[Cite as State v. Nash,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-210435 C-210436 Plaintiff-Appellee, : TRIAL NOS. C-20CRB-7503 A-B

vs. : O P I N I O N. : JORDAN NASH,

Defendant-Appellant. :

Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: May 6, 2022

Joseph T. Deters, Hamilton County Prosecutor, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista M. Gieske, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} In the aftermath of a domestic dispute, defendant-appellant Jordan Nash was

convicted of domestic violence and menacing. On appeal, he maintains that his convictions

ran against the weight of the evidence and alleges deprivation of his right to effective

assistance of counsel. But the record provides no basis for reversal, and we accordingly

overrule his assignments of error and affirm the judgments of the trial court.

I.

{¶2} This case stems from a physical altercation between Mr. Nash and his then-

wife Antoinette Nash. After the state initiated prosecution against Mr. Nash for domestic

violence and aggravated menacing, this matter proceeded to trial, where the parties offered

conflicting accounts of what transpired on the date of the incident in question.

{¶3} According to Ms. Nash, on the date in question, an argument arose between her

and Mr. Nash about their finances. As she swept the floor in the living room of their home,

Mr. Nash grabbed the broom from her. In so doing, Mr. Nash struck one of their children,

which led to an escalation of the feud between the couple. Mr. Nash proceeded to force Ms.

Nash against the blinds in the living room. She momentarily broke free from his grasp, but

then he shoved her against another set of blinds in the dining room. She fought back by

kneeing him in the groin, but then he slammed her to the ground and restrained her on the

floor. Mr. Nash eventually relented, at which point Ms. Nash ordered him to pack his things

and leave.

{¶4} Later, as Ms. Nash texted her mother to explain the fracas, Mr. Nash grabbed

the phone from her hands and started reading her text messages. When she tried to recover

her phone, he pulled out a firearm. Mr. Nash then followed Ms. Nash around the house while

he read the messages, as she cried and pleaded for her life. Mr. Nash ultimately yielded,

declaring that he was going to commit suicide as he exited the house.

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{¶5} Next, Ms. Nash took their children and decamped to Mr. Nash’s mother’s

house, where the children would spend the night while Ms. Nash stayed at her uncle’s house

(ostensibly for safety reasons). Ms. Nash contacted the police the following day. The

responding officer testified that he observed signs of bruising on her upper body, but nothing

that would be apparent in a photograph. He went to the scene of the altercation, where he

noticed that the blinds of the home appeared damaged and in disarray. The officer also found

a handgun magazine in Mr. Nash’s vehicle.

{¶6} Mr. Nash shared an entirely different story. He testified that, on the day of the

altercation, tensions escalated between the couple because, a few days prior, one of their

children ingested a toxic substance while under Ms. Nash’s supervision, resulting in a hospital

trip. Exacerbating those tensions, the couple began bickering about how to spend the COVID-

19 stimulus check. With Mr. Nash ignoring Ms. Nash’s retorts, she eventually got his

attention by striking him on the shin with a hammer. He then seized the hammer and fled up

the stairs. Ms. Nash chased him around the house for some time, but she eventually

surrendered, packed up her things, and left the home. Mr. Nash insists that he never pushed

her against the blinds and did not brandish a firearm on the date of the altercation. In fact,

he testified that he had not owned a firearm for years and that the magazine in his vehicle

belonged to a gun that he no longer owned.

{¶7} After the altercation, Mr. Nash went to his mother’s house. Mr. Nash’s mother

testified that his leg was red and swollen, and that she gave him a bag of frozen vegetables to

ice it. His mother urged him not to contact the police because she did not think that would

be in the children’s best interest.

{¶8} After sifting through the conflicting evidence, the trial court ultimately

convicted Mr. Nash for first-degree-misdemeanor domestic violence and fourth-degree

menacing (a lesser included offense of aggravated menacing). Mr. Nash now appeals those

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convictions, challenging the manifest weight of the evidence in support of the convictions and

alleging deprivation of his right to effective assistance of counsel.

II.

{¶9} Mr. Nash’s first assignment of error maintains that his convictions ran against

the manifest weight of the evidence. In reviewing whether a conviction runs counter to the

manifest weight of the evidence, we sit as a “thirteenth juror.” State v. Thompkins,

,

(1997). We will reverse the trial court’s decision to convict

and grant a new trial only in “ ‘exceptional cases in which the evidence weighs heavily against

the conviction.’ ” State v. Sipple,

,

(1st Dist.), quoting

State v. Martin,

,

(1st Dist. 1983).

{¶10} The trial court convicted Mr. Nash of first-degree domestic violence under R.C.

2919.25(A), which provides that “[n]o person shall knowingly cause or attempt to cause

physical harm to a family or household member.”

{¶11} Mr. Nash portrays the evidence as weighing heavily against the trial court’s

finding that he knowingly caused physical harm to Ms. Nash. For this point, he pounces on

testimonial inconsistencies between the defense and prosecution witnesses. Namely, he

notes that Ms. Nash knew that a domestic violence conviction would impede his ability to gain

custody over their children and become a registered nurse, implying that her testimony lacks

credibility because of her motive to fabricate. He also insists that evidence of Ms. Nash’s

injuries lacks credibility in light of his mother’s testimony that she had no apparent injuries

when she dropped the children off at her home. Ultimately, however, it is well-settled that “

‘a conviction is not against the manifest weight of the evidence simply because the trier of fact

believed the prosecution testimony.’ ” State v. Robinson, 12th Dist. Butler No. CA2018-08-

163,

, quoting State v. Lunsford, 12th Dist. Brown No. CA2010-10-021,

, ¶ 17. Mr. Nash’s conviction for domestic violence is not against the weight

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of the evidence simply because the trial court resolved credibility issues in favor of the state,

particularly when measured against the entirety of the evidence in the present record. We

overrule Mr. Nash’s challenge to the weight of the evidence in support of his domestic violence

conviction.

{¶12} Next, Mr. Nash challenges his conviction for fourth-degree menacing under

R.C. 2903.22, which reads that “[n]o person shall knowingly cause another to believe that the

offender will cause physical harm to the person or property of the other person, the other

person’s unborn, or a member of the other person’s immediate family.”

{¶13} Mr. Nash again points to testimonial inconsistencies between the defense and

prosecution witnesses. In that vein, he claims that Ms. Nash’s allegation that he brandished

a firearm is not credible because he testified that he had not owned a firearm for many years

and his mother explained that Ms. Nash made no mention of whether he possessed a gun. He

also highlights the improbability of Ms. Nash leaving their children with his mother if she

actually believed that he posed a threat of physical harm to others. Of course, a conviction is

not against the weight of the evidence merely because the trial court did not believe the

defense testimony. And while Ms. Nash’s decision to leave their children with Mr. Nash’s

mother might bolster the defense position, we do not believe that this fact alone establishes

that the evidence weighs heavily against the conviction. In considering the totality of evidence

in the record at hand, we overrule Mr. Nash’s first assignment of error.

III.

{¶14} Mr. Nash’s second assignment of error alleges deprivation of his right to

effective assistance of counsel because his trial counsel did not introduce photographs of his

leg injury. “ ‘When a convicted defendant complains of the ineffectiveness of counsel’s

assistance, the defendant must show that counsel’s representation fell below an objective

standard of reasonableness.’ ” State v. Sanders,

,

(2002),

5 OHIO FIRST DISTRICT COURT OF APPEALS

quoting Strickland v. Washington,

,

,

(1984). “Furthermore, ‘the defendant must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome.’ ”

quoting

.

{¶15} Mr. Nash posits that defense counsel acted unreasonably by failing to admit

photographs of his leg injury, particularly in a case where the credibility of the witnesses

hangs in the balance. But we see nothing in the record that definitively establishes that those

photographs even exist, let alone that a reasonable probability exists that they would alter the

outcome of the proceedings. Without evidence of the photographs, we cannot evaluate the

reasonableness of counsel’s decision given the record at hand. Accordingly, Mr. Nash has

failed to demonstrate deficient performance by counsel, and we overrule his second

assignment of error.

* * *

{¶16} In light of the foregoing, we overrule Mr. Nash’s two assignments of error and

affirm the judgments of the trial court.

Judgments affirmed. ZAYAS, P. J., and BOCK, J., concur. Please note:

The court has recorded its entry on the date of the release of this opinion.

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