[Cite as State v. Winters, 2022-Ohio-2061.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29157 : v. : Trial Court Case No. CRB 2100049 : AALIYAH WINTERS : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :
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OPINION
Rendered on the 17th day of June, 2022.
ERIK R. BLAINE, Atty. Reg. No. 0080726, Assistant Prosecuting Attorney, City of Vandalia Prosecutor’s Office, 245 James E. Bohanan Drive, Vandalia, Ohio 45377 Attorney for Plaintiff-Appellee
JAMES S. SWEENEY, Atty. Reg. No. 0086402, 285 South Liberty Street, Powell, Ohio 43065 Attorney for Defendant-Appellant
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LEWIS, J. -2-
{¶ 1} Defendant-Appellant Aaliyah Winters appeals from her conviction for
disorderly conduct, a misdemeanor of the fourth degree, in the Vandalia Municipal Court
following a bench trial. Winters alleges that her conviction was not supported by
sufficient evidence and was against the manifest weight of the evidence. Further,
Winters claims that her attorney was ineffective for failing to file a request for discovery.
For the reasons outlined below, we modify her conviction to disorderly conduct, a minor
misdemeanor, vacate the imposition of the 30-day suspended jail sentence, and affirm
the trial court’s judgment in all other respects.
I. Facts and Procedural History
{¶ 2} Winters was charged by complaint with one count of disorderly conduct, in
violation of R.C. 2917.11(A)(3). The case proceeded to a bench trial during which the
following evidence was presented.
{¶ 3} Winters testified that on the evening of January 6, 2021, she went to a Dollar
Tree store with her two-year-old daughter to buy a pop. When Winters entered the store,
she was on the phone and was told by an employee to hurry up, because the store was
going to close in four minutes. Winters observed it was 8:34 p.m. and asked the
employee what time the store closed. The employee indicated the store closed at 9 p.m.
{¶ 4} Winters told the person she was on the phone with that she hated when
employees try to close the stores early just because they want to get home. Apparently
having overheard Winters’ comment, the employee responded to Winters. While initially -3-
Winters ignored the employee’s comments, she eventually exchanged words with the
employee. At some point, the employee told Winters she would call the police. Winters
decided to stay inside the store and wait for the police to arrive.
{¶ 5} Deputy Tori Bargo of the Montgomery County Sheriff’s Office testified that
she responded to a dispatch regarding a disorderly subject refusing to leave the store
and arguing with employees. When she arrived, Bargo spoke with the employee of the
store, who indicated that the argument with Winters started because she refused to put a
mask on her and her daughter. At the time, the COVID pandemic was ongoing and the
mask mandate was in effect. As a result of refusing to put on a mask and having a verbal
altercation with the employee, Winters was asked to leave the store. According to
Winters, she was wearing a mask that day but her two-year-old daughter was not because
Winters did not think that she was required to wear one.
{¶ 6} Bargo located Winters in the middle of the store. At that time, Winters was
not arguing with the employee but was yelling on her phone very loudly about the
employee. Bargo advised Winters that she needed to speak with her but that they
needed to do it outside the store, because the employee wanted Winters to leave.
Winters told Bargo that neither she nor the employee could make her leave until it was
closing time or she got her pop.
{¶ 7} Bargo tried to explain to Winters that she would listen to Winters’ statements
but that they had to get outside the store. Bargo informed Winters that she needed to
stop screaming and cursing at the employee, to whomever was on the phone, and at
Bargo because Winters was causing a scene and being disorderly. Bargo told Winters -4-
to cease her conduct and that if she did not, then Winters could go to jail for disorderly
conduct. Meanwhile, the employee was verbally arguing with Winters about having to
leave the store and about the verbal altercation earlier. Bargo explained the exchanges
between Winters and the employee as “challenging,” involving not direct threats but veiled
threats. Bargo repeatedly had to separate Winters and the employee, both of whom
were loud and “on the same level of excited,” telling the employee to return to the front of
the store while trying to get Winters to leave the store. Bargo tried to reason with Winters
for approximately seven to eight minutes inside the store.
{¶ 8} Although Winters eventually agreed to leave the store and moved toward the
exit, she changed her mind and stopped, refusing to leave. As Winters and Bargo
progressed toward the exit, Winters again engaged in a verbal altercation with the
employee. After Bargo told the employee to walk away, she turned her attention back to
Winters, placed a hand on Winters’ left arm, and told Winters it was time to leave and to
go outside. Winters told Bargo not to touch her and used profane language directed at
Bargo. Bargo testified that things escalated from there.
{¶ 9} According to Bargo, when she and Winters approached the front of the store,
instead of turning left to go toward the exit, Winters went straight and advanced toward
the employee who was approximately five feet away, but Bargo grabbed Winters’ coat to
stop her. Winters denied that she made any movement towards the employee, however,
she did admit that she was still arguing with the employee during that time and both
parties were mad.
{¶ 10} Bargo testified that she attempted to place Winters up against a cart but -5-
Winters actively resisted and argued with Bargo. Bargo also attempted to get Winters to
the ground but was unsuccessful. Winters claimed she told Bargo to stop because she
was pregnant and, therefore, refused to go to the ground. During the struggle, Winters
had her cell phone in her hand, which was thrown to the floor and broken. Eventually, a
second unit arrived and the deputies were able to get Winters handcuffed and out of the
store. Winters’ lip was injured during the detention. In the process of getting Winters
out of the store, Bargo’s finger got caught in the handcuffs and was injured. Bargo
testified that the environment inside the store was very hostile and that although she did
not see a drawback of a punch, she saw physical danger cues.
{¶ 11} Once Winters was removed from the store, she was placed in the backseat
of Bargo’s police cruiser, which was audio- and video-recorded. While in the backseat,
Winters spoke with another officer, Sergeant Vitali, who had arrived on scene. When
Sgt. Vitali asked Winters why she did not just leave the store when they asked her to, she
explained that she was mad and just wanted to tell her story. She admitted that she
should have just left the store. Winters admitted at trial that Bargo asked her to leave
the store “like twice” and she did not immediately leave the store.
{¶ 12} Upon the close of the State’s case-in-chief, Winters made a general Crim.R.
29(A) motion that the trial court overruled. After Winters testified and Bargo provided
rebuttal testimony, the trial court found Winters guilty of disorderly conduct, in violation of
R.C. 2917.11(A)(3) and (E)(3)(a), a misdemeanor of the fourth degree. The trial court
immediately imposed sentence of 30 days in jail, suspended on the condition that no
criminal offenses occur for the next two years, plus a $25 fine and court costs. Winters -6-
timely appealed from the trial court’s judgment.
{¶ 13} Winters raises the following three assignment of errors:
THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT THE
DEFENDANT’S MOTION FOR ACQUITTAL AS THE GUILTY VERDICT
AT THE TRIAL COURT WAS NOT SUPPORTED BY SUFFICIENT
EVIDENCE.
THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT
AGAINST THE APPELLANT WHEN THE JUDGMENT WAS NOT
SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
TO A DEGREE THAT SHE DID NOT RECEIVE A FAIR TRIAL.
II. Preliminary Issues
{¶ 14} Winters argues that because she was charged under R.C. 2917.11(A)(3),
the State was required to prove that the words she used during the altercation amounted
to “fighting words” in order for her conviction to stand. Winters contends there was no
evidence to support that she used fighting words. The State, on the other hand, claims
that Winters was not specifically charged with the (A)(3) section but with R.C. 2917.11(A)
generally, because she was actually charged with R.C. 2917.11(E)(3)(a), meaning that
she could be convicted under any subsection of R.C. 2917.11(A). The State did not
identify which subsection was proven at trial, only that Winters persisted in her disorderly
conduct despite reasonable warnings to stop. The trial court specifically found Winters
guilty of disorderly conduct, in violation of R.C. 2917.11(A)(3), in addition to R.C. -7-
2917.11(E)(3)(a).
{¶ 15} Pursuant to R.C. 2917.11(A)(3), a person commits disorderly conduct when
the person “recklessly cause[s] inconvenience, annoyance, or alarm to another by doing
any of the following: * * * [i]nsulting, taunting, or challenging another, under circumstances
in which that conduct is likely to provoke a violent response[.]” Disorderly conduct is a
minor misdemeanor. R.C. 2917.11(E)(2). But, if the “offender persists in disorderly
conduct after reasonable warning or request to desist,” the offense is elevated to a fourth-
degree misdemeanor. R.C. 2917.11(E)(3)(a). R.C. 2945.75(A)(1) provides that when
the presence of one or more additional elements makes an offense one of more serious
degree, the complaint “shall state the degree of the offense which the accused is alleged
to have committed, or shall allege such additional element or elements. Otherwise such
* * * complaint * * * is effective to charge only the least degree of the offense.” The
additional elements identified in R.C. 2917.11(E)(3)(a) that increase the degree of offense
of disorderly conduct from a minor misdemeanor to a fourth-degree misdemeanor
constitute essential elements that are required to be stated in the complaint or identified
in the complaint by listing the higher degree level applicable. See In re S.W., 2d Dist.
Montgomery No. 24525, 2011-Ohio-5291, ¶ 35 (“the persistence that R.C.
2917.11(E)(3)(a) contemplates is not merely an enhancement factor but an element of
the offense of disorderly conduct when persistence is charged.”); State v. Gwen, 134 Ohio
St.3d 284, 2012-Ohio-5046, 982 N.E.2d 626, ¶ 11 (where the existence of an additional
fact is required to be proven that affects the degree of the offense and not just the
punishment available upon conviction, it is an essential element of the offense). -8-
{¶ 16} Pursuant to Crim.R. 4(A)(3), in misdemeanor cases an officer “may issue a
summons in lieu of making an arrest, when issuance of a summons appears reasonably
calculated to ensure the defendant's appearance. The officer issuing the summons shall
file, or cause to be filed, a complaint describing the offense.” “The filing of a valid
complaint invokes the jurisdiction of a municipal court.” State v. Daly, 2d Dist.
Montgomery No. 29238, 2022-Ohio-632, ¶ 21, citing State v. Mbodji, 129 Ohio St.3d 325,
2011-Ohio-2880, 951 N.E.2d 1025, ¶ 12. A complaint is defined under Crim.R. 3 as a
written statement of the essential facts constituting the offense charged that states the
numerical designation of the applicable statute or ordinance, and made upon oath before
any person authorized by law to administer oaths. Ohio courts have uniformly held that
the phrase “essential facts constituting the offense charged” means those facts which the
State must prove in order to obtain a conviction, i.e., the essential elements of the crime
charged. State v. Wheeler, 2d Dist. Montgomery No. 27166, 2017-Ohio-1200, ¶ 7.
{¶ 17} In this case, Winters was not arrested at the time of the offense but was
instead issued a summons. A complaint was sworn, signed, dated, and filed with the
Vandalia Municipal Court. The complaint states, in pertinent part, that Winters did
“cause inconvenience, annoyance, and alarm to another by insulting, taunting, or
challenging another, which conduct is likely to provoke a response. To wit: continuing to
argue w/employees and attempting to initiate a fight in violation of Section 2917.11A3 of
the [Ohio Revised Code].” The complaint does not include any mention of the level of
the offense. Nor did the complaint identify subsection (E)(3)(a) or include language that
Winters persisted in disorderly conduct after reasonable warning or request to desist. As -9-
a result, Winters could only be convicted of the least degree of offense raised in the
complaint, disorderly conduct, a minor misdemeanor. See State v. Stefanopoulos, 12th
Dist. Butler No. CA2011-10-187, 2012-Ohio-4220, ¶ 37-38 (defendant could only be
convicted of minor misdemeanor disorderly conduct where the complaint failed to contain
any of the language in R.C. 2917.11(E)(3) to elevate the offense to a fourth-degree
misdemeanor).
{¶ 18} Amendments or variances may be made to the form or substance of a
complaint, but changes in the name or identity of the crime charged are not permitted.
Crim.R. 7(D). An amendment that changes the penalty or degree of the original
complaint changes the identity of the offense. State v. Davis, 121 Ohio St.3d 239, 2008-
Ohio-4537, 903 N.E.2d 609, syllabus. The record is devoid of any mention of an
amendment to the complaint, but because elevating the offense to a fourth-degree
misdemeanor would change the penalty and degree of the offense, the State could not
have amended the complaint to the higher level misdemeanor without changing the
identity of the crime charged. Thus, absent an instrument charging Winters with
disorderly conduct as a fourth-degree misdemeanor, Winters could only be convicted of
the lesser minor misdemeanor offense. City of Bellbrook v. Czelen, 2d Dist. Greene No.
89-CA-2, 1989 WL 130811, *3 (Nov. 2, 1989).
{¶ 19} It appears that all parties were under the impression that Winters was
charged under R.C. 2917.11(E)(3)(a). The parties apparently relied upon the charge
listed on the case file’s dust jacket, which was listed as R.C. 2917.11(E)(3)(a). But, “[a]
defendant cannot be tried for an elevated degree of a misdemeanor based merely upon -10-
a clerk saying so on a dust jacket.” State v. Boafor, 7th Dist. Mahoning No. 12 MA 192,
2013-Ohio-4255, ¶ 54.
{¶ 20} Winters did not directly assign as error the erroneous degree of conviction,
but because there is a dispute as to what elements the State was required to prove at
trial based on the charging document, we will sua sponte take notice of the obvious defect
that exists in this case pursuant to Crim.R. 52(B). Objections regarding defects in a
charging instrument must be raised prior to trial, otherwise, an appellate court reviews
such defects under a plain-error analysis. State v. Horner, 126 Ohio St.3d 466, 2010-
Ohio-3830, 935 N.E.2d 26, syllabus. Crim.R. 52(B) provides that “[p]lain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.” For a reviewing court to find plain error there must be an error,
the error must be an obvious defect in the proceedings, and the error must have affected
the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
{¶ 21} We find plain error here. Winters’ conviction for a higher level offense not
properly charged, coupled with a sentence that is unauthorized for the offense for which
she was in fact charged, resulted in a manifest injustice. According to the complaint, the
highest level of offense for which Winters could be convicted was disorderly conduct, a
minor misdemeanor. As a result, when considering Winters’ assignments of error, we
will confine our analysis to the offense for which she was charged, disorderly conduct
under R.C. 2917.11(A)(3), a minor misdemeanor.
III. Sufficiency of the Evidence
{¶ 22} In her first assignment of error, Winters alleges that the trial court erred by -11-
denying her Crim.R. 29(A) motion for acquittal because the verdict was not supported by
sufficient evidence. Specifically, Winters contends that evidence of the words Winters
was alleged to have made during the incident were not identified and thus cannot
constitute “fighting words” to support the trial court’s verdict.
{¶ 23} Under Crim.R. 29(A), a trial court may order a judgment of acquittal after
the close of evidence on either side if the evidence is not sufficient to sustain a conviction
for the charged offense. “When reviewing the denial of a Crim.R. 29(A) motion, an
appellate court applies the same standard as is used to review a claim based on the
sufficiency of the evidence.” (Citations omitted.) State v. Bailey, 2d Dist. Montgomery
No. 27177, 2017-Ohio-2679, ¶ 17. However, in reviewing the trial court’s denial of a
Crim.R. 29(A) motion for acquittal made at the end of the State’s case-in-chief, we
consider only the evidence then available to the trial court. Id. at ¶ 17, citing State v.
Sheppeard, 2d Dist. Clark No. 2012-CA-27, 2013-Ohio-812, ¶ 51.
{¶ 24} A sufficiency of the evidence argument disputes whether the prosecution
has presented adequate evidence on each element of the offense to permit the case to
go to the jury or to sustain the verdict as a matter of law. State v. Brock, 2019-Ohio-
3116, 140 N.E.3d 1239, ¶ 16 (2d Dist.). Our role when reviewing the sufficiency of the
evidence to support a conviction is to “examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.” State v. -12-
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The
verdict will not be disturbed unless the appellate court finds that reasonable minds could
not reach the conclusion reached by the trier-of-fact.” State v. Dennis, 79 Ohio St. 3d
421, 430, 683 N.E.2d 1096 (1997), citing Jenks at 273.
{¶ 25} “Punishment for disorderly conduct based on spoken words is prohibited
unless those words amount to ‘fighting words.’ ” City of Middletown v. Carpenter, 12th
Dist. Butler No. CA2006-01-004, 2006-Ohio-3625, ¶ 14. “ ‘Fighting’ words are those
‘which by their very utterance inflict injury or tend to incite an immediate breach of the
peace.’ ” State v. Phipps, 58 Ohio St. 2d 271, 278, 389 N.E.2d 1128 (1979) quoting
Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).
In determining whether one’s language amounts to fighting words, “one must look at the
circumstances surrounding such utterance.” State v. Presley, 81 Ohio App.3d 721, 724,
612 N.E.2d 353 (12th Dist.1992).
{¶ 26} A conviction for disorderly conduct under R.C. 2917.11(A)(3) need not be
based solely on an individual using “fighting words.” Rather, “Ohio courts have
interpreted R.C. 2917.11(A)(3) as prohibiting both the offender’s use of ‘fighting words’
and/or conduct likely to ‘provoke a violent response.’ ” State v. Schils, 12th Dist.
Clermont No. CA2019-08-67, 2020-Ohio-2883, ¶ 19, citing State v. Miller, 6th Dist. Lucas
No. L-86-281, 1987 WL 7067, *2 (Feb. 27, 1987). “The test [under the disorderly conduct
statute] is objective and focuses on whether, under the circumstances, it is probable that
a reasonable person would find the accused's language and conduct annoying or
alarming and would be provoked to want to respond violently; a person need not actually -13-
be provoked to a violent response.” State v. Blair, 2d Dist. Montgomery No. 24784,
2012-Ohio-1847, ¶ 9, citing State v. Sansalone, 71 Ohio App.3d 284, 285-286, 593
N.E.2d 390 (1st Dist.1991).
{¶ 27} Here, the prosecution’s evidence in its case-in-chief was legally sufficient to
support a finding that Winters violated R.C. 2917.11(A)(3). Deputy Bargo responded to
a call at the Dollar Tree store regarding a disorderly subject who was refusing to leave
the store and arguing with employees. Winters was found inside the store being very
loud, cussing, and arguing with the employee. She repeatedly refused to leave after being
told several times she needed to leave the store, and she also refused to stop arguing
with the employee. Both Winters and the employee were very loud and excited during
the verbal altercations and repeatedly approached each other to the point that Bargo had
to separate them several times. Significantly, Bargo testified that as she and Winters
approached the front of the store, Winters was again engaged in a verbal altercation with
the employee. Thereafter, instead of turning left to go toward the exit, Winters went
straight and advanced toward the employee. Based on Bargo’s testimony, although the
verbal confrontations between Winters and the employee did not get to the point of a
violent altercation, it was only because Bargo was able to detain Winters before she could
reach the employee. Winters then proceeded to fight off Bargo in an attempt to prevent
Bargo from handcuffing her.
{¶ 28} Furthermore, Winters acknowledged to Sgt. Vitali on the cruiser video
recording that Bargo told her more than once to leave the store and admitted that she
should have left immediately but did not. She also told Sgt. Vitali that she did not go -14-
outside and tell Bargo what happened because she was so mad at the store employee.
She stated that Bargo was being nice and trying to tell her to go outside but the employee
kept saying something to her which made her mad and caused her to continue arguing
with the employee. She also acknowledged the employee was mad during the incident.
{¶ 29} Considering Bargo’s testimony and the statements made by Winters on the
cruiser video recording, Winters’ conviction was not based solely upon the content of her
speech, but also upon her conduct under the circumstances. While the specific words
Winters uttered were not all identified, it is clear that she was arguing loudly with the
employee, swearing at the employee and at Bargo, and refusing to comply with
commands; both the employee and Winters were mad and repeatedly approached each
other. Winters and the employee were antagonistic to each other and repeatedly
engaged in verbal altercations with each other even after being told to stop, and Bargo
had to forcibly detain Winters to prevent a violent physical altercation. Viewing the
evidence in a light most favorable to the prosecution, the trier of fact could have found
Winters guilty based on the combination of her words and conduct, which were likely to
provoke a violent response. Accordingly, we overrule her first assignment of error.
IV. Manifest Weight of the Evidence
{¶ 30} In her second assignment of error, Winters alleges that her conviction was
against the manifest weight of the evidence because the State failed to prove Winters
used fighting words in order to support her conviction.
{¶ 31} “To warrant a reversal from a bench trial verdict under the manifest weight
of the evidence claim, it must be determined that the trial court clearly lost its way and -15-
created such a manifest miscarriage of justice that the judgment must be reversed and a
new trial ordered.” State v. Mills, 2d Dist. Montgomery No. 21233, 2006-Ohio-4010,
¶ 11, citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “When
engaged in this limited reweighing, the appellate court may not merely substitute its view
for that of the trier of fact[.]” State v. Thompson, 10th Dist. Franklin No. 16AP-812, 2017-
Ohio-8375, ¶ 25. The weight to be given to the evidence and the credibility of the
witnesses is primarily for the trier of fact to decide. State v. Thomas, 70 Ohio St.2d 79,
80, 434 N.E.2d 1356 (1992). A judgment should be reversed as being against the
manifest weight of the evidence “only 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).
{¶ 32} In addition to the evidence addressed in our analysis above for the
sufficiency of the evidence, additional evidence was presented that further supported
Winters’ conviction under the manifest weight standard. Specifically, Bargo described
the environment as “very hostile” and she observed “physical danger cues.” She
described Winters as using profane language directed at both the employee and Bargo
and being very loud, and she noted that there were challenges with veiled threats during
the encounter.
{¶ 33} While Bargo testified that Winters advanced toward the employee at the
front of the store, Winters denied that she made any movement towards the employee.
She did admit, however, that she was still arguing with the employee during that time and
both parties were mad. It is well-established that, when conflicting evidence is -16-
presented, a conviction is not against the manifest weight of the evidence simply because
the trier of fact believed one side's testimony over the other. We “will not substitute [our]
judgment for that of the trier of fac[t] 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. Smith, 2d Dist.
Montgomery No. 25462, 2013-Ohio-5345, ¶ 16. Considering the hostile and antagonistic
environment, the fact that the employee and Winters repeatedly engaged in verbal
altercations with each other even after being told to stop, Winters’ loud and profane
language use, and Winters’ advancement toward the employee, it was not unreasonable
for the trial court to find that Winters’ conduct occurred under circumstances likely to
provoke a violent response.
{¶ 34} Based upon our review of the combination of Winters’ words and conduct,
we cannot say that the trial court “lost its way” or created a “manifest miscarriage of
justice” when the trial court found Winters guilty. Winters’ second assignment of error is
overruled.
V. Ineffective Assistance of Counsel
{¶ 35} In her third assignment of error, Winters claims that she received ineffective
assistance of counsel for counsel’s failing to file a request for discovery. The State
responds that the record does not indicate defense counsel failed to receive all available
discovery. According to the State, the prosecutor’s office has an open file discovery
policy such that both parties use the court’s file, which contains all discovery within it.
{¶ 36} In order to prevail on an ineffective assistance of counsel claim, Winters
must prove that her attorney was ineffective under the test in Strickland v. Washington, -17-
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two-part test requires
the appellant to show, “first, that counsel’s performance was deficient and, second, that
the deficient performance prejudiced his defense so as to deprive the defendant of a fair
trial.” State v. Lott, 51 Ohio St.3d 160, 174, 555 N.E.2d 293 (1990), citing Strickland at
687. In analyzing the first prong of Strickland, there is a strong presumption that defense
counsel's conduct falls within a wide range of reasonable professional assistance.
Strickland at 689.
{¶ 37} If the first prong is met, then the defendant must show that the deficient
performance prejudiced the defense. Id. at 687. To demonstrate prejudice, “the
defendant must prove that there exists 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 (1998), paragraph one of the syllabus. An ineffective
assistance of counsel claim cannot be predicated upon vague speculations of prejudice.
State v. Otte, 74 Ohio St.3d 555, 566, 660 N.E.2d 711 (1996). The “prejudice must not
be presumed, but rather must be affirmatively shown.” State v. Saultz, 4th Dist. Ross
No. 09CA3133, 2011-Ohio-2018, ¶ 21. The failure to prove either prong of the Strickland
two-part test makes it unnecessary for a court to consider the other prong. State v.
Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), citing Strickland at 697.
{¶ 38} Crim.R. 16 governs the discovery process in criminal cases and provides
that if an accused demands discovery from the State, the accused owes a reciprocal duty
of disclosure. State v. Athon, 136 Ohio St.3d 43, 2013-Ohio-1956, 989 N.E.2d 1006,
¶ 2. The Rule also requires that parties have a continuing duty to supplement their -18-
disclosures. Crim.R. 16(A). There is no absolute requirement that a defendant must
file a discovery request and the failure to file one does not automatically demonstrate a
deficiency. Generally, whether or not to submit a request for discovery falls within the
category of trial tactics, which normally do not form the basis of ineffective assistance of
counsel. State v. Rollison, 2017-Ohio-8936, 101 N.E.3d 584, ¶ 15 (3d Dist.), citing State
v. Whittsette, 8th Dist. Cuyahoga No. 85478, 2005-Ohio-4824, ¶ 35. However, even if
we were to assume defense counsel’s decision to forego filing a request for discovery
was deficient, we do not see that such failure affected the outcome of the trial. Winters
provides no explanation as to how the outcome of her case would have been any different
but for her counsel failing to file a discovery request.
{¶ 39} Although the State alleges that the Vandalia Municipal Court Prosecutor’s
Office has an open file discovery policy, there is no record of such a policy available to
this Court. However, the record suggests that defense counsel was fully informed of the
evidence against Winters and was prepared for trial. Defense counsel filed a praecipe
and summons for the State’s only witness, Deputy Bargo, to attend both a pretrial and the
trial on defendant’s behalf. Bargo was ordered to bring with her to the pretrial “any
cruiser cam, audio recordings, digital images taken by Sgt. Vitali; action response report.”
Notably, defense counsel’s subpoena duces tecum specifically requested Sgt. Vitali’s
photographs, which defense counsel presumably would have learned through discovery,
particularly since neither Sgt. Vitali nor his photographs were mentioned in the filed
complaint. Defense counsel likewise filed a praecipe and summons for Doneva
Battigaglia for trial who was identified in the case file as one of the store clerks, but was -19-
not identified in the complaint.
{¶ 40} A review of the docket and a copy of the transcript demonstrate that neither
party brought to the trial court’s attention that discovery was not satisfied. Defense
counsel did not appear surprised by any of the testimony or single piece of evidence the
State produced at trial. On the contrary, defense counsel seemed familiar with the case
and appropriately cross-examined the State’s only witness. Counsel also reasonably
presented Winters’ testimony as a defense.
{¶ 41} Based on our review of the record, under these circumstances, Winters has
failed to establish that the failure of her counsel to request discovery has resulted in actual
prejudice or that filing a request for discovery would have changed the outcome of the
case. The third assignment of error is overruled.
VI. Sentencing
{¶ 42} Having modified and affirmed Winters’ conviction to a minor misdemeanor
offense, we must address her sentence. In addition to imposing court costs for a minor
misdemeanor offense, a trial court may sentence an offender to any financial sanction or
combination of financial sanctions that does not exceed 150 dollars. R.C.
2929.28(A)(2)(v). In lieu of all or part of a fine, the trial court could impose a term of
community service not to exceed 30 hours. R.C. 2929.27(D). However, there is no
legislative authorization for the imposition of a jail term or community control sanctions
for a minor misdemeanor. R.C. 2901.02(G)(2).
{¶ 43} Because Winters’ conviction is modified to a minor misdemeanor, her
sentence for 30 days suspended jail time cannot be imposed and must be vacated. The -20-
imposition of the $25 fine and court costs by the trial court fall within the applicable
guidelines for sentencing for a minor misdemeanor conviction and will therefore remain
undisturbed.
VII. Conclusion
{¶ 44} In sum, we conclude that the complaint only charged disorderly conduct as
a minor misdemeanor offense and, therefore, Winters could only be convicted of the
lesser degree offense, rather than a fourth-degree misdemeanor. Because there was
sufficient evidence to support a conviction for a minor misdemeanor disorderly conduct
charge and that conviction was not against the manifest weight of the evidence, we modify
Winters’ conviction for disorderly conduct to a conviction for a minor misdemeanor
disorderly conduct. The 30-day suspended jail sentence is vacated but the judgment of
the trial court is affirmed in all other respects, as modified.
{¶ 45} The judgment of the trial court is vacated in part and affirmed as modified.
TUCKER, P.J. and WELBAUM, J., concur.
Copies sent to:
Erik R. Blaine James S. Sweeney Hon. Cynthia M. Heck