[Cite as State v. Williams, 2016-Ohio-4945.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :     Hon. Sheila G. Farmer, P.J.
        Plaintiff - Appellee                   :     Hon. John W. Wise, J.
                                               :     Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :
DAVID WILLIAMS, IV                             :     Case No. 16-CA-01
                                               :
        Defendant - Appellant                  :     OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                     Court of Common Pleas, Case No.
                                                     2015 CR 608




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 12, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

KENNETH W. OSWALT                                    WILLIAM T. CRAMER
Licking County Prosecutor                            470 Olde Worthington Road, Suite 200
20 S. Second Street, Fourth Floor                    Westerville, Ohio 43082
Newark, Ohio 43055
Licking County, Case No. 16-CA-01                                                         2

Baldwin, J.

      {¶1}      Appellant David Williams, IV, appeals a judgment of the Licking County

Common Pleas Court convicting him of aggravated robbery (R.C. 2911.01(A)(1), (3)),

felonious     assault   (R.C.   2903.11(A)(1),(2))   and   possession   of   cocaine   (R.C.

2925.11((A),(C)(4)(a)), with a repeat violent offender specification. Appellee is the State

of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}     On August 20, 2014, Joe Messina, Sr. was paid $1,000.00 in cash for

performing a concrete job. Messina gave his son $200 to pay bills, and kept the other

$800 with him. Messina then went to a bar called Jugz, where he had two or three drinks,

paying for the drinks with the cash from the concrete job. Messina moved from Jugz to

the Dew Drop Inn, where he had a few more drinks. He had seven new $100 bills with

him, and some smaller bills.

       {¶3}     Messina saw appellant at a table alone. He had never met appellant, but

sat down and struck up a conversation. Messina started to leave the Dew Drop Inn after

about an hour, and appellant left at the same time. Because they were going in the same

direction, the pair walked together. As they approached Messina’s apartment, appellant

asked if he had anything cold to drink. Messina invited him to his apartment, where he

gave appellant a Four Loko drink from his refrigerator. Messina admitted that they also

had a hit of cocaine, which he had at the apartment.

       {¶4}     Messina fell asleep while appellant was still in the apartment. Messina was

awakened when he was stabbed in the neck. Appellant was on top of him, choking him

and jabbing him with a knife. Messina blocked the knife and pushed appellant off. He
Licking County, Case No. 16-CA-01                                                          3


took the knife from appellant and stabbed appellant in the neck. Appellant went to the

kitchen, where he tried to get a knife out of a sheath. Messina ran for the stairs. Appellant

tackled Messina, breaking Messina’s ribs and his arm. Appellant landed on top of

Messina and started shaking him. During the struggle, appellant took Messina’s money.

Messina began pounding on the wall and yelling for help, and appellant fled.

       {¶5}   The next morning, Detective Timothy Fleming contacted appellant, who had

a cut on his neck and on his knuckle. When asked if he had anything in his pockets,

appellant turned out his pockets, revealing a small amount of cash and a crack pipe with

cocaine residue. Det. Fleming asked appellant to check his left rear pocket, and appellant

produced seven new $100 bills. Appellant made several inconsistent statements about

his whereabouts the night before, and was placed under arrest.

       {¶6}   Appellant was indicted by the Licking County Grand Jury with aggravated

robbery, felonious assault, and possession of cocaine. The aggravated robbery and

felonious assault charges included repeat violent offender specifications. Appellant was

found guilty after jury trial of aggravated robbery, felonious assault, and possession of

cocaine. The court thereafter found him to be a repeat violent offender. The court merged

the convictions of aggravated robbery and felonious assault, and the State elected to

have appellant sentenced for aggravated robbery. The court sentenced appellant to

eleven years incarceration for aggravated robbery and one year incarceration for

possession of cocaine, to run concurrently with each other but consecutively to the six

year sentence on the repeat violent offender specification, for an aggregate term of

seventeen years.

       {¶7}   Appellant assigns two errors to this Court on appeal:
Licking County, Case No. 16-CA-01                                                               4


       {¶8}    “I. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT

HAD A DUTY TO RECONCILE EVIDENTIARY CONFLICTS ON THE THEORY THAT

EACH WITNESS TESTIFIED TO THE TRUTH AND THAT IT ONLY HAD TO EVALUATE

CREDIBILITY IF IT WAS UNABLE TO RECONCILE THE EVIDENCE.

       {¶9}    “II. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO THE EFFECTIVE

ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION,

ARTICLE I, SECTION 10, BY COUNSEL’S FAILURE TO OBJECT TO ERRONEOUS

JURY INSTRUCTIONS.”

                                                    I.

       {¶10} In his first assignment of error, appellant argues that the court erred by

instructing the jury that it had a duty to reconcile evidentiary conflicts on the theory that

each witness testified to the truth, and that it only had to evaluate credibility if it was unable

to reconcile the evidence.

       {¶11} Appellant concedes that he failed to object to this instruction as required by

Crim. R. 30(A), and we therefore must find plain error to reverse. In order to prevail under

a plain error analysis, appellant bears the burden of demonstrating that the outcome of

the trial clearly would have been different but for the error. State v. Long, 53 Ohio St.2d

91, 372 N.E.2d 804 (1978). Notice of plain error “is to be taken with the utmost caution,

under exceptional circumstances and only to prevent a manifest miscarriage of justice.”

Id. at paragraph three of the syllabus.

       {¶12} Appellant challenges the following instruction, which the court gave during

its preliminary instructions to the jury:
Licking County, Case No. 16-CA-01                                                         5


              If there are any conflicts in the evidence, it is your duty to reconcile

       the conflicts if you can on the theory that each witness has testified to the

       truth. If you cannot so reconcile the testimony, then it is within your province

       to determine whom you will believe and whom you will disbelieve.

       {¶13} Tr. I, 128.

       {¶14} Appellant relies on Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38

L.Ed.2d 368 (1973), in which the challenged instruction read:

              Every witness is presumed to speak the truth. This presumption may

       be overcome by the manner in which the witness testifies, by the nature of

       his or her testimony, by evidence affecting his or her character, interest, or

       motives, by contradictory evidence, or by a presumption.

       {¶15} Id. at 142.

       {¶16} The United States Supreme Court found no constitutional violation in this

instruction while recognizing that many federal courts of appeals had expressed

disapproval of the instruction. The Supreme Court found that because the jury was

instructed about the presumption of innocence and the state’s duty to prove guilt beyond

a reasonable doubt, any “tangential undercutting” of these propositions that may have

theoretically resulted from the challenged instruction was not of constitutional dimension.

Id. at 149.

       {¶17} Appellant also relies on United States v. LaRiche, 549 F.2d 1088 (6th Cir.

1977), in which the challenged instruction read:

              Every witness is presumed to speak the truth; however, if you find

       the presumption of truthfulness to be outweighed as to any witness, you will
Licking County, Case No. 16-CA-01                                                            6


       give the testimony of that witness such credibility, if any, as you may think

       it deserves.

       {¶18} Id. at 1093.

       {¶19} In finding no plain error in the giving of the instruction, the court concluded

that the trial court’s instruction on factors which would tend to discredit the testimony of

witnesses vitiated what might otherwise have been plain error. Id. at 1094.

       {¶20} The State cites to United States v. Hyman, 741 F.2d 906 (7th Cir. 1984), in

which the challenged instruction was similar to that in the case at bar:

              If there are conflicts in the evidence, it is your duty to reconcile the

       conflicts, if you can, on the theory that each witness has testified to the truth.

       If you cannot so reconcile the testimony, then it is within your province to

       determine whom you will believe and whom you will disbelieve. You should

       weigh the evidence and give credit to the testimony in light of your own

       experience and observations in the ordinary affairs of life.

       {¶21} Id. at 909.

       {¶22} In rejecting appellant’s claim that the instruction was error, the court

concluded that this instruction was not a “presumption of truth” instruction that had met

with disapproval in several federal circuits. Id. at 910. Rather, the jury was told that if

there were irreconcilable conflicts in the evidence, then it was up to the jury to decide who

to believe. Id. Therefore, the instruction left the determination of witness credibility to the

jury, and there was no “presumption of truthfulness” charge to the jury. Id.
Licking County, Case No. 16-CA-01                                                            7

       {¶23} As in Hyman, the challenged instruction did not constitute a presumption of

truthfulness instruction. Rather, the instruction left the determination of witness credibility

to the jury.

       {¶24} Further, viewing the instruction in light of the entire charge to the jury, it is

clear that the jury was properly instructed on the burden of proof, the presumption of

innocence, and the manner in which to determine credibility of witnesses. The court

charged the jury in preliminary instructions:

               The law does not, however, require you to accept all the evidence I

       shall admit even though it may be competent. In determining what evidence

       you will accept, you must make your own evaluation of the testimony given

       by each of the witnesses and determine the degree of weight you choose

       to give to that witness’ testimony.

               The testimony of a witness may fail to conform to the facts as they

       occurred because that witness is intentionally telling you a falsehood, or

       perhaps because they did not accurately see or hear those things about

       which they have testified. Perhaps their recollection of the events is poor

       or perhaps they have not expressed themselves clearly in giving their

       testimony.

               There is no magical formula by which a person evaluates testimony.

       You bring with you into this courtroom today all of the background and

       experience of your lives. In your everyday affairs you determine for

       yourselves the reliability or unreliability of statements that are made to you

       by other people. Those same tests that you use in your everyday dealings
Licking County, Case No. 16-CA-01                                                        8


      are the same tests that you would apply here today as well as in your

      deliberations. They may consist of the interest or lack of interest of any

      witness in the outcome of the case; the bias or prejudice of a witness, if any;

      the age; the appearance; the manner in which the witness gives their

      testimony here on the witness stand; the opportunity that the witness had

      to observe the facts about which they are testifying; the probability or

      improbability of the witness' testimony when viewed in light of all the other

      evidence in the case. All of these are items to be taken into your

      consideration in determining the weight, if any, you'll assign to that witness'

      testimony.

             If there are any conflicts in the evidence, it is your duty to reconcile

      the conflicts if you can on the theory that each witness has testified to the

      truth. If you cannot so reconcile the testimony, then it is within your province

      to determine whom you will believe and whom you will disbelieve.

             Reasonable doubt is present when the jurors, after they have

      carefully considered and compared all the evidence, cannot say they are

      firmly convinced of the truth of the charge. It is a doubt based on reason

      and common sense. Reasonable doubt is not mere possible doubt, because

      everything relating to human affairs or depending upon moral evidence is

      open to some possible or imaginary doubt. Proof beyond a reasonable

      doubt is proof of such character that an ordinary person would be willing to

      rely and act upon it in the most important of his own affairs.

      {¶25} Tr. I, 126-28, (challenged instruction in italics.)
Licking County, Case No. 16-CA-01                                                         9


       {¶26} In closing instructions, the court charged the jury:

              As I stated to you in my preliminary instructions, you are the sole

       judges of the facts, of the credibility of the witnesses, and the weight of the

       evidence. To weigh the evidence, you should consider the credibility of all

       the witnesses, and to do this you'll apply the tests of truthfulness which you

       probably apply in your daily lives. These tests may include: the appearance

       of each witness on the witness stand; their manner of testifying; the

       reasonableness of their testimony; the opportunity that the witness had to

       see, hear and know the things concerning which they testified; the accuracy

       of memory; frankness or lack of it; along with the intelligence, interest and

       bias, if any, together with all the facts and circumstances surrounding the

       testimony. Applying these tests, you would assign to the testimony of each

       witness such weight as you deem proper.

              You are not required to believe the testimony of any witness simply

       because the witness has been placed under oath. You may believe or

       disbelieve all or any part of the testimony of any witness. It is within your

       province to determine what testimony is worthy of belief and what testimony

       is not worthy of belief.

       {¶27} Tr. III, 551-52.

       {¶28} The jury was correctly and completely charged on their responsibility to

determine the credibility of witnesses. Although the challenged instruction may have

constituted a permissive inference about the truthfulness of witnesses, the final

instructions to the jury given immediately prior to their deliberations made it clear to the
Licking County, Case No. 16-CA-01                                                               10


jury that they were not required to believe the testimony of any witness just because they

were under oath.

       {¶29} The first assignment of error is overruled.

                                                    II.

       {¶30} In his second assignment of error, appellant argues that counsel was

ineffective for failing to object to the jury instruction he challenges as plain error in his first

assignment of error.

       {¶31} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the result

of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). In other words, appellant must show that counsel’s conduct so undermined

the proper functioning of the adversarial process that the trial cannot be relied upon as

having produced a just result. Id.

       {¶32} As discussed in our resolution of assignment of error one, there was no

error in the jury instruction. Therefore, counsel was not ineffective for failing to object.

       {¶33} The second assignment of error is overruled.
Licking County, Case No. 16-CA-01                                          11


      {¶34} The judgment of the Licking County Common Pleas Court is affirmed.

Costs are assessed to appellant.

By: Baldwin, J.

Farmer, P.J. and

Wise, J. concur.
