[Cite as Cleveland v. Bryant, 2017-Ohio-7246.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105079
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
LOUIS BRYANT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2016 CRB 000095
BEFORE: Boyle, P.J., S. Gallagher, J., and Jones, J.
RELEASED AND JOURNALIZED: August 17, 2017
ATTORNEY FOR APPELLANT
Jeffrey Froude
P.O. Box 771112
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Barbara Langhenry
Director of Law
City of Cleveland Law Department
BY: Marco A. Tanudra
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Louis Bryant, appeals from a judgment of the
Cleveland Municipal Court convicting him of aggravated menacing. He raises three
assignments of error for our review:
1. The trial court erred in denying defense counsel’s [Crim.R. 29] motion
for acquittal and finding defendant guilty because insufficient evidence was
presented.
2. The trial court erred in finding defendant guilty against the manifest
weight of the evidence.
3. Defendant received ineffective assistance of counsel because her failure
to fulfill her affirmative duty to investigate and engage expert testimony
prejudiced him.
{¶2} For the reasons that follow, we affirm.
I. Procedural History and Facts
{¶3} In January 2016, plaintiff-appellee, city of Cleveland, filed a complaint in
the Cleveland Municipal Court charging Bryant with aggravated menacing in violation of
Cleveland Codified Ordinances (“C.C.O.”) 621.06, a first-degree misdemeanor offense.
Bryant pleaded not guilty to the charge, and the case proceeded to a bench trial, where the
following facts were presented.
{¶4} The victim testified that on the morning of December 24, 2015, he had just
returned home from the store and was attempting to enter his house when he heard “a shot
go off * * * come across [his] shoulder” and then “hit right up under the window.” The
victim showed police where there was a small hole in his aluminum siding, just under a
window that the victim believed was caused by the shot. When the victim looked across
the street, he noticed his neighbor, Bryant, pointing what appeared to be a high-powered
rifle in his direction. The victim said the rifle was green with camouflage and had a
scope on it. At trial, the victim further testified that he and Bryant had never gotten
along since Bryant moved into the neighborhood two years earlier and that the shot had
“scared the heck out of [him].”
{¶5} Cleveland police officer Brent Scaggs testified that he responded to the
victim’s call within 20 minutes and that Bryant was cooperative and polite when Officer
Scaggs knocked on Bryant’s door and explained why he was there. Bryant allowed the
officer to enter his home. Bryant then escorted the officer upstairs to where he kept an
air pellet gun that matched the description of the gun that the victim had detailed to
police. Bryant then proceeded to show Officer Scaggs how he used the gun.
{¶6} The officer testified that he wanted to discuss the situation with his
supervisor and therefore decided to confiscate the gun in lieu of making an arrest. The
officer further testified that he observed a small hole in the siding of the victim’s home,
just beneath a window, and stated that he thought the pellet gun could have caused that
type of damage.
{¶7} The city rested, and Bryant moved for a Crim.R. 29 acquittal. The court
denied the motion.
{¶8} Bryant testified in his defense. Bryant flatly denied shooting his pellet gun
at his neighbor. Although Bryant stated that he did encounter the victim on the morning
of December 24, 2015, he said that the encounter only involved the victim shouting a
derogatory remark at him. According to Bryant, he and the victim did not get along after
a previous altercation and that ever since then, the victim would speak in a derogatory
way to him from across the street and make obscene gestures toward him. Bryant
indicated that the victim knew what Bryant’s gun looked like from the times Bryant
practiced target shooting in his backyard. Bryant did not believe his air pellet gun was
capable of shooting a projectile across the street, much less capable of causing damage to
the home.
{¶9} At the close of all evidence, the defense renewed its motion for acquittal,
which the trial court denied. The court then found Bryant guilty of the charge of
aggravated menacing and sentenced him to a suspended 180-day jail term and a $1,000
fine, $950 of which the court waived.
II. Sufficiency and Manifest Weight of the Evidence
{¶10} In his first and second assigned errors, Bryant claims that the trial court
erred in denying his Crim.R. 29 motions for acquittal because the city failed to present
sufficient evidence that he committed aggravated menacing and further argues that his
conviction was against the manifest weight of the evidence.
{¶11} Crim.R. 29(A) provides that a trial court “shall order the entry of a judgment
of acquittal of one or more offenses charged in the indictment, * * * if the evidence is
insufficient to sustain a conviction of such offense or offenses.” When assessing
whether the evidence presented at trial was sufficient to sustain a conviction, an appellate
court reviews that evidence in a light most favorable to the prosecution to determine
whether such evidence, if believed, would convince a rational trier of fact of the
defendant’s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. The proper inquiry is not whether the
prosecution’s “evidence is to be believed, but whether, if believed, the evidence against a
defendant would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390,
678 N.E.2d 541 (1997). Accordingly, a challenge to the sufficiency of the evidence tests
whether the prosecution has met its burden of production at trial. Thompkins at 390.
{¶12} On the other hand, a manifest-weight challenge tests whether the
prosecution has met its burden of persuasion. Id. On review from a manifest- weight
challenge, the appellate court is tasked with reviewing all of the evidence in the record
and in resolving the conflicts therein, determining whether 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 ordered.” Id. at 387. “The discretionary power to grant a new
trial should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.” Id. Moreover, this court recognizes that the “weight to
be given the evidence and the credibility of the witnesses are primarily for the trier of the
fact[.]” State v. Peterson, 8th Dist. Cuyahoga Nos. 100897 and 100899,
2015-Ohio-1013, ¶ 73, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus.
{¶13} Here, Bryant was convicted of aggravated menacing in violation of C.C.O.
621.06, which states that “[n]o person shall knowingly cause another to believe that the
offender will cause serious 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.”
{¶14} The record reflects that the victim’s testimony at trial was sufficient, by
itself, to provide sufficient evidence beyond a reasonable doubt of every single element of
the offense of aggravated menacing under C.C.O. 621.06. Specifically, the victim
testified that he heard, felt, and witnessed a shot hit his home and that when he turned
around to see where it had come from, he saw Bryant across the street with a gun pointed
at him. Furthermore, the victim testified that Bryant’s actions in shooting the gun
caused him to be afraid.
{¶15} Although there was no direct evidence that Bryant acted knowingly to cause
the victim to be afraid in this instance, the court could rationally infer the element existed
based on the other evidence presented, including the evidence that Bryant had a gun,
pointed it at his neighbor, and fired a shot. It is reasonable to assume that any person
committing these acts would know that they could cause fear. See C.C.O. 601.07(b)
(stating, a “person acts knowingly, regardless of his or her purpose, when he or she is
aware that his or her conduct will probably cause a certain result or will probably be of a
certain nature.”).
{¶16} With respect to the weight of the evidence, we recognize that this case
presented as a classic “he said, [he] said” dispute where the prosecution insisted on the
defendant’s guilt with little more than the victim’s account of events, and the defense
denied all culpability whatsoever. In doing so, however, we cannot say that the trial
court clearly lost its way in finding Bryant guilty of the charge. In a case where the
credibility of each witness is paramount, we acknowledge that the trier of fact is in the
best position to measure credibility. Accordingly, we find that the trial court could have
reasonably found the victim’s testimony more credible than Bryant’s, especially in light
of the bad blood between both men and the fact that Bryant admitted to verbally
interacting with the victim on the morning of the incident.
{¶17} We therefore overrule Bryant’s first and second assigned errors.
III. Ineffective Assistance of Counsel
{¶18} In his final assignment of error, Bryant argues that his conviction must be
reversed and a new trial ordered because he received ineffective assistance of counsel at
trial. Specifically, Bryant argues that counsel was ineffective for failing to enlist the
help of an expert witness who could testify as to the sounds that an air pellet gun makes
when fired and whether his particular gun could launch a projectile with enough force to
damage the victim’s home.
{¶19} In order to succeed on an ineffective assistance claim, Bryant must show
that his trial counsel rendered deficient performance and that counsel’s deficient
performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, Bryant must prove
that his trial counsel’s performance fell below an objective standard of reasonable
representation. Id. at 688; State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373
(1989). In evaluating counsel’s performance, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances the challenged action ‘might be considered sound trial strategy.’”
Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed.
83 (1955).
{¶20} To show prejudice, a defendant must establish that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding
would have been different. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892
N.E.2d 864, ¶ 204, citing Strickland at 687-688, 694; Bradley at paragraph two of the
syllabus. The failure to make a showing of either deficient performance or prejudice
defeats a claim of ineffective assistance of counsel. Strickland at 697.
{¶21} What an expert would have testified to in this case, and whether that
testimony would have been helpful to Bryant’s defense, are unknown to this court.
Therefore, we cannot determine from the record before us if Bryant’s counsel was
deficient or more notably, whether any purported deficiency prejudiced Bryant. Because
the questions raised by the assigned error are outside the record on direct appeal and are
necessary to our resolution of Bryant’s ineffective assistance claim, we must overrule
Bryant’s third assignment of error. See State v. Zupancic, 9th Dist. Wayne No.
12CA0065, 2013-Ohio-3072 (“[A] claim of ineffective assistance of counsel on direct
appeal cannot be premised on decisions of trial counsel that are not reflected in the record
of proceedings * * * [and] [s]peculation regarding the prejudicial effects of counsel’s
performance will not establish ineffective assistance of counsel.”).
{¶22} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland
Municipal Court to carry this judgment into execution. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
LARRY A. JONES, SR., J., CONCUR