[Cite as State v. Dukes, 2019-Ohio-2893.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. No.    27966

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
LAVONTE DUKES                                          COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 2015-04-1156

                                 DECISION AND JOURNAL ENTRY

Dated: July 17, 2019



        HENSAL, Judge.

        {¶1}     Lavonte Dukes appeals his convictions and sentence in the Summit County Court

of Common Pleas for felonious assault, vandalism, and breaking and entering. For the following

reasons, this Court affirms in part and reverses in part.

                                                  I.

        {¶2}     On February 25, 2015, officers John Morgan and James Hadbavny responded to a

report of domestic violence at a residence in Akron. They parked their cruiser a short distance

from the house and began walking in the street towards it. As they did, they saw a dark van

leaving the driveway of the house. At first, the van stopped and went back into the driveway.

Moments later, however, it sped out of the driveway and headed straight at them. The officers

jumped out of the way and identified Mr. Dukes as the driver of the van as it went by them.

After passing the officers, the van crashed into the officers’ cruiser and another vehicle before

continuing down the street. The officers attempted to pursue the van, but there was too much
                                                  2


damage to their cruiser. After returning to the house, a woman also told the officers that Mr.

Dukes had been the person driving the van.

          {¶3}   A few weeks later, someone broke into a storage facility owned by the City of

Akron. From evidence recovered at the scene, the police determined that it was Mr. Dukes. The

Grand Jury indicted Mr. Dukes for two counts of felonious assault and one count of vandalism

arising out of the February 25 incident. It later issued a supplemental indictment charging Mr.

Dukes with breaking and entering at the storage facility. Before trial, Mr. Dukes moved to

dismiss the charges for violation of his speedy trial rights. The trial court denied his motion, and

a jury found him guilty of the offenses. The trial court sentenced Mr. Dukes to a total of seven

and a half years imprisonment. Mr. Dukes has appealed, assigning six errors.

                                                 II.

                                   ASSIGNMENT OF ERROR I

          THE TRIAL COURT LACKED JURISDICTION TO CONVICT APPELLANT
          ON NON EXISTENT CHARGES UNDER OHIO LAW WHEN COUNT 1 & 2
          OF THE INDICTMENTS WERE VOID AB INITIO.

          {¶4}   Mr. Dukes argues that his convictions for felonious assault are invalid because the

indictment provided that the offenses were felonies of the second degree instead of felonies of

the first degree. He argues that, although felonious assault is usually a felony of the second

degree, because the alleged victims were peace officers, it elevated the offenses to a higher

degree.     R.C. 2903.11(D)(1).    According to Mr. Dukes, because the offense level of his

convictions is inconsistent with the officers’ status, the convictions are void.

          {¶5}   Before trial, the court explained to Mr. Dukes that the indicting prosecutor likely

made an error and could have moved the charges up a degree. The fact that the felonious assault

charges could have been felonies of the first degree, however, does not make them void. The
                                                 3


counts in the indictment charged all of the elements required for felonious assault, and the jury

found that all of those elements existed beyond a reasonable doubt. Mr. Dukes’s first assignment

of error is overruled.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY
       UPHOLDING THE JURY VERDICT, WHEN THE EVIDENCE PRESENTED
       AT TRIAL WAS CONTRARY TO THE INDICTED OFFENSE OF
       VANDALISM.

       {¶6}    Mr. Dukes next argues that the trial court incorrectly found that his vandalism

conviction was a felony of the fourth degree. Revised Code Section 2909.05(E) provides that

vandalism is a felony of the fifth degree unless “the value of the property or the amount of

physical harm involved is seven thousand five hundred dollars or more * * *.” The jury

specifically found that the value of the property or the amount of physical harm involved in this

case was less than $7,500. The trial court, however, incorrectly wrote in its sentencing entry that

Mr. Dukes’s vandalism conviction was a felony of the fourth degree. It is not clear from the

sentencing transcript whether the court also thought that Mr. Dukes’s conviction was a felony of

the fourth degree at the time that it sentenced him for the offense.

       {¶7}    Mr. Dukes also argues that the trial court incorrectly allowed the State to amend

the indictment. The indictment initially charged Mr. Dukes with committing an act of vandalism

that was a felony of the fourth degree. At the start of the trial, however, the State moved to

amend the count to a felony of the fifth degree. See Crim.R. 7(D). Mr. Dukes’s counsel

indicated that he had no objection to the amendment, to which Mr. Dukes is bound. State v.

Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, ¶ 24. Mr. Dukes, therefore, has forfeited his

right to challenge the amendment of the indictment unless it was plain error. See State v.

Chesler, 9th Dist. Lorain No. 07CA009292, 2008-Ohio-4496, ¶ 11. Mr. Dukes has not argued
                                                  4


that it was plain error for the trial court to allow the State to amend the indictment, and we

decline to develop an argument for him. Mr. Dukes’s second assignment of error is sustained to

the extent that the trial court mistakenly found that his vandalism conviction is a felony of the

fourth degree.

                                  ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY
       DENYING HIS MOTION TO DISMISS FOR [VIOLATION] OF
       APPELLANT[’]S SPEEDY TRIAL RIGHTS.

       {¶8}      Mr. Dukes next argues that the trial court should have dismissed the action

because the State violated his right to a speedy trial. “When reviewing an assignment of error

raising a violation of a criminal defendant’s right to a speedy trial, this court reviews questions of

law de novo.” State v. Bennett, 9th Dist. Summit No. 21121, 2003-Ohio-238, ¶ 5. We must

accept the factual findings of the trial court, however, “if they are supported by some competent,

credible evidence.” Id.

       {¶9}      Section 2945.71(C)(2) provides that a person who is accused of a felony shall be

brought to trial within 270 days. Because Mr. Dukes was held in jail during the pretrial period,

each day counted as three for speedy-trial purposes. R.C. 2945.71(E). The time is tolled,

however, during “any continuance granted on the accused’s own motion[.]” R.C. 2945.72(H).

       {¶10} Mr. Dukes argues that the trial court incorrectly counted the two-week period that

followed the May 14, 2015, pretrial hearing and arraignment as a continuance that he requested.

Mr. Dukes notes that, under the trial court’s local rules, the court was required to schedule a

pretrial hearing within three weeks of an arraignment. He argues that his counsel did not request

a continuance on May 14 but merely suggested a date for the required pretrial hearing.
                                                 5


        {¶11} At the May 14 hearing, the trial court asked whether they would be arraigning Mr.

Dukes on the supplemental indictment. The parties indicated that they would. Mr. Dukes’s

stand-in counsel then explained that Mr. Dukes intended to plead not guilty to the supplemental

charge. The parties discussed Mr. Dukes’s bond, and the court decided to leave it unchanged.

At the conclusion of the hearing, Mr. Dukes’s stand-in counsel asked for “[t]wo weeks[,]” and

the court indicated that two weeks would be fine. It held the next pretrial hearing on May 28,

2015.

        {¶12} The trial court found that the two-week period counted as a continuance requested

by Mr. Dukes.     Upon review of the record, we conclude that its finding is supported by

competent, credible evidence. Although the local rule requires the court to hold a pretrial

conference following an arraignment, it does not impose any particular period of delay. Mr.

Dukes, however, specifically requested that the court conduct the hearing two weeks after the

arraignment. This case is distinguishable from State v. Reuschling, 30 Ohio App.3d 81 (11th

Dist.1986), because the trial court’s journal entry in that case did not indicate that the date

selected for the pretrial conference was at the defendant’s request. Id. at 83.

        {¶13} Mr. Dukes also argues that the speedy trial time period was not tolled between

July 29, 2015, and August 12, 2015. Mr. Dukes, however, moved to dismiss the indictment on

speedy trial grounds on July 21, 2015, which tolled the running of the speedy trial clock until the

court decided his motion on August 12, 2015. State v. Hollaender, 9th Dist. Wayne Nos.

12CA0040, 13CA0006, 2014-Ohio-1782, ¶ 10.

        {¶14} Mr. Dukes also argues that the trial court unduly delayed ruling on his motion to

dismiss. See State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, ¶ 27. As previously noted,

Mr. Dukes filed his motion on July 21, 2015. On July 29, which is the day Mr. Dukes’s trial was
                                                  6


supposed to begin, the trial court heard oral arguments from the parties on the motion.

Following those arguments, the trial court explained that it was going to have to review the

written arguments and pull all of the journal entries that the court had issued in the case to date.

It, therefore, concluded that it was going to have to continue the trial. Looking at upcoming

dates, Mr. Dukes’s attorney explained that he had trials on August 10 and 11 but would be

available on August 12. The trial court, therefore, scheduled the trial for that date. The trial

court announced its ruling on the motion to dismiss at the start of trial on August 12. Upon

review of the record, we conclude that the trial court ruled on Mr. Dukes’s written motion to

dismiss within a reasonable time.

       {¶15} Mr. Dukes also argues that the trial court incorrectly amended the journal entry it

issued on May 22, 2015, nunc pro tunc, to indicate that it had schedule the pretrial for May 28 at

the request of Mr. Dukes’s attorney. According to Mr. Dukes, a court may not use a nunc pro

tunc order to retroactively grant a continuance in order to avoid a speedy trial violation.

       {¶16} A trial court may use a nunc pro tunc entry to correct clerical mistakes in a journal

entry so that it “reflect[s] what actually occurred in open court.” State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, ¶ 30. At the time that the trial court ruled on Mr. Dukes’s motion to

dismiss, it explained that it had reviewed its journal entries and discovered that it had not

indicated that it scheduled the pretrial conference for two weeks after Mr. Dukes’s arraignment

on the supplemental indictment at Mr. Dukes’s request. As we have previously explained, the

court’s finding that that is what occurred in open court is supported by competent, credible

evidence. We, therefore, conclude that the trial court could correct its May 22, 2015, journal

entry with a nunc pro tunc order.
                                                7


       {¶17} Mr. Dukes further argues that he did not agree to the continuance made by his

stand-in counsel at the May 14, 2015, hearing, asserting that there is nothing in the record that

establishes that he accepted stand-in counsel for the hearing. At the beginning of the May 14

hearing, the prosecutor announced that Mr. Dukes was present with an attorney who was

standing in for Mr. Dukes’s attorney of record with Mr. Dukes’s consent. Stand-in counsel also

stated that he was standing in for Mr. Dukes’s appointed counsel. Mr. Dukes did not object to

the attorney’s participation at the hearing, he did not lodge any objection to the stand-in

counsel’s actions at the next hearing, and he did not object to stand-in counsel’s actions in his

motion to dismiss. We, therefore, conclude that Mr. Dukes has forfeited his argument. Although

he has not forfeited review of the issue for plain error, he has not argued plain error in his

appellate brief, and we decline to construct an argument for him. Mr. Dukes’s third assignment

of error is overruled.

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY
       FAILING TO DECLARE A MISTRIAL BASED ON JUROR MISCONDUCT.

       {¶18}     Mr. Dukes next argues that the court should have declared a mistrial because one

of the jurors used an online map application to look up the location where the alleged breaking

and entering offense occurred and at least three jurors saw it. He also alleges that two of the

jurors lied about whether they had viewed the image.         According to Mr. Dukes, he was

prejudiced by the misconduct because at least one juror used the information to clear up

confusion he had about a drawing presented by the State.

       {¶19} When analyzing a case of alleged juror misconduct, the trial court must first

determine whether the misconduct actually occurred. State v. Thomas, 9th Dist. Summit No.

26893, 2014-Ohio-2920, ¶ 33. The court may rely on a juror’s testimony when making that
                                                  8


determination. See State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, ¶ 114. “The [United

States] Supreme Court clearly teaches that hearings on the issue * * * ‘will frequently turn upon

testimony of the juror in question’ * * *.’” State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-

3236, ¶ 30, quoting Smith v. Phillips, 455 U.S. 209, 217 (1982), fn. 7. “[T]he trial court [is]

entitled to believe or disbelieve all or part of the [jurors’] statements * * *” in determining

whether there was juror misconduct. State v. Morris, 9th Dist. Summit No. 25519, 2011-Ohio-

6594, ¶ 32. Further, the trial judge is in the best position to ascertain the nature of the alleged

jury misconduct and to fashion the appropriate remedy if the conduct did occur. State v.

Wharton, 9th Dist. Summit No. 23300, 2007-Ohio-1817, ¶ 25. “[E]ven when juror misconduct

has, in fact, occurred, a complaining party must establish prejudice.” State v. Hickman, 9th Dist.

Summit No. 27321, 2015-Ohio-4668, ¶ 32. We review the denial of a motion for mistrial for an

abuse of discretion. Morris at ¶ 29.

       {¶20} During jury deliberations, the foreman of the jury delivered a note to the court

that explained that a juror had looked up an image of the location of the alleged breaking and

entering but claimed that the picture did not add or subtract any value or knowledge. The trial

court then interviewed each of the jurors, beginning with the foreman. The foreman explained

that they were going over photographs of the location when another juror mentioned that he had

looked at a picture of the building on his phone. He believed the juror also showed the image to

a juror sitting next to him. Suddenly, one of the other jurors realized that it was inappropriate,

and they decided to alert the court. The foreman opined that the incident would not affect his

deliberations and that he had actually driven past the location many times. He said that the

person who looked at the building on his phone did not add any information to their conversation

and that his view of the picture did not instigate any further discussion.
                                                 9


       {¶21} Two jurors stated that some jurors were curious about the area around where the

breaking and entering occurred, which prompted a juror to look it up on his phone. They had not

seen the picture, however, and did not believe it would affect their deliberations. Another juror

stated that she had seen the image, which she described as an aerial view of the location, but it

would not affect her deliberations because the image was worthless regarding the matters that

were before them. A juror who actually accessed the image stated that he did not realize that

using a map application would be inappropriate. He did not think he was investigating because

he did not zoom in on the location. He alleged that the image would not affect his deliberations

because what he saw was just like the State’s drawing and, at the time he looked at it, they were

just going over the charges again, “beating [them] like a dead horse[.]” Another juror who

separately looked up the location on the same application stated that he “didn’t understand the

drawing that the officer had made, so I just wanted to see that fence line or whatever.” He said

that he viewed an aerial picture of the location because he “just didn’t understand that drawing,

and I didn’t know how else to try to get a better understanding of that layout.” The juror did not

believe that his viewing of the image would affect his deliberations in any way.

       {¶22} Other jurors indicated that there were many conversations going on in the jury

room and so they were not aware of exactly what occurred until after the fact. Some of them

indicated that the infraction happened after they started deliberating on the breaking and entering

count, not when they were going back over the charges. The court found that the jurors had not

been influenced by the images and that it had not affected the fairness of the process.

       {¶23} Upon review of the record, we conclude that Mr. Dukes has not established that

he was prejudiced by the jurors’ accessing an aerial map of the property where the breaking and
                                                10


entering count allegedly occurred. The trial court, therefore, exercised appropriate discretion

when it denied his motion for mistrial. Mr. Dukes’s fourth assignment of error is overruled.

                                 ASSIGNMENT OF ERROR V

       APPELLANT’S CONVICTION WAS BASED UPON INSUFFICIENT
       EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF EVIDENCE TO
       SUSTAIN CONVICTION, THE TRIAL COURT ERRED BY DENYING
       APPELLANT’S CRIM.R. 29 MOTION.

       {¶24} Mr. Dukes next argues that the trial court should have granted his motion for

judgment of acquittal under Criminal Rule 29(A).           Regarding the felonious assault and

vandalism charges, Mr. Dukes challenges that officers’ identification of him as the driver of the

van and their testimony that the collision disabled their cruiser. He also argues that the officers’

testimony was inconsistent with each other. Regarding the breaking and entering count, Mr.

Dukes argues that there was no evidence of a forced entry or theft offense and that the phone

with pictures of himself on it could have been placed there by someone else. He also argues that

there was no evidence that the storage facility was broken into or that anything was stolen from

it.

       {¶25} Under Criminal Rule 29(A), a defendant is entitled to a judgment of acquittal on a

charge against him “if the evidence is insufficient to sustain a conviction * * *.” Whether a

conviction is supported by sufficient evidence is a question of law, which we review de novo.

State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this determination, we must view

the evidence in the light most favorable to the prosecution:

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.
                                                11



State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶26} The incident at the house led to two charges of felonious assault and one charge

of vandalism. To prove felonious assault, the State had to show that Mr. Dukes knowingly

caused or attempted to cause physical harm to the officers by means of a deadly weapon, which,

in this case, was a van. R.C. 2903.11(A)(2). To prove vandalism, the State had to show that Mr.

Dukes knowingly caused serious physical harm to property that is owned, leased, or controlled

by a governmental entity. R.C. 2909.05(B)(2).

       {¶27} Regarding Mr. Dukes’s identification, both officers testified that they saw Mr.

Dukes as he drove by them in the van. They also testified that, after the incident, they learned

that Mr. Dukes might be staying with one of his ex-girlfriends. They went to the ex-girlfriend’s

house the next day and found the van in her driveway. They knew it was the same van because

of the damage to it and the fact that it was missing a hubcap that had been left at the scene the

night before.

       {¶28} Regarding whether there was damage to the officers’ cruiser, both officers

testified that the collision disabled the vehicle. According to the officers, after the van drove

away, they attempted to pursue it in the cruiser. After going a short distance down the street,

they realized that the wheels were too damaged, so they returned the vehicle to where they had

originally parked. The officers testified that it ended up having to be towed from its location.

       {¶29} The incident at the storage facility led to one charge of breaking and entering. To

prove breaking and entering, the State had to show that Mr. Dukes, by force, stealth, or

deception, trespassed in an unoccupied structure with the purpose to commit a theft offense

therein. R.C. 2911.13(A). Regarding that charge, a detective testified that a person had entered

through a garage door by pulling the door up from the bottom until it broke the sliding bar that
                                                 12


kept the door closed. A crime scene investigator testified that a cellphone recovered inside the

facility had a video on it that had been taken inside the facility. The cellphone also had pictures

of Mr. Dukes on it and an email account attached to it that included Lavonte Dukes within its

name. Coincidentally, Mr. Dukes had been arrested about seven hours after the break-in and was

still in custody. At the time of his arrest, he was wearing clothing consistent with the clothing of

the person who had taken the video inside the storage facility. He had also lost his cell phone

and gave inconsistent accounts of where he had lost it.

       {¶30} Upon review of the record, we conclude that there was sufficient evidence to

support Mr. Dukes’s convictions. The trial court, therefore, did not err when it denied his motion

for judgment of acquittal.

       {¶31} Regarding the weight of the evidence, if a defendant asserts that his convictions

are against the manifest weight of the evidence,

       an appellate court must review the entire record, weigh the evidence and all
       reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
       and created such a manifest miscarriage of justice that the conviction[s] must be
       reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d 380, at 387. An appellate court should only exercise its power to

reverse a judgment as against the manifest weight of the evidence in exceptional cases. State v.

Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

       {¶32} Mr. Dukes challenges the officers’ in-court identification of him because they had

never seen him before the night of the alleged felonious assault, the scene was dimly lit, and his

trial was not until six months later. He argues that one of the officers admitted that he was color-
                                                 13


blind and could not distinguish between dark colors. According to Mr. Dukes, the officer’s

identification is not reliable because his skin is of a darker complexion. He also argues that the

officers were inconsistent about when the victim of the alleged domestic violence incident

identified him as the driver of the van. He also argues that they were inconsistent about whether

the owner of the van had given him consent to use it. He further argues that the officers’

testimony about the damage to their cruiser is inconsistent with the photographs of the vehicle.

       {¶33} Mr. Dukes argues that his breaking and entering conviction is against the weight

of the evidence because there is no photographic proof of damage to the storage facility, no one

observed him inside the facility, there was no DNA evidence connecting him to the cellphone

that was found, and there was no expert testimony that his palm print matched the palm of the

person holding the phone in a video. He also argues that one detective contradicted the other

detective’s testimony about whether there was an email account connected with the cellphone.

He further argues that the police department failed to follow proper procedures about

documenting evidence.

       {¶34} “[T]he weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of

the syllabus. “In reaching its verdict, the jury was in the best position to evaluate the credibility

of the witnesses and it was entitled to believe all, part, or none of the testimony of each witness.”

State v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368, ¶ 29. Regarding the

felonious assault counts, the officers’ identification was bolstered by the testimony of the alleged

domestic assault victim and the fact that the van was found the next day at Mr. Dukes’s ex-

girlfriend’s house. Regarding the vandalism count, the fact that the officers were able to return

their vehicle to where they had started after attempting to pursue the van does not mean that it
                                                  14


was not disabled.     Regarding the breaking and entering count, the detectives were not

inconsistent about whether there was an email account connected with the cellphone. One

detective merely stated that he did not know if there was an email account connected with the

phone. In addition, we note that, even without expert testimony about the palm print, there was

other evidence to place Mr. Dukes within the storage facility. Specifically, the email account

associated with the cellphone and the fact that Mr. Dukes was arrested hours after the break-in

wearing clothing consistent with the person in the video on the phone.

       {¶35} Upon review of the record, we cannot say that the jury lost its way when it found

Mr. Dukes guilty of the offenses of felonious assault, vandalism, and breaking and entering. Mr.

Dukes’s fifth assignment of error is overruled.

                                 ASSIGNMENT OF ERROR VI

       APPELLANT[’]S COUNSEL PROVIDED INEFFECTIVE REPRESENTATION
       AT TRIAL.

       {¶36} Mr. Dukes’s final argument is that his trial counsel was ineffective. To prevail on

a claim of ineffective assistance of counsel, Mr. Dukes must establish (1) that his counsel’s

performance was deficient to the extent that “counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment” and (2) that but for his counsel’s deficient

performance the result of the trial would have been different. Strickland v. Washington, 466 U.S.

668, 687 (1984). A deficient performance is one that falls below an objective standard of

reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the

syllabus. A court, however, “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.’” Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). In
                                                 15


addition, to establish prejudice, Mr. Dukes must show that there existed a reasonable probability

that, but for counsel’s errors, the outcome of the proceeding would have been different. State v.

Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶ 138.

       {¶37} According to Mr. Dukes, his counsel was ineffective for failing to present any

case in defense of him.      He argues that his counsel should have subpoenaed potentially

exculpatory evidence such as dash camera video from the officers’ cruiser, called witnesses that

would have provided exculpatory testimony, located and subpoenaed the owner of the van, and

called an expert on palm analysis.

       {¶38} Mr. Dukes also argues that his counsel should have objected to hearsay testimony

by the officers and moved to dismiss the improperly charged vandalism offense. He argues that

his counsel failed to move for discovery, including on the supplemental charge, and failed to

properly prepare for trial. He argues that his counsel should have sought to exclude the officers’

in-court identification of him and impeached their identifications with their police reports. He

argues that his counsel never listened to his police interrogation, failed to object to other acts

testimony by the alleged domestic violence victim, and failed to object to exhibits involving acts

unrelated to the charges.

       {¶39} Allegations of ineffective assistance of counsel that rely on evidence outside of

the record are impossible to resolve on direct appeal. State v. Cooperrider, 4 Ohio St.3d 226,

228 (1983). Such claims may be proved, instead, “through the post-conviction remedies of R.C.

2953.21.” Id. Consequently, upon review of the record, we conclude that we are unable to

review in this appeal Mr. Dukes’s arguments that his counsel should have sought more

discovery, prepared better for trial, and called experts and other witnesses in his defense.
                                                16


       {¶40} Regarding the vandalism count, we note that the State properly moved to amend

the charge at the beginning of trial, and the trial court granted its motion. Accordingly, Mr.

Dukes’s counsel was not ineffective for failing to move to dismiss the count. Regarding hearsay

testimony of the officers, we note that Officer Morgan’s testimony about what he learned from

the owner of the van was not hearsay.         While Officer Hadbavny’s testimony about their

conversation with the van’s owner included some hearsay, it was cumulative to what Officer

Morgan had already testified. Accordingly, we cannot conclude that Mr. Dukes was prejudiced

by its admission.

       {¶41} Regarding the officers’ in-court identification of him, Mr. Dukes has not

identified any law that suggests that it should have been prohibited. Accordingly, we cannot say

that his counsel was ineffective for failing to object to the identifications. Finally, regarding

other acts testimony and the admission of, allegedly, unrelated exhibits, Mr. Dukes has not

developed an argument demonstrating that the testimony and exhibits were not permitted. He

also merely suggests that the testimony and exhibits may have caused bias in the jurors. We

conclude that Mr. Dukes has failed to establish that there is a reasonable probability that, if the

testimony was not allowed or the exhibits not introduced, the outcome of his trial would have

been different. Mr. Dukes’s sixth assignment of error is overruled.

                                               III.

       {¶42} Mr. Dukes’s second assignment of error is sustained. His first, third, fourth, fifth,

and sixth assignments of error are overruled. The judgment of the Summit County Court of

Common Pleas is affirmed in part and reversed in part, and this matter is remanded for

proceedings consistent with this decision.
                                                17


                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



TEODOSIO, P. J.
CARR, J.
CONCUR.


APPEARANCES:

LAVONTE DUKES, pro se, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
