[Cite as State v. Ward,

.]

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,

.]

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,

, 387,

,

, quoting State v. Martin,

,

(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,

,

, 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,

,

(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

,

,

(1984); State v. Bradley,

,

(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.

{¶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,

, 449, 2001-Ohio-

1266,

. 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,

,

(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,

.]

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.

_________________________________

_________________________________

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JUDGES