[Cite as State v. Szarell, 2019-Ohio-5175.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :       Hon. Craig R. Baldwin, J.
                                              :       Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
DUSTIN D. SZARELL                             :       Case No. 2019 CA 00028
                                              :
        Defendant-Appellant                   :       OPINION




CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 2018 CR 00924




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     December 9, 2019




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

JENNY GONZALEZ-WELLS                                  JAMES ANZELMO
20 South Second Street                                446 Howland Drive
Fourth Floor                                          Gahanna, OH 43230
Newark, OH 43055
Licking County, Case No. 2019 CA 00028 2



Wise, Earle, J.

          {¶ 1} Defendant-Appellant Dustin D. Szarell appeals the April 4, 2019 judgement

of conviction and sentence of the Court of Common Pleas of Licking County, Ohio.

Plaintiff-Appellee is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

          {¶ 2} On December 11, 2018, appellant and his wife Danielle went to

Reynoldsburg to visit Danielle's mother Luan Smith. Danielle was 8 months pregnant at

the time. While at Smith's home, Danielle was using appellant's phone because hers had

a dead battery. While using the phone, Danielle saw something on appellant's phone that

upset her and she confronted appellant.

          {¶ 3} The two began arguing. When the argument got loud Luan asked them to

stop, but they continued. Appellant then walked over to Danielle, who was seated on a

loveseat, and rammed his knee into Danielle's thigh. Luan noted that Appellant rammed

Danielle so hard that Danielle's belly shifted. Danielle immediately began crying.

          {¶ 4} Luan told appellant she was calling police. While she was on the phone,

appellant was on his knees begging Danielle to refrain from "sending him to jail." He then

got up and became loud and confrontational again. Luan told him to leave and he

complied.

          {¶ 5} Reynoldsburg Police Officer Hanna Evans responded to Smith's home at

approximately 5:45 p.m. She found Danielle upset, her face flushed, and her eyes red.

Medics who were on standby came in to take a look at Danielle. She had no observable

injury.
Licking County, Case No. 2019 CA 00028 3


       {¶ 6} While that was going on, Reynoldsburg Police Officer Nathan Grodhaus

attempted unsuccessfully to locate appellant. He then joined Officer Evans who was

speaking with Danielle. Danielle refused transport to the emergency room, and did not

submit a written statement.

       {¶ 7} Appellant was subsequently charged with domestic violence, a felony of the

fifth degree. He pled not guilty and opted to proceed to a jury trial which took place on

April 4, 2019. The state presented evidence from Smith, Evans, and Grodhaus who

provided the above outlined facts. Appellant presented evidence from Danielle who

testified appellant simply "nudged" her leg.

       {¶ 8} After hearing all the evidence and deliberating, the jury found appellant

guilty as charged. He was sentenced to a mandatory 6 months incarceration.

       {¶ 9} Appellant filed an appeal and the matter is now before this court for

consideration. He raises three assignments of error as follow:

                                               I

       {¶ 10} "DUSTIN SZARELL'S CONVICTION IS BASED ON INSUFFICIENT

EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION."

                                               II

       {¶ 11} "DUSTIN SZARELL'S CONVICTION IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF

THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION."
Licking County, Case No. 2019 CA 00028 4




                                             III

       {¶ 12} "DUSTIN     SZARELL      RECEIVED       INEFFECTIVE       ASSISTANCE       OF

COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT OT THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."

                                            I, II

       {¶ 13} We address appellant's first and second assignments of error together. In

his first assignment of error, appellant argues his conviction is not supported by sufficient

evidence. In his second assignment of error, he argues his conviction is against the

manifest weight of the evidence. We disagree.

       {¶ 14} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing

court is to examine the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of witnesses 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. Martin, 20 Ohio
Licking County, Case No. 2019 CA 00028 5


App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio

St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only

in the exceptional case in which the evidence weighs heavily against the conviction."

Martin at 175.

      {¶ 15} Appellant was charged with domestic violence pursuant to R.C. 2919.25(A)

and (D)(1)(5) which provides:



      (A) No person shall knowingly cause or attempt to cause physical harm to a family

      or household member.

      ***

      (D)(1) Whoever violates this section is guilty of domestic violence, and the court

      shall sentence the offender as provided in divisions (D)(2) to (6) of this section.

      ***

      (5) Except as otherwise provided in division (D)(3) or (4) of this section, if the

      offender knew that the victim of the violation was pregnant at the time of the

      violation, a violation of division (A) or (B) of this section is a felony of the fifth

      degree, and the court shall impose a mandatory prison term on the offender

      pursuant to division (D)(6) of this section * * * .



      {¶ 16} Appellant argues that the evidence failed to show he caused or attempted

to cause harm to Danielle, focusing on the lack of any visible injury. But the victim of a

domestic violence need not suffer actual physical harm in order to support a conviction

under R.C. 2919.25(A). Rather, an attempt to cause harm is sufficient. State v. Ford, 5th
Licking County, Case No. 2019 CA 00028 6


Dist. Stark No. 2012CA142, 2013-Ohio-1883 ¶ 16. Smith described and demonstrated for

the jury appellant's attempt to cause physical harm by ramming his knee into Danielle's

thigh "it looked like as hard as he could." T. 81. This action by appellant is sufficient to

support the element of causing or attempting to cause harm. We therefore reject

appellant's sufficiency argument.

       {¶ 17} Appellant next argues his conviction is against the manifest weight of the

evidence because Smith was not believable vis-a-vis Danielle. It is well settled, however,

that the weight to be given to the evidence and the credibility of the witnesses are issues

for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990). The jury

was free to accept or reject any or all of the evidence offered by the parties and assess

the witness's credibility. Indeed, the jurors need not believe all of a witness's testimony,

but may accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604,

2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

Upon review, we find nothing to indicate the jury in this matter lost it way in making its

credibility determinations and believing Smith over Danielle.

       {¶ 18} Appellant's first and second assignments of error are overruled.

                                             III

       {¶ 19} In his final assignment of error, appellant argues his counsel rendered

ineffective assistance by failing to request the trial court waive court costs. We disagree.

       {¶ 20} To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell

below an objective standard of reasonable representation, and (2) that counsel's errors

prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the
Licking County, Case No. 2019 CA 00028 7


result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–

688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable

probability” is “probability sufficient to undermine confidence in the outcome.” Strickland

at 694, 104 S.Ct. 2052.

       {¶ 21} We have previously addressed this issue in State v. Davis, 5th Dist. Licking

No. 17-CA-55 2017-Ohio-9445, wherein we determined the following at ¶ 27:



              We find no merit in Appellant's allegation that he received ineffective

              assistance of counsel as a result of his attorney failing to request that

              the trial court waive court costs. Because R.C. 2947.23(C) grants

              appellant the ability to seek waiver of costs at any time, including

              after sentencing, Appellant has not been prejudiced by the failure of

              his counsel to request a waiver at sentencing.



       {¶ 22} In support of his argument that failure of counsel to request a waiver of court

costs at sentencing constitutes ineffective assistance, appellant cites State v. Springer,

8th Dist. Cuyahoga No. 104649, 2017-Ohio-8861. Springer conflicts with our decision in

Davis, and that matter has been accepted for review by the Supreme Court of Ohio upon

our certification of a conflict. We held in State v. Ramsey, 5th Dist. Licking No. 17-CA-76,

2018-Ohio-2365, as we hold here; “[u]nless a decision is rendered on the issue to the

contrary in the future, this Court will continue to abide by its decision in Davis.” Id. See
Licking County, Case No. 2019 CA 00028 8


also State v. Somers, 5th Dist. Muskingum No. CT2018-0013, 2018-Ohio-4625; State v.

Bowen, 5th Dist. Muskingum No. CT2017-0103, 2018-Ohio-4220.

      {¶ 23} Appellant's final assignment of error is overruled.

      {¶ 24} The judgment of the Licking County Court of Common Pleas is affirmed.




By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.




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