2006 Ohio 6088 | Ohio Ct. App. | 2006
{¶ 2} In March of 2005, a complaint was filed alleging that Wickard committed assault in violation of R.C.
{¶ 3} In June of 2005, Wickard moved to dismiss the assault charge under Crim.R. 12(A). In addition, Wickard moved to dismiss the assault charge for the State's failure to comply with the discovery requirements of Crim.R. 16.
{¶ 4} In July of 2005, the trial court found that the State provided Wickard the requested discovery and overruled Wickard's remaining pre-trial motions because they were moot.
{¶ 5} In September of 2005, a jury trial was held. During the trial, the State provided the testimony of Jordan Zissler, Wickard's foster child, alleging that on February 15, 2005, Wickard had struck Jordan twice with a horse whip. Jordan's testimony was supported by photo exhibits of bruises on his arms and legs, testimony of one of his teachers and the school nurse at the Chamberlin Hill School in the Findlay City School System, Dr. Martin Hanowalt, a pediatric hospitalist with the Blanchard Valley Hospital, and Officer Timothy Graydon, a deputy sheriff with the Hancock County Sheriff's department. After the State rested, Wickard moved for acquittal under Crim.R. 29, which the trial court overruled. Wickard then testified on his own behalf. Wickard testified that he did not cause Jordan's bruises; that he had never hit Jordan with a horse whip; and, that in the past, he had used corporal punishment on his biological son, using a small stick or small rod.
{¶ 6} At the conclusion of the trial, the jury found Wickard guilty of assault. Subsequently, Wickard was fined three-hundred fifty dollars plus court costs and was sentenced to thirty days in jail. Additionally, the trial court ordered that after three days of incarceration, Wickard would serve the balance of the thirty days in the Hancock County Rehabilitation and Opportunity Center.
{¶ 7} It is from this judgment Wickard appeals, presenting the following assignments of error for our review:
{¶ 9} R.C.
{¶ 10} Where there is no manifest legislative intent that a general provision of the Revised Code prevails over a special provision, the special provision takes precedence. State v.Volpe (1988),
{¶ 11} R.C.
If a general provision conflicts with a special or localprovision, they shall be construed, if possible, so that effectis given to both. If the conflict between the provisions isirreconcilable, the special or local provision prevails as anexception to the general provision, unless the general provisionis the later adoption and the manifest intent is that the generalprovision prevail.
{¶ 12} However, where it is clear that a general provision applies coextensively with a special provision, R.C.
(1) "Family or household member" means any of the following: (a) Any of the following who is residing or has resided withthe offender: (i) A spouse, a person living as a spouse, or a former spouseof the offender; (ii) A parent or a child of the offender, or another personrelated by consanguinity or affinity to the offender; (iii) A parent or a child of a spouse, person living as aspouse, or former spouse of the offender, or another personrelated by consanguinity or affinity to a spouse, person livingas a spouse, or former spouse of the offender. (b) The natural parent of any child of whom the offender isthe other natural parent or is the putative other naturalparent.
Here, Wickard's claim fails because Jordan, Wickard's foster child, does not fall within the statutory definition of a "family or household member" under R.C.
(B) No person shall do any of the following to a child undereighteen years of age or a mentally or physically handicappedchild under twenty-one years of age: (1) Abuse the child;
{¶ 15} In State v. Troglin, 3d. Dist. No. 14-04-41,
To prove endangering children as charged * * * under R.C.
Id. at ¶ 38. (Citations and footnote omitted). Additionally, inTroglin, we held "that the existence of the culpable mental state of recklessness is an essential element of the crime of endangering children under R.C. 2919.22(B)(1)." Id. at n. 2.
{¶ 16} Accordingly, under R.C.
{¶ 17} A comparison of the elements of R.C.
{¶ 18} Accordingly, R.C.
Child Endangering — R.C.
{¶ 19} Finally, Wickard asserts that that he should have been charged with child endangering in violation of R.C.
(B) No person shall do any of the following to a child undereighteen years of age or a mentally or physically handicappedchild under twenty-one years of age:
* * *
(3) Administer corporal punishment or other physicaldisciplinary measure, or physically restrain the child in a cruelmanner or for a prolonged period, which punishment, discipline,or restraint is excessive under the circumstances and creates asubstantial risk of serious physical harm to the child;
{¶ 20} In State v. O'Brien (1987),
{¶ 21} A comparison of the elements of R.C.
{¶ 22} Accordingly, R.C.
{¶ 23} Having found that the State was not required to charge Wickard with domestic violence in violation of R.C.
Assignment of Error No. II
{¶ 24} In his second assignment of error, Wickard argues that the trial court erred in conducting multiple bench conferences off of the record, which deprived him of a complete record for our review. The State responds that Wickard failed to take proper precautions to insure a complete record for review.
{¶ 25} Loc.R. 10 of the Findlay Municipal Court provides, in pertinent part:
Pursuant to Ohio Revised Code §
{¶ 26} The Ohio Supreme Court "has clearly held that reversal of convictions and sentences on grounds of some unrecorded bench and chambers conferences, off-the-record discussions, or other unrecorded proceedings will not occur in situations where the defendant has failed to demonstrate that (1) a request was made at trial that the conferences be recorded or that objections were made to the failures to record, (2) an effort was made on appeal to comply with App.R. 9 and to reconstruct what occurred or to establish its importance, and (3) material prejudice resulted from the failure to record the proceedings at issue." State v.Palmer,
{¶ 27} Here, Wickard cannot satisfy the requirements underPalmer to justify a reversal of his convictions based upon an incomplete transcript. Wickard has failed to demonstrate that he requested the bench conferences to be recorded by a pretrial motion or otherwise. The record is also devoid of any request to have an official court reporter at any part of the proceedings or trial. In the absence of such requests, any possible error was waived. See Palmer,
{¶ 28} Accordingly, Wickard's second assignment of error is overruled.
Assignment of Error No. III
{¶ 29} In his third assignment of error, Wickard argues that the trial court erred in failing to remedy the prejudicial effect of prosecutorial misconduct. Specifically, Wickard asserts that the trial court erred in allowing Officer Graydon, one of the State's witnesses, to bring whips into the courtroom; that the trial court erred by not admonishing the jury that Wickard was not required to take a polygraph test; and, that the trial court erred in failing to admonish the jury about possible nods or prompts from the audience during the victim's testimony.
{¶ 30} "The test for prosecutorial misconduct is whether the remarks were improper and, if so, whether the remarks prejudicially affected the accused's substantial rights." Statev. Twyford,
{¶ 31} In his brief, Wickard highlights specific portions of the transcript for us to review. With respect to the whips being brought into the courtroom, during Officer Graydon's testimony, Wickard's Counsel noted that Officer Graydon did not seize any horse whips from Wickard's residence for evidence. Additionally, Wickard's counsel noted that Officer Graydon brought two other whips with him into the courtroom and that neither of those whips had anything to do with the crime. However, Officer Graydon expressed that the two whips were of similar design to those found in Wickard's residence.
{¶ 32} With respect to the polygraph test, the prosecution and Officer Graydon had the following exchange:
Q: Did you again speak with Mr. Wickard on February 28th? A: Yes, I did. And that was a phone conversation in reply tomy previous offering Mr. Wickard to take a polygraph test toclarify his truthfulness. [Defense Counsel]: I'm going to object, Your Honor. The Court: I'll sustain the objection, we're not going to gothere.
(Trial Tr. p. 186). Additionally, after Wickard moved for a mistrial based upon this question, the trial court instructed the jury that, while you were out there were some issues we talkedabout, one of the things that we wanted to make sure is there isno misunderstanding based upon a response that was made, it wasn'teven solicited, but at one point Deputy Graydon made mention of[a] request for a polygraph exam. Of course we didn't hearanything about that, I want to specifically instruct you folksnot to consider that in any way. Not to presume was there one,wasn't there, I mean just totally disregard that commentcompletely. So if you would please, it doesn't have anything todo with this case at all.
(Trial Tr. pp. 208-09).
{¶ 33} With respect to Jordan's alleged coaching, the trial judge noted "I was watching [Jordan's foster mother and the lady sitting beside her]. They moved so that the child could see them at all times, but I was specifically looking to see if there was any type of communication being attempted, and I didn't see any." (Trial Tr. p. 206).
{¶ 34} Upon our review of the record, we cannot find that the prosecutor's actions affected the outcome of this case sufficiently to require that the verdict be overturned or set aside.
{¶ 35} Accordingly, Wickard's third assignment of error is overruled.
{¶ 37} We begin by noting that Wickard failed to object to the trial court's instructions and he did not proffer an instruction on possible applicable affirmative defenses. Where a defendant has not objected to the lack of a jury instruction or proffered an instruction on the asserted affirmative defense, we must determine if the lack of such an instruction constitutes plain error. State v. Durkin (1981),
{¶ 38} Here, Wickard does not provide, and we have not been able to find, any authorities or statutes which indicate that corporal punishment is an affirmative defense to assault in violation of R.C.
{¶ 39} Accordingly, Wickard's fourth assignment of error is overruled.
{¶ 41} An ineffective assistance of counsel claim requires proof that a trial counsel's performance fell below objective standards of reasonable representation and that the defendant was prejudiced as a result. State v. Bradley (1989),
{¶ 42} Furthermore, the court must look to the totality of the circumstances and not isolated instances of an allegedly deficient performance. State v. Malone (Dec. 13, 1989), 2d Dist. No. 10564. "Ineffective assistance does not exist merely because counsel failed `to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it.'" Id. quoting Smith v. Murray (1986),
{¶ 43} Wickard raises multiple reasons for claiming ineffective assistance of counsel. Specifically, Wickard contends that his defense counsel was ineffective for failing to object to the use of certain words, such as "injury", without definition or instruction; that his defense counsel was ineffective for failing to call Jordan's counselor as a witness; that his defense counsel was ineffective for failing to object to the prosecutor's use of double or loaded questions; and, that his defense counsel was ineffective for failing to object to Dr. Hanowolt's testimony of his opinion that this case involved "child abuse" even though he was not charged with child abuse.
{¶ 44} Upon review, it is our conclusion that the evidence in this case regarding these claims of ineffective assistance of counsel revealed tactical or strategic trial decisions. As such, they do not fall below an objective standard of reasonable representation. Nor, in this case, did they create any reasonable probability of a different outcome. Moreover, tactical or strategic trial decisions, even if ultimately unsuccessful, will not substantiate a claim of ineffective assistance of counsel.State v. Garrett (1991),
{¶ 45} Additionally, Wickard asserts that his defense counsel was ineffective for failing to raise the issue that Wickard was charged under the wrong offense; that his defense counsel was ineffective for failing to object to off-the-record sidebar conferences; that his defense counsel was ineffective for failing to object to the display of horse whips in the court room; that his defense counsel was ineffective for failing to seek input into the court's wording of its admonition to the jurors concerning the improper mention of a polygraph test; and, that his defense counsel was ineffective for failing to insist that his client had the right to present affirmative defenses. Based on our disposition in the first, second, third, and fourth assignments of error, we cannot find that there is a reasonable probability that Wickard's claimed deficiency of his defense counsel would have changed the result of the trial.
{¶ 46} Accordingly, Wickard's fifth assignment of error is overruled.
{¶ 47} 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. Bryant, P.J. and Shaw, J., concur.
