State v. Houston , 2017 Ohio 1122 ( 2017 )

[Cite as State v. Houston, 2017-Ohio-1122.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 16AP-157
v. : (C.P.C. No. 15CR-2636)
Zachary W. Houston, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 28, 2017
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee.
On brief: Wolfe Van Wey & Associates, LLC, and
Stephen T. Wolfe, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Zachary W. Houston, appeals a judgment of the
Franklin County Court of Common Pleas, filed on February 16, 2016. He was sentenced
to 30 months in prison following a jury verdict by which he was found guilty of domestic
violence. We conclude that Zachary's1 convictions were not against the manifest weight of
the evidence and were supported by sufficient evidence. The evidence does not show that
the prosecutor engaged in misconduct. Defense counsel was not ineffective. And,
although disorderly conduct as set forth in R.C. 2917.11(A)(1) is a lesser-included offense
of domestic violence as set forth in R.C. 2919.25(A), the trial court did not abuse its
discretion in failing to instruct because, on the facts of this case, the jury could not have
1Because Zachary Houston and the victim, Norma Houston, share a last name we shall, for clarity,
henceforth refer to each by their first name, intending no informality or disrespect.
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No. 16AP-157
reasonably concluded that Zachary did not commit domestic violence. For these reasons,
we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On May 15, 2015, Zachary Houston was involved in an altercation with his
wife, Norma Houston, in their house on Gilbert Street. (Jan. 19, 2016 Tr. at 28.) On
June 1, 2015, a Franklin County Grand Jury indicted Zachary for one third-degree felony
count of domestic violence as a result of this incident. (June 1, 2015 Indictment.) Zachary
pled not guilty on June 3, 2015. (June 3, 2015 Plea Form.) The Franklin County Court of
Common Pleas held a jury trial in the case on January 19 and 20, 2016. (Tr. in passim).
{¶ 3} Norma testified first in the trial. She testified that on May 15, 2015, her
husband, Zachary, had been out drinking with a work friend and later went to his sister's
house. (Tr. at 28-30.) Concerned that Zachary might drink too much, Norma telephoned
and asked Zachary to bring the car back. Id. After Zachary returned home, an argument
ensued. Id. When he would not settle himself, Norma called the police for the first time.
Id. at 30. The police came, advised the couple to separate to give Zachary time to calm
down. Id. at 30-31. Then they left. Id.
{¶ 4} Once the police left, Zachary began threatening Norma, telling her he had a
gun and was going to kill her and her brothers. Id. at 31. She grew tired of arguing so she
once again called the police and asked them to come arrest him. Id. The police again
arrived, told her to stay away from Zachary, and again advised giving him time to calm
himself. Id. at 31-32.
{¶ 5} Norma testified that when the police left for the second time Zachary
jumped on her and began hitting her in the head and in the face with a closed fist. Id. at
32, 34. He also threatened to beat her brains out with a Heineken bottle and to beat her
face to a pulp. Id. at 33. She telephoned the police for the third time. Id. Zachary left the
home before the police arrived. Id. Norma spoke with the police and went to bed. Id. at
33-34. Sometime later, as she was lying in bed, Norma heard Zachary being arrested
outside. Id. at 34.
{¶ 6} Three 911 telephone calls were played during trial. One is essentially silent
and Norma testified that during that call Zachary seized the phone from her and
destroyed it. (Tr. at 69-73; Def. Ex. 3.) In a different call, Norma told the dispatcher that
Zachary had not hit her but had threatened her with a bottle. (Tr. at 35-38; State's Ex. A.)
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In another 911 recording, Norma states that Zachary hit her in the face and may possess a
gun or knife. (Tr. at 39-43; State's Ex. A.) Norma identified various pictures introduced
as exhibits which she said depicted the injuries she sustained, including a black eye. (Tr.
at 45; State's Ex. B.) She also testified (without objection) that Zachary had been
convicted and sent to prison for assaulting her on three prior occasions, July 2, 2000,
November 9, 2004, and June 14, 2005. (Tr. at 49-50.) Exhibits were introduced to
confirm these prior convictions. (Exs. C1-E2) (indictments/complaints and judgment
entries showing previous convictions).
{¶ 7} Norma admitted that her eyes always look like they have black circles under
them. (Tr. at 85). She admitted she bit Zachary on the thumb in defending herself. Id. at
43, 82-83. She stated that she never saw a gun and that Zachary did not threaten her with
a knife. Id. at 43-44. Norma initially testified that she refused to speak to a defense
investigator. Id. at 51. However, when a tape of the interaction between her and the
investigator was played to refresh her memory, she admitted that she told the investigator
that the prosecutor had told her not to speak to anyone about the incident. Id. at 64-66.
After that admission, however, she explained that she did not want to speak to the
investigator and essentially used the prosecutor as an excuse. Id. at 67-68.
{¶ 8} The next witness was a Columbus police officer. Id. at 102. The officer
testified that she spoke to Norma at Norma's house on Gilbert Street on the night of the
incident. Id. at 104. The officer said Norma appeared upset and relayed she had been
threatened and hit by her husband. Id. The officer also personally observed injuries and
swelling to Norma's face. Id. at 106.
{¶ 9} The officer admitted she had not observed a Heineken bottle or signs of
drinking. Id. at 114. She also explained, when questioned about a report she authored
known as a "lethality screen," that Norma had said "no" to the question of whether she
thought Zachary might kill her. Id. at 110-11. Since the defense questioned the officer
about the report, the trial court gave the prosecution latitude to ask further questions
about the report and obtain Norma's affirmative responses to questions about other
aggressive things Zachary had threatened or done on this and other occasions. Id. at 118-
19.
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{¶ 10} Another police officer dispatched to Gilbert Street that evening testified. Id.
at 123. When he arrived, Zachary was not present but the officer saw Zachary returning to
the house around 2:00 a.m. and arrested him. Id. at 124. The officer testified that
Zachary appeared intoxicated and was combative, but he admitted that nothing in the
police reports confirmed this. Id. at 124-26.
{¶ 11} The final witness to testify (and the first and only witness called by the
defense) was a police detective who interviewed Zachary in jail the morning of his arrest.
Id. at 145-47. The detective testified that Zachary spoke to him voluntarily but was
belligerent and excitable throughout the interview. Id. at 156-57. He testified that he
noted a cut on Zachary's thumb but took no pictures of Zachary or any injuries. Id. at 153.
{¶ 12} There are certain procedural incidents that occurred at trial and are
potentially relevant to Zachary's assignments of error. First, defense counsel had given to
the prosecutor a summary of the failed attempt to interview Norma in an attempt to
resolve the case short of trial. Id. at 61-62. Second, the trial court cautioned defense
attorney at two points during the trial about alleged disrespectful demeanor and tone. Id.
at 151, 154-55. Third, the trial court denied two motions acquittal made by the defense,
one following the close of the prosecution's case and the other at close of all evidence. Id.
at 141, 161-62. Finally, Zachary's defense counsel requested a jury instruction on a lesser-
included offense of disorderly conduct, but the trial court denied the request, finding that
the evidence could not support acquittal on the crime charged with a simultaneous
conviction on the lesser offense of disorderly conduct. Id. at 96-101, 162-65.
{¶ 13} After the jury convicted Zachary, the trial court held a sentencing hearing on
February 12, 2016. Noting Zachary's considerable prior record, the trial court sentenced
him to 30 months in prison and entered judgment in the record on February 16. (Tr. at
217-28; Feb. 16, 2016 Jgmt. Entry.) Zachary now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 14} Zachary presents five assignments of error for review:
[1.] THE APPELLANT WAS PREJUDICED BY INEFFECTIVE
ASSISTANCE OF COUNSEL
[2.] THE TRIAL COURT ERRED WHEN IT DECLINED TO
INSTRUCT THE JURY ON THE LESSER INCLUDED
OFFENSE OF DISORDERLY CONDUCT
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[3.] THE APPELLANT DID NOT RECEIVE A FAIR TRIAL
DUE TO PROSECUTORIAL MISCONDUCT
[4.] THE EVIDENCE PRESENTED AT TRIAL WAS
INSUFFICIENT TO SUPPORT THE CONVICTIONS AND
THE TRIAL COURT ERRED WHEN IT OVERRULED
APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO
CRIMINAL RULE 29
[5.] THE JURY'S VERDICTS WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE
We address these assignments of error out of order for ease of discussion.
III. DISCUSSION
A. Fourth and Fifth Assignments of Error—Whether the Convictions were
Supported by Sufficient Evidence or were Against the Manifest Weight
of the Evidence
{¶ 15} The Supreme Court of Ohio has "carefully distinguished the terms
'sufficiency' and 'weight' * * * declaring that 'manifest weight' and 'legal sufficiency' are
'both quantitatively and qualitatively different.' " Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78 Ohio St.3d 380 (1997),
paragraph two of the syllabus.
{¶ 16} Sufficiency is:
"[A] term of art meaning that legal standard which is applied
to determine whether the case may go to the jury or whether
the evidence is legally sufficient to support the jury verdict as
a matter of law." * * * In essence, sufficiency is a test of
adequacy. Whether the evidence is legally sufficient to sustain
a verdict is a question of law.
Eastley at ¶ 11, quoting Thompkins at 386; Black's Law Dictionary 1433 (6th Ed.1990).
"In reviewing a record for sufficiency, '[t]he relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.' " State v.
Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St.3d
259 (1991), paragraph two of the syllabus.
{¶ 17} By contrast:
Weight of the evidence concerns "the inclination of the
greater amount of credible evidence, offered in a trial, to
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No. 16AP-157
support one side of the issue rather than the other. It indicates
clearly to the jury that the party having the burden of proof
will be entitled to their verdict * * * . Weight is not a question
of mathematics, but depends on its effect in inducing belief."
(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387; Black's at 1594. In manifest
weight analysis "the appellate court sits as a 'thirteenth juror' and disagrees with the jury's
resolution of the conflicting testimony." Thompkins at 388, quoting Tibbs v. Florida, 457
U.S. 31, 42 (1982). " 'The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Id.
at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 18} As relevant to this case, the Ohio Revised Code defines the crime of
domestic violence as follows:
No person shall knowingly cause or attempt to cause physical
harm to a family or household member.
R.C. 2919.25(A). Physical harm in this context means "any injury, illness, or other
physiological impairment, regardless of its gravity or duration." R.C. 2901.01(A)(3). In
addition, if the offender has been twice or more convicted of domestic violence or similar
offenses, R.C. 2919.25(D)(4) requires that a new conviction of the offense is no longer a
first-degree misdemeanor but a third-degree felony. R.C. 2919.25(D)(2) and (4).
{¶ 19} There is no dispute that Norma was Zachary's family and household
member at the time of the offense. (Tr. at 28-29.) There is also no dispute that Zachary
had at least two (three, in fact) prior convictions for domestic violence. (Tr. at 49-50; Exs.
C1-E2) (domestic violence incidents on July 2, 2000, November 9, 2004, and June 14,
2005). The question for the jury was whether Zachary "knowingly caus[ed] or
attempt[ed] to cause" Norma "any injury * * * regardless of its gravity or duration." R.C.
2919.25(A); 2901.01(A)(3).
{¶ 20} Norma testified that at one point during the argument, on the evening in
question, Zachary jumped on her and began hitting her in the head and in the face with a
closed fist. (Tr. at 32, 34.) Norma identified various photographs of herself that she said
depicted the injuries she sustained from Zachary, including a black eye. (Tr. at 45; State's
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No. 16AP-157
Ex. B.) The evidence at trial was sufficient to support Zachary's conviction, because,
"viewing the evidence in a light most favorable to the prosecution, a[] rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt."
Monroe at ¶ 47.
{¶ 21} As for manifest weight of the evidence, there was some evidence that was
not favorable to the prosecution. For example, the first two times Norma telephoned the
police, she did not convey that the situation was critical, and she testified that she called
because she was annoyed at Zachary and wanted him to be taken away. (Tr. at 30-32.)
Only after the police had twice responded to her calls but not arrested Zachary, did she
allege that he had hit her. Id. at 32-34. Norma admitted that her eyes always look like
they have black circles under them and the photographs do not definitively show that she
sustained one or more black eyes. Id. at 85; State's Ex. B. Norma admitted she bit
Zachary on the thumb alleging self-defense. Id. at 43, 82-83. While Norma alleged that
Zachary had threatened her with a beer bottle and a gun, the police found no gun, beer
bottles, or other evidence of drinking in the home. Id. at 31, 33, 114. Plus, Norma told
police that she did not think Zachary would try to kill her. Id. at 110-11.
{¶ 22} But Norma was unequivocal in her testimony that Zachary hit her in the
face with his fist. Id. at 32, 34. The jury also heard Norma report this in a somewhat
hysterical tone in a recorded 911 call she made shortly after the incident is alleged to have
occurred. (Tr. at 39-42; State's Ex. A.) Norma identified various photos of herself that
she said depicted the injuries she sustained from being hit by Zachary, including a black
eye. (Tr. at 45; State's Ex. B.) A police officer testified that Norma appeared upset when
they responded to her call at Zachary's and her home; the testimony (without any hearsay
objection) confirmed that her complaint was that she had been threatened and hit by her
husband. Id. 104. The officer testified to observing injuries and swelling to Norma's face.
Id. at 106. While the photographs may not conclusively show one or more exact injuries
as Norma described them, jurors could find that they portrayed some swelling, redness,
and blackening. (State's Ex. B.) Under these circumstances, we cannot say that "the jury
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered." Thompkins at 387.
{¶ 23} We overrule Zachary's fourth and fifth assignments of error.
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B. Third Assignment of Error—Whether Prosecutorial Misconduct
Deprived Zachary of a Fair Trial
{¶ 24} "To evaluate allegations of prosecutorial misconduct, we 'must determine
(1) whether the prosecutor's conduct was improper and (2) if so, whether it prejudicially
affected [the defendant's] substantial rights.' " State v. Thompson, 141 Ohio St.3d 254,
2014-Ohio-4751, ¶ 162, quoting State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128,
¶ 121. Zachary argues that the prosecutor engaged in misconduct by ordering a witness
not to speak to an investigator hired by the defense. (June 9, 2016 Zachary Brief at 11-13.)
{¶ 25} A witness in Ohio has a right to refuse to submit to a pretrial interview when
it is his or her own decision and he or she is not compelled by subpoena or other lawfully
binding notice. State v. Zeh, 31 Ohio St.3d 99, 102-03 (1987). However a prosecutor may
not obstruct access to a witness or advise the witness not to cooperate with the defense.
Id.; State v. Lundgren, 11th Dist. No. 90-L-15-140 (Sept. 1 1993) (" 'A prosecutor should
not discourage or obstruct communication between prospective witnesses and defense
counsel. It is unprofessional conduct for the prosecutor to advise any person or cause any
person to be advised to decline to give to the defense information which such person has
the right to give.' ABA Standards for Criminal Justice, The Prosecution Function,
Standard 3-3.1(c)").
{¶ 26} At trial, Norma testified on cross-examination about her decision not to talk
to Zachary's defense counsel's investigator:
Q. * * * Ms. Houston, do you remember when my
investigator came to your house back in July?
A. Yeah.
Q. Does it sound like about July 9?
A. I don't remember. I don't know what -- I can't think of
what date.
Q. I am sorry, July 7?
A. I don't know, but I remember a guy coming out.
Q. You do remember my investigator?
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No. 16AP-157
A. If he is your investigator. A guy did come to my house,
and he asked could he talk to me, and I told him I didn't
want to talk.
Q. Okay. You told him that someone in the prosecutor's
office told you not to talk to us?
A. I said they told me I did not have to talk to him.
Q. He asked you if you would talk, right?
A. He asked me could he talk to me, and I told him no.
Q. And you said that someone told you not to speak to
anyone?
A. They told me I did not have to talk -- they didn't tell me I
couldn't talk to him. They told me I did not have to talk to
him. And that is what I chose not to do, not talk to him.
Q. Ms. Houston, you know that my investigator was
recording that conversation, right?
A. Well, if he did, I mean.
Q. That is actually not what you told him?
A. Well, play it.
(Tr. at 51-52.)
{¶ 27} After some discussion the recording was played outside the presence of the
jury. On the recording Norma said the following:
MALE VOICE: Good morning. Is Norma Houston here?
FEMALE VOICE: Yes.
MALE VOICE: Are you Norma?
FEMALE VOICE: Yes.
MALE VOICE: (Unintelligible) with the Franklin County
Public Defender's office. I am investigating
a case involving Zachary Houston.
FEMALE VOICE: Yes.
MALE VOICE: I understand you are in a domestic
violence case.
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No. 16AP-157
FEMALE VOICE: Yes.
MALE VOICE: Okay. I want to get some information from
you regarding what happened.
FEMALE VOICE: Who are you?
MALE VOICE: I am with the Franklin County Public
Defender's office.
FEMALE VOICE: Okay.
MALE VOICE: I am an investigator there. I work with the
attorney that represents Zach on the case.
FEMALE VOICE: I am not supposed to talk to no one.
MALE VOICE: Okay. Did somebody tell you that?
FEMALE VOICE: Yeah.
MALE VOICE: Who told you you couldn't?
FEMALE VOICE: My -- the prosecutor.
MALE VOICE: The prosecutor. Okay. Did they tell you you
couldn't talk to anybody, or it was up to
you?
FEMALE VOICE: Told me don't talk to nobody.
MALE VOICE: Okay. Do you know the name of the
prosecutor you spoke to?
FEMALE VOICE: I don't know the name.
Id. at 64-66.
{¶ 28} After listening to the recording and apparently refreshing her memory
Norma testified to explain the discrepancy as follows:
Q. Ms. Houston, you had an opportunity to listen to the
recording?
A. Uh-huh.
Q. In it you did say you were not supposed to speak to
anyone?
A. Right.
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No. 16AP-157
Q. Earlier you said that is not what you said, right?
A. I said that I was told that I did not have to speak to
anyone. But that was my choice that day, because I don't
know why you sent someone to my house. So I felt that I
could say what I wanted to say and then he asked who
said that. I didn't call no names because that was me
speaking.
Q. So you are saying that nobody did tell you that?
A. They told me I did not have to speak to you or whoever.
Q. Okay.
A. But when he came to my door, it was my choice to say
what I wanted to say. I did not call no name of nobody.
Q. I understand that, Ms. Houston. We could agree that you
did say that you were told not to speak to anyone?
A. That is what I said on there.
Q. The investigator did explain to you you could talk to
anyone you wanted?
A. But I didn't want to talk to him.
Id. at 67-68.
{¶ 29} Apparently, Norma's testimony ultimately was that she did not want to
speak to the investigator and used the unnamed prosecutor as an excuse for refusing.
This does not support Zachary's assignment of error of prosecutorial misconduct that the
prosecutor instructed Norma not to cooperate with the defense. Because we cannot find
that "the prosecutor's conduct was improper," we cannot reach the question of "whether it
prejudicially affected [the defendant's] substantial rights." Thompson at ¶ 162.
{¶ 30} Zachary's third assignment of error is overruled.
C. First Assignment of Error—Whether Trial Counsel was Ineffective
{¶ 31} Ineffective assistance of counsel claims are assessed using the two-pronged
approach set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). "First, the
defendant must show that counsel's performance was deficient. * * * Second, the
defendant must show that the deficient performance prejudiced the defense." Id. at 687.
The failure to make either showing defeats a claim of ineffective assistance of counsel.
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State v. Bradley, 42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697. ("[T]here is no
reason for a court deciding an ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the inquiry if the defendant makes an
insufficient showing on one.").
{¶ 32} Zachary argues his counsel was ineffective in three ways. First, he argues
that his counsel was ineffective because he gave the prosecution a summary of the defense
investigator's attempted interview with Norma before the trial and that this was
unnecessary. (Zachary Brief at 6-7.) Second, he argues that his counsel erred by asking
an officer to read from her report during her testimony and this opened the door for the
jury to learn of other details in the report. Id. at 7-8. Third, Zachary argues that his
counsel's demeanor was inappropriate based on a caution from the trial judge. Id. at 8.
1. Sharing the Summary of the Investigator's Interview
{¶ 33} The trial court questioned Zachary's counsel outside the presence of the jury
why he provided to the prosecutor before trial a summary of his investigator's attempt to
interview Norma. Zachary's counsel responded:
Maybe it was a lapse in judgment, Your Honor. Believe me, I
will not be providing them in the future, but maybe it was a
gesture of good will at the time, because I was trying to
advance this case and resolve it short of a trial, and
considering the questioning that I am getting into, I thought
maybe that would help, the state could see what my
investigator talked about.
(Tr. at 61-62.)
{¶ 34} "In evaluating counsel's performance, 'a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances the challenged action "might be considered sound trial strategy." ' " State
v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 37, quoting Strickland at 689;
Michel v. Louisiana, 350 U.S. 91, 101 (1955). Providing the investigative summary before
trial could have been a "lapse in judgment" so as to allow the prosecutor to prepare her
witness to be cross-examined on the statement. (Tr. at 61.) But given the summary's
references to Norma's discussion with the prosecutor related to her refusal to talk to the
defense investigator it could also have been helpful to "advance th[e] case and resolve it
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No. 16AP-157
short of a trial," which, in light of the ultimate outcome of the trial, may have been
beneficial to Zachary. Id. at 62. In these circumstances, tendering the investigative
summary to the prosecution in advance of the trial was not ineffective representation, but
rather, a legitimate strategy.
2. Asking Officer Questions about Contents of "Lethality Screen"
{¶ 35} During cross-examination of one of the police officers called as a witness by
the State, Zachary's counsel questioned the officer about a standard domestic violence
report she filled out known as a "lethality screen." Id. at 110-11. Zachary's counsel was
able to elicit that Norma had said "no" to the question of whether she thought Zachary
might kill her. Id. But opening up testimony about the report the trial court gave the
prosecution latitude to ask questions about the report on redirect and place before the
jury other potentially damaging information in the form of Norma's affirmative responses
to questions about other aggressive things Zachary had done and threatened. Id. at 118-
19. Following that, Zachary's counsel went over the remaining responses on the form with
the police officer, and he was able to elicit Norma's negative answers about whether
Zachary had done things like tried to kill himself, spied on her, or left threatening
messages. Id. at 120-21. Defense counsel's questioning also revealed that Zachary was
not employed, according to Norma's answers on the form. Id. This could have been
significant to the jury as a barometer of Norma's credibility, since Norma testified that
Zachary had been drinking with his friend from work before he hit her. Compare id. at
120-21 with id. at 28.
{¶ 36} Defense counsel's questions about the "lethality screen" both helped and
hurt Zachary's defense. While things for the most part look different in hindsight, at the
time of trial Zachary's defense counsel's questions about the "lethality screen" were a
legitimate strategic decision and not deficient performance. See Roush at ¶ 37, quoting
Strickland at 689; Michel at 101.
3. Whether the Fact that the Trial Court Cautioned Counsel Means that
Counsel was Ineffective
{¶ 37} The trial court cautioned defense counsel at several junctures during trial
about counsel's demeanor and tone. Concerning a duty to disclose to the prosecution, the
recorded attempt by the defense investigator to interview the victim, the trial court said:
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No. 16AP-157
I am just amazed at the kind of flippant way in which we are
having this conversation. You almost seem to suggest that
because you provided the case law five months ago that she
should not be raising an objection today. I am flabbergasted.
(Tr. at 59.) Defense counsel argued that police witnesses who appeared as witnesses at
trial had testified about what witnesses had told them. Counsel stated that he should be
able to ask similar questions of the police witness he called. The trial court responded:
I have been here. I get that. You don't have to talk down to me.
I got a law license too. Everybody has a license here.
Id. at 151. Finally, when defense counsel apparently tossed his tablet onto defense counsel
table after finishing questioning, the trial court excused the jury and then said the
following:
Let me say this, Mr. [Defense Counsel]. You may not like my
rulings, but I don't do tablet tossing. I don't do statements
that are in my opinion disrespectful or allow behaviors that
are disrespectful to this court.
I have been incredibly patient. I have tolerated a lot that I
have seen because I do not want to in any way jeopardize
Mr. Houston's standing with this jury. But because you don't
like the way that I rule, you don't have the luxury or the option
of tossing your tablet on counsel table when you have
completed questioning. I am over it. Do you understand what
I am saying?
Id. at 154.
{¶ 38} The transcript we have reviewed does not describe nuances like tone or
body language that the trial judge apparently found offensive. Nor does it capture what,
other than the tablet-toss, defense counsel may have done to earn the apparent ire of the
trial court. But even if we assume for the sake of argument that defense counsel's attitude
somehow constituted deficient performance under Strickland, we cannot discern, and
Zachary's brief does not explain, why the result would have been different had counsel not
employed the mannerisms that apparently annoyed the judge. State v. Griffin, 10th Dist.
No. 10AP-902, 2011-Ohio-4250, ¶ 42, quoting Bradley at paragraph three of the syllabus
(" 'To show that a defendant has been prejudiced by counsel's deficient performance, the
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No. 16AP-157
defendant must prove that there exists a reasonable probability that, were it not for
counsel's errors, the result of the trial would have been different.' ").
{¶ 39} Zachary's first assignment of error is overruled.
D. Second Assignment of Error—Whether the Trial Court Should Have
Instructed on the Lesser-Included Offense of Disorderly Conduct
{¶ 40} Zachary argues that disorderly conduct is a lesser-included offense of
domestic violence and, on the facts of this case, it was error for the trial court to have
failed to give an instruction on that offense when he requested it. (Zachary Brief at 9-11.)
"Requested jury instructions should ordinarily be given if they are correct statements of
law, if they are applicable to the facts in the case, and if reasonable minds might reach the
conclusion sought by the requested instruction." State v. Adams, 144 Ohio St.3d 429,
2015-Ohio-3954, ¶ 240, citing State v. Griffin, 141 Ohio St.3d 392, 2014-Ohio-4767, ¶ 5;
Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591 (1991). We review such issues for
abuse of discretion. Adams at ¶ 240, citing State v. Wolons, 44 Ohio St.3d 64, 68 (1989).
However, "no court has the authority, within its discretion, to commit an error of law."
JPMorgan Chase Bank, N.A. v. Liggins, 10th Dist. No. 15AP-242, 2016-Ohio-3528, ¶ 18,
quoting State v. Akbari, 10th Dist. No. 13AP-319, 2013-Ohio-5709, ¶ 7, citing State v.
Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 70.
{¶ 41} It is a question of law whether disorderly conduct is a lesser-included
offense of domestic violence.2 State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, ¶ 6
(calling the inquiry a "purely legal question"). To determine whether one offense is a
lesser-included offense of another requires the following analysis:
[A] court shall consider whether one offense carries a greater
penalty than the other, whether some element of the greater
offense is not required to prove commission of the lesser
offense, and whether the greater offense as statutorily defined
cannot be committed without the lesser offense as statutorily
defined also being committed.
State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, ¶ 26; see also R.C. 2945.74; Crim.R.
31(C). When there are multiple statutorily defined alternative ways of committing a
greater offense, whether the greater offense cannot be committed without also
2We note that the State did not contest this point in the trial court. (Tr. at 97-98.) But it is an issue of law
appropriate for discussion and analysis.
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No. 16AP-157
committing the lesser offense must be considered as to each of the alternative ways to
commit the greater offense. State v. Smith, 117 Ohio St.3d 447, 2008-Ohio-1260,
paragraph one of the syllabus. If at least one alternative of the greater offense cannot be
committed without also committing the lesser offense, as to that alternative the analysis
concerning the lesser offense is satisfied. Id. at ¶ 28.
{¶ 42} Because of Zachary's repetitive crimes of domestic violence, this particular
incident was indicted as domestic violence, a third-degree felony and punishable by up to
36 months in prison. R.C. 2919.25(A), (D)(4); 2929.14(A)(3)(b). Disorderly conduct may
be a minor misdemeanor, but at most, a fourth-degree misdemeanor, and it is not
punishable by any term of imprisonment. R.C. 2917.11(A)(1), (E)(2), (E)(3)(a);
2929.26(D). The offense of domestic violence carries a greater penalty and is thus the
"greater" offense (as opposed to the "lesser offense").
{¶ 43} Domestic violence also requires proof of other elements not present in the
offense of disorderly conduct. The Ohio Revised Code prohibits disorderly conduct such
that:
No person shall recklessly cause inconvenience, annoyance, or
alarm to another by doing any of the following:
(1) Engaging in fighting, in threatening harm to persons or
property, or in violent or turbulent behavior.
R.C. 2917.11(A)(1). Domestic violence requires proof that a person "knowingly cause[d] or
attempt[ed] to cause physical harm to a family or household member." R.C. 2919.25(A).
The required mental state for the commission of domestic violence is "knowingly" as
opposed to "recklessly" for disorderly conduct. Domestic violence requires "physical
harm" while disorderly conduct must result in "inconvenience, annoyance, or alarm." The
object of domestic violence is a "family or household member" rather than simply,
"another" for disorderly conduct. Compare R.C. 2919.25(A) with 2917.11(A)(1).
{¶ 44} It is axiomatic that committing assault also involves committing disorderly
conduct. This Court has reasoned:
Because a person will necessarily cause inconvenience,
annoyance or alarm to another by causing or attempting to
cause them physical harm, and because recklessly is a lesser
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No. 16AP-157
mental state than knowingly, assault cannot be committed
without also committing disorderly conduct.
State v. Keith, 10th Dist. No. 08AP-28, 2008-Ohio-6122, ¶ 32, citing State v. Heffner, 2d
Dist. No. 16230 (June 6, 1997); State v. Roberts, 7 Ohio App.3d 253, 254 (1st Dist.1982).
"Assault" is in relevant part "knowingly caus[ing] or attempt[ing] to cause physical harm
to another." R.C. 2903.13(A). Domestic violence is in relevant part "knowingly caus[ing]
or attempt[ing] to cause physical harm to a family or household member." R.C.
2919.25(A).
{¶ 45} Domestic violence in R.C. 2919.25(A) is essentially assault with the added
element that the person assaulted is a "family or household member." Since committing
assault necessarily involves the commission of disorderly conduct, committing domestic
violence (a nuanced form of assault) also involves committing disorderly conduct. See
Cleveland Heights v. Cohen, 8th Dist. No. 101349, 2015-Ohio-1636, ¶ 46 (noting
similarities between assault and domestic violence and concluding that the similarities
provide support for the view that disorderly conduct is a lesser included of domestic
violence); see also State v. Juntunen, 10th Dist. No. 09AP-1108, 2010-Ohio-5625, ¶ 10
(remarking that the jury found the defendant "guilty of domestic violence and the lesser
included offense of assault").
{¶ 46} We hold that disorderly conduct as set forth in R.C. 2917.11(A)(1) is a lesser-
included offense of domestic violence as set forth in R.C. 2919.25(A). In so holding, we
note that, although there are some differences of opinion on this issue in Ohio, our view is
the majority view and tends to comport with the updated test determined by the Supreme
Court and set forth in Evans at ¶ 26. Compare Cohen at ¶ 38; In re S.W., 2d Dist. No.
24525, 2011-Ohio-5291, ¶ 37; State v. Maynard, 4th Dist. No. 10CA43, 2012-Ohio-786,
¶ 27; State v. Golding, 11th Dist. No. 2008-L-049, 2009-Ohio-1437, ¶ 41; State v. Berry,
12th Dist. No. CA2006-11-133, 2007-Ohio-7082, ¶ 20; with State v. Poppe, 3d Dist. No. 2-
04-40, 2006-Ohio-1994, ¶ 31-32, citing State v. Schaefer, 2d Dist. No. 99 CA 88 (Apr. 28,
200); State v. Blasdell, 155 Ohio App.3d 423, 2003-Ohio-6392, ¶ 16-23 (7th Dist.), citing
Schaefer; see also Cleveland v. Hall, 8th Dist. No. 101820, 2015-Ohio-2698, ¶ 35-40
(distinguishing Blasdell and Schaefer as predating Evans); In re S.W. at ¶ 29-37
(explaining that Evans undermined Schaefer). The Supreme Court has held that
disorderly conduct is a lesser-included offense of domestic violence although the
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No. 16AP-157
particular alternative form of domestic violence at issue was the prohibition that "[n]o
person by threat of force, shall knowingly cause a family or household member to believe
that the offender will cause imminent physical harm to the family or household member."
Shaker Heights v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, ¶ 6; R.C. 2919.25(C).
But all of this is not dispositive of the question presented by Zachary's assignment of
error: Should the trial court have instructed the jury on the lesser-included offense of
disorderly conduct?
{¶ 47} "[T]he mere fact that an offense is a lesser included offense of a charged
offense does not mean that the court must instruct on both offenses." Keith at ¶ 35, citing
State v. Wilkins, 64 Ohio St.2d 382, 387 (1980); State v. Easley, 10th Dist. No. 07AP-578,
2008-Ohio-468, ¶ 59.
"Even though an offense may be statutorily defined as a lesser
included offense of another, a charge on such lesser included
offense is required only where the evidence presented at trial
would reasonably support both an acquittal on the crime
charged and a conviction upon the lesser included offense."
State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286,
paragraph two of the syllabus. In making this determination,
the court must view the evidence in a light most favorable to
defendant. State v. Smith (2000), 89 Ohio St.3d 323, 331,
2000 Ohio 166, 731 N.E.2d 645; State v. Wilkins (1980), 64
Ohio St.2d 382, 388, 18 O.O.3d 528, 415 N.E.2d 303.
State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶ 133.
{¶ 48} Concerning Zachary's indictment for domestic violence, the key question is
whether the jury could have found that Zachary did not "knowingly cause or attempt to
cause physical harm to" Norma but did "recklessly cause inconvenience, annoyance, or
alarm to" Norma by "threatening harm," or "in violent or turbulent behavior." R.C.
2919.25(A); 2917.11(A)(1); see also R.C. 2901.01(A)(3) (defining "physical harm" as "any
injury, illness, or other physiological impairment, regardless of its gravity or duration").
{¶ 49} Norma testified that at one point, while arguing, Zachary jumped on her
and hit her in the head and in the face with a closed fist. (Tr. at 32, 34). She said the same
thing in a somewhat hysterical 911 call shortly after the altercation occurred. (Tr. at 39-
42; State's Ex. A.) Norma identified herself and her claimed injuries, including a black
eye, in photographs introduced at trial. (Tr. at 45; State's Ex. B.) A police officer testified
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No. 16AP-157
that Norma appeared upset when they arrived at Norma and Zachary's home and stated
without hearsay objection that Norma conveyed she had been threatened and hit by her
husband. (Tr. at 104). The officer personally observed injuries and swelling to Norma's
face that night. Id. at 106. The photographs in the record of the trial appear to show
some redness, swelling, and bruising, although not distinct. (State's Ex. B.) (Norma
admitted that her eyes always look like they have black circles under them. Id. at 85.)
{¶ 50} Defense counsel has argued that only after the police twice visited and twice
failed to take Zachary away, did Norma claim Zachary had hit her. (Tr. at 30-34). Viewing
all of the evidence in the light most favorable to Zachary (as Conway requires), a jury
could not have reasonably concluded that Zachary did not hit Norma. Conway at ¶ 133.
In other words, the evidence presented at trial would not "reasonably support both an
acquittal on the crime charged and a conviction upon the lesser included offense." Id.,
quoting Thomas at paragraph two of the syllabus.
{¶ 51} We thus overrule Zachary's second assignment of error.
IV. CONCLUSION
{¶ 52} Zachary's conviction for domestic violence was not against the manifest
weight of the evidence and was supported by sufficient evidence. The evidence at trial did
not ultimately prove that the prosecutor instructed a witness not to talk to the defense.
The decision to share an interview summary and question a witness about a "lethality
screen" were matters of strategy, not instances of ineffective assistance, and the mere fact
that the trial court cautioned defense counsel (with no demonstration from the transcript
of ill demeanor of defense counsel aside from tossing notebook equipment onto the desk)
does not support ineffective assistance by defense counsel. And though disorderly
conduct as set forth in R.C. 2917.11(A)(1) is a lesser-included offense of domestic violence
as set forth in R.C. 2919.25(A), the trial court did not abuse its discretion in failing to
instruct on the lesser-included offense. This is because, on the facts of this case, the jury
could not have reasonably concluded that Zachary did not commit domestic violence.
Accordingly, we overrule each of Zachary's assignments of error and affirm the judgment
of the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER and HORTON, JJ., concur.