[Cite as State v. Terry, 2021-Ohio-2091.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200105
TRIAL NO. 19CRB-23438
Plaintiff-Appellee, :
O P I N I O N.
vs. :
FERNANDO TERRY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 23, 2021
Andrew W. Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Keith C. Forman, Supervising Attorney, for Plaintiff-Appellee,
Clyde Bennett, II, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Defendant-appellant Fernando Terry appeals his conviction for
assault, arguing in a single assignment of error that his trial counsel rendered
ineffective assistance. Finding his argument to be without merit, we affirm the trial
court’s judgment.
Factual and Procedural Background
{¶2} Following an altercation with Teninnah Ross, Terry was charged with
assault, a first-degree misdemeanor in violation of R.C. 2903.13. At a jury trial, the
state presented evidence that Terry accosted Ross, his on-again/off-again girlfriend,
in her driveway. Terry claimed he acted in self-defense.
{¶3} In her opening statement, Terry’s counsel raised the issue of self-
defense, telling the jury that Ross slapped Terry first, and he hit her back in self-
defense.
{¶4} Ross testified that she was speaking with her sister on the telephone as
she exited from her car onto her driveway, when she saw Terry approaching. Terry
accused her of not answering his calls and stated “[y]ou going to do me like this,
Juicy [Terry’s nickname for Ross]?” Terry then punched Ross in the jaw and began
choking her. Ross fell to the ground, scraping her elbow and knees, and screamed
for help. Ross’s mother exited from the home to help Ross. Fearful he was going to
hit her mother, Ross grabbed Terry’s legs, causing him to fall over. Ross denied
slapping Terry first. Terry subsequently got up and fled from the scene. He later
sent Ross messages apologizing for his actions. These messages stated “Morning I
would like to apologize for my actions I’ve always loved u didn’t see u in ten days and
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lost it don’t matter what happens to me without u guest [sic] he the better man true
love won’t ever die” and “I call to apologize that s [sic] all I can say.”
{¶5} Ross testified regarding her relationship history with Terry. She
explained that Terry had a history of making threatening statements about hurting
anyone else she was with, and testified that Terry had previously told her that “I can
do what I need to do and be done before the police gets there,” and “even if we’re not
together, do you think that means that I won’t do something if I see you out.” Terry
continually told Ross that she underestimated him. Ross additionally testified that
Terry engaged in stalking behavior and would show up at her home uninvited.
{¶6} Terry testified in his own defense. He explained that he and Ross had
plans to meet on the evening of the altercation, and that he had parked outside
Ross’s home while waiting for her to return. He approached Ross once she arrived
home, and she “took an attitude” when he tried to talk to her. According to Terry,
Ross did not want to hear what he had to say, and she turned away from him. Terry
reached for her, and Ross smacked him in the face. Terry stated that he then hit
Ross in the jaw in response. He testified that Ross struck him first and that he only
struck her back “in reaction.” He said because he used to be a boxer, this was his
reaction to being slapped. When asked by his counsel if he believed that Ross would
hit him again, he answered “no.” According to Terry, after her slap and his hit, the
two began to grab at each other and eventually both fell to the ground. The
altercation ended when Terry voluntarily left. Terry acknowledged sending messages
of apology to Ross and explained that he was apologizing for his actions and for
losing his cool.
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{¶7} Terry also testified regarding the relationship history between him and
Ross. He denied threatening Ross throughout their relationship and denied making
the statements that Ross attributed to him during her testimony about his
threatening behavior.
{¶8} During closing arguments, Terry’s counsel argued that he had acted in
self-defense, and the jury was given an instruction on self-defense. The jury returned
a verdict finding Terry guilty of assault.
Ineffective Assistance
{¶9} In his sole assignment of error, Terry argues that he received
ineffective assistance from his trial counsel.
{¶10} To prevail on an ineffective-assistance claim, an appellant must
demonstrate that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142,
538 N.E.2d 373 (1989). In reviewing defense counsel’s performance, we must
remain highly deferential. Strickland at 689. We must “recognize that counsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 690. An
appellant’s demonstration that counsel’s performance was deficient does not warrant
the reversal of a conviction if counsel’s error had no effect on the judgment. Id. at
691; Bradley at 142. The appellant must affirmatively demonstrate that there is a
reasonable probability that, but for counsel’s deficient performance, the result of the
trial would have been different. Strickland at 693-694; Bradley at 143.
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1. Questioning During Voir Dire
{¶11} Terry first argues that defense counsel was ineffective for failing to
properly voir dire potential jurors to ensure that the seated jury could be fair and
impartial. “[C]ounsel’s conduct during voir dire is presumed to be a matter of trial
strategy.” State v. Smith, 2017-Ohio-8558, 99 N.E.3d 1230, ¶ 57 (1st Dist.). “[V]oir
dire by defense counsel does not have to take a particular from, nor do specific
questions have to be asked.” State v. Johnson, 2013-Ohio-2719, 994 N.E.2d 896, ¶
18 (1st Dist.), quoting State v. Evans, 63 Ohio St.3d 231, 247, 586 N.E.2d 1042
(1992).
{¶12} Terry contends that defense counsel failed to thoroughly question five
specific jurors. But two of these jurors were excused by the state during the voir dire
process. Terry thus suffered no prejudice from any failure on the part of defense
counsel to properly question these two jurors. With respect to juror number seven,
Terry argues that defense counsel failed to properly question this juror on his
statements that he could not be a good juror and that he worked with the police. Our
review of the record reveals that Terry mischaracterizes juror number seven’s
statements. While juror number seven wrote on the jury questionnaire that he did
not think he would be a good juror, he stated during voir dire that he could be a good
juror, based on his life experience and common sense. Juror number seven further
explained that he had worked with the police on one specific occasion to eradicate a
crack house that had “popped up” in his neighborhood. He gave no indication that
he was biased in favor of police or the state, and the record does not indicate that
juror number seven was unable to be fair and impartial.
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{¶13} Terry further argues that defense counsel failed to properly question
juror number nine concerning her statements that her sister worked for the
Columbus Police Department and that her father abused her mother. But this juror
did not state that her sister worked for the Columbus Police Department. Rather,
she indicated that her sister-in-law was a forensic scientist who conducted DNA
testing for the Columbus Police Department, and that her sister-in-law’s job would
not interfere with her ability to be a good juror or to be fair to both Terry and the
state. As for juror number nine’s statements regarding her family history of abuse,
she indicated that this family history would not sway her in either direction when
attempting to reach a verdict.
{¶14} Terry last challenges defense counsel’s failure to engage in a thorough
voir dire of juror number ten concerning her statement in her juror questionnaire
that she did not think she could be a good juror. A review of the record reveals that
juror number ten never stated during voir dire questioning that she could not be a
good juror. Rather, when asked about her questionnaire, juror number ten actually
stated that “I feel like I would be good. I just don’t like judging people, but I’m good
at seeing both sides of stuff.” She further acknowledged that her discomfort with
sitting in judgment of others would not prevent her from finding Terry guilty if the
evidence so demonstrated, or from acquitting him if the evidence was insufficient.
{¶15} Following our review of the record, we conclude that defense counsel
engaged in a thorough questioning of the potential jurors during voir dire and that
her performance was not deficient.
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2. Introduction of Allegedly Prejudicial and Irrelevant Testimony
{¶16} Terry next argues that defense counsel was ineffective for failing to
prevent the introduction of prejudicial and irrelevant testimony. He specifically
contends that defense counsel failed to object to Ross’s statements about Terry
hurting her in the past, to past incidents of Terry showing up at Ross’s home without
an invitation, and to past incidents of Terry stalking Ross.
{¶17} Ross testified that her relationship with Terry had both good points
and bad points. The bad points included Terry’s aggressiveness, including his threat
to hurt anyone else with whom Ross was in a relationship. Ross testified that Terry
told her “I can do what I need to do and be done before the police gets there,” and
“even if we’re not together, do you think that means that I won’t do something if I see
you out.” Defense counsel did not object to these statements.
{¶18} Ross additionally testified that Terry showed up at her home uninvited
on numerous occasions, and once entered her home without permission. Defense
counsel objected when Ross testified that Terry’s behavior scared her children, but
the trial court overruled the objection. Ross also testified to what she described as
“stalking behavior” by Terry, including an incident where he followed her while she
was celebrating her birthday on an evening when she had believed him to be out of
town. The trial court sustained defense counsel’s objection to Ross’s testimony that
Terry had a gun in his possession during this incident.
{¶19} While defense counsel did not object to all of Ross’s testimony, she
thoroughly cross-examined Ross regarding her testimony about Terry and his
aggressive nature and stalking behaviors. In response to defense counsel’s
questions, Ross acknowledged that she never reported any of Terry’s behavior to law
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enforcement. Defense counsel’s treatment of Ross’s testimony is a matter of trial
strategy that we will not second guess. By obtaining Ross’s admission that she never
reported Terry’s behavior, defense counsel established a reasonable inference that
Ross was not bothered by Terry’s behavior or that Ross had been untruthful and
exaggerated Terry’s actions.
{¶20} Defense counsel also questioned Terry about his relationship with
Ross and about the incidents that Ross testified to, allowing Terry to present the jury
with his version of these incidents. We therefore cannot find that defense counsel
was deficient in failing to raise objections to the portions of Ross’s testimony set
forth in Terry’s appellate brief.
3. Failure to Argue Self-Defense
{¶21} Terry last argues that defense counsel was ineffective for not knowing
the elements of self-defense and for not attempting to introduce evidence of self-
defense.
{¶22} Contrary to Terry’s assertion, the record indicates that defense counsel
attempted to elicit testimony from him to establish that he acted in self-defense.
Terry testified that he did not hit Ross until after she struck him in the face, and
explained that he only hit her in reaction to being hit himself. Defense counsel
additionally asked Terry whether he believed that Ross would hit him again. By
asking this question, defense counsel was likely attempting to establish the element
of self-defense that Terry had reasonable grounds to believe he was in imminent
danger of bodily harm. Unfortunately for defense counsel, Terry answered that
question in the negative, which did not assist in Terry’s self-defense argument, and
in fact undercut it.
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{¶23} Defense counsel further argued that Terry had acted in self-defense
during closing argument, stating:
Now, in self-defense—the judge will tell you—it will be in your
instructions, but you have to put yourself in the shoes of the
defendant, of Mr. Terry. It’s not what you would have done; it’s what a
person in Mr. Terry’s circumstances and his life experiences with [sic]
have done. So she smacked him, and in a split reaction he hit her
back. He said when he gets hit, he hits back. When you’ve been hit,
especially out of the blue, you don’t know what’s about to happen next.
You don’t know what the other person is about to do.
* * *
This incident started when Miss Ross struck Fernando in the face,
when she slapped him across the face. He reacted. He hit her back not
knowing what was going to happen next. He went to her house based
on her invitation earlier that evening and was struck in the face.
* * *
At the end of the day, this was a fight, a fight that Teninnah Ross
started when she smacked him in the face. Fernando acted in that self-
defense when he was hit. At worse this was a fight that started with
her hitting him and became mutual. Therefore, I would ask you to find
him not guilty of the assault.
{¶24} We point out that counsel was “stuck” with Terry’s answers and made
the best argument she could with the testimony given at trial. Had the facts been
different, perhaps she could have made a stronger self-defense argument. However,
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counsel can only argue from the facts in the record. She could not, for example, have
argued as to one of the key elements of self-defense—fear of harm—in light of Terry’s
testimony that he did not believe Ross would hit him again. As defense counsel both
elicited testimony from Terry regarding self-defense and argued self-defense during
closing argument, Terry’s argument that defense counsel was ineffective for failing to
introduce evidence of self-defense is without merit.
{¶25} We hold that Terry did not receive ineffective assistance from his trial
counsel. Terry’s assignment of error is overruled, and the judgment of the trial court
is affirmed.
Judgment affirmed.
BERGERON and HENDON, JJ., concur.
SYLVIA SIEVE HENDON, retired, from the First Appellate District, sitting by
assignment.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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