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On September 14, 2018, Appellant was indicted by the Columbiana County

Grand Jury on one count of felonious assault, a felony of the second degree, in violation

of R.C. 2903.11(A)(1). Appellant was appointed counsel and pleaded not guilty at his

arraignment.

{¶3} A jury trial commenced on November 19, 2018.

{¶4} The State presented three witnesses: Jessica Taylor, an eyewitness;

Captain Fred Flati, with the East Liverpool Police Department; and Albert Fullerton, the

victim.

{¶5} An altercation took place on July 25, 2018, just after midnight. Taylor and

Fullerton lived on opposite sides of a duplex. The building has separate front porches

divided by a railing. The porches are accessed by several steps and are approximately

four feet above a concrete sidewalk. Appellant was staying across the street at his

mother’s home.

{¶6} Appellant was outside smoking with a 16-year-old neighborhood friend.

Taylor was also outside. Knowing that the minor’s mother would disapprove of her son’s

behavior, Taylor told him, “‘You better get * * * home. Your mom’s gonna be mad.’”

(11/19/18 Jury Trial T.p. 157). Taylor testified that Appellant was “very mean,” was

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Case No. 18 CO 0039

“yelling” at her, crossed the street, went onto her front porch, and placed his hands on

her face. (T.p. 160). Taylor yelled for her boyfriend, who was inside, to call the police.

{¶7} Fullerton heard the commotion and went onto his front porch. Fullerton told

Appellant, “‘If you have a problem with [Taylor], you have a problem with me.’” (T.p. 177).

According to Taylor, Appellant then ran onto Fullerton’s porch, grabbed Fullerton’s arm

with his left hand, grabbed Fullerton by the back of the neck with his right hand, and threw

him, face-first, down the stairs onto the concrete sidewalk below. (T.p. 162-163, 178-179,

State’s Exhibit 1).

{¶8} Fullerton was transported via ambulance to the hospital with “life

threatening” injuries. (T.p. 190). He was placed on life support and was treated for

multiple skull fractures, cheekbone fractures, broken ribs, and a collapsed lung. At the

time of trial, Fullerton was still receiving medical treatment and suffered from memory,

hearing, and vision loss. Fullerton has no recollection of the July 25, 2018 assault.

{¶9} Appellant was arrested by the East Liverpool Police Department. Captain

Flati testified that Appellant was “intoxicated,” “very, very aggressive,” “uncooperative,”

“very, very angry,” “irate,” “very belligerent,” and “uncontrollable” at the police station.

(T.p. 195-196). In the booking area, Captain Flati indicated that Appellant acknowledged

throwing Fullerton down the steps. Police officers also recovered a home surveillance

video from across the street where the incident took place. The video shows the assault

as described by Taylor. (State’s Exhibit 1).

{¶10} At the close of the State’s case, defense counsel moved for an acquittal

pursuant to Crim.R. 29, which was overruled by the trial court.

{¶11} Appellant testified that he and Fullerton were friends. Appellant claimed

that Fullerton wanted to fight him and that he hurt Fullerton “on accident.” (T.p. 237).

Appellant testified, “I admit, I did hurt him. I hurt him real bad.” (T.p. 239). Regarding

the crime at issue, Appellant stated, “I did it. I slammed [Fullerton].” (T.p. 241). Appellant

claimed, however, that it was not his intent to hurt Fullerton. Appellant stated that Taylor

never liked him and that she was not telling the truth.

{¶12} At the conclusion of all of the evidence, Defense counsel renewed the

Crim.R. 29 motion for acquittal, which was overruled by the trial court.

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Case No. 18 CO 0039

{¶13} The jury found Appellant guilty of felonious assault as charged in the

indictment.

{¶14} On November 26, 2018, the trial court sentenced Appellant to five years in

prison, with 116 days of credit for time served. The court further advised Appellant that

post-release control is mandatory for three years. Appellant filed a timely appeal and

raises three assignments of error.

ASSIGNMENT OF ERROR NO. 1

THE STATE FAILED TO PROVE THE ELEMENTS OF FELONIOUS

ASSAULT. ALTHOUGH THE CONSEQUENCES OF THE EVENTS

WERE SERIOUS, THERE WAS NO “KNOWING” INTENT TO DO

“SERIOUS PHYSICAL HARM” AS REQUIRED BY THE STATUTE. THE

VERDICT WAS BOTH LEGALLY INSUFFICIENT AND AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

“When a court reviews a record for sufficiency, ‘(t)he 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.’ State v.

Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two

of the syllabus; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979).

In determining whether a criminal conviction is against the manifest weight

of the evidence, 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. State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67,

2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.* * *

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Case No. 18 CO 0039

The weight to be given to the evidence and the credibility of the witnesses

are nonetheless issues for the trier of fact. State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967). The trier of fact “has the best opportunity to

view the demeanor, attitude, and credibility of each witness, something that

does not translate well on the written page.” Davis v. Flickinger, 77 Ohio

St.3d 415, 418, 674 N.E.2d 1159 (1997).

State v. T.D.J., 7th Dist. Mahoning No. 16 MA 0104, 2018-Ohio-2766, ¶ 46-48.

{¶15} “‘(C)ircumstantial evidence and direct evidence inherently possess the

same probative value.’” State v. Biros, 78 Ohio St.3d 426, 447 (1997), quoting Jenks,

supra, paragraph one of the syllabus.

{¶16} For the reasons addressed below, we determine the judgment is not against

the manifest weight of the evidence and further conclude it is supported by sufficient

evidence.

{¶17} Appellant takes issue with the guilty finding for felonious assault, a felony of

the second degree, in violation of R.C. 2903.11(A)(1), which states: “[n]o person shall

knowingly * * * [c]ause serious physical harm to another[.]”

{¶18} “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.” R.C. 2901.22(B).

{¶19} This court’s review of the record establishes there was ample proof that

Appellant knowingly caused serious physical harm to Fullerton.

{¶20} Appellant mistakenly claims that Fullerton testified that this assault

consisted of drinking which led to Appellant becoming mad, following him inside the

house, and swinging at him. The transcript reveals that Fullerton was describing another

incident that occurred about two years prior. That previous incident will not be confused

with the incident at issue here.

{¶21} As stated, on July 25, 2018, just after midnight, Appellant was outside

smoking with a 16-year-old neighborhood friend. Taylor was also outside. Knowing that

the minor’s mother would disapprove of her son’s behavior, Taylor told him, “‘You better

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Case No. 18 CO 0039

get * * * home. Your mom’s gonna be mad.’” (11/19/18 Jury Trial T.p. 157). Taylor

testified that Appellant was “very mean,” was “yelling” at her, crossed the street, went

onto her front porch, and placed his hands on her face. (T.p. 160). Taylor yelled for her

boyfriend, who was inside, to call the police.

{¶22} Fullerton, Taylor’s next door neighbor, heard the commotion and went onto

his front porch. Fullerton told Appellant, “‘If you have a problem with [Taylor], you have a

problem with me.’” (T.p. 177). According to Taylor, Appellant then ran onto Fullerton’s

porch, grabbed Fullerton’s arm with his left hand, grabbed Fullerton by the back of the

neck with his right hand, and threw him, face-first, down the stairs onto the concrete

sidewalk below. (T.p. 162-163, 178-179, State’s Exhibit 1). Fullerton sustained “life

threatening” injuries. (T.p. 190). At the time of trial, Fullerton still received medical

treatment. He had no recollection of the assault.

{¶23} Appellant was arrested. Captain Flati testified that Appellant was

“intoxicated,” “very, very aggressive,” “uncooperative,” “very, very angry,” “irate,” “very

belligerent,” and “uncontrollable” at the police station. (T.p. 195-196). Captain Flati

indicated that Appellant acknowledged throwing Fullerton down the steps. Police officers

also recovered a home surveillance video from across the street where the assault took

place. The video, played for the jury and viewed by this court, shows the assault as

described by Taylor. (State’s Exhibit 1).

{¶24} Appellant took the stand and testified in his own defense. Appellant

admitted that he “hurt” and “slammed” Fullerton but claimed it was all “on accident.” (T.p.

237-241).

{¶25} Pursuant to Jenks, supra, there is sufficient evidence upon which the jury

could reasonably conclude beyond a reasonable doubt that the elements of felonious

assault were proven. Thus, the trial court did not err in overruling Appellant’s Crim.R. 29

motion.

{¶26} Also, the jury chose to believe the State’s witnesses. DeHass, supra, at

paragraph one of the syllabus. Based on the evidence presented, as previously stated,

the jury did not clearly lose its way in finding Appellant guilty of felonious assault.

Thompkins, supra, at 387.

{¶27} Appellant’s first assignment of error is without merit.

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Case No. 18 CO 0039

ASSIGNMENT OF ERROR NO. 2

THERE SHOULD HAVE BEEN AN INSTRUCTION ON AGGRAVATED

ASSAULT AS AN INFERIOR DEGREE OF FELONIOUS ASSAULT. THE

EVIDENCE SUPPORTED THAT. HOLCOMB’S COUNSEL WAS

INEFFECTIVE FOR NOT ASKING FOR SUCH A CHARGE, AND THE

TRIAL COURT ERRED BY NOT INCLUDING ONE.

ASSIGNMENT OF ERROR NO. 3

THERE SHOULD HAVE BEEN AN INSTRUCTION ON THE LESSERINCLUDED OFFENSE OF RECKLESS ASSAULT. THE EVIDENCE WAS

SUFFICIENT TO SUPPORT THAT. HOLCOMB’S COUNSEL WAS

INEFFECTIVE FOR NOT ASKING FOR SUCH A CHARGE, AND THE

TRIAL COURT ERRED BY NOT INCLUDING ONE.

{¶28} Because Appellant’s second and third assignments of error call into

question whether his counsel was ineffective for not requesting an instruction on an

inferior degree offense or on a lesser included offense, we will address them in a

consolidated fashion.

In order to demonstrate ineffective assistance of counsel, Appellant must

show that trial counsel’s performance fell below an objective standard of

reasonable representation, and prejudice arose from the deficient

performance. State v. Bradley, 42 Ohio St.3d 136, 141-143, 538 N.E.2d 373

(1989), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Both prongs must be established: If counsel’s

performance was not deficient, then there is no need to review for prejudice.

Likewise, without prejudice, counsel’s performance need not be

considered. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52

(2000).

In Ohio, a licensed attorney is presumed to be competent. State v. Calhoun,

86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In evaluating trial counsel’s

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Case No. 18 CO 0039

performance, appellate review is highly deferential as there is a strong

presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance. Bradley at 142-143, citing Strickland at 689.

Appellate courts are not permitted to second-guess the strategic decisions

of trial counsel. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965

(1995).

Even instances of debatable strategy very rarely

constitute ineffective assistance of counsel. See State v. Thompson, 33

Ohio St.3d 1, 10, 514 N.E.2d 407 (1987). The United States Supreme Court

has recognized that there are “countless ways to provide effective

assistance in any given case.” Bradley at 142, citing Strickland at 689.

To show prejudice, a defendant must prove his lawyer’s deficient

performance was so serious that there is a reasonable probability the result

of the proceeding would have been different. Carter at 558. “It is not enough

for the defendant to show that the errors had some conceivable effect on

the outcome of the proceeding.” Bradley, 42 Ohio St.3d 136 at fn. 1, 538

N.E.2d 373, quoting Strickland at 693. Prejudice from defective

representation justifies reversal only where the results were unreliable or

the proceeding was fundamentally unfair as a result of the performance of

trial counsel. Carter, 72 Ohio St.3d at 558, 651 N.E.2d 965, citing Lockhart

v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

* * *

[A]n ineffective assistance of counsel claim cannot be predicated upon

supposition. State v. Watkins, 7th Dist. Jefferson No. 07 JE 54, 2008-Ohio6634, ¶ 15. Likewise, proof of ineffective assistance of counsel requires

more than vague speculations of prejudice. Id. ¶ 55, citing State v. Otte, 74

Ohio St.3d 555, 565, 1996-Ohio-108, 660 N.E.2d 711.

State v. Rivers, 7th Dist. Mahoning No. 17 MA 0078, 2019-Ohio-2375, ¶ 20-23, 27.

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Case No. 18 CO 0039

{¶29} Appellant specifically contends that his trial counsel was ineffective for

failing to request jury instructions on an inferior degree offense (aggravated assault) or

on a lesser included offense (reckless assault).

The test utilized to determine if an instruction should have been given on an

inferior degree offense is the same test used to determine if an instruction

should have been given on [a] lesser included offense. State v. Shane, 63

Ohio St.3d 630, 632, 590 N.E.2d 272 (1992).

The Ohio Supreme Court has explained:

“(A) charge on a lesser included offense is required when the facts warrant

it and improper when the facts do not warrant it: ‘If the trier of fact

could reasonably find against the state and for the accused upon one or

more of the elements of the crime charged and for the state on the

remaining elements, which by themselves would sustain a conviction on a

lesser-included offense, then a charge on the lesser-included offense is

required. Conversely, if the jury could not reasonably find against the state

on an element of the crime, then a charge on a lesser-included offense is

not only not required, but is also improper.’”

State v. Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 20.

Lesser included and/or inferior degree offense instructions are not

warranted every time “some evidence” is offered to support the lesser

offense. Shane, 63 Ohio St.3d at 632.

Furthermore, a trial counsel’s failure to request instructions on lesser

included offenses is often a matter of trial strategy and does not per se

establish ineffective assistance of counsel. State v. Griffie, 74 Ohio St.3d

332, 658 N.E.2d 764 (1996), citing State v. Clayton, 62 Ohio St.2d 45, 402

N.E.2d 1189 (1980). Defense counsel’s decision to forego an instruction on

lesser included offenses, and instead seek an acquittal rather than inviting

conviction on a lesser offense, can constitute trial strategy. Debatable

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Case No. 18 CO 0039

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. Cook, 65 Ohio St.3d 516, 524, 605

N.E.2d 70 (1992).

State v. Henderson, 7th Dist. Mahoning No. 15 MA 0137, 2018-Ohio-2816, ¶ 68-71.

{¶30} Aggravated assault is an inferior degree offense of felonious assault

because the elements of the two crimes are identical except that aggravated assault

contains the additional mitigating element of serious provocation. State v. Deem, 40 Ohio

St.3d 205, 210-211, 533 N.E.2d 294 (1988). To be serious, the provocation must bring

on extreme stress and be reasonably sufficient to incite the defendant into using deadly

force. Id. at paragraph five of the syllabus. Here, Appellant failed to provide sufficient

evidence of serious provocation to support an instruction on aggravated assault, as it is

the defense’s position that the victim fell by accident.

{¶31} Reckless assault, in violation of R.C. 2903.13(B), is a lesser included

offense of felonious assault, in violation of R.C. 2903.11(A)(1). State v. Tolle, 12th Dist.

Clermont No. CA2014-06-042, 2015-Ohio-1414, ¶ 10. Upon reviewing the evidence

presented at trial, we find that the jury could not have reasonably concluded that Appellant

was guilty only of the lesser included offense of reckless assault, but not of the greater

offense of felonious assault. Again, Appellant’s entire defense revolves around an

accident. As addressed, the evidence shows Appellant acted knowingly, that is, he was

aware his “conduct [would] probably cause a certain result or [would] probably be of a

certain nature.” R.C. 2901.22(B).

{¶32} Furthermore, it appears it was trial strategy for counsel to not request an

instruction on the lesser included/inferior degree offenses. It appears Appellant was

seeking acquittal, not a conviction on a lesser offense. Appellant fails to demonstrate

ineffective assistance of counsel. See Strickland, supra. Based on the facts presented,

the trial court acted properly in not instructing the jury on aggravated assault or reckless

assault.

{¶33} Appellant’s second and third assignments of error are without merit.

For the foregoing reasons, Appellant’s assignments of error are not welltaken. The judgment of the Columbiana County Court of Common Pleas convicting

Appellant for felonious assault following a jury trial and sentencing him to a five-year

sentence is affirmed.