State v. Roland

2021 Ohio 4077

• Court: Ohio Court of Appeals
• Decided: November 17, 2021
• Docket: C-210299, C210300
• Status: Published

Opinion

[Cite as State v. Roland, 2021-Ohio-4077.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-210299 C-210300 Plaintiff-Appellee, : TRIAL NOS. B-1901497 B-2004037 vs. :

FERNANDO ROLAND, : O P I N I O N. Defendant-Appellant. :

Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: November 17, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Fernando Roland appeals his conviction for domestic violence after a

bench trial. Raising four assignments of error, Roland contends that his conviction

was not supported by sufficient evidence and was against the manifest weight of the

evidence, he was denied the effective assistance of counsel, and the imposition of

consecutive sentences was not supported by the record. For the following reasons,

we affirm the trial court’s judgment.

Factual Background

{¶2} In 2019, Fernando Roland pleaded guilty to domestic violence, a felony

of the fourth degree, in the case numbered B-1901497. Roland was sentenced to

three years of community control. The court informed Roland that if he violated the

conditions of community control, he would be sentenced to 18 months in prison.

{¶3} On August 20, 2020, Roland was indicted in the case numbered B-

2004037 for domestic violence, a felony of the fourth degree, for causing physical

harm to Cierra Polk, a family or household member. Roland’s probation officer filed

two community-control violations in the case numbered B-1901497, one for the

police contact for the new domestic-violence charge, and one for failing to provide an

accurate address.

{¶4} Roland pleaded not guilty to the new domestic-violence charge and

proceeded to a bench trial. At trial, the theory of defense was that Roland and Polk

were not household members, so he could only be convicted of a misdemeanor

assault. To establish that the two were household members, the state relied on the

testimony of Polk, text messages that Roland sent to Polk, and two letters that

Roland sent to Polk while he was in jail awaiting trial.

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{¶5} Polk testified that Roland was her ex-boyfriend, who had been living

with her in her apartment from April or May of 2020 until the incident in August

2020. He slept there every night and kept his clothing, toothbrush, shoes, jewelry,

and other personal items at her home. About a month or two after Roland’s arrest,

his mother came to the apartment and retrieved his belongings. Polk stated that they

shared bills; she paid the rent, and he paid for the internet and cell phones. Polk also

relayed a text conversation where Roland referred to her apartment as “home” and

suggested that they purchase a mattress together. The text messages were admitted

into evidence.

{¶6} While in jail, Roland sent Polk two letters. In one letter, he expressed

that he missed “waking up next to [her],” “looking at [her] sleep,” “watching [her]

cook,” and walking in on her in the bathroom. Roland also affirmed that he still

wished to marry her and buy her a car when he was released. Roland referred to

himself as “her husband.”

{¶7} Polk further testified that she left work at 7 a.m. that morning and was

driven home by a male coworker. On the way home, they stopped at a store where

she purchased a bottle of wine and a bottle of Long Island Iced Tea. When she

arrived home, Roland repeatedly questioned her about the male coworker who

brought her home. The two drank both bottles, so Roland went to the store to

purchase more alcohol. Before he left, Polk had gone outside to sit in front of the

building to get away from him.

{¶8} When Roland returned from the store, he asked her to return to the

apartment and assured her that he would not put his hands on her. When they

reached the living room, he began hitting her on the back of her neck with an open

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hand. At some point, he took her phone. Polk went to bed, and, as she was lying in

her bed, Roland dragged her out of the bed by her foot and started “stomping” on her

chest, arms, face, back, and shoulders. After that, she lay unconscious on the floor.

Polk did not realize she was injured until the police arrived.

{¶9} Polk testified that she was lying on the ground when the police arrived.

The police informed her that her lip was bleeding, and that there was blood on her

pillow. The state introduced photographs taken by the police documenting a bloody

lip, a scratch on her forehead, a swollen eye, and blood on her pillow. Polk stated

that the neighbors called the police.

{¶10} On cross-examination, Polk testified that she would typically drink

both bottles of alcohol, but that night, she shared the alcohol with Roland. They both

consumed the third bottle that Roland bought. She admitted that she was

intoxicated that night, and that the police statement she provided was difficult to

read due to her intoxication.

{¶11} After reviewing the statement, she agreed that she had omitted

numerous details such as the slaps in the neck, the “stomping,” and the

unconsciousness. Polk explained that the statement was vague because she was

scared. Polk testified that she told the officers that the injuries to her nose and eye

occurred that night. She also told them about a prior incident that she could not

remember. She further testified that there were several incidents that she could not

remember because she was so intoxicated. Polk denied telling the officers that the

nose and eye injuries were from a prior incident.

{¶12} Counsel for Roland requested a short break to return to her office and

retrieve the body-camera recording from an officer who responded to Polk’s home.

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Counsel explained to the court that Polk’s testimony contradicted her statements to

the police, and she wished to use the recording to impeach Polk’s credibility. The

court admonished counsel for not being prepared, and after a ten minute break, the

trial resumed.

{¶13} The video was played, and Polk agreed that she had told the officers

that the injuries to her nose and eye occurred two weeks prior. Polk testified that she

did not know her nose was injured and could not remember how she injured it. The

video also revealed that Polk was in her bed when the police arrived and not on the

floor as she previously testified.

{¶14} The prosecutor and trial judge wanted the recording admitted as an

exhibit. The court again chastised defense counsel for not coming to court prepared

with a recording that could be admitted during trial. The court explained that the

delay in admitting the exhibit would prevent the court from ruling that day from the

bench. The recording was admitted into evidence after the trial concluded.

{¶15} Next, the state called Roland’s probation officer, Kellie Winter, who

testified that Roland informed her that he lived on Wildbranch in Butler County. In

October and November 2019, Winter went to Wildbranch to conduct a home check,

but Roland was not there. On one occasion, she visited in the early morning, and his

sister-in-law confirmed that he lived there. Winter did not enter the home to verify

that Roland resided there. After Winter’s testimony, the state rested.

{¶16} Roland’s brother, Antwan Roland, who lived on Wildbranch, testified

that Roland had been living with him for about a year. Roland received mail at the

home and his personal belongings, such as toothbrush, clothing, hats, shoes,

PlayStation console, controllers, and games were there. Antwan testified that Roland

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occasionally spent the night at Polk’s home, but primarily slept at the Wildbranch

home. Polk spent many nights with Roland at the home.

{¶17} Roland’s final witness was Johnny Gillard. Gillard and Roland coach

their sons’ football team together. Roland accompanied Gillard once or twice a week

to Gillard’s brother’s home, “the man cave,” with a group of men to have cocktails

and play games. Occasionally, Polk would accompany Roland. Many times, Roland

slept “at the man cave.” When he did not sleep there, Roland’s brother would pick

him up from “the man cave.” Roland’s brother also picked him up after football.

{¶18} After taking the matter under advisement, the trial court found Roland

guilty of domestic violence. After rendering the verdict, Roland pled no contest to

the probation violations and was found guilty. The trial court sentenced him to 12

months in prison on the domestic-violence conviction and 18 months in prison on

the community-control violation. The court ordered the terms to be served

consecutively.

{¶19} Roland appeals presenting four assignments of error.

Sufficiency and Manifest Weight

{¶20} In his first two assignments of error, argued together, Roland contends

that the trial court erred in finding him guilty because the finding was based on

insufficient evidence, and the verdict was against the manifest weight of the

evidence.

{¶21} In reviewing a challenge to the sufficiency of the evidence, a reviewing

court must determine whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

of the crime had been proved beyond a reasonable doubt. State v. Jenks, 61 Ohio

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St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶22} When considering a challenge to the weight of the evidence, an

appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether, in

resolving conflicts in the evidence, the trier of fact clearly lost its way and created a

manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997).

{¶23} The credibility of the witnesses is an issue for the trier of fact to

resolve. See State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001). “Because

the trier of fact sees and hears the witnesses and is particularly competent to decide

‘whether, and to what extent, to credit the testimony of particular witnesses,’ we

must afford substantial deference to its determinations of credibility.” Barberton v.

Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047,¶ 20, citing State v.

Konya, 2d Dist. Montgomery No. 21434, 2006-Ohio-6312, ¶ 6, quoting State v.

Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).

“ ‘[W]hen conflicting evidence is presented at trial, a conviction is not against the

manifest weight of the evidence simply because the [finder of fact] believed the

prosecution testimony.’ ” (Citation omitted.) State v. Hammerschmidt, 9th Dist.

Medina No. CA2987-M, 2000 WL 254902, *4 (Mar. 8, 2000).

{¶24} Roland was convicted of domestic violence in violation of R.C.

2919.25(A), which provides that “[n]o person shall knowingly cause or attempt to

cause physical harm to a family or household member.” Roland contends that the

state failed to establish that he was a “household member” and that he knowingly

caused her physical harm.

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{¶25} A household member includes “a person living as a spouse” which is

defined, in relevant part, as “a person who is living or has lived with the offender in a

common law marital relationship, who otherwise is cohabiting with the offender[.]”

R.C. 2919.25(F)(1)(a)(i) and 2919.25(F)(2). Where the state demonstrates the

accused was the victim’s boyfriend and they had lived together, the state has met its

burden. See State v. McGlothan, 138 Ohio St.3d 146, 2014-Ohio-85, 4 N.E.3d 1021, ¶

15; State v. Schwegmann, 1st Dist. Hamilton No. C-180053, 2018-Ohio-3757, ¶ 18-19

(finding sufficient evidence of cohabitation where the defendant and the victim had

been dating for six months and the defendant lived with the victim for a month prior

to the domestic violence).

{¶26} Viewing the evidence in a light most favorable to the prosecution,

Polk’s testimony that Roland was her boyfriend and had lived with her for at least

three months at the time of the offense was sufficient to prove he was a household

member. Polk’s testimony that Roland slapped her and kicked her in the face

coupled with the photographic evidence of the cut and bloody lip was sufficient to

prove that Roland caused physical harm. The natural, reasonable and probable

consequence of kicking Polk in the face was sufficient to establish his intent to cause

physical harm.

{¶27} With respect to the manifest weight of the evidence, Roland argues

that the conviction was against the manifest weight of the evidence because Polk’s

testimony was not credible, and the testimony of his witnesses was more credible.

However, the trial court found Polk’s testimony to be credible. Because credibility is

an issue for the trier of fact to resolve, we cannot say that the court clearly lost its way

and created a manifest miscarriage of justice.

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{¶28} Consequently, we overrule the first and second assignments of error.

Ineffective Assistance of Trial Counsel

{¶29} In his third assignment of error, Roland argues that he was denied the

effective assistance of counsel because trial counsel failed to make a Crim.R. 29

motion and failed to be prepared with exhibits.

{¶30} To establish ineffective assistance of counsel, an accused must

demonstrate that counsel’s performance was deficient and that the deficient

performance prejudiced the accused. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The failure to make either showing is fatal to

the claim. Id. at 697. A defendant is prejudiced by counsel’s performance if there is a

reasonable probability that the outcome of the proceedings would have been

different but for the complained-of conduct. Id. at 694. “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Id. This court

must consider “the reasonableness of counsel’s challenged conduct on the facts of the

particular case, viewed as of the time of counsel’s conduct.” Id. at 690.

{¶31} As previously discussed, the evidence was sufficient to establish that

Roland was guilty of domestic violence. Therefore, Roland cannot establish that he

was prejudiced by trial counsel’s failure to move for an acquittal at the close of the

state’s case.

{¶32} Roland further argues that trial counsel was unprepared for trial

because she did not bring the body-camera recording with her to court, and the

body-camera video could not initially be submitted as an exhibit because it was not

copied on a flash drive or a compact disc.

{¶33} Trial counsel decided to play the recording after Polk’s testimony

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because some of her statements were contradicted by the recording. Counsel

requested a ten minute recess to retrieve the recording from her office. Counsel did

not intend to admit the recording as an exhibit, rather she played the recording

solely to impeach Polk. After the recording was played, the state and the court

requested that the recording be admitted as an exhibit.

{¶34} The record reveals that trial counsel was prepared for trial and

effectively questioned the witnesses. Although the trial court admonished counsel

for not initially bringing the recording to court in a format that could be immediately

admitted as an exhibit, ultimately, the recording was admitted as an exhibit for the

court to review before rendering its verdict. We cannot conclude that counsel was

ineffective for failing to anticipate that Polk’s testimony would be inconsistent with

the recording or to anticipate that the court and the prosecutor would request that

the recording be admitted as an exhibit.

{¶35} We overrule the third assignment of error.

Consecutive Sentences

{¶36} In his fourth assignment of error, Roland contends that the imposition

of consecutive sentences was not supported by the record.

{¶37} Imposition of consecutive sentences is proper only when the trial court

makes the findings required by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporates its findings into its sentencing entry. State v. Bonnell, 140 Ohio St.3d

209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. We “may increase, reduce, or otherwise

modify a sentence” if we clearly and convincingly find that the record does not

support the trial court’s findings. R.C. 2953.08(G).

{¶38} Roland argues that the trial court’s finding that consecutive sentences

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were not disproportionate to the seriousness of the offender’s conduct was not

supported by the record because Roland was not a household member and the

seriousness of the harm was in dispute.

{¶39} The record, however, establishes that Roland lived with Polk, and that

his conduct was serious. Roland kicked Polk in the face causing her to suffer from a

cut and bloody lip. Roland does not identify any evidence, let alone clear and

convincing evidence, that the trial court’s finding was unsupported by the record.

{¶40} Accordingly, we overrule the fourth assignment of error.

Conclusion

{¶41} Having overruled Roland’s four assignments of error, we affirm the

judgments of the trial court.

Judgments affirmed.

MYERS and BOCK, JJ., concur.

Please note: The court has recorded its own entry this date.