State v. Patterson , 99 N.E.3d 970 ( 2017 )

[Cite as State v. Patterson, 2017-Ohio-8318.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105265
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ENNIS R. PATTERSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-606673-A
BEFORE: Boyle, J., E.T. Gallagher, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: October 26, 2017
ATTORNEY FOR APPELLANT
James J. Hofelich
614 W. Superior Avenue, Suite 1310
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Ronni Ducoff
Ashley B. Kilbane
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶1} The defendant-appellant, Ennis Patterson, appeals his convictions. He
raises two assignments of error for our review:
1. Appellant’s convictions were against the manifest weight of the
evidence.
2. Appellant was denied his right to effective assistance of counsel.
{¶2} Finding no merit to his appeal, we affirm.
I. Procedural History and Factual Background
{¶3} The Cuyahoga County Grand Jury indicted Patterson for one count of gross
sexual imposition, with a sexually violent predator specification, and one count of
kidnapping, with a sexual motivation specification and a sexually violent predator
specification. Police arrested Patterson on May 26, 2016, following a report that he
molested an eight-year-old child, D.D., while babysitting him on April 16, 2016.
Patterson pleaded not guilty to both counts and elected for a bench trial, where the
following evidence was presented.
{¶4} On May 25, 2016, D.N. was babysitting B.T.’s and Z.T.’s children at B.T.’s
house. D.N. testified that, as he was cooking dinner, he overheard D.D., one of B.T.’s
children, discussing sexually explicit things with another child. Alarmed, D.N.
demanded to know what D.D. was talking about. D.D. told D.N. that Patterson had
touched his private parts while babysitting D.D., C.J., and a number of other children at
B.T.’s house on April 16, 2016.
{¶5} D.N. testified that he immediately tried calling D.D.’s grandmother, C.T.,
who actually showed up at the house a few moments later. After D.N. told C.T. what
D.D. said, C.T. testified that she spoke to D.D., who repeated the story he told to D.N.
Becoming extremely upset, C.T. walked over to Patterson’s mother’s house, where
Patterson was staying. After having her knocks go unanswered, C.T. testified that she
called B.T. and Z.T., telling them to come to B.T.’s house immediately.
{¶6} C.T. testified that while she and D.N. waited for B.T. and Z.T. to arrive, she
called and spoke to M.S., her cousin, on the phone asking her to come to the house.
Around the same time, B.T.’s cousin, M.J., happened to stop by the house, during which
time she also spoke to D.D. and learned about the allegations against Patterson.
{¶7} Once B.T. and Z.T. arrived and learned what was going on, Z.T. spoke to
D.D. and became enraged. Z.T. and C.T. testified that the adults discussed whether to
call the police or go get Patterson themselves. C.T. testified that amidst this discussion,
she independently decided to call the police.
{¶8} C.T. testified that the first police department she was able to successfully
contact was the Cleveland Metropolitan Housing Authority (“CMHA”). Dispatched to
the scene for a report of unattended children, CMHA Officer Dustin Kubiak testified that
he arrived to discover that the report actually concerned a sexual offense against a child.
Following protocol, Officer Kubiak alerted the Cleveland Police Department (“CPD”),
which handles sexual offenses. While waiting for the CPD to arrive, Officer Kubiak
testified that he spoke with C.T. and one of the aunts on scene and, based on those
conversations, went across the street to Patterson’s mother’s house and requested that
Patterson come outside. While Officer Kubiak detained Patterson and escorted him to
his patrol car, C.T. testified that Patterson looked at her and said, “I told them to tell those
kids to leave me alone.”
{¶9} Eventually, CPD arrived on the scene, took statements from most of the
adults present, and placed Patterson under arrest. CPD was unable to take an initial
statement from D.D., who was sleeping at the time. CPD subsequently transferred
Patterson to jail.
{¶10} Over the next two days, police interviewed Patterson twice, thoroughly
questioning him about his involvement with B.T., Z.T., and their children and the
allegations against him. At the beginning of both interviews, Patterson signed a form
waiving his Miranda rights and spoke freely to detectives during most of the two
interviews. At some point during the second interview, Patterson expressed that he
wanted to speak to an attorney. Despite Patterson’s request, the detectives continued to
ask Patterson questions, which he continued to answer. Patterson’s trial counsel did not
file a motion to suppress any statements made during either interview.
{¶11} Prior to trial, the trial court held a competency hearing for both D.D. and
C.J., who were allegedly in the room when Patterson touched D.D. and is the daughter of
M.J. The court found both children to be competent.
{¶12} At trial, the state called D.N., C.T., M.S., and Z.T., who all recounted fairly
consistent versions of the events described above. Specifically, they all testified that
when they individually spoke to D.D., his accounts to each of them were consistent. The
state also called D.D. to testify. D.D. testified that on April 16, 2016, he was watching a
movie with his cousins at B.T.’s house when Patterson entered the room naked.
According to D.D., Patterson removed D.D.’s shirt and shorts and then squeezed his
private parts. D.D. also testified that later that evening, he awoke to find Patterson
threatening him with an extension cord and telling him not to tell anyone what happened.
The state additionally called Officer Kubiak from CMHA, Officer Hess from CPD, and
Detective Vowell from CPD’s Sex Crimes and Child Abuse Unit. Those witnesses
corroborated the events on May 25-26, 2016, and Detective Vowell discussed his
interviews with Patterson subsequent to his arrest. Patterson’s trial counsel thoroughly
cross-examined the state’s witnesses, but did not call any witnesses on behalf of
Patterson. C.J. was not called to testify by either the state or Patterson.
{¶13} The trial court found Patterson guilty on both counts in the indictment and
sentenced him to 20 years to life in prison, ordered him to pay the costs and expenses of
the case, and found him to be a Tier III sex offender/child offender registrant. It is from
this judgment that Patterson now appeals.
II. Manifest Weight of the Evidence
{¶14} In his first assignment of error, Patterson argues that his convictions were
against the manifest weight of the evidence. We disagree.
{¶15} Unlike sufficiency of the evidence, a challenge to the manifest weight of the
evidence attacks the credibility of the evidence presented. State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997). Because it is a broader review, a reviewing
court may determine that a judgment of a trial court is sustained by sufficient evidence,
but nevertheless conclude that the judgment is against the weight of the evidence. Id.,citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).
{¶16} Analyzing a claim under the manifest weight standard requires us to “review
the entire record, weigh all of the evidence and all of the reasonable inferences, consider
the credibility of the witnesses, and determine whether, in resolving conflicts in evidence,
the factfinder clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed[.]” Thompkins at 387, citing State v. Martin, 20 Ohio
App.3d 172, 485 N.E.2d 717 (1st Dist.1983). We are required to give “due deference”
to the factfinder’s conclusions because “the demeanor of witnesses, the manner of their
responses, and many other factors observable by [the factfinder] * * * simply are not
available to an appellate court on review.” State v. Miller, 8th Dist. Cuyahoga No.
100461, 2014-Ohio-3907, ¶ 58, citing Thompkins; State v. Bailey, 8th Dist. Cuyahoga No.
97754, 2012-Ohio-3955, ¶ 11, quoting State v. Bierbaum, 3d Dist. Seneca No. 13-88-18,
1990 Ohio App. LEXIS 1204 (Mar. 4, 1990). “Further, * * * [we] must keep in mind
that questions of weight and credibility are primarily for the trier of fact to determine.”
State v. Irby, 7th Dist. Mahoning No. 03 MA 54, 2004-Ohio-5929, ¶ 39, citing State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Accordingly, reversing a previous
conviction and ordering a new trial under a manifest weight of the evidence claim should
be saved for the “exceptional case in which the evidence weighs heavily against the
conviction.” State v. Bridges, 8th Dist. Cuyahoga No. 100805, 2014-Ohio-4570, ¶ 67,
citing Thompkins.
{¶17} In the instant case, Patterson challenges the evidence supporting his
convictions, claiming (1) D.D.’s testimony was the only testimony supporting his
convictions and his testimony contained inconsistencies and was uncorroborated, and (2)
had she testified, C.J. would have told the court that nothing unusual occurred on April
16, 2016, contradicting D.D.’s testimony.
A. D.D.’s Testimony
{¶18} Patterson argues that his convictions were a clear miscarriage of justice
because D.D.’s testimony was inconsistent and uncorroborated.
{¶19} “It is the province of the [factfinder] to determine where the truth probably
lies from conflicting statements, not only of different witnesses, but by the same witness.”
State v. Haynes, 10th Dist. Franklin No. 03AP-1134, 2005-Ohio-256, ¶ 24, quoting State
v. Lakes, 120 Ohio App. 213, 201 N.E.2d 809 (4th Dist.1964). “A conviction is not
against the manifest weight of the evidence solely because the [factfinder] heard
inconsistent testimony.” State v. Phillips, 8th Dist. Cuyahoga No. 103325,
2017-Ohio-1284, ¶ 33, quoting State v. Hill, 8th Dist. Cuyahoga No. 99819,
2014-Ohio-387.
{¶20} Patterson’s argument is similar to the one we rejected in State v. Martin, 8th
Dist. Cuyahoga No. 90722, 2008-Ohio-5263. In that case, the appellant argued that his
convictions were against the manifest weight of the evidence because “the victim, the sole
eyewitness to the events, gave conflicting information to police officers at the time of the
incident.” Id. at ¶ 32. Even though the victim’s testimony contained a number of
inconsistencies from his earlier statements — such as when the appellant pulled the gun,
whether or not the victim had a gun on his person, and where the victim obtained a gun
— we found those inconsistencies to be “minor and understandable in light of the fact
that [the victim] had just been robbed at gunpoint and shot three times.” Id. at ¶ 36-38.
{¶21} Likewise, the court in Malone rejected a manifest weight of the evidence
claim based on inconsistencies in the victim’s testimony. State v. Malone, 10th Dist.
Franklin No. 98AP-278, 1998 Ohio App. LEXIS 5647, *9 (Dec. 1, 1998). In that case,
the appellant cited to the eight-year-old victim’s conflicting answers when responding to
questions about whether her pants were on or off when the defendant touched her private
parts. Id. at *6. Despite those conflicting answers, the court affirmed the appellant’s
conviction for gross sexual imposition, noting that “the alleged inconsistencies fail to cast
such doubt on the victim’s testimony as to render the verdict against the manifest weight
of the evidence, especially because [the victim’s] statements generally, though not
completely, were consistent regarding the act of sexual contact with defendant’s penis.”
Id. at *9.
{¶22} Similar to Martin and Malone, Patterson fails to show any meaningful
inconsistencies establishing that his convictions are the exceptional case for which a
reversal under a manifest weight of the evidence claim exists. D.D.’s statements
concerning the events on April 16, 2016, were largely consistent. The only arguable
inconsistency that Patterson and his counsel continuously stressed at trial — D.D.’s
failure to mention Patterson’s threatening of him with the extension cord after the assault
— was more akin to a detail innocently omitted rather than an inconsistent statement. In
fact, during his testimony, Detective Vowell testified that child victims typically omit
details in their first interviews with family members and police officers. See State v.
Hartford, 21 Ohio App.3d 29, 31, 486 N.E.2d 131 (8th Dist.1984) (“Certain details
related to the police may naturally not be brought up on direct examination and some
details omitted from a witness statement may naturally crop up for the first time at trial,
and it is not appropriate to consider the omission of such details to be
‘inconsistencies.’”).1 When considering D.D.’s age and the stressful nature of the events
on May 25-26, 2016, it is understandable why D.D.’s testimony contained facts not
disclosed during his initial interviews with police. Finally, D.D.’s failure to disclose that
detail at an earlier time goes directly to the credibility and weight of the evidence, which
the trial court was in the best position to consider. Irby, 7th Dist. Mahoning No. 03 MA
54, 2004-Ohio-5929, ¶ 39, citing DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212. Here,
1
At oral argument, there was some discussion on whether Hartford was applicable and
remained good law. Specifically, appellant’s attorney contended that Hartford is irrelevant because
it concerns the ability to impeach a witness with an earlier statement. But we do not cite Hartford
for its disposition of the impeachment issue; rather, Hartford is relevant based on the above-cited
proposition’s holding regarding the comparison between omissions and inconsistencies. We have
repeatedly cited to Hartford for the above proposition and find it to be reliable and relevant to this
instant case. See State v. Washington, 8th Dist. Cuyahoga Nos. 102337 and 102338,
2015-Ohio-4982, ¶ 37; State v. Kenney, 8th Dist. Cuyahoga No. 80653, 2004-Ohio-972, ¶ 9; State
v. Hood, 8th Dist. Cuyahoga No. 80294, 2002-Ohio-4081, ¶ 26; State v. Culver, 8th Dist. Cuyahoga
No. 55895, 1989 Ohio App. LEXIS 5214, * 8-9 (Sept. 21, 1989).
the trial court, found that newly added detail was inconsequential to its determination of
guilt.
{¶23} Patterson also argues that D.D.’s testimony was not corroborated by other
witnesses. The appellant in Martin also made a similar argument, pointing to the fact
that “there were no other eyewitnesses or physical evidence to corroborate [the victim’s]
version of the events.” Martin at ¶ 42. We rejected this argument as well, stating that
“[a]lthough physical evidence and eyewitness testimony is helpful to prove a case, it is
not necessary.” Id. We found that the victim’s “testimony as to what happened, as
well as the three police officers’ testimony, was adequate direct and circumstantial
evidence for a rational jury to find Martin guilty beyond a reasonable doubt.” Id. We
concluded our opinion, stating, “When the state relies on circumstantial evidence to prove
an essential element of the offense charged, there is no need for such evidence to be
irreconcilable with any reasonable theory of innocence in order to support a conviction.”
Id. at ¶ 43.
{¶24} An appellant made a similar uncorroborated argument in State v. Derrick,
8th Dist. Cuyahoga No. 100010, 2014-Ohio-1073. In that case, the appellant argued that
his convictions were against the manifest weight of the evidence because the state did not
present any other evidence corroborating the victim’s testimony. Id. at ¶ 28.
Considering “the weight to be given the evidence and the credibility of the witnesses are
matters primarily for the trier of fact,” and the fact that the jury found the victim’s
testimony to be more credible, we rejected the appellant’s argument. Id., citing DeHass.
{¶25} Like Martin and Derrick, Patterson’s corroboration argument also fails.
While the state’s evidence was not unequivocal of Patterson’s guilt, it was surely enough
for a rational finder of fact to find Patterson guilty of both crimes. Further, sexual assault
cases “are essentially ‘one witness’ cases” and “are about individual complainant
credibility and reliability.” Smith, Representing Rapists: The Cruelty of Cross
Examination and Other Challenges for a Feminist Criminal Defense Lawyer, 53
Am.Crim.L. Rev. 255, 294 (2016). The state presented both direct and circumstantial
evidence largely corroborating D.D.’s testimony, and the trial court found that evidence to
be credible. Considering that the trial court was in the best position to weigh the
credibility of the witnesses’ testimony, we are not convinced that Patterson’s argument
has merit.
B. Nonexistent Testimony of C.J.
{¶26} Finally, Patterson claims that his convictions were against the manifest
weight of the evidence because, had C.J. testified, she would have testified that nothing
unusual occurred on April 16, 2016.
{¶27} Appellants, however, cannot base their manifest weight of the evidence
claims on evidence not in the record. State v. Hicks, 8th Dist. Cuyahoga No. 83981,
2005-Ohio-1842, ¶ 8; see also State v. Tyler, 2d Dist. Montgomery No. 15912, 1997 Ohio
App. LEXIS 4328, *19-20 (Sept. 26, 1997) (“In order to raise a question of whether a
conviction was against the manifest weight of the evidence, one must point to evidence in
the record that weighs heavily against the defendant’s conviction.”). Here, because
Patterson’s assertions about what C.J. would have said at trial are mere speculation and
were not included in the record, Patterson’s arguments concerning evidence outside the
record cannot support his first assignment of error.
{¶28} Based on the foregoing discussion and our review of the entire record, we
are not convinced that Patterson’s convictions are the “exceptional” case for which a
manifest weight of the evidence claim is reserved.
{¶29} Patterson’s first assignment of error is overruled.
III. Ineffective Assistance of Counsel
{¶30} In his second assignment of error, Patterson argues that he received
ineffective assistance from his trial counsel. Again, we disagree.
{¶31} While “[t]he right to counsel is the right to the effective assistance of
counsel,” the defendant carries the burden of establishing a claim of ineffective assistance
of counsel on appeal. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), citing McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25
L.Ed.2d 763 (1970); State v. Corrothers, 8th Dist. Cuyahoga No. 72064, 1998 Ohio App.
LEXIS 491, *19 (Feb. 12, 1998), citing State v. Smith, 3 Ohio App.3d 115, 444 N.E.2d 85(8th Dist.1981). “Judicial scrutiny of defense counsel’s performance must be highly
deferential.” State v. Sanchez, 8th Dist. Cuyahoga No. 103078, 2016-Ohio-3167, ¶ 8,
citing Strickland. Further, “trial strategy or tactical decisions cannot form the basis for a
claim of ineffective counsel.” Id. at ¶ 26, citing Strickland and quoting State v. Foster,
8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186.
{¶32} To gain reversal on a claim of ineffective assistance of counsel, a convicted
defendant must show that (1) his “counsel’s performance was deficient,” and (2) “the
deficient performance prejudiced the defense.” Strickland at 687. The first prong of
Strickland’s test requires the defendant to show “that counsel’s representation fell below
an objective standard of reasonableness.” Id. at 688. Strickland’s second prong
requires the defendant to show “a reasonable probability that but for counsel’s errors, the
proceeding’s result would have been different.” State v. Winters, 8th Dist. Cuyahoga
No. 102871, 2016-Ohio-928, ¶ 25, citing Strickland.
{¶33} When deciding claims of ineffective assistance of counsel, courts may
analyze the two prongs out of order. Id. at 697; State v. Bradley, 42 Ohio St.3d 136,
143, 538 N.E.2d 373 (1989). “If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, * * * that course should be followed.” Strickland
at 697.
A. Failure to File Motion to Suppress
{¶34} Patterson claims that his trial counsel was ineffective for not filing a motion
to suppress his statements to police.
{¶35} “Failure to file a motion to suppress does not constitute per se ineffective
assistance of counsel.” State v. Moon, 8th Dist. Cuyahoga No. 101972,
2015-Ohio-1550, ¶ 28. Instead, a defendant must show that the motion would have “had
a reasonable probability of success” and affected the outcome of the case. Sanchez, 8th
Dist. Cuyahoga No. 103078, 2016-Ohio-3167, ¶ 22; Moon at ¶ 28; see also State v. Kirk,
8th Dist. Cuyahoga Nos. 95260 and 95261, 2011-Ohio-1687, ¶ 46 (“Failure to file a
motion to suppress constitutes ineffective assistance of counsel only if, based upon the
record, the motion would have been granted.”). When scrutinizing an appellant’s trial
counsel’s failure to file a motion to suppress, a reviewing court must decide whether that
failure was a tactical decision based on the trial counsel’s investigation of the matter.
State v. Spring, 7th Dist. Jefferson No. 15 JE 0019, 2017-Ohio-768, ¶ 20, quoting State v.
Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52.
{¶36} Patterson’s argument fails because the decision not to file a motion to
suppress statements from the second interview with police was a strategic one. At trial,
in Patterson’s presence, the following exchange took place:2
PROSECUTOR: Second issue is in defendant’s second interview, he
does sign a waiver, he’s read his Miranda rights. And
at 24:05, the defendant says, I don’t want to talk
anymore and he says that he wants a lawyer. The
officer said, Do you want to reconsider? And the
defendant keeps on talking about this incident. * * *
DEFENSE I may want to address that part. * * * During
COUNSEL: my conversation with the prosecutors yesterday, I raised
concern about what the prosecutor just stated to the
Court, that at some point during the second interview
my client had suggested, told the officer, the
detectives, that he didn’t want to continue the
interview and that he wanted to have his lawyer and
2
Prior to the above exchange, both parties engaged in a lengthy discussion concerning
redactions to Patterson’s statements to police concerning Z.T.’s alleged coaching of the children. The
discussion lasted over the course of a few days while both parties went back and forth over what to
include and what was permissible under the Ohio Rules of Evidence. Ultimately, the court disagreed
with the state’s proposed redactions of those statements, allowing Patterson’s statements concerning
the coaching to come in for credibility purposes.
then they continued talking. At any rate, the bottom
line is I’ve had a conversation with my client today and
he is aware of that potential suppression issue and
we’re not going to be objecting — we’re not going to
raise an argument for suppression, that if they didn’t
say it continuously in the interview will be acceptable
with us.
COURT: So you’re not making an objection to that and you’re
waiving any rights to object?
DEFENSE Right.
COUNSEL:
The record makes it clear that Patterson and his counsel consciously considered whether
or not to file a motion to suppress and ultimately decided against it. Therefore, that
failure is not a basis on which Patterson can support his ineffective assistance claim.
{¶37} In addition, Patterson fails to make a showing of prejudice under
Strickland’s second prong. Patterson does not specify which statements were used
against him at trial and subject to suppression, and it is not this court’s duty to scour the
record for those statements. See Mayfair Village Condominium Owners Assn. v.
Grynko, 8th Dist. Cuyahoga No. 99264, 2013-Ohio-2100, ¶ 6 (“We are not obliged to
scour the record in search of evidence to support an appellant’s assignment of error.”); In
re E.G., 9th Dist. Medina No. 16CA0075-M, 2017-Ohio-2584, ¶ 27 (“Conclusions
without an evidentiary basis fail to provide this Court with a valid basis on which to
disturb the judgment of the trial court. * * *[I]t is not the duty of this Court to scour the
record for evidence and construct an argument on an appellant’s behalf.”). Moreover,
despite our freedom to forego any deeper scrutiny of the record, we thoroughly reviewed
the record and were still unable to identify which statements came after Patterson’s
request for an attorney. As a result, we cannot logically consider whether a motion to
suppress unidentified statements would have been successful and affected the outcome
of the trial.
B. Failure to Call C.J. as a Witness
{¶38} Patterson also claims that his trial counsel was ineffective because it failed
to call C.J. as a witness.
{¶39} Trial counsel’s decision to call or not call a witness constitutes trial tactics.
State v. Jones, 8th Dist. Cuyahoga No. 81112, 2003-Ohio-3004, ¶ 32, citing State v. Hunt,
20 Ohio App.3d 310, 486 N.E.2d 108 (9th Dist.1984). Tactical decisions by trial
counsel hardly ever serve as the basis for a claim of ineffective assistance of counsel
because “[t]he defendant must show that the witness’s testimony would have
‘significantly assisted the defense and affected the outcome of the case.’” State v.
Howard, 8th Dist. Cuyahoga No. 101359, 2015-Ohio-2854, ¶ 37, quoting State v. Griffith,
8th Dist. Cuyahoga No. 97366, 2012-Ohio-2628. In meeting that burden, the defendant
must be able to point to evidence in the record; otherwise, “any allegations of
ineffectiveness based on facts not appearing in the trial record should be reviewed
through the postconviction remedies.” State v. Barnes, 8th Dist. Cuyahoga No. 92512,
2011-Ohio-63, ¶ 8; see also State v. Curtis, 8th Dist. Cuyahoga No. 89412,
2008-Ohio-916, ¶ 8, citing State v. Cooperrider, 4 Ohio St.3d 226, 448 N.E.2d 452(1983) (“The law is well settled that when allegations of ineffective assistance of counsel
hinge on facts not appearing in the record, the proper remedy is a petition for
postconviction relief rather than direct appeal.”).
{¶40} Here, the decision not to call C.J. as a witness was a tactical one based on
the fear of potentially exposing Patterson to additional charges not listed in the current
indictment. The record indicates that Patterson agreed with his trial counsel’s decision.
Further, contrary to Patterson’s assertions, the state’s disclosure did not indicate that C.J.
would have “testified that nothing unusual occurred on April 16, 2016[,]” but instead that
she did not “see anything happen with defendant” and D.D. In other words, C.J.’s
testimony was not definitive evidence of Patterson’s innocence, and Patterson does not
specifically identify any other record-based evidence to support his argument that he
would have been acquitted had C.J. testified.
{¶41} Even if Patterson sufficiently argued that C.J.’s testimony would have
affected the outcome of the case — which he has not, whether this argument is
meritorious is not for us to decide on direct appeal. Because Patterson failed to make an
offer of proof concerning C.J.’s unheard testimony, the record does not contain any
indication of what C.J. would have testified to. As such, his ineffectiveness argument
concerning C.J. relies on evidence that is outside the record, and Patterson should pursue
his claim of ineffective assistance of counsel through a petition for postconviction relief
under R.C. 2953.21.
{¶42} Patterson’s second assignment of error is overruled.
{¶43} 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 common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. 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, JUDGE
EILEEN T. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR