[Cite as State v. Walker, 2014-Ohio-1287.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 STATE OF OHIO                                   :
                                                 :     Appellate Case No. 25741
          Plaintiff-Appellee                     :
                                                 :     Trial Court Case No. 12-CR-2584
 v.                                              :
                                                 :
 TOBBY T. WALKER                                 :     (Criminal Appeal from
                                                 :     (Common Pleas Court)
          Defendant-Appellant                    :
                                                 :
                                             ...........

                                             OPINION

                              Rendered on the 28th day of March, 2014.

                                             ...........

MATHIAS H. HECK, JR., by MATTHEW T. CRAWFORD, Atty. Reg. #0070162, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. #0076791, 75 North Pioneer Boulevard, Springboro,
Ohio 45066
       Attorney for Defendant-Appellant

                                             .............

HALL, J.,

        {¶ 1}     Tobby T. Walker appeals from his conviction and sentence on one count of

felonious assault (serious physical harm).
[Cite as State v. Walker, 2014-Ohio-1287.]
        {¶ 2}     Walker advances three assignments of error. First, he alleges ineffective

assistance of counsel based on his attorney’s failure to request an inferior-degree-offense

instruction at trial. Second, he contends his conviction is against the manifest weight of the

evidence. Third, he claims the trial court erred in imposing a statutory maximum sentence.

        {¶ 3}     The record reflects that Walker was charged with two counts of felonious assault,

one count of evidence tampering, and one count of disrupting public services. The charges

stemmed from his alleged physical assault on his girlfriend, Jennifer Dixon, his disposal of a

blood-spattered shirt, and his act of cutting her telephone cords before fleeing her apartment. At

trial, the State presented evidence that Walker choked Dixon and struck her in the face multiple

times with his fist and a roller skate. As a result, Dixon suffered a broken nose, her mouth was

wired shut, and her left eye swelled shut. She was hospitalized for weeks and had to use a

breathing tube. After being released, she required months of in-home care. For his part, Walker

testified at trial and claimed that he struck Dixon in self defense when she attacked him with

scissors.

        {¶ 4}     After hearing the evidence, a jury found Walker guilty of felonious assault

(serious physical harm). It found him not guilty of felonious assault (deadly weapon). It also

found him not guilty of evidence tampering or disrupting public services. The trial court imposed

a statutory maximum eight-year prison sentence for the second-degree-felony conviction. This

appeal followed.

        {¶ 5}     In his first assignment of error, Walker alleges ineffective assistance of counsel

based on his attorney’s failure to request a jury instruction on aggravated assault as an

inferior-degree-offense of felonious assault.

        {¶ 6}     The distinction between felonious assault and aggravated assault involves the
                                                                                                     3


mitigating element of serious provocation. Unlike felonious assault, aggravated assault requires

that a person knowingly cause serious physical harm to another “while under the influence of

sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation

occasioned by the victim that is reasonably sufficient to incite the person into using deadly

force[.]” R.C. 2903.12(A). Walker argues that the evidence at trial reasonably supported a finding

that he was arguing with Dixon, that she attacked him with scissors, and that her attack

constituted serious provocation that produced in him a sudden passion or fit of rage. Therefore,

he asserts that an aggravated-assault instruction was warranted and that counsel’s failure to

request one could not have been a matter of trial strategy.

       {¶ 7}    Upon review, we find Walker’s argument to be unpersuasive. At trial, he testified

that he acted out of fear. (Trial Tr. at 408). According to Walker, he was “calm” and “trying to

calm [Dixon] down” when she attacked him. (Id. at 406). Walker testified that the attack made

him fear for his life. (Id. at 407). As a result, he struck Dixon three times to disarm her. (Id. at

407-408). After separating her from the scissors, he tried to “console” her. (Id. at 408). He then

left to take a walk and was not angry. (Id. at 416). There was no testimony that he acted out of

sudden passion or a fit of rage. In fact, Walker insisted that he “was never angry.” (Id. at 417). On

this record, we would not fault the trial court for refusing to give an inferior-degree instruction on

aggravated assault.

       {¶ 8}    Moreover, in light of Walker’s testimony, defense counsel reasonably could have

decided not to pursue an aggravated-assault instruction. Walker’s testimony was consistent with

his self-defense argument but inconsistent with a claim that he acted in a sudden passion or fit of

rage. Defense counsel also reasonably could have determined that claiming sudden passion or a
                                                                                                  4


fit of rage conflicted with, and weakened, the self-defense claim. See State v. Crawford, 2d Dist.

Montgomery No. 22314, 2008-Ohio-4008, ¶ 27 (“Crawford’s counsel could have reasonably

decided not to request an aggravated assault instruction under the evidence presented with the

hope of attaining a complete acquittal for the two counts of felonious assault. It may have been

counsel’s belief that the inferior-degree offense conflicted with the theory of self-defense or may

confuse the jury.”).

       {¶ 9}    “The test for a claim of ineffective assistance of counsel is not whether counsel

pursued every possible defense; the test is whether the defense chosen was objectively

reasonable. * * * A reviewing court may not second-guess decisions of counsel which can be

considered matters of trial strategy.” (Citations omitted) Id. at ¶ 29. Here Walker’s testimony did

not fit the elements of aggravated assault, and defense counsel reasonably may have elected not

to request the inferior-degree-offense instruction as a matter of trial strategy. We see no

ineffective assistance. The first assignment of error is overruled.

       {¶ 10} In his second assignment of error, Walker contends his conviction for felonious

assault (serious physical harm) is against the weight of the evidence. According to Walker, the

evidence supports his claim that Dixon was the aggressor and that he simply defended himself

from her scissor attack. He also contends his conviction is inconsistent with the jury’s not-guilty

verdict on charges of felonious assault (deadly weapon), evidence tampering, and disrupting

public services. He argues:

               * * * It is clear from the jury’s verdict that they did not believe Ms.

       Dixon’s granddaughter’s account that she saw the Defendant hitting Ms. Dixon

       with the roller skates, nor did the jury believe her son’s claim that all the phone
                                                                                                   5


       cords in the home had been cut even though the uncontroverted evidence at trial

       was that a 911 call was made from a landline inside the home after the Defendant

       had left. The evidence, on the other hand, clearly supports the Defendant’s

       contention that it was Ms. Dixon who came at him with a pair of scissors and that

       he was simply defending himself from her attack. The jury’s guilty verdict on the

       felonious assault (serious physical harm) is not consistent with its not guilty

       verdicts on all other charges and is against the manifest weight of the evidence

       that clearly demonstrates that the Defendant was simply trying to defend himself

       from Ms. Dixon’s provocation when he struck her. Therefore, a manifest

       miscarriage of justice has occurred such that the conviction herein must be

       reversed.

(Appellant’s brief at 10).

       {¶ 11} When a conviction is challenged on appeal as being against the weight of the

evidence, an appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider witness credibility, and determine whether, in resolving conflicts in the

evidence, the trier of fact “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. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997). A judgment should be reversed as being against the manifest

weight of the evidence “only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

       {¶ 12} With the foregoing standards in mind, we conclude that Walker’s conviction is
                                                                                                    6


not against the weight of the evidence. Dixon testified that she and Walker got involved in an

argument in her apartment. (Trial Tr. at 302). At one point, Walker began choking her in the

kitchen for about fifteen minutes. (Id. at 303). The fight continued when Walker dragged her to

an upstairs bedroom, where he continued choking her and began hitting her. (Id. at 305, 321).

Dixon was able to remember receiving at least four blows to her face. (Id. at 305). She could not

say what Walker used other than his fist to strike her because she was “out.” (Id.). She did recall,

however, being hit by something hard that she believed was a roller skate. (Id. at 334). Dixon’s

granddaughter testified that she was present and saw Walker hit Dixon with the roller skate. (Id.

at 208-209). Dixon denied having any weapon herself and denied attacking Walker. (Id. at

304-305, 326). Eventually, she made her way to the bathroom, where she threw up blood, her

nose started bleeding, and she felt blood running down her head. (Id. at 306). Dixon testified that

Walker left, and paramedics took her to the hospital. (Id. at 306-308). She was hospitalized for

weeks. She required surgery on her broken nose, and her mouth was wired shut, forcing her to eat

through a straw. (Id. at 310). She also used a breathing tube for about two weeks and had a metal

plate placed in her eye. (Id. at 311). She required in-home care for months after her release from

the hospital. (Id. at 314).

        {¶ 13} Having reviewed the record, we find no merit in Walker’s manifest-weight

challenge. It is well settled that evaluating witness credibility is primarily for the trier of fact.

State v. Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7. A trier of fact does not

lose its way and create a manifest miscarriage of justice if its resolution of conflicting testimony

is reasonable. Id. Here the jury quite reasonably could have credited Dixon’s testimony that

Walker beat her so severely that he caused serious physical harm. Indeed, her version of events
                                                                                                     7


seems to us much more believable than Walker’s claim that she attacked him with scissors and

that he reacted in self defense to disarm her. In any event, the jury did not lose its way and create

a manifest miscarriage of justice in reaching the guilty verdict it did.

       {¶ 14} Walker’s argument about inconsistency in the verdicts fails to persuade us

otherwise. With regard to his acquittal on the felonious assault (deadly weapon) charge, the jury

may have concluded that a roller skate is not a deadly weapon. Or it may have disbelieved the

testimony that Walker struck Dixon with a roller skate. Regardless, the jury remained free to

believe Dixon’s testimony that Walker repeatedly hit her in the head with his fist and caused the

injuries she sustained. As this court has recognized, a trier of fact is free to believe all, part, or

none of the testimony of each witness. Benton at ¶ 7. Walker’s acquittal on charges of evidence

tampering and disrupting public services also does not establish that his felonious-assault

conviction is against the weight of the evidence. Even if the jury was unpersuaded beyond a

reasonable doubt that Walker discarded a blood-spattered shirt to impede an investigation or that

he cut Dixon’s telephone lines, such findings are not inconsistent with a verdict that he

knowingly caused her serious physical harm by beating her. Accordingly, the second assignment

of error is overruled.

       {¶ 15} In his third assignment of error, Walker claims the trial court erred in imposing a

statutory maximum eight-year prison sentence. His entire argument is as follows:

               In the case at bar, while it appears that the sentence imposed upon [sic] is

       not contrary to law, it is plain and clear that the trial court abused its discretion

       when it sentenced the Defendant to the maximum eight year prison term for a

       felony of the second degree. The trial court offered no justification for such a
                                                                                                   8


       sentence other than that it considered the relevant statutory factors the court is

       required to consider. The fact is that the trial court could have followed the

       purposes and principles of sentencing with a shorter prison term. Therefore, the

       trial court erred in sentencing the Defendant as it did and this matter should be

       reversed and remanded accordingly.

(Appellant’s brief at 11).

       {¶ 16} Upon review, we see no error in the trial court’s sentencing decision. As a

threshold matter, we note that Walker raises his argument under State v. Kalish, 120 Ohio St.3d

23, 2008-Ohio-4912, 896 N.E.2d 124. Pursuant to Kalish, a felony sentence is reviewed using a

two-step process. The first step involves determining whether the sentence is contrary to law, i.e.,

whether the trial court complied with all applicable rules and statutes. The second step involves

determining whether the trial court abused its discretion. Here Walker raises his argument under

the second step of Kalish, asserting that the trial court abused its discretion in imposing an

eight-year sentence.

       {¶ 17} After Walker filed his appellate brief, State v. Rodeffer, 2d Dist. Montgomery

Nos. 25574, 25575 and 25576, 2013-Ohio-5759, was decided. In Rodeffer, a panel of this court

(with one dissent) held that Kalish’s two-step approach should no longer apply to appellate

review of felony sentences. Instead, Rodeffer applied the standard of review found in R.C.

2953.08(G)(2). Id. at ¶ 29. Under this statute, an appellate court may increase, reduce, or modify

a sentence; or it may vacate the sentence and remand for resentencing. It may take these actions,

however, only if it “clearly and convincingly” finds either (1) that the record does not support

certain specified findings or (2) that the sentence imposed is contrary to law. The Rodeffer
                                                                                                   9


majority stated “[f]urthermore, ‘[a]lthough Kalish no longer provides the framework for

reviewing felony sentences, it does provide * * * adequate guidance for determining whether a

sentence is clearly and convincingly contrary to law.’ * * * According to Kalish, a sentence is not

contrary to law when the trial court imposes a sentence within the statutory range, after expressly

stating that it had considered the purposes and principles of sentencing set forth in R.C. 2929.11,

as well as the factors in R.C. 2929.12.” (Citations omitted) Id. at ¶ 32.

       {¶ 18} We recognize that Walker briefed his appeal under Kalish without the benefit of

the opinion in Rodeffer. Under Kalish, the second step in the analysis is whether the sentence is

an abuse of discretion. Here, the PSI report, which the trial court considered, reflects that Walker

has an extensive criminal history as an adult.         He appears to have had at least eighteen

misdemeanor convictions between 1988 and 2009. They involved offenses including attempted

drug abuse, disorderly conduct (multiple offenses), drug abuse, having weapons while

intoxicated, OVI, domestic violence (multiple offenses), public intoxication, criminal trespass,

unauthorized operation of property, assault (multiple offenses), soliciting, and an open-container

violation. In addition to the instant offense, Walker has prior adult felony convictions for

possession of cocaine and trafficking in marijuana. On the possession charge, he received

community control but had it revoked. He also had community control revoked in at least two of

his misdemeanor cases. The record further reflects that he served prison time in both of his prior

felony cases.

       {¶ 19} Upon review, applying either Rodeffer or Kalish, we find no basis for altering

Walker’s sentence or for remanding for resentencing. Walker does not claim any of the findings

specified in R.C. 2953.08(G)(2) were required here or are unsupported by the record. His
                                                                                               10


sentence also is not contrary to law. His eight-year sentence is within the statutory range for a

second-degree felony, and the trial court considered the principles and purposes of sentencing as

well as the seriousness and recidivism factors. (Trial Tr. at 501). Moreover, in light of the

extreme physical harm Walker inflicted on Dixon and his extensive criminal history, we cannot

say the trial court abused its discretion in imposing a statutory maximum sentence. Accordingly,

the third assignment of error is overruled.

       {¶ 20} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                          .............



FROELICH, P.J., and FAIN, J., concur.


Copies mailed to:

Mathias H. Heck
Matthew T. Crawford
Marshall G. Lachman
Hon. Michael W. Krumholtz
