[Cite as State v. Brock, 2019-Ohio-3195.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 2018-CA-112
                                                  :
 v.                                               :   Trial Court Case No. 2017-CR-0689
                                                  :
 JERAMY LEE BROCK                                 :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                             Rendered on the 9th day of August, 2019.

                                             ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
       Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, 101 Southmoor Circle
NW, Kettering, Ohio 45429
      Attorney for Defendant-Appellant

                                            .............
                                                                                           -2-



FROELICH, J.

       {¶ 1} Following a jury trial, Jeramy Lee Brock was found guilty of burglary, violating

a protection order, obstructing official business, and assault. The trial court entered a

judgment of conviction and sentenced Brock to two years for the burglary offense, 24

months for the protection order violation, 12 months for obstructing official business, and

18 months for assault; the sentences for burglary and the protection order violation were

to be served concurrently, and the remaining sentences were to be served consecutively

to each other and to Brock’s other sentences. The judgment of the trial court will be

affirmed.

                          Factual and Procedural Background

       {¶ 2} On November 6, 2017, a Clark County grand jury indicted Brock on five

counts: 1) burglary in violation of R.C. 2911.12(A)(2), a second-degree felony; 2) violating

a protection order in violation of R.C. 2921.27(A)(1), a third-degree felony; 3) obstructing

official business in violation of 2921.31(A), a fifth-degree felony; 4) vandalism in violation

of R.C. 2909.05(B)(1)(a), a fifth-degree felony; and 5) assault in violation of R.C.

2903.13(A), a fourth-degree felony, with a specification that the victim was a peace officer

performing his or her official duties. Brock appeared with counsel and entered a plea of

not guilty. On a motion by the State, the trial court subsequently dismissed Count Four

(vandalism) of the indictment.

       {¶ 3} On June 29, 2018, the case proceeded to a jury trial. Saraha McNeil testified

that Brock is the father of her four minor children. McNeil said that after her relationship

with Brock ended, she sought and obtained a protection order prohibiting Brock from

being at her residence, where she lived with her grandfather and the four children.
                                                                                         -3-


According to McNeil, on October 30, 2017, while that protection order was in place, Brock

contacted her through Facebook Messenger, asking where McNeil was, and she

instructed him not to get “dropped off” at her residence. (Trial Tr., p. 124.)

        {¶ 4} McNeil stated that later that day, she heard a knock at her door and opened

it to find Brock. “I could tell he’d been drinking; and he just basically said he wanted to

see his children before he had court the next day * * *.” (Id., p. 125.) McNeil continued:

        And I basically told him no. I didn’t close or lock the door, but I closed the

        door a little bit, ran straight to the kitchen to get my phone. He came in and

        sat down. I sat there – I’m not going to lie -- to keep the situation cool. I

        carried on a conversation with him, and I told him it was time to go. I got

        [sic] to go to work. That’s when he refused to go. He started getting angry.

(Id.)

        {¶ 5} McNeil said that she had headed to her phone when Brock arrived in order

to be prepared to call 911 for “[p]rotection.” (Id., p. 126.) Based on past experience with

Brock, she feared “ma[king] him madder,” so when she dialed 911 she did not speak to

the dispatcher, leaving the line open. (Id., pp. 126-127.) Over defense counsel’s objection,

the State played a recording that McNeil identified as her 911 call (State’s Exh. 4); she

further identified the voice on that recording saying “you’re scaring me” as her own. (Trial

Tr., p. 131.) McNeil said that she had been scared during that call.

        {¶ 6} McNeil testified that when police officers arrived, she asked them “if they

could make [Brock] leave peacefully.” (Id.) McNeil left the room while the officers “ran

[Brock’s] name” and questioned him. (Id.) When McNeil returned, Brock had been taken

outside, and McNeil gave her statement to a police officer.
                                                                                            -4-


       {¶ 7} On cross-examination, McNeil said that she first heard from Brock on

October 30 at about noon, and their exchanges continued until about 4:20 p.m. McNeil

admitted that she asked Brock about her son’s missing coat and later tried to call Brock

three times; she said she called because she was “worried” about Brock’s location. (Id.,

p. 138.) She said Brock arrived at her house at about 8 p.m. Presented with a transcript

of Facebook Messenger messages exchanged between Brock and McNeil on October

30 (id., Exh. F), McNeil said she had no record of any additional conversations on that

date. McNeil confirmed that Brock did not “shove” his way past her into her home, “[b]ut

he did open my door and sit down.” (Id., pp. 143-144.) When reminded that she told the

prosecutor that she had not closed her door completely, McNeil explained, “My door don’t

[sic] have a handle at all. All it has is a lock. So when you do push it, it’s, like, not even

closed.” (Id., p. 144.) “So if you don’t lock the padlock, it doesn’t close all the way.” (Id.,

p. 152.)

       {¶ 8} Officer Tim Melvin of the Springfield Police Division testified that he and his

partner, Officer Meredith Freeman, were on duty the night of October 30, 2017, and were

dispatched in response to McNeil’s 911 call. Upon arriving at the scene, the officers did

a records check and discovered that Brock had an active warrant out of Champaign

County. Officer Calvin Burch also responded and took a position at the rear of McNeil’s

residence. Officer Freeman knocked, and McNeil admitted both Freeman and Melvin into

her house. McNeil asked the officers to have Brock leave. Due to Brock’s warrant,

however, the officers asked Brock to stand up from the couch, intending to arrest him.

Brock refused.

       {¶ 9} According to Officer Melvin, Officer Freeman managed to cuff Brock’s left
                                                                                            -5-


hand while Officer Melvin grabbed Brock’s right hand and continued to urge him to get

up. “I heard Officer Freeman yelling, “My wrist, my wrist, my wrist. And when I looked

down where her wrist was on [Brock’s] hand, he had grabbed her wrist by the hand and

started cranking it backward underneath.” (Id., p. 160.) Officer Melvin said that when

Brock refused to release Freeman and continued to defy police orders, the two officers

radioed for help, and Officer Burch came from the back of the house. After Brock kicked

Officer Freeman in the chest and persisted in fighting, the officers successively deployed

their Tasers on Brock, and eventually were able to apply handcuffs. The officers called

medics to examine Brock, who then was transported to the hospital. Officer Melvin

described Brock as “still [so] very upset, angry” that “he began rocking the [hospital] bed

back and forth and the bed actually flipped and a piece of it broke off.” (Id., p. 164.)

       {¶ 10} On cross-examination, the defense introduced photographs that Officer

Melvin said depicted Brock’s condition after his arrest, including injuries to his face and a

splint on his leg where Officer Melvin had struck Brock with a baton. (See Trial Tr., Exhs.

A-D.) Officer Melvin agreed that a photograph of Officer Freeman following the incident

depicted no visible injuries; “you can’t see a sprained wrist.” (Id., p. 170 and Exh. E.)

       {¶ 11} Officer Burke testified as to his role in Brock’s arrest. His description was

largely consistent with Officer Melvin’s account. Officer Burke said he interviewed McNeil

after Brock was transported. Officer Burke then learned that Brock was subject to an

active protection order. On cross-examination, Burke said that tasers were deployed on

Brock a total of three times (first by Burke, then by Freeman, then again by Burke), but

the prongs made contact only the latter two times. Officer Freeman offered a similar

account of the events surrounding Brock’s October 30 arrest. Freeman said that while at
                                                                                           -6-


the hospital where Brock was transported, she was treated for “a severe sprain” to her

left wrist. (Id., p. 196.)

        {¶ 12} The State also presented the testimony of a Clark County Commons Pleas

Court records custodian who verified that McNeil had a domestic violence civil protection

order in effect against Brock on October 30, 2017. (Trial Tr., Exhs. 1-3.) The final order

provided that Brock was not to have contact with McNeil or come within 500 feet of her

residence, “even with the permission of the protected person.” (Id., p. 118 and Exh. 1.)

        {¶ 13} At the close of the State’s case, the trial court admitted the State’s Exhibits

1-4 (certified copies of protection order documents and recording of 911 call) without

objection. The defense moved to admit Exhibits A-F; the trial court sustained the State’s

relevancy objection to Exhibits A-D (photographs of Brock’s injuries), but admitted

Exhibits E (photograph of Officer Freeman’s wrist) and F (transcript of Facebook

Messenger messages). The defense presented no other evidence.

        {¶ 14} The jury found Brock guilty of all four charges. On October 22, 2018, the

trial court sentenced Brock to prison for two years on the Count One burglary offense, 24

months on the Count Two protective order violation, 12 months on the Count Three

obstructing official business offense, and 18 months on the Count Five assault offense.

The court further ordered that Brock’s sentences for burglary and the protection order

violation be served concurrently with each other, and that the sentences for obstructing

official business and assault be served consecutively to each other and to the sentences

on Counts One and Two.

        {¶ 15} Brock appeals from the trial court’s final judgment, asserting four

assignments of error set forth as follows:
                                                                                          -7-


       1) Insufficient evidence to sustain the verdicts based on lack of sufficient

       evidence concerning venue constitutes denial of due process;

       2) Insufficient evidence of force, stealth, or deception to sustain a burglary

       conviction;

       3) [Brock’]s right to effective assistance of counsel and representation free

       from conflict of interest as guaranteed by the [S]ixth and [F]ourteenth

       [A]mendments to the U.S. Constitution and Section 10, Article I, of the Ohio

       Constitution, is violated when trial counsel previously represented a key

       prosecution witness in violation of Prof. Cond. Rule 1.7; and

       4) Failure to raise a Crim. R. 29 motion for acquittal, when the state failed

       to meet its burden of proof regarding venue, violated [Brock]’s right to

       effective assistance of counsel.

               Assignments of Error #1, #2 – Sufficiency of Evidence

       a.     Standard of Review

       {¶ 16} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, after viewing

the evidence in a light most favorable to the State, could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d

421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal unless

“reasonable minds could not reach the conclusion reached by the trier-of-fact.” Id.
                                                                                         -8-

       b.     Assignment of Error #1 – Evidence Regarding Venue

       {¶ 17} Brock asserts in his first assignment of error that he was denied due process

because the State did not present sufficient evidence to show that Brock committed the

charged offenses in the venue in which he was tried. Although he concedes that his trial

attorney did not raise a venue challenge in the trial court, Brock contends that his

conviction in the absence of proper venue constituted plain error.

       {¶ 18} Pursuant to Article I, Section 10 of the Ohio Constitution and R.C. 2901.12,

“evidence of proper venue must be presented in order to sustain a conviction for an

offense.” State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 20.

“It is not essential that the venue of the crime be proven in express terms, provided it be

established by all the facts and circumstances in the case, beyond a reasonable doubt,

that the crime was committed in the county and state as alleged in the indictment.” Id. at

¶ 19, quoting State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969 (1907), paragraph one of

the syllabus. Circumstantial evidence may be used to establish venue. State v. Brown,

2017-Ohio-8416, 99 N.E.3d 1135, ¶ 33 (2d Dist.), citing State v. May, 2015-Ohio-4275,

49 N.E.3d 736, ¶ 24 (8th Dist.).

       {¶ 19} A challenge to venue may not be raised for the first time on appeal. State v.

Weber, 2d Dist. Montgomery No. 25508, 2013-Ohio-3172, ¶ 33, citing State v.

Bridgeman, 2d Dist. Champaign No. 2010-CA-16, 2011-Ohio-2680, ¶ 9. A criminal

defendant who fails at trial to make a Crim.R. 29 motion for a judgment of acquittal waives

his ability to appeal based on the insufficiency of the evidence. State v. Hibbler, 2d Dist.

Clark No. 2001-CA-43, 2002-Ohio-4464, ¶ 23, citing State v. Roe, 41 Ohio St.3d 18, 535

N.E.2d 1351 (1989) and State v. Knapp, 2d Dist. Montgomery No. 18457, 2001 WL 62519
                                                                                          -9-


(Jan. 26, 2001). Even a defendant who made a Crim.R. 29 motion that “was too general

to put the prosecutor and the court on notice of the venue issue * * * may not reveal that

issue as the basis of his motion for the first time on appeal.” See State v. Schuyler, 2d

Dist. Clark No. 11CA0046, 2012-Ohio-2801, ¶ 17-18.

       {¶ 20} Nevertheless, “ ‘failure to prove venue is a defect affecting a substantial

right and is subject to review under the plain error doctrine.’ ” Weber at ¶ 33, quoting

Bridgman at ¶ 9. “Plain error exists ‘if the trial outcome would clearly have been different,

absent the alleged error in the trial court proceedings.’ ” State v. Kessel, 2019-Ohio-1381,

___ N.E.3d ___, ¶ 33 (2d Dist.), quoting State v. Bahns, 185 Ohio App.3d 805, 2009-

Ohio-5525, 925 N.E.2d 1025, ¶ 25 (2d Dist.).

       {¶ 21} The record establishes that the State presented sufficient evidence of

venue. McNeil testified as to the street address where the encounter with Brock occurred.

(Trial Tr., p. 121.) Although her testimony did not identify the community in which that

address is located, the evidence admitted regarding McNeil’s protection order against

Brock shows that McNeil’s same residence address is in Springfield, Ohio. (See State’s

Exh. 1, p. 4; State’s Exh. 3, p. 1.) In addition, Officers Melvin, Burch, and Freeman all

testified that they responded to McNeil’s address while on duty with the Springfield Police

Division. (Trial Tr., pp. 156-157, 172-173, 185-186.) “[T]estimony that a certain locality’s

police department investigated the alleged crime may be sufficient to establish venue.”

State v. Curry, 2d Dist. Greene No. 2012-CA-50, 2014-Ohio-3836, ¶ 23, citing State v.

Norton, 2d Dist. Greene No. 97-CA-112, 1998 WL 853022, *7-8 (Dec. 11, 1998); see also

State v. Shaw, 134 Ohio App.3d 316, 319-320, 730 N.E.2d 1075 (2d Dist.1999); State v.

Schroyer, 66 Ohio App. 30, 32-33, 31 N.E.2d 469 (2d Dist.1940) (testimony of Columbus
                                                                                          -10-


police officer and other witnesses referencing “well known places” in Columbus was

sufficient to establish venue in Franklin County). Because the evidence was sufficient to

establish venue, the trial court did not commit error, plain or otherwise, by entering a

judgment of conviction against Brock.

       {¶ 22} Brock’s first assignment of error is overruled.

       c.     Assignment of Error #2 – Evidence Regarding Elements of Burglary Offense

       {¶ 23} Brock’s second assignment of error maintains that the State presented

insufficient evidence of force, stealth, or deception to sustain a burglary conviction. The

statutory provision under which Brock was charged with burglary provides as follows:

       (A) No person, by force, stealth, or deception, shall do any of the following:

       ***

       (2) Trespass in an occupied structure or in a separately secured or

       separately occupied portion of an occupied structure that is a permanent or

       temporary habitation of any person when any person other than an

       accomplice of the offender is present or likely to be present, with purpose

       to commit in the habitation any criminal offense;

R.C. 2911.12.

       {¶ 24} “Force” as used in R.C. 2911.12(A) “means any violence, compulsion, or

constraint physically exerted by any means upon or against a person or thing.” R.C.

2901.01(A)(1). Accordingly, the requirement of “force” is satisfied by “any effort physically

exerted.” State v. Hudson, 2018-Ohio-423, 106 N.E.3d 205, ¶ 16 (2d Dist.), quoting State

v. Johnson, 2d Dist. Montgomery No. 26961, 2017-Ohio-5498, ¶ 21.

       {¶ 25} McNeil originally testified that Brock “opened the door” and entered her
                                                                                          -11-


home after she partially closed that door, leaving Brock outside. (Trial Tr., p. 126.) She

later added, “I close[d] my door. * * * I did not tell him [Brock] to come in.” (Id., p. 143.)

Pressed by defense counsel to admit that she “didn’t close [her] door all the way” and that

Brock did not “shove” or “push” his way in, McNeil stated: “I said I did not lock [the door].

I pushed the door closed, ran to the kitchen, grabbed my cell phone. * * * [H]e did open

my door and sit down. * * * I told [the police officers] that I pushed my door closed. * * *

He opened up the door. So if you call that pushing your way into a home, then I guess

so.” (Id., pp. 143-144.)

       {¶ 26} Although McNeil’s testimony suggested that Brock needed to use only

minimal force to enter her home, that evidence was sufficient to show that Brock

“physically exerted” some degree of “effort” in order to open the door and go inside

McNeil’s residence. Such proof was all that was required. See Hudson at ¶ 16; accord

State v. Ball, 2d Dist. Clark No. 2017-CA-54, 2018-Ohio-605, ¶ 15 (defendant’s opening

of closed but unlocked window was sufficient to establish he entered by force); State v.

Cantrell, 2d Dist. Montgomery No. 26975, 2016-Ohio-7623, ¶ 12 (witness’s testimony that

defendant opened a screen door to walk through an open inner door of victim’s apartment

was sufficient to prove “force”); State v. McWilliams, 2d Dist. Greene No. 2000-CA-89,

2001 WL 1203395, *3 (Oct. 12, 2001) (”In Ohio, opening a closed but unlocked door

amounts to sufficient force to prove the element of force in the offense of Burglary”); State

v. Lane, 50 Ohio App.2d 41, 46, 361 N.E.2d 535 (10th Dist.1976) (affirming burglary

conviction of defendant who “forced open a closed but unlocked door”).

       {¶ 27} Brock’s second assignment of error is overruled.

          Assignments of Error #3, #4 – Ineffective Assistance of Counsel
                                                                                           -12-


       {¶ 28} Both of Brock’s remaining assignments of error maintain that he was denied

the effective assistance of counsel, in violation of his constitutional rights. In his fourth

assignment, Brock argues that his trial counsel performed deficiently by failing to move

for acquittal under Crim.R. 29 based on the lack of proof as to venue. His third assignment

of error contends that his trial counsel had an improper conflict of interest because the

same attorney previously had represented McNeil in two criminal matters.

       a. Standard of Review

       {¶ 29} To establish ineffective assistance of counsel, a defendant must

demonstrate both that trial counsel’s conduct fell below an objective standard of

reasonableness and that the errors were serious enough to create a reasonable

probability that, but for the errors, the outcome of the case would have been different.

See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Hindsight is not

permitted to distort the assessment of what was reasonable in light of counsel’s

perspective at the time, and a debatable decision concerning trial strategy cannot form

the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d

516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, 84 N.E.3d 193,

¶ 38 (2d Dist.). Trial counsel is also entitled to a strong presumption that his or her conduct

fell within the wide range of reasonable assistance. Strickland at 689.

       b. Assignment of Error #4 – Trial Counsel’s Failure to Challenge Venue

       {¶ 30} We determined above with respect to Brock’s first assignment of error that

the record contains sufficient evidence to establish that Brock was tried in the proper

venue. Accordingly, Brock’s contention that his trial counsel rendered ineffective
                                                                                            -13-


assistance by failing to challenge venue through a Crim.R. 29 motion lacks substantive

merit.

         {¶ 31} Brock’s fourth assignment of error is overruled.

         c. Assignment of Error #3 – Trial Counsel’s Alleged Conflict of Interest

         {¶ 32} “Where there is a right to counsel, the Sixth Amendment to the United

States Constitution also guarantees that representation will be free from conflicts of

interest.” State v. Dillon, 74 Ohio St.3d 166, 167, 657 N.E.2d 273 (1995). To set forth a

viable claim of ineffective assistance based on an attorney’s alleged conflict of interest,

“appellant must demonstrate that an actual conflict of interest adversely affected his

counsel’s performance.” State v. Johnson, 2d Dist. Greene Nos. 09-CA-16, 10-CA-07,

2010-Ohio-2838, ¶ 44, quoting State v. Keith, 79 Ohio St.3d 514, 535, 684 N.E.2d 47

(1997); see also State v. Buhrman, 2d Dist. Greene No. 96-CA-145, 1997 WL 566154,

*3-4 (Sept. 12, 1997) (recognizing that to establish ineffective assistance of counsel

based on conflict of interest, defendant must show an actual rather than a potential

conflict, and that the conflict adversely affected counsel’s representation).

         {¶ 33} “A lawyer represents conflicting interests when, on behalf of one client, it is

his duty to contend for that which duty to another client requires him to oppose.” Dillon at

168, quoting State v. Manross, 40 Ohio St.3d 180, 182, 532 N.E.2d 735 (1988). “A

reviewing court cannot presume that the possibility for conflict resulted in ineffective

assistance of counsel.” Manross at 182.

         {¶ 34} Brock has not demonstrated that his trial attorney was subject to an actual

conflict of interest due to representing Brock after having represented prosecution witness
                                                                                          -14-


McNeil in two other criminal matters.1 Brock does not claim, and nothing in the record

suggests, that such representation was simultaneous or that the charges against McNeil

related in any way to this case. Rather, Brock faults his trial attorney for accepting the

representation despite the risk of a conflict, in violation of Prof.Cond.R. 1.7(a)(2), and for

failing to obtain Brock’s written, informed consent to the representation, in accordance

with Prof.Cond.R. 1.7(b)(2).

       {¶ 35} When an attorney’s alleged violation of the rules of professional conduct is

asserted as a basis for appeal, we lack jurisdiction to address that issue. See State v.

Robinson, 2d Dist. Greene No. 2013-CA-33, 2014-Ohio-1663, ¶ 24, citing State v.

Snyder, 6th Dist. Williams No. WM-08-004, 2009-Ohio-49, ¶ 35, 51 (“the issue of

ineffective assistance based upon a violation of the Rules of Professional Conduct * * * is

outside [an appellate court's] jurisdiction * * *.”); State ex rel. Buck v. Maloney, 102 Ohio

St.3d 250, 2004-Ohio-2590, 809 N.E.2d 20, ¶ 7-8 (Supreme Court of Ohio has exclusive

and absolute jurisdiction over discipline of attorneys); State v. Montgomery, 2013-Ohio-

4193, 997 N.E.2d 579, ¶ 36 (8th Dist.) (appellate courts “have no authority to address

claimed violations of the Rules of Professional Conduct”); Rice v. Lewis, 4th Dist. Scioto

No. 09CA3307, 2010-Ohio-1077, ¶ 51 (finding appellate court did not have jurisdiction

over whether attorney violated rules of professional conduct due to conflict of interest);

State v. Frazier, 8th Dist. Cuyahoga No. 62557, 1994 WL 50703, *9 (Feb. 17, 1994)



1
  The other matters Brock identifies are State v. McNeil, Clark C.P. No. 2014-CR-0024,
and State v. McNeil, Clark C.P. No. 2014-CR-0170. While the record does not reflect the
disposition of those cases, the Clark County Clerk of Courts’ website indicates that the
latter action was dismissed, see McNeil, Clark C.P. No. 2014-CR-0170 (May 21, 2014),
and that McNeil was convicted of a second-degree felony count of felonious assault in
McNeil, Clark C.P. No. 2014-CR-0024 (May 29, 2014).
                                                                                              -15-


(“Appellant may not rely upon a rule meant as a guide for attorneys to follow to maintain

the professionalism of the practice of law to support his assertion of error in the trial

proceedings”). Accordingly, we will not address that particular argument.

       {¶ 36} Irrespective of the rules of professional conduct, when defense counsel’s

previous representation of a trial witness is raised as the basis for an ineffective

assistance of counsel claim, appellate courts apply a “successive representation” rather

than a simultaneous representation analysis. See State v. Jones, 5th Dist. Stark Nos.

2007-CA-00041, 2007-CA-00077, 2008-Ohio-1068, ¶ 77. Successive representation

“differs materially” from simultaneous representation because “the attorney is no longer

beholden to the former client.” Id. Consequently, in a case involving successive

representation, the issue typically raised “is that an actual conflict will adversely affect trial

counsel’s performance because ‘the lawyer will fail to cross-examine the former client

rigorously for fear of revealing or misusing confidential information.’ ” Id., quoting Moss v.

United States, 323 F.3d 445, 467 (6th Cir.2003).

       {¶ 37} Although Brock here contends that his trial counsel’s prior representation of

McNeil “adversely affected [the attorney’s] performance during * * * the trial, including her

cross-examination of former client/key prosecution witness” McNeil, he does not identify

any particular line of questioning that his attorney failed to pursue and provides no other

specific examples of how his counsel’s performance purportedly was deficient. 2


2
  Brock does not assert that his defense attorney performed deficiently by failing to
impeach McNeil’s credibility through questioning her about her prior conviction. (See n.1,
above). We note that McNeil’s felonious assault conviction was “punishable by * * *
imprisonment in excess of one year,” and thus may have been admissible under Evid.R.
609(A)(1). Still, “[t]he decision whether or not to admit evidence under Evid. R. 609 is left
to the sound discretion of the trial court * * *.” State v. Lawson, 2d Dist. Montgomery No.
23456, 2010-Ohio-3114, ¶ 17. In addition, “[i]mpeachment of a witness by a prior felony
                                                                                           -16-


Conversely, the trial transcript demonstrates that defense counsel vigorously cross-

examined McNeil, repeatedly challenging her testimony regarding the force Brock

allegedly used to enter her residence, and also attempting to inject doubt as to the

credibility of McNeil’s denial that she invited Brock into her home. The record does not

support a conclusion that the conduct of Brock’s trial counsel fell below an objective

standard of reasonableness or that any omissions by that attorney in cross-examining

McNeil affected the outcome of Brock’s trial.

       {¶ 38} Brock’s third assignment of error is overruled.

                                        Conclusion

       {¶ 39} For the foregoing reasons, the judgment of the trial court will be affirmed.

                                       .............



HALL, J. and TUCKER, J., concur.


Copies sent to:

John M. Lintz
J. David Turner
Hon. Richard J. O’Neill




conviction * * * is specifically made ‘subject to Evid.R. 403.’ ” State v. Rhines, 2d Dist.
Montgomery No. 24417, 2012-Ohio-3393, ¶ 66 (Hall, J., concurring). Therefore, even had
Brock raised his attorney’s failure to introduce McNeil’s prior conviction as a basis for
Brock’s ineffective assistance claim, we could not say that his trial counsel performed
deficiently in that regard where the trial court, in the exercise of its discretion, might have
determined that the prejudicial effect of such evidence substantially outweighed its
probative value, in accordance with Evid.R. 403(A).
