[Cite as State v. Stokes, 2016-Ohio-7520.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 2016-CA-4 : v. : T.C. NO. CRB1501268 : DAVID L. STOKES : (Criminal appeal from : Municipal Court) Defendant-Appellant : : ...........
OPINION
Rendered on the ___28th___ day of ____October____, 2016.
...........
BETSY A. DEEDS, Atty. Reg. No. 0076747, Assistant Prosecuting Attorney, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee
JAY A. ADAMS, Atty. Reg. No. 0072135, 36 N. Detroit Street, Xenia, Ohio 45385 Attorney for Defendant-Appellant
.............
DONOVAN, P.J.
{¶ 1} Defendant-appellant David L. Stokes appeals his conviction and sentence
for one count of assault, in violation of R.C. 2903.13(A), a misdemeanor of the first
degree. Stokes filed a timely notice of appeal with this Court on January 28, 2016.
{¶ 2} The incident which forms the basis for the instant appeal occurred on July 4,
2015, when the victim, Jason Henderson, was attacked by Stokes in the front yard of his -2-
residence located at 469 Florence Avenue in Fairborn, Ohio. At the time of the attack,
Henderson had just dropped off his daughter at the home of a neighbor who lives on the
same street as Stokes. After dropping his daughter off, Henderson walked down the
street to return the child’s stroller to her mother, Cara Shaw, who lives next door to Stokes
at 475 Florence Avenue.
{¶ 3} Upon leaving Shaw’s residence, Henderson allegedly walked across a
portion of Stokes’ yard. Stokes observed Henderson walk through part of his yard
through the glass screen door on the front of his house. At that point, Stokes ran out of
his house, tackled Henderson, slammed him to the ground, and began punching him in
the face. As a result of the attack, Henderson suffered a large gash on his head and
several raised knots. Henderson was later treated for his injuries at Soin Medical Center.
{¶ 4} Shaw testified that she was standing on her front porch when Henderson
initially arrived to return the stroller. Henderson put the stroller in Shaw’s garage and
began to walk through the yard back towards the street. Shaw then observed Stokes
“come running like a football player” and tackle Henderson to the ground and strike him
several times with his fists. Shaw testified that it appeared as if Henderson did not see
Stokes before he was tackled and had no opportunity to defend himself. Shaw further
testified that she ran over to where the altercation was taking place and began yelling at
Stokes to stop hitting Henderson. It was only when another neighbor, Joyce Jarvis, ran
over and yelled at Stokes to stop that he stopped beating Henderson, got up, and went
back into his house. Shaw also testified that she was the individual who called 911.
{¶ 5} Fairborn Police Officers Sortman and Osburn responded to the scene of the
attack. Officer Sortman interviewed Jarvis and also viewed a video recorded by -3-
surveillance equipment installed by Stokes outside of his residence. Officer Sortman
testified that the video captured part of the interaction between Henderson and Stokes.
Specifically, Officer Sortman testified that the video depicted Henderson walking
diagonally across Stokes’ yard. The video then shows Stokes burst out of his front door
and run directly at Henderson. Officer Sortman testified that the surveillance camera
was unable to record the actual physical attack because of its placement on Stokes’
house.
{¶ 6} Officer Osburn testified that he interviewed Shaw and Henderson when he
arrived at the scene. Officer Osburn described Shaw as hysterical and noted that
Henderson was obviously injured with a cut above his right eye, a large knot and bruising
by his left eye, and grass in his hair. Officer Sortman also questioned Stokes who
admitted to tackling Henderson to the ground and punching him. Officer Osburn further
testified that he watched the surveillance video with Officer Sortman, and he observed
that Stokes ran out of his house at high speed directly towards where Henderson was
walking. Upon concluding his investigation, Officer Osburn placed Stokes under arrest
for the assault of Henderson.
{¶ 7} Stokes testified on his own behalf at trial, claiming that he was acting in self-
defense when he tackled Henderson and struck him. Stokes testified that he had issues
with Henderson in the past and had warned him several times to stay out of his yard.
Stokes also testified that he heard Henderson yelling at him in his front yard. Stokes
testified that he went to investigate the yelling and observed Henderson standing in his
front yard taunting him. Stokes further testified that he ran out of his house, as depicted
in the surveillance video, and confronted Henderson. Stokes testified that Henderson -4-
then attempted to remove something out of his pants pocket. Allegedly fearing for his
safety at this point, Stokes tackled Henderson to the ground and struck him several times
in his face.
{¶ 8} A misdemeanor complaint for assault was filed against Stokes in Fairborn
Municipal Court on July 6, 2015. At his arraignment on the same day, Stokes, acting pro
se, entered a plea of not guilty to the charged offense. Thereafter, counsel for Stokes
filed a notice of appearance on July 24, 2015, and entered a plea of not guilty on his
client’s behalf.
{¶ 9} A jury trial was held on December 2, 2015, after which Stokes was found
guilty of misdemeanor assault. The trial court ordered the adult probation department to
conduct a presentence investigation report (PSI). On December 29, 2015, the trial court
sentenced Stokes to 180 days in jail, suspended 150 days of his sentence, and ordered
him to serve twenty-nine days of house arrest with an alcohol monitoring device and work
release. The trial court gave Stokes jail time credit of one day and ordered him to pay a
fine of $200.00. Stokes was also ordered to pay $1,650.62 in restitution to Soin Medical
Center and was ordered to have no contact with Henderson.
{¶ 10} It is from this judgment that Stokes now appeals.
{¶ 11} Stokes’ first assignment of error is a follows:
{¶ 12} “APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL.”
{¶ 13} In his first assignment, Stokes contends that he received ineffective
assistance when his trial counsel failed to move for an acquittal pursuant to Crim.R. 29 at
the close of the State’s case as well as the conclusion of Stokes’ case. -5-
{¶ 14} “When considering an allegation of ineffective assistance of counsel, a
two-step process is usually employed. First, there must be a determination as to whether
there has been a substantial violation of any of defense counsel's essential duties to his
client. Next, and analytically separate from the question of whether defendant's Sixth
Amendment rights were violated, there must be a determination as to whether the
defense was prejudiced by counsel's ineffectiveness.” State v. Bradley , 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), citing State v. Lytle, 48 Ohio St.2d 391, 396-397, 358 N.E.2d
623 (1976), vacated in part on other grounds, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d
1154 (1978).
{¶ 15} The above standard contains essentially the same requirements as the
standard set forth by the United States Supreme Court in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “When a convicted defendant
complains of the ineffectiveness of counsel's assistance, the defendant must show that
counsel's representation fell below an objective standard of reasonableness.” Id. at 687-
688. “Because of the difficulties inherent in making the evaluation, a court must indulge
a strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance.” Id. Thus, counsel's performance will not be deemed ineffective
unless and until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises from counsel's
performance. Id.
{¶ 16} For a defendant to demonstrate that he has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a reasonable probability
that, absent counsel's errors, the result of the trial would have been different. Bradley at -6-
143. A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Strickland at 694.
{¶ 17} In order to establish ineffective assistance of counsel, there must be a
showing that counsel's performance fell below an objective standard of reasonable
representation and, in addition, that prejudice arose from counsel's performance. Failure
to move for an acquittal under Crim.R. 29 is not ineffective assistance of counsel, where
the evidence in the State's case demonstrates that reasonable minds can reach different
conclusions as to whether the elements of the charged offense have been proved beyond
a reasonable doubt, and that such a motion would have been fruitless. State v.
Poindexter, 2d Dist. Montgomery No. 21036, 2007-Ohio-3461, ¶ 29. In ruling on
a Crim.R. 29 motion for acquittal, the trial court is obligated to view the evidence in a light
most favorable to the prosecution. State v. Bridgeman, 55 Ohio St.2d 261, 263, 381
N.E.2d 184 (1978).
{¶ 18} In reviewing a challenge to the sufficiency of the evidence, we must
determine whether any rational trier of fact, viewing the evidence in the light most
favorable to the prosecution, could have found that the state had proven the essential
elements of the crime beyond a reasonable doubt. See State v. Jenks, 61 Ohio St.3d
259, 273, 574 N.E.2d 492 (1991). As is clear from the above analysis, the standard for a
Crim.R. 29 motion is the same as the standard used in a challenge to the sufficiency of
the evidence.
{¶ 19} A review of the record convinces us that the State's evidence identifying
Stokes as the perpetrator of the assault, which consisted of the eyewitness testimony of
Shaw and Henderson, as well as the testimony of Officers Osburn and Sortman, was -7-
sufficient as a matter of law to overcome a Crim.R. 29 motion for judgment of acquittal at
the end of the State’s case. Additionally, the physical injuries sustained by Henderson
are well documented by the evidence adduced at trial.
{¶ 20} Furthermore, Stokes testified that he tackled Henderson to the ground and
struck him several times after he acted as if he was about to pull something out of his
pocket. However, the jury was free to discredit Stokes’ testimony that he acted in self-
defense when he attacked Henderson. Had a motion for acquittal been made by
defense counsel, it would have been properly overruled. When viewed in a light most
favorable to the prosecution, rational minds could have reached the conclusion that the
State proved that Stokes was the perpetrator of the charged offense beyond a reasonable
doubt. Thus, defense counsel was not ineffective for failing to make a Crim.R. 29 motion
at the close of the State's case or the conclusion of the case of the defense because
sufficient evidence was adduced at trial to support Stokes' conviction.
{¶ 21} Stokes also argues that his trial counsel was ineffective for seeking advice
from the bench regarding what questions counsel could ask the State’s witnesses during
cross-examination. Specifically, Stokes argues that his trial counsel failed to properly
question Henderson and Shaw regarding inconsistencies in their direct testimony and
their statements to the police. “Hindsight is not permitted to distort the assessment of
what was reasonable in light of counsel's perspective at the time, and a debatable
decision concerning trial strategy cannot form the basis of a finding of ineffective
assistance of counsel.” State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813
N.E.2d 964, ¶ 37 (2d Dist.), citing Strickland, supra; State v. Parker, 2d Dist. Montgomery
No. 19486, 2003-Ohio-4326, ¶ 13. -8-
{¶ 22} We have held that “trial counsel's decision to cross-examine a witness and
the extent of such cross-examination are tactical matters.” State v. Russell, 2d Dist.
Montgomery No. 21458, 2007-Ohio-137, ¶ 55. “A reviewing court may not second-
guess decisions of counsel which can be considered matters of trial strategy.” State v.
Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 56 (2d Dist.), citing State v. Smith, 17 Ohio
St.3d 98, 477 N.E.2d 1128 (1985). “Debatable strategic and tactical decisions may not
form the basis of a claim for ineffective assistance of counsel, even if, in hindsight, it looks
as if a better strategy had been available.” Id., citing State v. Cook, 65 Ohio St.3d 516,
524, 605 N.E.2d 70 (1992).
{¶ 23} In the instant case, the record establishes that Stokes’ trial counsel was not
ineffective during his cross-examinations of the State’s witnesses. Throughout the trial,
it is evident that the defense strategy was to establish that Henderson initiated the
confrontation, and that Stokes was merely acting in self-defense when he assaulted
Henderson. The record establishes that defense counsel vigorously cross-examined the
State’s witnesses, specifically Shaw and Henderson, regarding any prior inconsistent
statements, as is evident from the following excerpts from the trial:
Defense Counsel: Do you have any idea – you said that he ran at
you and kind of bull rushed you; do you have any idea why that would
happen?
Henderson: Like I said, when he was beating me up [Stokes] said –
he said he knew that – he said I know --- n****r I know you’re the one who
slashed my tires on his truck, I guess his tires got slashed and he said while
he’s beating me up he said I was doing it – that I did it, but I’ve been at the -9-
homeless shelter for months before that even happened.
Q: Did you – did you write that out in your statement, those things
that he said; do you recall?
A: I don’t recall.
***
Defense Counsel: Okay. You said you filled out a statement; I’d like
to put it on the overhead and show you what you said that day. Is that your
statement that – does this look like your statement that you made that day?
Shaw: Yes.
Q: And your signature is at the bottom here?
A: Yes, sir.
Although ultimately unsuccessful, the foregoing testimony establishes that defense
counsel attempted to impeach Henderson and Shaw’s credibility by questioning them
about how their statements to police compared to their trial testimony.
{¶ 24} Furthermore, defense counsel presented three witnesses, including Stokes,
who all testified that Henderson was the initial aggressor, and Stokes was simply
defending himself. The fact that Stokes was ultimately found guilty of assault by the jury
does not immediately lead to the conclusion that defense counsel was ineffective. Upon
review, we conclude that Stokes has failed to establish that defense counsel’s cross-
examination of Henderson and Shaw fell below an objective standard of reasonableness.
{¶ 25} Stokes’ first assignment of error is overruled.
{¶ 26} Stokes’ second assignment of error is as follows:
{¶ 27} “THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE AND -10-
SUSTAINING OBJECTIONS BY THE STATE OF OHIO.”
{¶ 28} In his second assignment, Stokes argues that the trial court erred when it
prohibited him from introducing certain prior bad acts of Henderson which could have
bolstered his self-defense claim.
{¶ 29} Absent an error of law, the admission or exclusion of evidence is a matter
committed to the discretion of the trial court, and its decision regarding the admission and
exclusion of evidence will not be reversed absent a demonstration of an abuse of that
discretion. State v. Bell, 176 Ohio App.3d 378, 2008–Ohio–2578, 891 N.E.2d 1280, ¶
40 (2d Dist.). An abuse of discretion occurs when the trial court's decision is
unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404
N.E.2d 144 (1980).
{¶ 30} Upon review, we find that contrary to Stokes’ argument in this assignment,
the record establishes that the trial court did allow defense counsel to cross-examine
Henderson regarding prior bad acts but properly limited the amount of detail that could
be presented to the jury. The trial court allowed Stokes to testify about his tires being
recently slashed and his belief that Henderson was responsible. Additionally, Stokes
was allowed to testify extensively regarding another prior incident where he alleged that
Henderson had attempted to goad him into a fight in the street in front of Stokes’
residence.
{¶ 31} However, when defense counsel attempted to elicit testimony regarding
past incidents between Shaw and Stokes’ girlfriend, Erin O’Kelley, the State objected and
the trial court sustained the objection on relevance grounds. The trial court also properly
sustained the State’s objection to defense counsel’s attempt to impeach regarding -11-
Henderson’s prior conviction for misdemeanor assault. Except for crimes of
dishonesty, Evid.R. 609 does not provide for the admission of prior misdemeanor
convictions, including assault or domestic violence, for purposes of impeachment.
See State v. Mayes, 12th Dist. Madison No. CA99-01-002, 1999 WL 1270987 (Dec. 30,
1999). Appellant's prior misdemeanor assault conviction is neither a felony nor an
offense involving dishonesty. Therefore, the trial court did not err when it prohibited
defense counsel from attempting to impeach Henderson with evidence of his prior
misdemeanor assault conviction.
{¶ 32} Stokes’ second assignment of error is overruled.
{¶ 33} Stokes’ third and final assignment of error is as follows:
{¶ 34} “THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.”
{¶ 35} In this assignment, Stokes argues that his conviction for assault is against
the manifest weight of the evidence. In support, although he admitted to tackling
Henderson and striking him several times, Stokes contends that the evidence he adduced
at trial clearly establishes beyond a reasonable doubt that he was acting in self-defense.
{¶ 36} When a conviction is challenged on appeal as being against the weight of
the evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider witness credibility, 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.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A
judgment should be reversed as being against the manifest weight of the evidence “only -12-
in the exceptional 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).
{¶ 37} This court will not substitute its judgment for that of the trier of facts on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97–CA–03, 1997 WL
691510 (Oct. 24, 1997).
{¶ 38} Stokes was convicted of misdemeanor assault, in violation of R.C.
2903.13(A), which provides that “[n]o person shall knowingly cause or attempt to cause
physical harm to another or to another's unborn.”
{¶ 39} With respect to Stokes’ manifest weight argument, there was evidence in
the record upon which the jury could rely in finding that Stokes ran out of his house,
tackled Henderson, slammed him to the ground, and began punching him in the face.
As a result of the attack, Henderson suffered a large gash on his head and several raised
knots, while Stokes had no visible injuries. Furthermore, Stokes presented the
affirmative defense of self-defense, which necessarily involves the admission of the
conduct constituting assault. See State v. Ashe, 2d Dist. Montgomery No. 26528, 2016-
Ohio-136, ¶ 39. On the self-defense issue, Stokes’ argument is unpersuasive because
both Henderson and Shaw’s testimony supports a conclusion that Stokes was at fault in
creating the situation giving rise to the affray. Under such circumstances, a self-
defense claim necessarily fails. State v. McDermott, 2d Dist. Montgomery No. 21046,
2005-Ohio-5233, ¶ 11.
{¶ 40} It is well settled that evaluating witness credibility is primarily for the trier of
fact. State v. Benton, 2d Dist. Miami No. 2010–CA–27, 2012–Ohio–4080, ¶ 7. A trier of -13-
fact does not lose its way and create a manifest miscarriage of justice if its resolution of
conflicting testimony is reasonable. Id. Here, the jury quite reasonably could have
credited Henderson and Shaw’s testimony that Stokes ran out of his house, tackled
Henderson, slammed him to the ground, and began punching him in the face. The jury
was free to disbelieve the basis for Stokes’ self-defense testimony, namely that he
observed Henderson attempt to take something out of his pocket before attacking him.
Accordingly, the trial court did not lose its way and create a manifest miscarriage of justice
in reaching a guilty verdict for assault.
{¶ 41} Stokes’ third assignment of error is overruled.
{¶ 42} All of Stokes’ assignments of error having been overruled, the judgment of
the trial court is affirmed.
..........
FAIN, J. and HALL, J., concur.
Copies mailed to:
Betsy A. Deeds Jay A. Adams Hon. J. Timothy Campbell