[Cite as State v. Hardman, 2018-Ohio-5152.]


                Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 105810



                                          STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                    DEAFRED C. HARDMAN,
                                  A.K.A. DEALFRED HARDMAN

                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                       APPLICATION DENIED



                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-14-585663-B
                                    Application for Reopening
                                        Motion No. 520302

        RELEASE DATE: December 17, 2018
FOR APPELLANT

Deafred Hardman, a.k.a. Dealfred Hardman, pro se
Inmate No. 663624
Oriana House, Inc.
P.O. Box 1501
Akron, Ohio 44309

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


MELODY J. STEWART, J.:

       {¶1} Deafred C. Hardman, a.k.a. Dealfred Hardman, has filed a timely application for

reopening pursuant to App.R. 26(B). Hardman is attempting to reopen the appellate judgment,

rendered in State v. Hardman, 8th Dist. Cuyahoga No. 105810, 2018-Ohio-2062, that affirmed

his convictions for the offenses of compelling prostitution (R.C. 2907.21(A)(2)(a)) and unlawful

sexual conduct with a minor (2907.04(A)). We decline to reopen Hardman’s original appeal.

       I. Standard of Review Applicable to App.R. 26(B) Application for Reopening

       {¶2} In order to establish a claim of ineffective assistance of appellate counsel, Hardman

is required to establish that the performance of his appellate counsel was deficient and the

deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied,

497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990).
         {¶3} In Strickland, the United States Supreme Court held that a court’s scrutiny of an

attorney’s work must be highly deferential.    The court further stated that it is all too tempting

for a defendant to second-guess his attorney after conviction and that it would be too easy for a

court to conclude that a specific act or omission was deficient, especially when examining the

matter in hindsight.   Thus, a court must indulge in a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy. Strickland.

                             II. State’s Failure to Provide Discovery

         {¶4} Hardman has raised three proposed assignments of error in support of his application

for reopening. Hardman’s first proposed assignment of error is that:

         The state committed prosecutorial misconduct by deliberately violating
         appellant’s [rights under] 5th, 6th, and 14th Amendments of the U.S. Constitution
         and admitting inadmissable hearsay evidence to the jury only to withdraw that
         evidence once inadmissable hearsay testimony had been elicited regarding the
         same.

         {¶5} Hardman, through his initial assignment of error, argues that appellate counsel was

ineffective by not challenging the state’s failure to provide his dental records during discovery.

Specifically, Hardman argues that the state was prohibited from introducing his dental records at

the retrial because the prosecution had promised not to introduce any exhibits from the original

trial.

         {¶6} The Supreme Court of Ohio, in O’Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d

59, 2007-Ohio-1102, 862 N.E.3d 803, reaffirmed the application of the doctrine of res judicata

and held that:
       The doctrine of res judicata encompasses the two related concepts of claim
       preclusion, also known as res judicata or estoppel by judgment, and issue
       preclusion, also known as collateral estoppel. Grava v. Parkman Twp. (1995), 73
       Ohio St.3d 379, 381, 1995-Ohio-331, 653 N.E.2d 226. Claim preclusion prevents
       subsequent actions, by the same parties or their privies, based upon any claim
       arising out of a transaction that was the subject matter of a previous action. Fort
       Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd. (1998), 81 Ohio St.3d
       392, 395, 1998-Ohio-435, 692 N.E.2d 140. Where a claim could have been
       litigated in the previous suit, claim preclusion also bars subsequent actions on that
       matter. Grava, 73 Ohio St.3d at 382, 653 N.E.2d 226.

       Issue preclusion, on the other hand, serves to prevent relitigation of any fact or
       point that was determined by a court of competent jurisdiction in a previous action
       between the same parties or their privies. Fort Frye, 81 Ohio St.3d at 395, 692
       N.E.2d 140. Issue preclusion applies even if the causes of action differ. Id.

O’Nesti, supra, at ¶ 6.

       {¶7} Herein, Hardman has already attempted to litigate the claim that the state was

precluded from introducing any exhibits at the second trial that had been previously admitted into

evidence during the course of the original trial.

       During the first trial, Hardman introduced his own dental records into evidence
       without objection from the state. During retrial, a police detective testified that a
       telephone number given in conjunction with the ad for the victim’s escort services
       was the same number appearing on Hardman’s dental records. Hardman claims
       that the records were inadmissible because the state did not disclose those dental
       records to him in pretrial discovery and the state reneged on its representation to
       the court that it would not introduce any exhibits from the first trial.

       The state did not promise that it would not introduce any exhibits from the first
       trial. As part of his motion in limine, Hardman asked that the state be precluded
       from introducing his testimony from the first trial because he would not be
       testifying in the second trial. The state told the court that it “does not have any
       intention of introducing any past testimony in its case in chief.” At no point did
       the state agree not to introduce any exhibits that were admitted at the first trial.
       Indeed, an agreement to that effect would have doomed the state’s case — it
       would have prohibited the state from introducing the ad for escort services, a
       crucial piece of evidence.

       Hardman’s claim that the state did not produce the dental records in discovery is
       equally without merit. The point of pretrial discovery is to prevent unfair surprise.
       State v. Howard, 56 Ohio St.2d 328, 333, 383 N.E.2d 912 (1978). Not only did
       the dental records belong to Hardman, he introduced them in the first trial. We are
       hard-pressed to understand how Hardman would have been surprised that the state
       used them in the second trial.

Hardman, supra, at ¶ 18.

       {¶8} The doctrine of res judicata bars Hardman from once again raising the issue of the

improper admission into evidence of his dental records because the issue was previously

adjudicated before this court on appeal. Hardman has failed to establish any prejudice through

his first proposed assignment of error.

                           III. Failure of State to Authenticate Record

       {¶9} Hardman’s second proposed assignment of error is that:

       The trial court erred when it overruled appellant’s motion in limine and objection
       to state exhibit (2) the Backpage advertisement as it violated Evid.R. 902, 403(A),
       R.C. 2921.12, R.C. 2945.82 and Evid.R. 1003.

       {¶10} Hardman, through his second proposed assignment of error, states his appellate

counsel was ineffective on appeal by failing to argue that a Backpage.com advertisement,

introduced by the state at trial as state’s exhibit No. 2, was not properly authenticated.

       {¶11} Evid.R. 901(A) deals with the authentication of evidence prior to admission at trial.

 The authenticity requirement is satisfied by “evidence sufficient to support a finding that the

matter in question is what the proponent claims.” Evid.R. 901(A). Evid.R. 901(B) and 902

establish methods by which a document may be authenticated by extrinsic evidence or by which

it may be self-authenticated so extrinsic evidence is not required because the document possesses

on its face indicia of authenticity which are sufficient to support the finding that the document is

what it purports to be. State v. Smith, 63 Ohio App.3d 71, 74, 577 N.E.2d 1152 (11th Dist.1989).

 Evid.R. 901 provides a liberal standard for the authentication of evidence. State v. Pruitt, 8th

Dist. Cuyahoga No. 98080, 2012-Ohio-5418, ¶ 11, citing State v. Teague, 8th Dist. Cuyahoga
No. 90801, 2009-Ohio-129. In addition, the decision to admit or exclude evidence rests within

the trial court’s sound discretion. State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112 (1997).

Thus, a reviewing court will not reverse the trial court’s decision absent an abuse of discretion.

       {¶12} This court has also stated that:

       Circumstantial evidence, as well as direct, may be used to show authenticity. State
       v. Williams, supra, 64 Ohio App.2d 271, 274, 413 N.E.2d 1212 (8th Dist. 1979).
       Moreover, the threshold standard for authenticating evidence pursuant to Evid.R.
       901(A) is low, and “does not require conclusive proof of authenticity, but only
       sufficient foundational evidence for the trier of fact to conclude that * * * [the
       evidence] is what its proponent claims it to be. State v. Easter, 75 Ohio App.3d
       22, 25, 598 N.E.2d 845 (4th Dist. 1991).” State v. Trice, 8th Dist. Cuyahoga No.
       89933, 2008-Ohio-2930, ¶ 22.


Pruitt at ¶ 11, quoting Teague at ¶ 7.

       {¶13} Herein, Nathan Yockey authenticated state’s exhibit No. 2 by direct testimony.

Yockey testified that: 1) he is the custodian of records for Backpage.com (tr. 351); 2) he has been

employed by Backpage.com as the custodian of records for 6.5 years (tr. 351); 3) Backpage.com

is an online classified advertisement website (tr. 351); 4) in order to place an advertisement on

Backpage.com, an account must be created (tr. 352); 5) Backpage.com received a subpoena from

the Cuyahoga County Prosecutor in 2014 for records relating to an advertisement posted under

I.D. No. 17654164 (tr. 353);

6) records associated with I.D. No. 17654164 were provided to the Cuyahoga County Prosecutor

(tr. 353); 7) the records provided to the Cuyahoga County Prosecutor consisted of ten pages and

included the advertisement placed on Backpage.com, the title of the advertisement, the posted

date of the advertisement, an invoice, multiple images associated with the advertisement, and

administrative data (tr. 353 - 355); 8) the administrative data includes the posting region for the

advertisement, the amount paid for the advertisement, the name of the person that ordered the
advertisement, the email address associated with the person that ordered the advertisement, and

the date the advertisement was created (tr. 356 - 357); and 9) the advertisement was posted in the

escort section of Backpage.com in the Cleveland, Ohio area (tr. 316).

        {¶14} We find that the direct testimony of Nathan Yockey satisfied the requirement of

authentication for state’s exhibit No. 2 under Evid.R. 901(A).          State v. Inkton, 8th Dist.

Cuyahoga No. 102706, 2016-Ohio-693. Hardman has failed to establish any prejudice through

his second proposed assignment of error.

                        IV. Trial Court was Biased Toward Defendant

        {¶15} Hardman’s third proposed assignment of error is that:

        Whether the trial judge committed structural error by being bias[ed] toward the
        appellant.

        {¶16} Hardman, through his third proposed assignment of error, states that his appellate

counsel was ineffective on appeal by failing to argue that the trial court was biased during the

course of trial resulting in prejudice.   This court, with regard to the issue of judicial bias, has

stated that:

        Due process requires that a criminal defendant be tried before an impartial judge.
        State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34. If the
        record evidence indicates that the trial was infected by judicial bias, the remedy is
        a new trial. State v. Dean, 127 Ohio St.3d 140, 2010 Ohio 5070, 937 N.E.2d 97, ¶
        2. Judicial bias is defined as “a hostile feeling or spirit of ill will or undue
        friendship or favoritism toward one of the litigants or his attorney, with the
        formation of a fixed anticipatory judgment on the part of the judge * * * .” Id. at ¶
        48, quoting Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956),
        paragraph four of the syllabus. Judicial bias is “contradistinguished from an open
        state of mind which will be governed by the law and the facts.” Id., quoting Pratt
        at paragraph four of the syllabus.

State v. Hough, 8th Dist. Cuyahoga Nos. 98480 and 98482, 2013-Ohio-1543, 990 N.E.2d 653, ¶

10.
       {¶17} Our review of the record fails to disclose that the trial court judge harbored any ill

will or hostility toward Hardman during the course of trial.     We find that the alleged comments

made by the trial court that referenced retrial following reversal by this court for a new trial, lack

of recollection, and placing the burden upon the defendant to secure the attendance of a witness,

all fail to establish bias toward Hardman. In addition, we fail to find that the trial court uttered

“epithets, slurs, demeaning nicknames, [or] negative stereotyping” against Hardman. Lamar,

supra; State v. Jackson, 8th Dist. Cuyahoga No. 104132, 2017-Ohio-2651. Hardman has failed

to establish that he was prejudiced through his third proposed assignment of error.

       {¶18} Accordingly, the application for reopening is denied.




MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, P.J., and
LARRY A. JONES, SR., J., CONCUR
