[Cite as Woodmere v. Young, 2018-Ohio-1508.]



                Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                        No. 106011



                                  VILLAGE OF WOODMERE

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                        JOEY LEE YOUNG

                                                      DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                                      Criminal Appeal from the
                                      Bedford Municipal Court
                                      Case No. 16-CRB-02104

             BEFORE: Blackmon, J., E.A. Gallagher, A.J., and S. Gallagher, J.

             RELEASED AND JOURNALIZED:                 April 19, 2018


                                                -i-
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender

By: Frank Cavallo
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Lon D. Stolarsky
5333 Northfield Road, Suite 250
Bedford Heights, Ohio 44146
PATRICIA ANN BLACKMON, J.:

       {¶1}    Joey Lee Young (“Young”) appeals from his domestic violence conviction and

assigns the following error for our review:

       I. Appellant was denied the effective assistance of counsel at his trial.

       {¶2}    Having reviewed the record and pertinent law, we affirm the decision of the trial

court. The apposite facts follow.

       {¶3}    On November 6, 2016, Young’s wife called the police after the couple got in a

fight at their home in the village of Woodmere. The police responded to the call but no arrests

were made. The following day, Young was charged with one count of domestic violence in

violation of R.C. 2919.25(A), a first-degree misdemeanor. On June 7, 2017, after a bench trial,

the court found Young guilty of domestic violence and placed him on probation.

       {¶4}    On appeal, Young argues that his trial counsel was ineffective by failing to object

to improperly admitted hearsay testimony and leading questions by the prosecutor on the direct

examination of both of the state’s witnesses — the victim and the responding police officer.

The state, on the other hand, argues that defense counsel’s failure to object “neither fell below an

objective standard of reasonableness nor did it give rise to a reasonable probability of a different

outcome.”

       {¶5}    To succeed on a claim of ineffective assistance of counsel, a defendant must

establish that his or her attorney’s performance was deficient and that the defendant was

prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).        However, “a court need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the defendant as a result of

the alleged deficiencies.   The object of an ineffectiveness claim is not to grade counsel’s
performance.” Id. at 697. See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 3743

(1989).

          {¶6}   “The failure to object to error, alone, is not enough to sustain a claim for

ineffective assistance of counsel.    To prevail on such a claim, a defendant must first show that

there was a substantial violation of any of defense counsel’s essential duties to his client and,

second, that he was materially prejudiced by counsel’s ineffectiveness.” Ohio v. Holloway, 38

Ohio St.3d 239, 244, 527 N.E.2d 831 (1989).           See also State v. Wright, 8th Dist. Cuyahoga

No. 92344, 2009-Ohio-5229, ¶ 45 (“The failure to object is not a per se indicator of ineffective

assistance of counsel because counsel may refuse to object for tactical reasons”).

          {¶7}   Additionally, “it is within the trial court’s discretion to allow leading questions on

direct examination.” State v. Jackson, 92 Ohio St.3d 436, 449, 2001-Ohio-1266, 751 N.E.2d

946. Furthermore, “[w]hen the trial court is the trier of fact, the judge is presumed capable of

disregarding improper hearsay evidence, and unless it is demonstrated that the court relied on

inadmissible hearsay, a conviction will not be reversed.”      State v. Crawford, 8th Dist. Cuyahoga

No. 98605, 2013-Ohio-1659, ¶ 61.

          {¶8}   In the case at hand, although Young acknowledges that failure to object “rarely”

leads to ineffective assistance of counsel, he argues that, because his trial attorney failed to object

to anything, “a question must arise as to the effectiveness of the counsel afforded to the

defendant.” (Emphasis sic.) For example, Young argues that the following questions, which

the prosecutor asked the victim during direct examination, were improperly leading: “So he

pushes you the length of the garage?” “[F]irst your body hit the refrigerator and then you were

pushed to the floor?”
       {¶9}     Upon review, we find that the prosecutor asked these questions to summarize or

clarify the victim’s previous testimony.    Accordingly, it was within the court’s discretion to

allow this line of questioning, and we find that defense counsel was not ineffective by failing to

object to it.    Furthermore, defense counsel vigorously cross-examined the victim during

Young’s case-in-chief, and Young fails to show that the victim’s testimony was prejudicial.

       {¶10} Young also argues that the following questions put to the testifying police officer

called for inadmissible hearsay: “What did [the victim] essentially tell you occurred?” “Did she

relate to you that at some point [Young] became physical?”

       {¶11} Upon review, we find that counsel was not deficient by failing to object to these

questions.    First, this case was tried to the bench, and there is no reason to believe the court

relied on inadmissible hearsay.    Second, the victim testified in this case and was subject to

cross-examination. Furthermore, Young makes no showing that the officer’s testimony was

prejudicial to him.

       {¶12} Accordingly, Young’s sole assigned error is overruled.

       {¶13} Judgment 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 be sent to the Bedford Municipal 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.
PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, A.J., and
SEAN C. GALLAGHER, J., CONCUR
