[Cite as State v. Tawney, 2019-Ohio-3238.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :      OPINION

                 Plaintiff-Appellee,           :
                                                      CASE NO. 2018-P-0060
        - vs -                                 :

LARRY R. TAWNEY,                               :

                 Defendant-Appellant.          :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR
00993.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Michael J. Feldman, Lallo & Feldman Co., LPA, 4230 State Route 306, Suite 240,
Willoughby, OH 44094 (For Defendant-Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Larry R. Tawney, appeals the July 12, 2018 judgment of the

Portage County Court of Common Pleas sentencing him to a total of twenty-one years

imprisonment for two counts of felonious assault, and one count each of abduction,

aggravated burglary, robbery, disrupting public service, and grand theft auto. For the

reasons discussed herein, the judgment is affirmed.
      {¶2}   Mr. Tawney was indicted on seven counts: count one: felonious assault, a

felony of the second degree, in violation of R.C. 2903.11(A)(2); count two: abduction, a

felony of the third degree, in violation of R.C. 2905.02(A)(2)(C); count three: aggravated

burglary, a felony of the first degree, in violation of R.C. 2911.11(A)(1)(B); count four:

felonious assault, a felony of the second degree, in violation of R.C. 2903.11(A)(1);

count five: robbery, a felony of the second degree, in violation of 2911.02(A)(2)(B);

count six: disrupting public services, a felony in the fourth degree, in violation of R.C.

2909.04(A)(1); and count seven: grand theft auto, a felony of the fourth degree, in

violation of R.C. 2913.02. He pleaded not guilty and the case proceeded to trial.

      {¶3}   Mr. Tawney and the victim were in a boyfriend-girlfriend relationship. She

testified that Mr. Tawney used cocaine, methamphetamine, and marijuana daily and

admitted that about the time she met him, she also began using cocaine. According to

the victim’s testimony, a few months into their relationship, Mr. Tawney became

physically abusive toward her.

      {¶4}   According to the victim’s testimony, on the evening of November 8, 2017,

she agreed to meet with Mr. Tawney. She drove to his mother’s house, where he

resided, and from there they walked to a friend’s house where they “hung out” and

drank beer until the early morning.     Upon their return to Mr. Tawney’s house, she

wanted to return home. He did not want her to leave and an argument ensued. She got

in her car and started it, but Mr. Tawney got in the passenger’s side, removed the keys

from the ignition, and took her phone and keys away from her. He told her to go inside

and when she did not get out of the car, he went around to the driver’s side door and

dragged her by her coat out of the car and into the house.




                                            2
       {¶5}   The victim testified that once they were inside, Mr. Tawney demanded she

cook him breakfast.    When she refused, he pushed her into a corner and held a

serrated knife to her throat, threatening to kill her and berating her with derogatory

names and insults. He eventually started making some eggs and she tried to sneak

past him, but he caught her, threw her to the ground spouting more profanity, and put

his foot on her head with enough of his body weight that she couldn’t get up. At some

point, his mother came in the room and stepped over the crying victim without comment.

Then, with his mother still present, she tried to stand up and Mr. Tawney took the hot

cast iron skillet and held it “super close” to her face and threatened to burn her so badly

that no one would want to look at her again. He then pushed her into a chair at the

kitchen table and she watched him eat.

       {¶6}   On direct examination, and coinciding with the police report, the victim

testified that after Mr. Tawney ate, she then went upstairs and took a nap until about

4:30 p.m. On cross examination, the victim stated that she went upstairs and took a

nap immediately upon their return home until Mr. Tawney woke her up at 4:30 p.m. and

then the violence in the kitchen occurred.

       {¶7}   Then, either directly after waking her up or directly following the violence

in the kitchen, Mr. Tawney told her he was going to take her to Youngstown and sell her

for money. She was able to convince him that if he needed money so badly she could

borrow some money from her parents instead, so he drove the victim in her car to her

parents’ house. Once there, he instructed her to go inside, get the money, and return

quickly.




                                             3
       {¶8}   When she opened the garage, she realized her parents were not home, so

she ran into the house and deadbolted the door. She thought she was safe but then

she heard him kicking the door, so she ran for the house phone. On the third kick, he

broke the door down. He grabbed the phone out of her hands, dislodged the battery,

threw her to the ground, stomped on her head a number of times, and kicked her

repeatedly in her privates and in her back. He told her that if she got him in trouble he

would “hunt her down and end her.” She pleaded with him to just go get her purse and

then she would go with him. When he went for her purse, she ran across the street,

screaming for help and pounding on the neighbor’s windows. The neighbor called 9-1-1

and her parents. Mr. Tawney took the victim’s purse and drove off in her car.

       {¶9}   The police and EMS arrived, followed shortly thereafter by her parents.

Though she was disheveled, bruised, and crying, minimal immediate medical care was

necessary, but upon the recommendation of EMS and the police, her parents drove her

to the emergency room.

       {¶10} In addition to the victim’s testimony, the state also presented the testimony

of the investigating police officer and the nurse who saw her at the hospital. Their

testimony corroborated the victim’s testimony. The police officer who investigated the

incident testified that he found the door from the house to the garage was shattered,

and inside the house he found the phone and battery were separated and on the floor.

Pictures of the shattered door were entered into evidence.

       {¶11} The nurse testified that the victim had blood in her urine, which could be

caused either by injuries to her back or privates or a urinary tract infection, but that the

victim did not have a urinary tract infection. The nurse also testified that based on the




                                             4
color of the bruises, they were likely no older than a day or two, and that many bruises

were still developing.     Numerous pictures of the victim’s bruises were admitted,

including one showing a permanent scar.

       {¶12} While the victim’s injuries were not disputed, Mr. Tawney maintained that

he was not the perpetrator. Mr. Tawney did not testify, nor did he call any witnesses or

offer any evidence.

       {¶13} The jury found him guilty of all seven counts and the court sentenced him

to seven years imprisonment for each of the two counts of felonious assault, twenty-four

months for abduction, and five years for aggravated burglary, all to run consecutively to

one another; and four years for robbery, twelve months for disrupting public service, and

twelve months for grand theft auto to run concurrently to one another and concurrent to

the   aforementioned consecutive     sentences for a       total of   twenty-one     years

imprisonment.

       {¶14} Mr. Tawney timely appealed, assigning for our review two assignments of

error. The first states:

       {¶15} The prosecutor’s statements in closing argument related to
             appellant’s failure to testify violated appellant’s privilege against
             self-incrimination guaranteed by the Fifth and Fourteenth
             Amendments of the United States Constitution.

       {¶16} The statement to which Mr. Tawney refers occurred in the following

segment of the state’s closing argument:

       {¶17} [STATE]: Now, ladies and gentlemen, his closing argument has
             been nothing but speculation. The evidence in this case is a solid
             match. Look at the evidence.

       {¶18} Now, I expected [defense counsel] to come up here and muddy the
             waters. He’s a very good advisory, and he did so very charmingly.
             We’ve worked together for a lot of years and I really respect
             [defense counsel].


                                           5
       {¶19} But, ladies and gentlemen, he gets up here and he talks about how
             unreliable the victim was and how somehow this case is fabricated.

       {¶20} Now, it’s no big surprise to me, ladies and gentlemen, because
             that’s the kind of defense that I see in the hundreds of cases that
             I’ve litigated, that the evidence is somehow fabricated or untrue. It’s
             no big surprise to me, ladies and gentlemen.

       {¶21} Now ask yourself, what else can he say? What can he say? He has
             zero evidence. And when the evidence is not –

       {¶22} [DEFENSE COUNSEL]: Objection, your Honor.

       {¶23} THE COURT: I’ll sustain the objection.

       {¶24} [STATE]: The evidence is uncontroverted,                   ladies   and
             gentlemen. Uncontroverted. (Emphasis added.)

       {¶25} After closing arguments, defense counsel moved for a mistrial based on

the prosecutor’s statement. The following conversation occurred outside the presence

of the jury:

       {¶26} [DEFENSE COUNSEL]: I have to at this time move for a mistrial
             based on the Prosecutor’s closing argument that states that what
             evidence does the Defense have. It sort of implies what has the
             Defense proven or presented. I think it violates his right to remain
             silent, and, instead, invites the Jury to consider those issues. And
             at this time I think I have to move for a complete mistrial because I
             don’t think there’s any instruction that would cure it without doing
             more damage. Thank you.

       {¶27} THE COURT: [Prosecutor]?

       {¶28} [STATE]: Your Honor, the evidence in this case has been
             uncontroverted and that’s what I was indicating, that they are to
             review the evidence in this case.

       {¶29} THE COURT: Okay. And I did sustain your objection. I will,
             obviously, in my charge to the Jury acknowledge that the
             Defendant is not required to testify, not required to prove anything.
             And that should be a curative instruction, so I’ll deny your motion,
             [defense counsel].

       {¶30} Accordingly, the court instructed the jury, in pertinent part, as follows:




                                             6
       {¶31} THE COURT: The opening statements and the closing arguments
             of counsel are designed to assist you, but they are not evidence.

       {¶32} The opening and closing arguments, which you have just heard,
             are provided by law for the purpose of aiding the jury in its analysis
             of the evidence, giving the jury the benefit of such deductions and
             reasonable inferences made by counsel as may logically appeal to
             the wisdom and judgment of the jury, and these arguments are not
             evidence.

       {¶33} Evidence does not include statements that were stricken by the
             Court or which you were instructed to disregard. Such statements
             are not evidence and must be treated as though you had never
             heard them.

      {¶34} You must not speculate as to why an objection was sustained * * *.

      {¶35} * * *

      {¶36} It is not necessary that the Defendant take the witness stand in his
            own defense. He has a constitutional right not to testify. The fact
            that he, the Defendant, did not testify must not be considered for
            any purpose. The Defendant is not required to provide or prove any
            evidence.

      {¶37} On appeal, Mr. Tawney again raises issue with the prosecutor’s “zero

evidence” remark. He directs our attention to our recent decision in State v. Vaughn,

11th Dist. Ashtabula No. 2018-A-0045, 2019-Ohio-268, stating “the test for prosecutorial

misconduct vis-a-vis a defendant’s failure to testify is ‘whether the language used was

manifestly intended or was of such character that the jury would naturally and

necessarily take it to be a comment on the failure of the accused to testify.’” Id., at ¶37

quoting Webb, supra. We do not find that “[h]e has zero evidence” would naturally and

necessarily be taken by the jury as a comment on Mr. Tawney’s decision to not testify.

      {¶38} As we noted in Vaughn, “‘[f]actors such as the nature of the closing

remarks, whether the trial court gave corrective instructions, and the strength of the




                                            7
evidence against the defendant must be taken into account.’” Id. at ¶34, quoting State

v. Wright, 11th Dist. Portage No. 2000-P-0128, 2002 WL 480328, *7.

       {¶39} “[I]solated comments by a prosecutor are not to be taken out of context

and given their most damaging meaning. * * * Counsel is entitled to latitude in closing

arguments as to what the evidence has shown.” State v. Twyford, 94 Ohio St.3d 340,

2002-Ohio-894 (2002). Here, we find that the jury could have taken this statement as a

comment on the amount or nature of evidence, not directly on Mr. Tawney’s decision

not to testify. Moreover, the court properly instructed the jury that the defendant did not

have to testify or prove any element. Finally, we find the evidence was overwhelmingly

against Mr. Tawney.      Accordingly, we do not find that the prosecutor’s comment

prejudicially affected Mr. Tawney’s substantial rights.

       {¶40} Mr. Tawney further asserts that even the prosecutor’s statement that the

evidence was uncontroverted was not permitted pursuant to State v. Webb, 70 Ohio

St.3d 325, 328 (1994), which states, “[a] prosecutor generally may note that his or her

evidence is uncontradicted unless it is evidence only the defendant could contradict.”

He argues that the victim’s testimony was the basis for all of the criminal charges and

provided the necessary elements to those charges, and that the only person who could

contradict that testimony was Mr. Tawney. We disagree. Here, the state did not rely

solely on the victim’s testimony but also introduced evidence from the investigating

officer and hospital nurse. Moreover, according to the victim’s testimony, Mr. Tawney’s

mother witnessed at least part of the assault, but defense counsel made the decision

not to call her as a witness.




                                             8
       {¶41} Furthermore, “[a] reference by the prosecutor in closing argument to

uncontradicted evidence is not a comment on the accused’s failure to testify, where the

comment is directed to the strength of the state’s evidence and not to the silence of the

accused, and where the jury is instructed * * * to not consider the accused’s failure to

testify.” State v. Williams, 23 Ohio St.3d 16, 19-20 (1986). Viewing the prosecutor’s

statement in context, we find the comment was directed to the strength of the evidence

not Mr. Tawney’s decision not to testify, and, as discussed above, the court properly

instructed the jury.

       {¶42} Mr. Tawney’s first assignment of error is without merit.

       {¶43} His second assignment of error states:

       {¶44} The appellant’s due process rights and rights to a fair trial as
             guaranteed by the Sixth and Fourteenth Amendments to the United
             States Constitution and Article I, Section 10 of the Ohio Constitution
             were violated by the ineffective assistance of counsel.

       {¶45} To establish ineffective assistance of counsel, an appellant “must show (1)

deficient performance by counsel, that is, performance falling below an objective

standard of reasonable representation, and (2) prejudice-a reasonable probability that,

but for counsel’s errors, the result would have been different.” State v. Myers, 154 Ohio

St.3d 405, 2018-Ohio-1903 (2018), citing Strickland v. Washington, 466 U.S. 668, 694,

104 S.Ct. 2052.

       {¶46} “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, supra at 689. See also State v. Rice, 11th Dist. Lake No.

2018-L-065, 2019-Ohio-1415, ¶88. Furthermore, “‘“because of the difficulties inherent

in making the evaluation, a court must indulge a strong presumption that counsel’s



                                            9
conduct falls within the wide range of reasonable, professional assistance. (* * *).” * * *

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. [Thus,] [t]o

warrant reversal, ‘the defendant must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would be different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” * * *’” (Citations omitted.) Id. at ¶89.

       {¶47} On appeal, Mr. Tawney asserts the “totality of the circumstances, the

overall approach to the case, and serious lapses in judgement” support a finding of

ineffective assistance of counsel. He points to counsel’s short opening statement, his

failure to recognize prejudice to the jury during voir dire, his unawareness of the specific

potential penalties or sentences Mr. Tawney was facing, a failure to object to hearsay

statements and leading questions, his failure to explore possible defenses, his late

request to subpoena witnesses, and his decision to call no witnesses or put on any

evidence. We address each in turn.

       {¶48} During voir dire, the state and the court noticed Mr. Tawney was falling

asleep. Outside of the hearing and view of the jury, the court sent Mr. Tawney for a

drug   screen,    which    showed     the    existence   of   marijuana,    cocaine,    and

methamphetamines in his system. The court recessed for the day, telling the jury that

the court encountered a “significant technical glitch.” The next day, the court again

addressed Mr. Tawney outside the presence of the jury and, being convinced of his

present ability to assist in his defense, proceeded with trial. The following conversation




                                             10
provides helpful context to many of the arguments he now makes under this assignment

of error:

       {¶49} THE COURT: Before we bring the Jury in, I want to go over a few
             matters. Yesterday, after voir dire and opening statements, it was
             clear to this Court that the Defendant was under the influence of
             something. I do not feel that it effected the voir dire or the opening
             statements. It is not clear whether or not the Jury saw him nodding
             off. I don’t think so.

       {¶50} But now I need to know from you [defense counsel], you’ve met
             with your client this morning, is he able to assist in his defense
             today …?

       {¶51} [DEFENSE COUNSEL]: * * * I have spoken with Mr. Tawney this
             morning. * * * His demeanor is such that I think he’s in a position to
             assist in his own defense today.

       {¶52} The other thing I’d say for the record, Your Honor, is I know the
             Court had some concerns. * * * I wasn’t watching him ‘cause I was
             focused more on the Jury yesterday. I don’t think anything went
             on yesterday that would have prejudiced him with regard to
             voir dire and opening statement. We had met several times to
             prepare for trial before yesterday, and I really didn’t need to
             consult with him, so I don’t think we have an issue there.
             (Emphasis added.)

       {¶53} The court then addressed Mr. Tawney directly, confirmed he knew what

charges he was facing and that he had no questions. Satisfied that he was in a position

to assist his defense, the court then asked the state to put the plea offer on the record,

which included reduced and dropped charges.

       {¶54} THE COURT: [Defense counsel], did you go over that with your
             client?

       {¶55} [DEFENSE COUNSEL]: * * * I did. * * * [I]t’s also important for the
             record that he would understand that the second degree felonies
             would carry between three and eight years in prison. I must admit
             my feelings, I don’t remember what a felony three carries in this
             ‘cause they keep changing it, but I think it would carry a maximum
             penalty of five years in prison. So he would be looking at a
             presumptive minimum of three years, up to 21 years.



                                           11
{¶56} * * *

{¶57} [THE STATE]: A felony of the third degree is 36 months, and the
      felony two would yield two to eight.

{¶58} * * *

{¶59} [DEFENSE COUNSEL]: So you’re looking at a potential minimum
      of * * * two years and up to a maximum of 19 years.

{¶60} * * *

{¶61} THE COURT: And * * * he’s looking at 41 years in prison if he’s
      convicted of all counts. Do you understand that, Mr. Tawney?

{¶62} THE DEFENDANT: Yes, I do, ma’am.

{¶63} THE COURT: Okay. And you are rejecting her offer?

{¶64} THE DEFENDANT: Yes.

{¶65} * * *

{¶66} THE COURT: Anything on behalf of the State?

{¶67} [THE STATE]: * * * This Defendant claimed that he wasn’t impaired
      in any way, his judgment wasn’t impaired in any way yesterday, I
      just wanted to make certain that he was satisfied with the Jury.

{¶68} THE COURT: Sir, are you satisfied with the Jury that [defense
      counsel] picked for you?

{¶69} THE DEFENDANT: Yeah. Yeah. We talked about --

{¶70} THE COURT: Do you have any qualms at all about any of the
      Jurors?

{¶71} THE DEFENDANT: No. I had one and she was removed, so –

{¶72} THE COURT: Okay. And, sir, are you happy with the opening
      statement made by [defense counsel]?

{¶73} THE DEFENDANT: Yes, I am.

{¶74} THE COURT: And you think he is protecting your rights in this
      matter?

{¶75} THE DEFENDANT: Yes.



                                  12
      {¶76} THE COURT: And he’s defending you well?

      {¶77} THE DEFENDANT: Yeah.

      {¶78} THE COURT: Okay. Again,              you   are   satisfied   with   this
            representation; is that correct?

      {¶79} THE DEFENDANT: Yes.

      {¶80} Now on appeal, however, Mr. Tawney raises issue with his representation,

specifically his opening statement, his finding the jury was not prejudiced by Mr. Tawney

falling asleep during voir dire, and defense counsel’s inexact remembrance of the

potential sentence he was facing. Regarding opening statements, we find his argument

on appeal unpersuasive as he expressly told the court he was satisfied with his defense

counsel’s opening statement. Moreover, regarding voir dire, the court doubted that the

jury saw Mr. Tawney nodding off and Mr. Tawney himself maintained that he was not

nodding off but looking down so as to not “aggressively stare at somebody.” Finally, to

the extent defense counsel forgot the potential sentence Mr. Tawney was both facing

and the deal he was being offered, we do not find he was prejudiced and the result

would have been any different had defense counsel remembered because both the

court and the prosecutor spoke up and clarified exactly what Mr. Tawney was facing.

The court then confirmed Mr. Tawney’s understanding.

      {¶81} He also contends on appeal that defense counsel failed to object to

hearsay statements and leading questions. He specifically points to the testimony of

the investigating police officer who responded to the 9–1–1 call made from the victim’s

neighbor’s house. Preliminarily, we note that defense counsel correctly identified the 9–

1–1 call as admissible hearsay pursuant to the excited utterances exception. “9–1–1

calls are generally admissible as excited utterances or under the present sense



                                           13
impression exception to the hearsay rule.” State v. Martin, 5th Dist. Tuscarawas No.

2015AP0010, 2016-Ohio-225, ¶59, citing, inter alia, State v. Smith, 80 Ohio St.3d 89,

107-108 (1997). Here, upon the admission of the 9–1–1 call, defense counsel noted on

the record, “I consider objecting that this is a business record. Police records do not

meet the business record exception, so this is also based on the rule that says

spontaneous utterance, and, therefore, I don’t object to it.”

       {¶82} The entire 9–1–1 call was played for the jury. The call was placed by the

victim’s neighbor, who did not herself testify. During the call, the neighbor states the

victim ran over to her house saying her boyfriend is trying to kill her. For the next

minute, the dispatcher asks questions which the neighbor repeats to the victim; the

victim can be heard in the background answering the questions followed by the

neighbor restating them to the dispatcher. A minute and a half into the eight minute call,

the victim comes to the phone and answers the dispatcher’s questions directly.

       {¶83} Following the playing of the 9–1–1 call, the officer who responded to the

call testified. Mr. Tawney specifically claims error with the officer’s statement that “[the

neighbor] called and said that her neighbor [the victim] ran across the street to her

house stating that * * * her boyfriend had assaulted her.” Further, Mr. Tawney broadly

asserts that the “testimony includes additional hearsay statements as well as leading

questions of the witness in a continual pattern, all prejudicial to the Appellant.” He cites

one page in the transcript but does not direct our attention to any statement on that

page in particular.

       {¶84} Nevertheless, in reviewing the page Mr. Tawney points us to, we do find

an instance of hearsay not followed by an objection; after being asked whether there




                                            14
was any corroborating evidence, the responding officer states, “[t]he neighbor did state

that she saw Mr. Tawney leave the area in her vehicle.” From context, it appears that

the “she” that is referred to is the neighbor and “her car” is the victim’s car. We note,

however, that it is not apparent from the 9–1–1 call that the neighbor herself saw Mr.

Tawney drive off; it is the victim, whose answer is relayed through the neighbor, who

states Mr. Tawney drove off in her car.

      {¶85} Ultimately, however, we find these two errors to be harmless. Crim.R.

52(A) states “[a]ny error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded.” Id. “The term ‘substantial rights’ has been

interpreted to require that ‘“the error must have been prejudicial.” (Emphasis added.)’

[State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761], quoting [United States v. Olano,

507 U.S. 725, 734, 113 S.Ct. 1770, (1993).] If a court determines that the error did not

affect the defendant’s substantial rights, then the error is harmless and ‘“shall be

discarded.”’ Id., quoting Crim.R. 52(A).” State v. Morris, 141 Ohio St.3d 399, 2014-

Ohio-5052, ¶23.

      {¶86} We do not find these statements to be prejudicial to Mr. Tawney. First, the

jury had just heard the 9–1–1 call in which the neighbor stated that the victim ran to her

house and pounded on the door saying her boyfriend was trying to kill her. The officer’s

comment that the neighbor said the victim was assaulted by her boyfriend, though not

verbatim, essentially repeated what the jury heard in the 9–1–1 call.       The officer’s

comment did not provide any new evidence.

      {¶87} The second hearsay statement, that the neighbor saw Mr. Tawney drive

off, was not indicated in the 9–1–1 call. However, even excising the officer’s statement,




                                           15
we find the evidence against Mr. Tawney was overwhelming. “‘We are * * * mindful that

our role upon review of this case is not to sit as the supreme trier of fact, but rather to

assess the impact of this erroneously admitted testimony on the jury.’” Morris, supra, at

¶29, quoting State v. Rahman, 23 Ohio St.3d 146, 151 (1986). With that in mind, we

note that the jury had heard the victim herself testify at trial and state on the 9–1–1 call

that Mr. Tawney drove off in her car. The car was found where the victim anticipated it

would be abandoned. The officer saw firsthand the damage to the door and phone,

which corroborated the victim’s other testimony. Thus, in light of the overwhelming

evidence against him, we find the error is harmless beyond a reasonable doubt.

       {¶88} Mr. Tawney also faults his defense counsel for failing to explore a possible

defense the victim herself raised. She stated, “[w]hen I was forced inside the house, he

convinced me that I couldn’t leave, so it would be best, since I had been drinking, to lay

down, and, in my head I thought, you know what, that does make some sense, I don’t

want to be drinking and driving, so I walked slowly up the stairs and laid down * * *.” Mr.

Tawney argues this shows “a rather innocent motive and intention” on his part.

However, consider the testimony that Mr. Tawney forcibly dragged her into the house

and thereafter threatened to kill her, however, we find it unlikely the jury would have

been convinced he was acting with an innocent motive.

       {¶89} Mr. Tawney also questions his defense counsel’s decision to not question

“the lack of physical evidence and corroboration by the photos which show no marks on

her face.” There was, however, photographic evidence submitted to show marks on the

victim’s face. The nurse who saw the victim at the hospital testified that she had an

abrasion above her eyebrow and bruising under her eye and along the bridge of her




                                            16
nose. Thus, we do not find his defense counsel ineffective for failing to argue there was

no such evidence.

      {¶90} Finally, Mr. Tawney also calls into questions his late request to subpoena

witnesses and, ultimately, his decision to not call any witnesses or put on any evidence.

He speculates, “one can only wonder why he did not call the Appellant to testify or

Appellant’s mother or the neighbor with whom Appellant and [the victim] spent the night

drinking for hours prior to the events which were set forth in the indictment.”

Importantly, however, he does not state, nor do we have any evidence to suggest, that

had his mother, himself, or the neighbor been called to testify that the outcome would

have been different. A mere vague insinuation that the testimony would be favorable to

appellant does not convince us that his defense counsel erred in failing to call them as

witnesses.

      {¶91} Moreover, defense counsel explains this decision to the court:

      {¶92} [DEFENSE COUNSEL]: I’ve spoken at length with [Mr. Tawney’s
            mother]. I don’t believe that anything she would testify to would be
            relative to the facts at issue here. [Mr. Tawney] and I have not
            made a decision about his testimony. He has asked that I ask for a
            continuance to subpoena a number of individuals who he believes
            are engaged in selling drugs, would have sold drugs to [the victim],
            would perhaps been involved with her in other ways in order to
            attack her credibility with regard to her testimony about her drug
            use and her relationships and that that would be for the purpose of
            attacking her credibility.

      {¶93} * * *

      {¶94} [THE STATE]: Certainly that would be improper to do so. The State
            would be opposed to any witnesses of this nature. She has no
            criminal record. That would be the only way he could impeach her
            is via criminal record. I would indicate that certainly that has no
            relevance to the case at hand.

      {¶95} * * *



                                           17
      {¶96} [DEFENSE COUNSEL]: Well, the other issue is these gentlemen
            would have to come in, Your Honor, and admit that they were
            engaged in the sale of illegal narcotics and they might be engaged
            in some human trafficking and promoting prostitution.

      {¶97} * * *

      {¶98} [THE STATE]: Again, I don’t think any witness would ever come in
            and admit those things, but, even if they were to, there is no
            relevance, there’s no probative value that has to do with the case at
            hand.

      {¶99} THE COURT: And, again, I’m going to deny your motion, [defense
            counsel]. There is no probative value relative to this case, no
            relevance; and, therefore, I’m going to deny your motion for a
            continuance.

      {¶100} We cannot fault counsel on the timeliness of the request when the basis of

the denial was relevance, not timeliness. After the denial of this motion, the court did

recess for the day so that Mr. Tawney and his counsel could discuss whether or not Mr.

Tawney would himself testify. The next day, the following conversation took place:

      {¶101} [DEFENSE COUNSEL]: I have spoken to Mr. Tawney in great
             length about whether or not he would testify. We’ve talked about
             the risks and benefits and both in terms of his testifying or not, the
             state of the evidence as it was presented by the prosecution. My
             recommendation to him is that he not testify. I would ask the Court
             to inquire of him and his choice.

      {¶102} THE COURT: Mr. Tawney, you understand you have the right to
             testify or not testify, that’s your constitutional right? What do you
             choose to do today?

      {¶103} THE DEFENDANT: Not testify.

      {¶104} * * *

      {¶105} THE COURT: Okay. And you’ve gone over the pros and cons with
             [defense counsel]?

      {¶106} THE DEFENDANT: Yes.

      {¶107} THE COURT: Okay. And you’re satisfied that’s the right decision for
             you?



                                           18
       {¶108} THE DEFENDANT: Yes.

       {¶109} Mr. Tawney has failed to show that defense counsel’s actions fell below

an objective standard of reasonable representation or that the outcome would have

been any different had defense counsel called witnesses, presented evidence, or

advised him to testify; thus, we do not find that his defense counsel was ineffective in

this regard.

       {¶110} Of the many arguments Mr. Tawney makes in arguing ineffective

assistance of counsel, we find that his defense counsel erred in failing to object to two

instances of hearsay, which, as discussed above, were harmless and did not

prejudicially affect Mr. Tawney’s substantive rights. His remaining arguments as to

ineffective assistance of counsel have no merit.

       {¶111} Accordingly, Mr. Tawney’s second assignment of error is without merit.

       {¶112} In light of the foregoing, the judgment of the Portage County Court of

Common Pleas is affirmed.


MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.




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