[Cite as State v. Merry, 2012-Ohio-2910.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :     JUDGES:
                                              :
                                              :     Hon. Patricia A. Delaney, P.J.
                       Plaintiff-Appellee     :     Hon. John W. Wise, J.
                                              :     Hon. Julie A. Edwards, J.
-vs-                                          :
                                              :     Case No. 2011CA00203
JOHN ERIC MERRY                               :
                                              :
                                              :
                      Defendant-Appellant     :     OPINION



CHARACTER OF PROCEEDING:                          Appeal from the Stark County Court of
                                                  Common Pleas, Case No. 2011CR0659


JUDGMENT:                                         AFFIRMED



DATE OF JUDGMENT ENTRY:                           June 22, 2012



APPEARANCES:

For Appellant:                                      For Appellee:

RODNEY A. BACA                                      JOHN D. FERRERO, JR.
610 Market Ave. N.                                  STARK COUNTY PROSECUTOR
Canton, OH 44702                                    RONALD MARK CALDWELL
                                                    110 Central Plaza South, Ste. 510
                                                    Canton, OH 44702-1413
[Cite as State v. Merry, 2012-Ohio-2910.]


Delaney, J.

        {¶1} Appellant John Merry appeals from the August 31, 2011 judgment entry

of the Stark County Court of Common Pleas convicting him of one count of felonious

assault and sentencing him to a prison term of 7 years.

                              FACTS AND PROCEDURAL HISTORY

        {¶2} Appellant has two prior convictions of domestic violence, which he

stipulated to in this case. As a result of the facts below, appellant was charged with

one count of felonious assault pursuant to R.C. 2903.11(A)(1) and/or (A)(2), a felony

of the second degree, and one count of domestic violence pursuant to R.C.

2919.25(A), a felony of the third degree.

        {¶3} The following facts were adduced at appellant’s jury trial.

        {¶4} On April 30, 2010, sometime after 11:00 p.m., Courtney Lamp appeared

at the home of Michael Wolfe. Wolfe had known Lamp for several years and they

dated briefly. At one point in their relationship, Lamp told Wolfe she was pregnant but

it “probably wasn’t his.” They spoke from time to time and Lamp had shown him

pictures of her baby. Wolfe also knew Lamp was in an on and off relationship with

appellant.

                                            The Assault

        {¶5} As of April 30, 2010, Wolfe and Lamp hadn’t spoken for a few weeks, but

Lamp texted Wolfe and asked if she could come over. Lamp mentioned she was

coming from a party at appellant’s house.

        {¶6} Lamp arrived and they both had a few beers. In the meantime, Wolfe’s

brother and his girlfriend, who were also staying at the house, went out for the
Stark County, Case No. 2011CA00203                                                     3


evening. Wolfe and Lamp were alone in the house. According to Wolfe, they “got

physical” and then fell asleep in his bed.

       {¶7} Around 2:30 a.m., they were awakened by the sound of a loud vehicle in

the drive. Wolfe came downstairs and opened his front door to find appellant and two

friends of his. Appellant said he wanted to see Lamp right now. Wolfe shut and

locked the door, and yelled up the stairs to Lamp that appellant was outside. She said

she didn’t want to see him.

       {¶8} Appellant and his two friends started beating on the front door. Lamp

told Wolfe she needed to go outside because she was afraid appellant might take

things out of her car and she had left it unlocked. Wolfe and Lamp dressed, came

downstairs, and went outside. Wolfe was wearing jeans, a hat, and flip-flop sandals.

       {¶9} According to Wolfe, appellant seemed upset. He had opened the glass

front door and said to Lamp, “You [expletive] him already?” Lamp replied that it was

none of his business. Appellant then asked Wolfe if he’d had sex with Lamp, and

Wolfe didn’t answer.     At some point, appellant shook Wolfe’s hand and made a

comment to the effect of, “Congratulations, you can have her.”

       {¶10} Lamp headed toward her car and appellant walked after her. Wolfe saw

appellant with his finger in Lamp’s face, screaming and cursing. Lamp was crying. At

one point, Wolfe saw appellant grab Lamp by the arm and “yank” her. Lamp tried to

pull away but appellant grabbed her by her shirt, pulled his fist back, and said, “Your

ass is mine, bitch.”

       {¶11} Wolfe yelled at appellant to stop and to leave because the police were

coming. Appellant let Lamp go, and she ran back toward the house. As Wolfe walked
Stark County, Case No. 2011CA00203                                                    4


past appellant, appellant spun around and struck him in the face. Wolfe believed he

had been struck with an object. Blood gushed all over his face and he couldn’t see.

Appellant then struck Wolfe in the face a second time.

       {¶12} Wolfe fell to his knees and appellant choked him from behind. Appellant

continued to punch Wolfe and to throw him against the cars parked in Wolfe’s

driveway. A headlight was broken. Appellant repeatedly kicked Wolfe in the head.

       {¶13} In the meantime, Lamp had gone back into the house to try to awaken

Wolfe’s brother and get him to intervene. Eventually someone did call 911 from inside

the house.

       {¶14} Appellant’s friends wanted to leave but appellant said he wasn’t done

yet. Wolfe was in his underwear at this point because his pants had fallen off. Wolfe

was still being hit and kicked, and he thought appellant’s friends joined in although he

couldn’t tell which one. Eventually appellant and his two friends got into a car and

took off.

                                    Wolfe’s Injuries

       {¶15} Lamp accompanied Wolfe to Affinity Hospital that night and they talked

to investigators. Wolfe was unable to see or to write, so Lamp wrote out his statement

for him and he signed it. Wolfe learned that his orbital bone and some teeth were

broken.     His eye was shut for a week and a half, and he experienced lasting

numbness in his face. He still has a scar on his head.

                       Lamp Invokes her Right to Remain Silent

       {¶16} Courtney Lamp testified at trial and dissimulated.          Although she

corroborated the basic facts of Wolfe’s story in terms of going to Wolfe’s house,
Stark County, Case No. 2011CA00203                                                   5


appellant showing up, the conversation that took place, and the fact that appellant was

upset, she minimized everything that occurred. She claimed not to know who started

the fight; she didn’t remember anything she told police about the incident; she has no

independent memory of appellant threatening her and only wrote it down in her

statement because Wolfe told her about it. She claimed not to remember anything

about the night of the assault, but ultimately admitted that she saw appellant strike

Wolfe many times, in the arms, shoulders, and head. She denied that any act of

domestic violence occurred and denied that she tried to get away from appellant. She

implied Wolfe started the altercation by approaching appellant in a “loud, angry”

manner.

       {¶17} An issue arose during Lamp’s testimony about inconsistencies between

her trial testimony and her grand jury testimony. When confronted with her grand jury

testimony, Lamp remembered she told the grand jury appellant pulled his fist back and

told her “Your ass is mine” and appellant dragged her around the side of the house.

She agreed she told the grand jury appellant came after Wolfe, and appellant hit Wolfe

in the face with a rock. Lamp denied, however, that she ever told Wolfe her baby was

his.

       {¶18} The trial court declared Lamp a court’s witness and appointed counsel

for her. Outside of the presence of the jury, Lamp’s counsel advised she invoked her

5th Amendment right to remain silent. When the jury returned to the courtroom, the

trial court advised the jury of Lamp’s invocation of her right to remain silent and her

testimony ended.
Stark County, Case No. 2011CA00203                                                     6

                                    The Defense Case

       {¶19} Appellant’s two friends who were with him the night of the assault

testified as defense witnesses. David Ramsey claimed to only “vaguely” remember

the fight. Nicholas Sampsel stated that the three went to Wolfe’s house because

appellant wanted to confront Lamp. Sampsel then claimed he didn’t know how the

fight started because he wasn’t focused on it and he had no idea how Wolfe was

injured.

       {¶20} Appellant testified on his own behalf.            He referred to Lamp as his

“fiancée,” despite the fact that he claimed he had not seen her or talked to her since

the incident occurred.    Appellant minimized the fight and his role in it, repeatedly

claiming Wolfe came toward him “in an aggressive manner.” He claimed he wasn’t

able to get away from Wolfe and that Wolfe had in fact hurt him.

       {¶21} On cross examination, appellant admitted he has two prior convictions

for felonious assault and two prior convictions for domestic violence. He denied he

was upset when he saw Lamp’s car in Wolfe’s driveway, and claimed he came to the

house only because he wanted to find out what was going on. He had no idea how

Wolfe’s orbital bone was broken and denied hitting Wolfe in the head.

       {¶22} Wolfe had earlier testified that he saw appellant and Lamp together at

Clay’s Park with the baby, after the indictment but before trial. Appellant and Lamp

denied this.     Appellee’s sole rebuttal witness was an individual who knew both

appellant and Wolfe. This witness saw Lamp and appellant together with a baby at

Clay’s Park in July, after the assault and before the trial.
Stark County, Case No. 2011CA00203                                                      7


       {¶23} Appellant was found guilty of the charge of felonious assault and not

guilty of the charge of domestic violence. The jury made the specific finding that

appellant did not cause physical harm by means of a deadly weapon but did cause

serious physical harm to Wolfe.

       {¶24} The trial court sentenced appellant to a prison term of 7 years, noting his

history of assaultive behavior and his angry, violent nature, in addition to the extent of

Wolfe’s injuries.

       {¶25} Appellant now appeals from the judgment entry of his conviction and

sentence.

       {¶26} Appellant raises two Assignments of Error:

       {¶27} “I.     THE     EVIDENCE      IS    INSUFFICIENT     TO    SUSTAIN      THE

CONVICTION AND THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

       {¶28} “II.   THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL.”

                                            I.

       {¶29} In his first assignment of error, appellant contends that his conviction is

against the manifest weight and sufficiency of the evidence.

       {¶30} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78

Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The

standard of review for a challenge to the sufficiency of the evidence is set forth in

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the
Stark County, Case No. 2011CA00203                                                     8


syllabus, in which the Ohio Supreme Court held, “An appellate court’s function when

reviewing the sufficiency of the evidence to support a criminal conviction is to examine

the evidence admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant’s guilty beyond a reasonable doubt. The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.”

      {¶31} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence,

the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, at

387, 678 N.E.2d 541. Reversing a conviction as being against the manifest weight of

the evidence and ordering a new trial should be reserved for only the “exceptional

case in which the evidence weighs heavily against the conviction.” Id.

      {¶32} Appellant was convicted of one count of felonious assault pursuant to

R.C. 2903.11(A)(1), which states: “No person shall knowingly * * * cause serious

physical harm to another * * *."      Appellant argues on appeal that he presented

sufficient evidence of self-defense and his conviction is therefore against the

sufficiency and manifest weight of the evidence. We disagree.

      {¶33} Self-defense is a “confession and avoidance” affirmative dense in which

appellant admits the elements of the crime but seeks to prove some additional
Stark County, Case No. 2011CA00203                                                      9

element that absolves him of guilt. State v. White, 4th Dist. No. 97 CA 2282 (Jan. 14,

1998).    The affirmative defense of self-defense places the burden of proof on a

defendant by a preponderance of the evidence. In re Collier, 5th Dist. No. 01 CA 5

(Aug. 30, 2001), citing State v. Caldwell, 79 Ohio App.3d 667, 679, 607 N.E.2d 1096.

The proper standard for determining whether a criminal defendant has successfully

raised an affirmative defense is to inquire whether the defendant has introduced

sufficient evidence which, if believed, would raise a question in the minds of

reasonable persons concerning the existence of the issue. State v. Melchior, 56 Ohio

St.2d 15, 381 N.E.2d 195 (1978), paragraph one of the syllabus.

         {¶34} We find in the instant case appellant failed to establish sufficient

evidence which, if believed by the jury, would raise a question in the minds of

reasonable persons concerning the existence of the issue of self-defense.

         {¶35} To establish self-defense in the use of non-deadly force, the accused

must show 1) he was not at fault in creating the situation giving rise to the altercation;

2) the accused had reasonable grounds to believe and an honest belief, even though

mistaken, that some force was necessary to defend himself against the imminent use

of unlawful force; and 3) the force used was not likely to cause death or great bodily

harm. State v. Hoopingarner, 5th Dist. No. 2010AP 07 00022, 2010-Ohio-6490, ¶ 31,

citing State v. Vance, Ashland App. No. 2007-COA-035, 2008-Ohio-4763, ¶ 77

(citations omitted). If any one of these elements is not proven by a preponderance of

the evidence, the theory of self-defense does not apply. State v. Williford, 49 Ohio

St.3d 247, 249, 551 N.E.2d 1279 (1990).
Stark County, Case No. 2011CA00203                                                   10


      {¶36} We find the jury could reasonably believe appellant was at fault in

creating the situation giving rise to the altercation by appearing at Wolfe’s house,

confronting Lamp, and physically attacking Wolfe, causing serious injury. The record

is devoid of any evidence appellant had reasonable grounds to use some force

necessary to defend himself against the imminent use of unlawful force. Even if the

jury believed appellant’s own testimony that he thought Wolfe was coming after him,

or after Lamp, appellant’s extreme reaction in severely beating Wolfe to the extent that

he broke his eye socket was neither necessary nor justifiable. Finally, of course, the

jury found that appellant did in fact cause great bodily harm. Appellant has therefore

failed to establish any of the elements of self-defense, and therefore this theory does

not apply.

      {¶37} As finder of fact the jury was in the best position to evaluate the

credibility of the witnesses, and was free to believed some testimony and discard

others. Clearly it did so because appellant was found guilty of felonious assault and

not domestic violence, and of causing serious physical harm to Wolfe but not that he

used a weapon.

      {¶38} In short, the record amply demonstrates the trier of fact, in resolving

conflicts in the evidence, did not create a manifest miscarriage of justice so as to

require a new trial. Viewing the evidence in the light most favorable to appellee, we

further find a rational trier of fact could have appellant guilty of felonious assault

beyond a reasonable doubt.
Stark County, Case No. 2011CA00203                                                   11


                                           II.

       {¶39} In his second assignment of error, appellant contends that he received

ineffective assistance of counsel because of certain alleged errors by defense trial

counsel. We disagree.

       {¶40} To succeed on a claim of ineffectiveness, a defendant must satisfy a

two-prong test. Initially, a defendant must show that trial counsel acted incompetently.

See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing

such claims, “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.’” Id. at 689, citing Michel v. Louisiana, 350

U.S. 91, 101, 76 S.Ct. 158 (1955).

       {¶41} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690.

       {¶42} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

       {¶43} A court may dispose of a case by considering the second prong first, if

that would facilitate disposal of the case. State v. Bradley, 42 Ohio St.3d 136, 143,
Stark County, Case No. 2011CA00203                                                        12

538 N.E.2d 373 (1989), citing Strickland, 466 U.S. at 697. We note that a properly

licensed attorney is presumed competent. See Vaughn v. Maxwell, 2 Ohio St.2d 299,

209 N.E.2d 164 (1965); State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999).

Further, reviewing courts must refrain from second-guessing strategic decisions and

presume that counsel's performance falls within the wide range of reasonable legal

assistance. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).

      {¶44} The first instance of alleged ineffectiveness occurred during the state’s

direct examination of Wolfe.     Wolfe repeated his conversation with Lamp upon

appellant’s arrival at the house without objection by defense counsel. The trial court

called a sidebar and the following conversation occurred:

      THE COURT: Just so we have a record, I assume that it is for trial strategy

      purposes that you were allowing this hearsay to come in.

      [Defense counsel:] You honor, I object to getting into this as nonresponsive

      and that ---

      THE COURT: Well, I am talking first of all, that she had been asking – he has

      been relating all kinds of conversations with a third party.

      [Defense counsel:] Correct.

      THE COURT: There haven’t been any objections from defense counsel.

      [Defense counsel:] Correct.

      THE COURT: And so that there’s no issue of in this case should have to go up

      that you are, in fact, aware of that and that was your intent to allow it to come

      in.

      [Defense counsel:] Yes.
Stark County, Case No. 2011CA00203                                                      13


       THE COURT: All right.

       [Defense counsel:] At this point I object to the nonresponsive nature of this and

       to the hearsay of what someone else has told him or what some other

       statement as said by a third party relating now for the truth of the matter

       asserted.

       THE COURT: I will sustain the objection. Let’s proceed.

       * * *.

       {¶45} Appellant characterizes the failure to object until prompted by the trial

court as a lack of competence on the part of defense counsel, but we disagree. The

failure to make objections, alone, generally does not establish ineffective assistance of

counsel because the decision is viewed as trial strategy. State v. Conway, 109 Ohio

St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 103.            Moreover, appellant cannot

demonstrate prejudice because counsel did object upon prompting by the trial court,

and the trial court sustained the objection and gave a curative instruction.

       {¶46} Appellant also cites Wolfe’s outburst that appellant was on parole.

Similarly, defense counsel’s failure to object may be characterized as trial strategy and

not deficient performance; counsel may have opted not to draw further attention to the

comment. Moreover, appellant cannot demonstrate prejudice because the jury was

aware of appellant’s criminal record, at least in part, by virtue of the stipulation to two

domestic violence convictions.

       {¶47} Appellant next points to an issue which arose regarding use of the

transcript of grand jury testimony to cross-examine Lamp.           After Lamp’s cross-

examination, defense trial counsel asked to review the grand jury transcript and the
Stark County, Case No. 2011CA00203                                                   14


trial court refused.    Upon redirect, when it became evident that Lamp’s testimony

might deviate from what she told the grand jury, the state asked if looking at the

transcript of her grand jury testimony would refresh her recollection, and Lamp agreed.

At this point, defense counsel again requested to review the transcript, and this time

the trial court agreed. We find counsel’s performance was not deficient with regard to

the transcript of grand jury testimony.     Defense trial counsel had the transcript,

therefore, for re-cross of Lamp. Moreover, in the overall context of Lamp’s testimony,

appellant cannot demonstrate prejudice because Lamp’s testimony was favorable to

appellant.

       {¶48} Finally, appellant contends that defense trial counsel should have

introduced appellant’s prior criminal history before the state had the opportunity to do

so on cross-examination of appellant. As noted above, appellant stipulated to his prior

domestic violence criminal convictions. We find any difference in the jury’s perception

had appellant testified to the additional felonious assault convictions on direct as

opposed to on cross-examination to be minimal.        Appellant infers the jury would

conclude appellant hid the extent of his criminal history, but appellee points out that

the state did not argue this point in closing, ignored it, and made no gains from it. In

the context of the entire trial and in light of the overwhelming evidence against

appellant, we are unwilling to find prejudice in the manner in which his prior criminal

history was revealed.

       {¶49} Other courts have come to the same conclusion. While it may be

“customary practice for attorneys to disclose a witness' prior felony convictions on

direct,” we do not agree that the failure to do so constitutes ineffective assistance.
Stark County, Case No. 2011CA00203                                                  15


“Thus, while it may be preferential for counsel to disclose a witness' prior felony

convictions on direct examination, we are not convinced that the results of the trial

would be different if he had done so.” State v. Kachovee, 4th Dist. No. 98CA2562,

1999 WL 38994 (Jan. 25, 1999), appeal not allowed, 85 Ohio St.3d 1486, 709 N.E.2d

1214 (1999).

      {¶50} We find appellant’s trial counsel was not deficient and appellant’s second

assignment of error is overruled.

      {¶51} For the foregoing reasons, appellant’s two assignments of error are

overruled and the judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, P.J.

Wise, J. and

Edwards, J. concur.



                                      HON. PATRICIA A. DELANEY



                                      HON. JOHN W. WISE



                                      HON. JULIE A. EDWARDS
[Cite as State v. Merry, 2012-Ohio-2910.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                 :
                                              :
                                              :
                       Plaintiff-Appellee     :
                                              :
-vs-                                          :   JUDGMENT ENTRY
                                              :
JOHN ERIC MERRY                               :
                                              :
                                              :   Case No. 2011CA00203
                      Defendant-Appellant     :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas is affirmed. Costs assessed to appellant.




                                            HON. PATRICIA A. DELANEY



                                            HON. JOHN W. WISE



                                            HON. JULIE A. EDWARDS
