[Cite as State v. Bagwell, 2011-Ohio-5841.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 96419



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                              CHARLES J. BAGWELL
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-543966

        BEFORE:            Boyle, J., Kilbane, A.J., and Sweeney, J.

        RELEASED AND JOURNALIZED:                        November 10, 2011
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ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: Nathaniel McDonald
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: James Hofelich
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, J.:

      {¶ 1} Defendant-appellant, Charles Bagwell, appeals his domestic violence

conviction.   He raises five assignments of error for our review:

      {¶ 2} “[1.] Mr. Bagwell’s conviction is not supported by legally sufficient

evidence as required by state and federal due process.
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       {¶ 3} “[2.] Mr. Bagwell’s conviction is against the manifest weight of the

evidence.

       {¶ 4} “[3.] Counsel’s failure to object to prejudicial speculation by lay witnesses

violated Mr. Bagwell’s Sixth Amendment right to effective assistance of counsel.

       {¶ 5} “[4.] The trial court violated Mr. Bagwell’s constitutional right to a fair trial

and to remain silent under the Fifth and Fourteenth Amendments to the United States

Constitution and Article I, Section 10 of the Ohio Constitution when it instructed the jury

regarding ‘flight’ over defense counsel’s objection.

       {¶ 6} “[5.] Counsel’s failure to request waiver or object to court costs for an

indigent defendant violated Mr. Bagwell’s Sixth Amendment right to effective assistance

of counsel.”

       {¶ 7} Finding no merit to the appeal, we affirm.

                           Procedural History and Factual Background

       {¶ 8} In May 2010, Bagwell was indicted on one count of domestic violence with

a furthermore clause that he had two prior domestic violence convictions and one prior

menacing by stalking conviction.

       {¶ 9} Rachelle Hale testified that in June 2010, Bagwell, who was her live-in

boyfriend at the time, kicked her in her buttocks and left a bruise.         They had been

fighting in their bedroom in front of Hale’s six-year-old daughter, Hanna. According to

Hale, she was trying to leave the bedroom because she did not want to argue when
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Bagwell “came charging” at her.         Hale said she “dropped to the floor,” and that is when

Bagwell kicked her.

       {¶ 10} The next morning, Hale testified that she went to her neighbor’s house,

Priscilla Ziats, with her mother and her children.     Hale told Ziats what had happened the

previous night. Ziats told Hale and her children that if Bagwell did anything else to

them or to Hale they could come to her house and knock on her window and she would

call the police. That evening, Hale said that she and Bagwell continued to fight into the

night. Around 6:00 a.m. the next morning, Hanna ran between Bagwell’s legs to go to

Ziats’s house to ask her to call 911.     When she did, Hale said that Bagwell “ran” because

he had a warrant out for his arrest.     When the police came, they could not find Bagwell.

But they took a photo, which was admitted into evidence, of Hale’s bruise on her

buttocks. Hanna and Ziats testified and corroborated Hale’s version of events.

       {¶ 11} Hale further testified that about a week after the incident, Bagwell came

home and they got back together.            They lived together until November 2010.       In

November, Hale called Crime Stoppers and reported Bagwell’s location, and he was

arrested for the June 2010 incident.

       {¶ 12} The jury found Bagwell guilty of domestic violence with the furthermore

clause concerning his prior convictions.      The trial court sentenced Bagwell to one year in

prison, ordered that he have no contact with the victim, and advised him that he would be

subject to three years of discretionary postrelease control upon his release from prison.
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It is from this judgment that Bagwell appeals. We will address Bagwell’s assignments

of error out of order for ease of discussion.

                                 Ineffective Assistance of Counsel

       {¶ 13} In his third assignments of error, Bagwell argues that his counsel was

ineffective and thus, his constitutional rights were violated.

       {¶ 14} In Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674, the United States Supreme Court set forth the two-pronged test for

ineffective assistance of counsel.     It requires that the defendant show (1) counsel’s

performance was deficient; and (2) the deficient performance prejudiced the defense.

The first prong “requires showing that counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.

at 687. The second prong “requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is unreliable.” Id.

       {¶ 15} Bagwell argues that his trial counsel was ineffective for failing to object on

two occasions: (1) when Hale testified that Bagwell ran when the police were called

because he had a warrant out for his arrest; and (2) when Ziats testified that after she

called the police, Bagwell knocked on her door because “they must have said something

to him about the police coming, [and] he kind of wanted a place to hide.”
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       {¶ 16} Bagwell claims that on these two occasions, Hale’s and Ziats’s testimony

was “prejudicial speculation” because Hale and Ziats did not have “personal knowledge

regarding why Mr. Bagwell left his house.”

       {¶ 17} “Judicial scrutiny of counsel’s performance must be highly deferential” as

“the challenged action ‘might be considered sound trial strategy.’” Strickland at 689.

The “failure to make objections does not constitute ineffective assistance of counsel per

se, as that failure may be justified as a tactical decision.” State v. Gumm, 73 Ohio St.3d

413, 428, 1995-Ohio-24, 653 N.E.2d 253. Since a properly licensed attorney in Ohio is

presumed competent, the burden of proving ineffectiveness is on the defendant. State v.

Smith (1981), 3 Ohio App.3d 115, 444 N.E.2d 85; Vaughn v. Maxwell (1965), 2 Ohio

St.2d 299, 301, 209 N.E.2d 164.

       {¶ 18} Here, Bagwell does not meet his burden of establishing that his counsel’s

failure to object was ineffective.   As for Hale, the prosecutor asked her to explain why

Bagwell ran “if she knew.”      Thus, her testimony was based on personal knowledge.

And while Ziats’s testimony appears to be speculation, Bagwell’s counsel may have had a

very good reason for not objecting, and possibly giving the prosecutor an opportunity to

delve into the issue further. Thus, Bagwell’s third assignment of error is overruled.

                                         Flight Instruction
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       {¶ 19} In his fourth assignment of error, Bagwell maintains that the trial court

erred when it charged the jury with a flight instruction over his objection, claiming it was

not supported by the evidence.    We agree, but find it was harmless error.

       {¶ 20} As an initial matter, we review a trial court’s issuance of a jury instruction

for an abuse of discretion. State v. Williams, 8th Dist. No. 90845, 2009-Ohio-2026.

Further, jury instructions are reviewed in their entirety to determine if they contain

prejudicial error. State v. Fields (1984), 13 Ohio App.3d 433, 436, 469 N.E.2d 939.

       {¶ 21} “Flight from justice ‘means some escape or affirmative attempt to avoid

apprehension.’ It is well established that evidence of flight is admissible as tending to

show consciousness of guilt. Thus, a trial court does not abuse its discretion by issuing

an instruction on flight if sufficient evidence exists in the record to support the charge.”

(Internal citations omitted.) State v. Benjamin, 8th Dist. No. 80654, 2003-Ohio-281,

¶31.

       {¶ 22} Here, Hale testified that Bagwell fled the scene because he had an

outstanding warrant for his arrest. He did not flee because of his consciousness of guilt

for domestic violence against Hale.          Nor did Ziats’s testimony support a flight

instruction because she did not know why Bagwell fled; she merely stated she “guessed”

why he did.    Mere speculation as to why Bagwell fled the scene was not sufficient

testimony to support a flight instruction.
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       {¶ 23} Regardless, we conclude that the trial court’s error was harmless.     Even if

the trial court had not instructed the jury on flight, we find that it would not have changed

the outcome of the trial.

       {¶ 24} Bagwell’s fourth assignment of error is overruled.

                                Sufficiency and Manifest Weight

       {¶ 25} In his first and second assignments of error, Bagwell argues that his

conviction was not supported by sufficient evidence and was against the manifest weight

of the evidence.

       {¶ 26} When an appellate court reviews a record upon a sufficiency challenge,

“‘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. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶77, quoting State v. Jenks (1991), 61 Ohio St.3d 259,

574 N.E.2d 492, paragraph two of the syllabus.

       {¶ 27} In reviewing a claim challenging the manifest weight of the evidence, “[t]he

question to be answered is whether there is substantial evidence upon which a jury could

reasonably conclude that all the elements have been proved beyond a reasonable doubt.

In conducting this review, we must examine the entire record, weigh the evidence and all

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

the jury clearly lost its way and created such a manifest miscarriage of justice that the
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conviction must be reversed and a new trial ordered.” (Internal quotes and citations

omitted.) Id. at ¶81.

       {¶ 28} Bagwell maintains that his domestic violence conviction was not supported

by sufficient evidence because the state failed to establish that he was “a person living as

a spouse,” and therefore, failed to prove Hale was a “family or household member.”      We

disagree.

       {¶ 29} To prove that Bagwell committed domestic violence against Hale, the state

had to prove beyond a reasonable doubt that Bagwell knowingly caused or attempted to

cause physical harm to a family or household member. R.C. 2919.25(A). “Family or

household member” means a person living as a spouse who resides with the offender.

R.C. 2919.25(F)(1)(a).    Bagwell claims that the state failed to provide evidence that he

lived “in a common law marital relationship” with Hale since she testified that he did not

work, and “used her money to support his daily drug habit.”     Bagwell therefore contends

that there was “no testimony indicating shared familial responsibilities.”

       {¶ 30} Bagwell’s argument is unfounded.      A “person living as a spouse” includes

       {¶ 31} “a person who is living or has lived with the offender in a common law

marital relationship, who otherwise is cohabiting with the offender, or who otherwise has

cohabited with the offender within five years prior to the date of the alleged commission

of the act in question.” (Emphasis added.) R.C. 2919.25(F)(2). The state only had to

present evidence as to one of the three circumstances.        Thus, the state only had to
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present evidence that Hale was cohabiting with Bagwell at the time of the abuse, not that

Hale and Bagwell were living in a common law marital relationship.          The cases Bagwell

cites to deal with situations where the offender does not “officially” live with the victim,

but the victim is trying to establish “cohabitation,” such that it falls within the statute.

       {¶ 32} Bagwell further argues that his conviction was against the manifest weight

of the evidence because Hale and Hanna were not credible for various reasons.                  But

Bagwell’s defense counsel did an excellent job in pointing out to the jury all of the

inconsistencies and credibility issues with Hale and Hanna, including the fact that Hale

had previously lied to prosecutors after she decided she wanted to “continue her

relationship with Mr. Bagwell.”

       {¶ 33} After reviewing the entire record, weighing the evidence, and considering

the credibility of witnesses, we conclude that this is not the “exceptional case in which the

evidence weighs heavily against the conviction.” State v. Thompkins, 78 Ohio St.3d 380,

387, 1997-Ohio-52, 678 N.E.2d 541.

       {¶ 34} Bagwell’s first and second assignments of error are overruled.

                                             Court Costs

       {¶ 35} In his fifth assignment of error, Bagwell argues that his counsel was

ineffective for failing to move for a waiver of court costs.      We previously set forth this

court’s standard of review regarding arguments addressing ineffective assistance of

counsel.
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          {¶ 36} The statute under which court costs are imposed is R.C. 2947.23.        The

Ohio Supreme Court has held that R.C. 2947.23 “does not prohibit a court from assessing

costs against an indigent defendant; rather it requires a court to assess costs against all

convicted defendants.”       State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817

N.E.2d 393, ¶8.      After the White decision was issued, the Ohio Supreme Court further

stated that:

          {¶ 37} “Costs must be assessed against all defendants.   R.C. 2947.23; White at ¶8.

 However, we also held in White that a judge has discretion to waive costs assessed

against an indigent defendant. Id. at ¶14. Costs are assessed at sentencing and must be

included in the sentencing entry. R.C. 2947.23. Therefore, an indigent defendant must

move a trial court to waive payment of costs at the time of sentencing.      If the defendant

makes such a motion, then the issue is preserved for appeal and will be reviewed under an

abuse-of-discretion standard.     Otherwise, the issue is waived and costs are res judicata.”

 State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶23.

          {¶ 38} In November 2010, the trial court appointed counsel because it declared

Bagwell indigent. At the sentencing hearing, the trial court notified Bagwell that he

would have to pay costs.       In the sentencing entry, the trial court stated, “Defendant is

indigent, court appoints public defender as appellate counsel.         Defendant is to pay

costs.”     From this record, this court can reasonably determine that when the trial court

sentenced Bagwell, including ordering him to pay costs, that it took into account his
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indigency status.   Accordingly, we cannot say that there is a “reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

       {¶ 39} Bagwell’s fifth assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.      Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, A.J., and
JAMES J. SWEENEY, J., CONCUR
