[Cite as State v. Smigelski, 2019-Ohio-4561.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
STATE OF OHIO, :
: Case No. 19CA6
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
ANDREW M. SMIGELSKI, :
:
Defendant-Appellant. : Released: 11/01/19
_____________________________________________________________
APPEARANCES:
Andrew M. Smigelski, Sugar Grove, Ohio, Pro Se Appellant.
Abigail M. Saving, Logan City Law Director, Logan, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Hocking County Municipal Court
judgment entry finding Appellant, Andrew M. Smigelski, guilty of
menacing, a fourth degree misdemeanor, and sentencing him to a fine and
two years of probation.
{¶2} On appeal, Appellant asserts (1) “Defense counsel fell below an
objective standard of reasonableness during the course of the case,” (2)
“Prosecutor’s knowingly false statements improperly persuaded the trial
judge during the bench trial,” (3) “Trial court’s decision to convict the
defendant was in contradiction to the manifest weight of the evidence,” and
Hocking App. No. 19CA6 2
(4) “Trial court’s decision was done with an absence of sufficiency of
evidence to support a conviction.”
{¶3} Based upon our review of the law and the record, we overrule
Appellant’s assignments of error and affirm the judgment of the municipal
court.
PROCEDURAL HISTORY
{¶4} Appellant became involved in a dispute with his neighbors, the
James family, that resulted in him being arrested and charged with inducing
panic, menacing, resisting arrest, and obstructing official business. The
menacing charge arose from his dispute with the James family. The
additional charges arose when police arrested Appellant at his house on the
menacing charge.
{¶5} Shortly after his arrest, the State dismissed the inducing panic
charge and amended the menacing charge to aggravated menacing. The
State also served a warrant on Appellant to search his home. Appellant filed
a motion to suppress evidence alleging that the search warrant was invalid
on its face, which the State conceded at the suppression hearing. However,
even though the court granted Appellant’s motion to suppress, it does not
appear that ruling had any practical effect regarding Appellant’s case
because none of the charges pending at the time (aggravated menacing,
Hocking App. No. 19CA6 3
obstructing official business and resisting arrest) were dismissed after the
motion was granted. Appellant waived his right to a jury trial and a bench
trial ensued.
{¶6} The State’s first witness was Appellant’s neighbor, Mrs. Jessica
James, who testified that the day after putting a blue bulb in their porch light
in support of two slain Westerville police officers, a sign appeared in their
front yard that said “you must have a small penis,” which included a
drawing of male genitalia. She testified that she took the sign to the Logan
Police Department.
{¶7} Mrs. James testified that approximately six months later on
Monday, September 10, 2018, she and her family were outside when
Appellant twice came out of his house, walked up the street and held up his
phone like he was taking a video of them. Mrs. James testified that the next
day, September 11th, she and her children were returning home when they
saw Appellant “screaming and yelling” that he wanted his sign back. Mrs.
James testified that led to a verbal exchange with Mrs. James making
statements in support of our military and police and Appellant making
statements against them, including accusations that members of Hocking
County law enforcement committed rape and theft. Mrs. James testified that
Appellant told her that because her family supported the “thin blue line,” she
Hocking App. No. 19CA6 4
and her children would “get what was coming to us.” Mrs. James testified
that Appellant was “very aggressive and confrontational” during this
discussion and it scared her. Mrs. James testified that she reported the
incident and the theft of their light bulbs to the Logan Police Department.
{¶8} Mrs. James testified that the next morning as she came out of her
house Appellant was on his porch again appearing to take video of her and
said “this is the person who threatened me yesterday.” She testified that she
told Appellant that her family had friends and family in law enforcement.
Mrs. James also reported this incident to the Logan police. Mrs. James’
complaint was taken by Officer Mowery, who had gone through the police
academy with her husband.
{¶9} On cross examination, Mrs. James was asked if Appellant’s
actions of going in and out of his house scared her. Mrs. James testified that
Appellant’s actions did not scare her, but they confused her. However, on
re-direct examination, Mrs. James testified and clarified that she was fearful
on the occasion when Appellant told her that she and her children would get
what they had coming.
{¶10} The State’s next witness was Mr. Kenneth James, who testified
that on September 11th Appellant was yelling and calling Mrs. James names
like “fat whore and a bitch and everything.” Mr. James testified that
Hocking App. No. 19CA6 5
Appellant wanted his sign back. Mr. James also testified that Appellant was
disparaging the military and police. Mr. James testified that Appellant
became very aggressive toward his wife and looked at the James’s and said
“you and your kids will get what’s coming to you.”
{¶11} The State’s next witness was Officer Josh Mowery of the
Logan Police Department, who testified that on September 12th he wrote up
Mrs. James’ complaint that alleged that the day before Appellant had
threatened her by stating that “her and her children would get what they had
coming to them.” The State then began playing video from Officer
Mowery’s body camera. The footage apparently showed Officer Mowery
approaching Appellant’s home regarding the James’s complaint. The video
showed Officer Mowery stating that he could see a hand gun on Appellant’s
couch so he asked Appellant to come out of his house, which Appellant
refused to do. Consequently, Officer Mowery testified that he requested the
SRT (Special Response Team).
{¶12} The video showed Officer Mowery instructing Appellant to
come out because he was going to be arrested for menacing. The video
showed Appellant refusing to come out of his house and claiming he had
done nothing wrong. The video showed Officer Mowery informing
Appellant that if he did not come out additional charges could be filed. The
Hocking App. No. 19CA6 6
video showed that after the SRT team arrived, a sheriff’s deputy negotiated
with Appellant through his front door.
{¶13} The prosecutor told the court that she could continue with the
video, but informed the court that Appellant did not come out of the house
until the 26-minute mark. The court stated that he did not need to see any
more. Appellant’s counsel requested to see Appellant’s arrest, so the video
was fast-forwarded to that point. However, technical difficulties were
encountered with the playback of the video. While an attempt to fix the
video was undertaken, counsel communicated to the judge that a plea
agreement had been reached, so the case was continued.
{¶14} Upon reconvening, Appellant changed his mind and wanted to
proceed with the trial. The State then asked the court to dismiss the counts
of obstructing official business and resisting arrest, and rested its case on the
aggravated menacing charge. The court then denied Appellant’s oral
Crim.R. 29 motion to dismiss the charge.
{¶15} Appellant’s counsel requested to re-call Officer Mowery to the
stand because he had not had an opportunity to cross-examine him, which
the court granted. Appellant’s counsel played a portion of Officer Mowery’s
body camera recording of Mrs. James communicating her complaint, while
Officer Mowery occasionally answered counsel’s questions. Counsel asked
Hocking App. No. 19CA6 7
Officer Mowery how long he had known Mrs. James and he responded:
“Twenty-five years, probably.”
{¶16} During the video, Mrs. James told Officer Mowery she did not
feel threatened by Appellant. However, the video was paused and Officer
Mowery testified, explaining that Mrs. James did not feel threatened by
events that occurred that morning (September 12th), but she did feel
threatened by Appellant the day before (September 11th).
{¶17} Appellant testified on his own behalf. However, most of his
testimony consisted of playing Officer Mowery’s body camera video of the
standoff and eventual arrest of Appellant with occasional pauses, during
which his counsel asked some questions. The video showed Officer
Mowery instructing Appellant to come out of his house because he was
wanted for menacing. The video also showed Officer Mowery informing
Appellant that if he did not come out he could face additional charges. In
the video Appellant repeatedly denied that he’d done anything wrong. In the
video Appellant stated “I am innocent. We had a talk yesterday, me and the
neighbors. There was no menacing involved.”
{¶18} Appellant then testified that after he was arrested, he was
served with a search warrant. Appellant, reading from the warrant’s
affidavit, testified that Appellant came to the door of his house with a gun in
Hocking App. No. 19CA6 8
his hand and officers backed away and called for additional units. Appellant
testified that he never had a gun is his hand.
{¶19} After playing the video for a while, Appellant’s counsel
returned to the warrant, asking Appellant to read the highlighted portion of
the affidavit. This time the prosecutor objected on grounds of relevancy to
the menacing charge. Appellant’s counsel argued that it went to the officer’s
credibility. The prosecutor stated that the officer who was the affiant for the
warrant was not in court. Appellant’s counsel then argued it went to the
police department’s credibility as a whole. The court found that the warrant
was not relevant to the menacing charge. The remainder of the video was
played, culminating in Appellant’s arrest.
{¶20} On cross examination, the prosecutor asked Appellant about
September 11, 2018, the day before his arrest. Appellant testified that when
he saw Mrs. James that day he asked for his sign back. Appellant testified
that he was not cordial toward Mrs. James, but he claimed that he was not
threatening. When asked if he did any “name calling” and used obscenities,
Appellant testified that he probably did, but could not recall any specific
words. Appellant testified that he denied telling Mrs. James that she and her
children would get what’s coming to them.
Hocking App. No. 19CA6 9
{¶21} After closing arguments, the court stated: “This is a case where
the trier of fact, me, has to make a decision based on the testimony and the
evidence presented at trial, not the videos [of the arrest] that took place, this
that and the other.” Ultimately, the court stated that:
[t]he issue is what happened when there was a confrontation
and that confrontation was threatening. It was menacing. It
was not aggravated menacing.
So based on the evidence that I’ve heard and the
evidence presented, the Court is going to make a finding of
the lesser included offense of a fourth degree menacing.
{¶22} The court then proceeded to sentence Appellant, imposing a
fine, a suspended jail sentence, and two years of community control. It is
from this judgment entry that Appellant appeals, asserting three assignments
of error.
ASSIGNMENTS OF ERROR
“I. DEFENSE COUNSEL FELL BELOW AN OBJECTIVE
STANDARD OF REASONABLENESS DURING THE
COURSE OF THE CASE.
II. PROSECUTOR’S KNOWINGLY FALSE STATEMENTS
IMPROPERLY PERSUADED THE TRIAL JUDGE DURING
THE BENCH TRIAL.
III. TRIAL COURT’S DECISION TO CONVICT THE
Hocking App. No. 19CA6 10
DEFENDANT WAS IN CONTRADICTION TO THE
MANIFEST WEIGHT OF THE EVIDENCE.
IV. TRIAL COURT’S DECISION TO CONVICT WAS DONE
WITH AN ABSENCE OF SUFFICIENY OF THE EVIDENCE
TO SUPPORT A CONVICTION.”
ASSIGNMENT OF ERROR I
{¶23} Appellant alleges that his counsel was ineffective for (1) failing
to investigate, (2) failing to obtain and present evidence, and (3) failing to
impeach witness testimony.
{¶24} “To establish constitutionally ineffective assistance of counsel,
a defendant must show (1) that his counsel's performance was deficient and
(2) that the deficient performance prejudiced the defense and deprived the
defendant of a fair trial.” State v. Carter, 4th Dist. Pickaway No. 18CA1,
2018-Ohio-4503, ¶ 13, citing Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[W]hen considering whether trial
counsel's representation amounts to deficient performance, ‘a court must
indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.’ ” Id. at ¶ 13, quoting
Strickland at 689. “Therefore, a defendant bears the burden to show
ineffectiveness by demonstrating that counsel's errors were ‘so serious’ that
counsel failed to function ‘as the “counsel” guaranteed * * * by the Sixth
Amendment.’ ” Id., quoting Strickland at 687.
Hocking App. No. 19CA6 11
Failing to Investigate
{¶25} “In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel's
judgments.” State v. Bradley, 42 Ohio St.3d 136, 146, 538 N.E.2d 373
(1989), citing Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066.
{¶26} Appellant essentially contends that his counsel failed to acquire
certain items through discovery, including a laundry list of “nearly two
dozen other pieces of evidence” that he compiled and provided to his
counsel. However, Appellant only generally describes these items (e.g.
department policies) and fails to show how failure to acquire these items
resulted in prejudice. We recognize counsel deference in not seeking
discovery of these items under Bradley.
Failing to Present Evidence
{¶27} Appellant contends that counsel should have demanded that the
video from Officer Mowery’s body camera should have been played in its
entirety. In particular, he claims the un-played video would have shown that
Officer Mowery had known the James’s for years and that Mrs. James did
not feel threatened by Appellant’s actions. However, both of these issues
were brought out elsewhere during the trial so even accepting Appellant’s
Hocking App. No. 19CA6 12
proffer of what the un-played video would have shown, there was no
prejudice.
Failing to Impeach Witnesses
{¶28} Finally, Appellant alleges that his counsel failed to impeach
Mrs. James regarding their stolen blue light bulb. Appellant claims that Mrs.
James told Officer Mowery that Appellant had stolen their blue light bulb
and additionally said that when she had asked Appellant, he had responded
that he didn’t know what she was talking about. However, he claims at trial
Mrs. James testified that Appellant had not only taken the light, but also
claimed that Appellant admitted to taking it.
{¶29} Appellant fails to cite the record where Mrs. James’ purported
statement to Officer Mowery can be located. However, for the sake of
argument, even accepting all of Appellant’s assertion as true, we find that
not impeaching Mrs. James on this issue was negligible and therefore not so
prejudicial as to deprive Appellant of a fair trial.
{¶30} In sum, Appellant has failed to make a verifiable, valid
assertion that his counsel represented him in a deficient manner, let alone
prove any prejudice to the extent that it would have deprived him of a fair
trial. Therefore, we overrule Appellant’s first assignment of error.
Hocking App. No. 19CA6 13
ASSIGNMENT OF ERROR II
{¶31} Appellant argues that the prosecutor made factual
misrepresentations in her opening and closing statements. Specifically,
Appellant asserts that the prosecutor made a misrepresentation in her
opening statement by stating that “[p]erhaps the video will show that that’s
what was initially was set out to do, a question and answer session that
resulted in, you know, [Appellant’s] arrest.” Appellant claims Officer
Mowery intended on arresting Appellant even before he got to Appellant’s
residence so the prosecutor’s statement in her opening statement was
misleading.
{¶32} Appellant also claims that the prosecutor made a
misrepresentation in her closing argument as well by stating that Mr. and
Mrs. James both testified that Appellant pointed a finger at Mrs. James,
when in fact Mrs. James never mentioned that Appellant pointed a finger at
her.
{¶33} “The test for prosecutorial misconduct is whether the remarks
were improper and, if so, whether they prejudicially affected the accused's
substantial rights.” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445,
25 N.E.3d 1023, ¶ 110, citing State v. Smith, 14 Ohio St.3d 13, 14, 470
N.E.2d 883 (1984). “The touchstone of the analysis ‘is the fairness of the
Hocking App. No. 19CA6 14
trial, not the culpability of the prosecutor.’ ” Id., quoting Smith v.
Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
{¶34} The alleged misrepresentation from the opening statement
pertains to Appellant’s arrest for menacing, not the menacing charge itself.
And, the discrepancy between Mr. James’ testimony that Appellant pointed
his finger at Mrs. James, but she did not, is deminimus, especially when
considered in light of the remaining evidence. Therefore, even assuming
that these statements were misleading, we find that their impact on
Appellant’s right to a fair trial was negligible.
{¶35} Furthermore, “[i]t is well settled that statements made by
counsel in opening statements and closing arguments are not evidence.”
State v. Frazier, 73 Ohio St.3d 323, 338, 1995-Ohio-235, 652 N.E.2d 1000.
And “judges are presumed in a bench trial to rely only upon relevant,
material, and competent evidence.” State v. Fox, 69 Ohio St.3d 183, 189,
631 N.E.2d 124 (1994). Here, because there is no evidence to rebut this
presumption, we also find that the trial judge reached his conclusion that
Appellant was guilty of menacing by relying on the evidence, and not on
statements made by counsel during their opening and closing statements.
Hocking App. No. 19CA6 15
{¶36} As such, we find that the prosecutor’s statements did not affect
Appellant’s substantial rights. Accordingly, we overrule Appellant’s second
assignment or error.
ASSIGNMENTS OF ERROR III AND IV
{¶37} Appellant asserts that his conviction is not supported by
sufficient evidence and is also against the manifest weight of the evidence.
We will begin our analysis by examining the weight of the evidence.
{¶38} “When determining whether a criminal conviction is against
the manifest weight of the evidence, we ‘will not reverse a conviction where
there is substantial evidence upon which the [trier of fact] could reasonably
conclude that all the elements of an offense have been proven beyond a
reasonable doubt.’ ” State v. Washington, 4th Dist. Scioto No. 09CA3303,
2010-Ohio-5366, ¶ 13, citing State v. Eskridge, 38 Ohio St.3d 56, 526
N.E.2d 304 (1988), paragraph two of the syllabus. We “ ‘must review the
entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine 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
granted.’ ” Id., quoting State v. Smith, 4th Dist. Pickaway No. 06CA7,
Hocking App. No. 19CA6 16
2007-Ohio-502 at ¶ 41, citing State v. Garrow, 103 Ohio App.3d 368, 370-
371, 659 N.E.2d 814 (4th Dist. 1995).
{¶39} “A reviewing court must bear in mind, however, that credibility
generally is an issue for the trier of fact to resolve.” State v. Adams, 4th
Dist. Lawrence No. 15CA2, 2016-Ohio-7772, ¶ 21, 84 N.E.3d 155, citing
State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904, State v. Murphy, 4th
Dist. Ross No. 07CA2953, 2008-Ohio-1744, 2008 WL 1061793, ¶ 31. And
“a defendant is not entitled to reversal on manifest weight grounds merely
because certain aspects of a witness's testimony are not credible or were
inconsistent or contradictory.” Id., at ¶ 35, see, e.g., State v. Wade, 8th Dist.
Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38, citing State v. Asberry, 10th
Dist. Franklin No. 04AP–1113, 2005-Ohio-4547, ¶ 11.
{¶40} Appellant was found guilty of committing menacing in
violation of R.C. 2903.22(A), which in pertinent part states: “No person
shall knowingly cause another to believe that the offender will cause
physical harm to the person or property of the other person, the other
person's unborn, or a member of the other person's immediate family.”
(Emphasis added.)
{¶41} Mrs. James testified that Appellant stated that because her
family supported the “thin blue line,” she and her children would “get what
Hocking App. No. 19CA6 17
was coming to us.” She testified that statement made her fearful. The
testimony of both her husband and Officer Mowery corroborated Mrs.
James’ testimony in this regard.
{¶42} The only evidence in this case was witness testimony. Clearly,
the judge found the testimony of the State’s witnesses sufficiently credible to
convict Appellant because he found that Mrs. James’ statement that
Appellant told her that she children would get what’s coming to them was
“threatening,” and consequently found Appellant guilty of the lesser offense
of menacing.
{¶43} In reviewing the record, we note that on cross examination,
Mrs. James was asked if Appellant’s “going in and out of his house when
you guys were in the back yard” scared her. She testified that it confused
her, but did not scare her. At first blush this testimony appears to contradict
her assertion that Appellant’s actions had scared her. However, this
testimony pertained to Appellant’s actions on September 10th when
Appellant came out of his house and appeared to film the James’s. Her fear
arose on September 11th when Appellant threatened Mrs. James and her
children, as is evident in her testimony on redirect examination when the
prosecutor asked her: “when would you say that you developed the fear?”
Mrs. James answered: “When he – when he told me that me and my children
Hocking App. No. 19CA6 18
were going to get what we had coming to us.” Her testimony in this regard
was also corroborated by both her husband and officer Mowery.
{¶44} In reviewing the remainder of the record, weighing the
evidence and all reasonable inferences, considering the credibility of the
witnesses, and resolving conflicts in the evidence, we find that the judge did
not clearly lose his way so as create such a manifest miscarriage of justice
that the conviction must be reversed and a new trial granted. Accordingly,
Appellant’s conviction is not against the weight of the evidence.
{¶45} “When an appellate court concludes that the weight of the
evidence supports a defendant's conviction, this conclusion necessarily also
includes a finding that sufficient evidence supports the conviction.” State v.
Adkins, 4th Dist. Lawrence No. 13CA17, 2014-Ohio-3389, ¶ 27.
Accordingly, we overrule Appellant’s third and fourth assignments of error.
Conclusion
{¶46} Having overruled all of Appellant’s assignments of error, we
affirm the municipal court’s judgment.
JUDGMENT AFFIRMED.
Hocking App. No. 19CA6 19
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Hocking County Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.