[Cite as State v. Antill, 2013-Ohio-2265.]
                             STATE OF OHIO, BELMONT COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT

STATE OF OHIO,                                    )
                                                  )
        PLAINTIFF-APPELLEE,                       )
                                                  )              CASE NO. 12 BE 3
V.                                                )
                                                  )                  OPINION
JOSEPH M. ANTILL,                                 )
                                                  )
        DEFENDANT-APPELLANT.                      )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Court of Common
                                                  Pleas of Belmont County, Ohio
                                                  Case No. 09CR221

JUDGMENT:                                         Reversed and Remanded

APPEARANCES:
For Plaintiff-Appellee                            Christopher Berhalter
                                                  Prosecutor
                                                  Scott A. Lloyd
                                                  Assistant Prosecuting Attorney
                                                  147-A West Main Street
                                                  St. Clairsville, Ohio 43950

For Defendant-Appellant                           E. Kelly Mihocik
                                                  Assistant State Public Defender
                                                  250 East Broad Street – Suite 1400
                                                  Columbus, Ohio 43215




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                  Dated: May 30, 2013
[Cite as State v. Antill, 2013-Ohio-2265.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Joseph Antill, appeals from a Belmont County
Common Pleas Court judgment convicting him of assault of a peace officer and
aggravated robbery following a jury trial.
        {¶2}     On October 15, 2009, appellant went to a bar located in the Riverside
Restaurant where Phyllis Holt was bartending. According to Holt, she was tending
bar that evening when appellant began yelling at another patron in the bar. When
appellant did not listen to her instruction to lower his voice, Holt asked him to leave,
which he did. However, appellant was in and out of the bar after that. Holt called
911 but was told there was no officer on duty at the time.
        {¶3}     Eventually Powhatan Police Officer Keven Yates arrived at Riverside.
He found appellant outside and spoke with him. Officer Yates also spoke with those
inside the bar. Office Yates suggested to appellant that he go home and “sleep it
off.” Appellant, who lived nearby, went home.
        {¶4}     A few hours later, appellant called Riverside.   According to Patricia
Geilinger, the employee who answered the phone, appellant stated it was not right
that he was barred from the bar and stated “You tell them in the back I’ll get them.”
Geilinger interpreted appellant’s statement as a threat. She hung up and called the
Powhatan Police Department to report the threatening call.
        {¶5}     Sometime after midnight, Officer Yates, who was now accompanied by
Shadyside Police Officer Joshua Haught, responded to the call by going to
appellant’s house. Appellant’s father answered the door and let the officers inside.
According to the officers, Officer Yates told appellant to stop calling Riverside and
threatening them. Appellant became upset and began cursing at the officers. Twice
more Officer Yates asked appellant to stop calling Riverside and appellant, who
appeared to be intoxicated, continued to yell at the officers. According to the officers,
appellant then got off of the couch he had been sitting on and went toward Officer
Yates aggressively and enraged. Appellant shouted at Officer Yates and pushed
him. Officer Haught then stepped in to help Officer Yates.
        {¶6}     The two officers struggled back and forth with appellant trying to
                                                                                -2-


handcuff him. Apparently, appellant is a much larger man than the officers. When
they were not able to gain control of appellant, Officer Yates used his Taser to try to
subdue appellant. Officer Yates stated that he “tased” appellant twice but this only
further enraged appellant.
       {¶7}   According to the officers, they managed to get appellant on his knees
with his upper body on the couch. But the lower half of Officer Haught’s body was
under appellant’s chest and Officer Yates was on top of appellant’s back. While they
were in this position, Officer Yates saw appellant grab for Officer Haught’s loaded
gun. Officer Yates yelled to Officer Haught, “He’s got your gun. He’s going for your
gun.” The officers then managed to subdue appellant and place him in handcuffs.
       {¶8}   A Belmont County Grand Jury indicted appellant on one count of
assault on a peace officer, a fourth-degree felony in violation of R.C.
2903.13(A)(C)(3).    Several months later it also indicted him on one count of
aggravated robbery, a first-degree felony in violation of R.C. 2911.01(B), for trying to
take Officer’s Haught’s gun.
       {¶9}   The matter proceeded to a jury trial where the jury found appellant
guilty of both charges. The trial court subsequently sentenced appellant to one year
in prison on the assault count and three years in prison on the aggravated robbery
count, to be served consecutively for a total of four years.
       {¶10} On appellant’s motion, this court granted him leave to file a delayed
appeal. He filed his notice of appeal on January 17, 2012.
       {¶11} Appellant raises six assignments of error, the first of which states:

              MR. ANTILL’S CONVICTION FOR AGGRAVATED ROBBERY
       IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶12} Appellant argues that his aggravated robbery conviction was against
the manifest weight of the evidence. In support, appellant points to Officer Haught’s
testimony that he never felt or thought appellant was pulling on his gun and to his
own testimony that he never reached for Officer Haught’s gun.
                                                                                 -3-


       {¶13} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine whether, in resolving conflicts in the
evidence, the jury 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 668 (1997). “Weight of the evidence
concerns ‘the inclination of the greater amount of credible evidence, offered in a trial,
to support one side of the issue rather than the other.’” Id. (Emphasis sic.) In making
its determination, a reviewing court is not required to view the evidence in a light
most favorable to the prosecution but may consider and weigh all of the evidence
produced at trial. Id. at 390.
       {¶14} Yet granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses' credibility by observing their gestures, voice inflections, and demeanor.
State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75
Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exist two
fairly reasonable views of the evidence or two conflicting versions of events, neither
of which is unbelievable, it is not our province to choose which one we believe.”
State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.
       {¶15} Appellant only takes issue with his aggravated robbery conviction here.
He does not assert that his assault conviction was against the weight of the evidence.
       {¶16} The jury convicted appellant of aggravated robbery in violation of R.C.
2911.01(B), which provides:

              (B) No person, without privilege to do so, shall knowingly remove
       or attempt to remove a deadly weapon from the person of a law
                                                                                -4-


       enforcement officer, or shall knowingly deprive or attempt to deprive a
       law enforcement officer of a deadly weapon, when both of the following
       apply:
                (1) The law enforcement officer, at the time of the removal,
       attempted removal, deprivation, or attempted deprivation, is acting
       within the course and scope of the officer's duties;
                (2) The offender knows or has reasonable cause to know that
       the law enforcement officer is a law enforcement officer.

       {¶17} We must examine the evidence offered at trial in order to determine if it
supports the jury’s verdict. The testimony as to the aggravated robbery count was as
follows.
       {¶18} Officer Yates testified that at appellant’s house after he told appellant to
stop calling and threatening Riverside, appellant became enraged, came toward him,
and shoved him. (Tr. 207-210). Because of the shove, Officer Yates attempted to
place appellant under arrest for assaulting a police officer. (Tr. 211). Appellant
resisted and pushed the officers away. (Tr. 212). After a struggle that involved
tasing appellant to no avail, the officers managed to get appellant into a position
where his knees were on the floor and his upper body was on the couch. (Tr. 220).
In this position, the lower half of Officer Haught’s body was under appellant’s chest.
(Tr. 220). Officer Yates was on top of appellant’s back. (Tr. 221). As Officer Yates
was directing appellant’s father to get back, he saw appellant grab for Officer
Haught’s gun. (Tr. 222). Officer Yates testified that appellant’s left hand was on
Officer Haught’s loaded gun and appellant was “yanking” on the butt of the gun. (Tr.
223). Officer Yates yelled to Officer Haught, “He’s got your gun. He’s going for your
gun.” (Tr. 223). Officer Yates put appellant in a choke hold. (Tr. 224). The officers
were then able to subdue appellant. (Tr. 224-225). Officer Yates also testified that
he and Officer Haught were both dressed in uniform and acting as police officers
during this encounter. (Tr. 317).
       {¶19} Officer Haught testified that after struggling with appellant, appellant
                                                                                  -5-


threw him off balance and he landed on the couch. (Tr. 342). Appellant ended up on
Officer Haught’s midsection and Officer Yates was on top of appellant. (Tr. 342).
Officer Haught stated that his loaded service weapon was on the right side of his belt.
(Tr. 342-343). Officer Haught stated that he grabbed appellant’s right arm “at which
point there was a slight tugging” and he heard Officer Yates yell that appellant was
going for his gun. (Tr. 343). Officer Haught testified that until Officer Yates yelled out
to him, he did not know there was a problem with his gun. (Tr. 343-344). Officer
Haught let go of appellant’s right arm, re-secured his gun in his holster, and re-
secured the thumb brake. (Tr. 344). On cross-examination, Officer Haught stated
that he did not know appellant’s hand was on his gun at the time. (Tr. 378).
       {¶20} Lawrence Antill, appellant’s father who was at home during appellant’s
encounter with the police, testified that he did not see appellant grab Officer Haught’s
gun. (Tr. 431).
       {¶21} Appellant testified that after struggling with the officers, the three ended
up in a position where he was on top of Officer Haught. (Tr. 482). Appellant testified
that he did not attempt to grab Officer Haught’s gun. (Tr. 482-483, 494). Instead,
appellant stated that he was trying to push himself off of Officer Haught. (Tr. 484).
       {¶22} An appellate court is permitted to independently weigh the credibility of
the witnesses when determining whether a conviction is against the manifest weight
of the evidence. State v. Wright, 10th Dist. No. 03AP-470, 2004-Ohio-677, ¶11. But
we must give great deference to the fact finder's determination of witnesses'
credibility. Id. The policy underlying this presumption is that the trier of fact is in the
best position to view the witnesses and observe their demeanor, gestures, and voice
inflections, and use these observations in weighing the credibility of the proffered
testimony. Id.
       {¶23} In this case the jury heard conflicting testimony. Officer Yates stated
that he saw appellant grab for Officer Haught’s gun. Appellant stated that he did not
grab for the gun. The jury was faced with a credibility determination as to which
testimony to believe. Apparently, they found Officer Yates’s testimony to be more
                                                                                  -6-


convincing.    Because the jury was in the best position to judge the witnesses’
credibility, we will not second-guess their determination.
       {¶24} Because the jury did not lose its way in reaching a verdict, the verdict is
not against the manifest weight of the evidence.             Accordingly, appellant’s first
assignment of error is without merit.
       {¶25} Appellant’s second assignment of error states:

               TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE
       A CRIM.R. 29 MOTION ASKING FOR MR. ANTILL’S ACQUITTAL OF
       THE AGGRAVATED ROBBERY CHARGE WHEN THERE WAS
       INSUFFICIENT EVIDENCE TO ESTABLISH THAT CRIME.

       {¶26} Here appellant contends that his counsel was ineffective because she
failed to request an acquittal based on Crim.R. 29 due to insufficient evidence to
support the aggravated robbery charge. He points out that he was not charged with
aggravated robbery until five months after the incident and Officer Haught testified
that he never thought appellant was trying to take his gun.                  Under these
circumstances, appellant argues, a reasonably competent attorney would have
moved for acquittal on the aggravated robbery charge and the motion would have
likely been granted.
       {¶27} To prove an allegation of ineffective assistance of counsel, the
appellant must satisfy a two-prong test. First, appellant must establish that counsel's
performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.
Second, appellant must demonstrate that he was prejudiced by counsel's
performance.    Id.    To show that he has been prejudiced by counsel's deficient
performance, appellant must prove that, but for counsel's errors, the result of the trial
would have been different. Bradley, at paragraph three of the syllabus.
       {¶28} Appellant bears the burden of proof on the issue of counsel's
                                                                              -7-


effectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In
Ohio, a licensed attorney is presumed competent. Id.
      {¶29} Appellant contends that his counsel was ineffective for failing to make a
Crim.R. 29 motion for acquittal based on insufficient evidence to convict him of
aggravated robbery. Thus, his claim here is one of sufficiency of the evidence.
      {¶30} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684
N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. Thompkins, 78
Ohio St.3d at 386. Whether the evidence is legally sufficient to sustain a verdict is a
question of law. Id. In reviewing the record for sufficiency, the relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Smith, 80 Ohio St.3d at 113.
      {¶31} There was sufficient evidence to convict appellant of aggravated
robbery. The state presented evidence going to each of the aggravated robbery
elements.
      {¶32} Officer Yates testified that he saw appellant attempt to remove Officer
Haught’s service weapon from its holster. (Tr. 222-223). At the time, Officer Haught
was attempting to help Officer Yates arrest appellant for assaulting a police officer.
(Tr. 211). Therefore, there was evidence that Officer Haught was within the course
and scope of his duties. R.C. 2911.01(B)(1). And Officer Haught was wearing his
police uniform at the time. (Tr. 317). Hence, appellant had reasonable cause to
know that Officer Haught was a law enforcement officer. R.C. 2911.01(B)(2).
      {¶33} This evidence is sufficient to support the aggravated robbery conviction.
The state presented evidence going to each of the aggravated robbery elements
under R.C. 2911.01(B).     Any conflicting evidence would go to the weight of the
evidence, which was discussed above.
      {¶34} Because there was sufficient evidence to support an aggravated
                                                                             -8-


robbery conviction, appellant cannot demonstrate any prejudice from his counsel’s
failure to raise a Crim.R. 29 motion for acquittal.    Thus, he cannot demonstrate
ineffective assistance of counsel here.
       {¶35} Accordingly, appellant’s second assignment of error is without merit.
       {¶36} Appellant’s third assignment of error states:

              WHEN THE DEFENDANT’S COMPETENCY IS BROUGHT
       INTO QUESTION BEFORE TRIAL, THE TRIAL COURT MUST
       CONDUCT A COMPETENCY HEARING.

       {¶37} Prior to trial, appellant requested a psychological evaluation. The trial
court granted the request and ordered a report. It appears as though the inquiry
ended here.
       {¶38} In this assignment of error, appellant asserts the trial court was
statutorily required to hold a competency hearing in his case. He argues that the
court’s failure to do so is reversible error.
       {¶39} R.C. 2945.37(B) provides:

       In a criminal action in a court of common pleas * * * the court,
       prosecutor, or defense may raise the issue of the defendant's
       competence to stand trial. If the issue is raised before the trial has
       commenced, the court shall hold a hearing on the issue as provided in
       this section. If the issue is raised after the trial has commenced, the
       court shall hold a hearing on the issue only for good cause shown or on
       the court's own motion.

       {¶40} On September 3, 2010, appellant filed “Defendant’s Motion for
Psychological Evaluation.” The entire motion reads, “The Defendant, Joseph Mark
Antill, hereby requests a psychological evaluation for reasons set forth more
particularly at the hearing.” A plea agreement hearing was held that same day.
Counsel did not elaborate on the reason for the motion.
                                                                             -9-


        {¶41} In its September 8 judgment entry, the trial court sustained appellant’s
motion and ordered the evaluation to be completed on or before September 17,
2010.
        {¶42} The court next mentions the psychological evaluation in a September
22 judgment entry where it notes that the evaluation had not been received as of that
date.
        {¶43} The court held another pretrial hearing on October 15. 2010. Neither
the parties nor the court mention the psychological evaluation.
        {¶44} The case then proceeded to trial on October 26, 2010.         No other
mention of the psychological evaluation was made and appellant did not request a
competency hearing.
        {¶45} The Ohio Supreme Court has held that a trial court must hold a
competency hearing if a request is made before trial. State v. Were, 94 Ohio St.3d
173, 174, 2002-Ohio-481, 761 N.E.2d 591. The Court found reversible error where
defense counsel continually raised the issue of appellant's competency, appellant
never testified, and appellant filed many pro se motions that casted doubt on his
competency. Id. at 176.
        {¶46} The Were Court distinguished its facts from those in State v. Bock, 28
Ohio St.3d 108, 502 N.E.2d 1016 (1986), where the Court found that the failure to
hold a competency hearing was harmless error. The Bock Court based its finding of
harmless error on the facts that the defendant testified in his own defense and was
subject to cross-examination, the record failed to reveal sufficient indicia of
incompetency, and “[d]efense counsel, after the original motion for a hearing, failed
ever again to mention the defendant's competency until the time for appeal.” Id. at
111.
        {¶47} In State v. Hinkston, 182 Ohio App.3d 232, 2009-Ohio-2631, 912
N.E.2d 179 (4th Dist.), the Fourth District found that the trial court committed
reversible error where it failed to conduct a competency hearing when appellant
made the request for a hearing on the day trial was set to begin.
                                                                                 - 10 -


       {¶48} And in State v. Wilcox, 16 Ohio App.3d 273, 475 N.E.2d 516 (11th
Dist.1984), the Eleventh District found the defendant’s plea of not guilty by reason of
insanity and request for a psychiatric evaluation to show he was legally insane at the
time he committed the alleged acts did not constitute a request for a competency
hearing. The court held that in the absence of a specific motion for a competency
hearing, no hearing is mandated. Id. at 275.
       {¶49} This case law indicates that when a defendant specifically requests a
competency hearing prior to trial, the failure to hold a hearing can be reversible error.
But when a defendant simply raises an issue as to his mental state, or when the
defendant testifies and demonstrates no indicia of incompetence, the trial court does
not commit reversible error in failing to hold a competency hearing.
       {¶50} In this case, appellant never requested a competency hearing. And
after filing a motion for a psychological evaluation, appellant did not raise the issue of
his mental state again until this appeal. Furthermore, like the defendant in Bock,
appellant testified in his own defense and was subject to cross-examination. His
testimony did not reveal indicia of incompetency. Based on these facts and the case
law discussed, the trial court did not err in failing to hold a competency hearing and
even if it did err, any error was harmless.
       {¶51} Accordingly, appellant’s third assignment of error is without merit.
       {¶52} Appellant’s fourth assignment of error states:

              THE STATE’S FAILURE TO TURN OVER THREE WITNESS
       STATEMENTS           BEFORE            TRIAL     WAS        PREJUDICIAL
       PROSECUTORIAL MISCONDUCT.

       {¶53} Appellant argues that the prosecutor committed misconduct by failing to
disclose three witness statements to him. The witness statements were taken by
Officer Yates at the Riverside Restaurant from Michael Mellott, Allen Newkirk, and
Ryan Whitlatch.     These witnesses did not testify at trial.       Appellant’s counsel
objected.   The trial court ruled the state’s actions amounted to prosecutorial
                                                                              - 11 -


negligence and not prosecutorial misconduct because the state did not act purposely
in withholding the statements from the defense. Appellant contends this was not the
proper standard to apply. Instead, he contends the court should have looked at
whether he suffered any prejudice as a result of the withholding. Appellant claims he
was prejudiced because he was prevented from conducting a full investigation that
may have lent further support to his account of the events and undermined Officer
Yates’s credibility.
       {¶54} The test for prosecutorial misconduct is whether the conduct
complained of deprived the defendant of a fair trial. State v. Fears, 86 Ohio St.3d
329, 332, 715 N.E.2d 136 (1999).
       {¶55} Prior to Officer Yates’s testimony, it came to appellant’s and the state’s
attention that Officer Yates had taken the statements of three witnesses and these
statements were not turned over to appellant during discovery. (Tr. 187-192). The
parties and the court agreed this was not an intentional withholding by the
prosecutor, as the prosecutor believed everything in the officer’s file was turned over
to the defense.        (Tr. 188-190).    In fact, the prosecutor had never seen these
statements before.       (Tr. 188).     The statements were from three men who were
involved in a shouting incident at Riverside before appellant left the bar and went
home. (Tr. 191). And the court noted it had already limited how much testimony
could be solicited regarding the incident at the bar. (Tr. 191).
       {¶56} Appellant’s counsel stated that appellant was potentially prejudiced
because she was not able to adequately prepare for her cross-examination of Officer
Yates and she could have spoken with those witnesses. (Tr. 189). The court was
able to alleviate counsel’s concern. The court allowed appellant’s counsel an extra
day to review the statements and to cross-examine Officer Yates the following day.
(Tr. 189-192, 234-235, 278-281).          The next day, after counsel had reviewed the
statements, she indicated to the court that she would not have any questions
regarding the issues raised in the three statements. (Tr. 278).
       {¶57} The court remedied the situation by allowing appellant’s counsel an
                                                                               - 12 -


extra day to review the statements before cross-examining Officer Yates.             The
statements did not have any value to the defense because counsel stated she had
no questions of Officer Yates regarding the statements. Additionally, counsel did not
see a need to ask for a mistrial or even to request a continuance so that she might
interview the men who gave the statements.          Because the men who gave the
statements were not at appellant’s house when the crimes were committed,
presumably their statements were of no value to prove or disprove that appellant
committed the charged offenses. Based on the above, appellant cannot demonstrate
that he was deprived of a fair trial.
       {¶58} Accordingly, appellant’s fourth assignment of error is without merit.
       {¶59} Appellant’s fifth assignment of error states:

              THE JURY USED PROHIBITED, PREJUDICIAL OTHER BAD
       ACTS EVIDENCE TO CONVICT MR. ANTILL. BECAUSE IT WAS MR.
       ANTILL’S ATTORNEY THAT SUBMITTED THAT EVIDENCE, HE DID
       NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶60} In this assignment of error, appellant once again alleges he received
ineffective assistance of counsel. He claims his counsel was ineffective in that she
submitted the Ohio Uniform Incident Report prepared by Officer Yates without
redacting the “other bad acts” evidence from it.       (Def. Ex. 3).   The “bad acts”
appellant claims should have been redacted, as taken from the police report, were
under a section titled “NOTES/COMMENTS,” which followed the officer’s account of
the incident at hand. The notes read:

              JOE ANTILL HAS SEVERAL ARRESTS FOR DOMESTIC
       VIOLENCE AGAINST HIS PARENTS.
              JOE ANTILL HAS BEEN BARRED FROM HANK’S PLACE AND
       THE RIVERSIDE FOR FIGHTING.
              ON JULY 4TH 2009, JOE ANTILL WAS AT A FRIEND’S
                                                                               - 13 -


       PARTY.        THERE HE BECAME LOUD AND ABUSIVE AND WAS
       ASKED TO LEAVE.         AN ALTERCATION OCCURRED WHERE HE
       RECEIVED FACIAL INJURIES.
              THE EXPERIENCES THAT OTHER POWHATAN OFFICERS
       AND MYSELF HAVE HAD WITH JOE ANTILL, ARE THAT WHEN HE
       IS SOBER HE IS A CALM, POLITE GUY. ONCE HE HAS JUST A
       SMALL AMOUNT OF ALCOHOL TO DRINK HE TURNS MEAN, LOUD
       AND VIOLENT.

       {¶61} Appellant contends he was prejudiced by these statements because
they appear in the form of uncontested facts and they set forth a bad character trait of
his that was directly at issue in this case because he had been drinking and was
accused of acting violently. He argues no reasonable defense attorney would have
presented these statements to the jury.
       {¶62} The state asserts there was no ineffectiveness because the trial court
ruled on a motion in limine and found that other acts evidence would be permissible.
       {¶63} The other acts evidence in the motion in limine that the state refers to is
not relevant here. Appellant filed a motion in limine asking the court to prohibit the
state from introducing testimony regarding certain alleged but uncharged crimes.
The trial court sustained appellant’s motion in part and overruled it in part. It found
that the motion dealt with testimony of witnesses who may have observed appellant’s
behavior within approximately six hours prior to the incident between appellant and
the arresting officers. The court found the state could only introduce such testimony
upon a proper foundation and where the testimony played an integral part in
explaining the sequence of events on the night in question. Thus, the motion in
limine had no bearing on statements in the incident report as they did not concern the
night in question.
       {¶64} Appellant’s counsel used the incident report during her cross-
examination of Officer Yates in questioning him about why he did not include certain
details in his report and eventually persuading the officer to admit that his report was
                                                                               - 14 -


incomplete.    (Tr. 262-270). However, why counsel then offered the report into
evidence is unclear.      Understandably, it was part of counsel’s trial strategy to
question Officer Yates about why he failed to include purportedly important details in
his report.   But it is troubling that counsel then offered the incident report into
evidence, without redacting the notes/comments by Officer Yates, which undoubtedly
cast appellant in a bad light. Had the prosecutor offered the incident report into
evidence, appellant would likely have appealed based on inadmissible character
evidence.
       {¶65} Offering the entire incident report into evidence was not a prudent
decision. But under the ineffective assistance of counsel standard of review, we
must look at whether appellant was prejudiced by counsel’s performance.
       {¶66} Given that appellant testified and gave a conflicting account of the
events from that account of the officers, the jury had to make a credibility
determination as to whose testimony was the most believable.           It is likely that
appellant lost credibility in the jury’s eyes based on the statements in the incident
report. The report set out, as facts reported by a police officer, that appellant has
been arrested several times for domestic violence against his own parents, that he
fights at bars, and that he is mean, loud, and violent when he drinks. All of these
statements make appellant’s testimony less believable especially in light of the fact
that appellant had been drinking on the night in question. Thus, we must conclude
that appellant was prejudiced by the incident report.
       {¶67} Accordingly, appellant’s fifth assignment of error has merit.
       {¶68} Appellant’s sixth assignment of error states:

              THE CUMULATIVE ERRORS IN THIS CASE PREVENTED MR.
       ANTILL FROM HAVING A FUNDAMENTALLY FAIR CRIMINAL TRIAL.

       {¶69} Finally, appellant asserts that the cumulative effect of the above alleged
errors denied him a fair trial.
       {¶70} An appellate court may reverse a defendant's conviction based on the
                                                                              - 15 -


doctrine of cumulative error.     Cumulative error occurs when errors deemed
separately harmless deny the defendant a fair trial. State v. DeMarco, 31 Ohio St.3d
191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus.
      {¶71} The only assignment of error that has merit is appellant’s fifth
assignment of error. Appellant’s other alleged errors are meritless. There is no
cumulative error.
      {¶72} Accordingly, appellant’s sixth assignment of error is without merit.
      {¶73} For the reasons stated above, the trial court’s judgment is hereby
reversed and the matter is remanded for a new trial.



Vukovich, J., concurs.

Waite, J., concurs.
