[Cite as State v.Hoopingarner, 2018-Ohio-2690.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     :   JUDGES:
                                                  :   Hon. John W. Wise, P.J.
        Plaintiff-Appellee                        :   Hon. W. Scott Gwin, J.
                                                  :   Hon. Earle E. Wise, Jr., J.
-vs-                                              :
                                                  :
RAMON R. HOOPINGARNER                             :   Case No. 2017CA00173
                                                  :
        Defendant-Appellant                       :   OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Court of Common
                                                      Pleas, Case No. 2017CR0789




JUDGMENT:                                             Affirmed




DATE OF JUDGMENT:                                     July 9, 2018




APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

JOHN D. FERRERO                                       BERNARD L. HUNT
Prosecuting Attorney                                  2395 McGinty Road, NW
KATHLEEN O. TATARSKY                                  North Canton, OH 44720
Assistant Prosecuting Attorney
110 Central Plaza South, Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2017CA00173                                                      2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Ramon R. Hoopingarner, appeals his August 14,

2017 conviction in the Court of Common Pleas of Stark County, Ohio. Plaintiff-Appellee

is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

       {¶ 2} On May 26, 2017, the Stark County Grand Jury indicted appellant on one

count of domestic violence in violation of R.C. 2919.25. Said charge arose from an

incident between appellant and his wife, T.H.

       {¶ 3} A jury trial commenced on August 8, 2017. The jury found appellant guilty

as charged. By judgment entry filed August 14, 2017, the trial court sentenced appellant

to thirty-six months in prison.

       {¶ 4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

       {¶ 5} "THE TRIAL COURT'S FINDING OF GUILT WAS AGAINST THE

MANIFEST WEIGHT           OF THE EVIDENCE           PRESENTED, THUS WAS NOT

SUPPORTED BY SUFFICIENT EVIDENCE OF GUILT."

                                            II

       {¶ 6} "THE APPELLANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS

DENIED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL."

                                            I

       {¶ 7} In his first assignment of error, appellant claims his conviction was against

the sufficiency and manifest weight of the evidence. We disagree.
Stark County, Case No. 2017CA00173                                                        3


       {¶ 8} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶ 9} On review for manifest weight, a reviewing court is to examine 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 jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d

541 (1997). The granting of a new trial "should be exercised only in the exceptional case

in which the evidence weighs heavily against the conviction." Martin at 175.

       {¶ 10} Appellant was convicted of committing domestic violence in violation of R.C.

2919.25(A) which states: "No person shall knowingly cause or attempt to cause physical

harm to a family or household member."

       {¶ 11} Appellant challenges the credibility of the witnesses. The weight to be given

to the evidence and the credibility of the witnesses are issues for the trier of fact. State

v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990). The trier of fact "has the best

opportunity to view the demeanor, attitude, and credibility of each witness, something that
Stark County, Case No. 2017CA00173                                                         4

does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418,

674 N.E.2d 1159 (1997).

       {¶ 12} The jury heard from four prosecution witnesses, Canton Police Officer

Vincent Romanin (responding officer), Carl E. Baker, Jr. (victim's ex-husband), Brandon

Baker (victim's child), and Carl E. Baker, III (victim's child), and one defense witness, the

victim herself, the wife of appellant.

       {¶ 13} Officer Romanin testified he was dispatched on a call of domestic violence.

T. at 152. When he arrived on the scene, he spoke with the victim. T. at 155. He

observed blood "around her, the side of her head." T. at 156. The victim "was very upset,

intoxicated, seemed to be distraught." T. at 157. At first she was cooperative, explaining

that "she got in an altercation with her husband, that the injury to her ear was because of

him." Id. However, when she was informed that the police would press charges against

appellant on her behalf, she "became very uncooperative." Id. Officer Romanin also

spoke with the victim's ex-husband, Carl Baker, Jr., and their two children, Carl and

Brandon, all who were present during the incident. T. at 156, 160. While Officer Romanin

was speaking with everyone, appellant arrived on the scene. T. at 160-161. Appellant

stated he left prior to anything getting physical and he did not know how his wife received

the injury to her ear, and denied ever putting his hands on her. T. at 161.

       {¶ 14} Mr. Baker, Jr. testified he and the victim were married at one time and

together they have three children. T. at 180. On the evening of the incident, he received

a telephone call around 1:00 a.m., and he was asked to pick up the victim and two others,

one of which was their child Brandon, in Ravenna. T. at 182-183. Mr. Baker and their

son Carl drove to Ravenna, picked them up, and drove them to the victim's home in
Stark County, Case No. 2017CA00173                                                          5


Canton. T. at 183. The victim was intoxicated. T. at 206. As the victim attempted to

gain entry into her home, appellant came out onto the porch. T. at 184. The couple

started arguing and Mr. Baker called the police. T. at 187, 194. Mr. Baker observed

appellant hit the victim, "[s]he had hit the ground, and then as she was on the ground, he

had kicked her in the head." T. at 195. Appellant approached Mr. Baker who was inside

his vehicle talking to the police, yelled at Mr. Baker, and then left the area. T. at 196-197.

Mr. Baker did not observe the victim hit appellant. T. at 197. On cross-examination, Mr.

Baker admitted he could not see the entire front porch, but appellant was on the porch at

the corner of the house which was visible from his vantage point. T. at 203. On redirect,

Mr. Baker testified he had an unobstructed view of what went on between appellant and

the victim. T. at 211.

       {¶ 15} Brandon Baker, age 14, testified to his evening in Ravenna with his mother

who was intoxicated. T. at 180, 214-217. Upon arriving at the home in Canton, Brandon

observed appellant push his mother down the stairs and start punching her. T. at 218.

Appellant punched her in the face "and then she fell and then he started kicking her" in

her stomach. Id. Brandon remained in the vehicle with his father. T. at 218-219. He

stated he did not talk to the police. T. at 219, 223-224.

       {¶ 16} Carl Baker, III, age 16, testified and corroborated his father's and younger

brother's testimony. T. at 180, 229-231. Carl was standing in the yard in an attempt to

break up the fight, but it was too late. T. at 231. He observed a cut on his mother's ear

because appellant "kicked her ear like a football." T. at 232. He never saw his mother

attack appellant. Id.
Stark County, Case No. 2017CA00173                                                         6


       {¶ 17} The victim testified in appellant's defense. She explained when she arrived

home, "we got in an altercation because of myself." T. at 242. She stated she injured

herself by "jumping the dog pen, hit my ear on the dog pen" while she was attempting to

enter the home. T. at 243, 253-254. She testified Mr. Baker does not like appellant at

all. T. at 244. She explained vehicles are usually parked in front of the house which

would have blocked a lot of Mr. Baker's view of the dog pen. T. at 247-248. Once she

saw appellant exit the home, she "was being aggressive and starting to put my hands on

him." T. at 254. She hit him in the face and was slapping him pretty hard. Id. She did

not recall telling Officer Romanin that appellant had ripped the earring from her ear. T. at

255.

       {¶ 18} The jury had before it pictures of the victim's home and the surrounding

area, marked to show where everyone was in relation to their respective vantage point.

State's Exhibits 4-6; Defendant's Exhibits A-C.

       {¶ 19} Upon review, we find sufficient, credible evidence, if believed by the jury, to

support the conviction for domestic violence, and do not find any manifest miscarriage of

justice.

       {¶ 20} Assignment of Error I is denied

                                             II

       {¶ 21} In his second assignment of error, appellant claims he was denied the

effective assistance of counsel. We disagree.

       {¶ 22} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus. Appellant must establish the following:
Stark County, Case No. 2017CA00173                                                         7




               2. Counsel's performance will not be deemed ineffective unless and

       until counsel's performance is proved to have fallen below an objective

       standard of reasonable representation and, in addition, prejudice arises

       from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

       O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

               3. To show that a defendant has been prejudiced by counsel's

       deficient performance, 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.



       {¶ 23} Specifically, appellant claims his trial counsel was ineffective for not

objecting to 1) his conversation with the trial court about his past history with child

protective services which he himself initiated; 2) the admission of photographs of the

victim's injuries taken by an officer who did not testify; and 3) the placing of handcuffs on

him in front of the jury.

                            CHILD PROTECTIVE SERVICES FILE

       {¶ 24} Appellant asked to speak with the trial court about his child protection

services file. T. at 9-10. Appellant explained there have been multiple accusations

against him of abusing the children, and he wanted the trial court to know that he has

"done what I was directed to do to avoid these situations. I've walked away from them."

T. at 11. The trial court indicated the information in the file was irrelevant to the case at
Stark County, Case No. 2017CA00173                                                          8


hand, and could be harmful to his case. T. at 14-15. The trial court informed appellant it

was trying to make sure his case was not prejudiced and he would receive a fair trial. T.

at 15. The trial court stated, "I'm afraid if the jury heard some of the comments in this,

they could convict you based on these other activities, and I don't think that's fair to you."

Id. This conversation was had prior to voir dire being conducted. T. at 10-16. There is

no evidence that any potential jurors heard this conversation.           Appellant has not

demonstrated any prejudice regarding this issue.

                                      PHOTOGRAPHS

       {¶ 25} Officer Romanin testified the photographs of the victim's injuries were taken

by Sergeant Coates. T. at 157-158; State's Exhibits 1-3. Sergeant Coates did not testify.

       {¶ 26} Officer Romanin personally interviewed the victim and observed her

injuries. He agreed the photographs were a fair and accurate representation of the

injuries he personally observed. T. at 157-159. "The person who took the photograph or

video need not testify as long as the witness who does testify verifies that it is a 'fair and

accurate depiction.' " State v. Wilson, 5th Dist. Stark No. 2016CA00071, 2016-Ohio-

5895, ¶ 66, quoting State v. Freeze, 12th Dist. Butler No. CA2011-11-209, 2012-Ohio-

5840, ¶ 66. There were no grounds for an objection. Appellant has not demonstrated

any prejudice regarding this issue.

                                       HANDCUFFS

       {¶ 27} After the jury was chosen, the trial court gave the jurors a break. T. at 144.

After the jurors left the courtroom, the following exchange occurred between defense

counsel and the trial court (T. at 116-117):
Stark County, Case No. 2017CA00173                                                         9


              MS. STOUT: No, Your Honor. As far as I know, I don't think the jury

       saw it, but the deputy was in the process of putting him in handcuffs while

       the jury was in here.

              THE COURT: Okay. I did see the tail end of it. Let's address the

       issue. Just trying to think of the best way to address it. Do you want me to

       do it individually, bring them in one at a time?

              MS. STOUT: I - - yeah, I don't - - my concern is that it potentially had

       tainted anything.

              THE COURT: Well, it could have. I mean, there's no question about

       it.

              MS. STOUT: Yeah.

              THE COURT: I saw the tail end of it.

              MS. STOUT: Yeah.



       {¶ 28} The trial court and counsel then discussed the appropriate procedure to

follow and question to ask. T. at 117-123. Thereafter, the trial court brought each juror

up individually and asked each one a variation of: "No, something when the jurors were

walking out occurred in the courtroom that may have been a bit unusual, and I wanted to

know if you saw anything that you thought was unusual or improper?" T. at 124-137.

Each juror answered in the negative. Id. Appellant has not demonstrated any prejudice

regarding this issue.

       {¶ 29} Upon review, we do not find any deficiency by trial counsel rising to the level

of prejudice to appellant and therefore, do not find any ineffective assistance of counsel.
Stark County, Case No. 2017CA00173                                          10


      {¶ 30} Assignment of Error II is denied.

      {¶ 31} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Wise, John, P.J. and

Gwin, J. concur.




EEW/db 619
