State v. Graham ( 2022 )


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  • [Cite as State v. Graham, 
    2022-Ohio-3000
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    VAN WERT COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                              CASE NO. 15-21-12
    v.
    MARQUIS J. GRAHAM,                                       OPINION
    DEFENDANT-APPELLANT.
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                              CASE NO. 15-21-13
    v.
    MARQUIS J. GRAHAM,                                       OPINION
    DEFENDANT-APPELLANT.
    Appeals from Van Wert Municipal Court
    Trial Court Nos. CRB 2100082 and CRB 2100083
    Judgments Affirmed
    Date of Decision: August 29, 2022
    APPEARANCES:
    Thomas J. Lucente, Jr. for Appellant
    Ben J. Bilimek for Appellee
    Case Nos. 15-21-12, 15-21-13
    SHAW, J.
    {¶1} Defendant-appellant, Marquis J. Graham (“Graham”), brings these
    appeals from the November 29, 2021 judgment entries of the Van Wert Municipal
    Court wherein Graham’s two convictions for endangering children were
    journalized. On appeal, Graham argues that there was insufficient evidence
    presented to convict him of both counts of endangering children, that his convictions
    were against the manifest weight of the evidence, and that he received ineffective
    assistance of trial counsel.
    Background
    {¶2} In late 2020/early 2021, Graham was in a romantic relationship with
    Brittany F. They resided together along with Brittany’s 3-year old son, S.C., in the
    village of Middle Point in Van Wert County. Generally, when Brittany went to work
    for her 12-hour shifts, Graham took care of S.C. Although Graham was not S.C.’s
    biological father, he was trying to be a “parent figure” for him. (Tr. at 153).
    {¶3} On February 4, 2021, while Brittany was at work and S.C. was in
    Graham’s care, S.C. sustained multiple injuries and was vomiting blood. Once
    Brittany came home from work she took S.C. to the emergency room and he was
    treated for his injuries. Graham claimed that S.C. was injured by falling; however,
    the doctor that examined S.C. diagnosed S.C. with “nonaccidental trauma.” (State’s
    Ex. 5). S.C. also told the doctor that Graham had “spanked” him in the head.
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    Case Nos. 15-21-12, 15-21-13
    {¶4} Law enforcement and children’s services investigated the matter and
    during their investigation they learned of a prior incident wherein S.C. sustained
    injuries while solely in Graham’s care. On December 10, 2020, Graham sent a text
    message to Brittany indicating that he had “cracked [S.C.’s] ass legitimately[.]”
    (State’s Ex. 13). Photographs of bruising to S.C. on multiple parts of his body were
    taken near the date in question by S.C.’s step-great-grandmother.
    {¶5} On March 2, 2021, Graham was charged in trial court case
    CRB2100082 with endangering children in violation of R.C. 2919.22(A), a first
    degree misdemeanor. This charge was related to the December 10, 2020 incident.
    On that same date, Graham was charged in trial court case CRB2100083 with
    endangering children in violation of R.C. 2919.22(A), a first degree misdemeanor.
    This charge was related to the February 4, 2021 incident.
    {¶6} Graham pled not guilty to the charges and he proceeded to a
    consolidated bench trial wherein he was convicted in both cases. In trial court case
    CRB2100082 Graham was placed on 2 years of probation and given a suspended
    jail sentence of 180 days. In trial court case CRB2100083 Graham was sentenced
    to serve 180 days in jail. Final judgment entries memorializing Graham’s sentences
    were filed November 29, 2021. It is from these judgments that Graham appeals,
    asserting the following assignments of error for our review.
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    Case Nos. 15-21-12, 15-21-13
    Assignment of Error No. 1
    Appellant’s convictions for child endangerment were against the
    manifest weight of the evidence and contrary to law.
    Assignment of Error No. 2
    The defendant’s right to due process of law was violated inasmuch
    as the convictions for child endangerment w[ere] based on
    insufficient evidence.
    Assignment of Error No. 3
    Defendant was denied the effective assistance of counsel as
    required by the Sixth Amendment to the U.S. Constitution.
    {¶7} We elect to address the assignments of error out of the order in which
    they were raised.
    Second Assignment of Error
    {¶8} In his second assignment of error, Graham argues that there was
    insufficient evidence presented to convict him in both endangering children cases.
    Standard of Review
    {¶9} “Whether the evidence is legally sufficient to sustain a verdict is a
    question of law.” State v. Thompkins, 
    78 Ohio St.3d 380
    , 386 (1997); State v. Groce,
    
    163 Ohio St.3d 387
    , 
    2020-Ohio-6671
    , ¶ 6. Therefore, our review is de novo. In re
    J.V., 
    134 Ohio St.3d 1
    , 
    2012-Ohio-4961
    , ¶ 3. In a sufficiency-of-the-evidence
    inquiry, the question 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 beyond a reasonable doubt. State v. Jenks, 
    61 Ohio St.3d 259
     (1991), paragraph two of the syllabus (superseded by constitutional
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    Case Nos. 15-21-12, 15-21-13
    amendment on other grounds as stated in State v. Smith, 
    80 Ohio St.3d 89
    , 102,
    (1997), fn. 4) following Jackson v. Virginia, 
    443 U.S. 307
    , 
    99 S.Ct. 2781
     (1979).
    “In essence, sufficiency is a test of adequacy.” Thompkins at 386.
    Controlling Statute
    {¶10} In this case Graham was convicted of two counts of endangering
    children in violation of R.C. 2919.22(A), which reads as follows:
    (A) No person, who is the parent, guardian, custodian, person
    having custody or control, or person in loco parentis of a child
    under eighteen years of age * * * shall create a substantial risk to
    the health or safety of the child, by violating a duty of care,
    protection, or support. * * *
    Evidence Presented by the State
    {¶11} Brittany F. went to work shortly before 7 a.m. on February 4, 2021. At
    the time she went to work, her 3-year old son, S.C., had no discernable injuries.
    S.C. was left in the care of Brittany’s live-in boyfriend, Graham.
    {¶12} According to Brittany, at around 10:40 a.m. she received a message
    from Graham that S.C. had “thrown up a large amount.” (Tr. at 132). Graham
    indicated that he and S.C. had been “roughhousing like they usually did” prior to
    S.C. vomiting. Graham was worried because the vomit looked like “coffee
    grounds,” which Brittany was concerned might be blood. (Id.)
    {¶13} Brittany was unable to leave work to return home until 3 p.m. Because
    she worked in the “Covid unit” that day, she showered immediately upon returning
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    Case Nos. 15-21-12, 15-21-13
    home. Afterward, when she observed S.C., she noticed a bruise on his forehead and
    some discoloration with one of his eyes. Brittany asked S.C. what happened and
    S.C. stated that he tripped over his slide. Brittany then took S.C. to the emergency
    room. Graham did not go with her.
    {¶14} S.C. was examined at the hospital and he was found to have bruising
    to his face, and upper left foot. He had superficial excoriations on his face, the back
    of his neck, and above and behind his left ear. S.C. had “deeper contusions at the
    corner of the left eye, lateral to the right eye, chest, and top of foot.” (State’s Ex.
    5).
    {¶15} When the emergency room doctor asked S.C. how he was injured, S.C.
    said that he was “spanked in the head.” (Tr. at 41). The doctor recalled S.C. stating
    that he was held against a wall and at some point he was “thrown down on the floor.”
    (Id.) S.C. identified “Marquis” as the culprit. (Id. at 40). Some tests were run on
    S.C. and photographs of his injuries were taken.
    {¶16} After examining S.C., the doctor felt that the blood in the child’s vomit
    was most likely from blood in the nose dripping into the stomach. The doctor’s
    ultimate diagnosis of S.C. was “nonaccidental trauma.” (State’s Ex. 5).
    {¶17} Meanwhile, once Brittany left home to take S.C. to the emergency
    room, Graham began sending Brittany text messages. At one point Graham sent a
    message to Brittany that read, “* * * I just have a feeling that you think I’m beating
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    Case Nos. 15-21-12, 15-21-13
    your child and your [sic] trying to get answers on what you should do[.]” State’s
    Ex. 13). He then added, “And it’s a strong feeling.” (Id.)
    {¶18} While Brittany and S.C. were at the hospital, Graham sent a text
    message asking for an update. Brittany was busy being interviewed and dealing with
    S.C. so she did not respond often or quickly. Graham then sent a message saying
    “Since you don’t wanna answer I’m packing my shit and I’m leaving I’ll bring your
    car back in the morning or do you want me to find a ride[]?” (Id.) Brittany replied
    that CPS had to be called because of the bruises on S.C. and she could not answer
    at the moment.
    {¶19} Both Brittany and Graham were interviewed by police. Law
    enforcement felt that Graham’s explanations during his interview were not
    consistent with the injuries to S.C. Further, while the matter was being investigated,
    law enforcement became aware of another incident wherein S.C. had been injured
    while in Graham’s care in December of 2020.
    {¶20} S.C.’s “step-great grandmother” testified that in December of 2020 she
    received S.C. to care for him and she found numerous bruises on S.C.’s body,
    including one in a “belt pattern.” She took photographs of the injuries and they were
    introduced into evidence at trial.
    {¶21} Graham acknowledged that S.C. was in his care when he was injured
    in December of 2020, but he claimed that the injuries occurred when S.C. fell off of
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    Case Nos. 15-21-12, 15-21-13
    a swiveling bar stool and hit his head. Despite telling this story to Brittany, S.C.’s
    father, and law enforcement, Graham sent text messages in December that called
    his story into question. On December 3, 2020, Graham sent the following message
    to Brittany regarding S.C.:
    If you want me to treat him the way I was treated growing up he’d
    be covered in bruises by the time you get home and my deal is you
    keep fucking questioning me like I don’t know what I’m doing
    I’m a grown ass man, who’s been down this road more time [sic]
    than you are old so none of this shit ain’t knew [sic] to me but
    fasho [sic] the doors locked and he’s in his room I’m gone[.]
    (State’s Ex. 13).
    {¶22} On December 10, 2020, the following text exchange occurred between
    Graham and Brittany:
    GRAHAM: I figured well I just talked to [S.C.] about yesterday
    and him putting his hands around your next [sic] and he wouldn’t
    give me any other answer besides cause I wanted to so I cracked
    his ass legitimately and he’s gonna spend the whole day in his
    room no toys no tv no nothing cause I don’t play that and if you
    got a problem with that you can find somebody else to play
    stepdad or you can go back to dealing with it yourself but I don’t
    play that shit what so ever [sic] I don’t care how old your [sic]
    never supposed to do that cause your [sic] not getting your way
    ***
    BRITTANY: Babe I wasn’t going to say anything ? As long as he
    gets fed (which I know you’ll do) and gets to go pee, I understand
    his punishment
    ***
    -8-
    Case Nos. 15-21-12, 15-21-13
    GRAHAM: Okay that’s fine but we’re gonna have to make a new
    child because I’m gonna kill the one you got… he was supposed
    to be eating but instead he’s playing the fucking chair and ends
    up falling over with the damn chair and now he has a big bruise
    on the back of his head he said he’s okay and it didn’t hurt but it
    look kinda bad babe
    I didn’t whoop him for it cause him falling was enough I just
    yelled at him for playing in the damn chair we’re gonna have to
    go back to him eating at his little table from now on cause this
    can’t happen again
    Call me if you wanna know more[.]
    (Id.)
    {¶23} A few days later, on December 13, 2020, the following text exchange
    occurred between Graham and Brittany:
    GRAHAM: I already know you think I did it so why won’t you
    just tell me that ?
    BRITTANY: Because I don’t think you did it ? I know you love
    my son and wouldn’t deliberately hurt him
    You’ve claimed him as one of your own before, and I know you
    wouldn’t hurt your kids… it hurts me that you think that I think
    you did it
    GRAHAM: Cause I know you… but whatever might as well get
    blamed for it since everybody already thinks I did it
    BRITTANY: Babe listen to me, we will talk to him and get this
    figured out. You’re not the villain to our little Spider-Man
    GRAHAM: I love the fact you think I be playing or love talking
    to hear myself talk…. So therefore like I said you can handle it all
    again from talkin to his daddy to everything else I’m not doing it
    anymore[.]
    -9-
    Case Nos. 15-21-12, 15-21-13
    (Id.)
    {¶24} It was approximately sometime during the December 2020 dates that
    these text messages were exchanged that the photographs of bruising on S.C.’s body
    were taken by S.C.’s step-great-grandmother.
    Analysis
    {¶25} Graham contends that the preceding evidence presented at trial was
    insufficient to convict him of endangering children as charged in the complaints.
    Specifically, he argues that the evidence did not establish that he was acting “in loco
    parentis” or that he “created a substantial risk to the health or safety of the child,”
    by violating a duty of care, protection, or support. In fact, Graham argues that the
    “bulk” of the evidence presented at trial was in an attempt to show that he abused
    S.C., which he contends could be sufficient for a prosecution of endangering
    children under R.C. 2919.22(B)’s specific “abuse” subsection,1 but the evidence
    could not establish the different elements regarding creating an “environment” that
    was a “substantial risk” to the child as contained in R.C. 2919.22(A). In essence,
    Graham argues that he was charged with the wrong subsection of endangering
    children and that his actions here, even when viewed in the light most favorable to
    the State, did not satisfy the elements of the crimes he was convicted of.
    1
    Revised Code 2919.22(B)(1) reads, “No person shall do any of the following to a child under eighteen
    years of age * * * (1) Abuse the child[.]”
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    Case Nos. 15-21-12, 15-21-13
    {¶26} At the outset, we can readily reject Graham’s argument that he did not
    stand in loco parentis to S.C. While living with Brittany and S.C. would not alone
    make Graham in loco parentis of S.C., State v. Powers, 4th Dist. Scioto No.
    19CA3868, 
    2020-Ohio-7042
    , ¶ 90, Graham undertook the role of sole caretaker of
    S.C. while Brittany worked 12-hour shifts. During these times, Graham was solely
    responsible for bathing the child, feeding the child, disciplining the child, and
    otherwise caring for the child’s well-being. Brittany described S.C.’s relationship
    with Graham as: “[S.C.] knew the difference between a dad and a father, but [S.C.]
    knew that [Graham] was a parent figure that he could have gone to when he needed
    something.” (Tr. at 153).
    {¶27} “A person who stands in loco parentis to a child has assumed similar
    duties to that of a guardian or custodian, only not through a legal proceeding.” State
    v. Noggle, 
    67 Ohio St.3d 31
    , 
    1993-Ohio-189
    . When viewing the evidence in the
    light most favorable to the State, we do not find that insufficient evidence was
    presented to establish that Graham was acting in loco parentis of S.C.
    {¶28} Next, Graham’s contention that acts of affirmative abuse are not
    covered under R.C. 2919.22(A) and must be charged under R.C. 2919.22(B) has
    been directly rejected by multiple Ohio Appellate Courts. In State v. Cook, 1st Dist.
    Hamilton No. C-210142, 
    2021-Ohio-3841
    , ¶ 20, the First District Court of Appeals
    determined that an individual recklessly created a substantial risk to a child’s health
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    Case Nos. 15-21-12, 15-21-13
    under R.C. 2919.22(A)—the same statute that was charged here—where the child
    “was only four years old, [the defendant] lifted him by his neck, slammed him face-
    first onto the trunk of a hot car, and hit him on the head.” In making its finding, the
    First District reasoned that “Acts of affirmative abuse are covered within R.C.
    2919.22(A), including ‘where a defendant has failed to protect the child from harm
    inflicted upon the child while in the defendant's care,’ even when the defendant is
    the person who inflicted the harm.” Id. at ¶ 15, quoting State v. Klofta, 2d Dist.
    Montgomery No. 28690, 
    2020-Ohio-5032
    , ¶ 32; State v. Gaver, 5th Dist. Stark No.
    2015CA00204, 
    2016-Ohio-7055
    .
    {¶29} Cook, and the other Ohio appellate cases cited in Cook establish that
    physical abuse can be properly charged under both R.C. 2919.22(A) and R.C.
    2919.22(B) provided that the elements of the respective statutes are met.
    Importantly, the elements of R.C. 2919.22(A) were found to be met in Cook where
    the victim did not even have visible injuries. Here we have visible, documented,
    injuries to the child that a doctor specifically determined were from “nonaccidental
    trauma.” Thus the evidence in this case was even stronger than what was found to
    be sufficient for a prosecution of R.C. 2919.22(A) in Cook.
    {¶30} In sum, when viewing the evidence in the light most favorable to the
    State as we are directed, we do not find that there was insufficient evidence
    -12-
    Case Nos. 15-21-12, 15-21-13
    presented to convict Graham of two counts of endangering children. For all of these
    reasons, Graham’s second assignment of error is overruled.
    First Assignment of Error
    {¶31} In his first assignment of error, Graham argues that even if there was
    sufficient evidence presented to convict him in both trial court cases, his convictions
    were against the manifest weight of the evidence.
    Standard of Review
    {¶32} In reviewing whether a verdict was against the manifest weight of the
    evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting
    testimony. State v. Thompkins, 
    78 Ohio St.3d 380
    , 387, 
    1997-Ohio-52
    . In doing
    so, this Court must review the entire record, weigh the evidence and all of the
    reasonable inferences, consider the credibility of witnesses and determine whether
    in resolving conflicts in the evidence, the factfinder “clearly lost its way and created
    such a manifest miscarriage of justice that the conviction must be reversed and a
    new trial ordered.” 
    Id.
    {¶33} Nevertheless, a reviewing court must allow the trier-of-fact
    appropriate discretion on matters relating to the credibility of the witnesses. State
    v. DeHass, 
    10 Ohio St.2d 230
    , 231 (1967). When applying the manifest-weight
    standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against
    the conviction,’ should an appellate court overturn the trial court’s judgment.” State
    -13-
    Case Nos. 15-21-12, 15-21-13
    v. Haller, 3d Dist. Allen No. 1-11-34, 
    2012-Ohio-5233
    , ¶ 9, quoting State v. Hunter,
    
    131 Ohio St.3d 67
    , 
    2011-Ohio-6524
    , ¶ 119.
    Evidence Presented by the Defense
    {¶34} Graham testified in his own defense that he initially had a good
    relationship with Brittany and that he was “trying to be [S.C.]’s father, without being
    his father, if that makes sense.” (Tr. at 158). Graham described himself as the cook
    of the house, and indicated that he regularly took care of S.C. while Brittany worked.
    {¶35} As to the December 2020, incident, Graham stated that S.C. was alone
    in the next room when Graham heard a “loud crash.” (Tr. at 159). Graham testified
    that when he came into the room where he heard the crash S.C. was trying to “pick
    the chair up.” (Id.) Graham claimed that he asked S.C. what was wrong and S.C.
    said that he fell. Graham testified that after the incident he called Brittany and S.C.’s
    father to tell them about it. As to his text message where he said that he
    “legitimately” “cracked” S.C., he testified that he did not actually do that despite
    what he said.
    {¶36} Regarding the February 4, 2021 incident, Graham testified that he was
    in the living room when he heard a “crash” from S.C.’s bedroom. Graham went in
    and looked and S.C. was going to the bathroom. Graham testified that he thought
    S.C. had fallen over the slide in his room but he was not sure. Graham emphasized
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    Case Nos. 15-21-12, 15-21-13
    that he had spanked the child and had roughhoused with him but he had never
    intentionally harmed the child.
    Analysis
    {¶37} In arguing that his conviction was against the manifest weight of the
    evidence, Graham again argues that he was essentially charged with the wrong
    endangering children subsection. We rejected this argument already and we do so
    again now. State v. Cook, 1st Dist. Hamilton No. C-210142, 
    2021-Ohio-3841
    , ¶ 20.
    {¶38} Graham also contends that even if there was sufficient evidence to
    show that he was acting in loco parentis of S.C., such a finding was against the
    weight of the evidence. However, Graham’s own testimony only further supported
    the fact that he was acting in loco parentis. He stated that he was trying to be S.C.’s
    father, that he was the cook and caregiver, that he disciplined S.C., and that he was
    alone with S.C. when S.C. was injured. Therefore Graham’s argument is not well-
    taken.
    {¶39} Finally, as to Graham’s claim that he had never intentionally harmed
    S.C., the mental culpability required for the crimes in question was recklessness,
    not purposeful. State v. McGee, 
    79 Ohio St.3d 193
    , 
    1997-Ohio-156
    . The trial court,
    acting as factfinder, was free to examine the evidence, weigh it, determine the
    credibility of the witnesses, including Graham, and find beyond a reasonable doubt
    that Graham acted at least in a reckless manner.
    -15-
    Case Nos. 15-21-12, 15-21-13
    {¶40} In sum, after reviewing all of the evidence, and giving deference to the
    trial court’s credibility determinations, State v. DeHass, 
    10 Ohio St.2d 230
    , 231
    (1967), we do not find that the trial court clearly lost its way or created a manifest
    miscarriage of justice in this matter by convicting Graham of two counts of
    endangering children. Therefore, Graham’s first assignment of error is overruled.
    Third Assignment of Error
    {¶41} In his third assignment of error, Graham argues that he received
    ineffective assistance of trial counsel.
    Standard of Review
    {¶42} A defendant asserting a claim of ineffective assistance of counsel must
    establish: (1) counsel’s performance was deficient or unreasonable under the
    circumstances; and (2) the deficient performance prejudiced the defendant. State v.
    Kole, 
    92 Ohio St.3d 303
    , 306 (2001), citing Strickland v. Washington, 
    466 U.S. 668
    ,
    687, 
    104 S.Ct. 2052
     (1984). In order to show counsel’s conduct was deficient or
    unreasonable, the defendant must overcome the presumption that counsel provided
    competent representation and must show that counsel’s actions were not trial
    strategies prompted by reasonable professional judgment. Strickland at 689; State
    v. Harris, 3d Dist. Allen No. 1-21-30, 
    2021-Ohio-4559
    , ¶ 6.
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    Case Nos. 15-21-12, 15-21-13
    Analysis
    {¶43} Graham first argues that his counsel was deficient because his attorney
    failed to make a Crim.R. 29 motion for acquittal. While it is certainly the better
    practice for an attorney to make a Crim.R. 29 motion for acquittal in order to test
    the evidence in the trial court, there is no resulting prejudice for the failure to make
    such a motion.
    {¶44} When an attorney makes a Crim.R. 29 motion for acquittal it
    technically preserves the sufficiency of the evidence argument under the
    “prejudicial” error standard of review rather than the “plain error” standard of
    review; however, this difference regarding standards with respect to sufficiency of
    the evidence has repeatedly been described as “academic” when considering
    Crim.R. 29 motions on appeal. E.g. State v. Sepulveda, 3d Dist. Mercer No. 10-16-
    03, 
    2016-Ohio-7177
    , ¶ 17; State v. Klein, 3d Dist. Union No. 14-12-09, 2013-Ohio-
    2387, ¶ 30, citing Perrysburg v. Miller, 
    153 Ohio App.3d 665
    , 
    2003-Ohio-4221
    , ¶
    75 (6th Dist.). “Regardless of the standard used, ‘a conviction based on legally
    insufficient evidence constitutes a denial of due process,’ and constitutes a manifest
    injustice.” State v. Klein, 3d Dist. Union No. 14-12-09, 
    2013-Ohio-2387
    , ¶ 30,
    quoting Thompkins, 78 Ohio St.3d at 386–387, citing Tibbs v. Florida, 
    457 U.S. 31
    ,
    45, 
    102 S.Ct. 2211
     (1982), and Jackson v. Virginia, 
    443 U.S. 307
    , 
    99 S.Ct. 2781
    -17-
    Case Nos. 15-21-12, 15-21-13
    (1979). Thus under either the prejudicial error standard or the plain error standard,
    a conviction based upon insufficient evidence would result in reversal.
    {¶45} Here, we have reviewed the evidence presented and found it to be
    sufficient to support the convictions on the state’s evidence alone, even without
    consideration of Graham’s testimony, thus a Crim.R. 29 motion would not have
    been properly granted in this matter. Therefore we do not find ineffective assistance
    of counsel for trial counsel’s failure to raise this issue.
    {¶46} Graham next claims that his attorney was ineffective for failing to call
    other potential witnesses. Specifically, he suggests that his attorney should have
    called a witness to show that S.C. was anemic and prone to bruising. Notably,
    Graham’s attorney asked questions at trial about whether S.C. was anemic and he
    never received a response that S.C. was actually anemic. We do not find ineffective
    assistance of counsel based on speculation that another witness would have testified
    that S.C. was anemic. Moreover, even if S.C. was anemic and he did bruise easily,
    it would not change the facts of what occurred, and we find no resulting prejudice.
    Therefore, Graham’s argument is not well-taken, and Graham’s third assignment of
    error is overruled.
    -18-
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    Conclusion
    {¶47} For the foregoing reasons Graham’s assignments of error are overruled
    and the judgments of the Van Wert Municipal Court are affirmed.
    Judgments Affirmed
    ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
    /jlr
    -19-