State v. Ward , 2020 Ohio 465 ( 2020 )

[Cite as State v. Ward, 2020-Ohio-465.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 19AP-266
(C.P.C. No. 18CR-774)
v. :
(REGULAR CALENDAR)
Richard G. Ward, :
Defendant-Appellant. :
D E C I S I O N
Rendered on February 11, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee.
On brief: Anzelmo Law, and James A. Anzelmo, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Richard G. Ward, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of felonious assault, with a repeat
violent offender specification. For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} In February 2018, the Franklin County Grand Jury indicted Ward on one
count of felonious assault in violation of R.C. 2903.11, a second-degree felony, and one
count of attempted murder in violation of R.C. 2923.02, a first-degree felony. Both counts
had an attached repeat violent offender specification pursuant to R.C. 2941.149. Ward
pleaded not guilty. In February 2019, the case proceeded to a jury trial as to the felonious
No. 19AP-266 2
assault and attempted murder charges, and a bench trial as to the repeat violent offender
specifications. As pertinent to this appeal, the following evidence was adduced at trial.
{¶ 3} Jordan Henley testified that, on November 16, 2017, he and his friends Chad
Stroud and Cody (last name unknown) visited his sister Shamone (last name unknown) at
her apartment on Ryan Avenue in Columbus. After hanging out for a while, Henley and his
friends decided to drive to a convenience store to buy some cigarettes and pop. When they
returned to the apartment, Henley and his friends saw Savon Clay, the father of Shamone's
two children, fighting with someone, later identified as Ward. Stroud and Cody exited their
vehicle and tried to stop the fight, but Henley did not get out of the vehicle because he feared
for his own safety. Henley did not see the start of the fight; however, when it ended, he saw
stab wounds on Clay's chest and abdomen. Ward and a woman got into a vehicle and drove
away.
{¶ 4} Stroud testified that he, Cody, and Henley were standing near a vehicle
outside Shamone's apartment on November 16, 2017, when they saw Ward throw a punch
at Clay to start a fight. "Savon started getting beat up," and the "dude * * * was pounding
on him." (Tr. Vol. I at 68, 69.) When Stroud tried to intervene to help Clay by pulling
Ward's arm, he was struck in his left eye. Stroud stepped back and saw Clay bleeding from
gruesome stab wounds: "His intestines were hanging out." (Tr. Vol. I at 73.) Stroud
acknowledged that he was under the influence of marijuana and cocaine on the night of the
incident and that he had been convicted of felony drug possession in 2016. Stroud
characterized Clay as being drunk that night.
{¶ 5} Clay testified regarding the fight between himself and Ward. In November
2017, Clay was living with his mother, but he would stay with the mother of his children,
Shamone, on the weekends. A few days before the stabbing, Clay had met Ward, who went
by the name "Black" and was staying with Shamone's neighbor, Jack (last name unknown).
During the evening of November 16, 2017, Clay was at Shamone's apartment eating pizza
with her, two of his children, Henley, and Henley's two friends Stroud and Cody. At some
point in time, Clay, Henley, Stroud, and Cody left to go to the store to buy cigarettes. Before
leaving for the store, Jack told Clay that Ward said to stop running in and out of the
apartment building. Clay said to tell Ward that Ward needed to talk to him directly about
any issue Ward had with him.
No. 19AP-266 3
{¶ 6} When the four returned from the store, Ward was waiting outside the
apartment building for Clay, who was "a little tipsy" from drinking beer. (Tr. Vol. I at 105.)
The two got into an argument, and Ward hit Clay, causing him to fall. Clay got up to defend
himself and was able to punch Ward at least once, but Ward stabbed him and then left the
scene. Despite losing blood and seeing his intestines "hanging out of [his] side," Clay tried
not to panic and waited for an ambulance to arrive. (Tr. Vol. I at 110.) Clay was not carrying
any type of weapon that night, and he later identified Ward as the man who stabbed him.
He spent approximately three weeks in the hospital healing from his stab wounds to his
face, abdomen, and chest. Also, because of the stabbings, his lungs were punctured, and
doctors had to take out his intestines, clean them, and put them back. It took approximately
two months for Clay to feel somewhat normal, but he continued to have back pain and
migraine headaches.
{¶ 7} Todd Dean, a forensic nurse for Mount Carmel Health Systems, testified that,
after the stabbing, Clay was taken to Mount Carmel West Hospital and rushed into surgery
as a Level I trauma patient because of his life-threatening injuries. Dean took pictures of
Clay's extensive injuries the next day.
{¶ 8} Columbus Police Detective Ronald Lemmon, and his partner Detective Tony
Richardson, responded to the scene of the stabbing. Detective Lemmon took photographs
but did not interview any witnesses at the scene, and no physical evidence, such as a
weapon, was collected. Later that night, the detectives went to the hospital and spoke with
Clay, who told them what happened. Approximately 12 days later, the detectives
interviewed Clay again and showed him a photograph array of 6 individuals. Clay identified
Ward as the man who had stabbed him, saying, "This is the guy who tried to kill me." (Tr.
Vol. I at 238.)
{¶ 9} Franklin County Assistant Prosecuting Attorney Elizabeth Geraghty testified
outside the presence of the jury. She testified that, in April 2007, Ward was convicted of
robbery, a second-degree felony, with a firearm specification. Ward was sentenced to five
years in prison for the offense.
{¶ 10} Ward provided the following testimony on his own behalf. He did not know
Clay before the night of the incident. Ward and his girlfriend had been staying at the
apartment with his coworker Jack because their home had roof damage. When Ward
No. 19AP-266 4
arrived at the apartment at approximately 9:30 p.m. on November 16, 2017, he noticed
there was a party at Shamone's apartment. Clay, who was drunk, knocked on Jack's door
and came in the apartment uninvited. Clay left and then came back to go somewhere with
Jack. Ward asked Jack to tell the others not to come into Jack's apartment because they
were drunk and getting aggressive. When Jack and the others returned, Ward decided to
go to the store. He stepped outside the apartment building and saw Clay arguing with
Shamone. Ward began to walk by, but Clay confronted him and struck him in the face.
Ward responded by pushing Clay, and the two began to fistfight. Henley and Stroud
became involved and fought Ward. One of the men grabbed Ward's right arm, and they
tried to pull him to the ground. Ward was able to retrieve a box cutter from his pocket and
expose the blade. As Ward was getting hit by others, he began to step back and swing the
knife. He feared for his life. Ward's girlfriend yelled something, startling the others, which
ended the fight. Ward and the woman got into a vehicle and drove away as the others threw
stuff at the vehicle. When Ward was later arrested, he denied knowing anything about what
had happened on Ryan Avenue on November 16, 2017.
{¶ 11} The jury found Ward not guilty on the attempted murder count, but guilty on
the felonious assault count. The trial court found Ward guilty of the repeat violent offender
specification as to the felonious assault count. The court sentenced Ward to eight years in
prison for the felonious assault conviction, and six years in prison for the repeat violent
offender specification, to be served consecutively.
{¶ 12} Ward timely appeals.
II. Assignments of Error
{¶ 13} Ward assigns the following errors for our review:
[1.] The trial court improperly required Ward to prove self-
defense, in violation of the Second, Fifth and Fourteenth
Amendments to the United States Constitution.
[2.] There is insufficient evidence behind Ward's conviction for
felonious assault, in violation of the Due Process Clause of the
Fifth and Fourteenth Amendments to the United States
Constitution and Sections 1 & 16, Article I of the Ohio
Constitution.
[3.] Ward's conviction for felonious assault is against the
manifest weight of the evidence in violation of the Due Process
No. 19AP-266 5
Clause of the Fifth and Fourteenth Amendments to the United
State Constitution and Sections 1 & 16, Article I of the Ohio
Constitution.
[4.] The trial court unlawfully ordered Ward to serve
consecutive sentences, in violation of his rights to due process,
guaranteed by Section 10, Article I of the Ohio Constitution and
the Fifth and Fourteenth Amendments to the United States
Constitution.
[5.] Ward received ineffective assistance of counsel, in violation
of the Sixth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution.
III. Discussion
A. First Assignment of Error – Self-Defense Instruction
{¶ 14} In his first assignment of error, Ward contends the trial court erred in
requiring him to prove he acted in self-defense. This assignment of error lacks merit.
{¶ 15} On the date Ward committed the felonious assault, November 16, 2017, and
at the time of his trial in February 2019, R.C. 2901.05(A) provided in pertinent part as
follows: "The burden of going forward with the evidence of an affirmative defense, and the
burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the
accused." The trial court instructed the jury on the issue of self-defense consistent with this
statute. Following trial, on March 28, 2019, R.C. 2901.05 was amended to provide that the
prosecution now has to prove beyond a reasonable doubt that the accused did not act in
self-defense. See Am.Sub.H.B. No. 228. This change was not retroactive; thus, the former
version of R.C. 2901.05(A) applied. See State v. Koch, 2d Dist. No. 28000, 2019-Ohio-
4099, ¶ 103 (accused "not entitled to retroactive application of the burden-shifting changes
made by the legislature to Ohio's self-defense statute, R.C. 2901.05, as a result of H.B.
228").
{¶ 16} Ward challenges the constitutionality of former R.C. 2901.05(A)'s placement
of the burden of proving self-defense on the accused. He acknowledges the United States
Supreme Court, in Martin v. Ohio, 480 U.S. 228, 233-34 (1987), upheld the
constitutionality of former R.C. 2901.05's requirement that an accused prove self-defense
as an affirmative defense. He argues, however, that the Supreme Court's more recent
decision in Dist. of Columbia v. Heller, 554 U.S. 570 (2008), mandates a finding that it was
No. 19AP-266 6
unconstitutional for the trial court to require him to prove self-defense. We disagree. In
Heller, the Supreme Court held that a "ban on handgun possession in the home violates the
Second Amendment, as does its prohibition against rendering any lawful firearm in the
home operable for the purpose of immediate self-defense." Id. at 635. Even though the
Supreme Court in Heller recognized and discussed the right of self-defense in reaching that
holding, nothing in that decision addressed the burden of proof regarding self-defense.
State v. Glover, 1st Dist. No. C-180572, 2019-Ohio-5211, ¶ 23. Thus, Ward's
constitutionality argument is unpersuasive. See, e.g., State v. Lechner, 4th Dist. No. 19CA3,
2019-Ohio-4071, ¶ 37 (finding that the "reliance upon Heller for an argument that the
applicable version of Ohio's self-defense statute was unconstitutional [is] misplaced").
{¶ 17} Because the trial court did not err in requiring Ward to prove self-defense, we
overrule his first assignment of error.
B. Second Assignment of Error – Sufficiency of the Evidence
{¶ 18} Ward's second assignment of error asserts his felonious assault conviction
was not supported by sufficient evidence. We disagree.
{¶ 19} Whether there is legally sufficient evidence to sustain a verdict is a question
of law. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). Sufficiency is a test of adequacy.
Id. The relevant inquiry for an appellate court is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier of fact to
find the essential elements of the crime proven beyond a reasonable doubt. State v.
Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace, 109 Ohio
St.3d 255, 2006-Ohio-2417, ¶ 37. "[I]n a sufficiency of the evidence review, an appellate
court does not engage in a determination of witness credibility; rather it essentially assumes
the state's witnesses testified truthfully and determines if that testimony satisfies each
element of the crime." State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4.
{¶ 20} Ward was convicted of committing felonious assault in violation of R.C.
2903.11, which provides that no person shall knowingly cause serious physical harm to
another or cause, or attempt to cause, physical harm to another by means of a deadly
weapon. Ward argues that the evidence did not support the felonious assault conviction
because he acted in self-defense. He also seems to allege the evidence did not establish that
he acted with the requisite mental element of knowingly. He further argues there was
No. 19AP-266 7
insufficient evidence that he used a deadly weapon against Clay. According to him, the box
cutter knife he used to stab Clay was not a deadly weapon. He asserts that because the knife
was not designed or specifically adapted for use as a weapon, it was not a deadly weapon.
These arguments fail.
{¶ 21} Ward's sufficiency argument based on his asserted self-defense is unavailing.
The "due process 'sufficient evidence' guarantee does not implicate affirmative defenses,
because proof supportive of an affirmative defense cannot detract from proof beyond a
reasonable doubt that the accused had committed the requisite elements of the crime."
State v. Hancock, 108 Ohio St. 3d 57, 2006-Ohio-160, ¶ 37. A sufficiency review is applied
to the substantive elements of the crime as state law defines them. Jackson v. Virginia,
443 U.S. 307 (1979). Thus, Ward's reliance on his self-defense testimony is not relevant to
the analysis of whether there was sufficient evidence to support the substantive elements
of felonious assault.
{¶ 22} We find that evidence in the record supported the jury's verdict that Ward
committed felonious assault. It is undisputed that on the night of November 16, 2017, Ward
and Clay engaged in an altercation. Ward admitted to swinging a box cutter knife at Clay
during the fight. Clay's testimony and the photographs of his body admitted into evidence
demonstrated the severity of the injuries he sustained from Ward's use of the knife. He had
stab wounds to his face, chest, and abdomen. These gashes at multiple locations on his
body required emergency surgery to stop the bleeding and repair the wounds. The injury
to Clay's abdomen was so severe that part of his intestine was outside his body immediately
after the stabbing. This evidence reasonably demonstrated that Ward was aware that his
conduct would probably cause serious physical harm to Clay.
{¶ 23} Moreover, evidence showed that Ward used a deadly weapon against Clay.
For the purpose of R.C. 2903.11, a "deadly weapon" is defined as "any instrument, device,
or thing capable of inflicting death, and designed or specially adapted for use as a weapon,
or possessed, carried, or used as a weapon." Not only did the box cutter knife have the
potential to be used as a weapon, but evidence demonstrated that Ward did use the knife
as a weapon to inflict serious physical harm on Clay. Thus, we reject Ward's contention
that the box cutter knife he used was not a deadly weapon.
No. 19AP-266 8
{¶ 24} Because Ward's felonious assault conviction was supported by sufficient
evidence, we overrule his second assignment of error.
C. Third Assignment of Error – Manifest Weight of the Evidence
{¶ 25} In his third assignment of error, Ward contends his felonious assault
conviction was against the manifest weight of the evidence. We are unpersuaded.
{¶ 26} Determinations of credibility and weight of the testimony are primarily for
the trier of fact. State v. DeHass, 10 Ohio St. 2d 230 (1967), paragraph one of the syllabus.
The jury, or the court in a bench trial, may take note of inconsistencies at trial and resolve
them accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver,
10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67
(1964). Therefore, "[w]hen a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the weight of the evidence, the appellate court sits as a
' "thirteenth juror" ' and disagrees with the factfinder's resolution of the conflicting
testimony." Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982); see State
v. Tate, 140 Ohio St. 3d 442, 2014-Ohio-3667, ¶ 20 ("a prerequisite for any reversal on
manifest-weight grounds is conflicting evidence"). However, an appellate court
considering a manifest weight challenge "may not merely substitute its view for that of the
trier of fact, but must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of 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 ordered." State
v. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing Thompkins at 387.
Appellate courts should reverse a conviction as being against the manifest weight of the
evidence only in the most " 'exceptional case in which the evidence weighs heavily against
the conviction.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st
Dist.1983).
{¶ 27} Ward asserts his conviction for felonious assault was against the manifest
weight of the evidence because he acted in self-defense. According to his testimony, he
feared for his life, and only swung the box cutter knife at Clay because he thought he was
getting assaulted by three men. Ward acknowledges Clay's testimony refuted his, but
argues Clay was not credible because he lied about not smoking marijuana, and Clay's
No. 19AP-266 9
memory was compromised because he had been drinking alcohol on the night of the
incident.
{¶ 28} Ultimately, the jury had to decide whether to believe the account of the
incident given at trial by the state's witnesses or by Ward. That is, it was within the province
of the jury to resolve the conflicts in the testimony about the fight between Ward and Clay,
and to find that Ward did not act in self-defense. For example, in resolving this conflict, it
was for the jury to decide whether the testimony of Clay, Stroud, or Henley was
compromised by anything they had ingested that night. The jury also could assess Ward's
motivation to lie about his conduct. In view of its verdict, the jury did not believe Ward's
account. Upon reviewing the entire record, we find that the jury's resolution of the
competing testimony was not against the manifest weight of the evidence. This not an
exceptional case in which the evidence weighs heavily against the conviction.
{¶ 29} Accordingly, we overrule Ward's third assignment of error.
D. Fourth Assignment of Error – Consecutive Sentences
{¶ 30} Ward argues in his fourth assignment of error that the trial court erred in
imposing consecutive sentences. We disagree.
{¶ 31} "An appellate court will not reverse a trial court's sentencing decision unless
the evidence is clear and convincing that either the record does not support the sentence or
that the sentence is contrary to law." State v. Robinson, 10th Dist. No. 15AP-910, 2016-
Ohio-4638, ¶ 7, citing State v. Chandler, 10th Dist. No. 04AP-895, 2005-Ohio-1961, ¶ 10;
R.C. 2953.08(G)(2). Ward contends the trial court did not properly apply the statutory
sentencing guidelines and therefore its imposition of consecutive sentences was contrary to
law. In particular, he argues the trial court did not make all of the necessary findings under
R.C. 2929.14(B)(2)(a) before imposing consecutive sentences. The trial court sentenced
Ward to eight years in prison as to the felonious assault count and six years in prison as to
the repeat violent offender specification attached to Count 1. It ordered those sentences to
be served consecutively.
{¶ 32} R.C. 2929.14(B)(2)(e) requires a trial court to "state its findings explaining
the imposed sentence" when it imposes a sentence pursuant to R.C. 2929.14(B)(2)(a) or
(b). R.C. 2929.14(B)(2)(a) addresses the discretionary imposition of an additional prison
term for a repeat violent offender specification, and R.C. 2929.14(B)(2)(b) addresses the
No. 19AP-266 10
mandatory imposition of an additional prison term for a repeat violent offender
specification. Here, the imposition of the additional prison term for the repeat violent
offender specification was discretionary and therefore imposed pursuant to R.C.
2929.14(B)(2)(a), which states as follows:
(a) If division (B)(2)(b) of this section does not apply, the court
may impose on an offender, in addition to the longest prison
term authorized or required for the offense or, for offenses for
which division (A)(1)(a) or (2)(a) of this section applies, in
addition to the longest minimum prison term authorized or
required for the offense, an additional definite prison term of
one, two, three, four, five, six, seven, eight, nine, or ten years if
all of the following criteria are met:
(i) The offender is convicted of or pleads guilty to a
specification of the type described in section 2941.149 of the
Revised Code that the offender is a repeat violent offender.
(ii) The offense of which the offender currently is convicted or
to which the offender currently pleads guilty is aggravated
murder and the court does not impose a sentence of death or
life imprisonment without parole, murder, terrorism and the
court does not impose a sentence of life imprisonment
without parole, any felony of the first degree that is an offense
of violence and the court does not impose a sentence of life
imprisonment without parole, or any felony of the second
degree that is an offense of violence and the trier of fact finds
that the offense involved an attempt to cause or a threat to
cause serious physical harm to a person or resulted in serious
physical harm to a person.
(iii) The court imposes the longest prison term for the offense
or the longest minimum prison term for the offense, whichever
is applicable, that is not life imprisonment without parole.
(iv) The court finds that the prison terms imposed pursuant
to division (B)(2)(a)(iii) of this section and, if applicable,
division (B)(1) or (3) of this section are inadequate to punish
the offender and protect the public from future crime, because
the applicable factors under section 2929.12 of the Revised
Code indicating a greater likelihood of recidivism outweigh
the applicable factors under that section indicating a lesser
likelihood of recidivism.
(v) The court finds that the prison terms imposed pursuant to
division (B)(2)(a)(iii) of this section and, if applicable,
No. 19AP-266 11
division (B)(1) or (3) of this section are demeaning to the
seriousness of the offense, because one or more of the factors
under section 2929.12 of the Revised Code indicating that the
offender's conduct is more serious than conduct normally
constituting the offense are present, and they outweigh the
applicable factors under that section indicating that the
offender's conduct is less serious than conduct normally
constituting the offense.
R.C. 2929.14(B)(2)(a)(i) through (v). "Although imposition of the additional prison term is
discretionary, if the trial court chooses to impose the additional term under R.C.
2929.14(B)(2)(a), the sentencing statute requires the additional term to be served
'consecutively to and prior to the prison term imposed for the underlying offense.' " State
v. Harris, 10th Dist. No. 15AP-683, 2016-Ohio-3424, ¶ 46, quoting R.C. 2929.14(B)(2)(d).
{¶ 33} Ward does not argue the trial court did not make the necessary findings
under R.C. 2929.14(B)(2)(a)(i), (ii), or (iii). Ward argues the trial erroneously failed to
make the findings under R.C. 2929.14(B)(2)(a)(iv) and (v) before imposing consecutive
sentences. However, in State v. Oller, 10th Dist. No. 16AP-429, 2017-Ohio-7575, this court
clarified that if a trial court in its discretion imposes additional prison time on a repeat
violent offender specification, it must make the findings under R.C. 2929.14(B)(2)(a) with
the exception that it need not state the findings under R.C. 2929.14(B)(2)(a)(iv) and (v).
Thus, the trial court was not required to make the findings set forth in R.C.
2929.14(B)(2)(a)(iv) and (v) before imposing an additional sentence on the repeat violent
offender specification, which pursuant to R.C. 2929.14(B)(2)(d), was required to be
imposed consecutive to the prison term for the underlying offense. Consequently, we reject
Ward's argument that the trial court failed to comply with statutory sentencing guidelines
relating to its imposition of consecutive sentences.
{¶ 34} For these reasons, we overrule Ward's fourth assignment of error.
E. Fifth Assignment of Error – Ineffective Assistance of Trial Counsel
{¶ 35} In his fifth and final assignment of error, Ward argues he received ineffective
assistance of trial counsel. This assignment of error is not well-taken.
{¶ 36} In order to prevail on a claim of ineffective assistance of counsel, Ward must
satisfy a two-prong test. First, he must demonstrate that his counsel's performance was
deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong requires
Ward to show that his counsel committed errors which were "so serious that counsel was
No. 19AP-266 12
not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. If
Ward can so demonstrate, he must then establish that he was prejudiced by the deficient
performance. Id. To show prejudice, Ward must establish there is a reasonable probability
that, but for his counsel's errors, the result of the trial would have been different. A
"reasonable probability" is one sufficient to undermine confidence in the outcome of the
trial. Id. at 694.
{¶ 37} According to Ward, his trial counsel was deficient in not requesting that the
jury be instructed that evidence of his prior conviction only could be used for impeachment.
He asserts he was prejudiced because the jury was free to infer that he has a propensity to
engage in criminal activity and therefore committed the crime alleged in this case. But the
trial court instructed the jury as follows: "Testimony was introduced tending to show that
witnesses and the defendant had been convicted of crimes. You may consider this
testimony to judge their credibility and the weight to be given to their testimony only." (Tr.
Vol. II at 442.) Thus, the trial court expressly instructed the jury that evidence of Ward's
prior conviction only could be used for impeachment. And based on this instruction, the
jury was implicitly not permitted to consider that evidence to find he has a propensity to
commit crimes. Consequently, we reject Ward's contention that his trial counsel was
deficient in not requesting a jury instruction concerning his criminal history.
{¶ 38} Therefore, we overrule Ward's fifth assignment of error.
IV. Disposition
{¶ 39} Having overruled all five of Ward's assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and BRUNNER, JJ., concur.