State v. Klinkner

[Cite as State v. Klinkner, 2014-Ohio-2022.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-469
v. : (C.P.C. No. 12CR-1089)
Kyle L. Klinkner, aka Klinker, : (REGULAR CALENDAR)
Defendant-Appellant. :
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-521
v. : (C.P.C. No. 12CR-1090)
Kenneth A. Bryant, : (REGULAR CALENDAR)
Defendant-Appellant. :
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-595
v. : (C.P.C. No. 12CR-1091)
William M. Bryant, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on May 13, 2014
Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
appellee.
Todd Barstow, for appellant Kyle L. Klinkner, aka Klinker.
Nos. 13AP-469, 13AP-521 and 13AP-595 2
Scott & Nolder Co., L.P.A., and Steven S. Nolder, for appellant
Kenneth A. Bryant.
Yeura R. Venters, Public Defender, and David L. Strait, for
appellant William M. Bryant.
APPEALS from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} In these consolidated appeals, defendants-appellants William M. Bryant,
Kenneth Bryant, and Kyle L. Klinkner each appeal from judgment entries of conviction
and sentence entered by the Franklin County Court of Common Pleas. For the following
reasons, we affirm those judgments.
I. Factual and Procedural Background
{¶ 2} A Franklin County Grand Jury indicted all three appellants with one count
of felonious assault, in violation of R.C. 2903.11. The charges arose out of a fight involving
the three men and Kenneth's former employer, Victor Tantarelli, Sr. Appellants entered
not guilty pleas and proceeded to a trial. Appellants waived their rights to a jury trial and
all three appellants were tried together to the same judge.
{¶ 3} Victor Tantarelli, Sr. ("Vic Sr.") owns a body shop in Columbus, Ohio, and
employed Kenneth as an auto technician in 2011. In December 2011, Kenneth stopped
working for Vic Sr. and apparently left repair work on a number of cars unfinished.
According to Vic Sr.'s policy, however, he does not pay employees for their time until they
complete their work on the assigned cars. Because Kenneth left his work unfinished, he
had not been paid for some of the time he had worked.
{¶ 4} On January 6, 2012, Kenneth returned to the body shop to pick up his tools.
He brought with him his dad, William, and Kyle Klinkner. William and Kyle were both
auto technicians at Kenneth's new place of employment. Kyle drove the three men to the
body shop because he had a big truck that could hold Kenneth's tool box, which weighed
almost 1,000 pounds. The men went in the body shop, got the tool box, and brought it
out to Kyle's truck. Kenneth also handed his keys to the body shop to Vic Sr.'s son, Vic Jr.
The three men went back to the truck and remained there for 10 to 15 minutes.
Nos. 13AP-469, 13AP-521 and 13AP-595 3
{¶ 5} At that point, the three men got out of the truck and walked back inside the
body shop. Kenneth went inside the office where Vic Sr. was eating lunch and William
and Kyle stood outside the office door. Kenneth asked Vic Sr. if he planned to pay him for
the work Kenneth did on the unfinished jobs. Vic Sr. told him that he would not pay him
because Kenneth quit before the cars were finished. The men began yelling at each other
and Vic Sr. came out from behind the desk where he was sitting and approached Kenneth.
Here, the respective versions of events begin to diverge.
{¶ 6} According to Vic Sr. and another employee of the body shop, when Vic Sr.
approached Kenneth, Kenneth punched him twice in the chest. He then pulled Vic Sr.
down to the ground and pinned Vic Sr.'s arms close to his body. While Kenneth held Vic
Sr. down on the ground, William punched him a few times and Kyle kicked him a number
of times. Employees of the body shop soon came out and broke up the fight, after which
William, Kenneth, and Kyle left the scene. Vic Sr. sustained serious physical injuries as a
result of the fight.
{¶ 7} Appellants each presented slightly different versions of events. They each
testified that they went over to the body shop to get Kenneth's tools. Kenneth testified,
however, that he decided to ask Vic Sr. for some money that day because some repair
shops will pay an auto technician for time spent working on a car even if the technician
quits before completing the work. When Vic Sr. told Kenneth he would not pay him,
Kenneth swore at him and began walking out of the office. According to Kenneth, Vic Sr.
was yelling as Vic Sr. approached him. Vic Sr. pushed him and Kenneth grabbed at Vic Sr.
so he would not fall down. The two men became entangled and fell to the floor. Kenneth
denied punching Vic Sr. or pinning his arms while they were on the ground. He thought
they were only on the ground for a few seconds until he was able to release himself from
Vic Sr. and leave the scene. He did not observe William or Kyle hit Vic Sr.
{¶ 8} Kyle testified that he was standing near the office when he heard Kenneth
and Vic Sr. yelling at each other. He then saw Vic Sr. grab at Kenneth's shirt. He did not
see Kenneth punch Vic Sr. Kyle thought that Kenneth lost his footing and grabbed at Vic
Sr. to stop his fall. The two men stumbled around and fell down. Kyle stated he did see
Kenneth holding Vic Sr.'s arms. Kyle and William began to go toward the fight but as they
Nos. 13AP-469, 13AP-521 and 13AP-595 4
did, they saw Vic Jr. and another man coming to break up the fight. Kyle denied kicking
Vic Sr. but testified that William punched Vic Sr. and may have kicked him once.
{¶ 9} William testified that all three of the men went inside the body shop so that
Kenneth could get his last paycheck. Kenneth went into the office while William and Kyle
stood nearby. Kenneth asked Vic Sr. for his check but Vic Sr. told him that he would not
pay him because the work was not finished. The two men began to escalate their voices
and then William saw Kenneth start to leave the office. Vic Sr. came at Kenneth and
pushed him as if he wanted him out of the office. Vic Sr. also grabbed Kenneth and the
two came "flying out" of the office and then fell down. (Tr. 996.) William did not see
Kenneth punch Vic Sr. before they fell to the ground. According to William, Kenneth had
Vic Sr. on the ground in a bear hug while Vic Sr. yelled for help. William saw Vic Sr.
strangling Kenneth and also trying to kick him. William became scared for his son's life,
so he approached the two men and kicked and hit Vic Sr. to free Kenneth from the
altercation. Shortly thereafter, the other men came to the scene of the fight and broke it
up.
{¶ 10} The trial judge found all three appellants guilty of felonious assault. The
judge found the appellants' version of events not credible and concluded that they went to
the body shop to either get money from Victor Sr. or to beat him up. The trial court
sentenced them accordingly.
II. The Appeals
{¶ 11} All three appellants appeal their convictions.
{¶ 12} William Bryant assigns the following errors:
[1.] Given the nature of the case, the evidence presented by
the State, and the defenses asserted by Defendant-Appellant,
the failure of the trial court to conduct a hearing to evaluate
the nature and extent of plea negotiations was error.
[2.] The judgment of the trial court is not supported by
sufficient, credible evidence.
[3.] The judgment of the trial court is against the manifest
weight of the evidence.
{¶ 13} Kyle L. Klinkner assigns the following errors:
Nos. 13AP-469, 13AP-521 and 13AP-595 5
[1.] WHEN A MOTION FOR NEW TRIAL IS FILED ON THE
TRIAL LEVEL AFTER A NOTICE OF APPEAL GRANTS
JURISDICTION TO THE COURT OF APPEALS, THE BEST
INTERESTS OF ALL PARTIES WOULD BE SERVED IF THIS
COURT REMANDS THE APPEAL TO THE TRIAL COURT
TO LITIGATE THE NEW TRIAL MOTION.
[2.] PREJUDICIAL ERROR OCCURS WHEN THE
ACCUSED IS TRIED WITH TWO CO-DEFENDANTS, AND
TESTIMONY SHOWS ANTAGONISTIC DEFENSES
BETWEEN THE ACCUSED AND THE OTHER TWO CO-
DEFENDANTS, MANDATING SEVERANCE, CONSISTENT
WITH THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION.
[3.] WHEN THE ACCUSED WAIVES A TRIAL BY JURY,
BUT DOES SO WITH TWO OTHER CO-DEFENDANTS, THE
CASE MUST BE REMANDED TO DETERMINE WHETHER
THE WAIVER WAS INVOLUNTARY AND OCCURRED AS A
RESULT OF AN AGREEMENT WITH THE OTHER CO-
DEFENDANTS, CONTRA THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION.
[4.] WHEN THERE IS NO INDICATION DURING THE
PRE-TRIAL STAGES OF THE STATUS OF PLEA
NEGOTIATIONS, UNDER THE UNITED STATES SUPREME
COURT CASE OF LAFLER V. COOPER, THE CASE MUST
BE REMANDED TO THE TRIAL COURT FOR A HEARING
TO DETERMINE WHETHER THE ACCUSED WAS
PROPERLY ADVISED BY HIS ATTORNEY CONSISTENT
WITH THE SIXTH AND FOURTEENTH AMENDMENTS TO
THE CONSTITUTION.
[5.] WHEN TRIAL COUNSEL COMMITS CONSTITU-
TIONAL VIOLATIONS REPRESENTING THE ACCUSED
DURING THE PRE-TRIAL AND TRIAL STAGES, THE CASE
MUST BE REVERSED AND REMANDED FOR A NEW
TRIAL BECAUSE OF INEFFECTIVE ASSISTANCE OF
COUNSEL, CONTRA THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION.
{¶ 14} Finally, Kenneth Bryant assigns the following errors:
[1.] APPELLANT KENNETH BRYANT WAS DEPRIVED OF
DUE PROCESS WHEN THE STATE AMENDED THE
INDICTMENT.
Nos. 13AP-469, 13AP-521 and 13AP-595 6
[2.] APPELLANT KENNETH BRYANT WAS DEPRIVED OF
THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS
ATTORNEYS FAILED TO MOVE FOR JUDGMENT OF
ACQUITTAL AFTER THE STATE'S OPENING STATEMENT.
[3.] APPELLANT KENNETH BRYANT'S CONVICTION
DEPRIVED HIM OF DUE PROCESS BECAUSE IT WAS
BASED ON INSUFFICIENT EVIDENCE OR WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
[4.] WHEN THERE IS NO INDICATION OF THE STATUS
OF PLEA NEGOTIATIONS, UNDER LAFLER V. COOPER,
APPELLANT KENNETH BRYANT'S CASE MUST BE
REMANDED FOR A HEARING TO DETERMINE
WHETHER HE WAS PROPERLY ADVISED OF THE PLEA
OFFER.
{¶ 15} We will address the assignments of error out of order and, where
appropriate, together.
A. Kyle's Individual Assignments of Error
1. Severance
{¶ 16} Kyle argues in his second assignment of error that the trial court erred by
not severing his trial from his co-defendants. We disagree.
{¶ 17} Before addressing the merits of Kyle's claim, we note that he never asked
the trial court to sever his trial from his co-defendants. That failure forfeits error on
appeal absent plain error. State v. Lott, 51 Ohio St.3d 160, 164 (1990). Under Crim.R.
52(B), plain errors affecting substantial rights may be noticed by an appellate court even
though they were not brought to the attention of the trial court. To constitute plain error,
there must be: (1) an error, i.e., a deviation from a legal rule, (2) that is plain or obvious,
and (3) that affected substantial rights, i.e., affected the outcome of the trial. State v.
Barnes, 94 Ohio St.3d 21, 27 (2002). Even if an error satisfies these prongs, appellate
courts are not required to correct the error. Appellate courts retain discretion to correct
plain errors. Id.; State v. Litreal, 170 Ohio App.3d 670, 2006-Ohio-5416, ¶ 12 (10th
Dist.). Courts are to notice plain error under Crim.R. 52(B) " 'with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of justice.' "
Barnes, quoting State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of syllabus.
Nos. 13AP-469, 13AP-521 and 13AP-595 7
{¶ 18} Crim.R. 8(D) provides that co-defendants may be tried together for a non-
capital offense as long as they are alleged to have participated in the same act or
transaction or in the same course of criminal conduct. State v. Walters, 10th Dist. No.
06AP-693, 2007-Ohio-5554, ¶ 21. As a general rule, the law favors joinder of trials
because, among other reasons, it conserves judicial resources and reduces the possibility
of incongruous results before different juries. Id.; State v. Miller, 10th Dist. No. 11AP-
899, 2013-Ohio-1242, ¶ 50. Nevertheless, a defendant may move for severance from a co-
defendant's trial pursuant to Crim.R. 14 upon a showing of prejudice. Lott at 163. The
defendant has the burden to affirmatively demonstrate prejudice. State v. Payne, 10th
Dist. No. 02AP-723, 2003-Ohio-4891, ¶ 23.
{¶ 19} Appellants' indictment alleged that they participated in the same act.
Therefore, under Crim.R. (8), it was appropriate for them to be tried together. Kyle
argues, however, that his trial should have been severed because of the antagonistic
defenses which arose between himself and his co-defendants. Antagonistic defenses can
prejudice co-defendants to warrant severance. Walters at ¶ 23-24. Defenses are mutually
antagonistic where each defendant attempts to exculpate himself and inculpate his co-
defendants. Walters. To merit severance, the defenses must be antagonistic to the point
of being irreconcilable and mutually exclusive. Miller at ¶ 52, citing Walters.
{¶ 20} We reject Kyle's claim that his defense was mutually antagonistic with that
of the Bryants' defenses. Kyle's defense at trial was that he did not kick or hit Vic Sr.
Alternatively, William's defense at trial was that he acted in defense of his son and
Kenneth argued that the state failed to meet its burden of proof to prove that he assaulted
Vic Sr. These defenses did not attempt to exculpate one person while inculpating another.
In fact, neither William nor Kenneth testified that Kyle ever hit Vic Sr. or otherwise placed
blame on Kyle. Simply put, there is nothing antagonistic about the defenses these
appellants presented at trial. Accordingly, the trial court did not err, let alone commit
plain error, by not severing Kyle's trial from that of his co-defendants. We overrule Kyle's
second assignment of error.
Nos. 13AP-469, 13AP-521 and 13AP-595 8
2. Jury Waiver
{¶ 21} Kyle argues in his third assignment of error that we should remand this case
for the trial court to determine whether he knowingly and voluntarily waived his right to a
jury trial. We disagree.
{¶ 22} At the start of his trial, Kyle signed a document in which he "voluntarily
waive[d] and relinquish[ed] my right to a trial by jury and elect[ed] to be tried by a judge."
Upon receiving the document, the trial court asked Kyle whether he could read and write
English, whether his trial counsel explained the document to him and if he understood the
document, and whether he understood the right to a jury trial that he sought to waive.
Lastly, the trial court asked him if this was his "free and voluntary act." (Tr. 4-6.) Kyle
replied affirmatively to each question and the trial court accepted his waiver and had it
filed in the record.
{¶ 23} The Sixth Amendment to the United States Constitution, made applicable to
the states through the Fourteenth Amendment, guarantees an accused the right to trial by
jury. State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, ¶ 6, citing Duncan v.
Louisiana, 391 U.S. 145 (1968). Likewise, Ohio Constitution, Article I, Section 5, states
that the "right of trial by jury shall be inviolate." However, Crim.R. 23(A) allows a
defendant to waive his right to a trial by jury in serious offense cases provided that the
waiver is made knowingly, intelligently, and voluntarily, and in writing. Additionally,
pursuant to R.C. 2945.05, for a waiver of jury trial to be valid, it must be in writing, signed
by the defendant, filed, made part of the record, and made in open court. Lomax at ¶ 9;
State v. Sanders, 188 Ohio App.3d 452, 2010-Ohio-3433, ¶ 11 (10th Dist.). A written
waiver is presumptively voluntary, knowing, and intelligent. Lomax at ¶ 10.
{¶ 24} Kyle concedes that the trial court complied with Crim.R. 23(A) and R.C.
2945.05. Further, he does not argue that his waiver was not voluntary. Instead, he argues
that in light of the antagonistic defenses that developed between him and his co-
defendants, this court should remand the matter for the trial court to further question
him about the voluntary and intelligent nature of his waiver. We disagree. Kyle has not
alleged or demonstrated any error below and, in fact, concedes that the trial court
satisfied its obligations before accepting his waiver. Accordingly, we overrule Kyle's third
assignment of error.
Nos. 13AP-469, 13AP-521 and 13AP-595 9
3. Motion for New Trial
{¶ 25} Kyle also seeks this court to stay these proceedings and to remand his case
for the trial court to rule on a pending motion for new trial. We already denied Kyle's first
request for the same relief and he presents nothing new to justify a different decision.
State v. Klinkner, 10th Dist. No. 13AP-469, Sept. 24, 2013 (journal entry). Therefore, we
deny this relief.
4. Conclusion
{¶ 26} We overrule Kyle's first, second, and third assignments of error.
B. Kenneth's Individual Assignment of Error
1. The State's "amendment" of his Indictment
{¶ 27} The grand jury indicted Kenneth with a single count of felonious assault in
violation of R.C. 2903.11(A). Kenneth argues in his first assignment of error that the state
"constructively amended" that indictment during his trial. Specifically, Kenneth points
out that he was originally charged as a principal offender but then identified as an aider
and abettor during trial. We reject this argument.
{¶ 28} The state did not need to amend the indictment to proceed under an aiding
and abetting theory against Kenneth. Pursuant to R.C. 2923.03(F), "[a] charge of
complicity may be stated in terms of this section, or in terms of the principal offense."
Thus, a defendant charged with an offense may be convicted of that offense upon proof
that he was complicit in its commission, even though the indictment is "stated * * * in
terms of the principal offense" and does not mention complicity. State v. Herring, 94
Ohio St.3d 246, 251 (2002). R.C. 2923.03(F) adequately notifies defendants that the jury
may be instructed on complicity, even when the charge is drawn in terms of the principal
offense. See State v. Keenan, 81 Ohio St.3d 133, 151 (1998).
{¶ 29} Kenneth's reliance on State v. Killings, 1st Dist. No. C-970167 (May 29,
1998), in support of this assignment of error is misplaced, as it is factually distinguishable
from the present matter. In that case, the defendant was charged as a principal offender
for one count of rape. However, the trial court instructed the jury on complicity for a
separate rape (of the same victim) committed by another individual for which Killings was
not charged with nor provided an opportunity to defend. The jury found Killings guilty of
one count of rape, but the appellate court concluded that because of the complicity
Nos. 13AP-469, 13AP-521 and 13AP-595 10
instruction, they could not determine what act the jury actually found him guilty of: rape,
or that of aiding and abetting a separate rape. Thus, the court concluded that the
complicity instruction was error.
{¶ 30} Here, there are no uncharged acts that Kenneth faced at trial such as in
Killings. All three appellants faced the same charges that arose from the same conduct.
Accordingly, Kenneth's reliance on Killings is unpersuasive.
{¶ 31} The state did not amend Kenneth's indictment. The indictment charged
him with a count of felonious assault and, pursuant to R.C. 2923.03(F), that indictment
put Kenneth on notice that he also could be found complicit in the commission of that
offense. Accordingly, we overrule Kenneth's first assignment of error.
C. The Sufficiency and Manifest Weight of the Evidence
{¶ 32} Kenneth's third assignment of error and William's second and third
assignments of error each contend that their convictions were not supported by sufficient
evidence and were against the manifest weight of the evidence. We disagree.
{¶ 33} Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally adequate to support a verdict. State v. Thompkins,
78 Ohio St.3d 380, 386 (1997). Whether the evidence is legally sufficient to support a
verdict is a question of law. Id.{¶ 34} In determining whether the evidence is legally sufficient to support a
conviction, " '[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. Robinson, 124 Ohio
St.3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St.3d 259 (1991),
paragraph two of the syllabus. A verdict will not be disturbed unless, after viewing the
evidence in the light most favorable to the prosecution, it is apparent that reasonable
minds could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio
St.3d 460, 484 (2001).
{¶ 35} In this inquiry, appellate courts do not assess whether the state's evidence is
to be believed, but whether, if believed, the evidence admitted at trial supports the
conviction. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-80 (evaluation
of witness credibility not proper on review for sufficiency of evidence); State v. Bankston,
Nos. 13AP-469, 13AP-521 and 13AP-595 11
10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that "in a sufficiency of the evidence
review, an appellate court does not engage in a determination of witness credibility;
rather, it essentially assumes the state's witnesses testified truthfully and determines if
that testimony satisfies each element of the crime.").
{¶ 36} The weight of the evidence concerns the inclination of the greater amount of
credible evidence offered to support one side of the issue rather than the other.
Thompkins at 387. (Although there may be sufficient evidence to support a judgment, a
court may nevertheless conclude that a judgment is against the manifest weight of the
evidence. Id.)
{¶ 37} When presented with a challenge to the manifest weight of the evidence, an
appellate court may not merely substitute its view for that of the trier of fact, but must
review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine 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. Id. at 387. An appellate court
should reserve reversal of a conviction as being against the manifest weight of the
evidence for only the most " 'exceptional case in which the evidence weighs heavily against
the conviction.' " Id., quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983);
State v. Strider-Williams, 10th Dist. No. 10AP-334, 2010-Ohio-6179, ¶ 12.
{¶ 38} In addressing a manifest weight of the evidence argument, we are able to
consider the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105,
2010-Ohio-4953, ¶ 6. However, in conducting our review, we are guided by the
presumption that the jury, or the trial court in a bench trial, " '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.' " Id., quoting Seasons
Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Accordingly, we afford great
deference to the trier of fact's determination of witness credibility. State v. Redman, 10th
Dist. No. 10AP-654, 2011-Ohio-1894, ¶ 26, citing State v. Jennings, 10th Dist. No. 09AP-
70, 2009-Ohio-6840, ¶ 55. See also State v. DeHass, 10 Ohio St.2d 230 (1967),
paragraph one of the syllabus (credibility determinations are primarily for the trier of
fact).
Nos. 13AP-469, 13AP-521 and 13AP-595 12
1. The Elements of the Convictions
{¶ 39} In order to find appellants guilty of felonious assault, the state had to prove
that they knowingly caused serious physical harm to another. R.C. 2903.11(A).
2. Appellants' Sufficiency Arguments
{¶ 40} Kenneth argues that the evidence was insufficient to prove that he was
complicit or aided and abetted the others in the attack on Victor Sr. We disagree.
{¶ 41} It is not clear whether the trial court found Kenneth guilty as a principal
offender or as an aider and abetter. Even if the trial court found him guilty of aiding and
abetting, rather than as a principal offender, that conviction would be supported by
sufficient evidence.
{¶ 42} R.C. 2923.03(A)(2) prohibits someone from aiding or abetting another in
committing an offense. To support a conviction for complicity by aiding and abetting
pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant supported,
assisted, encouraged, cooperated with, advised, or incited the principal in the commission
of the crime, and that the defendant shared the criminal intent of the principal. State v.
Johnson, 93 Ohio St.3d 240 (2001), syllabus. Such criminal intent can be inferred from
the presence, companionship, and conduct of the defendant before and after the offense is
committed. Id. at 245. It may also be inferred from the circumstances surrounding the
crime. Columbus v. Bishop, 10th Dist. No. 08AP-300, 2008-Ohio-6964, ¶ 41.
{¶ 43} Here, testimony from Vic Sr. and the other employee who saw the entire
fight indicated that Kenneth punched Vic Sr. twice, pulled him to the ground, held him
down, and pinned his arms, allowing William and Kyle to hit Vic Sr. when Vic. Sr. could
not defend himself. Bishop at ¶ 45 (act of holding down was sufficient, by itself, to convict
as an aider and abetter). Viewing this evidence in the most favorable light to the state, as
we must, the evidence is sufficient evidence for a reasonable trier of fact to conclude that
Kenneth, at a minimum, assisted, supported, or cooperated in the assault of Vic Sr.
{¶ 44} William argues that the evidence was insufficient to prove that he knowingly
caused Vic Sr. serious physical harm. We disagree.
{¶ 45} R.C. 2901.22(B) provides that "[a] person acts knowingly, regardless of his
purpose, when he is aware that his conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when he is
Nos. 13AP-469, 13AP-521 and 13AP-595 13
aware that such circumstances probably exist." State v. Ranson, 10th Dist. No. 01AP-
1049, 2002-Ohio-2398, ¶ 17. " 'Knowingly' does not require the offender to have the
specific intent to cause a certain result. That is the definition of 'purposely.' Instead,
whether a person acts knowingly can only be determined, absent a defendant's admission,
from all the surrounding facts and circumstances, including the doing of the act itself."
(Footnote omitted.) State v. Huff, 145 Ohio App.3d 555, 563 (1st Dist.2001). " 'The test
for whether a defendant acted knowingly is a subjective one, but it is decided on objective
criteria. * * * However, if a given result is probable, a person will be held to have acted
knowingly to achieve it because one is charged by the law with knowledge of the
reasonable and probable consequences of his own acts.' " State v. Thomas, 10th Dist. No.
02AP-778, 2003-Ohio-2199, ¶ 75, quoting State v. McDaniel, 2d Dist. No. 16221 (May 1,
1998).
{¶ 46} William admitted that he kicked Vic Sr. and hit him with his hand at least
twice. While he claims that he did so in defense of his son, such a defense presumes an
intentional and purposeful use of force. See State v. Hubbard, 10th Dist. No. 11AP-945,
2013-Ohio-2735, ¶ 54. William's testimony alone is sufficient for a reasonable fact finder
to conclude that William acted knowingly.
3. Appellants' Manifest Weight of the Evidence Arguments
{¶ 47} In arguing that their convictions were against the manifest weight of the
evidence, Kenneth claims that Vic Sr.'s testimony was not credible. He notes several
purported inconsistencies in Vic Sr.'s testimony.
{¶ 48} A defendant is not entitled to a reversal on manifest weight grounds merely
because inconsistent evidence was offered at trial. State v. Campbell, 10th Dist. No. 07AP-
1001, 2008-Ohio-4831, ¶ 23. The trier of fact is in the best position to take into account
the inconsistencies in the evidence, as well as the demeanor and manner of the witnesses,
and to determine which witnesses are more credible. State v. DeJoy, 10th Dist. No. 10AP-
919, 2011-Ohio-2745, ¶ 27. While appellant points to certain portions of Vic Sr.'s
testimony that were inconsistent with his prior descriptions of the events, these
inconsistencies do not render the conviction against the manifest weight of the evidence.
The judge was aware of these inconsistencies and chose to believe Vic Sr.'s testimony
describing the fight. This is within the province of the trier of fact. State v. Conkel, 10th
Nos. 13AP-469, 13AP-521 and 13AP-595 14
Dist. No. 08AP-845, 2009-Ohio-2852, ¶ 17-18; State v. Thompson, 10th Dist. No. 08AP-
22, 2008-Ohio-4551, ¶ 20-21. Additionally, we note that another employee who saw the
fight provided testimony that was largely consistent with Vic Sr.'s testimony.
{¶ 49} Next, William argues that his conviction is against the manifest weight of
the evidence because he established that he acted in defense of his son. We disagree.
{¶ 50} Defense of family, being a variation of self-defense, is an affirmative defense
that the defendant has the burden of proving by a preponderance of the evidence. R.C.
2901.05(A); State v. Seals, 2d Dist. No. 04CA0063, 2005-Ohio-4837, ¶ 34, citing State v.
Martin, 21 Ohio St.3d 91 (1986). Ohio has long recognized a privilege to defend the
members of one's family. Sharp v. State, 19 Ohio 379 (1850). If a person in good faith
and upon reasonable grounds believes that his wife and family are in imminent danger of
death or serious bodily harm, that person is entitled to use such reasonably necessary
force, even to the taking of life, to defend his wife and family as he would be entitled to use
in defense of himself. State v. Williford, 49 Ohio St.3d 247 (1990). However, a person
who intervenes to help another stands in the shoes of the person whom he is aiding. If
that person is at fault, and therefore not entitled to use force in self-defense, the
intervenor is not justified in using force in that person's defense. See State v. Wenger, 58
Ohio St.2d 336, 338-39 (1979).
{¶ 51} The state's version of events refutes Williams' claim that he acted in defense
of his son. The state's witnesses described a scene where Kenneth began the
confrontation by punching Vic Sr. twice in the chest. Moreover, Kenneth was holding Vic
Sr. down with his arms pinned against him while William and Kyle assaulted him. 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 appellant's version. State v. Webb, 10th
Dist. No. 10AP-189, 2010-Ohio-5208, ¶ 16; Strider-Williams at ¶ 13. The judge, as the
trier of fact, was free to disbelieve William's version of events and believe the state's
version of events. That decision was within the province of the trial judge. State v.
Williams, 10th Dist. No. 08AP-719, 2009-Ohio-3237, ¶ 18-19 (jury's decision to reject
claim of self-defense and believe prosecution's version of events not against manifest
weight of the evidence); Webb at ¶ 17. Given the conflicting testimony regarding how this
fight started and what occurred during the fight, this is not the exceptional case in which
Nos. 13AP-469, 13AP-521 and 13AP-595 15
the evidence weighs heavily against the conviction. Seals at ¶ 47-48 (trial court did not
lose its way in rejecting claim of self-defense).
{¶ 52} Given the conflicting testimony presented, we cannot say that the trial court
clearly lost its way and created a manifest miscarriage of justice. The judge simply
believed the version of events presented by the state's witnesses and disbelieved
appellants' version of events. This was within the province of the judge as the trier of fact.
Accordingly, appellants' convictions are not against the manifest weight of the evidence.
{¶ 53} Appellants' convictions for felonious assault are supported by sufficient
evidence and are not against the manifest weight of the evidence. Accordingly, we
overrule Kenneth's third assignment of error and William's second and third assignments
of error.
D. Ineffective Assistance of Counsel
{¶ 54} Each appellant raises certain claims of ineffective assistance of counsel. To
establish a claim of ineffective assistance of counsel, appellant must show that counsel's
performance was deficient and that counsel's deficient performance prejudiced him.
State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 133, citing Strickland v.
Washington, 466 U.S. 668, 687 (1984). The failure to make either showing defeats a
claim of ineffective assistance of counsel. 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.").
{¶ 55} In order to show counsel's performance was deficient, the appellant must
prove that counsel's performance fell below an objective standard of reasonable
representation. Jackson at ¶ 133. The appellant must overcome the strong presumption
that defense counsel's conduct falls within a wide range of reasonable professional
assistance. Strickland at 689. To show prejudice, the appellant must establish that there
is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-
3426, ¶ 204.
Nos. 13AP-469, 13AP-521 and 13AP-595 16
1. Plea Negotiations and Lafler v. Cooper
{¶ 56} In William's first assignment of error and in Kyle and Kenneth's fourth
assignments of error, all three appellants attempt to raise ineffective assistance of counsel
claims under Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376 (2012). In that case, and the
related case of Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399 (2012), the United States
Supreme Court held that the Sixth Amendment's right to effective assistance of counsel
extends to the plea bargaining process. Lafler at 1384.
{¶ 57} In their assignments of error, however, appellants do not allege that their
trial counsel acted deficiently in the plea bargaining process. Instead, they seek a remand
of this matter for the trial court to hold a hearing to determine whether the state offered a
plea bargain that trial counsel did not communicate to them. Because appellants fail to
allege, let alone demonstrate, error, we have no reason to remand the matter.
2. Appellants' Claims of Ineffective Assistance of Counsel
{¶ 58} Kenneth and Kyle, in their second and fifth assignments of error,
respectively, assert other claims of ineffective assistance of counsel.
{¶ 59} Kenneth specifically argues that his trial counsel was ineffective for not
moving for a judgment of acquittal after the state's opening argument. Kenneth is
mistaken. Trial counsel did move for a judgment of acquittal after the state's opening
argument, which the trial court denied. (Tr. 27.)
{¶ 60} Kyle asserts a number of instances of alleged ineffective conduct by his
counsel. First, he argues that trial counsel deficiently failed to file a motion to sever his
trial from his co-defendants. We have already concluded that appellants did not have
antagonistic defenses. Therefore, a motion to sever would have been meritless.
Therefore, trial counsel was not ineffective for failing to file a motion to sever. State v.
Kelley, 179 Ohio App.3d 666, 2008-Ohio-6598, ¶ 76 (7th Dist.); State v. Simms, 10th Dist.
No. 10AP-1063, 2012-Ohio-2321, ¶ 49.
{¶ 61} Second, Kyle appears to argue that counsel was ineffective for allowing him
to waive his right to a jury trial. The record demonstrates, as noted above, that Kyle's
choice to waive his right to a jury trial was voluntary and that the trial court fulfilled its
obligation to ensure that his choice was voluntary. This defeats any claim of alleged
Nos. 13AP-469, 13AP-521 and 13AP-595 17
ineffective assistance of counsel with respect to the jury waiver. State v. Webb, 10th Dist.
No. 10AP-289, 2010-Ohio-6122, ¶ 70-72.
{¶ 62} Third, Kyle argues that trial counsel acted deficiently by not interviewing a
witness and not securing his presence at trial. Even assuming this was deficient conduct,
Kyle cannot demonstrate that he was prejudiced. He speculates without any evidentiary
support that this witness's testimony would have been important. It is pure speculation to
conclude that the result of his trial would have been different had the additional witness
testified. Williams at ¶ 35, citing State v. Thorne, 5th Dist. No. 2003CA00388, 2004-
Ohio-7055, ¶ 70 (failure to show prejudice without affidavit describing testimony of
witnesses not called); State v. Stalnaker, 5th Dist. No. 21731, 2004-Ohio-1236, ¶ 9. This
type of vague speculation is insufficient to establish ineffective assistance of counsel.
State v. Wiley, 10th Dist. No. 03AP-340, 2004-Ohio-1008, ¶ 30.
{¶ 63} Lastly, Kyle argues that trial counsel deficiently questioned Vic. Sr. during
his cross-examination by not asking him about allegedly inconsistent statements he made
in a pre-trial deposition. We disagree. The scope of cross-examination clearly falls within
the ambit of trial strategy, and debatable trial tactics do not establish ineffective
assistance of counsel. State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, ¶ 45, citing
State v. Campbell, 90 Ohio St.3d 320, 339 (2000).
{¶ 64} Each of the appellants has failed to demonstrate ineffective assistance of
counsel. Accordingly, we overrule William's first assignment of error, Kyle's fourth and
fifth assignments of error, and Kenneth's second and fourth assignments of error.
III. Conclusion
{¶ 65} Having overruled all of the assignments of error presented by these
appellants, we affirm the judgments of the Franklin County Court of Common Pleas in
each of these cases.
Judgments affirmed.
CONNOR and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, of the Third Appellate District,
assigned to active duty under authority of Ohio Constitution,
Article IV, Section 6(C).