[Cite as State v. Mayse, 2017-Ohio-1483.]

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, O P I N I O N 

 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 

-2- 

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 
Case No. 9-16-50 

-3- 

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 
Case No. 9-16-50 

-4- 

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 
Case No. 9-16-50 

-5- 

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 
Case No. 9-16-50 

-6- 

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 
Case No. 9-16-50 

-7- 

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. Id. 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.

 
Case No. 9-16-50 

-8- 

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, 2016-Ohio-251, 58 N.E.3d 421, ¶ 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, 122 Ohio St.3d 297, 2009-

Ohio-2961, 911 N.E.2d 242, ¶ 73. 
Case No. 9-16-50 

-9- 

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, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (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, 40 Ohio St.3d 277, 288, 533 N.E.2d 682 (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, 79 Ohio 

St.3d 1, 679 N.E.2d 646 (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.” Id. at 8, 679 N.E.2d 

646. 

Wilder, supra at ¶ 14. 

 

{¶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, 40 Ohio St.3d 277, 

288, 533 N.E.2d 682 (1988). The first assignment of error is overruled. 

Motion for a Mistrial
Case No. 9-16-50 

-10- 

{¶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, 90 Ohio St.3d, 

460, 480, 2001-Ohio-4, 739 N.E.2d 749. A mistrial should not be granted merely 

due to some error or irregularity. Id. It should only be granted when a fair trial is 

no longer a possibility. Id. 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, 2007-Ohio-4067 ¶ 21. 

{¶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 
Case No. 9-16-50 

-11- 

Ohio St.3d 1, 3, 511 N.E.2d 1138 (1987). The sanction imposed will not be 

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

166 Ohio App.3d 123, 2006-Ohio-1884, 850 N.E.2d 123, ¶ 7 (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, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, 

¶ 131. 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 
Case No. 9-16-50 

-12- 

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 
Case No. 9-16-50 

-13- 

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, 191 Ohio App.3d 747, 

2010-Ohio-6597, 947 N.E.2d 730, ¶ 32 (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.” 
Case No. 9-16-50 

-14- 

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 514 (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. Id. 

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 factfinder. 

{¶20} State v. Thompson, 127 Ohio App.3d 511, 529, 713 N.E.2d 456 (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, 2016-Ohio-860, ¶ 31 quoting State v. Petty, 10th Dist. Franklin Nos. 11AP716, 11AP-766, 2012-Ohio-2989, ¶ 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; 
Case No. 9-16-50 

-15- 

(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 
Case No. 9-16-50 

-16- 

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 
Case No. 9-16-50 

-17- 

substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 

71, 74 O.O.2d 156, 341 N.E.2d 304, 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), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 

623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 

3135, 57 L.Ed.2d 1154. 

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), 2 Ohio 

St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; 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, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “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, 2016-Ohio-3499, ¶ 20. “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, 

109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “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 ___, 2016-Ohio-5487, ___ N.E.3d ___, ¶ 82 quoting 

Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). 
Case No. 9-16-50 

-18- 

{¶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, 91 Ohio 

St.3d 335, 354, 2001-Ohio-57, 744 N.E.2d 1163. 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. 
Case No. 9-16-50 

-19- 

{¶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, 

2016-Ohio-446, 58 N.E.2d 584, ¶ 42 quoting State v. Johnson, 112 Ohio St.3d 210, 

2006-Ohio-6404, 858 N.E.2d 1144. “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, 69 Ohio St.3d 38, 53, 630 N.E.2d 339 (1994) quoting Jacobs, Ohio 
Case No. 9-16-50 

-20- 

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, 2015-Ohio-4116, 43 N.E.2d 833, 

¶ 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 
Case No. 9-16-50 

-21- 

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 
Case No. 9-16-50 

-22- 

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, 2015-Ohio-2553, 43 N.E.3d 775, ¶56. Since this was 

the defense’s theory of the case, the admission of the testimony of Hummel was part 
Case No. 9-16-50 

-23- 

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, 28 Ohio St.3d 

199, 201, 503 N.E.2d 142 (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, 2002-Ohio-6148, ¶ 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 
Case No. 9-16-50 

-24- 

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. 
Case No. 9-16-50 

-25- 

{¶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