[Cite as State v. Leigh, 2014-Ohio-298.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA ___________________________________
JOURNAL ENTRY AND OPINION No. 99181 ___________________________________
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
AUSBURN LEIGH DEFENDANT-APPELLANT
JUDGMENT: APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case Nos. CR-556285 and CR-556762 Application for Reopening Motion No. 469299
RELEASE DATE: January 29, 2014 FOR APPELLANT
Ausburn Leigh, pro se Inmate No. 632790 Lebanon Correctional Institution P.O. Box 56 Lebanon, OH 45036
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Katherine Mullin Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 SEAN C. GALLAGHER, P.J.:
{¶1} Appellant, Ausburn Leigh, has filed an application with the court of appeals
to reopen this court’s judgment in State v. Leigh, 8th Dist. Cuyahoga No. 99181,
2013-Ohio-3243, pursuant to App.R. 26(B). The record establishes that a jury convicted
Leigh of felonious assault. In his initial appeal, Leigh alleged that the evidence was
insufficient to sustain his conviction. Id. at ¶ 12. The assignment of error was
overruled. Leigh contends that the ineffectiveness of appellate counsel merits the
reopening of his appeal, which the state has opposed. For the reasons that follow, we
deny Leigh’s application for reopening.
{¶2} App.R. 26(B)(5) requires an appellant to show a “genuine issue as to whether
[he] was deprived of the effective assistance of counsel on appeal.”
{¶3} The appropriate standard to determine whether a defendant has received
ineffective assistance of appellate counsel is the two-pronged analysis found in Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v.
Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10.
{¶4} Appellant “must prove that his counsel [was] deficient for failing to raise the
issues he now presents and that there was a reasonable probability of success had he
presented those claims on appeal.” State v. Sheppard, 91 Ohio St.3d 329, 330, 744
N.E.2d 770 (2001), citing State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraph three of the syllabus. Appellant “bears the burden of establishing that there
was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective assistance of counsel on appeal.” State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). To
establish such a claim, Leigh must demonstrate that counsel’s performance was deficient
and that the deficiency prejudiced the defense. Strickland. Appellate counsel is neither
required to raise and argue assignments of error that are meritless, nor is counsel
ineffective for not raising every conceivable assignment of error. Jones v. Barnes, 463
U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); State v. Gumm, 73 Ohio St.3d 413, 653
N.E.2d 253 (1995).
{¶5} Leigh asserts that his appellate counsel was ineffective in two respects: (1)
counsel should have raised the ineffectiveness of trial counsel’s cross-examination of the
nurse witness; and (2) appellate counsel was ineffective for raising an assignment of error
that challenged the sufficiency of the evidence rather than arguing that the conviction was
against the manifest weight of the evidence.
{¶6} With respect to his first contention, Leigh focuses on the testimony of Nurse
Enochs. Enochs is employed by the Cleveland Clinic Foundation as a staff registered
nurse. She has taken care of patients who have been sexually assaulted. The victim in
this case presented to the emergency room on November 10, 2011, and reported that she
had been raped. While performing the rape kit examination, Enoch noted a bruise on the
victim’s left cheek. Enoch stated that the bruise had not happened within the past few
hours.
{¶7} Days later, on November 18, 2011, police encountered the victim at a gas
station where they observed her upset and crying, with cuts on her nose and left cheek. Leigh, 8th Dist. Cuyahoga No. 99181, 2013-Ohio-3243, ¶ 4. A CT scan showed the
victim had facial and orbital fractures. Id. at ¶ 6. The victim reported to police that
appellant had struck her on the left side of the face.
{¶8} Appellant believes that, because of the bruise on the victim’s left cheek, his
trial counsel should have asked Enoch if it was possible that the victim’s eye was already
fractured on November 10, 2011. However, defense counsel did cross-examine Enoch
about the bruise on her left cheek. Specifically, he asked if any X-rays had been taken to
see if anything had been broken or any fractures were there at that time. Enoch said that
no X-rays were taken. Defense counsel also asked if Enoch took any photographs of the
bruise, and she again said no. From this line of questioning, a reasonable juror could
easily have inferred that the victim had a fracture at that time. This was clearly the
purpose of asking whether any X-rays had been taken. The manner in which counsel
phrased his cross-examination is a matter of trial strategy and does not constitute
ineffective assistance of counsel. State v. Conway, 109 Ohio St.3d 412,
2006-Ohio-2815, 848 N.E.2d 810, ¶ 101 (“the scope of cross-examination falls within
the ambit of trial strategy, and debatable trial tactics do not establish ineffective assistance
of counsel”). Even assuming the victim had a facial fracture on November 10, 2011,
there is testimony in the record that indicates she suffered new and additional injuries on
November 18, 2011, when appellant hit her in the face. Therefore, Leigh has not
demonstrated how the result of the trial would have been different had counsel conducted his cross-examination of Enoch differently. Accordingly, appellate counsel was not
ineffective for failing to raise this issue in an assignment of error.
{¶9} Appellant also asserts that there was a reasonable probability that this court
would have sustained an assignment of error challenging his conviction as being against
the manifest weight of the evidence had it been raised.
{¶10} An appellate attorney has discretion to decide which issues he or she
believes are the most fruitful arguments. “Experienced advocates since time beyond
memory have emphasized the importance of winnowing out weaker arguments on appeal
and focusing on one central issue, if possible, or at most on a few key issues.” Barnes,
463 U.S. 745, 751-752, 77 L.Ed.2d 987, 103 S.Ct. 3308. The United States Supreme
Court in Barnes further held that
Neither Anders [v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)] nor any other decision of this Court suggests * * * that the indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.
Id. at 751.
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[Cite as State v. Leigh, 2014-Ohio-298.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA ___________________________________
JOURNAL ENTRY AND OPINION No. 99181 ___________________________________
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
AUSBURN LEIGH DEFENDANT-APPELLANT
JUDGMENT: APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case Nos. CR-556285 and CR-556762 Application for Reopening Motion No. 469299
RELEASE DATE: January 29, 2014 FOR APPELLANT
Ausburn Leigh, pro se Inmate No. 632790 Lebanon Correctional Institution P.O. Box 56 Lebanon, OH 45036
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Katherine Mullin Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 SEAN C. GALLAGHER, P.J.:
{¶1} Appellant, Ausburn Leigh, has filed an application with the court of appeals
to reopen this court’s judgment in State v. Leigh, 8th Dist. Cuyahoga No. 99181,
2013-Ohio-3243, pursuant to App.R. 26(B). The record establishes that a jury convicted
Leigh of felonious assault. In his initial appeal, Leigh alleged that the evidence was
insufficient to sustain his conviction. Id. at ¶ 12. The assignment of error was
overruled. Leigh contends that the ineffectiveness of appellate counsel merits the
reopening of his appeal, which the state has opposed. For the reasons that follow, we
deny Leigh’s application for reopening.
{¶2} App.R. 26(B)(5) requires an appellant to show a “genuine issue as to whether
[he] was deprived of the effective assistance of counsel on appeal.”
{¶3} The appropriate standard to determine whether a defendant has received
ineffective assistance of appellate counsel is the two-pronged analysis found in Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v.
Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10.
{¶4} Appellant “must prove that his counsel [was] deficient for failing to raise the
issues he now presents and that there was a reasonable probability of success had he
presented those claims on appeal.” State v. Sheppard, 91 Ohio St.3d 329, 330, 744
N.E.2d 770 (2001), citing State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraph three of the syllabus. Appellant “bears the burden of establishing that there
was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective assistance of counsel on appeal.” State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). To
establish such a claim, Leigh must demonstrate that counsel’s performance was deficient
and that the deficiency prejudiced the defense. Strickland. Appellate counsel is neither
required to raise and argue assignments of error that are meritless, nor is counsel
ineffective for not raising every conceivable assignment of error. Jones v. Barnes, 463
U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); State v. Gumm, 73 Ohio St.3d 413, 653
N.E.2d 253 (1995).
{¶5} Leigh asserts that his appellate counsel was ineffective in two respects: (1)
counsel should have raised the ineffectiveness of trial counsel’s cross-examination of the
nurse witness; and (2) appellate counsel was ineffective for raising an assignment of error
that challenged the sufficiency of the evidence rather than arguing that the conviction was
against the manifest weight of the evidence.
{¶6} With respect to his first contention, Leigh focuses on the testimony of Nurse
Enochs. Enochs is employed by the Cleveland Clinic Foundation as a staff registered
nurse. She has taken care of patients who have been sexually assaulted. The victim in
this case presented to the emergency room on November 10, 2011, and reported that she
had been raped. While performing the rape kit examination, Enoch noted a bruise on the
victim’s left cheek. Enoch stated that the bruise had not happened within the past few
hours.
{¶7} Days later, on November 18, 2011, police encountered the victim at a gas
station where they observed her upset and crying, with cuts on her nose and left cheek. Leigh, 8th Dist. Cuyahoga No. 99181, 2013-Ohio-3243, ¶ 4. A CT scan showed the
victim had facial and orbital fractures. Id. at ¶ 6. The victim reported to police that
appellant had struck her on the left side of the face.
{¶8} Appellant believes that, because of the bruise on the victim’s left cheek, his
trial counsel should have asked Enoch if it was possible that the victim’s eye was already
fractured on November 10, 2011. However, defense counsel did cross-examine Enoch
about the bruise on her left cheek. Specifically, he asked if any X-rays had been taken to
see if anything had been broken or any fractures were there at that time. Enoch said that
no X-rays were taken. Defense counsel also asked if Enoch took any photographs of the
bruise, and she again said no. From this line of questioning, a reasonable juror could
easily have inferred that the victim had a fracture at that time. This was clearly the
purpose of asking whether any X-rays had been taken. The manner in which counsel
phrased his cross-examination is a matter of trial strategy and does not constitute
ineffective assistance of counsel. State v. Conway, 109 Ohio St.3d 412,
2006-Ohio-2815, 848 N.E.2d 810, ¶ 101 (“the scope of cross-examination falls within
the ambit of trial strategy, and debatable trial tactics do not establish ineffective assistance
of counsel”). Even assuming the victim had a facial fracture on November 10, 2011,
there is testimony in the record that indicates she suffered new and additional injuries on
November 18, 2011, when appellant hit her in the face. Therefore, Leigh has not
demonstrated how the result of the trial would have been different had counsel conducted his cross-examination of Enoch differently. Accordingly, appellate counsel was not
ineffective for failing to raise this issue in an assignment of error.
{¶9} Appellant also asserts that there was a reasonable probability that this court
would have sustained an assignment of error challenging his conviction as being against
the manifest weight of the evidence had it been raised.
{¶10} An appellate attorney has discretion to decide which issues he or she
believes are the most fruitful arguments. “Experienced advocates since time beyond
memory have emphasized the importance of winnowing out weaker arguments on appeal
and focusing on one central issue, if possible, or at most on a few key issues.” Barnes,
463 U.S. 745, 751-752, 77 L.Ed.2d 987, 103 S.Ct. 3308. The United States Supreme
Court in Barnes further held that
Neither Anders [v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)] nor any other decision of this Court suggests * * * that the indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.
Id. at 751. It is well settled that “[t]he power to reverse a judgment of conviction as
against the manifest weight must be exercised with caution and in only the rare case in
which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Also, Subdivision (3) of Article IV,
Section 3, Ohio Constitution, clearly states that “no judgment resulting from a trial by
jury shall be reversed on the weight of the evidence except by the concurrence of all three
judges hearing the cause.” The power to reverse a conviction as being against the manifest weight of the evidence is not only restricted, but also “must be exercised with
extreme caution and only in the exceptional case where the evidence weighs manifestly
against conviction.” State v. Wilson, 8th Dist. Cuyahoga Nos. 64442 and 64443, 1994
Ohio App. LEXIS 2508 (June 9, 1994). On these principles alone, Leigh’s argument
that his appellate counsel was ineffective for not asserting a challenge to his conviction as
being against the manifest weight of the evidence is meritless.
{¶11} Additionally, a review of the record indicates that appellant’s felonious
assault conviction is not against the manifest weight of the evidence. A manifest weight
of evidence argument involves determining whether there exists a greater amount of
credible evidence to support one side of an issue rather than the other. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). The appellate court weighs
the evidence and all reasonable inferences, considers the credibility of the witnesses and
determines whether, in resolving conflicts in the evidence, the fact finder clearly lost its
way and created a manifest miscarriage of justice such that the conviction must be
reversed and a new trial ordered. Martin at 175.
{¶12} The jury found appellant not guilty on all charges except the charge of
felonious assault. There was testimony from police, medical professionals, and the
victim detailing the assault and the resulting injuries. Other eyewitnesses observed
appellant hit the victim. There was some testimony that the victim did not suffer any
bruises from the assault. Specifically, Rosario testified that the victim did not have any
bruising or other injuries to her left cheek or eye following the incident. However, Rosario also indicated that she is Leigh’s former girlfriend. Considering the record as a
whole, we cannot say that the jury clearly lost its way in how it resolved the conflicts in
the evidence. This is not an exceptional case where the evidence weighs manifestly
against Leigh’s conviction for felonious assault; rather, it supports it.
{¶13} For all of the foregoing reasons, appellant has not met the standard for
reopening his appeal. The application to reopen is denied.
SEAN C. GALLAGHER, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and TIM McCORMACK, J., CONCUR