[Cite as State v. Warrington, 2016-Ohio-244.]


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

STATE OF OHIO                                            C.A. No.   14CA0080-M

        Appellee

        v.                                               APPEAL FROM JUDGMENT
                                                         ENTERED IN THE
JOHN WARRINGTON                                          COURT OF COMMON PLEAS
                                                         COUNTY OF MEDINA, OHIO
        Appellant                                        CASE No.   14CR0081

                                 DECISION AND JOURNAL ENTRY

Dated: January 25, 2016



        MOORE, Judge.

        {¶1}     Defendant, John Warrington, appeals from the judgment of the Medina County

Court of Common Pleas. We affirm.

                                                    I.

        {¶2}     In 2014, the Medina County Grand Jury indicted Mr. Warrington on one charge

of domestic violence in violation of R.C. 2919.25(A). The charge arose from an alleged physical

altercation with his adult daughter, who resided with Mr. Warrington and his wife. The case

proceeded to a jury trial, where Mr. Warrington and his wife testified on behalf of the defense,

presenting a theory of self-defense. The jury found Mr. Warrington guilty, and, thereafter the

trial court imposed sentence.            Mr. Warrington timely appealed, and he now raises two

assignments of error for our review.
                                                2


                                               II.

                                ASSIGNMENT OF ERROR I

       [MR.] WARRINGTON’S TRIAL COUNSEL RENDERED INEFFECTIVE
       ASSISTANCE AT TRIAL AND [MR. WARRINGTON] WAS PREJUDICED
       BY HIS COUNSEL’S DEFICIENT PERFORMANCE.

       {¶3}    In his first assignment of error, Mr. Warrington argues that defense counsel was

ineffective.

       {¶4}    This Court must analyze claims of ineffective assistance of counsel under a

standard of objective reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984);

State v. Bradley, 42 Ohio St.3d 136, 142 (1989). Under this standard, a defendant must show (1)

deficiency in the performance of counsel “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by

counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland at 687. A

defendant must demonstrate prejudice by showing that, but for counsel’s errors, there is a

reasonable probability that the outcome of the trial would have been different. Id. at 694. In

applying this test, “a court must indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance[.]” Id. at 689. This Court need not address

both prongs of Strickland where an appellant fails to prove either prong. See State v. Ray, 9th

Dist. Summit No. 22459, 2005-Ohio-4941, ¶ 10.

       {¶5}    Here, Mr. Warrington maintains that defense counsel was deficient for engaging

in “excessive and palpable confrontations with the assistant prosecutor for the State of Ohio”

during which his defense counsel “failed to object to improper questioning of witnesses,

improper questioning tactics, and improper closing arguments.”          Mr. Warrington further
                                                 3


maintains that trial counsel was deficient for failing to file a motion to exclude certain evidence,

such as portions of a police report.

       {¶6}    With respect to Mr. Warrington’s allegation that his counsel was deficient by

engaging in confrontations with the State, during which he generally maintains that his counsel

failed to properly lodge objections, Mr. Warrington does not direct this Court to any portion of

the record where such confrontations occurred. See App.R. 16(A)(7). Nor does he develop any

argument as to the objections he contends defense counsel should have made. See App.R.

16(A)(7). Instead, he provides an “[i]llustrative” point of the State’s purportedly objectionable

questioning of Mr. Warrington by quoting the trial court as stating “Whoa, Whoa, Whoa” during

the State’s cross-examination of Mr. Warrington. He then generally argues, with no further

specificity, that the State (1) repeatedly made statements during cross-examination that were akin

to testimony, (2) failed to permit witnesses to complete their answers, (3) failed to stop

questioning when objections were made, (4) engaged in argumentative comments during

questioning, (5) denigrated defense counsel, (6) inquired of meetings with counsel with an

insinuation that wrongdoing occurred during such meetings, and (6) questioned whether defense

counsel had coached the witnesses.

       {¶7}    However, Mr. Warrington provides no citation to any portion of the record where

the questions he generally challenges occurred, no citation to any authority in support of Mr.

Warrington’s position that these questions and comments were properly objectionable, and no

further development of his argument that the failure to object to these questions/comments

amounted to deficient performance. “If an argument exists that can support this [portion of this]

assignment of error, it is not this [C]ourt’s duty to root it out.” State v. Colburne, 9th Dist.
                                                 4


Summit No. 27553, 2015-Ohio-4348, ¶ 16, quoting Cardone v. Cardone, 9th Dist. Summit No.

18349, 1998 WL 224934, *8 (May 6, 1998).

       {¶8}    Further, Mr. Warrington makes no argument as to whether there is a reasonable

probability that the outcome of the trial would have been different but for counsel’s purported

errors, and we decline to construct a prejudice argument on Mr. Warrington’s behalf. Strickland

at 694; App.R. 16(A)(7).

       {¶9}    With respect to Mr. Warrington’s argument that counsel should have moved to

exclude certain evidence, again, he fails to support this portion of his assignment of error with

citations to the record. See App.R. 16(A)(7).1 Further, he provides no citations to authority in

support of this portion of his assignment of error, except for authority pertaining to hearsay

testimony. He maintains that counsel failed to move to exclude hearsay testimony from a police

report, but he does not identify the report or what portions constituted hearsay. From our review

of the record, the only item to which we could infer that Mr. Warrington is referring, is a

“voluntary witness statement” from Mr. Warrington’s wife. During the cross-examination of

Mrs. Warrington, she testified as to what she had included in her written “voluntary witness

statement[.]” However, although this written statement was included in the record, it was not

admitted as evidence and not submitted to the jury. Mr. Warrington’s sole argument that he was

prejudiced by this “report” was based upon his contention that the trier of fact was able to read




       1
         Further, we note that defense counsel did file two motions to suppress/ in limine;
although the rulings on these motions are not clear from the record. In these motions, defense
counsel moved to exclude evidence of Mr. Warrington’s prior convictions for violations of R.C.
4511.19 and to exclude several portions of the booking video. Although portions of the video
were played at trial, and the video was included for preservation in the record, the video itself
was not admitted as an exhibit for the jury’s consideration.
                                                 5


the officer’s interpretation of Mrs. Warrington’s account of the events. However, inasmuch as

the document was not submitted to the jury, his argument lacks merit.

       {¶10} For the reasons set forth above, Mr. Warrington’s first assignment of error is

overruled.

                                ASSIGNMENT OF ERROR II

       [MR.] WARRINGTON’S TRIAL WAS UNFAIR AND UNJUST DUE TO THE
       OVERLY AGGRESSIVE QUESTIONING OF THE STATE OF OHIO,
       UNFAIR COMMENTARY AND ARGUING DURING QUESTIONING, AND
       UNFAIR AND PREJUDICIAL COMMENTS DURING CLOSING
       ARGUMENTS, SUCH THAT EVEN WITHOUT OBJECTION FROM TRIAL
       COUNSEL, PLAIN ERROR REQUIRES REVERSAL.

       {¶11} In his second assignment of error, Mr. Warrington argues that he received an

unfair trial because the State engaged in prosecutorial misconduct by making improper

statements during closing argument, which amounted to plain error. Mr. Warrington further

maintains in his statement of the second assignment of error that he received an unfair trial due

to improper questioning by the State. However, his argument in support of this assignment of

error nowhere references questioning by the State. Accordingly, we will confine our discussion

to the prosecutor’s closing argument.

       {¶12} “[T]he test regarding prosecutorial misconduct in closing arguments is whether

the remarks were improper and, if so, whether they prejudicially affected substantial rights of the

defendant.” State v. Frazier, 73 Ohio St.3d 323, 341 (1995), quoting State v. Smith, 14 Ohio

St.3d 13, 14 (1984). “Parties are granted latitude in closing arguments, and the question as to the

propriety of these arguments is generally considered one falling within the sound discretion of

the trial court.” Frazier at 341, quoting State v. Loza, 71 Ohio St.3d 61, 78 (1994).

       {¶13} However, when a defendant fails to object to alleged prosecutorial misconduct,

the defendant forfeits all argument except that of plain error. See State v. Reed, 9th Dist. Wayne
                                                 6


No. 12CA0051, 2013-Ohio-3970, ¶ 57, quoting State v. Chapman, 9th Dist. Lorain No.

07CA009161, 2008-Ohio-1452, ¶ 23. Pursuant to Crim.R. 52(B), “[p]lain errors or defects

affecting substantial rights may be noticed although they were not brought to the attention of the

court.” “[T]he accused bears the burden of proof to demonstrate plain error on the record * * *

and must show an error, i.e., a deviation from a legal rule that constitutes an obvious defect in the

trial proceedings[.]” State v. Jackson, 9th Dist. Summit No. 27479, 2015-Ohio-5096, ¶ 51,

quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 22. “However, even if the error

is obvious, it must have affected substantial rights, and [w]e have interpreted this aspect of the

rule to mean that the trial court’s error must have affected the outcome of the trial.” Jackson at ¶

51, quoting Rogers at ¶ 22. “The accused is therefore required to demonstrate a reasonable

probability that the error resulted in prejudice * * *.” Jackson at ¶ 51, quoting Rogers at ¶ 22.

       {¶14} Mr. Warrington again fails to cite to any portion of the record where the improper

statements were made in closing argument. Instead, he generally maintains that the prosecutor’s

closing argument improperly challenged the credibility of defense counsel and counsel’s theories

of the case. Further, he maintains that the prosecutor referenced evidence not in the record

regarding telephone systems. Lastly, Mr. Warrington challenges the State’s reference to him

during closing arguments as “a drunk[.]”

       {¶15} As there are no citations to the record, we are not inclined to speculate as to which

of the prosecutor’s statements Mr. Warrington challenges as improperly referencing defense

counsel’s credibility and motivation, nor are we inclined to construct an argument on his behalf

as to whether any such comments rose to the level of prosecutorial misconduct and plain error.

See App.R. 16(A)(7).
                                                7


       {¶16} With respect to the prosecutor’s remarks in closing argument regarding telephone

systems, our review of the record indicates that there was some testimony adduced by the

defense at trial pertaining to the Warringtons’ telephone’s sound quality and connectivity issues.

This testimony was elicited in the context of the victim’s 9-1-1 telephone call, which was

disconnected, and a return call made from the 9-1-1 dispatcher. Although Mr. Warrington

generally maintains that the prosecutor’s remarks during closing exceeded the testimony on this

issue, he does not further develop this argument or indicate how these closing remarks would

have risen to the level of plain error. See Jackson at ¶ 51, quoting Rogers at ¶ 22 (accused bears

the burden of demonstrating an obvious error and demonstrating that there is a reasonable

probability that the error affected the outcome of the trial). We decline to construct an argument

on his behalf.

       {¶17} To the extent that Mr. Warrington challenges the State’s reference to him as “a

drunk[,]” although he again fails to provide a citation to the record where such a statement may

be found, we note instances during closing argument where the State referenced Mr. Warrington

as having been “drunk” during the incident, but we see no reference to him as “a drunk.”

Accordingly, this portion of Mr. Warrington’s assignment of error lacks merit.

       {¶18} For the reasons referenced above, Mr. Warrington’s second assignment of error is

overruled.

                                               III.

       {¶19} Mr. Warrington’s assignments of error are overruled. The judgment of the trial

court is affirmed.

                                                                              Judgment affirmed.
                                                 8


       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 Medina, 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.




                                                     CARLA MOORE
                                                     FOR THE COURT



WHITMORE, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

MICHAEL J. CALLOW, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
