 [Cite as State v. Smigelski, 2019-Ohio-4561.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                               HOCKING COUNTY

 STATE OF OHIO,                  :
                                 :   Case No. 19CA6
      Plaintiff-Appellee,        :
                                 :
      vs.                        :   DECISION AND JUDGMENT
                                 :   ENTRY
 ANDREW M. SMIGELSKI,            :
                                 :
      Defendant-Appellant.       :   Released: 11/01/19
_____________________________________________________________
                           APPEARANCES:

 Andrew M. Smigelski, Sugar Grove, Ohio, Pro Se Appellant.

 Abigail M. Saving, Logan City Law Director, Logan, Ohio, for Appellee.
 _____________________________________________________________

 McFarland, J.

         {¶1} This is an appeal from a Hocking County Municipal Court

 judgment entry finding Appellant, Andrew M. Smigelski, guilty of

 menacing, a fourth degree misdemeanor, and sentencing him to a fine and

 two years of probation.

         {¶2} On appeal, Appellant asserts (1) “Defense counsel fell below an

 objective standard of reasonableness during the course of the case,” (2)

 “Prosecutor’s knowingly false statements improperly persuaded the trial

 judge during the bench trial,” (3) “Trial court’s decision to convict the

 defendant was in contradiction to the manifest weight of the evidence,” and
Hocking App. No. 19CA6                                                           2

(4) “Trial court’s decision was done with an absence of sufficiency of

evidence to support a conviction.”

         {¶3} Based upon our review of the law and the record, we overrule

Appellant’s assignments of error and affirm the judgment of the municipal

court.

                           PROCEDURAL HISTORY

         {¶4} Appellant became involved in a dispute with his neighbors, the

James family, that resulted in him being arrested and charged with inducing

panic, menacing, resisting arrest, and obstructing official business. The

menacing charge arose from his dispute with the James family. The

additional charges arose when police arrested Appellant at his house on the

menacing charge.

         {¶5} Shortly after his arrest, the State dismissed the inducing panic

charge and amended the menacing charge to aggravated menacing. The

State also served a warrant on Appellant to search his home. Appellant filed

a motion to suppress evidence alleging that the search warrant was invalid

on its face, which the State conceded at the suppression hearing. However,

even though the court granted Appellant’s motion to suppress, it does not

appear that ruling had any practical effect regarding Appellant’s case

because none of the charges pending at the time (aggravated menacing,
Hocking App. No. 19CA6                                                          3

obstructing official business and resisting arrest) were dismissed after the

motion was granted. Appellant waived his right to a jury trial and a bench

trial ensued.

      {¶6} The State’s first witness was Appellant’s neighbor, Mrs. Jessica

James, who testified that the day after putting a blue bulb in their porch light

in support of two slain Westerville police officers, a sign appeared in their

front yard that said “you must have a small penis,” which included a

drawing of male genitalia. She testified that she took the sign to the Logan

Police Department.

      {¶7} Mrs. James testified that approximately six months later on

Monday, September 10, 2018, she and her family were outside when

Appellant twice came out of his house, walked up the street and held up his

phone like he was taking a video of them. Mrs. James testified that the next

day, September 11th, she and her children were returning home when they

saw Appellant “screaming and yelling” that he wanted his sign back. Mrs.

James testified that led to a verbal exchange with Mrs. James making

statements in support of our military and police and Appellant making

statements against them, including accusations that members of Hocking

County law enforcement committed rape and theft. Mrs. James testified that

Appellant told her that because her family supported the “thin blue line,” she
Hocking App. No. 19CA6                                                        4

and her children would “get what was coming to us.” Mrs. James testified

that Appellant was “very aggressive and confrontational” during this

discussion and it scared her. Mrs. James testified that she reported the

incident and the theft of their light bulbs to the Logan Police Department.

      {¶8} Mrs. James testified that the next morning as she came out of her

house Appellant was on his porch again appearing to take video of her and

said “this is the person who threatened me yesterday.” She testified that she

told Appellant that her family had friends and family in law enforcement.

Mrs. James also reported this incident to the Logan police. Mrs. James’

complaint was taken by Officer Mowery, who had gone through the police

academy with her husband.

      {¶9} On cross examination, Mrs. James was asked if Appellant’s

actions of going in and out of his house scared her. Mrs. James testified that

Appellant’s actions did not scare her, but they confused her. However, on

re-direct examination, Mrs. James testified and clarified that she was fearful

on the occasion when Appellant told her that she and her children would get

what they had coming.

      {¶10} The State’s next witness was Mr. Kenneth James, who testified

that on September 11th Appellant was yelling and calling Mrs. James names

like “fat whore and a bitch and everything.” Mr. James testified that
Hocking App. No. 19CA6                                                      5

Appellant wanted his sign back. Mr. James also testified that Appellant was

disparaging the military and police. Mr. James testified that Appellant

became very aggressive toward his wife and looked at the James’s and said

“you and your kids will get what’s coming to you.”

      {¶11} The State’s next witness was Officer Josh Mowery of the

Logan Police Department, who testified that on September 12th he wrote up

Mrs. James’ complaint that alleged that the day before Appellant had

threatened her by stating that “her and her children would get what they had

coming to them.” The State then began playing video from Officer

Mowery’s body camera. The footage apparently showed Officer Mowery

approaching Appellant’s home regarding the James’s complaint. The video

showed Officer Mowery stating that he could see a hand gun on Appellant’s

couch so he asked Appellant to come out of his house, which Appellant

refused to do. Consequently, Officer Mowery testified that he requested the

SRT (Special Response Team).

      {¶12} The video showed Officer Mowery instructing Appellant to

come out because he was going to be arrested for menacing. The video

showed Appellant refusing to come out of his house and claiming he had

done nothing wrong. The video showed Officer Mowery informing

Appellant that if he did not come out additional charges could be filed. The
Hocking App. No. 19CA6                                                          6

video showed that after the SRT team arrived, a sheriff’s deputy negotiated

with Appellant through his front door.

      {¶13} The prosecutor told the court that she could continue with the

video, but informed the court that Appellant did not come out of the house

until the 26-minute mark. The court stated that he did not need to see any

more. Appellant’s counsel requested to see Appellant’s arrest, so the video

was fast-forwarded to that point. However, technical difficulties were

encountered with the playback of the video. While an attempt to fix the

video was undertaken, counsel communicated to the judge that a plea

agreement had been reached, so the case was continued.

      {¶14} Upon reconvening, Appellant changed his mind and wanted to

proceed with the trial. The State then asked the court to dismiss the counts

of obstructing official business and resisting arrest, and rested its case on the

aggravated menacing charge. The court then denied Appellant’s oral

Crim.R. 29 motion to dismiss the charge.

      {¶15} Appellant’s counsel requested to re-call Officer Mowery to the

stand because he had not had an opportunity to cross-examine him, which

the court granted. Appellant’s counsel played a portion of Officer Mowery’s

body camera recording of Mrs. James communicating her complaint, while

Officer Mowery occasionally answered counsel’s questions. Counsel asked
Hocking App. No. 19CA6                                                        7

Officer Mowery how long he had known Mrs. James and he responded:

“Twenty-five years, probably.”

      {¶16} During the video, Mrs. James told Officer Mowery she did not

feel threatened by Appellant. However, the video was paused and Officer

Mowery testified, explaining that Mrs. James did not feel threatened by

events that occurred that morning (September 12th), but she did feel

threatened by Appellant the day before (September 11th).

      {¶17} Appellant testified on his own behalf. However, most of his

testimony consisted of playing Officer Mowery’s body camera video of the

standoff and eventual arrest of Appellant with occasional pauses, during

which his counsel asked some questions. The video showed Officer

Mowery instructing Appellant to come out of his house because he was

wanted for menacing. The video also showed Officer Mowery informing

Appellant that if he did not come out he could face additional charges. In

the video Appellant repeatedly denied that he’d done anything wrong. In the

video Appellant stated “I am innocent. We had a talk yesterday, me and the

neighbors. There was no menacing involved.”

      {¶18} Appellant then testified that after he was arrested, he was

served with a search warrant. Appellant, reading from the warrant’s

affidavit, testified that Appellant came to the door of his house with a gun in
Hocking App. No. 19CA6                                                         8

his hand and officers backed away and called for additional units. Appellant

testified that he never had a gun is his hand.

      {¶19} After playing the video for a while, Appellant’s counsel

returned to the warrant, asking Appellant to read the highlighted portion of

the affidavit. This time the prosecutor objected on grounds of relevancy to

the menacing charge. Appellant’s counsel argued that it went to the officer’s

credibility. The prosecutor stated that the officer who was the affiant for the

warrant was not in court. Appellant’s counsel then argued it went to the

police department’s credibility as a whole. The court found that the warrant

was not relevant to the menacing charge. The remainder of the video was

played, culminating in Appellant’s arrest.

      {¶20} On cross examination, the prosecutor asked Appellant about

September 11, 2018, the day before his arrest. Appellant testified that when

he saw Mrs. James that day he asked for his sign back. Appellant testified

that he was not cordial toward Mrs. James, but he claimed that he was not

threatening. When asked if he did any “name calling” and used obscenities,

Appellant testified that he probably did, but could not recall any specific

words. Appellant testified that he denied telling Mrs. James that she and her

children would get what’s coming to them.
Hocking App. No. 19CA6                                                          9

       {¶21} After closing arguments, the court stated: “This is a case where

the trier of fact, me, has to make a decision based on the testimony and the

evidence presented at trial, not the videos [of the arrest] that took place, this

that and the other.” Ultimately, the court stated that:

        [t]he issue is what happened when there was a confrontation

        and that confrontation was threatening. It was menacing. It

        was not aggravated menacing.

             So based on the evidence that I’ve heard and the

        evidence presented, the Court is going to make a finding of

        the lesser included offense of a fourth degree menacing.

       {¶22} The court then proceeded to sentence Appellant, imposing a

fine, a suspended jail sentence, and two years of community control. It is

from this judgment entry that Appellant appeals, asserting three assignments

of error.

                        ASSIGNMENTS OF ERROR

   “I. DEFENSE COUNSEL FELL BELOW AN OBJECTIVE
       STANDARD OF REASONABLENESS DURING THE
       COURSE OF THE CASE.

   II. PROSECUTOR’S KNOWINGLY FALSE STATEMENTS
       IMPROPERLY PERSUADED THE TRIAL JUDGE DURING
       THE BENCH TRIAL.

   III. TRIAL COURT’S DECISION TO CONVICT THE
Hocking App. No. 19CA6                                                           10

      DEFENDANT WAS IN CONTRADICTION TO THE
      MANIFEST WEIGHT OF THE EVIDENCE.

   IV. TRIAL COURT’S DECISION TO CONVICT WAS DONE
      WITH AN ABSENCE OF SUFFICIENY OF THE EVIDENCE
      TO SUPPORT A CONVICTION.”

                        ASSIGNMENT OF ERROR I

      {¶23} Appellant alleges that his counsel was ineffective for (1) failing

to investigate, (2) failing to obtain and present evidence, and (3) failing to

impeach witness testimony.

      {¶24} “To establish constitutionally ineffective assistance of counsel,

a defendant must show (1) that his counsel's performance was deficient and

(2) that the deficient performance prejudiced the defense and deprived the

defendant of a fair trial.” State v. Carter, 4th Dist. Pickaway No. 18CA1,

2018-Ohio-4503, ¶ 13, citing Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[W]hen considering whether trial

counsel's representation amounts to deficient performance, ‘a court must

indulge a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance.’ ” Id. at ¶ 13, quoting

Strickland at 689. “Therefore, a defendant bears the burden to show

ineffectiveness by demonstrating that counsel's errors were ‘so serious’ that

counsel failed to function ‘as the “counsel” guaranteed * * * by the Sixth

Amendment.’ ” Id., quoting Strickland at 687.
Hocking App. No. 19CA6                                                      11

                            Failing to Investigate

      {¶25} “In any ineffectiveness case, a particular decision not to

investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel's

judgments.” State v. Bradley, 42 Ohio St.3d 136, 146, 538 N.E.2d 373

(1989), citing Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066.

      {¶26} Appellant essentially contends that his counsel failed to acquire

certain items through discovery, including a laundry list of “nearly two

dozen other pieces of evidence” that he compiled and provided to his

counsel. However, Appellant only generally describes these items (e.g.

department policies) and fails to show how failure to acquire these items

resulted in prejudice. We recognize counsel deference in not seeking

discovery of these items under Bradley.

                         Failing to Present Evidence

      {¶27} Appellant contends that counsel should have demanded that the

video from Officer Mowery’s body camera should have been played in its

entirety. In particular, he claims the un-played video would have shown that

Officer Mowery had known the James’s for years and that Mrs. James did

not feel threatened by Appellant’s actions. However, both of these issues

were brought out elsewhere during the trial so even accepting Appellant’s
Hocking App. No. 19CA6                                                        12

proffer of what the un-played video would have shown, there was no

prejudice.

                         Failing to Impeach Witnesses

      {¶28} Finally, Appellant alleges that his counsel failed to impeach

Mrs. James regarding their stolen blue light bulb. Appellant claims that Mrs.

James told Officer Mowery that Appellant had stolen their blue light bulb

and additionally said that when she had asked Appellant, he had responded

that he didn’t know what she was talking about. However, he claims at trial

Mrs. James testified that Appellant had not only taken the light, but also

claimed that Appellant admitted to taking it.

      {¶29} Appellant fails to cite the record where Mrs. James’ purported

statement to Officer Mowery can be located. However, for the sake of

argument, even accepting all of Appellant’s assertion as true, we find that

not impeaching Mrs. James on this issue was negligible and therefore not so

prejudicial as to deprive Appellant of a fair trial.

      {¶30} In sum, Appellant has failed to make a verifiable, valid

assertion that his counsel represented him in a deficient manner, let alone

prove any prejudice to the extent that it would have deprived him of a fair

trial. Therefore, we overrule Appellant’s first assignment of error.
Hocking App. No. 19CA6                                                        13

                       ASSIGNMENT OF ERROR II

       {¶31} Appellant argues that the prosecutor made factual

misrepresentations in her opening and closing statements. Specifically,

Appellant asserts that the prosecutor made a misrepresentation in her

opening statement by stating that “[p]erhaps the video will show that that’s

what was initially was set out to do, a question and answer session that

resulted in, you know, [Appellant’s] arrest.” Appellant claims Officer

Mowery intended on arresting Appellant even before he got to Appellant’s

residence so the prosecutor’s statement in her opening statement was

misleading.

       {¶32} Appellant also claims that the prosecutor made a

misrepresentation in her closing argument as well by stating that Mr. and

Mrs. James both testified that Appellant pointed a finger at Mrs. James,

when in fact Mrs. James never mentioned that Appellant pointed a finger at

her.

       {¶33} “The test for prosecutorial misconduct is whether the remarks

were improper and, if so, whether they prejudicially affected the accused's

substantial rights.” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445,

25 N.E.3d 1023, ¶ 110, citing State v. Smith, 14 Ohio St.3d 13, 14, 470

N.E.2d 883 (1984). “The touchstone of the analysis ‘is the fairness of the
Hocking App. No. 19CA6                                                       14

trial, not the culpability of the prosecutor.’ ” Id., quoting Smith v.

Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

      {¶34} The alleged misrepresentation from the opening statement

pertains to Appellant’s arrest for menacing, not the menacing charge itself.

And, the discrepancy between Mr. James’ testimony that Appellant pointed

his finger at Mrs. James, but she did not, is deminimus, especially when

considered in light of the remaining evidence. Therefore, even assuming

that these statements were misleading, we find that their impact on

Appellant’s right to a fair trial was negligible.

      {¶35} Furthermore, “[i]t is well settled that statements made by

counsel in opening statements and closing arguments are not evidence.”

State v. Frazier, 73 Ohio St.3d 323, 338, 1995-Ohio-235, 652 N.E.2d 1000.

And “judges are presumed in a bench trial to rely only upon relevant,

material, and competent evidence.” State v. Fox, 69 Ohio St.3d 183, 189,

631 N.E.2d 124 (1994). Here, because there is no evidence to rebut this

presumption, we also find that the trial judge reached his conclusion that

Appellant was guilty of menacing by relying on the evidence, and not on

statements made by counsel during their opening and closing statements.
Hocking App. No. 19CA6                                                        15

      {¶36} As such, we find that the prosecutor’s statements did not affect

Appellant’s substantial rights. Accordingly, we overrule Appellant’s second

assignment or error.

                  ASSIGNMENTS OF ERROR III AND IV

      {¶37} Appellant asserts that his conviction is not supported by

sufficient evidence and is also against the manifest weight of the evidence.

We will begin our analysis by examining the weight of the evidence.

       {¶38} “When determining whether a criminal conviction is against

the manifest weight of the evidence, we ‘will not reverse a conviction where

there is substantial evidence upon which the [trier of fact] could reasonably

conclude that all the elements of an offense have been proven beyond a

reasonable doubt.’ ” State v. Washington, 4th Dist. Scioto No. 09CA3303,

2010-Ohio-5366, ¶ 13, citing State v. Eskridge, 38 Ohio St.3d 56, 526

N.E.2d 304 (1988), paragraph two of the syllabus. We “ ‘must review the

entire record, weigh the evidence and all reasonable inferences, consider the

credibility of the witnesses, and determine whether, in resolving conflicts in

the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial

granted.’ ” Id., quoting State v. Smith, 4th Dist. Pickaway No. 06CA7,
Hocking App. No. 19CA6                                                         16

2007-Ohio-502 at ¶ 41, citing State v. Garrow, 103 Ohio App.3d 368, 370-

371, 659 N.E.2d 814 (4th Dist. 1995).

      {¶39} “A reviewing court must bear in mind, however, that credibility

generally is an issue for the trier of fact to resolve.” State v. Adams, 4th

Dist. Lawrence No. 15CA2, 2016-Ohio-7772, ¶ 21, 84 N.E.3d 155, citing

State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904, State v. Murphy, 4th

Dist. Ross No. 07CA2953, 2008-Ohio-1744, 2008 WL 1061793, ¶ 31. And

“a defendant is not entitled to reversal on manifest weight grounds merely

because certain aspects of a witness's testimony are not credible or were

inconsistent or contradictory.” Id., at ¶ 35, see, e.g., State v. Wade, 8th Dist.

Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38, citing State v. Asberry, 10th

Dist. Franklin No. 04AP–1113, 2005-Ohio-4547, ¶ 11.

      {¶40} Appellant was found guilty of committing menacing in

violation of R.C. 2903.22(A), which in pertinent part states: “No person

shall knowingly cause another to believe that the offender will cause

physical harm to the person or property of the other person, the other

person's unborn, or a member of the other person's immediate family.”

(Emphasis added.)

      {¶41} Mrs. James testified that Appellant stated that because her

family supported the “thin blue line,” she and her children would “get what
Hocking App. No. 19CA6                                                       17

was coming to us.” She testified that statement made her fearful. The

testimony of both her husband and Officer Mowery corroborated Mrs.

James’ testimony in this regard.

      {¶42} The only evidence in this case was witness testimony. Clearly,

the judge found the testimony of the State’s witnesses sufficiently credible to

convict Appellant because he found that Mrs. James’ statement that

Appellant told her that she children would get what’s coming to them was

“threatening,” and consequently found Appellant guilty of the lesser offense

of menacing.

      {¶43} In reviewing the record, we note that on cross examination,

Mrs. James was asked if Appellant’s “going in and out of his house when

you guys were in the back yard” scared her. She testified that it confused

her, but did not scare her. At first blush this testimony appears to contradict

her assertion that Appellant’s actions had scared her. However, this

testimony pertained to Appellant’s actions on September 10th when

Appellant came out of his house and appeared to film the James’s. Her fear

arose on September 11th when Appellant threatened Mrs. James and her

children, as is evident in her testimony on redirect examination when the

prosecutor asked her: “when would you say that you developed the fear?”

Mrs. James answered: “When he – when he told me that me and my children
Hocking App. No. 19CA6                                                         18

were going to get what we had coming to us.” Her testimony in this regard

was also corroborated by both her husband and officer Mowery.

      {¶44} In reviewing the remainder of the record, weighing the

evidence and all reasonable inferences, considering the credibility of the

witnesses, and resolving conflicts in the evidence, we find that the judge did

not clearly lose his way so as create such a manifest miscarriage of justice

that the conviction must be reversed and a new trial granted. Accordingly,

Appellant’s conviction is not against the weight of the evidence.

      {¶45} “When an appellate court concludes that the weight of the

evidence supports a defendant's conviction, this conclusion necessarily also

includes a finding that sufficient evidence supports the conviction.” State v.

Adkins, 4th Dist. Lawrence No. 13CA17, 2014-Ohio-3389, ¶ 27.

Accordingly, we overrule Appellant’s third and fourth assignments of error.

                                 Conclusion

      {¶46} Having overruled all of Appellant’s assignments of error, we

affirm the municipal court’s judgment.

                                              JUDGMENT AFFIRMED.
Hocking App. No. 19CA6                                                       19

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Hocking County Municipal Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Abele, J. & Hess, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
