[Cite as State v. Meyers, 2014-Ohio-5610.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                 :       OPINION

                 Plaintiff-Appellee,           :
                                                       CASE NO. 2014-A-0020
        - vs -                                 :

CHRISTOPHER M. MEYERS,                         :

                 Defendant-Appellant.          :


Criminal Appeal from the Ashtabula County Court of Common Pleas.
Case No. 2013 CR 00229.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).

Rebecca Hall, P.O. Box 242, 34 South Chestnut Street, Suite 300, Jefferson, OH
44047 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Christopher M. Meyers, appeals the judgment of the Ashtabula

County Court of Common Pleas, having found him guilty, after a jury trial, of assault on

a police officer in violation of R.C. 2903.13(A), a felony of the fourth degree, and

resisting arrest in violation of R.C. 2921.33(A), a misdemeanor of the second degree.

Based on the following, we affirm.
       {¶2}   Lieutenant Rodney Blaney of the Ashtabula City Police Department was

working the night shift on April 13, 2013, and was called to Bunker Hill Apartments.

Upon arriving at the scene, he witnessed appellant and another individual, Dustin

Busser, in a struggle, with Mr. Busser holding onto appellant’s wrists to restrain him.

After instructing them to separate, Lieutenant Blaney began questioning them. At this

time, Lieutenant Doug Hollis, also of the Ashtabula City Police Department, arrived at

the scene to provide backup for Lieutenant Blaney.

       {¶3}   At trial, Lieutenant Blaney testified that, throughout his conversation with

both appellant and Mr. Busser, it became evident that appellant was heavily intoxicated.

Lieutenant Blaney testified that appellant was uncooperative in his requests to provide

his personal information. Appellant was drifting, staggering back and forth, swaying

from foot to foot, and his clothing was disheveled. Lieutenant Blaney further testified

that appellant had gravel and mud stuck to the side of his face and constantly spit on

the ground, in all directions. When appellant began to spit toward Lieutenant Blaney, he

was advised to cease this behavior or he would be arrested.          Appellant, however,

continued to be belligerent and refused to answer any of Lieutenant Blaney’s questions.

Mr. Busser provided Lieutenant Blaney with appellant’s name, his own personal

information, and the reasons for their struggle.

       {¶4}   Lieutenant Blaney continued his attempt to obtain more information from

appellant, but appellant would sometimes speak clearly, then ramble and make growling

sounds when he spoke. During this, appellant asked if he could smoke a cigarette.

Lieutenant Blaney permitted him, with the hope that appellant would become more

cooperative. But when appellant’s behavior persisted, Lieutenant Blaney warned him




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that he was going to arrest appellant if he failed to comply. In response, appellant’s

growling intensified, and he launched toward Lieutenant Blaney, making direct contact

with Lieutenant Blaney’s upper chest/lower neck area. A struggle ensued between the

two and continued until Lieutenant Hollis utilized his taser on appellant. Lieutenant

Blaney was then able to handcuff appellant. Appellant was transported to the police

station. At the station, appellant continued his growling and combative behavior; he

also threatened to kill Lieutenant Hollis. Appellant was placed in a restraint chair for the

remainder of the night. When appellant awoke the next day, he indicated he had no

recollection of the previous night’s events.

       {¶5}   At trial, Lieutenant Hollis corroborated Lieutenant Blaney’s account of the

incident.

       {¶6}   Mr. Eric Hemphill, the manager of Bunker Hill Apartments, also testified.

Mr. Hemphill testified that, prior to the lieutenants’ arrival, he was awakened by noise

generated by appellant and Mr. Busser. He spoke with Mr. Busser, who informed him

that appellant was intoxicated and Mr. Busser was trying to get him home. Mr. Hemphill

went back inside but when he received calls from other tenants in the building

complaining about the noise, he went back outside and saw Lieutenant Blaney’s vehicle

approaching the scene. Mr. Hemphill remained in his patio area and testified that he

was able to observe the incident.        He testified that appellant refused to answer

Lieutenant Blaney’s questions, and he observed appellant push Lieutenant Blaney.

       {¶7}   At trial, Mr. Busser testified that he had been with appellant earlier that

night at a bar with several friends drinking alcohol. Mr. Busser left the bar to visit his

girlfriend, but later traveled to the apartment complex to meet his friends. Mr. Busser




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stated that he observed two friends trying to put appellant, who was clearly intoxicated,

in his truck to “sleep it off.” When the friends gave up and returned to their apartment,

Mr. Busser testified that he then attempted to put appellant into his vehicle, struggling

with him for approximately 15-20 minutes before the police arrived.           Mr. Busser

confirmed that appellant refused to provide Lieutenant Blaney his social security

number. Mr. Busser testified that when he observed one of the lieutenants stepping

forward in response to appellant’s movement, he turned and stepped back. When Mr.

Busser turned, he saw appellant on the ground growling. Mr. Busser testified that he

neither saw appellant make actual contact with Lieutenant Blaney nor did he see him

spitting throughout their conversation.

       {¶8}       The jury found appellant guilty of both charges; he was sentenced to a

two-year term of community control for each count, to be served concurrently.

       {¶9}       Appellant filed a timely notice of appeal and asserts the following

assignment of error for our review:

       {¶10} “Defendant was denied effective assistance of counsel when trial counsel

failed to request a jury instruction of disorderly conduct as a lesser included offense of

assault of a police officer.”

       {¶11} On appeal, appellant argues his trial counsel was ineffective for failing to

request a jury instruction of disorderly conduct, a lesser included offense of assault of a

police officer.

       {¶12} In order to prevail on an ineffective assistance of counsel claim, the

appellant must demonstrate from the record that trial counsel’s performance fell below

an objective standard of reasonable representation and that there is a reasonable




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probability that, but for counsel’s error, the result of the proceeding would have been

different. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus,

applying the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). If a claim

of ineffective assistance can be disposed of by showing a lack of sufficient prejudice,

there is no need to consider the first prong, i.e., whether trial counsels performance was

deficient. Bradley at 143, citing Strickland at 697. There is a general presumption that

trial counsel’s conduct is within the broad range of competent professional assistance.

Id. at 142.

       {¶13} Furthermore, decisions on strategy and trial tactics are generally granted

wide latitude in professional judgment, and it is not the duty of a reviewing court to

analyze trial counsel’s legal tactics and maneuvers. State v. Gau, 11th Dist. Ashtabula

No. 2005-A-0082, 2006-Ohio-6531, ¶35, citing Strickland at 689. Debatable trial tactics

and strategies do not constitute ineffective assistance of counsel. State v. Phillips, 74

Ohio St.3d 72, 85 (1995), citing State v. Clayton, 62 Ohio St.2d 45, 49 (1980).

       {¶14} An offense may be considered a lesser included offense of another when

(1) one offense carries a greater penalty than the other; (2) the greater offense cannot

be committed without the lesser offense also being committed; and (3) some element of

the greater offense is not required to prove the commission of the lesser offense. State

v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, paragraph two of the syllabus. Further,

while an offense may be statutorily defined as a lesser included offense, an instruction

to the jury on the lesser offense is required only where the evidence presented at trial

would reasonably support both an acquittal on the crime charged and a conviction upon




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the lesser offense. State v. Thomas, 40 Ohio St.3d 213 (1988), paragraph two of the

syllabus.

       {¶15} Although disorderly conduct is a lesser included offense of assault, an

instruction is only required if the evidence presented at trial would reasonably support

both an acquittal on the crime charged and a conviction on the lesser included offense.

See State v. Latessa, 11th Dist. Lake No. 2006-L-108, 2007-Ohio-3373, ¶47 (“The

Ohio Supreme Court appears to have recently settled the issue in favor of those districts

which have held that minor misdemeanor disorderly conduct is, indeed, a lesser

included offense of assault.”).

       {¶16} Assault, pursuant to R.C. 2903.13(A), provides that “[n]o person shall

knowingly cause or attempt to cause physical harm to another * * *.” Where the victim

of the offense is a police officer performing official duties, the assault is classified as a

felony of the fourth degree. R.C. 2903.13(C)(5).

       {¶17} Here, the evidence did not reasonably support acquittal of assault on a

police officer. As a result, a jury instruction on the lesser included offense of disorderly

conduct was not warranted in this matter. We decline to find trial counsel ineffective for

failing to request such an instruction.

       {¶18} Appellant’s assignment of error is without merit.

       {¶19} The judgment of the Ashtabula County Court of Common Pleas is hereby

affirmed.


CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur.



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