[Cite as State v. Smith, 2016-Ohio-7708.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103676




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                            IAN SMITH
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-588549-A

        BEFORE: Laster Mays, J., E.T. Gallagher, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED:                    November 10, 2016
                               -i-
ATTORNEY FOR APPELLANT

Gregory Scott Robey
Robey & Robey
14402 Granger Road
Cleveland, Ohio 44137


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By:    Edward R. Fadel
       Gregory J. Ochocki
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant, Ian Smith (“Smith”), appeals his guilty verdict and

sentence, asks this court to reverse his conviction, and requests a remand to the trial court

for a new trial on the merits.   After a review of the record, we affirm.

       {¶2} After a bench trial, Smith was found guilty of one count of felonious assault,

a second-degree felony in violation of R.C. 2903.11(A)(2), and one count of domestic

violence, a first-degree misdemeanor in violation of R.C. 2919.25(A).            Smith was

referred to probation for a presentence investigation, but failed to appear.     Smith was

subsequently arrested and sentenced to two years imprisonment.

I.     Facts

       {¶3} On August 16, 2014, Smith left an alcohol treatment center without

permission and a formal discharge.        That same day Smith contacted Leonia Bessert

(“Bessert”), his live-in girlfriend and victim, and asked if he could come back home.

Bessert agreed. The same day, Smith told Bessert that he was going to return to the

treatment center.   Smith left their home, but returned in the early evening with a pizza,

and discovered Bessert had locked him out of the home. Bessert testified that Smith

appeared to be intoxicated because he was stumbling and his speech was slurred.

Bessert did not let Smith into the house, but instead told him to sleep it off on the porch.

Bessert put a blanket and a pillow on the porch.    Smith became upset and forced his way

into the home by breaking a window with a shovel, reaching inside to undo the latch, and
pushing the door. At this time, Bessert sat against the door to prevent Smith from

entering. Smith shoved the door, moving Bessert across the room.

       {¶4} Upon entering the home, Smith grabbed a wooden chair leg and began

striking Bessert in the head. According to Bessert, blood began running down her face,

and she fled to a neighbor’s home, where she called 911.       The responding officer, Brian

Kluth (“Officer Kluth”) testified that when he arrived at the home of Smith and Bessert,

he observed a cut on Bessert’s head and blood on her face.      He testified that Bessert was

transported to the hospital where her injuries were treated.    Officer Kluth located Smith,

found him asleep and under the influence of alcohol.       Officer Kluth also testified that

Bessert indicated Smith attacked her with a chair leg that belonged to an unfinished chair.

He collected the chair leg and placed it in an evidence bag.    (Tr. 83.)

       {¶5}   Detective Clayton (“Det. Clayton”), the detective assigned to the case,

interviewed both Bessert and Smith. Det. Clayton testified that Bessert indicated that

she had a cut on her head, but it was not visible because she had thick hair.   Det. Clayton

also testified Smith did not admit to assaulting Bessert. He stated:

       It was Mr. Smith’s claim that he was the one who was assaulted and struck
       with a chair. He did admit that he had been intoxicated. He did admit
       that he forced his way into the home, but he claimed that he was the one
       that was assaulted and not her. (Tr. 64.)

       {¶6} At the conclusion of the bench trial, the trial court found Smith guilty of

felonious assault and domestic violence.           Smith was sentenced to two years

imprisonment. Smith files this appeal and assigns six errors for our review.
       I.     The evidence presented was insufficient as a matter of law to sustain
       a conviction on the felonious assault count.

       II.    The verdicts on both the felonious assault count and the domestic
       violence count, were against the manifest weight of the evidence presented.

       III.    Appellant was deprived the effective assistance of counsel, when
       trial counsel failed to object to numerous pieces of inadmissible evidence
       that was unfairly prejudicial.

       IV. The trial court committed critical errors in the trial and the
       cumulative effect denied appellant due process of law and a fair trial.

       V.     The prosecution engaged in affirmative misconduct which denied
       appellant due process of law and deprived him a fair trial.

       VI. The trial court erred in imposing a prison sentence instead of a
       community control sanction.

II.    Sufficiency of the Evidence

       A.     Standard of Review

       {¶7} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied

to determine whether the case may go to the jury or whether the evidence is legally

sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433 (6th

Ed.1990).   When an appellate court reviews a record upon a sufficiency challenge, “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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.
         B.    Law and Analysis

         {¶8} In his first assignment of error, Smith argues that the evidence presented was

insufficient as a matter of law to sustain a conviction on the felonious assault count.

Smith was charged with violating R.C. 2903.11(A)(2), which states, “(A) No person shall

knowingly do either of the following: * * * (2) Cause or attempt to cause physical harm to

another * * * by means of a deadly weapon or dangerous ordnance.”             The appellant

argues that the chair leg used to hit the victim cannot be classified as a deadly weapon.

         In accordance with the definition set forth in Ohio Rev. Code Ann. Section
         2923.11(A), a deadly weapon must be an instrument capable of killing a
         person by virtue of its design, or by virtue of its manner of use. An
         instrument, no matter how innocuous when not in use, is a deadly weapon if
         it is of sufficient size and weight to inflict death upon a person, when the
         instrument is wielded against the body of the victim or threatened to be so
         wielded. The manner of use of the instrument, its threatened use, and its
         nature determine its capability to inflict death. A deadly weapon may also
         be defined as an instrument of sufficient size and weight and of such shape
         and design that it may be grasped in the hands of another in a manner and
         with sufficient force to kill the other person.

State v. Zarlenga, 8th Dist. Cuyahoga No. 55414, 1989 Ohio App. LEXIS 1999 (June 1,

1989).

         {¶9} A chair leg in and of itself is not a deadly weapon. However, Smith used

the chair leg to beat Bessert in the head.   “One method of establishing a deadly weapon

is through the ‘bludgeon theory.’”            In re Fortney, 162 Ohio App.3d 170,

2005-Ohio-3618, 832 N.E.2d 1257, ¶ 39 (4th Dist.).

         Under this theory, the prosecution can meet the definition of a deadly
         weapon even if the weapon in question is incapable of inflicting death by
         firing a projectile, by proving that the weapon is capable of bludgeoning a
         person to death. Moreover, a fact finder may “infer the deadly nature of
       an instrument from the facts and circumstances of its use.” Other courts
       have held that a wood stick, when used as a club, may constitute a deadly
       weapon.

(Citation omitted.) Id. We conclude that the chair leg is capable of bludgeoning a

person to death coupled with the fact that Smith is 6-feet 6 inches tall and over 300

pounds.     We, therefore, find that there was sufficient evidence to classify the chair leg as

a deadly weapon, and that the evidence was sufficient to convict Smith of felonious

assault. Smith’s first assignment of error is overruled.

III.   Manifest Weight of Evidence

       A.      Standard of Review

       {¶10} “Although a court of appeals may determine that a judgment of a trial court

is sustained by sufficient evidence, that court may nevertheless conclude that the

judgment is against the weight of the evidence.”              (Citation omitted.)     State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “When a party challenges

the verdict in a case as against the manifest weight of the evidence, the party is attacking

the credibility of the evidence presented.” Id.

       This court must be mindful that the weight of the evidence and the

       credibility of witnesses are matters primarily for the trier of fact. State v.

       Bruno, Cuyahoga App. No. 84883, 2005-Ohio-1862. A reviewing court

       will not reverse a verdict where the trier of fact could reasonably conclude

       from substantial evidence that the prosecution proved the offense beyond a

       reasonable doubt. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212
       (1967), paragraph one of the syllabus; State v. Eley, 56 Ohio St.2d 169, 383

       N.E.2d 132 (1978).     Moreover, in reviewing a claim that a conviction is

       against the manifest weight of the evidence, a reviewing court cannot

       reverse a conviction unless it is obvious that the trier of fact 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. Garrow, 103 Ohio

       App.3d 368, 370-371, 659 N.E.2d 814 (1995).

State v. Mallette, 8th Dist. Cuyahoga No. 87984, 2007-Ohio-715, ¶ 24.

       B.     Law and Analysis

       {¶11} In his second assignment of error, Smith contends that the verdicts on both

the felonious assault count and the domestic violence count were against the manifest

weight of the evidence presented. Specifically, Smith argues that his guilty verdict rests

solely on the credibility of Bessert, whom Smith believes is not a credible witness.

       The weight to be given the evidence and the credibility of the witnesses are
       matters primarily for the trier of fact. State v. Patterson, 8th Dist.
       Cuyahoga No. 98127, 2012-Ohio-5511, ¶ 13, citing State v. DeHass, 10
       Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
       The trier of fact has the authority to “believe or disbelieve any witness or
       accept part of what a witness says and reject the rest.” State v. Antill, 176
       Ohio St. 61, 67, 197 N.E.2d 548 (1964). The choice between credible
       witnesses and their conflicting testimony rests solely with the finder of fact
       and an appellate court may not substitute its own judgment for that of the
       finder of fact. State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277
       (1986).

State v. Marshall, 8th Dist. Cuyahoga No. 100736, 2015-Ohio-2511, ¶ 55.

       {¶12} Furthermore,
        [I]n the trial of a case, when witnesses testify, the trier of the facts, whether
        it be a jury or the court, determines whether a witness is telling the truth.
        The trier of the facts may believe all, part or none of the testimony of a
        witness. This is generally defined as the credibility of a witness, and it is
        the quality in a witness which renders his evidence worthy of belief.
        Witnesses testify under oath or affirmation and it is presumed that they are
        truthful but it is up to the trier of the facts to determine the witness’s
        ultimate credibility.      Many times when witnesses testify there are
        contradictions, disagreements and inconsistencies in their testimony and the
        trier of the facts must decide who to believe. This involves general
        credibility.

State v. Schecter, 47 Ohio App.2d 113, 119, 352 N.E.2d 617 (8th Dist.1974).

        {¶13}    The trial judge was the trier of fact and determined that Bessert was a

credible witness.      As the trier of fact, the judge has the authority to believe or

disbelieve either Bessert or Smith, or accept part of what a witness says and reject the

rest.

        {¶14} We cannot substitute our own judgment for that of the trial judge. Therefore,

we find that Smith’s convictions for felonious assault and domestic violence were not

against the manifest weight of the evidence. Smith’s second assignment of error is

overruled.

IV.     Ineffective Assistance of Counsel

        A.      Standard of Review

        {¶15} “Reversal of a conviction for ineffective assistance of counsel requires a

defendant to show that (1) counsel’s performance was deficient, and (2) the deficient

performance prejudiced the defense.” State v. Jones, 8th Dist. Cuyahoga No. 102260,

2016-Ohio-688, ¶ 14.
       {¶16} “Defense counsel’s performance must fall below an objective standard of

reasonableness to be deficient in terms of ineffective assistance of counsel. See State v.

Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).”     Id.

       Moreover, the defendant must show that there exists a reasonable
       probability that, were it not for counsel’s errors, the results of the
       proceeding would have been different. State v. White, 82 Ohio St.3d 16,
       23, 693 N.E.2d 772 (1998).

Id.

       {¶17} In addition,

       To establish ineffective assistance of counsel, a defendant must show (1)
       deficient performance by counsel, i.e., performance falling below an
       objective standard of reasonable representation, and (2) prejudice, i.e., a
       reasonable probability that but for counsel’s errors, the proceeding’s result
       would have been different. Strickland at 687-688, 694; Bradley at
       paragraphs two and three of the syllabus.

Id. at ¶ 15.

       {¶18} Furthermore,

       In evaluating a claim of ineffective assistance of counsel, a court must give
       great deference to counsel’s performance. Strickland at 689. A reviewing
       court will strongly presume that counsel rendered adequate assistance and
       made all significant decisions in the exercise of reasonable professional
       judgment.      State v. Pawlak, 8th Dist. Cuyahoga No. 99555,
       2014-Ohio-2175, ¶ 69. Id. at ¶ 16.

       B.      Law and Analysis

       {¶19} In his third assignment of error, Smith argues that he was deprived of the

effective assistance of counsel, when trial counsel failed to object to inadmissible

evidence that was unfairly prejudicial.
          When determining whether trial counsel’s failure to object constituted
          ineffective assistance of counsel, we must consider the fact [Smith] was
          tried before a judge. Even if the challenged testimony was improper, in a
          bench trial, the court is presumed to have considered only relevant,
          material, and competent evidence. (Citations omitted.) Accordingly,
          trial counsel’s failure to object could reflect an assumption that the trial
          court would not be affected by any inflammatory material. (Citations
          omitted.)

State v. Stafford, 8th Dist. Cuyahoga No. 75739, 2000 Ohio App. LEXIS 912 (Mar. 9,

2000).

          {¶20} First, Smith contests the fact that his counsel did not object when Bessert

stated,

          “I think it was like he called me 1 or 2 in the morning wanting to come to
          the house. I was hesitant to it because of me leaving and him not wanting
          me to leave in the pattern of him getting abusive when he does drink, but he
          still needed a place, so I let him come back.”

(Tr. 28.)

          {¶21} Bessert also testified as follows:

          [STATE]:         And when was the next time you saw him?

          [BESSERT]:       I don’t know if it was like 6 or 7 at night. He showed up
                           with a pizza, and then he wanted to come back in the
                           house. The only reason I was hesitant to let him back in
                           was the night that he was there, he was being very
                           aggressive, cornering me, trying to, you know, be violent.
                           And with our past history of violence happening, I did not
                           feel comfortable letting him in.

          [STATE]:         Okay.

          [BESSERT]:       And he didn’t have his key with him.

          [STATE]:         Could you tell if he was drinking?
       [BESSERT]:       Very much so.

(Tr. 29.)

       {¶22}    Smith argues that this testimony is prohibited by Evid.R. 404(B) and 405,

which states,

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident. In criminal cases, the proponent of evidence to be
       offered under this rule shall provide reasonable notice in advance of trial, or
       during trial if the court excuses pretrial notice on good cause shown, of the
       general nature of any such evidence it intends to introduce at trial.

Evid.R. 404(B).

       (A) Reputation or opinion. In all cases in which evidence of character or a
       trait of character of a person is admissible, proof may be made by testimony
       as to reputation or by testimony in the form of an opinion. On
       cross-examination, inquiry is allowable into relevant specific instances of
       conduct.

       (B) Specific instances of conduct. In cases in which character or a trait of
       character of a person is an essential element of a charge, claim, or defense,
       proof may also be made of specific instances of his conduct.

Evid.R. 405.

       {¶23} However, “generally, prior bad acts by a defendant against the same victim

are admissible in domestic violence cases to prove the defendant’s intent.” State v.

Clay, 181 Ohio App.3d 563, 2009-Ohio-1235, 910 N.E.2d 14, ¶ 35 (8th Dist.). Bessert’s

statements regarding “[Smith] getting abusive when he does drink” was admissible for

other purposes such as proof that she had a reasonable basis to fear that Smith may cause

physical harm to her. State v. Crowley, 2d Dist. Clark No. 2009 CA 65, 2009 Ohio App.
LEXIS 5605 (Dec. 18, 2009). The court did not abuse its discretion when it allowed

testimony of prior domestic violence in order to prove that the victim had a reasonable

basis to fear that defendant would commit physical harm to her, as he had done in the

past. The admission of evidence was not contrary to Evid.R. 404(B). Thus, Bessert’s

statements were not prohibited by the rules of evidence, and their admittance did not

prejudice him at trial.

       {¶24} Under Evid.R. 405, Bessert’s testimony was not used to prove specific

instances of conduct or his character traits but used as proof that she had a reasonable

basis to fear that Smith may cause physical harm to her as reasoned above.     Therefore,

we find that Bessert’s statements were not contrary to Evid.R. 405.

       {¶25} Smith also argues that his counsel was ineffective because counsel did not

object to the testimonies of Officer Kluth and Det. Clayton, who both testified as to what

Bessert told them about Smith’s attack on her. Smith contends that both testimonies are

in violation of Evid.R. 802 because they are hearsay. “Hearsay is a statement, other than

one made by the declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.” Evid.R. 801(C).

       Hearsay is not admissible except as otherwise provided by the Constitution
       of the United States, by the Constitution of the State of Ohio, by statute
       enacted by the General Assembly not in conflict with a rule of the Supreme
       Court of Ohio, by these rules, or by other rules prescribed by the Supreme
       Court of Ohio.

Evid.R. 802.
       {¶26} However, not all out-of-court statements constitute hearsay.          “[W]here

statements are offered to explain an officer’s conduct while investigating a crime, such

statements are not hearsay.” State v. Blevins, 36 Ohio App.3d 147, 521 N.E.2d 1105

(10th Dist.1987), citing State v. Thomas, 61

Ohio St.2d 223, 232, 400 N.E.2d 401 (1980). Both officers testified as to what Bessert

told them to explain their conduct while investigating the incident as well as why Smith

was arrested.   Bessert informed Officer Kluth that she was hit with a chair leg.       This

statement directed Officer Kluth to collect the chair leg as evidence.       Likewise, Det.

Clayton was informed that Bessert was injured in the head by Smith. This statement

directed Det. Clayton’s actions while investigating.

       {¶27} Appellant also argues that he was prejudiced because Bessert’s story was

told three times, which had a major impact upon the factfinder and the final verdict.

Evid.R. 404(B) states “[a]lthough relevant, evidence may be excluded if its probative

value is substantially outweighed by considerations of undue delay, or needless

presentation of cumulative evidence.”          (Emphasis added.)   It was determined that

Officer Kluth’s and Det. Clayton’s testimony was properly admitted into evidence if

relevant and of probative value in assisting the trier of fact in understanding their actions

while conducting their investigations.     The probative value outweighs any prejudice.

Additionally, Evid.R. 403(B) does not require exclusion of cumulative evidence. The

court has discretion to admit or exclude it.    State v. Campbell, 69 Ohio St.3d 38, 51, 630

N.E.2d 339 (1994).
       {¶28}   Because this court has found Smith’s arguments with regard to his issues

in his third assignment of error meritless, the cumulative error issue is also meritless.

We find that their testimony was not contrary to the rules of evidence.

       {¶29} Lastly, Smith contends that his counsel was ineffective because counsel

offered virtually no mitigating evidence to support a sentence of community control.

The facts reveal that as counsel tried to offer evidence regarding Smith’s circumstances

the court would respond that Smith failed to attend.        Smith did not report for his

presentence investigation report.   Smith did not attend the interview for placement in

veteran’s treatment court. Counsel did state that Smith had the support of family, that

the victim moved to St. Louis, and that these events are not likely to reoccur.    Defense

counsel went on to request a continuance for sentencing in an effort to provide more

information to the court regarding Smith that was denied. A court’s principal concern is

not whether counsel should have presented a mitigation case, but whether the

investigation supporting their decision not to introduce mitigating evidence of petitioner’s

background was itself reasonable. State v. Herring, 7th Dist. Mahoning No. 03 MA 12,

2004-Ohio-5357, ¶ 22.

       {¶30} Smith’s counsel’s decision to not provide mitigating evidence to support a

sentence of community control is sound because Smith was found guilty of felonious

assault, a second-degree felony.      A minimum of two years must be served on a

second-degree felony, not community control. See R.C. 2929.14(A)(2).

       Even assuming that counsel’s performance was ineffective, this is not
       sufficient to warrant reversal of a conviction. An error by counsel, even if
       professionally unreasonable, does not warrant setting aside the judgment of
       a criminal proceeding if the error had no effect on the judgment. To
       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 have been different. A reasonable probability is a
       probability sufficient to undermine confidence in the outcome. In
       adopting this standard, it is important to note that the court specifically
       rejected lesser standards for demonstrating prejudice.

State v. Gay, 8th Dist. Cuyahoga No. 86944, 2006-Ohio-3683, ¶ 35.

       {¶31} “Accordingly, 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.”

Id. at ¶ 36. Smith does not make this showing. Therefore Smith’s counsel was not

ineffective, and his third assignment of error is overruled.

V.     Inadmissible Evidence

       A.     Standard of Review

       {¶32} “Generally, the decision whether to admit or to exclude evidence rests

within the sound discretion of the trial court.” (Citation omitted.) State v. Doumbas,

8th Dist. Cuyahoga No. 100777, 2015-Ohio-3026, ¶ 49. “Therefore, an appellate court

that reviews the trial court’s decision with respect to the admission or exclusion of

evidence must limit its review to a determination of

whether the trial court committed an abuse of discretion.”        (Citation omitted.)    Id.

“An abuse of discretion requires a finding that the trial court’s decision was unreasonable,

arbitrary, or unconscionable.”      State v. Minifee, 8th Dist. Cuyahoga No. 99202,
2013-Ohio-3146, ¶ 23, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

       B.     Law and Analysis

       {¶33} In Smith’s fourth assignment of error, he argues that the trial court

committed critical errors in the trial, and the cumulative effect denied him due process of

law and a fair trial.     Specifically, Smith contends that the trial court improperly

permitted inadmissible evidence that unfairly prejudiced him.       This evidence includes

Bessert’s testimony about her injuries, the chair leg Smith used to hit Bessert in the head,

Bessert’s testimony about Smith’s prior behavior when intoxicated, and Officer Kluth and

Det. Clayton’s testimony about their investigation.

       The Ohio Supreme Court has recognized the doctrine of cumulative error.
       See State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),
       paragraph two of the syllabus. Under this doctrine, a conviction will be
       reversed when the cumulative effect of errors in a trial deprives a defendant
       of a fair trial even though each of the numerous instances of trial-court error
       does not individually constitute cause for reversal. Id. at 196-197. See
       also State v Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶
       132. Moreover, “errors cannot become prejudicial by sheer weight of
       numbers.” State v. Hill, 75 Ohio St.3d at 212, 661 N.E.2d 1068.

State v. Singleton, 8th Dist. Cuyahoga No. 98301, 2013-Ohio-1440, ¶ 64.

       {¶34} The doctrine of cumulative error is not applicable in this case.            Smith

makes blanket assertions that he was denied a fair trial by the cumulative effect of the

errors made during the trial.   However, he gives no analysis or explanation as to why or

how the errors had a prejudicial cumulative effect.    None of the errors committed in this

case, when considered either individually or cumulatively, resulted in prejudicial error.
As previously discussed under the other assignments of error, the jury could not ignore

the direct evidence that established Smith’s guilt.

       {¶35}     However we have found that there were no errors.       “Further, where it is

found that the trial court did not err, cumulative error is simply inapplicable.” Id. at ¶

66. Therefore, Smith’s fourth assignment of error is overruled.

VI.    Prosecutorial Misconduct

       A.      Standard of Review

       {¶36} “A prosecuting attorney’s conduct during trial does not constitute grounds

for error unless the conduct deprives the defendant of a fair trial.”    (Citation omitted.)

State v. York, 8th Dist. Cuyahoga No. 87814, 2006-Ohio-6934, ¶ 23.

       The touchstone of a due process analysis in cases of alleged prosecutorial
       misconduct is the fairness of the trial, not the culpability of the prosecutor.
       The effect of the prosecutor’s misconduct must be considered in light of the
       whole trial.

 Id.

       B.      Law and Analysis

       {¶37} In Smith’s fifth assignment of error, he argues that the prosecution engaged

in affirmative misconduct that denied him due process of law and deprived him of a fair

trial. Specifically, Smith’s arguments are similar to the last two assignments of error.

He alleges that the prosecution elicited hearsay testimony from Bessert, Officer Kluth,

and Det. Clayton.    We have already determined that their testimony did not constitute

hearsay. However,
       [T]he alleged prosecutorial misconduct can only be a basis for reversal if it
       rises to the level of plain error. Crim.R. 52(B). Where the plain error
       analysis is used, the question is whether, absent prosecutorial misconduct,
       the result of the trial would have clearly been different.

State v. Ferko, 8th Dist. Cuyahoga No. 88182, 2007-Ohio-1588, ¶ 24.

       {¶38} We find that the plain error analysis is not applicable here where the

testimony did not constitute error and the result of the trial would not have clearly been

different. Smith’s fifth assignment of error is overruled.

VII.   Improper Sentencing

       A.     Standard of Review

       {¶39} “An appellate court must conduct a meaningful review of the trial court’s

sentencing decision.”       State v. Shepherd, 8th Dist. Cuyahoga No. 97962,

2012-Ohio-5415, ¶ 78.

       An appellate court must review the record, including the findings
       underlying the sentence or modification given by the sentencing court. If
       an appellate court clearly and convincingly finds either that (1) the record
       does not support the sentencing court’s findings under R.C. 2929.14(C)(4),
       or (2) the sentence is otherwise contrary to law, then the appellate court may
       increase, reduce, or otherwise modify a sentence * * * or may vacate the
       sentence and remand the matter to the sentencing court for resentencing.

Id.

       B.     Law and Analysis

       {¶40} In Smith’s sixth assignment of error, he claims that the trial court erred in

imposing a prison sentence instead of a community control sanctions.

       R.C. 2953.08 provides the grounds on which a defendant may appeal from a
       felony sentence. Under R.C. 2953.08(A)(4), a criminal defendant may
       appeal his sentence if it is contrary to law, and the statute provides two
       separate grounds for claiming that a sentence is contrary to law. State v.
       Bonds, 8th Dist. Cuyahoga No. 100481, 2014-Ohio-2766. First, a
       sentence is contrary to law if it falls outside the statutory range for the
       particular degree of offense. State v. Holmes, 8th Dist. Cuyahoga No.
       99783, 2014-Ohio-603,¶ 10. Second, a sentence is contrary to law if the
       trial court fails to comply with sentencing statutes. Id. Thus, a sentence
       is contrary to law if the court fails to consider the purposes and principles of
       felony sentencing set forth in R.C. 2929.11 and the sentencing factors set
       forth in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511,
       2013-Ohio-5025, ¶ 7.

State v. Evans, 8th Dist. Cuyahoga No. 101485, 2015-Ohio-1022, ¶ 31.

       {¶41} Smith does not demonstrate that his sentence is contrary to law. He was

found guilty of felonious assault, which is a second-degree felony. The statutory range

for a second-degree felony is two to eight years imprisonment. R.C. 2929.14(A)(2).

The trial court sentenced Smith to two years imprisonment, which is the minimum

sentence he could receive for a second-degree felony.       The record also reveals that the

trial court did not fail to consider the purposes and principles of felony sentencing set

forth in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12, which states,

       The sentencing court shall consider all of the following that apply regarding
       the offender, and any other relevant factors, as factors indicating that the
       offender is not likely to commit future crimes:

       (1) Prior to committing the offense, the offender had not been adjudicated
       a delinquent child.

       (2) Prior to committing the offense, the offender had not been convicted
       of or pleaded guilty to a criminal offense.

       (3) Prior to committing the offense, the offender had led a law-abiding
       life for a significant number of years.

       (4)   The offense was committed under circumstances not likely to recur.
       (5)   The offender shows genuine remorse for the offense.

       {¶42} Smith specifically argues that the court did not consider his lack of juvenile

and adult criminal history or the fact that the offense is unlikely to occur again now that

Bessert lives in St. Louis. However, the record reveals the following:

       [COURT]:      All right. I am going to go ahead and sentence Mr. Smith at
                     this time. I have considered all the principles and purposes
                     of felony sentencing, all the appropriate recidivism and
                     seriousness factors in this matter. I note that you’ve had
                     extensive treatment for all of your issues, while you were
                     capiased on this case, in New York. You completed
                     successfully those programs. You came back to this area
                     and decided to live, as you say, with a heroin addict, thief,
                     with felony convictions.

(Tr. 181.)

 The court continued as follows:

       [COURT]:      So as I was saying, at this point, you can’t comply with any
                     directions when you’re not incarcerated. When you’re on your
                     medication, when you’re off your medication, if you’ve had
                     treatment or haven’t had treatment, I have great empathy for
                     what you’re going through. I really do. At some point, you
                     need to accept some responsibility. You’ve accepted very
                     little, except you’re not making excuses for not showing up
                     for court. If nothing else, you could have showed up on
                     August 11th on your sentencing date. That would be the
                     date to come in here and talk to [Counsel] and have this
                     confusion figured out. And it’s just not credible what you
                     are telling me. I heard the victim’s testimony, and she was
                     credible to me. And she was injured, and there is no other
                     explanation that I’ve heard other than you caused her that
                     injury. I’m going to find that you’re not amenable to a
                     community control sanction.

(Tr. 182 and 183.)
       {¶43} We find that the trial court did not error in imposing a prison sentence

instead of community control sanctions. Smith’s sentence was not contrary to law, and the

trial court considered the purposes and principles of felony sentencing set forth in R.C.

2929.11 and the sentencing factors set forth in R.C. 2929.12. Smith’s sixth assignment

of error is overruled.

       {¶44} Judgment is affirmed.

       It is ordered that the appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



____________________________________
ANITA LASTER MAYS, JUDGE

EILEEN T. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR
