[Cite as State v. Huber, 2013-Ohio-97.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98128


                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                          JOSEPH HUBER
                                                     DEFENDANT-APPELLANT



                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-548567

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

        RELEASED AND JOURNALIZED:                    January 17, 2013
ATTORNEY FOR APPELLANT

Susan J. Moran
55 Public Square
Suite 1616
Cleveland, OH 44113-1901


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Marc D. Bullard
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Joseph Huber, appeals from the trial court’s judgment,

rendered after a bench trial, finding him guilty of harassment with a bodily substance in

violation of R.C. 2921.38(A). Finding no merit to the appeal, we affirm.

       {¶2} Huber was indicted on one count of harassment with a bodily substance in

violation of R.C. 2921.38(C), a third degree felony. He waived his right to a jury and the

matter proceeded to a bench trial.

       {¶3} State’s witness attorney Rick Ferrara testified that on February 23, 2011, he

met with Huber, his then-client, in a holding cell on the 23rd floor of the Justice Center

prior to a resentencing hearing for Huber on another case. Huber and Ferrara were

seated across from each other at a table.     Ferrara testified that he and Huber were

discussing his sentencing recommendations when Huber suddenly turned to him,

narrowed his eyes, and spit at him across the table. Ferrara said some of the spit entered

his mouth. According to Ferrara, Huber then stood up, said “I ain’t taking no f—ing 25

years from no judge,” and knocked on the door of the cell. The guard appeared almost

instantly and opened the door, and Ferrara left the cell. Ferrara immediately advised the

prosecutor what had happened and that he would withdraw as Huber’s lawyer.
       {¶4} Following Ferrara’s testimony, the state played an audiotaped recording of a

conversation between Huber and his father while Huber was in jail. In the recording,

Huber admitted spitting on attorney Ferrara.

       {¶5} At the close of the state’s evidence, the trial court granted Huber’s Crim.R.

29 motion for acquittal with respect to R.C. 2921.38(C), but denied it with respect to R.C.

2921.38(A),1 which provides that

       [no] person who is confined in a detention facility, with intent to harass,
       annoy, threaten, or alarm another person, shall cause or attempt to cause the
       other person to come into contact with blood, semen, urine, feces, or
       another bodily substance by throwing the bodily substance at the other
       person, by expelling the bodily substance upon the other person, or in any
       other manner.

A violation of R.C. 2921.38(A) is a fifth degree felony.

       {¶6} The trial court then took a short recess pending its decision. Before the

verdict was announced, defense counsel informed the court that Huber had advised him

during the recess that he wanted to testify at trial; counsel explained that it was trial

strategy not to have Huber testify.

       {¶7} The court found Huber guilty of violating R.C. 2921.38(A); it proceeded

immediately to sentencing and sentenced Huber to time served.2




       The trial court found that R.C. 2921.38(A) is a lesser included offense of R.C. 2921.38(C).
       1


Huber does not raise the issue on appeal so we do not address it.

        The state does not challenge Huber’s sentence on appeal.
       2
       {¶8} In his first assignment of error, Huber contends that his due process and

other constitutional rights were violated because trial counsel did not allow him to testify

in his own defense. This argument is without merit.

       {¶9} A decision regarding whether to call a defendant to testify on his own

behalf during the course of trial is a matter of trial strategy. State v. Harrison, 8th Dist.

No. 57617, 1990 Ohio App. LEXIS 4522 (Oct. 18, 1990); State v. Adkins, 144 Ohio

App.3d 633, 646, 761 N.E.2d 94 (noting that “the decision whether to call a defendant as

a witness falls within the purview of trial tactics”).

       Although the ultimate decision whether to testify rests with the defendant,
       when a tactical decision is made not to have the defendant testify, the
       defendant’s assent is presumed. This is so because the defendant’s
       attorney is presumed to follow the rules of professional conduct and is
       ‘strongly presumed to have rendered adequate assistance’ in carrying out
       the general duty “to advocate the defendant’s cause and the more particular
       duties to consult with the defendant on important decisions and to keep the
       defendant informed of important developments in the course of the
       prosecution.”

       A defendant who wants to testify can reject defense counsel’s advice to the
       contrary by insisting on testifying, communicating with the trial court, or
       discharging counsel. At base, a defendant must ‘alert the trial court’ that
       he desires to testify or that there is a disagreement with defense counsel
       regarding whether he should take the stand. When a defendant does not
       alert the trial court of a disagreement, waiver of the right to testify may be
       inferred by the defendant’s conduct. Waiver is presumed from the
       defendant’s failure to testify or notify the trial court of the desire to do so.

(Citations omitted.) Gonzales v. Elo, 233 F.3d 348, 356-357, 2000 U.S. App. LEXIS

29507 (6th Cir.2000).

       {¶10} Here, defense counsel’s decision to advise Huber not to testify was a tactical

one based on trial strategy. Although after trial Huber may have regretted his decision to
acquiesce to his counsel’s advice, the record indicates that he gave no indication

whatsoever during trial that he disagreed with his counsel. Accordingly, Huber’s assent

to counsel’s decision, and his waiver of his right to testify, is presumed. The first

assignment of error is therefore overruled.

       {¶11} In his third assignment of error,2 Huber contends that his conviction was

against the manifest weight of the evidence because the state failed to prove the mens rea

element of the offense. Specifically, Huber contends there was no evidence that he spit

at Ferrara “with intent to harass, annoy, threaten, or alarm” him, as required by R.C.

2921.38(A), because he only intended by his spitting to get Ferrara to remove himself

from the case. Huber’s argument is without merit.

       {¶12} In reviewing a claim challenging the manifest weight of the evidence,

       [t]he question to be answered is whether there is substantial evidence upon
       which a jury could reasonably conclude that all the elements have been
       proved beyond a reasonable doubt. In conducting this review, we must
       examine the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of the witnesses, and determine whether the
       [factfinder] 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.)

State v. Goss, 8th Dist. No. 97348, 2012-Ohio-1951, ¶ 9, quoting State v. Leonard, 104

Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.

       {¶13} Here, Ferrara testified that as he and Huber were discussing Ferrara’s

recommendations regarding the resentencing hearing, Huber suddenly turned and spit at


       The second assignment of error was withdrawn.
       2
him. Ferrara testified that as a result of the spitting, he immediately withdrew from

Huber’s case. The only reasonable inference from this evidence is that Huber spit at

Ferrara with the intent to “harass, annoy, threaten, or alarm” him so that he would

withdraw as his attorney. Accordingly, the trial court did not lose its way or create a

manifest miscarriage of justice in finding Huber guilty of harassment with a bodily

substance in violation of R.C. 2921.38(A). The third assignment of error is overruled.

       {¶14} Judgment affirmed.

       It is ordered that appellee recover from appellant 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
