[Cite as State v. Williams, 2012-Ohio-4277.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 97730



                                      STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                 MICHAEL WILLIAMS
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-550955

        BEFORE: E. Gallagher, J., Rocco, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                       September 20, 2012
ATTORNEY FOR APPELLANT

John P. Parker
988 East 185th Street
Cleveland, Ohio 44119


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Margaret A. Troia
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Michael Williams appeals from his convictions rendered in the Cuyahoga

County Court of Common Pleas. Williams argues that his trial counsel rendered

ineffective assistance, his convictions were not supported by sufficient evidence and

were against the manifest weight of the evidence. For the following reasons, we affirm.

       {¶2} The facts in the instant case arise from events that occurred on April 27,

2010. The victim, Wilson Clark, received a telephone call from Williams who inquired

about purchasing an automobile from Clark. Clark and Williams had known each other

for many years prior to the incident. Clark and his girlfriend, Dominique Hearn, drove

to meet Williams so that he could look at the car. Upon arriving at E. 133 and Holyoke

in Cleveland, Ohio, Clark called Williams to tell him that he had arrived.

       {¶3} Clark testified that Williams approached and entered the car. Clark stated

that Williams pulled a gun and told Clark, “you know what it is.” Clark then explained

that this was slang for a robbery. Clark testified that Williams was pointing the gun at

him and he responded by giving Williams $9 that he had in his pocket.

       {¶4} Clark stated that at this point, Williams had one leg in and one leg out of

the car and that although Williams instructed him “[d]on’t pull off in this car, man,” he

began to drive hoping that Williams would fall from the car. Clark testified that when

he began to drive, Williams shot him once in the side of his mouth which exited through
his neck and once in the chest. Clark crashed his car into a house and was later

transported to the hospital. Hearn was not injured during the altercation.

       {¶5} Cleveland police officer Randy Hicks testified that he arrived at the scene

shortly after the shooting. Officer Hicks testified that he repeatedly asked Clark who

shot him and Clark responded “Mike Jones.”          Officer Hicks stated that, from his

experience working with the narcotics unit in this area, he knew that “Mike Jones” was

Williams’ alias. Officer Hicks testified that he went to Williams’ residence to search for

him but that he was not at home.

       {¶6} Dominick Allen testified that he witnessed, through the window of his

apartment, Williams running from the car shortly after he heard gunshots. Allen also

testified that he knew Williams prior to this incident because he and Williams lived in

the same apartment complex.

       {¶7} During the investigation, police interviewed Hearn and, during that

interview, she identified Michael Houston as the shooter. During that same interview,

however, she repeatedly denied having seen the shooter.        Hearn    testified that she

identified Houston because she knew that she and Clark were meeting a “Mike” and that

Michael Houston was the only person by that name whom she knew to live in the area.

Houston was later dropped as a suspect in the case because he had an alibi for the entire

day of the incident.

       {¶8} Clark was unconscious for nearly a month after the incident and awoke on
May 17, 2010, in the hospital. Shortly after that date, Clark identified Williams from a

police photo array. A blind administrator was later used to present the same photo array

to Clark. He again identified Williams as the shooter. At the time of trial, Clark made

an in-court identification of Williams as the man who shot him on April 27, 2010.

       {¶9} Williams waived his right to a jury and the court convicted him of two

counts of attempted murder with one and three-year firearm specifications, two counts of

felonious assault with one and three-year firearm specifications, two counts of

aggravated robbery with one and three-year firearm specifications and two counts of

improperly handling a firearm in a motor vehicle. He was sentenced to serve 15 years

with five years of postrelease control. It is from this judgment that Williams appeals.

       {¶10} In his first assignment of error, Williams argues that his counsel was

ineffective in assisting him at trial. For the reasons that follow, we disagree.

       {¶11} Initially we note that, in general, a properly licensed attorney practicing in

this state is presumed to be competent. State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d

623 (1976).

       {¶12}    In order to prevail on a claim of ineffective assistance of counsel, the

appellant must show (1) that counsel’s performance was deficient and (2) that the

deficient performance prejudiced the defense so as to deprive the defendant of a fair

trial. Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Counsel’s performance may be
found to be deficient if counsel “made errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland at 687.

 To establish prejudice, “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.” Bradley at 143.

       {¶13} In determining whether counsel’s performance fell below an objective

standard of reasonableness, “[j]udicial scrutiny of counsel’s performance must be highly

deferential.” Strickland at 689. Because of the difficulties inherent in determining

whether counsel rendered effective assistance in any given case, a strong presumption

exists that counsel’s conduct fell within the wide range of reasonable, professional

assistance. Id.

       {¶14} Williams argues that his counsel should have impeached Dominick Allen

with discrepancies in his statements. In a supplemental discovery response filed by the

state of Ohio on October 18, 2011, the state provided that Allen, on October 17, 2011,

reported that he did not know who he saw running from the car “when confronted with

his written statement, it was the defendant he saw jump from the vehicle following the

gunshots.”

       {¶15}      Williams also argues that Allen should have been impeached with

information provided by the state through supplemental responses to discovery filed

October 20, 2011 that reflects that Clark reported on October 18, 2011 that “he heard
that Domick [sic] Allen was involved in planning his robbery.”

       {¶16} With respect to witness Allen, his initial identification was that of the

appellant and, over one year later, he indicated to the prosecuting attorney that he did not

know who it was that jumped from the vehicle. However, when presented with his

written statement, he acknowledged that it was the appellant that he had seen jump.

       {¶17} As to any failure by trial counsel to address with Clark or Allen the

suggestion that Mr. Allen was involved in the planning of the robbery and that he

showed to Clark a handgun months before the shooting, those facts, even if true, would

not change the outcome of the case against the appellant.

       {¶18} The choice to impeach a witness is a trial tactic. The Supreme Court of

Ohio has held, “we will not second-guess trial strategy decisions, and a court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” State v. Mason, 82 Ohio St.3d 144, 157-158, 694

N.E.2d 932 (1998) (overruled on other grounds). Furthermore, “Debatable trial tactics

do not constitute a denial of effective assistance of counsel.” State v. Clayton, 62 Ohio

St.2d 45, 49, 402 N.E.2d 1189 (8th Dist. 1980). Here, trial counsel’s decision not to

impeach must be granted deference.

       {¶19} Williams argues that trial counsel should have impeached Clark on the

basis that his injuries would have impaired his recollection of the incident on the day it

occurred. There is nothing in the record that reflects that Clark’s injuries caused any
impairment of his cognitive functions. In his testimony, Clark detailed his injuries as a

missing lung, a bullet in his heart, injuries to two vertebrae, and a wounded mouth. In

support of his claim, Williams argues that the medical report reflects that Clark

experienced shock and major trauma and could not consent to medical procedures when

first rushed to the hospital.   We note that this was due to the fact that he was

unconscious at the time. It cannot be construed as ineffective assistance of counsel

when trial counsel does not attempt to impeach a witness based on unfounded conjecture.

      {¶20} Williams also argues that his defense counsel never offered evidence to

show that Williams voluntarily presented himself at the East Cleveland Police

Department and that he told officers that he knew nothing about the shooting and that he

was at his girlfriend’s house at the time of the incident. This information was provided

to defense counsel in supplemental discovery filed by the state on October 20, 2011.

Williams does not explain why it was error for his counsel to not use this evidence, nor

does he establish the likelihood of a different outcome if it were to have been used. The

omission of this evidence by trial counsel was a tactical decision that we will not

second-guess.

      {¶21} Williams next argues that Hearn related to the state on June 22, 2011, that

she was told by Clark that she “picked the wrong guy” from the photo array shown to her

when she identified Michael Houston as the assailant.

      {¶22}     On June 27, 2011, the state of Ohio filed a supplemental response to
discovery that reflected that on June 22, 2011, Sgt. Cunningham related that Dominque

Hearn stated to him that Michael Williams was not the shooter. Counsel failed to

explore that information through examination of either Sgt. Cunningham or Dominique

Hearn.

         {¶23} We find this evidence to be irrelevant. At no point was Hearn utilized at

trial to identify Williams as the shooter. She testified at trial as to what happened the

day of the incident, and to explain why she initially identified Houston as the shooter.

Hearn always maintained that she never saw the shooter. As such, this evidence cannot

be used to establish a claim of ineffective assistance of counsel.

         {¶24}   Williams argues that trial counsel should have filed motions to preserve

all evidence and a motion to suppress eyewitness identification as the East Cleveland

Police Department lost the photo arrays that they had showed Clark the first time they

visited him in the hospital.     Williams claims that counsel should have tested the

procedures used in administering the photo arrays. This does not create evidence that

had this error not occurred there is a reasonable probability of a different outcome.

Clark identified Williams in a second identical photo array administered by a “blind

administrator” and also in open court during trial. The photo array that was lost does

not somehow nullify the other three instances wherein Clark identified Williams as the

shooter.    Further, Clark knew Williams for many years prior to the incident.

         {¶25} For the aforementioned reasons, Williams’ first assignment of error is
overruled.

       {¶26}     In his second assignment of error, Williams argues that there was

insufficient evidence to convict him of the crimes of attempted murder, felonious assault,

aggravated robbery, all three of which carry one and three-year firearm specifications,

and improperly handling a firearm in a motor vehicle. For the reasons stated below, we

disagree.

       {¶27} This court has said, in evaluating a sufficiency of the evidence argument

       courts are to assess not whether the state’s evidence is to be believed, but
       whether, if believed, the evidence against a defendant would support a
       conviction. 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. The weight and credibility of the evidence are left to the trier of
       fact. State v. Jackson, 8th Dist. No. 86542, 2006-Ohio-1938, ¶ 23.

       {¶28} Williams was convicted of attempting to violate R.C. 2903.02(A) and (B)

that reads

       (A) No person shall purposely cause the death of another or the unlawful
       termination of another’s pregnancy. (B) No person shall cause the death of
       another as a proximate result of the offender’s committing or attempting to
       commit an offense of violence that is a felony of the first or second degree
       and that is not a violation of section 2903.03 or 2903.04 of the Revised
       Code.

       {¶29} The attempt statute, R.C. 2923.02 provides that:

       No person, purposely or knowingly, and when purpose or knowledge is
       sufficient culpability for the commission of an offense, shall engage in
       conduct that, if successful, would constitute or result in the offense. * * *
       Whoever violates this section is guilty of an attempt to commit an offense.
       {¶30} Williams was convicted for violations of R.C. 2903.11(A)(1) and (2) for

felonious assault that reads

       (A) No person shall knowingly do either of the following: (1) Cause
       serious physical harm to another or to another’s unborn; (2) Cause or
       attempt to cause physical harm to another or to another’s unborn by means
       of a deadly weapon or dangerous ordnance.

       {¶31} Williams was convicted for violations of R.C. 2911.01(A)(1) and (3) for

aggravated robbery that reads

       (A) No person, in attempting or committing a theft offense, as defined in
       section 2913.01 of the Revised Code, or in fleeing immediately after the
       attempt or offense, shall do any of the following: (1) Have a deadly
       weapon on or about the offender’s person or under the offender’s control
       and either display the weapon, brandish it, indicate that the offender
       possesses it, or use it; * * * (3) Inflict, or attempt to inflict, serious physical
       harm on another.

       {¶32} Lastly, Williams was convicted for violations of R.C. 2923.16(A) and (B)

for improperly handling a firearm in a motor vehicle that reads

       (A) No person shall knowingly discharge a firearm while in or on a motor
       vehicle. (B) No person shall knowingly transport or have a loaded
       firearm in a motor vehicle in such a manner that the firearm is accessible to
       the operator or any passenger without leaving the vehicle.

       {¶33}    Clark’s testimony alone, if believed, is sufficient to establish that

Williams committed each of the essential elements of the crimes for which he was

convicted. According to Clark, Williams did knowingly inflict serious physical harm on

Clark by shooting him twice. He did so while using a gun. This fulfills the elements of

the felonious assault convictions.
       {¶34} With respect to the aggravated robbery convictions, Williams, while in the

commission of robbing Clark, possessed, displayed, brandished and used a deadly

weapon to inflict serious harm on Clark.         The elements of the aggravated robbery

convictions have been met.

       {¶35} Clark’s testimony also established the elements of improper handling of a

firearm in a motor vehicle; Williams knowingly had and discharged a loaded firearm

inside Clark’s vehicle.

       {¶36} Lastly, Clark’s testimony sufficiently established that Williams committed

all of the elements of attempted murder. Williams knowingly engaged in conduct that,

if successful, would have resulted in the death of Clark. He attempted to cause Clark’s

death and he did so in commission of two violent felonies of the first or second degree,

i.e. felonious assault and aggravated robbery.

       {¶37} When viewing the evidence in the light most favorable to the prosecution,

Clark’s testimony provides a reasonable trier of fact with all of the essential elements of

each of the crimes for which Williams was charged.

       {¶38} Williams’ second assignment of error is overruled.

       {¶39} Williams’ final assignment of error is that his conviction was against the

manifest weight of the evidence. We disagree.

       {¶40} When considering a manifest weight challenge the court is concerned not

with the burden of production, as with a sufficiency challenge, but rather the burden of
persuasion.

       When a defendant asserts that his conviction is 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 must be reversed and a new trial ordered.
       State v. Jackson, 8th Dist. No. 86542, 2006-Ohio-1938, ¶ 29.

       {¶41} The state has provided evidence that Clark identified Williams as the

person who entered his car, robbed him and shot him several times while seated in the

automobile. Clark identified Williams on the day of the shooting, on two different

occasions in the hospital while he was recovering and in open court. Hearn described

the incident in the very same way as Clark had but was not able to identify the shooter.

Allen witnessed Williams run from the car seconds after shots were fired. Both Allen

and Clark knew Williams prior to this incident and had no problem identifying him.

       {¶42} Williams offered the following evidence on his own behalf: first, that

Allen’s character was subject to suspicion; that at one of the four different times Clark

identified Williams as the assailant, it was done so improperly; that Hearn may have

been given improper instructions in making an identification of the shooter, even though

her testimony was never used to identify Williams and that Williams himself went to the

police station a few days after the shooting to tell the police that he was not involved and

that he had an alibi.

       {¶43} We find that the testimony of Clark is the most credible in this case and
thus give it the greatest weight. He was unwavering in his assertion that Williams,

whom he knew because Williams attended grade school with Clark’s little brother, was

the man who robbed and shot him on April 27, 2010. We find no evidence that the court,

as the trier of fact, in this case clearly lost its way in evaluating the evidence. Here, the

burden of persuasion has been met by the state and there has been no “manifest

miscarriage of justice that [requires] the conviction [to be] reversed and a new trial

ordered.”

       {¶44} For the reasons stated above, Williams’ third and final assignment of error

is overruled.

       {¶45} The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution. The defendant’s conviction having been affirmed, any bail

pending appeal is terminated. The case is remanded to the trial court for execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE
KENNETH A. ROCCO, P.J., and
MARY EILEEN KILBANE, J., CONCUR


                                     Appendix
Assignments of Error

“I.    Trial Counsel was ineffective under the Sixth and Fourteenth Amendments
       of the Federal Constitution.

II.    The evidence was insufficient under the Fourteenth Amendment of the
       Federal Constitution.

III.   The convictions are against the weight of the evidence.”
