each assignment of error and “the reasons

in support of the contentions.” We therefore disregard it.

                                            II

       {¶14} Griffith next raises a number of arguments concerning trial counsel’s

performance at trial.

                                            A

       {¶15} A claim of ineffective assistance of counsel requires a defendant to show

that (1) the performance of defense counsel was seriously flawed and deficient and (2) the

result of the defendant’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). This analysis requires two distinct lines of inquiry.

First, we determine “whether there has been a substantial violation of any of defense

counsel’s essential duties to his client.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989), paragraph two of the syllabus. When making this inquiry, we presume that

licensed counsel has performed in an ethical and competent manner. Vaughn v. Maxwell,

2 Ohio St.2d 299, 209 N.E.2d 164 (1965). Second, we determine whether “the defense

was prejudiced by counsel’s ineffectiveness.” Bradley, 42 Ohio St.3d 136, at paragraph

two of the syllabus. Prejudice requires a showing to a reasonable probability that but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

Id. at paragraph three of the syllabus.
                                              B

       {¶16} Griffith first argues that counsel should have filed a motion to suppress

statements he made to the police in which he confirmed that he saw the victim standing

behind the truck when he “gunned” the engine in reverse gear and left the scene. He

maintains that the conversation took place during a custodial interrogation, but that he had

not been advised of his right to remain silent.

       {¶17} In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966), the Supreme Court held that custodial interrogations have the potential to

undermine the Fifth Amendment privilege against self-incrimination by possibly exposing

a suspect to physical or psychological coercion. Id. at 436. To guard against such

coercion, the court established a prophylactic procedural mechanism that requires that a

suspect receive a warning before custodial interrogation commences.             Id. at 444.

Suspects in custody must be warned, among other things, that they have a right to remain

silent and that their statements may be used against them at trial.

       {¶18} The Supreme Court has defined the term “custody” as the deprivation of

“freedom of action in any significant way.”       Id. A suspect is in custody if, under the

totality of the circumstances, a reasonable person would not feel free to end the encounter

and leave.    Yarborough v. Alvarado, 541 U.S. 652, 663-665, 124 S.Ct. 2140, 158

L.Ed.2d 938 (2004). Although the location of the interrogation is not dispositive, it is a

factor that courts consider when determining whether a suspect is in custody.
         {¶19} Questioning by the police is thought to be less likely to rise to the level of a

custodial interrogation when it occurs in a defendant’s home. State v. Petriashvili, 8th

Dist. No. 92851, 2009-Ohio-6466, ¶ 18; State v. Hopfer, 112 Ohio App.3d 521, 546, 679

N.E.2d 321 (2d Dist.1996). This is because a person’s home is a place that “a reasonable

person would have felt free to terminate the interview * * *.” Yarborough, 541 U.S. at

664-665. Although Griffith was at a friend’s house at the time he spoke to the police,

there were no objective indications that he was not free to terminate the interview and

leave.

         {¶20} Testimony at trial showed that the police arrived at the friend’s house where

the truck identified by the victim had been parked. At least two officers were admitted

into the house and Griffith was asked to “give his recollection of what happened.” By all

appearances, this questioning had none of the hallmarks of a custodial interrogation —

Griffith was not handcuffed or separated from the owner of the home as he spoke to the

police. By all accounts, he had a conversation with the police that lasted “well under a

half hour.” There was nothing objectively coercive about the atmosphere such that it

turned into a custodial interrogation at which the police were required to give Griffith his

Miranda warnings. Absent affirmative signs of coercion, we have no basis for finding

that counsel’s failure to file a non-meritorious motion to suppress Griffith’s statements

was prejudicial.

                                               C
       {¶21} Griffith next argues that trial counsel should have objected to the state’s

“attempts to indoctrinate the jury during voir dire” when the state established its own

version of what constitutes “reasonable doubt” by equating it to “[r]eason and common

sense.” We reject this contention because the state’s reference to reason and common

sense comports with R.C. 2901.05(E), which defines “reasonable doubt” as “a doubt

based on reason and common sense.”

                                              D

       {¶22} During jury selection, defense counsel told the prospective jurors:

       [S]ometimes the world is black and white and sometimes the truth is in the
       middle[.] * * * [Y]ou’re going to hear from [the victim] * * * and you’re
       going to hear from Mr. Griffith. You’re going to hear the two versions of
       this event * * *. This isn’t between [the victim] and Mr. Griffith, you are
       going to hear two sides.

Griffith did not testify, however, and now complains that defense counsel should not have

created the expectation that he would be testifying when, in fact, he did not testify.

       {¶23} The record on appeal suggests that Griffith, not trial counsel, made the

decision that he would not testify. At the close of the state’s evidence, trial counsel

informed the court that “[a]t this time, your honor, throughout the day discussing with Mr.

Griffith whether he was going to testify or not, and at this time he has decided not to.”

       {¶24} We are aware of no precedent for the proposition that trial counsel performs

deficiently by following the defendant’s own instructions. “The language and spirit of

the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by

the Amendment, shall be an aid to a willing defendant — not an organ of the State
interposed between an unwilling defendant and his right to defend himself personally.”

Faretta v. California, 422 U.S. 806, 820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Where

ethically and legally possible, a lawyer must abide by a client’s decisions regarding the

objectives of the representation. Prof.Cond.R. 1.2(a); State v. Cowans, 87 Ohio St.3d

68, 80-81, 717 N.E.2d 298 (1999). See also Coleman v. Mitchell, 268 F.3d 417, 448, fn.

16 (6th Cir.2001) (“[C]ounsel was not ineffective for following the defendant’s clear and

informed instruction.”).

       {¶25} The transcript indicates that the decision to keep Griffith from testifying was

made after discussions “throughout the day” between Griffith and defense counsel. So

this is not a case where a snap decision had been made — the decision was the product of

discussion between attorney and client. In addition, this is not a case where defense

counsel made a unilateral decision without Griffith’s knowledge or over Griffith’s

objections. The record suggests that defense counsel acceded to Griffith’s instructions or

that Griffith agreed with defense counsel’s recommendation that he not testify.

       {¶26} Griffith now argues that defense counsel should also have questioned

prospective jurors during voir dire “as to whether or not they could hear no story from the

Appellant and [respect] his right to remain silent.” Counsel’s failure to question jurors

during voir dire concerning their attitude towards a defendant who does not testify is not

an error that changes the outcome of the proceedings. The court instructed the jury that

Griffith had a constitutional right not to testify and that his failure to testify “must not be

considered for any purpose.” We presume that jurors follow the court’s instructions on
the defendant’s right not to testify.      State v. Linville, 10th Dist. No. 04AP-917,

2005-Ohio-3150, ¶ 28-29.

       {¶27} Additionally, we fail to see how it would be effective trial strategy for

defense counsel to assure the jury that the defendant will testify but ask it not to hold it

against the defendant if he does not. “Voir dire is largely a matter of strategy and

tactics.” State v. Lindsey, 87 Ohio St.3d 479, 489, 721 N.E.2d 995 (2000).         Counsel

does not manage the jury’s expectations about the defendant’s possible testimony by

saying: “maybe he will, maybe he won’t.” Defense counsel obviously thought that

Griffith would be testifying at trial and conducted voir dire with that assumption.

Circumstances at trial apparently dictated a change in strategy. But regardless of the

reason for Griffith not testifying, that decision was a matter of trial strategy that we

cannot question after the fact.

                                              E

       {¶28} Finally, Griffith complains that trial counsel should have called as a witness

a friend of his who was on the scene at the time the events transpired. Griffith states that

the friend could have testified concerning Griffith’s questioning by the police and

possibly rebut some of the accusations made by the police officers about how Griffith

characterized his departure from the scene.

       {¶29} A party seeking to establish ineffective assistance of counsel based on

failure to call a witness must establish that the witness’s testimony “would have

significantly assisted the defense and affected the outcome of the case.” State v. Dennis,
10th Dist. No. 04AP-595, 2005-Ohio-1530, ¶ 22; State v. Pierre, 8th Dist. No. 76228,

2000 WL 739517 (June 8, 2000).

       {¶30} Griffith does not say what the witness would have testified to, only that he

“could have testified regarding the questioning of Appellant” and “possibly could have

controverted some of the accusations made by the Cleveland Police officers about how

Appellant characterized his leaving the area and backing up his truck to get away from

[the victim].” With his argument couched only in terms of possibility, it falls far short of

showing that the friend’s testimony would have “signficantly” assisted the defense.

       {¶31} What is more, the evidence showed that although the friend was present

during the confrontation between Griffith and the victim, he saw nothing. The victim

said that the friend “walked away” before Griffith gunned the truck and the friend himself

told the police that “he didn’t see most of what happened at the initial incident.” Griffith

confirmed this fact in his recorded statement to the police, saying that after he backed out

from his parking space he went to pick up that same friend, so it is plain that the friend

could not have testified to the way Griffith backed up the truck. The friend’s testimony

would have been pointless.

       {¶32} Judgment affirmed.

       It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas             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.




MELODY J. STEWART, PRESIDING JUDGE

MARY J. BOYLE, J., and
KENNETH A. ROCCO, J., CONCUR
