[Cite as State v. Muzic, 2017-Ohio-8563.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. No.       28646

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
JOHN M. MUZIC                                          COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 13 02 0360

                                 DECISION AND JOURNAL ENTRY

Dated: November 15, 2017



        HENSAL, Presiding Judge.

        {¶1}     Defendant-Appellant, John Muzic, appeals from the judgment of the Summit

County Court of Common Pleas, denying his petition for post-conviction relief. This Court

affirms.

                                                  I.

        {¶2}     This Court previously outlined the facts of this case on direct appeal. See State v.

Muzic, 9th Dist. Summit No. 27117, 2015-Ohio-1521. While babysitting for her aunt and uncle,

C.V. met Mr. Muzic and ultimately went home with him to meet his dogs. Mr. Muzic provided

C.V., who was sixteen at the time, with alcohol and encouraged her to drink.                As their

conversation turned to sex, C.V. became uncomfortable and expressed her desire to leave. Mr.

Muzic, however, insisted she finish her drink and soon began placing his fingers down her pants

and underwear. When C.V. attempted to leave, he forcibly dragged her to his bedroom. He then

kissed her, digitally penetrated her, and made her perform oral sex, all while exerting pressure on
                                                 2


her throat. The assault ended after Mr. Muzic had vaginal intercourse with her and became

remorseful. Subsequently, C.V. returned to her aunt and uncle’s house where she called her

brother and reported the incident to the police. Though his version of the events changed several

times, Mr. Muzic ultimately claimed that he and C.V. engaged in consensual sexual activity.

        {¶3}    As a result of the foregoing incident, a jury found Mr. Muzic guilty of

kidnapping, rape, and gross sexual imposition. The court sentenced him to a total of 15 years in

prison and classified him as a tier III sexual offender. On direct appeal, this Court affirmed Mr.

Muzic’s convictions. See id.

        {¶4}    While Mr. Muzic’s direct appeal was pending, he filed a petition for post-

conviction relief. His petition was based on the fact that, post-trial, his attorneys had discovered

a variety of social media posts that C.V. had authored. Mr. Muzic argued that, had his attorneys

known about the posts before trial, they could have used them to attack C.V.’s credibility. The

State opposed Mr. Muzic’s petition, and the trial court held a hearing. Following the hearing, the

court also accepted additional briefs from both sides. The court ultimately denied Mr. Muzic’s

petition on its merits.

        {¶5}    Mr. Muzic now appeals from the court’s denial of his petition and raises a single

assignment of error for our review.

                                                II.

                                   ASSIGNMENT OF ERROR

        THE TRIAL COURT ERRED WHEN IT DENIED MR. MUZIC’S PETITION
        FOR POST-CONVICTION RELIEF, FINDING THAT MR. MUZIC’S TRIAL
        COUNSEL REPRESENTATION DID NOT REACH THE LEVEL OF
        INEFFECTIVE ASSISTANCE OF COUNSEL, AND THAT MR. MUZIC WAS
        NOT PREJUDICED OR DENIED EFFECTIVE ASSISTANCE OF COUNSEL
        TO AN EXTENT THAT WOULD HAVE ALTERED THE OUTCOME OF THE
        CASE.
                                                  3


       {¶6}     In his sole assignment of error, Mr. Muzic argues that the trial court abused its

discretion when it denied his petition for post-conviction relief. Specifically, he challenges the

court’s conclusion that he failed to establish ineffective assistance of counsel. This Court rejects

his argument.

       {¶7}     “An appellate court reviews the denial of a petition for [post-conviction relief] for

an abuse of discretion.” State v. Cleveland, 9th Dist. Lorain No. 08CA009406, 2009-Ohio-397,

¶ 11. But see State v. Childs, 9th Dist. Summit No. 25448, 2011-Ohio-913, ¶ 9 (de novo

standard applies when denial is based strictly on issue of law). An abuse of discretion means that

the trial court was unreasonable, arbitrary, or unconscionable in its ruling.         Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, this

Court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66

Ohio St.3d 619, 621 (1993).

       {¶8}     Revised Code Section 2953.21(A)(1)(a) “permits a person who has been

convicted of a criminal offense to petition the court for post-conviction relief where ‘there was

such a denial or infringement of the person’s rights as to render the judgment void or voidable

under the Ohio Constitution or the Constitution of the United States * * *.’” State v. Ross, 9th

Dist. Summit No. 27180, 2014-Ohio-2038, ¶ 7, quoting R.C. 2953.21(A)(1)(a).                 When a

petitioner’s post-conviction claim sounds in ineffective assistance of counsel, a trial court must

analyze his or her claim under the two-step test set forth in Strickland v. Washington, 466 U.S.

688 (1984). State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 61. The petitioner must

show that (1) his counsel’s performance was deficient, and (2) but for counsel’s deficient

performance, there is a reasonable probability that the result of the trial would have been

different. Strickland at 687. If the prejudice prong of the test is dispositive, an appellate court
                                                 4


may limit its review to that prong. State v. Kordeleski, 9th Dist. Lorain No. 02CA008046, 2003-

Ohio-641, ¶ 37.

       {¶9}    Mr. Muzic moved for post-conviction relief on the basis of ineffective assistance

of counsel. In his petition, he argued that his trial attorneys were ineffective because they failed

to fully investigate C.V., the complaining witness. One of his trial attorneys completed an

affidavit on his behalf, and he attached the affidavit to Mr. Muzic’s petition. In the affidavit, the

attorney averred that, before trial, he hired a private investigative firm “to secure background

information of the complainant including social media sites * * *.” He averred that the firm

failed to uncover any social media information, so he and his co-counsel went to trial “without

any meaningful background information” on C.V. Post-trial, however, Mr. Muzic’s family

notified the attorney that C.V. had been active on certain social media sites. The attorney

incorporated by reference and attached to his affidavit a compilation of posts taken from two

social media sites.   The compilation highlighted a number of specific posts that C.V. had

authored, broken down by category. The categories included: “Smoking/Marijuana/Drugs,”

“Alcohol/Drunkenness,” “Sex,” and “Anger/Aggression/Violence.” Mr. Muzic argued that, had

his attorneys discovered C.V.’s posts in advance of trial, they could have used the posts to

impeach her, attack her credibility, and bolster his defense of consent.

       {¶10} The trial court held a hearing on Mr. Muzic’s petition, and both of his trial

attorneys testified on his behalf. The first attorney, who completed the aforementioned affidavit,

testified that the firm he hired to investigate C.V. failed to uncover any useful social media

information about her. The firm only notified the first attorney that C.V. had a Facebook page,

but they “could not access [it].” The first attorney stated that he did not find the firm’s response

unusual because he had little knowledge of social media or its prevalence. He deemed himself
                                                 5


“technologically defunct” and confirmed that, once he received the report from his private

investigator, he did not make any additional attempts to gain information about C.V. online. He

testified that he and Mr. Muzic’s second attorney decided that the latter should cross-examine

C.V. because the second attorney had a softer approach, C.V. was only a teenager, and they had

“literally nothing” on her.

       {¶11} The first attorney testified that Mr. Muzic’s family contacted him after trial and

began describing the posts C.V. had authored on certain social media sites. He then had his law

clerk look for that information online and “was floored” by the posts he saw. He testified that,

had he known about the posts, he would have cross-examined C.V. himself and subjected her to

his more aggressive style. He noted that, during trial, the State portrayed C.V. as an innocent girl

who seldom drank, abstained from drugs, and was sexually naïve. He testified that, had he

known about her posts, he could have used them to shatter that illusion and undermine her

credibility. He specified that certain posts showed C.V. drank and used marijuana frequently, so

they could have refuted her testimony that (1) she generally practiced sobriety, and (2) Mr.

Muzic forced her to drink alcohol. He stated that other sexually explicit posts could have caused

the jury to question C.V.’s claim that Mr. Muzic forced her to engage in sexual activity. The

first attorney grudgingly acknowledged that the trial court may not have allowed him to

introduce a number of the posts, but nonetheless insisted that his being aware of them would

have led to a different outcome at trial.

       {¶12} Mr. Muzic’s second attorney confirmed that he and the first attorney decided he

would cross-examine C.V. because he had a softer style and they did not want to risk offending

the jury when testing her credibility. He too testified that he had poor computer skills, had little

knowledge of social media, and did not become aware of C.V.’s social media posts in advance of
                                                  6


trial. He testified that, had he known about the posts, he would have prepared differently and

structured his examination accordingly. The second attorney acknowledged that C.V.’s sexually

explicit posts would have been barred by the rape shield statute, but testified that he would have

relied on her other posts to attack her credibility. Specifically, he would have used her posts

about drinking and marijuana to refute her testimony that she seldom drank and abstained from

drugs.

          {¶13} The trial court ultimately rejected Mr. Muzic’s petition for post-conviction relief.

The court found that, even if Mr. Muzic’s attorneys had violated their substantial duties by not

fully investigating C.V., he had failed to establish resulting prejudice. The court found that

C.V.’s posts were of questionable admissibility and that Mr. Muzic’s own attorneys did not even

agree on which ones would have been admissible. The court noted that none of the posts implied

that C.V. had fabricated her testimony or were “clearly probative of untruthfulness.” Further, the

court noted that the jury had heard testimony that Mr. Muzic had repeatedly lied to the police

about the nature of his encounter with C.V. while her version of the events had remained

consistent. Based on its review of the record, the briefs, the testimony, and the evidence, the

court concluded that the timely discovery of the posts would not have changed the result in this

matter.

          {¶14} Upon review, the record supports the trial court’s conclusion that Mr. Muzic

failed to establish prejudice as a result of his attorneys’ failure to discover C.V.’s social media

posts in a timely manner. See Kordeleski, 2003-Ohio-641, at ¶ 37 (prejudice prong of Strickland

can be dispositive). At trial, C.V. testified that Mr. Muzic forcibly dragged her to his bedroom,

digitally penetrated her, made her perform oral sex, and had vaginal intercourse with her against

her will. At the time, C.V. was sixteen years old and had just met Mr. Muzic through her aunt
                                                 7


and uncle.      There was evidence that she immediately reported the rape to the police and

underwent an examination, as a result of which investigators discovered Mr. Muzic’s DNA on

her neck, breast, and underwear. Mr. Muzic, meanwhile, initially denied touching C.V. or

having her in his bedroom. He then admitted that they had kissed, but denied otherwise being

intimate. Finally, he admitted that he had touched C.V.’s vagina with her consent, but denied

that they had engaged in oral sex or intercourse. The jury was presented with “several iterations”

of his version of the events while “C.V. was consistent in what she told her brother, law

enforcement, a nurse practitioner, and the jury about what happened at Mr. Muzic’s house.”

Muzic, 2015-Ohio-1521, at ¶ 16-17.

       {¶15} None of the social media posts that Mr. Muzic’s attorneys discovered dealt with

this specific incident. Rather, they consisted of either angry outbursts or commentary on alcohol

use, drug use, or sex. Many of the posts were of questionable admissibility, particularly if

offered to suggest that C.V. was promiscuous.         See State v. Powell, 9th Dist. Lorain No.

12CA010284, 2017-Ohio-4030, ¶ 17-18 (discussing rape shield statute). Others were simply

evidence that C.V. may have been untruthful about how often she drank alcohol or whether she

used marijuana. None of the posts tended to show that C.V. lied about having been sexually

assaulted. Accordingly, the trial court reasonably could have concluded that Mr. Muzic failed to

demonstrate prejudice as a result of his attorneys’ performance. Mr. Muzic did not show that,

had his attorneys been aware of C.V.’s social media posts, the jury would have chosen to believe

his version of the events over hers. See Strickland, 466 U.S. at 687. As such, this Court must

conclude that the trial court acted within its sound discretion when it denied his petition for post-

conviction relief. See Cleveland, 2009-Ohio-397, at ¶ 11. Mr. Muzic’s sole assignment of error

is overruled.
                                                 8


                                                III.

       {¶16} Mr. Muzic’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



SCHAFER, J.
CALLAHAN, J.
CONCUR.
                                           9


APPEARANCES:

SENECA KONTURAS, Attorney at Law, for Appellant.

PATRICIA J. SMITH, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
