[Cite as State v. Barnes, 2019-Ohio-2634.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                LOGAN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 8-18-67

        v.

FRANK V. JOHNATHAN BARNES,                                 OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR 18 05 0143

                                      Judgment Affirmed

                              Date of Decision:   July 1, 2019




APPEARANCES:

        Addison M. Spriggs for Appellant

        Alice Robinson-Bond for Appellee
Case No. 8-18-67


SHAW, J.

           {¶1} Defendant-appellant, Frank Barnes (“Barnes”), brings this appeal from

the December 6, 2018, judgment of the Logan County Common Pleas Court

sentencing him to an aggregate ninety (90) months in prison after Barnes was

convicted in a jury trial of Domestic Violence in violation of R.C. 2919.25(A), a

felony of the fourth degree, Abduction in violation of R.C. 2905.02(A)(2), a felony

of the third degree, Disrupting Public Services in violation of R.C. 2909.04(A)(1),1

a felony of the fourth degree, Intimidation of an Attorney, Victim, or Witness in a

Criminal Case in violation of R.C. 2921.04(B)(1), a felony of the fourth degree, and

Menacing by Stalking in violation of R.C. 2903.211(A)(1), a felony of the fourth

degree. On appeal, Barnes argues that he received ineffective assistance of counsel,

that the cumulative errors caused by his ineffective counsel deprived him of a fair

trial, and that there was insufficient evidence presented to convict him of Domestic

Violence.

                              Relevant Facts and Procedural History

           {¶2} A seven count indictment was filed against Barnes on May 8, 2018,

alleging that Barnes had committed (Count 1) Domestic Violence in violation of

R.C. 2919.25(A), a felony of the fourth degree due to Barnes having a prior

conviction for domestic violence or a crime substantially similar, (Count 2)



1
    There were actually two counts of Disrupting Public Services but they merged for purposes of sentencing.

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Abduction in violation of R.C. 2905.02(A)(2), a felony of the third degree, (Count

3) Felonious Assault in violation of R.C. 2903.11(A)(1), a felony of the second

degree, (Count 4) Disrupting Public Services in violation of R.C. 2909.04(A)(1), a

felony of the fourth degree, (Count 5) Disrupting Public Services in violation of

R.C. 2909.04(A)(3), a felony of the fourth degree, (Count 6) Intimidation of an

Attorney, Victim, or Witness in a Criminal Case in violation of R.C. 2921.04(B)(1),

a felony of the third degree, and (Count 7) Menacing by Stalking in violation of

R.C. 2903.211(A)(1), a felony of the fourth degree.

        {¶3} Five of the seven charges (Counts 1-5) stemmed from an incident that

occurred on April 7, 2018. At that time, it was alleged that Barnes lived with his

girlfriend in this matter, Ashley D. (“Ashley”). Ashley’s two children also lived in

the residence. Due to issues Ashley had with Barnes’s drinking in the past, when

she returned home shortly before midnight on April 6, 2018, and noticed Barnes had

been drinking liquor, she poured the last quarter of the bottle that he had been

drinking down the sink drain. Barnes then strangled Ashley in the kitchen to the

point that she passed out.2

        {¶4} Ashley recalled regaining consciousness on the floor of the kitchen

shortly thereafter. She then went into her bedroom to get her phone to call the

police, but Barnes followed her and took her phone from her so that she could not


2
 The State alternatively charged Barnes with Domestic Violence for the choking incident and Felonious
Assault. The Felonious Assault charge alleged that Barnes had caused substantial temporary incapacity.

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call for emergency assistance. Barnes also prevented her from leaving the bedroom

by following her around and blocking the door. Ashley eventually exited the

bedroom and Barnes attempted to prevent her from leaving the house by following

her and blocking the front door, but Ashley ran out the back door and went to a

neighbor’s house. There she had the neighbor call 911. Police and paramedics

responded to the scene. An officer noted red marks on Ashley’s neck consistent

with her story. Barnes fled the area before police arrived.

       {¶5} The Intimidation charge (Count 6) stemmed from a phone call Barnes

made to Ashley on April 23, 2018, when he had still not been located by law

enforcement. During the call Barnes threatened to harm or have someone else harm

her if she proceeded with the case.

       {¶6} The Menacing by Stalking charge (Count 7) stemmed from a series of

incidents of Barnes inflicting violence against Ashley or threatening violence

against her over a period of time. The series of incidents included one prior

conviction of Barnes against Ashley.

       {¶7} Barnes pled not guilty to all of the charges against him.

       {¶8} On October 23-24, 2018, Barnes proceeded to a jury trial. The State

presented the testimony of five witnesses including the victim, Ashley. The defense

presented the testimony of five witnesses and then rested its case. The jury returned




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guilty verdicts on six of the seven counts against Barnes, acquitting him of (Count

3) Felonious Assault.

      {¶9} On December 3, 2018, the matter proceeded to sentencing. Barnes was

ordered to serve eighteen months in prison on Count 1, Domestic Violence, thirty-

six months in prison on Count 2, Abduction, consecutive to each other. The trial

court found that Counts 4 and 5 of Disrupting Public Services merged for sentencing

and the State chose to proceed to sentence on Count 4. Barnes was ordered to serve

12 months in prison on Count 4, concurrent with Count 2. As to Count 6 and the

Intimidation charge, Barnes was ordered to serve thirty-six months in prison,

consecutive to the prison terms in Counts 1 and 2. Finally, Barnes was ordered to

serve twelve months in prison on Count 7, Menacing by Stalking, concurrently with

the other counts. Barnes thus received an aggregate ninety month prison term for

the crimes in this case; however, they were ordered to be served consecutive to a

separate prison term Barnes had received in another matter from Logan County.

      {¶10} A judgment entry memorializing Barnes’s sentence was filed

December 6, 2018. It is from this judgment that Barnes appeals, asserting the

following assignments of error for our review.

                           Assignment of Error No. 1
      Mr. Barnes was deprived of his right to the effective assistance of
      trial counsel when trial counsel was late to trial twice, failed to
      timely call witnesses, placed a witness on the stand who was
      unable to testify, and failed to object throughout the trial.


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                           Assignment of Error No. 2
        Frank Barnes’s right to a fair trial and due process of law were
        violated by the cumulative errors that occurred during his trial.

                           Assignment of Error No. 3
        Mr. Barnes’s conviction for domestic violence under R.C. 2919.25
        is not supported by sufficient evidence[.]

        {¶11} Due to the nature of the discussion we elect to address the assignments

of error out of the order in which they were raised.

                                  Third Assignment of Error

        {¶12} In Barnes’s third assignment of error he argues that there was

insufficient evidence presented to support his conviction for Domestic Violence.3

Specifically, he argues that there was no evidence of “physical harm” in this matter.

                                      Standard of Review

        {¶13} Whether there is legally sufficient evidence to sustain a verdict is a

question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is

a test of adequacy. Id. 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.

Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus.


3
  Barnes makes no argument challenging any of his other convictions and does not mention them in his
assignment of error, therefore we will not address them.

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                               Controlling Authority

       {¶14} In this case Barnes challenges his conviction for Domestic Violence

in violation of R.C. 2919.25(A), a felony of the fourth degree due to a prior

conviction. Domestic Violence as charged is codified in R.C. 2919.25(A), and

reads, “No person shall knowingly cause or attempt to cause physical harm to a

family or household member.”

       {¶15} Barnes focuses his argument on appeal specifically on the element of

“physical harm,” contending that there was insufficient evidence for a rational trier

of fact to find that the element had been proven beyond a reasonable doubt. Revised

Code 2901.01(A)(3) defines “Physical harm to persons” as “any injury, illness, or

other physiological impairment, regardless of its gravity or duration.”

                           Relevant Evidence Presented

       {¶16} At trial, Ashley testified that she had a relationship with Barnes for

approximately three years, and that they lived together on two separate occasions at

her residence, including at the time of this alleged domestic violence incident.

Ashley testified that initially the relationship was fine but as Barnes began drinking

more frequently they argued.

       {¶17} Ashley testified that on April 6, 2018, she got a babysitter for her kids

and that her and Barnes went to play bingo in Bellefontaine from approximately 7




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p.m. to 10 p.m. She testified that after bingo she dropped Barnes off at their house

with Ashley’s children, then drove the babysitter home.

          {¶18} Ashley testified that when she returned home, Barnes was being loud

and obnoxious and he had been drinking. She testified that she asked Barnes to turn

the television down since the children were sleeping. She then saw a bottle of liquor

that Barnes was drinking, which was three-quarters empty, and she took it and

poured out the remainder of the bottle in the sink.

          {¶19} At that point, Ashley testified that Barnes came up to her and choked

her, wrapping his hand around her throat.4 Ashley testified that Barnes began

squeezing, that she tried to get his hands off her neck, that she was flailing, and

gasping for air. She testified that she went unconscious and “came to” on the floor.5

Eventually Ashley got out of the house, ran to a neighbor’s residence, and 911 was

called.

          {¶20} An officer that responded to the scene, Jared Willoby of the

Bellefontaine Police Department, testified that when he arrived Ashley was

distraught and upset, and that she had a slight redness on the left part of her neck

below her jaw. Officer Willoby testified that he did not take pictures of the injuries




4
  Barnes would challenge Ashley’s story as being inconsistent, as she stated initially that Barnes had used
both hands, then later said it was just one hand at trial.
5
  The incident in the residence continued, leading to other charges, but we focus on the specific Domestic
Violence aspect here. Further, we note that the phrase “came to” was used by the prosecutor rather than
Ashley.

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because he did not think the redness would show up on the camera. Ashley testified

that she had bruises on her neck where Barnes’s fingers were days after the incident.

       {¶21} Although not presented in the State’s case, the defense presented the

testimony of John Matt, an EMT who responded to the scene. Matt testified that

Ashley complained of neck pain at the scene but he did not see any marks on her,

adding, “but we’re not a mobile emergency room.” (Tr. at 349).

                                      Analysis

       {¶22} At the outset of our analysis we note that Barnes does not argue on

appeal that the State presented insufficient evidence that he was a family or

household member to support his Domestic Violence conviction; rather, he focuses

his argument solely on the “physical harm” element.

       {¶23} As to the purported physical harm in this case, Ashley testified that

Barnes choked her, wrapping his hand around her neck. Ashley testified that she

was choked to the point that she lost consciousness. She testified that the incident

left bruises for days after, and an officer noted red marks on her neck shortly after

the incident when he responded.

       {¶24} Physical harm, as defined, includes any injury no matter how slight.

The testimony presented would consist of at least a slight injury. See State v.

Torman, 3d Dist. Putnam No. 12-15-10, 2016-Ohio-748, ¶¶ 31-32 (concluding that

the victim’s testimony that the defendant squeezed the victim’s chin and jaw


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resulting in minor bruising was sufficient evidence of physical harm); State v. Ward,

3d Dist. Seneca No. 13-07-21, 2008-Ohio-84, ¶¶ 15-21 (concluding that testimony

from a witness that the defendant “grabbed the victim by the throat and threw her to

the ground” was sufficient for a rational trier of fact to conclude that the physical

harm element of R.C. 2919.25(A) was met); State v. Summers, 11th Dist. Ashtabula

No. 2002-A-0074, 2003-Ohio-5866, ¶ 31 (noting that the physical harm element of

R.C. 2919.25(A) was satisfied despite the victim’s failure to seek medical treatment

and the absence of corroborating evidence regarding the victim’s injuries because

the jury believed the victim’s testimony regarding the minor bruising and “soreness”

or “stiffness” she suffered).

       {¶25} Nevertheless, as this Court has noted in previous opinions, “ ‘R.C.

2919.25 does not require the state to prove that a victim has sustained actual injury

since a defendant can be convicted of domestic violence for merely attempting to

cause physical harm to a family [or household] member.’ ” State v. Jackson, 3d

Dist. Seneca No. 13-18-18, 2019-Ohio-170, ¶ 59, citing State v. Nielsen, 66 Ohio

App.3d 609, 612, 585 N.E.2d 906 (6th Dist.1990). Thus even if the jury found

somehow that there was no physical harm in this matter, they still could have found

there was an attempt to cause physical harm through the choking. Regardless, the

State presented sufficient evidence to convict Barnes of Domestic Violence as

indicted.


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        {¶26} We would note that on appeal, Barnes focuses part of his argument

challenging the sufficiency of the evidence on the testimony of a defense witness,

the EMT who responded to the scene. The EMT testified that he did not see any

red marks on Ashley’s neck. While Barnes may feel this contradicts the State’s

evidence, to the extent that it did (at all), that would be a question of weight of the

evidence for the jury to determine, not sufficiency, and Barnes has not raised a

challenge to the weight of the evidence.6 Regardless, even if he did, we could not

find that the jury clearly lost its way in this matter in convicting him based on the

evidence presented.

        {¶27} For all of these reasons, Barnes’s third assignment of error is

overruled.

                                     First Assignment of Error

        {¶28} In Barnes’s first assignment of error, he argues that he received

ineffective assistance of counsel. Specifically, he argues that his counsel was

ineffective for failing to object to certain “other acts” testimony that he believes

should have been precluded under Evid.R. 404, that his counsel was ineffective for

failing to arrive to court “on time” both days of trial, that his counsel failed to

appropriately manage witnesses, and that counsel was ineffective for calling a

witness to the stand whose testimony would have violated the rules of evidence.


6
  The same would be true for Barnes’s claim that Ashley’s story was inconsistent, that she was jealous, and
that she had a motive to lie.

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                                 Standard of Review

       {¶29} “To establish a claim for ineffective assistance of counsel, a defendant

must show that counsel’s performance was deficient and that counsel’s deficient

performance prejudiced him.” State v. Hernandez, 3d Dist. Defiance Nos. 4–16–

27, 28, 2017–Ohio–2797, ¶ 12, citing State v. Phillips, 3d Dist. Allen No. 1–15–43,

2016–Ohio–3105, ¶ 11, citing State v. Jackson, 107 Ohio St.3d 53, 2005–Ohio–

5981, ¶ 133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure

to make either showing defeats a claim of ineffective assistance of counsel. State v.

Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697. (“[T]here is no

reason for a court deciding an ineffective assistance of counsel claim to approach

the inquiry in the same order or even to address both components of the inquiry if

the defendant makes an insufficient showing on one.”).

       {¶30} We note that a tactical decision by trial counsel, who as a licensed

attorney is presumed to be competent, is not by itself enough to show ineffective

assistance of counsel simply because the strategy did not result in an acquittal. State

v. Clayton, 62 Ohio St.2d 45, 48-49 (1980); State v. Timm, 3d Dist. Seneca No. 13-

11-23, 2012-Ohio-410, ¶ 31. “Furthermore, trial counsel’s failure to object is

generally viewed as trial strategy and does not establish ineffective assistance.”

State v. Turks, 3d. Dist. Allen No. 1–08–44, 2009–Ohio–1837, ¶ 43, citing State v.




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McKinney, 11th Dist. Trumbull No.2007–T–0004, 2008–Ohio–3256, ¶ 191; State

v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, ¶ 103.

                                      Analysis

       {¶31} Barnes contends his counsel was ineffective on a number of issues.

We will address each in turn.

                                “Other Acts” Evidence

       {¶32} Barnes first argues that his trial counsel was ineffective for failing to

object to what he claims was improper “other acts” evidence that should have been

precluded under Evid.R. 404(B), which reads as follows.

       (B) Other Crimes, Wrongs or Acts. 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.

       {¶33} In this case, Barnes argues that his counsel failed to object to multiple

portions of testimony that he claims were introduced to show his bad character and

establish that he acted in conformity with that bad character. Specifically, he argues

that his counsel failed to object to testimony regarding his alcohol and drug use,

testimony regarding an incident with Ashley that led to a civil protection order being

filed against him, testimony regarding instances of Barnes throwing beer bottles at

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Ashley, and testimony regarding instances involving Ashley being slapped by

Barnes.

       {¶34} The State responds by contending that the majority of the incidents of

testimony that Barnes argues were improper were actually part of the incidents that

led to the charge of Menacing by Stalking and thus were part of the elements, or the

res gestae, of the crime. The State argues that the testimony regarding the incident

leading to the civil protection order, the testimony regarding the slapping, and the

testimony regarding the thrown beer bottles were all direct evidence that Barnes

made an ongoing threat of physical harm or caused physical harm or mental distress

to Ashley, supporting the Menacing by Stalking charge. We agree.

       {¶35} Menacing by Stalking pursuant to R.C. 2903.211(A)(1) reads as

follows.

       No person by engaging in a pattern of conduct shall knowingly
       cause another person to believe that the offender will cause
       physical harm to the other person or a family or household
       member of the other person or cause mental distress to the other
       person or a family or household member of the other person.

In the bill of particulars, the State alleged that the incident leading to the civil

protection order where Barnes dragged Ashley out of her car, the incident where

Barnes threw beer bottles at her, the incident where Barnes slapped Ashley, and the

incident where Barnes and Carmen M. purportedly threatened Ashley all led to the

Menacing by Stalking charge. Ashley testified at trial regarding all these incidents.


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Because the State was attempting to prove Menacing by Stalking through these

incidents, the evidence supporting the elements would be admissible, and would not

be improper “other acts” evidence.7 See State v. DiCarlo, 4th Dist. Scioto No.

09CA3301, 2010-Ohio-3759, ¶ 19.

        {¶36} As to the drugs and alcohol testimony, the State presented this

evidence partially to explain the deterioration of the relationship between Barnes

and Ashley, and it is involvement with alcohol that led to the incident on April 7,

2018. Thus again, it could be admissible as simple background to the incident.

        {¶37} Nevertheless, even if trial counsel should have objected to the drug

and alcohol testimony, and even assuming arguendo it was inadmissible, we cannot

find that any failure to object here was prejudicial as the defense’s trial strategy was

not to paint Barnes as a “saint,” but rather to paint Ashley as jealous of Barnes’s

other relationship with Carmen M., and to paint Ashley as a liar, particularly when

it came to making purportedly false allegations against men for being violent in the

past.

        {¶38} Therefore we cannot find that Barnes’s counsel was ineffective for

failing to object to any of the purported “other acts” testimony, or that even if he




7
  Perhaps Barnes’s argument would be more properly directed to contending that his trials for various
incidents should have been severed. We emphasize that we are not stating such an argument would have
been successful, but it more logically follows the argument he is attempting to make here.

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Case No. 8-18-67


was ineffective, that any failure would have been prejudicial in this matter. Thus

this argument fails under both prongs of Strickland.

          Trial Counsel Arriving Late and Timeliness of Witness Arrival

       {¶39} Barnes next argues that his trial counsel was ineffective for being late

both days to the trial, and for failing to have two of his witnesses present at a more

convenient time so the trial could continue without a short break.

       {¶40} The issue regarding timeliness was first mentioned in the record near

the end of the trial on the second day, outside of the presence of the jury at a sidebar.

On the second day of the trial, the defense began its case by questioning its first

three witnesses. At the conclusion of the third witness’s testimony, defense counsel

indicated that he was surprised the three witnesses’ testimony went so quickly, and

the next two witnesses were not scheduled to arrive under subpoena for another

twenty minutes.

       {¶41} At that time, the trial court stated that tardiness was becoming a

problem with defense counsel. The trial court noted its displeasure with all of

defense counsel’s timing in the trial, stating that defense counsel had apparently

been late both days to trial, though this was not made clear earlier in the transcript.

The trial court was also troubled by defense counsel causing further delay by not

properly anticipating the length of testimony of witnesses. As a result of defense




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counsel’s actions, the trial court held defense counsel in contempt, and fined him

$50. Court then recessed until the defense witnesses arrived.

       {¶42} While trial counsel’s tardiness may have been unprofessional, it did

not prevent the defense from presenting its case in this matter, and as far as the

record is concerned there is no indication that the jury was aware that any slight

delay in starting either day was the result of defense counsel. Similarly there is no

indication that the jury was aware that any twenty minute break that was taken on

the second day of trial was attributable to the defense counsel. Regardless, trial

counsel was punished for being late, and there is absolutely no indication

whatsoever that it impacted the trial, or would have prejudiced the jury against

Barnes. In fact, the jury was discerning enough to acquit Barnes of the Felonious

Assault charge.

                    Trial Counsel’s Management of Witnesses

       {¶43} Finally, Barnes argues that trial counsel failed to call “appropriate”

witnesses to the stand. More specifically, Barnes argues that defense counsel

attempted to introduce the testimony of one of Ashley’s ex-boyfriends who would

purportedly testify that Ashley had made a false allegation about him regarding

domestic violence in the past. Defense counsel also attempted to call a children’s

services investigator, at Barnes’s request, to testify regarding a children’s services




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investigation that had taken place in the past regarding Ashley. The trial court

prevented this testimony as being extrinsic and irrelevant.

       {¶44} Notably, as to the children’s services investigation, defense counsel

actually stated he did not feel he could properly present the evidence but his client

wished him to call the witness. We can find no ineffective assistance of counsel

there. See (Tr. at 356). As to Ashley’s ex-boyfriend, defense counsel did enter the

testimony of a separate male who claimed that Ashley had made improper

accusations in the past. Thus we see no ineffective assistance of counsel here for

defense counsel’s attempt to enter additional testimony.

       {¶45} Nevertheless, even assuming counsel should have been more diligent,

there is simply no showing of any prejudice here. In fact, trial counsel secured an

acquittal on the most serious charge against Barnes. While Barnes may wish to have

a second attempt to try a different strategy, we will not second-guess the trial

strategy of an attorney who is presumed to be competent, particularly where the

record demonstrates absolutely no prejudice. Therefore, for all these reasons,

Barnes’s first assignment of error is overruled.

                            Second Assignment of Error

       {¶46} In Barnes’s second assignment of error, he argues that the cumulative

impact of the errors by trial counsel in this case warrant a new trial. While numerous

errors presenting minimal prejudice can be combined to deprive a defendant of a


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fair trial, there are not multiple errors in this case, and even if we found in the second

assignment of error that counsel was deficient, there is no demonstrable prejudice

in this matter, thus there is no accumulation of prejudice, particularly any prejudice

of significance to overturn the jury’s verdict. See State v. Holton, 3d Dist. Holton

Logan No. 8-17-02, 2017-Ohio-6934, ¶¶ 51-52, citing State v. DeMarco, 31 Ohio

St.3d 191 (1987), at syllabus. Therefore, Barnes’s second assignment of error is

overruled.

                                      Conclusion

       {¶47} For the foregoing reasons Barnes’s assignments of error are overruled

and the judgment of the Logan County Common Pleas Court is affirmed.

                                                                    Judgment Affirmed

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr




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