State v. Mayse , 2017 Ohio 1483 ( 2017 )

[Cite as State v. Mayse, 2017-Ohio-1483.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
CASE NO. 9-16-50
PLAINTIFF-APPELLEE,
v.
RICHARD ALLEN MAYSE, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 16-CR-165
Judgment Affirmed
Date of Decision: April 24, 2017
APPEARANCES:
Robert C. Nemo for Appellant
Kevin P. Collins for Appellee
Case No. 9-16-50
WILLAMOWSKI, J.
{¶1} Defendant-appellant Richard A. Mayse (“Mayse”) brings this appeal
from the judgment of the Court of Common Pleas of Marion County in which he
was found guilty of one count of felonious assault. Mayse alleges on appeal that
the trial court erred by denying his challenge of a juror for cause and denying his
motion for a mistrial. Mayse also claims that he was denied the effective assistance
of counsel and that the verdict was against the manifest weight of the evidence. For
the reasons set forth below, the judgment is affirmed.
{¶2} On March 20, 2016, an altercation occurred at the home of the victim.
The victim was injured and taken to the hospital. The victim suffered from a
laceration to her face and a broken nose which she claimed was caused by Mayse.
An investigation followed. On April 7, 2016, the Marion County Grand Jury
indicted Mayse on one count of Felonious Assault in violation of R.C.
2903.11(A)(1), a felony of the second degree. Doc. 1. Mayse entered a plea of not
guilty. Doc. 6.
{¶3} On August 4 and 5, 2016, a jury trial was held. At the trial, the State
presented evidence from five witnesses. The victim testified that after going out for
her birthday, she went back to her home and people came over to hang out and play
cards. Tr. 184-189. She was expecting more people to come over, so she went to
ask Mayse to move his truck so people could park in the driveway. Tr. 193-94.
Mayse was in the bathroom and they began arguing over whether he should move
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the truck before or after he used the facilities. Tr. 194-95. According to the victim,
Mayse then grabbed her phone, slammed it down, and broke it. Tr. 196. The victim
was angry at Mayse, so she pushed him into the shower curtain. Tr. 196-97. Mayse
then started to fall onto the side of the tub. Tr. 196-97. When Mayse got up, he was
very angry and he punched the victim in the face. Tr. 197-98. The victim only
recalled the first strike, but believed that she was struck multiple times based upon
what she was told by others. Tr. 198, 204, 206. As a result of being struck, the
victim’s nose was broken, she needed stitches on her nose, and she was bruised. Tr.
199. The break required her to have surgery, which has left her with a scar, and
caused a great deal of pain. Tr. 198-200. Additionally, the victim suffered severe
head trauma, depression, and anxiety. Tr. 200-201.
{¶4} Robert Hummel (“Hummel”) testified that while they were at the
victim’s house, the victim began yelling at Mayse to move his truck. Tr. 234.
Mayse and the victim began arguing about when he was going to move the truck.
Tr. 235. Eventually, Mayse became angry, picked up the victim’s phone from the
sink area, and slammed it down. Tr. 235. The victim then became angry and pushed
Mayse into the shower curtain and Mayse slid down onto the side of the tub. Tr.
235-37. When Mayse got up, he looked angry and the victim began to back out of
the bathroom. Tr. 237-38. Mayse then started punching the victim with his fist,
striking her at least five times. Tr. 238-39. Hummel tried to intervene to stop
Mayse, but Mayse just started hitting him instead and pushing him into the living
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room. Tr. 239-40. As a result of Mayse’s actions, Hummel suffered a broken nose,
black eyes, and cuts to his face and head. Tr. 240. The broken nose resulted in a
great deal of blood. Tr. 243. When Hummel went into the bathroom to wash off
the blood, he saw the victim lying on the bed in the bedroom. Tr. 244. The victim
had already left the house to go to the hospital by the time he walked out of the
bathroom. Tr. 244.
{¶5} Patrolman Steve Luoma (“Luoma”) of the Marion Police Department
testified that he was dispatched to the hospital after the victim arrived there. Tr.
174. The victim claimed she was assaulted. At the hospital he spoke with the victim
and noticed that there was swelling around her nose and eyes and that she had a
deep laceration on the nose. Tr. 176-77. At the end of his shift, Luoma forwarded
all he knew to the investigations department. Tr. 177.
{¶6} Dr. Joseph Minarchek (“Minarchek”) is a plastic surgeon at Grant
Medical Center in Columbus who specializes in reconstructive plastic surgery. Tr.
154. On March 20, 2016, the victim was brought in with an open facial fracture.
Tr. 160. The CAT scan showed that the nose was broken. Tr. 161. The injuries
required the doctor to surgically push the nose back into place and sew up the
laceration. Tr. 163. Minarchek testified that as a result of her injuries, the victim
will have a scar. Tr. 168. On cross-examination, Minarchek testified that the
injuries of the victim would result in a large amount of bleeding. Tr. 169. He also
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testified that he had no knowledge of what caused the injury and it could have
multiple sources. Tr. 171.
{¶7} Detective Nick Esterline (“Esterline”) of the Marion Police Department
testified that he was the detective assigned to follow up on this case. Tr. 251-53.
Esterline spoke to the victim while she was at the hospital and she indicated that
Mayse was the one who struck her. Tr. 253-54. Esterline then walked through the
crime scene and saw “quite a bit of blood, dried blood” in various locations in the
home, including the bathroom, the hallway, the bedroom, the kitchen, and the living
room. Tr. 254-60. Later, Esterline interviewed Hummel at the police station and
took photographs of his injuries. Tr. 262. When Mayse was taken into custody later
that day, the only injuries he had was one small cut to his hand. Tr. 263-64.
{¶8} Esterline then questioned Mayse. Mayse admitted that he had struck
Hummel and indicated that the cut on his hand came from striking Hummel’s
glasses. Tr. 264. Mayse denied striking the victim, but admitted that he had pushed
her. Tr. 264. According to Mayse, after he pushed the victim, Hummel yelled at
him to keep his hands off of the victim, and a fight between the two of them ensued.
Tr. 265. Mayse also told Esterline that the victim was injured when Hummel fell
into her. Tr. 265. Mayse then indicated that he had immediately picked up the
victim, took her outside, and put her in the car to be taken to the hospital. Tr. 266.
When questioned about the blood in the bathroom and the bedroom, Mayse told
Esterline that it must have come from the cut on his hand. Tr. 268. Esterline did
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not believe that Mayse’s version of the facts matched up with the physical evidence
at the scene. Tr. 267.
{¶9} After the State rested, Mayse presented the testimony of Jennifer Lee
Temple (“Temple”). Temple testified that earlier in the day, Mayse and the victim
came over to her house to look at a truck that was for sale. Tr. 298. Later they all
went out for the victim’s birthday where Temple and the victim were drinking Long
Island ice teas. Tr. 299. The victim eventually left, but the plan was for all of them
to go to the victim’s home. Tr. 299. When they arrived, the victim was standing
outside yelling at them to leave. Tr. 299. They eventually went into the house to
use the bathroom. Tr. 299. When Mayse went into the bathroom, the victim
followed him and he pushed her out. Tr. 299. The victim then went into the
bathroom again and he pushed her out a second time. Tr. 299. According to
Temple, after the second push, Hummel swung his fist at Mayse, but failed to hit
him. Tr. 300. Mayse then hit Hummel. Tr. 300. Eventually Hummel was pushed
into the victim and his face struck her face. Tr. 300. When he stepped away, the
victim was bleeding heavily. After being injured, the victim went into the bedroom
and laid on the bed. Tr. 302. She also walked around the house while Mayse was
trying to convince her to go to the hospital. Tr. 302, 321. The victim was yelling
at them. Tr. 325. Eventually, Mayse picked up the victim and took her outside
where other people had arrived. Tr. 325. 328. The victim left with other people to
go to the hospital. Tr. 328. Temple testified that although she did not see what was
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happening in the bathroom, there was no blood on the victim’s face until after the
collision with Hummel. Tr. 304. Temple also testified that Mayse had pushed the
victim, but had never struck her. Tr. 303.
{¶10} At the conclusion of the testimony, the jury returned a verdict of guilty.
Doc. 36. A sentencing hearing was held on September 29, 2016. Doc. 41. The
trial court sentenced Mayse to a prison term of six years and ordered that the
sentence be served consecutively to sentences imposed in two other cases. Id. On
October 19, 2016, Mayse filed his notice of appeal. Doc. 45. On appeal, Mayse
raises the following four assignments of error.
First Assignment of Error
The trial court erred in failing to grant [Mayse’s] challenge for
cause concerning a juror who admitted that if he was the
defendant, he would not want himself as a juror.
Second Assignment of Error
The trial court committed prejudicial error when it failed to grant
[Mayse’s] motion for mistrial after [the State] had failed to
disclose the alleged victim’s criminal record prior to her
testimony.
Third Assignment of Error
[Mayse] was denied his constitutional right of effective assistance
of counsel.
Fourth Assignment of Error
The jury’s verdict was against the manifest weight of the evidence.
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Challenge to Jurors
{¶11} In the first assignment of error, Mayse claims that the trial court erred
in denying his motion to have Juror Creps dismissed for stating that if he was a
defendant, he would not want himself as a juror. During voir dire, Creps stated that
his brother was a police officer in Marion and that his sister and brother-in-law were
officers in Columbus. Tr. 24-25. Creps admitted that he would probably find
testimony offered by law enforcement as credible, but stated that he “would
probably know if what they’re saying wasn’t true.” Tr. 25. When asked if he was
the defendant, would he want himself as a juror, Creps answered “probably not.”
Tr. 50. Based upon these statements, Mayse challenged Creps for cause, but the
trial court denied the challenge. Tr. 50-51. Creps was then dismissed pursuant to a
peremptory challenge. Tr. 83. On appeal, Mayse argues that Creps should have
been dismissed for cause and that Mayse should not have been forced to use a
peremptory challenge to remove Creps from the jury.
{¶12} “[N]o juror need be disqualified for bias if the trial court, after
examination of the juror, is satisfied that the juror can ‘render an impartial verdict
according to the law and the evidence submitted to the jury at the trial’.” State v.
Wilder, 3d Dist. Van Wert No. 15-15-08, 2016-Ohio-251, 58 N.E.3d 421, ¶ 13
quoting R.C. 2945.25(B). A trial court has broad discretion in the determination as
to whether a juror can be impartial. State v. Trimble, 122 Ohio St. 3d 297, 2009-
Ohio-2961, 911 N.E.2d 242, ¶ 73.
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When determining whether a denial of a challenge to a juror for
cause is prejudicial error, the relevant inquiry is whether the jury
panel as a whole was affected by the trial court's error. Gray v.
Mississippi, 481 U.S. 648, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987).
“[I]n order to state a constitutional violation in this situation, the
defendant must use all of his peremptory challenges and
demonstrate that one of the jurors seated was not impartial.”
State v. Broom, 40 Ohio St. 3d 277, 288, 533 N.E.2d 682 (1988).
When a defendant exhausts his peremptory challenges before the
full jury is seated, the erroneous denial of a challenge for cause
may be prejudicial to the defendant. State v. Williams, 79 Ohio
St.3d 1, 679 N.E.2d 646 (1997). “The reason for this rule is that
an error by the trial judge in overruling a challenge for cause
forces the defendant to use a peremptory on a prospective juror
who should have been excused for cause, giving the defendant
fewer peremptories than the law provides.” Id. at 8, 679 N.E.2d
646.
Wilder, supra at ¶ 14.
{¶13} Here, Mayse used a peremptory challenge to excuse Creps from the
jury pool. This was the first peremptory challenge used by the defense. Tr. 83.
However, Mayse did not use all of his peremptory challenges. When asked if he
wished to exercise his fourth peremptory challenge, counsel for Mayse indicated
that they were satisfied with the panel and declined to excuse any more jurors. Tr.
122. Thus, Mayse had a peremptory challenge remaining. Since Mayse did not use
all of his peremptory challenges, he has not shown that there was a constitutional
violation by a denial of a challenge for cause. State v. Broom, 40 Ohio St. 3d 277,
288, 533 N.E.2d 682 (1988). The first assignment of error is overruled.
Motion for a Mistrial
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{¶14} In the second assignment of error, Mayse claims that the trial court
erred in denying his motion for a mistrial after the State failed to disclose the
victim’s prior criminal record before she testified. “The granting or denial of a
motion for mistrial rests in the sound discretion of the trial court and will not be
disturbed on appeal absent an abuse of discretion.” State v. Treesh, 90 Ohio St.3d,
460, 480, 2001-Ohio-4, 739 N.E.2d 749. A mistrial should not be granted merely
due to some error or irregularity. Id. It should only be granted when a fair trial is
no longer a possibility. Id. and State v. Southam, 3d Dist. Henry No. 7-12-04, 2012-
Ohio-5943, ¶ 24. The “essential inquiry on a motion for a mistrial is whether the
substantial rights of the accused were adversely or materially affected.” State v.
Goerndt, 8th Dist. Cuyahoga No. 88892, 2007-Ohio-4067 ¶ 21.
{¶15} The Criminal Rules require the State, upon the written demand for
discovery by the defendant, to disclose the criminal records of a witness in the
State’s case-in-chief, if those convictions would be admissible under Evidence Rule
609. Crim.R. 16(B)(2). “If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to comply with this rule
* * * , the court may order such party to permit the discovery or inspection, grant a
continuance, or prohibit the party from introducing in evidence the material not
disclosed, or it may make such other order as it deems just under the circumstances.”
Crim.R. 16(L)(1). If the State violates this rule, the trial court has the sound
discretion to decide what sanction should be imposed. Lakewood v Papadelis, 32
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Ohio St.3d 1, 3, 511 N.E.2d 1138 (1987). The sanction imposed will not be
overturned unless it was unreasonable, unconscionable, or arbitrary. State v. Engle,
166 Ohio App. 3d 123, 2006-Ohio-1884, 850 N.E.2d 123, ¶ 7 (3d Dist.).
{¶16} The Ohio Supreme Court has previously held that “prosecutorial
violations of Crim.R. 16 result in reversible error only when there is a showing that
(1) the prosecution's failure to disclose was willful, (2) disclosure of the information
prior to trial would have aided the accused's defense, and (3) the accused suffered
prejudice.” State v. Jackson, 107 Ohio St. 3d 53, 2005-Ohio-5981, 836 N.E.2d 1173,
¶ 131. In this case, there is no dispute that the State failed to disclose the criminal
record of a witness as required by Criminal Rule 16. Tr. 289-90. Upon learning of
the failure to disclose, Mayse requested that the trial court grant a mistrial. Tr. 289.
The State informed the court that there was an error and that attempts had been made
to recall the witness, but she had not responded. Tr. 290. The State then proposed
a stipulation be read to the jury informing them that the witness had been convicted
of a theft offense in 2016 and possession of cocaine in 2010. Tr. 290. The
stipulation would also inform the jury that they could consider these crimes when
weighing the credibility of the witness. Tr. 291. The trial court overruled the motion
for a mistrial and agreed to inform the jury of the prior convictions. Tr. 293. The
trial court then advised the jury as follows.
The second matter we need to advise you is that the Court wishes
to instruct you that [the victim], who testified here yesterday, has
been convicted of the offense of possession of cocaine in the year
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2010; and further was also convicted of the offense of theft in
February of 2016. This information that we’re providing you may
be used for the purpose of determining the credibility of [the
victim]. This information may not be used for any other purposes.
Tr. 296. A review of the record contains no evidence that the failure to disclose was
willful.
{¶17} Second, the record does not show how this information would have
aided the defense as it was not exculpatory. Mayse claims that this would possibly
suggest that the victim was biased, thus implicating the Confrontation Clause as set
forth in the Sixth Amendment to the United States Constitution. Mayse claims that
this is error because the jurors did not get to see the victim’s face when she was
questioned about her criminal record. Bias is defined as a “mental inclination or
tendency; prejudice; predilection.” Black’s Law Dictionary (10th Ed. 2014).
However, the victim’s criminal convictions at issue were not connected with the
defendant and she was not given any consideration for her testimony. There is
nothing in the record that would show that those convictions would show a prejudice
against the defendant. Thus, they do not show a bias. Additionally, the criminal
history of the victim was only admissible for the purpose of attacking her credibility.
Evid.R. 609.
{¶18} Finally, even if it would have aided the defense, the defense suffered
no prejudice as the trial court fully informed the jury about the victim’s prior
convictions. The statement made by the judge may have had more of an impact
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than merely questioning the witness about the offenses because it drew more
attention to the crimes and included a contemporaneous instruction that it could be
considered for the purpose of determining the credibility of the victim. Since the
jury was fully aware of the charges, there was no prejudice suffered. The failure to
disclose is thus not reversible error and the trial court did not abuse its discretion in
denying the motion for a mistrial. The second assignment of error is overruled.
Manifest Weight of the Evidence
{¶19} Although Mayse’s third assignment of error argues that he was denied
the effective assistance of counsel, we will address the fourth assignment of error
first in the interest of clarity. In the fourth assignment of error, Mayse argues that
his conviction was against the manifest weight of the evidence. “When an appellate
court considers a claim that a conviction is against the manifest weight of the
evidence, the court must dutifully examine the entire record, weigh the evidence,
and consider the credibility of witnesses.” State v. Puckett, 191 Ohio App. 3d 747,
2010-Ohio-6597, 947 N.E.2d 730, ¶ 32 (4th Dist.).
Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial to 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, if, on weighing the evidence in their minds, they shall find
the greater amount of credible evidence sustains the issue which
is to be established before them. Weight is not a question of
mathematics, but depends on its effect in inducing belief.”
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State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 514 (1997) (citing Black's
Law Dictionary (6 Ed.1990) 1594). A new trial should be granted only in the
exceptional case in which the evidence weighs heavily against conviction. Id.
Although the appellate court acts as a thirteenth juror, it still must give due deference
to the findings made by the jury.
The fact-finder, being the jury, occupies a superior position in
determining credibility. The fact-finder can hear and see as well
as observe the body language, evaluate voice inflections, observe
hand gestures, perceive the interplay between the witness and the
examiner, and watch the witness' reaction to exhibits and the like.
Determining credibility from a sterile transcript is a Herculean
endeavor. A reviewing court must, therefore, accord due
deference to the credibility determinations made by the fact-
finder.
{¶20} State v. Thompson, 127 Ohio App. 3d 511, 529, 713 N.E.2d 456 (8th
Dist. 1998). “To that end, the fact finder is free to believe all, part or none of the
testimony of each witness appearing before it.” State v. Redman, 3d Dist. Allen No.
1-15-54, 2016-Ohio-860, ¶ 31 quoting State v. Petty, 10th Dist. Franklin Nos. 11AP-
716, 11AP-766, 2012-Ohio-2989, ¶ 38.
{¶21} Here, Mayse was charged with one count of felonious assault in
violation of R.C. 2903.11(A)(1). The State was required to prove that Mayse
knowingly caused serious physical harm to another. R. C. 2903.11(A)(1). Serious
physical harm is defined as
(a) Any mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric
treatment;
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(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity
whether partial or total, or that involves some temporary
substantial incapacity;
(d) Any physical harm that involves some permanent
disfigurement or that involves some temporary, serious
disfigurement;
(e) Any physical harm that involves acute pain of such duration
as to result in substantial suffering or that involves any degree
of prolonged or intractable pain.
R.C. 2901.01(A)(5). The State presented the testimony of five witnesses.
Minarchek testified as to the extent and seriousness of the injuries sustained by the
victim. Minarchek indicated that her injuries required surgical intervention to repair
the damage and that the victim would always have a scar as a result of the injuries.
Luoma also testified to the injuries suffered by Mayse as he observed them soon
after the incident. Mayse did not dispute that the victim suffered serious physical
harm, but merely challenged that Mayse was the cause of the injuries. According
to the testimony, of the victim and Hummel, Mayse purposely hit the victim multiple
times with his fist. Both testified that as a result, the victim began bleeding
profusely from her nose. The victim testified that her nose was broken, that she
suffered a great deal of pain that was still continuing at the time of trial, and that she
had a scar where the laceration to her nose had to be stitched closed. Even Mayse’s
witness, Temple, testified that the victim had been seriously harmed on the night in
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question. Although Temple testified that the victim’s injuries were not the result of
Mayse striking her, the jury evidently did not believe her testimony. Esterline
testified that the victim told him that Mayse was the person who struck her when he
first interviewed her. Tr. 253-54. He also testified to the amount of blood he found
at the scene and identified the photographs of the scene. Based upon his
observations, the account of the incident provided by Mayse was not supported by
the evidence. Mayse’s account was also dissimilar from that of all of the other
witnesses, including Temple. A review of the evidence does not indicate to this
court that the jury lost its way. The evidence does not weigh heavily against
conviction. Thus, the verdict is not against the manifest weight of the evidence and
the fourth assignment of error is overruled.
Effective Assistance of Counsel
{¶22} Mayse claims in the third assignment of error that he was denied the
effective assistance of counsel by 1) failing to seek the removal of two jurors for
cause; 2) asking improper questions or failing to object to improper questions; 3)
failing to introduce medical records; 4) asking about injuries sustained by witness
other than the victim by Mayse’s actions and failing to object to such questions; 5)
failing to file a Motion in Limine or object to statements by Esterline that Mayse
was on “probation”; and 6) failed to object to opinion evidence of Esterline.
In evaluating whether a petitioner has been denied effective
assistance of counsel, this court has held that the test is “whether
the accused, under all the circumstances, * * * had a fair trial and
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substantial justice was done.” State v. Hester (1976), 45 Ohio St. 2d
71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus.
When making that determination, a two-step process is usually
employed. “First, there must be a determination as to whether
there has been a substantial violation of any of defense counsel's
essential duties to his client. Next, and analytically separate from
the question of whether the defendant's Sixth Amendment rights
were violated, there must be a determination as to whether the
defense was prejudiced by counsel's ineffectiveness.” State v. Lytle
(1976), 48 Ohio St. 2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d
623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S. Ct.
3135, 57 L. Ed. 2d 1154.
On the issue of counsel's ineffectiveness, the petitioner has the
burden of proof, since in Ohio a properly licensed attorney is
presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio
St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64
Ohio St. 2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.
State v. Calhoun, 86 Ohio St. 3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The
failure to prove either 1) a substantial violation or 2) prejudice caused by the
violation makes it unnecessary for a court to consider the other prong of the test.”
State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20. “To show
prejudice, the defendant must show a reasonable probability that, but for counsel's
errors, the result of the proceeding would have been different.” State v. Conway,
109 Ohio St. 3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “The prejudice
inquiry, thus, focuses not only on outcome determination, but also on ‘whether the
result of the proceeding was fundamentally unfair or unreliable.’” State v.
Montgomery, ___ Ohio St.3d ___, 2016-Ohio-5487, ___ N.E.3d ___, ¶ 82 quoting
Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993).
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{¶23} The first claim is that counsel failed to seek the removal of two jurors
for cause. Mayse claims that counsel should have sought the removal for cause of
Juror Krogman (“Krogman”) and Juror Truitt (“Truitt”). Krogman stated that he
was going to school for criminal justice, intended to become a police officer, and
would be more likely to agree with the positions of the police. Tr. 76. However, he
stated that he was not opinionated and wanted to hear all of the facts before making
a decision. Tr. 76-77. He also indicated that the individual police officers are not
always correct and that he felt he could fairly judge the case. Tr. 77-78. Krogman
was not dismissed from the jury, even though Mayse still had a peremptory
challenge left.
{¶24} The question before this court is whether counsel’s failure to challenge
for cause resulted in a substantial violation of counsel’s duty to Mayse and whether
the violation affected the outcome of the trial. Although the record does show that
Krogman may have had a personal bias towards law enforcement, it also shows that
he indicated that he could view the evidence fairly and follow the law. As discussed
above, a juror need not be disqualified for bias if it is shown he or she can render an
impartial verdict based on the law and the facts presented. “Counsel need not raise
meritless issues or even all arguably meritorious issues.” State v. Jones, 91 Ohio
St.3d 335, 354, 2001-Ohio-57, 744 N.E.2d 1163. The record does not indicate that
Krogman was incapable or even unlikely to render an impartial verdict. Thus,
counsel for Mayse did not err in failing to challenge Krogman for cause.
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{¶25} Truitt testified that he is the neighbor and a good friend with a police
officer and that they vacation together. Tr. 84. He also indicated that he believed
that there was no excuse for hitting a woman, no matter what. Tr. 85-86. Truitt
admitted that although he would require the State to prove the case, he likely would
not hold them to the “beyond a reasonable doubt” scale. Tr. 87. Mayse then used
a peremptory challenge to remove Truitt from the panel. Here, there can be no
prejudice from the alleged failure to challenge for cause. Truitt was not a part of
the jury. In addition, Mayse still had an unused peremptory challenge at the end of
voir dire. Thus, he could not have been prejudiced by the use of a peremptory
challenge to remove Truitt from the panel. Without a showing of prejudice, no
finding of ineffective assistance of counsel lies.
{¶26} The second ineffective assistance of counsel claim is based upon
alleged improper questions of the victim asked by counsel and for failing to object
to and move to strike statements made by the victim. This court has previously held
that the “failure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel.” State v. Stevens, 3d Dist. Allen No. 1-14-58,
2016-Ohio-446, 58 N.E.2d 584, ¶ 42 quoting State v. Johnson, 112 Ohio St. 3d 210,
2006-Ohio-6404, 858 N.E.2d 1144. “Because ‘objections tend to disrupt the flow
of a trial, and are considered technical and bothersome by the fact-finder,’
competent counsel may reasonably hesitate to object in the jury's presence.” State
v. Campbell, 69 Ohio St. 3d 38, 53, 630 N.E.2d 339 (1994) quoting Jacobs, Ohio
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Evidence (1989), at iii-iv (competent counsel may reasonably hesitate to object in
the jury's presence). An appellate court may not use hindsight “to distort the
assessment of what was reasonable” from the view of counsel at the time of the trial.
State v. Jones, 2d Dist. Montgomery No. 26289, 2015-Ohio-4116, 43 N.E.2d 833,
¶ 55. A decision that may be debatable regarding the trial strategy of counsel may
not form the basis for finding that counsel was ineffective. Id.
{¶27} Here, the statements at issue include the following. Mayse claims that
his counsel was ineffective for not objecting when the victim testified that Mayse
had a “really crazy look” in his eye before he hit her. Tr. 197. Mayse also claims
that his counsel should have moved to strike the victim’s testimony that she was hit
multiple times since she testified that she could not remember anything after the
first punch and was basing her statements on what others told her. Tr. 198-206.
Additionally, the victim testified that she was told that she had sustained severe head
trauma. Tr. 200. Mayse argues that these were not admissible as they were either
overly prejudicial (the look in the eye) or hearsay (the remaining statements). A
review of the record shows the first statement about the look in Mayse’s eye was
the victim’s description of what she believed she saw. Witnesses are permitted to
testify to what they observed and can describe it as they wish. Thus, any objection
would likely have been overruled. The statement regarding the number of times she
was struck as she was told by others may have been hearsay. However, such
testimony would be cumulative as Hummel testified that Mayse struck the victim at
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least five times. Tr. 239. Finally, the victim’s statement that she was told she had
severe head trauma was also cumulative. The jury only had to find that Mayse had
caused serious physical harm to the victim. The victim, as well as the other
witnesses, testified to the extent of her injuries. The jury was also shown pictures
of the injuries from which they could independently determine the severity of the
injuries. Thus, any testimony regarding the severe head trauma was not necessary
to prove that the victim had suffered serious physical harm. Since the introduction
of this evidence was not prejudicial, counsel was not ineffective for failing to object
to it. Additionally, the decision not to object might have been a reasonable trial
strategy as the objection would likely have drawn more attention to the statements.
{¶28} The third alleged mistake of counsel was the failure to have introduced
the medical records from Marion General Hospital. Mayse claims that if the records
had been admitted, it would have shown that the victim was intoxicated when she
arrived at the hospital. A review of the record shows that the victim was questioned
about being intoxicated. She admitted that she had been drinking that night. Tr.
186-87, 204. She also admitted on cross-examination that the hospital staff had to
wait to do the surgery on her because of the alcohol in her system. Tr. 212. When
questioned about her memory before being struck, the victim admitted that it was a
“little fuzzy” because she had been drinking. Tr. 216. The fact that the victim had
been drinking was also confirmed by both Hummel and Temple in their testimony.
Tr. 230-31, 299. Given all of the undisputed evidence regarding the fact that the
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victim had been drinking, the records showing that the victim had alcohol in her
system when she was at the hospital were unnecessary. The jury had the information
to consider from alternative sources. Thus, there was no prejudice from not
admitting the medical records.
{¶29} Next, Mayse argues that counsel was ineffective for failing to object
to the testimony of Hummel about Mayse striking him. A review of the record
indicates that the defense was arguing, through the testimony of Temple, that the
victim’s injuries were the result of a fight between Hummel and Mayse and that
Mayse pushed Hummel off of himself and Hummel fell into the victim, causing her
injuries. During the opening statements, counsel for Mayse told the jury that “the
fight actually broke out between [Hummel] and [Mayse] * * * [and the victim’s]
injuries were a result of this dumb, drunken, late-night scuffle between [Mayse] and
[Hummel]”. Tr. 152. Counsel went on to tell the jury that they did not deny the
severity of the victim’s injuries, but were only disputing the cause. Tr. 152-53. For
Mayse’s argument to have merit, he would have to show that there was an
altercation between Hummel and Mayse. “Debatable strategic and tactical decisions
may not form the basis of a claim for ineffective assistance of counsel, even if, in
hindsight, it looks as if a better strategy had been available.” State v. Conley, 2d
Dist. Montgomery No. 26359, 2015-Ohio-2553, 43 N.E.3d 775, ¶56. Since this was
the defense’s theory of the case, the admission of the testimony of Hummel was part
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of the trial strategy and does not form the basis of a claim for ineffective assistance
of counsel.
{¶30} Mayse’s fifth argument as to why his counsel was ineffective was that
counsel failed to file a motion in limine or object to testimony that he was on
“probation” at the time of the offense. A motion in limine is a precautionary ruling
in anticipation of an evidentiary issue and is not final. State v. Grubb, 28 Ohio St. 3d
199, 201, 503 N.E.2d 142 (1986). “It is counsel’s duty to make his own appraisal
of the case and to decide when such motions are worth filing.” State v. Giddens, 3d
Dist. Allen No. 1-02-52, 2002-Ohio-6148, ¶ 30. Similarly, as discussed above, the
decision as to whether to object to a statement and further draw attention to it is a
matter of trial strategy left to the discretion of trial counsel. Here, there were only
two instances where Mayse’s criminal history was mentioned. Esterline testified
that “Major McDonald received a call that [Mayse] was there to meet with his
probation officer, and we took him into custody at the office of his probation officer,
went back to the police department and I spoke with him.” Tr. 263. The second
instance was when Temple testified that the officer who took her and Mayse “from
his P.O.’s office” was supposed to write her statement down for her to sign because
she did not have her glasses. Tr. 332. No other mention of this was made at any
time. Although Mayse claims there was prejudice, he fails to show how he was
prejudiced by these statements. There was a great deal of evidence that Mayse
struck the victim in the face and that she suffered serious physical harm. Even if
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the statements had been excluded, the record does not indicate that the outcome
would have been different. Thus, the failure to object to the statements or to file a
motion in limine does not constitute ineffective assistance of counsel in this case.
{¶31} Mayse’s final claim of ineffective assistance of counsel is that counsel
failed to object to opinion evidence of an unqualified police detective regarding
blood analysis or blood splatter. A review of the record shows that Esterline
testified that he had gone to the victim’s home and taken pictures of the locations
where blood was found. Tr. 254-260. Later when Esterline questioned Mayse about
the incident, Mayse told Esterline that when Mayse saw that the victim was
seriously injured, he picked her up to carry her to a vehicle to go to the hospital. Tr.
266. Mayse told Esterline that the victim was never in the bedroom and claimed
that the blood in the bedroom and bathroom had come from a cut on his hand, which
was very small. Tr. 268. Contrary to the assertion of Mayse in his brief, the
testimony of Esterline was only to the locations and the amount of blood he found
in the home. This testimony was available for the view of the jury through the
photographs entered as exhibits. There was no need for training in blood analysis
or blood splatter, because Esterline did not testify to those issues. Since there was
no testimony which required expertise, counsel did not err in failing to object to the
lack of expertise.
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{¶32} Having reviewed all of Mayse’s arguments regarding whether his
counsel was ineffective, we do not find that any of trial counsel’s actions constituted
ineffective assistance of counsel. The third assignment of error is overruled.
{¶33} Having found no error in the particulars assigned and argued, the
judgment of the Court of Common Pleas of Marion County is affirmed.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J, concur.
/hls
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