State v. Behrle

[Cite as State v. Behrle, 2021-Ohio-1386.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY

STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 20CA1110
:
vs. :
: DECISION AND JUDGMENT
STEPHEN J. BEHRLE, : ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:

Timothy Young, Ohio State Public Defender, R. Jessica Manungo, Assistant
State Public Defender, Columbus, Ohio, for Appellant.

C. David Kelley, Adams County Prosecutor, Kris D. Blanton, Assistant
Prosecutor, West Union, Ohio, for Appellee.
_____________________________________________________________

Smith, P.J.

{¶1} Stephen J. Behrle appeals his convictions of two felonious

assault counts entered February 4, 2020, in the Adams County Common

Pleas Court. On appeal, Mr. Behrle (“Appellant”) asserts that his

constitutional right to present a complete defense was violated when the trial

court excluded vital admissible evidence; that he was denied the effective

assistance of counsel; and that his sentence is contrary to law. For the

reasons which follow, we find no merit to Appellant’s first and second
Adams App. No. 20CA1110 2

assignments of error. Accordingly, we overrule those assignments of error

and affirm the judgment of the trial court. However, the third assignment of

error has merit. Accordingly, the third assignment of error is sustained and

the judgment of the trial court is reversed. The portion of the judgment

which indicates Appellant is to have no contact with the victim in this matter

is vacated. All other aspects of the order are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

{¶2} We note that the Appellee, State of Ohio, has indicated its

agreement with the statement of the case and facts as set forth in Appellant’s

brief. Appellant’s trial and convictions for two counts of felonious assault of

Jesse Holley stemmed from circumstances which occurred on June 20, 2019,

in Adams County. The counts were merged for purposes of sentencing and

Appellant was sentenced to a prison term of six (6) to nine (9) years.

Appellant was also ordered to have no contact with Mr. Holley. The

backdrop leading to Appellant’s convictions is as follows.

{¶3} Appellant and Deborah Carey (“Carey”) had an

“unconventional” romantic relationship. Appellant and Carey, once married,

have known each other for over thirty years. Together they have three adult

children. Appellant and Carey had become estranged romantically and had

moved on to other long-term relationships.
Adams App. No. 20CA1110 3

{¶4} At the time of trial, Appellant had a girlfriend of seven years.

Carey had a boyfriend of over four years, Jesse Holley (“Holley”). Carey

and Holley spent time in Ohio and Florida. Carey had a farm in Adams

County. Appellant had previously lived at Carey’s farm with his children

and Carey. According to Appellant, he still “checked on the farm” and on

Carey’s well-being.

{¶5} On June 20, 2019, knowing Carey was back from Florida,

Appellant stopped by the farm. When he arrived, Carey and Holley were

working in the barn. Appellant asked Carey about their eldest daughter,

Sarah, and then left. According to Appellant, he was “shocked” to see

Holley there because Carey had previously advised Appellant that Holley

had become violent with her and had “beat the hell out of her.”

{¶6} Appellant drove approximately three miles before deciding to go

back to the farm and get money Carey owed him. When Appellant arrived

the second time in his van, he motioned for Carey to come outside. Holley

was in the house. When Appellant asked for the money allegedly owed him,

Carey indicated she did not have it. Appellant, admittedly, starting yelling at

Carey and used racially-offensive language. Upon hearing this, Holley came

outside and approached Appellant with clenched fists.
Adams App. No. 20CA1110 4

{¶7} Appellant remained in his van. Appellant testified that due to

the way he had parked the second time, he was unable to leave the driveway

so he decided to take a jack handle under the seat and “stand his ground.”

Holley grabbed Appellant’s shirt. Appellant struck Holley three times with

the metal pipe, causing obvious injury. Carey called 911.

{¶8} Appellant left the farm. Police apprehended Appellant shortly

thereafter and found the metal pipe with blood on it. Appellant was arrested.

{¶9} At Appellant’s trial, Carey and Holley testified that Appellant

was the aggressor. Appellant asked his attorney to present evidence of

Holley’s alleged prior violence towards Carey. According to Appellant, his

counsel repeatedly complained to the trial court about Appellant’s request.

After Appellant was convicted, at sentencing the trial judge described

Appellant as “controlling.” As set forth above, Appellant was sentenced to a

prison term and was ordered to have no contact with Mr. Holley.

{¶10} This timely appeal followed. Where pertinent, additional facts

are set forth below.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT VIOLATED STEPHEN
BEHRLE’S CONSTITUTIONAL RIGHT TO
PRESENT A COMPLETE DEFENSE.

II. STEPHEN BEHRLE WAS DENIED HIS SIXTH
AMENDMENT RIGHT TO THE EFFECTIVE
Adams App. No. 20CA1110 5

ASSISTANCE OF COUNSEL WHEN HE
REPEATEDLY CRITICIZED MR. BEHRLE IN
FRONT OF THE COURT DURING TRIAL FOR
REASONS THAT IMPACTED HIS SENTENCE.

III. THE TRIAL COURT SENTENCE WAS CONTRARY
TO LAW BECAUSE THE TRIAL COURT WAS NOT
AUTHORIZED TO IMPOSE BOTH A PRISON
SANCTION AND A COMMUNITY CONTROL
SANCTION FOR MR. BEHRLE’S FELONIOUS
ASSAULT OFFENSE.

{¶11} We begin with Appellant’s assertion that the trial court

violated his constitutional right to present a complete defense.

A. STANDARD OF REVIEW

{¶12} “[T]he Constitution guarantees criminal defendants ‘a

meaningful opportunity to present a complete defense.’ ” Crane v.

Kentucky, 106 S. Ct. 2142, 6 U.S. 683, 690 (1986), quoting California v.

Trombetta, 104 S.Ct. 2528, 467 U.S. 479, 485 (1984). Accord State v. Clay,

4th Dist. Lawrence No. 2013-Ohio-4649, at ¶ 32. Although the right to

present a defense is a fundamental element of due process of law, the right is

not without limits. Washington v. Texas, 87 S.Ct. 1920, 388 U.S. 14, 19-

21(1967); State v. Swann, 119 Ohio St.3d 552, 2008-Ohio-4837, 895 N.E.2d

821, ¶ 13. The right has only been applied to “ ‘testimony [that] would have

been relevant and material, and * * * vital to the defense.’ ” United States v.

Valenzuela-Bernal, 102 S.Ct. 3440, 458 U.S. 858, 867 (1982), quoting
Adams App. No. 20CA1110 6

Washington, 388 U.S. at 16. Moreover, the testimony or evidence must

otherwise be admissible under the rules of evidence. See Taylor v. Illinois,

108 S.Ct. 646, 484 U.S. 400, 411 (1987); accord State v. Schuler, 4th Dist.

Pickaway No. 02CA7, 2002-Ohio-6607, ¶ 16.

{¶13} Appellant’s argument must be resolved in accordance with the

evidentiary rules. “ ‘A trial court has broad discretion in the admission or

exclusion of evidence, and so long as such discretion is exercised in line

with the rules of procedure and evidence, its judgment will not be reversed

absent a clear showing of an abuse of discretion with attendant material

prejudice to defendant.’ ” State v. Steinhauer, 4th Dist. Scioto No.

12CA3528, 2014-Ohio-1981, at ¶ 26, quoting State v. Green, 184 Ohio

App.3d 406, 2009-Ohio-5199, 921 N.E.2d 276, ¶ 14 (4th Dist.). The term

abuse of discretion means more than an error of judgment; it implies that the

court's attitude is unreasonable, arbitrary, or unconscionable. See State v.

Lester, 4th Dist. Vinton No. 12CA689, ¶ 6, citing State v. Adams, 62 Ohio

St.2d 151, 157, 404 N.E.2d 144 (1980). “ ‘A review under the abuse of

discretion standard is a deferential review. It is not sufficient for an

appellate court to determine that a trial court abused its discretion simply

because the appellate court might not have reached the same conclusion or

is, itself, less persuaded by the trial court's reasoning process than by the
Adams App. No. 20CA1110 7

countervailing arguments.’ ” Steinhauer, supra, quoting State v. Morris, 132

Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14.

B. LEGAL ANALYSIS

{¶14} Appellant argues that at trial, he was not allowed to introduce

prior instances of Holley’s conduct towards Carey. Appellant contended

that said evidence would have provided necessary context to his claim of

self-defense. Attorney Wallace explained his client’s request at sidebar

conference:

[H]ere’s our argument, evidence of prior instances of a victim’s
conduct is admissible for other purposes such as the defendant’s
reasonable belief that he’s acting in self-defense. The
defendant from what this guy would testify to is that his wife
had told him on multiple occasions that Jesse Holley has beat
the hell out of her and she had him arrested in Florida for
beating the hell out of her. So, he knew that Jesse Holley was,
had violent tendencies. We believe that should be admissible
because of his reasonable belief that what happens next that
he’s acting in self-defense. * * * Mr. Behrle knew that as he
came charging out the door, so in addition to seeing a bigger,
younger man come at him, he knew it was bigger young man
that had been violent in the past, and that goes to his
reasonableness that he needed to use self-defense.

{¶15} Appellant argues that the trial court abused its discretion when

it denied admission of the evidence on the basis of the hearsay exclusion

because Holley’s character for violence was pertinent to Appellant’s self-

defense theory. “Under Ohio law, a person is permitted to act in self-

defense. R.C. 2901.05(B)(1). Self-defense is an affirmative defense.” See
Adams App. No. 20CA1110 8

State v. Jacinto, 2020-Ohio-3722, 155 N.E. 3d 1056, at ¶ 43 (8th Dist.).

Under former R.C. 2901.05(A), the defendant had the burden of proving

self-defense by a preponderance of the evidence. Jacinto, supra, at ¶ 44.

{¶16} However, effective March 28, 2019, following revisions to

R.C. 2901.05, the statute now provides:

A person is allowed to act in self-defense, defense of
another, or defense of that person's residence. If, at the
trial of a person who is accused of an offense that
involved the person's use of force against another, there
is evidence presented that tends to support that the
accused person used the force in self-defense, defense of
another, or defense of that person's residence, the
prosecution must prove beyond a reasonable doubt that
the accused person did not use the force in self-defense,
defense of another, or defense of that person's residence,
as the case may be.

See State v. Ferrell, 10th Dist. Franklin No. 19AP-816, 2020-Ohio-6879, at

¶ 26. Thus, the current version of R.C. 2901.05(B)(1) requires the state “to

disprove self-defense by proving beyond a reasonable doubt that [the

defendant] (1) was at fault in creating the situation giving rise to the affray,

OR (2) did not have a bona fide belief that he was in imminent danger of

death or great bodily harm for which the use of deadly force was his only

means of escape, OR (3) did violate a duty to retreat or avoid the danger.”

See Ferrell, supra; State v. Carney, 10th Dist. Franklin No. 19AP-402, 2020-
Adams App. No. 20CA1110 9

Ohio-2691, at ¶ 31; see also State v. Daley, 10th Dist. No. 19AP-561, 2020-

Ohio-4390, at ¶ 39.

{¶17} Generally, all relevant evidence is admissible. State v. Clay,

4th Dist. Lawrence No. 11CA23, 2013-Ohio-4649, at ¶ 34. See Evid.R. 402.

Evid.R. 401 defines relevant evidence as “evidence having any tendency to

make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the

evidence.” The trial court must deem relevant evidence inadmissible,

however, if the introduction of the evidence violates the United States or the

Ohio Constitutions, an Ohio statute, the Ohio Rules of Evidence, or “other

rules prescribed by the Supreme Court of Ohio.” Evid.R. 402. Additionally,

relevant “evidence is not admissible if its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or

of misleading the jury.” Evid.R. 403(A).

{¶18} Evid.R. 404, which governs the admission of character

evidence, provides:

(A) Character evidence generally. Evidence of a person's
character or a trait of character is not admissible for the
purpose of proving action in conformity therewith on a
particular occasion, subject to the following exceptions:
***

(B) Character of victim. Evidence of a pertinent trait of
character of the victim of the crime offered by an
Adams App. No. 20CA1110 10

accused, or by the prosecution to rebut the same, or
evidence of a character trait of peacefulness of the victim
offered by the prosecution in a homicide case to rebut
evidence that the victim was the first aggressor is
admissible; however, in prosecutions for rape, gross
sexual imposition, and prostitution, the exceptions
provided by statute enacted by the General Assembly are
applicable.

{¶19} Evid.R. 405 governs methods of proving character and

provides:

(A) Reputation or opinion

In all cases in which evidence of character or a trait of
character of a person is admissible, proof may be made
by testimony as to reputation or by testimony in the form
of an opinion. On cross-examination, inquiry is
allowable into relevant specific instances of conduct.

(B) Specific instances of conduct

In cases in which character or a trait of character of a
person is an essential element of a charge, claim, or
defense, proof may also be made of specific instances of
his conduct. Thus, Evid.R. 404(A) generally limits
evidence of a person's character, or certain character
traits, subject to certain exceptions. Accordingly,
Evid.R. 404(A)(2) permits evidence of “a pertinent trait
of character of the victim * * * .”

{¶20} The critical issue is what the defendant knew about the alleged

victim at the time of the confrontation. Steinhauer, supra, at ¶ 29; State v.

Busby, 10th Dist. Franklin No. 98AP-1050, 1999 WL 710353, *5 (Sept. 14,

1999). “[E]vidence of other acts must be temporally and circumstantially
Adams App. No. 20CA1110 11

connected to the facts of the offense alleged. State v. Burson, 38 Ohio St.2d

157, 311 N.E.2d 526 (1974).” State v. Cooperider, 3rd Dist. Marion No. 9-

03-11, 2003-Ohio-5133, at ¶ 16. Before a trial court can admit these types

of statements offered to show the defendant's state of mind, the court must

balance the probative versus prejudicial effects the evidence will have on the

jury per Evid.R. 403.

{¶21} In Cooperider, supra, the appellate court found that the victim's

past violent acts occurring four years before the incident in issue in

Cooperider’s case were too distant in time and unrelated, and as such, they

were properly excluded. In State v. Ryan, 2018-Ohio-2600, 115 N.E.3d 659

(11th Dist.), the appellate court found that the defendant’s proffer lacked

specificity, failed to detail the dates of the alleged prior violent acts, and

failed to provide the number of prior violent acts. The Ryan court observed:

“Absent a more detailed proffer, we are unable to determine whether these

additional prior acts of violence by [the victim] were relevant in assessing

appellant's state of mind and whether they were sufficient to support a

finding that he had a bona fide belief that he was in imminent danger of

death or serious bodily harm at the time of the shooting.” Id., at ¶ 106.

{¶22} Based upon our review of the above law and the trial
Adams App. No. 20CA1110 12

transcript, we find the trial court did not abuse its discretion in excluding

evidence of Holley’s alleged prior violent conduct towards Carey. First,

other than Appellant’s self-serving claim, the record does not reveal that

Appellant actually knew of Holley’s alleged prior violent conduct towards

Carey prior to the June 20, 2019 incident at Carey’s farm. Second,

Appellant’s claim that Carey had “told him on multiple occasions that

Holley had beat the hell out of her and that she had him arrested in Florida,”

is somewhat vague and, without more, fails to demonstrate facts temporally

and circumstantially related to the June 20, 2019 incident. Carey and Holley

both testified they had been in a relationship together since 2015. If the

proffered evidence was true, the record does not reflect if the alleged

incidents occurred remotely in time or very close to the June 2019 incident.

And, the alleged prior conduct of Holley’s, as the prosecutor pointed out,

was directed to Carey, not Appellant.

{¶23} Assuming arguendo that the trial court erred in excluding the

evidence, we find such exclusion to be harmless. In making a Crim.R.

52(A) harmless error analysis, any error will be deemed harmless if it did

not affect the accused's “substantial rights.” An error is harmless where

there is no reasonable probability that the error contributed to the outcome of

the trial. See State v. Thacker, 4th Dist. Lawrence No. 18CA21, 2020-Ohio-
Adams App. No. 20CA1110 13

4620, at ¶ 95, citing, State v. Brown, 65 Ohio St.3d 483, 485, 1992-Ohio-61.

Here, there is no reason to believe that even if the trial court erred in

excluding the testimony of alleged prior violent conduct, that any error

contributed to the outcome of the trial. As indicated above at paragraph

¶ 16, the State’s burden was to disprove self-defense by proving beyond a

reasonable doubt that Appellant was at fault in creating the situation which

gave rise to the affray; or that Appellant did not have a bona fide belief that

he was in imminent danger of death or great bodily harm which required the

use of force; or that Appellant did violate a duty to retreat or avoid the

danger. In this case, the State proved all three elements beyond a reasonable

doubt. The State’s evidence presented demonstrated Appellant created a

hostile situation. The State’s evidence suggested Appellant could not have

reasonably believed he was in imminent danger of death or great bodily

harm. And, the State proved Appellant failed to retreat or avoid Mr. Holley,

who had no weapon.

{¶24} The jurors heard from all three witnesses to the events of June

20, 2019: Carey, Holley, and Appellant. Appellant testified that on the

incident date, he went to his ex-wife’s farm twice. On the first occasion, he

saw Holley. Appellant testified he was “shocked” to see him there.

Appellant left and went down the road when he decided to go back to collect
Adams App. No. 20CA1110 14

money that Carey owed him. When his wife told him, “No,” Appellant told

her: “[Y]ou could give me a heads up before you bring another effin N-

word out here.” Appellant admitted he used a racial slur.

{¶25} Appellant further testified that upon hearing the racially-

charged statement, Holley “came through that screen like in [sic] shot out of

a cannon.” Holley’s fists were clenched. Appellant testified that as Holley

exited the house, he had “I’m going to kick your ass all over his face, all

over his body language.” Appellant admitted that if he had been in Holley’s

place, the racial slur would have upset him. As Holley came toward him,

Appellant grabbed a jack handle behind the seat of his van. Appellant

testified that Holley grabbed his shirt and Appellant subsequently struck him

three times. Holley was struck on the back of his head, his forearm, and

across his back.

{¶26} On cross-examination, Appellant admitted he was upset that

Holley was at Carey’s farm. Appellant testified when he arrived at the farm

the second time, Holley had not been aggressive. He admitted that Holley

never struck him, and Appellant did not see a weapon on Holley. Holley

never even spoke to Appellant as he approached him.

{¶27} The trial court instructed the jury as to the tests for determining

credibility. Here, the overwhelming evidence may be reasonably construed
Adams App. No. 20CA1110 15

to demonstrate that Appellant went to Carey’s farm a second time, knowing

that Holley was there. Appellant proceeded to berate his ex-wife, using a

racial epithet in reference to her new boyfriend, possibly knowing Holley

would overhear. While Appellant made much of the difference in age and

size between Holley and himself, Appellant chose to return to the farm, park

in such a way that he could not easily exit the area, insult his ex-wife and her

boyfriend, and then instead of simply leaving, Appellant stayed and struck

Mr. Holley three times with a heavy metal pipe. The evidence further

indicates that if Appellant had legitimately needed to defend himself, one

blow to Mr. Holley likely would have been sufficient. We, like the jury

conclude that the State disproved Appellant’s claim of self-defense.

{¶28} For the foregoing reasons, we find the trial court did not err by

excluding the evidence of Mr. Holley’s alleged prior violent conduct

towards Ms. Carey. We find no merit to Appellant’s first assignment of

error. It is hereby overruled.

{¶29} Next, Appellant asserts that his trial counsel rendered

constitutionally ineffective assistance. Appellant argues that during trial, his

counsel repeatedly criticized Appellant in front of the court for attempting to

control the litigation. Appellant concludes that the trial court later justified a

significant sentence by referencing “controlling behavior.”
Adams App. No. 20CA1110 16

A. STANDARD OF REVIEW

{¶30} To prevail on a claim of ineffective assistance of counsel, a

criminal defendant must establish (1) deficient performance by counsel, i.e.,

performance falling below an objective standard of reasonable

representation, and (2) prejudice, i.e., a reasonable probability that, but for

counsel's errors, the result of the proceeding would have been different. See

State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121,

¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052; State v.

Williams, 4th Dist. Jackson No. 15CA3, 2016-Ohio-733, at 32; State v.

Gavin, 4th Dist. Scioto No. 13CA3592, 2015-Ohio-2996, ¶ 42. The

defendant has the burden of proof because in Ohio, a properly licensed

attorney is presumed competent. See State v. Gondor, 112 Ohio St.3d 377,

2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. Failure to satisfy either part of the

test is fatal to the claim. Strickland at 697; State v. Bradley, 42 Ohio St.3d

136, 143, 538 N.E.2d 373 (1989).

B. LEGAL ANALYSIS

{¶31} In the trial transcript, Appellant has identified three occasions

where his counsel approached the trial court to explain his client’s request to

elicit certain evidence, and his counsel expressed his disagreement and

frustration to the trial court. Specifically, Appellant argues that the
Adams App. No. 20CA1110 17

“manner” in which trial counsel approached the court about these issues

invited the court to conclude that Appellant had a controlling personality.

Appellant concludes that trial counsel’s damaging comments about

Appellant had a direct impact on his sentence length and thus, constituted

ineffective assistance. For the reasons which follow, we disagree.

{¶32} Appellant first directs us to his counsel’s cross-examination of

Deborah Carey. During her testimony, Appellant’s counsel asked to

approach the bench. Upon doing so, counsel informed the court as follows:

There are questions that my client wants to ask and I’m not
trying to [inaudible] first. I don’t like people to throw things at
me from across the room. Um, he wants me to ask her how
long she has been an alcoholic. * * * First question, which I
alerted the court because, um, hopefully the court will take
recognition of the fact that I do not make a habit of asking
questions that I think are going to get shut down just so they’re
thrown out into the mist for the jury to hear and wonder about.
* * * The first topic of conversation was a general inquiry into
how long has the witness been an alcoholic. * * * The second
question or area of questioning that my client wished to ask,
and I wanted to put this on the record. * * * Mr. Behrle wanted
me to ask his now-ex-wife, the current witness. In 2015 what,
if anything, did Mr. Behrle say when they met? I wanted to put
this on the record that I have no intention of asking that
question because I try not to ask questions and I don’t know
what the answer is going to be. And I fear, uh, contrary to my
client’s requests that it could be harmful to his defense, but I
wanted to put that on the record, uh, just for record purposes
that he wants me to ask that and I am not inclined.
Adams App. No. 20CA1110 18

{¶33} Appellant next points to the trial transcript where, during

his own direct examination, the prosecutor objected and both counsel

approached the bench after Appellant testified as follows:

I pulled up when [sic] past the barn I seen her and Jesse. That
was when I first realized Jesse was there or found out. I drove
past the barns, circled around the area where you have to circle
around, turned the van around, stopped in front of the barn. She
came out of the barn. I asked her if she seen Sarah at the time
[sic] that time I knew she was a little buzzed. I could smell the
vodka.

{¶34} The prosecutor asserted Appellant’s testimony about her being

“buzzed” was prejudicial. Appellant’s counsel responded that the testimony

went to her credibility as to what she had previously testified to if she was

under the influence. The trial court asked “Is this going to be a drumbeat?”

Appellant’s counsel responded: “Actually this was a drum solo from the

witness that wasn’t really what I asked. Um, so no, I didn’t know it was

coming.” The trial court thereafter overruled the objection but cautioned

against Appellant’s testimony on the subject “going further.” It appears that,

if given leeway, Appellant was trying again to get in evidence of alcoholism

or alcohol abuse. Appellant’s counsel made a viable argument about

credibility which the trial court overruled.

{¶35} Finally, Appellant points to the sidebar conference which

Appellant’s counsel requested early in Appellant’s son’s testimony.
Adams App. No. 20CA1110 19

Appellant’s counsel explained he was going to attempt to ask the son the

exact same questions about the June 2019 incident. Counsel explained:

But his father would also like for me to ask him about prior
incidents of his mother lying to the police on other events, such
as when she was previously attacked. * * * That’s, that became
a plan very shortly ago. * * * My client brought this up to me as
he was walking into the room. * * * Jesse Holley was arrested
for assaulting the mother. His testimony, the proposed
testimony would be regarding the fact that the mother tried to
lie and say the attack did not happen, but they arrested him he
was present and saw it happen and called the police.

{¶36} The trial court ultimately concluded that the proposed evidence

would be hearsay. Appellant’s counsel explained his agreement,

commenting, “I understand, that’s why I wanted to approach before I

asked.”

{¶37} “ ‘ “[I]n any case presenting an ineffectiveness claim, the

performance inquiry must be whether counsel's assistance was reasonable

considering all the circumstances.” ’ ” State v. Bradford, 4th Dist. Adams

No. 20CA1109, 2020-Ohio-4563, at ¶ 19, quoting Hinton v. Alabama, 134

S. Ct. 1081, 571 U.S. 263, 273, quoting Strickland, 466 U.S. at 688. Based

upon our review of the trial transcript, we find no merit to Appellant’s

argument that his counsel performed deficiently by bringing Appellant’s

improper and ill-advised requests to the court’s attention. Questioning

witnesses is manifestly within the realm of trial strategy, and “ ‘we will not
Adams App. No. 20CA1110 20

question counsel's strategic decision to engage, or not to engage, in a

particular line of questioning as these decisions are presumed to be the

product of sound trial strategy.’ ” State v. Knauff, 4th Dist. Adams No.

13CA976, 2014-Ohio-308 at ¶ 25, quoting State v. Davis, 12th Dist. Butler

No. CA2012-12-258, ¶ 25.

{¶38} Here, Appellant’s counsel properly chose not to present

evidence regarding Carey’s alleged history of alcoholism. “ ‘ “It is improper

for an attorney, under the pretext of putting a question to a witness, to put

before the jury information that is not supported by the evidence.” ’ ” State

v. Parham, 2019-Ohio-358, 121 N.E.3d 412, (10th Dist.) at ¶ 61, quoting

State v. Davis, 10th Dist. No. 01AP-579, 2002-Ohio-1920, ¶ 63, quoting

State v. Smidi, 88 Ohio App.3d 177, 183, 623 N.E.2d 655 (6th Dist.1993).

The record indicates there was no good faith basis for the question. Carey

and Holley both testified that they had been drinking alcohol on the day of

the incident. However, any question regarding Carey’s alleged history of

alcoholism would have been irrelevant and prejudicial. Asking the question

would be placing information in the record not supported by evidence.

Appellant’s counsel behaved ethically in refusing to do so.

{¶39} Appellant’s counsel also demonstrated reasonable trial strategy

when he chose not to elicit testimony concerning what victim Holley
Adams App. No. 20CA1110 21

allegedly said to Appellant upon their first meeting in 2015, not knowing

what the response would be and fearing it would be harmful to his client’s

defense. By approaching the court beforehand with regard to the evidence

of prior incidents Appellant wished to elicit through his son’s testimony,

counsel avoided running afoul of the court’s patience. In all instances

complained of by Appellant, by approaching the trial court and indicating

Appellant’s wishes, his counsel also acted professionally and created a

record on his client’s behalf. We find no deficiency in Appellant’s counsel’s

representation based upon the manner in which his counsel requested sidebar

conferences and advised the court of his client’s wishes.

{¶40} Furthermore, we are mindful that courts ordinarily may not

simply presume the existence of prejudice but, instead, must require the

defendant to affirmatively establish prejudice. See State v. Clark, 4th Dist.

Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th Dist. Ross

No. 01CA2592 (Apr. 2, 2002); see generally Roe v. Flores-Ortega, 120 S.

Ct. 1029, 528 U.S. 470, 483 (2008). As we have repeatedly recognized,

speculation is insufficient to establish the prejudice component of an

ineffective assistance of counsel claim. See, e.g., State v. Tabor, 4th Dist.

Jackson No. 16CA9, 2017-Ohio-8656, at ¶ 34; State v. Jenkins, 4th Dist.

Ross No. 13CA3413, 2014-Ohio-3123, ¶ 22. (Internal citations omitted.)
Adams App. No. 20CA1110 22

Appellant’s argument that the trial court’s commentary about his

“controlling” personality was based upon the remarks made by his counsel at

sidebar conferences is obvious speculation.

{¶41} We do not find the trial court’s commentary and sentence to be

a result counsel’s alleged ineffectiveness but rather as a result of Appellant’s

own well-documented behavior. At sentencing, the trial court addressed

Appellant’s background, drug use, and prior criminal history as provided to

the court in the pre-sentence investigation report. The trial court’s

comments about Appellant’s controlling behavior referenced Appellant’s

behavior in the underlying trial court proceedings in Adams County. The

court observed:

Mr. Behrle from the very get go, you seem like you struck me
as that nature that you’re, you’re a man that likes to control
everything. And then it continued with, uh, tweaks in the bond
supervision. You, I need this changed, I need this changed, I
need this changed, and, um, and that’s fine. I made those
changes to facilitate your needs. The, um, and only until late
last night yesterday I was provided your, your history. Uh, and I
realize it’s, it’s from a time past, but, uh, it seems like you have
spontaneous volatility. That it just, you know, heartbeat, you
go from a very nice man, um, to, uh, violent man. And when I
look at these records, which I’ll discuss further, um, you’ve
attacked other people with metal in the past and so, you see this
pattern that returns even after a period of time * * *.

{¶42} Later during sentencing, the court summarized Appellant’s

behavior during the underlying pretrial proceedings as follows:
Adams App. No. 20CA1110 23

Um, they couldn’t get him to submit the home plans and really
a disaster trying to, uh, ever, ever monitor or supervise the
defendant, therefore certainly causes the court great concern as
to any consideration of community control in this case. The, uh,
the court did set [sic] front and center on this case and, and uh,
got to hear the evidence and, uh, again, the only way I can
really describe it is, um, a person, a personality at least that has
to control everything, um, and becomes very volatile and, and
um, and dangerous, uh, when everybody doesn’t subject to your
whims and wishes, uh, even as you depart the courtroom after
the trial, demanding that you be sent to prison immediately, you
weren’t going to stay here anymore.

{¶43} Finally, the overwhelming evidence presented at trial

very strongly suggests Appellant may be fairly characterized as having a

controlling personality. Deborah Carey testified on direct examination that

she had known Appellant since she was 18 years old. The parties had over a

30-year relationship. Despite having not lived together for years, Appellant

regularly stopped by Carey’s farm to “check on” the farm and her. Carey

testified that on June 20, 2019, she had not invited Appellant to her farm and

at no time prior to June 20th was there an agreement between Appellant and

her that he could come anytime he wanted. It is undisputed that he came to

the farm twice, uninvited, on the incident date. What Appellant

characterizes as “checking” on Carey may very well be construed as

stalking, controlling behavior.

{¶44} The evidence also demonstrates that when Appellant first came

to the farm on June 20th, he saw Holley present there and was “shocked” to
Adams App. No. 20CA1110 24

see him. Appellant left but had only driven approximately three miles when

he decided to go back and ask Carey for money allegedly owed him. When

Carey declined to pay him, he began to verbally berate her and insult her

companion with a racial epithet. Instead of leaving or apologizing when

Holley approached him, Appellant struck him with a metal pipe not once,

but three times, causing severe injury. Given the nature and length of

Appellant’s relationship with Carey, the facts presented at trial may be

reasonably construed as evidence that on June 20, 2019, Appellant behaved

as a jealous and controlling former domestic partner.

{¶45} For the foregoing reasons, we find no merit to Appellant’s

second assignment of error. Indeed, the record supports a conclusion that

Appellant’s counsel was highly qualified, professional, and effective.

Accordingly, the second assignment of error is hereby overruled.

{¶46} Finally, Appellant asserts that his sentence is contrary to

law because the court imposed both a prison term and a no contact order.

Appellant argues that this is plain error. Based on the authority of State v.

Anderson, 2015-Ohio-2089, we agree.

A. STANDARD OF REVIEW

{¶47} When reviewing felony sentences appellate courts must apply

the standard of review set forth in R.C. 2953.08(G)(2). State v. Shankland,
Adams App. No. 20CA1110 25

4th Dist. Washington Nos. 18CA11, 18CA12, 2019-Ohio-404, at 18; State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 22-23.

Under R.C. 2953.08(G)(2), “[t]he appellate court's standard for review is not

whether the sentencing court abused its discretion.” Instead, R.C.

2953.08(G)(2) provides that an appellate court may increase, reduce,

modify, or vacate and remand a challenged felony sentence if the court

clearly and convincingly finds either:

(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13,
division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶48} The defendant bears the burden of establishing by clear and

convincing evidence that the sentence is either contrary to law or not

supported by the record. Shankland, supra, at ¶ 20. See, e.g., State v.

Fisher, 4th Dist. Jackson No. 17CA5, 2018-Ohio-2718, ¶ 20, citing State v.

O'Neill, 3d Dist. Allen No. 1-09-27, 2009-Ohio-6156, fn. 1.

B. LEGAL ANALYSIS

{¶49} The Supreme Court of Ohio has addressed the issue

Appellant raises in State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089,

Anderson was convicted of two first-degree felonies: rape and kidnapping.
Adams App. No. 20CA1110 26

The trial court imposed prison terms for both offenses. The court also

imposed a no-contact order. In its opinion, the Supreme Court reasoned that

the General Assembly intended prison and community-control sanctions as

alternative sentences for a felony offense. Therefore, the Court held that as a

general rule, when a prison term and community control are possible

sentences for a particular felony offense, absent an express exception, the

court must impose either a prison term or a community-control sanction or

sanctions. Consequently, because a court cannot impose a prison term and a

community-control sanction for the same offense, and no exception allows

otherwise, the Supreme Court held that the trial court erred in imposing the

no-contact order. The Anderson court reversed the judgment of the court of

appeals and vacated the no-contact order.

{¶50} More recently, the 11th District Court of Appeals, based upon

the authority of Anderson, found that it was plain error for the trial court to

impose a no-contact order as part of an appellant’s sentence. State v. Gray,

11th Dist. Lake No. L-2017-L-152, 2018-Ohio-3326. Gray entered a guilty

plea to four various felonies. As part of Gray’s sentence, in addition to

imposing a prison term for each offense, the trial court ordered Gray to have

no contact with the victim of the felonies. While Gray did not raise the

issue, the appellate court explicitly found the no-contact order was not
Adams App. No. 20CA1110 27

authorized by law as explained in Anderson. The Gray court found that the

trial court erred in imposing the no-contact order and, accordingly, reversed

the judgment of the court of appeals and vacated the no-contact order.

{¶51} Based upon the foregoing, we find merit to Appellant’s

argument and the third assignment of error is sustained. Thus, we reverse

the judgment of the trial court and vacate the no-contact order.

{¶52} Having found no merit to Appellant’s first two assignments of

error, the judgment of the trial court is affirmed as to Appellant’s conviction

and prison sentence. However, Appellant’s third assignment of error is

sustained and the portion of the judgment of the trial court issuing a no-

contact order is hereby reversed and vacated.

JUDGMENT AFFIRMED IN PART

AND REVERSED IN PART.
Adams App. No. 20CA1110 28

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED IN PART AND
REVERSED IN PART 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 Adams County Common Pleas 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.

For the Court,

__________________________________
Jason P. Smith
Presiding 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.