[Cite as State v. Worthington, 2016-Ohio-530.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HARDIN COUNTY




STATE OF OHIO,
                                                          CASE NO. 6-15-04
       PLAINTIFF-APPELLEE,

      v.

ANDREW CURTIS WORTHINGTON,                                OPINION

       DEFENDANT-APPELLANT.



                 Appeal from Hardin County Common Pleas Court
                          Trial Court No. 20142152-CRI

                                      Judgment Affirmed

                           Date of Decision: February 16, 2016



APPEARANCES:

        Michael J. Short for Appellant

        Jason M. Miller for Appellee
Case No. 6-15-04


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Andrew Worthington (“Worthington”) brings this

appeal from the judgment of the Court of Common Pleas of Hardin County

convicting him of Kidnapping and Felonious Assault of a Peace Officer.

Worthington claims that his conviction was not supported by sufficient evidence

and was against the manifest weight of the evidence. Worthington also claims that

he was denied effective assistance of counsel. For the reasons set forth below, the

judgment is affirmed.

                             Procedural Background

       {¶2} On September 24, 2014, the Hardin County Grand Jury indicted

Worthington on eight counts: 1) Abduction in violation of R.C. 2905.02(A)(1), a

felony of the third degree; 2) Abduction in violation of R.C. 2905.02(A)(2), a

felony of the third degree; 3) Kidnapping in violation of R.C. 2905.01(A)(1), a

felony of the first degree; 4) Kidnapping in violation of R.C. 2905.01(A)(3), a

felony of the first degree; 5) Felonious Assault in violation of R.C. 2903.11(A)(2),

a felony of the second degree; 6) Felonious Assault of a Peace Officer in violation

of R.C. 2903.11(A)(2), (D)(1), a felony of the first degree; 7) Criminal Damaging

or Endangering in violation of R.C. 2909.06(A)(1), a misdemeanor of the second

degree; and 8) Assault in violation of R.C. 2903.13(A), a misdemeanor of the first

degree.   Doc. 2.    The trial court later dismissed counts one and two and

renumbered the remaining charges from one to six respectively. Doc. 34. A jury

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trial was held on April 8 and April 9, 2015. Doc. 50. Once the State rested its

case, the trial court dismissed Counts two, three, five, and six. Id. The trial court

allowed counts one and four to be presented to the jury. Id. At the conclusion of

the trial, the jury found Worthington guilty of Kidnapping in violation of R.C.

2905.01(A)(1) and Felonious Assault on a Peace Officer in violation of R.C.

2903.11(A)(2), (D)(1). Doc. 38 and 39.

       {¶3} A sentencing hearing was held on May 12, 2015. Doc. 58. The trial

court sentenced Worthington to four years in prison on each count and ordered

that the sentences be served consecutive to each other. Id. Worthington filed a

timely notice of appeal. Doc. 63. On appeal he raises the following assignments

of error.

                            First Assignment of Error

       [Worthington] received ineffective assistance of trial counsel.

                           Second Assignment of Error

       The convictions are not supported by the weight of the evidence.

                           Third Assignment of Error

       The convictions were not based on sufficient evidence.

For the purpose of clarity, the assignments of error will be addressed out of order.

       {¶4} Both the second and third assignments of error challenge the

conviction based on the evidence. Thus, the first step is to address what the

evidence at trial was.

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                                  Trial Evidence

      {¶5} The first witness for the State was Worthington’s mother, Helen

Worthington (“Helen”). Helen testified that on the day in question, she took

Mandy Steele (“Steele”) into the home to retrieve her belongings. Vol. I Vol. 1

Tr. 34. Steele wished to retrieve her belongings because she had ended her

relationship with Worthington. Vol. I Vol. 1 Tr. 35. When Worthington started

talking with Steele, he seemed upset. Vol. I Vol. 1 Tr. 42-43. Then Worthington

pushed Steele. Vol. I Vol. 1 Tr. 43. Later the matter escalated, Helen was locked

out of the house, and Steele was still in the house with Worthington. Vol. I Vol. 1

Tr. 48-49. Helen testified that although she never saw a knife, she believed that

Worthington had one because he had a cut on his neck. Vol. I Vol. 1 Tr. 57-58.

      {¶6} On cross-examination, Helen testified that Steele was already upstairs

retrieving her belongings when Worthington arrived at the home. Vol. 1 Tr. 67.

Worthington then went upstairs where Steele was. Vol. 1 Tr. 68. When Steele

and Worthington started coming down the stairs, they were arguing and she

attempted to stop the argument. Vol. 1 Tr. 72-73. According to Helen, she had

the police called because she was worried about Worthington and his behavior had

been odd recently. Vol. 1 Tr. 74. When Helen and the police entered the home,

she saw Worthington at the top of the stairs, but did not see Steele. Vol. 1 Tr. 75.

Helen testified that Worthington had his hand to his neck as if he were going to



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harm himself. Vol. 1 Tr. 76. Helen testified that she did not see or hear any

threatening comments or actions toward Steele. Vol. 1 Tr. 76.

      {¶7} Charles Mulligan (“Mulligan”) testified that he is a deputy with the

Hardin County Sheriff’s Department. Vol. 1 Tr. 113. He went to the Worthington

house in response to a reported domestic dispute. Vol. 1 Tr. 114. Worthington

was behind a closed door speaking to them. Vol. 1 Tr. 118. Worthington refused

to come out and stated that he was afraid the officers would kill him. Vol. 1 Tr.

119. Mulligan testified that Worthington threatened them with a pit bull and

stated they would have to “come in to kill him.” Vol. 1 Tr. 119. When they

forcefully entered the room, they found Worthington hiding behind the door with

his hands to his throat. Vol. 1 Tr. 130. Worthington was repeatedly asked to show

his hands, but he refused to do so. Vol. 1 Tr. 130-31. While trying to approach

Worthington, he was kicking at the officers, so another officer “tased” him. Vol.

1 Tr. 132. Worthington then reached around with the knife and Mulligan reached

for the hand holding the knife.   Vol. 1 Tr. 133. Mulligan received a cut on his

thumb while removing the knife from Worthington’s hand.         Vol. 1 Tr. 134.

Mulligan believed that Worthington had been attempting to stab Mulligan’s leg

when the hand was grabbed. Vol. 1 Tr. 133. The State also had Mulligan identify

the video from his body camera and the video was played for the jury. Vol. 1 Tr.

144, 148.



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       {¶8} On cross-examination, Mulligan testified that when he arrived

Worthington was at the top of the stairs and later went into the bedroom. Vol. 2

Tr. 5. Based upon the video they had of the room prior to the forced entry,

Mulligan knew that Steele was on the right side of the bedroom and Worthington

was to the left of the door. Vol. 2 Tr. 8-9. Mulligan admitted that at no time on

the video did he ever observe any physical contact between Steele and

Worthington and he did not see Worthington threaten her with any weapon. Vol.

2 Tr. 11. Mulligan admitted that at several points in time Steele told them that she

did not want to leave the room. Vol. 2 Tr. 12. Steele repeatedly told them she was

fine, that Worthington was not threatening her with a weapon, and that she did not

want the officers to harm Worthington. Vol. 2 Tr. 12-21. Steele also told them

that she was not being held against her will and Mulligan admitted that he had

second thoughts about whether she was actually a victim of kidnapping. Vol. 2

Tr. 16-17. At one point, Steele told them that she could come out if she wanted,

but was choosing not to do so. Vol. 2 Tr. 17. Mulligan admitted that at no time

during the confrontation did Steele indicate that she was being restrained or was in

the room other than voluntarily. Vol. 2 Tr. 19. Mulligan also admitted that at the

time of the incident, he did not tell the other officers that Worthington lunged at

him, but instead indicated that he was cut while removing the knife from

Worthington’s hand while Worthington was being “tased”. Vol. 2 Tr. 45.



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       {¶9} On redirect, Worthington testified that soon after he arrived on the

scene, they asked Steele to exit the room and she replied with “I can’t”. Vol. 2 Tr.

53. Mulligan testified that Worthington did not voluntarily hand over the knife

and that it had to be forcefully taken from him. Vol. 2 Tr. 57.

       {¶10} Lieutenant Robert Lutes (“Lutes”) of the Kenton City Police

Department was the final witness for the State. Vol. 2 Tr. 60. Lutes testified that

he was sent to the home because “a man was acting out.” Id. Upon his arrival,

Helen met him and told him that Worthington was “going crazy.” Vol. 2 Tr. 61.

They then entered the home and Helen screamed that he had a knife. Vol. 2 Tr.

62. Lutes looked up and saw Worthington at the top of the stairs with “his hand to

his throat”, so Lutes drew his weapon. Id. Lutes tried to speak with Worthington,

but he kept refusing and told Lutes “I’m not coming down, you better come up

here locked and loaded.” Vol. 2 Tr. 65. Lutes then waited for back-up to arrive

and continued talking to Worthington. Vol. 2 Tr. 66. Worthington kept refusing

to come out and telling Lutes that “you’re gonna have to kill me.” Vol. 2 Tr. 68.

At that time Lutes did not know Steele was upstairs until he heard her talking. Id.

Several times Lutes asked Steele to come out, but she responded with “I can’t”.

Vol. 2 Tr. 69-70. When the room was breached, his sole responsibility was to

remove Steele from the room, so he was not part of the group that dealt with

Worthington. Vol. 2 Tr. 76. After the door was kicked open, Steele came out

when asked and she was very scared. Vol. 2 Tr. 77.

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       {¶11} On cross-examination, Lutes testified that when he saw Worthington

at the top of the stairs, Steele was not with him. Vol. 2 Tr. 80. Lutes admitted that

although Steele said she could not come out, she did not say that Worthington was

preventing her from leaving. Vol. 2 Tr. 85. Lutes testified that he really had no

idea what was occurring in the bedroom. Vol. 2 Tr. 87. Before the officers forced

entry into the room, Worthington and Steele asked for a couple of minutes to say

goodbye before they would exit the room. Vol. 2 Tr. 90.

                            Sufficiency of the Evidence

       {¶12} Worthington claims in the third assignment of error that the

convictions are not supported by sufficient evidence. A claim of sufficiency of the

evidence raises a due process question concerning whether the evidence is legally

sufficient to support the verdict as a matter of law. State v. Lang, 129 Ohio St.3d

512, 2011-Ohio-4215, ¶219, 954 N.E.2d 596 (citing State v. Thompkins, 78 Ohio

St.3d 380, 1997-Ohio-52, 678 N.E.2d 541). “On review of the sufficiency of the

evidence to support a criminal conviction, ‘the relevant question is 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.’” State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶34,

840 N.E.2d 1032 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

61 L.Ed.2d 560).



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       {¶13} In this case, Worthington was convicted on two counts. To prove the

first count of Kidnapping, the State had to present evidence to show that

Worthington 1) by force, threat, or deception 2) restrained another person’s liberty

3) for the purpose of using the person as a hostage. R.C. 2905.01(A)(1). A review

of the record indicates that on the tape Steele told the officers that she could not

leave the room when they asked her to leave the room. The evidence shows that

the door was locked and that Worthington had a knife. The evidence also shows

that the situation persisted for over an hour. Viewing this evidence in a light most

favorable to the State, a reasonable juror could reasonably determine that Steele

was restrained from leaving the room by threat of force and that she was a hostage

in the situation. Thus, the conviction was supported by sufficient evidence.

       {¶14} In Count Four Worthington was charged with Felonious Assault of a

Peace Officer, so the State was required to prove that Worthington 1) knowingly

2) caused physical harm to another with a deadly weapon and 3) that the victim

was a police officer. The evidence in this case was that Worthington had a knife,

that Mulligan was cut with the knife while attempting to remove it from

Worthington’s hand, and that Mulligan was a peace officer. Mulligan testified that

it appeared to him that Worthington was attempting to cut him with the knife when

he was injured. Viewing this evidence in a light most favorable to the State, a

reasonable juror could include that Worthington knowingly cut Mulligan with the

knife causing physical harm to Mulligan and that Mulligan was a peace officer.

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Thus, the conviction is supported by sufficient evidence. Having determined that

there is sufficient evidence to support both convictions, the third assignment of

error is overruled.

                             Manifest Weight of the Evidence

       {¶15} Worthington alleges in his second assignment of error that his

convictions are against the manifest weight of the evidence. Unlike sufficiency of

the evidence, the question of manifest weight of the evidence does not view the

evidence in a light most favorable to the prosecution.

       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 depends on its effect in inducing
       belief.”

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 514 (1997) (citing Black's

Law Dictionary (6 Ed.1990) 1594). A new trial should be granted only in the

exceptional case in which the evidence weighs heavily against conviction. Id.

Although the appellate court acts as a thirteenth juror, it still must give due

deference to the findings made by the jury.

       The fact-finder, being the jury, occupies a superior position in
       determining credibility. The fact-finder can hear and see as well
       as observe the body language, evaluate voice inflections, observe
       hand gestures, perceive the interplay between the witness and
       the examiner, and watch the witness' reaction to exhibits and the

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      like. Determining credibility from a sterile transcript is a
      Herculean endeavor. A reviewing court must, therefore, accord
      due deference to the credibility determinations made by the fact-
      finder.

State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456 (8th Dist. 1998).

      {¶16} At first glance, the evidence in this case may not appear to be

overwhelmingly in support of conviction on the charges. There is no evidence that

Steele was forced to go into the room and the testimony appears to indicate that

she was willingly in the room prior to Worthington’s entry into the room. Despite

Steele’s statements on the tape that she could not leave the room, she does not

claim that the inability to leave is a result of any threat to her safety made by

Worthington or that Worthington is restraining her. Other than the circumstances,

there is no indication that Steele was being used as a hostage. To the contrary,

Steele on numerous occasions indicates that she does not want to leave, that she is

safe, but that she is concerned for Worthington’s safety. She even indicates at one

time that she is free to leave, but is staying. When the officers entered the room,

Steele was on the opposite side of the room from Worthington and was able to

easily walk out the door. However, there was evidence that Worthington did have

a knife and that the door was locked. The officers testified that she was in the

room for over an hour and sounded scared. The incident lasted for approximately

ninety minutes and on multiple occasions Steele indicated she could not leave the

room. The jurors heard the tape where Steele made the comments and were able


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to evaluate for themselves what occurred during the time. The jury determined

that Steele was being restrained and used as a hostage.        We must give due

deference to their determination. This court does not find that the evidence weighs

heavily against conviction. Thus, the conviction for Kidnapping is not against the

manifest weight of the evidence.

       {¶17} As to the conviction for Felonious Assault of a Peace Officer, the

evidence at first glance does not appear to be overwhelming. At the time of the

injury, Worthington was being “tased” and Mulligan himself testified that it was

occurring because he was shocked as well. Mulligan also testified that the effect

of the taser would be to cause muscles to contract and prevent Worthington from

being able to move. Although Mulligan claimed at trial that Worthington lunged

at him, the tape does not appear to indicate such an activity. However, on the tape,

Mulligan is also heard to say that Worthington came at him. Worthington had

made numerous threats of harm to law enforcement and had failed to comply with

commands to show his hands and release the knife. He struggled to hang on to the

knife while Mulligan tried to take it away from him and as a result, Mulligan was

cut by the knife. Based upon the evidence before it, a reasonable juror could

determine that Worthington had acted in a manner that he should have known

would result in injury to a police officer. Thus, the conviction is not against the

manifest weight of the evidence. Having determined that the convictions are not



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against the manifest weight of the evidence, the second assignment of error is

overruled.

                         Ineffective Assistance of Counsel

       {¶18} Finally Worthington claims in the first assignment of error that he

was denied the effective assistance of counsel because counsel failed to request a

new trial.

       In evaluating whether a petitioner has been denied effective
       assistance of counsel, this court has held that the test is “whether
       the accused, under all the circumstances, * * * had a fair trial
       and substantial justice was done.” State v. Hester (1976), 45
       Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of
       the syllabus. When making that determination, a two-step
       process is usually employed. “First, there must be a
       determination as to whether there has been a substantial
       violation of any of defense counsel's essential duties to his client.
       Next, and analytically separate from the question of whether the
       defendant's Sixth Amendment rights were violated, there must
       be a determination as to whether the defense was prejudiced by
       counsel's ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d
       391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on
       other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d
       1154.

       On the issue of counsel's ineffectiveness, the petitioner has the
       burden of proof, since in Ohio a properly licensed attorney is
       presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
       St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; * *915 State v.
       Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d
       at 822.

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999–Ohio–102, 714 N .E.2d 905.

       {¶19} Worthington argues that trial counsel should have requested a new

trial due to Steele’s failure to appear at trial to testify after being subpoenaed by

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the State. Criminal Rule 33 does permit a new trial to be granted if there is

misconduct of a witness for the State. Crim.R. 33(A)(2). However, there is no

law that identifies failure to appear to testify as “misconduct” of a witness. This

court has previously held that failure to file motions is not per se ineffective

assistance of counsel. State v. Schlosser, 3d Dist. Union No. 14-10-30, 2011-

Ohio-4183, ¶ 34. To comprise ineffective assistance of counsel, a defendant must

show that the motions had a reasonable probability of success. Id. Worthington

has not provided any law to indicate that his motion had a reasonable probability

of success. Thus, the ineffective assistance of counsel claim must fail. Id. at ¶ 34,

36. The first assignment of error is overruled.

       {¶20} Having found no errors in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Hardin County is affirmed.

                                                                Judgment Affirmed

ROGERS, P.J. and SHAW, J., concur.

/hlo




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