[Cite as State v. Antill, 2013-Ohio-2265.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

JOSEPH M. ANTILL, 

 DEFENDANT-APPELLANT. 

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CASE NO. 12 BE 3 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Belmont County, Ohio 

Case No. 09CR221 

JUDGMENT: Reversed and Remanded 

APPEARANCES: 

For Plaintiff-Appellee Christopher Berhalter 

Prosecutor 

Scott A. Lloyd 

Assistant Prosecuting Attorney 

147-A West Main Street 

St. Clairsville, Ohio 43950 

For Defendant-Appellant E. Kelly Mihocik 

Assistant State Public Defender 

250 East Broad Street – Suite 1400 

Columbus, Ohio 43215 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

 

 

 Dated: May 30, 2013 
[Cite as State v. Antill, 2013-Ohio-2265.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Joseph Antill, appeals from a Belmont County 

Common Pleas Court judgment convicting him of assault of a peace officer and 

aggravated robbery following a jury trial. 

{¶2} On October 15, 2009, appellant went to a bar located in the Riverside 

Restaurant where Phyllis Holt was bartending. According to Holt, she was tending 

bar that evening when appellant began yelling at another patron in the bar. When 

appellant did not listen to her instruction to lower his voice, Holt asked him to leave, 

which he did. However, appellant was in and out of the bar after that. Holt called 

911 but was told there was no officer on duty at the time. 

{¶3} Eventually Powhatan Police Officer Keven Yates arrived at Riverside. 

He found appellant outside and spoke with him. Officer Yates also spoke with those 

inside the bar. Office Yates suggested to appellant that he go home and “sleep it 

off.” Appellant, who lived nearby, went home. 

{¶4} A few hours later, appellant called Riverside. According to Patricia 

Geilinger, the employee who answered the phone, appellant stated it was not right 

that he was barred from the bar and stated “You tell them in the back I’ll get them.” 

Geilinger interpreted appellant’s statement as a threat. She hung up and called the 

Powhatan Police Department to report the threatening call. 

{¶5} Sometime after midnight, Officer Yates, who was now accompanied by 

Shadyside Police Officer Joshua Haught, responded to the call by going to 

appellant’s house. Appellant’s father answered the door and let the officers inside. 

According to the officers, Officer Yates told appellant to stop calling Riverside and 

threatening them. Appellant became upset and began cursing at the officers. Twice 

more Officer Yates asked appellant to stop calling Riverside and appellant, who 

appeared to be intoxicated, continued to yell at the officers. According to the officers, 

appellant then got off of the couch he had been sitting on and went toward Officer 

Yates aggressively and enraged. Appellant shouted at Officer Yates and pushed 

him. Officer Haught then stepped in to help Officer Yates. 

{¶6} The two officers struggled back and forth with appellant trying to 
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handcuff him. Apparently, appellant is a much larger man than the officers. When 

they were not able to gain control of appellant, Officer Yates used his Taser to try to 

subdue appellant. Officer Yates stated that he “tased” appellant twice but this only 

further enraged appellant. 

{¶7} According to the officers, they managed to get appellant on his knees 

with his upper body on the couch. But the lower half of Officer Haught’s body was 

under appellant’s chest and Officer Yates was on top of appellant’s back. While they 

were in this position, Officer Yates saw appellant grab for Officer Haught’s loaded 

gun. Officer Yates yelled to Officer Haught, “He’s got your gun. He’s going for your 

gun.” The officers then managed to subdue appellant and place him in handcuffs. 

{¶8} A Belmont County Grand Jury indicted appellant on one count of 

assault on a peace officer, a fourth-degree felony in violation of R.C. 

2903.13(A)(C)(3). Several months later it also indicted him on one count of 

aggravated robbery, a first-degree felony in violation of R.C. 2911.01(B), for trying to 

take Officer’s Haught’s gun. 

{¶9} The matter proceeded to a jury trial where the jury found appellant 

guilty of both charges. The trial court subsequently sentenced appellant to one year 

in prison on the assault count and three years in prison on the aggravated robbery 

count, to be served consecutively for a total of four years. 

{¶10} On appellant’s motion, this court granted him leave to file a delayed 

appeal. He filed his notice of appeal on January 17, 2012. 

{¶11} Appellant raises six assignments of error, the first of which states: 

MR. ANTILL’S CONVICTION FOR AGGRAVATED ROBBERY 

IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 

{¶12} Appellant argues that his aggravated robbery conviction was against 

the manifest weight of the evidence. In support, appellant points to Officer Haught’s 

testimony that he never felt or thought appellant was pulling on his gun and to his 

own testimony that he never reached for Officer Haught’s gun. 
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{¶13} In determining whether a verdict is against the manifest weight of the 

evidence, an appellate court must review the entire record, weigh the evidence and 

all reasonable inferences and determine 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 reversed and a new trial ordered. State v. 

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 668 (1997). “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.’” Id. (Emphasis sic.) In making 

its determination, a reviewing court is not required to view the evidence in a light 

most favorable to the prosecution but may consider and weigh all of the evidence 

produced at trial. Id. at 390. 

{¶14} Yet granting a new trial is only appropriate in extraordinary cases where 

the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d 

172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness 

credibility, conflicting testimony, and evidence weight are primarily for the trier of the 

facts who sits in the best position to judge the weight of the evidence and the 

witnesses' credibility by observing their gestures, voice inflections, and demeanor. 

State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75 

Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 

227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exist two 

fairly reasonable views of the evidence or two conflicting versions of events, neither 

of which is unbelievable, it is not our province to choose which one we believe.” 

State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152. 

{¶15} Appellant only takes issue with his aggravated robbery conviction here. 

He does not assert that his assault conviction was against the weight of the evidence. 

{¶16} The jury convicted appellant of aggravated robbery in violation of R.C. 

2911.01(B), which provides: 

(B) No person, without privilege to do so, shall knowingly remove 

or attempt to remove a deadly weapon from the person of a law 
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enforcement officer, or shall knowingly deprive or attempt to deprive a 

law enforcement officer of a deadly weapon, when both of the following 

apply: 

(1) The law enforcement officer, at the time of the removal, 

attempted removal, deprivation, or attempted deprivation, is acting 

within the course and scope of the officer's duties; 

 (2) The offender knows or has reasonable cause to know that 

the law enforcement officer is a law enforcement officer. 

{¶17} We must examine the evidence offered at trial in order to determine if it 

supports the jury’s verdict. The testimony as to the aggravated robbery count was as 

follows. 

{¶18} Officer Yates testified that at appellant’s house after he told appellant to 

stop calling and threatening Riverside, appellant became enraged, came toward him, 

and shoved him. (Tr. 207-210). Because of the shove, Officer Yates attempted to 

place appellant under arrest for assaulting a police officer. (Tr. 211). Appellant 

resisted and pushed the officers away. (Tr. 212). After a struggle that involved 

tasing appellant to no avail, the officers managed to get appellant into a position 

where his knees were on the floor and his upper body was on the couch. (Tr. 220). 

In this position, the lower half of Officer Haught’s body was under appellant’s chest. 

(Tr. 220). Officer Yates was on top of appellant’s back. (Tr. 221). As Officer Yates 

was directing appellant’s father to get back, he saw appellant grab for Officer 

Haught’s gun. (Tr. 222). Officer Yates testified that appellant’s left hand was on 

Officer Haught’s loaded gun and appellant was “yanking” on the butt of the gun. (Tr. 

223). Officer Yates yelled to Officer Haught, “He’s got your gun. He’s going for your 

gun.” (Tr. 223). Officer Yates put appellant in a choke hold. (Tr. 224). The officers 

were then able to subdue appellant. (Tr. 224-225). Officer Yates also testified that 

he and Officer Haught were both dressed in uniform and acting as police officers 

during this encounter. (Tr. 317). 

{¶19} Officer Haught testified that after struggling with appellant, appellant 
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threw him off balance and he landed on the couch. (Tr. 342). Appellant ended up on 

Officer Haught’s midsection and Officer Yates was on top of appellant. (Tr. 342). 

Officer Haught stated that his loaded service weapon was on the right side of his belt. 

(Tr. 342-343). Officer Haught stated that he grabbed appellant’s right arm “at which 

point there was a slight tugging” and he heard Officer Yates yell that appellant was 

going for his gun. (Tr. 343). Officer Haught testified that until Officer Yates yelled out 

to him, he did not know there was a problem with his gun. (Tr. 343-344). Officer 

Haught let go of appellant’s right arm, re-secured his gun in his holster, and resecured the thumb brake. (Tr. 344). On cross-examination, Officer Haught stated 

that he did not know appellant’s hand was on his gun at the time. (Tr. 378). 

{¶20} Lawrence Antill, appellant’s father who was at home during appellant’s 

encounter with the police, testified that he did not see appellant grab Officer Haught’s 

gun. (Tr. 431). 

{¶21} Appellant testified that after struggling with the officers, the three ended 

up in a position where he was on top of Officer Haught. (Tr. 482). Appellant testified 

that he did not attempt to grab Officer Haught’s gun. (Tr. 482-483, 494). Instead, 

appellant stated that he was trying to push himself off of Officer Haught. (Tr. 484). 

{¶22} An appellate court is permitted to independently weigh the credibility of 

the witnesses when determining whether a conviction is against the manifest weight 

of the evidence. State v. Wright, 10th Dist. No. 03AP-470, 2004-Ohio-677, ¶11. But 

we must give great deference to the fact finder's determination of witnesses' 

credibility. Id. The policy underlying this presumption is that the trier of fact is in the 

best position to view the witnesses and observe their demeanor, gestures, and voice 

inflections, and use these observations in weighing the credibility of the proffered 

testimony. Id. 

{¶23} In this case the jury heard conflicting testimony. Officer Yates stated 

that he saw appellant grab for Officer Haught’s gun. Appellant stated that he did not 

grab for the gun. The jury was faced with a credibility determination as to which 

testimony to believe. Apparently, they found Officer Yates’s testimony to be more 
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convincing. Because the jury was in the best position to judge the witnesses’ 

credibility, we will not second-guess their determination. 

{¶24} Because the jury did not lose its way in reaching a verdict, the verdict is 

not against the manifest weight of the evidence. Accordingly, appellant’s first 

assignment of error is without merit. 

{¶25} Appellant’s second assignment of error states: 

TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE 

A CRIM.R. 29 MOTION ASKING FOR MR. ANTILL’S ACQUITTAL OF 

THE AGGRAVATED ROBBERY CHARGE WHEN THERE WAS 

INSUFFICIENT EVIDENCE TO ESTABLISH THAT CRIME. 

{¶26} Here appellant contends that his counsel was ineffective because she 

failed to request an acquittal based on Crim.R. 29 due to insufficient evidence to 

support the aggravated robbery charge. He points out that he was not charged with 

aggravated robbery until five months after the incident and Officer Haught testified 

that he never thought appellant was trying to take his gun. Under these 

circumstances, appellant argues, a reasonably competent attorney would have 

moved for acquittal on the aggravated robbery charge and the motion would have 

likely been granted. 

{¶27} To prove an allegation of ineffective assistance of counsel, the 

appellant must satisfy a two-prong test. First, appellant must establish that counsel's 

performance has fallen below an objective standard of reasonable representation. 

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. 

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. 

Second, appellant must demonstrate that he was prejudiced by counsel's 

performance. Id. To show that he has been prejudiced by counsel's deficient 

performance, appellant must prove that, but for counsel's errors, the result of the trial 

would have been different. Bradley, at paragraph three of the syllabus. 

{¶28} Appellant bears the burden of proof on the issue of counsel's 
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effectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In 

Ohio, a licensed attorney is presumed competent. Id. 

{¶29} Appellant contends that his counsel was ineffective for failing to make a 

Crim.R. 29 motion for acquittal based on insufficient evidence to convict him of 

aggravated robbery. Thus, his claim here is one of sufficiency of the evidence. 

{¶30} Sufficiency of the evidence is the legal standard applied to determine 

whether the case may go to the jury or whether the evidence is legally sufficient as a 

matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 

N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. Thompkins, 78 

Ohio St.3d at 386. Whether the evidence is legally sufficient to sustain a verdict is a 

question of law. Id. In reviewing the record for sufficiency, 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. Smith, 80 Ohio St.3d at 113. 

{¶31} There was sufficient evidence to convict appellant of aggravated 

robbery. The state presented evidence going to each of the aggravated robbery 

elements. 

{¶32} Officer Yates testified that he saw appellant attempt to remove Officer 

Haught’s service weapon from its holster. (Tr. 222-223). At the time, Officer Haught 

was attempting to help Officer Yates arrest appellant for assaulting a police officer. 

(Tr. 211). Therefore, there was evidence that Officer Haught was within the course 

and scope of his duties. R.C. 2911.01(B)(1). And Officer Haught was wearing his 

police uniform at the time. (Tr. 317). Hence, appellant had reasonable cause to 

know that Officer Haught was a law enforcement officer. R.C. 2911.01(B)(2). 

{¶33} This evidence is sufficient to support the aggravated robbery conviction. 

The state presented evidence going to each of the aggravated robbery elements 

under R.C. 2911.01(B). Any conflicting evidence would go to the weight of the 

evidence, which was discussed above. 

{¶34} Because there was sufficient evidence to support an aggravated 
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robbery conviction, appellant cannot demonstrate any prejudice from his counsel’s 

failure to raise a Crim.R. 29 motion for acquittal. Thus, he cannot demonstrate 

ineffective assistance of counsel here. 

{¶35} Accordingly, appellant’s second assignment of error is without merit. 

{¶36} Appellant’s third assignment of error states: 

WHEN THE DEFENDANT’S COMPETENCY IS BROUGHT 

INTO QUESTION BEFORE TRIAL, THE TRIAL COURT MUST 

CONDUCT A COMPETENCY HEARING. 

{¶37} Prior to trial, appellant requested a psychological evaluation. The trial 

court granted the request and ordered a report. It appears as though the inquiry 

ended here. 

{¶38} In this assignment of error, appellant asserts the trial court was 

statutorily required to hold a competency hearing in his case. He argues that the 

court’s failure to do so is reversible error. 

{¶39} R.C. 2945.37(B) provides: 

In a criminal action in a court of common pleas * * * the court, 

prosecutor, or defense may raise the issue of the defendant's 

competence to stand trial. If the issue is raised before the trial has 

commenced, the court shall hold a hearing on the issue as provided in 

this section. If the issue is raised after the trial has commenced, the 

court shall hold a hearing on the issue only for good cause shown or on 

the court's own motion. 

{¶40} On September 3, 2010, appellant filed “Defendant’s Motion for 

Psychological Evaluation.” The entire motion reads, “The Defendant, Joseph Mark 

Antill, hereby requests a psychological evaluation for reasons set forth more 

particularly at the hearing.” A plea agreement hearing was held that same day. 

Counsel did not elaborate on the reason for the motion. 
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{¶41} In its September 8 judgment entry, the trial court sustained appellant’s 

motion and ordered the evaluation to be completed on or before September 17, 

2010. 

{¶42} The court next mentions the psychological evaluation in a September 

22 judgment entry where it notes that the evaluation had not been received as of that 

date. 

{¶43} The court held another pretrial hearing on October 15. 2010. Neither 

the parties nor the court mention the psychological evaluation. 

{¶44} The case then proceeded to trial on October 26, 2010. No other 

mention of the psychological evaluation was made and appellant did not request a 

competency hearing. 

{¶45} The Ohio Supreme Court has held that a trial court must hold a 

competency hearing if a request is made before trial. State v. Were, 94 Ohio St.3d 

173, 174, 2002-Ohio-481, 761 N.E.2d 591. The Court found reversible error where 

defense counsel continually raised the issue of appellant's competency, appellant 

never testified, and appellant filed many pro se motions that casted doubt on his 

competency. Id. at 176. 

{¶46} The Were Court distinguished its facts from those in State v. Bock, 28 

Ohio St.3d 108, 502 N.E.2d 1016 (1986), where the Court found that the failure to 

hold a competency hearing was harmless error. The Bock Court based its finding of 

harmless error on the facts that the defendant testified in his own defense and was 

subject to cross-examination, the record failed to reveal sufficient indicia of 

incompetency, and “[d]efense counsel, after the original motion for a hearing, failed 

ever again to mention the defendant's competency until the time for appeal.” Id. at 

111. 

{¶47} In State v. Hinkston, 182 Ohio App.3d 232, 2009-Ohio-2631, 912 

N.E.2d 179 (4th Dist.), the Fourth District found that the trial court committed 

reversible error where it failed to conduct a competency hearing when appellant 

made the request for a hearing on the day trial was set to begin. 
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{¶48} And in State v. Wilcox, 16 Ohio App.3d 273, 475 N.E.2d 516 (11th 

Dist.1984), the Eleventh District found the defendant’s plea of not guilty by reason of 

insanity and request for a psychiatric evaluation to show he was legally insane at the 

time he committed the alleged acts did not constitute a request for a competency 

hearing. The court held that in the absence of a specific motion for a competency 

hearing, no hearing is mandated. Id. at 275. 

{¶49} This case law indicates that when a defendant specifically requests a 

competency hearing prior to trial, the failure to hold a hearing can be reversible error. 

But when a defendant simply raises an issue as to his mental state, or when the 

defendant testifies and demonstrates no indicia of incompetence, the trial court does 

not commit reversible error in failing to hold a competency hearing. 

{¶50} In this case, appellant never requested a competency hearing. And 

after filing a motion for a psychological evaluation, appellant did not raise the issue of 

his mental state again until this appeal. Furthermore, like the defendant in Bock, 

appellant testified in his own defense and was subject to cross-examination. His 

testimony did not reveal indicia of incompetency. Based on these facts and the case 

law discussed, the trial court did not err in failing to hold a competency hearing and 

even if it did err, any error was harmless. 

{¶51} Accordingly, appellant’s third assignment of error is without merit. 

{¶52} Appellant’s fourth assignment of error states: 

THE STATE’S FAILURE TO TURN OVER THREE WITNESS 

STATEMENTS BEFORE TRIAL WAS PREJUDICIAL 

PROSECUTORIAL MISCONDUCT. 

{¶53} Appellant argues that the prosecutor committed misconduct by failing to 

disclose three witness statements to him. The witness statements were taken by 

Officer Yates at the Riverside Restaurant from Michael Mellott, Allen Newkirk, and 

Ryan Whitlatch. These witnesses did not testify at trial. Appellant’s counsel 

objected. The trial court ruled the state’s actions amounted to prosecutorial 
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negligence and not prosecutorial misconduct because the state did not act purposely 

in withholding the statements from the defense. Appellant contends this was not the 

proper standard to apply. Instead, he contends the court should have looked at 

whether he suffered any prejudice as a result of the withholding. Appellant claims he 

was prejudiced because he was prevented from conducting a full investigation that 

may have lent further support to his account of the events and undermined Officer 

Yates’s credibility. 

{¶54} The test for prosecutorial misconduct is whether the conduct 

complained of deprived the defendant of a fair trial. State v. Fears, 86 Ohio St.3d 

329, 332, 715 N.E.2d 136 (1999). 

{¶55} Prior to Officer Yates’s testimony, it came to appellant’s and the state’s 

attention that Officer Yates had taken the statements of three witnesses and these 

statements were not turned over to appellant during discovery. (Tr. 187-192). The 

parties and the court agreed this was not an intentional withholding by the 

prosecutor, as the prosecutor believed everything in the officer’s file was turned over 

to the defense. (Tr. 188-190). In fact, the prosecutor had never seen these 

statements before. (Tr. 188). The statements were from three men who were 

involved in a shouting incident at Riverside before appellant left the bar and went 

home. (Tr. 191). And the court noted it had already limited how much testimony 

could be solicited regarding the incident at the bar. (Tr. 191). 

{¶56} Appellant’s counsel stated that appellant was potentially prejudiced 

because she was not able to adequately prepare for her cross-examination of Officer 

Yates and she could have spoken with those witnesses. (Tr. 189). The court was 

able to alleviate counsel’s concern. The court allowed appellant’s counsel an extra 

day to review the statements and to cross-examine Officer Yates the following day. 

(Tr. 189-192, 234-235, 278-281). The next day, after counsel had reviewed the 

statements, she indicated to the court that she would not have any questions 

regarding the issues raised in the three statements. (Tr. 278). 

{¶57} The court remedied the situation by allowing appellant’s counsel an 
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extra day to review the statements before cross-examining Officer Yates. The 

statements did not have any value to the defense because counsel stated she had 

no questions of Officer Yates regarding the statements. Additionally, counsel did not 

see a need to ask for a mistrial or even to request a continuance so that she might 

interview the men who gave the statements. Because the men who gave the 

statements were not at appellant’s house when the crimes were committed, 

presumably their statements were of no value to prove or disprove that appellant 

committed the charged offenses. Based on the above, appellant cannot demonstrate 

that he was deprived of a fair trial. 

{¶58} Accordingly, appellant’s fourth assignment of error is without merit. 

{¶59} Appellant’s fifth assignment of error states: 

THE JURY USED PROHIBITED, PREJUDICIAL OTHER BAD 

ACTS EVIDENCE TO CONVICT MR. ANTILL. BECAUSE IT WAS MR. 

ANTILL’S ATTORNEY THAT SUBMITTED THAT EVIDENCE, HE DID 

NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. 

{¶60} In this assignment of error, appellant once again alleges he received 

ineffective assistance of counsel. He claims his counsel was ineffective in that she 

submitted the Ohio Uniform Incident Report prepared by Officer Yates without 

redacting the “other bad acts” evidence from it. (Def. Ex. 3). The “bad acts” 

appellant claims should have been redacted, as taken from the police report, were 

under a section titled “NOTES/COMMENTS,” which followed the officer’s account of 

the incident at hand. The notes read: 

JOE ANTILL HAS SEVERAL ARRESTS FOR DOMESTIC 

VIOLENCE AGAINST HIS PARENTS. 

JOE ANTILL HAS BEEN BARRED FROM HANK’S PLACE AND 

THE RIVERSIDE FOR FIGHTING. 

ON JULY 4TH 2009, JOE ANTILL WAS AT A FRIEND’S 
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PARTY. THERE HE BECAME LOUD AND ABUSIVE AND WAS 

ASKED TO LEAVE. AN ALTERCATION OCCURRED WHERE HE 

RECEIVED FACIAL INJURIES. 

THE EXPERIENCES THAT OTHER POWHATAN OFFICERS 

AND MYSELF HAVE HAD WITH JOE ANTILL, ARE THAT WHEN HE 

IS SOBER HE IS A CALM, POLITE GUY. ONCE HE HAS JUST A 

SMALL AMOUNT OF ALCOHOL TO DRINK HE TURNS MEAN, LOUD 

AND VIOLENT. 

{¶61} Appellant contends he was prejudiced by these statements because 

they appear in the form of uncontested facts and they set forth a bad character trait of 

his that was directly at issue in this case because he had been drinking and was 

accused of acting violently. He argues no reasonable defense attorney would have 

presented these statements to the jury. 

{¶62} The state asserts there was no ineffectiveness because the trial court 

ruled on a motion in limine and found that other acts evidence would be permissible. 

{¶63} The other acts evidence in the motion in limine that the state refers to is 

not relevant here. Appellant filed a motion in limine asking the court to prohibit the 

state from introducing testimony regarding certain alleged but uncharged crimes. 

The trial court sustained appellant’s motion in part and overruled it in part. It found 

that the motion dealt with testimony of witnesses who may have observed appellant’s 

behavior within approximately six hours prior to the incident between appellant and 

the arresting officers. The court found the state could only introduce such testimony 

upon a proper foundation and where the testimony played an integral part in 

explaining the sequence of events on the night in question. Thus, the motion in 

limine had no bearing on statements in the incident report as they did not concern the 

night in question. 

{¶64} Appellant’s counsel used the incident report during her crossexamination of Officer Yates in questioning him about why he did not include certain 

details in his report and eventually persuading the officer to admit that his report was 
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incomplete. (Tr. 262-270). However, why counsel then offered the report into 

evidence is unclear. Understandably, it was part of counsel’s trial strategy to 

question Officer Yates about why he failed to include purportedly important details in 

his report. But it is troubling that counsel then offered the incident report into 

evidence, without redacting the notes/comments by Officer Yates, which undoubtedly 

cast appellant in a bad light. Had the prosecutor offered the incident report into 

evidence, appellant would likely have appealed based on inadmissible character 

evidence. 

{¶65} Offering the entire incident report into evidence was not a prudent 

decision. But under the ineffective assistance of counsel standard of review, we 

must look at whether appellant was prejudiced by counsel’s performance. 

{¶66} Given that appellant testified and gave a conflicting account of the 

events from that account of the officers, the jury had to make a credibility 

determination as to whose testimony was the most believable. It is likely that 

appellant lost credibility in the jury’s eyes based on the statements in the incident 

report. The report set out, as facts reported by a police officer, that appellant has 

been arrested several times for domestic violence against his own parents, that he 

fights at bars, and that he is mean, loud, and violent when he drinks. All of these 

statements make appellant’s testimony less believable especially in light of the fact 

that appellant had been drinking on the night in question. Thus, we must conclude 

that appellant was prejudiced by the incident report. 

{¶67} Accordingly, appellant’s fifth assignment of error has merit. 

{¶68} Appellant’s sixth assignment of error states: 

THE CUMULATIVE ERRORS IN THIS CASE PREVENTED MR. 

ANTILL FROM HAVING A FUNDAMENTALLY FAIR CRIMINAL TRIAL. 

{¶69} Finally, appellant asserts that the cumulative effect of the above alleged 

errors denied him a fair trial. 

{¶70} An appellate court may reverse a defendant's conviction based on the 
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doctrine of cumulative error. Cumulative error occurs when errors deemed 

separately harmless deny the defendant a fair trial. State v. DeMarco, 31 Ohio St.3d 

191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. 

{¶71} The only assignment of error that has merit is appellant’s fifth 

assignment of error. Appellant’s other alleged errors are meritless. There is no 

cumulative error. 

{¶72} Accordingly, appellant’s sixth assignment of error is without merit. 

{¶73} For the reasons stated above, the trial court’s judgment is hereby 

reversed and the matter is remanded for a new trial. 

Vukovich, J., concurs. 

Waite, J., concurs.