[Cite as State v. Wofford, 2014-Ohio-3122.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. W. Scott Gwin, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 2013CA00186
SHIQUAN WOFFORD

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2013CR0526


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         July 14, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN D. FERRERO                                GEORGE URBAN
Prosecuting Attorney                           116 CLEVELAND AVE. N.W., SUITE 808
Stark County, Ohio                             Canton, Ohio 44702

By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South - Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2013CA00186                                                     2

Hoffman, P.J.


       {¶1}    Defendant-appellant Shiquan Wofford appeals his conviction entered by

the Stark County Court of Common Pleas on one count of burglary and one count of

domestic violence. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}    On March 31, 2013, Appellant and his girlfriend, Shawnee Holloway,

engaged in an argument at Holloway's residence.          Appellant stayed overnight with

Holloway on occasion. Holloway testified during the argument, Appellant kicked and

pushed her, then left the residence. When Appellant left the residence, Holloway locked

the door.     Appellant then started banging on the door to the residence.      Holloway

observed Appellant outside by the window. Afraid for her safety, Holloway ran to a

second floor bedroom of the house, and then heard Appellant coming through the

house.

       {¶3}    Deric Johnson, Holloway's brother, testified at trial he was staying

overnight at Holloway's residence on March 31, 2013. He overheard Holloway and

Appellant arguing, and ultimately called 911 at Holloway's request. He testified there

was glass in the residence due to a window being broken. Johnson dialed 911 from a

second floor bedroom, and the call was played to the jury during the testimony of

Johnson. Johnson was whispering during the call because he didn’t want Appellant to

find Holloway, who was hiding in the room. During the call, the sound of glass breaking

could be heard.

       {¶4}    Holloway ran to a neighbor's house, fearful Appellant would hurt her.
Stark County, Case No. 2013CA00186                                                   3


       {¶5}   Appellant claims to have entered the residence with a key in order to

retrieve his clothes.

       {¶6}   Officer Boyer of the Canton Police Department, responded to the 911 call,

and observed Holloway who appeared upset and tearful, with marks on her back and

right hand. Officer Boyer also observed a significant amount of glass on the inside of

the residence in the kitchen area. Appellant maintained the window was broken when

Holloway threw a cell phone from inside the residence.

       {¶7}   Appellant was indicted on one count of burglary, in violation of R.C.

2911.12(A)(3), and one count of domestic violence, in violation of R.C. 2929.25(A).

Following a jury trial, Appellant was convicted of the charges, and sentenced to six

months in prison.

       {¶8}   Appellant appeals, assigning as error:

       {¶9}   "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED

THE PLAYING OF A 911 TAPE THAT THE STATE OF OHIO DID NOT PROVIDE TO

APPELLANT THROUGH DISCOVERY IN A TIMELY MANNER.

       {¶10} "II. APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

       {¶11} "III. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S

MOTION TO SET ASIDE THE VERDICT AS INCONSISTENT.

       {¶12} "IV. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND

OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND
Stark County, Case No. 2013CA00186                                                         4


ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION, BECAUSE HIS

TRIAL COUNSEL PROVIDED INEFFECTIVE ASSITANCE [SIC]."

                                                 I.

        {¶13} In the first assignment of error, Appellant argues the trial court erred in

allowing the playing of the 911 tape despite the State's failure to timely provide the tape

to Appellant through the discovery process.

        {¶14} Appellant does not deny having knowledge of the tape or having been

provided with a copy of the tape prior to trial; rather, Appellant argues the State's failure

to timely provide the tape to Appellant's counsel prejudiced his ability to effectively

present a defense.

        {¶15} Pursuant to Ohio Criminal Rule 16, the trial court has discretion whether to

sanction the State for failure to timely provide the relevant discovery.

        {¶16} In State v. Darmond 135 Ohio St.3d 343, 2013-Ohio-966, the Ohio

Supreme Court addressed the issue presented herein, holding:

        {¶17} "The overall objective of the criminal rules ' ‘is to remove the element of

gamesmanship from a trial.’ ' Lakewood, 32 Ohio St.3d at 3, 511 N.E.2d 1138, quoting

State v. Howard, 56 Ohio St.2d 328, 333, 383 N.E.2d 912 (1978). The purpose of the

discovery rules 'is to prevent surprise and the secreting of evidence favorable to one

party.' Id.

        {¶18} "***

        {¶19} "Lakewood mentions several factors to be considered in the balancing

test: the extent of surprise or prejudice to the state if the testimony were allowed, the

impact that excluding the testimony would have on the trial, whether the violation was
Stark County, Case No. 2013CA00186                                                         5

willful or in bad faith, and the effectiveness of less severe sanctions. Id. at 5, 511 N.E.2d

1138

       {¶20} "***

       {¶21} "Crim.R. 16's emphasis on equal and reciprocal treatment of parties

clarifies that the strong preference expressed in Lakewood for imposing the least severe

sanction that will further the purposes of the discovery rules is a critical consideration

that must be taken into account in any criminal case before a severe sanction is

imposed for a discovery violation. We accordingly conclude that Lakewood applies to

discovery violations committed by the state, and we therefore answer the certified

question in the affirmative."

       {¶22} Based upon the above, we find the trial court did not abuse its discretion in

allowing the 911 tape at trial, as Appellant was able to present a defense, was aware of

the tape prior to trial, and has not demonstrated actual prejudice by the delay in being

provided the tape. The record does not affirmatively demonstrate the State willfully

failed to disclose the tape. Rather, the record indicates the State asserts the tape was

sent previously, but Appellant claimed to have not received the tape. Therefore, the

tape was resent.

       {¶23} The first assignment of error is overruled.

                                                 II.

       {¶24} In the second assignment of error, Appellant argues his conviction was

against the manifest weight and sufficiency of the evidence.

       {¶25} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,
Stark County, Case No. 2013CA00186                                                         6

reasonably could support a finding of guilt beyond a reasonable doubt. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) (stating that “sufficiency is

a test of adequacy”); State v. Jenks, 61 Ohio St.3d 259, 274, 574 N.E.2d 492 (1991).

The standard of review is whether, after viewing the probative evidence and inferences

reasonably drawn therefrom in the light most favorable to the prosecution, any rational

trier of fact could have found all the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979); Jenks, 61 Ohio St.3d at 273, 574 N.E.2d 492. Furthermore, a reviewing

court is not to assess “whether the state's evidence is to be believed, but whether, if

believed, the evidence against a defendant would support a conviction.” Thompkins, 78

Ohio St.3d at 390, 678 N.E.2d 541 (Cook, J., concurring).

       {¶26} Thus, when reviewing a sufficiency-of-the-evidence claim, an appellate

court must construe the evidence in a light most favorable to the prosecution. State v.

Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d

465, 477, 620 N.E.2d 50 (1993). A reviewing court will not overturn a conviction on a

sufficiency-of-the-evidence claim unless reasonable minds could not reach the

conclusion that the trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749

N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001).

       {¶27} When an appellate court considers a claim that a conviction is against the

manifest weight of the evidence, the court must dutifully examine the entire record,

weigh the evidence, and consider witness credibility. A reviewing court must bear in

mind, however, that credibility generally is an issue for the trier of fact to resolve. E.g.,

State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. DeHass, 10 Ohio
Stark County, Case No. 2013CA00186                                                          7


St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Once

the reviewing court finishes its examination, the court may reverse the conviction only if

it appears that the fact-finder, when resolving the conflicts in evidence, “ ‘clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.' " Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶28} If the prosecution presented substantial evidence upon which the trier of

fact reasonably could conclude, beyond a reasonable doubt, that the essential elements

of the offense had been established, the judgment of conviction is not against the

manifest weight of the evidence. State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132

(1978), syllabus. Generally, a reviewing court should find a conviction against the

manifest weight of the evidence only in the “ ‘exceptional case in which the evidence

weighs heavily against the conviction.' " Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717; accord State v. Lindsey,

87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).

       {¶29} As an appellate court, we are not fact finders; we neither weigh the

evidence nor judge the credibility of witnesses. Our role is to determine whether there is

relevant, competent and credible evidence upon which the fact finder could base his or

her judgment. Cross Truck v. Jeffries, 5th Dist. No. CA–5758, 1982 WL 2911 (Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed as being against the

manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d

279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “ ‘[I]n
Stark County, Case No. 2013CA00186                                                         8


determining whether the judgment below is manifestly against the weight of the

evidence, every reasonable intendment and every reasonable presumption must be

made in favor of the judgment and the finding of facts. * * *.' " Eastley v. Volkman, 132

Ohio St.3d 328, 334, 972 N.E.2d 517, 2012–Ohio–2179, quoting Seasons Coal Co., Inc.

v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio

Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is

well established that the trial court is in the best position to determine the credibility of

witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing

State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d 212(1967).

       {¶30} Appellant was convicted of burglary, in violation of R.C. 2911.12(A)(3),

which reads,

       {¶31} "(A) No person, by force, stealth, or deception, shall do any of the

following:

       {¶32} "***

       {¶33} "(3) Trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure, with purpose to commit in the

structure or separately secured or separately occupied portion of the structure any

criminal offense."

       {¶34} Appellant maintains his conviction for burglary is against the manifest

weight and sufficiency of the evidence as there is no evidence he used force, stealth or

deception to enter the residence; rather, he entered the residence with a key. Appellant

argues there was no witness to testify he entered the residence through the window,

and no witness testified to him having cuts or scrapes on his person. Appellant asserts
Stark County, Case No. 2013CA00186                                                        9


the window broke as a result of a cell phone being thrown by Holloway through the

window from inside the residence.

       {¶35} Again, the trier-of-fact is in the best position to weigh the evidence and

judge the credibility of the witnesses. The testimony and evidence presented at trial

was that Officer Boyer observed shattered glass on the inside of the residence, near the

broken window. On the playing of the 911 tape, the sound of glass breaking can be

heard, after Holloway had locked the door, and ran upstairs fearful of harm inflicted by

Appellant.

       {¶36} Second, Appellant argues his conviction for burglary is against the

manifest weight and sufficiency of the evidence because the element of purpose to

commit a crime was not satisfied. Specifically, Appellant observes the jury returned a

verdict of not guilty for domestic violence as to Appellant's kicking and pushing Holloway

prior to leaving the residence.

       {¶37} Upon review of the record, we find the trier-of-fact could infer Appellant

forcibly reentered the residence after previously having left, with the intent to commit the

crime of domestic violence.       Holloway testified at trial she was afraid and scared

Appellant was going to hurt her.

       {¶38} Accordingly, Appellant's conviction for burglary was not against the

manifest weight and sufficiency of the evidence.

       {¶39} The second assignment of error is overruled.

                                                III.

       {¶40} In the third assigned error, Appellant maintains the trial court erred in

denying his motion to set aside the verdict as inconsistent.
Stark County, Case No. 2013CA00186                                                     10


      {¶41} Appellant was convicted of burglary, in violation of R.C. 2911.12(A)(3), set

forth above. As to the elements of burglary, the jury was instructed:

      {¶42} "The defendant is charged with burglary. Before you can find the

defendant guilty, you must find beyond a reasonable doubt that on or about the 31 day

of March, 2013, in Stark County, Ohio, the defendant, by force or stealth, trespassed in

an occupied structure or in a separately secured or separately occupied portion of an

occupied structure with the purpose to commit the offense of domestic violence.

      {¶43} "***

      {¶44} "A person acts [sic] is purposely when it is his specific intention to cause a

certain result. It must be established in this case that at the time in question there was

present in the mind of the defendant a specific intention to commit the offense of

domestic violence while on the land or premises of another without privilege."

      {¶45} Tr. at 257-258.

      {¶46} As to the elements of domestic violence, the jury was instructed:

      {¶47} "In this case, the offense of domestic violence is an essential element of

the crime of burglary. To prove domestic violence, the state must prove beyond a

reasonable doubt that on or about the 31 day of March, 2013, and in Stark County,

Ohio, the defendant knowingly cause or attempted to cause physical harm to a family or

household member, being Shawnee Holloway."

      {¶48} Tr. at 261.

      {¶49} Pursuant to the statute, an accused need only have purpose to commit a

criminal offense for the underlying offense in an aggravated burglary charge. There is
Stark County, Case No. 2013CA00186                                                      11

no requirement the criminal charge be completed. State v. Gardner, 118 Ohio St.3d

420, 2008-Ohio-2787.

       {¶50} As set forth in our analysis and disposition of Appellant's second assigned

error, in this case, the trial court reasonably construed Appellant's intent in reentering

the residence as intending to commit the act of domestic violence. The fact the jury

acquitted Appellant of domestic violence for his alleged conduct prior to leaving the

residence is not inconsistent with inferring his purpose to commit domestic violence

upon forcibly reentering. As a general rule, inconsistent verdicts on separate counts of

an indictment will not result in reversal of a conviction.

       {¶51} Appellant's third assigned error is overruled.

                                                 IV.

       {¶52} In the fourth assignment of error, Appellant argues he was denied

effective assistance of trial counsel.

       {¶53} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such

claims, “a court must indulge 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.' " Id. at 689, citing Michel v. Louisiana, 350 U.S. 91,

101, 76 S.Ct. 158 (1955).

       {¶54} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in
Stark County, Case No. 2013CA00186                                                     12

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690.

       {¶55} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show 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.

       {¶56} Appellant argues his trial counsel was ineffective in failing to request an

instruction on the lesser offense of criminal trespass. Appellant's trial strategy was to

procure an outright acquittal on all charges. Part of his defense strategy was that he did

not trespass at all.   To request an instruction on criminal trespass would serve to

undermine that defense, and be inconsistent with his own version of the incident.

Counsel was not ineffective in this regard.

       {¶57} Appellant further argues he had additional witnesses he wished to have

testify at trial, and counsel did not contact the witnesses. However, Appellant does not

identify what those witnesses would have testified. Appellant cannot demonstrate on

this record the outcome of the trial would have been different had the proposed

witnesses testified. Therefore, Appellant has failed to demonstrate prejudice as a result

of counsel's alleged error.

       {¶58} The fourth assigned error is overruled.
Stark County, Case No. 2013CA00186                                          13


      {¶59} Appellant's conviction in the Stark County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Gwin, J. and

Wise, J. concur
