[Cite as State v. Smith , 2011-Ohio-664.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                                ROSS COUNTY

STATE OF OHIO,                  :
                                :
     Plaintiff-Appellee,        : Case No. 09CA3128
                                :
     vs.                        : Released: February 8, 2011
                                :
JOHN F. SMITH,                  : DECISION AND JUDGMENT
                                : ENTRY
     Defendant-Appellant.       :
_____________________________________________________________
                          APPEARANCES:

Robert F. Benintendi, Batavia, Ohio, for Defendant-Appellant.

Michael M. Ater, Ross County Prosecuting Attorney, and Richard W. Clagg,
Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Plaintiff-
Appellee.
_____________________________________________________________

McFarland, J.:

        {¶1}       John F. Smith, Defendant-Appellant, appeals the decision of

the Ross County Court of Common Pleas, denying his petition for post-

conviction relief based on ineffective assistance of counsel. Smith argues

the court erred in finding that his petition was barred by res judicata and in

finding that he failed to establish adequate grounds for his petition.

However, the evidence Smith relied on in his postconviction petition was in

the trial court record and available during his direct appeal. Further,

ineffective assistance is not demonstrated merely because a postconviction
Ross App. No. 09CA3128                                                         2


petition presents new expert opinion that is different from a theory used at

trial. As such, we find the trial court properly determined that Smith's

postconviction petition was barred by the doctrine of res judicata.

                                   I. Facts
      {¶2}    John Smith was indicted on one count of felonious assault and

one count of involuntary manslaughter for causing the death of Bryan Biser.

During an argument among several people, Smith, without provocation,

punched Biser in the head. After Smith struck him, Biser immediately fell,

his face hitting a parked car and his head hitting the pavement below. Biser

was knocked unconscious as a result.

      {¶3}    Biser was transported to the hospital where he informed

medical personnel that he suffered from diabetes. He refused emergency

room treatment for his head injuries and diabetes, though he had a highly

elevated blood-glucose level. Biser stated that he had insulin at home and

did not want to purchase more at the hospital. He also refused to have a

CAT scan, as recommended by the emergency room doctor. The doctor

discharged Biser, but ordered him to return immediately if he experienced

any vomiting, confusion or vision problems.

      {¶4}    For the next several days, friends who stopped at Biser’s

residence found him to be confused, complaining of pain, and wishing to be
Ross App. No. 09CA3128                                                            3


left alone. Four days after Smith struck him, Biser was found lying

unconscious on the floor of his residence. His feet and left arm had turned

black and he was struggling to breathe.

      {¶5}     At the emergency room, a CAT scan of Biser’s head revealed

a possible skull fracture, a small subdural hematoma, and subarachnoid

hemorrhage. Biser was also in severe diabetic ketoacidosis, a condition

resulting from failure to take insulin. Exploratory surgery revealed necrotic

bowel and colon tissue, which was terminal. Biser died several hours after

surgery. After an autopsy, the cause of death was ruled to be homicide due

to blunt force craniocerebral injuries.

      {¶6}     Smith was indicted for felonious assault and involuntary

manslaughter and the matter proceeded to trial. Dr. William Cox, a forensic

neuropathologist for the county coroner, testified that the cause of death

listed on the death certificate was incorrect. Instead, Cox stated that Biser’s

death was a result of diabetic ketoacidosis. He testified that Smith’s punch

to Biser’s head and Biser’s head striking the ground caused Biser to suffer

contusions to his brain that damaged his frontal lobes. Cox testified that the

damage to Biser’s frontal lobes affected his cognitive ability and made him

apathetic, uninhibited and disinterested. He further testified that Biser’s

head injury substantially contributed to his death, and the damage to his
Ross App. No. 09CA3128                                                            4


frontal lobes “clearly would have adversely affected [Biser’s] ability to look

after himself.”

      {¶7}     The jury found Smith guilty of both felonious assault and

involuntary manslaughter. The trial court merged the two counts and

sentenced Smith to eight years in prison. Smith filed a direct appeal and we

affirmed his conviction and sentence in State v. Smith, 4th Dist. No.

06CA2893, 2007-Ohio-1884. Smith then appealed our decision in the

Supreme Court of Ohio, which the Court dismissed.

      {¶8}     While his direct appeal was pending, Smith petitioned the trial

court for post-conviction relief under R.C. 2953.21. The basis of the petition

was ineffective assistance of counsel during trial. The trial court granted his

request for an evidentiary hearing on the issue. After additional motions and

appeals concerning the motion, an evidentiary hearing was finally held on

April 9, 2009. After the hearing, the trial court issued its decision denying

Smith’s motion for post-conviction relief. In its entry, the trial court stated

that Smith’s claim of ineffective assistance of counsel was barred by res

judicata. That decision is the basis of Smith’s current appeal.
Ross App. No. 09CA3128                                                          5


                           II. Assignments of Error

First Assignment of Error
      THE TRIAL COURT ERRED IN FINDING THAT APPELLANT’S
      PETITION FOR POST-CONVICTION RELIEF WAS BARRED BY
      RES JUDICATA.

Second Assignment of Error

      THE TRIAL COURT ERRED IN FINDING THAT APPELLANT
      HAD NOT DEMONSTRATED GROUNDS FOR POST-
      CONVICTION RELIEF.
                         III. First Assignment of Error

      {¶9}    In his first assignment of error, Smith argues that the trial

court incorrectly determined that his petition for postconviction relief was

barred by the doctrine of res judicata. In his petition, Smith argues that he

was denied effective assistance of counsel during trial. In denying the

petition, the trial court reasoned that Smith could have brought a claim of

ineffective assistance during his direct appeal and, thus, he was precluded

from raising the issue in postconviction proceedings.

      {¶10} “Under the doctrine of res judicata, a final judgment of

conviction bars a convicted defendant who was represented by counsel from

raising and litigating in any proceeding except an appeal from that judgment,

any defense or any claimed lack of due process that was raised or could have

been raised by the defendant at the trial, which resulted in that judgment of

conviction, or on an appeal from that judgment.” State v. Perry (1967), 10
Ross App. No. 09CA3128                                                          6


Ohio St.2d 175, 226 N.E.2d 104, paragraph 9 of the syllabus. Additionally,

res judicata applies to proceedings involving postconviction relief. State v.

Szefcyk (1996), 77 Ohio St.3d 93, 95. But the application of res judicata in

postconviction proceedings is not absolute.

      {¶11} The doctrine of res judicata may be overcome in a

postconviction proceeding if the petitioner presents competent, relevant, and

material evidence outside the record. See, eg., State v. Lawson (1995), 103

Ohio App.3d 307, 315, citing State v. Smith (1985), 17 Ohio St.3d 98, 101,

477 N.E.2d 1128, fn. 1. “However, the evidence presented outside the

record must meet some threshold standard of cogency; otherwise, it would

be too easy to defeat the res judicata doctrine by simply attaching as exhibits

evidence which is only marginally significant and does not advance the

petitioner's claim beyond mere hypothesis and a desire for further

discovery.” In re J.B., 12th Dist. Nos. CA2005-06-176, CA2005-07-193,

CA2005-08-377, 2006-Ohio-2715, at ¶16. “Moreover, claims that could

have been raised based on evidence in the record are also barred by res

judicata even though the petitioner may have presented some additional

evidence outside the record.” State v. Turner, 10th Dist. No. 04AP-1143,

2006-Ohio-761, citing State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d
Ross App. No. 09CA3128                                                            7


169, at the syllabus, and State v. Combs (1994), 100 Ohio App.3d 90, 97,

652 N.E.2d 205.

      {¶12} As previously stated, Smith bases his petition for post-

conviction relief on a claim of ineffective assistance of counsel during trial.

Smith argues that his trial counsel’s representation was deficient because

counsel failed to present expert testimony concerning the proximate cause of

Biser’s death. During the postconviction evidentiary hearing, Smith

presented the testimony of Dr. Christofides, an endocrinologist, on that

issue. Smith’s post-conviction petition relies almost entirely upon Dr.

Christofides’ testimony during the post-conviction evidentiary hearing of

April 9, 2009.

      {¶13} During Smith’s trial, Dr. William Cox testified that Biser’s

death ultimately was a result of diabetic ketoacidosis. But he also stated that

Biser’s death was causally related to Smith's assault. Cox stated that the

assault caused injury to the frontal lobes of Biser’s brain which affected his

cognitive ability and made him apathetic and disinterested. As a result,

Biser failed to take insulin for his diabetes and he went into diabetic

ketoacidosis. During the post-conviction evidentiary hearing, Dr.

Christofides presented an alternate theory regarding the cause of Bryan

Biser’s death. Dr. Christofides testified that, in her opinion, the head injury
Ross App. No. 09CA3128                                                          8


resulting from Smith's assault did not result in Biser’s death. Instead, it was

Dr. Christofides opinion that Biser’s death was simply the result of his long-

standing mismanagement of his diabetes.

      {¶14} During cross-examination, the State question Dr. Christofides

as to the source of the evidence she used in formulating her theory:

      {¶15} Q.: “You talked about the type one diabetes which obviously

that was something everybody was aware of at the time of trial, correct?”

      {¶16} A.: “Correct.”

      {¶17} Q.: “So, that wasn't new information to defense counsel at

the time of trial, correct?”

      {¶18} A.: “I don't think so."

      {¶19} * * *

      {¶20} Q.: “And all the information that we've been talking about as

far as the overdoses and things of that nature, that was all available at the

time of the trial, correct?”

      {¶21} A.: “As far as I can see.”

      {¶22} Q.: “It was all stuff that's in 2005 records, correct?”

      {¶23} A.: “As far as I can see.”

      {¶24} Q.: “Okay. Now, you say you observed Dr. Cox's testimony.

You went through the records on Dr. Cox's testimony, correct. Did you note
Ross App. No. 09CA3128                                                          9


that defense counsel addressed the issues of increased blood glucose levels

during Dr. Cox's testimony?”

      {¶25} A.: “Yes.”

      {¶26} Q.: “And the affidavit that you prepared in and the

conclusions that you reached and the, when this petition was initially filed,

this is based, that was all originally based on information that was provided

to you that was available at trial, is that correct?”

      {¶27} A.: “Correct.”

      {¶28} Dr. Christofides’ testimony clearly shows that her theory as to

the proximate cause of Biser’s death was based on evidence which was

available at the time of Smith's trial. As such, a claim of ineffective

assistance of counsel based on that evidence should have been raised in

Smith's direct appeal. More importantly, as shown below, Ohio courts have

held that the presentation of alternate theories by expert witnesses in

postconviction proceedings will not defeat the application of res judicata.

      {¶29} “A postconviction petition does not show ineffective

assistance merely because it presents a new expert opinion that is different

from the theory used at trial.” Combs at 103. “[T]o the extent that appellant

may now wish to expand upon the point, it is settled that a postconviction

petition does not demonstrate ineffective assistance of counsel even when it
Ross App. No. 09CA3128                                                          10


presents a new expert opinion that is different from the theory used at trial.”

State v. Cornwell, 7th Dist. No. 00-CA-217, 2002-Ohio-5177, at ¶46. See,

also, State v. Roseborough, 5th Dist. Nos. 09 COA 003, 09 COA 004, 2010-

Ohio-1832, at ¶17; State v. Tenace, 6th Dist. No. L-05-1041, 2006-Ohio-

1226, at ¶26; State v. Turner, 10th Dist. No. 04AP-1143, 2006-Ohio-761, at

¶35; State v. White (Aug. 7, 1998), 5th Dist. No. 97COA01229, at *9.

      {¶30} In State v. Tenace, the petitioner for post-conviction relief

argued that he had been given ineffective assistance of counsel during trial.

In his petition, he included the affidavit of an expert witness who stated that

the appellant suffered from low serotonin levels. The petitioner argued that

his trial counsel rendered ineffective assistance because he failed to

investigate and present evidence linking the appellant's low levels of

serotonin and his violent behavior. In finding that the petitioner had failed

to present evidence to substantiate his postconviction petition, the court

stated “this affidavit only proves that there was another possible defense

strategy available. The mere existence of an alternative theory of defense,

however, is insufficient to establish ineffective assistance of counsel.”

Tenace at ¶26.

      {¶31} The ruling in Tenance is analogous to the case sub judice.

Here, Dr. Christofides is simply presenting another theory as to the
Ross App. No. 09CA3128                                                         11


proximate cause of Bisler’s death. Ohio case law clearly shows that

alternate or supplementary theories from expert witnesses, which are

presented in postconviction proceedings, are not sufficient to establish

ineffective assistance of counsel and overcome the application of res

judicata. Accordingly, we overrule Smith's first assignment of error.

      {¶32} The record clearly shows that the evidence Dr. Christofides

relied on was available at the time of trial. Because such information was in

the trial record, Smith could have and should have raised issues relating to

that evidence at the time of his direct appeal. Additionally, alternate theories

presented by an expert witness during postconviction proceedings do not

show that the petitioner had ineffective assistance of counsel. As such, we

find that Smith's postconviction petition is barred by the doctrine of res

judicata. As Smiths’ petition is barred by res judicata, his second

assignment of error is rendered moot.

                                                 JUDGMENT AFFIRMED.
Ross App. No. 09CA3128                                                        12


                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and that the
Appellee recover of 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 Ross County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.

Kline, J.: Concurs in Judgment Only.
Harsha, P.J.: Dissents.
                                        For the Court,

                                        BY: _________________________
                                            Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
