State v. VessState v. Vess
Leonard W. Yelsky, for appellant.
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YARBROUGH, J.
{¶ 1} This is an appeal from a judgment of the Ottawa County Municipal Court finding defendant-appellant Robin Vess guilty of 42 counts of animal cruelty in violation of
{¶ 3} In its case in chief, the prosecution presented four witnesses. The first was Shayna Roberts, a humane society officer present at appellant‘s farm on January 29, 2010, who testified as to her observations of the condition of the horses, and who authenticated the photographs of each horse, which the prosecution entered into evidence. The second witness was Nancy Miller, who had known appellant for many years through their common involvement with the Arabian Horse Club of Greater Toledo. Miller testified regarding whether appellant was knowledgeable about horses, the amount and type of food that horses generally eat, and her general observations of аppellant‘s horses a few days after they were removed from the farm. Finally, the prosecution presented two experts, veterinary doctors Avery and Lavigne, both of whom personally viewed the horses and testified extensively as to the condition of the horses and that the cause of the horses’ condition was malnutrition.
{¶ 4} On April 30, 2010, the jury found appellant guilty on all the counts as charged. Following the guilty verdict, appellant moved for a new trial on the grounds of
{¶ 5} The trial court denied appellant‘s motion on the grounds that it failed to satisfy the requirements for granting a new trial based on newly discovered evidence as articulated in State v. Petro (1947), 148 Ohio St. 505, 76 N.E.2d 370. However, the trial court did not address appellant‘s claim of a Brady violation, except to say in the judgment entry‘s conclusion: “A jury considered several days of witness testimony, plus over fifty (50) exhibits admitted into evidence, before finding [appellant] guilty of all forty-two (42) counts of animal cruelty. [Appellant] does not suggest any misconduct on the part of the jury, prosecuting attorney, or witnesses for the State. (Criminal Rule 33(A)(2)). Furthermore, [appellant] does not suggest any irregularity in the proceedings or rulings of the Court to conclude that [appellant] was otherwise prevented from having a fair trial. (Criminal Rule 33(A)(1)).” (Emphasis added.)
{¶ 6} On September 24, 2010, the trial court sentenced appellant to the maximum term of 90 days on each count, subject to the aggregate maximum sentence for misdemeanors of 18 months. The trial court suspended all but one day of the sentence on each count on the condition that appellant is placed on probation and abides by certain
{¶ 7} Appellant now raises the following two assignments оf error:
{¶ 8} 1. “TRIAL COUNSEL FOR ROBIN VESS PROVDED VESS WITH INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE COURSE OF HIS PRETRIAL PREPARATION AND IN HIS TRIAL CONDUCT.”
{¶ 9} 2. “IT CONSTITUTED PREJUDICIAL ERROR WHEN THE TRIAL COURT OVERRULED AND DENIED ROBIN VESS’ MOTION FOR NEW TRIAL.”
Ineffective Assistance of Counsel
{¶ 10} In support of her first assignment of error, appellant argues that her trial counsel was ineffective in that he failed to adequately inform appellant of the consequences of not accepting the state‘s offer to dismiss 39 counts of cruelty to animals in exchange for appellant‘s plea of guilty to three counts of cruelty to animals. Alternatively, appellant argues that her trial counsel was ineffective for failing to request discovery that could have allowed counsel to attack the testimony of the state‘s experts.
{¶ 11} To prevail on a claim of ineffective assistance of counsel, appellant must show that “counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington (1984), 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. To meet this
{¶ 12} For her first claim of ineffective assistance of counsel, appellant alleges that her attorney‘s performance was deficient because he failed to perform his duty to advise her fully on whether a particular plea is desirable. In support of this allegation, appellant refers solely to an affidavit that she filed in the trial court in support of her motion to suspend the execution of the sentence, in which she states:
{¶ 13} “9. Attorney Davis told me that the State offered a plea bargain to me. According to Davis the bargain the State offered to me was that I would plead guilty to 3 counts of animal cruelty and that 39 counts would be dismissed by the State.
{¶ 14} “10. Attorney Davis told me further that if I accepted the plea deal (a guilty plea to three counts) he could not guarantee that I would not receive jail time. Moreover, Davis told me that he would “win” аt trial in this matter – as to all 42 counts. More than
once, and several times Davis told me that he felt “good” about his chances of winning at trial. {¶ 15} “11. Attorney Davis never told me the sentence that I could receive if convicted at trial on all 42 counts of animal cruelty. Attorney Davis never told me that I could receive 18 months total jail time if convicted on all 42 counts, and he never told me that several thousand dollars of fines could be levied against me if convicted on all 42 counts of animal cruelty.
{¶ 16} “* * *
{¶ 17} “13. Attorney Davis never told me the maximum jail sentence nor did he tell me the maximum fines that could be imposed if I accepted the plea agreement offered and plead guilty to three counts of animal cruelty.
{¶ 18} “14. Had I been fully informed of the ramifications of accepting the State‘s plea offer compared to the ramifications of being found guilty of 42 counts of animal cruelty, I would have seriously considered accepting the State‘s plea offer to plead guilty to three counts of animal cruelty.”
{¶ 19} Appellant points to no other facts, and our review of the record fails to reveal any, that would support the allegation that appellant‘s trial attorney failed to inform her of the consequences of accepting or rejecting the state‘s plea offer. Thus, the only evidence in the record available to us for the determination of this claim is appellant‘s own affidavit in support of her motion to suspend the execution оf the sentence. The
{¶ 20} “[W]hen the trial record does not contain sufficient evidence regarding the issue of competency of counsel, an evidentiary hearing is required to determine the allegation.” State v. Cooperrider (1983), 4 Ohio St.3d 226, 228, 448 N.E.2d 452 (citing State v. Hester (1976), 45 Ohio St.2d 71, 341 N.E.2d 304). The General Assembly has provided procedures for such an evidentiary hearing through the postconviction remedies of
{¶ 21} It may or may not be that appellant can demonstrate sufficient facts to state a claim of ineffective assistance of counsel. However, we hold that appellant‘s self-serving affidavit is insufficient, without additional facts from the record, to support this court‘s determination of the issue. In State v. Walker (Dec. 29, 2000), 6th Dist. No. L-99-1383, this court stated that claims for ineffective assistance of counsel based on conversations occurring between trial counsel and the appellant that are not contained in the record may only be raised in an аction for postconviction relief. In Walker, the appellant claimed that his trial counsel was ineffective because “his trial counsel incorrectly advised him as to the applicable law regarding the consequences of accepting a plea bargain in that appellant‘s trial counsel grossly overstated the probable sentencing range.” Id. In deciding that his claim was not barred by res judicata, this court concluded that “[Walker‘s] claim of ineffective assistance оf trial counsel relied on evidence outside the record and, therefore, was not and could not have been raised on direct appeal to this
{¶ 22} In contrast to her first claim, the lack of a written request in the record for discovery pursuant to
{¶ 23} The general rule in Ohio is that “even debatable trial tactics do not constitute a deprivation of the effective assistance of counsel.” State v. Clayton (1980), 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (quoting People v. Miller (1972), 7 Cal.3d 562, 573-74, 102 Cal.Rptr. 841, 498 P.2d 1089). Specifically, “the decision of whether to submit a request for discovery ‘is presumed to be a trial tactic which does not constitute ineffective assistance of counsel.‘” Toledo v. Flugga, 6th Dist. No. L-06-1121, 2007-Ohio-0098, ¶ 12 (quoting State v. Whittsette, 8th Dist. No. 85478, 2005-Ohio-4824, ¶ 35). Here, appellant‘s own affidavit indicates that her trial counsel‘s decision not to pursue discovery was a tactic aimed at protecting some of her information from the prosecution. Notably, appellant states that “Mr. Dаvis told me that he was not going to ask the State for Discovery [sic] because that would then give them the write [sic] to demand it in return, and he did not want to be in the position to have to release our information.” Thus, we hold that the conduct of appellant‘s trial counsel constituted a trial tactic, and appellant, therefore, has failed to satisfy the first prong required to show ineffective assistance of counsel.
{¶ 24} Moreover, appellant has failed meet the second prоng of Strickland—that a reasonable probability exists that the trial outcome would have been different had her trial counsel been effective. Appellant hinges her claim on the blanket assertion that competent counsel would have requested discovery, and, consequently, (1) would have known that “Dr. Avery would not even be able to form an opinion based upon reasonable medical certainty at trial,” and (2) could “have prepared for the garbled, disjointed, and ill prepared testimony of Dr. Lavigne.”
{¶ 25} As a first matter, our review of the trial transcript has revealed, contrary to appellant‘s assertion, that Dr. Avery did in fact testify to a reasonable degree of medical certainty that the horses’ condition was caused by malnutrition, and that Dr. Lavigne‘s testimony was not garbled, disjointed, or ill prepared. Further, appellant in no way describes how the “discovery, tests or reports on the work done by the two State
{¶ 26} Therefore, because appellant has failed to satisfy both prongs of the Strickland test as to the claim based on a failure to seek discovery, and because direct appeal is not the appropriate forum for a claim of ineffective assistance of counsel based on facts outside of the record, appellant‘s first assignment of error is not well-taken.
Motion for a New Trial
{¶ 27} Appellant raises as her second assignment of error that the trial court erred in denying her a new trial. Appellant‘s brief in support of her “Motion for New Trial Based on Newly Discovered Evidence” contained two arguments: (1) the alleged bias of Miller, as evidenced by her “vendetta” against appellant, was newly discovered evidеnce that entitled appellant to a new trial, and (2) the prosecution‘s failure to disclose this evidence constituted a violation pursuant to Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.
{¶ 28} The trial court, in denying the motion, found that appellant failed to meet the six criteria required for a new trial based on newly discovered evidence as outlined in State v. Petro (1947), 148 Ohio St. 505, 76 N.E.2d 370. Specifically, the trial court found that appellant “failed to establish (1) that she was unavoidably prevented from obtaining the ‘newly discovered’ evidence; (2) that a strong рrobability that the trial results would
{¶ 29} Appellant now bases her assignment of error solely on the argument that a new trial was warranted because of the Brady violation; and requests that this court review this issue under a due process analysis. State v. Johnston (1988), 39 Ohio St.3d 48, 60, 529 N.E.2d 898. The state, on the other hand, argues that this court must apply an abuse of discretion standard when reviewing a trial court‘s denial of a motion for new trial based on newly discovered evidence. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 82. Because appellant properly raised the issue of the Brady violation in the trial court, we believe a fair adjudication requires us to apply the appropriate due process analysis on appeal. Nevertheless, we conclude that under either standard, appellant is not entitled to a new trial.
Brady Violation
{¶ 30} Under Brady, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, supra, at 87. Notably, this doctrine has been extended such that “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government‘s behalf in the case, including the police.” Kyles v. Whitley (1995), 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490. In addition, this doctrine applies whether there has been a specific request, a general request, or, as here, no request by the
{¶ 31} Appellant‘s theory of this assignment оf error is essentially that Miller testified at the trial because she had a vendetta against appellant, and therefore she was a biased witness. In addition, because Miller stated that she had a vendetta in the presence of Silva, Silva consequently had knowledge of Miller‘s bias. Further, because Silva was an officer for the Ottawa County Humane Society, the arresting agency in the case, the prosecutor had a duty to learn of the exculpating evidence, in this case, Miller‘s bias. Finаlly, because the prosecutor did not disclose the exculpating evidence, appellant‘s due process rights were violated.
{¶ 32} Appellant‘s theory fails, however, because a Brady violation only occurs when the prosecutor suppresses material evidence. The United States Supreme Court has defined whether evidence is material as “[whether] there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” State v. Johnston, supra, at 61 (quoting Bagley, supra, at 682). Assuming for the purposes of this analysis only that Miller had a vendetta and was consequently biased against appellant, we conclude based on our analysis of Miller‘s testimony in conjunction with the other testimony produced at trial that a reasonable probability does not exist that the result of the proceeding would have been different had the evidence been disclosed.
{¶ 34} Miller next testified as to how much food and water horses generally consume, and how much food should generally be kept on hand. On this issue, any prejudice that could have been caused by Miller‘s bias was effectively nullified on cross-examination, where appellant‘s trial counsel elicited that the amount of food required is usually determined by what the horse looks like, and that Miller could not testify as to how much food appellant‘s horses would need. Further, substantial other testimony existed specifically as to the amount of food located in appellant‘s barn, whether that food was sufficient to feed appellant‘s horses, and as to how much food had recently been ordered by appellant. As such, on this issue we cannot say a reasоnable probability exists that the trial outcome would have been different had Miller‘s alleged bias been disclosed.
{¶ 35} The final issue Miller testified to was the condition of the horses. Miller‘s testimony on this issue was limited to two responses, one on direct examination in which she said, “My observations of the horses were they all had blankets on, but a couple of them the blankets were pulled forward to show other people, and I observed they were very thin. The horses were very lethargic and very quiet аnd really disinterested. Just looked like horses that were depressed and very thin.” The second response was on re-direct where Miller testified as to the thinness of one particular horse. On this issue, we again cannot say that Miller‘s alleged bias created a reasonable probability that the trial
{¶ 36} Therefore, we hold that the exculpatory evidence of Miller‘s alleged bias is insufficient to undermine confidence in the outcome of trial. Consequently, appellant‘s claim of a Brady violation must fail, and she is not entitled to a new trial.
Newly Discovered Evidence
{¶ 37} Turning to the trial court‘s denial of the motion for new trial based on newly discovered evidence, as an initial matter, we note thаt in her brief in support of her motion, appellant has confused the newly discovered evidence with the potentially exculpatory evidence that the prosecutor may have had a duty to disclose. Appellant claimed that the newly discovered evidence was the fact that Miller testified because of a vendetta against appellant. Actually, however, the evidence is the statements of the affiants, not the facts contained in those statements; indeed, likе all evidence, the statements are the means by which those facts are proven. Applying that principle, contrary to appellant‘s assertion, the newly discovered evidence is not that Miller testified because of a vendetta. Rather, the newly discovered evidence is the statements from the affiants, Linda Logan and A. Kristina Burkhart. The distinction is significant.
{¶ 38} For example, for appellant to prove that a new trial is warranted on the basis of newly discovered evidence, such evidence must be admissible in the new trial.
{¶ 39} An appellate court applies an abuse of discretion standard when reviewing an order granting or denying a motion for new trial pursuant to
{¶ 40} In Ohio, “[t]o warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new
{¶ 41} The trial court found that appellant failed to satisfy the first, third, and sixth requirements. Wе need not go that far. Because we determined above that appellant has not demonstrated even a reasonable probability that Miller‘s alleged bias would have resulted in a different outcome, we hold that the trial court did not abuse its discretion when it found that the newly discovered evidence did not disclose a “strong probability” that it would change the result of the trial. Thus, because appellant failed to satisfy all six requirements, the trial court‘s denial of appellant‘s motion for a new trial based on newly discovered evidence was not in error.
{¶ 42} Accordingly, appellant‘s second assignment of error is not well-taken.
{¶ 43} For the foregoing reasons, the judgment of the Ottawa County Municipal Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
JUDGMENT AFFIRMED.
Peter M. Handwork, J. _______________________________
JUDGE
Thomas J. Osowik, P.J. _______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR. _______________________________
JUDGE
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
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.