State v. Cunningham

2024 Ohio 888

• Court: Ohio Court of Appeals
• Decided: March 11, 2024
• Docket: 2023-A-0039
• Status: Published

Opinion

[Cite as State v. Cunningham, 2024-Ohio-888.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

STATE OF OHIO, CASE NO. 2023-A-0039

Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas

MICHAEL JOSEPH CUNNINGHAM, Trial Court No. 2022 CR 00554 Defendant-Appellant.

OPINION

Decided: March 11, 2024 Judgment: Affirmed

Colleen M. O’Toole, Ashtabula County Prosecutor, and Matthew J. Hebebrand, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff- Appellee).

Malcolm Stewart Douglas, 113 North Chestnut Street, Jefferson, OH 44047 (For Defendant-Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, Michael Cunningham, appeals from his conviction for

Aggravated Assault, a fourth-degree felony in violation of R.C. 2903.12(A)(1). Appellant

has asserted one assignment of error, arguing that trial counsel rendered ineffective

assistance of counsel by failing to file a Crim.R. 12.2 Notice of Self-Defense and failing

to properly assert a claim of self-defense.

{¶2} Having reviewed the record and the applicable caselaw, we find appellant’s

assignment of error is without merit. Trial counsel did not render deficient performance. In a separate, concurrent Felonious Assault case where appellant was represented by

the same counsel, his counsel filed a Crim.R. 12.2 Notice of Self-Defense but chose not

to do so in this case. Second, appellant’s statements to police on the night of the assault

and testimony from appellant’s witness were in conflict and likely incompatible with a

meritorious self-defense claim. Finally, appellant’s trial counsel argued for a lesser

included offense of Aggravated Assault, and it is not an unreasonable trial tactic to pursue

a defense seeking a conviction for a lesser included offense to the exclusion of a complete

defense such as self-defense to avoid confusing the jury.

{¶3} Therefore, we affirm the judgment of the Ashtabula County Court of

Common Pleas.

Substantive and Procedural History

{¶4} On November 3, 2022, appellant was indicted on one count of Felonious

Assault, a second-degree felony in violation of R.C. 2903.11(A)(1).

{¶5} The State has noted that appellant was also indicted for a separate

Felonious Assault offense in 2022 CR 514 on the same day relating to an incident with a

different victim. Appellant had the same counsel in both cases, both proceeded to

arraignment on the same day, and both were originally scheduled for the same trial date

of March 3, 2023.

{¶6} In the present case, on February 23, 2023, appellant’s trial counsel filed a

“Response to Trial Management Order.” On the same date, in 2022 CR 514 the same

trial counsel filed a “Response to Trial Management Order” and also filed a “Motion for

Leave to File notice of Self Defense” and a “Rule 12.2 Notice of Self Defense.” The trial

court granted the motion for leave to file.

Case No. 2023-A-0039 {¶7} Both jury trials were continued to April 28, 2023. On the trial date, the State

elected to proceed to trial on the present case. The following summarizes the testimony

and evidence:

{¶8} Sergeant Scott Daniels, of the Ashtabula County Sheriff’s Office, testified

that he was dispatched to The Inn at West Andover for an assault report. He arrived at

2:52 a.m. and found Maynard in the restroom with a blood-soaked towel against the back

of her hair. He said Maynard had blonde hair and it was soaked red from blood and he

identified a one-inch laceration on her head. He also noticed a large lump on the left side

of her face that was beginning to form a bruise and a scratch on her chin. He later

identified blood spots in the parking lot.

{¶9} Daniels’ investigation revealed that appellant arrived at the bar around 1:30

a.m. While there, an altercation began with an unidentified male and bar employees

separated them. At closing time, appellant and Maynard left the bar and the assault

occurred.

{¶10} Daniels went to appellant’s house after the incident to interview him.

Appellant told Daniels that Maynard had called him names at the bar, that when they went

outside, she jumped on his back and pulled on his hoodie. He said several people pulled

her off of him.

{¶11} Maynard testified that she was at The Inn with her niece on July 9 and into

the morning of July 10, 2022. She said that she was acquainted with appellant because

she had bought a car and scrap from him. Maynard said that when he arrived at the bar,

he began making comments about sleeping with her to other bar patrons. She asked him

why he had made those comments and appellant responded, “I haven’t yet, but I’m going

Case No. 2023-A-0039 to.” She said he continued to be “ignorant from that point on.” She said he tried to pick

her up off the bar stool and also sprayed her niece with cologne.

{¶12} Maynard said the bartenders told appellant he needed to leave, appellant

objected, and instead of leaving he went to the other end of the bar. She said appellant

became ignorant with someone else and then the bartenders made him go outside.

Maynard testified that she left the bar about an hour later. Her niece left through the front

door while she left through the side door.

{¶13} She said that when she left, she saw appellant standing by the door and he

made rude comments to her. She said they exchanged words briefly and she turned her

back to him to walk away. Maynard denied ever jumping on him. She said appellant

approached her from behind and she grabbed around at him and caught his hoodie

drawstrings in her hand. She said that was when appellant hit her, knocked her out, and

that from that point, she did not remember what happened until the police arrived. She

said she went to the hospital and was diagnosed with a concussion, a fractured eye

socket, fractured jawbone, and received 10 staples in the back of her head.

{¶14} On cross-examination, Maynard denied calling appellant a “n*****.”

However, when pressed, she said she did not “remember calling him a n*****” and said “I

don’t think that I did. * * * I don’t think that if I did [call him that,] that would justify him

breaking bones in my face either.”

{¶15} The State rested and appellant called one witness on his behalf.

{¶16} Darin Knierman testified that he is acquainted with appellant. He said he

was at the bar during the evening and did not notice appellant cause any issues or do

any of the things Maynard described. He said he went to the parking lot around 2:15 a.m.

Case No. 2023-A-0039 and soon after saw a “kid” talking about wanting to fight with appellant. This caught

Knierman’s attention, and he watched as the kid went into the front door of the bar. At the

same time, appellant exited the side door of the bar without encountering the kid.

Knierman said that Maynard came out from the bar about one minute later.

{¶17} Knierman said that when Maynard came out, she started “barking stuff in

[appellant’s] face, like right from the get.” He said he could tell it was “an aggressive tone,

but I couldn’t make out words.” He saw appellant push Maynard back and said she “came

right back at him.” Knierman said that this was when appellant struck Maynard one time

and she fell to the ground. On cross-examination, Knierman said that it would be a lie if

someone said Maynard jumped on appellant’s back and started punching him.

{¶18} The trial court gave an instruction on the lesser included offense of

Aggravated Assault.

{¶19} In closing, the State argued appellant’s statement to the police that Maynard

jumped on his back was at odds with Knierman’s testimony that Maynard charged at

appellant. The State offered that neither appellant’s statement to Daniels, nor Knierman’s

testimony was credible, and argued that Maynard was the one telling the truth.

{¶20} Appellant’s trial counsel highlighted the cause appellant would have to be

under the influence of sudden passion or in a sudden fit of rage at Maynard. Counsel

noted that Maynard never denied calling appellant a “n*****” and said calling someone

that “is just about the most vile word in humanity. And if someone accuses you of saying

it you say, I absolutely did not say that. I don’t use that word. That never would have come

out of my mouth. That’s not what she said though.”

Case No. 2023-A-0039 {¶21} The jury found appellant not guilty of Felonious Assault, and guilty of the

lesser included offense of Aggravated Assault, a fourth-degree felony in violation of R.C.

2903.12(A)(1).

{¶22} On June 14, 2023, the trial court sentenced appellant to 17 months in prison

and to pay $20,805.96 to the victim in restitution.

{¶23} Appellant timely appealed, raising one assignment of error.

Assignment of Error and Analysis

{¶24} Appellant’s sole assignment of error states:

{¶25} “[1.] Trial Counsel Prejudiced the Appellant by Failing to Properly Assert a

Claim of Self-Defense According to the Criminal Rules.”

{¶26} In reviewing an ineffective assistance of counsel claim, the standard we

apply is “‘whether counsel's conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just result.’”

State v. Story, 11th Dist. Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶ 49, quoting

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An

appellant must demonstrate (1) his counsel was deficient in some aspect of his

representation, and (2) there is a reasonable probability, were it not for counsel's errors,

the result of the proceedings would have been different. Strickland, at 669. “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. A failure

to “satisfy one prong of the Strickland test negates a court’s need to consider the other.”

State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, citing

Strickland, at 697.

Case No. 2023-A-0039 {¶27} An appellant “must be able to demonstrate that the attorney made errors so

serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth

Amendment, and that he was prejudiced by the deficient performance.” Story, at ¶ 49,

quoting State v. Batich, 11th Dist. Ashtabula No. 2006-A-0031, 2007-Ohio-2305, ¶ 42.

Ohio courts presume that every properly licensed attorney is competent, and therefore a

defendant bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d

1128 (1985). “Counsel’s performance will not be deemed ineffective unless and until

counsel’s performance is proved to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel’s performance.” State v.

Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). “Debatable trial tactics generally

do not constitute a deprivation of effective counsel.” State v. Phillips, 74 Ohio St.3d 72,

85, 656 N.E.2d 643 (1995). “Failure to do a futile act cannot be the basis for claims of

ineffective assistance of counsel, nor could such a failure be prejudicial.” State v.

Henderson, 8th Dist. Cuyahoga No. 88185, 2007-Ohio-2372, at ¶ 42.

{¶28} Crim.R. 12.2 provides:

Whenever a defendant in a criminal case proposes to offer evidence or argue self-defense, defense of another, or defense of that person's residence, the defendant shall, not less than thirty days before trial in a felony case and fourteen days before trial in a misdemeanor case, give notice in writing of such intent. The notice shall include specific information as to any prior incidents or circumstances upon which defendant intends to offer evidence related to conduct of the alleged victim, and the names and addresses of any witnesses defendant may call at trial to offer testimony related to the defense. If the defendant fails to file such written notice, the court may exclude evidence offered by the defendant related to the defense, unless the court determines that in the interest of justice such evidence should be admitted.

{¶29} R.C. 2901.05(B)(1) provides, in relevant part, “A person is allowed to act in

self-defense * * *. If, at the trial of a person who is accused of an offense that involved the 7

Case No. 2023-A-0039 person’s use of force against another, there is evidence presented that tends to support

that the accused person used the force in self-defense * * *, the prosecution must prove

beyond a reasonable doubt that the accused person did not use the force in self-defense

* * *.”

{¶30} “A self-defense claim includes the following elements: ‘(1) that the

defendant was not at fault in creating the situation giving rise to the affray; (2) that the

defendant had a bona fide belief that he [or she] was in imminent danger of death or great

bodily harm and that his [or her] only means of escape from such danger was in the use

of such force; and (3) that the defendant did not violate any duty to retreat or avoid the

danger.’” State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562, 216 N.E.3d 653, ¶

14, quoting State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002).

{¶31} However, this case involved the use of nondeadly force. In such cases,

there is no requirement that a person retreat to avoid the danger, even if such retreat is

possible. State v. Petway, 2020-Ohio-3848, 156 N.E.3d 467, ¶ 43 (11th Dist.).

{¶32} Under R.C. 2901.05(B)(1), “[i]f, at the trial of a person who is accused of an

offense that involved the person's use of force against another, there is evidence

presented that tends to support that the accused person used the force in self-defense,

defense of another, or defense of that person's residence,” the State has the burden of

persuasion to disprove at least one of the elements of self-defense beyond a reasonable

doubt. R.C. 2901.05(B)(1); Petway at ¶ 55. “[A] manifest-weight-of-the-evidence standard

of review applies to the state’s burden of persuasion.” Messenger at ¶ 26.

{¶33} It is a reasonable trial strategy to argue self-defense and not request an

instruction on an inferior degree offense or lesser included offense.” State v. Baker, 111

Case No. 2023-A-0039 Ohio App.3d 313, 324, 676 N.E.2d 143 (10th Dist.1996); State v. Wallace-Lee, 2nd Dist.

Greene No. 2019-CA-19, 2020-Ohio-3681, ¶ 60. The inverse is also true. A reasonable

trial strategy might be to not argue for a complete defense and instead argue for a lesser

included offense.

{¶34} Here, the record demonstrates that trial counsel made a strategic decision

to not pursue a self-defense claim. First, the State aptly notes that in a separate,

concurrent Felonious Assault case with the same trial counsel, appellant’s counsel sought

and obtained leave to file a Crim.R. 12.2 Notice of Self-Defense. Trial counsel was aware

of the Criminal Rules and made a decision to pursue a self-defense claim in one Felonious

Assault case while not doing so in the other concurrently scheduled matter. Further,

counsel sought and obtained leave to file the Crim.R. 12.2 Notice of Self-Defense in that

other matter. This strongly suggests that counsel engaged in trial strategy and made a

tactical decision not to pursue a self-defense claim in the present matter.

{¶35} Second, Daniels testified that he interviewed appellant and appellant

claimed that Maynard jumped on his back and was hitting him. However, Knierman’s

testimony was at odds with this claim. Knierman specifically denied that Maynard jumped

on appellant and said that she got in appellant’s face, that he pushed her away, and that

she charged at him before appellant struck her. These conflicting accounts were likely

incompatible with a meritorious self-defense claim.

{¶36} Finally, appellant’s trial counsel successfully argued for a lesser included

offense of Aggravated Assault, and heavily relied on Maynard’s failure to deny calling

appellant a “n*****.” Such evidence, if believed by the jury would be compatible with a

conviction for Aggravated Assault but would not be compatible with a complete defense

Case No. 2023-A-0039 such as self-defense. Further, choosing one theory of the case to the exclusion of another

is reasonable trial strategy to avoid confusing the jury.

{¶37} Accordingly, appellant’s sole assignment of error is without merit.

{¶38} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas is affirmed.

EUGENE A. LUCCI, P.J.,

MATT LYNCH, J.,

concur.

Case No. 2023-A-0039