[Cite as State v. Butler, 2012-Ohio-5030.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2012-CA-7
JOEL L. BUTLER                                 :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Holmes County
                                                   Court of Common Pleas, Case
                                                   No.11CR078

JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            October 19, 2012

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

STEVE KNOWLING                                     DAVID HUNTER
Prosecuting Attorney                               244 West Main Street
SEAN M. WARNER                                     Loudonville, OH 44842
Assistant Prosecuting Attorney
164 E. Jackson Street
Millersburg, OH 44654
[Cite as State v. Butler, 2012-Ohio-5030.]


Gwin, P.J.

        {¶1}     Appellant Joel L. Butler [“Butler”] appeals from the March 13, 2012 and

March 19, 2012 entries of the Holmes County Court of Common Pleas Court convicting

and sentencing him after a jury trial on one count of Domestic Violence and one count

of Disrupting Public Service. The plaintiff-appellee is the State of Ohio.

                                             Facts and Procedural History

        {¶2}     Butler and his wife, Elizabeth, have been married for 24 years. On July 12,

2011, Elizabeth arrived home from work and an argument ensued between the two over

divorce papers. Elizabeth went into the bedroom and called the Sheriff’s Office for a

"civil standby." Elizabeth testified that Butler had come into the bedroom and surmised

that she had called the police. Butler then left the bedroom; however, he returned,

pulled out a kitchen knife from his back pocket, raised it over his shoulder and

proceeded toward Elizabeth. Elizabeth tried dialing 911 with her cell phone. Butler

"grabbed the phone, twisted it back and he snapped it on the bed, threw it up against

the bed and said [Elizabeth] wasn't fuckin' callin' anyone." Although there was a landline

telephone and another cell phone on the premises, Elizabeth was unable to reach either

of them during Butler’s attack.

        {¶3}     After breaking his wife's phone, Butler "brought the knife down..." and

"sliced down through the middle finger, index and pinkie" of Elizabeth when she

attempted to block the knife. She testified, "It wasn't real deep but it did cut me." She

further testified that Butler came behind her and the two of them fell to the floor and

Butler tried to cut Elizabeth’s throat but she held his hand and was pushing it away.
Holmes County, Case No. 2012-CA-7                                                          3


       {¶4}   Butler released Elizabeth; however, he made her call the Sheriff's

Department to cancel her request for a civil standby. Sergeant Wade Johnson of the

Holmes County Sheriff's office arrived a few minutes later as Elizabeth was loading

boxes in her car. Sergeant Johnson testified that Elizabeth was "crying, upset, almost

hysterical.” Sergeant Johnson noticed the injuries to Elizabeth’s hand shortly after

arriving.

       {¶5}   When Sergeant Johnson approached Butler, he admitted that he had

broken the phone in half because he and Elizabeth were arguing. Butler claimed no

knife was involved in the altercation. Sergeant Johnson photographed the knife

identified by Elizabeth as the one used by Butler during the altercation. He also

photographed her injuries and the broken cell phone. The photographs were admitted in

to evidence. The knife was lost before trial.

       {¶6}   Butler was charged in a three-count indictment with Domestic Violence in

violation of R.C. 2919.25(A); Disrupting Public Service in violation of R.C.

2909.04(A)(1); and Felonious Assault in violation of R.C. 2903.11(A)(2).

       {¶7}   Butler did not testify or present evidence on his own behalf during the trial.

       {¶8}   After instruction by the Court and deliberation, the jury returned verdicts of

guilty of Domestic Violence, guilty of Disrupting Public Service, and not guilty of

Felonious Assault.

                                  ASSIGNMENTS OF ERROR

       {¶9}   Butler raises five assignments of error,

       {¶10} “I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION

TO DISMISS UNDER CRIM. R. 29(A) AT THE CLOSE OF THE STATE'S CASE-IN-
Holmes County, Case No. 2012-CA-7                                                      4


CHIEF BECAUSE THE PROSECUTION FAILED TO PROVE ITS CASE WITH

COMPETENT, CREDIBLE EVIDENCE.

       {¶11} “II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION

TO DISMISS UNDER CRIM. R. 29(A) AT THE CLOSE OF THE EVIDENCE BECAUSE

THE PROSECUTION FAILED TO PROVE ITS CASE WITH COMPETENT, CREDIBLE

EVIDENCE.

       {¶12} “III. THE JUDGMENT OF CONVICTION FOR DOMESTIC VIOLENCE AS

ALLEGED IN COUNT ONE OF THE INDICTMENT WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

       {¶13} “IV. THE JUDGMENT OF CONVICTION FOR DISRUPTING PUBLIC

SERVICE IN COUNT TWO OF THE INDICTMENT WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

       {¶14} “V.    THE    DEFENDANT-APPELLANT                  WAS   DENIED   EFFECTIVE

ASSISTANCE OF COUNSEL BECAUSE EVIDENCE OF A PRIOR CONVICTION WAS

TESTIFIED TO AND ARGUED BY THE STATE WITHOUT OBJECTION BY DEFENSE

COUNSEL.”

                                           I., II. III. & IV.

       {¶15} Because Butler’s first, second, third and fourth assignments of error each

require us to review the evidence, we shall address the assignments collectively.

       {¶16} In his first and second assignments of error, Butler alleges that the trial

court erred in not granting his Crim. R. 29 motion for acquittal.

       {¶17} In determining whether a trial court erred in overruling an appellant's

motion for judgment of acquittal, the reviewing court focuses on the sufficiency of the
Holmes County, Case No. 2012-CA-7                                                          5

evidence. See, e.g., State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965,

974(1995); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492(1991).

       {¶18} In his third and fourth assignments of error, Butler maintains that his

conviction is against the sufficiency of the evidence and against the manifest weight of

the evidence, respectively.

       {¶19} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, 558 U.S.120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶ 68.

       {¶20} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue

which is to be established before them. Weight is not a question of mathematics, but
Holmes County, Case No. 2012-CA-7                                                             6


depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

       {¶21} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“‘thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and

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

a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’” Id.

              “[I]n 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. * * *

              “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent

       with the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”
Holmes County, Case No. 2012-CA-7                                                        7

      {¶22} 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 60, at

191–192 (1978).

      {¶23} To find Butler guilty of Domestic Violence the trier of fact would have to

find that Butler knowingly caused or attempt to cause physical harm to a family or

household member. R.C. 2919.25(A). Physical harm to persons is defined as “any

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

R.C. 2901.01(A) (3).

      {¶24} R.C. 2901.22 defines “knowingly” as follows:

             (B) A person acts knowingly, regardless of his purpose, when he is

      aware that his conduct will probably cause a certain result or will probably

      be of a certain nature. A person has knowledge of circumstances when he

      is aware that such circumstances probably exist.

      {¶25} “Whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances, including the

doing of the act itself.” State v. Huff, 145 Ohio App. 3d 555, 563, 763 N.E.2d 695(2001).

(Footnote omitted.) Thus, “[t]he test for whether a defendant acted knowingly is a

subjective one, but it is decided on objective criteria.” State v. McDaniel, 2nd Dist. No.

16221, 1998 WL 214606 (May 1, 1998), citing State v. Elliott, 104 Ohio App.3d 812, 663

N.E.2d 412(1995).

      {¶26} R.C. 2923.02(A) provides a definition of attempt, "[n]o person, purposely

or knowingly, and when purpose or knowledge is sufficient culpability for the
Holmes County, Case No. 2012-CA-7                                                     8


commission of an offense, shall engage in conduct that, if successful, would constitute

or result in the offense."

       {¶27} The Ohio Supreme Court has held that a criminal attempt occurs when the

offender commits an act constituting a substantial step towards the commission of an

offense. State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059(1976), paragraph one of

the syllabus, overruled in part by State v. Downs, 51 Ohio St.2d 47, 364 N.E.2d

1140(1977); See also, State v. Ashbrook, 5th Dist. No.2004-CA-00109, 2005-Ohio-740,

reversed on other grounds and remanded for re-sentencing pursuant to State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, In re: Ohio Criminal Sentencing Statutes Cases, 109

Ohio St.3d 313, 2006-Ohio-2109.

       {¶28} In defining a substantial step, the Woods Court indicated that the act need

not be the last proximate act prior to the commission of the offense. Woods at 131-32,

357 N.E.2d 1059. However, the act "must be strongly corroborative of the actor's

criminal purpose." Id. at paragraph one of the syllabus. This test “properly directs

attention to overt acts of the defendant which convincingly demonstrate a firm purpose

to commit a crime, while allowing police intervention, based upon observation of such

incriminating conduct, in order to prevent the crime when the criminal intent becomes

apparent.” Woods, supra at 132, 357 N.E.2d at 1063. In other words, a substantive

crime would have been committed had it not been interrupted. Precisely what conduct

will be held to be a substantial step must be determined by evaluating the facts and

circumstances of each particular case. State v. Group, 98 Ohio St.3d 248, 262, 2002-

Ohio-7247, 781 N.E.2d 980(2002), ¶100.
Holmes County, Case No. 2012-CA-7                                                          9


       {¶29} Butler does not dispute that Elizabeth was a ““family or household

member.” Further, Elizabeth and Sergeant Johnson each testified to the injuries visible

on Elizabeth after the incident. Photographs of the injuries were submitted to the jury.

       {¶30} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Butler had committed the crime of Domestic Violence.

       {¶31} We hold, therefore, that the state met its burden of production regarding

each element of the crime of Domestic Violence and, accordingly, there was sufficient

evidence to submit the charge to the jury and to support Butler's conviction.

       {¶32} To find Butler guilty of Disrupting Public Service as charged in the

indictment the trier of fact would have to find (1) conduct that interrupted or impaired (2)

public service communications. The statute unambiguously specifies that in order for

one to disrupt public services under R.C. 2909.04(A)(3), the conduct involved must be

the knowing damaging of or tampering with any property. State v. Robinson, 124 Ohio

St.3d 76, 2009-Ohio-5937, 919 N.E.2d 190, ¶23.

       {¶33} The word “property” is defined in R.C. 2901.01(A)(10)(a) as follows:

              ‘Property’ means any property, real or personal, tangible or

       intangible, and any interest or license in that property. ‘Property’ includes,

       but is not limited to * * * telecommunications devices * * *.

       {¶34} R.C. 2901.01(A)(10)(c) provides that the term “telecommunications

device,” as it is used in division (A)(10), has the same meaning as in R.C. 2913.01.

              “Telecommunications device” is defined in R.C. 2913.01(Y) as:
Holmes County, Case No. 2012-CA-7                                                       10


              [A]ny instrument, equipment, machine, or other device that

       facilitates telecommunication, including, but not limited to, a computer,

       computer network, computer chip, computer circuit, scanner, telephone,

       cellular telephone, pager, personal communications device, transponder,

       receiver, radio, modem, or device that enables the use of a modem.

(Emphasis added.)

       {¶35} In Robinson, the Supreme Court noted that the reference to “damaging or

tampering with any property” in R.C. 2909.04(A) includes property such as a private

telephone or a mobile telephone. 124 Ohio St.3d 76, 2009-Ohio-5937, 919 N.E.2d 190,

¶ 29. Once it is determined that a defendant damaged or tampered with a victim's

telephone, the next consideration is whether that act “substantially impairs the ability of

law-enforcement officers, firefighters, rescue personnel, emergency-medical-services

personnel, or emergency facility personnel to respond to an emergency or to protect

and preserve any person or property from serious physical harm” in order to constitute a

violation of R.C. 2909.04(A)(3). Id. at ¶ 32, 919 N.E. 2d 190.

       {¶36} In Robinson, as in the case at bar, the defendant smashed the victim's

telephone, destroying it. Id. at ¶ 8, 919 N.E. 2d 190. In Robinson, the victim was already

in contact with 9-1-1 when Robinson destroyed the victim's mobile telephone, rendering

the victim unable to provide complete information to the police. Id. at ¶ 7-8, 38, 919 N.E.

2d 190. However, the police were able to locate the scene from the information the

victim had provided, as well as from a second telephone call from another party about

their general whereabouts. Id. at ¶ 9-10, 39.
Holmes County, Case No. 2012-CA-7                                                          11


       {¶37} The facts in the case at bar demonstrate “substantial interference.” Here

Elizabeth was attempting to dial 9-1-1 at the time Butler grabbed the telephone away

and smashed it. In the case of a suspected assault, it is important for emergency

personnel to reach the victim immediately to prevent further harm to the victim. During

the period following the destruction of the telephone, Elizabeth was assaulted with a

knife. Butler further forced Elizabeth to call and cancel her request for a “civil stand by.”

       {¶38} In State v. Yoakum, we held appellee is not required to prove that an

actual 9-1-1 emergency call was in progress when the telephone was disabled by the

defendant throwing it against the wall. 5th Dist. No. 01 CA005, 2002–Ohio–249, at *2,

citing State v. Brown, 97 Ohio App.3d 293, 301, 646 N.E.2d 838 (8th Dist.1994).

       {¶39} In short, the State established Butler committed the conduct prohibited by

R.C. 2909.04(A)(1): he took the phone from Elizabeth, breaking it and preventing her

from calling the police. Elizabeth was at least temporarily delayed in seeking emergency

assistance. Yoakum, ¶20.

       {¶40} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Butler had committed the crime of Disrupting Public Service.

       {¶41} We hold, therefore, that the State met its burden of production regarding

each element of the crime of Disrupting Public Service and, accordingly, there was

sufficient evidence to submit the charge to the jury and to support Butler's conviction.

       {¶42} To find Butler guilty of Felonious Assault the trier of fact would have to find

that Butler knowingly caused serious physical harm or caused or attempted to cause

physical harm by means of a deadly weapon.
Holmes County, Case No. 2012-CA-7                                                      12


       {¶43} Serious physical harm to persons” as defined in R.C. 2901.01(A)(5)

means any of the following in pertinent part:

       {¶44} (a) Any mental illness or condition of such gravity as would

normally require hospitalization or prolonged psychiatric treatment;

       {¶45} (b) Any physical harm that carries a substantial risk of death;

       {¶46} (c) Any physical harm that involves some permanent incapacity,

whether partial or total, or that involves some temporary, substantial incapacity.

       {¶47} “Deadly weapon” means any instrument, device, or thing capable of

inflicting death, and designed or specially adapted for use as a weapon, or possessed,

carried, or used as a weapon. R.C. 2923.11(A).

       {¶48} “Physical harm to persons” means any injury, illness, or other

physiological impairment, regardless of its gravity or duration. R.C. 2901.01(A)(3).

       {¶49} A kitchen knife has been held to constitute a “deadly weapon.” State v.

Brown, 8th Dist. No. 87651, 2006-Ohio-6267, ¶42; State v. Heath, 2nd Dist. No. 19350,

2003-Ohio-1262, ¶27. In the case at bar, Sergeant Johnson photograph the knife

Elizabeth showed him as having been used by Butler to cut her. (T. at 95-96). Sergeant

Johnson testified the knife had a four-inch handle and an eight to ten inch blade. (Id. at

95).

       {¶50} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Butler had committed the crime of Felonious Assault. A

photograph of the knife was admitted into evidence. The knife itself was lost and

therefore unavailable to utilize as an exhibit.
Holmes County, Case No. 2012-CA-7                                                             13


       {¶51} We hold, therefore, that the state met its burden of production regarding

each element of the crime of Felonious Assault and, accordingly, there was sufficient

evidence to submit the charge to the jury. The jury found Butler not guilty of Felonious

Assault.

       {¶52} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, ¶31,

quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 81.

In other words, “[w]hen there exist two fairly reasonable views of the evidence or two

conflicting versions of events, neither of which is unbelievable, it is not our province to

choose which one we believe.” State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-1152,

at ¶ 13, citing State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125.

       {¶53} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983). The jury was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence". State v. Craig, 10th Dist. No. 99AP-739, 1999 WL 29752
Holmes County, Case No. 2012-CA-7                                                    14

(Mar 23, 2000) citing State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 WL 284714

(May 28, 1996). Indeed, the jury need not believe all of a witness' testimony, but may

accept only portions of it as true. State v. Raver, 10th Dist. No. 02AP-604, 2003- Ohio-

958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v.

Burke, 10th Dist. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79

Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have

been circumstantial, we note that circumstantial evidence has the same probative value

as direct evidence. State v. Jenks, supra.

             “[I]n 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. * * *

             “If the evidence is susceptible of more than one construction, the

      reviewing court is bound to give it that interpretation which is consistent

      with the verdict and judgment, most favorable to sustaining the verdict and

      judgment.”

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 60, at 191–192 (1978).

      {¶54} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the

Supreme Court further cautioned,

             The mere number of witnesses, who may support a claim of one or

      the other of the parties to an action, is not to be taken as a basis for

      resolving disputed facts. The degree of proof required is determined by
Holmes County, Case No. 2012-CA-7                                                        15


       the impression which the testimony of the witnesses makes upon the trier

       of facts, and the character of the testimony itself. Credibility, intelligence,

       freedom from bias or prejudice, opportunity to be informed, the disposition

       to tell the truth or otherwise, and the probability or improbability of the

       statements made, are all tests of testimonial value. Where the evidence is

       in conflict, the trier of facts may determine what should be accepted as the

       truth and what should be rejected as false. See Rice v. City of Cleveland,

       114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added).

       {¶55} We find that this is not an “‘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. The jury as the trier of fact was

in the best position to evaluate this competent, credible evidence, and we will not

substitute our judgment for that of the trier of fact. The jury neither lost its way nor

created a miscarriage of justice in convicting Butler of Domestic Violence and Disrupting

Public Service.

       {¶56} Butler’s first, second, third and fourth assignments of error are overruled.

                                                V.

       {¶57} Butler’s fifth assignment of error is that he was denied the effective

assistance of counsel because trial counsel failed to object on two different occasions to

reference to Butler’s "prior Federal" conviction.

       {¶58} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of
Holmes County, Case No. 2012-CA-7                                                        16


reasonable representation involving a substantial violation of any of defense counsel's

essential duties to appellant. The second prong is whether the appellant was prejudiced

by counsel's ineffectiveness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

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

      {¶59} In order to warrant a finding that trial counsel was ineffective, the petitioner

must meet both the deficient performance and prejudice prongs of Strickland and

Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d

251(2009).

      {¶60} To show deficient performance, appellant must establish that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland, 466 U.S.

at 688, 104 S.Ct. at 2064. This requires showing that counsel made errors so serious

that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Counsel also has a duty to

bring to bear such skill and knowledge as will render the trial a reliable adversarial

testing process. Strickland, 466 U.S. at 688, 104 S.Ct. 2052 at 2065.

             Thus, a court deciding an actual ineffectiveness claim must judge

      the reasonableness of counsel's challenged conduct on the facts of the

      particular case, viewed as of the time of counsel's conduct. A convicted

      defendant making a claim of ineffective assistance must identify the acts

      or omissions of counsel that are alleged not to have been the result of

      reasonable professional judgment. The court must then determine

      whether, in light of all the circumstances, the identified acts or omissions

      were outside the wide range of professionally competent assistance. In
Holmes County, Case No. 2012-CA-7                                                      17


      making that determination, the court should keep in mind that counsel's

      function, as elaborated in prevailing professional norms, is to make the

      adversarial testing process work in the particular case. At the same time,

      the court should recognize that counsel is strongly presumed to have

      rendered adequate assistance and made all significant decisions in the

      exercise of reasonable professional judgment.

Strickland 466 U.S. 668 at 689,104 S.Ct. at 2064.

      {¶61} In light of “the variety of circumstances faced by defense counsel [and] the

range of legitimate decisions regarding how best to represent a criminal defendant,” the

performance inquiry necessarily turns on “whether counsel’s assistance was reasonable

considering all the circumstances.” Strickland, 466 U.S. 668 at 689,104 S.Ct. at 2064.

At all points, “[j]udicial scrutiny of counsel’s performance must be highly deferential.”

Strickland, 466 U.S. 668 at 689,104 S.Ct. at 2064.

      {¶62} An appellant must further demonstrate that he suffered prejudice from his

counsel’s performance. See Strickland, 466 U. S. at 691 (“An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he

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. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. To prevail on his ineffective-assistance claim,

appellant must show, therefore, that there is a “reasonable probability” that the trier of

fact would not have found him guilty.
Holmes County, Case No. 2012-CA-7                                                           18


      {¶63} Specifically, Butler cites the following exchange that occurred during his

jury trial between the prosecutor and Elizabeth,

             Q:     And the mobile home that's in dispute, why is the title in your

      name?

             A:     Because of Joel's previous run ins with the law, with the

      Federal; his past history with [sic.]

             Q:     Was he found guilty of a Federal offense?

             A:     Yes he was.

             Q:     Was there a fine?

             A.     Yes there was.

             Q.     Okay um, so is there a Judgment in favor of the United

                    States?

             A.     Yes.

             Q.     Okay and, and could the United States take a lien on titled

                    property in Joel’s name?

             A.     Yes.

      T. at 154-155. During closing argument, the prosecutor remarked,

             If Elizabeth Butler, [sic.] she also testified that the title of the trailer

      is in her name as was the course of their marriage[sic.] to title all things in

      her name because of a prior conviction of Mr. Butler for a Federal offense

      with a judgment lien attached. Which means, the government would take a

      lien on anything that's titled in Joel Butler's name. That's what they've

      done prior to the how many years since his conviction.
Holmes County, Case No. 2012-CA-7                                                       19


T. at 168

       {¶64} Butler claims that his trial counsel failed to object to the references to his

“federal conviction” and that these references to prior criminal acts were prejudicial to

him.

       {¶65} “‘The failure to object to error, alone, is not enough to sustain a claim of

ineffective assistance of counsel.’” State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d

136(1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831(1988).

We must be mindful of the “ * * * elementary proposition of law that an appellant, in

order to secure reversal of a judgment against him, must not only show some error but

must also show that that error was prejudicial to him.” See Smith v. Flesher, 12 Ohio St.

2d 107, 233 N.E. 2d 137(1967); State v. Stanton, 15 Ohio St.2d 215, 217, 239 N.E.2d

92, 94(1968); Wachovia Mtg. Corp. v Aleshire, 5th Dist No.Licking App. No. 09 CA 4,

2009-Ohio-5097 at ¶16. See, also, App.R. 12(D).

       Evid. R. 404 provides in part:

              (A) Character evidence generally,

                     Evidence of a person's character or a trait of his character is

       not admissible for the purpose of proving that he acted in conformity

       therewith on a particular occasion, subject to the following exceptions:

              ***

              (B) Other crimes, wrongs or acts.

                     Evidence of other crimes, wrongs, or acts is not admissible

       to prove the character of a person in order to show that he acted in

       conformity therewith. It may, however, be admissible for other purposes,
Holmes County, Case No. 2012-CA-7                                                     20


      such as proof of motive, opportunity, intent, preparation, plan, knowledge,

      identity, or absence of mistake or accident.

      {¶66} Thus, Evid.R. 404 provides that character evidence is admissible for some

limited purposes. In the case at bar, the evidence was admitted to rebut a claim by the

defense that Elizabeth had a motive to fabricate her account of the altercation in order

to obtain possession of the mobile home in the divorce proceedings.

      {¶67} Further, where there is sufficient independent evidence of a defendant's

guilt, which renders the admitted evidence harmless, there is no prejudice and reversal

is unwarranted. State v. Moritz, 63 Ohio St.2d 150, 407 N.E.2d 1268(1980). (Citing

Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059(1972)); State v.

Stevenson, 5th Dist. No. 2005-CA-00011, 2005-Ohio-5216 at ¶ 46.

      {¶68} In light of the fact that the jury acquitted Butler of Felonious Assault and

the overwhelming evidence of his guilt on the two remaining counts of the indictment,

we find Butler has failed in his burden to demonstrate that the jury would have found

him not guilty of the remaining charge had his attorney objected to the references and if

the references had been excluded by the trial court.

      {¶69} Butler’s fifth assignment of error is overruled.
Holmes County, Case No. 2012-CA-7                                                21


      {¶70} For the foregoing reasons, the judgment of the Court of Common Pleas, of

Holmes County, Ohio, is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur


                                          _________________________________
                                          HON. W. SCOTT GWIN


                                          _________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          _________________________________
                                          HON. JOHN W. WISE




WSG:clw 1004
[Cite as State v. Butler, 2012-Ohio-5030.]


               IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
JOEL L. BUTLER                                    :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2012-CA-7




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas, of Holmes County, Ohio, is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN


                                                      _________________________________
                                                      HON. JOHN W. WISE
