[Cite as State v. Hoffmeyer, 2014-Ohio-3578.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                         C.A. No.        27065

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
SAMUEL D. HOFFMEYER                                   COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 12 09 2777

                                 DECISION AND JOURNAL ENTRY

Dated: August 20, 2014



        WHITMORE, Judge.

        {¶1}    Appellant, Samuel D. Hoffmeyer, appeals his conviction and sentence from the

Summit County Court of Common Pleas. This Court affirms.

                                                  I

        {¶2}    On the night of September 25, 2012, Akron Police Officer Greg Joyce and his

partner were inside the Sheetz gas station on the corner of Main and Waterloo Road. A customer

entered the store and told them that a truck had just crashed in the parking lot. Officer Joyce and

his partner went out to investigate and to see if there were any injuries.

        {¶3}    Officer Joyce observed a maroon truck crashed over the guardrail separating

Sheetz from a neighboring business. There was no one inside the truck. As Officer Joyce

looked for the driver, he observed someone running in the neighboring parking lot. Officer

Joyce pursued that individual who was eventually apprehended and identified as Hoffmeyer.

Officer Joyce noticed a very strong odor of an alcoholic beverage emanating from Hoffmeyer
                                                 2


and that his speech was slurred. Hoffmeyer claimed that a woman, whom he had met at a bar,

was driving the truck. He claimed that he did not know the woman’s name, where she had gone,

or any other information about her. Officer Joyce did not observe any woman in the vicinity of

the crashed truck.

       {¶4}    Because the Sheetz store in question straddles the border of the City of Akron and

Coventry Township, Deputy Brad Tackett of the Summit County Sheriff’s Office also

responded. As Hoffmeyer exited Officer Joyce’s cruiser, Deputy Tackett noticed him stumbling.

In addition, Deputy Tackett smelled the odor of an alcoholic beverage coming from Hoffmeyer

and observed that he had glassy, watery eyes. Deputy Tackett administered field sobriety tests to

Hoffmeyer and placed him under arrest.

       {¶5}    From store employees, Deputy Tackett learned there was video surveillance of the

accident. Deputy Tackett reviewed a portion of the videotape with the store manager and

requested a copy from the store’s corporate office. A few days later, Deputy Tackett picked up

the copy of the video, reviewed it, and placed it in the evidence room at the Sheriff’s Office.

       {¶6}    The grand jury indicted Hoffmeyer for operating a vehicle under the influence of

alcohol or drugs (“OVI”) in violation of 4511.19(A)(1)(a), a felony of the fourth degree because

Hoffmeyer had five similar convictions within twenty years of the current offense. See R.C.

4511.19(G)(1)(d). The indictment included a prior convictions specification pursuant to R.C.

2941.1413. The matter proceeded to a jury trial.

       {¶7}    Officer Joyce and Deputy Tackett were the only witnesses to testify at the trial.

Over defense counsel’s objections, the State played portions of the Sheetz surveillance video.

Officer Joyce identified himself in the video as he enters the parking lot and approaches the
                                                3


crash. The State, then, rewound the video approximately three minutes. At that time, the video

shows a maroon truck enter the parking lot and crash into the guardrail.

       {¶8}     Viewing another angle from the video surveillance, Officer Joyce identified the

Sheetz gas pumps and a vehicle that “appeared to be the same vehicle that crashed in the parking

lot.” He verified that the time matched the time of the crash in the prior angle. Officer Joyce

identified the driver of the crashed vehicle as a male with facial hair from an angle of the video

surveillance that captured images of drivers’ faces as they entered the Sheetz parking lot. Officer

Joyce further testified that the driver was wearing clothes that matched Hoffmeyer’s clothes

when he was apprehended. He again verified that the time corresponded with that in the other

video angles.

       {¶9}     Deputy Tackett, who had arrived on scene later, confirmed the video accurately

depicted the location of the maroon truck when he arrived. Deputy Tackett testified as to how he

obtained the video. During his investigation, Deputy Tackett determined that the truck was

registered to a business owned by Hoffmeyer. The parties stipulated that Hoffmeyer had been

convicted of five prior OVI offenses in the past twenty years.

       {¶10} The jury found Hoffmeyer guilty of the OVI. The jury also found Hoffmeyer

“guilty” of five prior convictions within twenty years. The court sentenced Hoffmeyer to twelve

months of incarceration for the OVI and four years of incarceration for the prior convictions

specification, to be served consecutively. The court also ordered Hoffmeyer to participate in a

substance abuse program while incarcerated and suspended his driver’s license for his lifetime.

       {¶11} Hoffmeyer appeals from his conviction and sentence, raising three assignments of

error for our review.
                                                 4


                                                 II

                                Assignment of Error Number One

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       ADMITTING SURVEILLANCE VIDEOTAPE OF A CAR CRASH IN
       VIOLATION OF THE RULES OF EVIDENCE.

       {¶12} Hoffmeyer argues the trial court improperly admitted the surveillance video from

Sheetz. More specifically, he argues that the video is hearsay that does not qualify under the

business record exception, that the video was not properly authenticated, and that the officers

provided impermissible lay opinions about the video. We disagree.

       {¶13} The admission of videotape evidence is a matter of discretion for the trial court.

State v. Miller, 9th Dist. Lorain Nos. 10CA009922 & 10CA009915, 2012-Ohio-1263, ¶ 35.

Accord State v. Turner, 9th Dist. Summit No. 26591, 2013-Ohio-2433, ¶ 23. This Court will not

reverse a trial court’s admission of a video absent an abuse of discretion. Miller at ¶ 35. An

abuse of discretion implies that the trial court was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

Hearsay

       {¶14} First, Hoffmeyer argues that the surveillance video is hearsay. According to

Hoffmeyer, the State was required to present testimony of a record custodian from Sheetz to

qualify the video for the business records exception to hearsay. See Evid.R. 803(6).

       {¶15} Hearsay is an out-of-court “statement” offered for the truth of the matter asserted.

Evid.R. 801(C). Pursuant to Evid.R. 801(A), a statement is “(1) an oral or written assertion or

(2) nonverbal conduct of a person, if it is intended by the person as an assertion.” In order to fall

under the definition of hearsay, nonverbal conduct must be “intended by the actor to convey his
                                                  5


thoughts to another.” State v. Kniep, 87 Ohio App.3d 681, 685 (9th Dist.1993) (video showing

six-month old child crying was not hearsay).

       {¶16} In the instant matter, Hoffmeyer is not attempting to convey his thoughts to

another by his conduct in the video. The video shows a man driving a maroon truck into the

Sheetz parking lot, crashing, and fleeing on foot. The surveillance video is not a “statement” as

that term is defined in Evid.R. 801(A), and therefore, not hearsay under Evid.R. 801(C). The

trial court did not err in declining to require that it meet the business records exception for

hearsay.

Authentication

       {¶17} Next, Hoffmeyer argues that the portion of the video showing the crash should

have been excluded because neither witness observed the crash as it happened nor did they

testify to the reliability of Sheetz’s video surveillance system.

       {¶18} Before evidence may be admitted, it must be authenticated or identified

sufficiently “to support a finding that the matter in question is what its proponent claims.”

Evid.R. 901(A). The threshold for admissibility is low. State v. Caldwell, 9th Dist. Summit No.

14720, 1991 WL 259529, *7 (Dec. 4, 1991). “The proponent need not offer conclusive evidence

as a foundation but must merely offer sufficient evidence to allow the question as to authenticity

or genuineness to reach the jury.”        Id.   The proponent has the burden to demonstrate a

“reasonable likelihood” the evidence is authentic.        State v. Freeze, 12th Dist. Butler No.

CA2011-11-209, 2012-Ohio-5840, ¶ 65.

       {¶19} Photographic evidence, including videotapes, can be admitted under a “pictorial

testimony” theory or a “silent witness” theory. Midland Steel Prods. Co. v. U.A.W. Local 486,

61 Ohio St.3d 121, 129-130 (1991). Under the pictorial testimony theory, evidence is admissible
                                                6


“when a sponsoring witness can testify that it is a fair and accurate representation of the subject

matter, based on that witness’ personal observation.” Id. at 129. The person who took the

photograph or video need not testify as long as the witness who does testify verifies that it is a

“fair and accurate depiction.” Freeze at ¶ 66. Under the silent witness theory, evidence is

admissible “upon a sufficient showing of the reliability of the process or system that produced

the evidence.” Midland Steel at 130.

       {¶20} Hoffmeyer argues that the video cannot be admitted under the “silent witness”

theory because no witness testified to the reliability of Sheetz’s surveillance system. Assuming,

without deciding, that the video could not be admitted under the silent witness theory, it still

might be admissible under the pictorial testimony theory.

       {¶21} Hoffmeyer contends the pictorial testimony theory is “strictly limited to

photographs, not videotapes, which must be authenticated under the ‘silent witness’ theory.” We

disagree. In Midland Steel, the Ohio Supreme Court explicitly identified “two of the methods for

authenticating photographic evidence like videotapes.” (Emphasis added.) Midland Steel at 129.

The Supreme Court, then, outlined the pictorial testimony and the silent witness theories. Id. at

129-130. In addition, both Midland Steel and Freeze dealt with the admissibility of evidence

obtained from surveillance videos. Midland Steel at 129-130; Freeze at ¶ 63-70.

       {¶22} In Freeze, a series of robberies were committed in two communities. Freeze at ¶

2. As part of their investigation, officers reviewed surveillance videos of the establishments and

at least one nearby business. Id. at ¶ 6, 16, 20. The State introduced evidence from these

surveillance videos at trial.   In ruling the evidence admissible, the Twelfth District discussed

both the pictorial testimony and the silent witness theories, but did not explicitly state which

theory it was applying to the evidence. Id. at ¶ 66-67. For each of the challenged exhibits, an
                                                 7


officer testified to obtaining the security images and that what was introduced at trial was an

accurate representation of what he viewed in the course of his investigation. A person who was

present during the robberies also testified regarding two of three challenged sets of exhibits. But,

as to the surveillance video and still photographs of a third robbery location, only the officer

testified. The officer testified that, as part of his investigation, he viewed and obtained a copy of

the video from a neighboring business. The video was of the road and alley outside the store that

had been robbed. The video showed a car matching the defendant’s drive by the store on the

morning of the robbery, and later, drive by and park behind a dumpster. Id. at ¶ 20, 70. The time

and date stamp on the video matched the time of the robbery in question. Id. at ¶ 70. The officer

testified that both the video and the still images were “accurate representations of what he

originally viewed.” Id. The officer further identified the location of the video camera, the store

that had been robbed, and the neighboring business.          Id.   The court held the video and

photographic evidence regarding all three robberies was admissible.

       {¶23} We find Freeze to be persuasive, and the facts of our case to be similar, if not

stronger, on the authentication issue. In Freeze, none of the officers who testified were present

during the robberies. Rather, they testified that the videos and photographs that were shown to

the jury were accurate representations of the videos that they had viewed in the course of their

investigation. Id. at ¶ 68-70. In our case, Officer Joyce and Deputy Tackett both viewed the

crash scene within minutes of it occurring.

       {¶24} Deputy Tackett testified that he reviewed a portion of the surveillance video at

Sheetz on the night of the accident as part of his investigation. He, then, requested a copy of the

video, and, upon receipt, he again reviewed it and placed it in the sheriff’s evidence room.

Deputy Tackett personally observed the truck approximately ten minutes after the crash, and
                                                  8


testified that the video accurately represents the truck where he observed it. He further identified

the area in the video where he administered the field sobriety tests to Hoffmeyer.

       {¶25} Officer Joyce identified himself in the video as he enters the parking lot and

approaches the crash. He also identified his partner in the video. Officer Joyce testified that he

observed a maroon pickup truck on the other side of the guardrail, on the outskirts of the parking

lot. He testified as to his observation of the truck and the damage to the guardrail. Officer Joyce

further verified when he exited the video and testified about his investigation both while he was

in the video and after he exited it. He confirmed that the video truly and accurately depicted

what he personally observed and the Sheetz station on the night in question. When shown angles

of the video that he was not personally in, Officer Joyce verified that the time stamp

corresponded to the time stamp on the angle in which he was seen.

       {¶26} While the State showed approximately three minutes of the video prior to Officer

Joyce entering the parking lot, the jury was free to accept the video as authentic or to decide that

it did not accurately portray the events leading up to the crash. See Caldwell, 1991 WL 259529,

at *7. Each time Deputy Tackett and Officer Joyce testified that the video accurately portrayed

the Sheetz location on the night in question, they “impliedly authenticated” the portion of the

video depicting events that occurred just minutes prior to their arrival in the parking lot. See

Midland Steel, 61 Ohio St.3d at 130. Because the videotape “depicted these known features

accurately, it was likely that it also depicted the [other actions] accurately.” See id.

       {¶27} Under the facts of this case, the State met its Evid.R. 901 burden. The video was

admissible evidence with the weight to be afforded it being a matter for the jury. See Caldwell at

*7.
                                                  9


Lay Opinion

       {¶28} Finally, Hoffmeyer argues that the witnesses offered impermissible lay opinion

testimony. We note that Hoffmeyer’s assignment of error challenges only the admission of the

“surveillance videotape of a car crash.” “An appellant’s assignment of error provides this Court

with a roadmap and directs its analysis of the trial court’s judgment.” State v. Lortz, 9th Dist.

Summit No. 23762, 2008-Ohio-3108, ¶ 24 (declining to address “expert opinion” argument when

assignment of error only challenged “inadmissible hearsay testimony”).              Hoffmeyer’s

assignment of error does not contain any assertion that the trial court erred in admitting lay

opinion testimony.

       {¶29} In addition, Hoffmeyer has not cited us to where in the record either witness

presented lay opinion testimony.       Rather, Hoffmeyer argues generally that “the witnesses’

observation of the video recording [ ] in State’s Exhibit #3 was inadmissible lay opinion

testimony.” Hoffmeyer has not articulated what specific “observation” amounted to “lay opinion

testimony.” “It is not the duty of this Court to search the record for evidence to support

defendant’s argument of an alleged error.” State v. Long, 9th Dist. Summit No. 25249, 2011-

Ohio-1050, ¶ 8, quoting State v. Porter, 9th Dist. Summit No. 18384, 1997 WL 803070, *4 (Dec.

24, 1997). We decline to address Hoffmeyer’s undeveloped argument. See App.R. 16(A)(7) (an

appellant shall include citations to the parts of the record on which he relies).

Prejudice

       {¶30} To the extent that Hoffmeyer argues admission of the videotape was “highly

prejudicial,” we disagree. Hoffmeyer contends he was prejudiced because “the only other

evidence of his offense for operating under the influence of alcohol or drugs came from Deputy

Tackett’s observations of field sobriety tests given to Hoffmeyer,” two of which he passed.
                                               10


Contrary to Hoffmeyer’s assertions, the field sobriety test and the video were not the only

evidence presented to the jury.

       {¶31} Both Officer Joyce and Deputy Tackett testified that they observed a maroon

truck, which had crashed into a guardrail. Deputy Tackett testified that the truck belonged to

Hoffmeyer’s business. Officer Joyce, who had been in the Sheetz’s store and entered the parking

lot almost immediately after the crash, testified that no one was in the truck. As he searched for

the driver, he observed someone running, who was later apprehended and identified as

Hoffmeyer. Although Hoffmeyer claimed that a woman he had met at a bar was driving, Officer

Joyce testified that he did not locate a woman, or any other pedestrians, in the immediate area of

the crash. These circumstances support a finding that Hoffmeyer was operating the vehicle.

       {¶32} Officer Joyce and Deputy Tackett also testified regarding their personal

observations of Hoffmeyer, which were consistent with an individual who was under the

influence of alcohol.    There was a strong odor of an alcoholic beverage emanating from

Hoffmeyer. Officer Joyce also noted Hoffmeyer’s slurred speech. Deputy Tackett observed

Hoffmeyer stumbling and that he had glassy, watery eyes.           In addition, when questioned

following the crash, Hoffmeyer claimed to have met a woman at a bar and indicated that he had a

few drinks prior to the crash.

       {¶33} Even without the portion of the video showing the crash and testimony regarding

it, there was evidence presented from which the jury could have concluded that Hoffmeyer had

operated his vehicle under the influence of alcohol, a drug of abuse, or a combination of them.

See R.C. 4511.19(A)(1)(a). Therefore, Hoffmeyer has not demonstrated that he suffered any

prejudice.

       {¶34} Hoffmeyer’s first assignment of error is overruled.
                                                  11


                                 Assignment of Error Number Two

       TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       SENTENCING HOFFMEYER FOR OPERATING UNDER THE INFLUENCE
       OF ALCOHOL OR DRUGS AS A FOURTH DEGREE FELONY WITH A
       SENTENCE ENHANCEMENT INSTEAD OF A FIRST DEGREE
       MISDEMEANOR, BECAUSE THE JURY VERDICT DID NOT INCLUDE
       THE DEGREE OF THE OFFENSE, NOR ANY AGGRAVATING ELEMENTS
       AS REQUIRED UNDER R.C. 2945.75(A)(2) AND STATE V. PELFREY.

       {¶35} In his second assignment of error, Hoffmeyer argues that the jury verdict form

was defective under R.C. 2945.75(A)(2) and State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-

256. Consequently, he argues, he can only be sentenced for a first degree misdemeanor and not a

fourth degree felony. We disagree.

       {¶36} R.C. 2945.75(A)(2) provides:

       When the presence of one or more additional elements makes an offense one of
       more serious degree * * * [a] guilty verdict shall state either the degree of the
       offense of which the offender is found guilty, or that such additional element or
       elements are present.

Pursuant to this statutory language, a jury’s verdict form must include either the degree of the

offense or a statement that an aggravating element has been found to justify convicting a

defendant of a greater degree of a criminal offense. Pelfrey at syllabus. The inclusion of either

the degree of the offense or the additional element needed to enhance the conviction is sufficient

to satisfy the statute. See Long, 2011-Ohio-1050, at ¶ 18.

       {¶37} An OVI offense can be a misdemeanor, a first degree misdemeanor, a fourth

degree felony, or a third degree felony. R.C. 4511.19(G)(1)(a)-(e). The degree of an OVI

offense depends on the presence of previous convictions or guilty pleas for an equivalent

offense. See id. As it relates to the present case, R.C. 4511.19(G)(1)(d) specifies that “an

offender who, within twenty years of the offense, previously has been convicted of or pleaded

guilty to five or more violations of that nature is guilty of a felony of the fourth degree.”
                                                12


       {¶38} In the present case, the jury instructions directed, in part, “[i]f your verdict is

guilty, you will separately determine whether the Defendant was previously convicted of or pled

guilty to five or more OVI offenses in the past twenty years. If your verdict is not guilty, you

will not determine this issue.” The jury was provided two verdict forms – one for Count One

and a second form for the specification to that count. The verdict form for Count One provided:

       We, the Jury, being duly impaneled and sworn, do find the Defendant, SAMUEL
       D. HOFFMEYER, * _______ of the offense of OPERATING UNDER THE
       INFLUENCE OF ALCOHOL OR DRUGS.

       *Insert in ink either “Guilty” or “Not Guilty.”

       We, the Jury, further find that, within twenty (20) years of committing the above
       offense of Operating Under the Influence of Alcohol or Drugs, Defendant,
       SAMUUEL D. HOFFMEYER ** _______ previously convicted of or pled guilty
       to five or more offenses involving Operating Under the Influence.

       ** Insert in ink either “was” or “was not.”

(Emphasis omitted). The verdict form for the Specification, likewise, stated:

       We, the Jury, being duly impaneled and sworn, do find that, within twenty (20)
       years of committing the above offense of Operating Under the Influence of
       Alcohol or Drugs, Defendant, SAMUEL D. HOFFMEYER, * _____ previously
       convicted of or pled guilty to five or more offenses involving Operating Under the
       Influence.

       *Insert in ink either “was” or “was not.”

After reading the jury instructions, including the verdict forms, the court reiterated, at defense

counsel’s request, “if there is a finding of not guilty [on] Count One, then it would not be

necessary to fill out the specification to Count One.”

       {¶39} The additional element elevating Hoffmeyer’s OVI offense to a fourth degree

felony was that he had five or more OVI convictions within twenty years of the present OVI

offense.   See R.C. 4511.19(G)(1)(d).       The verdict forms tracked the statutory language

specifying, “within twenty (20) years of committing the above offense of Operating Under the
                                                13


Influence of Alcohol or Drugs, Defendant, SAMUEL D. HOFFMEYER, []_____ previously

convicted of or pled guilty to five or more offenses involving Operating Under the Influence.”

Because the verdict forms included the additional element making Hoffmeyer’s offense one of a

more serious degree, this case does not present a Pelfrey issue.

       {¶40} When the verdict was announced in open court, the trial judge observed that the

jury had written “GUILTY” rather than “was” or “was not” in two places on the verdict forms.

The trial judge asked the foreperson what the jury intended when it wrote “guilty” on these lines.

The foreperson responded: “The jury’s intention was to put ‘was,’ Your Honor. My apologies.”

At the request of Hoffmeyer, the jury was polled and every juror confirmed this intention.

       {¶41} On appeal, Hoffmeyer argues that because the jury inserted the word “guilty,”

rather than “was,” it did not reach a unanimous written decision, thereby rendering the portion of

the verdict pertaining to his five prior convictions within twenty years void. We disagree.

       {¶42} “Jury verdicts in criminal cases are to have reasonable constructions and are not

to be declared void unless from necessity originating in doubt of their import or irresponsiveness

to the issue submitted, or unless they show a manifest tendency to work injustice.” State v.

Tebcherani, 9th Dist. Summit No. 19535, 2000 WL 1729456, *3 (Nov. 22, 2000), quoting State

v. McNicol, 143 Ohio St. 39 (1944), paragraph two of the syllabus. The requirement that a jury

verdict in a criminal case be in writing is procedural rather than substantive. State v. Carmack,

61 Ohio App.3d 351, 353-355 (1st Dist.1989) (accepting verdict form signed by 11 of 12 jurors

after polling jury as to assure unanimity). Some errors on a verdict form amount to a “mere

oversight” or “scrivener’s error.” State v. Fugate, 4th Dist. Washington No. 97 CA 2546, 1998

WL 729221, *5 (Oct. 2, 1998) (juror signature did not match name in trial court entry). Even

when “[t]he better practice * * * would have been for the trial court to reconvene the jury to
                                                  14


redeliberate [on one count],” the defendant might not be prejudiced by the correction of a clerical

error based on a “careful read[ing] of the entire verdict form.” State v. Davie, 80 Ohio St.3d 311,

326 (1997).

       {¶43} Hoffmeyer contends the word “Guilty” in the portion of the verdict form

pertaining to his prior convictions makes the verdict “nonsensical.” That portion reads:

       We, the Jury, being duly impaneled and sworn, do find that, within twenty (20)
       years of committing the above offense of Operating Under the Influence of
       Alcohol or Drugs, Defendant, SAMUEL D. HOFFMEYER, []GUILTY
       previously convicted of or pled guilty to five or more offenses involving
       Operating Under the Influence.

While the use of the word “GUILTY” may be grammatically improper in this sentence, we

cannot say that it led to a doubt of the meaning of the verdict or made it unresponsive to the issue

of the prior convictions.

       {¶44} Moreover, given the parties’ stipulation that Hoffmeyer had five convictions

within the past twenty years, Hoffmeyer has not demonstrated how the result would have been

different if the jury had been sent back to deliberate on this issue.

       {¶45} Hoffmeyer’s second assignment of error is overruled.

                                Assignment of Error Number Three

       HOFFMEYER WAS DENIED HIS CONSTITUTIONAL RIGHT TO
       EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL
       COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT SHOULD HAVE
       SENTENCED HOFFMEYER ON HIS OPERATING UNDER THE
       INFLUENCE OF ALCOHOL OR DRUGS AS A FIRST DEGREE
       MISDEMEANOR.

       {¶46} In his third assignment of error, Hoffmeyer argues that his counsel was ineffective

for failing to object to the trial court sentencing him for a felony of the fourth degree rather than

a misdemeanor of the first degree. We disagree.
                                                15


       {¶47} To prove ineffective assistance of counsel, Hoffmeyer must establish that (1) his

counsel’s performance was deficient, and (2) that but for counsel’s deficient performance there is

a reasonable probability that the result of the trial would have been different. Strickland v.

Washington, 466 U.S. 668, 687 (1984). We need not address both the deficiency and the

prejudice prongs if the defendant fails to prove either one. State v. Jones, 9th Dist. Summit No.

26226, 2012-Ohio-2744, ¶ 16.

       {¶48} As discussed under assignment of error number two, the record supports

Hoffmeyer’s conviction as a felony of the fourth degree. Because there was no reversible error

with the jury verdict, the failure to object did not prejudice Hoffmeyer. See In re N.R., 9th Dist.

Medina No. 13CA0091-M, 2014-Ohio-2333, ¶ 9.

       {¶49} Hoffmeyer’s third assignment of error is overruled.

                                                III

       {¶50} Hoffmeyer’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                16


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



HENSAL, J.
CONCURS.

BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
