Cleveland v. BryantCleveland v. Bryant
Jeffrey Froude
P.O. Box 771112
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Barbara Langhenry
Director of Law
City of Cleveland Law Department
BY: Marco A. Tanudra
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Louis Bryant, appeals from a judgment of the Cleveland Municipal Court convicting him of aggravated mеnacing. He raises three assignments of error for our review:
- The trial court erred in denying defense counsel‘s [Crim.R. 29] motion for acquittal and finding defendant guilty because insufficient evidence was presented.
- The trial court errеd in finding defendant guilty against the manifest weight of the evidence.
- Defendant received ineffective assistance of counsel because her failure to fulfill her affirmative duty to investigate and engage expert testimony рrejudiced him.
{¶2} For the reasons that follow, we affirm.
I. Procedural History and Facts
{¶3} In January 2016, plaintiff-appellee, city of Cleveland, filed a complaint in the Cleveland Municipal Court charging Bryant with aggravated menacing in violation of
{¶4} The victim testified that on the morning of December 24, 2015, he had just returned home from the store and was attempting to enter his house when he heard “a shot go off * * * come across [his] shoulder” and then “hit right up under the window.” The victim showed police where there was a small hole in his aluminum siding, just under a window that the victim believed was caused by the shot. When the victim looked across
{¶5} Cleveland police officer Brent Scaggs testified that he responded to the victim‘s call within 20 minutes and that Bryant was cooperative and polite when Officer Scaggs knocked on Bryant‘s door and explained why he was there. Bryant allowed thе officer to enter his home. Bryant then escorted the officer upstairs to where he kept an air pellet gun that matched the description of the gun that the victim had detailed to police. Bryant then procеeded to show Officer Scaggs how he used the gun.
{¶6} The officer testified that he wanted to discuss the situation with his supervisor and therefore decided to confiscate the gun in lieu of making an arrest. The officer further testified that hе observed a small hole in the siding of the victim‘s home, just beneath a window, and stated that he thought the pellet gun could have caused that type of damage.
{¶7} The city rested, and Bryant moved for a
{¶8} Bryant testified in his defense. Bryant flatly denied shooting his pellet gun at his neighbor. Although Bryant stated that he did encounter the victim on the morning of December 24, 2015, he said that the encounter only involved the victim shouting a
{¶9} At the close of all evidence, the defense renewed its motion for acquittal, which the trial court denied. The court then found Bryant guilty of the charge of aggravated menacing and sentenced him to a suspended 180-day jail term and a $1,000 fine, $950 of which the court waived.
II. Sufficiency and Manifest Weight of the Evidence
{¶10} In his first and second assigned errors, Bryant claims that the trial court erred in denying his
{¶11}
{¶12} On the other hand, a manifest-weight challenge tests whether the prosecutiоn has met its burden of persuasion. Id. On review from a manifest-weight challenge, the appellate court is tasked with reviewing all of the evidence in the record and in resolving the conflicts therein, determining whether 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.” Id. at 387. “The discretionary power to grant a new trial should be exercised only in thе exceptional case in which the evidence weighs heavily against the conviction.” Id. Moreover, this court recognizes that the “weight to be given the evidence and the credibility of the witnesses are primarily for thе trier of the fact[.]” State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and 100899, 2015-Ohio-1013, ¶ 73, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
{¶13} Here, Bryant was convicted of aggravated menacing in violation of
{¶14} The record reflects that the victim‘s testimony at trial was suffiсient, by itself, to provide sufficient evidence beyond a reasonable doubt of every single element of the offense of aggravated menacing under
{¶15} Although there wаs no direct evidence that Bryant acted knowingly to cause the victim to be afraid in this instance, the court could rationally infer the element existed based on the other evidence presented, including the evidenсe that Bryant had a gun, pointed it at his neighbor, and fired a shot. It is reasonable to assume that any person committing these acts would know that they could cause fear. See
{¶16} With respect to the weight of the evidence, we recognize that this case presented as a classic “he said, [he] said” dispute where the prosecution insisted on the defendant‘s guilt with little more than the victim‘s account of events, and the defense denied all culpability whatsoever. In doing so, however, we cannot say that the trial
{¶17} We therefore overrule Bryant‘s first and second assigned errors.
III. Ineffective Assistance of Counsel
{¶18} In his final assignment of error, Bryant argues that his conviction must be reversed and a new trial ordered becausе he received ineffective assistance of counsel at trial. Specifically, Bryant argues that counsel was ineffective for failing to enlist the help of an expert witness who could testify as to the sounds that an аir pellet gun makes when fired and whether his particular gun could launch a projectile with enough force to damage the victim‘s home.
{¶19} In order to succeed on an ineffective assistance claim, Bryant must show that his triаl counsel rendered deficient performance and that counsel‘s deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, Bryant must prove that his trial counsel‘s performancе fell below an objective standard of reasonable representation. Id. at 688; State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). In evaluating counsel‘s performance, “a court must indulge a strong
{¶20} To show prejudice, a defendant must establish that there is a reasonable probability that, but for counsel‘s deficient performance, the result of the proceeding would have been different. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688, 694; Bradley at paragraph two of the syllabus. The failure to make a showing of either deficient performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland at 697.
{¶21} What an expert would have testified to in this case, and whether that testimony would have been helpful to Bryant‘s defеnse, are unknown to this court. Therefore, we cannot determine from the record before us if Bryant‘s counsel was deficient or more notably, whether any purported deficiency prejudiced Bryant. Because the questions raised by the assigned error are outside the record on direct appeal and are necessary to our resolution of Bryant‘s ineffective assistance claim, we must overrule Bryant‘s third assignment of error. Sеe State v. Zupancic, 9th Dist. Wayne No. 12CA0065, 2013-Ohio-3072 (“[A] claim of ineffective assistance of counsel on direct appeal cannot be premised on decisions of trial counsel that are not reflected in the record of proceedings * * * [and] [s]рeculation regarding the prejudicial effects of counsel‘s
{¶22} Judgment affirmed.
It is ordered that appellee recover from appellant thе costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
LARRY A. JONES, SR., J., CONCUR