State v. Swift

2022 Ohio 2283

• Court: Ohio Court of Appeals
• Decided: June 30, 2022
• Docket: 2022-A-0005
• Status: Published

Opinion

[Cite as State v. Swift, 2022-Ohio-2283.]

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

STATE OF OHIO, CASE NO. 2022-A-0005

Plaintiff-Appellee, Criminal Appeal from the -v- County Court, Eastern District

THERSEA R. SWIFT, Trial Court No. 2021 CRB 00195 E Defendant-Appellant.

OPINION

Decided: June 30, 2022 Judgment: Affirmed in part, reversed in part, and remanded

Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

Nicole M. Novotny, Ashtabula County Public Defender’s Office, Inc., 22 East Jefferson Street, Jefferson, OH 44047 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Thersea R. Swift, appeals from her convictions for

Domestic Violence and Endangering Children, following a bench trial in the Ashtabula

County Court, Eastern District. For the following reasons, we reverse and vacate Swift’s

conviction for Endangering Children, affirm her conviction for Domestic Violence, and

remand for the trial court to enter sentence accordingly.

{¶2} On May 26, 2021, a complaint was filed in the Ashtabula County Court,

Eastern District, charging Swift with Endangering Children, a misdemeanor of the first degree, in violation of R.C. 2919.22(B)(1) and (E)(2)(a), and Domestic Violence, a

misdemeanor of the first degree, in violation of R.C. 2919.25(A).

{¶3} A bench trial was held on September 1, 2021. The following pertinent

testimony was presented:

{¶4} On May 25, 2021, T.K., Swift’s 14-year-old daughter, was outside of her

grandparents’ home when Swift accused her of hitting her three-year-old brother, D.G.,

who had a scratch on his neck. According to T.K., she, Swift, and her brother entered the

home, where Swift asked her grandmother about the scratches. D.G. accused T.K. of

hitting him, which she denied. Swift began hitting T.K. on the right side of her face, first

with an open hand and then with a closed fist. T.K. testified that her grandmother, uncle,

and a friend witnessed the attack. T.K.’s face was red and swollen for a couple days and

a tooth was broken.

{¶5} Elizabeth Swift, T.K.’s grandmother, was in the kitchen with her friend and

son when Swift entered, dragging in D.G. and asking what happened to him. Elizabeth

attempted to explain that a dog caused the scratches when D.G. stated that T.K. had hit

him, which she believed was untrue. Swift then slapped T.K., pushed her down a step,

pinned her on the landing, and punched her in the face multiple times with a closed fist.

This resulted in half of her tooth breaking off.

{¶6} John Swift, T.K.’s uncle, observed Swift enter the house and ask about T.K.

hitting D.G. John saw Swift slap T.K., push her down steps, and punch her multiple times

in the face with a closed fist.

{¶7} Janice Bortles, Elizabeth’s friend who lived at the residence, also observed

Case No. 2022-A-0005 Swift slap T.K., push her against the wall, knock her down, and punch her multiple times

with a closed fist. She also saw T.K. had a broken tooth after the incident. She testified

that she only mentioned the slapping in her police statement but did not put everything

down because she is “not good at writing.”

{¶8} The State rested and defense counsel “reserved” moving for acquittal

pursuant to Criminal Rule 29 until the defense rested.

{¶9} Thersea Swift testified that she witnessed T.K. hit her brother in the neck

and had been kicking and hitting him during that week. After she saw this, she went

inside the house with the children. She spoke to T.K. who cursed at her. Swift testified

that she tried to “smack [T.K.] in the shoulder, she ducked, I got her face,” and admitted

that she had been “reckless.” Swift’s brother and father then came into the kitchen and

her father said “we’ve been planning on taking your kids for a while now. Liz, it’s a great

opportunity. Call the police. Call them now.” Swift denied punching T.K. with a closed

fist and was unaware of any injuries caused.

{¶10} The court found Swift guilty of Domestic Violence and Endangering

Children. A sentencing hearing was held on January 20, 2022. The court ordered Swift

to serve concurrent terms of 180 days in jail on the two offenses with 179 days

suspended, and a period of probation of up to five years.

{¶11} Swift timely appeals and raises the following assignment of error:

{¶12} “Where trial counsel’s overall performance at trial is deficient as to be

ineffective, a reviewing court must evaluate whether trial counsel’s defective performance

denied Appellant a fair trial based on ineffective assistance of counsel.”

Case No. 2022-A-0005 {¶13} As an initial matter, we note that, although not raised by the parties, there

is a jurisdictional concern. A reviewing court may “consider a challenge to the court’s

subject-matter jurisdiction for the first time on appeal, * * * either at the parties’ suggestion

or sua sponte.” Lycan v. Cleveland, 146 Ohio St.3d 29, 2016-Ohio-422, 51 N.E.3d 593,

¶ 27; State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 10

(“[s]ubject-matter jurisdiction cannot be waived and is properly raised” sua sponte on

appeal) (citation omitted). “An appellate court may sua sponte consider whether the trial

court possessed the power to entertain an action, even where the litigants themselves fail

to raise the issue.” Burns v. Dailey, 114 Ohio App.3d 693, 701, 683 N.E.2d 1164 (11th

Dist.).

{¶14} Pursuant to R.C. 2151.23(A)(6), “[t]he juvenile court has exclusive original

jurisdiction * * * [t]o hear and determine all criminal cases in which an adult is charged

with” endangering children in violation of R.C. 2919.22(B)(1), “provided the charge is not

included in an indictment that also charges the alleged adult offender with the commission

of a felony arising out of the same actions that are the basis of the alleged violation.”

Here, Swift was charged with two misdemeanors, one of which was Endangering Children

under R.C. 2919.22(B)(1), and there was no indictment with a felony charge. Thus, the

trial court, a county court, did not have jurisdiction to try Swift on the charge of

Endangering Children. Under the same circumstances, this court has found that such a

conviction is void and must be vacated. State v. Bell, 11th Dist. Portage No. 2020-P-

0060, 2021-Ohio-899, ¶ 3 (vacating conviction for child endangering when such

conviction was in a municipal court and tried with a misdemeanor assault charge). See

Case No. 2022-A-0005 also State v. Taylor, 2d Dist. Montgomery No. 27731, 2018-Ohio-4048, ¶ 21; State v.

Reynolds, 12th Dist. Warren No. CA2019-08-077, 2020-Ohio-4354, ¶ 5-6. Upon this

court’s request for supplemental briefing, the State conceded that the Endangering

Children conviction must be vacated.

{¶15} As such, we find Swift’s conviction for Endangering Children is void and

vacate that conviction. We will consider the merits of the assigned error as they relate to

the Domestic Violence conviction.

{¶16} In order to convict Swift of Domestic Violence, the State was required to

prove, beyond a reasonable doubt, that she did “knowingly cause or attempt to cause

physical harm to a family or household member.” R.C. 2919.25(A).

{¶17} Swift argues that defense counsel did not effectively represent her, pointing

to his failure to object to questions relating to her criminal record and that she was

“prejudiced because evidence of other bad acts was presented which affected the value

of the evidence presented.” She also contends that counsel was ineffective by failing to

move for acquittal and that there was a lack of a trial strategy.

{¶18} To demonstrate ineffective assistance of counsel, a defendant must prove

“(1) that counsel’s performance fell below an objective standard of reasonableness, and

(2) that counsel’s deficient performance prejudiced the defendant resulting in an

unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 87 Ohio

St.3d 378, 388-389, 721 N.E.2d 52 (2000), citing Strickland v. Washington, 466 U.S. 668,

687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To show that a defendant has been

prejudiced by counsel’s deficient performance, the defendant must prove that there exists

Case No. 2022-A-0005 a reasonable probability that, were it not for counsel’s errors, the result of the trial would

have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),

paragraph three of the syllabus. “There is a strong presumption that the attorney’s

performance was reasonable.” State v. Gotel, 11th Dist. Lake No. 2006-L-015, 2007-

Ohio-888, ¶ 10.

{¶19} Swift first argues that counsel was ineffective by failing to object to

questioning as to whether she had been previously charged with Domestic Violence.

{¶20} In the present matter, during Swift’s cross-examination by the State, the

prosecutor inquired: “Have you ever been charged with domestic violence before?” to

which Swift responded in the negative. The prosecutor then asked “nothing in 2011?” to

which Swift responded: “That was a disorderly conduct.”

{¶21} Under Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove” a defendant’s character as to criminal propensity but is admissible

for other purposes, including proof of “motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” Here, the questions asked were

intended to elicit testimony that Swift had been charged with prior crimes and none of the

exceptions for admissibility appear to be applicable.

{¶22} The State contends that the questions about the prior charges were asked

to impeach the truthfulness of Swift’s statement on direct examination that nothing like

this incident had occurred before. Pursuant to Evid.R. 609(B), the trial court has

discretion, taking into consideration various factors, to determine the admissibility of prior

convictions for impeachment purposes in relation to convictions for crimes “punishable by

Case No. 2022-A-0005 * * * imprisonment in excess of one year.” State v. Neiss-Parsons, 11th Dist. Geauga No.

2020-G-0253, 2021-Ohio-897, ¶ 28; Evid.R. 609(A)(2). Here, it appears that the charges

about which the state inquired were misdemeanors. This court has noted that Evid.R.

608 allows the use of a misdemeanor conviction to impeach the accused “in certain

circumstances.” State v. Peppeard, 11th Dist. Portage No. 2008-P-0058, 2009-Ohio-

1648, ¶ 50. While the inquiry here related to charges rather than convictions, under

Evid.R. 608, specific instances of conduct may be inquired about in cross-examination

relating to the witness’ character for truthfulness at the court’s discretion. Under the

present circumstances, it is difficult to say whether the trial court would have “likely * * *

overruled” an objection to questions about past criminal charges, as the State contends.

{¶23} Regardless, even presuming reasonable counsel would have objected

under these circumstances, the element of prejudice has not been demonstrated by Swift.

Initially, we emphasize it is presumed that, in a bench trial in a criminal matter, the court

will consider only the relevant, competent, material, and admissible evidence “unless it

affirmatively appears to the contrary.” (Citation omitted.) State v. Montgomery, 148 Ohio

St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 132; Peppeard at ¶ 45. We find no

affirmative demonstration that the court relied upon any past convictions or charges in

reaching its verdict. The court stated its reasons for the verdict on the record and did not

mention this issue in relation to witness credibility but instead emphasized that Swift’s

testimony was inconsistent with the other witnesses.

{¶24} Further, even where evidence of prior bad acts is improperly admitted, it

does not warrant reversal where no prejudice has been suffered. Improperly admitted

Case No. 2022-A-0005 evidence is harmless and lacks prejudice “if ‘the remaining evidence alone comprises

“overwhelming” proof of defendant’s guilt.’” State v. Barker, 11th Dist. Portage No. 2013-

P-0084, 2014-Ohio-4131, ¶ 94, citing State v. Williams, 6 Ohio St.3d 281, 290, 452 N.E.2d

1323 (1983) (citation omitted). We find that “the strength of the remaining evidence as to

the offenses * * * negated the risk of prejudice.” State v. Zachery, 11th Dist. Trumbull No.

2019-T-0082, 2021-Ohio-2176, ¶ 37. Four witnesses testified for the State, each

providing testimony that Swift punched T.K. in the face multiple times. Their testimony

was consistent in describing the timeline of events, how the assault occurred, and the

harm caused to T.K. The only contrary evidence was Swift’s testimony, in which she

admitted to hitting T.K. although she denied that it was with a closed fist.

{¶25} Swift also argues that trial counsel was ineffective by failing to move for

acquittal under Crim.R. 29 at the close of the State’s case.

{¶26} Courts have held “the failure of trial counsel to make a Crim.R. 29 motion

does not constitute ineffective assistance of counsel when the state’s case-in-chief links

the defendant to the crimes of which he or she is accused.” (Citation omitted.) State v.

Beesler, 11th Dist. Ashtabula No. 2002-A-0001, 2003-Ohio-2815, ¶ 17; State v.

Cookingham, 11th Dist. Ashtabula No. 2017-A-0023, 2017-Ohio-8362, ¶ 33. See also

State v. Scott, 6th Dist. Sandusky No. S-02-026, 2003-Ohio-2797, ¶ 21 (“[w]hile it is

customary for defense counsel to make a motion for acquittal as a matter of course to

test the sufficiency of the state’s evidence, the failure to follow that course of action did

not mean the performance of appellant’s trial counsel fell below a reasonable standard of

representation”) (citation omitted).

Case No. 2022-A-0005 {¶27} In the present matter, at the time the State rested, it had presented the

testimony of several witnesses, all giving consistent versions of the events that

established Swift repeatedly punched her daughter in the face with a closed fist and

caused her physical harm. There was evidence supporting each element of the crime

and Swift has failed to identify how it was deficient not to move for acquittal in these

circumstances. Given the extensive amount of testimony presented to establish the

commission of the crime at the conclusion of the State’s case, counsel could reasonably

recognize that such motion “would have been denied because the state presented

adequate evidence to sustain the verdict.” Beesler at ¶ 19; Cookingham at ¶ 33 (“since

there was more than sufficient evidence to support each and every charge against

Cookingham, a motion for acquittal would not have resulted in a different outcome and

Cookingham suffered no prejudice”). It is worth emphasizing that, after Swift offered her

contrary version of events, counsel then did move for acquittal.

{¶28} Finally, Swift argues that counsel was ineffective for the failure to have a

clear trial strategy and to incorporate the defense of reasonable parental discipline

throughout the case.

{¶29} “Judicial scrutiny of counsel’s performance is to be highly deferential, and

reviewing courts must refrain from second-guessing the strategic decisions of trial

counsel. To justify a finding of ineffective assistance of counsel, the appellant must

overcome a strong presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.” State v. Carter, 72 Ohio St.3d 545, 558, 651

N.E.2d 965 (1995).

Case No. 2022-A-0005 {¶30} In arguing for the Crim.R. 29 motion, defense counsel observed that

reasonable parental discipline is a defense to Domestic Violence. “Proper and

reasonable discipline,” defined as “suitable or appropriate” and “not extreme,” is an

affirmative defense in relation to a conviction for actions taken to discipline a child. Niles

v. Cadwallader, 11th Dist. Trumbull No. 2003-T-0137, 2004-Ohio-6336, ¶ 22. In support,

he argued that an open-handed slap to the face would be reasonable discipline. This tied

together the testimony presented in relation to the potential defense. It is unclear what

additional steps Swift believes counsel should have taken in relation to this issue.

Defense counsel also took other actions to present Swift’s defense, including pointing out

inconsistencies in witness testimony, such as Bortles’ failure to report conduct beyond a

slap in her police statement. He asked questions emphasizing the lack of photographs

of injuries. He elicited testimony from Swift to demonstrate potential witness bias due to

a custody dispute. His defense of Swift was within the scope of reasonable representation

and we find no reason to second-guess his strategy.

{¶31} Further, even presuming counsel should have attempted to emphasize

reasonable parental discipline more strongly, Swift fails to demonstrate prejudice. Four

separate witnesses testified that she punched her daughter in the face multiple times,

which would not be reasonable parental discipline. As observed above, the evidence

demonstrated overwhelmingly that Swift’s conduct was beyond a slap.

{¶32} Finally, Swift argues that the “cumulative errors” made by counsel warrant

reversal. As noted above, we do not find multiple errors committed by defense counsel.

Further, even if we agreed that counsel’s performance was deficient, this did not impact

Case No. 2022-A-0005 the outcome of the proceedings and thus do not warrant reversal. State v. Messenger,

2021-Ohio-2044, 174 N.E.3d 425, ¶ 77 (10th Dist.) (“because [defendant] is unable to

demonstrate the requisite prejudice under the second prong of Strickland, the

cumulative effect of the alleged errors did not deprive him of a fair trial”); State v. Johnson,

11th Dist. Ashtabula No. 2009-A-0050, 2010-Ohio-3046, ¶ 38.

{¶33} The sole assignment of error is without merit.

{¶34} For the foregoing reasons, Swift’s conviction for Domestic Violence is

affirmed, her conviction for Endangering Children is reversed, and this matter is

remanded for the trial court to enter sentence accordingly. Costs to be taxed against the

parties equally.

THOMAS R. WRIGHT, P.J.,

CYNTHIA WESTCOTT RICE, J.

concur.

Case No. 2022-A-0005