[Cite as State v. Hayes, 2014-Ohio-254.]




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




STATE OF OHIO,
                                                          CASE NO. 13-13-21
        PLAINTIFF-APPELLEE,

        v.

JAMES A. HAYES III,                                       OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 12-CR-0165

                                      Judgment Affirmed

                            Date of Decision: January 27, 2014




APPEARANCES:

        Scott B. Johnson for Appellant

        Angela M. Boes for Appellee
Case No. 13-13-21




WILLAMOWSKI, P.J.

      {¶1} Defendant-appellant James A. Hayes, III (“Hayes”) brings this appeal

from the judgment of the Court of Common Pleas of Seneca County finding him

guilty of two counts of felonious assault and sentencing him to a total prison term

of seven years. Hayes challenges the judgment claiming that his conviction was

against the manifest weight of the evidence and that he was denied effective

assistance of counsel. For the reasons set forth below, the judgment is affirmed.

      {¶2} On September 12, 2012, the Seneca County Grand Jury indicted

Hayes on two counts. Doc. 1. Both counts alleged that Hayes had committed

felonious assault in violation of R.C. 2903.11(A)(2),(D)(1)(a), felonies of the

second degree. Id. On September 19, 2012, Hayes entered a plea of not guilty to

both counts. Doc. 14.

      {¶3} Between February 25 and February 28, 2013, a jury trial was held.

Doc. 41. At trial, the State presented the testimony of seventeen witnesses and

Hayes presented the testimony of two witnesses. The first witness for the State

was Ohio State Trooper Anthony Scherley (“Scherley”).          Tr. 156.   Scherley

testified that on February 19, 2012, he stopped a white minivan after it pulled out

in front of him from a private drive. Tr. 157-58. When he approached the driver,

he observed blood on the driver as well as on the van. Tr. 158. Scherley then


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called for an ambulance.         Tr. 159.      The driver was Brian Armbruster

(“Armbruster”) and there was a passenger in the vehicle who was identified as

Roger Seifert (“Seifert”). Tr. 159. Scherley learned that Armbruster and Seifert

had earlier been in a fight at a bar and that Armbruster had been stabbed during it.

Tr. 159. The investigation was turned over to the Tiffin Police Department and

Armbruster was transported from the scene by ambulance. Tr. 159-60.

       {¶4} The next witness for the State was Tiffin Police Officer Brent Riley

(“Riley”). Tr. 163. Riley testified that he was sent to Stiney’s Three Oaks Bar

(“Three Oaks”) in Tiffin, Seneca County, Ohio, to investigate a stabbing. Tr. 165.

He was sent to check the parking lot for signs of evidence and he located some

blood droplets. Tr. 165. A second officer at the scene found a small knife in the

grass near the parking lot. Tr. 166. Later in that shift, he was sent to investigate a

car crash in which he was informed the suspect for the stabbing might have been

involved. Tr. 166. At the scene, Riley observed blood on the red car and saw a

red t-shirt inside the car with blood on it. Tr. 167. The passenger in the red car

was Hayes. Tr. 167. The driver of the vehicle was Staci Hayes (“Staci”), Hayes’

wife. Tr. 167. While at the scene, Riley overheard Hayes tell the EMT’s that he

had been injured in a fight at a bar and that he wished to go to the hospital. Tr.

168. Hayes was then transported by the ambulance to the hospital. Tr. 168. The



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damaged vehicle was then towed to the Parks Department and placed in a secured

garage. Tr. 169. Armbruster’s minivan was also there. Tr. 169.

         {¶5} Seneca County Sheriff’s Deputy Matthew Huffman (“Huffman”)

testified next for the State. Tr. 172. Huffman testified that he responded to an

accident call between a red Pontiac Grand Prix and a bronze Ford Focus. Tr. 174.

From the statements at the scene and the physical evidence, it appeared that Staci

had been driving. Tr. 174. As Huffman approached the vehicle, he saw blood on

Hayes and Staci. Tr. 175. Both Staci and Hayes stated that the blood was from

injuries received when Hayes “got jumped in a bar fight.” Tr. 176. Inside the

vehicle, Huffman saw a white t-shirt with blood on it.1 Tr. 176. Knowing of the

stabbing at the Three Oaks earlier, Huffman questioned whether it was related. Tr.

176. Huffman then contacted the Tiffin Police Department. Tr. 177. Huffman

then turned over the investigation to Riley and Lietenant Michelle Craig (“Craig”),

while Huffman completed the accident report. Tr. 177.

         {¶6} The fourth witness for the State was Detective Shawn Vallery

(“Vallery”) of the Tiffin Police Department. Tr. 183-84. Vallery was the on-call

detective assigned to investigate the stabbing at Three Oaks. Tr. 185. He learned

that the victim was Armbruster. Tr. 185. Upon learning that Armbruster was

being taken to the emergency room, Vallery went there to speak with him. Tr.
1
 This testimony contradicts Riley’s testimony that there was a red t-shirt with blood on it in the car. The
color of the t-shirt was not resolved, but was not relevant.

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186. At the hospital, Vallery observed scrapes to Armbruster’s knees, a mark on

his left cheek and forehead, and blood on a bandage on the left side of his torso.

Tr. 186. After taking photographs of the injuries, Vallery collected Armbruster’s

clothing. Tr. 186. While at the hospital, Vallery learned about the accident and

that Staci and Hayes were coming into the hospital where Vallery was located. Tr.

189. Craig collected the clothing from Staci and Hayes. Tr. 189. Vallery then

identified the photographs of the clothing. Tr. 190-93. Specifically, Vallery

identified Exhibits 11 and 12 as photographs of a jacket recovered from Seifert.

Tr. 191. Exhibit 11 shows that there is a defect in the jacket.

       {¶7} After leaving the hospital, Vallery went to Three Oaks to retrieve a

copy of the video recording. Tr. 194. Upon arriving back at the police station,

Vallery learned that Hayes was in critical condition and was having emergency

surgery. Tr. 194. Vallery later interviewed various occupants of the bar, the

bartender, and Seifert. Tr. 195. He also requested a warrant to search the vehicle.

Tr. 195. Some of the evidence was sent to BCII for testing. Tr. 195. Vallery was

able to identify the knife found at the scene, and testified that it had been sent to

BCII for testing. Tr. 196-97. Vallery also testified that the jacket worn by Seifert

on the night in question was Exihibit 38 and that he submitted it to BCII. Tr. 201.

       {¶8} On cross-examination, Vallery testified that he did not speak to Seifert

until the next day. Tr. 205. When Seifert came to the station, he was not tested

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for alcohol consumption. Tr. 206. Vallery testified that he saw no need to test

Seifert as he assumed that he had been drinking the night before since he was at

the bar. Tr. 207. Vallery questioned Seifert because he was unsure who had

started the fight. Tr. 207. Vallery admitted that during his investigation, he heard

various stories and some statements were contradictory. Tr. 208. One of the

people he questioned mentioned there was a gun, but no gun was found. Tr. 208-

09. Vallery also admitted that he used to work for Armbruster for a couple of

years and that he knew him “pretty well.” Tr. 210-11. Armbruster does like to

drink and is not afraid to speak his mind. Tr. 211. When questioned by Vallery,

Armbruster stated that he had been drinking. Tr. 211. At the initial questioning of

Armbruster, Vallery noticed there was blood on the shirt and jeans that

Armbruster was wearing. Tr. 213. Armbruster also identified a camouflage shirt,2

which was found in Hayes’ vehicle, as a shirt he was wearing that night. Tr. 214.

When speaking with Armbruster at the emergency room, Vallery noticed that

Armbruster was in pain and that he had been drinking. Tr. 216.

           {¶9} The next witness for the State was Detective Charles Boyer (“Boyer”)

of the Tiffin Police Department. Tr. 217. Boyer testified that after delegating

evidence collecting duties, he went to Three Oaks to process the scene. Tr. 220.

When he arrived at Three Oaks, the scene was already taped off. Tr. 220.      Boyer

2
    More than one shirt was found in Hayes’ vehicle.

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reviewed the scene in the taped off area and also checked the area outside of the

tape to insure that nothing was missed. Tr. 220-21. Inside the taped off area,

Boyer found two hats, an open-blade knife, a Pepsi, a $10 bill, and blood splatter

in seven different locations. Tr. 221. Boyer then photographed the entire area,

including around the bar. Tr. 221. Boyer identified Exhibits 43 through 58 as the

photos he took at Three Oaks. Tr. 222-25. The next day, Boyer assisted Vallery

in procuring search warrants for the vehicles which were secured. Tr. 229. Once

the warrants were obtained, Boyer participated in searching the two vehicles. Tr.

229. Boyer identified Exhibits 59-67 as photographs taken of the vehicles on

February 20, 2012, pursuant to the search warrant. Tr. 229-32.

           {¶10} The sixth witness for the state was Sergeant Robert Bour (“Bour”) of

the Tiffin Police Department.3 Tr. 238. Bour testified that he was called in from

home to help investigate the stabbing at Three Oaks. Tr. 240. When he arrived at

Three Oaks, he was updated as to the status of the victim and his injuries, how the

victim came to be known and that the alleged suspect’s vehicle had been in a crash

resulting in the suspect and his wife being transported to the emergency room. Tr.

240-41. Bour then went to the scene of the traffic stop of the victim. Tr. 241.

When he arrived, he inspected the vehicle and “saw lots of blood.” Tr. 241. There

was blood under the driver’s seat, on the steering wheel, and on the outer door

3
    At the time of the investigation, Bour was a detective, but was promoted to sergeant prior to trial.

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handle. Tr. 241. There also appeared to be fresh damage to the right front of the

vehicle. Tr. 241. Bout identified Exhibits 70 and 71 as photos he took at the

scene. Tr. 241. Once he had taken the photographs, Bour arranged to have the

vehicle towed to the Parks Department and secured. Tr. 242. Bour then returned

to Three Oaks to assist Boyer. Tr. 242. The next day, Bour assisted Boyer in

searching the vehicles. Tr. 242-43. Out of the red vehicle, they collected a long

sleeve, torn, bloody camouflage shirt. Tr. 243. On cross-examination, Bour

testified that Armbruster was traveling away from the hospital when he was

stopped. Tr. 249. Bour also admitted that he interviewed others who had been in

the bar, but not until several days if not weeks had passed. Tr. 252.

       {¶11} Next, Carrie Robenalt (“Robenalt”) testified for the State. Tr. 261.

Robenalt was the bartender at Three Oaks on February 19, 2012. Tr. 263. She is

familiar with Armbruster and testified that he was in the bar that evening seated

near the back door.     Tr. 263.   Seifert was also there and was standing near

Armbruster. Tr. 263-64. Robenalt testified that neither Armbruster nor Seifert

were involved with any arguments or confrontations with anyone. Tr. 264. She

testified that a man and a woman got into an argument near the bathrooms that

night because she was engaging in conduct he did not like. Tr. 264. At the time,

she did not know who they were, but later learned that the man was Hayes and the

woman was Staci. Tr. 265. Robenalt testified that Hayes was dressed all in black

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and that Staci was wearing a white shirt. Tr. 265. When they left the bar, they

were arguing. Tr. 265. Both Hayes and Staci were very intoxicated. Tr. 266.

Although she did not know what they were saying she could tell they were

arguing. Tr. 266. They left out the back door. Tr. 267. Armbruster and Seifert

were still in the bar when Hayes and Staci left, and did not leave for at least a half

hour. Tr. 267. Later, Hayes and Staci came back inside with blood all over them

and Staci was upset. Tr. 267. Hayes had his right hand wrapped in a rag with

blood dripping from it. Tr. 267. When people started asking questions, Hayes

grabbed Staci’s hand and told her they had to leave. Tr. 268. Hayes then dragged

Staci down the hall and they left through the back door. Tr. 268. Other patrons

followed them out. Tr. 268. Soon after that, the police arrived. Tr. 268.

         {¶12} On cross-examination, Robenalt testified that earlier in the evening

Seifert and another customer got into an argument and she threw out the other

customer.4 Tr. 287. She admitted that she had told Vallery that Seifert was angry

and wanted to fight with the other customer, however it was normal for the other

customer to cause problems. Tr. 289.                      She testified that on the night of the

incident, Three Oaks was very busy and it was standing room only. Tr. 290-91.

There was karaoke occurring in the bar that night and it was loud. Tr. 291. That

night, she was working at the bar and did not leave her station. Tr. 291. Robenalt
4
   Robenalt testified that the other customer is a regular who usually gets thrown out every weekend for
arguing with people. Tr. 287.

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was frustrated that night because they were very busy and the only other person

working was a trainee. Tr. 292. Up until the argument between Hayes and Staci,

they did not cause any disturbance.      Tr. 292-93.       Robenalt testified that

Armbruster and Seifert were drunk, but were not “trashed.” Tr. 293-94.

      {¶13} On re-direct examination, Robenalt testified that Hayes and Staci had

also been drinking. Tr. 297. She testified that Staci was “really drunk” and was

bouncing off walls and bumping into people. Tr. 297. Hayes was also drunk as

she was serving him “double 77’s.” Tr. 298. On recross-examination, Robenalt

testified that she served Armbruster and Seifert Bud Light. Tr. 298.

      {¶14} The next witness for the State was one of the victims, Armbruster.

Tr. 299. Armbruster testified that he and Seifert went from a gun raffle to a

friend’s home and then to Three Oaks. Tr. 300. Armbruster testified that he drove

his minivan. Tr. 300. He parked the van in the back lot, locked the vehicle, and

entered the bar through the back entrance. Tr. 301. Armbruster testified that he

and Seifert sat down at the end of the bar, but he knew some of the other people

who were there. Tr. 301. He did not have any arguments or fights with anyone

inside the bar that night. Tr. 302. When he and Seifert got up to leave, it was not

closing time yet. Tr. 303. They walked out the back door with the intention of

getting the rest of the beer out of the van and walking to Seifert’s home. Tr. 303.

Armbruster testified that as they were walking to the car, they saw Hayes pushing

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a woman around and they were screaming at each other. Tr. 304. Armbruster

continued to the van and when he reached it, he turned around to see Seifert and

Hayes arguing, but not fighting yet. Tr. 305. Armbruster then approached to try

and break it up, and “a girl” jumped on his back. Tr. 305. Armbruster then tried

to get her off the back. Tr. 306. At that time, Seifert and Hayes were fighting as

well. Tr. 306. After getting the girl off his back, he again went toward Seifert and

Hayes to try and break up the fight, and the girl jumped on his back again. Tr.

306. He again knocked her off of his back and went towards the fighting duo. Tr.

307. When he got there, he felt a stabbing and the rush of blood coming out of

him. Tr. 307. Armbruster did not see the knife. Tr. 307. Armbruster then went

back to the van, unlocked it, and got in. Tr. 308. As he started it, Seifert got into

the passenger side, and Armbruster put the van into gear and attempted to exit. Tr.

308. Hayes then started pounding on the windows and kicking the van until he

dented it. Tr. 308. Armbruster was just trying to get away, so he pulled out of the

parking lot and turned right. Tr. 309. Within a quarter of a mile, the police had

stopped him, and approached the van. Tr. 309. When the officer shined the

flashlight into the van, he showed him that he was covered in blood. Tr. 309. The

night of the incident, Armbruster was wearing a camouflage hat, a camouflage

shirt, a t-shirt, blue jeans, and tennis shoes. Tr. 310. During the scuffle with the

woman, he lost his hat and his camouflage shirt. Tr. 310.

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       {¶15} The next thing Armbruster remembers was waking up on life support

in Toledo. Tr. 309. Armbruster testified that he was on life support for two days

and in the Intensive Care Unit for seven to ten days. Tr. 310. As a result of the

stabbing, he had lost 65% of his blood and had to have transfusions. Tr. 310-11.

In addition, his left lung collapsed and the doctors had to perform major surgery to

relieve the pressure from the internal bleeding. Tr. 311. Armbruster testified that

he was stabbed one time in his left side. Tr. 311. His lung will never “come

back” and he has had to have reconstructive surgery to fix a problem with his

stomach. Tr. 311. A year after the incident, Armbruster still was having problems

due to the stabbing. Tr. 311-12. Armbruster did not know who his attacker was

and had not spoken with him previously. Tr. 312.

       {¶16} On cross-examination, Armbruster testified that he had three cans of

beer to drink at the gun raffle. Tr. 312. At Three Oaks, Armbruster drank two

more beers. Tr. 313. He might have had a single beer in the car between leaving

the raffle and going to the bar. Tr. 313. His blood alcohol level was above the

legal limit. Tr. 314. Armbruster testified that although he did not know who had

stabbed him, there were only three people there and he knew it was not Seifert.

Tr. 315.    On redirect examination, Armbruster identified Exhibit 26, the

camouflage shirt found in Hayes’ vehicle, as the shirt he was wearing the night he

was stabbed. Tr. 320.

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      {¶17} The ninth witness for the State was the second victim, Seifert. Tr.

323. Seifert testified that he, Armbruster, and another friend went to Bettsville

around 6:00 p.m. on February 18, 2012. Tr. 324. When they left, they took the

friend home and then he and Armbruster went to Three Oaks.                Tr. 324.

Armbruster was driving. Tr. 324. Armbruster then parked at the back of the lot

and they entered the bar through the rear entrance. Tr. 325. Seifert denied that

either he or Armbruster argued or fought with anyone inside the bar that night. Tr.

325. When they left the bar, they went out the back door and he heard a man and

woman arguing. Tr. 327. Seifert testified that he told the man to “leave her

alone” and the man charged him. Tr. 327. He knew the man was Hayes because

he had gone to school with him. Tr. 327. Hayes pushed him and they ended up

“wrestling around on the ground.” Tr. 328. Armbruster was approximately ten

feet away and the girl was on his back. Tr. 328. The fight ended when Seifert,

who was on top of Hayes, let Hayes up. Tr. 328. When they stood up, he saw

Hayes pull something shiny out of his pocket and stab Armbruster with it. Tr.

328-29. Armbruster was stabbed on his left side. Tr. 329. Seifert did not recall

what happened between the stabbing and trying to get into the van. Tr. 329.

Seifert remembered that once they were in the van, Hayes began hitting it and

kicking at it while trying to get in. Tr. 329-30. They then pulled out of the

parking lot to get away but Seifert did not know where they were headed. Tr. 330.

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Almost immediately upon leaving the parking lot, they were pulled over. Tr. 330.

Once stopped, the patrolman came up with his flashlight and Seifert saw all the

blood. Tr. 330. Armbruster was quickly transported by ambulance. Tr. 331. A

friend of Seifert’s came to get him. Tr. 331.

       {¶18} On cross-examination Seifert testified that he only lived two blocks

away from Three Oaks. Tr. 332. The police would not let him leave the scene to

walk home, but insisted that someone come and get him. Tr. 332-33. Seifert

admitted that he drank “approximately a 12 pack” that night. Tr. 333. Seifert

testified that he gave a statement to the officers at the traffic stop. Tr. 334.

However, he was unable to testify to how long he was at the stop or any other

details concerning the stabbing. Tr. 334. Bour came to Seifert’s home the next

day to collect the clothing that Seifert had been wearing the previous night. Tr.

336. Seifert also testified that during the fight with Hayes, they were both on the

ground, Seifert on top, and he was hitting the top of Hayes’ head. Tr. 338. On

redirect, Seifert testified that Hayes pulled the knife out and stabbed Armbruster

after the fight was over. Tr. 341-42.

       {¶19} For their tenth witness, the State called Melissa Lovas (“Lovas”). Tr.

343. Lovas testified that she had known Hayes for a couple of years. Tr. 344.

She testified that at the time of the incident, she was at Three Oaks. Tr. 345. She

did not notice any fights or arguments inside the bar that evening. Tr. 345. She

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saw Hayes and Staci sitting at a table in the back with another couple. Tr. 346. At

some point in time, she saw Staci come in the back door with her hands bleeding

and wrapped in a shirt. Tr. 347. A couple seconds later, Hayes came in asking for

help. Tr. 347. Lovas went outside with Staci and Hayes went to get the car. Tr.

347. When Staci got into the car, Hayes got out of it and started punching a white

van. Tr. 347. Hayes then looked at Staci and “told her to grab the gun.” Tr. 348.

Lovas then went back into the bar. Tr. 348. Lovas admitted on cross-examination

that she did not see a gun and did not hear any gun shots. Tr. 35. As she was

getting ready to leave, the police arrived. Tr. 350.

       {¶20} The next witness for the State was Cory Hess (“Hess”). Tr. 355.

Hess was a customer at the Three Oaks the night of the incident. Tr. 357. Hess is

an acquaintance of Armbruster and testified that Armbruster was wearing a

camouflage shirt and a ball cap that night. Tr. 357. Hess is also an acquaintance

of Seifert. Tr. 358. The night of the incident he saw a man and woman arguing.

Tr. 358. Hess did not know them, but the man was dressed all in black, except for

white tennis shoes. Tr. 358-59. The woman appeared to be very intoxicated, but

the man appeared to be “like a normal person”. Tr. 359.

       {¶21} Vernon Hites (“Hites”) was the twelfth witness for the State. Tr.

361. Hites testified that he got to Three Oaks at around 2:00 a.m. the night of the

incident. Tr. 362. He and his friends entered through the front door. Tr. 363. As

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he was the designated driver, he was only drinking soda. Tr. 363. Hites testified

that he did not see any fights that evening, but as a result of a conversation about a

fight, he went looking for his son in the back hall. Tr. 263-64. He then went out

the back door into the parking lot where he saw a man arguing with a woman, and

pushing her towards a red Grand Prix. Tr. 364. The man was screaming at the

woman to get in the car. Tr. 364. Hites then returned to the bar and soon

afterwards, the police arrived. Tr. 365. On cross-examination, Hites testified that

he knows Armbruster, but did not see him in the bar. Tr. 368. Hites did not know

Seifert or Hayes. Tr. 368.

       {¶22} The next witness was Mark Lang (“Lang”), who was a customer at

Three Oaks on the night of the incident. Tr. 369-70. Lang testified that he knows

Armbruster and he knows Hayes. Tr. 370-71. When he left around midnight, both

Hayes and Armbruster were both still there. Tr. 371. On February 19, 2012, Lang

opened the bar at 6:30 a.m. as the bartender. Tr. 372. Hayes came in between

7:00 and 8:00 a.m. Tr. 372. Lang testified that Hayes stated that he hoped

Armbruster was “hurt bad and in pain after the three guys jumped me last night.”

Tr. 373. Lang then told Hayes to leave. Tr. 373.

       {¶23} For its fourteenth witness, the State presented Lieutenant Michelle

Craig (“Craig”) of the Tiffin Police Department. Tr. 376. Craig testified that she

went to the crash site where Hayes and Staci were. Tr. 379.       When she arrived,

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the ambulance with Staci was leaving, but Hayes was still at the scene. Tr. 379.

Hayes was dressed all in in black. Tr. 380. Hayes had a bloody nose and said he

was sore, so he was transported to the hospital as well. Tr. 380. At the scene, she

observed a cloth that appeared to be bloody behind the driver’s seat of Hayes’ car.

Tr. 380. Craig identified Exhibit 75 as a photograph of the bloody cloth taken

through the window. Tr. 381.

      {¶24} After the scene of the crash, Craig went to the hospital. Tr. 382. At

the hospital, Craig spoke with Hayes. Tr. 382. Craig testified that she has known

Hayes for a long time and that he was intoxicated. Tr. 382. Craig observed some

small pin-sized spots that had been bleeding on his left side. Tr. 383. She also

saw where the top layer of skin on the inner side of Hayes’ right hand had been

scraped off. Tr. 383. She notice that there was blood on Hayes’ hands and all

over his clothing. Tr. 384. In addition to taking photographs of Hayes, she

collected his clothing and collected swabbings from his hands. Tr. 384. Exhibit

77 was identified as a photograph of Hayes’ right side of his head, which he

claimed was hit with a brick, though the injuries did not appear to support that

claim. Tr. 384-85. Craig also identified Exhibit 78 as a photograph showing the

left side of Hayes’ face and some small cuts. Tr. 385. At the hospital, Hayes told

Craig that when he and Staci were leaving Three Oaks, “three guys came and

started hitting him or booting him, kicking him, thumping him.” Tr. 386. Craig

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testified that Hayes was unsure whether it was three, four, five, or six men. Tr.

386. Hayes described the men as white males in their 30’s and was unable to

provide any other details or give an explanation as to why it happened. Tr. 386.

Hayes repeatedly stated that he was getting beat or stomped, but would also say

that he was not really hurt. Tr. 386-87. When asked about the knife, Hayes

claimed he only had a pocket knife, but it was not in his pockets when checked.

Tr. 387. Hayes described the knife he had as “all black.” Tr. 387. The injuries

claimed by Hayes did not match up with the injuries observed by Craig. Tr. 388.

Hayes claims the fight ended when he got away and got into the car. Tr. 389.

Hayes told Craig that he had not gone back into the bar. Tr. 389.

       {¶25} In addition to speaking with Hayes, Craig also had the opportunity to

question Staci. Tr. 390. Staci claimed that her elbow was damaged when she was

thrown to the ground after jumping on someone after the fight. Tr. 390. Craig

collected her clothing as well. Tr. 390.

       {¶26} On February 21, 2012, Craig spoke with Hayes again. Tr. 392.

Hayes told her that when he and Staci left Three Oaks, he was attacked by three

men in the parking lot. Tr. 392. The men started kicking him and hitting him. Tr.

392. Hayes claimed that his hand got cut when he reached down to prevent his

assailants from getting his knife, only to discover that it was open. Tr. 393. When

Craig asked Hayes if he knew Seifert or Armbruster, he denied that he did. Tr.

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394. Hayes was unable to explain how Armbruster’s shirt got into his car. Tr.

394. Craig also testified that she contacted Staci to have her look at a photo

lineup, but Staci never came in to do so. Tr. 395-96. When they came in for

questioning, Craig took DNA samples of Staci and Hayes pursuant to a search

warrant. Tr. 396-97. Craig also questioned Hayes as to why he had not called the

police about the attack. Tr. 398. Hayes told her he wanted to “assess the situation

first” because he was not really harmed. Tr. 398. Hayes admitted that he saw the

police officer that had pulled Armbruster over when he left, but did not go over to

the officer to report the attack. Tr. 398.

       {¶27} On cross-examination, Craig testified that the blood samples taken

from Hayes’ hands were not tested. Tr. 405. Craig admitted that Hayes’ claim

that he was attacked was consistent and had not changed.         Tr. 405.    When

questioned about the kind of shoes that were “stomping” him in the face, Hayes

repeatedly identified them as boots. Tr. 409-10. At the hospital, Craig went back

and forth between Staci and Hayes when asking questions. Tr. 413. One of the

injuries sustained by Hayes at some point in time, whether during the fight or the

subsequent accident was a dislocated nose. Tr. 414-15.

       {¶28} On redirect, Craig testified that Hayes was a suspect in the stabbing

because he matched the description and had a lot of blood on him that was not

from the accident. Tr. 417-18. Craig also testified that they did not send the

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samples from Hayes’ hands because BCII refuses to test more than five pieces of

biological evidence. Tr. 420. When questioned about the stabbing, Hayes told

Craig that “if somebody got stabbed because of him and his wife, he was glad.”

Tr. 421.

       {¶29} The next witness for the State was Ted Manasian (“Manasian”), a

forensic scientist at BCII. Tr. 424-25. Manasian testified that he is an expert in

fiber analysis, and was declared such by the trial court. Tr. 426-27. In this case,

Manasian was asked to examine defects in clothing to determine whether it was

caused by cutting or tearing.   Tr. 428. The items submitted for testing included

the knife, the fibers found on the knife, the camouflage shirt identified as

belonging to Armbruster, the sweat jacket identified as belonging to Seifert, and a

t-shirt identified as belonging to Armbruster. Ex. 40. Manasian testified that he

found numerous fibers on the knife blade. Tr. 437. The fibers on the knife did not

match those from the white tank top, but there were fibers from the sweat shirt

found on the knife. Tr. 437. There were also additional fibers present that were

inconsistent with the two articles of clothing submitted. Tr. 438. Although the

“defect” found in the camouflage shirt was not analyzed to determine if it was a

cut or a tear, it was noted that its position was consistent with the position of the

cut tear found on the white shirt. Tr. 438. The defect in the white shirt was



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Case No. 13-13-21



examined and was determined to be a cut, not a tear. Tr. 438. The defect in the

sweat jacket was also determined to have been a cut. Tr. 438.

       {¶30} Julie Cox (“Cox”), was a forensic scientist for BCII that testified

next. Tr. 443. After numerous questions concerning her qualifications, the trial

court declared Cox to be an expert in the field of forensic biology. Tr. 444-45.

Cox testified that she took the blood samples from the submissions, determined

that they were blood, and prepared them for DNA sampling. Tr. 446. Cox

testified that she took samples from the knife, the camouflage shirt, and a pair of

jeans belonging to Staci. Tr. 447-48. The samples were identified as blood and

sent on for DNA testing. Tr. 449. In addition, Cox had four DNA reference

samples, one each from Staci, Hayes, Armbruster, and Seifert. Tr. 449. The

results were that Cox found no identified blood on the knife. Tr. 451. The

camouflage shirt, the jacket, and the jeans tested positive for the presence of

blood. Tr. 451. Those samples were forwarded for DNA testing. Tr. 451. Cox

testified that although a knife is used to stab a person, it may not have blood on it

if it is removed quickly before the blood has time to deposit. Tr. 451.

       {¶31} The final witness to testify during the State’s case-in-chief was Erica

Jimenez (“Jimenez”), who is also a forensic scientist in the DNA unit for BCII.

Tr. 458. The trial court determined that Jimenez was qualified to be an expert

witness in the field of DNA analysis and comparisons. Tr. 460. Jimenez testified

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that in assault cases, law enforcement may submit up to five items for initial

analysis. Tr. 463. If there is not a probative result, additional items may be

submitted. Tr. 464. Jimenez testified that the first item examined was the knife

and they took DNA from the handle of the knife and from the blade of the knife.

Tr. 468. From the blade of the knife, the DNA was a mixture of DNA consistent

with both Armbruster and Hayes. Tr. 468. The sample from the handle of the

knife was consistent with the DNA of Hayes. Tr. 468. The blood sample from the

shirt was consistent with the DNA of Armbruster. Tr. 468. The samples from the

collar of the shirt were consistent with DNA from Armbruster along with DNA

from Staci. Tr. 468. As for the jacket, the presumptive blood stain was consistent

with that of Hayes.5 Tr. 469. The blood found on Hayes’ jeans was consistent

with that of Hayes. Tr. 469. The last item was the sample taken from Staci’s

jeans. Tr. 469. That blood stain was consistent with that of Armbruster. Tr. 469.

         {¶32} On cross-examination, Jimenez testified that they do not test all the

blood on any item, just limited pieces. Tr. 475. She also testified that they would

not take additional samples unless requested to do so by the detective. Tr. 476-77.

Jimenez testified that no samples were submitted from shoes, hats, of Hayes’

hands.      Tr. 477.        With DNA, they cannot say who the DNA belongs to

conclusively, but rather who may not be excluded as the source. Tr. 478.
5
  The owner of the jacket was not identified at this time. However, the jacket sent for testing was a leather
jacket that was identified as belonging to Hayes. Ex. 42.

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       {¶33} Following the testimony of its seventeen witnesses, the State rested.

Tr. 480. All 79 exhibits of the State were admitted without objection. Tr. 480.

Hayes then presented his defense. The first witness for Hayes was Robby Baker

(“Baker”). Tr. 490-91. Baker testified that on the night of the incident, he and his

wife went with Hayes and Staci to Three Oaks. Tr. 491-92. He and his wife left

the bar around 1:30 a.m. Tr. 492. Hayes and Staci left before he did. Tr. 493.

When Baker and his wife went to leave, he realized that Staci had left her coat, so

he took it with them to return to Staci later. Tr. 495. As they were leaving, Baker

saw a car pulled over by law enforcement nearby. Tr. 495. They then left. Tr.

495. The next day Hayes came to his house to get the coat and they discussed the

car accident. Tr. 497-98. On cross-examination, Baker testified that he had been

parked out front. Tr. 501. He also testified that Staci was very intoxicated that

night. Tr. 501-02.

       {¶34} The second and final witness for Hayes was Staci. Tr. 503. Staci

testified that she and Hayes arrived at Three Oaks around 9:00 or 9:30 p.m. Tr.

504.   She admitted that there was an incident where she was behaving

inappropriately that Hayes had seen. Tr. 504. According to Staci, Hayes was not

angry, but joking and they were having a good time. Tr. 504-05. When they left

the bar, Baker walked them to the back door and she and Hayes left. Tr. 505.

When they were walking to the car, Hayes gave her the keys for her to drive. Tr.

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Case No. 13-13-21



507. When they were six to eight feet away from the car, three men “came around

from the left and started punching and hitting on my husband, knocked him to the

ground.” Tr. 507. Staci testified that the men were kicking and punching Hayes

while he was on the ground. Tr. 507. Staci then attempted to pull one of the men

off of him, but the man grabbed a hold of her and “slammed” her to the ground.

Tr. 508. When she got back up, Staci saw them still attacking Hayes, so she again

tried to pull one of the men off of Hayes. Tr. 508. Again, she was thrown to the

ground. Tr. 508. Then, the three men just quit striking Hayes, turned and walked

away. Tr. 509. Staci then helped Hayes into the passenger seat of the car, and

they left to go home. Tr. 509. Within 10 minutes, they were struck head on by

another car.   Tr. 510.    The police arrived, asked questions, and called an

ambulance to take Staci to the hospital. Tr. 511. At the hospital, she spoke to

Craig. Tr. 511. Although Staci was not able to speak to Hayes at the hospital, she

knew that he was being treated and that Craig was talking to him as well. Tr. 512-

13. Staci testified that at no point in the evening was Hayes angry with her. Tr.

513-14. Staci also testified that when they went to the police station later, they

attempted to make a report of being attacked outside the bar, but were told there

was no one available at that time. Tr. 514. Staci testified that Hayes did not stab

anyone and that she did not see anyone being stabbed in the parking lot. Tr. 515.



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Case No. 13-13-21



       {¶35} On cross-examination Staci admitted that she had consumed one or

two drinks right after work. Tr. 516. She also had one beer at dinner and multiple

drinks at Three Oaks. Tr. 517. Staci also admitted that she could not describe any

of the attackers and that she did not run inside the bar to ask for help. Tr. 517. As

to the photo line-up, Staci admitted that she did not return Craig’s calls to schedule

one. Tr. 519. Staci explained this on redirect by testifying that since her husband

was their suspect, she did not want to work with the police. Tr. 522.

       {¶36} Following Staci’s testimony, Hayes rested his case. Tr. 525. The

State chose not to put on any rebuttal witnesses. Tr. 525. On February 28, 2013,

the jury returned verdicts of guilty on both counts. Doc. 41. The trial court

accepted and journalized the verdicts on February 28, 2013. Doc. 41. The first

sentencing hearing was held on April 18, 2013, but was continued to resolve an

issue with restitution. Doc. 45. A second sentencing hearing was held on April

26, 2013, but the issue of restitution remained unresolved, so the hearing was

again continued. Doc. 47. The final sentencing hearing was held on May 24,

2013. Doc. 51. Following the hearing, the trial court sentenced Hayes to seven

years in prison on count one and five years in prison on count two, with the

sentences to run concurrently. Id. at 2. The trial court also ordered Hayes to pay

restitution in the amount of $6,633.12. Id. at 3. Hayes filed his timely notice of



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Case No. 13-13-21



appeal on May 28, 2013.        Doc. 54.     On appeal, Hayes raises the following

assignments of error.

                             First Assignment of Error

      [Hayes’] conviction was not supported by the manifest weight of
      the evidence.

                         Second Assignment of Error

      The counsel for [Hayes] provided ineffective assistance of
      counsel.

      {¶37} In the first assignment of error, Hayes claims that his conviction was

against the manifest weight of the evidence. “A reviewing court may find a

verdict to be against the manifest weight of the evidence even though legally

sufficient evidence supports it.” State v. Group, 98 Ohio St.3d 248, 2002-Ohio-

7247, ¶76, 781 N.E.2d 980.

      A reviewing court considering a manifest-weight claim “review
      [s] the entire record, weighs the evidence and all reasonable
      inferences, [and] considers the credibility of witnesses.” State v.
      Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 485 N.E.2d
      717. The question for the reviewing court is “whether in
      resolving conflicts in the evidence, the jury clearly lost its way
      and created such a manifest miscarriage of justice that the
      conviction must be reversed and a new trial ordered. The
      discretionary power to grant a new trial should be exercised only
      in the exceptional case in which the evidence weighs heavily
      against conviction.” Id. See Thompkins, 78 Ohio St.3d at 387, 678
      N.E.2d 541.




                                          -26-
Case No. 13-13-21



Id. at ¶77. Although the appellate court acts as a thirteenth juror, it still must give

due deference to the findings made by the jury.

       The fact-finder, being the jury, occupies a superior position in
       determining credibility. The fact-finder can hear and see as well
       as observe the body language, evaluate voice inflections, observe
       hand gestures, perceive the interplay between the witness and
       the examiner, and watch the witness' reaction to exhibits and the
       like. Determining credibility from a sterile transcript is a
       Herculean endeavor. A reviewing court must, therefore, accord
       due deference to the credibility determinations made by the fact-
       finder.

State v. Risch, 3d Dist. Wyandot No. 16-10-14, 2011-Ohio-3633, ¶5 (quoting

State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456 (1998)).

       {¶38} In this case, Hayes was charged with two counts of felonious assault

in violation of R.C. 2903.11(A)(2),(D)(1)(a). To obtain a conviction on these

charges, the State was required to prove beyond a reasonable doubt that Hayes had

1) knowingly, 2) caused or attempted to cause physical harm to another, 3) by

means of a deadly weapon, and 4) it occurred in Seneca County.                    R.C.

2903.11(A)(2).

       {¶39} The first count of the indictment alleged that Hayes committed

felonious assault against Armbruster. Armbruster testified that he went back to

help Seifert and as he was walking, he was stabbed. Seifert testified that he saw

Hayes pull something shiny out and stab Armbruster. Hayes admitted to having a

knife, but claims he lost it. A knife was found at the scene. When the DNA from

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Case No. 13-13-21



the knife was tested, the blade had a mix of DNA that was consistent with that of

Armbruster and Hayes. The DNA on the handle of the knife was consistent with

that of Hayes. Additionally, the blood found on Staci’s jeans was consistent with

that of Armbruster. The shirt, identified by Armbruster as the one he wore the

night of the incident was found bloody and in the back of Hayes’ car. Hayes had

no explanation as to how the shirt got there. Craig testified that Hayes told her he

was glad somebody got stabbed. Lang testified that Hayes told him that he hoped

Armbruster was hurt bad. In contradiction, Staci testified that Hayes was attacked

by three men and that he had not stabbed anyone. She seemed to be implying that

Armbruster and Seifert must have been two of the three men who attacked Hayes.

However, Craig testified that Hayes’ story of the attack was not consistent with the

physical evidence. Hayes’ version of events was also not consistent with the

testimony of Lovas who testified that she saw Hayes punching the white van,

which was identified as belonging to Armbruster. The evidence presented does

not weigh heavily against conviction and does not indicate that the jury lost its

way. Thus, the verdict as to count one is not against the manifest weight of the

evidence.

       {¶40} In the second count of the indictment, Hayes was charged with

committing felonious assault against Seifert. Unlike the first count where the

victim suffered physical harm, there was no allegation of physical harm to Seifert.

                                       -28-
Case No. 13-13-21



Instead, the State was relying on the fact that Hayes attempted to cause physical

harm to Seifert. Seifert did not testify that Hayes attempted to cause physical

harm to him with the knife.        However, there is evidence that this occurred.

Vallery identified Exhibits 11 and 12 as photographs of a jacket recovered from

Seifert. Tr. 191. Exhibit 11 shows that there is a defect in the jacket which could

be either a tear or a cut. Vallery also identified that jacket itself, Exhibit 38, as the

jacket worn by Seifert the night of the attack and testified that it was sent to BCII

for analysis.   Tr. 201.    Manasian testified that he had examined the jacket,

identified as belonging to Seifert and being worn the night of the incident.

Manasian testified that the defect in the jacket was the result of a cut, not a tear.

Tr. 438. In addition, Manasian examined fibers taken off the knife. Manasian

found multiple fibers on the knife blade which were consistent with that found in

the jacket. Tr. 438. There was also testimony by Jimenez that the only DNA

found on the handle of the knife was consistent with that of Hayes. Although

there was no direct evidence that Hayes had attempted to harm Seifert with the

knife, there was circumstantial evidence to that fact. A reasonable juror could

infer from the evidence that Hayes had attempted to cause physical harm to Seifert

with the knife by the fact that there was a cut to the jacket worn by Seifert at the

time of the incident and the knife that belonged to Hayes, with only Hayes’ DNA

on the handle, had matching fibers on its blade. The evidence presented does not

                                          -29-
Case No. 13-13-21



weigh heavily against conviction and does not indicate that the jury lost its way.

Thus, the verdicts are not against the manifest weight of the evidence. Therefore,

the first assignment of error is overruled.

       {¶41} In the second assignment of error, Hayes claims that his trial counsel

was ineffective.

       In evaluating whether a petitioner has been denied effective
       assistance of counsel, this court has held that the test is “whether
       the accused, under all the circumstances, * * * had a fair trial
       and substantial justice was done.” State v. Hester (1976), 45
       Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of
       the syllabus. When making that determination, a two-step
       process is usually employed.          “First, there must be a
       determination as to whether there has been a substantial
       violation of any of defense counsel's essential duties to his client.
       Next, and analytically separate from the question of whether the
       defendant's Sixth Amendment rights were violated, there must
       be a determination as to whether the defense was prejudiced by
       counsel's ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d
       391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated on
       other grounds (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d
       1154.

       On the issue of counsel's ineffectiveness, the petitioner has the
       burden of proof, since in Ohio a properly licensed attorney is
       presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
       St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; **915 State v.
       Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d
       at 822.

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905.

       “Judicial scrutiny of counsel's performance is to be highly
       deferential, and reviewing courts must refrain from second-
       guessing the strategic decisions of trial counsel. To justify a

                                         -30-
Case No. 13-13-21



       finding of ineffective assistance of counsel, the appellant must
       overcome a strong presumption that, under the circumstances,
       the challenged action might be considered sound trial strategy.”
       (Citation omitted.)

State v. Sallie, 81 Ohio St.3d 673, 674, 693 N.E.2d 267 (1998).


       {¶42} In support of his argument, Hayes claims that his counsel was

ineffective for 1) failing to have other items of evidence tested and 2) for failing to

raise the affirmative defense of self-defense. An attorney’s determination of what

evidence to present at trial is a matter of trial strategy. State v. Hester, 10th Dist.

Franklin No. 02AP-401, 2002-Ohio-6966. Although Hayes claims that counsel

should have had various items tested for additional DNA, there is nothing to

suggest that it would have been helpful. For example, if his counsel had requested

that the blood from Hayes hands be tested and the results indicate that the blood

belonged to Armbruster, how would that have helped his case? If the results

would have come back and shown that the blood was his own, that would have

only shown that he was injured, which the jury already knew. This would not

have shown that he did not stab Armbruster, only that the swab was his own

blood. Additional testing would not have changed the fact that Hayes’ knife was

found at the scene with only DNA consistent with Hayes on the handle and with a

mixture of DNA consistent with Armbruster and Hayes on the blade. Without



                                         -31-
Case No. 13-13-21



some showing that the missing evidence would have assisted in the presentation of

Hayes’ defense, this court cannot second guess the trial strategy of counsel.

       {¶43} Hayes also claims that counsel was ineffective for failing to raise a

claim of self-defense. When a claim of self-defense conflicts with the defense

presented, it is sound trial strategy not to raise a claim of self-defense. State v.

Marshall, 175 Ohio App.3d 488, 2008-Ohio-955, ¶86, 887 N.E.2d 1227 (1st Dist.).

In this case, Hayes claimed, through his statements to the police and the testimony

of Staci, that the events did not happen. Hayes claimed that he was attacked in the

parking lot by three men, but that he never pulled out his knife or stabbed anyone.

This argument would have been contradictory to an argument that there was a

fight, but the aggressor was Seifert and Armbruster, so he stabbed them to protect

himself or Staci. Thus, the decision not to request an instruction on self-defense

was a matter of trial strategy.

       {¶44} Since trial counsel did not err by not requesting additional testing and

not raising self-defense as an affirmative defense, there was no violation of

counsel’s duties. The first prong of the test is not met. In addition, appellate

counsel has not presented any evidence to indicate that the outcome would have

been different if trial counsel had done the above. Thus, the second prong of the

test is also not met. The second assignment of error is overruled.



                                        -32-
Case No. 13-13-21



       {¶45} Having found no error prejudicial to appellant as to the particulars of

the errors assigned and argued, the judgment of the Court of Common Pleas of

Seneca County is affirmed.

                                                               Judgment Affirmed

PRESTON and ROGERS, J.J., concur.

/hlo




                                       -33-
