[Cite as State v. Thompson, 2012-Ohio-600.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. Sheila G. Farmer, J.
                                                 Hon. John W. Wise, J.
-vs-
                                                 Case No. 2011AP080035
ANTHONY THOMPSON, JR.

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the New Philadelphia
                                              Municipal Court, Case No. 1001119AB


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                       February 14, 2012


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


GARRY O. HURLESS                              ANTHONY THOMPSON, JR., PRO SE
P.O. Box 237                                  1694 State Route 39 NW
New Philadelphia, Ohio 44663-0327             Dover, Ohio 44622
Tuscarawas County, Case No. 2011AP080035                                                 2

Hoffman, P.J.


       (¶1)    Defendant-appellant Anthony Thompson Jr. appeals his conviction and

sentence entered by the New Philadelphia Municipal Court on one count of domestic

violence. Plaintiff-appellee is the state of Ohio.

                             STATEMENT OF THE FACTS AND CASE

       (¶2)    On August 17, 2010, Jessica Warfield called the Dover Police Department

to report an assault by Appellant. Warfield testified at trial in this matter Appellant

attempted to make a videotape of her, and she asked him to leave.              When she

attempted to grab the camera and turn it off, Appellant grabbed her, threw her across

the room, pulled her hair and choked her. At the trial, the State presented the videotape

and several photographs depicting injuries to Warfield’s neck and leg.

       (¶3)    Following a bench trial, Appellant was found guilty of domestic violence, in

violation of R.C. 2919.25(A). The trial court sentenced Appellant to community control

sanctions in lieu of a thirty day jail term.

       (¶4)    Appellant now appeals, assigning as error:

       (¶5)    “I. APPELLANT’S CONVICTION OF DOMESTIC VIOLENCE WAS

AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

       (¶6)    “II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL.”

                                                 I.

       (¶7)    In his first generally raised assigned error, Appellant maintains his

convictions are against the manifest weight and sufficiency of the evidence.
Tuscarawas County, Case No. 2011AP080035                                                  3


       (¶8)   On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259. “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.” Jenks at

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On

review for manifest weight, a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine “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.” State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State v.

Thompkins, 78 Ohio St.3d 380, 1997–Ohio–52. The granting of a new trial “should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.” Martin at 175.

       (¶9)   We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182,

certiorari denied (1990), 498 U.S. 881. The trier of fact “has the best opportunity to view

the demeanor, attitude, and credibility of each witness, something that does not

translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–

Ohio–260.

       (¶10) Appellant was convicted of 2919.25(A), which reads, “(A) No person shall

knowingly cause or attempt to cause physical harm to a family or household member.”
Tuscarawas County, Case No. 2011AP080035                                                4


       (¶11) The credibility of witnesses and weight of the evidence are issues

primarily for the trial court, as the trier of fact. In re Ohler, Hocking App. No. 04CA8,

2005–Ohio–1583, ¶ 15, citing Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77,

80, 461 N.E.2d 1273.         Accordingly, upon review of the evidence and testimony

presented at trial, the evidence was sufficient to support Appellant’s conviction on the

charge. As set forth above, Jessica Warfield testified at trial Appellant grabbed her,

threw her across the room, pulled her hair and choked her.         The State introduced

photographs depicting injuries to Warfield. Warfield testified at trial the photographs

depict injuries to her neck and legs caused by Appellant grabbing her and throwing her

down. We find the trier of fact weighed the evidence and judged the credibility of the

witnesses. Upon our review, we find there was sufficient evidence to support the trial

court’s verdict of guilty of the charge.

       (¶12) The first assignment of error is sustained.

                                               II.

       (¶13) In the second assigned error, Appellant asserts his counsel was

ineffective in failing to challenge the testimony of the alleged victim, Jessica Warfield,

herein. Specifically, Appellant maintains Warfield’s testimony was contradictory and not

credible, and his counsel failed to challenge the testimony through cross-examination

utilizing valuable evidence in the form of photographs and videos available at trial.

Further, Appellant maintains his trial counsel failed to introduce important information

contained in the police reports.
Tuscarawas County, Case No. 2011AP080035                                                   5

       (¶14) The standard for ineffective assistance of counsel is set out in State v.

Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, certiorari

denied (1990), 497 U.S. 1011. Appellant must establish the following:

       (¶15) “2. Counsel's performance will not be deemed ineffective unless and until

counsel's performance is proved to have fallen below an objective standard of

reasonable    representation    and,   in   addition,   prejudice   arises   from   counsel's

performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623;

Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,

followed.)

       (¶16) “3. To show that a defendant has been prejudiced by counsel's deficient

performance, the defendant must prove that there exists a reasonable probability that,

were it not for counsel's errors, the result of the trial would have been different.”

       (¶17) Based upon our analysis and disposition of the first assignment of error,

we do not find Appellant has demonstrated, but for the alleged errors of counsel, the

outcome of the trial would have been otherwise. The trial court had the opportunity to

view the videotape and the photographs presented and admitted at trial. The trial court

weighed the evidence and judged the credibility of the witnesses and the testimony. We

do not find counsel was ineffective in the cross-examination of Warfield. Appellant has

not demonstrated prejudice as a result of the alleged errors of trial counsel. The second

assignment of error is overruled.
Tuscarawas County, Case No. 2011AP080035                                              6


      (¶18) Appellant’s conviction in the New Philadelphia Municipal Court is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur

                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER


                                           s/ John W. Wise______________________
                                           HON. JOHN W. WISE
Tuscarawas County, Case No. 2011AP080035                                          7


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
ANTHONY THOMPSON, JR.                       :
                                            :
       Defendant-Appellant                  :         Case No. 2011AP080035


       For the reasons stated in our accompanying Opinion, Appellant’s conviction in

the New Philadelphia Municipal Court is affirmed. Costs to Appellant.




                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Sheila G. Farmer___________________
                                            HON. SHEILA G. FARMER


                                            s/ John W. Wise _____________________
                                            HON. JOHN W. WISE
