[Cite as State v. McAdams, 2016-Ohio-8225.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                       LAKE COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2016-L-028
        - vs -                                  :

RAYMOND J. MCADAMS,                             :

                 Defendant-Appellant.           :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2015 CR
000606.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Ruth R. Fischbein-Cohen, 3552 Severn Road, #613, Cleveland Heights, OH 44118
(For Defendant-Appellant).




COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellant, Raymond J. McAdams, appeals from the March 14, 2016

judgment of the Lake County Court of Common Pleas, sentencing him to 24 months in

prison for domestic violence following a jury trial. On appeal, appellant raises issues

that his trial counsel was ineffective and that the jury’s verdict is not supported by
sufficient evidence and is against the manifest weight of the evidence. For the reasons

stated, we affirm.

       {¶2}    On November 16, 2015, appellant was indicted by the Lake County Grand

Jury on one count of domestic violence, a felony of the third degree, in violation of R.C.

2919.25(A).1 Appellant was represented by counsel and waived his right to be present

at the arraignment. The trial court entered a not guilty plea on his behalf.

       {¶3}    A jury trial commenced on February 1, 2016.

       {¶4}    Seven witnesses testified for appellee, the state of Ohio: Adam Lasota, a

dispatcher with the Lake County Sheriff’s Department; Brigette Smalley, a dispatcher

with the Willoughby Police Department (“WPD”); Officers Jason Pitt, Chris Scozzie, and

Ross Shirey, patrolmen with the WPD; George Bielfelt, appellant’s and the victim’s

landlord; and the victim.

       {¶5}    Appellant and the victim were boyfriend and girlfriend. They lived together

in an apartment owned by Mr. Bielfelt in downtown Willoughby for about one year.

During the afternoon on July 18, 2015, appellant and the victim visited her friend, Karen

Eggler. They had some drinks and listened to music. Ms. Eggler later asked appellant

to leave because he was being “nasty” to the victim. Appellant left but the victim stayed.

The victim had five to six beers that afternoon.

       {¶6}    Later that evening, the victim called appellant to pick her up.                  After

appellant arrived, the victim asked him to drive her to Record Exchange. Appellant took

her there and told her she had five minutes to shop or he would leave. The victim ran

in, purchased a CD, and returned to the vehicle. The victim assumed they were going


1. The charge arose from an altercation between appellant and Nan Manson, his live-in girlfriend (“the
victim”), which occurred in appellant’s vehicle on July 18, 2015 in Willoughby, Lake County, Ohio.


                                                  2
to go home. However, appellant pulled out and drove in the opposite direction. The

victim asked appellant where they were going. The victim stated that appellant replied,

“Shut the fuck up. I’m about to kill you.”

       {¶7}   The two began fighting in the car.         The victim testified that appellant

started to turn the vehicle into a light pole while yelling at her, “I’m going to kill you, you

fucking bitch.” The victim grabbed the steering wheel and begged appellant to stop. He

eventually stopped the car on a side street. According to the victim, appellant began

hitting her in the chest and on top of her head with a closed fist and told her again that

he was going to kill her. After a couple of minutes, appellant began driving off.

       {¶8}   However, appellant stopped the car again. The victim stated appellant

proceeded to hit her more, told her he was going to bite her nose off, and said,

“Nobody’s gonna love you.” The victim said appellant reclined her seat, put his hands

on her throat, and told her again, “I’m gonna fucking kill you, bitch.” The victim thought

she was going to die. She began kicking appellant, managed to escape, ran to a

nearby house, and called 911.

       {¶9}   Dispatchers Lasota and Smalley testified that when the 911 call came in

from the victim, she was “highly upset” and indicated she had been assaulted. The

victim was screaming and crying. She was afraid for her life.

       {¶10} When Officer Pitt arrived at the scene, he saw the victim flagging him

down. Officer Pitt testified that the victim was waving her arms in a “hysterical fashion.”

The victim said she was assaulted. She was upset, crying, and carrying on. She

appeared to be intoxicated as Officer Pitt smelled alcohol and said the victim’s speech




                                              3
was slurred. However, Officer Pitt said she was able to hold a conversation with him

and told him what had happened.

      {¶11} Officers Scozzie and Shirey also arrived at the scene and testified at the

trial for the state. Officer Scozzie said that the victim explained she was a passenger in

appellant’s car and that a verbal exchange escalated into a physical altercation. The

victim stated that appellant punched her in the face and head. Officer Shirey described

the victim as being “frantic” when explaining the altercation she had with appellant. The

officers understood the victim even though she appeared to be intoxicated. Officer

Scozzie said she was “fairly coherent.”

      {¶12} The officers observed fresh scratches on the victim’s upper arms, a small

laceration on her nose, and a slight bump on her head. While filling out police forms,

the victim became light-headed and dizzy.        The officers later saw no injuries on

appellant.

      {¶13} The state introduced 17 exhibits, including 911 audio, location

photographs, victim photographs, dash cam footage, appellant’s booking photographs,

and a DVD interview with the victim. (State’s Exhibits 1, 2A-B, 3A-B, 4A-E, 5, 6A-D, 7,

and 8).

      {¶14} At the close of the state’s case, defense counsel moved for an acquittal

pursuant to Crim.R. 29 which was overruled by the trial court.

      {¶15} Appellant was the sole witness to testify for the defense. According to

appellant, the victim was the aggressor. Appellant testified that while he was driving,

the victim grabbed the steering wheel and began kicking and punching him. During the

scuffle, appellant said the victim pulled the emergency brake.       Appellant stated he




                                            4
managed to push her head and recline the passenger seat before she ran out of the

car. Appellant claimed he was only trying to block getting hit by the victim and did not

strike her. Appellant said he needed to defend himself.

       {¶16} Defense counsel renewed its Crim.R. 29 motion for acquittal which was

overruled by the trial court.

       {¶17} Following trial, the jury found appellant guilty of domestic violence as

charged in the indictment. The trial court referred the matter to the Adult Probation

Department for a presentence investigation report and a victim impact statement.

       {¶18} On March 14, 2016, the trial court sentenced appellant to 24 months in

prison and notified him that post-release control is mandatory for three years. Appellant

filed a timely appeal and raises the following two assignments of error:

       {¶19} “[1.] Defense counsel was ineffective by failing to object to the

presentation of pictures which served to prejudice defendant under Evid.R. 403.

       {¶20} “[2.] The verdict was not supported by sufficient evidence and it was

against the manifest weight of the evidence.”

       {¶21} In his first assignment of error, appellant argues his trial counsel was

ineffective because she did not object to the presentation of pictures which prejudiced

him under Evid.R. 403(A) and (B).

       {¶22} “‘In order to prevail on an ineffective assistance of counsel claim, a

petitioner must satisfy the two-prong test set forth in Strickland v. Washington (1984),

466 U.S. 668 * * * (* * *). * * * Thus, appellant must show that counsel’s performance

was deficient and “must also show prejudice resulting from the deficient performance.”’”

(Citations omitted.) State v. Kirschenmann, 11th Dist. Portage Nos. 2014-P-0031 and




                                            5
2014-P-0032, 2015-Ohio-3544, ¶16. See State v. Henry, 11th Dist. Lake No. 2007-L-

142, 2009-Ohio-1138, ¶50-59; State v. Peoples, 11th Dist. Lake No. 2005-L-158, 2010-

Ohio-2523, ¶17-30.

       {¶23} “‘Under Strickland as interpreted by Ohio courts, attorneys are presumed

competent, reviewing courts must refrain from second-guessing strategic, tactical

decisions and strongly presume that counsel’s performance falls within a wide range of

reasonable legal assistance.’” State v. Brown, 11th Dist. Ashtabula No. 2013-A-0065,

2014-Ohio-2878, ¶42, quoting State v. Carter, 72 Ohio St.3d 545, 558 (1995). “‘Trial

tactics (including a failure to object) do not substantiate a claim of ineffective assistance

of counsel.’” Brown, supra, at ¶50, quoting Henry, supra, at ¶78.

       {¶24} Evid.R. 401, “Definition of ‘relevant evidence,’” states:

       {¶25} “‘Relevant evidence’ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”

       {¶26} Evid.R. 403, “Exclusion of relevant evidence on grounds of prejudice,

confusion, or undue delay,” states:

       {¶27} “(A) Exclusion mandatory. Although relevant, evidence is not admissible if

its probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.

       {¶28} “(B) Exclusion discretionary.       Although relevant, evidence may be

excluded if its probative value is substantially outweighed by considerations of undue

delay, or needless presentation of cumulative evidence.”




                                             6
       {¶29} In this case, the record shows the state introduced 17 exhibits, including

911 audio, location photographs, victim photographs, dash cam footage, appellant’s

booking photographs, and a DVD interview with the victim. On appeal, appellant makes

a general assertion that his trial counsel should have objected to the admission of the

state’s “photographs/exhibits” because they were irrelevant. However, appellant fails to

specifically explain which particular exhibit(s) were irrelevant and fails to explain how

they were inflammatory and caused him prejudice.

       {¶30} When      considered     as   a       whole,   we   fail     to   see   how    the

“photographs/exhibits” created a prejudicial effect sufficient to substantially outweigh the

evidence’s probative value. See Evid.R. 403; State v. Kovacic, 11th Dist. Lake No.

2010-L-065, 2012-Ohio-219, ¶33. Trial counsel’s failure to object, i.e., a trial tactic, will

not be second-guessed by this court. Brown, supra, at ¶50, quoting Henry, supra, at

¶78. Appellant cannot show prejudice as a result from any deficient performance and

cannot show that the outcome would have been different.                 Thus, appellant fails to

satisfy both prongs under Strickland.

       {¶31} Appellant’s first assignment of error is without merit.

       {¶32} In his second assignment of error, appellant presents both a sufficiency

and a manifest weight argument.

       {¶33} With regard to sufficiency, in State v. Bridgeman, 55 Ohio St.2d 261

(1978), the Supreme Court of Ohio established the test for determining whether a

Crim.R. 29 motion for acquittal is properly denied. The Court stated that “[p]ursuant to

Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is

such that reasonable minds can reach different conclusions as to whether each material




                                               7
element of a crime has been proved beyond a reasonable doubt.”             Id. at syllabus.

“Thus, when an appellant makes a Crim.R. 29 motion, he or she is challenging the

sufficiency of the evidence introduced by the state.” State v. Patrick, 11th Dist. Trumbull

Nos. 2003-T-0166 and 2003-T-0167, 2004-Ohio-6688, ¶18.

      {¶34} As this court stated in State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994

Ohio App. LEXIS 5862, *13-15 (Dec. 23, 1994):

      {¶35} “‘Sufficiency’ challenges whether the prosecution has presented evidence

on each element of the offense to allow the matter to go to the jury, while ‘manifest

weight’ contests the believability of the evidence presented.

      {¶36} “‘“The test (for sufficiency of the evidence) is whether after viewing the

probative evidence and the inference[s] drawn therefrom in the light most favorable to

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

offense beyond a reasonable doubt.         The claim of insufficient evidence invokes an

inquiry about due process. It raises a question of law, the resolution of which does not

allow the court to weigh the evidence.”’

      {¶37} “In other words, the standard to be applied on a question concerning

sufficiency is: when viewing the evidence ‘in a light most favorable to the prosecution,’

‘(a) reviewing court (should) not reverse a [guilty] verdict where there is substantial

evidence upon which the jury could reasonably conclude that all of the elements of an

offense have been proven beyond a reasonable doubt.’” * * *

      {¶38} “On the other hand, ‘manifest weight’ requires a review of the weight of the

evidence presented, not whether the state has offered sufficient evidence on each

element of the offense.




                                             8
       {¶39} “‘In determining whether the verdict was against the manifest weight of the

evidence, “(* * *) the court 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 reversed and a new trial

ordered. (* * *)”’ (Citations omitted.) * * *” (Emphasis sic.) (Citations omitted.)

       {¶40} Regarding sufficiency, “a reviewing court must look to the evidence

presented * * * to assess whether the state offered evidence on each statutory element

of the offense, so that a rational trier of fact may infer that the offense was committed

beyond a reasonable doubt.” State v. March, 11th Dist. Lake No. 98-L-065, 1999 Ohio

App. LEXIS 3333, *8 (July 16, 1999). The evidence is to be viewed in a light most

favorable to the prosecution when conducting this inquiry. State v. Jenks, 61 Ohio St.3d

259, paragraph two of the syllabus (1991), superseded by state constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).

Further, the verdict will not be disturbed on appeal unless the reviewing court finds that

reasonable minds could not have arrived at the conclusion reached by the trier of fact.

State v. Dennis, 79 Ohio St.3d 421, 430 (1997).

       {¶41} Regarding manifest weight, a judgment of a trial court should be reversed

“‘only in the exceptional case in which the evidence weighs heavily against the

conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). The trier of fact is in

the best position to assess the credibility of witnesses. State v. DeHass, 10 Ohio St.2d

230, paragraph one of the syllabus (1967).




                                               9
       {¶42} “[C]ircumstantial evidence and direct evidence inherently possess the

same probative value.” State v. Fasline, 11th Dist. Trumbull No. 2014-T-0004, 2015-

Ohio-715, ¶39, citing State v. Biros, 78 Ohio St.3d 426, 447 (1997), citing Jenks, supra,

paragraph one of the syllabus.

       {¶43} “A finding that a judgment is not against the manifest weight of the

evidence necessarily means the judgment is supported by sufficient evidence.”

Patterson v. Godale, 11th Dist. Lake Nos. 2014-L-034 and 2014-L-042, 2014-Ohio-

5615, ¶23, citing State v. Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-

1842, ¶32 (“‘Since there must be sufficient evidence to take a case to the jury, it follows

that “a finding that a conviction is supported by the weight of the evidence necessarily

must include a finding of sufficiency.”’” (Emphasis sic.) (Citations omitted.))

       {¶44} For the reasons addressed below, we determine the judgment is not

against the manifest weight of the evidence and, thus, further conclude it is supported

by sufficient evidence.

       {¶45} Appellant takes issue with the guilty finding for domestic violence, a felony

of the third degree, in violation of R.C. 2919.25(A), which states: “[n]o person shall

knowingly cause or attempt to cause physical harm to a family or household member.”

       {¶46} The term “knowingly” is defined in R.C. 2901.22(B), which states: “[a]

person acts knowingly, regardless of his purpose, when the person is aware that the

person’s conduct will probably cause a certain result or will probably be of a certain

nature. A person has knowledge of circumstances when the person is aware that such

circumstances probably exist.”




                                            10
       {¶47} A live-in “boyfriend and girlfriend” situation, like the case at bar, satisfies

the “family or household member” element under R.C. 2919.25(A).                    See R.C.

2919.25(F)(1)(a)(i) and (F)(2); State v. Miller, 3d Dist. Henry No. 7-12-07, 2012-Ohio-

6115, ¶25.

       {¶48} Appellant claims this is a “he said, she said” case.          Appellant further

claims the victim is not credible, previously lied to the police regarding a prior conviction,

and was intoxicated during the incident.       Appellant stresses that no one saw what

happened. According to appellant, the victim was the aggressor and tried to steer the

car off-road. He said she kicked and punched him. Appellant also said he needed to

defend himself.

       {¶49} The state, however, presented testimony that appellant was the

aggressor. As stated, appellant and the victim were boyfriend and girlfriend. They lived

together in an apartment for about one year. During the afternoon at issue, appellant

and the victim visited her friend, Ms. Eggler, who later asked appellant to leave because

he was being “nasty” to the victim. Appellant left but the victim stayed. The victim had

five to six beers.

       {¶50} Later that evening, appellant picked up the victim and drove her to Record

Exchange. The victim purchased a CD and returned to the vehicle. Appellant pulled

out and drove in the opposite direction of their apartment. The victim asked appellant

where they were going. The victim stated that appellant replied, “Shut the fuck up. I’m

about to kill you.”




                                             11
       {¶51} The two began fighting in the car.          The victim testified that appellant

started to turn the vehicle into a light pole while yelling at her, “I’m going to kill you, you

fucking bitch.” The victim grabbed the steering wheel and begged appellant to stop. He

eventually stopped the car on a side street. According to the victim, appellant began

hitting her in the chest and on top of her head with a closed fist and told her again that

he was going to kill her. After a couple of minutes, appellant began driving off.

       {¶52} However, appellant stopped the vehicle again. The victim stated appellant

proceeded to hit her more, told her he was going to bite her nose off, and said,

“Nobody’s gonna love you.” The victim said appellant reclined her seat, put his hands

on her throat, and told her again, “I’m gonna fucking kill you, bitch.” The victim thought

she was going to die. She began kicking appellant, managed to escape, ran to a

nearby house, and called 911.

       {¶53} Dispatchers Lasota and Smalley testified that when the 911 call came in

from the victim, she was “highly upset” and indicated she had been assaulted. The

victim was screaming, crying, and afraid for her life.

       {¶54} When Officer Pitt arrived at the scene, he saw the victim flagging him

down. Officer Pitt testified that the victim was waving her arms in a “hysterical fashion.”

The victim said she was assaulted. She was upset, crying, and carrying on. She

appeared to be intoxicated as Officer Pitt smelled alcohol and said the victim’s speech

was slurred. However, Officer Pitt said she was able to hold a conversation with him

and told him what had happened.

       {¶55} Officer Scozzie said that the victim explained she was a passenger in

appellant’s car and that a verbal exchange escalated into a physical altercation. The




                                              12
victim stated that appellant punched her in the face and head. Officer Shirey described

the victim as being “frantic” when explaining the altercation she had with appellant. The

officers understood the victim even though she appeared to be intoxicated. Officer

Scozzie said she was “fairly coherent.”

       {¶56} The officers observed fresh scratches on the victim’s upper arms, a small

laceration on her nose, and a slight bump on her head. While filling out police forms,

the victim became light-headed and dizzy.         The officers later saw no injuries on

appellant.

       {¶57} The foregoing testimony was corroborated by the state’s exhibits,

including 911 audio, location photographs, victim photographs, dash cam footage,

appellant’s booking photographs, and a DVD interview with the victim. (State’s Exhibits

1, 2A-B, 3A-B, 4A-E, 5, 6A-D, 7, and 8).

       {¶58} Pursuant to Schlee, supra, there is sufficient evidence upon which the jury

could reasonably conclude beyond a reasonable doubt that the elements of domestic

violence were proven. Thus, the trial court did not err in overruling appellant’s Crim.R.

29 motion.

       {¶59} Also, the jury chose to believe the state’s seven witnesses as opposed to

appellant. DeHass, supra, at paragraph one of the syllabus. Based on the evidence

presented, as previously stated, we cannot say that the jury clearly lost its way in finding

appellant guilty of domestic violence. Schlee, supra, at *14-15; Thompkins, supra, at

387.

       {¶60} Appellant’s second assignment of error is without merit.




                                            13
      {¶61} For the foregoing reasons, appellant’s assignments of error are not well-

taken. The judgment of the Lake County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.

concur.




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