State v. Kennard, 2016 Ohio 2811

James D. Kennard was indicted for one count of domestic violence (third-degree felony) after an August 14, 2014 parking-lot assault on C.P.; the indictment alleged multiple prior domestic-violence convictions.
Parties stipulated to two prior domestic-violence convictions (2012 and 2013); the stipulation was read to the jury and judgment entries admitted.
Two independent Dispatch employees (Paas and Sledd) witnessed and corroborated C.P.’s account that Kennard grabbed her throat, pushed her against a vehicle, and assaulted her; Kennard denied the offense and offered an alibi.
The jury found Kennard guilty; he was sentenced to 30 months’ imprisonment plus mandatory post-release control. Kennard appealed.
On appeal he raised three ineffective-assistance-of-counsel claims: (1) counsel failed to object when the victim testified about facts underlying prior convictions after those convictions were stipulated; (2) counsel failed to investigate/subpoena alibi witnesses; (3) counsel failed to investigate and obtain evidence (e.g., 911 records) to impeach the victim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Failure to object to victim testimony about facts underlying stipulated prior convictions	State: testimony about prior incidents was admissible for non-propensity purposes (identity, intent, victim fear)	Kennard: counsel was ineffective for not objecting to Evid.R. 404(B) character evidence when facts underlying priors were elicited after stipulation	Overruled — even if testimony was inadmissible, exclusion would not likely have changed outcome because two eyewitnesses corroborated the assault, so no prejudice under Strickland
2) Failure to investigate/subpoena alibi witnesses	State: not directly argued separately; trial choices fall within strategy	Kennard: counsel failed to locate/subpoena witnesses (and thus deprived him of an alibi)	Overruled — claims rest on facts outside the record; speculative on direct appeal; remedy is postconviction relief; calling Eyre was reasonable trial strategy
3) Failure to obtain records (911) / impeach victim	Kennard: 911 records and other readily available evidence would have contradicted victim and impeached her credibility	State: issues require evidence outside the record; cannot resolve on direct appeal	Overruled — allegation depends on evidence not in the record; cannot show prejudice on direct appeal; postconviction route appropriate

Strickland v. Washington, 466 U.S. 668 (established two-prong ineffective-assistance standard: deficient performance and prejudice)
State v. Bradley, 42 Ohio St.3d 136 (discussing Strickland application in Ohio)
Vaughn v. Maxwell, 2 Ohio St.2d 299 (presumption of competent counsel)
State v. Smith, 17 Ohio St.3d 98 (burden of proving ineffective assistance)
State v. Hunter, 131 Ohio St.3d 67 (noting ineffective-assistance claims may exist for unreasonable investigation)
State v. Madrigal, 87 Ohio St.3d 378 (claims requiring proof outside record are inappropriate on direct appeal)