[Cite as State v. Jones, 2010-Ohio-4823.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY



STATE OF OHIO,                                            CASE NO. 9-10-09

   PLAINTIFF-APPELLEE,

  v.

TIMOTHY ALLEN JONES,                                        OPINION

   DEFENDANT-APPELLANT.



                 Appeal from Marion County Common Pleas Court
                            Trial Court No. 09-CR-066

                                      Judgment Affirmed

                             Date of Decision: October 4, 2010




APPEARANCES:

        Kevin P. Collins, for Appellant

        Brent Yager, for Appellee
Case No. 9-10-09




SHAW, J.

       {¶1} Defendant-Appellant Timothy A. Jones (“Jones”) appeals the

January 11, 2010 judgment of the Marion County Court of Common Pleas

convicting him of felonious assault, sentencing him to eight years in prison for the

offense and designating him as a repeat violent offender which added four years to

Jones’ sentence for a total twelve-year prison term.

       {¶2} The facts giving rise to this case took place at the Multi-County

Correctional Center in Marion, Ohio. In February 2009, Jones was placed in the

Multi-County Correctional Center while he awaited trial on charges stemming

from a separate incident from this case. Inmate Joshua Criswell (“Criswell”) was

also residing in the jail at this time due to his convictions on charges unrelated to

the instant case.

       {¶3} On April 8, 2009, at approximately 9:30 p.m., a physical altercation

occurred between Jones and Criswell over an item of commissary that Jones

claimed Criswell owed to him. The fight occurred outside Criswell’s cell. One of

the surveillance cameras in the jail captured the episode. The recording depicted

Jones engaging Criswell in the fight by taunting him, then shoving forcefully and

punching him. After the first punch, Criswell fell to the floor. It was evident from

the recording that Jones dispensed multiple punches and kicks in the direction of

Criswell’s body which was positioned on the floor. However, the camera was


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unable to capture the actual contact blows that Jones made with Criswell’s body

because the camera had a partially obstructed view of the location where the fight

occurred. After about twenty seconds, another inmate stepped-in to break-up the

fight. Jones returned to the location where he was standing before the altercation.

However, the recording clearly depicts that it took Criswell some additional time

to collect himself and stand up before returning to his cell.

       {¶4} Approximately one hour later, at 10:30 p.m., Criswell complained to

the Corrections Officer on duty that he was experiencing stomach pains. When

asked about the cause of his pain, Criswell initially stated that he fell out of his

bunk, claiming that he did not want to reveal the altercation with Jones to the jail

authorities. After the Corrections Officer continued to express her disbelief with

his story, Criswell eventually disclosed the incident with Jones. Criswell was

taken to the medical unit in the jail for observation and to be examined by the

nurse, Rita Bader, when she arrived on duty in the morning.

       {¶5} Nurse Bader arrived the next day around 8:00 a.m. and examined

Criswell who continued to complain of stomach pains. Bader’s initial examination

did not detect any irregularities with Criswell’s body; however she continued to

monitor his condition throughout the morning. Criswell’s complaints about his

stomach pains did not abate. Criswell complained that the pain had spread from




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his stomach to his shoulder. After performing a subsequent examination, Bader

noticed that Criswell’s abdomen appeared distended.

       {¶6} Upon this change in his condition, Criswell was sent to the Morrow

County Hospital where the emergency room physician examined him and ordered

a CAT scan to be performed on his chest and abdomen. The CAT scan revealed

that Criswell was bleeding internally.      Criswell was “MedFlighted” to Grant

Medical Center in Columbus where it was determined that he suffered from a

ruptured spleen. Emergency surgery was performed and over a liter of blood was

removed from Criswell’s stomach.           Criswell remained hospitalized for a

significant time following the surgery.

       {¶7} The video recording of the altercation between Jones and Criswell

was retrieved and viewed by the jail authorities. The recording confirmed that

Jones was Criswell’s assailant in the fight. After an internal investigation, Jones

was disciplined and given sixty days of lockdown and loss of visits and

commissary.

       {¶8} The Marion Police Department also conducted an investigation of

the incident. On April 16, 2009, Jones was indicted on one charge of felonious

assault in violation of R.C. 2903.11(A)(1), a second degree felony. On April 30,

2009, the indictment was amended to add a specification to designate Jones as a

repeat violent offender pursuant to R.C. 2929.14(D)(2) and R.C. 2941.149. The



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parties stipulated to a bifurcated adjudication of the felonious assault charge and

the repeat violent offender specification.

       {¶9} On September 24 and 25, 2009, the felonious assault charge was

tried before a jury. Several witnesses testified including Jones, Criswell, Nurse

Bader and the Morrow County Hospital emergency room doctor who examined

Criswell. At the close of the evidence, the jury found Jones guilty of felonious

assault.

       {¶10} On December 30, 2009, the specification to designate Jones as a

repeat violent offender was tried before the bench. After considering the evidence

before it, the trial court found Jones to be a repeat violent offender and proceeded

with sentencing which was journalized in its January 11, 2010 Judgment Entry.

The court sentenced Jones to a prison term of eight years on the felonious assault

conviction and an additional four years for Jones’ designation as a repeat violent

offender, for a total of twelve years. The trial court also advised Jones that he was

sentenced to a mandatory term of three years of post-release control.

       {¶11} Jones now appeals from this judgment, asserting the following

assignments of error.

                        ASSIGNMENT OF ERROR I

       THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
       SUPPORT DEFENDANT-APPELLANT’S CONVICTION ON
       THE REPEAT VIOLENT OFFENDER SPECIFICATION



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                   ASSIGNMENT OF ERROR II

      DEFENDANT-APPELLANT’S     CONVICTION      FOR
      FELONIOUS ASSAULT IS CONTRARY TO THE MANIFEST
      WEIGHT OF THE EVIDENCE

                   ASSIGNMENT OF ERROR III

      THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
      DEFENDANT-APPELLANT    BY    ALLOWING     THE
      PROSECUTOR TO CROSS EXAMINE HIM ABOUT
      PREVIOUS FELONY CONVICTIONS

                   ASSIGNMENT OF ERROR IV

      THE DEFENDANT-APPELLANT’S CONVICTION WAS
      OBTAINED BY FALSE AND MISLEADING TESTIMONY BY
      THE STATES [SIC] WITNESS JOSHUA CHRISWELL [SIC]
      WHICH WAS KNOWN BY THE STATE TO BE FALSE

                   ASSIGNMENT OF ERROR V

      DEFENDANT-APPELLANT’S      TRIAL     COUNSEL,
      ATTORNEY JOHN [SIC] DOYLE, WAS INEFFECTIVE AS
      COUNSEL IN THAT HE FAILED TO EXAMINE THE
      MEDICAL RECORDS FROM THE MULTI COUNTY JAIL
      BELONGING TO JOSHUA CHRISWELL [SIC] AND TO
      HAVE THEM ADMITTED AS EVIDENCE

                   ASSIGNMENT OF ERROR VI

      THE TRIAL COURT ERRED WHEN IT FOUND THE
      APPELLANT GUILTY OF BEING A REPEAT VIOLENT
      OFFENDER PURSUANT TO R.C. 2929.14(D)(2)/R.C. 2941.149
      AND R.C. 2929.01(CC) AS CONTAINED IN HIS
      INDICTMENT




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                      ASSIGNMENT OF ERROR VII

       THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION
       WHEN IT DENIED THE DEFENDANT-APPELLANT’S
       MOTION FOR EXPERT WITNESS AND EXTRAORDINARY
       FUNDS

       {¶12} For ease of discussion, we elect to discuss Jones’ assignments of

error out of order.

                           Second Assignment of Error

       {¶13} In his second assignment of error, Jones contends that the jury’s

verdict convicting him of felonious assault was against the manifest weight of the

evidence. When an appellate court analyzes a conviction under the manifest

weight standard it must review the entire record, weigh all of the evidence and all

of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the fact finder 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-Ohio-52, superseded by state constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 1997-

Ohio-335, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d

717. Only in exceptional cases, where the evidence “weighs heavily against the

conviction,” should an appellate court overturn the trial court’s judgment. Id.




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Case No. 9-10-09



      {¶14} The jury found Jones guilty of felonious assault under R.C.

2903.11(A)(1), which provides, in pertinent part:

      (A)    No person shall knowingly do * * * the following:

      (1)    Cause serious physical harm to another[.]* * *

Additionally, “serious physical harm” means any of following:

      (a)   Any mental illness or condition of such gravity as would
      normally require hospitalization or prolonged psychiatric
      treatment;

      (b)    Any physical harm that carries a substantial risk of death;

      (c)   Any physical harm that involves some permanent
      incapacity, whether partial or total, or that involves some
      temporary, substantial incapacity;

      (d)    Any physical harm that involves some permanent
      disfigurement or that involves some temporary, serious
      disfigurement;

      (e)   Any physical harm that involves acute pain of such
      duration as to result in substantial suffering or that involves any
      degree of prolonged or intractable pain.


R.C. 2901.01(A)(5). Finally, R.C. 2901.22(B) provides that:

      A person acts knowingly, regardless of his purpose, when he is
      aware that his conduct will probably cause a certain result or
      will probably be of a certain nature. A person has knowledge of
      circumstances when he is aware that such circumstances
      probably exist.

      {¶15} In the case sub judice, Jones admits that he assaulted Criswell during

the incident at the Multi-County Correctional Center. Jones further acknowledges


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Case No. 9-10-09



that Criswell’s injury of a ruptured spleen constitutes serious physical harm.

However, Jones disputes that the prosecution proved beyond a reasonable doubt

that his actions in the altercation with Criswell caused the injury to Criswell’s

spleen which resulted in Criswell suffering serious physical harm.

       {¶16} Specifically, Jones maintains that Criswell’s interactions with other

inmates a day or two before Jones’ fight with Criswell could have caused

Criswell’s spleen injury. Jones and other inmates testified that “horseplay” and

“roughhousing” which consisted of inmates throwing “body punches” at one

another, was a common occurrence at the jail. Jones testified that the day before

the altercation with Criswell, he observed Criswell and another inmate, Anthony

“Smug” Brown, throwing “body shots” at each other.

       {¶17} Aside from the possibility of others causing Criswell’s spleen injury,

Jones also argues that the physical contact he made with Criswell during the

alteration could not have caused Criswell’s spleen to rupture. On the stand, Jones

admitted that he swung hard when he punched Criswell.                However, Jones

maintained that he only hit Criswell in the chest twice, once with each fist. Jones

also argues that because Criswell was lying on the ground, the force of his

punches was lessened because he had to bend over to punch Criswell, and

therefore, according to Jones, his punches could not have been forceful enough to

cause Criswell’s spleen to rupture.



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       {¶18} Contrary to Jones’ doubts about his actions in the altercation causing

Criswell serious physical harm, there was ample evidence demonstrating that the

blows Criswell endured during the incident with Jones caused the injury to his

spleen. The recording from the jail’s surveillance camera showed that Criswell

was downstairs near the jail’s day area just prior to the altercation. Jones was

upstairs leaning against the balcony. Criswell testified that Jones began yelling

down to him claiming that Criswell owed him some Ramen Noodles, aka “soup.”

Criswell testified that he climbed up the stairs telling Jones that he would not give

him the “soup.” The recording depicts Jones then walked to Criswell’s cell, which

was located at the top of the stairs. Criswell testified that Jones stated that he

would just take the “soup” out of Criswell’s cell. At that point, Criswell testified

that he ran toward his cell and attempted to slam the cell door shut to prevent

Jones from taking his “soup.”

       {¶19} Criswell recalled that after he slammed his cell door, Jones pushed

and hit him causing Criswell to fall down.          While on the floor, Criswell

remembered covering-up his mid-section with his arms trying to protect himself

from Jones. Criswell could not recall if Jones kicked him, but he was adamant

that Jones punched him hard once on each side.           Criswell described Jones’

punches “like he put his force into it. It’s the hardest I’ve ever been hit in my

life.” (Tr. Trans. p. 157).



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        {¶20} Criswell testified that he did not attempt to fight back against Jones’

punches, but remained on the floor covering his mid-section until Inmate “Smug”

Brown pulled Jones away from Criswell. Criswell testified that Jones’ punches

ruptured his spleen. Criswell stated that immediately after the incident with Jones

he could feel that something was wrong. Criswell described the pain: “I was

having real shooting pain clear up the side of my chest. Every time I sat down, it

was an extreme pain. It was the worst pain I ever felt in my life.” (Tr. Tran. P.

157).

        {¶21} Criswell testified that eventually the pain grew so intense that it

prompted him to use the jail’s intercom to summon the Corrections Officer on

duty. Criswell remembered being taken down to the medical ward to await Nurse

Bader’s arrival in the morning. Criswell testified that he continued to experience

the worst pain of his life throughout the night. Nurse Bader testified that when she

arrived in the morning, Criswell explained to her that he had been assaulted by

another inmate. Upon noticing that Criswell’s distended abdomen, Nurse Bader

made the decision to send Criswell to the Morrow County Hospital.

        {¶22} Dr. Sayre, the emergency room physician at the Morrow County

Hospital, testified that upon his initial examination, Criswell described Jones’s

attack as being the source of his injury. Dr. Sayre testified that Criswell’s heart




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rate and blood pressure were low and that Criswell appeared to be getting sicker

and sicker.

        {¶23} Dr. Sayre explained that the spleen is an organ located on the “high

left side of the belly.” (Tr. Trans. p. 128). Dr. Sayre further explained that a

severe blow to the spleen could cause it to rupture. Dr. Sayre stated that “spleens

don’t bleed for no reason. There has to be some sort of trauma.” (Tr. Trans. p.

133).   Dr. Sayre testified that when a person experiences a spleen injury of

Criswell’s nature, the person will get sicker and sicker as the internal bleeding

increases causing the person to eventually die.

        {¶24} With regard to Jones’ claims that Criswell’s “horseplay” with

another inmate could have caused Criswell’s spleen injury, there is no evidence

that Criswell felt sick or expressed intense pain until after Jones’ assault on him.

Criswell testified that he suffered from no injury in his ribs or abdomen area until

Jones punched him. Furthermore, Criswell testified that he had been to see Nurse

Bader the day before the incident with Jones. Criswell stated that he went to the

medical ward because he had a boil on his buttocks and suffered from a toothache,

but he adamantly maintained that he suffered from no abdominal pain prior to his

altercation with Jones.

        {¶25} On the stand, Nurse Bader reviewed the medical files from the

prison and confirmed that she had seen Criswell on April 7, 2009—the day before



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the incident with Jones. Nurse Bader testified that Criswell complained of a boil

and a toothache. Nurse Bader also confirmed that Criswell did not voice any

complaints about abdominal or stomach pains at that time. Moreover, in the video

recording of the incident, Criswell appears to show no sign of injury as he quickly

climbed the stairs to prevent Jones from entering his cell.    It is not until after

Jones’ assault on Criswell occurred that there is a noticeable difference in

Criswell’s body movements as he takes some time to rise to his feet before

returning to his cell.

       {¶26} Based on the foregoing testimony, we conclude that there was ample

evidence for the jury to conclude that Jones’ assault on Criswell caused Criswell

to suffer serious physical harm. Criswell consistently identified Jones’ assault on

him as the source of his spleen injury.        Criswell’s testimony was further

corroborated by the testimony of Nurse Bader and Dr. Sayre and the recording

from the jail’s surveillance camera which captured the incident. Therefore, we can

not find that Jones’ conviction for felonious assault was against the manifest

weight of the evidence.     Accordingly, Jones’ second assignment of error is

overruled.

                           Fourth Assignment of Error

       {¶27} In his fourth assignment of error, Jones claims that the Prosecutor

knowingly allowed Criswell to give false, misleading and prejudicial testimony



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which harmed his case. As the basis for his contention, Jones specifically takes

issue with Criswell’s testimony recounting the details of the altercation and

maintains that Criswell’s testimony was not credible.

       {¶28} Initially, we note that “the jury, as the trier of fact, is vested with the

power to judge the credibility of witnesses and to determine the weight to be

afforded to the evidence presented.” Croft v. State Farm Mutual Auto. Ins. Co., 3d

Dist. No. 1-01-72, 2002-Ohio-113, citing Swan v. Skeen (1974), 40 Ohio App.2d

307, 308-309, 319 N.E.2d 221. As discussed in the previous assignment of error,

the jury heard testimony from multiple witnesses concerning the incident between

Jones and Criswell in addition to viewing a video recording which captured the

event. There was also medical evidence presented supporting a finding that Jones

caused Criswell’s spleen to rupture. Furthermore, Jones’ testified on his own

behalf and was afforded an opportunity to provide his version of the incident in

order to refute Criswell’s testimony that Jones caused Criswell’s ruptured spleen.

       {¶29} The determination of Criswell’s credibility and the appropriate

weight to be given to his testimony rested within the province of the jury. In the

end, the jury felt that the evidence supported a finding that the prosecution proved

beyond a reasonable doubt that Jones caused Criswell serious physical harm.

Finally, Jones neither proffers nor points to any indication in the record that the




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Case No. 9-10-09



prosecutor knew any of Criswell’s testimony to be false. Therefore, having found

no prejudicial error to Jones, the fourth assignment of error is overruled.

                             Third Assignment of Error

       {¶30} In his third assignment of error, Jones argues that the trial court erred

to his prejudice by allowing the prosecutor to cross-examine him about his

previous felony convictions. Specifically, Jones maintains that the prosecution’s

intent in questioning him about his prior felony convictions was not for the

legitimate purpose of impeachment but to present impermissible character

evidence to obtain his conviction.

       {¶31} “The admission or exclusion of relevant evidence rests within the

sound discretion of the trial court.” State v. Sage (1987), 31 Ohio St.3d 173, 510

N.E.2d 343, paragraph two of the syllabus. We therefore review a trial court’s

decision regarding the admission of such evidence under an abuse of discretion

standard.   “Evidence of prior convictions is prohibited except under narrow

circumstances.” State v. Jackson, 3rd Dist. No. 14-10-09, 2010-Ohio-2297, at ¶

172, citing State v. Allen (1987), 29 Ohio St.3d 53, 55, 506 N.E.2d 199. One such

circumstance is for impeachment purposes when a defendant testifies.

Specifically, “evidence that the accused has been convicted of a crime is

admissible if the crime was punishable by death or imprisonment in excess of one

year * * * and if the court determines that the probative value of the evidence



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outweighs the danger of unfair prejudice, of confusion of the issues, or of

misleading the jury.” Evid.R. 609(A)(2).

       {¶32} In the instant case, the record indicates Jones’ counsel was the first

to elicit testimony from Jones discussing his criminal past by asking Jones about

his prior felony conviction for attempted robbery on direct examination. The

prosecution then cross-examined Jones more extensively on his criminal record

referring to prior judgment entries evidencing that Jones had been also convicted

of two burglary offenses and an assault on a police officer. Incidentally, Jones,

while on the stand, denied that he had been convicted for the assault on a police

officer charge and one of the burglary offenses.

       {¶33} The only evidence of Jones’ prior felony convictions objected to by

Jones’ counsel at trial, was evidence relating to Jones’ 1986 conviction for

felonious assault. However, the record indicates that in conformity with Evid.R

609(B) the prosecution supplied Jones with ample written notice via multiple

discovery-related filings that it intended to impeach Jones with convictions older

than ten years giving Jones sufficient opportunity to contest the use of the

evidence at trial.

       {¶34} After reviewing the record, we cannot conclude that the prosecution

elicited testimony from Jones about his prior felony convictions other than for the

permissible purpose of impeaching Jones’ credibility. Further, we note that the



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assault giving rise to this case occurred between two inmates while residing in a

correctional facility. Therefore, any prejudice to Jones concerning evidence of his

prior felony convictions was lessened due to the fact that Jones was serving time

in jail on a prior felony conviction at the time of trial. Accordingly, we do not find

that the trial court abused its discretion in permitting the prosecution to cross-

examine Jones about his prior felony convictions. Jones’ third assignment of error

is overruled.

                            Seventh Assignment of Error

       {¶35} In his seventh assignment of error, Jones argues that the trial court

abused its discretion when it denied his pre-trial motion for an expert witness and

extraordinary funds. With regard to this assignment of error, Jones maintains that

an expert witness could have reviewed Criswell’s medical records and determined

that Jones did not cause Criswell’s spleen injury.

       {¶36} The Supreme Court of Ohio has held that that due process requires

that an indigent criminal defendant be provided funds to obtain expert assistance at

state expense “only where the trial court finds, in the exercise of a sound

discretion, that the defendant has made a particularized showing (1) of a

reasonable probability that the requested expert would aid in his defense, and (2)

that denial of the requested expert assistance would result in an unfair trial.” State

v. Mason (1998), 82 Ohio St.3d 144, 150, 694 N.E.2d 932.



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       {¶37} Here, Jones failed to make a particularized showing to meet either of

these requirements. Jones never identified any specific expert or even a specific

field of expertise that would aid in his defense. Rather, Jones simply makes

blanket assertions that an expert “could” uncover other medical evidence

indicating that Jones was not the cause of Criswell’s injury and provide testimony

to that effect. Moreover, in his motion for an expert and on appeal, Jones simply

reiterates his contention that other inmates could have caused Criswell’s injury

and offers mere speculations that an unspecified “expert” could testify to that fact.

       {¶38} As discussed above, Jones was provided ample opportunity to

present his defense that other inmates may have caused Criswell’s injuries. As

part of Jones’ defense, three inmates in addition to Jones testified that it was

almost a daily occurrence for inmates to engage in “horseplay” which involved

throwing “body shots” at one another. Furthermore, Jones was given the same

opportunity as the prosecution to subpoena witnesses, including the doctors who

treated Criswell’s spleen injury. At trial, the prosecution offered the testimony Dr.

Sayre, the emergency room doctor who was the first to determine the serious

nature of the injury to Criswell’s spleen. Jones’ counsel cross-examined Dr. Sayre

about the possibility of other causes aside from Jones being responsible for

Criswell’s injury.   In addition, Criswell’s medical records from the Morrow




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County Hospital and Grant Medical Center were admitted into evidence for the

jury to review in their deliberations.

       {¶39} In sum, Jones failed to make a particularized showing of a

reasonable probability that an expert would aid in his defense, and that denial of

the requested expert assistance would result in him receiving unfair trial. Having

not met these requirements, we can not conclude that the trial court abused its

discretion when it denied Jones’ motion for an expert and extraordinary funds.

Jones’ seventh assignment of error is overruled.

                              Fifth Assignment of Error

       {¶40} In his fifth assignment of error, Jones maintains that his trial counsel

was ineffective for failing to review Criswell’s medical records kept by the Multi-

County Correctional Center.

       {¶41} Our review of this issue begins by noting that attorneys licensed by

the State of Ohio are presumed to provide competent representation. State v.

Hoffman (1998), 129 Ohio App.3d 403, 407, 717 N.E.2d 1149. An ineffective

assistance of counsel claim requires proof that trial counsel’s performance fell

below objective standards of reasonable representation and that the defendant was

prejudiced as a result. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d

373, paragraph two of the syllabus. In reviewing such a claim, courts are to afford

a high level of deference to the performance of trial counsel. Id. at 142, 538



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N.E.2d 373. Furthermore, tactical or strategic trial decisions, even if unsuccessful,

do not generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d

545, 558, 651 N.E.2d 965, 1995-Ohio-104. Rather, the errors complained of must

amount to a substantial violation of counsel’s essential duties to his client. See

Bradley, 42 Ohio St.3d at 141-142, 538 N.E.2d 373, quoting State v. Lytle (1976),

48 Ohio St.2d 391, 396, 358 N.E.2d 623, imposition of death penalty vacated by

Lytle v. Ohio (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (holding

Ohio’s death penalty scheme in effect at the time was unconstitutional).

       {¶42} Moreover, in order to show that a defendant has been prejudiced by

counsel’s deficient performance, the defendant must prove that there exists a

reasonable probability that, but for counsel’s errors, the outcome at trial would

have been different. Bradley, 42 Ohio St.3d at paragraph three of the syllabus,

538 N.E.2d 373. “Reasonable probability” is a probability sufficient to undermine

confidence in the outcome of the trial. Id. at 142, 538 N.E.2d 373.

       {¶43} In the present case, Jones’ sole contention that his trial counsel

provided him ineffective assistance is based on his counsel’s failure to review the

medical records kept by the Multi-County Correctional Center. Jones claims this

is significant because these medical records stated that Criswell was given a

medication called Zantac—a drug that reduces the amount of acid produced by the

stomach—at some point prior to Criswell’s altercation with Jones.              Jones



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maintains that this information “could” have been useful in his defense because it

indicated that Criswell “may have” suffered from a stomach ailment which Jones

conjectures “could actually have been a preexisting spleen injury that was

misdiagnosed.” (Appellant’s Supplemental Brief, at 7).

       {¶44} After reviewing the record before us, we find that Jones’ assertion

concerning the jail’s medical records amount to mere speculation and fail to

persuade us that a reasonable probability exists that had the jury have known

Zantac was given to Criswell at some point before Jones’ assault on Criswell the

outcome at trial would have been different. Moreover, as discussed above, both

Nurse Bader and Criswell testified that Criswell was not experiencing stomach

pains prior his altercation with Jones.

       {¶45} Furthermore, counsel’s decision regarding the admission of evidence

at trial falls within the category of trial tactics and strategy. State v. Pasqualone,

121 Ohio St.3d 186, 903 N.E.2d 270, 2009-Ohio-315, at ¶ 24. In reviewing this

assignment of error, we do not find that Jones complains of an error amounting to

a substantial violation of his trial counsel’s essential duties to Jones as his client.

Accordingly, we conclude that Jones’ trial counsel’s performance did not fall

below objective standards of reasonable representation. Based on the foregoing,

Jones’ fifth assignment of error is overruled.




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                        First and Sixth Assignment of Error

       {¶46} Because Jones’ two remaining assignments of error are substantially

similar, we elect to discuss them together. In his first and sixth assignments of

error, Jones maintains that the trial court erred when it found there was sufficient

evidence to designate him as a repeat violent offender.

       {¶47} When an appellate court reviews a 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. State v. Monroe, 105 Ohio St.3d

384, 392, 2005-Ohio-2282, citing State v. Jenks (1981), 61 Ohio St.3d 259,

superseded by state constitutional amendment on other grounds as stated in State

v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355. Sufficiency is a test of adequacy,

State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, and the question of

whether evidence is sufficient to sustain a verdict is one of law. State v. Robinson

(1955), 162 Ohio St. 486, superseded by state constitutional amendment on other

grounds as stated in Smith, supra.

       {¶48} Initially, we note that the court determined Jones to be a repeat

violent offender pursuant to R.C. 2929.14(D)(1)(a). The essential elements of the

repeat violent offender specification are set out in R.C. 2929.01(CC):




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       {¶49} “Repeat violent offender” means a person about whom both of the

following apply:

       (1)   The person is being sentenced for committing or for
       complicity in committing any of the following:

       (a)    Aggravated murder, murder, any felony of the first or
       second degree that is an offense of violence, or an attempt to
       commit any of these offenses if the attempt is a felony of the first
       or second degree;

       (b)    An offense under an existing or former law of this state,
       another state, or the United States that is or was substantially
       equivalent to an offense described in division (CC)(1)(a) of this
       section.

       (2)              The person previously was convicted of or
       pleaded guilty to an offense described in division (CC)(1)(a) or
       (b) of this section.

R.C. 2929.01(CC). (Emphasis added).

       {¶50} With regard to the first element, it undisputed that at the time of

sentencing Jones was being sentenced for committing felonious assault, a second

degree felony and an offense of violence.         As to the second element, the

prosecution presented to the court a certified Judgment Entry from Cuyahoga

County evidencing Jones’ previous conviction of felonious assault in 1986 which

was also a second degree felony and an offense of violence. Jones argues that the

Cuyahoga County Judgment Entry is insufficient to satisfy the second element of

the repeat violent offender specification because it fails to identify Jones as the

person convicted of the offense stated in the entry.


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       {¶51} As the basis for this contention, Jones points to a flaw in the

Cuyahoga County Judgment Entry which misstates Jones’ social security number

by one digit in one of the information fields. Despite this typographical error, the

Cuyahoga County Judgment Entry correctly states Jones’ social security number

in another portion of the entry and correctly states Jones’ date of birth.

Furthermore, at the bench trial regarding his designation as a repeat violent

offender, Jones admitted to the court that in 1986 he was previously convicted of

felonious assault in Cuyahoga County.

       {¶52} We do not find that a minor typographical error was enough to

negate the identification of Jones as the person convicted of second degree

felonious assault in the 1986 Cuyahoga County Judgment Entry in this instance—

especially when Jones admitted to the conviction on the record. Accordingly, we

find that there was sufficient evidence for the trial court to conclude beyond a

reasonable doubt that Jones had a previous conviction of a second degree felony

that was an offense of violence thereby satisfying the second element of the repeat

violent offender specification. Consequently, we find no error in the trial court’s

designation of Jones as a repeat violent offender and as such, Jones first and sixth

assignments of errors are overruled.




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       {¶53} For all these reasons, the judgment of the Marion County Court of

Common Pleas is affirmed.

                                                           Judgment Affirmed

WILLAMOWSKI, P.J. and ROGERS, J., concur.

/jnc




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