State v. Norman

2026 Ohio 779

Opinion

[Cite as State v. Norman, 2026-Ohio-779.]

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

STATE OF OHIO, CASE NO. 2025-A-0023

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

DAMIEN LUJUANE NORMAN, Trial Court No. 2023 CR 00568 Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Decided: March 9, 2026 Judgment: Affirmed

April R. Grabman, Ashtabula County Prosecutor, and Dane R. Hixon, Assistant Prosecutor, 25 West Jefferson Street, Ashtabula, OH 44047 (For Plaintiff-Appellee).

Thomas J. Simon, 1105 Bridge Street, P.O. Box 3048, Ashtabula, OH 44005, and L. Bryan Carr, 1392 SOM Center Road, Mayfield Heights, OH 44124 (For Defendant- Appellant).

EUGENE A. LUCCI, J.

{¶1} Appellant, Damien Lujuane Norman, appeals the judgment of the Ashtabula

County Court of Common Pleas, convicting him one count of felonious assault, with a

firearm specification, and one count of having weapons while under disability. Mr. Norman

takes issue with his trial counsel’s effectiveness, the trial court’s alleged inconsistent

dismissal of one of the jurors, the alleged admission of hearsay evidence, his sentence,

as well as the weight and sufficiency of the evidence. We affirm the trial court’s judgment.

{¶2} On October 22, 2023, Angela Hamilton, Mr. Norman’s mother, and the

victim, Anthony Beninato, were out together visiting local wineries. The couple went to Grand River Cellars, and Mr. Norman joined them for dinner at the establishment. From

there, Ms. Hamilton drove with Mr. Beninato to the latter’s residence, and Mr. Norman

followed them. Mr. Beninato stated that he and Mr. Norman never had any problems

before the night of October 22, 2023.

{¶3} The group gathered around a small fire in Mr. Beninato’s yard. At some

point, Mr. Norman advised Mr. Beninato “[t]o not put his hands on [his] mom no more.”

Although no issues had occurred between the individuals that day or night, Ms. Hamilton

and Mr. Norman decided to leave Mr. Beninato’s home. Mr. Beninato, however, wanted

Ms. Hamilton to stay with him that night. She declined, causing Mr. Beninato to become

agitated.

{¶4} Ms. Hamilton and Mr. Norman then went to Ms. Hamilton’s residence. Mr.

Norman had advised Mr. Beninato not to go to Ms. Hamilton’s home. Mr. Beninato began

“blowing up” Ms. Hamilton’s phone. He eventually arrived at Ms. Hamilton’s home,

however, and apparently the two began arguing. Through a window inside Ms. Hamilton’s

residence, Mr. Norman observed Mr. Beninato pushing and shoving his mother. Mr.

Norman then retrieved his wife’s unloaded firearm which was stored in a closet in Ms.

Hamilton’s home. Mr. Norman exited the house and struck Mr. Beninato one time with the

gun on the skull. Mr. Norman fled the scene.

{¶5} Mr. Beninato was taken to the hospital after which Ms. Hamilton discussed

the incident with police. She informed police that Mr. Norman was responsible for Mr.

Beninato’s injuries. The strike caused Mr. Beninato two skull fractures, multiple brain

bleeds, and memory loss.

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Case No. 2025-A-0023 {¶6} The day after the incident, police obtained a warrant and searched Mr.

Norman’s home. Mr. Norman was detained and given Miranda warnings. He initially told

officers he disassembled the gun and discarded half of it into a local river. Mr. Norman,

however, later admitted he had disassembled the weapon and hid the parts throughout

his house. He led police to the various parts of the disassembled firearm which was

collected as evidence.

{¶7} On October 24, 2023, police interviewed Mr. Norman. At the interview, he

admitted to striking Mr. Beninato but maintained he did so to protect his mother. Mr.

Norman admitted he retrieved the firearm, which he insisted belonged to his wife, from

the closet in his mother’s home. Evidence later showed Mr. Norman had a prior conviction

for felony-four domestic violence, which barred him from possessing a firearm.

{¶8} Mr. Norman was indicted on one count of felonious assault, in violation of

R.C. 2903.11(A)(2) and (D)(1)(A), a felony of the second degree. That count carried a

firearm specification pursuant to R.C. 2941.145(A). He was also indicted on one count of

having weapons while under disability, in violation of R.C. 2923.13(A)(2) and (B), a felony

of the third degree.

{¶9} During plea negotiations, Mr. Norman rejected a plea offer from the State

through which he would plead guilty to both counts, receive a stipulated six-year

sentence, to run consecutively in a separate case not subject to this appeal, for a total of

12 years. After electing to proceed to trial, Mr. Norman, via defense counsel, filed a notice

of self-defense of another.

{¶10} Prior to trial, defense counsel filed four motions to continue the matter.

Because counsel’s motions for continuance are relevant to the analysis of the underlying

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Case No. 2025-A-0023 appeal, it is important to note that counsel’s first request for continuance was premised

upon his recognition that he “was not prepared to go to trial at this time.” The second

motion for continuance was based upon defense counsel’s need for certain medical tests.

His third motion for continuance was founded upon the unavailability of a “key witness for

the defense.” And the fourth request for continuance was premised upon counsel’s need

to have a doctor review medical records relating to the incident. Each motion was granted.

{¶11} The matter proceeded to trial after which Mr. Norman was found guilty on

all charges. Mr. Norman was sentenced to three years in prison on the firearm

specification, eight to 12 years on the felonious assault charge, and three years in prison

on the weapons under disability charge. The trial court ordered the prison terms to be

served consecutively for a total of 14 to 18 years in prison. This appeal followed.

{¶12} Mr. Norman assigns six errors for this court’s review. His first alleges:

{¶13} “Appellant was deprived of his right to effective assistance of counsel.”

{¶14} Mr. Norman makes multiple challenges to counsel’s effectiveness. We shall

address each in turn.

{¶15} To prevail on a claim of ineffective assistance of counsel, “a defendant must

prove that counsel’s performance was deficient and that the defendant was prejudiced by

counsel’s deficient performance.” State v. Davis, 2020-Ohio-309, ¶ 10, citing State v.

Bradley, 42 Ohio St.3d 136, 141-142 (1989); and Strickland v. Washington, 466 U.S. 668,

687 (1984). “Thus, the defendant must demonstrate that counsel’s performance fell below

an objective standard of reasonableness and that there exists a reasonable probability

that, but for counsel’s error, the result of the proceeding would have been different.” Davis

at ¶ 10, citing Bradley at paragraphs two and three of the syllabus.

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Case No. 2025-A-0023 {¶16} “‘In order to establish prejudice, an appellant must overcome a strong

presumption that licensed attorneys are competent and that the challenged action is the

product of a sound strategy.’” State v. Love, 2023-Ohio-3690, ¶ 31 (11th Dist.), quoting

State v. Shirey, 2006-Ohio-256, ¶ 13 (9th Dist.). Thus, “‘[d]ebatable strategic and tactical

decisions will not form the basis for a claim of ineffective assistance of counsel, even if

there had been a better strategy available.’” State v. Kovacic, 2012-Ohio-219, ¶ 46

(11th Dist.), quoting State v. Beesler, 2003-Ohio-2815, ¶ 13 (11th Dist.).

{¶17} Mr. Norman first asserts that trial counsel’s four motions for continuance

suggested he was not prepared for trial and thus failed to provide an effective defense.

Mr. Norman claims trial counsel filed his first continuance on March 19, 2024, seven days

before trial, stating counsel was “not prepared to go to trial at this time.” He claims this

representation was disconcerting because the case had been pending since December

2023. On May 13, 2024, eight days before trial, trial counsel filed a second motion for

continuance. In this motion, counsel stated he was scheduled for medical tests within the

timeframe of trial. Mr. Norman maintains this is concerning because counsel should have

known of his medical tests well before the time of filing the continuance. Next, on August

5, 2024, trial counsel filed the third motion for continuance, arguing a key witness is out

of town and not available. Mr. Norman claims “counsel called zero (0) witnesses at trial,”

and therefore this motion indicated a lack of awareness of his defense. Finally, on October

9, 2024, trial counsel filed the fourth motion in which he represented he possessed

approximately 400 pages of medical records to review and he would require a doctor to

review these records. Mr. Norman asserts that counsel never interviewed or met with a

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Case No. 2025-A-0023 doctor or any “other witnesses.” He therefore claims trial counsel was ineffective for

seeking the various continuances.

{¶18} In general, “[t]he fact that an attorney seeks a continuance . . . does [not]

necessarily portray a violation of counsel’s duty of representation. . . . The client’s

preferred defense strategies do not necessarily govern his counsel’s decisions.” State v.

Phillips, 2004-Ohio-4688, ¶ 41 (2d Dist.). Further, a defendant “must overcome the

presumption that, under the circumstances, the delay caused by his attorney through the

seeking of continuances, ‘might be considered sound trial strategy.’” State v. Tate, 1993

WL 268462, *1 (6th Dist. July 16, 1993), quoting Michel v. Louisiana, 350 U.S. 91 (1955);

and Strickland, 466 U.S. at 689. See also State v. Pope, 2023-Ohio-865, ¶ 37 (6th Dist.),

quoting State v. Wynn, 2014-Ohio-420, ¶ 90 (2d Dist.) (“the decision whether to request

a trial continuance is debatable, and involves a strategic choice of counsel that falls

‘within the realm of trial strategy and tactics that will not ordinarily be disturbed on

appeal’”).

{¶19} Mr. Norman admits that motions for continuance are not unusual in criminal

cases, and, in this respect, concedes that trial counsel’s actions do not fall below an

objectively reasonable metric for performance in the context of criminal defense. Of equal

significance, Mr. Noman fails to identify how he was prejudiced by counsel’s motions to

continue. Indeed, it goes without saying that a defense attorney who is thoroughly

prepared for trial by his or her own estimation will provide a better defense for a defendant

than one who proceeds without full preparation. Mr. Norman’s claim does not meet either

prong of the Strickland test for ineffectiveness and, in this respect, it is without merit.

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Case No. 2025-A-0023 {¶20} Next, Mr. Norman claims defense counsel’s opening statement

demonstrated his ineffectiveness and lack of preparation. Mr. Norman points out that

defense counsel’s opening included the following statement: “Obviously, we hope you

return a not guilty verdict, but I appreciate you and my client appreciates you for being

here.” Counsel also asserted: “[Mr. Norman] comes to the winery at that time, gets there

about 9:15, 9:30, the evidence will show, and has one beer. One beer. I know everybody

says when you get stopped how many beers did you have? Two or whatever.” Next,

counsel pointed out that “[Mr. Norman] hits [Mr.] Beninato one time in the head with the

gun . . . [Mr. Norman] takes off . . . and he shouldn’t have done that . . . and we all know

that.”

{¶21} Mr. Norman fails to offer any argumentation regarding how the foregoing

statements demonstrated counsel’s deficiency or lack of preparation. He further fails to

argue how counsel’s observations prejudiced his defense. The first quote simply thanked

the jurors for serving on the panel and suggests neither deficient performance nor

prejudice. To the contrary, it is a congenial way to greet the jury and prepare the panel

for what the defense hopes to establish.

{¶22} Counsel’s observations regarding Mr. Norman’s consumption of a beer is

also inconsequential. In the context of the entire opening, it is obvious defense counsel

was providing a factual picture of the circumstances which led to the incident. Part of that

factual picture was Mr. Norman’s consumption of a beer; not a copious amount of beer

or other alcoholic beverages. Consuming too much beer might lead the jury to the

conclusion that Mr. Norman’s actions were the product of (over) intoxication rather than

his “defense of another” defense.

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Case No. 2025-A-0023 {¶23} Along similar lines, defense counsel filed a notice of self-defense via

defense of another. In doing so, Mr. Norman admitted to the facts of the assault but, given

the surrounding circumstances, asserted his actions were a result of his legal right to

defend another. See R.C. 2901.05(B)(1) (“A person is allowed to act in self-defense,

defense of another, or defense of that person’s residence.”). To the extent Mr. Norman

was not intoxicated, his defense would have arguably greater weight. In this additional

regard, the mention of Mr. Norman having a beer can be reasonably viewed as strategic.

{¶24} Finally, defense counsel’s admission that Mr. Norman should not have fled

after the assault is simply a recognition that it would have been easier to address

authorities regarding the circumstances of the incident at the scene. This is not an

admission of guilt. Rather, it is a recognition that Mr. Norman made a rash decision at the

time that he ultimately recognized was made in error. Defense counsel’s opening

statement does not demonstrate ineffectiveness.

{¶25} Mr. Norman next argues counsel was ineffective because he called no

witnesses and offered no exhibits. He also asserts, contrary to this allegation, that

defense counsel erred in calling Mr. Norman to testify and recalling two “inconsequential”

witnesses; namely, Mr. Beninato as well as Detective Spencer Gale.

{¶26} As noted several times, Mr. Norman’s defense was defense of his mother.

Prior to the State resting, and without the jury present, the trial court provided Mr. Norman

with the following advisement:

Mr. Norman, I discussed this with you yesterday. I am again going to discuss it with you now because it’s a very important decision for you to make in your life. You have a . . . constitutional right to testify and not to testify. If you choose to testify, [the prosecutor] gets to cross-examine you. You’ve seen her cross-examine other witnesses. If you choose not to

PAGE 8 OF 30

Case No. 2025-A-0023 testify, I will instruct the jury that that is your constitutional right, and they cannot hold it against you that you’re exercising your constitutional right. Do you understand that?

[Mr. Norman]: Yes, sir.

The Court: It is not yet the time for you to make that decision, and you should only make that decision after you’ve thoroughly discussed it with [defense counsel], who is a very experienced and successful lawyer. But I would encourage you to follow his advice.

{¶27} Mr. Norman decided to exercise his constitutional right to testify on behalf

of his defense. During his testimony, he highlighted his version of events, which were

substantially similar to his original interview with police. He emphasized he told Mr.

Beninato not to go to his mother’s house after he and his mother left the Beninato

residence. He also described that he was aware that Mr. Beninato had previously “put his

hands on” Ms. Hamilton. He also testified that he was aware that Mr. Beninato carried a

firearm. At the time of the incident, Mr. Norman stated that once Mr. Beninato arrived at

Ms. Hamilton’s residence:

[M]y mom ran outside, and then, ah, they started going back and forth. And then I come out the door, and then he has my mom up against the car and my mom’s screaming. He’s slamming her back and forth. So I turn around and I go right into the closet where I know my wife’s gun was that we left there two days prior to that, and I grab it ‘cause it wasn’t loaded, it wasn’t nothing. I run outside, and then I break them up. And then as soon as I break them up, he, like, lunged at me. And then I was - - like, I was fearing for me. Like yeah, he’s bigger than me, like I, - - . . . I was. I was more fearful for [my mother] - - that’s my only - - that’s the only parent I have.

{¶28} In light of these facts, Mr. Norman felt it was necessary to strike Mr.

Beninato with the firearm.

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Case No. 2025-A-0023 {¶29} On cross-examination, the prosecutor pointed out that, during the initial

interview, Mr. Norman did not specifically tell police Mr. Beninato slammed his mother

against his truck but only that he was pushing and shoving her. Moreover, Mr. Norman

admitted he did not hear that Mr. Beninato was violent towards his mother from her, but

from a third party.

{¶30} Mr. Norman’s testimony provided his version of events and offered a

competing version of that which the prosecutor sought to establish. There is nothing to

indicate defense counsel compelled Mr. Norman to testify and, more importantly, there is

nothing in his testimony that undermined his theory of the affirmative defense of defense

of another. Defense counsel cannot be viewed deficient for honoring Mr. Norman’s desire

to testify in his own defense and, moreover, there is nothing to indicate the testimony was

prejudicial to Mr. Norman’s defense.

{¶31} Furthermore, when defense counsel recalled Mr. Beninato, he was able to

establish Mr. Beninato had, on one occasion, pushed Ms. Hamilton against a wall and,

on another, threw his phone at her dashboard and broke her vehicle’s window. These

points could substantiate Mr. Norman’s position that Mr. Beninato had a tendency to

violent behavior towards Ms. Hamilton. This witness was therefore not “inconsequential.”

{¶32} Finally, defense counsel recalled Detective Spencer Gale. Detective Gale

obtained a “dump” or a transference of information from Mr. Norman’s phone. The

detective was asked whether he ever obtained a “dump” or collected evidence from Mr.

Beninato’s phone. He testified he did not. Although the point is subtle, defense counsel’s

recall of Detective Gale suggests the defense’s intent was to show the State’s

investigation was not even-handed or thorough.

PAGE 10 OF 30

Case No. 2025-A-0023 {¶33} Counsel called witnesses, and those witnesses were not irrelevant, and the

testimony they offered lent support to Mr. Norman’s defense. Moreover, “[t]he decision to

call a witness is within the province of counsel’s trial tactics.” Kovacic, 2012-Ohio-219, at

¶ 46 (11th Dist.). It also stands to reason that the decision to submit exhibits is a tactical

decision. Mr. Norman offers no basis to suggest defense counsel’s decision to call the

witnesses at issue, including himself, was an unsound or unreasonable trial tactic.

Further, he fails to argue what exhibit, if any, would have further assisted in his defense.

We conclude Mr. Norman has failed to establish defense counsel’s ineffectiveness on

these points.

{¶34} Next, Mr. Norman claims defense counsel failed to cross-examine any of

the State’s witnesses. This statement is fundamentally false.

{¶35} Defense counsel cross-examined each witness called by the State. In

cross-examining Mr. Beninato, defense counsel elicited testimony that Mr. Beninato had

a blood-alcohol content of .237 on the night of the incident and had no memory of what

occurred at Ms. Hamilton’s residence. Given the evidence submitted by Mr. Norman on

direct examination, this testimony tends to show that, in conjunction with a purported

history of violence against Ms. Hamilton, Mr. Beninato’s intoxication may have

exacerbated the physical altercation.

{¶36} Further, defense counsel cross-examined each of the police officers the

State called. During cross of Officer Mark Allen, defense counsel elicited testimony that

Ms. Hamilton had a strong odor of alcoholic beverage on her person on the night of the

incident indicating Ms. Hamilton and Mr. Beninato were both intoxicated. A common

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Case No. 2025-A-0023 inference would indicate that intoxication of both individuals could have exacerbated the

encounter between them and further support Mr. Norman’s defense.

{¶37} Lieutenant Christopher Defina testified on cross-examination that, upon his

arrival at the scene, Ms. Hamilton was not making sense and was frantic and intoxicated.

On cross of Lieutenant Michael Palinkas, defense counsel determined the officer was not

wearing a body camera when he initially spoke with Mr. Norman and, as such, there was

no independent verification of Mr. Norman’s statements at that time. And, on cross of

Detective Spencer Gale, defense counsel elicited testimony that, during a recorded

interview, Mr. Norman stated Ms. Hamilton exited the home first and Mr. Norman

proceeded to exit the home with the gun to defend her from Mr. Beninato. Detective Gale

also acknowledged that, during the interview, he told Mr. Norman he would have

defended his mother under such circumstances.

{¶38} Defense counsel also cross-examined Ms. Hamilton at great length and,

during this testimony, defense counsel obtained a standing order that Ms. Hamilton could

testify to matters that occurred prior to the October 22, 2023 incident. As such, during his

cross, defense counsel elicited testimony that Mr. Beninato had “punched out” Ms.

Hamilton’s windshield a week before the incident. Ms. Hamilton stated that, after that

encounter, she “broke it off” with Mr. Beninato. Defense counsel was also able to establish

that, according to Ms. Hamilton, Mr. Beninato had previously punched and broke her

television and “put [her] head through the wall.” During that incident, Ms. Hamilton stated

Mr. Beninato also spit on her and mocked her as she was crying. She testified she never

called police because she was fearful of Mr. Beninato.

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Case No. 2025-A-0023 {¶39} In addition to the foregoing, defense counsel regularly leveled objections to

testimony and evidence he believed were inadmissible. While many objections were

overruled, some were sustained. These are eventualities not uncommon in the course of

a trial.

{¶40} Considering the foregoing, Mr. Norman’s assertion that defense counsel

was ineffective because he failed to cross-examine any of the State’s witnesses or was

otherwise ill-prepared is patently contrary to the record and without merit.

{¶41} Mr. Norman next claims defense counsel was ineffective for failing to object

to State’s Exhibit 23, the interview of Mr. Norman. We fail to see how defense counsel’s

decision not to object to the introduction of the interview fell below reasonable

performance.

{¶42} The interview, like Mr. Norman’s testimony, essentially clarified his version

of events. He stated he witnessed Mr. Beninato assaulting his mother and he, in turn,

struck him with the firearm. This is consistent with Mr. Norman’s defense. As such,

defense counsel’s omission cannot be considered ineffective assistance.

{¶43} Mr. Norman next asserts defense counsel was ineffective for proffering

“nonsensical evidence.” Specifically, defense counsel proffered emails and statements

that Mr. Beninato allegedly sent and said to Ms. Hamilton after the incident. The trial court

determined that such evidence was not admissible. We fail to see, however, that

counsel’s proffer was an example of deficient performance that prejudiced Mr. Norman.

To the contrary, defense counsel was simply preserving the record in the event an error

was assigned on appeal regarding the trial court’s ruling.

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Case No. 2025-A-0023 {¶44} Similarly, Mr. Norman claims defense counsel was ineffective for making a

“frivolous and bizarre motion to dismiss” based upon prosecutorial misconduct. The basis

for the motion was that defense counsel did not receive the information extracted from

Mr. Norman’s phone. Counsel asserted the defense should have had access to the

extraction in its entirety because “[t]here might have been exculpatory evidence on there

from previous times.” Defense counsel underscored that the prosecutor “made a big deal”

about Mr. Norman knowing nothing about the alleged abuse committed by Mr. Beninato

against Ms. Hamilton. Counsel maintained that, by withholding the extraction, the

prosecutor committed misconduct. The trial court overruled the motion based upon

evidence that nothing, other than potential cumulative information, was gathered from the

phone. We conclude that defense counsel’s motion was neither frivolous nor bizarre. It

was a bona fide attempt to defend Mr. Norman via a motion to dismiss outside the

presence of the jury. This action is not an instance of ineffectiveness.

{¶45} Next, Mr. Norman alleges counsel was ineffective for failing to renew his

Crim.R. 29 motion for acquittal at the close of the evidence. Where an appealing party

fails to renew a motion for acquittal at the close of evidence, such an omission does not

forfeit or waive his or her right to argue evidential sufficiency on appeal. See State v.

Brown, 2007-Ohio-2005, ¶ 35 (5th Dist.). In Brown, the court observed “‘[i]n two

apparently little-recognized cases, however, the Ohio Supreme Court stated that a failure

to timely file a Crim.R. 29(A) motion during a jury trial does not waive an argument on

appeal concerning the sufficiency of the evidence.’” Brown at ¶ 35, quoting State v. Coe,

2003-Ohio-2732, ¶ 19 (4th Dist.), citing State v. Jones, 2001-Ohio-57, ¶ 48 (holding

“[a]ppellant’s ‘not guilty’ plea preserved his right to object to the alleged insufficiency of

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Case No. 2025-A-0023 the evidence proving the prior offense.”), citing State v. Carter, 1992-Ohio-127, ¶ 25. The

failure to renew the motion for acquittal did not prejudice Mr. Norman.

{¶46} Mr. Norman next challenges defense counsel’s “confounding and troubling”

closing argument. Mr. Norman first asserts defense counsel’s reference to his “memory

issues” was a suggestion that he was unable to effectively defend him. Specifically,

defense counsel stated, “I’m going to be 74 years old in two days, three days, so it’s not

done intentionally, but I get old and sometimes my memory is not as good as your

collective memories . . . It’s not done intentionally.” It is unclear how this is evidence of

deficient performance or how it could prejudice Mr. Norman. A common reading of

counsel’s statement would indicate he was simply relating to the jury at a “human” level.

Connecting with a jury is fundamental to a litigator’s success and counsel’s statement, in

context, reflects an attempt to establish such a connection. Also, counsel’s statement

could be understood to provide the jury a plausible and acceptable reason to believe Mr.

Norman’s defense, regardless of what counsel highlighted in closing. That is, counsel’s

concession illustrates that his closing, irrespective of the points counsel underscored,

should not be viewed as a contradiction of its view of the evidence. The statement is not

an admission of inability or disability but a strategic point to assist in Mr. Norman’s

defense.

{¶47} Next, Mr. Norman takes issue with counsel’s reference to Mr. Beninato’s

alcohol levels at the time of the incident. As observed above, given the ultimate evidence,

this point was likely utilized to show that, in conjunction with a purported history of violence

against Ms. Hamilton, Mr. Beninato’s intoxication may have played a role in his alleged

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Case No. 2025-A-0023 instigation of the physical altercation of Ms. Hamilton. Counsel’s remark does not show

ineffectiveness.

{¶48} Mr. Norman also challenges counsel’s mention of his daughter’s history with

domestic violence. This is not evidence of deficient performance, let alone evidence that

defense counsel somehow prejudiced Mr. Norman’s defense. The remark, read in

context, was meant to show that potentially abused women “keep going back” to their

abusers. Explaining, in this case, why Ms. Hamilton may have went outside her residence

to confront Mr. Beninato prior to the incident.

{¶49} Mr. Norman also claims defense counsel’s statement that he made many

mistakes, errors, and terrible choices that night rendered his assistance ineffective.

Defense counsel’s statements, in context, represent a reasonable attempt to humanize

Mr. Norman to the jury. The statements show Mr. Norman’s recognition that his behavior

on the night of the incident was not ideal, despite his defense-of-another defense.

{¶50} Similarly, counsel’s recognition that Mr. Norman was aware, when the

police arrived at his residence the day after the incident, that he was “probably going to

jail, prison” was an acknowledgment to the jury that Mr. Norman was scared of and

concerned about the consequences of his action. This is not an admission of guilt, but a

recognition of Mr. Norman’s feelings upon commencement of a formal investigation.

{¶51} Likewise, in the course of closing, defense counsel recognized that Mr.

Norman lied about the location of the firearm which counsel characterized as “[a]nother

dastardly, stupid thing to do.” Defense counsel’s point was not to impugn Mr. Norman,

but to show that Mr. Norman was aware that this lie was improper and would only cast

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Case No. 2025-A-0023 doubt on his motivation for striking Mr. Beninato. These statements were reasonably

strategic messages to the jury and cannot provide a basis for a claim of ineffectiveness.

{¶52} Finally, Mr. Norman points out that defense counsel misstated that there

was no evidence that the firearm used in the incident was operational. We agree that this

statement is belied by the record. Nevertheless, the statement could be viewed as

counsel equating “unloaded” with “inoperable.” Although not legally correct, colloquially

counsel may have been attempting to speak to the jury’s common instincts. Regardless,

we decline to hold that a defense lawyer is ineffective because he or she might overstate

a client’s defense during closing. In this case, we conclude that the possible

overstatement did not render counsel’s assistance ineffective.

{¶53} Taken together, we hold that defense counsel was not deficient in his

performance during closing and Mr. Norman suffered no prejudice from counsel’s

representations to the jury.

{¶54} Mr. Norman next claims that “trial counsel did nothing and said nothing at

appellant’s sentencing” and was therefore ineffective. At sentencing, defense counsel

stated that he had reviewed the presentence investigation report (“PSI”) and had no

insertions or deletions. He also advised the court that Mr. Norman had a right to allocution,

which Mr. Norman declined to exercise. Mr. Norman fails to identify what else defense

counsel should have or could have done that would have redounded to his benefit. He

also fails to identify how counsel’s actions or lack of action prejudiced him at sentencing.

There was a PSI that was ordered and reviewed. Moreover, the jury did not accept Mr.

Norman’s defense-of-another defense. The court, with these points in mind, was

obligated to impose a lawful sentence. Counsel’s reticence or decision not to speak can

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Case No. 2025-A-0023 be viewed as a reasonable strategy. If counsel reasserted the defense that the jury did

not accept, Mr. Norman could be seen as lacking contrition for the actions of which he

was convicted. We fail to see how counsel was ineffective for not speaking more to

mitigate Mr. Norman’s sentence.

{¶55} Next, Mr. Norman asserts defense counsel was ineffective because he

“failed to advise the appellant to accept a plea deal.” This argument lacks fundamental

merit.

{¶56} The Sixth Amendment, which “grants to the accused personally the right to

make his defense,” “speaks of the ‘assistance’ of counsel, and an assistant, however

expert, is still an assistant.” Faretta v. California, 422 U.S. 806, 819-820 (1975). The Sixth

Amendment “contemplat[es] a norm in which the accused, and not a lawyer, is master of

his own defense.” Gannett Co. v. DePasquale, 443 U.S. 368, 382, fn. 10 (1979), citing

Faretta at ¶ 819-820. Trial management is an attorney’s province: Counsel provides his

or her help by making decisions such as “‘what arguments to pursue, what evidentiary

objections to raise, and what agreements to conclude regarding the admission of

evidence.’” (Citations omitted.) Gonzalez v. United States, 553 U.S. 242, 248 (2008),

quoting New York v. Hill, 528 U.S. 110, 115 (2000). Some decisions, however, are

reserved for the defendant/client—“notably, whether to plead guilty, waive the right to a

jury trial, testify in one’s own behalf, and forgo an appeal.” McCoy v. Louisiana, 584 U.S.

414, 422 (2018), citing Jones v. Barnes, 463 U.S. 745, 751 (1983).

{¶57} On February 25, 2024, prior to trial, a status hearing was held wherein Mr.

Norman rejected a plea offer that would require him to plead guilty to felonious assault

and domestic violence in Case No. 2023-CR-567 (involving an unknown victim) to run

PAGE 18 OF 30

Case No. 2025-A-0023 consecutively with charges of felonious assault and having weapons while under disability

in Case No. 2023-CR-568 (the underlying matter). At the hearing, Mr. Norman stated that

the offer would require him “to do six years for the both - - or put them together for that

one; and then the next one, they’re going to put those together with the six and equal out

to 12, with a tail.” After discussion with the court, Mr. Norman rejected that plea offer, and

the trial court indicated that Mr. Norman understood the nature of the offer.

{¶58} On August 5, 2024, prior to trial, the parties convened for a second status

conference/plea offer. The second plea offer was only related to Case No. 2023-CR-568

(the underlying matter), and the State indicated it would be willing to dismiss the firearm

specification on the felonious assault charge “for a stipulated sentence of six years.” After

the court confirmed that Mr. Norman understood the offer, he rejected it.

{¶59} Mr. Norman clearly desired to proceed to trial, and defense counsel could

not compel Mr. Norman to enter the plea. Considering Mr. Norman’s representations on

record, with counsel assisting him, we conclude defense counsel was not ineffective for

failing to advise Mr. Norman to enter one of the pleas offered by the State.

{¶60} Finally, Mr. Norman claims defense counsel was ineffective for, at some

point, representing both himself and Ms. Hamilton, the “State’s key witness.” We do not

agree.

{¶61} During Ms. Hamilton’s direct examination, she admitted that Mr. Norman’s

defense counsel “was” her attorney.1 Even if, however, there is a real question of the

ethical propriety of counsel formerly (or currently) representing Ms. Hamilton, thereby

1. The State did not specifically object to this revelation. Further, it is unclear whether Ms. Hamilton meant defense counsel still “was” her attorney or, in the past, “was” her attorney.

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Case No. 2025-A-0023 creating a potential issue of performance deficiency, Mr. Norman fails to establish any

prejudice.

{¶62} During Ms. Hamilton’s cross-examination, defense counsel elicited

testimony that inured to Mr. Norman’s advantage and assisted his defense. Ms. Hamilton

stated on direct examination by the State that she initially lied to police regarding Mr.

Beninato pushing and shoving her. Ms. Hamilton testified she was not attempting to help

Mr. Norman’s defense. Nevertheless, Ms. Hamilton, on cross-examination, testified to

various incidents which occurred prior to the underlying matter where Mr. Beninato was

behaving violently toward her. Even if defense counsel had a conflict of interest in cross-

examining his own previous or current client, any prejudice was shouldered by the State,

not Mr. Norman. In the context of the defense, Mr. Norman suffered no prejudice from the

potential conflict.

{¶63} Mr. Norman’s first assignment of error lacks merit.

{¶64} Mr. Norman’s second assignment of error alleges:

{¶65} “The trial court erred in excusing jurors inconsistently.”

{¶66} Under this assigned error, Mr. Norman asserts the trial court erred by

removing one juror, A.H., from the panel after the close of evidence and allowing another,

N.K., to remain. We disagree.

{¶67} After the defense rested, the prosecutor advised the court that “someone in

the courtroom is posting on Facebook about our trial . . . .” It was determined that A.H.

had received a message to her personal Facebook account from one Rick Noble—an

acquaintance of Mr. Norman. A.H. brought the issue to the attention of the court and the

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Case No. 2025-A-0023 court interviewed each juror. The record indicates that the trial court had advised the

jurors not to check Facebook or any other social media.

{¶68} “In cases involving outside influence on jurors, trial courts are granted

‘broad discretion’ in dealing with the contact and determining whether to declare a mistrial

or to replace the affected juror.” State v. McKnight, 2005-Ohio-6046, ¶ 191, quoting State

v. Phillips, 1995-Ohio-171, ¶ 54.

{¶69} The trial judge took the matter seriously. The judge requested a police

officer to take a screenshot of the messages in question. The court, in addressing the

contact with A.H., noted the person attempting to contact her “was trying to give you

information you’re not supposed to have.” A.H. advised the court that she saw “a name

and then [she] didn’t look at anything else.”

{¶70} After the interview with A.H., the trial court asked if any other juror had

contact with Facebook. Juror N.K. volunteered that he “don’t do Facebook,” but “just

scrolled.” The trial court asked N.K. did “you look at anything involving any person or any

subject matter about this case?” N.K. responded, “No, sir.” The court then confirmed that

simply looking at Facebook would not affect N.K.’s view of the subject matter in the case.

{¶71} Ultimately, the State requested A.H. be excused because “the concern I’m

having is the fact that someone on Facebook knows she’s a juror.” Defense counsel

argued that, during the court’s dialogue with A.H., the juror could be fair and impartial

regardless of the contact. Moreover, defense counsel emphasized that the court cured

any issue through its statements and caveats that the jury should only consider the

evidence.

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Case No. 2025-A-0023 {¶72} The trial court granted the State’s request to excuse A.H. Defense counsel

argued, however, that if the trial court was going to excuse A.H., it should, by implication,

excuse N.K. The trial court determined: “Based upon my review of Rick Noble’s Facebook

page where I did not see this on there, and based upon my looking at [A.H.’s] personal

cell phone and Facebook messages, I will be excusing her because it looks like she may

have been targeted.” The trial court emphasized that the court’s decision did not suggest

Mr. Norman had anything to do with the third-party-to-juror contact.

{¶73} Defense counsel strenuously argued that the dismissal of A.H. from the jury

was inappropriate. And, even if A.H.’s dismissal from the panel was proper, counsel

asserted that N.K.’s inclusion was problematic. Defense counsel argued that if one juror

violated the court’s declaration not to peruse Facebook or other social media sites, then

any other juror who did should be excused as well. In other words, defense counsel

maintained that either both jurors should stay or both should go.

{¶74} The trial court only excused A.H. because, after reviewing the juror’s cell

phone, it appeared she was specifically targeted by Rick Noble. The trial court’s review

of A.H.’s cell phone indicated there may have been an attempt to influence her. Mr.

Norman does not offer any argument to the contrary.

{¶75} N.K., alternatively, stated he had received no messages relating to the case.

He could not be viewed as a “target” of outside influence in this respect.

{¶76} Given the trial court’s statement regarding juror targeting, we hold the

dismissal of juror A.H. was reasonable and not in any way inconsistent with its decision

to allow juror N.K. to remain on the panel. This decision is sufficient to uphold the trial

court’s decision.

PAGE 22 OF 30

Case No. 2025-A-0023 {¶77} Further, it bears noting that, when A.H. was removed, there was only a

single alternate juror remaining. Had both A.H. and N.K. been removed, the parties would

have either needed to stipulate to a jury of 11 or declare a mistrial. State v. Wilson, 2002-

Ohio-1854, ¶ 73-74 (1st Dist.), citing United States v. Toribio-Lugo, 164 F.Supp.2d 251

(P.R. 2001). Given that N.K. was not an arguable target on social media and the court

believed A.H. was, and, if both jurors were excused, the proceedings were subject to a

mistrial after submission of all evidence, we discern no abuse of discretion in the court’s

decision.

{¶78} Mr. Norman’s second assignment of error lacks merit.

{¶79} For his third assigned error, Mr. Norman asserts:

{¶80} “The trial court erred in admitting hearsay with regard to serious physical

harm/injuries.”

{¶81} Mr. Norman asserts the State was required to prove serious physical harm

to establish the felonious-assault charge. The State, however, failed to call a medical

expert to testify to Mr. Beninato’s injuries and also failed to produce authenticated medical

records of such injuries. Mr. Norman asserts that the State only called Mr. Beninato to

testify to his injuries. Mr. Norman points out that those records from the Ashtabula County

Medical Center, which were properly introduced, contained no diagnosis. Further, the

substantial records submitted from MetroHealth were not certified and should not have

been introduced. Mr. Norman maintains that, other than hearsay, there was no proof of

serious physical harm or injury.

{¶82} While Mr. Normann provides a reasonably sound argument regarding the

records submitted by the State, he fails to recognize that R.C. 2903.11(A)(2) allows the

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Case No. 2025-A-0023 State to prove felonious assault when a victim suffers “physical harm” when the attack

occurs with a deadly weapon. Mr. Norman was indicted based upon the allegation that

he “did knowingly cause serious physical harm to [Mr. Beninato] and/OR did knowingly

cause or attempt to cause physical harm to [Mr. Beninato] by means of a deadly weapon

or dangerous ordinance, to wit: handgun . . .” (Emphasis added.)

{¶83} The State concedes that the introduction and admission of the medical

records from MetroHealth was error. We do not disagree. Nevertheless, even if the

records were excluded, there was sufficient, credible evidence to support the jury’s finding

that Mr. Norman committed felonious assault under R.C. 2903.11(A)(2). As such, the

admission of the records was harmless.

{¶84} Specifically, photos of Mr. Beninato’s injuries were taken after the incident.

They depict a particularly gruesome head injury which was bleeding profusely. Moreover,

the photos demonstrated that Mr. Beninato’s head bleed was so significant that blood had

puddled next to him as he sat unresponsive after the incident. Moreover, Mr. Norman

admitted the fact of the assault in which he “pistol whipped” Mr. Beninato in the head.

{¶85} R.C. 2901.01(A)(3) defines “physical harm to persons” as “any injury,

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

State could have called the treating physician at MetroHealth or an analogous caregiver

with first-hand knowledge of the specific injuries Mr. Beninato suffered, the photographic

exhibits were sufficient to establish that Mr. Beninato experienced physical harm due to

Mr. Norman striking him with a deadly weapon. The depictions of Mr. Beninato’s injuries

in the photos demonstrate that he suffered physical harm and this conclusion is consistent

with a layperson’s common knowledge or experience of a “physical injury.” See State v.

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Case No. 2025-A-0023 Segoria, 2024-Ohio-1392, ¶ 40-41 (2d Dist.) (photos of injuries sufficient to establish

serious physical harm in a felonious assault prosecution).

{¶86} Mr. Norman’s third assignment of error is without merit.

{¶87} For his fourth assigned error, Mr. Norman asserts:

{¶88} “The trial court’s sentence was unreasonable and contrary to law.”

{¶89} R.C. 2953.08(G) governs an appellate court’s review of felony sentences,

and provides, in relevant part, that after an appellate court’s review of the record, it “may

increase, reduce, or otherwise modify a sentence that is appealed under this section or

may vacate the sentence and remand . . . if it clearly and convincingly finds either . . .

[t]hat the record does not support the sentencing court’s findings under division . . . (C)(4)

of section 2929.14 [to impose consecutive sentences] [or t]hat the sentence is . . . contrary

to law.” See also State v. Lamb, 2023-Ohio-2834, ¶ 9 (11th Dist.); State v. Gwynne, 2023-

Ohio-3851, ¶ 15.

{¶90} “‘“[A] sentence is contrary to law when it does not fall within the statutory

range for the offense or if the trial court fails to consider the purposes and principles of

felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in R.C.

2929.12.”’” Lamb at ¶ 10, quoting State v. Shannon, 2021-Ohio-789, ¶ 11 (11th Dist.),

quoting State v. Brown, 2017-Ohio-8416, ¶ 74 (2d Dist.).

{¶91} That said, “this court has frequently noted that ‘even though a trial court is

required to consider the R.C. 2929.11 and R.C. 2929.12 factors, it is not required to make

specific findings on the record to comport with its statutory obligations.’” Lamb at ¶ 10,

quoting Shannon at ¶ 17.

PAGE 25 OF 30

Case No. 2025-A-0023 {¶92} “[A] trial court ‘fulfills its duty under the statutes by indicating that it has

considered the relevant sentencing factors.’” State v. Clinton, 2017-Ohio-9423, ¶ 243,

quoting State v. Smith, 2014-Ohio-1520, ¶ 14 (8th Dist.).

{¶93} Further, even where the record is silent as to R.C. 2929.11 and R.C.

2929.12, there is a presumption that the court considered the required factors; that is,

consideration of the appropriate factors set forth in R.C. 2929.11 and R.C. 2929.12 can

be presumed unless the defendant affirmatively shows to the contrary. State v. Jones,

2014-Ohio-29, ¶ 13 (8th Dist.). And, significantly, “[n]othing in R.C. 2953.08(G)(2) permits

an appellate court to independently weigh the evidence in the record and substitute its

judgment for that of the trial court concerning the sentence that best reflects compliance

with R.C. 2929.11 and 2929.12.” State v. Jones, 2020-Ohio-6729, ¶ 42.

{¶94} In entering sentence, the trial court stated it considered the purposes and

principles of the sentencing statutes. It also stated it considered the overriding purpose

to punish offenders and protect the public from future crimes. The trial court reviewed the

PSI, which indicated Mr. Norman had a juvenile record and a lengthy adult record. The

trial court recited various crimes in which Mr. Norman was involved, each of which

included the use of violence. The court therefore concluded that recidivism was likely.

The court also reviewed the facts of the case and determined that the “more-serious”

factors overrode the “less-serious” factors. The court proceeded to sentence Mr. Norman

to three years on the firearm specification, eight to 12 years on the felonious assault

charge to be served consecutively with a 36-month prison term for the weapons under

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Case No. 2025-A-0023 disability charge. The court made all the necessary findings under R.C. 2929.14(C)(4) to

impose consecutive sentences.2

{¶95} Mr. Norman’s fourth assignment of error lacks merit.

{¶96} Mr. Norman’s fifth and sixth assigned errors shall be addressed together.

They provide:

“[5.] The appellant’s conviction (jury verdict) was against the sufficiency of the evidence.

“[6.] The appellant’s conviction (jury verdict) was against the manifest weight of the evidence.”

{¶97} Mr. Norman’s assignments of error challenge the sufficiency and weight of

the evidence supporting the conviction. When an appealing party challenges both the

sufficiency and the weight of the evidence, an appellate court's conclusion that the verdict

is consistent with the manifest weight presupposes it was also supported by sufficient

evidence. State v. Masters, 2020-Ohio-864, ¶ 17 (11th Dist.).

{¶98} With this point in mind, a court reviewing a challenge to the manifest weight

of the evidence observes the entire record, “‘weighs the evidence and all reasonable

inferences, considers the credibility of the witnesses and determines 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.’” State

v. Schlee, 1994 WL 738452, *5 (11th Dist. Dec. 23, 1994), quoting State v. Davis, 49 Ohio

App.3d 109, 113 (8th Dist. 1988). Put differently, the court must assess conflicting

2. Although the court did not recite the R.C. 2929.14(C)(4) factors verbatim, the court did determine that the victim suffered a very serious injury, and that Mr. Norman’s history of criminal conduct demonstrated that consecutive sentences are necessary to protect the public from future crimes. Further, in setting forth its “recidivism-likely” discussion, the court indicated that Mr. Norman represented a danger to the public. Even though the court’s imposition of consecutive sentences on each count is not a model of statutory compliance, the record the court made at the sentencing hearing sufficed to meet its burden.

PAGE 27 OF 30

Case No. 2025-A-0023 testimony, review rational inferences that may be drawn from the evidence, and evaluate

the strength of the conclusions drawn therefrom. A challenge to the weight of the evidence

requires a court to consider whether the State met its burden of persuasion. State v.

McFeely, 2009-Ohio-1436, ¶ 78 (11th Dist.).

{¶99} Under his final assignments of error, Mr. Norman asserts he had no intent

to harm Mr. Beninato. Specifically, Mr. Norman contends the State failed to establish he

knowingly caused physical harm to Mr. Beninato with a deadly weapon. Instead, he

asserts he was simply trying to protect Ms. Hamilton and Mr. Beninato’s injuries were a

coincidence of his true and admitted intent.

{¶100} “Proof of guilt in a criminal prosecution may be made by circumstantial

evidence, real/physical evidence, and direct evidence, or any combination of the three,

and all three have equal probative value.” State v. Dietrich, 2024-Ohio-2039, ¶ 13 (11th

Dist.).

{¶101} The mens rea of knowingly is statutorily defined as follows:

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.

R.C. 2901.22(B).

{¶102} Further, “[t]he legal concept of ‘knowingly’ incorporates the scienter

requirement that one ought to know one’s actions will ‘probably cause certain results.’

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Case No. 2025-A-0023 The concept of reasonable probability literally embraces the concept of foreseeability.”

State v. Barker, 2012-Ohio-522, ¶ 114 (11th Dist.),

{¶103} In this matter, a reasonable juror could conclude that striking another person

in the head with a firearm, regardless of Mr. Norman’s motivation or his subjective desires,

would cause physical harm to Mr. Beninato. One can easily foresee such an outcome

and the outcome is probable. As a result, we conclude that Mr. Norman, regardless of his

personal motivation or purpose, can be imputed with an awareness and therefore legal

“knowledge” that his actions would probably cause the result that occurred.

{¶104} Mr. Norman’s fifth and sixth assigned errors lack merit.

{¶105} For the reasons discussed in this opinion, the judgment of the Ashtabula

County Court of Common Pleas is affirmed.

MATT LYNCH, P.J.,

ROBERT J. PATTON, J.,

concur.

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Case No. 2025-A-0023 JUDGMENT ENTRY

For the reasons stated in the opinion of this court, appellant’s assignments of error

are without merit. It is the judgment and order of this court that the judgment of the

Ashtabula County Court of Common Pleas is affirmed.

Costs to be taxed against appellant.

JUDGE EUGENE A. LUCCI

PRESIDING JUDGE MATT LYNCH, concurs

JUDGE ROBERT J. PATTON, concurs

THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY

A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.

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Case No. 2025-A-0023