New Lexington v. McCabe

[Cite as New Lexington v. McCabe, 2022-Ohio-3110.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
VILLAGE OF NEW LEXINGTON JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 21 CA 16
JOSEPH MCCABE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Court,
Case No. CRB 2000510
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 1, 2022
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JAMES S. SWEENEY ADAM T. BARCLAY
JAMES SWEENEY LAW, LLC NEX LEXINGTON VILLAGE SOLICITOR
285 South Liberty Street 111 North Fourth Street
Powell, Ohio 43065 Zanesville, Ohio 43701
Perry County, Case No. 21 CA 16 2
Wise, J.
{¶1} Appellant Joseph McCabe appeals his conviction and sentence entered
November 5, 2021, in the Perry County Municipal Court on one misdemeanor count of
Assault, following a jury trial.
{¶2} Appellee is the Village of New Lexington.
STATEMENT OF THE FACTS AND CASE
{¶3} For purposes of this appeal, the facts and procedural history are as follows:
{¶4} Appellant Joseph McCabe was charged with one count of Assault, a
misdemeanor of the first degree, in violation of R.C. §2903.13, one count of Aggravated
Menacing, a misdemeanor of the first degree, in violation of R.C. §2903.21, and one count
of Ethnic Intimidation, a misdemeanor of the first degree, in violation of R.C. §2927.12.
The charges stem from an incident which occurred on July 5, 2020.
{¶5} On September 27, 2021, a jury trial commenced in this matter. The Village
presented the testimony of the alleged victim Leon Davis, his wife, Ronda Davis., and
Officer David Crate. Appellant presented the testimony of Brenda Johnson, Greg Holman,
Carl Finck, Cathy Finck and Charles Williams.
{¶6} Leon and Ronda Davis testified to the events they witnessed occur on July
5, 2020, as well as to the relevant events leading up to July 5, 2020.
{¶7} Ronda Davis testified that on July 3, 2020, a few kids were on the neighbor's
pool deck, yelling "oh, oh, monkeys" at her and Mr. Davis. Id. at 102-103. Mr. Davis then
yelled back at the kids "go get your fucking mom." T. at 103. She further testified that on
July 5, 2020, when she and Leon Davis were returning home from the grocery store, there
was a group of men in the neighbor Carl Finck’s garage who were all watching them and
Perry County, Case No. 21 CA 16 3
staring at them. T. at 104. She testified that as she was getting out of the car she heard
yelling and saw that the group of men were coming toward them, with Appellant Joseph
McCabe calling her a “nigger loving bitch” and telling her that if she ever said anything to
his kids again he would kill her. T. at 105. She stated that Leon Davis then got in between
her and McCabe and that McCabe swung at Mr. Davis but that Mr. Davis moved so the
swing missed. Id. She recalled that the other men in the group were yelling “get that
nigger, Joey, get that nigger.” T. at 105-106. She stated that she saw McCabe hit Leon’s
leg and the two men fell to the ground and began fighting on the ground. T. at 122. At that
time, she said Leon was able to strike McCabe, but that Carl Finck and Charles Williams
both joined in the fight against Leon. T. at 121.
{¶8} Leon Davis testified that on July 5, 2020, as he was getting groceries out of
his vehicle, he heard his neighbor, Joseph McCabe, call his wife a "nigger lovin' bitch"
and yell "don't ever say nothing to them kids or I'll kill you" because of the event that
occurred between the kids on the neighbor's pool deck and Mrs. Davis on July 3, 2020.
T. at 57-59. As Defendant-Appellant was yelling this at Mrs. Davis, McCabe was "tearing
off his shirt" and coming towards Mr. and Mrs. Davis. Id.
{¶9} McCabe then swung at Mr. Davis. Id. Mr. Davis was able to duck and move
out of the way of the punch. Id. Mr. Davis then yelled at McCabe regarding him teaching
his children to be racist. T. at 59. McCabe replied, "you are a monkey, nigger." T. at 60.
He recalled that McCabe swung at him again and missed, and that he smelled liquor on
him. T. at 60. He stated that when he saw McCabe coming toward him and the other men
following him and cheering him on saying “get the nigger, get him, Joey, get him”, he
grabbed an ice scraper out of the hatchback of his car and “held it as if to slash.” T. at 60.
Perry County, Case No. 21 CA 16 4
He recalled that he told McCabe, “look, man, you need to go back up in the garage you
came out of. Y’all have been drinking all night. You don’t know what you are doing. I’m
65 years old. My wife is 60, dude. We are on Social Security. We don’t bother nobody.
Get out of here”, but “[t]hat didn’t happen.” T. at 60. He stated that McCabe’s friends
grabbed McCabe and Davis’ wife grabbed the ice scraper and he thought that was the
end of it. T. at 61. Davis recalled that his wife then yelled “watch out” and McCabe was
swinging at him. Id. He stated that swing missed but that when he saw McCabe and the
other men coming toward he and his wife, he grabbed a brick from his flower bed because
he thought they were going to be attacked. Id. He stated that he got his wife out of the
way and that his fear is that he was going to die because this is not going to be a normal
fight with just him against the group of men. T. at 62.
{¶10} Davis stated that he weaved and McCabe’s first swing missed. T. at 62. He
stated that when McCabe came at him again, he swung back and hit him with his fist. Id.
He stated that McCabe came at him again. He hit him again and McCabe fell to his knees.
T. at 63. McCabe then tackled Davis, but Davis was able to flip McCabe off of him and
roll him over on his back. Id. He testified that he then swung at McCabe and hit him in the
back of the head three times with his fist, and that he had a ring on one of his fingers. T.
at 63-64. Davis recalled that at that time Charles Williams grabbed him from behind and
was “trying to tear my throat out.” T. at 64. He stated that he elbowed Williams and then
Carl Finck “socked” him in the mouth, knocking out one of his teeth. T. at 65. He recalled
that Williams was still choking him, and then McCabe hit him twice in the side of the head
and jaw and that he fell to the ground. T. at 65-67. Once he was on the ground, Carl Finck
began stomping on his thigh, and Williams was kicking him from behind. Id. He recalled
Perry County, Case No. 21 CA 16 5
thinking, “I’m going to die right here” when he heard his wife yell “the police are on their
way”, causing the men to run away. T. at 65-66. After the men left, Davis called the police,
and Officer David Crate arrived at Mr. Davis’ residence about 20 minutes later. T. at 66-
67.
{¶11} Officer David Crate, of the New Lexington Police Department, testified that
he responded to a call at the residence of Leon Davis located at 910 Johnson Avenue,
where he was advised an assault had occurred. T. at 126. Upon arriving at the scene,
Officer Crate observed that "Mr. Davis had blood in his mouth, around his gums, had
blood and a cut on - on his index finger." Id. Mr. Davis told Officer Crate that "[Joey
McCabe attacked him there at the residence." Id.
{¶12} Brenda Johnson testified that on July 5, 2020, she went outside because
she heard yelling and she saw Joseph McCabe and Leon Davis arguing, and witnessed
McCabe go towards Davis swinging. T. at 138, 152. She stated that McCabe appeared
to be “pretty well sloshed” and inebriated” and that he “couldn’t hit nothing.” T. at 138,
145. She stated that she saw Davis pick up a brick and start beating McCabe in the head
with it. T. at 139. She recalled that her son-in-law, Charles Williams, then went over and
got Davis off of McCabe and stopped the fight. T. at 139, 142.She testified that Williams
“put a pressure point on him and he let go.” T. at 142, 145. She also stated that she
witnessed Ronda Davis strike McCabe with a “wiper stick.” Id.
{¶13} Greg Holman testified that on July 5, 2020, he witnessed a fight between
Joseph McCabe and Leon Davis. T. at 157. He recalled seeing Ronda Davis strike
McCabe over the head with an ice scraper she got out of the car. Id. He also recalled
seeing Leon Davis hit McCabe in the head with a brick and seeing Charles Williams pull
Perry County, Case No. 21 CA 16 6
Leon off of McCabe. T. at 157-158. Holman admitted that he did not witness the beginning
of the altercation between McCabe and Leon Davis. T. at 158, 162.
{¶14} Carl Finck exercised his fifth amendment rights against self-incrimination
when he was called to testify. (T. at 165-167).
{¶15} Cathy Finck, Carl Finck’s wife, testified that on the day in question, she
walked around the side of her house and saw Leon Davis with a brick in his hand and
McCabe holding his head. T. at 169, 171. She also said she saw Leon Davis strike
McCabe in the head with the brick. T. at 171, 173. She said she also saw Leon’s wife
“beating Joe in the back of the head” with an ice scraper. T. at 171, 173. She stated that
she did not see anything that occurred prior to this time. T. at 170, 172, 174. She also
testified that she saw Charles Williams pull Leon Davis off of McCabe. T. at 172-173.
{¶16} Charles Williams was the last witness to testify. He testified that Carl Finck
is his brother-in-law. T. at 180. He recalled that he saw Ronda Davis grab an ice scraper
and start beating McCabe with it, and then Leon Davis grabbed a paver brick from his
yard and “busted [McCabe] in the head with the brick and kept hitting him with it.” T. at
178. He stated that he went over and pulled Davis off of McCabe and Davis bit him. T. at
179. Williams also stated that he did not see the beginning nor all of the fight between
Davis and McCabe. T. at 183-184.
{¶17} On September 27, 2021, following deliberations the jury found Appellant
Joseph McCabe guilty of one count of Assault, a misdemeanor of the first degree, not
guilty of Aggravated Menacing, and not guilty of Ethnic Intimidation.
{¶18} On October 4, 2021, a sentencing hearing was held. At said hearing the trial
court sentenced Defendant-Appellant to a period of One Hundred Eighty (180) days in
Perry County, Case No. 21 CA 16 7
jail, with One Hundred Seventy (170) days suspended on the conditions that the
Defendant-Appellant be placed on intensive probation for a period of Two (2) years;
comply with any and all general orders and terms provided by his probation officer; obtain
and complete a drug and alcohol assessment, racial sensitivity counseling, and anger
management counseling, and follow the recommendations of said assessments; pay
restitution in the amount of Two Thousand Five Hundred Thirty-Eight Dollars ($2,538.00)
to victim, Leon Davis; and cause the court costs to be paid.
{¶19} It is from this judgment entry that Appellant now appeals, assigning the
following errors for review:
ASSIGNMENTS OF ERROR
{¶20} "I. THE TRIAL COURT ERRED WHEN IT ENTERED A JUDGMENT
AGAINST. THE APPELLANT WHEN THE JUDGMENT WAS NOT SUPPORTED BY
THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶21} “II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
PERMITTED INADMISSIBLE HEARSAY AGAINST APPELLANT.
{¶22} “III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ORDERED
APPELLANT TO PAY RESTITUTION IN THE AMOUNT OF $2,538.00.
{¶23} “IV. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
TO A DEGREE THAT APPELLANT DID NOT RECEIVE A FAIR TRIAL.”
I.
{¶24} In Appellant’s first assignment of error, he argues that his conviction is
against the manifest weight of the evidence. We disagree.
Perry County, Case No. 21 CA 16 8
{¶25} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶26} Appellant herein was convicted of Assault, in violation of R.C. §2903.13,
which provides, “(A) No person shall knowingly cause or attempt to cause physical harm
to another or to another's unborn.”
{¶27} R.C. §2901.01(A)(3) provides, “ ‘Physical harm to persons’ means any
injury, illness, or other physiological impairment, regardless of its gravity or duration.”
{¶28} Leon Davis testified that Appellant choked him and hit him in the head and
the jaw and knocked him to the ground. T. at 65. Mr. Davis testified that he feared he was
"going to die." T. at 62. Mr. Davis further testified that once he was on the ground,
Appellant began to kick him. Id. Ronda Davis testified that she saw Appellant hit Leon in
the leg, causing him to fall to the ground. T. at 122
{¶29} Upon review, we find that the testimony of Leon Davis and Ronda Davis
alone supports Appellant's assault conviction.
{¶30} While Appellant points to inconsistencies in the trial testimony, we defer to
the trier of fact as to the weight to be given the evidence and the credibility of the
Perry County, Case No. 21 CA 16 9
witnesses. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), at paragraph one
of the syllabus. Any inconsistencies in the evidence were for the trial court to resolve.
State v. Dotson, 5th Dist. Stark No. 2016CA00199, 2017-Ohio-5565, ¶ 49.
{¶31} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness's credibility. “While the trier of fact
may take note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence.” State v. Johnson, 5th Dist. Stark No. 2014CA00189, 2015-
Ohio-3113, ¶ 61, citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996 WL
284714 (May 28, 1996). The jury need not believe all of a witness’ testimony, but may
accept only portions of it as true. Id.{¶32} “The 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.” State v. Delevie, 5th Dist. Licking No. 18-CA-111, 2019-Ohio-3563, ¶ 30, appeal
not allowed, 158 Ohio St.3d 1410, 2020-Ohio-518, 139 N.E.3d 927, citing State v.
Brindley, 10th Dist. Franklin No. 01AP-926, 2002-Ohio-2425, 2002 WL 1013033, ¶ 16.
{¶33} In the instant case, the jury was free to weigh all of the evidence, including
Appellant's witness’ testimony, accordingly. State v. Spiess, 5th Dist. Licking No. 19-CA-
106, 2020-Ohio-4376, ¶ 27.
{¶34} While inconsistencies in the testimony do exist, this Court must afford the
decision of the trier of fact concerning credibility issues the appropriate deference. We
will not substitute our judgment for that of the trier of fact on the issue of witness credibility
unless it is patently clear that the fact finder lost its way. State v. Ahmed, 5th Dist. No.
Perry County, Case No. 21 CA 16 10
2007-CA-00049, 2008-Ohio-389, 2008 WL 307711, ¶ 28 citing State v. Parks, 3rd Dist.
No. 15-03-16, 2004-Ohio-4023, at ¶ 13, citing State v. Twitty, 2nd Dist. No. 18749, 2002-
Ohio-5595, at ¶ 114.
{¶35} Upon review of the record it is not patently clear that this jury lost its way in
making its credibility determinations, nor was the result so unreliable as to create a
manifest miscarriage of justice. We therefor find Appellant's conviction is not against the
manifest weight of the evidence.
{¶36} Appellant’s first assignment of error is overruled.
II.
{¶37} In Appellant’s second assignment of error, he argues that the trial court
erred in permitting hearsay evidence. We disagree.
{¶38} “The trial court has broad discretion in the admission of evidence, and
unless it has clearly abused its discretion and the defendant has been materially
prejudiced thereby, an appellate court should not disturb the decision of the trial court.”
State v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001). An abuse of discretion is
more than a mere error in judgment; it is a “perversity of will, passion, prejudice, partiality,
or moral delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d
748 (1993).
{¶39} Specifically, Appellant asserts that statements made by Leon Davis and
Ronda Davis regarding events which took place three days prior to the assault in this
case were impermissible hearsay.
{¶40} Initially, we note that Appellant did not object to these statements at trial.
The Ohio Supreme Court has held that “when a defendant has not raised an objection at
Perry County, Case No. 21 CA 16 11
trial, plain-error review applies. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002). Under the Ohio Rules of Criminal Procedure, "Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court." Ohio Crim. R. 52. "To prevail under the plain-error standard, a defendant must
show that an error occurred, that it was obvious, and that it affected his substantial rights."
State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, citing State v.
Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Furthermore," ... an error affects
substantial rights under Crim.R. 52(B) only if it affects the outcome of the trial." Id.{¶41} We take “[n]otice of plain error * * * with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v.
Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).
Hearsay
{¶42} The Ohio Rules of Evidence define hearsay as “a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Evid.R. 801(C). Thus, “[t]o be hearsay, *506 testimony
must meet a two-prong test: it must concern an out-of-court statement, and it must be
offered to prove the truth of the matter asserted. * * * If either element is not present, the
statement is not hearsay.” State v. Menefee, 10th Dist. No. 95APA03–266, 1995 WL
571428 (Sept. 29, 1995), citing State v. Maurer, 15 Ohio St.3d 239, 262, 473 N.E.2d 768(1984).
{¶43} “Out-of-court statements offered for reasons other than the truth are not
hearsay.” State v. Willis, 8th Dist. No. 97077, 2012-Ohio-2623, 2012 WL 2150334, ¶ 11,
citing State v. Freeman, 8th Dist. No. 85137, 2005-Ohio-3480, 2005 WL 1581105, ¶ 40,
Perry County, Case No. 21 CA 16 12
citing State v. Lewis, 22 Ohio St.2d 125, 132–33, 258 N.E.2d 445 (1970). For example,
“[b]ecause testimony offered to explain a witness' actions is not offered to prove the truth
of the matter asserted, such testimony is not hearsay.” Menefee, citing State v. Congeni,
3 Ohio App.3d 392, 398, 445 N.E.2d 698 (8th Dist.1981). “ ‘[E]xtrajudicial statements
made by an out-of-court declarant are properly admissible to explain the actions of a
witness to whom the statement was directed.’ ” Id., quoting State v. Thomas, 61 Ohio
St.2d 223, 232, 400 N.E.2d 401 (1980).
{¶44} At trial Mr. Davis testified regarding an incident that allegedly occurred two
days prior to the altercation on July 5th, when some of the neighborhood children,
including the son of Carl Finck, allegedly made racist comments towards Mr. Davis and
his wife.
{¶45} Mr. Davis testified: "… my wife said, didn't you hear what they said? I said
no. What did they -- what were they saying? I said, I heard something about, oh, look.
She said, they were saying, oh, look at the monkeys". T. at 58.
{¶46} He also testified that "[a]ll of a sudden, Carl Finck's son, the youngest,
comes back and yells, oh, look at the monkey, trying to grab his shirt, when I turned
around. And I yell -- excuse my French -- go get your fucking mother. Because now I
know what you two -- all these kids were doing was speaking racially to me and my wife"
Id. T. at 58-59.
{¶47} Later at trial, Mrs. Davis also testified regarding this incident, stating that "…
when we got out the car, they were yelling and laughing. And they had gotten down after
they'd say it, but they was yelling, oh, oh, monkeys, ha, ha, ha and laughing and dunking
down and looking right at us" and that "one of them -- the little boy come flying back out
Perry County, Case No. 21 CA 16 13
of the garage to grab his shirt or something off the table and he yelled the same thing;
oh, oh, monkeys." T. at 102-103.
{¶48} Upon review we find that the statements made by Mr. and Mrs. Davis
describing the incident which occurred two days prior to this incident were not offered to
prove that Appellant committed any of the crimes he was charged with for the events
which occurred on July 5th. Therefore, the were not “offered in evidence to prove the truth
of the matter asserted” and do not qualify as hearsay statements.
{¶49} Appellant’s second assignment of error is overruled.
III.
{¶50} In Appellant’s third assignment of error, he argues that the trial court abused
its discretion in ordering restitution in the amount $2,538.00. We disagree.
{¶51} Under Ohio law, a trial court may order " ... restitution by the offender to the
victim of the offender's crime or any survivor of the victim, in an amount based on the
victim's economic loss." R.C. §2929.18(A)(1), which governs restitution orders:
(A) Except as otherwise provided in this division and in addition to
imposing court costs pursuant to section 2947.23 of the Revised Code, the
court imposing a sentence upon an offender for a felony may sentence the
offender to any financial sanction or combination of financial sanctions
authorized under this section or, in the circumstances specified in section
2929.32 of the Revised Code, may impose upon the offender a fine in
accordance with that section. Financial sanctions that may be imposed
pursuant to this section include, but are not limited to, the following:
Perry County, Case No. 21 CA 16 14
(1) Restitution by the offender to the victim of the offender's crime or
any survivor of the victim, in an amount based on the victim's economic loss.
If the court imposes restitution, the court shall order that the restitution be
made to the victim in open court, to the adult probation department that
serves the county on behalf of the victim, to the clerk of courts, or to another
agency designated by the court. If the court imposes restitution, at
sentencing, the court shall determine the amount of restitution to be made
by the offender. If the court imposes restitution, the court may base the
amount of restitution it orders on an amount recommended by the victim,
the offender, a presentence investigation report, estimates or receipts
indicating the cost of repairing or replacing property, and other information,
provided that the amount the court orders as restitution shall not exceed the
amount of the economic loss suffered by the victim as a direct and
proximate result of the commission of the offense. If the court decides to
impose restitution, the court shall hold a hearing on restitution if the
offender, victim, or survivor disputes the amount. All restitution payments
shall be credited against any recovery of economic loss in a civil action
brought by the victim or any survivor of the victim against the offender.
{¶52} We review restitution orders under an abuse of discretion standard. See,
e.g., State v. Sheets, 5th Dist. Licking No. 17 CA 44, 2018-Ohio-996, ¶ 15; State v. Cook,
5th Dist. Fairfield No. 16-CA-28, 2017-Ohio-1503, ¶ 8; State v. Andrews, 5th Dist.
Delaware No. 15 CAA 12 0099, 2016-Ohio-7389, ¶ 40. An order of restitution must be
supported by competent and credible evidence from which the trial court can discern the
Perry County, Case No. 21 CA 16 15
amount of restitution to a reasonable degree of certainty. State v. Spencer, 5th Dist.
Delaware No. 16 CAA 04 0019, 2017-Ohio-59, ¶ 44 (Citations omitted). Furthermore, a
trial court abuses its discretion if it orders restitution in an amount that does not bear a
reasonable relationship to the actual loss suffered. Id. (Citations omitted).
{¶53} Appellant herein contends the trial court erred in basing the amount of
restitution on the victim's testimony, arguing the $2,538.00 figure was not supported by
documentary evidence.
{¶54} The evidence which supports a court's restitution order “can take the form
of either documentary evidence or testimony.” State v. Jones, 10th Dist. No. 14AP-80,
2014-Ohio-3740, ¶ 23 (Citation omitted). Thus, “a restitution order may be supported by
the victim's testimony alone without documentary corroboration.” State v. Jones, 10th
Dist. No. 15AP-45, 2015-Ohio-3983, ¶ 16 (Citation omitted). Accord, State v. McClain,
5th Dist. No. 2010 CA 00039, 2010-Ohio-6413, ¶ 34 (observing “R.C. 2929.18(A)(1)
allows the trial court to rely upon the amount of restitution recommended by the victim,
and does not require written documentation”); State v. Graham, 2d Dist. No. 25934, 2014-
Ohio-4250, ¶ 57 (stating the “testimony of a victim, if determined to be credible, is
sufficient to support a restitution order; no documentation is required to substantiate the
victim's testimony”).
{¶55} Upon review, we find there was competent and credible evidence to support
the amount of restitution imposed by the trial court under R.C. §2929.28(A)(1).
{¶56} At the sentencing hearing, Leon Davis informed the court that his eye
glasses and two of his teeth were broken in the fight and that he had dental bills and
Perry County, Case No. 21 CA 16 16
prescription eye glass bills which were not completely covered by insurance, Sent. T. at
11-13. Documentary evidence was provided to the trial court supporting the following:
Trillium Vision Care/Vision Source – Progressive, Transitions,
Polycarbonate – lens replacement $373.00
Perry County Dental Group: Dental bill (broken teeth) $ 850.00 (only
$670.00 requested)
Repair estimate (Diamond ring) $35.00
Repair estimate (Gold and onyx ring) $125.00
Repair estimate (Gold chain) $130.00
Repair estimate (setting and diamond/antique ring) $1,250.00
Total: $2,583.00
(Victim’s Restitution Request/Bills, Record at 27)
{¶57} As set forth above, R.C. §2929.18(A)(1) allows a trial court to rely upon the
amount of restitution recommended by the victim and does not require written
documentation. Here, we have testimony and documentation provided by the victim to
the court to support the restitution order. Based on the foregoing, we find the trial court
did not abuse its discretion in ordering Appellant to pay the amount of $2,538.00 in
restitution.
{¶58} Appellant’s third assignment of error is overruled.
IV.
{¶59} In Appellant’s fourth assignment of error, he argues that he was denied the
effective assistance of counsel. We disagree.
Perry County, Case No. 21 CA 16 17
{¶60} To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell
below an objective standard of reasonable representation, and (2) that counsel's errors
prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the
result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable
probability” is “probability sufficient to undermine confidence in the outcome.” Strickland
at 694, 104 S.Ct. 2052.
{¶61} Because there are countless ways to provide effective assistance in any
given case, judicial scrutiny of a lawyer's performance must be highly deferential.
Strickland, 466 U.S. 668 at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. The question is whether
counsel acted “outside the wide range of professionally competent assistance.” Id. at 690.
“Decisions on strategy and trial tactics are granted wide latitude of professional judgment,
and it is not the duty of a reviewing court to analyze trial counsel's legal tactics and
maneuvers.” State v. Quinones, 8th Dist. Cuyahoga No. 100928, 2014-Ohio-5544, ¶ 18.
{¶62} “Even if a defendant shows that counsel was incompetent, the defendant
must then satisfy the second prong of the Strickland test. Under this “actual prejudice”
prong, the defendant must show that “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.
Perry County, Case No. 21 CA 16 18
{¶63} Appellant herein argues that defense trial counsel should have objected to
the hearsay statements made by Mr. and Mrs. Davis concerning the events which
occurred three days prior.
{¶64} Initially, we note that “ ‘The failure to object to error, alone, is not enough to
sustain a claim of ineffective assistance of counsel.’ ” State v. Fears, 86 Ohio St.3d 329,
347, 715 N.E.2d 136 (1999), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527
N.E.2d 831(1988). Accord, State v. Hale, 119 Ohio St.3d 118, 2008–Ohio–3426, 892
N.E.2d 864, ¶ 233. A defendant must also show that he was materially prejudiced by the
failure to object. Holloway, 38 Ohio St.3d at 244, 527 N.E.2d 831.
{¶65} Further, based on our disposition of assignment of error III, we find that such
testimony did not constitute impermissible hearsay.
{¶66} Finally, we find that based on the other testimony at trial concerning the
assault, Appellant has failed to show how such testimony affected the outcome of the
trial. As such, we find Appellant did not receive ineffective assistance of trial counsel.
Perry County, Case No. 21 CA 16 19
{¶67} Appellant’s fourth assignment of error is overruled.
{¶68} The judgment of the Perry County Municipal Court is affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
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