State v. Meyers ( 2014 )

[Cite as State v. Meyers, 2014-Ohio-5610.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2014-A-0020
- vs - :
CHRISTOPHER M. MEYERS, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas.
Case No. 2013 CR 00229.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).
Rebecca Hall, P.O. Box 242, 34 South Chestnut Street, Suite 300, Jefferson, OH
44047 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Christopher M. Meyers, appeals the judgment of the Ashtabula
County Court of Common Pleas, having found him guilty, after a jury trial, of assault on
a police officer in violation of R.C. 2903.13(A), a felony of the fourth degree, and
resisting arrest in violation of R.C. 2921.33(A), a misdemeanor of the second degree.
Based on the following, we affirm.
{¶2} Lieutenant Rodney Blaney of the Ashtabula City Police Department was
working the night shift on April 13, 2013, and was called to Bunker Hill Apartments.
Upon arriving at the scene, he witnessed appellant and another individual, Dustin
Busser, in a struggle, with Mr. Busser holding onto appellant’s wrists to restrain him.
After instructing them to separate, Lieutenant Blaney began questioning them. At this
time, Lieutenant Doug Hollis, also of the Ashtabula City Police Department, arrived at
the scene to provide backup for Lieutenant Blaney.
{¶3} At trial, Lieutenant Blaney testified that, throughout his conversation with
both appellant and Mr. Busser, it became evident that appellant was heavily intoxicated.
Lieutenant Blaney testified that appellant was uncooperative in his requests to provide
his personal information. Appellant was drifting, staggering back and forth, swaying
from foot to foot, and his clothing was disheveled. Lieutenant Blaney further testified
that appellant had gravel and mud stuck to the side of his face and constantly spit on
the ground, in all directions. When appellant began to spit toward Lieutenant Blaney, he
was advised to cease this behavior or he would be arrested. Appellant, however,
continued to be belligerent and refused to answer any of Lieutenant Blaney’s questions.
Mr. Busser provided Lieutenant Blaney with appellant’s name, his own personal
information, and the reasons for their struggle.
{¶4} Lieutenant Blaney continued his attempt to obtain more information from
appellant, but appellant would sometimes speak clearly, then ramble and make growling
sounds when he spoke. During this, appellant asked if he could smoke a cigarette.
Lieutenant Blaney permitted him, with the hope that appellant would become more
cooperative. But when appellant’s behavior persisted, Lieutenant Blaney warned him
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that he was going to arrest appellant if he failed to comply. In response, appellant’s
growling intensified, and he launched toward Lieutenant Blaney, making direct contact
with Lieutenant Blaney’s upper chest/lower neck area. A struggle ensued between the
two and continued until Lieutenant Hollis utilized his taser on appellant. Lieutenant
Blaney was then able to handcuff appellant. Appellant was transported to the police
station. At the station, appellant continued his growling and combative behavior; he
also threatened to kill Lieutenant Hollis. Appellant was placed in a restraint chair for the
remainder of the night. When appellant awoke the next day, he indicated he had no
recollection of the previous night’s events.
{¶5} At trial, Lieutenant Hollis corroborated Lieutenant Blaney’s account of the
incident.
{¶6} Mr. Eric Hemphill, the manager of Bunker Hill Apartments, also testified.
Mr. Hemphill testified that, prior to the lieutenants’ arrival, he was awakened by noise
generated by appellant and Mr. Busser. He spoke with Mr. Busser, who informed him
that appellant was intoxicated and Mr. Busser was trying to get him home. Mr. Hemphill
went back inside but when he received calls from other tenants in the building
complaining about the noise, he went back outside and saw Lieutenant Blaney’s vehicle
approaching the scene. Mr. Hemphill remained in his patio area and testified that he
was able to observe the incident. He testified that appellant refused to answer
Lieutenant Blaney’s questions, and he observed appellant push Lieutenant Blaney.
{¶7} At trial, Mr. Busser testified that he had been with appellant earlier that
night at a bar with several friends drinking alcohol. Mr. Busser left the bar to visit his
girlfriend, but later traveled to the apartment complex to meet his friends. Mr. Busser
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stated that he observed two friends trying to put appellant, who was clearly intoxicated,
in his truck to “sleep it off.” When the friends gave up and returned to their apartment,
Mr. Busser testified that he then attempted to put appellant into his vehicle, struggling
with him for approximately 15-20 minutes before the police arrived. Mr. Busser
confirmed that appellant refused to provide Lieutenant Blaney his social security
number. Mr. Busser testified that when he observed one of the lieutenants stepping
forward in response to appellant’s movement, he turned and stepped back. When Mr.
Busser turned, he saw appellant on the ground growling. Mr. Busser testified that he
neither saw appellant make actual contact with Lieutenant Blaney nor did he see him
spitting throughout their conversation.
{¶8} The jury found appellant guilty of both charges; he was sentenced to a
two-year term of community control for each count, to be served concurrently.
{¶9} Appellant filed a timely notice of appeal and asserts the following
assignment of error for our review:
{¶10} “Defendant was denied effective assistance of counsel when trial counsel
failed to request a jury instruction of disorderly conduct as a lesser included offense of
assault of a police officer.”
{¶11} On appeal, appellant argues his trial counsel was ineffective for failing to
request a jury instruction of disorderly conduct, a lesser included offense of assault of a
police officer.
{¶12} In order to prevail on an ineffective assistance of counsel claim, the
appellant must demonstrate from the record that trial counsel’s performance fell below
an objective standard of reasonable representation and that there is a reasonable
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probability that, but for counsel’s error, the result of the proceeding would have been
different. State v. Bradley, 42 Ohio St. 3d 136 (1989), paragraph two of the syllabus,
applying the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). If a claim
of ineffective assistance can be disposed of by showing a lack of sufficient prejudice,
there is no need to consider the first prong, i.e., whether trial counsels performance was
deficient. Bradley at 143, citing Strickland at 697. There is a general presumption that
trial counsel’s conduct is within the broad range of competent professional assistance.
Id. at 142.
{¶13} Furthermore, decisions on strategy and trial tactics are generally granted
wide latitude in professional judgment, and it is not the duty of a reviewing court to
analyze trial counsel’s legal tactics and maneuvers. State v. Gau, 11th Dist. Ashtabula
No. 2005-A-0082, 2006-Ohio-6531, ¶35, citing Strickland at 689. Debatable trial tactics
and strategies do not constitute ineffective assistance of counsel. State v. Phillips, 74
Ohio St. 3d 72, 85 (1995), citing State v. Clayton, 62 Ohio St. 2d 45, 49 (1980).
{¶14} An offense may be considered a lesser included offense of another when
(1) one offense carries a greater penalty than the other; (2) the greater offense cannot
be committed without the lesser offense also being committed; and (3) some element of
the greater offense is not required to prove the commission of the lesser offense. State
v. Evans, 122 Ohio St. 3d 381, 2009-Ohio-2974, paragraph two of the syllabus. Further,
while an offense may be statutorily defined as a lesser included offense, an instruction
to the jury on the lesser offense is required only where the evidence presented at trial
would reasonably support both an acquittal on the crime charged and a conviction upon
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the lesser offense. State v. Thomas, 40 Ohio St. 3d 213 (1988), paragraph two of the
syllabus.
{¶15} Although disorderly conduct is a lesser included offense of assault, an
instruction is only required if the evidence presented at trial would reasonably support
both an acquittal on the crime charged and a conviction on the lesser included offense.
See State v. Latessa, 11th Dist. Lake No. 2006-L-108, 2007-Ohio-3373, ¶47 (“The
Ohio Supreme Court appears to have recently settled the issue in favor of those districts
which have held that minor misdemeanor disorderly conduct is, indeed, a lesser
included offense of assault.”).
{¶16} Assault, pursuant to R.C. 2903.13(A), provides that “[n]o person shall
knowingly cause or attempt to cause physical harm to another * * *.” Where the victim
of the offense is a police officer performing official duties, the assault is classified as a
felony of the fourth degree. R.C. 2903.13(C)(5).
{¶17} Here, the evidence did not reasonably support acquittal of assault on a
police officer. As a result, a jury instruction on the lesser included offense of disorderly
conduct was not warranted in this matter. We decline to find trial counsel ineffective for
failing to request such an instruction.
{¶18} Appellant’s assignment of error is without merit.
{¶19} The judgment of the Ashtabula County Court of Common Pleas is hereby
affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.
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