[Cite as State v. Klafczynski,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO C.A. No. 18CA0084-M

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE BENJAMIN KLAFCZYNSKI COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellant CASE No. 17CR0268

DECISION AND JOURNAL ENTRY

Dated: June 8, 2020

TEODOSIO, Presiding Judge.

{¶1} Appellant, Benjamin Klafczynski, appeals from his conviction for tampering with

evidence in the Medina County Court of Common Pleas. This Court affirms.

I.

{¶2} Mr. Klafczynski was a teacher and golf coach at Wadsworth High School (“the

school”). A female student of the school (“L.S.”) began babysitting Mr. Klafczynski’s son, so the

two exchanged phone numbers and purportedly became friends on the Snapchat app. L.S.’

boyfriend (“J.T.”) was on the school’s golf team. According to L.S., Mr. Klafczynski would

occasionally comment on how nice she looked or how nice her breasts or dress looked. During

one particular golf match, Mr. Klafczynski accompanied L.S. to the clubhouse bar to get some

water for the team, and he allegedly said to her, “If I would have known this was our first date, I

would have dressed nicer.” According to L.S., Mr. Klafczynski would hug her frequently, “maybe

five times a week.” She claimed that, while students were playing Mario Kart in class one day, 2

Mr. Klafczynski touched her upper, inner thigh. L.S. further alleged that Mr. Klafczynski

exchanged inappropriate pictures with her through Snapchat, including Mr. Klafczynski sending a

shirtless picture of himself, and L.S. sending a picture of herself in a bra and panties and a nude

picture of her buttocks and vagina. L.S. told both J.T. and a female friend about what happened,

and Mr. Klafczynski soon talked to both J.T. and L.S. separately about how to move forward.

{¶3} Once the school and police were made aware of the allegations, they launched an

investigation. When Mr. Klafczynski’s phone was searched pursuant to a warrant, no illicit photos,

contact information for L.S., or Snapchat app were found on his phone. Police did, however,

discover Snapchat logs on the phone. When the school’s principal searched Mr. Klafczynski’s

desk, he found a Post-it note allegedly written in Mr. Klafczynski’s handwriting, stuck to the

bottom of a box of Mr. Klafczynski’s business cards, that listed, numerically: (1) Coming over?;

(2) Snapchat; delete; last pics / “good” message; (3) Moving forward.

{¶4} Mr. Klafczynski was charged with tampering with evidence, sexual imposition, and

illegal use of a minor in nudity-oriented material or performance. After a jury trial, he was found

guilty of tampering with evidence, but not guilty of the remaining two charges. The trial court

sentenced him to five years of community control.

{¶5} Mr. Klafczynski now appeals from his conviction and raises five assignments of

error for this Court’s review. We have reorganized his assignments of error to facilitate our review.

II.

ASSIGNMENT OF ERROR FOUR

THE JURY’S FINDING OF GUILT AND THE ACCEPTANCE OF THE FINDING OF GUILT IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. 3

{¶6} In his fourth assignment of error, Mr. Klafczynski argues that his conviction for

tampering with evidence was not supported by sufficient evidence and was against the manifest

weight of the evidence. We disagree.

{¶7} “A challenge to the sufficiency of the evidence concerns the State’s burden of

production, while a challenge to the manifest weight of the evidence concerns the State’s burden

of persuasion.” In re R.H., 9th Dist. Summit No. 28319,

, citing State v.

Thompkins,

(1997) (Cook, J., concurring). Although sufficiency and

manifest weight are two separate, legally distinct arguments and should be argued separately, Mr.

Klafczynski has chosen to argue them together in his brief, and we will therefore address them

together. See, e.g., State v. Gilbert, 9th Dist. Lorain No. 17CA011209,

; State

v. Dean, 9th Dist. Lorain No. 18CA011290,

.

{¶8} Whether a conviction is supported by sufficient evidence is a question of law, which

this Court reviews de novo.

. “‘The relevant inquiry is whether, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt.’”

quoting State v. Jenks,

(1991), paragraph two of the syllabus. However, “we do not resolve evidentiary

conflicts or assess the credibility of witnesses, because these functions belong to the trier of fact.”

State v. Hall, 9th Dist. Summit No. 27827,

.

{¶9} When reviewing a manifest weight challenge,

an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. 4

State v. Otten,

(9th Dist. 1986). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth

juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.” State v. Tucker,

9th Dist. Medina No. 06CA0035-M,

. This discretionary power “should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction.” State v. Thompkins,

(1997), quoting State v. Martin,

(1st Dist. 1983). See also

.

{¶10} Mr. Klafczynski was convicted of tampering with evidence under R.C.

2921.12(A)(1), which states: “No person, knowing that an official proceeding or investigation is

in progress, or is about to be or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove

any record, document, or thing, with purpose to impair its value or availability as evidence in such

proceeding or investigation * * *.”

{¶11} R.C. 2901.22(B) states:

A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

“A person acts purposely when it is the person’s specific intention to cause a certain result, or,

when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what

the offender intends to accomplish thereby, it is the offender’s specific intention to engage in

conduct of that nature.” R.C. 2901.22(A). Intent, lying as it does within the privacy of a person’s

own thoughts, is not susceptible of objective proof, but can be determined from the surrounding

facts and circumstances, and persons are presumed to have intended the natural, reasonable and 5

probable consequences of their voluntary acts. State v. Garner,

(1995).

“Likelihood is measured at the time of the act of alleged tampering.” State v. Straley,

,

. The State need not set forth direct evidence of a tampering with

evidence offense; circumstantial evidence may suffice. State v. Glunt, 9th Dist. Medina No.

13CA0050-M,

.

{¶12} Mr. Klafczynski argues that the State failed to demonstrate that any information

was tampered with or deleted from his cell phone. He also argues that the Snapchat app was not

on his phone when it was searched and no evidence was presented as to when the Snapchat app

was deleted from his phone.

{¶13} L.S. testified as to how the Snapchat app works or operates. Although Mr.

Klafczynski contends in another assignment of error that L.S. should not have been permitted to

testify as to how Snapchat works, the Supreme Court of Ohio has emphasized that “the interest in

the administration of justice dictates that the appellate court review the issue of sufficiency in

consideration of all evidence presented by the State in its case in chief, whether such evidence was

properly admitted or not.” State v. Dixon, 9th Dist. Medina Nos. 11CA0065-M and 11CA0087-

M,

, citing State v. Brewer,

,

, ¶ 19.

{¶14} At trial, L.S. testified about Snapchat as follows: “So how it works is you take a

picture, and it’s supposed to disappear within a few seconds and you can’t see it again. Same with

messages, unless you hold it down to save it.” She testified that pictures and messages are saved

“[i]f you take a screenshot on your phone.” L.S. elaborated further that “[w]hen you take a

screenshot on Snapchat, it sends, like, a notification to your phone saying that that person had

screenshotted your picture or message or anything like that.” L.S. testified that she had sent

pictures of herself to Mr. Klafczynski through Snapchat, including a picture of her in her bra and 6

panties and a nude picture of her buttocks and vagina. She then testified that she received

notifications from Snapchat that Mr. Klafczynski had saved some of her pictures, although she

admittedly could not recall exactly which pictures he had saved.

{¶15} Many screenshots of Mr. Klafczynski’s Snapchat conversations with L.S., taken

from L.S.’ phone, were entered into evidence at trial. The conversations are somewhat incomplete,

and L.S. testified that she did not save some of her messages to Mr. Klafczynski in time, before

Snapchat automatically deleted them. Some of Mr. Klafczynski’s messages appear to discuss the

importance of deleting information from their phones, including: “It would be awful if someone

had are (sic) phones”; “Deleting this lol”; “Btw those messages won’t delete permanently”; “I

deleted the convo but when I search your name it comes back”; and “If I delete you then they don’t

show for now[.]” At one point, Mr. Klafczynski says, “No pics though,” which L.S. testified was

in regard to their Snapchat pictures being saved on his phone but not saved in the Snapchat app.

Mr. Klafczynski also makes several comments seemingly instructing L.S. on how to delete things

off of her own phone, including: “It (sic) saying if u tap the message it saves. The red and blue

lines have to be thin not thick for them to delete”; “Try holding them down”; “Are they gone for

you if u search me under messages?”; “Are they deleted?”; and “Ok I’ll figure it out. I’ll show ya

tomorrow and I (sic) help lol[.]” L.S. testified that these particular comments were in reference to

Mr. Klafczynski taking her phone and deleting anything she had saved on it. She testified that Mr.

Klafczynski, as her teacher, could take her phone at any point, and that he, in fact, did take her

phone to try to delete “stuff.”

{¶16} On December 5, 2016, around noon, J.T. surreptitiously recorded on his own phone

his conversation with Mr. Klafczynski about what happened between L.S. the teacher, and his

three videos were introduced into evidence. J.T. tells Mr. Klafczynski that L.S. admitted “it” to 7

him and he saw the Snapchat messages. He explains that before he does something he might regret

he wanted to first talk to Mr. Klafczynski, man to man. Mr. Klafczynski replies, “I appreciate that,

’cause I like my job and I would never do anything to put my job in jeopardy * * * as long as we’re

squared with that.” Mr. Klafczynski can be heard repeatedly offering his phone to J.T. to show

him that he does not have Snapchat.

{¶17} A female friend of L.S.’ recorded a separate video of a phone call between Mr.

Klafczynski and L.S. on December 5, 2016, which was also entered into evidence. In that phone

call, while on speakerphone, Mr. Klafczynski tells L.S. he wanted to “make sure that the

conversation was deleted.” He also says, “I deleted my Snapchat, so I told [J.T.] I didn’t have that,

just so you know.”

{¶18} Officer Joshua Cooper of the Wadsworth Police Department, who specializes in

digital forensics, testified at trial as to his extensive training and certifications. He testified that he

used two separate Cellebrite programs while completing both logical and file system extractions

of data from Mr. Klafczynski’s cell phone. According to Officer Cooper, the Snapchat app was

not installed on Mr. Klafczynski’s phone when he searched it, but he found an email regarding a

password change for Snapchat. He also found fifteen entries or logs in the phone’s database when

he searched for “Snapchat,” which he testified meant Snapchat had been used on the phone.

Officer Cooper did not discover any photos on the phone of Mr. Klafczynski shirtless, nor did he

find any photos of L.S. either nude or in her bra and panties. He did, however, find picture files

in the JPEG format which contained zero kilobytes of data. He testified that this indicated there

had been pictures there which were no longer there. According to Officer Cooper, the last entry

or log for Snapchat in Mr. Klafczynski’s phone occurred on December 4, 2016, at 7:29 P.M. He

testified that that was the last time the phone’s data was being used for the Snapchat app. 8

{¶19} The school’s principal, Steve Moore, testified that he first learned of the allegations

in this case when he spoke to L.S., her mother, and Dr. Andrew Hill (“the superintendent”) on

December 5, 2016. The superintendent placed Mr. Klafczynski on paid administrative leave that

same night and they called the police. Principal Moore testified that both the school and the police

began investigations into Mr. Klafczynski’s conduct. The principal then went to Mr. Klafczynski’s

classroom to collect his belongings and found a Post-it note in the teacher’s desk drawer. The note

was stuck to the bottom of a box of Mr. Klafczynski’s business cards. Principal Moore testified

that he is familiar with Mr. Klafczynski’s handwriting, and that he recognized the handwriting on

the note to be Mr. Klafczynski’s. The note was entered into evidence and reads: (1) Coming over?;

(2) Snapchat; delete; last pics / “good” message; (3) Moving forward. Principal Moore also

testified that Mr. Klafczynski resigned before the school’s investigation could “play out.” He

turned any information that he obtained over to the police for their criminal investigation.

{¶20} Based on our review of the record, and in viewing the evidence in a light most

favorable to the prosecution, we determine that the State presented sufficient evidence, if believed,

that Mr. Klafczynski committed the offense of tampering with evidence. L.S. testified that she

sent illicit photos to Mr. Klafczynski through Snapchat, which were saved by Mr. Klafczynski.

The State presented evidence of communications between Mr. Klafczynski and L.S. regarding Mr.

Klafczynski deleting Snapchat and other data from his phone. Mr. Klafczynski admits being

appreciative when J.T. talks to him first about the situation because he “like[s] [his] job.” Although

neither Snapchat nor any illicit photos of L.S. remained on his phone when it was searched by

police, evidence was presented that Snapchat had, in fact, been used on Mr. Klafczynski’s phone

up until the night of December 4, 2016. He was placed on paid administrative leave on the

following day. A Post-it note found in Mr. Klafczynski’s desk included apparent reminders 9

regarding Snapchat of “delete” and “last pics.” Although Mr. Klafczynski was ultimately acquitted

of the sexual imposition and illegal use of a minor in nudity-oriented material or performance

charges, both the school and the police immediately began investigations once those allegations

were brought to their attention.

{¶21} Thus, the evidence presented at trial, if believed, demonstrated that Mr.

Klafczynski, knowing that an official proceeding or investigation was about to be or was likely to

be instituted, deleted data from his phone to purposefully impair its value or availability as

evidence in such proceeding or investigation. This Court therefore concludes that a rational trier

of fact could have reasonably determined all of the elements of tampering with evidence were

proven beyond a reasonable doubt. See Jenks at paragraph two of the syllabus.

{¶22} Regarding his challenge to the manifest weight of the evidence, Mr. Klafczynski

argues that the evidence presented at trial demonstrated that the Snapchat app itself automatically

deletes images and messages; thus, he could not have deleted such data himself. He appears to

concede, however, that this automatic deletion by the app occurs “unless the user saved it.” He

also offers no explanation for how this argument extends to the deletion of the Snapchat app itself.

{¶23} L.S. did testify that Snapchat pictures and messages disappear from the app within

seconds once sent and cannot be retrieved again. But, she also testified that users may choose to

screenshot or save pictures and messages, and the app thereafter sends a notification to the sender

that the picture or message was saved. She further testified that she did, in fact, receive Snapchat

notifications that Mr. Klafczynski had saved some of her pictures. The evidence also showed that

Mr. Klafczynski made many comments to L.S. regarding deleting Snapchat from his phone and

deleting data from both of their phones. L.S. testified that Mr. Klafczynski, in fact, took her phone 10

at one point and tried to delete “stuff.” The school’s principal also found a note to delete Snapchat

and “last pics” in Mr. Klafczynski’s school desk drawer.

{¶24} In reviewing the entire record, weighing the evidence and all reasonable inferences,

and considering the credibility of witnesses, we cannot say that the trier of fact clearly lost its way

and created such a manifest miscarriage of justice that Mr. Klafczynski’s conviction must be

reversed. See Otten,

. Mr. Klafczynski has also not shown how this is an

exceptional case in which the evidence weighs heavily against the conviction. See Thompkins,

.

{¶25} Overall, we cannot say that Mr. Klafczynski’s conviction was based on insufficient

evidence or was against the manifest weight of the evidence. Mr. Klafczynski’s fourth assignment

of error is therefore overruled.

ASSIGNMENT OF ERROR ONE

THE TRIAL COURT VIOLATED MR. KLAFCZYNSKI’S CONSTITUTIONAL RIGHTS WHEN IT DENIED MR. KLAFCZYNSKI’S MOTION TO EXAMINE EXCULPATORY EVIDENCE.

{¶26} In his first assignment of error, Mr. Klafczynski argues that the trial court erred in

denying his request for an independent examination of L.S.’ cell phone. We disagree.

{¶27} “A trial court’s resolution of discovery issues in criminal matters is reviewed for an

abuse of discretion.” State v. Sadeghi, 9th Dist. Wayne No. 14AP0051,

.

“The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the

court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore,

(1983). When applying an abuse of discretion standard, a reviewing court is

precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State

Med. Bd.,

(1993). 11

{¶28} If the State withholds material, exculpatory evidence, it offends a criminal

defendant’s due process rights. State v. Charlton, 9th Dist. Lorain No. 12CA010206, 2014-Ohio-

1330, ¶ 32, citing Brady v. Maryland,

(1963). “‘There are three components of a true

Brady violation: The evidence at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,

either willfully or inadvertently; and prejudice must have ensued.’” State v. Jalowiec, 9th Dist.

Lorain No. 14CA010548,

, quoting Strickler v. Greene,

, 281-

282 (1999). “It is [the] [d]efendant’s burden to establish that the evidence is both favorable and

material and that there is reasonable probability that the outcome would have been different if the

evidence had been provided.” State v. Whalen, 9th Dist. Lorain No. 08CA009317, 2008-Ohio-

6739, ¶ 8.

{¶29} Mr. Klafczynski filed a pretrial motion for an independent forensic examination of

both his phone and L.S.’ phone, and the trial court held a hearing on the matter. Although the trial

court ultimately permitted an independent forensic examination of Mr. Klafczynski’s own phone,

it denied his motion to the extent that he sought to have L.S. turn over her phone for his

examination.

{¶30} Mr. Klafczynski argues that L.S.’ phone contained material and exculpatory

evidence, e.g., “communications” and nude pictures that may or may not be there. Interestingly

enough, he also claims that he should have been permitted to examine the phone “to determine if

the phone contained any exculpatory information.” (Emphasis added.). “[A] defendant cannot

establish a due process violation by speculating about the existence, content, and disposition of

evidence.” Jalowiec at ¶ 49. 12

{¶31} This Court also fails to see how any potential evidence retrieved from L.S.’ phone

would be either exculpatory or material to Mr. Klafczynski’s tampering with evidence conviction.

“Exculpatory evidence” is evidence favorable to the accused which, if disclosed and used

effectively, may make the difference between conviction and acquittal. Whalen at ¶ 8.

Undisclosed evidence is “material” if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different. Jalowiec at ¶ 31.

{¶32} Mr. Klafczynski was convicted of tampering with evidence based on allegations

that he deleted evidence off of his own phone. It follows that any potential evidence recovered

from L.S.’ phone would neither exculpate Mr. Klafczynski from the crime of tampering with

evidence on his own phone nor establish a reasonable probability that a different result would have

occurred at trial. The results of any examination of L.S.’ phone would not be favorable to Mr.

Klafczynski. If illicit communications and pictures were found on L.S.’ phone, such a discovery

would, perhaps, provide even more evidence of Mr. Klafczynski’s guilt. If her phone was instead

devoid of any such communications and photos, the absence of such evidence would still bear no

effect on whether Mr. Klafczynski tampered with evidence on his own phone.

{¶33} Because Mr. Klafczynski has not demonstrated how this speculative evidence

would be favorable or material and has not shown a reasonable probability that the outcome would

have been different if the evidence had been provided, we cannot say that the trial court erred or

abused its discretion in denying his motion to examine L.S.’ phone for exculpatory evidence. See

Whalen at ¶ 8.

{¶34} Mr. Klafczynski’s first assignment of error is overruled.

ASSIGNMENT OF ERROR TWO

THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING TESTIMONY REGARDING SNAPCHAT FROM A WITNESS WHEN THERE 13

WAS A LACK OF FOUNDATION AND LACK OF QUALIFICATION OF THE TESTIFYING WITNESS.

{¶35} In his second assignment of error, Mr. Klafczynski argues that the trial court erred

in permitting L.S. to testify about “the procedures and uses of Snapchat[,]” as her testimony was

“beyond the knowledge or experience possessed by lay persons or dispels a misconception

common among lay persons.” We disagree.

{¶36} The trial court has broad discretion in the admission and exclusion of evidence,

including the determination as to whether an individual is an expert, and this Court will not disturb

evidentiary rulings absent an abuse of that discretion. State v. Hickman, 9th Dist. Summit No.

20883,

, ¶ 11. “The term ‘abuse of discretion’ connotes more than an error of law

or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore,

(1983). When applying an abuse of discretion

standard, a reviewing court is precluded from simply substituting its own judgment for that of the

trial court. Pons v. Ohio State Med. Bd.,

(1993).

{¶37} A witness may testify as an expert if: (1) her testimony “either relates to matters

beyond the knowledge or experience possessed by lay persons or dispels a misconception common

among lay persons;” (2) she “is qualified as an expert by specialized knowledge, skill, experience,

training, or education regarding the subject matter of the testimony;” and (3) her testimony “is

based on reliable scientific, technical, or other specialized information.” Evid.R. 702.

{¶38} Mr. Klafczynski argues that the trial court permitted L.S. to present improper expert

testimony as to the “procedures and uses of Snapchat[,]” which was “beyond the knowledge or

experience possessed by lay persons or dispel[led] a misconception common among lay persons.”

He challenges her testimony that: Snapchat deletes pictures automatically after a few seconds;

users can screenshot or save images; Snapchat notifies the sender when the receiver has saved the 14

sender’s picture; and users may post a picture to their Snapchat “story.” He notes that L.S.

admitted she does not write computer code, nor does she understand how computers are

programmed. Although she has a cell phone and downloaded the Snapchat app, she testified that

she has no knowledge of where the data goes when it disappears.

{¶39} Mr. Klafczynski cites to no authority requiring expert testimony to establish or

explain the basic functioning of the Snapchat app. See App.R. 16(A)(7). We likewise find no

merit in his argument that L.S.’ testimony as to Snapchat’s basic functioning was scientific

evidence elicited from an expert witness. See, e.g., Dickerson v. Miller’s TLC, Inc., 8th Dist.

Cuyahoga No. 96995,

(determining witness testimony describing how the

Google Maps app works is not scientific evidence requiring expert testimony). L.S. testified that

she has used the app almost daily for years and simply described her basic understanding of how

it works based on her personal experience while using it. Such testimony does not relate to matters

beyond the knowledge or experience possessed by lay persons, nor does it dispel a misconception

common among lay persons. See Evid.R. 702(A). The trial court therefore did not err in permitting

L.S. to testify as to the basic functioning of the Snapchat app.

{¶40} Mr. Klafczynski’s second assignment of error is overruled.

ASSIGNMENT OF ERROR THREE

MR. KLAFCZYNSKI’S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE TRIAL COURT IMPROPERLY RULED AND INSTRUCTED THE JURY PURSUANT TO R.C. 3319.31 AND R.C. 3319.311.

{¶41} In his third assignment of error, Mr. Klafczynski argues that the trial court erred by

instructing the jury pursuant to R.C. 3319.31 and 3319.311. We disagree.

{¶42} “[A] trial court must fully and completely give the jury all instructions which are

relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” 15

State v. Comen,

(1990), paragraph two of the syllabus. “This Court reviews a

trial court’s decision to give or decline to give a particular jury instruction for an abuse of discretion

under the facts and circumstances of the case.” State v. Sanders, 9th Dist. Summit No. 24654,

, ¶ 45. “The term ‘abuse of discretion’ connotes more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore,

(1983). When applying an abuse of discretion

standard, a reviewing court is precluded from simply substituting its own judgment for that of the

trial court. Pons v. Ohio State Med. Bd.,

(1993).

{¶43} The State was burdened with proving that Mr. Klafczynski tampered with evidence

at a time when he knew an “official proceeding or investigation” was in progress or was about to

be, or was likely to be, instituted. See R.C. 2921.12(A). An “official proceeding” is “any

proceeding before a legislative, judicial, administrative, or other governmental agency or official

authorized to take evidence under oath, and includes any proceeding before a referee, hearing

examiner, commissioner, notary, or other person taking testimony or a deposition in connection

with an official proceeding.” R.C. 2921.01(D). Although the term “investigation” is not statutorily

defined, Black’s Law Dictionary defines it as: “The activity of trying to find out the truth about

something, such as a crime, accident, or historical issue; esp., either an authoritative inquiry into

certain facts, as by a legislative committee, or a systematic examination of some intellectual

problem or empirical question, as by mathematical treatment or use of the scientific method.”

Black’s Law Dictionary (11th Ed. 2019).

{¶44} At trial, Principal Moore testified that a lengthy process is involved in order for a

teacher to be fired, which involves an investigation and a disciplinary hearing. He testified that

inappropriate contact or communications between a teacher and a student is enough to warrant 16

such investigation and disciplinary proceedings. He agreed that while the school’s investigatory

process was started in this case on December 5, 2016, it did not actually “play out” because Mr.

Klafczynski resigned from his teaching position in January of 2017. According to Principal

Moore, had the school’s investigation continued, a hearing would have been held in which the

superintendent would first have everyone agree to tell the truth before speaking. He testified that

he also contacted the police after he spoke with L.S. and her mother on the night of December 5,

2016, prompting a criminal investigation into Mr. Klafczynski’s actions.

{¶45} The prosecutor requested additional jury instructions on R.C. 3319.31(B)(1) and

3319.311(C)-(D), which statutes pertain to the discretionary, disciplinary authority of the state

board of education regarding certain licenses. “[T]he state board of education, in accordance with

Chapter 119. and section 3319.311 of the Revised Code, may refuse to issue a license to an

applicant; may limit a license it issues to an applicant; may suspend, revoke, or limit a license that

has been issued to any person; or may revoke a license that has been issued to any person and has

expired” if the person “[engages] in an immoral act, incompetence, negligence, or conduct that is

unbecoming to [his] position * * *.” R.C. 3319.31(B)(1). The state board of education—or the

superintendent on behalf of the board—may investigate any information received about a person

that reasonably appears to be a basis for action under R.C. 3319.31. R.C. 3319.311(A)(1). The

superintendent reviews the results of the investigation and determines, on behalf of the state board,

whether the results warrant initiating action under R.C. 3319.31(B), but no action is taken without

first providing written notice of the charges and an opportunity for a hearing. R.C. 3319.311(B)-

(C). For purposes of an R.C. 3319.311(A)(1) investigation or an R.C. 3319.311(C) hearing, the

board—or the superintendent on behalf of the board—may administer oaths, order the taking of 17

depositions, issue subpoenas, and compel the attendance of witnesses and the production of books,

accounts, papers, records, documents, and testimony. R.C. 3319.311(D).

{¶46} While arguing at sidebar against the admission of any testimony regarding any

investigation and proceedings by the principal or superintendent, Mr. Klafczynski’s counsel

admitted, “We assumed [the official proceeding] was criminal. That’s typically what the

[tampering with evidence] statute * * * deal[s] with * * *.” The prosecutor explained to the court,

“There’s going to be an investigation by the police, investigation by the school, and then

potentially by the State Board of Education.” Relying specifically on the Supreme Court of Ohio’s

decision in E. Canton Edn. Assn. v. McIntosh,

(1999), Mr. Klafczynski objected

to the additional, requested instructions and argued that an “official proceeding” for purposes of

tampering with evidence does not apply to school principals or superintendents because neither

one is a “public official” and neither one can “swear people in under oath” or “investigate

anything.” In McIntosh, the Supreme Court of Ohio noted that it had previously held that a public

school superintendent is a public official, but had not yet considered the issue of whether a public

high school principal is a public official for purposes of defamation law.

, citing Scott v.

The News-Herald,

(1986), paragraph two of the syllabus. The high court

discussed how courts in other jurisdictions are divided as to whether public school principals

should be accorded “public official” status, but ultimately held that a public school principal is not

a public official for purposes of defamation law.

{¶47} While Mr. Klafczynski challenged the school’s investigation and impending

proceedings regarding his teaching license, he never challenged the police department’s criminal

investigation as not satisfying the “official proceeding or investigation” element for tampering

with evidence. Principal Moore testified that both the school and the police began investigations 18

into Mr. Klafczynski’s alleged, inappropriate relationship with L.S. On cross-examination,

Principal Moore testified that the police arrived on December 5, 2016, and spoke to both him and

the superintendent. When later asked if he personally interviewed people for disciplinary purposes

regarding Mr. Klafczynski, the principal testified that he turned any information he had over to the

police for their investigation. Moreover, although closing arguments are not evidence, defense

counsel spoke openly about the criminal investigation during his closing argument, telling the jury

“the investigation did not commence until after [Principal Moore] met with [L.S.] the evening of

December 5th” and the principal “did the smart thing” and “turned that over to the Wadsworth

Police Department.” He explained that “the police are going to come in and interview the

witnesses and do all of their investigation * * *.”

{¶48} Accordingly, we cannot say that the trial court committed reversible error by

instructing the jury as to R.C. 3319.31(B)(1) and 3319.311(C)-(D). Not only is Mr. Klafczynski’s

reliance on McIntosh for support misplaced, as the Supreme Court explicitly limited its holding in

that case to defamation law, see

, but ample evidence was presented to the jury

indicating that the police began a criminal investigation in this matter on December 5, 2016. Even

if we determined the trial court erred in providing additional instructions to the jury regarding the

school’s investigation, we would still need to determine if such error was harmless beyond a

reasonable doubt. See State v. Warner,

(1990). See also State v. Adams,

(9th Dist. 1991), citing Chapman v. California,

(1967) and

Delaware v. Van Arsdall,

(1986) (determining mandatory jury directives resulting in

constitutional error may be harmless error, not necessarily requiring reversal of criminal

convictions, “if the reviewing court can confidently determine from the whole record that the

constitutional error was harmless beyond a reasonable doubt.”). Based on the facts and 19

circumstances of this particular case, it appears that the additional jury instructions were merely

superfluous. Irrespective of the school’s investigation, the jury could have found beyond a

reasonable doubt, based on the evidence presented at trial, that Mr. Klafczynski knew a criminal

investigation by the police was about to be, or was likely to be, instituted. Thus, even if the trial

court’s decision to instruct the jury as to R.C. 3319.31(B)(1) and 3319.311(C)-(D) was error, we

would conclude that it was harmless error beyond a reasonable doubt.

{¶49} Mr. Klafczynski’s third assignment of error is overruled.

ASSIGNMENT OF ERROR FIVE

MR. KLAFCZYNSKI WAS DENIED HIS RIGHT TO DUE PROCESS AND OF EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.

{¶50} In his fifth assignment of error, Mr. Klafczynski argues that his trial counsel was

ineffective for failing to object to the admission of exhibits of communications between himself

and L.S. We disagree.

{¶51} “The Sixth Amendment guarantees a criminal defendant the right to the effective

assistance of counsel.” State v. Liu, 9th Dist. Summit No. 24112,

. “[I]n

Ohio, a properly licensed attorney is presumed competent.” State v. Gondor,

,

, ¶ 62. “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in the same

way.” Strickland v. Washington,

(1984). Moreover, even debatable trial tactics

will not constitute ineffective assistance of counsel. State v. Clayton,

(1980).

To prove ineffective assistance of counsel, one must establish that: (1) his counsel’s performance

was deficient, and (2) the deficient performance prejudiced the defense.

. 20

Counsel’s performance is deficient if it falls below an objective standard of reasonable

representation. State v. Bradley,

(1989), paragraph two of the syllabus.

Prejudice can be shown by proving “there exists a reasonable probability that, were it not for

counsel’s errors, the result of the trial would have been different.”

at paragraph three of the

syllabus. “[T]he Court need not address both Strickland prongs if an appellant fails to prove either

one.” State v. Lortz, 9th Dist. Summit No. 23762,

.

{¶52} Mr. Klafczynski argues that the pictures of Snapchat conversations between

himself and L.S. were “the most damaging evidence against [him,]” but were random, incomplete,

and prejudicial, as some individual messages were missing. He argues that presenting such

incomplete conversations to the jury allowed jurors to infer too much, and his trial counsel should

have therefore objected.

{¶53} As a matter of law, the failure to object at trial may be justified as a trial tactic and

thus does not sustain a claim of ineffective assistance of counsel. State v. Miller, 9th Dist. Summit

No. 23240,

, citing State v. Gumm,

(1995). “Strategic

trial decisions are left to the deference of trial counsel and are not to be second-guessed by

appellate courts.”

citing State v. Carter,

(1995).

{¶54} Here, the pictures were not completely devoid of any and all messages from L.S.

Some of her messages to Mr. Klafczynski were included, but she explained on the witness stand

that others were missing because she had not saved them in time before Snapchat automatically

deleted them. Moreover, Mr. Klafczynski has not explained how any of the missing messages

actually resulted in prejudice that deprived him of a fair trial. Even assuming arguendo that

counsel should have objected to these exhibits, we would nonetheless conclude that the failure to

do so did not affect the outcome of the trial in light of the overwhelming evidence presented 21

demonstrating that he deleted items of evidentiary value from his own phone. See State v. Jackson,

9th Dist. Lorain No. 14CA010555,

, ¶ 68, citing State v. Conway,

,

, ¶ 105 (finding no ineffective assistance of counsel where even if trial

counsel objected and evidence was excluded, other evidence established facts giving rise to the

defendant’s conviction).

{¶55} Mr. Klafczynski’s fifth assignment of error is overruled.

III.

{¶56} Mr. Klafczynski’s assignments of error are all overruled. The judgment of the

Medina County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30. 22

Costs taxed to Appellant.

THOMAS A. TEODOSIO FOR THE COURT

CALLAHAN, J. CONCURS.

CARR, J. CONCURRING IN JUDGMENT ONLY.

{¶57} Although I agree with the majority’s resolution of the first, second, fourth, and fifth

assignments of error, I would resolve the third assignment of error solely on the basis of harmless

error.

APPEARANCES:

KRISTOPHER IMMEL, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.