[Cite as State v. Wintermute, 2012-Ohio-3292.]

 IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 24815 

vs. : T.C. CASE NO. 11CRB4453 

CHRISTOPHER WINTERMUTE : (Criminal Appeal from 

 Municipal Court) 

Defendant-Appellant : 

 . . . . . . . . . 

 O P I N I O N

 Rendered on the 20th day of July, 2012. 

 . . . . . . . . . 

John Danish, City Attorney (Atty. Reg. No. 0046639); Amy B. Musto, Asst. City 

Prosecutor, Atty. Reg. No. 0071514, 335 W. Third Street, Room 372, Dayton, OH 45402 

 

Attorneys for Plaintiff-Appellee 

Zachary Bushatz, Atty. Reg. No. 0083972, 2190 Gateway Drive, Fairborn, OH 45324 

Attorney for Defendant-Appellant 

 . . . . . . . . . 

GRADY, P.J.: 

{¶ 1} Defendant Christopher Wintermute appeals from his conviction and sentence 

for assault in violation of R.C. 2903.13(A). 

{¶ 2} On May 14, 2011, Defendant was helping his father move out of a house that 

his father had been renting with two roommates, Anthony Nelson and Harry Stoner. While 
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Defendant and his father were carrying a bed boxspring down a flight of stairs, Nelson and 

Defendant’s father got into a verbal altercation and then a shoving match. According to 

Nelson, Defendant hit Nelson twice in the back of his head while Nelson was fighting 

Defendant’s father, resulting in a lump on Nelson’s head the size of a golf ball. 

{¶ 3} Nelson called the police to report the assault by Defendant. Officer Bozarth 

responded to the scene and spoke with Nelson and Stoner. Defendant and his father left 

before Officer Bozarth arrived. 

{¶ 4} On May 16, 2011, Nelson filed a criminal complaint in Dayton Municipal 

Court. Defendant was charged with assault in violation of R.C. 2903.13(A), a first degree 

misdemeanor. Following an August 11, 2011 bench trial, the trial court found Defendant 

guilty of assault and sentenced him to 180 days in jail, which the court suspended, 20 hours of 

community service in lieu of fines, and one year of supervised probation. Defendant also was 

ordered to complete an anger management program. 

{¶ 5} Defendant filed a notice of appeal raising two assignments of error. 

{¶ 6} First Assignment of Error: 

{¶ 7} “APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL 

AT TRIAL.” 

{¶ 8} On June 17, 2011, Susan Souther, an attorney with the Montgomery County 

Public Defender’s Office, filed a notice of appearance as Defendant’s attorney. However, 

Attorney Souther did not appear to represent Defendant on the day of trial. Rather, according 

to Defendant, another attorney from the Public Defender’s Office showed up and represented 
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him at trial.1 Defendant contends that he “had prepared going to trial with Attorney Souther, 

who knew the facts of Appellant’s case.” Brief, p.9. Defendant argues that Attorney 

Souther’s failure to appear for trial establishes ineffective assistance of counsel. We do not 

agree. 

{¶ 9} Counsel’s performance will not be deemed ineffective unless and until 

counsel’s performance is proved to have fallen below an objective standard of reasonable 

representation and, in addition, prejudice arises from counsel’s performance. Strickland v. 

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To show that a defendant 

has been prejudiced by counsel’s deficient performance, the defendant must affirmatively 

demonstrate to a reasonable probability that were it not for counsel’s errors, the result of the 

trial would have been different. Id.; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 

(1989). “A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Strickland, 466 U.S. at 694. Further, the threshold inquiry should be whether a 

defendant was prejudiced, not whether counsel’s performance was deficient. Strickland. 

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The transcript identifies Defendant’s trial counsel as 

“unidentified” or “the defense.” 

{¶ 10} Defendant does not specify how he was prejudiced by Attorney Souther’s 

failure to appear, to the extent that a different result would otherwise have occurred. Absent 

a showing of prejudice, we cannot find ineffective assistance of counsel. Further, the fact 

that Defendant did not have the counsel of his choosing represent him at trial does not 

establish the requisite prejudice. In Thurston v. Maxwell, 3 Ohio St.2d 92, 93, 209 N.E.2d 

204 (1965), the Ohio Supreme Court wrote: 
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The right of an accused to select his own counsel is inherent only in 

those cases wherein such accused is employing the counsel himself. The right 

to have counsel assigned by the court does not impose a duty on the court to 

allow the accused to choose his own counsel; the selection is within the 

discretion of the court. * * * 

{¶ 11} The first assignment of error is overruled. 

{¶ 12} Second Assignment of Error: 

{¶ 13} “THE TRIAL COURT FINDING APPELLANT GUILTY WAS CONTRARY 

TO THE MANIFEST WEIGHT OF THE EVIDENCE.” 

{¶ 14} When reviewing a judgment under a manifest weight standard of review: 

[t]he court, reviewing the entire record, weighs the evidence and all 

reasonable inferences, considers the credibility of witnesses and determines 

whether in resolving conflicts in the evidence, the [factfinder] clearly lost its 

way and created such a manifest miscarriage of justice that the conviction must 

be reversed and a new trial ordered. The discretionary power to grant a new 

trial should be exercised only in the exceptional case in which evidence weighs 

heavily against the conviction. 

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio 

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

{¶ 15} Defendant was convicted of assault in violation of R.C. 2903.13(A), which 

provides: “No person shall knowingly cause or attempt to cause physical harm to another or to 

another’s unborn.” R.C. 2901.22(B) defines “knowingly” and provides: 
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A person acts knowingly, regardless of his purpose, when he is aware 

that this conduct will probably cause a certain result or will probably be of a 

certain nature. A person has knowledge of circumstances when he is aware 

that such circumstances probably exist. 

{¶ 16} At trial, Nelson testified that Defendant twice hit him on the head while Nelson 

was fighting with Defendant’s father, and that he was “certain” that it was Defendant who 

delivered the two blows. (Tr. 11). Nelson was injured as a result of Defendant’s blows to 

Nelson’s head. This testimony, if credited, establishes that Defendant committed assault in 

violation of R.C. 2903.13(A). 

{¶ 17} Defendant argues that Nelson’s testimony should not be credited because 

Nelson was not wearing his glasses at the time of the fight with Defendant’s father, and only 

saw Defendant out of the corner of his eye. Further, Defendant’s father testified that he did 

not see Defendant hit Nelson. 

{¶ 18} The credibility of the witnesses and the weight to be given to their testimony 

are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 

212 (1967). In State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 

(Aug. 22, 1997), we observed: 

Because the factfinder * * * has the opportunity to see and hear the 

witnesses, the cautious exercise of the discretionary power of a court of appeals 

to find that a judgment is against the manifest weight of the evidence requires 

that substantial deference be extended to the factfinder’s determinations of 

credibility. The decision whether, and to what extent, to credit the testimony 
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of particular witnesses is within the peculiar competence of the factfinder, who 

has seen and heard the witness. 

{¶ 19} The trial court chose to credit the testimony of Nelson over the testimony of 

Defendant’s father. It was well within the trial court’s discretion to do so. Nelson’s 

testimony is competent, credible evidence that supports Defendant’s conviction. Based on 

our review of the record before us, we cannot find that Defendant’s conviction is against the 

manifest weight of the evidence. 

{¶ 20} The assignments of error are overruled. The judgment of the trial court will be 

affirmed. 

DONOVAN, J., And HALL, J., concur. 

Copies mailed to: 

Amy B. Musto, Esq. 

Zachary Bushatz, Esq. 

Hon. Daniel G. Gehres