[Cite as State v. Dowdell, 2012-Ohio-2063.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 97202



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                GREGORY DOWDELL
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-547567

        BEFORE:           Boyle, P.J., Sweeney, J., and Keough, J.

        RELEASED AND JOURNALIZED: May 10, 2012
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ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY: Nathaniel McDonald
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Edward D. Brydle
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
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MARY J. BOYLE, P.J.:

         {¶1} Defendant-appellant, Gregory Dowdell, appeals his convictions and

sentence for assault and aggravated menacing, raising the following four assignments of

error:

         {¶2} “[I.]     Mr. Dowdell’s convictions are against the manifest weight of the

evidence.

         {¶3} “[II.] The trial court plainly erred and violated Mr. Dowdell’s due process

right to a fair trial in admitting testimony that Mr. Dowdell brandished a gun in the past.

         {¶4} “[III.] Mr. Dowdell was denied effective assistance of counsel in violation

of the sixth and fourteenth amendments to the United States Constitution and Article I,

Section 10 of the Ohio Constitution.

         {¶5} “[IV.] The trial court violated the double jeopardy clauses of the United

States and Ohio Constitutions when it failed to treat Mr. Dowdell’s convictions for

assault and aggravated menacing as allied offenses of similar import and merge them into

a single conviction.”

         {¶6} We find these arguments unpersuasive and affirm.

                                 Procedural History and Facts

         {¶7} Dowdell was indicted on four counts: (1) felonious assault, in violation of

R.C. 2903.11(A)(1), carrying one- and three-year firearm specifications; (2) felonious
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assault, in violation of 2903.11(A)(2); (3) aggravated menacing, in violation of R.C.

2903.21(A); and (4) felonious assault, in violation of R.C. 2903.11(A)(1). The first

three counts of the indictment related to events that occurred on October 30, 2010, and

the fourth count stemmed from an alleged incident the following day on October 31,

2010.   Dowdell pleaded not guilty to the charges, and the matter proceeded to a bench

trial where the following evidence was presented.

        {¶8} The state’s main witness was Bruce Edwards, the alleged victim.

According to Edwards, he and Dowdell had been friends for approximately 18 years and

regularly socialized together at the home of their mutual friend, “Lemon.”    On October

30, 2010, Edwards went to Lemon’s house for a barbecue and a day of drinking with his

friends. Edwards had been drinking for approximately two hours before Dowdell pulled

into Lemon’s driveway. Edwards testified that they were all “cracking jokes,” making

fun of one another.   Dowdell immediately joined in and “started to crack on [Edwards].”

 Edwards, in turn, warned Dowdell that “if you can’t take it, don’t start cracking on me.”

 The joking escalated to the point where Edwards said something about Dowdell’s

girlfriend that made Dowdell very angry, who responded by saying, “I’m going to shoot

your ass.”   Dowdell then proceeded to walk to the trunk of his car and pulled out a black

handgun, cocked it, and put it to Edwards’s chest.        Edwards responded by hitting

Dowdell, resulting in Dowdell’s brother intervening and tackling Edwards to the ground.

Edwards testified that, while lying on the ground, Dowdell “smacked [him] on the right
                                            5

side of [his] head with the pistol,” resulting in him being unconscious for at least a minute

and injury to his eye. With the help of his friends, Edwards eventually got up and drove

away.

        {¶9} According to Edwards, he did not immediately seek medical attention

because he had no health insurance, and he initially did not want to get his friend in

trouble.   He testified that “the whole white part of [his] eye was red” and that his shirt

was covered with blood.     Once he got home, he called his girlfriend, Katrina Hurt, who

encouraged him to go to the hospital. Hurt testified at trial and corroborated Edwards’s

testimony that his eye was red, that he had a “little gash over the eye,” and that “there was

blood on his shirt.”

        {¶10} Edwards testified that he returned to Lemon’s house the next day to watch

the Browns game, believing that Dowdell would not be there. He further testified that

after the Browns game he was inside the house playing a video game when Dowdell

arrived to the home to apologize to Lemon’s wife, Patty, regarding the incident the night

before.    Edwards stated that Dowdell was “smirking” at him, which incensed him,

resulting in Edwards attacking Dowdell. Dowdell’s cousin ultimately intervened and hit

Edwards in the back of the head, knocking him to the ground. While on the ground,

Edwards was struck again one more time, but he did not know by whom. Edwards and

Dowdell both left the premises.
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       {¶11} Several days later, Edwards sought medical treatment.           The state

introduced the medical records from Edwards’s emergency room visit into evidence.

The records revealed that Edwards suffered a “corneal abrasion and traumatic iritus” to

his right eye.

       {¶12} Dowdell testified on his own behalf.        While Dowdell corroborated

Edwards’s testimony regarding the exchange of insults in a game called “dozens,” his

version of what transpired next differs. According to Dowdell, prior to any altercation

between himself and Edwards, he ended the game of dozens and got up to leave after his

brother (Trini Dowdell) recommended that he go home.           Apparently, the tension

between Edwards and Dowdell had escalated based on the insults exchanged regarding

their girlfriends. Dowdell testified that as he was walking to his car, Edwards got up

and punched him in the face. After that, Trini grabbed Edwards and pulled his shirt over

his head. Dowdell then got into his car and left.

       {¶13} Dowdell denied ever pulling out a gun or striking Edwards. Although he

acknowledged that he has a license to carry a concealed weapon, he testified that    he

kept his gun in a lock box at his mother’s house. According to Dowdell, Edwards

fabricated the entire story because Edwards still held a grudge against him over

Dowdell’s refusal to let Edwards move in with him. Dowdell further testified that

Edwards had a history of fighting people after he had too much to drink.             On

cross-examination, however, Dowdell stated that he never once tried to call Edwards
                                            7

regarding these false accusations and further claimed that he had forgiven Edwards for

framing him.

       {¶14} The defense called several witnesses who corroborated aspects of Dowdell’s

testimony. Trini testified that he warned his brother to go home before the insult game

escalated to something else.   Trini further testified that Edwards attacked his brother and

that Dowdell never pulled a gun or retaliated.    Instead, Trini testified that he intervened

and pulled Edwards to the ground before Dowdell finally left.

       {¶15} Three other witnesses testified that they saw Edwards shortly after the

incident and did not notice any visible wounds or scars on Edwards.             One of the

witnesses, Richard Allen (“Rico”), testified that he was at Lemon’s house on Sunday,

October 31. Aside from not seeing any injuries on Edwards, Rico testified that he saw

Edwards try to choke Dowdell but Dowdell did not retaliate.

       {¶16} The defense also offered two character witnesses who testified that they

have never known Dowdell to pull a gun on anyone but that Edwards has a reputation for

belligerence, especially after he has been drinking.

       {¶17} The trial court ultimately found Dowdell not guilty on the felonious assault

count that carried the firearm specifications but guilty of the lesser-included offense of

simple assault. The trial court further found Dowdell not guilty on the felonious assault

with a deadly weapon count as well as the felonious assault count relating to Sunday,
                                            8

October 31, 2010.     The court, however, found Dowdell guilty of the misdemeanor

offense of aggravated menacing from the incident on Saturday, October 30th.

       {¶18} The trial court imposed concurrent sentences of six months in the county

jail, which it suspended, and a term of one year of active probation.

       {¶19} Dowdell appeals, raising four assignments of error.

                             Manifest Weight of the Evidence

       {¶20} In his first assignment of error, Dowdell argues that the convictions are

against the manifest weight of the evidence.

       {¶21} In reviewing a claim challenging the manifest weight of the evidence,

       [t]he question to be answered is whether there is substantial evidence upon
       which a jury could reasonably conclude that all the elements have been
       proved beyond a reasonable doubt. In conducting this review, we must
       examine the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of the witnesses, and determine whether 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. (Internal quotes
       and citations omitted.)        State v. Leonard, 104 Ohio St.3d 54,
       2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.
       {¶22} “Weight of the evidence concerns ‘the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the

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

court of appeals reverses a judgment of a trial court on the basis that the verdict is against

the weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees

with the fact finder’s resolution of the conflicting testimony. Id. at 387, citing Tibbs v.

Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
                                            9

       {¶23} The conviction for assault must stand if we find there is substantial evidence

upon which the fact finder could reasonably conclude beyond a reasonable doubt that

Dowdell “knowingly cause[d] or attemp[ed] to cause physical harm to another.” See

R.C. 2903.13(A). Likewise, the aggravated menacing conviction must stand if there is

substantial evidence upon which the fact finder could reasonably conclude beyond a

reasonable doubt that Dowdell “knowingly cause[d] another to believe that [he] will

cause serious physical harm to the person or property of the other person * * *.” See

R.C. 2903.21(A).

       {¶24} Dowdell argues that the trial court’s verdict conflicts with the evidence and,

therefore, cannot stand.    Specifically, he argues that, by virtue of the trial court’s

acquittal of the firearm specifications and felonious assault with a deadly weapon, the

trial court obviously did not believe Edwards’s testimony regarding Dowdell possessing a

firearm. According to Dowdell, “the record does not provide a set of facts that support

the trial court’s factual findings” and therefore the manifest weight of the evidence does

not support the trial court’s verdict. We disagree.

       {¶25} The trier of fact is free to believe or disbelieve all or any of a witness’s

testimony. State v. Montgomery, 8th Dist. No. 95700, 2011-Ohio-3259, ¶ 10. The

mere fact that the trial judge did not accept the victim’s testimony in its entirety does not

render a verdict against the manifest weight of the evidence. Id.        Nor is a defendant

entitled to a reversal on manifest weight grounds merely because inconsistent evidence
                                            10

was presented at trial. State v. Blackman, 8th Dist. No. 95168, 2011-Ohio-2262, ¶ 21.

The determination of weight and credibility of the evidence is for the trier of fact. State

v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). “The rationale is that the trier of

fact is in the best position to take into account inconsistencies, along with the witnesses’

manner and demeanor, and determine whether the witnesses’ testimony is credible.”

Blackman at ¶ 21.     Consequently, although an appellate court must act as a “thirteenth

juror” when considering whether the manifest weight of the evidence requires reversal, it

must give great deference to the fact finder’s determination of the witnesses’ credibility.

Id.

        {¶26} In this case, the verdict clearly depended on who the trier of fact believed to

be more credible — Edwards or Dowdell.             And although the trial court may have

believed that Dowdell had a gun and threatened Edwards with the gun (as testified to by

Edwards), the trial judge may have also found the evidence insufficient to prove that the

gun was operable or that Dowdell actually used the gun to hit Edwards on the side of

face.   At the very least, however, the medical records, Hurt’s testimony, and Edwards’s

own testimony clearly supported a conviction for assault. Likewise, we find that the

weight of the evidence supported the aggravated menacing charge.          We cannot say that

this is the exceptional case where the trier of fact clearly lost its way simply because it did

not believe the defendant’s story.

        {¶27} The first assignment of error is overruled.
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                                        Hearsay Evidence

       {¶28} In his second assignment of error, Dowdell argues that the trial court plainly

erred and violated Dowdell’s due process right in admitting testimony that Dowdell

brandished a gun in the past. Specifically, Dowdell complains of Edwards’s testimony

that Dowdell had “pull[ed]” a gun a week prior to the incident at issue and the testimony

that Dowdell had assaulted Luann Evans and her husband in the past.

       {¶29} While we agree that this testimony was inadmissible under Evid.R. 404(B),

we find no evidence in the record to overcome the presumption that the trial court relied

on anything but relevant, competent, and admissible evidence in reaching its verdict.

Here, we do not equate defense counsel’s failure to object to the testimony as evidence

that the trial court relied on it.   To the contrary, in reviewing a bench trial, we presume

that a trial court considers nothing but relevant and competent evidence in reaching its

verdict. State v. Wiles, 59 Ohio St.3d 71, 86, 571 N.E.2d 97 (1991). Given that the

record contains other relevant and competent evidence that supports the verdict, we find

no merit to this assignment of error.

       {¶30} The second assignment of error is overruled.

                                        Allied Offenses

       {¶31} For the ease of discussion, we will address Dowdell’s final assignment of

error out of order.     In his fourth assignment of error, he argues that the trial court
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committed plain error in failing to merge the simple assault and aggravated menacing

counts as allied offenses.

          {¶32} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

the Ohio Supreme Court redefined the test for determining whether two offenses are

allied offenses of similar import subject to merger under Ohio’s multiple counts statute,

R.C. 2941.25. The Johnson court expressly overruled State v. Rance, 85 Ohio St.3d

632, 710 N.E.2d 699 (1999), which required a “comparison of the statutory elements in

the abstract” to determine whether the statutory elements of the crimes correspond to such

a degree that the commission of one crime will result in the commission of the other. Id.

at ¶ 9.

          {¶33} Under this new test, the first inquiry focuses on “whether it is possible to

commit one offense and commit the other with the same conduct, not whether it is

possible to commit one without committing the other.” Johnson at ¶ 48.             In making

such a determination, it is not necessary that the commission of one offense would always

result in the commission of the other, but instead, the question is whether it is possible for

both offenses to be committed with the same conduct. State v. Roy, 12th Dist. No.

CA2009-11-290, 2011-Ohio-1992, ¶ 10, citing Johnson at ¶ 48.

          {¶34} If it is found that the offenses can be committed by the same conduct, the

court must then determine “whether the offenses were committed by the same conduct,

i.e., ‘a single act, committed with a single state of mind.’” Johnson at ¶ 49, quoting
                                           13

State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50. If the

answer to both questions is yes, then the offenses are allied offenses of similar import and

must be merged. Johnson at ¶ 50. However, if the commission of one offense will

never result in the commission of the other, “or if the offenses are committed separately,

or if the defendant has separate animus for each offense, then, according to R.C.

2941.25(B), the offenses will not merge.” Johnson at ¶ 51.

       {¶35} In the instant case, a review of the record reveals that there was no

discussion of the merger of allied offenses at sentencing. The Ohio Supreme Court has

found that the failure to merge allied offenses of similar import constitutes plain error.

State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State

v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845.

       {¶36} Applying the Johnson analysis to this case, we find no plain error by the trial

court’s failure to merge the two offenses.        The record reveals that the aggravated

menacing count was completed before Dowdell               committed the simple assault.

Specifically, Edwards testified that Dowdell first threatened him by saying, “I’m going to

shoot your ass,” and then he walked over to the trunk of the car and pulled out the gun.

After the conduct giving rise to the aggravated menacing count was completed, the events

escalated, and Dowdell later committed the simple assault by striking Edwards. Thus,

the record reveals that the offenses were not committed with the same conduct and should

not be merged.   See State v. Orr, 8th Dist. No. 96377, 2011-Ohio-6269, ¶ 38.
                                             14

       {¶37} The fourth assignment of error is overruled.

                             Ineffective Assistance of Counsel

       {¶38} In his third assignment of error, Dowdell argues that he was denied his right

to effective assistance of counsel.

       {¶39} In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984), the United States Supreme Court set forth the two-pronged test for ineffective

assistance of counsel.   It requires that the defendant show (1) counsel’s performance was

deficient; and (2) the deficient performance prejudiced the defendant.      The first prong

“requires showing that counsel made errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687.            The

second prong “requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is unreliable.” Id.

       {¶40} Dowdell relies on three separate grounds to support his ineffective

assistance of counsel claim: (1) defense counsel failed to object to Edwards’s testimony

that he had seen Dowdell brandish a gun before and that Dowdell had assaulted friends in

the past; (2) defense counsel failed to object to Edwards’s hearsay testimony that

eyewitnesses made remarks about the incident suggesting that Dowdell was at fault; and

(3) defense counsel failed to request merger of the two offenses.

       {¶41} With regard to the first two grounds, we agree that the defense counsel

should have objected to Edwards’s testimony.        We therefore must determine whether the
                                             15

admission of this evidence prejudiced Dowdell and denied him a fair trial.          Here, we

find that it did not.   First, this case was tried to the bench.   We are therefore guided by

the presumption that the trial court only considered relevant and competent evidence.

Notably, the trial court acquitted Dowdell of everything but the two first-degree

misdemeanor offenses.         And the record contains relevant, competent evidence that

supports the verdict.        The state offered admissible evidence that Dowdell had a

concealed-carry license.      Dowdell himself admitted to owning a gun, and Edwards

testified that Dowdell threatened him with the gun. As for the assault, the medical

records and Hurt’s testimony corroborated Edwards’s testimony that he was hit by

Dowdell.

       {¶42} As for defense counsel’s failure to request merger of the offenses, we have

already found that the offenses were not committed by the same conduct and therefore not

subject to merger.      Accordingly, we cannot say that defense counsel was deficient in

failing to request merger.

       {¶43} The third assignment of error is overruled.

       {¶44} Judgment affirmed.

       It is ordered that appellee recover of 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
                                         16

been affirmed, any bail pending appeal is terminated.   Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
