[Cite as State v. Triona, 2016-Ohio-5163.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. W. Scott Gwin, J.
                                             :       Hon. William B. Hoffman, J.
-vs-                                         :
                                             :
ANTHONY B. TRIONA                            :       Case No. 16-CA-6
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court,
                                                     Case No. 15CRB01644




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 27, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

J. MICHAEL KING                                      ANDREW T. SANDERSON
40 West Main Street                                  73 North Sixth Street
Fourth Floor                                         Newark, OH 43055
Newark, OH 43055
Licking County, Case No. 16-CA-6                                                          2

Farmer, P.J.

       {¶1}    On September 14, 2015, appellant, Anthony Triona, was charged with one

count of assault in violation of R.C. 2903.13.      Said charge arose form an incident

involving appellant and his girlfriend, Audra Burton.

       {¶2}    A bench trial was held on December 28, 2015. By judgment entry filed

same date, the trial court found appellant guilty and sentenced him to ninety days in jail.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶4}    "THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL."

                                             I

       {¶5}    Appellant claims he was denied effective assistance of trial counsel as his

counsel failed to object to testimony concerning a prior incident that had occurred on the

same date as the subject offense. We disagree.

       {¶6}    The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:



               2. Counsel's performance will not be deemed ineffective unless and

       until counsel's performance is proved to have fallen below an objective

       standard of reasonable representation and, in addition, prejudice arises

       from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2
Licking County, Case No. 16-CA-6                                                          3

       O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

              3. To show that a defendant has been prejudiced by counsel's

       deficient performance, the defendant must prove that there exists a

       reasonable probability that, were it not for counsel's errors, the result of

       the trial would have been different.



       {¶7}   It is important to note this case was tried to the bench, and "the trial court

is presumed to know the applicable law and apply it accordingly. In addition, the trial

court is presumed to consider only reliable, relevant, and competent evidence unless it

affirmatively appears to the contrary." State v. Waters, 8th Dist. Cuyahoga No. 87431,

2006-Ohio-4895, ¶ 18, citing State v. Richey, (1992), 64 Ohio St.3d 353 (1992).

       {¶8}   Appellant was convicted of assaulting Ms. Burton. Appellant complains of

his counsel's failure to object to testimony regarding a prior uncharged incident that had

occurred on the same date as the subject offense.

       {¶9}   On direct examination, Ms. Burton, in describing the events that occurred

on the day in question, started her testimony by explaining "the incident occurred after

the police were there a first time. They waited until he had a ride from his brother, so

you know, to leave. And then about, you know, 20, 30 minutes later," she permitted

appellant to return to retrieve some belongings when the charged offense occurred. T.

at 6. Ms. Burton admitted to being drunk and an argument between the two ensued. T.

at 6-7. She called "911 the second time that night." T. at 7. The prosecutor then asked

her about the first uncharged incident (T. at 8):
Licking County, Case No. 16-CA-6                                                       4




             Q. And if I understood you correctly, there were actually two

      incidents?

             A. Yes.

             Q. The first one, do you recall about what time it would have

      occurred?

             A. I would say it happened around 12:45 or so. I can't tell you - - I

      can't, I'm not exactly sure what time it was. I know that the - - that the

      police were there for quite a while, waiting on, you know, Brice [appellant]

      to have a ride back and everything.

             Q. Okay. And Mr. Triona, he was there when the police arrived the

      first time?

             A. Yes.

             Q. And it wasn't this officer seated here at the table, correct?

             A. No.

             Q. Okay. So basically, they allowed him to stay there until - - and

      they remained there until his brother arrived for a ride?

             A. Yeah, they waited outside in the - - yeah, outside, I believe in the

      UDF parking lot, waiting for his brother.



      {¶10} Ms. Burton did not testify to what had occurred during the first uncharged

incident. On cross-examination, defense counsel elicited testimony from Ms. Burton

about her alcohol consumption that day, and asked her about the day's events. T. at
Licking County, Case No. 16-CA-6                                                            5


15-16. Ms. Burton agreed the two engaged in emotionally charged arguments and she

admitted to slapping and shoving appellant during the first incident. T. at 17-18. On re-

direct, the prosecutor asked Ms. Burton what prompted her to touch appellant, and she

explained "he's accusing me of cheating on him and he had me over the kitchen table

and started hitting me with [h]is belt." T. at 25.

       {¶11} Appellant testified in his own defense and stated the first uncharged

incident involved mutual combat. T. at 36.

       {¶12} Defense counsel established Ms. Burton was intoxicated and used the first

uncharged incident to establish she had slapped appellant and permitted him to return

to her residence. In closing argument, defense counsel argued self-defense. T. at 40.

This court must accord deference to defense counsel's strategic choices made during

trial and "requires us to eliminate the distorting effect of hindsight." State v. Post, 32

Ohio St.3d 380, 388 (1987).

       {¶13} Given the minimal testimony concerning the first uncharged incident, we

cannot find any prejudice to appellant. In fact, appellant bootstrapped his own defense

of mutual combat by using the first uncharged incident in his testimony.

       {¶14} Further, in finding appellant guilty, there is no indication that the trial court

was influenced by the testimony of the first uncharged incident or that it relied on the

testimony in arriving at its decision. T. at 41.

       {¶15} Upon review, we do not find any prejudice to appellant on the complained

of issue.

       {¶16} The sole assignment of error is denied.
Licking County, Case No. 16-CA-6                                               6


      {¶17} The judgment of the Municipal Court of Licking County, Ohio is hereby

affirmed.

By Farmer, P.J.

Gwin, J. and

Hoffman, J. concur.




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