[Cite as State v. Valladares, 2018-Ohio-1250.]




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




STATE OF OHIO,

       PLAINTIFF-APPELLEE,                                CASE NO. 1-17-49

       v.

RAYMOND A. VALLADARES,                                    OPINION

        DEFENDANT-APPELLANT.




                           Appeal from Lima Municipal Court
                             Trial Court No. 17CRB00858

                                      Judgment Affirmed

                              Date of Decision: April 2, 2018




APPEARANCES:

        Thomas J. Lucente, Jr. for Appellant

        John R. Payne for Appellee
Case No. 1-17-49


SHAW, J.

       {¶1} Defendant-appellant, Raymond A. Valladares, appeals the October 2,

2017 judgment of the Lima Municipal Court journalizing his conviction for

domestic violence by the trial court, and sentencing him to 180 days in jail, with

119 days suspended upon his compliance with certain conditions, and assessing a

$250.00 fine, plus court costs.

       {¶2} On April 4, 2017, two complaints were filed against Valladares alleging

that he committed the offenses of domestic violence, in violation of R.C.

2919.25(A), a misdemeanor of the first degree, and assault, in violation of R.C.

2903.13(A), a misdemeanor of the first degree. The charges arose from allegations

of an altercation involving Valladares and his mother at the home where he resided

with his mother. Valladares appeared for arraignment and entered pleas of not

guilty to the charges.

       {¶3} On April 27, 2017, Valladares appeared in court with counsel for a pre-

trial where he waived his right to a speedy trial and elected to proceed with a trial

to the court.

       {¶4} On July 21, 2017, a bench trial was held, without objection by

Valladares.     The same day, a journal entry issued by the Presiding and

Administrative Judge of the municipal court announced the appointment of that

court’s magistrate as “Acting Judge” for the courtroom where the case was assigned


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to be heard. Thus, the magistrate presided as the “Acting Judge” over the trial.

After hearing the evidence presented, the “Acting Judge” found Valladares guilty

on both counts.

         {¶5} On September 19, 2017, Valladares appeared for sentencing before the

elected municipal court judge assigned to that courtroom. The trial court found the

offenses to be allied and of similar import. The State chose to proceed to sentencing

on the domestic violence offense. The trial court imposed a $250.00 fine and 180

days in jail, with 119 suspended upon Valladares compliance with the terms of his

two-year period of community control sanctions. (See Doc. No. 12).

         {¶6} Valladares filed this appeal, asserting the following assignments of
error.

                        ASSIGNMENT OF ERROR NO. 1

         APPELLANT’S CONVICTION FOR DOMESTIC VIOLENCE
         AND ASSAULT WAS AGAINST THE MANIFEST WEIGHT
         OF THE EVIDENCE AND IS CONTRARY TO LAW.

                        ASSIGNMENT OF ERROR NO. 2

         THE TRIAL COURT ERRED IN DENYING APPELLANT’S
         MOTION FOR ACQUITTAL AT THE CLOSE OF THE
         STATE’S CASE IN CHIEF, WHERE THERE WAS LEGALLY
         INSUFFICIENT EVIDENCE TO ESTABLISH EACH
         MATERIAL ELEMENT OF THE OFFENSE BEYOND A
         REASONABLE DOUBT.

                        ASSIGNMENT OF ERROR NO. 3

         ACTING JUDGE RICHARD K. WARREN LACKED
         AUTHORITY TO PRESIDE OVER THE TRIAL IN THESE

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       PROCEEDINGS FOR LACK OF OHIO SUPREME COURT
       APPOINTMENT TO THE CASE.

                       ASSIGNMENT OF ERROR NO. 4

       DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE
       OF COUNSEL AS REQUIRED BY THE SIXTH AMENDMENT
       TO THE U.S. CONSTITUTION.

       {¶7} For ease of discussion, we elect to address the assignments of error out

of order.

                            Third Assignment of Error

       {¶8} In his third assignment of error, Valladares claims that the appointment

of the magistrate, who is over the age of seventy and a retired judge, as “Acting

Judge” by the municipal court’s Presiding Judge was “illegal” and therefore

invalidates his convictions. Specifically, Valladares contends that the Presiding

Judge lacked the authority to make the appointment because (1) only the Chief

Justice of the Supreme Court of Ohio is authorized to appoint a retired judge over

the age of seventy, and (2) a currently-employed magistrate cannot be appointed as

“Acting Judge.”

       {¶9} The record reflects that a journal entry signed by the Presiding and

Administrative Judge was issued on July 21, 2017 and stated the following:

       It is the order of the Court that Magistrate Richard K. Warren is
       hereby appointed Acting Judge for Courtroom Number One of
       the Lima Municipal Court on Friday July 21, 2017 for the
       purpose of handling the afternoon docket for Judge David A.
       Rodabaugh.        The Magistrate shall receive no additional

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       compensation for this appointment. He shall not act on any
       matters for which he ruled initially as Magistrate.

(Doc. No. 7 at 3).

       {¶10} At the outset, we note that the record of the trial court proceedings

does not reflect any motion, oral or written, made on Valladares’ behalf questioning

the authority of the Presiding Judge to make the appointment, or objecting to the

propriety of the “Acting Judge” hearing the case. We concur with other appellate

districts which have held that the decision by a party to proceed without challenge

or objection concerning the appointment of the judge, in this instance the “Acting

Judge,” renders any possible error waived. See e.g., Williams v. Banner Buick, Inc.,

12 Dist. Butler No. CA89-03-041, 60 Ohio App.3d. 128, 134; In re J.L., H.L., T.M.,

T.M., 8th Dist. Cuyahoga Nos. 85668, 85669, 85670, 2005-Ohio-6125, ¶ 42; Fegen

v. Davet, 6th Dist. Huron No. H-02-012, 2002-Ohio-4473, ¶ 11 (stating that

“Appellant did not make an objection as to the qualification of the judge during the

proceedings, and as such any objections to an irregularity in the judge’s appointment

have been waived”).

       {¶11} Nevertheless, even assuming arguendo that Valladares preserved the

issue for appeal, “the acting judge, by having ‘colorable’ authority, is deemed a de

facto judge with all the power and authority of a proper de jure judge.

Consequently, actions taken by [the Acting Judge] are legally valid and binding.”

Williams, 60 Ohio App.3d. at 134. Moreover, the record in this case reveals that the

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Presiding Judge complied with the authority granted to her in R.C. 1901.121, and

properly made the appointment within the parameters set forth in the statute. See

R.C. 1901.121(B)(1)(which delineates the requirements for an appointment of an

“Acting Judge” by the Presiding Judge of a municipal court consisting of two judges

when a temporary vacancy occurs in the office of a judge).

       {¶12} Contrary to Valladares’ contention on appeal, a limitation on the

appointment premised upon age or the position of magistrate is not present in the

statute. Rather, it is apparent that Valladares attempts to confuse the issue by

conflating the age limit set forth in Art. IV, § 6 of the Ohio Constitution for a person

elected or appointed to judicial office by restrictively applying that limitation to the

temporary appointment of a qualified person to the office of a municipal judge under

R.C. 1901.121(B) in the event of an interim vacancy. Additionally, Valladares fails

to cite to any authority which construes an age limitation on the authority granted

in R.C. 1901.121(B) in this manner.

       {¶13} With regard to the second challenge raised by Valladares to the

appointment of the “Acting Judge,” the record clearly indicates that the magistrate

was to receive no additional compensation nor was he permitted to act on any

matters for which he initially ruled upon as magistrate, thereby alleviating the

concerns of potential dual compensation and conflicts of interest raised by

Valladares in his brief. See Lakewood v. Suleymanov, 160 Ohio Misc.2d 94, 2010-


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Ohio-5963 (specifically disavowing a similar argument relying upon claims of this

nature which were not substantiated in the record). Moreover, to accept Valladares’

positon and place such limitations on the Presiding Judge’s authority to make an

appointment of an “Acting Judge” under R.C. 1901.121(B) would not only obstruct

the efficiency of effectively filling the temporary void in the judicial office, but

would also impede the seamless operation of the court, both objectives which the

statute clearly intends to achieve.

       {¶14} In sum, we conclude that Valladares waived the issue by failing to

challenge the appointment of the “Acting Judge” during the trial court proceedings.

Further, even if Valladares had objected, he has failed to demonstrate any error in

the procedure that the Presiding Judge employed in appointing the “Acting Judge,”

and has further failed to point to any relevant authority which supports his assertion

that the appointment of the “Acting Judge” in this instance was “illegal,” or

otherwise improper. Accordingly, we overrule the third assignment of error.

                        First and Second Assignments of Error

       {¶15} In his first and second assignments of error, Valladares challenges the

sufficiency and the weight of the evidence supporting his convictions for domestic

violence and assault.




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                                 Standard of Review

       {¶16} When reviewing the sufficiency of the evidence underlying a criminal

conviction, an appellate court examines the evidence to determine whether such

evidence, if believed, would convince the average mind of the defendant’s guilt

beyond a reasonable doubt. See State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus. 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.” Id.

       {¶17} The Supreme Court of Ohio has “carefully distinguished the terms

‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and

‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’ ” Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 10, quoting State v. Thompkins,

78 Ohio St.3d 380 (1997), paragraph two of the syllabus. Unlike our review of the

sufficiency of the evidence, an appellate court’s function when reviewing the weight

of the evidence is to determine whether the greater amount of credible evidence

supports the verdict. State v. Plott, 3d Dist. Seneca Nos. 13-15-39, 13-15-40, 2017-

Ohio-38, ¶ 73, citing Thompkins, supra, at 387.

       {¶18} In reviewing whether the trial court’s judgment was against the weight

of the evidence, the appellate court sits as a “thirteenth juror” and examines the

conflicting testimony. Thompkins, 78 Ohio St.3d at 387. In doing so, this Court


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must review the entire record, weigh the evidence and all of the reasonable

inferences, consider the credibility of witnesses, and determine whether in resolving

conflicts in the evidence, the factfinder “clearly lost its way and created such a

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

ordered.” Id.

                                   Relevant Law

       {¶19} The trial court found Valladares guilty of domestic violence, in

violation of R.C. 2919.25(A), which provides, “no person shall knowingly cause or

attempt to cause physical harm to a family or household member.” The trial court

also found Valladares guilty of assault, in violation of R.C. 2903.13(A), which states

that “no person shall knowingly cause or attempt to cause physical harm to another.”

“Physical harm,” as defined by R.C. 2901.01(A)(3), “means any injury, illness, or

other physiological impairment, regardless of its gravity or duration.”

       {¶20} There is no dispute that victim in this case, Peggy, is Valladares’

mother and was a household member at the time of the offense. The question before

the trial court was whether Valladares “knowingly caus[ed] or attempt[ed] to cause”

Peggy “any injury * * * regardless of its gravity or duration.” R.C. 2919.25(A);

R.C. 2903.13(A); 2901.01(A)(3) (emphasis added). “A person acts knowingly,

regardless of purpose, when the person is aware that the person’s conduct will

probably cause a certain result or will probably be of a certain nature.” R.C.


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2901.22(B). When determining whether a defendant acted knowingly, his state of

mind must be determined from the totality of the circumstances surrounding the

alleged crime. State v. Ingram, 10th Dist. Franklin No. 11AP-1124, 2012-Ohio-

4075, ¶ 22.      Culpable mental states are frequently demonstrated through

circumstantial evidence. Id.

                                      Analysis

       {¶21} At trial, the prosecution presented an excerpt from the 911 call Peggy,

who was clearly exasperated and out of breath, made on April 3, 2017, in which she

stated the following:

       Operator: Caller, talk to Lima.           Hello?   It’s Lima Police
       Department.

       Peggy: Yes, I had the cops here earlier. My son just busted the
       uh my whole top of my range. He, he took the—he’s tried to hit
       me and I took a pan and I, I threw it at him and then he just
       destroyed my range. Threw food everywhere. Took his feet
       stomping on my pots and pans here. There’s glass everywhere.

       Operator: Is he still there?

       Peggy: He’s drunk, yeah. Then he starts to throw me out the
       door.

       Operator: Ok. Where is Raymond at now?

       Peggy: He’s in the house somewhere.

       Operator: Ok, where—

       Peggy:—the living room.


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       Operator:—are you at? He’s in the living room? Where are you
       at, Peggy?

       Peggy: Yeah. I can’t—[Speaking to another person] Get me
       shoes so I can get out of here.

       Operator: Peggy, are, are you going to be waiting outside of your
       residence? To speak with officers?

       Peggy: What?

       Operator: [phone ringing] Hold on real quick.

(Exhibit A).

       {¶22} The prosecution also presented the testimony of Patrolman Crish, the

responding officer. Officer Crish testified that upon his arrival, Peggy appeared

“very upset, distraught, and in fear for herself.” (Doc. No. 15 at 16). He recalled

that the kitchen was “destroyed” and the glass stove top was shattered. (Doc. No.

15 at 13). He learned that during the altercation Valladares had grabbed Peggy by

the arm and “shoved her down the stairs attempting to push her out of the residence.”

(Doc. No. 15 at 17). Officer Crish identified “Exhibit B” as a written statement that

he observed Peggy complete and sign on the date of the incident, which states:

       My son started slamming doors again and oven door and top of
       oven. I begged him to stop then he grabbed my arm when I
       reached out to stop him and pushed me back. Then I took pan
       and struck him with it. He then took fists [sic] and broke top of
       stove and then grabbed me and pushed me down 3 steps and
       slammed door on me to lock me out. I called cops.

(Exhibit B).


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       {¶23} Officer Crish testified that he observed a red mark on Peggy’s arm

where Valladares had grabbed her.

       {¶24} Peggy also testified for the prosecution, but was declared a hostile

witness by the trial court after she provided a contradictory account of the events,

stated that she lied in her written statement, and expressed that she did not want her

son to be prosecuted. Peggy admitted that Valladares grabbed her arm. However,

she explained that she had first struck Valladares with a cookie sheet and that he

grabbed her arm while trying to take the cookie sheet away from her.         She also

admitted that Valladares pulled her arm “backwards down on the step” causing her

to “hit the wall,” but maintained that it was an accident and not intentional. (Doc.

No. 15 at 11).

       {¶25} Valladares testified on his own behalf echoing Peggy’s testimony on

the stand that she hit him with the cookie sheet first, and then chased him around

the kitchen. He claimed that his actions were defensive and that he was not the

aggressor. He also admitted to hitting the stove top, but thought it was a “normal

stove” that would not break so easily. (Doc. No. 15 at 23). The trial court asked

Valladares to explain the manner in which his medically infirm, sixty-year-old

mother, who apparently used a walker while in the courtroom, “chased” him around

the kitchen. Valladares responded that “it wasn’t moving that fast” and “she doesn’t

always need a walker.” (Doc. No. 15 at 28). Valladares also denied shoving Peggy


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down the steps and instead claimed that he was attempting to exit the home and “she

got in the way.” (Doc. No. 15 at 23).

       {¶26} In light of the evidence presented at trial, we find that the trial court

did not err by finding Valladares guilty of domestic violence and assault. Even

though Peggy presented testimony at trial, which conflicted with her recorded

statements made at the time of the incident, it was within the province of the trial

court as the finder of fact to assess the credibility of the witnesses, to resolve the

inconsistencies in the evidence, and to reach a determination on the ultimate issue

of fact. Moreover, in view of Peggy’s emotionally charged statements in the 911

call, in which she informed law enforcement that Valladares attempted to hit her

and shoved her down the stairs, which were also consistent with her written

statement given at the time of the incident, and Officer Crish’s testimony, which

corroborated the existence of her “distraught” mental state and being in fear for

herself when the altercation occurred, along with the red mark observed by Officer

Crish on Peggy’s arm, and the severity of the damage done to the kitchen, the trial

court could have reasonably concluded that Valladares knowingly caused or

attempted to cause physical harm to his mother, Peggy.

       {¶27} Accordingly, we find that there was sufficient evidence presented by

the prosecution to sustain the trial court’s findings that Valladares was guilty of both

domestic violence and assault, and we further find that the trial court’s verdict was


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supported by the weight of the evidence. Valladares’ first and second assignments

of error are overruled.

                            Fourth Assignment of Error

       {¶28} In his fourth assignment of error, Valladares claims that he received

ineffective assistance of trial counsel because counsel failed: (1) to request a jury

trial; (2) to call Peggy’s grandson, who was present at the home during the incident

with Valladares, as a witness; and (3) to object to the appointment of the magistrate

as the “Acting Judge” hearing the case.

                                Standard of Review

       {¶29} To establish an ineffective assistance of counsel claim, Valladares

must show that his trial counsel’s performance was deficient and that counsel’s

performance prejudiced him. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981,

¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to

make either showing defeats a claim of ineffective assistance of counsel. State v.

Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697 (“[T]here is no

reason for a court deciding an ineffective assistance claim to approach the inquiry

in the same order or even to address both components of the inquiry if the defendant

makes an insufficient showing on one.”).




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                                       Analysis

       {¶30} At the outset, we note that we have already addressed the merits of

Valladares’ claim regarding the propriety of the appointment of the “Acting Judge.”

Having dispensed with that argument for the reasons discussed in analyzing the third

assignment of error, we do not find it to be a valid basis for Valladares to establish

an ineffective assistance of counsel claim.

       {¶31} We also do not find trial counsel’s decision not to call Peggy’s

grandson to constitute deficient performance. In general, even “debatable trial

tactics do not establish ineffective assistance of counsel.” State v. Leonard, 104

Ohio St.3d 54, 2004-Ohio-6235, ¶ 146. “[A]n attorney’s selection of witnesses to

call at trial falls within the purview of trial tactics and generally will not constitute

ineffective of counsel.” State v. Yarbrough, 3d Dist. Shelby No. 17-2000-10, 2001-

Ohio-2351, *7. Here, Valladares fails to demonstrate that his trial counsel’s

decision not to call Peggy’s grandson as a witness was anything other than sound

trial strategy. Moreover, Peggy’s testimony at trial indicates that her grandson only

observed Valladares hit the stove top, but he did not witness the interaction between

Peggy and Valladares, further suggesting that Valladares suffered no prejudice as a

result of trial counsel’s decision not to call Peggy’s grandson.

       {¶32} Finally, Valladares claims his trial counsel was ineffective for not

requesting a jury trial. Crim.R. 23 states “[i]n petty offense cases, where there is a


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right of jury trial, the defendant shall be tried by the court unless he demands a jury

trial. Such demand must be in writing and filed with the clerk of court not less than

ten days prior to the date set for trial, or on or before the third day following receipt

of notice of the date set for trial, whichever is later. Failure to demand a jury trial as

provided in this subdivision is a complete waiver of the right thereto.”

       {¶33} In the instant case, a pre-trial journal entry filed approximately three

weeks after the complaint indicates a trial to the court was the defense’s selected

course of action. (Doc. No. 6).        Moreover, the record is silent as to whether

Valladares voiced his desire for a jury trial to his attorney as he now contends on

appeal. Nevertheless, Valladares has presented no evidence that he was prejudiced

by the occurrence of a bench trial rather than a jury trial, or that the bench trial

yielded an unreliable result. Accordingly, we do not find that the record suggests

the jury waiver to be anything other than trial counsel’s strategic choice to proceed

with the case. Therefore, the fourth assignment of error is overruled.

       {¶34} For all these reasons, the assignments of error are overruled and the

judgment of the trial court is affirmed.

                                                                   Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlr




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