[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
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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
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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
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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