State v. CasianoState v. Casiano
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Paul A. Dobson, Wood County Prosecuting Attorney, and Aram Ohanian, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
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HANDWORK, J.
{¶ 1} In this appeal from a judgment of the Wood County Court of Common Pleas, appellant, Teofilo Casiano, was found guilty on three counts of felonious assault in violation of
{¶ 2} “I. Appellant received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10, of the Ohio Constitution.
{¶ 3} “II. The Trial Court erred to the prejudice of Appellant by not accepting the presentence investigation report.
{¶ 4} “III. Appellant‘s conviction was against the manifest weight of the evidence.”
{¶ 5} At appellant‘s trial, the facts were adduced from the witnesses and from appellant. The following pertinent testimony of Casiano, Megan Jensen, Shalene Shellabarger, Mark Lane, Chris Toth, and Alex Tijerina set forth the facts from their respective viewpoints.
{¶ 6} According to Megan, she had a “physical relationship” with Casiano in the spring of 2007. At some point during this relationship, Megan was arrested and jailed for her failure to pay a fine. Appellant posted $325 for her bail. Megan claimed that appellant told her that the $325 was a birthday present. Shortly thereafter, appellant would not answer Megan‘s telephone calls, and she stopped trying to speak with him.
{¶ 7} On the evening of July 1, 2007, Megan and her roommate, Shalene, were “hanging out” with Mark, Chris, and Alex in Megan‘s trailer, which is located on Lot 111, Southview Estates Trailer Park, Perrysburg, Wood County, Ohio. They then decided to “play some cards” and after purchasing these cards at a gas station, returned to the trailer. Later that night, Megan received “like 15” calls in a row from appellant on her cell phone. Megan never answered any of these calls.
{¶ 8} Around one o‘clock in the morning, there was a knock on the door of the trailer. When Megan opened the door, appellant was standing on her porch. His motor vehicle was at the front of her driveway. Appellant gave Megan a makeup bag that she left in his car. He then asked Megan to accompany him to his vehicle, and she agreed. Casiano opened the trunk of the automobile and began “digging in it.” Shalene came out of the trailer and stood on the stairs to the porch.
{¶ 9} Appellant pulled a tire iron out of his trunk. According to Megan and Shalene, Casiano began pacing back and forth, repeatedly placing the tire iron against his chest and then pointing it at Megan, and continuously yelling that Megan owed him the money that he had posted for her bail1. When Shalene attempted to go back into the trailer, appellant said, “You are not going in there.”
{¶ 10} Mark and Chris subsequently came out of the trailer and stood near a large tree at the end of the driveway. Casiano began yelling and tried to hit Mark with the tire
{¶ 11} At that point, Mark, Chris, and Alex decided that they better leave. When they reached the county road that led to their homes, appellant was waiting. He started chasing them at a high speed and tried to hit Chris‘s automobile. Although Chris, Mark, and Alex all agree that after what seemed to be a long period of time, appellant stopped chasing them, they each related a slightly different version of that occurrence. In any event, the chase ended.
{¶ 12} Appellant testified at trial on his own behalf and provided the following version of the events that happened on July 1, 2007. Appellant called Megan six times on the evening of June 30, 2007, because he (1) wanted to return her makeup bag; and (2) expected repayment of the “$350” he used to post her bail. When Megan failed to
{¶ 13} Casiano took an iron bar, which he described as a “nutcracker,” not a tire iron, out of his car and held it against his chest while he was talking to Megan outside her trailer. When Chris and Mark came out of the trailer, Mark “picked up something off the ground” and came at appellant. Then both men grabbed him, and Mark bit appellant‘s finger and continued biting it as all three men scuffled on the ground. Mark still had Casiano‘s finger in his mouth when all three men finally stood up.
{¶ 14} At this point, Casiano was told to “get the fuck out of here.” He replied: “I will. Tell him to let go of my finger.” Mark then dragged appellant to his car, punching him in the face the entire time. One of these punches missed appellant‘s face, and Mark‘s fist hit the hood of the car. Mark then kicked the door of appellant‘s vehicle, and, when he was attempting to back out of the driveway, jumped on the hood of the car and punched the windshield, which shattered. While admitting that he is “much bigger” than Mark, Chris, or Alex, Casiano claimed that he did not fight with them because he simply wanted to “get out of there.”
{¶ 15} Appellant further testified that he did move his automobile back and forth in the driveway in attempting to “back out,” but added that this was necessary because of the cars “on this side and all around.” He denied ever trying to hit anyone with his vehicle. After he pulled out of the driveway, appellant decided to wait and call 911. While he was speaking with someone from emergency services in Wood County, Ohio,
{¶ 16} In his testimony, Officer Ward Belair of the Village of Whitehouse Police Department substantiated the fact that appellant had some blood and a bump on his head and a lacerated finger. Officer Brad Baker, also an employee of the Village of Whitehouse Police Department, also stated that appellant had injuries to his face and his hand. Both officers testified that appellant appeared to be intoxicated. Officer Belair determined that appellant was in no condition to drive due to intoxication and/or his vehicle was unsafe to drive due to the “spider web” pattern of cracked glass on his windshield.
{¶ 17} In his Assignment of Error No. I, appellant contends that he received ineffective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution and Section 10, Article I, Ohio Constitution.
{¶ 18} To succeed on a claim of ineffectiveness, a defendant must satisfy a two part test. First, the defendant must show that his trial counsel failed in a duty that he owes his client. State v. Bradley (1989), 42 Ohio St.3d 136, 141-142. In assessing such claims, “a court must indulge a strong presumption that counsel‘s conduct falls within the
{¶ 19} First, appellant urges that trial counsel was ineffective because he did not conduct an investigation of the “facts, circumstances, or evidence” that could have been presented at trial on appellant‘s behalf. He asserts that counsel failed to attempt to locate and interview any possible witnesses to support appellant‘s version of the events that occurred on July 1, 2007. Generally, any decision to call or not call witnesses falls within the province of defense counsel‘s trial strategy and is not considered a deficient performance absent a showing of prejudice. State v. Hunt (1984), 20 Ohio App.3d 310, 312. Thus, appellant is required to establish that the testimony of the witnesses would have significantly assisted his defense thereby affecting the outcome of this case. State v. Reese (1982), 8 Ohio App.3d 202, 203. He failed to do so.
{¶ 20} Appellant also argues that his trial counsel failed to engage in a proper investigation because (1) counsel had ample time to investigate the “serious charges”
{¶ 21} Casiano further contends that his trial counsel was ineffective because he did not obtain an expert witness to analyze blood droplets found at the scene of the offense. Appellant hypothesizes that if it this blood was determined to be his blood, it would have demonstrated that he was the victim of an assault by Chris, Mark, and Alex. He further argues that the testimony of this expert could have been used to impeach the credibility of these witnesses. Here, evidence was offered at appellant‘s trial to establish that appellant did have blood and a bump on his head and a laceration on his finger. Appellant claimed that these injuries were caused by the three young men. Thus, the jury had evidence before it that, if believed, tended to substantiate appellant‘s assault claim. Therefore, appellant was not prejudiced by any alleged omission on the part of his counsel with regard to analysis of the “blood droplets.”
{¶ 22} Next appellant claims that trial counsel was ineffective because he did not play the tape of the 911 call made by Casiano during his pursuit of Chris, Mark, and Alex at trial. Appellant fails to set forth any reason as to why this omission violated any duty to his client and thereby prejudiced his defense. Moreover, appellant‘s own testimony, the testimony of Officer Belair, the testimony of Officer Baker, and the three young men revealed the facts pertinent to this issue.
{¶ 23} Finally, appellant urges that his trial counsel was ineffective because, at Casiano‘s sentencing hearing, he failed to object when the trial judge stated that, due to an incomplete presentence investigation report, appellant‘s “sentence would not be able to be reduced by any judicial release.” In order to dispose of this argument, we must first determine appellant‘s Assignment of Error No. II, which contends that the trial court erred by not accepting the presentence investigation report.
{¶ 24} Upon entering a judgment finding appellant guilty, the trial court ordered a presentence investigation and allowed appellant‘s release on bond. The judge also set August 1, 2008, as the date for sentencing. Appellant, however, did not appear on that date and was later apprehended in another state. The court then set a new date for a hearing on sentencing. At that hearing, the trial court found that appellant did not participate in the presentence investigation and further failed to appear for sentencing. The judge then held that he considered the presentence investigation report incomplete. Appellant‘s trial counsel subsequently stated that he reviewed that report and had no
{¶ 25} On appeal, appellant argues that under
{¶ 26}
{¶ 27} The germane statute in this instance is
{¶ 28}
{¶ 29} Appellant‘s Assignment of Error No. III contends that the trial court‘s judgment is against the manifest weight of the evidence due to the fact that the prosecution failed to offer “credible evidence.”
{¶ 30} In determining whether a verdict is against the manifest weight of the evidence, this court sits as a “thirteenth juror.” State v. Thompkins (1997), 78 Ohio St.3d 380, 387. Thus, we review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of witnesses. Id. This court, however, must keep in mind that it is the trier of fact‘s duty to determine the credibility of a witness; accordingly, our ability to consider credibility is limited. State v. Reynolds, 10th Dist. No. 3692, 2004-Ohio-3692, ¶13. (Citation omitted.) In resolving conflicts in the
{¶ 31} Under
{¶ 32} As to the first degree misdemeanor,
{¶ 33} The judgment of the Wood County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24(A).
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J.
Mark L. Pietrykowski, J.
Arlene Singer, J.
CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.