[Cite as State v. Klafczynski, 2020-Ohio-3221.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 18CA0084-M
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE BENJAMIN KLAFCZYNSKI COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 17CR0268
DECISION AND JOURNAL ENTRY
Dated: June 8, 2020
TEODOSIO, Presiding Judge.
{¶1} Appellant, Benjamin Klafczynski, appeals from his conviction for tampering with
evidence in the Medina County Court of Common Pleas. This Court affirms.
I.
{¶2} Mr. Klafczynski was a teacher and golf coach at Wadsworth High School (“the
school”). A female student of the school (“L.S.”) began babysitting Mr. Klafczynski’s son, so the
two exchanged phone numbers and purportedly became friends on the Snapchat app. L.S.’
boyfriend (“J.T.”) was on the school’s golf team. According to L.S., Mr. Klafczynski would
occasionally comment on how nice she looked or how nice her breasts or dress looked. During
one particular golf match, Mr. Klafczynski accompanied L.S. to the clubhouse bar to get some
water for the team, and he allegedly said to her, “If I would have known this was our first date, I
would have dressed nicer.” According to L.S., Mr. Klafczynski would hug her frequently, “maybe
five times a week.” She claimed that, while students were playing Mario Kart in class one day, 2
Mr. Klafczynski touched her upper, inner thigh. L.S. further alleged that Mr. Klafczynski
exchanged inappropriate pictures with her through Snapchat, including Mr. Klafczynski sending a
shirtless picture of himself, and L.S. sending a picture of herself in a bra and panties and a nude
picture of her buttocks and vagina. L.S. told both J.T. and a female friend about what happened,
and Mr. Klafczynski soon talked to both J.T. and L.S. separately about how to move forward.
{¶3} Once the school and police were made aware of the allegations, they launched an
investigation. When Mr. Klafczynski’s phone was searched pursuant to a warrant, no illicit photos,
contact information for L.S., or Snapchat app were found on his phone. Police did, however,
discover Snapchat logs on the phone. When the school’s principal searched Mr. Klafczynski’s
desk, he found a Post-it note allegedly written in Mr. Klafczynski’s handwriting, stuck to the
bottom of a box of Mr. Klafczynski’s business cards, that listed, numerically: (1) Coming over?;
(2) Snapchat; delete; last pics / “good” message; (3) Moving forward.
{¶4} Mr. Klafczynski was charged with tampering with evidence, sexual imposition, and
illegal use of a minor in nudity-oriented material or performance. After a jury trial, he was found
guilty of tampering with evidence, but not guilty of the remaining two charges. The trial court
sentenced him to five years of community control.
{¶5} Mr. Klafczynski now appeals from his conviction and raises five assignments of
error for this Court’s review. We have reorganized his assignments of error to facilitate our review.
II.
ASSIGNMENT OF ERROR FOUR
THE JURY’S FINDING OF GUILT AND THE ACCEPTANCE OF THE FINDING OF GUILT IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. 3
{¶6} In his fourth assignment of error, Mr. Klafczynski argues that his conviction for
tampering with evidence was not supported by sufficient evidence and was against the manifest
weight of the evidence. We disagree.
{¶7} “A challenge to the sufficiency of the evidence concerns the State’s burden of
production, while a challenge to the manifest weight of the evidence concerns the State’s burden
of persuasion.” In re R.H., 9th Dist. Summit No. 28319, 2017-Ohio-7852, ¶ 25, citing State v.
Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook, J., concurring). Although sufficiency and
manifest weight are two separate, legally distinct arguments and should be argued separately, Mr.
Klafczynski has chosen to argue them together in his brief, and we will therefore address them
together. See, e.g., State v. Gilbert, 9th Dist. Lorain No. 17CA011209, 2018-Ohio-1883, ¶ 5; State
v. Dean, 9th Dist. Lorain No. 18CA011290, 2019-Ohio-1391, ¶ 5.
{¶8} Whether a conviction is supported by sufficient evidence is a question of law, which
this Court reviews de novo. Thompkins at 386. “‘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.’” Id., quoting State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, “we do not resolve evidentiary
conflicts or assess the credibility of witnesses, because these functions belong to the trier of fact.”
State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.
{¶9} When reviewing a manifest weight challenge,
an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. 4
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the
basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth
juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.” State v. Tucker,
9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary power “should be
exercised only in the exceptional case in which the evidence weighs heavily against the
conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist.1983). See also Otten at 340.
{¶10} Mr. Klafczynski was convicted of tampering with evidence under R.C.
2921.12(A)(1), which states: “No person, knowing that an official proceeding or investigation is
in progress, or is about to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove
any record, document, or thing, with purpose to impair its value or availability as evidence in such
proceeding or investigation * * *.”
{¶11} R.C. 2901.22(B) states:
A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
“A person acts purposely when it is the person’s specific intention to cause a certain result, or,
when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what
the offender intends to accomplish thereby, it is the offender’s specific intention to engage in
conduct of that nature.” R.C. 2901.22(A). Intent, lying as it does within the privacy of a person’s
own thoughts, is not susceptible of objective proof, but can be determined from the surrounding
facts and circumstances, and persons are presumed to have intended the natural, reasonable and 5
probable consequences of their voluntary acts. State v. Garner, 74 Ohio St.3d 49, 60 (1995).
“Likelihood is measured at the time of the act of alleged tampering.” State v. Straley, 139 Ohio
St.3d 339, 2014-Ohio-2139, ¶ 19. The State need not set forth direct evidence of a tampering with
evidence offense; circumstantial evidence may suffice. State v. Glunt, 9th Dist. Medina No.
13CA0050-M, 2014-Ohio-3533, ¶ 8.
{¶12} Mr. Klafczynski argues that the State failed to demonstrate that any information
was tampered with or deleted from his cell phone. He also argues that the Snapchat app was not
on his phone when it was searched and no evidence was presented as to when the Snapchat app
was deleted from his phone.
{¶13} L.S. testified as to how the Snapchat app works or operates. Although Mr.
Klafczynski contends in another assignment of error that L.S. should not have been permitted to
testify as to how Snapchat works, the Supreme Court of Ohio has emphasized that “the interest in
the administration of justice dictates that the appellate court review the issue of sufficiency in
consideration of all evidence presented by the State in its case in chief, whether such evidence was
properly admitted or not.” State v. Dixon, 9th Dist. Medina Nos. 11CA0065-M and 11CA0087-
M, 2012-Ohio-4428, ¶ 18, citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, ¶ 19.
{¶14} At trial, L.S. testified about Snapchat as follows: “So how it works is you take a
picture, and it’s supposed to disappear within a few seconds and you can’t see it again. Same with
messages, unless you hold it down to save it.” She testified that pictures and messages are saved
“[i]f you take a screenshot on your phone.” L.S. elaborated further that “[w]hen you take a
screenshot on Snapchat, it sends, like, a notification to your phone saying that that person had
screenshotted your picture or message or anything like that.” L.S. testified that she had sent
pictures of herself to Mr. Klafczynski through Snapchat, including a picture of her in her bra and 6
panties and a nude picture of her buttocks and vagina. She then testified that she received
notifications from Snapchat that Mr. Klafczynski had saved some of her pictures, although she
admittedly could not recall exactly which pictures he had saved.
{¶15} Many screenshots of Mr. Klafczynski’s Snapchat conversations with L.S., taken
from L.S.’ phone, were entered into evidence at trial. The conversations are somewhat incomplete,
and L.S. testified that she did not save some of her messages to Mr. Klafczynski in time, before
Snapchat automatically deleted them. Some of Mr. Klafczynski’s messages appear to discuss the
importance of deleting information from their phones, including: “It would be awful if someone
had are (sic) phones”; “Deleting this lol”; “Btw those messages won’t delete permanently”; “I
deleted the convo but when I search your name it comes back”; and “If I delete you then they don’t
show for now[.]” At one point, Mr. Klafczynski says, “No pics though,” which L.S. testified was
in regard to their Snapchat pictures being saved on his phone but not saved in the Snapchat app.
Mr. Klafczynski also makes several comments seemingly instructing L.S. on how to delete things
off of her own phone, including: “It (sic) saying if u tap the message it saves. The red and blue
lines have to be thin not thick for them to delete”; “Try holding them down”; “Are they gone for
you if u search me under messages?”; “Are they deleted?”; and “Ok I’ll figure it out. I’ll show ya
tomorrow and I (sic) help lol[.]” L.S. testified that these particular comments were in reference to
Mr. Klafczynski taking her phone and deleting anything she had saved on it. She testified that Mr.
Klafczynski, as her teacher, could take her phone at any point, and that he, in fact, did take her
phone to try to delete “stuff.”
{¶16} On December 5, 2016, around noon, J.T. surreptitiously recorded on his own phone
his conversation with Mr. Klafczynski about what happened between L.S. the teacher, and his
three videos were introduced into evidence. J.T. tells Mr. Klafczynski that L.S. admitted “it” to 7
him and he saw the Snapchat messages. He explains that before he does something he might regret
he wanted to first talk to Mr. Klafczynski, man to man. Mr. Klafczynski replies, “I appreciate that,
’cause I like my job and I would never do anything to put my job in jeopardy * * * as long as we’re
squared with that.” Mr. Klafczynski can be heard repeatedly offering his phone to J.T. to show
him that he does not have Snapchat.
{¶17} A female friend of L.S.’ recorded a separate video of a phone call between Mr.
Klafczynski and L.S. on December 5, 2016, which was also entered into evidence. In that phone
call, while on speakerphone, Mr. Klafczynski tells L.S. he wanted to “make sure that the
conversation was deleted.” He also says, “I deleted my Snapchat, so I told [J.T.] I didn’t have that,
just so you know.”
{¶18} Officer Joshua Cooper of the Wadsworth Police Department, who specializes in
digital forensics, testified at trial as to his extensive training and certifications. He testified that he
used two separate Cellebrite programs while completing both logical and file system extractions
of data from Mr. Klafczynski’s cell phone. According to Officer Cooper, the Snapchat app was
not installed on Mr. Klafczynski’s phone when he searched it, but he found an email regarding a
password change for Snapchat. He also found fifteen entries or logs in the phone’s database when
he searched for “Snapchat,” which he testified meant Snapchat had been used on the phone.
Officer Cooper did not discover any photos on the phone of Mr. Klafczynski shirtless, nor did he
find any photos of L.S. either nude or in her bra and panties. He did, however, find picture files
in the JPEG format which contained zero kilobytes of data. He testified that this indicated there
had been pictures there which were no longer there. According to Officer Cooper, the last entry
or log for Snapchat in Mr. Klafczynski’s phone occurred on December 4, 2016, at 7:29 P.M. He
testified that that was the last time the phone’s data was being used for the Snapchat app. 8
{¶19} The school’s principal, Steve Moore, testified that he first learned of the allegations
in this case when he spoke to L.S., her mother, and Dr. Andrew Hill (“the superintendent”) on
December 5, 2016. The superintendent placed Mr. Klafczynski on paid administrative leave that
same night and they called the police. Principal Moore testified that both the school and the police
began investigations into Mr. Klafczynski’s conduct. The principal then went to Mr. Klafczynski’s
classroom to collect his belongings and found a Post-it note in the teacher’s desk drawer. The note
was stuck to the bottom of a box of Mr. Klafczynski’s business cards. Principal Moore testified
that he is familiar with Mr. Klafczynski’s handwriting, and that he recognized the handwriting on
the note to be Mr. Klafczynski’s. The note was entered into evidence and reads: (1) Coming over?;
(2) Snapchat; delete; last pics / “good” message; (3) Moving forward. Principal Moore also
testified that Mr. Klafczynski resigned before the school’s investigation could “play out.” He
turned any information that he obtained over to the police for their criminal investigation.
{¶20} Based on our review of the record, and in viewing the evidence in a light most
favorable to the prosecution, we determine that the State presented sufficient evidence, if believed,
that Mr. Klafczynski committed the offense of tampering with evidence. L.S. testified that she
sent illicit photos to Mr. Klafczynski through Snapchat, which were saved by Mr. Klafczynski.
The State presented evidence of communications between Mr. Klafczynski and L.S. regarding Mr.
Klafczynski deleting Snapchat and other data from his phone. Mr. Klafczynski admits being
appreciative when J.T. talks to him first about the situation because he “like[s] [his] job.” Although
neither Snapchat nor any illicit photos of L.S. remained on his phone when it was searched by
police, evidence was presented that Snapchat had, in fact, been used on Mr. Klafczynski’s phone
up until the night of December 4, 2016. He was placed on paid administrative leave on the
following day. A Post-it note found in Mr. Klafczynski’s desk included apparent reminders 9
regarding Snapchat of “delete” and “last pics.” Although Mr. Klafczynski was ultimately acquitted
of the sexual imposition and illegal use of a minor in nudity-oriented material or performance
charges, both the school and the police immediately began investigations once those allegations
were brought to their attention.
{¶21} Thus, the evidence presented at trial, if believed, demonstrated that Mr.
Klafczynski, knowing that an official proceeding or investigation was about to be or was likely to
be instituted, deleted data from his phone to purposefully impair its value or availability as
evidence in such proceeding or investigation. This Court therefore concludes that a rational trier
of fact could have reasonably determined all of the elements of tampering with evidence were
proven beyond a reasonable doubt. See Jenks at paragraph two of the syllabus.
{¶22} Regarding his challenge to the manifest weight of the evidence, Mr. Klafczynski
argues that the evidence presented at trial demonstrated that the Snapchat app itself automatically
deletes images and messages; thus, he could not have deleted such data himself. He appears to
concede, however, that this automatic deletion by the app occurs “unless the user saved it.” He
also offers no explanation for how this argument extends to the deletion of the Snapchat app itself.
{¶23} L.S. did testify that Snapchat pictures and messages disappear from the app within
seconds once sent and cannot be retrieved again. But, she also testified that users may choose to
screenshot or save pictures and messages, and the app thereafter sends a notification to the sender
that the picture or message was saved. She further testified that she did, in fact, receive Snapchat
notifications that Mr. Klafczynski had saved some of her pictures. The evidence also showed that
Mr. Klafczynski made many comments to L.S. regarding deleting Snapchat from his phone and
deleting data from both of their phones. L.S. testified that Mr. Klafczynski, in fact, took her phone 10
at one point and tried to delete “stuff.” The school’s principal also found a note to delete Snapchat
and “last pics” in Mr. Klafczynski’s school desk drawer.
{¶24} In reviewing the entire record, weighing the evidence and all reasonable inferences,
and considering the credibility of witnesses, we cannot say that the trier of fact clearly lost its way
and created such a manifest miscarriage of justice that Mr. Klafczynski’s conviction must be
reversed. See Otten, 33 Ohio App.3d at 340. Mr. Klafczynski has also not shown how this is an
exceptional case in which the evidence weighs heavily against the conviction. See Thompkins, 78
Ohio St.3d at 387.
{¶25} Overall, we cannot say that Mr. Klafczynski’s conviction was based on insufficient
evidence or was against the manifest weight of the evidence. Mr. Klafczynski’s fourth assignment
of error is therefore overruled.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT VIOLATED MR. KLAFCZYNSKI’S CONSTITUTIONAL RIGHTS WHEN IT DENIED MR. KLAFCZYNSKI’S MOTION TO EXAMINE EXCULPATORY EVIDENCE.
{¶26} In his first assignment of error, Mr. Klafczynski argues that the trial court erred in
denying his request for an independent examination of L.S.’ cell phone. We disagree.
{¶27} “A trial court’s resolution of discovery issues in criminal matters is reviewed for an
abuse of discretion.” State v. Sadeghi, 9th Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 14.
“The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the
court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). When applying an abuse of discretion standard, a reviewing court is
precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State
Med. Bd., 66 Ohio St.3d 619, 621 (1993). 11
{¶28} If the State withholds material, exculpatory evidence, it offends a criminal
defendant’s due process rights. State v. Charlton, 9th Dist. Lorain No. 12CA010206, 2014-Ohio-
1330, ¶ 32, citing Brady v. Maryland, 373 U.S. 83 (1963). “‘There are three components of a true
Brady violation: The evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued.’” State v. Jalowiec, 9th Dist.
Lorain No. 14CA010548, 2015-Ohio-5042, ¶ 31, quoting Strickler v. Greene, 527 U.S. 263, 281-
282 (1999). “It is [the] [d]efendant’s burden to establish that the evidence is both favorable and
material and that there is reasonable probability that the outcome would have been different if the
evidence had been provided.” State v. Whalen, 9th Dist. Lorain No. 08CA009317, 2008-Ohio-
6739, ¶ 8.
{¶29} Mr. Klafczynski filed a pretrial motion for an independent forensic examination of
both his phone and L.S.’ phone, and the trial court held a hearing on the matter. Although the trial
court ultimately permitted an independent forensic examination of Mr. Klafczynski’s own phone,
it denied his motion to the extent that he sought to have L.S. turn over her phone for his
examination.
{¶30} Mr. Klafczynski argues that L.S.’ phone contained material and exculpatory
evidence, e.g., “communications” and nude pictures that may or may not be there. Interestingly
enough, he also claims that he should have been permitted to examine the phone “to determine if
the phone contained any exculpatory information.” (Emphasis added.). “[A] defendant cannot
establish a due process violation by speculating about the existence, content, and disposition of
evidence.” Jalowiec at ¶ 49. 12
{¶31} This Court also fails to see how any potential evidence retrieved from L.S.’ phone
would be either exculpatory or material to Mr. Klafczynski’s tampering with evidence conviction.
“Exculpatory evidence” is evidence favorable to the accused which, if disclosed and used
effectively, may make the difference between conviction and acquittal. Whalen at ¶ 8.
Undisclosed evidence is “material” if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. Jalowiec at ¶ 31.
{¶32} Mr. Klafczynski was convicted of tampering with evidence based on allegations
that he deleted evidence off of his own phone. It follows that any potential evidence recovered
from L.S.’ phone would neither exculpate Mr. Klafczynski from the crime of tampering with
evidence on his own phone nor establish a reasonable probability that a different result would have
occurred at trial. The results of any examination of L.S.’ phone would not be favorable to Mr.
Klafczynski. If illicit communications and pictures were found on L.S.’ phone, such a discovery
would, perhaps, provide even more evidence of Mr. Klafczynski’s guilt. If her phone was instead
devoid of any such communications and photos, the absence of such evidence would still bear no
effect on whether Mr. Klafczynski tampered with evidence on his own phone.
{¶33} Because Mr. Klafczynski has not demonstrated how this speculative evidence
would be favorable or material and has not shown a reasonable probability that the outcome would
have been different if the evidence had been provided, we cannot say that the trial court erred or
abused its discretion in denying his motion to examine L.S.’ phone for exculpatory evidence. See
Whalen at ¶ 8.
{¶34} Mr. Klafczynski’s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING TESTIMONY REGARDING SNAPCHAT FROM A WITNESS WHEN THERE 13
WAS A LACK OF FOUNDATION AND LACK OF QUALIFICATION OF THE TESTIFYING WITNESS.
{¶35} In his second assignment of error, Mr. Klafczynski argues that the trial court erred
in permitting L.S. to testify about “the procedures and uses of Snapchat[,]” as her testimony was
“beyond the knowledge or experience possessed by lay persons or dispels a misconception
common among lay persons.” We disagree.
{¶36} The trial court has broad discretion in the admission and exclusion of evidence,
including the determination as to whether an individual is an expert, and this Court will not disturb
evidentiary rulings absent an abuse of that discretion. State v. Hickman, 9th Dist. Summit No.
20883, 2002-Ohio-3406, ¶ 11. “The term ‘abuse of discretion’ connotes more than an error of law
or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion
standard, a reviewing court is precluded from simply substituting its own judgment for that of the
trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶37} A witness may testify as an expert if: (1) her testimony “either relates to matters
beyond the knowledge or experience possessed by lay persons or dispels a misconception common
among lay persons;” (2) she “is qualified as an expert by specialized knowledge, skill, experience,
training, or education regarding the subject matter of the testimony;” and (3) her testimony “is
based on reliable scientific, technical, or other specialized information.” Evid.R. 702.
{¶38} Mr. Klafczynski argues that the trial court permitted L.S. to present improper expert
testimony as to the “procedures and uses of Snapchat[,]” which was “beyond the knowledge or
experience possessed by lay persons or dispel[led] a misconception common among lay persons.”
He challenges her testimony that: Snapchat deletes pictures automatically after a few seconds;
users can screenshot or save images; Snapchat notifies the sender when the receiver has saved the 14
sender’s picture; and users may post a picture to their Snapchat “story.” He notes that L.S.
admitted she does not write computer code, nor does she understand how computers are
programmed. Although she has a cell phone and downloaded the Snapchat app, she testified that
she has no knowledge of where the data goes when it disappears.
{¶39} Mr. Klafczynski cites to no authority requiring expert testimony to establish or
explain the basic functioning of the Snapchat app. See App.R. 16(A)(7). We likewise find no
merit in his argument that L.S.’ testimony as to Snapchat’s basic functioning was scientific
evidence elicited from an expert witness. See, e.g., Dickerson v. Miller’s TLC, Inc., 8th Dist.
Cuyahoga No. 96995, 2012-Ohio-2493, ¶ 18 (determining witness testimony describing how the
Google Maps app works is not scientific evidence requiring expert testimony). L.S. testified that
she has used the app almost daily for years and simply described her basic understanding of how
it works based on her personal experience while using it. Such testimony does not relate to matters
beyond the knowledge or experience possessed by lay persons, nor does it dispel a misconception
common among lay persons. See Evid.R. 702(A). The trial court therefore did not err in permitting
L.S. to testify as to the basic functioning of the Snapchat app.
{¶40} Mr. Klafczynski’s second assignment of error is overruled.
ASSIGNMENT OF ERROR THREE
MR. KLAFCZYNSKI’S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE TRIAL COURT IMPROPERLY RULED AND INSTRUCTED THE JURY PURSUANT TO R.C. 3319.31 AND R.C. 3319.311.
{¶41} In his third assignment of error, Mr. Klafczynski argues that the trial court erred by
instructing the jury pursuant to R.C. 3319.31 and 3319.311. We disagree.
{¶42} “[A] trial court must fully and completely give the jury all instructions which are
relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” 15
State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus. “This Court reviews a
trial court’s decision to give or decline to give a particular jury instruction for an abuse of discretion
under the facts and circumstances of the case.” State v. Sanders, 9th Dist. Summit No. 24654,
2009-Ohio-5537, ¶ 45. “The term ‘abuse of discretion’ connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion
standard, a reviewing court is precluded from simply substituting its own judgment for that of the
trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶43} The State was burdened with proving that Mr. Klafczynski tampered with evidence
at a time when he knew an “official proceeding or investigation” was in progress or was about to
be, or was likely to be, instituted. See R.C. 2921.12(A). An “official proceeding” is “any
proceeding before a legislative, judicial, administrative, or other governmental agency or official
authorized to take evidence under oath, and includes any proceeding before a referee, hearing
examiner, commissioner, notary, or other person taking testimony or a deposition in connection
with an official proceeding.” R.C. 2921.01(D). Although the term “investigation” is not statutorily
defined, Black’s Law Dictionary defines it as: “The activity of trying to find out the truth about
something, such as a crime, accident, or historical issue; esp., either an authoritative inquiry into
certain facts, as by a legislative committee, or a systematic examination of some intellectual
problem or empirical question, as by mathematical treatment or use of the scientific method.”
Black’s Law Dictionary (11th Ed.2019).
{¶44} At trial, Principal Moore testified that a lengthy process is involved in order for a
teacher to be fired, which involves an investigation and a disciplinary hearing. He testified that
inappropriate contact or communications between a teacher and a student is enough to warrant 16
such investigation and disciplinary proceedings. He agreed that while the school’s investigatory
process was started in this case on December 5, 2016, it did not actually “play out” because Mr.
Klafczynski resigned from his teaching position in January of 2017. According to Principal
Moore, had the school’s investigation continued, a hearing would have been held in which the
superintendent would first have everyone agree to tell the truth before speaking. He testified that
he also contacted the police after he spoke with L.S. and her mother on the night of December 5,
2016, prompting a criminal investigation into Mr. Klafczynski’s actions.
{¶45} The prosecutor requested additional jury instructions on R.C. 3319.31(B)(1) and
3319.311(C)-(D), which statutes pertain to the discretionary, disciplinary authority of the state
board of education regarding certain licenses. “[T]he state board of education, in accordance with
Chapter 119. and section 3319.311 of the Revised Code, may refuse to issue a license to an
applicant; may limit a license it issues to an applicant; may suspend, revoke, or limit a license that
has been issued to any person; or may revoke a license that has been issued to any person and has
expired” if the person “[engages] in an immoral act, incompetence, negligence, or conduct that is
unbecoming to [his] position * * *.” R.C. 3319.31(B)(1). The state board of education—or the
superintendent on behalf of the board—may investigate any information received about a person
that reasonably appears to be a basis for action under R.C. 3319.31. R.C. 3319.311(A)(1). The
superintendent reviews the results of the investigation and determines, on behalf of the state board,
whether the results warrant initiating action under R.C. 3319.31(B), but no action is taken without
first providing written notice of the charges and an opportunity for a hearing. R.C. 3319.311(B)-
(C). For purposes of an R.C. 3319.311(A)(1) investigation or an R.C. 3319.311(C) hearing, the
board—or the superintendent on behalf of the board—may administer oaths, order the taking of 17
depositions, issue subpoenas, and compel the attendance of witnesses and the production of books,
accounts, papers, records, documents, and testimony. R.C. 3319.311(D).
{¶46} While arguing at sidebar against the admission of any testimony regarding any
investigation and proceedings by the principal or superintendent, Mr. Klafczynski’s counsel
admitted, “We assumed [the official proceeding] was criminal. That’s typically what the
[tampering with evidence] statute * * * deal[s] with * * *.” The prosecutor explained to the court,
“There’s going to be an investigation by the police, investigation by the school, and then
potentially by the State Board of Education.” Relying specifically on the Supreme Court of Ohio’s
decision in E. Canton Edn. Assn. v. McIntosh, 85 Ohio St.3d 465 (1999), Mr. Klafczynski objected
to the additional, requested instructions and argued that an “official proceeding” for purposes of
tampering with evidence does not apply to school principals or superintendents because neither
one is a “public official” and neither one can “swear people in under oath” or “investigate
anything.” In McIntosh, the Supreme Court of Ohio noted that it had previously held that a public
school superintendent is a public official, but had not yet considered the issue of whether a public
high school principal is a public official for purposes of defamation law. Id. at 474, citing Scott v.
The News-Herald, 25 Ohio St.3d 243 (1986), paragraph two of the syllabus. The high court
discussed how courts in other jurisdictions are divided as to whether public school principals
should be accorded “public official” status, but ultimately held that a public school principal is not
a public official for purposes of defamation law. Id.
{¶47} While Mr. Klafczynski challenged the school’s investigation and impending
proceedings regarding his teaching license, he never challenged the police department’s criminal
investigation as not satisfying the “official proceeding or investigation” element for tampering
with evidence. Principal Moore testified that both the school and the police began investigations 18
into Mr. Klafczynski’s alleged, inappropriate relationship with L.S. On cross-examination,
Principal Moore testified that the police arrived on December 5, 2016, and spoke to both him and
the superintendent. When later asked if he personally interviewed people for disciplinary purposes
regarding Mr. Klafczynski, the principal testified that he turned any information he had over to the
police for their investigation. Moreover, although closing arguments are not evidence, defense
counsel spoke openly about the criminal investigation during his closing argument, telling the jury
“the investigation did not commence until after [Principal Moore] met with [L.S.] the evening of
December 5th” and the principal “did the smart thing” and “turned that over to the Wadsworth
Police Department.” He explained that “the police are going to come in and interview the
witnesses and do all of their investigation * * *.”
{¶48} Accordingly, we cannot say that the trial court committed reversible error by
instructing the jury as to R.C. 3319.31(B)(1) and 3319.311(C)-(D). Not only is Mr. Klafczynski’s
reliance on McIntosh for support misplaced, as the Supreme Court explicitly limited its holding in
that case to defamation law, see McIntosh at 474, but ample evidence was presented to the jury
indicating that the police began a criminal investigation in this matter on December 5, 2016. Even
if we determined the trial court erred in providing additional instructions to the jury regarding the
school’s investigation, we would still need to determine if such error was harmless beyond a
reasonable doubt. See State v. Warner, 55 Ohio St.3d 31, 58 (1990). See also State v. Adams, 74
Ohio App.3d 140, 144-145 (9th Dist.1991), citing Chapman v. California, 386 U.S. 18 (1967) and
Delaware v. Van Arsdall, 475 U.S. 673 (1986) (determining mandatory jury directives resulting in
constitutional error may be harmless error, not necessarily requiring reversal of criminal
convictions, “if the reviewing court can confidently determine from the whole record that the
constitutional error was harmless beyond a reasonable doubt.”). Based on the facts and 19
circumstances of this particular case, it appears that the additional jury instructions were merely
superfluous. Irrespective of the school’s investigation, the jury could have found beyond a
reasonable doubt, based on the evidence presented at trial, that Mr. Klafczynski knew a criminal
investigation by the police was about to be, or was likely to be, instituted. Thus, even if the trial
court’s decision to instruct the jury as to R.C. 3319.31(B)(1) and 3319.311(C)-(D) was error, we
would conclude that it was harmless error beyond a reasonable doubt.
{¶49} Mr. Klafczynski’s third assignment of error is overruled.
ASSIGNMENT OF ERROR FIVE
MR. KLAFCZYNSKI WAS DENIED HIS RIGHT TO DUE PROCESS AND OF EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.
{¶50} In his fifth assignment of error, Mr. Klafczynski argues that his trial counsel was
ineffective for failing to object to the admission of exhibits of communications between himself
and L.S. We disagree.
{¶51} “The Sixth Amendment guarantees a criminal defendant the right to the effective
assistance of counsel.” State v. Liu, 9th Dist. Summit No. 24112, 2008-Ohio-6793, ¶ 22. “[I]n
Ohio, a properly licensed attorney is presumed competent.” State v. Gondor, 112 Ohio St.3d 377,
2006-Ohio-6679, ¶ 62. “There are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland v. Washington, 466 U.S. 668, 689 (1984). Moreover, even debatable trial tactics
will not constitute ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 49 (1980).
To prove ineffective assistance of counsel, one must establish that: (1) his counsel’s performance
was deficient, and (2) the deficient performance prejudiced the defense. Strickland at 687. 20
Counsel’s performance is deficient if it falls below an objective standard of reasonable
representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus.
Prejudice can be shown by proving “there exists a reasonable probability that, were it not for
counsel’s errors, the result of the trial would have been different.” Id. at paragraph three of the
syllabus. “[T]he Court need not address both Strickland prongs if an appellant fails to prove either
one.” State v. Lortz, 9th Dist. Summit No. 23762, 2008-Ohio-3108, ¶ 34.
{¶52} Mr. Klafczynski argues that the pictures of Snapchat conversations between
himself and L.S. were “the most damaging evidence against [him,]” but were random, incomplete,
and prejudicial, as some individual messages were missing. He argues that presenting such
incomplete conversations to the jury allowed jurors to infer too much, and his trial counsel should
have therefore objected.
{¶53} As a matter of law, the failure to object at trial may be justified as a trial tactic and
thus does not sustain a claim of ineffective assistance of counsel. State v. Miller, 9th Dist. Summit
No. 23240, 2007-Ohio-370, ¶ 10, citing State v. Gumm, 73 Ohio St.3d 413, 428 (1995). “Strategic
trial decisions are left to the deference of trial counsel and are not to be second-guessed by
appellate courts.” Id., citing State v. Carter, 72 Ohio St.3d 545, 558 (1995).
{¶54} Here, the pictures were not completely devoid of any and all messages from L.S.
Some of her messages to Mr. Klafczynski were included, but she explained on the witness stand
that others were missing because she had not saved them in time before Snapchat automatically
deleted them. Moreover, Mr. Klafczynski has not explained how any of the missing messages
actually resulted in prejudice that deprived him of a fair trial. Even assuming arguendo that
counsel should have objected to these exhibits, we would nonetheless conclude that the failure to
do so did not affect the outcome of the trial in light of the overwhelming evidence presented 21
demonstrating that he deleted items of evidentiary value from his own phone. See State v. Jackson,
9th Dist. Lorain No. 14CA010555, 2015-Ohio-2473, ¶ 68, citing State v. Conway, 109 Ohio St.3d
412, 2006-Ohio-2815, ¶ 105 (finding no ineffective assistance of counsel where even if trial
counsel objected and evidence was excluded, other evidence established facts giving rise to the
defendant’s conviction).
{¶55} Mr. Klafczynski’s fifth assignment of error is overruled.
III.
{¶56} Mr. Klafczynski’s assignments of error are all overruled. The judgment of the
Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30. 22
Costs taxed to Appellant.
THOMAS A. TEODOSIO FOR THE COURT
CALLAHAN, J. CONCURS.
CARR, J. CONCURRING IN JUDGMENT ONLY.
{¶57} Although I agree with the majority’s resolution of the first, second, fourth, and fifth
assignments of error, I would resolve the third assignment of error solely on the basis of harmless
error.
APPEARANCES:
KRISTOPHER IMMEL, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.