[Cite as State v. Jones, 2010-Ohio-4823.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO, CASE NO. 9-10-09
PLAINTIFF-APPELLEE,
v.
TIMOTHY ALLEN JONES, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 09-CR-066
Judgment Affirmed
Date of Decision: October 4, 2010
APPEARANCES:
Kevin P. Collins, for Appellant
Brent Yager, for Appellee
Case No. 9-10-09
SHAW, J.
{¶1} Defendant-Appellant Timothy A. Jones (“Jones”) appeals the
January 11, 2010 judgment of the Marion County Court of Common Pleas
convicting him of felonious assault, sentencing him to eight years in prison for the
offense and designating him as a repeat violent offender which added four years to
Jones’ sentence for a total twelve-year prison term.
{¶2} The facts giving rise to this case took place at the Multi-County
Correctional Center in Marion, Ohio. In February 2009, Jones was placed in the
Multi-County Correctional Center while he awaited trial on charges stemming
from a separate incident from this case. Inmate Joshua Criswell (“Criswell”) was
also residing in the jail at this time due to his convictions on charges unrelated to
the instant case.
{¶3} On April 8, 2009, at approximately 9:30 p.m., a physical altercation
occurred between Jones and Criswell over an item of commissary that Jones
claimed Criswell owed to him. The fight occurred outside Criswell’s cell. One of
the surveillance cameras in the jail captured the episode. The recording depicted
Jones engaging Criswell in the fight by taunting him, then shoving forcefully and
punching him. After the first punch, Criswell fell to the floor. It was evident from
the recording that Jones dispensed multiple punches and kicks in the direction of
Criswell’s body which was positioned on the floor. However, the camera was
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unable to capture the actual contact blows that Jones made with Criswell’s body
because the camera had a partially obstructed view of the location where the fight
occurred. After about twenty seconds, another inmate stepped-in to break-up the
fight. Jones returned to the location where he was standing before the altercation.
However, the recording clearly depicts that it took Criswell some additional time
to collect himself and stand up before returning to his cell.
{¶4} Approximately one hour later, at 10:30 p.m., Criswell complained to
the Corrections Officer on duty that he was experiencing stomach pains. When
asked about the cause of his pain, Criswell initially stated that he fell out of his
bunk, claiming that he did not want to reveal the altercation with Jones to the jail
authorities. After the Corrections Officer continued to express her disbelief with
his story, Criswell eventually disclosed the incident with Jones. Criswell was
taken to the medical unit in the jail for observation and to be examined by the
nurse, Rita Bader, when she arrived on duty in the morning.
{¶5} Nurse Bader arrived the next day around 8:00 a.m. and examined
Criswell who continued to complain of stomach pains. Bader’s initial examination
did not detect any irregularities with Criswell’s body; however she continued to
monitor his condition throughout the morning. Criswell’s complaints about his
stomach pains did not abate. Criswell complained that the pain had spread from
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his stomach to his shoulder. After performing a subsequent examination, Bader
noticed that Criswell’s abdomen appeared distended.
{¶6} Upon this change in his condition, Criswell was sent to the Morrow
County Hospital where the emergency room physician examined him and ordered
a CAT scan to be performed on his chest and abdomen. The CAT scan revealed
that Criswell was bleeding internally. Criswell was “MedFlighted” to Grant
Medical Center in Columbus where it was determined that he suffered from a
ruptured spleen. Emergency surgery was performed and over a liter of blood was
removed from Criswell’s stomach. Criswell remained hospitalized for a
significant time following the surgery.
{¶7} The video recording of the altercation between Jones and Criswell
was retrieved and viewed by the jail authorities. The recording confirmed that
Jones was Criswell’s assailant in the fight. After an internal investigation, Jones
was disciplined and given sixty days of lockdown and loss of visits and
commissary.
{¶8} The Marion Police Department also conducted an investigation of
the incident. On April 16, 2009, Jones was indicted on one charge of felonious
assault in violation of R.C. 2903.11(A)(1), a second degree felony. On April 30,
2009, the indictment was amended to add a specification to designate Jones as a
repeat violent offender pursuant to R.C. 2929.14(D)(2) and R.C. 2941.149. The
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parties stipulated to a bifurcated adjudication of the felonious assault charge and
the repeat violent offender specification.
{¶9} On September 24 and 25, 2009, the felonious assault charge was
tried before a jury. Several witnesses testified including Jones, Criswell, Nurse
Bader and the Morrow County Hospital emergency room doctor who examined
Criswell. At the close of the evidence, the jury found Jones guilty of felonious
assault.
{¶10} On December 30, 2009, the specification to designate Jones as a
repeat violent offender was tried before the bench. After considering the evidence
before it, the trial court found Jones to be a repeat violent offender and proceeded
with sentencing which was journalized in its January 11, 2010 Judgment Entry.
The court sentenced Jones to a prison term of eight years on the felonious assault
conviction and an additional four years for Jones’ designation as a repeat violent
offender, for a total of twelve years. The trial court also advised Jones that he was
sentenced to a mandatory term of three years of post-release control.
{¶11} Jones now appeals from this judgment, asserting the following
assignments of error.
ASSIGNMENT OF ERROR I
THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
SUPPORT DEFENDANT-APPELLANT’S CONVICTION ON
THE REPEAT VIOLENT OFFENDER SPECIFICATION
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ASSIGNMENT OF ERROR II
DEFENDANT-APPELLANT’S CONVICTION FOR
FELONIOUS ASSAULT IS CONTRARY TO THE MANIFEST
WEIGHT OF THE EVIDENCE
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT-APPELLANT BY ALLOWING THE
PROSECUTOR TO CROSS EXAMINE HIM ABOUT
PREVIOUS FELONY CONVICTIONS
ASSIGNMENT OF ERROR IV
THE DEFENDANT-APPELLANT’S CONVICTION WAS
OBTAINED BY FALSE AND MISLEADING TESTIMONY BY
THE STATES [SIC] WITNESS JOSHUA CHRISWELL [SIC]
WHICH WAS KNOWN BY THE STATE TO BE FALSE
ASSIGNMENT OF ERROR V
DEFENDANT-APPELLANT’S TRIAL COUNSEL,
ATTORNEY JOHN [SIC] DOYLE, WAS INEFFECTIVE AS
COUNSEL IN THAT HE FAILED TO EXAMINE THE
MEDICAL RECORDS FROM THE MULTI COUNTY JAIL
BELONGING TO JOSHUA CHRISWELL [SIC] AND TO
HAVE THEM ADMITTED AS EVIDENCE
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED WHEN IT FOUND THE
APPELLANT GUILTY OF BEING A REPEAT VIOLENT
OFFENDER PURSUANT TO R.C. 2929.14(D)(2)/R.C. 2941.149
AND R.C. 2929.01(CC) AS CONTAINED IN HIS
INDICTMENT
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ASSIGNMENT OF ERROR VII
THE TRIAL COURT ABUSED IT’S [SIC] DISCRETION
WHEN IT DENIED THE DEFENDANT-APPELLANT’S
MOTION FOR EXPERT WITNESS AND EXTRAORDINARY
FUNDS
{¶12} For ease of discussion, we elect to discuss Jones’ assignments of
error out of order.
Second Assignment of Error
{¶13} In his second assignment of error, Jones contends that the jury’s
verdict convicting him of felonious assault was against the manifest weight of the
evidence. When an appellate court analyzes a conviction under the manifest
weight standard it must review the entire record, weigh all of the evidence and all
of the reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the fact finder clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541, 1997-Ohio-52, superseded by state constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 1997-
Ohio-335, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d
717. Only in exceptional cases, where the evidence “weighs heavily against the
conviction,” should an appellate court overturn the trial court’s judgment. Id.
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{¶14} The jury found Jones guilty of felonious assault under R.C.
2903.11(A)(1), which provides, in pertinent part:
(A) No person shall knowingly do * * * the following:
(1) Cause serious physical harm to another[.]* * *
Additionally, “serious physical harm” means any of following:
(a) Any mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric
treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent
incapacity, whether partial or total, or that involves some
temporary, substantial incapacity;
(d) Any physical harm that involves some permanent
disfigurement or that involves some temporary, serious
disfigurement;
(e) Any physical harm that involves acute pain of such
duration as to result in substantial suffering or that involves any
degree of prolonged or intractable pain.
R.C. 2901.01(A)(5). Finally, R.C. 2901.22(B) provides that:
A person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances
probably exist.
{¶15} In the case sub judice, Jones admits that he assaulted Criswell during
the incident at the Multi-County Correctional Center. Jones further acknowledges
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that Criswell’s injury of a ruptured spleen constitutes serious physical harm.
However, Jones disputes that the prosecution proved beyond a reasonable doubt
that his actions in the altercation with Criswell caused the injury to Criswell’s
spleen which resulted in Criswell suffering serious physical harm.
{¶16} Specifically, Jones maintains that Criswell’s interactions with other
inmates a day or two before Jones’ fight with Criswell could have caused
Criswell’s spleen injury. Jones and other inmates testified that “horseplay” and
“roughhousing” which consisted of inmates throwing “body punches” at one
another, was a common occurrence at the jail. Jones testified that the day before
the altercation with Criswell, he observed Criswell and another inmate, Anthony
“Smug” Brown, throwing “body shots” at each other.
{¶17} Aside from the possibility of others causing Criswell’s spleen injury,
Jones also argues that the physical contact he made with Criswell during the
alteration could not have caused Criswell’s spleen to rupture. On the stand, Jones
admitted that he swung hard when he punched Criswell. However, Jones
maintained that he only hit Criswell in the chest twice, once with each fist. Jones
also argues that because Criswell was lying on the ground, the force of his
punches was lessened because he had to bend over to punch Criswell, and
therefore, according to Jones, his punches could not have been forceful enough to
cause Criswell’s spleen to rupture.
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{¶18} Contrary to Jones’ doubts about his actions in the altercation causing
Criswell serious physical harm, there was ample evidence demonstrating that the
blows Criswell endured during the incident with Jones caused the injury to his
spleen. The recording from the jail’s surveillance camera showed that Criswell
was downstairs near the jail’s day area just prior to the altercation. Jones was
upstairs leaning against the balcony. Criswell testified that Jones began yelling
down to him claiming that Criswell owed him some Ramen Noodles, aka “soup.”
Criswell testified that he climbed up the stairs telling Jones that he would not give
him the “soup.” The recording depicts Jones then walked to Criswell’s cell, which
was located at the top of the stairs. Criswell testified that Jones stated that he
would just take the “soup” out of Criswell’s cell. At that point, Criswell testified
that he ran toward his cell and attempted to slam the cell door shut to prevent
Jones from taking his “soup.”
{¶19} Criswell recalled that after he slammed his cell door, Jones pushed
and hit him causing Criswell to fall down. While on the floor, Criswell
remembered covering-up his mid-section with his arms trying to protect himself
from Jones. Criswell could not recall if Jones kicked him, but he was adamant
that Jones punched him hard once on each side. Criswell described Jones’
punches “like he put his force into it. It’s the hardest I’ve ever been hit in my
life.” (Tr. Trans. p. 157).
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{¶20} Criswell testified that he did not attempt to fight back against Jones’
punches, but remained on the floor covering his mid-section until Inmate “Smug”
Brown pulled Jones away from Criswell. Criswell testified that Jones’ punches
ruptured his spleen. Criswell stated that immediately after the incident with Jones
he could feel that something was wrong. Criswell described the pain: “I was
having real shooting pain clear up the side of my chest. Every time I sat down, it
was an extreme pain. It was the worst pain I ever felt in my life.” (Tr. Tran. P.
157).
{¶21} Criswell testified that eventually the pain grew so intense that it
prompted him to use the jail’s intercom to summon the Corrections Officer on
duty. Criswell remembered being taken down to the medical ward to await Nurse
Bader’s arrival in the morning. Criswell testified that he continued to experience
the worst pain of his life throughout the night. Nurse Bader testified that when she
arrived in the morning, Criswell explained to her that he had been assaulted by
another inmate. Upon noticing that Criswell’s distended abdomen, Nurse Bader
made the decision to send Criswell to the Morrow County Hospital.
{¶22} Dr. Sayre, the emergency room physician at the Morrow County
Hospital, testified that upon his initial examination, Criswell described Jones’s
attack as being the source of his injury. Dr. Sayre testified that Criswell’s heart
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rate and blood pressure were low and that Criswell appeared to be getting sicker
and sicker.
{¶23} Dr. Sayre explained that the spleen is an organ located on the “high
left side of the belly.” (Tr. Trans. p. 128). Dr. Sayre further explained that a
severe blow to the spleen could cause it to rupture. Dr. Sayre stated that “spleens
don’t bleed for no reason. There has to be some sort of trauma.” (Tr. Trans. p.
133). Dr. Sayre testified that when a person experiences a spleen injury of
Criswell’s nature, the person will get sicker and sicker as the internal bleeding
increases causing the person to eventually die.
{¶24} With regard to Jones’ claims that Criswell’s “horseplay” with
another inmate could have caused Criswell’s spleen injury, there is no evidence
that Criswell felt sick or expressed intense pain until after Jones’ assault on him.
Criswell testified that he suffered from no injury in his ribs or abdomen area until
Jones punched him. Furthermore, Criswell testified that he had been to see Nurse
Bader the day before the incident with Jones. Criswell stated that he went to the
medical ward because he had a boil on his buttocks and suffered from a toothache,
but he adamantly maintained that he suffered from no abdominal pain prior to his
altercation with Jones.
{¶25} On the stand, Nurse Bader reviewed the medical files from the
prison and confirmed that she had seen Criswell on April 7, 2009—the day before
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the incident with Jones. Nurse Bader testified that Criswell complained of a boil
and a toothache. Nurse Bader also confirmed that Criswell did not voice any
complaints about abdominal or stomach pains at that time. Moreover, in the video
recording of the incident, Criswell appears to show no sign of injury as he quickly
climbed the stairs to prevent Jones from entering his cell. It is not until after
Jones’ assault on Criswell occurred that there is a noticeable difference in
Criswell’s body movements as he takes some time to rise to his feet before
returning to his cell.
{¶26} Based on the foregoing testimony, we conclude that there was ample
evidence for the jury to conclude that Jones’ assault on Criswell caused Criswell
to suffer serious physical harm. Criswell consistently identified Jones’ assault on
him as the source of his spleen injury. Criswell’s testimony was further
corroborated by the testimony of Nurse Bader and Dr. Sayre and the recording
from the jail’s surveillance camera which captured the incident. Therefore, we can
not find that Jones’ conviction for felonious assault was against the manifest
weight of the evidence. Accordingly, Jones’ second assignment of error is
overruled.
Fourth Assignment of Error
{¶27} In his fourth assignment of error, Jones claims that the Prosecutor
knowingly allowed Criswell to give false, misleading and prejudicial testimony
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which harmed his case. As the basis for his contention, Jones specifically takes
issue with Criswell’s testimony recounting the details of the altercation and
maintains that Criswell’s testimony was not credible.
{¶28} Initially, we note that “the jury, as the trier of fact, is vested with the
power to judge the credibility of witnesses and to determine the weight to be
afforded to the evidence presented.” Croft v. State Farm Mutual Auto. Ins. Co., 3d
Dist. No. 1-01-72, 2002-Ohio-113, citing Swan v. Skeen (1974), 40 Ohio App.2d
307, 308-309, 319 N.E.2d 221. As discussed in the previous assignment of error,
the jury heard testimony from multiple witnesses concerning the incident between
Jones and Criswell in addition to viewing a video recording which captured the
event. There was also medical evidence presented supporting a finding that Jones
caused Criswell’s spleen to rupture. Furthermore, Jones’ testified on his own
behalf and was afforded an opportunity to provide his version of the incident in
order to refute Criswell’s testimony that Jones caused Criswell’s ruptured spleen.
{¶29} The determination of Criswell’s credibility and the appropriate
weight to be given to his testimony rested within the province of the jury. In the
end, the jury felt that the evidence supported a finding that the prosecution proved
beyond a reasonable doubt that Jones caused Criswell serious physical harm.
Finally, Jones neither proffers nor points to any indication in the record that the
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prosecutor knew any of Criswell’s testimony to be false. Therefore, having found
no prejudicial error to Jones, the fourth assignment of error is overruled.
Third Assignment of Error
{¶30} In his third assignment of error, Jones argues that the trial court erred
to his prejudice by allowing the prosecutor to cross-examine him about his
previous felony convictions. Specifically, Jones maintains that the prosecution’s
intent in questioning him about his prior felony convictions was not for the
legitimate purpose of impeachment but to present impermissible character
evidence to obtain his conviction.
{¶31} “The admission or exclusion of relevant evidence rests within the
sound discretion of the trial court.” State v. Sage (1987), 31 Ohio St.3d 173, 510
N.E.2d 343, paragraph two of the syllabus. We therefore review a trial court’s
decision regarding the admission of such evidence under an abuse of discretion
standard. “Evidence of prior convictions is prohibited except under narrow
circumstances.” State v. Jackson, 3rd Dist. No. 14-10-09, 2010-Ohio-2297, at ¶
172, citing State v. Allen (1987), 29 Ohio St.3d 53, 55, 506 N.E.2d 199. One such
circumstance is for impeachment purposes when a defendant testifies.
Specifically, “evidence that the accused has been convicted of a crime is
admissible if the crime was punishable by death or imprisonment in excess of one
year * * * and if the court determines that the probative value of the evidence
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outweighs the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.” Evid.R. 609(A)(2).
{¶32} In the instant case, the record indicates Jones’ counsel was the first
to elicit testimony from Jones discussing his criminal past by asking Jones about
his prior felony conviction for attempted robbery on direct examination. The
prosecution then cross-examined Jones more extensively on his criminal record
referring to prior judgment entries evidencing that Jones had been also convicted
of two burglary offenses and an assault on a police officer. Incidentally, Jones,
while on the stand, denied that he had been convicted for the assault on a police
officer charge and one of the burglary offenses.
{¶33} The only evidence of Jones’ prior felony convictions objected to by
Jones’ counsel at trial, was evidence relating to Jones’ 1986 conviction for
felonious assault. However, the record indicates that in conformity with Evid.R
609(B) the prosecution supplied Jones with ample written notice via multiple
discovery-related filings that it intended to impeach Jones with convictions older
than ten years giving Jones sufficient opportunity to contest the use of the
evidence at trial.
{¶34} After reviewing the record, we cannot conclude that the prosecution
elicited testimony from Jones about his prior felony convictions other than for the
permissible purpose of impeaching Jones’ credibility. Further, we note that the
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assault giving rise to this case occurred between two inmates while residing in a
correctional facility. Therefore, any prejudice to Jones concerning evidence of his
prior felony convictions was lessened due to the fact that Jones was serving time
in jail on a prior felony conviction at the time of trial. Accordingly, we do not find
that the trial court abused its discretion in permitting the prosecution to cross-
examine Jones about his prior felony convictions. Jones’ third assignment of error
is overruled.
Seventh Assignment of Error
{¶35} In his seventh assignment of error, Jones argues that the trial court
abused its discretion when it denied his pre-trial motion for an expert witness and
extraordinary funds. With regard to this assignment of error, Jones maintains that
an expert witness could have reviewed Criswell’s medical records and determined
that Jones did not cause Criswell’s spleen injury.
{¶36} The Supreme Court of Ohio has held that that due process requires
that an indigent criminal defendant be provided funds to obtain expert assistance at
state expense “only where the trial court finds, in the exercise of a sound
discretion, that the defendant has made a particularized showing (1) of a
reasonable probability that the requested expert would aid in his defense, and (2)
that denial of the requested expert assistance would result in an unfair trial.” State
v. Mason (1998), 82 Ohio St.3d 144, 150, 694 N.E.2d 932.
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{¶37} Here, Jones failed to make a particularized showing to meet either of
these requirements. Jones never identified any specific expert or even a specific
field of expertise that would aid in his defense. Rather, Jones simply makes
blanket assertions that an expert “could” uncover other medical evidence
indicating that Jones was not the cause of Criswell’s injury and provide testimony
to that effect. Moreover, in his motion for an expert and on appeal, Jones simply
reiterates his contention that other inmates could have caused Criswell’s injury
and offers mere speculations that an unspecified “expert” could testify to that fact.
{¶38} As discussed above, Jones was provided ample opportunity to
present his defense that other inmates may have caused Criswell’s injuries. As
part of Jones’ defense, three inmates in addition to Jones testified that it was
almost a daily occurrence for inmates to engage in “horseplay” which involved
throwing “body shots” at one another. Furthermore, Jones was given the same
opportunity as the prosecution to subpoena witnesses, including the doctors who
treated Criswell’s spleen injury. At trial, the prosecution offered the testimony Dr.
Sayre, the emergency room doctor who was the first to determine the serious
nature of the injury to Criswell’s spleen. Jones’ counsel cross-examined Dr. Sayre
about the possibility of other causes aside from Jones being responsible for
Criswell’s injury. In addition, Criswell’s medical records from the Morrow
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County Hospital and Grant Medical Center were admitted into evidence for the
jury to review in their deliberations.
{¶39} In sum, Jones failed to make a particularized showing of a
reasonable probability that an expert would aid in his defense, and that denial of
the requested expert assistance would result in him receiving unfair trial. Having
not met these requirements, we can not conclude that the trial court abused its
discretion when it denied Jones’ motion for an expert and extraordinary funds.
Jones’ seventh assignment of error is overruled.
Fifth Assignment of Error
{¶40} In his fifth assignment of error, Jones maintains that his trial counsel
was ineffective for failing to review Criswell’s medical records kept by the Multi-
County Correctional Center.
{¶41} Our review of this issue begins by noting that attorneys licensed by
the State of Ohio are presumed to provide competent representation. State v.
Hoffman (1998), 129 Ohio App.3d 403, 407, 717 N.E.2d 1149. An ineffective
assistance of counsel claim requires proof that 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 Ohio St.3d 136, 538 N.E.2d
373, paragraph two of the syllabus. In reviewing such a claim, courts are to afford
a high level of deference to the performance of trial counsel. Id. at 142, 538
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N.E.2d 373. Furthermore, tactical or strategic trial decisions, even if unsuccessful,
do not generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d
545, 558, 651 N.E.2d 965, 1995-Ohio-104. Rather, the errors complained of must
amount to a substantial violation of counsel’s essential duties to his client. See
Bradley, 42 Ohio St.3d at 141-142, 538 N.E.2d 373, quoting State v. Lytle (1976),
48 Ohio St.2d 391, 396, 358 N.E.2d 623, imposition of death penalty vacated by
Lytle v. Ohio (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (holding
Ohio’s death penalty scheme in effect at the time was unconstitutional).
{¶42} Moreover, in order to show that a defendant has been prejudiced by
counsel’s deficient performance, the defendant must prove that there exists a
reasonable probability that, but for counsel’s errors, the outcome at trial would
have been different. Bradley, 42 Ohio St.3d at paragraph three of the syllabus,
538 N.E.2d 373. “Reasonable probability” is a probability sufficient to undermine
confidence in the outcome of the trial. Id. at 142, 538 N.E.2d 373.
{¶43} In the present case, Jones’ sole contention that his trial counsel
provided him ineffective assistance is based on his counsel’s failure to review the
medical records kept by the Multi-County Correctional Center. Jones claims this
is significant because these medical records stated that Criswell was given a
medication called Zantac—a drug that reduces the amount of acid produced by the
stomach—at some point prior to Criswell’s altercation with Jones. Jones
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maintains that this information “could” have been useful in his defense because it
indicated that Criswell “may have” suffered from a stomach ailment which Jones
conjectures “could actually have been a preexisting spleen injury that was
misdiagnosed.” (Appellant’s Supplemental Brief, at 7).
{¶44} After reviewing the record before us, we find that Jones’ assertion
concerning the jail’s medical records amount to mere speculation and fail to
persuade us that a reasonable probability exists that had the jury have known
Zantac was given to Criswell at some point before Jones’ assault on Criswell the
outcome at trial would have been different. Moreover, as discussed above, both
Nurse Bader and Criswell testified that Criswell was not experiencing stomach
pains prior his altercation with Jones.
{¶45} Furthermore, counsel’s decision regarding the admission of evidence
at trial falls within the category of trial tactics and strategy. State v. Pasqualone,
121 Ohio St.3d 186, 903 N.E.2d 270, 2009-Ohio-315, at ¶ 24. In reviewing this
assignment of error, we do not find that Jones complains of an error amounting to
a substantial violation of his trial counsel’s essential duties to Jones as his client.
Accordingly, we conclude that Jones’ trial counsel’s performance did not fall
below objective standards of reasonable representation. Based on the foregoing,
Jones’ fifth assignment of error is overruled.
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First and Sixth Assignment of Error
{¶46} Because Jones’ two remaining assignments of error are substantially
similar, we elect to discuss them together. In his first and sixth assignments of
error, Jones maintains that the trial court erred when it found there was sufficient
evidence to designate him as a repeat violent offender.
{¶47} When an appellate court reviews a record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d
384, 392, 2005-Ohio-2282, citing State v. Jenks (1981), 61 Ohio St.3d 259,
superseded by state constitutional amendment on other grounds as stated in State
v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355. Sufficiency is a test of adequacy,
State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, and the question of
whether evidence is sufficient to sustain a verdict is one of law. State v. Robinson
(1955), 162 Ohio St. 486, superseded by state constitutional amendment on other
grounds as stated in Smith, supra.
{¶48} Initially, we note that the court determined Jones to be a repeat
violent offender pursuant to R.C. 2929.14(D)(1)(a). The essential elements of the
repeat violent offender specification are set out in R.C. 2929.01(CC):
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{¶49} “Repeat violent offender” means a person about whom both of the
following apply:
(1) The person is being sentenced for committing or for
complicity in committing any of the following:
(a) Aggravated murder, murder, any felony of the first or
second degree that is an offense of violence, or an attempt to
commit any of these offenses if the attempt is a felony of the first
or second degree;
(b) An offense under an existing or former law of this state,
another state, or the United States that is or was substantially
equivalent to an offense described in division (CC)(1)(a) of this
section.
(2) The person previously was convicted of or
pleaded guilty to an offense described in division (CC)(1)(a) or
(b) of this section.
R.C. 2929.01(CC). (Emphasis added).
{¶50} With regard to the first element, it undisputed that at the time of
sentencing Jones was being sentenced for committing felonious assault, a second
degree felony and an offense of violence. As to the second element, the
prosecution presented to the court a certified Judgment Entry from Cuyahoga
County evidencing Jones’ previous conviction of felonious assault in 1986 which
was also a second degree felony and an offense of violence. Jones argues that the
Cuyahoga County Judgment Entry is insufficient to satisfy the second element of
the repeat violent offender specification because it fails to identify Jones as the
person convicted of the offense stated in the entry.
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Case No. 9-10-09
{¶51} As the basis for this contention, Jones points to a flaw in the
Cuyahoga County Judgment Entry which misstates Jones’ social security number
by one digit in one of the information fields. Despite this typographical error, the
Cuyahoga County Judgment Entry correctly states Jones’ social security number
in another portion of the entry and correctly states Jones’ date of birth.
Furthermore, at the bench trial regarding his designation as a repeat violent
offender, Jones admitted to the court that in 1986 he was previously convicted of
felonious assault in Cuyahoga County.
{¶52} We do not find that a minor typographical error was enough to
negate the identification of Jones as the person convicted of second degree
felonious assault in the 1986 Cuyahoga County Judgment Entry in this instance—
especially when Jones admitted to the conviction on the record. Accordingly, we
find that there was sufficient evidence for the trial court to conclude beyond a
reasonable doubt that Jones had a previous conviction of a second degree felony
that was an offense of violence thereby satisfying the second element of the repeat
violent offender specification. Consequently, we find no error in the trial court’s
designation of Jones as a repeat violent offender and as such, Jones first and sixth
assignments of errors are overruled.
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Case No. 9-10-09
{¶53} For all these reasons, the judgment of the Marion County Court of
Common Pleas is affirmed.
Judgment Affirmed
WILLAMOWSKI, P.J. and ROGERS, J., concur.
/jnc
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