State v. BeaverState v. Beaver
{¶1} Defendant-appellant, Devven W. Beaver (“Beaver”), appeals the July 11, 2013 judgment entry of conviction and sentence of the Union County Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} On December 21, 2012, the Union County Grand Jury indicted Beaver on four counts, including: Count One of felonious assault in violation of
{¶3} On January 17, 2013, Beaver entered pleas of not guilty at arraignment. (Doc. No. 7).
{¶4} On July 3, 2013, the State filed motions requesting that the trial court issue an arrest warrant for the victim, Krista Buckner (“Buckner”), as a material and necessary witness, and requesting that the trial court declare her a court’s witness. (Doc. Nos. 56, 57). On that same day, the trial court issued a warrant for Buckner’s arrest as a material and necessary witness. (July 3, 2013 JE, Doc. No. 58). On July 8, 2013, the trial court held a hearing on the State’s motion requesting that the trial court declare Buckner a court’s witness. (July 8, 2013 Tr.
{¶5} On July 10, 2013, Count Two of the indictment was dismissed at the State’s request. (July 10, 2013 JE, Doc. No. 70).
{¶6} On July 10-11, 2013, a jury trial was held. At the end of the State’s case-in-chief, Beaver moved for a
{¶7} The trial court filed its judgment entry of sentence on July 11, 2013, and Beaver filed his notice of appeal on August 2, 2013. (Doc. Nos. 76, 82). Beaver raises four assignments of error for our review.
Assignment of Error No. I
The jury lost its way when reviewing the evidence, resulting in a verdict that is against the manifest weight of the evidence and the sufficiency of the evidence.
{¶9} Manifest “weight of the evidence and sufficiency of the evidence are clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). As such, we address each legal concept individually.
{¶10} “An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal 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.” State v. Jenks, 61 Ohio St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, “[t]he 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.” Id. “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier
{¶11} On the other hand, in determining whether a conviction is against the manifest weight of the evidence, a reviewing court must examine the entire record, “‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of witnesses 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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court’s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.
{¶13} The State presented testimony from nine witnesses during the trial. Although she was declared a court’s witness, Buckner was called as the State’s first witness. (July 10, 2013 Tr., Vol. I, at 99). Buckner testified that she and Beaver went to Chillicothe, Ohio for the weekend following the Thanksgiving holiday in November 2012. (Id. at 100). At the time of the incident, she had been in a relationship with Beaver for approximately four or five years. (Id.).
{¶14} Beaver was to drive her to Marysville, Ohio on Monday, November 26, 2012 so that she could go to work at Honda of America Manufacturing, Inc. (“Honda”). (Id. at 101). Buckner was to report to work at 4:00 or 4:30 p.m., but did not arrive to the parking lot outside Honda until 5:00 or 5:30 p.m. (Id.). She testified that she had been drinking beer and vodka earlier that day. (Id. at 118). She testified that she was “buzzed,” but not drunk. (Id. at 118, 119).
{¶15} When they arrived at Honda, Buckner got out of the car to retrieve a pair of work boots from her mother’s car, which was in the parking lot because Buckner’s brother also worked for Honda. (Id. at 101-102). After she retrieved her work boots, she got back into the car with Beaver to talk with him while she put her boots on. (Id. at 102-103). At that point, she testified that they began to argue over gas money—that is, he wanted her to give him gas money and she told him that she did not have any money. (Id. at 103).
{¶17} Beaver then pulled over by a gas station, and Buckner got out of the car, but she stated she had to get back into the car because she did not have another way to get home. (Id. at 111). According to Buckner, they were lost and she wanted to go inside the gas station to ask for directions, but Beaver did not want her to go inside because he was concerned someone might think he hurt her since she had blood all over her clothes. (Id.). She further testified that she attempted to call 9-1-1 while she was in the car on the way to her mother’s house, but could not get through to an operator due to poor cell-phone reception. (Id. at 165).
{¶19} Lieutenant John Shaffer (“Lieutenant Shaffer”) of the Marion Police Department responded to Buckner’s mother’s house. (Id. at 116). By the time Lieutenant Shaffer arrived, Beaver already left to get gas. (Id.). While Lieutenant Shaffer was interviewing Buckner, he took Buckner’s clothing as evidence. (Id. at 117). After Buckner spoke with Lieutenant Shaffer, she sought medical treatment at Marion General Hospital. (Id. at 120). Shortly after leaving the hospital, Buckner spoke with Union County Sheriff Deputy Kelly Nawman (“Deputy Nawman”). (Id. at 119-120).
{¶20} At Marion General Hospital, Buckner was diagnosed with a broken nose. (Id. at 120). Buckner’s injuries required corrective surgery, which was performed about one month later. (Id. at 120). Buckner testified that her injuries were “awful” and that her face was swollen and her eyes were black and blue. (Id. at 121). She testified that she had not yet recovered from her injuries and said, “It’s still dark and still – the inside of my nose is – hurts, you know, around dust, dirt, things like that; so it’s not completely healed now.” (Id.). According to Buckner, this was not the first time Beaver struck her—he broke her nose before. (Id. at 108, 110).
{¶22} On cross-examination, Buckner testified that she and Beaver were drinking “[a] fifth or a pint” of vodka on the car ride from Chillicothe to Marysville. (Id. at 127). Buckner confirmed that she lied in the March 11, 2013 affidavit, but further indicated that she wrote in the affidavit, “I don’t think he needs prison, but help. Prison does him no good.” (Id. at 134). Buckner also testified that she sent Beaver a letter while he was in jail awaiting trial, which she
{¶23} On re-direct examination, Buckner identified State’s Exhibits Two and Three as the statements she provided Lieutenant Shaffer and Deputy Nawman. (Id. at 157-161). Buckner testified that she provided the same statement to Lieutenant Shaffer and Deputy Nawman. (Id.). She further testified that she made the same statement to the medical staff at Marion General Hospital when she sought treatment for her injuries. (Id. at 161-162).
{¶24} On re-cross examination, Buckner testified that she did not want to testify against Beaver and that she was only testifying against him because she was arrested prior to the hearing for evading the prosecutor’s efforts to serve her with a subpoena to testify. (Id. at 170-171). She indicated that she was telling the truth and that the reason she did not want to testify was not because she was concerned about perjury. (Id. at 171-172).
{¶25} The next day, Marion City Police Department 9-1-1 dispatcher Bevin Peppard (“Peppard”) testified that she received a 9-1-1 emergency call from Buckner at 8:08 p.m. on the evening of November 26, 2012 while she was working as a dispatcher. (July 10, 2013 Tr., Vol. II, at 183). Peppard identified State’s Exhibit Five as a true and accurate audio recording of Buckner’s 9-1-1 call, which was subsequently played for the jury. (Id. at 184-186).
{¶27} Lieutenant Shaffer testified that he too was dispatched to Buckner’s mother’s house on November 26, 2012. (Id. at 198). After arriving at Buckner’s mother’s house, Lieutenant Shaffer spoke with Buckner about the incident. (Id. at 199). He testified, “She was upset, seemed angry.” (Id.). He testified that her
{¶28} On cross-examination, Lieutenant Shaffer confirmed that the stains on Buckner’s uniform were fresh blood stains because the red marks were still wet when he first observed them. (Id. at 216). He further testified that Buckner told him that she was riding in the passenger seat of Beaver’s car when he reached over and struck her several times. (Id. at 221). Lieutenant Shaffer identified Defendant’s Exhibit B as his report depicting the November 26, 2012 incident. (Id. at 217).
{¶30} Cassandra Cook (“Cook”), a registered nurse with Marion General Hospital, testified that she saw Buckner when she came to the Marion General Hospital Emergency Room on November 26, 2012. (Id. at 253). Cook identified State’s Exhibit One as Buckner’s November 26, 2012 chart documentation from Marion General Hospital. (Id.). Cook testified that she treated Buckner, and Buckner told her that her pain was nine out of ten when she first arrived to the emergency room. (Id. at 254, 257). She stated that Buckner sought treatment
{¶31} Kristina Roberts (“Roberts”), a nurse practitioner with Marion General Hospital, testified that she also treated Buckner on the evening of November 26, 2012. (Id. at 271, 273). Roberts testified that Buckner came to the emergency room that night because of “an alleged assault with facial injury.” (Id. at 271). She stated that she saw Buckner after Cook initially assessed her, and confirmed that Buckner’s nose was broken. (Id. at 273). Roberts also testified, based on her training and experience, that she did not believe Buckner was
{¶32} Deputy Nawman testified that she interviewed Buckner after she was seen at Marion General Hospital. (Id. 286). She said, “My initial impression of her was that she was agitated and upset * * *.” (Id. at 288). Deputy Nawman testified that she heard Buckner’s testimony and that it was consistent with the narrative she prepared after meeting with Buckner on the night of the incident. (Id. at 290). Deputy Nawman testified that she did not find any evidence that Buckner caused her injuries to herself. (Id. at 292). Deputy Nawman identified State’s Exhibit 22 as a photograph she took of Buckner, which truly and accurately reflected Buckner’s injuries as they appeared on the night of the incident. (Id. at 289).
{¶33} Thereafter, the State moved to admit its exhibits and rested. (Id. at 299-307). State’s Exhibits One, Six, and Seven were admitted by stipulation. (Id.
{¶34} The next day, Beaver presented the testimony of one witness, Cory Hamilton (“Hamilton”), the Union County Prosecutor’s Office’s Victims of Crime Assistance Program (“VOCA”) advocate. (July 11, 2013 Pre-Day 2 Tr. at 5-6). Hamilton testified that she initially made contact with Buckner on November 28, 2012, and thereafter made contact with her approximately five times after attempting to contact her more than “a dozen” times. (Id. at 7). Further, she testified that Buckner did not tell her that the accusations against Beaver were lies or that she did not want Beaver to be prosecuted. (July 11, 2013 Tr. at 4-5). Moreover, she testified that the Union County Prosecutor’s Office had to arrest Buckner to ensure that she would testify because she was a material witness. (Id.
{¶35} Thereafter, the defense moved to admit Defendant’s Exhibits A and B, which were not admitted, and rested. (Id. at 14-18). The State did not present any witnesses on rebuttal, and the matter was submitted to the jury, which found Beaver guilty as to Count One not guilty as to Count Four. (Id. at 19, 65, 70-71).
{¶36} We first review the sufficiency of the evidence supporting Beaver’s felonious-assault conviction. State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999 WL 355190, *1 (Mar. 26, 1999). Beaver argues that the State did not prove beyond a reasonable doubt that he caused Buckner’s injuries because it did not produce corroborating evidence of Buckner’s version of events. However, Beaver’s argument is erroneous because the statute does not require corroborating evidence for a felonious-assault conviction. See
{¶37} Here, the testimony of the victim, law enforcement officers, medical professionals, and the VOCA advocate amounted to sufficient evidence that Beaver committed felonious assault. Buckner testified that Beaver punched her in the face two or three times after they left the Honda parking lot. (July 10, 2013 Tr., Vol. I, at 105-106). Lieutenant Shaffer and Deputy Nawman testified that they interviewed Buckner shortly after the incident and she told them that Beaver punched her in the face after they left the Honda parking lot while they were arguing. (July 10, 2013 Tr. Vol. II at 200, 221, 290). Likewise, Hamilton testified that Buckner did not deny that Beaver assaulted her and broke her nose and that she remained consistent as to what happened on November 26, 2012. (July 11, 2013 Tr. at 10, 12). The testimony of Lieutenant Shaffer, Deputy Nawman, and Hamilton supports Buckner’s version of events. Buckner also told the medical personnel at Marion General Hospital that she was assaulted when she sought
{¶38} Next, the physical evidence in the record supports that Beaver caused serious physical harm to Buckner. (See State’s Exs. 1, 6-7, 9-22). Beaver broke Buckner’s nose and caused it to bleed profusely. (See State’s Exs. 1, 6-7); (July 10, 2013 Tr., Vol. I, at 107, 120); (July 10, 2013 Tr., Vol. II, at 198, 273). As a result of her injuries, Buckner suffered significant bruising and swelling to her face as evidenced by the numerous photographs, which were admitted into evidence. (See State’s Exs. 9-22); (July 10, 2013 Tr., Vol., I at 121); (July 10, 2013 Tr., Vol. II, at 199, 236-238, 258-259, 281, 289). Buckner’s injuries caused her to seek medical treatment, and ultimately required surgery. (See State’s Ex. 1); (July 10, 2013 Tr., Vol. I, at 120). Serious physical harm includes any physical harm “that involves some temporary, serious disfigurement,” or “physical harm that involves acute pain of such duration as to result in substantial suffering or that
{¶39} Viewing this evidence in a light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Beaver
{¶40} Having concluded that Beaver‘s conviction was based on sufficient evidence, we next address Beaver‘s argument that his conviction was against the manifest weight of the evidence. Velez, 2014-Ohio-1788, at ¶ 76. As we summarized in our discussion of the sufficiency of the evidence above, Buckner testified that Beaver struck her in the face multiple times breaking her nose, and the law enforcement officers’ and the VOCA advocate‘s testimony complemented Buckner‘s testimony. Also, as we summarized above, there was ample evidence documenting the extent of Buckner‘s injuries. Prater testified that Buckner was crying and very upset, and Lieutenant Shaffer and Deputy Nawman described her as upset and angry or agitated after the November 26, 2012 incident.
{¶41} Beaver attempted to discredit Buckner‘s version of the events of November 26, 2012. As such, on appeal, Beaver argues that Buckner caused the injuries to herself because she was intoxicated and ran into the car door and argues that she lied that Beaver caused her injuries because she was angry with him for ending their relationship.
{¶42} There is no evidence that Buckner caused her injuries because she was intoxicated or that she fabricated her story. First, while the evidence in the record demonstrates that Buckner had been drinking that day, the evidence does
{¶43} Second, although Buckner admittedly lied in the March 11, 2013 affidavit stating that she was not clear about what happened on November 26, 2012 and that she may have hit her head on the car door, she indicated that she lied in the affidavit because she felt sorry for Beaver and still loved him. (July 10, 2013 Tr., Vol. I, at 122-124). Nevertheless, Beaver argues that the evidence that Buckner hit her head on the car door outweighed the evidence that he struck her. However, the only evidence in the record that Buckner hit her head on the car door is her statement in the March 11, 2013 affidavit. Instead, the evidence in the record indicates that Beaver told Lieutenant Brown that Buckner tripped and fell down in the Honda parking lot. (July 10, 2013 Tr., Vol. II, at 193). The jury very well may have viewed the contradiction in Beaver‘s statement to Lieutenant Brown and Buckner‘s affidavit as creating an inconsistency and instead gave more weight to Buckner‘s trial testimony. In addition, Lieutenant Shaffer testified that
{¶44} Accordingly, Beaver‘s argument that Buckner fabricated her story and caused her injuries to herself because she was intoxicated was underwhelming compared to the evidence that Beaver committed felonious assault.
{¶45} After weighing the evidence and evaluating the credibility of the witnesses, with appropriate deference to the jury‘s credibility determination, we cannot conclude that the jury, as the trier of fact, clearly lost its way and created a manifest injustice. As such, we are not persuaded that Beaver‘s felonious-assault conviction must be reversed and a new trial ordered.
{¶46} For these reasons, Beaver‘s first assignment of error is overruled.
Assignment of Error No. II
The trial court erred when it granted the State‘s motion to make Krista Buckner a material witness which was prejudicial to appellant.
{¶47} In his second assignment of error, Beaver argues that the trial court erred in designating Buckner as a court‘s witness.3 Specifically, Beaver argues
{¶48} Under
{¶49} The trial court‘s decision to call a witness under
{¶50}
{¶51} Even assuming Beaver did not waive this issue, the trial court did not abuse its discretion in declaring Buckner its witness. Buckner‘s testimony was essential to determining the case against Beaver, she was unwilling or reluctant to testify, and there was some evidence that she would contradict her prior statements made to law enforcement officers. In particular, the State was unsuccessful in its attempts to subpoena Buckner, was unable to contact her, and believed she did not want to testify against Beaver based on a letter she wrote to Beaver, in which she
{¶52} We also note that Beaver‘s argument that he was prejudiced by Buckner being declared a court‘s witness is erroneous. In fact, when Buckner was initially called to testify, she was called as if she were the State‘s witness. (July 10, 2013 Tr. Vol. I at 99). See also State v. Ross, 10th Dist. Franklin No. 93AP-1017, 1993 WL 538305, *2 (the jury was not informed that the witness was a court‘s witness because she was called as if she were the State‘s witness). When a witness is designated a court‘s witness, both parties are permitted to cross-examine the witness—that is, both parties may ask the witness leading questions. See
{¶53} Therefore, Beaver‘s second assignment of error is overruled.
Assignment of Error No. III
The trial court erred when it denied appellant‘s counsel the ability to question the victim on a letter she sent to appellant while he was in jail.
{¶54} In his third assignment of error, Beaver argues that the trial court erred in denying his trial counsel the ability to question Buckner about the letter she sent to Beaver while he was in jail. We find this assignment of error to be without merit because the trial court did not make a ruling that prevented Beaver‘s trial counsel from questioning Buckner about the letter she sent to Beaver. See Dailey v. R & J Commercial Contracting, 10th Dist. Franklin No. 01AP-1464, 2002-Ohio-4724, ¶ 17 (“Assignments of error should designate specific rulings which the appellant wishes to challenge on appeal.“), quoting Taylor v. Franklin Blvd. Nursing Home, Inc., 112 Ohio App.3d 27, 32 (8th Dist.1996).
{¶55} The transcript of the hearing reveals the following exchange regarding the letter:
[Beaver‘s Counsel]: Ms. Buckner, I‘m going to hand to you what‘s been marked as Defendant‘s Exhibit A. Can you identify what that document is?
[Buckner]: It‘s a letter.
[Beaver‘s Counsel]: And it‘s a letter from – to whom from whom?
[Buckner]: To Devven from me.
[Beaver‘s Counsel]: Okay. Do you recall – did you – can you review that letter? Do you recall writing that letter?
[Buckner]: Yeah.
[Beaver‘s Counsel]: Okay. And at what point – when did you send that to him?
[Buckner]: I don‘t know.
[Beaver‘s Counsel]: Okay. In that letter, don‘t you indicate that the events of November 26th of 2012 that, in fact, you had not told the truth to the police and others about what happened that night?
[Buckner]: I – I talked to Ms. Hamilton about the charges. I called her and asked her. I said those are not correct, so –
[Beaver‘s Counsel]: We‘re not going to get to that. I‘m talking about the letter here.
[Buckner]: Yeah. That‘s what I said in here, isn‘t it?
[Beaver‘s Counsel]: Are you familiar with the contents of the letter? Do you need some time to read it?
[Buckner]: No. I know what it says.
[Beaver‘s Counsel]: Okay. And, in fact, within that letter to Mr. Beaver, you acknowledge that you had lied to people about what had happened, correct?
[Buckner]: This is – no.
[Trial Court]: Counsel approach.
(Thereupon, the following bench conference was held.)
[Trial Court]: That‘s not what this says.
[The State‘s Counsel]: That‘s not what it says either.
[Beaver‘s Counsel]: (Inaudible.)
[Trial Court]: (Inaudible) possible interpretation of that.
[The State‘s Counsel]: Right.
[Trial Court]: No possible interpretation of that.
[The State‘s Counsel]: I just got done reading it.
[Trial Court]: (Inaudible.)
[The State‘s Counsel]: It sounds like – it sounds like they are lying. That‘s what – I just got done reading it, but that‘s –
[Trial Court]: That‘s the third time you referred to it that way.
[Beaver‘s Counsel]: I‘m sorry?
[Trial Court]: That‘s the third time that you referred to it that way and there‘s no possible interpretation that that‘s a correct interpretation.
[Beaver‘s Counsel]: Thank you.
(Thereupon, the bench conference was concluded.)
[Beaver‘s Counsel]: At what point did you decide to go to your mother‘s house instead of going to work that day?
(July 10, 2013 Tr., Vol. I, at 137-139).
{¶57} Because the trial court did not make a ruling preventing Beaver‘s trial counsel from questioning Buckner about the letter, we need not address Beaver‘s assignment of error. Dailey at ¶ 17. See also
Assignment of Error No. IV
Appellant was deprived effective assistance of counsel thereby depriving appellant a fair trial.
{¶58} In his fourth assignment of error, Beaver argues that he was deprived the effective assistance of trial counsel. In particular, Beaver argues that his trial counsel failed to object to the trial court‘s ruling during his cross-examination of Buckner regarding the letter she sent to Beaver, failed to file any responsive pleading to the State‘s motion requesting Buckner to be declared a court‘s witness, and failed to attempt to admit State‘s Exhibit Four and Defendant‘s Exhibit A.
{¶59} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under
{¶60} First, Beaver argues that his trial counsel‘s performance was deficient because he failed to object to the trial court‘s ruling during his cross-examination of Buckner regarding the letter she sent to Beaver. Based on our determination in Beaver‘s third assignment of error, Beaver‘s argument here is likewise without merit—that is, the trial court made no ruling to which Beaver‘s trial counsel could object. Rather, the trial court, outside of the jury‘s hearing, advised Beaver‘s trial counsel that he mischaracterized the letter, and Beaver‘s
{¶61} Even if the trial court made a ruling regarding Beaver‘s trial counsel‘s questioning of Buckner regarding the letter she sent to Beaver, Beaver‘s argument still fails. The “failure to make objections is within the realm of the trial tactics and does not establish ineffective assistance of counsel.” State v. Ray, 3d Dist. Union No. 14-05-39, 2006-Ohio-5640, ¶ 63, citing State v. Lockett, 49 Ohio St.2d 48 (1976), paragraph nine of the syllabus, rev‘d on other grounds, sub nom. Lockett v. Ohio, 438 U.S. 586 (1978). “Because ‘objections tend to disrupt the flow of a trial, [and] are considered technical and bothersome by the fact-finder,’ * * * competent counsel may reasonably hesitate to object in the jury‘s presence.‘” State v. Hartman, 93 Ohio St.3d 274, 296 (2001), quoting State v. Campbell, 69 Ohio St.3d 38, 53 (1994).
{¶62} Beaver‘s trial counsel was not ineffective for failing to object to the trial court‘s admonishment for mischaracterizing the letter Buckner wrote to Beaver.
{¶63} Next, Beaver‘s argument that his trial counsel was ineffective because he failed to file any “responsive pleading”4 to the State‘s motion
{¶64} Here, Beaver failed to demonstrate that his trial counsel was deficient for failing to file a response or that such a response would have been successful. First, the only argument in support of his claim that his trial counsel was deficient for failing to file a response is that it cannot be considered trial strategy to fail to file written opposition to the State‘s motion requesting the victim be declared a court‘s witness. However, Beaver provides no support for his argument. As such, “this Court is left with nothing other than conjecture to evaluate his contention.” Id. at ¶ 36. Because Beaver‘s argument fails for this reason, we need not determine whether a response would have had a reasonable probability of success. See Keeton, 2008-Ohio-2613, at ¶ 38. However, even though we need not address whether a response would have had a reasonable probability of success, we note that Beaver provides no argument regarding that issue. But, as we determined in Beaver‘s second assignment of error, the trial court did not err in granting the
{¶65} Third, Beaver argues that his trial counsel was ineffective because he failed to proffer State‘s Exhibit Four and Defendant‘s Exhibit A. We decline to address Beaver‘s assertion because he did not provide any argument relative to how he was prejudiced or how his trial counsel was deficient in failing to proffer State‘s Exhibit Four and Defendant‘s Exhibit A. State v. Raber, 189 Ohio App.3d 396, 2010-Ohio-4066, ¶ 30 (“[I]f an argument exists that can support [an] assignment of error, it is not this [c]ourt‘s duty to root it out.“). See also
{¶66} For these reasons, Beaver‘s fourth assignment of error is overruled.
{¶67} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and ROGERS, J., concur.
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