STATE OF OHIO, Plaintiff-Appellee, v. NATHANIEL SIMPSON, Defendant-Appellant.
No. 107407
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
July 18, 2019
[Cite as State v. Simpson, 2019-Ohio-2912.]
EILEEN T. GALLAGHER, P.J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-621424-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 18, 2019
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Kelly Needham, Assistant Prosecuting Attorney, for appellee.
Joseph V. Pagano, for appellant.
EILEEN T. GALLAGHER, P.J.:
{¶ 1} Defendant-appellant, Nathaniel Simpson, appeals from his convictions following a bench trial. He raises the following assignments of error for review:
- The trial court erred when it denied Simpson‘s motion for acquittal under
Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the convictions. - Simpson‘s convictions are against the manifеst weight of the evidence.
- The trial court erred by denying Simpson‘s motion for new trial.
- Simpson was deprived of his constitutional rights to due process, a fair trial, and the effective assistance of counsel where he was not permitted to introduce evidence of his text messages with M.S. on July 3, 2017.
- The trial court erred by ordering Simpson to have no contact with his daughter.
{¶ 2} After careful review of the record and relevant case law, we affirm Simpson‘s convictions.
I. Factual and Procedural History
{¶ 3} In September 2017, Simpson was named in a three-count indictment, charging him with felonious assault in violation of
{¶ 4} M.S., who was 19 years old at the time of the incident, testified that in July 2017, she was temporarily living with Simpson during a two-week period he
{¶ 5} On July 3, 2017, M.S. visited her friends in Toledo, Ohio. M.S. testified that Simpson was upset she left for the weekend and began arguing with hеr through text messages. M.S. testified that she told her father that she would come to his home, collect her belongings, and return to her mother‘s home where she permanently resided.
{¶ 6} M.S. testified that when she arrived to Simpson‘s home, she and Simpson sat at the dining room table and had a conversation that lasted over one hour. M.S. stated that Simpson became more and more agitated during the conversation. M.S. testified that she had previously arranged for her cousin, Amhara Denson, to pick her up from Simpson‘s house. When Amhara arrived, she called M.S.‘s cell phone and waited outside for 10-15 minutes before M.S. told her to leave because Simpson “was not letting me leаve the house.”
{¶ 7} M.S. testified that she then went into her bedroom to get the rest of her belongings and called a friend to see if she could get a ride to her mother‘s home. When her friend responded that she could not give M.S. a ride, M.S. told Simpson that she would just walk to her mother‘s home. M.S. testified that her comment triggered Simpson, and that he “went crazy” and “attacked [her].” M.S. testified that
{¶ 8} After discussing the incident with her family members, M.S. went to the hospital on July 4, 2017, where she was diagnosed with a minor concussion, a minor neck sprain, and a back contusion. Photographs of M.S.‘s injuries were presented to the trier of fact. Subsequently, M.S. filed a police report on July 5, 2017.
{¶ 9} Amhara Denson testified that on the day of the incident, M.S. asked her for a ride from Simpson‘s home. Denson testified that when she arrived at Simpson‘s home, M.S. indicated that she “was coming right out.” After waiting for several minutes, Denson called M.S.‘s cell phone. Denson testified that when M.S. answered her phone, she heard “scuffling” and heard M.S. “[tell] her father to get off of her.” Denson testified that she also heard a male voice yelling. Denson stated that she eventually left Simpson‘s home without M.S. because she “kind of felt out of place in that predicament.” Denson also testified that M.S. told her she “was okay.”
{¶ 10} Detective Barry Bentley of Cleveland Police Department was assigned to investigate the allegations levied against Simpson. In the course of his investigation, Det. Bentley conducted a formal interview of M.S. and obtained a
{¶ 11} At the conclusion on the state‘s case, defense counsel made a
{¶ 12} Regarding the incident, Simpson testified that he was asleep when he heard someone come into his house through the back door. When Simpson realized
{¶ 13} At the conclusion of trial, Simpson renewed his motion for acquittal, which the trial court denied. Thereafter, the trial court found Simpson guilty of all counts. Prior to sentencing, Simpson filed a motion for new trial. In its entirety, the motion argued Simpson was entitled to a new trial for the following reasons:
- The court erred in denying the motion of the defendant for judgment of acquittal made at the end of the State‘s evidence and renewed at the conclusion of all evidence.
- The verdict of the Court is contrary to the wеight of the evidence.
- The verdict is not supported by substantial evidence.
- The defendant has new evidence that he was not aware of at the time of the alleged incident.
{¶ 15} In June 2018, the trial court imposed a two-year period of community control sanctions. As a condition of his community control supervision, the trial cоurt ordered that Simpson have no contact with M.S. During the sentencing hearing, the trial court briefly discussed Simpson‘s motion for new trial, stating:
I‘ve reviewed all these documents [attached to the motion for new trial]. I don‘t think there‘s anything new here.
* * *
I made my decision based on evaluating the credibility of the witnesses and evaluating the evidence that was presented to me.
* * *
As such, I‘m going to deny the motion for a new trial and we‘re going to proceed to sentencing.
Simpson now appeals from his convictions.
II. Law and Analysis
A. Sufficiency of the Evidence
{¶ 16} In his first assignment of error, Simpson argues his convictions are not supported by sufficient evidence.
{¶ 18} The state may use direct evidence, circumstantial evidence, or both, in order to establish the elements of a crime. See State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674 (1991). Circumstantial evidence is “proof of facts or circumstances by direct evidence from which the trier of fact may reasonably infer other related or connected facts that naturally or logically follow.” State v. Seals, 8th Dist. Cuyahoga No. 101081, 2015-Ohio-517, ¶ 32, citing State v. Beynum, 8th Dist. Cuyahoga No. 69206, 1996 Ohio App. LEXIS 2143 (May 23, 1996); see also State v. Hartman, 8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37.
{¶ 19} Circumstantial evidence and direct evidence inherently possess the same probative value. Jenks at paragraph one of the syllabus. “[A]ll that is required of the [trier of fact] is that it weigh all of the evidence, direct and circumstantial,
{¶ 20} In this case, Simpson was convicted of felonious assault in violation of
{¶ 21} Regarding the felonious assault conviction, Simpson argues the state failed to prove that he knowingly caused or attempted to cause serious physical harm to M.S. He further contends that the state failed to establish that M.S. sustained serious physical harm. Simpson‘s position relies on his testimony that, whilе he
{¶ 22} “A person acts knowingly, regardless of purpose, when the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain nature.”
{¶ 23} After careful review, we find the state met its burden with respect to establishing that Simpson knowingly caused or attempted to cause serious physical harm to M.S. Here, M.S. testified that Simpson “attacked [her]” after she stated that she was going to walk to her mother‘s home. She stated that Simpson “grabbed me by [my hair] and tossed me on the bed, my stomach was on the bed and my head was flat and he was on top of me.” M.S. testified that Simpson then placed his knee in her back while he pulled her hair, forcing her head back. M.S. subsequently hit her head on the corner of her bed when she and Simpson rolled off the bed and fell to the floor. Denson corroborated M.S.‘s testimony, stating that while she was on the phone with M.S. she heard a tussle and heard M.S. say “get off me.” In our view, a rational trier of fact would foresee that Simpson‘s acts of grabbing M.S. by the hair,
{¶ 24} In addition, M.S. testified that she sustained a minor concussion, a minor neck sprain, and a back contusion as a result of Simpson‘s conduct. She explained that Simpson pulled her hair so far backwards, she thought Simpson “could have broke [her] airway or something.” M.S. further testified that she experienced pain for several days after the incident and continues to experience periodic pain and stiffness in her back. Given M.S.‘s testimony and the admission of her mеdical records and photographs detailing the extent of her injuries, we find the state presented sufficient evidence for a reasonable trier of fact to conclude that M.S. suffered serious physical harm.
{¶ 25} With respect to his abduction conviction, Simpson argues “the state failed to prove that he knowingly restrained M.S.‘s liberty for the purposes of inflicting any physical harm.” Simpson contends that he was weak and recovering from chemotherapy treatments when M.S. entered his home without permission. Simpson states that “because he was in his home and M.S. did not have permission to be there, Simpson had privilege conferred by law to defend himself.”
{¶ 26} To the extent Simpson contends his actions were privileged, we note that the record is devoid of any indication that Simpson raised the affirmative defense of self-defense at trial. The defense is therefore waived. See State v. Catron, 8th Dist. Cuyahoga No. 101789, 2015-Ohio-2697, ¶ 18. As discussed, the state presented testimony indicating that Simpson “attacked” M.S. and held her down
{¶ 27} Finally, Simpson argues there was insufficient evidence to sustain his domestic violence conviction because the state failed to prove that he knowingly caused or attempted to cause M.S. physical harm. Simpson does not dispute that M.S. is a family member, but reiterates his position that M.S. was trespassing at the time of the incident and that he only touched her in an effort to escort her out of his home. Again, we find no merit to Simpson‘s argumеnt. Here, the state presented testimony that Simpson physically attacked M.S. following a verbal argument. M.S. testified that Simpson‘s conduct caused her to sustain a mild concussion and injuries to her face, neck, and back. Collectively, the evidence was sufficient to establish that Simpson knowingly caused M.S. physical harm, which is defined as “any injury, illness, or other physiological impairment, regardless of its gravity or duration.”
{¶ 28} Viewing the evidence in a light most favorable to the state, we find Simpson‘s convictions were supported by sufficient evidence. Accordingly, the trial court did not err by denying Simpson‘s motion for acquittal.
B. Manifest Weight of the Evidence
{¶ 30} In his second assignment of error, Simpson argues his convictiоns are against the manifest weight of the evidence.
{¶ 31} In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. A reviewing court “weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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, 78 Ohio St.3d 388, 678 N.E.2d 541 (1997). A conviction should be reversed as against the manifest weight of the evidence only in the most “exceptional case in whiсh the evidence weighs heavily against the conviction.” Id.
{¶ 32} Although we review credibility when considering the manifest weight of the evidence, we are cognizant that determinations regarding the credibility of witnesses and the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able “to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The trier of
{¶ 33} In support of his manifest weight of the evidence argument, Simpson reiterates his position that M.S. was trespassing at the time of the incident and that he only “touch[ed] M.S.‘s hair in defense of himself as the situation escalated.” Simpson contends that he did not knowingly cause harm to his daughter and that M.S.‘s version of the incident lacked credibility and “does not make sense.” Simpson suggests that if M.S. was welcome in Simpson‘s house as M.S. testified, “why would he engage in any confrontation with her; especially in his medically fragile condition?” Simpson further references Denson‘s testimony that M.S. said she “was okay.” He submits that if Denson believed M.S. was truly in danger based on the tussling noises she heard on the phone, “why wouldn‘t she have attempted to enter the house or at the very least call the police?”
{¶ 34} There is no dispute that Simpson and M.S. were the only individuals inside Simpson‘s home on the evening of the incident. Throughout trial, M.S. portrayed Simpson as a short-tempered individual who physically attacked her following a verbal argument. In contrast, Simpson portrayed M.S. as his defiant and ill-behaved daughter, who overpowered him when he confronted her about breaking into his home without permission. However, “‘a conviction is not against the manifest weight of the evidence because the trier of fact believed the state‘s version
{¶ 35} Simpson‘s second assignment of error is overruled.
C. Motion for New Trial
{¶ 36} In his third assignment of error, Simpson argues the trial court committed reversible error when it denied his motion for new trial.
{¶ 37}
When new evidence material to the defense is discovered which the defendant could not with reasonable diligence have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as is reasonable under all the circumstances of the case. The prosecuting attorney may produce affidavits or other evidence to impeach the affidavits of such witnesses.
{¶ 39} By its terms,
{¶ 40} In this case, Simpson filed his motion for a new trial 14 days after the verdict was rendered against him. Regarding the grounds for his motion for a new trial, Simpson argues he has “presented additional evidence that would support a conclusion that [he] was not guilty of the charges against him.” He contends that the relevant police reports, court records, medical records, and sworn statements substantiate his tеstimony regarding his poor medical health and M.S.‘s tendency to lie. Simpson further maintains that the new evidence confirms that M.S. was not
{¶ 41} In order to grant a motion for a new trial on the basis of newly discovered evidence, a defendant must show:
the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.
State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), paragraph one of the syllabus.
{¶ 42} The state does not dispute that Simpson‘s motion for new trial was timely filed pursuant to
{¶ 43} After careful consideration, we find Simpson has failed to establish that, with reasonable diligence, the evidence attached to his motion for new trial could not have been discovered and produced at trial. A review of Simpson‘s motion for a new trial reveals that Simpson relies exclusively on unauthenticated records
{¶ 44} In addition, we note that the cited evidence merely reiterated Simpson‘s testimony at trial that he was overpowered by his trespassing daughter. While the allegedly new evidence may have corroborated portions of Simpson‘s testimony, the еvidence does not present new material information regarding the scope or nature of Simpson‘s role in the physical altercation. Rather, it is merely cumulative to the theory of the defense presented at trial. Under such circumstances, we are unable to conclude that the evidence attached to Simpson‘s motion disclosed a strong probability that the result of a new trial would be different.
{¶ 45} Based on the foregoing, we find the trial court did not abuse its discretion in denying Simpson‘s motion for a new trial without an evidentiary hearing. Simpson‘s third assignment of error is overruled.
D. Ineffective Assistance of Counsel
{¶ 47} To establish ineffective assistance of counsel, a defendant must demonstrate that counsel‘s performance fell below an objective standard of reasonable representation and that he was prejudiced by that performance. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceеding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland at 694.
{¶ 48} In evaluating a claim of ineffective assistance of counsel, a court must be mindful that there are countless ways for an attorney to provide effective assistance in a given case, and it must give great deference to counsel‘s performance. Id. at 689. Trial tactics and strategies do not constitute a denial of effective assistance of counsel. State v. Gooden, 8th Dist. Cuyahoga No. 88174, 2007-Ohio-2371, ¶ 38, citing State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).
{¶ 49} Here, the record reflects that during Simpson‘s direct examination, he referenced a text message convеrsation he had with M.S. on the day of the altercation. Simpson testified that in the text messages, “he advised her not to come
{¶ 50} On appeal, Simpson argues defense counsel rendered ineffective assistance of counsеl by (1) failing to seek a continuance in order to ensure the state was presented with a copy of the records prior to trial, and (2) by failing to “mark or proffer the content of the text messages for purposes of the record and review.” Simpson further contends that he was prejudiced by counsel‘s performance and his inability to introduce evidence establishing that he told M.S. not to come to his home on July 3, 2017.
{¶ 51} As noted in Simpson‘s appellate brief, this court is unable to review the substance of the challenged phone records because they are not part of this record. Thus, we are left to speculate as to whether the referеnced text message conversation may have contained damaging information that defense counsel did not wish to introduce into evidence as part of a trial strategy. Nevertheless, even if this court were to conclude that defense counsel‘s failure to secure and produce the subject phone records for trial amounted to deficient performance, we find Simpson is unable to demonstrate that he was prejudiced. Although the text message conversation was not introduced at trial, Simpson offered extensive testimony
{¶ 52} Simpson‘s fourth assignment of error is overruled.
E. No-Contact Order
{¶ 53} In his fifth assignment of error, Simpson argues the trial court erred by ordering him to have no contact with M.S. Simpson contends that he loves his daughter, is battling cancer, and is capable of avoiding his daughter absent a court order “if that is her desire.”
{¶ 54} We review the trial court‘s imposition of community control sanctions for an abuse of discretion. State v. Cooper, 2016-Ohio-8048, 75 N.E.3d 805, ¶ 31 (8th Dist.), citing State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 10. Notwithstanding this broad discretion, the trial court‘s discretion “is not limitless.” State v. White, 10th Dist. Franklin No. 14AP-1027, 2015-Ohio-3844, ¶ 5, citing Talty at ¶ 11.
{¶ 56} As stated, Simpson was convicted of felonious assault, domestic violence, and abduction. The offenses corresponded to acts committed against M.S. In our view, the no-contact condition of Simpson‘s community control sanctions has an obvious relationship to the crimes for which Simpson was convicted. The condition is also reasonably related to rehabilitating Simpson. Specifically, “‘it is aimed at keeping him out of situations where he may be tempted to reoffend.‘” State v. Minarik, 8th Dist. Cuyahoga No. 106326, 2018-Ohio-3586, ¶ 77, quoting State v. Recker, 3d Dist. Putnam Nos. 12-14-03 and 12-14-04, 2014-Ohio-4993, ¶ 18; see also State v. Hultz, 5th Dist. Ashland No. 06-COA-003, 2006-Ohio-4056, ¶ 14 (“The removal of appellant from places of temptation is related to promoting
{¶ 57} Under the foregoing circumstances, we find the trial court did not abuse its discretion in fashioning a sentence that included a no-contact order that was designed to rehabilitate, administer justice, and ensure Simpson‘s good behavior.
{¶ 58} Simpson‘s fifth assignment of error is overruled.
{¶ 59} Judgment affirmed.
It is ordered that appellee recover from appellant the 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 common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
ANITA LASTER MAYS, J., and FRANK D. CELEBREZZE, JR., J., CONCUR