[Cite as State v. Fortney, 2017-Ohio-8672.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                      Court of Appeals No. WD-16-069

        Appellee                                   Trial Court No. 2016CR0118

v.

Nicholas Fortney                                   DECISION AND JUDGMENT

        Appellant                                  Decided: November 22, 2017

                                              *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                              *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Nicholas Fortney, appeals the November 18, 2016

judgment of the Wood County Court of Common Pleas which, following a jury trial

convicting him of attempted tampering with evidence, sentenced him to community

control. For the reasons that follow, we affirm.
        {¶ 2} Appellant was indicted on April 21, 2016, on one count of attempted

tampering with evidence, in violation of R.C. 2921.12(A)(1), (B), and 2923.02, a fourth-

degree felony. The charge stemmed from the March 3, 2016 police questioning of

appellant about a February 19, 2016 incident of arson which occurred in Bowling Green,

Ohio.

        {¶ 3} The matter proceeded to a jury trial on September 21, 2016. The state

presented the testimony of Bowling Green Police Detective Sergeant Doug Hartman and

Detective Brian Houser.

        {¶ 4} Detective Houser was present in the interview room during the events.

During Houser’s testimony the state played the videotape of appellant’s police interview.

Detective Houser confirmed that the interview lasted approximately ten minutes after

which appellant was placed under arrest. As he was being handcuffed, appellant tossed

his phone on his coat which was lying on the floor. Detective Houser stated that he was

then instructed by Sergeant Hartman to seize the phone; appellant stomped on it barely

missing Houser’s hand.

        {¶ 5} Sergeant Hartman testified that during an arson investigation he obtained the

suspect’s Verizon cellular phone records and that there was a text message to appellant

on the morning of the fire. Deciding that they wanted to question appellant, the officers

picked him up on a traffic warrant and took him to the police station.

        {¶ 6} Once at the station, Sergeant Hartman testified that he was hoping to get

appellant’s cooperation to search the cell phone but, regardless, he intended to seize the




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phone. Hartman acknowledged that appellant had access to his cell phone for nearly the

entire duration of the interview. Hartman stated that appellant began looking for the text

message at issue, but after a few moments turned the phone over and indicated that he

was finished looking. Sergeant Hartman testified that the atmosphere quickly turned

hostile and led to appellant’s attempt to destroy his cell phone by stomping on it.

       {¶ 7} Defense counsel’s cross-examination of the officers centered on whether

police specifically informed appellant that his phone could be evidence in the arson

investigation. Sergeant Hartman and Detective Houser acknowledged that they did not

use those specific words. Hartman also acknowledged that he allowed appellant free

access to his phone during the interview. Following deliberations, the jury found

appellant guilty of the crime charged.

       {¶ 8} On November 18, 2016, appellant was sentenced to community control with

various conditions, and ordered to pay a fine. This appeal followed with appellant raising

three assignments of error for our review:

               I. Appellant received ineffective assistance of counsel in violation

       of his rights under the Sixth and Fourteenth Amendments to the United

       States Constitution and Article I, § 10 of the Constitution of the State of

       Ohio.

               II. The trial court erred in denying Appellant’s Crim.R. 29 motion.

               III. The jury’s verdict was against the manifest weight of the

       evidence presented at trial.




3.
       {¶ 9} Appellant’s first assignment of error contends that he received ineffective

assistance of trial counsel based on counsel’s failure to object to the state’s use of leading

questions during the direct and redirect examinations of Detective Houser.

       {¶ 10} In order to demonstrate that trial counsel was constitutionally ineffective, a

defendant must prove two elements: “First, the defendant must show that counsel’s

performance was deficient. This requires showing that counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance prejudiced

the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). Proof of prejudice requires a showing “that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),

paragraph three of the syllabus.

       {¶ 11} Evid.R. 611(C) provides that, in general, “[l]eading questions should not be

used on the direct examination of a witness except as may be necessary to develop the

witness’ testimony.” Regarding leading questions and the effective assistance of counsel,

“the failure to make objections is not alone enough to sustain a claim of ineffective

assistance of counsel.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848

N.E.2d 810, ¶ 103; State v. Teal, 6th Dist. Lucas Nos. L-15-1280, L-15-1281, 2017-Ohio-

7202, ¶ 31. Further, it is within the discretion of the trial court to permit the state to ask

leading questions of its own witnesses. State v. Miller, 44 Ohio App.3d 42, 45, 541




4.
N.E.2d 105 (6th Dist.1988); State v. Madden, 15 Ohio App.3d 130, 133, 472 N.E.2d 1126

(12th Dist.1984).

       {¶ 12} As the court in Miller, 44 Ohio App.3d at 45, noted:

              “the exception ‘except as may be necessary to develop [the witness’]

              testimony’ is quite broad and places the limits upon the use of

              leading questions on direct examination within the sound judicial

              discretion of the trial court.”

State v. Ryan, 6th Dist. Wood No. WD-05-064, 2006-Ohio-5120, ¶ 45. See, also, State v.

Rossbach, 6th Dist. Lucas No. L-09-1300, 2011-Ohio-281, ¶ 141-142.

       {¶ 13} In the present case, appellant takes issue with counsel’s failure to object to

testimony elicited through the direct and redirect examinations of Detective Houser.

Reviewing the contested testimony, we find that the leading questions were being used as

a means to expedite the testimony that was largely duplicative of the videotaped

interview. Even assuming that any of the questioning was improper, there is no basis to

argue that the outcome of the trial would have been different if counsel had objected.

Appellant’s first assignment of error is not well-taken.

       {¶ 14} In his second assignment of error, appellant argues that the court erred

when it denied his Crim.R. 29 motion for acquittal. Crim.R. 29(A) provides for an entry

of a judgment of acquittal if the evidence is insufficient to sustain a conviction. “An

appellate court reviews a denial of a Crim.R. 29 motion for acquittal using the same

standard that is used to review a sufficiency of the evidence claim.” State v. Reyes, 6th




5.
Dist. Wood No. WD-03-059, 2005-Ohio-2100, ¶ 21, citing State v. Carter, 72 Ohio St.3d

545, 553, 651 N.E.2d 965 (1995). The Supreme Court of Ohio has stated that the term

“sufficiency of the evidence” presents a question of law as to whether the evidence is

legally adequate to support a jury verdict as to all elements of the crime. State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In evaluating a sufficiency

of the evidence claim, “[t]he 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.” State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 15} In order to convict appellant of the crime of attempted tampering with

evidence the state was required to prove that appellant, “knowing that an official

proceeding or investigation is in progress, or is about to be or likely to be instituted”

altered, destroyed, concealed or removed “any record, document, or thing, with purpose

to impair its value or availability as evidence in such proceeding or investigation[.]” R.C.

2921.12(A)(1). An attempt occurs when an individual engages in conduct, with “purpose

or knowledge” of “sufficient culpability for the commission of an offense” which, if

successful would result in the offense. R.C. 2923.02(A).

       {¶ 16} Appellant’s specific argument is that because he was never made aware of

the purpose of the police interview, he had no knowledge that his cell phone was

considered evidence in the arson investigation. Thus, according to appellant the evidence

supporting the knowledge element was legally insufficient.




6.
       {¶ 17} Knowledge or intent lies within the privacy of an individual’s own thoughts

and is not susceptible of objective proof. State v. Garner, 74 Ohio St.3d 49, 60, 656

N.E.2d 623 (1995). The law recognizes that intent can be proven from the surrounding

facts and circumstances and that “persons are presumed to have intended the natural,

reasonable and probable consequences of their voluntary acts.” Id.

       {¶ 18} Reviewing the testimony presented at trial and, particularly, the videotaped

interview, we disagree with appellant’s assertion. Commencing the police interview,

Sergeant Hartman clearly indicated that the arson investigation was one of the reasons

police wanted to question appellant. Hartman then confirms appellant’s cell phone

number and stated that police had retrieved and searched that arson suspect’s cell phone

which revealed several text messages between him and appellant. Notably, Sergeant

Hartman told appellant that the search revealed that the suspect texted appellant right

around the time of the arson, indicated that he was involved in an altercation with a third

individual, and asked appellant for a ride. Upon hearing this information, appellant

denied giving the suspect a ride or any involvement with the fire.

       {¶ 19} Thereafter, the video clearly depicts the interview becoming more

contentious and heated, culminating in appellant’s arrest. The video also clearly depicts

appellant tossing his phone on his coat lying on the floor, Officer Hartman instructing

Officer Houser to “seize the phone,” and appellant then attempting to stomp on it.

       {¶ 20} Reviewing the above, it is clear that appellant had knowledge that his

phone was involved in the arson investigation and that by stomping on it he was




7.
attempting to impede that investigation. Thus, we conclude that when viewed in a light

most favorable to the prosecution, based on the totality of the circumstances there was

more than adequate evidence presented from which any rational trier of fact could have

found that appellant was attempting to impede the arson investigation by destroying his

cell phone. Thus, the trial court did not err in denying appellant’s Crim.R. 29 motion for

acquittal. Appellant’s second assignment of error is not well-taken.

       {¶ 21} In his third and final assignment of error, appellant argues that his

conviction was against the manifest weight of the evidence. Appellant reiterates his

argument set forth in his second assignment of error: that the state failed to prove that

appellant had knowledge that his cell phone was evidence in an arson investigation.

       {¶ 22} When reviewing a manifest weight claim:

              The court, reviewing the entire record, weighs the evidence and all

       reasonable inferences, considers the credibility of witnesses and determines

       whether in resolving conflicts in the evidence, 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. The discretionary power to grant a

       new trial should be exercised only in the exceptional case in which the

       evidence weighs heavily against the conviction.

State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting

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




8.
       {¶ 23} Reviewing the evidence presented at trial, particularly the undisputed

videotaped interview, we cannot say that the jury lost its way or created a miscarriage of

justice when it convicted appellant of attempted tampering with evidence. Appellant’s

third assignment of error is not well-taken.

       {¶ 24} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair trial and the judgment of the Wood County Court of

Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs

of this proceeding.

                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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