STATE OF OHIO, PLAINTIFF-APPELLEE, v. ANTHONY WAYNE REDDING, DEFENDANT-APPELLANT.
CASE NO. 14-19-01
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
December 23, 2019
[Cite as State v. Redding, 2019-Ohio-5302.]
Appeal from Union County Common Pleas Court Trial Court No. 2018-CR-0038 Judgment Affirmed
Allen Vender for Appellant
Courtland Perry for Appellee
{1} Defendant-appellant, Anthony W. Redding (“Redding“), appeals the September 18, 2018 judgment entry of sentence of the Union County Court of Common Pleas. For the reasons that follow, we affirm.
{2} This case stems from a February 17, 2018 altercation between Redding and the victim, S.S., during which Redding caused S.S. serious-physical harm by striking her in the face. Prior to the altercation, Redding and S.S. had been in a relationship with each other for three years. Redding alleged that he acted in self-defense. He was previously convicted of felonious assault in 2008.
{3} On March 1, 2018, the Union County Grand Jury indicted Redding on one count of felonious assault in violation of
{4} The case proceeded to a jury trial on September 17, 2018. The jury found Redding guilty of felonious assault on September 18, 2019. (Doc. Nos. 52, 53). That same day, the trial court determined that Redding is a repeat violent offender as alleged by the specification in the indictment. (Doc. No. 54). The trial court sentenced Redding to 8 years in prison on Count One and 10 years in prison
{5} After this court granted Redding leave to file a delayed appeal, Redding filed his notice of appeal on January 4, 2019 and raises three assignments of error. (Doc. No. 63). We will begin by addressing his first and second assignments together, followed by his third assignment of error.
Assignment of Error No. I
Anthony Redding received ineffective assistance of counsel because his attorney failed to object to inadmissible, irrelevant and prejudicial evidence that Redding had previous arrests. Sixth and Fourteenth Amendments to the United States Constitution; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 8 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989);
Assignment of Error No. II
Anthony Redding received ineffective assistance of counsel because his attorney failed to object to inadmissible, irrelevant and prejudicial evidence that Redding had scratched profane words into [S.S.‘s] door. Sixth and Fourteenth Amendments to the United States Constitution; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 8 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989);
{6} In his first and second assignments of error, Redding argues that his trial counsel was ineffective for failing to object to the admission of evidence of his
Standard of Review
{7} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel‘s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel‘s actions were not trial strategies prompted by reasonable professional judgment. Strickland at 687. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558 (1995). Rather, the errors complained of must amount to a substantial violation of counsel‘s essential duties to his client. See State v. Bradley, 42 Ohio St. 3d 136, 141-42 (1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976), vacated in part on other grounds, 438 U.S. 910, 98 S.Ct. 3135 (1978).
Analysis
{9} On appeal, Redding argues that his trial counsel was ineffective for failing to object to certain “other acts” evidence that he contends was inadmissible under the Ohio rules of evidence. Specifically, Redding argues that his trial counsel was ineffective for failing to object to testimonial evidence presented by Sergeant Nathan Sachs (“Sergeant Sachs“) and Officer Jacob Smith (“Officer Smith“) of the Marysville Police Department “suggest[ing] to the jury that [he] had a criminal history.” (Appellant‘s Brief at 6). Redding also argues that his trial counsel was ineffective for failing to object to irrelevant and prejudicial testimonial evidence presented by S.S. that he “allegedly scratched profane and misogynistic words into [her] door * * * .” (Id. at 12).
{10} “The ‘failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel.‘” Liles at ¶ 49, quoting State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 139, citing State v. Holloway, 38 Ohio St.3d 239, 244 (1988). “To prevail on such a claim, a defendant must first show that there was a substantial violation of any of defense counsel‘s essential duties to his client and, second, that he was materially prejudiced by counsel‘s ineffectiveness.” Holloway at 244, citing Lytle, 48 Ohio St.2d at 396-397 and Strickland, 466 U.S. at 668. “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. Campbell, 69 Ohio St.3d 38, 53 (1994), quoting Jacobs, Ohio Evidence, at iii-iv (1989).
{11} “Generally, evidence which tends to show that the accused has committed other crimes or acts independent of the crime for which he stands trial is not admissible to prove a defendant‘s character or that the defendant acted in conformity therewith.” State v. Wendel, 3d Dist. Union No. 14-16-08, 2016-Ohio-7915, ¶ 21, quoting State v. Hawthorne, 7th Dist. Columbiana No. 04 CO 56, 2005-Ohio-6779, ¶ 24, citing State v. Elliott, 91 Ohio App.3d 763, 770 (3d Dist.1993) and
{12} Evidence of other acts is generally admissible if it is offered for a purpose other than to prove the character of a person in order to show action in conformity with that character; it is relevant when offered for that purpose; and the danger of unfair prejudice does not substantially outweigh its probative value. State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 68, citing State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 20 and
To establish self-defense through the use of deadly force, an accused must prove: “(1) the accused was not at fault in creating the situation giving rise to the affray; (2) the accused had a bona fide belief that he or she was in imminent danger of death or great bodily harm and that the only means of escape from such danger was in the use of force; and (3) the accused must not have violated any duty to retreat or to avoid the danger.”
Bagley at ¶ 16, quoting State v. Thacker, 3d Dist. Marion No. 9-03-37, 2004-Ohio-1047, ¶ 14, citing State v. Williford, 49 Ohio St.3d 247, 249 (1990) and State v. Robbins, 58 Ohio St.2d 74 (1979), paragraph two of the syllabus.
{15} By contrast, to establish self-defense through the use of non-deadly force, an accused must prove: (1) the accused was not at fault in creating the situation giving rise to the affray, (2) the accused (even if mistaken) had a bona fide belief that he was in imminent danger of any bodily harm; and (3) the only means
Both versions of self-defense, however, use the term “great bodily harm“: self-defense involving deadly force uses the term to describe the level of harm the defendant must perceive before he or she is justified in using deadly force, while self-defense with non-deadly force uses the term to describe the level of force a defendant may not apply.
Juntunen at ¶ 23. See Jeffers at ¶ 68. Likewise, there is no duty to retreat in cases involving non-deadly force. Brown at ¶ 25, citing State v. Kucharski, 2d Dist. Montgomery No. 20815, 2005-Ohio-6541, ¶ 21, citing Perez at 472.
{16} Moreover, Ohio‘s “castle doctrine” creates an exception to the duty to retreat and provides, in its relevant part, that “a person who lawfully is in that
that a defendant is entitled to a presumption of self-defense if the evidence shows that the defendant used defensive force against another person who was “in the process of unlawfully and without privilege to do so entering, or ha[d] unlawfully and without privilege to do so entered” the defendant‘s residence.
State v. Dale, 2d Dist. Montgomery No. 2012 CA 20, 2013-Ohio-2229, ¶ 17, quoting
{17} ““The difference between the Castle Doctrine and the rebuttable presumption of self-defense lies in the legal status of the victim.“” Id. at ¶ 18, quoting State v. Lewis, 8th Dist. Cuyahoga No. 97211, 2012-Ohio-3684, ¶ 18.
{18} Because the elements of self-defense are cumulative, a defendant fails to demonstrate that he or she acted in self-defense if he fails to prove any one of the applicable elements by a preponderance of the evidence. Bagley, 2014-Ohio-1787, at ¶ 16, citing Thacker, 2004-Ohio-1047, at ¶ 14, citing State v. Jackson, 22 Ohio St.3d 281, 284 (1986).
{19} In this case, Redding was convicted of felonious assault in violation of
{20} Importantly, Redding cannot demonstrate that he was materially prejudiced by the admission of any evidence because there is no reasonable probability that, but for the admission of that evidence, the result of his trial would have been different. That is, Redding cannot demonstrate that he would have been acquitted on the grounds that he acted in self-defense. Specifically, for Redding to succeed on a defense of self-defense through the use of non-deadly force, the trier of fact would have to find that Redding “was justified in using force not likely to
{21} Accordingly, if the jury were to find that the force used by Redding was not likely to cause great bodily harm, that finding would be inconsistent with its prior determination that Redding knowingly caused S.S. serious physical harm. See Jeffers at ¶ 81; Triplett at ¶ 17, fn. 3 (Rocco, P.J., concurring in part and dissenting in part). Therefore, there is no reasonable probability that Redding would have been able to prove that he acted in self-defense through the use of non-deadly force because he is unable to prove that he used force not likely to cause death or great bodily harm. See In re J.J. at ¶ 14-16 (concluding that a defendant fails to carry his burden of proving that he acted in self-defense through the use of non-deadly force if he caused the victim serious physical harm). See also Mendoza at 91-94. Consequently, Redding‘s ineffective-assistance-of-counsel argument is without merit, and his first and second assignments of error are overruled.
Assignment of Error No. III
The cumulative effects of Anthony Redding‘s first two assignments of error denied him a fair trial. State v. Miller, 122 Ohio App.3d 111, 701 N.E.2d 390 (3d Dist.1997); State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987); Sixth and Fourteenth Amendments to the United States Constitution; Article I, Sections 10 and 16 of the Ohio Constitution; Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 8 L.Ed.2d 674 (1984).
{22} In his third assignment of error, Redding argues that the cumulative effect of the trial court‘s errors denied him a fair trial. Specifically, Redding argues that the cumulative effect of the errors that he alleged in his first and second assignments of error deprived him of a fair trial.
Standard of Review
{23} “Under [the] doctrine of cumulative error, a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the numerous instances of trial court error does not individually constitute cause for reversal.” State v. Spencer, 3d Dist. Marion No. 9-13-50, 2015-Ohio-52, ¶ 83, citing State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, ¶ 222-224 and State v. Garner, 74 Ohio St.3d 49, 64 (1995). “To find cumulative error, a court must first find multiple errors committed at trial and determine that there is a reasonable probability that the outcome below would have
Analysis
{24} Because we found no error as alleged by Redding in his first or second assignments of error, the doctrine of cumulative error does not apply. State v. Bertuzzi, 3d Dist. Marion No. 9-13-12, 2014-Ohio-5093, ¶ 110.
{25} Redding‘s third assignment of error is overruled.
{26} 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
SHAW and WILLAMOWSKI, J.J., concur.
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