State v. Simpson , 2019 Ohio 2912 ( 2019 )

[Cite as State v. Simpson, 2019-Ohio-2912.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107407
v. :
NATHANIEL SIMPSON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 18, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-621424-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kelly Needham, Assistant Prosecuting
Attorney, for appellee.
Joseph V. Pagano, for appellant.
EILEEN T. GALLAGHER, P.J.:
Defendant-appellant, Nathaniel Simpson, appeals from his
convictions following a bench trial. He raises the following assignments of error for
review:
1. The trial court erred when it denied Simpson’s motion for
acquittal under Crim.R. 29 because the state failed to present sufficient
evidence to establish beyond a reasonable doubt the elements
necessary to support the convictions.
2. Simpson’s convictions are against the manifest weight of the
evidence.
3. The trial court erred by denying Simpson’s motion for new
trial.
4. Simpson was deprived of his constitutional rights to due
process, a fair trial, and the effective assistance of counsel where he was
not permitted to introduce evidence of his text messages with M.S. on
July 3, 2017.
5. The trial court erred by ordering Simpson to have no contact
with his daughter.
After careful review of the record and relevant case law, we affirm
Simpson’s convictions.
I. Factual and Procedural History
In September 2017, Simpson was named in a three-count indictment,
charging him with felonious assault in violation of R.C. 2903.11(A)(1); abduction in
violation of R.C. 2905.02(A)(2); and domestic violence in violation of R.C.
2919.25(A). The indictment stemmed from allegations that Simpson physically
assaulted his daughter, M.S., during an altercation inside Simpson’s home. In May
2018, the matter proceeded to a bench trial, where the following evidence was
adduced.
M.S., who was 19 years old at the time of the incident, testified that in
July 2017, she was temporarily living with Simpson during a two-week period he
was receiving chemotherapy treatment. M.S. stated that she assisted Simpson with
“regular duties around the house” including grocery shopping and meal preparation.
M.S. described her relationship with her father as “kind of rocky,” but attributed
their “deteriorated” relationship to being a side effect of his chemotherapy
treatment.
On July 3, 2017, M.S. visited her friends in Toledo, Ohio. M.S.
testified that Simpson was upset she left for the weekend and began arguing with
her through text messages. M.S. testified that she told her father that she would
come to his home, collect her belongings, and return to her mother’s home where
she permanently resided.
M.S. testified that when she arrived to Simpson’s home, she and
Simpson sat at the dining room table and had a conversation that lasted over one
hour. M.S. stated that Simpson became more and more agitated during the
conversation. M.S. testified that she had previously arranged for her cousin,
Amhara Denson, to pick her up from Simpson’s house. When Amhara arrived, she
called M.S.’s cell phone and waited outside for 10-15 minutes before M.S. told her to
leave because Simpson “was not letting me leave the house.”
M.S. testified that she then went into her bedroom to get the rest of
her belongings and called a friend to see if she could get a ride to her mother’s home.
When her friend responded that she could not give M.S. a ride, M.S. told Simpson
that she would just walk to her mother’s home. M.S. testified that her comment
triggered Simpson, and that he “went crazy” and “attacked [her].” M.S. testified that
Simpson “grabbed [her] by the [hair] and tossed [her] on the bed.” While M.S. was
on the bed, Simpson held her down by placing his knee on her back. When M.S.
“rolled [her] body,” she and Simpson fell to the floor. M.S. testified that she hit her
head on the corner of a bookshelf when she fell to the floor. While on the floor,
Simpson continued to restrain her. M.S. pleaded with Simpson to let her go, and
when he did, she immediately went to her friend’s house.
After discussing the incident with her family members, M.S. went to
the hospital on July 4, 2017, where she was diagnosed with a minor concussion, a
minor neck sprain, and a back contusion. Photographs of M.S.’s injuries were
presented to the trier of fact. Subsequently, M.S. filed a police report on July 5, 2017.
Amhara Denson testified that on the day of the incident, M.S. asked
her for a ride from Simpson’s home. Denson testified that when she arrived at
Simpson’s home, M.S. indicated that she “was coming right out.” After waiting for
several minutes, Denson called M.S.’s cell phone. Denson testified that when M.S.
answered her phone, she heard “scuffling” and heard M.S. “[tell] her father to get off
of her.” Denson testified that she also heard a male voice yelling. Denson stated
that she eventually left Simpson’s home without M.S. because she “kind of felt out
of place in that predicament.” Denson also testified that M.S. told her she “was
okay.”
Detective Barry Bentley of Cleveland Police Department was assigned
to investigate the allegations levied against Simpson. In the course of his
investigation, Det. Bentley conducted a formal interview of M.S. and obtained a
warrant for Simpson’s arrest. Once in custody, Simpson “admitted that there was a
small confrontation” with M.S. because “he did not approve of the lifestyle that she
was currently living” and “felt she was being unruly and also disrespectful.” Det.
Bentley further testified that Simpson admitted that “when [M.S.] attempted to go
into the bedroom [he] grabbed her by her hair and attempted to push her out the
house.” Simpson also stated that “they both fell on the ground and [M.S.] fell on top
of him.”
At the conclusion on the state’s case, defense counsel made a Crim.R.
29 motion for acquittal. Following a brief discussion on the record, the trial court
denied the motion. Simpson then testified on his own behalf. Contrary to M.S.’s
testimony, Simpson testified that M.S. was not living with him at the time of the
incident. Simpson stated that on July 3, 2017, he sent several text messages to M.S.
indicating that she was not welcome to come to his home that day and “that she
needed to go to her home where she lived with her mother.” Simpson explained that
he was weak from his chemotherapy treatments and did not want M.S. coming over
“because she was doing some very, very serious things that could have gotten her
put in jail.” Simpson denied assertions that M.S. was taking care of him while he
was undergoing chemotherapy. Simpson testified that M.S. was “forbidden” from
coming to his home and that he took her house keys away from her approximately
three months earlier.
Regarding the incident, Simpson testified that he was asleep when he
heard someone come into his house through the back door. When Simpson realized
that M.S. had broken into his house, he confronted her. Simpson stated that while
he was “telling [M.S.] to get out,” she was talking on her phone with a friend.
Simpson testified that M.S. was laughing and stated that Simpson was “not going to
do anything.” At that time, Simpson “went to grab [M.S.]” to remove her from his
home. Simpson testified that when he approached M.S., she “reached up as though
she was going to punch me.” In response, Simpson “reached up to try to grab her
hair and her arm.” Simpson explained that when M.S. “swung around,” he and M.S.
both fell to the ground. Simpson testified that M.S. fell on top of him and hit her
head on the base of the bed. They fell a second time as they attempted to stand up.
Simpson testified that he did not invite M.S. into his home, did not ask her to stay,
and did not hinder her from leaving. He further testified that he did not knowingly
cause serious physical harm to M.S.
At the conclusion of trial, Simpson renewed his motion for acquittal,
which the trial court denied. Thereafter, the trial court found Simpson guilty of all
counts. Prior to sentencing, Simpson filed a motion for new trial. In its entirety, the
motion argued Simpson was entitled to a new trial for the following reasons:
1. The court erred in denying the motion of the defendant for judgment
of acquittal made at the end of the State’s evidence and renewed at the
conclusion of all evidence.
2. The verdict of the Court is contrary to the weight of the evidence.
3. The verdict is not supported by substantial evidence.
4. The defendant has new evidence that he was not aware of at the time
of the alleged incident.
A supplement to the motion for new trial incorporated
unauthenticated photographs, unauthenticated medical records, unauthenticated
phone records, unauthenticated court records, an unauthenticated police report,
and sworn statements from Simpson, Simpson’s sister, Simpson’s brother,
Simpson’s step-daughter, and several of Simpson’s close friends.
In June 2018, the trial court imposed a two-year period of community
control sanctions. As a condition of his community control supervision, the trial
court ordered that Simpson have no contact with M.S. During the sentencing
hearing, the trial court briefly discussed Simpson’s motion for new trial, stating:
I’ve reviewed all these documents [attached to the motion for new
trial]. I don’t think there’s anything new here.
***
I made my decision based on evaluating the credibility of the witnesses
and evaluating the evidence that was presented to me.
***
As such, I’m going to deny the motion for a new trial and we’re going to
proceed to sentencing.
Simpson now appeals from his convictions.
II. Law and Analysis
A. Sufficiency of the Evidence
In his first assignment of error, Simpson argues his convictions are
not supported by sufficient evidence.
A Crim.R. 29 motion challenges the sufficiency of the evidence. When
considering a challenge of the sufficiency of the evidence, a reviewing court
examines the evidence admitted at trial and determines whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. “The 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.”
Id. A reviewing court is not to assess “whether the state’s evidence is to be believed,
but whether, if believed, the evidence against a defendant would support a
conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
The state may use direct evidence, circumstantial evidence, or both,
in order to establish the elements of a crime. See State v. Durr, 58 Ohio St.3d 86,
568 N.E.2d 674 (1991). Circumstantial evidence is “proof of facts or circumstances
by direct evidence from which the trier of fact may reasonably infer other related or
connected facts that naturally or logically follow.” State v. Seals, 8th Dist. Cuyahoga
No. 101081, 2015-Ohio-517, ¶ 32, citing State v. Beynum, 8th Dist. Cuyahoga No.
69206, 1996 Ohio App. LEXIS 2143 (May 23, 1996); see also State v. Hartman, 8th
Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37.
Circumstantial evidence and direct evidence inherently possess the
same probative value. Jenks at paragraph one of the syllabus. “[A]ll that is required
of the [trier of fact] is that it weigh all of the evidence, direct and circumstantial,
against the standard of proof beyond a reasonable doubt.” Id. at 272.
“‘Circumstantial evidence is not only sufficient, but may also be more certain,
satisfying, and persuasive than direct evidence.’” State v. Hawthorne, 8th Dist.
Cuyahoga No. 96496, 2011-Ohio-6078, ¶ 9, quoting Michalic v. Cleveland Tankers,
Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960). And circumstantial evidence
alone is sufficient to support a conviction. State v. Coleman, 8th Dist. Cuyahoga No.
102966, 2016-Ohio-297, ¶ 22.
In this case, Simpson was convicted of felonious assault in violation
of R.C. 2903.11(A)(1), abduction in violation of R.C. 2905.02(A)(2), and domestic
violence in violation of R.C. 2929.25(A). R.C. 2903.11(A)(1), the statute prohibiting
felonious assault, states that “[n]o person shall knowingly * * * [c]ause serious
physical harm to another.” R.C. 2905.02(A)(2), which prohibits the crime of
abduction, provides that “[n]o person, without privilege to do so, shall knowingly
* * * [b]y force or threat, restrain the liberty of another person under circumstances
that create a risk of physical harm to the victim or place the other person in fear[.]”
Finally, R.C. 2929.25(A), the statute prohibiting domestic violence, provides that
“[n]o person shall knowingly cause or attempt to cause physical harm to a family or
household member.”
Regarding the felonious assault conviction, Simpson argues the state
failed to prove that he knowingly caused or attempted to cause serious physical harm
to M.S. He further contends that the state failed to establish that M.S. sustained
serious physical harm. Simpson’s position relies on his testimony that, while he
grabbed M.S. by her hair, “any other physical contact between the two was the result
of [Simpson’s] belief that [M.S.] was trying to hit him.” He further references M.S.’s
testimony that she did not feel any pain during the incident and did not immediately
seek medical assistance.
“A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or will probably
be of a certain nature.” R.C. 2901.22(B). “Serious physical harm” includes “[a]ny
physical harm that carries a substantial risk of death,” “some temporary, serious
disfigurement” or “involves any degree of prolonged or intractable pain.” R.C.
2901.01(A)(5).
After careful review, we find the state met its burden with respect to
establishing that Simpson knowingly caused or attempted to cause serious physical
harm to M.S. Here, M.S. testified that Simpson “attacked [her]” after she stated that
she was going to walk to her mother’s home. She stated that Simpson “grabbed me
by [my hair] and tossed me on the bed, my stomach was on the bed and my head
was flat and he was on top of me.” M.S. testified that Simpson then placed his knee
in her back while he pulled her hair, forcing her head back. M.S. subsequently hit
her head on the corner of her bed when she and Simpson rolled off the bed and fell
to the floor. Denson corroborated M.S.’s testimony, stating that while she was on
the phone with M.S. she heard a tussle and heard M.S. say “get off me.” In our view,
a rational trier of fact would foresee that Simpson’s acts of grabbing M.S. by the hair,
tossing her to the ground, and holding her down with his knee, would likely cause
serious physical harm.
In addition, M.S. testified that she sustained a minor concussion, a
minor neck sprain, and a back contusion as a result of Simpson’s conduct. She
explained that Simpson pulled her hair so far backwards, she thought Simpson
“could have broke [her] airway or something.” M.S. further testified that she
experienced pain for several days after the incident and continues to experience
periodic pain and stiffness in her back. Given M.S.’s testimony and the admission
of her medical records and photographs detailing the extent of her injuries, we find
the state presented sufficient evidence for a reasonable trier of fact to conclude that
M.S. suffered serious physical harm.
With respect to his abduction conviction, Simpson argues “the state
failed to prove that he knowingly restrained M.S.’s liberty for the purposes of
inflicting any physical harm.” Simpson contends that he was weak and recovering
from chemotherapy treatments when M.S. entered his home without permission.
Simpson states that “because he was in his home and M.S. did not have permission
to be there, Simpson had privilege conferred by law to defend himself.”
To the extent Simpson contends his actions were privileged, we note
that the record is devoid of any indication that Simpson raised the affirmative
defense of self-defense at trial. The defense is therefore waived. See State v. Catron,
8th Dist. Cuyahoga No. 101789, 2015-Ohio-2697, ¶ 18. As discussed, the state
presented testimony indicating that Simpson “attacked” M.S. and held her down
after he “tossed” her to the bed. M.S. testified that after she and Simpson fell off the
bed, Simpson continued to “restrain [her] from moving” and that she was not free
to leave at that point. In addition, M.S. testified that she was afraid while the
incident was occurring, and “thought [she] was going to die.” Under these
circumstances, we find the state presented sufficient evidence for a reasonable trier
of fact to conclude that, without privilege to do so, Simpson knowingly restrained
M.S. by force, created a risk of physical harm, and placed her in fear.
Finally, Simpson argues there was insufficient evidence to sustain his
domestic violence conviction because the state failed to prove that he knowingly
caused or attempted to cause M.S. physical harm. Simpson does not dispute that
M.S. is a family member, but reiterates his position that M.S. was trespassing at the
time of the incident and that he only touched her in an effort to escort her out of his
home. Again, we find no merit to Simpson’s argument. Here, the state presented
testimony that Simpson physically attacked M.S. following a verbal argument. M.S.
testified that Simpson’s conduct caused her to sustain a mild concussion and injuries
to her face, neck, and back. Collectively, the evidence was sufficient to establish that
Simpson knowingly caused M.S. physical harm, which is defined as “any injury,
illness, or other physiological impairment, regardless of its gravity or duration.”
R.C. 2901.01(A)(3).
Viewing the evidence in a light most favorable to the state, we find
Simpson’s convictions were supported by sufficient evidence. Accordingly, the trial
court did not err by denying Simpson’s motion for acquittal.
Simpson’s first assignment of error is overruled.
B. Manifest Weight of the Evidence
In his second assignment of error, Simpson argues his convictions are
against the manifest weight of the evidence.
In contrast to a sufficiency argument, a manifest weight challenge
questions whether the state met its burden of persuasion. State v. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598,¶ 12. A reviewing court “weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed, and a new trial ordered.” Thompkins, 78 Ohio St.3d 388, 678 N.E.2d 541(1997). A conviction should be reversed as against the manifest weight of the
evidence only in the most “exceptional case in which the evidence weighs heavily
against the conviction.” Id.Although we review credibility when considering the manifest weight
of the evidence, we are cognizant that determinations regarding the credibility of
witnesses and the weight of the testimony are primarily for the trier of fact. State v.
Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able “to
view the witnesses and observe their demeanor, gestures, and voice inflections, and
use these observations in weighing the credibility of the proffered testimony.” State
v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The trier of
fact may take note of any inconsistencies and resolve them accordingly, “believ[ing]
all, part, or none of a witness’s testimony.” State v. Raver, 10th Dist. Franklin No.
02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964).
In support of his manifest weight of the evidence argument, Simpson
reiterates his position that M.S. was trespassing at the time of the incident and that
he only “touch[ed] M.S.’s hair in defense of himself as the situation escalated.”
Simpson contends that he did not knowingly cause harm to his daughter and that
M.S.’s version of the incident lacked credibility and “does not make sense.” Simpson
suggests that if M.S. was welcome in Simpson’s house as M.S. testified, “why would
he engage in any confrontation with her; especially in his medically fragile
condition?” Simpson further references Denson’s testimony that M.S. said she “was
okay.” He submits that if Denson believed M.S. was truly in danger based on the
tussling noises she heard on the phone, “why wouldn’t she have attempted to enter
the house or at the very least call the police?”
There is no dispute that Simpson and M.S. were the only individuals
inside Simpson’s home on the evening of the incident. Throughout trial, M.S.
portrayed Simpson as a short-tempered individual who physically attacked her
following a verbal argument. In contrast, Simpson portrayed M.S. as his defiant and
ill-behaved daughter, who overpowered him when he confronted her about breaking
into his home without permission. However, “‘a conviction is not against the
manifest weight of the evidence because the trier of fact believed the state’s version
of events over the defendant’s version.’” State v. Amey, 8th Dist. Cuyahoga No.
105847, 2018-Ohio-4207, ¶ 23, quoting State v. Lipkins, 2017-Ohio-4085, ¶ 39, 92
N.E.3d 82 (10th Dist.). In this case, the court, as the trier of fact, was in the best
position to weigh the credibility of the witnesses and was free to give M.S.’s version
of the events more weight. Deferring to the trier of fact’s credibility assessment, we
are unable to conclude that the trier of fact lost its way and created such a manifest
miscarriage of justice that a new trial is warranted.
Simpson’s second assignment of error is overruled.
C. Motion for New Trial
In his third assignment of error, Simpson argues the trial court
committed reversible error when it denied his motion for new trial.
Crim.R. 33 provides an avenue for a post-judgment attack on a valid
criminal conviction. The rule provides for a number of situations where a criminal
defendant may seek a new trial. Relevant to the arguments raised in this case,
Crim.R. 33(A)(6) provides that a new trial may be granted:
When new evidence material to the defense is discovered which the
defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the
ground of newly discovered evidence, the defendant must produce at
the hearing on the motion, in support thereof, the affidavits of the
witnesses by whom such evidence is expected to be given, and if time is
required by the defendant to procure such affidavits, the court may
postpone the hearing of the motion for such length of time as is
reasonable under all the circumstances of the case. The prosecuting
attorney may produce affidavits or other evidence to impeach the
affidavits of such witnesses.
Under Crim.R. 33(B), a motion for a new trial on account of newly
discovered evidence must be filed within 120 days after the verdict. Crim.R. 33(B).
If the 120-day time period has expired, as here, the defendant must first seek leave
of the trial court to file a delayed motion for a new trial. State v. Mathis, 134 Ohio
App.3d 77, 79, 730 N.E.2d 410 (1st Dist.1999).
By its terms, Crim.R. 33 does not require a hearing on a motion for a
new trial. Thus, the decision to conduct a hearing is one that is entrusted to the
discretion of the trial court. State v. Nunez, 8th Dist. Cuyahoga No. 104917, 2017-
Ohio-5581, ¶ 13, citing State v. Smith, 30 Ohio App.3d 138, 139, 506 N.E.2d 1205(9th Dist.1986). The decision whether to grant a motion for a new trial also lies
within the sound discretion of the trial court and will not be disturbed on appeal
absent an abuse of that discretion. State v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d
54 (1990). An abuse of discretion indicates that the trial court’s ruling was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983).
In this case, Simpson filed his motion for a new trial 14 days after the
verdict was rendered against him. Regarding the grounds for his motion for a new
trial, Simpson argues he has “presented additional evidence that would support a
conclusion that [he] was not guilty of the charges against him.” He contends that
the relevant police reports, court records, medical records, and sworn statements
substantiate his testimony regarding his poor medical health and M.S.’s tendency to
lie. Simpson further maintains that the new evidence confirms that M.S. was not
living with Simpson and that Simpson told M.S. to not come to his home on the day
of the incident. Thus, Simpson asserts that “the additional evidence supported a
finding that M.S. had trespassed on his property, that he asked [M.S.] to leave [his
home], and that he was defending himself [against M.S.].”
In order to grant a motion for a new trial on the basis of newly
discovered evidence, a defendant must show:
the new evidence (1) discloses a strong probability that it will change
the result if a new trial is granted, (2) has been discovered since the
trial, (3) is such as could not in the exercise of due diligence have been
discovered before the trial, (4) is material to the issues, (5) is not merely
cumulative to former evidence, and (6) does not merely impeach or
contradict the former evidence.
State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), paragraph one of the syllabus.
The state does not dispute that Simpson’s motion for new trial was
timely filed pursuant to Crim.R. 33. However, the state challenges Simpson’s
characterization of the exhibits attached to his motion as being “newly discovered
evidence.” According to the state, “there was nothing in Simpson’s ‘newly
discovered evidence’ that was new or unable to be obtained at trial.” Thus, the state
asserts that the evidence presented by Simpson “did not disclose a strong possibility
that it would change the result of a new trial if a motion for new trial is granted.”
After careful consideration, we find Simpson has failed to establish
that, with reasonable diligence, the evidence attached to his motion for new trial
could not have been discovered and produced at trial. A review of Simpson’s motion
for a new trial reveals that Simpson relies exclusively on unauthenticated records
and sworn statements that could have been discovered prior to May 2018.
Simpson’s brief on appeal is silent on this issue and he presents no information to
suggest the evidence was unavailable at the time of trial. Significantly, the medical,
police, and cell phone records submitted by Simpson correlated to incidents that
occurred prior to, or contemporaneously with, the July 2017 altercation. Similarly,
the friends and family members identified in Simpson’s motion for a new trial did
not aver that they were unavailable for trial. Nor is there any allegations that
Simpson was prevented from discovering these individuals as potential defense
witnesses prior to trial.
In addition, we note that the cited evidence merely reiterated
Simpson’s testimony at trial that he was overpowered by his trespassing daughter.
While the allegedly new evidence may have corroborated portions of Simpson’s
testimony, the evidence does not present new material information regarding the
scope or nature of Simpson’s role in the physical altercation. Rather, it is merely
cumulative to the theory of the defense presented at trial. Under such
circumstances, we are unable to conclude that the evidence attached to Simpson’s
motion disclosed a strong probability that the result of a new trial would be different.
Based on the foregoing, we find the trial court did not abuse its
discretion in denying Simpson’s motion for a new trial without an evidentiary
hearing. Simpson’s third assignment of error is overruled.
D. Ineffective Assistance of Counsel
In his fourth assignment of error, Simpson argues defense counsel
rendered ineffective assistance of counsel by failing to set forth the proper
foundation for the introduction of text message correspondences between Simpson
and M.S. on the day of the altercation.
To establish ineffective assistance of counsel, a defendant must
demonstrate that counsel’s performance fell below an objective standard of
reasonable representation and that he was prejudiced by that performance. State v.
Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Prejudice is established when the defendant demonstrates “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland at 694.
In evaluating a claim of ineffective assistance of counsel, a court must
be mindful that there are countless ways for an attorney to provide effective
assistance in a given case, and it must give great deference to counsel’s performance.
Id. at 689. Trial tactics and strategies do not constitute a denial of effective
assistance of counsel. State v. Gooden, 8th Dist. Cuyahoga No. 88174, 2007-Ohio-
2371, ¶ 38, citing State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).
Here, the record reflects that during Simpson’s direct examination,
he referenced a text message conversation he had with M.S. on the day of the
altercation. Simpson testified that in the text messages, “he advised her not to come
to [his] house” because he was frustrated with decisions M.S. was making in her
personal life. During Simpson’s testimony, the state raised an objection to
Simpson’s continued reference to phone records that were not turned over to the
state prior to trial. The trial court agreed that the state was entitled to view the
records before trial, and therefore, the phone records were not introduced into
evidence.
On appeal, Simpson argues defense counsel rendered ineffective
assistance of counsel by (1) failing to seek a continuance in order to ensure the state
was presented with a copy of the records prior to trial, and (2) by failing to “mark or
proffer the content of the text messages for purposes of the record and review.”
Simpson further contends that he was prejudiced by counsel’s performance and his
inability to introduce evidence establishing that he told M.S. not to come to his home
on July 3, 2017.
As noted in Simpson’s appellate brief, this court is unable to review
the substance of the challenged phone records because they are not part of this
record. Thus, we are left to speculate as to whether the referenced text message
conversation may have contained damaging information that defense counsel did
not wish to introduce into evidence as part of a trial strategy. Nevertheless, even if
this court were to conclude that defense counsel’s failure to secure and produce the
subject phone records for trial amounted to deficient performance, we find Simpson
is unable to demonstrate that he was prejudiced. Although the text message
conversation was not introduced at trial, Simpson offered extensive testimony
concerning the substance of the conversation, including his directive to M.S. that
she was not welcome to come to his home on the day of the incident. Viewing the
evidence presented at trial in its entirety, we are unable to conclude that there is a
reasonable probability that the result of the proceeding would have been different
had the phone records been introduced at trial. While Simpson contends that the
text messages would corroborate his testimony that M.S. was trespassing in his
home at the time of the altercation, the phone records would not have been directly
dispositive of M.S.’s allegations that Simpson physically attacked her following a
verbal argument. Accordingly, we find Simpson has not established a meritorious
claim for ineffective assistance of counsel.
Simpson’s fourth assignment of error is overruled.
E. No-Contact Order
In his fifth assignment of error, Simpson argues the trial court erred
by ordering him to have no contact with M.S. Simpson contends that he loves his
daughter, is battling cancer, and is capable of avoiding his daughter absent a court
order “if that is her desire.”
We review the trial court’s imposition of community control sanctions
for an abuse of discretion. State v. Cooper, 2016-Ohio-8048, 75 N.E.3d 805, ¶ 31
(8th Dist.), citing State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d
1201, ¶ 10. Notwithstanding this broad discretion, the trial court’s discretion “is not
limitless.” State v. White, 10th Dist. Franklin No. 14AP-1027, 2015-Ohio-3844, ¶ 5,
citing Talty at ¶ 11.
A court may impose additional community control conditions as long
as those conditions are “not * * * overbroad and [are] reasonably relate[d] to the
goals of community control: ‘rehabilitation, administering justice, and ensuring
good behavior.’” State v. Mahon, 8th Dist. Cuyahoga No. 106043, 2018-Ohio-295,
¶ 7, quoting Talty. To determine whether a condition of community control serves
those purposes, “courts should consider whether the condition (1) is reasonably
related to rehabilitating the offender, (2) has some relationship to the crime of which
the offender was convicted, and (3) relates to conduct which is criminal or
reasonably related to future criminality and serves the statutory ends of probation.”
State v. Jones, 49 Ohio St.3d 51, 53, 550 N.E.2d 469 (1990). A trial court does not
abuse its discretion where all three prongs of the Jones test are satisfied. Mahon at
¶ 8, citing White.
As stated, Simpson was convicted of felonious assault, domestic
violence, and abduction. The offenses corresponded to acts committed against M.S.
In our view, the no-contact condition of Simpson’s community control sanctions has
an obvious relationship to the crimes for which Simpson was convicted. The
condition is also reasonably related to rehabilitating Simpson. Specifically, “‘it is
aimed at keeping him out of situations where he may be tempted to reoffend.’” State
v. Minarik, 8th Dist. Cuyahoga No. 106326, 2018-Ohio-3586, ¶ 77, quoting State v.
Recker, 3d Dist. Putnam Nos. 12-14-03 and 12-14-04, 2014-Ohio-4993, ¶ 18; see
also State v. Hultz, 5th Dist. Ashland No. 06-COA-003, 2006-Ohio-4056, ¶ 14 (“The
removal of appellant from places of temptation is related to promoting
rehabilitation and good behavior and deterring future criminality.”). In addition,
the condition relates to future criminality and serves the statutory ends of
community control since the no-contact order will ensure that Simpson has no
opportunity to engage with M.S. during the term of his community control. Finally,
we find the no-contact order is not overly broad. The no-contact order is limited to
the victim of the subject offenses and is fashioned in a manner that promotes the
statutory ends of probation, such as rehabilitation, administering justice, and
ensuring the offender’s good behavior.
Under the foregoing circumstances, we find the trial court did not
abuse its discretion in fashioning a sentence that included a no-contact order that
was designed to rehabilitate, administer justice, and ensure Simpson’s good
behavior.
Simpson’s fifth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR