[Cite as State v. Mayse,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO, CASE NO. 9-16-50 PLAINTIFF-APPELLEE,

v.

RICHARD ALLEN MAYSE, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 16-CR-165

Judgment Affirmed

Date of Decision: April 24, 2017

APPEARANCES:

Robert C. Nemo for Appellant

Kevin P. Collins for Appellee Case No. 9-16-50

WILLAMOWSKI, J.

{¶1} Defendant-appellant Richard A. Mayse (“Mayse”) brings this appeal

from the judgment of the Court of Common Pleas of Marion County in which he

was found guilty of one count of felonious assault. Mayse alleges on appeal that

the trial court erred by denying his challenge of a juror for cause and denying his

motion for a mistrial. Mayse also claims that he was denied the effective assistance

of counsel and that the verdict was against the manifest weight of the evidence. For

the reasons set forth below, the judgment is affirmed.

{¶2} On March 20, 2016, an altercation occurred at the home of the victim.

The victim was injured and taken to the hospital. The victim suffered from a

laceration to her face and a broken nose which she claimed was caused by Mayse.

An investigation followed. On April 7, 2016, the Marion County Grand Jury

indicted Mayse on one count of Felonious Assault in violation of R.C.

2903.11(A)(1), a felony of the second degree. Doc. 1. Mayse entered a plea of not

guilty. Doc. 6.

{¶3} On August 4 and 5, 2016, a jury trial was held. At the trial, the State

presented evidence from five witnesses. The victim testified that after going out for

her birthday, she went back to her home and people came over to hang out and play

cards. Tr. 184-189. She was expecting more people to come over, so she went to

ask Mayse to move his truck so people could park in the driveway. Tr. 193-94.

Mayse was in the bathroom and they began arguing over whether he should move

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the truck before or after he used the facilities. Tr. 194-95. According to the victim,

Mayse then grabbed her phone, slammed it down, and broke it. Tr. 196. The victim

was angry at Mayse, so she pushed him into the shower curtain. Tr. 196-97. Mayse

then started to fall onto the side of the tub. Tr. 196-97. When Mayse got up, he was

very angry and he punched the victim in the face. Tr. 197-98. The victim only

recalled the first strike, but believed that she was struck multiple times based upon

what she was told by others. Tr. 198, 204, 206. As a result of being struck, the

victim’s nose was broken, she needed stitches on her nose, and she was bruised. Tr.

199. The break required her to have surgery, which has left her with a scar, and

caused a great deal of pain. Tr. 198-200. Additionally, the victim suffered severe

head trauma, depression, and anxiety. Tr. 200-201.

{¶4} Robert Hummel (“Hummel”) testified that while they were at the

victim’s house, the victim began yelling at Mayse to move his truck. Tr. 234.

Mayse and the victim began arguing about when he was going to move the truck.

Tr. 235. Eventually, Mayse became angry, picked up the victim’s phone from the

sink area, and slammed it down. Tr. 235. The victim then became angry and pushed

Mayse into the shower curtain and Mayse slid down onto the side of the tub. Tr.

235-37. When Mayse got up, he looked angry and the victim began to back out of

the bathroom. Tr. 237-38. Mayse then started punching the victim with his fist,

striking her at least five times. Tr. 238-39. Hummel tried to intervene to stop

Mayse, but Mayse just started hitting him instead and pushing him into the living

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room. Tr. 239-40. As a result of Mayse’s actions, Hummel suffered a broken nose,

black eyes, and cuts to his face and head. Tr. 240. The broken nose resulted in a

great deal of blood. Tr. 243. When Hummel went into the bathroom to wash off

the blood, he saw the victim lying on the bed in the bedroom. Tr. 244. The victim

had already left the house to go to the hospital by the time he walked out of the

bathroom. Tr. 244.

{¶5} Patrolman Steve Luoma (“Luoma”) of the Marion Police Department

testified that he was dispatched to the hospital after the victim arrived there. Tr.

174. The victim claimed she was assaulted. At the hospital he spoke with the victim

and noticed that there was swelling around her nose and eyes and that she had a

deep laceration on the nose. Tr. 176-77. At the end of his shift, Luoma forwarded

all he knew to the investigations department. Tr. 177.

{¶6} Dr. Joseph Minarchek (“Minarchek”) is a plastic surgeon at Grant

Medical Center in Columbus who specializes in reconstructive plastic surgery. Tr.

154. On March 20, 2016, the victim was brought in with an open facial fracture.

Tr. 160. The CAT scan showed that the nose was broken. Tr. 161. The injuries

required the doctor to surgically push the nose back into place and sew up the

laceration. Tr. 163. Minarchek testified that as a result of her injuries, the victim

will have a scar. Tr. 168. On cross-examination, Minarchek testified that the

injuries of the victim would result in a large amount of bleeding. Tr. 169. He also

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testified that he had no knowledge of what caused the injury and it could have

multiple sources. Tr. 171.

{¶7} Detective Nick Esterline (“Esterline”) of the Marion Police Department

testified that he was the detective assigned to follow up on this case. Tr. 251-53.

Esterline spoke to the victim while she was at the hospital and she indicated that

Mayse was the one who struck her. Tr. 253-54. Esterline then walked through the

crime scene and saw “quite a bit of blood, dried blood” in various locations in the

home, including the bathroom, the hallway, the bedroom, the kitchen, and the living

room. Tr. 254-60. Later, Esterline interviewed Hummel at the police station and

took photographs of his injuries. Tr. 262. When Mayse was taken into custody later

that day, the only injuries he had was one small cut to his hand. Tr. 263-64.

{¶8} Esterline then questioned Mayse. Mayse admitted that he had struck

Hummel and indicated that the cut on his hand came from striking Hummel’s

glasses. Tr. 264. Mayse denied striking the victim, but admitted that he had pushed

her. Tr. 264. According to Mayse, after he pushed the victim, Hummel yelled at

him to keep his hands off of the victim, and a fight between the two of them ensued.

Tr. 265. Mayse also told Esterline that the victim was injured when Hummel fell

into her. Tr. 265. Mayse then indicated that he had immediately picked up the

victim, took her outside, and put her in the car to be taken to the hospital. Tr. 266.

When questioned about the blood in the bathroom and the bedroom, Mayse told

Esterline that it must have come from the cut on his hand. Tr. 268. Esterline did

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not believe that Mayse’s version of the facts matched up with the physical evidence

at the scene. Tr. 267.

{¶9} After the State rested, Mayse presented the testimony of Jennifer Lee

Temple (“Temple”). Temple testified that earlier in the day, Mayse and the victim

came over to her house to look at a truck that was for sale. Tr. 298. Later they all

went out for the victim’s birthday where Temple and the victim were drinking Long

Island ice teas. Tr. 299. The victim eventually left, but the plan was for all of them

to go to the victim’s home. Tr. 299. When they arrived, the victim was standing

outside yelling at them to leave. Tr. 299. They eventually went into the house to

use the bathroom. Tr. 299. When Mayse went into the bathroom, the victim

followed him and he pushed her out. Tr. 299. The victim then went into the

bathroom again and he pushed her out a second time. Tr. 299. According to

Temple, after the second push, Hummel swung his fist at Mayse, but failed to hit

him. Tr. 300. Mayse then hit Hummel. Tr. 300. Eventually Hummel was pushed

into the victim and his face struck her face. Tr. 300. When he stepped away, the

victim was bleeding heavily. After being injured, the victim went into the bedroom

and laid on the bed. Tr. 302. She also walked around the house while Mayse was

trying to convince her to go to the hospital. Tr. 302, 321. The victim was yelling

at them. Tr. 325. Eventually, Mayse picked up the victim and took her outside

where other people had arrived. Tr. 325. 328. The victim left with other people to

go to the hospital. Tr. 328. Temple testified that although she did not see what was

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happening in the bathroom, there was no blood on the victim’s face until after the

collision with Hummel. Tr. 304. Temple also testified that Mayse had pushed the

victim, but had never struck her. Tr. 303.

{¶10} At the conclusion of the testimony, the jury returned a verdict of guilty.

Doc. 36. A sentencing hearing was held on September 29, 2016. Doc. 41. The

trial court sentenced Mayse to a prison term of six years and ordered that the

sentence be served consecutively to sentences imposed in two other cases.

On

October 19, 2016, Mayse filed his notice of appeal. Doc. 45. On appeal, Mayse

raises the following four assignments of error.

First Assignment of Error

The trial court erred in failing to grant [Mayse’s] challenge for cause concerning a juror who admitted that if he was the defendant, he would not want himself as a juror.

Second Assignment of Error

The trial court committed prejudicial error when it failed to grant [Mayse’s] motion for mistrial after [the State] had failed to disclose the alleged victim’s criminal record prior to her testimony.

Third Assignment of Error

[Mayse] was denied his constitutional right of effective assistance of counsel.

Fourth Assignment of Error

The jury’s verdict was against the manifest weight of the evidence.

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Challenge to Jurors

{¶11} In the first assignment of error, Mayse claims that the trial court erred

in denying his motion to have Juror Creps dismissed for stating that if he was a

defendant, he would not want himself as a juror. During voir dire, Creps stated that

his brother was a police officer in Marion and that his sister and brother-in-law were

officers in Columbus. Tr. 24-25. Creps admitted that he would probably find

testimony offered by law enforcement as credible, but stated that he “would

probably know if what they’re saying wasn’t true.” Tr. 25. When asked if he was

the defendant, would he want himself as a juror, Creps answered “probably not.”

Tr. 50. Based upon these statements, Mayse challenged Creps for cause, but the

trial court denied the challenge. Tr. 50-51. Creps was then dismissed pursuant to a

peremptory challenge. Tr. 83. On appeal, Mayse argues that Creps should have

been dismissed for cause and that Mayse should not have been forced to use a

peremptory challenge to remove Creps from the jury.

{¶12} “[N]o juror need be disqualified for bias if the trial court, after

examination of the juror, is satisfied that the juror can ‘render an impartial verdict

according to the law and the evidence submitted to the jury at the trial’.” State v.

Wilder, 3d Dist. Van Wert No. 15-15-08,

,

, ¶ 13

quoting R.C. 2945.25(B). A trial court has broad discretion in the determination as

to whether a juror can be impartial. State v. Trimble,

, 2009-

Ohio-2961,

.

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When determining whether a denial of a challenge to a juror for cause is prejudicial error, the relevant inquiry is whether the jury panel as a whole was affected by the trial court's error. Gray v. Mississippi,

,

,

(1987). “[I]n order to state a constitutional violation in this situation, the defendant must use all of his peremptory challenges and demonstrate that one of the jurors seated was not impartial.” State v. Broom,

,

(1988). When a defendant exhausts his peremptory challenges before the full jury is seated, the erroneous denial of a challenge for cause may be prejudicial to the defendant. State v. Williams,

,

(1997). “The reason for this rule is that an error by the trial judge in overruling a challenge for cause forces the defendant to use a peremptory on a prospective juror who should have been excused for cause, giving the defendant fewer peremptories than the law provides.”

,

.

.

{¶13} Here, Mayse used a peremptory challenge to excuse Creps from the

jury pool. This was the first peremptory challenge used by the defense. Tr. 83.

However, Mayse did not use all of his peremptory challenges. When asked if he

wished to exercise his fourth peremptory challenge, counsel for Mayse indicated

that they were satisfied with the panel and declined to excuse any more jurors. Tr.

122. Thus, Mayse had a peremptory challenge remaining. Since Mayse did not use

all of his peremptory challenges, he has not shown that there was a constitutional

violation by a denial of a challenge for cause. State v. Broom,

,

(1988). The first assignment of error is overruled.

Motion for a Mistrial

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{¶14} In the second assignment of error, Mayse claims that the trial court

erred in denying his motion for a mistrial after the State failed to disclose the

victim’s prior criminal record before she testified. “The granting or denial of a

motion for mistrial rests in the sound discretion of the trial court and will not be

disturbed on appeal absent an abuse of discretion.” State v. Treesh,

,

,

. A mistrial should not be granted merely

due to some error or irregularity.

It should only be granted when a fair trial is

no longer a possibility.

and State v. Southam, 3d Dist. Henry No. 7-12-04, 2012-

Ohio-5943, ¶ 24. The “essential inquiry on a motion for a mistrial is whether the

substantial rights of the accused were adversely or materially affected.” State v.

Goerndt, 8th Dist. Cuyahoga No. 88892,

.

{¶15} The Criminal Rules require the State, upon the written demand for

discovery by the defendant, to disclose the criminal records of a witness in the

State’s case-in-chief, if those convictions would be admissible under Evidence Rule

609. Crim.R. 16(B)(2). “If at any time during the course of the proceedings it is

brought to the attention of the court that a party has failed to comply with this rule

* * * , the court may order such party to permit the discovery or inspection, grant a

continuance, or prohibit the party from introducing in evidence the material not

disclosed, or it may make such other order as it deems just under the circumstances.”

Crim.R. 16(L)(1). If the State violates this rule, the trial court has the sound

discretion to decide what sanction should be imposed. Lakewood v Papadelis, 32

-10- Case No. 9-16-

,

(1987). The sanction imposed will not be

overturned unless it was unreasonable, unconscionable, or arbitrary. State v. Engle,

,

,

(3d Dist.).

{¶16} The Ohio Supreme Court has previously held that “prosecutorial

violations of Crim.R. 16 result in reversible error only when there is a showing that

(1) the prosecution's failure to disclose was willful, (2) disclosure of the information

prior to trial would have aided the accused's defense, and (3) the accused suffered

prejudice.” State v. Jackson,

,

,

. In this case, there is no dispute that the State failed to disclose the criminal

record of a witness as required by Criminal Rule 16. Tr. 289-90. Upon learning of

the failure to disclose, Mayse requested that the trial court grant a mistrial. Tr. 289.

The State informed the court that there was an error and that attempts had been made

to recall the witness, but she had not responded. Tr. 290. The State then proposed

a stipulation be read to the jury informing them that the witness had been convicted

of a theft offense in 2016 and possession of cocaine in 2010. Tr. 290. The

stipulation would also inform the jury that they could consider these crimes when

weighing the credibility of the witness. Tr. 291. The trial court overruled the motion

for a mistrial and agreed to inform the jury of the prior convictions. Tr. 293. The

trial court then advised the jury as follows.

The second matter we need to advise you is that the Court wishes to instruct you that [the victim], who testified here yesterday, has been convicted of the offense of possession of cocaine in the year

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2010; and further was also convicted of the offense of theft in February of 2016. This information that we’re providing you may be used for the purpose of determining the credibility of [the victim]. This information may not be used for any other purposes.

Tr. 296. A review of the record contains no evidence that the failure to disclose was

willful.

{¶17} Second, the record does not show how this information would have

aided the defense as it was not exculpatory. Mayse claims that this would possibly

suggest that the victim was biased, thus implicating the Confrontation Clause as set

forth in the Sixth Amendment to the United States Constitution. Mayse claims that

this is error because the jurors did not get to see the victim’s face when she was

questioned about her criminal record. Bias is defined as a “mental inclination or

tendency; prejudice; predilection.” Black’s Law Dictionary (10th Ed. 2014).

However, the victim’s criminal convictions at issue were not connected with the

defendant and she was not given any consideration for her testimony. There is

nothing in the record that would show that those convictions would show a prejudice

against the defendant. Thus, they do not show a bias. Additionally, the criminal

history of the victim was only admissible for the purpose of attacking her credibility.

Evid.R. 609.

{¶18} Finally, even if it would have aided the defense, the defense suffered

no prejudice as the trial court fully informed the jury about the victim’s prior

convictions. The statement made by the judge may have had more of an impact

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than merely questioning the witness about the offenses because it drew more

attention to the crimes and included a contemporaneous instruction that it could be

considered for the purpose of determining the credibility of the victim. Since the

jury was fully aware of the charges, there was no prejudice suffered. The failure to

disclose is thus not reversible error and the trial court did not abuse its discretion in

denying the motion for a mistrial. The second assignment of error is overruled.

Manifest Weight of the Evidence

{¶19} Although Mayse’s third assignment of error argues that he was denied

the effective assistance of counsel, we will address the fourth assignment of error

first in the interest of clarity. In the fourth assignment of error, Mayse argues that

his conviction was against the manifest weight of the evidence. “When an appellate

court considers a claim that a conviction is against the manifest weight of the

evidence, the court must dutifully examine the entire record, weigh the evidence,

and consider the credibility of witnesses.” State v. Puckett,

,

,

(4th Dist.).

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. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.”

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State v. Thompkins,

,

(1997) (citing Black's

Law Dictionary (6 Ed. 1990) 1594). A new trial should be granted only in the

exceptional case in which the evidence weighs heavily against conviction.

Although the appellate court acts as a thirteenth juror, it still must give due deference

to the findings made by the jury.

The fact-finder, being the jury, occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness' reaction to exhibits and the like. Determining credibility from a sterile transcript is a Herculean endeavor. A reviewing court must, therefore, accord due deference to the credibility determinations made by the fact- finder.

{¶20} State v. Thompson,

,

(8th

Dist. 1998). “To that end, the fact finder is free to believe all, part or none of the

testimony of each witness appearing before it.” State v. Redman, 3d Dist. Allen No.

1-15-54,

, ¶ 31 quoting State v. Petty, 10th Dist. Franklin Nos. 11AP-

716, 11AP-766,

, ¶ 38.

{¶21} Here, Mayse was charged with one count of felonious assault in

violation of R.C. 2903.11(A)(1). The State was required to prove that Mayse

knowingly caused serious physical harm to another. R. C. 2903.11(A)(1). Serious

physical harm is defined as

(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;

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(b) Any physical harm that carries a substantial risk of death;

(c) Any physical harm that involves some permanent incapacity whether partial or total, or that involves some temporary substantial incapacity;

(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;

(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.

R.C. 2901.01(A)(5). The State presented the testimony of five witnesses.

Minarchek testified as to the extent and seriousness of the injuries sustained by the

victim. Minarchek indicated that her injuries required surgical intervention to repair

the damage and that the victim would always have a scar as a result of the injuries.

Luoma also testified to the injuries suffered by Mayse as he observed them soon

after the incident. Mayse did not dispute that the victim suffered serious physical

harm, but merely challenged that Mayse was the cause of the injuries. According

to the testimony, of the victim and Hummel, Mayse purposely hit the victim multiple

times with his fist. Both testified that as a result, the victim began bleeding

profusely from her nose. The victim testified that her nose was broken, that she

suffered a great deal of pain that was still continuing at the time of trial, and that she

had a scar where the laceration to her nose had to be stitched closed. Even Mayse’s

witness, Temple, testified that the victim had been seriously harmed on the night in

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question. Although Temple testified that the victim’s injuries were not the result of

Mayse striking her, the jury evidently did not believe her testimony. Esterline

testified that the victim told him that Mayse was the person who struck her when he

first interviewed her. Tr. 253-54. He also testified to the amount of blood he found

at the scene and identified the photographs of the scene. Based upon his

observations, the account of the incident provided by Mayse was not supported by

the evidence. Mayse’s account was also dissimilar from that of all of the other

witnesses, including Temple. A review of the evidence does not indicate to this

court that the jury lost its way. The evidence does not weigh heavily against

conviction. Thus, the verdict is not against the manifest weight of the evidence and

the fourth assignment of error is overruled.

Effective Assistance of Counsel

{¶22} Mayse claims in the third assignment of error that he was denied the

effective assistance of counsel by 1) failing to seek the removal of two jurors for

cause; 2) asking improper questions or failing to object to improper questions; 3)

failing to introduce medical records; 4) asking about injuries sustained by witness

other than the victim by Mayse’s actions and failing to object to such questions; 5)

failing to file a Motion in Limine or object to statements by Esterline that Mayse

was on “probation”; and 6) failed to object to opinion evidence of Esterline.

In evaluating whether a petitioner has been denied effective assistance of counsel, this court has held that the test is “whether the accused, under all the circumstances, * * * had a fair trial and

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substantial justice was done.” State v. Hester (1976),

,

,

, paragraph four of the syllabus. When making that determination, a two-step process is usually employed. “First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness.” State v. Lytle (1976),

, 396–397,

,

, vacated on other grounds (1978),

,

,

.

On the issue of counsel's ineffectiveness, the petitioner has the burden of proof, since in Ohio a properly licensed attorney is presumably competent. See Vaughn v. Maxwell (1965),

,

,

; State v. Jackson, 64 Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822.

State v. Calhoun,

,

,

. “The

failure to prove either 1) a substantial violation or 2) prejudice caused by the

violation makes it unnecessary for a court to consider the other prong of the test.”

State v. Walker, 3d Dist. Seneca No. 13-15-42,

. “To show

prejudice, the defendant must show a reasonable probability that, but for counsel's

errors, the result of the proceeding would have been different.” State v. Conway,

,

,

. “The prejudice

inquiry, thus, focuses not only on outcome determination, but also on ‘whether the

result of the proceeding was fundamentally unfair or unreliable.’” State v.

Montgomery, ___ Ohio St.3d ___,

, ___ N.E.3d ___, ¶ 82 quoting

Lockhart v. Fretwell,

,

,

(1993).

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{¶23} The first claim is that counsel failed to seek the removal of two jurors

for cause. Mayse claims that counsel should have sought the removal for cause of

Juror Krogman (“Krogman”) and Juror Truitt (“Truitt”). Krogman stated that he

was going to school for criminal justice, intended to become a police officer, and

would be more likely to agree with the positions of the police. Tr. 76. However, he

stated that he was not opinionated and wanted to hear all of the facts before making

a decision. Tr. 76-77. He also indicated that the individual police officers are not

always correct and that he felt he could fairly judge the case. Tr. 77-78. Krogman

was not dismissed from the jury, even though Mayse still had a peremptory

challenge left.

{¶24} The question before this court is whether counsel’s failure to challenge

for cause resulted in a substantial violation of counsel’s duty to Mayse and whether

the violation affected the outcome of the trial. Although the record does show that

Krogman may have had a personal bias towards law enforcement, it also shows that

he indicated that he could view the evidence fairly and follow the law. As discussed

above, a juror need not be disqualified for bias if it is shown he or she can render an

impartial verdict based on the law and the facts presented. “Counsel need not raise

meritless issues or even all arguably meritorious issues.” State v. Jones,

,

,

. The record does not indicate that

Krogman was incapable or even unlikely to render an impartial verdict. Thus,

counsel for Mayse did not err in failing to challenge Krogman for cause.

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{¶25} Truitt testified that he is the neighbor and a good friend with a police

officer and that they vacation together. Tr. 84. He also indicated that he believed

that there was no excuse for hitting a woman, no matter what. Tr. 85-86. Truitt

admitted that although he would require the State to prove the case, he likely would

not hold them to the “beyond a reasonable doubt” scale. Tr. 87. Mayse then used

a peremptory challenge to remove Truitt from the panel. Here, there can be no

prejudice from the alleged failure to challenge for cause. Truitt was not a part of

the jury. In addition, Mayse still had an unused peremptory challenge at the end of

voir dire. Thus, he could not have been prejudiced by the use of a peremptory

challenge to remove Truitt from the panel. Without a showing of prejudice, no

finding of ineffective assistance of counsel lies.

{¶26} The second ineffective assistance of counsel claim is based upon

alleged improper questions of the victim asked by counsel and for failing to object

to and move to strike statements made by the victim. This court has previously held

that the “failure to object to error, alone, is not enough to sustain a claim of

ineffective assistance of counsel.” State v. Stevens, 3d Dist. Allen No. 1-14-58,

,

, ¶ 42 quoting State v. Johnson,

,

,

. “Because ‘objections tend to disrupt the flow

of a trial, and are considered technical and bothersome by the fact-finder,’

competent counsel may reasonably hesitate to object in the jury's presence.” State

v. Campbell,

,

(1994) quoting Jacobs, Ohio

-19- Case No. 9-16-50

Evidence (1989), at iii-iv (competent counsel may reasonably hesitate to object in

the jury's presence). An appellate court may not use hindsight “to distort the

assessment of what was reasonable” from the view of counsel at the time of the trial.

State v. Jones, 2d Dist. Montgomery No. 26289,

,

,

¶ 55. A decision that may be debatable regarding the trial strategy of counsel may

not form the basis for finding that counsel was ineffective. Id.

{¶27} Here, the statements at issue include the following. Mayse claims that

his counsel was ineffective for not objecting when the victim testified that Mayse

had a “really crazy look” in his eye before he hit her. Tr. 197. Mayse also claims

that his counsel should have moved to strike the victim’s testimony that she was hit

multiple times since she testified that she could not remember anything after the

first punch and was basing her statements on what others told her. Tr. 198-206.

Additionally, the victim testified that she was told that she had sustained severe head

trauma. Tr. 200. Mayse argues that these were not admissible as they were either

overly prejudicial (the look in the eye) or hearsay (the remaining statements). A

review of the record shows the first statement about the look in Mayse’s eye was

the victim’s description of what she believed she saw. Witnesses are permitted to

testify to what they observed and can describe it as they wish. Thus, any objection

would likely have been overruled. The statement regarding the number of times she

was struck as she was told by others may have been hearsay. However, such

testimony would be cumulative as Hummel testified that Mayse struck the victim at

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least five times. Tr. 239. Finally, the victim’s statement that she was told she had

severe head trauma was also cumulative. The jury only had to find that Mayse had

caused serious physical harm to the victim. The victim, as well as the other

witnesses, testified to the extent of her injuries. The jury was also shown pictures

of the injuries from which they could independently determine the severity of the

injuries. Thus, any testimony regarding the severe head trauma was not necessary

to prove that the victim had suffered serious physical harm. Since the introduction

of this evidence was not prejudicial, counsel was not ineffective for failing to object

to it. Additionally, the decision not to object might have been a reasonable trial

strategy as the objection would likely have drawn more attention to the statements.

{¶28} The third alleged mistake of counsel was the failure to have introduced

the medical records from Marion General Hospital. Mayse claims that if the records

had been admitted, it would have shown that the victim was intoxicated when she

arrived at the hospital. A review of the record shows that the victim was questioned

about being intoxicated. She admitted that she had been drinking that night. Tr.

186-87, 204. She also admitted on cross-examination that the hospital staff had to

wait to do the surgery on her because of the alcohol in her system. Tr. 212. When

questioned about her memory before being struck, the victim admitted that it was a

“little fuzzy” because she had been drinking. Tr. 216. The fact that the victim had

been drinking was also confirmed by both Hummel and Temple in their testimony.

Tr. 230-31, 299. Given all of the undisputed evidence regarding the fact that the

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victim had been drinking, the records showing that the victim had alcohol in her

system when she was at the hospital were unnecessary. The jury had the information

to consider from alternative sources. Thus, there was no prejudice from not

admitting the medical records.

{¶29} Next, Mayse argues that counsel was ineffective for failing to object

to the testimony of Hummel about Mayse striking him. A review of the record

indicates that the defense was arguing, through the testimony of Temple, that the

victim’s injuries were the result of a fight between Hummel and Mayse and that

Mayse pushed Hummel off of himself and Hummel fell into the victim, causing her

injuries. During the opening statements, counsel for Mayse told the jury that “the

fight actually broke out between [Hummel] and [Mayse] * * * [and the victim’s]

injuries were a result of this dumb, drunken, late-night scuffle between [Mayse] and

[Hummel]”. Tr. 152. Counsel went on to tell the jury that they did not deny the

severity of the victim’s injuries, but were only disputing the cause. Tr. 152-53. For

Mayse’s argument to have merit, he would have to show that there was an

altercation between Hummel and Mayse. “Debatable strategic and tactical decisions

may not form the basis of a claim for ineffective assistance of counsel, even if, in

hindsight, it looks as if a better strategy had been available.” State v. Conley, 2d

Dist. Montgomery No. 26359,

,

, ¶56. Since this was

the defense’s theory of the case, the admission of the testimony of Hummel was part

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of the trial strategy and does not form the basis of a claim for ineffective assistance

of counsel.

{¶30} Mayse’s fifth argument as to why his counsel was ineffective was that

counsel failed to file a motion in limine or object to testimony that he was on

“probation” at the time of the offense. A motion in limine is a precautionary ruling

in anticipation of an evidentiary issue and is not final. State v. Grubb,

,

(1986). “It is counsel’s duty to make his own appraisal

of the case and to decide when such motions are worth filing.” State v. Giddens, 3d

Dist. Allen No. 1-02-52,

, ¶ 30. Similarly, as discussed above, the

decision as to whether to object to a statement and further draw attention to it is a

matter of trial strategy left to the discretion of trial counsel. Here, there were only

two instances where Mayse’s criminal history was mentioned. Esterline testified

that “Major McDonald received a call that [Mayse] was there to meet with his

probation officer, and we took him into custody at the office of his probation officer,

went back to the police department and I spoke with him.” Tr. 263. The second

instance was when Temple testified that the officer who took her and Mayse “from

his P.O.’s office” was supposed to write her statement down for her to sign because

she did not have her glasses. Tr. 332. No other mention of this was made at any

time. Although Mayse claims there was prejudice, he fails to show how he was

prejudiced by these statements. There was a great deal of evidence that Mayse

struck the victim in the face and that she suffered serious physical harm. Even if

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the statements had been excluded, the record does not indicate that the outcome

would have been different. Thus, the failure to object to the statements or to file a

motion in limine does not constitute ineffective assistance of counsel in this case.

{¶31} Mayse’s final claim of ineffective assistance of counsel is that counsel

failed to object to opinion evidence of an unqualified police detective regarding

blood analysis or blood splatter. A review of the record shows that Esterline

testified that he had gone to the victim’s home and taken pictures of the locations

where blood was found. Tr. 254-260. Later when Esterline questioned Mayse about

the incident, Mayse told Esterline that when Mayse saw that the victim was

seriously injured, he picked her up to carry her to a vehicle to go to the hospital. Tr.

266. Mayse told Esterline that the victim was never in the bedroom and claimed

that the blood in the bedroom and bathroom had come from a cut on his hand, which

was very small. Tr. 268. Contrary to the assertion of Mayse in his brief, the

testimony of Esterline was only to the locations and the amount of blood he found

in the home. This testimony was available for the view of the jury through the

photographs entered as exhibits. There was no need for training in blood analysis

or blood splatter, because Esterline did not testify to those issues. Since there was

no testimony which required expertise, counsel did not err in failing to object to the

lack of expertise.

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{¶32} Having reviewed all of Mayse’s arguments regarding whether his

counsel was ineffective, we do not find that any of trial counsel’s actions constituted

ineffective assistance of counsel. The third assignment of error is overruled.

{¶33} Having found no error in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Marion County is affirmed.

Judgment Affirmed

ZIMMERMAN and SHAW, J.J, concur.

/hls

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