[Cite as State v. Brauchler, 2020-Ohio-2731.]

COURT OF APPEALS 

HOLMES COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellee : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : Case No. 19CA010 

 : 

BARRY L. BRAUCHLER : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Holmes County Court 

of Common Pleas, Case No. 18CR030 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: April 29, 2020 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

ROBERT K. HENDRIX DAVID M. HUNTER 

Holmes Co. Prosecutor’s Office 244 West Main St. 

164 E. Jackson St. Loudonville, OH 44842 

Millersburg, OH 44654 

 
Holmes County, Case No. 19CA010 2 

Delaney, J. 

{¶1} Appellant Barry L. Brauchler appeals from the February 12, 2019 Judgment 

Entry of Sentencing of the Holmes County Court of Common Pleas. Appellee is the state 

of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} The following facts are adduced from the record of appellant’s jury trial. 

{¶3} On January 31, 2018, around 10:30 a.m., a drive-through teller at a bank 

on North Clay Street in Millersburg noticed a car stopped in the bank’s fourth lane. The 

fourth lane is a lane of travel used to exit the parking lot. A man got out of the vehicle, a 

dark green Lincoln, and paced back and forth. He did not approach the A.T.M. or 

otherwise appear to have business at the bank. 

{¶4} As the teller watched from the drive-through window, she saw the man 

pacing agitatedly, talking on a cell phone. He waved his arms in the air and walked toward 

bank customers parked in other drive-through lanes, gesturing at them. The teller called 

the bank manager over to watch, and they observed one customer roll up her window 

and drive off without conducting her transaction. At one point the man threw his cell 

phone down in the parking lot. The teller described the man’s behavior as “unusual” and 

threatening toward the bank customers. The employees did not want to confront the man. 

{¶5} Unnerved, the bank employees locked the doors and called the Millersburg 

Police. Captain Kim Hermann was dispatched for a report of a person with vehicle 

trouble. He found the man, identified as appellant, standing outside the Lincoln with its 

trunk open. Hermann asked appellant “what was going on,” and appellant responded 

that he was very thirsty. He also said “someone had taken over control of his vehicle and 
Holmes County, Case No. 19CA010 3 

his cell phone.” Hermann asked appellant for I.D. and he provided his driver’s license. 

Hermann ran the license and registration and found that appellant did not have any active 

warrants and the Lincoln belonged to appellant’s mother. Hermann noted appellant’s 

mouth was visibly extremely dry and his pupils were dilated. Appellant repeated that he 

was very thirsty. Hermann asked appellant what he was on and appellant responded that 

someone forced him to use meth. 

{¶6} The driver’s door of the vehicle was open, and Hermann observed a 

marijuana “joint” in plain sight on the floor in front of the passenger seat. When asked 

about the marijuana, appellant said it wasn’t his but he had smoked it. Hermann asked 

appellant whether he mother was home but appellant said she was working; Hermann 

had determined that appellant would not be permitted to drive away from the scene and 

would have to be picked up. 

{¶7} At that point, Hermann intended to write appellant a minor-misdemeanor 

citation for marijuana possession and to call someone to give appellant a ride. When 

Hermann asked appellant to sit in the backseat of the cruiser, though, appellant threw his 

cell phone to the ground and took off “at a jog.” Hermann ran after him, toward a sidewalk 

leading to the town square. Hermann asked appellant to return to the scene and appellant 

cooperated, turning around and returning to the bank parking lot without requiring 

Herrmann to apprehend him. 

{¶8} Hermann placed appellant in the back seat of the cruiser and initially 

allowed him to keep his feet outside of the vehicle because appellant did not want the 

door shut. Hermann permitted this because appellant was calm and cooperative at that 

point. Hermann still intended to write a minor-misdemeanor citation for marijuana 
Holmes County, Case No. 19CA010 4 

possession. Another police officer arrived on the scene, Deputy Stryker from the Holmes 

County Sheriff’s Department. Hermann asked Stryker to search appellant’s vehicle due 

to the marijuana “joint” Hermann had spotted, and Stryker began to search the vehicle. 

Appellant agreed to put both feet inside the cruiser so Hermann could close the door. 

Hermann and Stryker were talking to each other when Hermann saw the door of the 

cruiser “bulging out” from being struck from the inside and heard “banging” from inside 

the vehicle. Hermann opened the door, intending to arrest appellant for criminal 

damaging. Appellant would not permit Hermann to handcuff or subdue him, and resisted 

by raising his arms and struggling inside the vehicle. Stryker got involved and eventually 

helped cuff appellant’s hands in front of him. 

{¶9} The bank employees watched the entire encounter from inside the bank. 

They observed appellant put his feet inside the cruiser and saw Hermann shut the door; 

then they observed the cruiser “physically shaking” and saw the officers open the doors 

to attempt to calm appellant. The employees could not see inside the cruiser but assumed 

appellant was kicking the door. 

{¶10} Hermann testified that the molding of the cruiser door was pulled off, and 

he and Stryker both had minor injuries from the altercation, Hermann to his knee and 

Stryker to his knuckle. Eventually appellant was cuffed, but a squad was called and 

appellant was transported to a hospital under sedation. The vehicle was towed. 

{¶11} Appellant was charged by indictment as follows: Count I, obstructing official 

business pursuant to R.C. 2921.31(A) and R.C. 2921.31(B), a felony of the fifth degree; 

Count II, resisting arrest pursuant to R.C. 2921.33(B) and R.C. 2921.33(D), a 

misdemeanor of the first degree; Count III, criminal damaging or endangering pursuant 
Holmes County, Case No. 19CA010 5 

to R.C. 2909.06(A)(1) and R.C. 2909.06(B), a misdemeanor of the second degree; Count 

IV, disorderly conduct pursuant to R.C. 2917.11(B)(1) and R.C. 2917.11(E)(3)(a), a 

misdemeanor of the fourth degree; and Count V, possession of marijuana pursuant to 

R.C. 2925.11(A) and R.C. 2925.11(C)(3)(a), a minor misdemeanor. Count V is 

accompanied by a forfeiture specification pursuant to R.C. 2941.1417(A). 

{¶12} Appellant entered pleas of not guilty and filed a motion to suppress. 

Appellee filed a memorandum in opposition. A suppression hearing was held and the 

trial court overruled the motion to suppress by judgment entry dated September 19, 2018. 

{¶13} On January 18, 2019, appellee filed a Notice of State’s Intention to Use 

Evidence, asserting appellee would introduce evidence of the following prior convictions 

of appellant pursuant to Evid.R. 404(B) and R.C. 2945.59: 2001 robbery and abduction, 

2005 having weapons while under disability, and 2009 receiving stolen property and 

misuse of credit cards. Appellant filed a motion in limine to exclude evidence of other 

crimes, wrongs, or acts. On February 12, 2019, the trial court filed an Opinion and 

Judgment Entry stating that although the prior convictions cited by appellee are over 10 

years old, Evid.R. 609 permits inclusion if the proponent gives the adverse party sufficient 

advance written notice and provides the adverse party with fair opportunity to contest the 

use of the evidence. In the instant case, the trial court ruled appellee complied with 

Evid.R. 609 and therefore the prior felony convictions were admissible if appellant testified 

and could be cross-examined on their validity. 

{¶14} The matter proceeded to trial by jury, and the minor-misdemeanor drug 

possession charge was heard by the trial court. Appellant moved for judgments of 

acquittal pursuant to Crim.R. 29(A) at the close of appellee’s evidence and at the close 
Holmes County, Case No. 19CA010 6 

of all of the evidence; the motions were overruled. Appellant was found guilty as charged 

and the trial court imposed a prison term of 11 months. 

{¶15} Appellant filed a motion for leave to file a delayed appeal, which we granted. 

{¶16} Appellant now appeals from the February 12, 2019 Judgment Entry of 

Sentencing. 

{¶17} Appellant raises four assignments of error: 

ASSIGNMENTS OF ERROR 

{¶18} “I. WHETHER THE CONVICTIONS FOR OBSTRUCTING OFFICIAL 

BUSINESS, CRIMINAL DAMAGING, AND RESISTING ARREST ARE AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE? 

{¶19} “II. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT’S 

MOTION IN LIMINE?” 

{¶20} “III. WHETHER THERE WAS MISCONDUCT OF THE PROSECUTOR 

THAT VIOLATED APPELLANT’S RIGHT TO A FAIR TRIAL?” 

{¶21} “IV. WHETHER THE DEFENDANT-APPELLANT WAS DENIED 

EFFECTIVE ASSISTANCE OF COUNSEL?” 

ANALYSIS 

I.

{¶22} In his first assignment of error, appellant argues his convictions upon 

Counts I through III are against the manifest weight of the evidence.1 Although not 

specified in the assignment of error, appellant also challenges the sufficiency of the 

 

1 Appellant does not challenge his convictions upon Count IV, disorderly conduct, and 

Count V, possession of marijuana. 
Holmes County, Case No. 19CA010 7 

evidence supporting his convictions. We find appellant’s convictions are supported by 

sufficient evidence and are not against the manifest weight of the evidence. 

{¶23} The legal concepts of sufficiency of the evidence and weight of the evidence 

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380, 

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for 

a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 

259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme 

Court held, “An appellate court's function when reviewing the sufficiency of the evidence 

to support a criminal conviction is to examine the evidence admitted at trial to determine 

whether such evidence, if believed, would convince the average mind of the defendant's 

guilt beyond a reasonable doubt. 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.” 

{¶24} In determining whether a conviction is against 

the manifest weight of the evidence, the court of appeals functions as the “thirteenth 

juror,” and after “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 jury clearly lost its way and created such a manifest 

miscarriage of justice that the conviction must be overturned and a new trial 

ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387. Reversing a conviction as 

being against the manifest weight of the evidence and ordering a new trial should be 

reserved for only the “exceptional case in which the evidence weighs heavily against the 

conviction.” Id.
Holmes County, Case No. 19CA010 8 

{¶25} Appellant challenges appellee’s evidence upon certain elements of each 

offense and we will examine each in turn. 

{¶26} Regarding his conviction for obstructing official business [Count I], appellant 

argues there was no evidence that his actions inside the police car “alleged[ly] banging 

on the door” delayed performance of the officers’ official duties, nor created a risk of 

physical harm to either officer. He also argues there is no evidence his actions were 

purposeful. “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). Appellant was 

found guilty of one count of obstructing official business pursuant to R.C. 2921.31(A), 

which provides, “No person, without privilege to do so and with purpose to prevent, 

obstruct, or delay the performance by a public official of any authorized act within the 

public official's official capacity, shall do any act that hampers or impedes a public official 

in the performance of the public official's lawful duties.” Pursuant to R.C. 2921.31(B), 

obstructing official business is a felony of the fifth degree if the violation creates a risk of 

physical harm to any person. R.C. 2901.01(A)(3) defines “physical harm to persons” as 

“any injury, illness, or other physiological impairment, regardless of its gravity or duration.” 

{¶27} Appellant’s actions inside the cruiser were not merely “alleged;” he admitted 

striking the door with his shoulder to get the officers’ attention. There is ample evidence 

appellant’s actions were purposeful. His actions inside the police cruiser of kicking the 

door, or slamming his shoulder to the door, were substantial enough to make the 
Holmes County, Case No. 19CA010 9 

“shaking” of the cruiser visible to onlookers inside the bank, and led Hermann to open the 

door to attempt to arrest appellant for criminal damaging. 

{¶28} During the ensuing struggle, appellant caused physical harm to Hermann 

and Stryker: Hermann’s knee was bleeding, and the knuckle of Stryker’s glove was torn 

off and his knuckle was bleeding. A risk of physical harm can exist when an officer 

attempts to restrain a suspect. State v. Gordon, 2017-Ohio-7147, 95 N.E.3d 994, ¶ 22 

(9th Dist.), appeal dismissed, 151 Ohio St.3d 1525, 2018-Ohio-557, 91 N.E.3d 757, citing 

State v. Vactor, 9th Dist. Lorain No. 02CA008068, 2003-Ohio-7195, 2003 WL 23095277, 

¶ 39. Appellee was only required to present evidence that appellant's actions created 

a risk of physical harm to any person. Gordon, supra, at ¶ 23, citing State v. Washington, 

9th Dist. Lorain No. 11CA010015, 2014-Ohio-1876, 2014 WL 1800410, ¶ 18. In the 

instant case, appellee presented evidence that physical harm resulted to both officers. 

{¶29} We conclude the jury could have reasonably found appellant obstructed 

official business in struggling with the officers in the back of the cruiser and that his actions 

created a risk of physical harm. 

{¶30} Appellant was also found guilty upon one count of resisting arrest pursuant 

to R.C. 2921.33(B) [Count II], which states, “No person, recklessly or by force, shall resist 

or interfere with a lawful arrest of the person or another person and, during the course of 

or as a result of the resistance or interference, cause physical harm to a law enforcement 

officer.” Appellant argues there is no evidence how or when Hermann’s knee was cut, 

and characterizes his actions as “cooperative from the inception with Law Enforcement.” 

Again, this argument contradicts appellant’s own trial testimony in which he admitted he 

was aggravated and upset, and “didn’t want to deal” with police. T. 194. The weight of 
Holmes County, Case No. 19CA010 10 

the evidence and the credibility of the witnesses are determined by the trier of fact. State 

v. Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. Hermann 

testified that he opened the door of the cruiser to arrest appellant when he saw the door 

bulge out; appellant resisted being cuffed and struggled with both officers inside the 

cruiser, thrashing, moving, and pulling away. Eventually appellant was cuffed with his 

hands in front, but he required sedation upon arrival of an E.M.T. squad before he could 

be transported to the hospital. Appellant was admittedly under the influence of drugs. 

We find appellant’s conviction of resisting arrest is supported by sufficient evidence and 

is not against the manifest weight of the evidence. 

{¶31} Finally, appellant challenges his conviction upon one count of criminal 

damaging pursuant to R.C. 2909.06(A)(1) [Count III], which provides, “No person shall 

cause, or create a substantial risk of physical harm to any property of another without the 

other person's consent [k]nowingly, by any means.” Appellant argues there was no 

evidence what caused the “banging” on the cruiser door; we note, however, that appellant 

testified he “knocked” on the cruiser door to get the officers’ attention, and when that didn’t 

work, he hit the door with his shoulder. T. 195-196. “Physical harm to property” means 

“any tangible or intangible damage to property that, in any degree, results in loss to its 

value or interferes with its use or enjoyment,” not including wear and tear occasioned by 

normal use. R.C. 2901.01(A)(4). As appellant fully acknowledges, he tore down the 

molding on the interior of the cruiser door. Appellant’s admitted actions establish the 

offense of criminal damaging. 

{¶32} We find the trial court did not clearly lose its way and create a manifest 

miscarriage of justice requiring that appellant's convictions be reversed and a new trial 
Holmes County, Case No. 19CA010 11 

ordered. Appellant's convictions upon these offenses are not against 

the manifest weight of the evidence. 

{¶33} The jury as the trier of fact was free to accept or reject any and all of the 

evidence offered by the parties and assess the witness's credibility. “While the trier of fact 

may take note of the inconsistencies and resolve or discount them accordingly * * * such 

inconsistencies do not render defendant's conviction against the manifest weight or 

sufficiency of the evidence.” State v. Johnson, 2015–Ohio–3113, 41 N.E.3d 104, ¶ 61 

(5th Dist.), citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996 WL 

284714 (May 28, 1996). The jury need not believe all of a witness' testimony, but may 

accept only portions of it as true. Id.

{¶34} Any inconsistencies in the evidence were for the trial court to resolve. State 

v. Dotson, 5th Dist. Stark No. 2016CA00199, 2017-Ohio-5565, ¶ 49. “The 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.” State v. Delevie, 5th Dist. 

Licking No. 18-CA-111, 2019-Ohio-3563, ¶ 30, appeal not allowed, 158 Ohio St.3d 1410, 

2020-Ohio-518, 139 N.E.3d 927, citing State v. Brindley, 10th Dist. Franklin No. 01AP926, 2002-Ohio-2425, 2002 WL 1013033, ¶ 16. In the instant case, appellee’s evidence 

was compelling, and the jury was free to weigh appellant’s self-serving testimony 

accordingly. 

{¶35} We find appellant's convictions are not against the manifest weight or 

sufficiency of the evidence. His first assignment of error is overruled. 
Holmes County, Case No. 19CA010 12 

II., III., IV. 

{¶36} Appellant’s remaining assignments of error are related and will be 

addressed together. He argues that the trial court erred in overruling his motion in limine 

and in admitting evidence of his prior convictions; that appellee committed prosecutorial 

misconduct in asking about the prior convictions and pending charges; and that defense 

trial counsel was ineffective in challenging admission of the prior convictions. We 

disagree. 

{¶37} As noted supra in the statement of procedural history, appellee filed a notice 

of intent to use evidence of appellant’s prior convictions and appellant responded with a 

motion in limine to exclude the evidence. 

{¶38} The admission or exclusion of relevant evidence is a matter left to the sound 

discretion of the trial court. Absent an abuse of discretion resulting in material prejudice 

to the defendant, a reviewing court should be reluctant to interfere with a trial court's 

decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). 

We further note that a trial court's ruling upon a motion in limine “is a tentative, 

interlocutory, precautionary ruling by the trial court reflecting its anticipatory treatment of 

the evidentiary issue” and “finality does not attach when the motion is granted.” State v. 

Grubb, 28 Ohio St.3d 199, 201–02, 503 N.E.2d 142 (1986), citing State v. White, 6 Ohio 

App.3d 1, 4, 451 N.E.2d 533 (8th Dist.1982). The trial court is at liberty to reconsider the 

ruling if circumstances arise at trial that further reflect upon the admissibility of the 

disputed evidence. State v. Holbrook, 5th Dist. Licking No. 16-CA-61, 2017-Ohio-2972, 

¶ 24. 
Holmes County, Case No. 19CA010 13 

{¶39} Upon overruling appellant’s motion in limine, the trial court found appellee 

complied with the pertinent portions of Evid.R. 609: 

(A) General Rule. For the purpose of attacking the credibility 

of a witness: 

* * * *. 

(2) notwithstanding Evid.R. 403(A), but subject to Evid.R. 

403(B),2 evidence that the accused has been convicted of a crime is 

admissible if the crime was punishable by death or imprisonment in 

excess of one year pursuant to the law under which the accused was 

convicted and if the court determines that the probative value of the 

evidence outweighs the danger of unfair prejudice, of confusion of 

the issues, or of misleading the jury. 

(3) notwithstanding Evid.R. 403(A), but subject to Evid.R. 

403(B), evidence that any witness, including an accused, has been 

convicted of a crime is admissible if the crime involved dishonesty or 

false statement, regardless of the punishment and whether based

upon state or federal statute or local ordinance. 

 

2 Ohio Evid. R. 403 states:

(A) Exclusion Mandatory. Although relevant, evidence is not admissible if 

its probative value is substantially outweighed by the danger of unfair prejudice, of 

confusion of the issues, or of misleading the jury. 

(B) Exclusion Discretionary. Although relevant, evidence may be excluded 

if its probative value is substantially outweighed by considerations of undue delay, 

or needless presentation of cumulative evidence. 
Holmes County, Case No. 19CA010 14 

(B) Time Limit. Evidence of a conviction under this rule is not

admissible if a period of more than ten years has elapsed since the 

date of the conviction or of the release of the witness from the 

confinement, or the termination of community control sanctions,

post-release control, or probation, shock probation, parole, or shock 

parole imposed for that conviction, whichever is the later date, unless 

the court determines, in the interests of justice, that the probative 

value of the conviction supported by specific facts and circumstances 

substantially outweighs its prejudicial effect. However, evidence of a 

conviction more than ten years old as calculated herein, is not

admissible unless the proponent gives to the adverse party sufficient 

advance written notice of intent to use such evidence to provide the 

adverse party with a fair opportunity to contest the use of such 

evidence. 

{¶40} Appellant argues the trial court erred in overruling the motion in limine and 

in permitting appellee to cross-examine appellant about convictions older than 10 years 

because the trial court did not make a determination whether the probative value of 

admission of the prior convictions outweighed any prejudicial effect. Appellee responds 

that it was appellant who introduced evidence of his own prior convictions during his direct 

examination. 

{¶41} After appellee rested and before appellant decided whether he would 

testify, the trial court addressed the admissibility of the prior convictions and appellant 

renewed his objection thereto, arguing that the prior convictions were irrelevant and 
Holmes County, Case No. 19CA010 15 

prejudicial. Ultimately the trial court ruled evidence of the prior convictions was 

admissible in cross-examination of appellant if he testified. 

{¶42} Appellant chose to testify and during direct examination, defense trial 

counsel asked him specifically about each of the prior convictions, including the 2001 

“aiding and abetting a robbery and abduction,” a 2005 weapons while under disability, 

and a 2009 misuse of credit cards and receiving stolen property. Counsel then asked, 

“Um were those [prior felonies] on your mind in any way when this event was going on?” 

and appellant responded, “No. I haven’t been in trouble since then. I mean, it’s felonies 

that.” (sic). T. 197. 

{¶43} Upon cross-examination, the prosecutor asked appellant whether he had 

been “in trouble” since, and appellant responded that no, he said he hadn’t had any 

felonies. The prosecutor then stated, “In fact right now you’ve got a charge pending 

downstairs in Municipal Court and felonies pending.” Defense trial counsel immediately 

objected and the trial court stated this information was “highly prejudicial” and the 

prosecutor would be limited to questions about convictions, not cases that were still 

pending. T. 198. The prosecutor then stated, “You’ve not been in any trouble since then, 

no wait, just felonies. You have had multiple criminal convictions since those cases 

ended, isn’t that correct?” And appellant answered, “That’s correct.” T. 198. 

{¶44} We agree with appellee that appellant opened the door to the prior 

convictions. Appellant introduced two issues when he took the stand in his own defense: 

his prior felony convictions and his credibility, admitting on direct examination he had 

multiple felony convictions and identifying each of them. Further, appellant claimed, 

apparently falsely, that he has not been “in trouble” since. Thus, appellant opened the 
Holmes County, Case No. 19CA010 16 

door to this issue and to his credibility. State v. Franklin, 178 Ohio App.3d 460, 2008-

Ohio-4811, 898 N.E.2d 990, ¶ 78 (7th Dist.). 

{¶45} We further note the trial court did give the jury a limiting instruction, 

instructing the jury that it was to use the evidence of appellant's prior crimes only in 

considering his credibility and not for proving his character. T. 232. 

{¶46} Finally, the evidence of appellant's guilt was substantial. Hermann’s 

testimony about his encounter with appellant was buttressed by photos of the damage to 

the cruiser and injuries to the police and by the testimony of two bank-employee 

eyewitnesses. We find that the trial court did not err in permitting evidence of the prior 

convictions, and note any error was harmless because appellant ultimately introduced the 

evidence. 

{¶47} Appellant next argues the prosecutor committed misconduct in introducing 

evidence of the prior convictions and in cross-examining him about the pending cases. 

The test for prosecutorial misconduct is whether the prosecutor's remarks and comments 

were improper and if so, whether those remarks and comments prejudicially affected the 

substantial rights of the accused. State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 

(1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 591, 112 L.Ed.2d 596 (1990). In reviewing 

allegations of prosecutorial misconduct, we must review the complained-of conduct in the 

context of the entire trial. Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 

L.Ed.2d 144 (1986). Prosecutorial misconduct will not provide a basis for reversal unless 

the misconduct can be said to have deprived appellant of a fair trial based on the entire 

record. Lott, supra, 51 Ohio St.3d at 166, 555 N.E.2d 293. 
Holmes County, Case No. 19CA010 17 

{¶48} The prosecutor asked appellant about pending felony and misdemeanor 

cases on cross-examination. Evid.R. 609 allows the state to impeach the accused's 

credibility with evidence of prior felony convictions. Here, the prosecutor arguably went 

beyond the Rule asking appellant about pending cases, a line of questioning that was 

immediately extinguished by the trial court. In light of appellant’s testimony on direct about 

not being “in trouble” since his felonies, the prosecutor raised the pending cases to attack 

appellant’s credibility for truth and veracity as Evid.R. 609 intends. 

{¶49} As we found supra, the trial court did not abuse its discretion in allowing 

appellee to use appellant's prior convictions to impeach his credibility. Appellant's 

testimony on direct examination opened the door to further questioning on crossexamination about his prior convictions. Furthermore, since appellant's version of what 

occurred during the encounter with police contradicted the other witnesses, his credibility 

was at issue. See, State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, 

¶ 27. Under these circumstances, it was appropriate for the state to impeach appellant 

and to test his credibility by introducing testimony regarding these prior convictions. Id. 

Furthermore, we find no undue delay or needless accumulation in permitting such 

evidence under Evid.R. 403(B). 

{¶50} “No application of justice permits a defendant to intentionally lead a trial 

court astray and profit from the misdirection that the defendant himself created.” State v. 

Bachtel, 5th Dist. Holmes No. 99-CA-011, 2001 WL 310638, *3, citing State v. Jennings, 

5th Dist. Ashland No. CA-770, unreported, 1982 WL 5564 (November 24, 1982). 

Furthermore, the trial court instructed the jury that said evidence could be considered for 

the sole purpose of evaluating appellant’s credibility. 
Holmes County, Case No. 19CA010 18 

{¶51} Finally, appellant argues defense trial counsel was ineffective in failing to 

properly object to the evidence of the prior convictions. As noted supra, defense trial 

counsel filed a motion in limine to exclude the evidence, and renewed the motion at trial 

via objection outside the presence of the jury. Defense trial counsel then asked appellant 

upon direct examination about each of the specific challenged convictions. When the 

prosecutor brought up appellant’s pending cases, the trial court sua sponte shut down the 

questions and instructed the prosecutor to stick to appellant’s convicted offenses only. 

To succeed on a claim of ineffectiveness, a defendant must satisfy a two-prong test. 

Initially, a defendant must show that trial counsel acted incompetently. See, Strickland v. 

Washington, 466 U.S. 668. In assessing such claims, “a court must indulge a strong 

presumption that counsel's conduct falls within the wide range of reasonable professional 

assistance; that is, the defendant must overcome the presumption that, under the 

circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. at 

689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 (1955). “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, 466 

U.S. at 689. The question is whether counsel acted “outside the wide range of 

professionally competent assistance.” Id. at 690. 

{¶52} Even if a defendant shows that counsel was incompetent, the defendant 

must then satisfy the second prong of the Strickland test. Under this “actual prejudice” 

prong, 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.” Strickland, 466 U.S. at 694. 
Holmes County, Case No. 19CA010 19 

{¶53} Appellant challenges defense trial counsel’s decision to introduce the prior 

convictions upon direct examination, a decision we find to be trial strategy. Counsel may 

have attempted to blunt the impact of the prior convictions upon cross-examination. State 

v. Adkins, 5th Dist. Morrow No. CA-906, 2002-Ohio-3942, ¶ 27. While 

the trial strategy was ultimately not successful and the tactics were debatable, we find 

they do not form a basis for ineffective assistance of counsel. Id.

{¶54} In the instant case, we find appellant has demonstrated neither 

ineffectiveness by counsel nor resulting prejudice. Appellant does not suggest what 

counsel should have done differently, other than request a limiting instruction. The record 

contains extensive discussion of a limiting instruction (T. 214-217) and as noted supra, 

the trial court did give a limiting instruction regarding appellant’s prior convictions. 

{¶55} Appellant’s second, third, and fourth assignments of error are overruled. 
Holmes County, Case No. 19CA010 20 

CONCLUSION 

{¶56} Appellant’s four assignments of error are overruled and the judgment of the 

Holmes County Court of Common Pleas is affirmed. 

By: Delaney, J., 

and Baldwin, J.,Concur with 

Hoffman conurring separately 

 
Holmes County, Case No. 19CA010 21 

Hoffman, P.J., con 

{¶57} I concur in the majority’s analysis and disposition of Appellant’s second, 

third, and fourth assignments of error. I further concur in the majority’s analysis and 

disposition of Appellant’s first assignment of error as it pertains to his convictions for 

criminal damaging and resisting arrest. 

{¶58} I also concur with the majority’s decision to affirm Appellant’s conviction for 

obstructing official business, but do so for a different reason. 

{¶59} The majority concludes the jury could have reasonably found Appellant 

obstructed official business in struggling with the officers in the back of the cruiser which 

created a risk of physical harm. (Maj. Op. at ¶29). I suggest the same situation exists 

anytime a person resists arrest. But does that mean everyone who resists arrest is also 

guilty of obstructing official business? I think not. 

{¶60} I find it is the actions of Appellant while inside the cruiser to get the officers’ 

attention which form the underlying basis for the offense. Appellant’s actions occurred 

while Deputy Stryker was searching the vehicle. Appellant’s actions impeded and/or 

delayed that search. This resulted in the officers redirecting their attention to gaining 

control of Appellant, and ultimately ended in injury to the officers. Accordingly, I concur in 

the decision to affirm Appellant’s conviction on obstructing official business.