State v. Ward

[Cite as State v. Ward, 2012-Ohio-4807.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : William B. Hoffman, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2011-CA-100
:
:
JOSEPH WARD, III : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Richland
County Court of Common Pleas Case
No. 2010-CR-0896H
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 12, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. JEFFEREY R. STIFFLER
Prosecuting Attorney Badnell & Dick Co., L.P.A.
Richland County, Ohio 21 North Walnut Street
Mansfield, Ohio 44902
BY: JOHN C. NIEFT
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
[Cite as State v. Ward, 2012-Ohio-4807.]
Edwards, J.
{¶1} Appellant, Joseph Ward, III, appeals a judgment of the Richland County
Common Pleas Court convicting him of two counts of having a weapon under disability
(R.C. 2923.13(A)(3)) and one count of possession of heroin (R.C. 2925.11(A)).
Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On December 3, 2010, Richland County Dispatch received two 911 calls
from 244 Remy Avenue in Mansfield. In the first call, the dispatcher could hear
someone crying, and then the call was disconnected. In the second call, a person who
was crying said that someone was trying to kill her, and the call then disconnected.
{¶3} Ruth Bond, who had an on and off relationship with appellant, had a
miscarriage earlier in the day. Upset that appellant would not go with her to the
emergency room, Bond went out drinking with the father of her six-year-old daughter.
She came home and went to bed. She decided that she would go to work the next
morning, report the miscarriage to the company nurse and be sent to the hospital from
work.
{¶4} When Bond woke up, appellant was hitting and choking her. He checked
her phone and then left the room, returning with a pistol. Appellant put the gun to her
head and threatened to kill her. She had her cell phone in bed with her and called 911
from her home at 244 Remy Avenue.
{¶5} Mansfield police officers responded to the call. After several minutes of
knocking, Bond answered the door. The officers noted that she was sobbing and had a
scratch and redness on her neck. Bond told officers that appellant had threatened her
Richland County App. Case No. 2011-CA-100 3
with a handgun. Officers located a loaded handgun in the bedroom closet, which Bond
identified as belonging to appellant. She also told police that appellant had a rifle under
the basement stairs. Officers located an assault-type rifle, where Bond had indicated
they would find it, with a collapsible stock and an empty magazine nearby. Police
found a small bag of marijuana in the living room and asked Bond about the drugs.
Bond responded that the marijuana belonged to appellant, and he had heroin in the
freezer. Officers found 3.82 grams of heroin in a plastic container in the freezer.
According to Bond, the weapons and the drugs belonged to appellant. Appellant was
under disability from owning a firearm due to a previous conviction for drug trafficking.
{¶6} Bond contacted the Mansfield Police on December 9, 2010, stating that
she wanted to recant her statements regarding domestic violence and appellant’s
ownership of the weapons and drugs; however, she never appeared at the station to
make an official statement. She did later sign a notarized statement recanting her
statements to the police and sent a letter to appellant apologizing for lying to the police.
{¶7} Appellant was indicted for two counts of weapons under disability and one
count of possession of heroin. Before the grand jury, Bond testified that she could not
remember any of the events of December 3, 2010, because she was drunk.
{¶8} The case proceeded to jury trial. A hearing was held out of the presence
of the jury to determine whether Bond would testify. Bond was represented by counsel.
The State granted her immunity for her testimony except for a misdemeanor charge of
permitting drug abuse. Bond did not testify during this hearing that she lied when she
told police the items belonged to appellant. However, she was afraid to testify because
she feared for her safety and the safety of her kids. She said she would not be willing to
Richland County App. Case No. 2011-CA-100 4
testify if she could be assured of their safety because she had “watched too many
Lifetime movies where it doesn’t work.” Tr. 93.
{¶9} Bond testified at trial that the truth is that the drugs and guns belonged to
appellant. She testified that she recanted her story later because appellant told her “he
needed to have his story be told in a way in which he would not be sent to jail.” Tr. 153.
She further admitted that in 2008, she paid a $70 fine for falsification when she told
police that appellant beat her up, but later told “the victim’s advocate lady” that he did
not beat her even though he had, in fact, beat her.
{¶10} Appellant was convicted of all three offenses and sentenced to an
aggregate term of imprisonment of four years. He assigns three errors on appeal:
{¶11} “I. APPELLANT’S FEDERAL AND STATE CONSTITUTIONAL RIGHTS
TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED WHEN HE WAS
CONVICTED OF TWO COUNTS OF POSSESSING A WEAPON WHILE UNDER
DISABILITY AND ONE COUNT OF POSSESSION OF DRUGS WHEN THE
EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTIONS.
{¶12} “II. APPELLANT’S CONVICTIONS FOR TWO COUNTS OF
POSSESSING A WEAPON WHILE UNDER DISABILITY AND ONE COUNT OF
POSSESSION OF DRUGS WERE AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AND, THUS, HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A
FAIR TRIAL WERE VIOLATED AS PROVIDED BY THE UNITED STATES
CONSTITUTION AND THE OHIO CONSTITUTION.
Richland County App. Case No. 2011-CA-100 5
{¶13} “III. APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF
COUNSEL, IN VIOLATION OF BOTH HIS STATE AND FEDERAL CONSTITUTIONAL
RIGHTS, AT THE TRIAL LEVEL.”
I, II
{¶14} In his first and second assignments of error, appellant argues that the
judgment is not supported by sufficient evidence and is against the manifest weight of
the evidence. He argues that the only evidence to show that he possessed the
weapons and the heroin was the testimony of Ruth Bond. He argues her testimony
cannot be believed, as she recanted several times before trial.
{¶15} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St.3d 380, 387,
1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1983).
{¶16} An appellate court's function when reviewing the sufficiency of the
evidence is to determine 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. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492, paragraph two of the syllabus (1991).
Richland County App. Case No. 2011-CA-100 6
{¶17} Appellant was convicted of two counts of having a weapon under disability
as defined by R.C. 2923.13(A)(3):
{¶18} “(A) Unless relieved from disability as provided in section 2923.14 of the
Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or
dangerous ordnance, if any of the following apply:
{¶19} “(3) The person is under indictment for or has been convicted of any
felony offense involving the illegal possession, use, sale, administration, distribution, or
trafficking in any drug of abuse or has been adjudicated a delinquent child for the
commission of an offense that, if committed by an adult, would have been a felony
offense involving the illegal possession, use, sale, administration, distribution, or
trafficking in any drug of abuse.”
{¶20} He was also convicted of possessing heroin in violation of R.C.
2925.11(A):
{¶21} “(A) No person shall knowingly obtain, possess, or use a controlled
substance.”
{¶22} Ruth Bond testified at trial that appellant was living with her on December
3, 2010, and that she had lied when she told the grand jury he was living in Columbus.
She identified a letter addressed to appellant at her Mansfield address, and she testified
that the male clothing police found in the closet in her home where they found the
handgun belonged to appellant. She testified that the guns and the heroin belonged to
appellant. She admitted to recanting her testimony before trial, and testified that she did
so at appellant’s request because she was afraid of him. She testified that he instructed
her as to how to write the notarized statement recanting her testimony.
Richland County App. Case No. 2011-CA-100 7
{¶23} The State presented the testimony of Michelle Krill, a victim advocate, who
testified that it is not uncommon for domestic violence victims to recant, and probably
75-80% of such victims recant over time, not because the allegations are false but
because of fear.
{¶24} Further, the police officers who responded to the call testified that Bond
was visibly shaken and crying when she opened the door. The officers testified that
Bond told them at the time that the handgun, rifle and heroin belonged to appellant.
They noted that she had been drinking, but did not show signs of being heavily
intoxicated.
{¶25} This evidence is sufficient, if believed by the jury, to support a finding that
guns and the heroin belonged to appellant. Further, we cannot find that the jury lost its
way when believing Ruth Bond’s trial testimony. The jury was in a better position than
this court to view her demeanor, and her trial testimony was the same as her initial
statements to the police on December 3, 2010.
{¶26} The first and second assignments of error are overruled.
III
{¶27} In his third assignment of error, appellant argues that his trial counsel was
ineffective.
{¶28} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel’s error, the
result of the proceedings would have been different. Strickland v. Washington, 466
Richland County App. Case No. 2011-CA-100 8
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989). In other words, appellant must show that counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be
relied upon as having produced a just result. Id.{¶29} Appellant first argues that counsel was ineffective for failing to move for
acquittal pursuant to Crim. R. 29(A) because the evidence was insufficient to support a
conviction. As discussed earlier in this opinion, there was sufficient evidence to support
a conviction on all three charges. Therefore, counsel was not ineffective for failing to
move for a directed verdict of acquittal on that basis.
{¶30} Appellant next argues that counsel failed to object to leading questions
asked of Ruth Bond and Officer Loughman. While appellant cites this court to pages in
the transcript where he argues counsel should have objected, he does not direct this
court to specific leading questions, nor does he explain how he was prejudiced by such
questioning.
{¶31} Evid.R. 611(C) provides, “[l]eading questions should not be used on the
direct examination of a witness except as may be necessary to develop the witness’
testimony.” The failure to object to leading questions does not usually constitute
ineffective assistance of counsel. State v. Jackson, 92 Ohio St.3d 436, 449, 2001-Ohio-
1266, 751 N.E.2d 946. The failure to object is not a per se indicator of ineffective
assistance of counsel, because sound trial strategy might well have been not to
interrupt. State v. Gumm, 73 Ohio St.3d 413, 428, 653 N.E.2d 253 (1995).
{¶32} Appellant cites this Court to pages 148-149 of the testimony of Ruth Bond.
While the State asked leading questions of Bond on these pages, the questions were
Richland County App. Case No. 2011-CA-100 9
used in summarizing her earlier testimony that she had directed the police to the
whereabouts of the guns and the heroin which belonged to appellant. Appellant argues
that the prosecutor asked leading questions of Officer Loughman on transcript page
195; however, upon examination of that page we find no leading questions. We
cannot find that counsel’s failure to object to the testimony on the pages cited by
appellant constituted ineffective assistance, as it may have been sound strategy to not
interrupt and appellant has not demonstrated prejudice.
{¶33} Appellant also argues that counsel did not object to questions that
required hearsay answers at pages 123, 131 and 199 of the transcript. In his brief,
appellant does not point to specific questions, does not tell this Court which witness was
testifying, and does not explain how he was prejudiced by the admission of hearsay.
He merely makes a conclusory statement that counsel failed to object to questions that
required hearsay answers.
{¶34} Hearsay is defined by Evid. R. 801(C) as a statement, other than one
made by the declarant while testifying at trial, offered to prove the truth of the matter
asserted in the statement.
{¶35} At pages 123 and 131 of the transcript, the victim advocate Michelle Krille
testified as to what Bond told her over the phone, including her fear that appellant would
kill her and that she didn’t care if she was charged with falsification. These statements
were not offered to prove the truth of the matter asserted, but were offered to show
Bond’s state of mind at the time she recanted her testimony. Further, Bond testified as
to these statements at trial and was subject to cross-examination.
Richland County App. Case No. 2011-CA-100 10
{¶36} At page 199 of the transcript, Officer Loughman testified that when he
asked Bond to sign a domestic violence affidavit, she replied that if she signed anything,
appellant would kill her. Again, this was not offered to prove that appellant was going to
kill her, but was offered to show her state of mind and explain why she was
uncooperative with the police.
{¶37} Appellant has not demonstrated that counsel was ineffective for failing to
object to hearsay.
{¶38} Appellant next argues that counsel failed to elaborate on the fact that
Bond had been threatened with felony charges if she failed to testify, that she had
previously been charged with falsification and that there were discrepancies between
her grand jury testimony and her trial testimony. This argument is without merit.
Counsel cross-examined Bond extensively about possible felony charges, her prior
falsification charge, her grand jury testimony which she stated at trial was false, her
notarized statement recanting her testimony and her letter to appellant claiming she lied
about the guns and heroin belonging to him. The focus of counsel’s cross-examination
of Ruth Bond was her credibility.
{¶39} Finally, appellant argues that counsel should have objected to the chain of
custody of the evidence. Appellant concedes that “[a]s there were no motions to
suppress or motions in limine filed by Appellant’s trial counsel, the record on appeal is
absent of these possible issues.” Brief of appellant, page 12. The record does not
support appellant’s claim that there were potential problems with the chain of custody.
Appellant therefore cannot demonstrate from the record that counsel was ineffective for
failing to object to the chain of custody.
Richland County App. Case No. 2011-CA-100 11
{¶40} The third assignment of error is overruled.
{¶41} The judgment of the Richland County Common Pleas Court is affirmed.
By: Edwards, J.
Hoffman, P.J. and
Farmer, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0725
[Cite as State v. Ward, 2012-Ohio-4807.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JOSEPH WARD, III :
:
Defendant-Appellant : CASE NO. 2011-CA-100
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed
to appellant.
_________________________________
_________________________________
_________________________________
JUDGES