[Cite as State v. Smith, 2012-Ohio-967.]


                                        COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :
                                               :     Hon. Patricia A. Delaney, J.
                        Plaintiff-Appellee     :     Hon. W. Scott Gwin, P. J.
                                               :     Hon. John W. Wise, J.
-vs-                                           :
                                               :     Case No. 11-CA-66
NATHANIEL SMITH, JR.                           :
                                               :
                                               :
                       Defendant-Appellant     :     OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 2010-CR-00370


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            February 28, 2012



APPEARANCES:

For Appellant:                                       For Appellee:

DAVID A. SAMS                                        KENNETH W. OSWALT
P.O. Box 40                                          LICKING COUNTY PROSECUTOR
W. Jefferson, OH 43162
                                                     CHRISTOPHER A. REAMER
                                                     Assistant Prosecuting Attorney
                                                     20 S. Second Street, Fourth Floor
                                                     Newark, OH 43055
[Cite as State v. Smith, 2012-Ohio-967.]


Delaney, J.

        {¶1} Defendant-appellant Nathaniel Smith, Jr. appeals from the judgment

entry of conviction and sentence of the Licking County Court of Common Pleas for

abduction, assault, and menacing. Plaintiff-appellee is the State of Ohio.

                                     Facts and Procedural History

        {¶2} This case arose on July 10, 2011 when Bonnie Winchell came home

from work and became involved in a verbal confrontation with appellant, her live-in

boyfriend and father of the child she was expecting at the time.              The verbal

confrontation escalated to a physical assault when appellant struck her in the forehead

at least once with his hand.

        {¶3} Appellant and Winchell briefly left the residence together and returned,

and argued again. Appellant told Winchell that he wanted her to take him to the east

side of Newark. As they prepared to leave the house together, appellant went out the

door first and Winchell shut and locked the door behind him. Appellant then kicked in

the door as Winchell called 911.

        {¶4} Winchell’s two minor sons were present during this confrontation.

        {¶5} During the 911 call, Winchell stated that she wanted appellant out of her

house because he was hitting her.

        {¶6} In the meantime, appellant forced his way back into the home, breaking

the door frame. Appellant threw a television set and threatened to break the jaw of

Winchell’s son Anthony because he didn’t open the door.

        {¶7} Appellant then grabbed Winchell by the fabric of her shirt and they went

out the front door. At trial Winchell testified that appellant “escorted” her to the car by
Licking County, Case No. 11-CA-66                                                      3


her shirt, and in her written statement to police she stated that she didn’t want to go

with appellant but he pulled her by her shirt and made her get in the car. Appellant

physically placed Winchell inside the car, first in the driver’s seat and then in the

passenger seat.

       {¶8} Appellant drove to a drive-thru store on the east side of Newark called

the Bottle Shop. A car was ahead of them in line, and when appellant got out of the

car to confront the driver, Winchell climbed into the driver’s seat and drove off.

       {¶9} Back at Winchell’s residence, Officer Duncan of the Newark Police

Department had arrived and found Winchell’s sons upset and crying.               Winchell

returned shortly. She was upset and crying, and Duncan observed that her glasses

were bent.

       {¶10} Duncan also observed the broken door frame and the television on the

floor, which he photographed for evidence.

       {¶11} Duncan interviewed Winchell and obtained a written statement from her.

She told him that she did not willingly go with appellant to the Bottle Shop.

       {¶12} Appellant was arrested shortly thereafter and charged by indictment with

one count of abduction [R.C. 2905.02(A)(1) and or (2), a felony of the third degree],

one count of assault [R.C. 2903.13(A)], a misdemeanor of the first degree], and one

count of menacing [R.C. 2903.22(A), a misdemeanor of the fourth degree].

       {¶13} On September 8, 2010, appellant filed a pro se motion requesting

appointment of new counsel, stating that his court-appointed counsel was not

adequately representing him.     On September 14, 2010, the trial court granted the

motion for new court-appointed counsel and noted, “This matter shall be set for further
Licking County, Case No. 11-CA-66                                                            4


hearing after new counsel is appointed. Because the delay was occasioned by the act

of the defendant, speedy trial time is tolled.”

         {¶14} On October 4, 2010, the State filed an Application for Material Witness

Warrant for Winchell. The affidavit in support stated that upon receipt of her subpoena

for appellant’s trial, Winchell called the prosecutor and stated that she would not

appear for the scheduled jury trial. The State’s application was granted the same day.

         {¶15} The State also filed a Notice of Intention pursuant to Evid.R. 611(C),

indicating the prosecutor’s intention to call Winchell as a hostile witness and adverse

party.

         {¶16} On October 5, 2010, the trial court noted in a judgment entry that a jury

trial had been scheduled for that day but did not go forward. Winchell had been

arrested on the material witness warrant, and both the prosecutor and appellant’s

counsel told the court she needed appointed counsel. Winchell appeared before the

court in custody and requested counsel. The trial court allowed her to bond out on her

own recognizance on the condition that she appear on all subpoenas and bring her

children with her.

         {¶17} Appellant waived his right to a jury trial.

         {¶18} In light of these pending issues, the trial court continued the trial date.

         {¶19} On October 7, 2010, the State filed a “Notice of Intention to Use

Evidence” indicating its plan to use hearsay statements from Winchell in terms of her

911 call and her statements to officers immediately upon her return to the house.
Licking County, Case No. 11-CA-66                                                   5


      {¶20} On November 1, 2010, a written waiver of trial by jury, signed by

appellant, was filed, and the case proceeded to a bench trial. Appellant was found

guilty as charged.

      {¶21} Appellant was sentenced on February 18, 2011.               On count one,

abduction, he received a prison term of four years. Jail terms of 180 days and 30 days

on the counts of assault and menacing were made concurrent, and appellant received

credit for 222 days served.     This sentence was made concurrent to the sentence

imposed in an unrelated case.

      {¶22} Appellant appeals from the judgment entry of conviction and sentence.

      {¶23} Appellant raises six Assignments of Error:

      {¶24} “I.      DEFENDANT-APPELLANT WAS DENIED A SPEEDY TRIAL IN

VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS.”

      {¶25} “II.     DEFENDANT-APPELLANT WAS DENIED THE RIGHT OF

CONFRONTATION          IN    VIOLATION     OF    THE     STATE     AND      FEDERAL

CONSTITUTIONS.”

      {¶26} “III.    DEFENDANT-APPELLANT         WAS     DENIED     A    FAIR   TRIAL

BECAUSE OF PROSECUTORIAL MISCONDUCT IN VIOLATION OF THE STATE

AND FEDERAL CONSTITUTIONS.”

      {¶27} “IV.     DEFENDANT-APPELLANT         WAS     DENIED     A    FAIR   TRIAL

BEFORE AN IMPARTIAL JUDGE IN VIOLATION OF THE STATE AND FEDERAL

CONSTITUTIONS.”

      {¶28} “V.      THE    GUILTY VERDICT WAS AGAINST              THE    MANIFEST

WEIGHT OF THE EVIDENCE.”
Licking County, Case No. 11-CA-66                                                      6


       {¶29} “VI.    DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL IN VIOLATION OF THE STATE AND FEDERAL

CONSTITUTIONS.”

                                              I.

       {¶30} In his first assignment of error, appellant argues that he was denied his

right to a speedy trial because of the delay occasioned by the material witness warrant

for Winchell. Appellant failed to raise this issue before the trial court, however, and a

defendant cannot raise a speedy trial claim for the first time on appeal.       State v.

Turner, 168 Ohio App.3d 176, 2006-Ohio-3786, 858 N.E.2d 1249, ¶21 (5th Dist.).,

citing Worthington v. Ogilby, 8 Ohio App.3d 25, 455 N.E.2d 1022 (1982); State v.

Rector, 5th Dist. No. 04 CA C 03 022, 2004-Ohio-4549; State v. Vance, 5th Dist. Nos.

2003CA0041, 2003CA0030, 2004-Ohio-258.

       {¶31} The State alleges in its brief that a number of issues tolled the speedy

trial statute. Both parties may develop the issue of whether tolling occurred pursuant

to a properly-filed postconviction relief petition. Id.

                                              II.

       {¶32} Appellant asserts in his second assignment of error that his right to

confront witnesses was violated by the admission of Winchell’s hearsay statements to

officers. We disagree.

       {¶33} Appellant refers generally to “[t]he statements made to Officer Duncan by

Ms. Winchell and which he related at trial” without reference to the record. Upon

reviewing Duncan’s entire testimony, appellant raised a single objection to a question

which would elicit a hearsay response regarding statements by Winchell’s sons.
Licking County, Case No. 11-CA-66                                                                      7


        {¶34} Regardless of the failure to object1, the testimony was properly admitted

pursuant to Evid.R. 803(1) and (2).                 The statements to Duncan were made

immediately upon Winchell’s return to the residence, within moments of her ongoing

confrontation with appellant, and while she was still red-faced and crying. The record

indicates Winchell was still under the stress of the events and that her statements

were not the product of reflective thought. See, State v. Britton, 5th Dist. No. 09 CAA

02 0016, 2010-Ohio-2061, ¶34, citing State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-

6235, 818 N.E.2d 229. We find that Winchell’s statements to Duncan were properly

admissible as present sense impression and/or excited utterance.

        {¶35} Appellant’s second assignment of error is overruled.

                                                   III.

        {¶36} In his third assignment of error, appellant incorporates his first and

second assignments of error, claiming that the prosecutor committed misconduct by

requesting a continuance to obtain the material witness warrant and by “offer[ing]

inadmissible evidence.” Based upon our findings above, we reject appellant’s third

assignment of error.

                                                  IV.

        {¶37} Appellant’s fourth assignment of error incorporates his first assignment

of error, this time asserting that the trial judge was not impartial because he was the

same judge who issued the material witness warrant for Winchell. Based upon our

disposal of appellant’s first assignment of error, we also reject appellant’s fourth



1
 Before trial, the State noted its intention to introduce Winchell’s statements at the scene. The defense
objected, and the trial court reserved its ruling, instructing the defense to renew the objection where
appropriate.
Licking County, Case No. 11-CA-66                                                       8


assignment of error and note that the instant case is inapposite to appellant’s cited

authority, Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974).

                                                         V.

           {¶38} Appellant maintains that his conviction is against the manifest weight of

the evidence. We disagree.

           {¶39} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and “after 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.” State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1987). Reversing a conviction as being against the

manifest weight of the evidence and ordering a new trial should be reserved for only

the “exceptional case in which the evidence weights heavily against the conviction.”

Id.

           {¶40} Appellant’s argument goes to his conviction for one count of abduction

and is based upon Winchell’s recantation and assertion that she willingly drove with

appellant to the Bottle Shop.2

           {¶41} Appellant was charged with one count of abduction pursuant to R.C.

2905.02(A)(1) and/or (2), which states: “No person, without privilege to do so, shall

knowingly do any of the following: (1) By force or threat, remove another from the

place where the other person is found; (2) By force or threat, restrain the liberty of



2
    Appellant does not challenge his convictions for assault and menacing.
Licking County, Case No. 11-CA-66                                                         9


another person under circumstances that create a risk of physical harm to the victim or

place the other person in fear.”

       {¶42} Because the trier of fact is in a better position to observe the witnesses'

demeanor and weigh their credibility, the weight of the evidence and the credibility of

the witnesses are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212, (1967), paragraph one of the syllabus.

       {¶43} In this case, the trial court was the trier of fact, and had before it the

evidence consisting of Winchell’s testimony, her statements to investigators, and her

911 call, in addition to Duncan’s testimony and the photographic evidence of

Winchell’s glasses and the damage at the scene. The trial court could reasonably find

that appellant forcibly removed Winchell from her home, restrained her liberty, and

placed her in fear.

       {¶44} We find that the trier of fact did not lose its way in convicting appellant of

abduction.

       {¶45} Appellant’s fifth assignment of error is overruled.

                                            VI.

       {¶46} Appellant argues in his sixth and final assignment of error that he

received ineffective assistance of trial counsel, incorporating the arguments made in

the previous assignments of error. Appellant further argues that trial counsel was

ineffective in trying the case to the court instead of a jury and in failing to object to

hearsay testimony. We disagree.

       {¶47} To succeed on a claim of ineffectiveness, a defendant must satisfy a

two-prong test. Initially, a defendant must show that trial counsel acted incompetently.
Licking County, Case No. 11-CA-66                                                     10

See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing

such claims, “a court 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.’” Id. at 689, citing Michel v. Louisiana, 350

U.S. 91, 101, 76 S.Ct. 158 (1955).

         {¶48} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted

“outside the wide range of professionally competent assistance.” Id. at 690.

         {¶49} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

         {¶50} Appellant argues that trial counsel's performance was deficient in several

ways. First, he incorporates the arguments made in the preceding five assignments of

error.   Based upon our rejection of those arguments, we find that appellant’s trial

counsel was not incompetent.

         {¶51} Further, appellant argues that trial counsel should not have waived jury

and tried the case to the court.        Appellant contends that his trial counsel was

ineffective in advising him to waive her right to a jury trial, although we note that
Licking County, Case No. 11-CA-66                                                    11


appellant does not contend that the jury waiver was involuntary, unknowing, or

unintelligent.

       {¶52} Other courts have noted that waiver of jury constitutes trial strategy and

“reviewing courts may not use hindsight to second-guess that strategy.”        State v.

Webb, 10th Dist. No. 10AP-289, 2010-Ohio-6122, ¶75, citing State v. Rippy, 10th Dist.

No. 08AP-248, 2008-Ohio-6680, ¶19, and Strickland, supra, 466 U.S. at 689. We

decline to second-guess trial counsel’s sense that the court might view the evidence

against appellant more favorably than a jury.

       {¶53} Appellant asserts that waiving a trial by jury was error, but we cannot say

as a matter of law that appellant’s choice to waive a jury trial based upon trial

counsel's advice constitutes ineffective assistance of counsel.

       {¶54} Finally, appellant argues that counsel’s failure to object to “the

testimonial hearsay at trial” constitutes ineffective assistance. While appellant makes

no reference to specific hearsay in the record, he impliedly refers to Duncan’s

testimony regarding Winchell’s statements to him during the investigation. We note

that trial counsel did object to a question calling for a hearsay response regarding

statements made to officers by Winchell’s sons.

       {¶55} When counsel's alleged ineffectiveness involves the failure to pursue a

motion or legal defense, the “actual prejudice” prong of Strickland breaks down into

two components. First, the defendant must show that the motion or defense “is

meritorious,” and, second, the defendant must show that there is a reasonable

probability that the outcome would have been different if the motion had been granted

or the defense pursued. See, Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct.
Licking County, Case No. 11-CA-66                                                   12

2574 (1986); see also, State v. Santana, 90 Ohio St.3d 513, 739 N.E.2d 798 (2001)

citing State v. Lott, 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).

       {¶56} Based upon our disposition of appellant’s second assignment of error,

objection would have been futile because the hearsay evidence of Winchell’s

statements to Duncan was admissible. Appellant has failed to raise the possibility that

but for the admission of the hearsay, the outcome of the trial would have been

different. The finder of fact still had a wealth of evidence upon which it could find

appellant guilty of abduction, assault, and menacing.

       {¶57} We therefore conclude that appellant has failed to provide any proof

supported by the record that trial counsel's performance fell below objective standards

of reasonable representation and that he was prejudiced as a result. Therefore,

appellant's sixth assignment of error is overruled.

       {¶58} We therefore overrule appellant’s six assignments of error and affirm the

judgment of the Licking County Court of Common Pleas.

By: Delaney, J.

Gwin, P. J. and

Wise, J. concur.



                                        HON. PATRICIA A. DELANEY



                                        HON. W. SCOTT GWIN



                                        HON. JOHN W. WISE
[Cite as State v. Smith, 2012-Ohio-967.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                                               :
                        Plaintiff-Appellee     :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
                                               :
NATHANIEL SMITH, JR.                           :
                                               :   Case No. 11-CA-66
                       Defendant-Appellant     :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                             HON. PATRICIA A. DELANEY



                                             HON. W. SCOTT GWIN



                                             HON. JOHN W. WISE
